Judge Calabresi
Andino was arrested after controlled delivery of a package that held cocaine. He confessed to knowing the package held drugs, but believed the drugs to be marijuana, not cocaine. Andino and co-conspirator Davis were indicted for conspiring to distribute or possess with intent to distribute cocaine. Andino was sentenced to 48 months in prison after a jury convicted him of conspiring to distribute or to possess with intent to distribute cocaine contrary to 21 USC §846. At issue on appeal was whether the government had to satisfy a cocaine-specific scienter burden, showing not only that Andino knowingly joined a conspiracy to possess and distribute a controlled substance, but also that he specifically conspired to possess and distribute cocaine. Affirming conviction, the Second Circuit held that under 21 USC §846 the government was required to show only that Andino knowingly participated in a conspiracy involving a controlled substance. Thus, the circuit rejected Andino’s challenges that the evidence was insufficient to support his conviction, and that the trial court erred in refusing to instruct the jury that acquittal was warranted if the government failed to prove that he specifically agreed to possess and distribute cocaine.