The opinion of the court was delivered by: Stanton, District Judge.
Defendant Josefina Melendez Liranzo was arrested in the Port
Authority bus terminal in possession of approximately a
kilogram of cocaine. The bus terminal is within 1,000 feet of
the Holy Cross School, a private elementary school. She was
charged with possessing cocaine with intent to distribute it,
within 1,000 feet of a school, in violation of 21 U.S.C. § 845a(a)
(the "schoolyard" statute). The evidence makes clear
beyond doubt that defendant did not intend to distribute the
cocaine within 1,000 feet of the Holy Cross School, but rather
was taking it to Reading, Pennsylvania for delivery to another
person. Her motion for acquittal pursuant to Fed.R.Crim.P.
29(a) at the close of the government's case raises the question
whether the evidence is insufficient to sustain a conviction
under the schoolyard statute.
Section 845a enhances the penalty for those found guilty of
certain narcotics crimes committed within 1,000 feet of a
school. Subsection (a) of the statute originally enhanced the
penalty for those distributing controlled substances within
1,000 feet of a school. In 1986 it was amended to include
those manufacturing controlled substances within 1,000 feet of
a school. In 1988 it was further amended to include those
"possessing with intent to distribute . . . a controlled
substance . . . within one thousand feet of" a school. As
amended, it provides:
Any person who violates section 841(a)(1) or
section 856 of this title 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 .
. . is . . . punishable (1) by a term of
imprisonment, or fine, or both up to twice that
authorized by section 841(b) of this title; and
(2) at least twice any term of supervised release
authorized by section 841(b) of this title for a
first offense. Except to the extent a greater
minimum sentence is otherwise provided by section
841(b) of this title, a term of imprisonment
under this subsection shall be not less than one
Research has produced no case directly on point, and no
legislative history directly bearing on the question whether
the statute applies to a defendant who possesses a narcotic
within 1,000 feet of a school, but intends to distribute it
much farther away.
The statute is sufficiently ambiguous to be read (as the
government urges) to include
such a defendant.*fn1
The better and more logical construction is rather that the
statute reaches those who intend to distribute narcotics
within 1,000 feet of a school. This is so for at least the
1. It is the more natural reading. The words "within one
thousand feet of" would normally be taken to refer to the verb
closest to them: "to distribute." See W. Strunk, Jr. & E.B.
White, The Elements of Style p. 30 (3d ed. 1979) ("Modifiers
should come, if possible, next to the word they modify.") 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 . . ."
2. It is consistent with the purpose of the statute. As
stated by the Second Circuit in United States v. Falu,
776 F.2d 46, 50 (2d Cir. 1985),
The purpose of the statute is clear from a
reading of the legislative history. Congress
sought to create a drug-free zone around schools;
whether it chose to do so directly or indirectly
is not particularly relevant. According to its
sponsor, the provision 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. See 130 Cong.Rec. S559, supra.
Because the purpose of the statute was to "deter drug
distribution in and around schools," including "transactions"
which took place near where students gather, there is no
policy reason to conclude that Congress sought to punish those
possessing a controlled substance within 1,000 feet of a
school, but intending to distribute it elsewhere.
In Falu the defendant contended that the schoolyard statute
"does not apply to an aider and abettor who does not actually
distribute or control the distribution of narcotics", id. at
48, saying "that application to aiders and abettors could
result in conviction under the schoolyard statute of someone
who was never within 1,000 feet of a school." Ibid. The Court
of Appeals disagreed, and in dicta stated:
We realize that, under this interpretation, an
aider and abettor located outside the 1,000-foot
zone would be subject to the enhanced penalties
of the schoolyard statute. While we do not have
to address this problem here, since Falu does not
contest the fact that he was within 1,000 feet of
a public school, we believe that the statute
could apply to such cases, so long as distribution
itself occurred within 1,000 feet of the school.
3. It is supported by the rule that "ambiguity concerning
the ambit of criminal statutes should be resolved in favor of
lenity." Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct.
1056, 1059, 28 L.Ed.2d 493 (1971), citing Bell v. ...