The opinion of the court was delivered by: Sweet, District Judge.
Defendant Jerome Roberts ("Roberts") has moved pursuant to
Rule 29(c) of the Federal Rules of Criminal Procedure for
acquittal on Count II of the indictment on which he was
convicted by jury on the ground that in the absence of an
intent to distribute a controlled substance within 1000 feet of
a school, the "schoolyard statute", 21 U.S.C. § 845a(a) is not
proven. For the reasons set forth below, the motion is granted.
On February 1, 1990, Roberts was convicted by jury of both
conspiracy to distribute cocaine and possession of cocaine with
intent to distribute within 1,000 feet of a school. At the
close of the government's case Roberts made a Rule 29(a)
motion. The decision of the motion was postponed despite the
Second Circuit's ruling in United States v. Bruno, 873 F.2d 555
(2d Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 125, 107
L.Ed.2d 86 (1989) that a Rule 29(a) motion "requires a prompt
decision so that a defendant does not bear the risk of
presenting evidence that might cure an otherwise fatal defect
in the government's case." Id. at 562. Finding that the policy
concerns present in Bruno, as well as United States v. Neary,
733 F.2d 210 (2d Cir. 1984), were not present in this case, and
recognizing the novel issue before the court and the careful
consideration required, the Rule 29(a) motion was postponed for
decision after the jury verdict. Following the jury's verdict,
the court extended Roberts' time for filing this motion until
February 23, 1990. Oral argument was heard on March 9, 1990 and
this motion was considered fully submitted as of that date.
On November 7, 1989, Roberts and two others, Michael Brock
("Brock") and Carla Saunders ("Saunders"), were arrested at
Penn Station in New York City. All three were charged with
conspiracy to distribute approximately thirteen ounces of
cocaine and possession with intent to distribute the cocaine.
Brock and Saunders subsequently pleaded guilty to conspiracy
and testified for the government at Roberts' trial.
At trial, Brock testified that he and Roberts acquired the
cocaine in Harlem on the morning of November 7, 1989, that
Roberts hid the drugs inside his jacket, and that the two then
returned to a Days Inn in midtown Manhattan where they had
stayed the previous night. According to Brock, he and Roberts
returned to the hotel to pick up Saunders, to transfer the
cocaine to a backpack, and then to summon a taxi. All three
then proceeded to Penn Station, where Saunders, while carrying
the drug-filled bag, was arrested when trying to board a train
to Wilmington, Delaware. Roberts and Brock were arrested
outside the station.
Both Brock and Saunders testified that they along with
Roberts had conspired to travel from Wilmington to buy drugs in
New York City, and then bring them to Wilmington for sale.
Although the government proved that the Days Inn was within
1,000 feet of the John Jay College of Criminal Justice, no
evidence was adduced that Roberts intended to distribute the
cocaine at or near the Days Inn or elsewhere in New York City.
Title 21 U.S.C. § 845a(a) provides an enhanced penalty for:
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 . . . a public or
private college. . . .
21 U.S.C. § 845a(a) (emphasis added). When first enacted in
1984, the schoolyard statute provided an enhanced penalty for
distributing drugs within 1000 feet of a school.*fn1 In 1986,
Congress expanded the scope of § 845a(a) to insert "or
manufacturing" after "distributing" where it appeared in the
statute and by expanding the types of educational institutions
to include "a public or private elementary, vocational, or
secondary school or a public or private college, junior
college, or university." 132 Cong.Rec. H11219-02 at §
1104 (1986). In 1988 Congress amended the section once again to
insert ", possessing with intent to distribute," after
"distributing." 134 Cong.Rec. S15785-01 at § 2254 (1988). The
amendment also created an additional
100-foot protective zone surrounding playgrounds, youth
centers, public swimming pools, and video arcade facilities.
See 21 U.S.C. § 845a(b).
There is no legislative history accompanying the amended
statute and scant legislative history surrounding the original
version. In a trial before the Honorable Louis L. Stanton,
Judge Stanton raised sua sponte the issues presented here. His
opinion, issued pursuant to a 29(a) motion at the close of the
government's case ...