Kenrick Brathwaite v. United States

Petitioner – an alleged drug courier – was charged with Conspiracy to Import a Controlled Substance, in violation of 21 U.S.C. § 963, and Conspiracy to Possess a Controlled Substance with Intent to Distribute, in violation of 21 U.S.C. § 846. The indictment alleged that the charged conspiracies “involved a substance containing cocaine,” and that “[t]he amount of cocaine involved in the conspiracy . . . was at least five kilograms or more of a substance containing cocaine.” The jury was instructed that in order to convict Petitioner on either count, it need only find that he was involved in a conspiracy to import or distribute “some quantity of drug,” without any specific finding as to the type or quantity of controlled substance involved. The jury was further instructed that upon making such a determination of general guilt, it would thereafter be asked to make a separate, specific finding as to the type and quantity of controlled substance attributable to Petitioner, which would determine his sentencing exposure. After trial, the jury returned general verdicts of guilt with respect to both conspiracy counts. However, the jury declined to make any specific findings as to the type or quantity of controlled substance, indicating on its special verdict form that the Government had failed to meet its burden in that regard. At sentencing, Petitioner argued that the lack of any such specific finding required the district court to sentence him pursuant to the provisions of 21 U.S.C. §§ 841(b)(3) and 960 (b)(7) – the least severe statutory penalties available under §§ 841 and 960 – which typically applies in cases involving “Schedule V” controlled substances. Under §§ 841(b)(3) and 960 (b)(7), Petitioner’s sentencing exposure would have been limited to a maximum of one year incarceration on each count. The trial court rejected this argument, applying instead the statutory penalties set forth in §§ 841(b)(1)(C) and 960(b)(3), which apply to offenses involving an unquantified amount of cocaine. On appeal, the Second Circuit Court of Appeals affirmed. As set forth below, circuit courts are divided on this issue. At least two circuit courts have held that when a jury renders a general verdict without identifying a specific controlled substance, the defendant’s sentencing exposure should be limited to the penalties appliable to Schedule V controlled substances. These courts hold that “when the jury’s factual findings do not include a finding as to the identity of the drug beyond a reasonable doubt, [United States v.] Apprendi will be violated when the sentence exceeds the lowest ‘catch-all’ statutory maximum of one year.” United States v. Henry, 282 F.3d 242, 248 (3d Cir. 2002), see also United States v. Hunt, 656 F.3d 906 (9th Cir. 2011). The Second Circuit, however, has rejected this rule, claiming that “Section 841(b)(3) is not a fallback provision applicable whenever the government fails to prove the particular controlled substance involved in a charged crime.” Opinion at p. 3 (A-3). Instead, the Second Circuit has held that, in the case of a general verdict under 21 U.S.C. § 846, a district court should “sentence the defendant under the statutory provision carrying the most lenient sentence for which there was sufficient evidence supporting conviction.” United States v. Zillgitt, 286 F.3d 128, 136 (2d Cir.