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April 6, 1990


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.

Prior Proceedings

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.

The Statute

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 ...

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