United States v. Shawn Richard Anderson , 257 F.3d 924 ( 2001 )

GOLDBERG, Judge, concurring.

Shawn Richard Anderson petitions for rehearing by the panel, arguing that “an analysis of the evidence for purposes of whether the Apprendi error was harmless must be based on evidence that was presented to the jury.” See Appellant’s Petition for Rehearing at 6. Mr. Anderson cites no authority for this assertion, however, and I do not believe it is legally correct. In cases such as this one, where the district court has erred by omitting an element of the offense from its charge to the jury, our duty is first to “conduct a thorough examination of the record,” Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and then to “ask[ ] whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Id. I understand the “record” in this context to comprise everything contemplated in Fed. R.App. P. 10(a), including “the original papers and exhibits filed in the district court [and] the transcript of proceedings.”

My own thorough examination of the record persuades me that Mr. Anderson failed to adduce any evidence that could rationally lead to a contrary finding on the issue of drug quantity, either in his argument to the jury (where he and his co-conspirators clearly sought to portray themselves as incapable of achieving the object of their conspiracy), or before the district court during the sentencing phase. I believe our decision is therefore bound by Neder. See 527 U.S. at 19, 119 S.Ct. 1827 (“In a case such as this one, where a defendant did not, and apparently could not, bring forth evidence contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.”) (emphasis added).