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00-4205 U.S. v. Trennell

By: dmc-admin//May 20, 2002//

00-4205 U.S. v. Trennell

By: dmc-admin//May 20, 2002//

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“Here the alleged Apprendi error occurred not at sentencing, as the jury found drug quantity beyond a reasonable doubt, but only at the indictment stage.

Therefore, in order for us to find an Apprendi violation, we would have to find that the failure alone of the indictment to state drug quantities that the prosecutor seeks to prove under sec. 841(b) would be a constitutional violation, even if the trier of fact finds those quantities beyond a reasonable doubt. We held in Bjorkman that Apprendi does not ‘rewrite or change the elements of any federal offense; it does, however, determine who must make particular decisions, and what the burden of persuasion must be.’ Bjorkman, 270 F.3d at 491. Because Apprendi arose as a state prosecution, it did not address federal offenses and did not address the contents of a federal indictment.

See Apprendi, 530 U.S. at 477 n.3 (disclaiming any reliance on, or interpretation of, the Fifth Amendment’s Indictment Clause). Other circuits have held, contrary to this position, that the failure to charge drug quantity in the indictment deprives the district court of jurisdiction and requires automatic reversal. See Cotton, 261 F.3d at 407; Gonzalez, 259 F.3d at 361. We need not, however, resolve the issue in this scenario, because even if an Apprendi error occurred by failing to allege drug quantity in the indictment, it was harmless because the trier of fact did in fact determine drug quantity beyond a reasonable doubt. Cf. United States v. Mechanik, 475 U.S. 66, 72-73 (1986) (holding that petit jury’s guilty verdict in prosecution for drug-related offenses and conspiracy established probable cause to charge defendants and thus rendered harmless any error in grand jury’s charging decision).”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Manion, J.

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