United States v. West

• Decision Date: 14 February 2012
• Docket Number: No. 11–3070.,11–3070.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Willie D. WEST, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

671 F.3d 1195

UNITED STATES of America, Plaintiff–Appellee,

v.Willie D. WEST, Defendant–Appellant.

No. 11–3070.

United States Court of Appeals, Tenth Circuit.

Feb. 14, 2012.

Barry R. Grissom, United States Attorney, and Trent M. Krug, Assistant United States Attorney, Kansas City, KS, on the brief, for Plaintiff–Appellee.

Carl Folsom, III, Bell Folsom, P.A., Lawrence, KS, on the brief, for Defendant–Appellant.

Before BRISCOE, Chief Judge, BALDOCK and LUCERO, Circuit Judges. ^*BALDOCK, Circuit Judge.

In tandem, 21 U.S.C. §§ 841(a) & 860(a) proscribe distributing controlled substances within 1000 feet of a “playground.” Similarly, §§ 856(a)(1) & 860(a) in tandem proscribe maintaining a place within 1000 feet of a “playground” for the purpose of distributing controlled substances. Subsection 860(e)(1) defines “playground” as an outdoor public facility “containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards.” In this appeal, we must determine whether the Government established that the public park near where Defendant Willie D. West engaged in illicit drug activity contained the three “separate apparatus” necessary to constitute a “playground” within the meaning of § 860(a).

I.

A confidential informant purchased controlled substances from Defendant in controlled buys. Some of these purchases occurred at Defendant's apartment in Lawrence, Kansas. Defendant's apartment was within 1000 feet of Holcom Park. A grand jury indicted Defendant on four counts related to Holcom Park and § 860(a). One count charged Defendant with distributing cocaine base within 1000 feet of a public playground in violation of 21 U.S.C. §§ 841(a) & 860(a). One count charged Defendant with distributing marijuana within 1000 feet of a public playground in violation of the same. One count charged Defendant with possessing marijuana within 1000 feet of a public playground with an intent to distribute in violation of the same. And one count charged Defendant with maintaining a place within 1000 feet of a public playground for the purpose of distributing marijuana in violation of §§ 856(a)(1) & 860(a). Defendant proceeded to jury trial.

As part of the Government's case-in-chief, an officer testified:

Holcom Park is ... a city park complex that includes ... four baseball fields, two soccer fields, two tennis courts, ... two handball courts, a volleyball court and a covered area for picnics and then a children's park area with ... a jungle-gym apparatus and another set of swings, and then a jungle-gym apparatus that sits next to the first one connected by a bar that you could swing across.

Rec. Vol. 2, at 114. Defendant never challenged the Government's argument that these fields and courts existed in Holcom Park. At the close of the Government's case, Defendant moved for a judgment of acquittal, arguing the evidence failed to establish that Holcom Park is a “playground” within the meaning of § 860(a). The district court denied Defendant's motion. The jury subsequently returned a verdict of guilty on all counts. ¹ Defendant next filed a motion for a new trial, renewing his argument that Holcom Park is not a “playground.” The district court again denied Defendant's motion. In a written order, the court held the Government's evidence “relating to the park was sufficient to satisfy the statutory definition of ‘playground’ and to support the jury's verdicts.” United States v. West, 2010 WL 2949609, at *3 (D.Kan. July 22, 2010) (unpublished). The court referenced the Government's argument that “[e]ven if the jury found the [jungle gyms] constituted one apparatus, ... the ... baseball diamonds, volleyball courts, and Holcom's other amenities are each apparatus intended for the recreation of children.” Id. Defendant appealed. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.

II.

On appeal, Defendant continues to argue Holcom Park does not meet § 860(e)(1)'s definition of a “playground,” and thus the Government's evidence necessarily does not support his § 860(a) convictions. Defendant contends the two jungle gyms connected by a set of monkey bars are one apparatus and the swingset another. According to Defendant, “[e]ither a jungle gym or a swingset would certainly qualify as an ‘apparatus' under 21 U.S.C. § 860(e)(1). However, the play area at Holcom Park does not meet the statutory definition of a playground, because there were not three or more separate apparatus intended for the recreation of children.” Defendant argues that for the evidence to support his convictions, the recreational fields and courts would have to be “separate apparatus.” Defendant does not dispute that those fields and courts are “intended for the recreation of children.” But according to Defendant, the fields and courts are not separate apparatus because they are not similar to the playground apparatus listed in § 860(e)(1)'s definition, i.e., “sliding boards, swingsets, and teeterboards.” We consider the district court's construction of § 860(a) de novo. See United States v. Martinez–Haro, 645 F.3d 1228, 1232 (10th Cir.2011). We rely on our construction of § 860(a) to consider de novo whether the evidence was sufficient to sustain the jury's verdict. See United States v. Acosta–Gallardo, 656 F.3d 1109, 1123 (10th Cir.2011).

A.

Our only encounter with § 860(a) came in United States v. Smith, 13 F.3d 380, 382 (10th Cir.1993). We construed § 860(a) as an offense, rather than a sentencing enhancement, “which has as an element of proof that the distribution occurred within 1,000 feet of a protected place.” Id. at 382. We held the Government's evidence that a park consisted of “playgrounds, walking paths, [and] gazebos,” did “not meet the requirements of the definition of a playground” set forth in § 860(e)(1) (formerly subsection (d)). Id. Accordingly, “a reasonable jury could not convict [defendant] beyond a reasonable doubt of an offense which requires activity ‘within 1,000 feet of a ... playground’ as an element.” Id. (ellipses in original).

The Fourth Circuit next interpreted § 860(a) in United States v. Parker, 30 F.3d 542 (4th Cir.1994). In that case, the evidence of a “playground” consisted of defendant's testimony that he had met an accomplice “at a basketball court” in the park, and the accomplice's testimony that he met defendant “while playing one-on-one basketball” in the park. Id. at 545. Defendant argued this evidence was insufficient to establish “that his § 841 violation occurred within 1000 feet of a ‘playground’ as defined in § 860.” Id. at 551. The Government maintained a reasonable jury could infer “the park ‘had at least two separate baskets and a blacktop where kids could play hopscotch as well as other games.’ ” Id. at 552. In other words, the Government argued “the two baskets plus the one blacktop constitute[d] the requisite ‘three or more separate apparatus.’ ” Id. The court held that on the evidence presented no rational jury could find beyond a reasonable doubt that defendant possessed crack within 1000 feet of a “playground,” as Congress defined that term:

The Government's argument is too cute by half (or perhaps two-thirds). The jury could not reasonably have inferred that there were two basketball hoops in the park when [the accomplice] testified only to playing “one-on-one” ( i.e., half-court) basketball there (as opposed to full-court basketball).

Furthermore, it is quite a stretch to consider a blacktop a “separate apparatus intended for the recreation of children.” ... [A] mere surface paved with blacktop— e.g., an interstate highway—is surely not “an apparatus intended for the recreation of children.” And [the Government] violate[s] the age-old canon of ejusdem generis by assuming that a blacktop is akin to the “sliding boards, swingsets, and teeterboards” that Congress specified....

Id. at 552–53.

In United States v. Johnson, 1997 WL 811737 (5th Cir. Dec. 13, 1997) (per curiam) (unpublished), a panel of the Fifth Circuit weighed in on § 860(a)'s meaning. Defendant challenged his convictions related to the distribution of controlled substances “within 1000 feet of a playground.” Id. at *1. According to defendant, the evidence was insufficient to support the jury's finding that a group of little league baseball fields constituted a “playground.” Specifically, Defendant contended “that the evidence at trial of four backstops and two concession stands did not sufficiently demonstrate three or more separate apparatus.” Id. The court disagreed and summarily concluded “evidence of four baseball backstops, three of which were for either little league or pee-wee little league fields, was more than sufficient to prove the existence of three separate apparatus intended for the recreation of children.” Id.

Most recently, the Ninth Circuit construed § 860(a) in United States v. Migi, 329 F.3d 1085 (9th Cir.2003). Like the defendants in Smith, Parker, and Johnson, defendant claimed the evidence was insufficient to sustain his § 860(a)-related convictions for drug-related offenses occurring within 1000 feet of a “playground.” The park in that case “contained a swingset, a basketball court, a softball field, and a skating rink.” Id. at 1086–87. Defendant conceded the swingset was an “apparatus” under § 860(e)(1)'s definition of “playground.” He claimed, however, that the basketball court, the softball field, and the skating rink were not “apparatus.” The court defined “apparatus” as “a collection or set of materials or appliances designed for a particular use.” Id. at 1088 (internal ellipses and brackets omitted) (quoting Webster's Third New Int'l Dictionary 102 (unabridged 1986)). Based on that definition, the court rejected defendant's claim and held “basketball courts, softball fields, and skating rinks are each ‘apparatus intended for the recreation of children,’ ” because “each consist[s] of a collection or set of materials...