United States v. Tebeau

• Decision Date: 30 April 2013
• Docket Number: No. 12–3485.,12–3485.
• Citation: 713 F.3d 955
• Parties: UNITED STATES of America, Plaintiff–Appellee v. James TEBEAU, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

713 F.3d 955

UNITED STATES of America, Plaintiff–Appellee

v.James TEBEAU, Defendant–Appellant.

No. 12–3485.

United States Court of Appeals, Eighth Circuit.

Submitted: April 9, 2013.

Filed: April 30, 2013.

Gilbert Chester Sison, argued, Saint Louis, MO, for appellant.

Keith D. Sorrell, AUSA, argued, Cape Girardeau, MO, for appellee.

Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

James Tebeau owns more than 300 acres of land in southern Missouri where he has held weekend music festivals at which drug use was widespread. After undercover officers investigated the festivals, Tebeau was charged with having maintained a property from 2004 to 2011 for the purpose of manufacturing, storing, and distributing controlled substances in violation of 21 U.S.C. § 856(a)(2). Tebeau moved to dismiss the indictment, arguing that it was deficient because it alleged only that he had allowed others to distribute controlled substances on his property. The district court ¹ denied Tebeau's motion, concluding that a defendant may be indicted under § 856(a)(2) for making a property available for drug distribution without any further illegal purpose. Tebeau pled guilty but reserved his right to appeal the denial of his motion to dismiss. The district court sentenced Tebeau to 30 months imprisonment, two years of supervised release, and a $50,000 fine. Tebeau now appeals, and we affirm.

I.

Tebeau owns more than 300 acres of land in Shannon County, Missouri known as “Camp Zoe.” From 2004 to 2010, Camp Zoe was the site of 24 weekend festivals known variously as “Spring Jam,” “Schwagstock,” or “Spookstock.” The festivals were held on a monthly basis from April to October. Tebeau invited various bands to perform at the festivals, and he also performed with his own Grateful Dead tribute band, The Schwag. Attendees paid $60 to enter Camp Zoe for a three day festival, and the number of attendees at each festival ranged from approximately 3,600 to nearly 8,000.

After government officials had arrested several individuals near Tebeau's property for using or selling drugs, they conducted an undercover investigation into illegal drug sales at Camp Zoe. Between April 2009 and August 2010, undercover officers attended ten music festivals and made more than 150 controlled purchases of illegal drugs including marijuana, psychedelic mushrooms, ecstacy, cocaine, LSD, MDMA, opium, and moonshine liquor. The officers observed 100 to 200 drug sellers at each festival and estimated that approximately $500,000 in illegal drugs were sold at each event. Officers also witnessed many campers using controlled substances, and saw that the sale and use of drugs was open and obvious. Some sellers congregated along a gravel road known as “Lovers Lane” where they displayed the drugs they were selling and shouted to passing campers that they had “Nuggets” (marijuana), “Doses” (LSD), or “Molly” (ecstasy) for sale. Other sellers walked through camp advertising marijuana stalks with large buds of marijuana attached.

Tebeau was present at almost every Camp Zoe festival and admits that he was aware of drug sales at the festivals. He operated a medical facility on the campground known as “Safestock,” where campers who had overdosed were treated during each festival. Campers who were combative or violent were handcuffed or tied down with nylon straps. Investigative reports indicated that instances of drug overdose occurred at every festival, and Tebeau met with his employees after each festival to discuss drug overdoses and other problems which had arisen during the event. During interviews with Camp Zoe employees, officers learned that Tebeau had instructed them that certain types of drugs were permissible at the camp, such as marijuana, LSD, and mushrooms, but that anyone selling crack cocaine, methamphetamine, heroin, or nitrous oxide gas should be ejected. According to employees, Tebeau instructed security guards in the camp to move sellers away from the front gates to avoid detection by officers.

In November 2010 a federal search warrant was executed at Camp Zoe, and Tebeau was thereafter indicted on one count of managing a drug involved premises in violation of 21 U.S.C. § 856(a)(2). Tebeau moved to dismiss the indictment, arguing that it was deficient as a matter of law because it did not allege facts showing that he had the specific intent to sell illegal drugs on his property. After the district court adopted the magistrate judge's report and recommendation denying his motion to dismiss, Tebeau entered a conditional guilty plea reserving his right to appeal the denial of that motion. In the plea agreement, the government stipulated that Tebeau had not participated in any drug sales or received any funds from their sale. Tebeau admitted, however, that he had “intended that Camp Zoe be made available” for individuals who “had the intent to sell and use controlled substances,” and that he was responsible “for the distribution by others of the equivalent of at least 700 kilograms of marijuana.” The district court required Tebeau to pay a $50,000 fine, and it sentenced him to 30 months in prison and two years of supervised release.

Tebeau appeals the district court's denial of his motion to dismiss the indictment. He first challenges the court's interpretation of § 856(a)(2), contending that the statute should be read to require the governmentto show that he had the specific intent to store, distribute, manufacture, or use drugs at Camp Zoe. Under this reading, Tebeau argues that the indictment was deficient because it did not allege facts showing that he had possessed such specific intent. Tebeau also contends that the indictment did not comply with the requirements of Federal Rule of Criminal Procedure 7(c).

II.

We review a district court's interpretation and application of a statute de novo. United States v. Petrovic, 701 F.3d 849, 858 (8th Cir.2012). The statute at issue, 21 U.S.C. § 856, contains two subsections making it a crime to:

(a)(1) knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance;

(a)(2) manage or control any place whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

(emphasis added). Tebeau was charged with violating subsection (a)(2). The district court concluded that § 856(a)(2) did not require proof that Tebeau had the specific intent to manufacture, store, distribute, or use a controlled substance. Rather, § 856(a)(2) only required that the government show that Tebeau intended to make the property available for others who had that purpose.

A.

Tebeau first argues that the district court's reading of § 856(a)(2) conflicts with the statute's text and legislative history, and that the statute should be interpreted to require proof that he specifically intended illegal drugs to be manufactured, stored, distributed, or used on his property. We have not before considered whether § 856(a)(2) criminalizes a defendant's knowing and intentional making available such a place even if he himself does not have the purpose to manufacture, store, distribute, or use a controlled substance there. The “starting point in interpreting a statute is always [its] language.” United States v. Jungers, 702 F.3d 1066, 1069 (8th Cir.2013) (citation omitted). If the intent of Congress is clear from the statute's language, our inquiry is complete. Id. In interpreting § 856(a)(2), we consider both the “bare meaning of the critical word or phrase” and “its placement and purpose in the statutory scheme.” Holloway v. United States, 526 U.S. 1, 6, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999) (citation omitted) (internal quotation marks omitted).

Several circuit courts have considered the meaning of § 856(a)(2)'s plain language, and their analysis is useful in interpreting the statute. In United States v. Chen, 913 F.2d 183 (5th Cir.1990), the Fifth Circuit concluded that the government need not show that a property owner had the illegal purpose of storing, distributing, using, or manufacturing a controlled substance to convict her under § 856(a)(2). Id. at 190. In Chen, the owner of a motel which had become “an area for drug traffickers” was charged with violating both § 856(a)(1) and (a)(2). Id. at 185–86. The district court instructed the jury that it could convict her under either subsection if it found she had been deliberately ignorant to the drug use at her hotel. Id. at 187.

On appeal, the Fifth Circuit considered whether the phrase “for the purpose of” in both subsections of § 856(a) precluded a deliberate ignorance instruction. Id. at 188. In reviewing § 856(a)(1), the court concluded that “the phrase for the purpose of applies to the person who opens or maintains the place for the illegal activity.” Id. at 190. A deliberate indifference instruction would therefore be improper under subsection (a)(1) which requires proof of “specific purpose to engage in drug activities.” Id. at 189.Section 856(a)(2), by contrast, applies “to the person who may not have actually opened or maintained the place for the purpose of drug activity, but who has knowingly allowed others to engage in those activities” by making the place available for unlawful use. Id. at 190. The Fifth Circuit concluded that under § 856(a)(2) “the person who manages or controls the [property] and then rents to others[ ] need not have the express purpose in doing so that drug related activity take place,” as long as “others have the purpose.” Id.

Other circuits have agreed that § 856(a)(2) only requires that a defendant has the purpose of maintaining property where drug use takes place, and not that the defendant intends the drug use to occur. In ...