In United States v. Sanders, No. 10-13667 (Feb. 2, 2012), the Court affirmed a cocaine trafficking conviction for the driver of a commercial tractor-trailor on which, hidden in rotting cabbage, 153 kilograms of cocaine were found.
The Court rejected the argument that it was Apprendi error to instruct the jury that "the defendant does not have to know specifically the nature of the particular drug that he’s possessing, but must know that it is a controlled substance." The Court explained that Apprendi error involves the amount of drugs "involved" in the offense, which the jury must find for sentencing purposes. But Apprendi leaves unchanged the defendant’s "knowledge" element, which 21 U.S.C. § 841 links to a "controlled substance." The Court distinguished United States v. Narog, on the ground that the indictment in that case charged that the defendant knew the drugs were methamphetamine. By contrast, Sanders’ indictment charged knowledge of a "controlled substance," that is, "entered into a conspiracy with intent to distribute a controlled substance, and at least five kilograms of cocaine were involved."
The Court held that the district court abused its discretion under Fed. R. Evid. 404(b) when it admitted a 22-year old conviction for selling 1.4 grams of marijuana. The Court held that because the conviction was too remote in time, and too distinct from a conspiracy to traffic in 153 kilograms of cocaine, it "had virtually no probative value." However, the error was harmless in light of the other overwhelming evidence presented at trial.