U.S. v. Agilar
| Decision Date | 11 December 1985 |
| Docket Number | No. 467,D,467 |
| Parties | 29 Ed. Law Rep. 52 UNITED STATES of America, Appellee, v. Anthony AGILAR, Defendant-Appellant. ocket 85-1257. |
| Court | U.S. Court of Appeals — Second Circuit |
Louis R. Aidala, New York City, for defendant-appellant.
Peter M. Lieb, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Kenneth Roth, Asst. U.S. Atty., New York City, on brief), for appellee.
Before VAN GRAAFEILAND, NEWMAN, and MINER, Circuit Judges.
Anthony Agilar appeals from a judgment of the District Court for the Southern District of New York (Robert W. Sweet, Judge) convicting him, after a bench trial, of distributing heroin within 1,000 feet of a public elementary school in violation of 21 U.S.C.A. Secs. 812, 841(a)(1), and 841(b)(1)(B) (1982) and 21 U.S.C.A. Sec. 845a(a) (West Supp.1985). Appellant primarily challenges the constitutionality of section 845a, the so-called "schoolyard" provision, which increases penalties for distribution of narcotics within 1,000 feet of a public or private elementary or secondary school. We affirm.
The evidence disclosed that Agilar sold three glassine envelopes containing heroin for $30 to Maritza Ortiz, an undercover New York City police officer. Ortiz had first approached Agilar's co-defendant, Edwin Jimenez, at the corner of Second Avenue and 118th Street in Manhattan and asked for heroin, specifically requesting the brand name "Checkmate," which is sold at that location. Jimenez said, "I will take you to the man." He led Ortiz only 25 feet along 118th Street to a location where Agilar was selling heroin to customers waiting in line. Agilar told Jimenez that Ortiz would have to wait her turn at the end of the line. While she was waiting, Agilar asked her how many glassine envelopes she wanted. She said she wanted three, and he replied, "I am going to take care of you." When Ortiz reached the head of the line, she purchased three envelopes for $30, using money that had been photocopied to record the serial numbers.
Promptly after the sale, Ortiz radioed a backup police officer and gave a description of the seller. The officer arrived on the scene a minute later, arrested Jiminez, and stopped three men, including Agilar, who met the description given by Ortiz. When the three were brought to the undercover officer's presence, she immediately identified Agilar as the seller. Agilar was arrested and searched; he had $140 in cash, but none of the bills that Ortiz had used in the heroin purchase. The evidence also revealed that Agilar, while waiting outside the office of a United States Magistrate the following day, was overheard admonishing Jimenez for bringing an "undercover" to him.
Though the case was developed by New York City police officers, concerns readily visible criminal conduct requiring no special investigatory resources or equipment, and involves a $30 transaction, the matter became the subject of a federal criminal prosecution because it occurred on "federal day," the day of the week when federal law enforcement authorities have decided to convert garden-variety state law drug offenses into federal offenses. Though we are urged in other contexts to tolerate missed deadlines because of the enormous burdens placed upon limited numbers of federal law enforcement personnel, see e.g., United States v. Vasquez, 605 F.2d 1269 (2d Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979), on "federal day" there are apparently enough federal prosecutors available with sufficient time to devote to $30 drug cases that have been developed solely by state law enforcement officers. Be that as it may, the case is lawfully within the jurisdiction of the federal courts and must be decided. It poses issues concerning the constitutionality of the federal "schoolyard" statute because Agilar had the double misfortune to sell to a customer who happened to be an undercover police officer and to make the sale at a location that happened to be within 1,000 feet of a public elementary school.
We have thus far encountered the schoolyard statute on two occasions, ruling in United States v. Falu, 776 F.2d 46 (2d Cir.1985), that the statute does not require knowledge of the proximity of a school and in United States v. Jones, 779 F.2d 121 (2d Cir.1985), that the statute does not require evidence that the specific location of the sale, within the...
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