U.S. v. Rodriguez, 91-1252

• Decision Date: 13 December 1991
• Docket Number: No. 91-1252,91-1252
• Citation: 961 F.2d 1089
• Parties: 35 Fed. R. Evid. Serv. 465 UNITED STATES of America, Appellee, v. Zaida RODRIGUEZ, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 1089

961 F.2d 1089

35 Fed. R. Evid. Serv. 465

UNITED STATES of America, Appellee, v. Zaida RODRIGUEZ, Appellant.

No. 91-1252.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Dec. 13, 1991.

Decided April 17, 1992.

Michael M. Baylson, U.S. Atty., E.D.Pa., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Robert A. Zauzmer, Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Robert F. Simone, Philadelphia, Pa., for appellant.

Before: BECKER, GREENBERG and ALITO, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

Zaida Rodriguez appeals from a judgment of sentence following conviction for two drug-related offenses. Rodriguez advances arguments concerning the interpretation and constitutionality of the so-called "schoolyard" provision of the federal drug laws, then 21 U.S.C. § 845a (now recodified at 21 U.S.C. § 860). She also challenges the admission of evidence that she claims was irrelevant and unfairly prejudicial. We will affirm.

I.

In June 1990, two Philadelphia police officers assigned to the Drug Enforcement Administration (DEA) Task Force, Ronald Abel and Gary Martinez, observed a woman whom they later identified as Rodriguez driving away from 3062 Boudinot Street. The officers followed and watched as the woman stopped at 28 East Silver Street and entered the house, which is located within 1000 feet of an elementary school. The woman soon returned to her car, carrying a white pillowcase that the officers believed contained cocaine. As the woman drove off with the officers in pursuit, packages later identified as containing cocaine were thrown out of one of the car's windows. The officers stopped to retrieve the packages, and the woman escaped.

Rodriguez was indicted a few months later for four drug-related offenses. ¹ After two of the four counts were dismissed, a jury trial was held on the two remaining charges. The jury found Rodriguez guilty of both charges, possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and violating the schoolyard provision. Rodriguez appealed.

II.

Rodriguez first argues that there was insufficient evidence that she violated the schoolyard provision. ² This statute prescribes enhanced penalties for, among others:

Any person who violates [21 U.S.C.] 841(a)(1) or [21 U.S.C.] 856 ... by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility.

21 U.S.C. § 860(a).

Rodriguez argues that this provision does not apply to a defendant who possesses drugs within 1000 feet of a school but intends to distribute them elsewhere. Rather, she asserts, the statute requires proof of an intent to distribute drugs within 1000 feet of a school. She claims that, while there was evidence that she possessed cocaine within 1000 feet of a school, there was no evidence that she intended to distribute the cocaine within 1000 feet of a school. Moreover, she contends that the district court committed reversible error by failing to instruct the jury that proof of an intent to distribute the cocaine within 1000 feet of a school was required. ³ There is no indication that Rodriguez raised this issue of statutory construction in the district court. ⁴ Consequently, we could reverse her conviction only if we found plain error. ⁵

A. To date, one other court of appeals has addressed the issue of statutory construction presented here. In United States v. Wake, 948 F.2d 1422 (5th Cir.1991), the Fifth Circuit held that the schoolyard provision applies to a defendant who possesses drugs within 1000 feet of a school even if he or she intends to distribute them elsewhere. See also State v. Ivory, 124 N.J. 582, 592 A.2d 205 (1991) (interpreting similarly worded state statute). We agree with the Fifth Circuit's analysis and its conclusion.

First, we believe that this interpretation is supported by the language of the schoolyard statute. This provision 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 this provision requires 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 that possession of the drugs, not the intended location for distribution, must be located within 1000 feet of a school.

This interpretation is also supported by Congress' decision to make the schoolyard provision applicable to the manufacture of drugs within 1000 feet of a school. By prescribing enhanced penalties for the manufacture of drugs near a school (regardless of the intended site of distribution), Congress made clear that it did not wish to confine the schoolyard statute to cases in which a defendant distributes or intends to distribute drugs near a school. Rather, Congress was more broadly concerned about serious drug crimes that occur in proximity to schools.

B. The legislative history supports this interpretation of the schoolyard provision. As originally enacted in 1984, the schoolyard statute applied only to the distribution of drugs within 1000 feet of a school. In 1988, however, Congress enacted the amendment that added possession with intent to distribute to the list of covered offenses. In an analysis of the 1988 amendment submitted on behalf of the Senate Judiciary Committee, Senator Biden stated ⁶:

Section 845a [now 860] of title 21 currently makes it a crime to distribute or to manufacture controlled substances within 1,000 feet of a school. This section adds "possession with intent to distribute" to the list of offenses covered by this statute 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 Senator Biden) (emphasis added). The identical analysis was also offered by Senator Nunn, on behalf of Senators Byrd, Dole, Rudman, Moynihan, Rudman, D'Amato, Wilson, Gramm, and "numerous others." 134 Cong.Rec. S14,067, S14,071 (daily ed. Oct. 3, 1988).

This analysis provides clear evidence that Congress did not intend to require proof of an intent to distribute drugs near a school. When a defendant is found in possession of a sufficiently large quantity of drugs, an intent to distribute may logically be inferred from the quantity of drugs alone. See United States v. Ocampo, 937 F.2d 485, 488 (9th Cir.1991); United States v. Brown, 921 F.2d 785, 792 (8th Cir.1990); United States v. Montoya, 782 F.2d 1554, 1555 (11th Cir.1986). By contrast, more evidence is logically required before an inference may be drawn concerning the location where the defendant intended to distribute the drugs. The statement endorsed by Senator Biden and his colleagues clearly shows, however, that they did not think that the schoolyard provision required any such additional evidence. Rather, they wanted the schoolyard provision to apply whenever a defendant is "apprehended near a school with a quantity of drugs sufficient to indicate an intention to distribute." This statement thus provides clear evidence that proof of an intent to distribute near a school is not necessary. See United States v. Wake, 948 F.2d at 1432.

C. Rodriguez's contrary interpretation was adopted by several district court decisions handed down prior to Wake. United States v. McDonald, 777 F.Supp. 44 (D.D.C.1991); United States v. Testa, 768 F.Supp. 221 (N.D.Ill.1991); United States v. Coates, 739 F.Supp. 146, 152-153 (S.D.N.Y.1990); United States v. Roberts, 735 F.Supp. 537 (S.D.N.Y.1990); and United States v. Liranzo, 729 F.Supp. 1012 (S.D.N.Y.1990). We find major flaws, however, in all four of the arguments on which these decisions were based.

1. In United States v. Liranzo, 729 F.Supp. at 1014, the court relied on the grammatical rule that a modifier should be placed as close as possible to the word it modifies. Thus, the court asserted (id.) that the statutory phrase "within 1000 feet" modified "with intent to distribute" rather than "possessing." The court elaborated (id.): "If the other meaning were intended, the statute would be expected to read 'possessing, within one thousand feet of a school, with intent to distribute a controlled substance....' "

This argument overlooks the important fact that the phrase "within one thousand feet" modifies "distributing" and "manufacturing," as well as "possessing with intent to distribute." Thus, in order to place the phrase "with intent to distribute" immediately after the term "possessing," Congress would have been compelled to repeat that phrase two more times--after "distributing" and "manufacturing." (Indeed, Congress probably would have been obligated to repeat the much longer phrase "in or on, or within one thousand feet of the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility.") Economical legislative drafting obviously dictates that such awkward repetition be avoided if at all possible. See Roberts, 735 F.Supp. at 539 n. 3. ("[J]ust because Congress did not see fit to repeat the phrase 'within 1000 feet of a school' three times in a single sentence when it certainly intended the enhancement to apply to 'distributi...