United States v. Douglas ( 2008 )

06-1099-cr(L)
United States v. Douglas
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2007
(Argued: May 7, 2008 Decided: September 25, 2008)
Docket Nos. 06-1099-cr(L); 06-4115-cr(con)
_____________________
UNITED STATES OF AMERICA,
Appellee,
-v.-
GODFRIED MARTIN, GARFIELD DOUGLAS,
Defendants-Appellants.
_______________________
BEFORE: HALL and LIVINGSTON, Circuit Judges, and OBERDORFER, District Judge.*
Appeal from the judgment of the United States District Court for the Eastern District of
New York (Block, Judge), sentencing Defendants-Appellants Godfried Martin and Garfield
Douglas to terms of imprisonment of seventeen and twenty-seven months, respectively.
Defendants-Appellants were convicted after a jury trial of conspiring to distribute and conspiring
to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and
841(b)(1)(D), and possession with intent to distribute more than five grams of marijuana within
one thousand feet of a public elementary school in violation of 21 U.S.C. §§ 860(a) and
841(a)(1). We hold that 21 U.S.C. § 860(a) applies to a defendant who possesses with intent to
distribute a controlled substance, regardless of whether the defendant had the specific intent to
*
The Honorable Louis F. Oberdorfer, United States District Judge for the District of
Columbia, sitting by designation.
distribute such substance within the one-thousand-foot-radius. We also reaffirm this Court’s
holding, in United States v. Falu, 776 F.2d 46, 50 (2d Cir. 1985), that the “schoolyard statute” is
one of strict liability such that a defendant can violate the statute’s terms without knowing that he
was within one thousand feet of a school. We affirm.
________________________
BARRY S. TURNER, New York, New York, for Defendant-Appellant Martin.
NORMAN TRABULUS, New York, New York, for Defendant-Appellant Douglas.
JONATHON NATHANSON , Assistant United States Attorney (Susan Corkery,
Assistant United States Attorney, on the brief), for Benton J. Campbell, United
States Attorney, Eastern District of New York, Brooklyn, New York, for Appellee.
________________________
PER CURIAM:
Defendants-Appellants Godfried Martin and Garfield Douglas appeal from the district
court judgment sentencing them to terms of imprisonment of seventeen and twenty-seven
months, respectively, after their convictions for conspiring to distribute and possess with intent to
distribute marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(D), and
possession with intent to distribute more than five grams of marijuana within one thousand feet
of a public elementary school in violation of 21 U.S.C. §§ 860(a) and 841(a)(1). On appeal,
Martin argues that under § 860(a) the Government was required to prove as an element of the
crime that he had knowledge of the proximity of the school. Additionally, both Martin and
Douglas argue that their convictions under § 860(a) should be reversed because the district court
incorrectly determined that § 860(a) did not require the Government to prove that they had the
requisite intent specifically to distribute the marijuana within one thousand feet of a public
2
school.1 We disagree, and for the reasons that follow hold that § 860(a) applies to a defendant
who possesses a controlled substance within one thousand feet of a school with the intent to
distribute that controlled substance anywhere. We also reaffirm this Court’s holding, in United
States v. Falu, 776 F.2d 46, 50 (2d Cir. 1985), that the schoolyard statute is one of strict liability
such that a defendant can violate the statute’s terms without knowing that he was within one
thousand feet of a school.
I. Background
In October 2004, the Government filed a superseding indictment alleging that in January
2004, Martin and Douglas had: (1) conspired to distribute and to possess with intent to distribute
marijuana; (2) possessed with intent to distribute more than five grams of marijuana within one
thousand feet of a public elementary school; and (3) carried and used a firearm in furtherance of a
drug trafficking crime. At trial, the parties stipulated that the parking lot where defendants were
apprehended was within one thousand feet of a public elementary school. After the close of
evidence at trial, the Defendants moved for acquittal, arguing that § 860(a) required the
Government to prove that they had knowledge of the proximity of the school. The district court
denied the motions, noting: (1) that this Court had determined that a predecessor statute did not
contain a knowledge requirement; and (2) although the issue was not raised by the parties, that
the statute did not require the Government to demonstrate that the defendants intended to
distribute the marijuana within 1000 feet of a public school. With respect to the jury charge
applicable to § 860(a), the district court instructed the jury that “the defendant need not know that
1
Douglas raises an additional argument challenging the sentence imposed by the district
court. We address this argument in a separate summary order filed simultaneously with this
opinion.
3
he was within one thousand feet of a school, nor intend to possess with intent to distribute drugs
there. The government need only prove that the defendant possessed the controlled substance
within one thousand feet of a public elementary school and intended to distribute it somewhere.”
After deliberating, the jury convicted the Defendants of the narcotics conspiracy and
schoolyard counts, but acquitted them of the firearm count. This appeal followed.
II. Discussion
Section 860(a) provides for enhanced penalties for “[a]ny person who violates [21 U.S.C.
§ 841(a)(1)] by distributing, possessing with intent to distribute, or manufacturing a controlled
substance in or on, or within one thousand feet of,” inter alia, “the real property comprising a
public or private elementary . . . school.” The Defendants argue that the district court erred in
instructing the jury that the Government was not required to prove either that the Defendants
were aware of the proximity of the school or that they intended to distribute the marijuana within
the distance from the school proscribed by the statute.
A. Intent to Distribute Within One Thousand Feet of a School
This Court has not addressed the question of whether § 860(a) requires the Government
to prove that a defendant intended to distribute a controlled substance within one thousand feet of
the relevant school. Those Circuits that have considered the issue have answered the question in
the negative. See, e.g., United States v. Harris, 313 F.3d 1228, 1239 (10th Cir. 2002); United
States v. Ortiz, 146 F.3d 25, 28-30 (1st Cir. 1998); United States v. Lloyd, 10 F.3d 1197, 1218
(6th Cir. 1993); United States v. McDonald, 991 F.2d 866, 868-71 (D.C. Cir. 1993); United
States v. Rodriguez, 961 F.2d 1089, 1090-95 (3d Cir. 1992); United States v. Wake, 948 F.2d
1422, 1429-34 (5th Cir. 1991). The Defendants advance several arguments in support of their
4
claim that § 860(a) requires the Government to prove that they intended to distribute the
controlled substance within the one-thousand-foot radius proscribed by the statute. We address
each in turn.
1. Statutory Language
The Defendants first rely on the language of the statute itself, arguing that the phrase
“within one thousand feet of” modifies the word “distribute” in the phrase “possessing with
intent to distribute.” According to the Defendants, had Congress intended for the specifying
phrase to modify “possessing,” it could have unambiguously said so by omitting the words “with
intent to distribute” from the statute. The Defendants argue that Congress’s inclusion of the
words “with intent to distribute” specified “that the intended place of distribution must be in the
schoolyard zone.” Further, the Defendants note that the phrase “within one thousand feet of” is
closer to the word “distribute” than to the word “possessing,” and, thus, should be construed to
modify “distribute.”
The Defendants’ focus on the inclusion of the phrase “possession with intent to
distribute” is misplaced. As the Fifth Circuit noted in Wake, the phrase “possession with intent
to distribute” denotes a particular category of possession – felony possession, which is made a
felony in § 841(a)(1) – characterized by the possession of a sufficient quantity of narcotics to
raise an inference that the defendant intends to distribute them. See Wake, 948 F.2d at 1430-31.
According to the Fifth Circuit, “the clause in issue, ‘possessing with intent to distribute’, equates
with ‘felony possession.’ Therefore, by substituting ‘felony possession’ for ‘possessing with
intent to distribute’, the statute would proscribe ‘distributing, [felony possession], or
manufacturing within one thousand feet of . . . a . . . school.’” Id. at 1431 (alterations in
5
original). Under this reasoning, the schoolyard statute clearly criminalizes the possession, within
one thousand feet of a public school, of a quantity of narcotics sufficient to create an inference
that an individual intends to distribute them. Id. (“We view the statute as clear in proscribing the
possession, within the school zone, of a felony quantity of a controlled substance–that is, an
amount that evidences an intent to distribute the drugs somewhere.”).
Other Circuits have also rejected arguments similar to the Defendants’ argument that,
based on their proximity to one another in the text of the statute, the phrase “within one thousand
feet” must modify the word “distribute” in the phrase “possessing with intent to distribute.” See,
e.g, Harris, 313 F.3d at 1239. Several courts have noted that because possessing is the actus
reus of “possessing with intent to distribute,” an internally consistent reading of the statute
requires adherence to the interpretation advanced by the Government:
[Section 860(a)] applies to three types of criminal conduct: distributing drugs,
possessing drugs with the intent to distribute, and manufacturing drugs. In cases
involving the distribution or manufacture of drugs, it is clear that the actus reus
must occur within 1000 feet of a school. Accordingly, it is reasonable to interpret
the statute as applying in the same way to the offense of possession with intent to
distribute. Since the actus reus for this offense is possession, it follows the
possession of the drugs, not the intended location for distribution, must be located
within 1000 feet of a school.
Rodriguez, 961 F.2d at 1092; see also Harris, 313 F.3d at 1239; Ortiz, 146 F.3d at 28. The
District of Columbia Circuit focused on the statute’s use of gerunds in enumerating the offenses
included in its prohibition. That court concluded that “[t]o give § 860(a) an internally consistent
reading,” all of its verbal nouns, including “possessing” in the phrase at issue here, “must be
treated in the same manner. That is, when the ‘possessing’ is done near a school, § 860(a)”
applies. McDonald, 991 F.2d at 869.
6
2. Legislative History and Purpose of § 860(a)
The Defendants also argue that the statute’s legislative history is “unrevealing and
inconclusive,” because there is no legislative history explicitly providing that the statute was
intended to prohibit possession, without more, within the designated areas. Given that we find
the text of the statute unambiguous, there’s no need to resort to legislative history in this case.
See Lee v. Bankers Trust Co., 166 F.3d 540, 544 (2d Cir. 1999) (“It is axiomatic that the plain
meaning of a statute controls its interpretation, and that judicial review must end at the statute’s
unambiguous terms. Legislative history and other tools of interpretation may be relied upon only
if the terms of the statute are ambiguous.”) (citations omitted). The defendants’ argument is
erroneous in any event. The schoolyard statute was first enacted in 1984 and, at that time,
proscribed only the distribution of drugs within one thousand feet of a school. See 21 U.S.C. §
845(a) (1985) (now 21 U.S.C. § 860). In 1988, Congress amended the statute to include
“possession with intent to distribute” to the list of offenses covered by the statute. See Pub. L.
No. 100-690, § 6457, 102 Stat. 4181, 4373 (1988). At the time of the amendment, Senator Biden
submitted an analysis of the amendment on behalf of the Senate Judiciary Committee, of which
he was chair, in which he stated that the offense had been added “so that the enhanced penalties
would apply to someone apprehended near a school with a quantity of drugs sufficient to indicate
an intention to distribute.” 134 Cong. Rec. S17,360, S17,365 (daily ed. Nov. 10, 1988)
(statement of Sen. Biden). The Defendants deflect Senator Biden’s statement by arguing that it
was intended to describe a drug dealer apprehended just before he distributed a large amount of
narcotics within one thousand feet of a school. Nothing in the senator’s comments, however,
either evokes such an image of, or expressly limits § 860(a)’s reach to, situations in which the
7
distribution will necessarily occur within the prohibited area. The Defendants’ argument on this
point is equally unavailing.
Finally, the Defendants argue that the purpose of the statute is served by limiting its scope
to those defendants who intended to distribute controlled substances within one thousand feet of
a school. In support, the Defendants point to this Court’s determination that the previous version
of the schoolyard statute, § 845a, was “designed to deter drug distribution in and around schools,
including transactions which take place in remote outdoor areas, at local hangouts, or at nearby
homes or apartments, thereby helping to eliminate outside negative influences around schools.”
United States v. Falu, 776 F.2d 46, 50 (internal quotation marks). Yet, in relying on Falu, the
Defendants cite to only a portion of this Court’s description of the purpose of the schoolyard
statute. They overlook our broader description of the statute as intended “to create a drug-free
zone around schools.” Id. Further, we decided Falu before the statute was amended to include
offenses other than distributing controlled substances. To the extent that the Defendants may
find refuge in some of its language, the reasoning of that case should not be construed to limit the
application of amendments that were made after it was decided. Congress’s decision to amend
the statute to include offenses such as “possessing with intent to distribute,” and “manufacturing”
made it clear that Congress did not intend to confine the schoolyard statute’s scope to those cases
in which a defendant intended to distribute drugs near a school. Rather, “Congress was more
broadly concerned about serious drug crimes that occur in proximity to schools.” Rodriguez, 961
F.2d at 1092. The amendments to the statute demonstrate that Congress was focused on
prohibiting drug activity near schools, and not on the mental state of the individual engaged in
that activity. Accordingly, we hold that 21 U.S.C. § 860(a) applies to a defendant who possesses
8
with intent to distribute a controlled substance, regardless of whether the defendant had the
specific intent to distribute such substance within a one-thousand-foot radius of a school.
B. Knowledge of Proximity of School
In Falu, this Court determined that the schoolyard statute was one of strict liability such
that a defendant could violate its terms without knowing that he had distributed narcotics within
one thousand feet of a school. 776 F.2d at 50. As discussed above, at the time we decided Falu,
the schoolyard statute was codified at § 845a, and it did not yet proscribe conduct other than the
actual distribution of drugs. Neither the subsequent recodification of the statute nor the inclusion
of additional prohibited conduct provides any basis for this Court to determine that the holding of
Falu no longer applies to the schoolyard statute. We, therefore, reaffirm its applicability here.
III. Conclusion
The reasoning of our fellow Circuits, as well as legislative history of § 860(a) and this
Court’s prior recognition, in Falu, of the broader purpose of the schoolyard statute, compel the
conclusion that § 860(a) applies to a defendant who possesses a controlled substance within one
thousand feet of a public school with the intent to distribute that controlled substance regardless
of whether the defendant specifically intended that the distribution be within a one-thousand-foot
radius of a school. Further, we reaffirm this Court’s holding in Falu, and hold that the
schoolyard statute in its present form remains a strict liability offense for which a defendant may
be convicted regardless of his knowledge of the proximity of a school. The district court
properly instructed the jury in this case. We affirm.
9