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 . . . [shall be subject to enhanced penalties].
21 U.S.C. § 860(a). The issue in dispute is whether the clause "within one thousand feet" of a school modifies only the possession of drugs, or also the intent to distribute. The government argues that it is required to prove only that the defendant possessed drugs near a school, and that the question of whether that defendant intended to distribute the drugs near a school or elsewhere is irrelevant. The defendants contend that the prosecution must prove both that a defendant possessed drugs within 1000 feet of a school and that he intended to distribute the drugs within 1000 feet of a school.
For the following reasons, the Court regards the latter interpretation as correct.
First, the statute is ambiguous. It would have been clear, for example, had Congress drafted the statute to apply to "possession, within one thousand feet of a school, with the intent to distribute," thus indicating that mere possession near a school is sufficient for a violation. Congress, however, did not do so. If anything, the more logical reading of the statute would be to assume that the clause "within one thousand feet of" modifies the closer verb which is "to distribute." See United States v. Liranzo, 729 F. Supp. 1012, 1014 (S.D.N.Y. 1990) (quoting W. Strunk, Jr. & E.B. White, The Elements of Style, which states that "modifiers should come, if possible, next to the word they modify.").
Second, the legislative history is likewise ambiguous, but it, too, tends to support the argument advanced by the defendants. That history, to be sure, indicates that Congress intended to create drug-free zones around schools, but it likewise indicates that the legislators were concerned more directly with drug distributions or transactions. See United States v. Falu, 776 F.2d 46, 50 (2d Cir. 1985) (quoting congressional sponsor as stating that the purpose of statute was to "deter drug distribution in and around schools. . . ."); Liranzo, 729 F. Supp. at 1014 (purpose of statute to deter drug distributions and transactions near schools).
Third, the law in this Circuit (as elsewhere) is clear that, where a criminal statute is ambiguous, the rule of lenity dictates that ambiguities be resolved in favor of leniency to the defendant. United States v. Nofziger, 278 App. D.C. 340, 878 F.2d 442, 452-54 (D.C. Cir. 1989).
Among the policies underlying the rule of lenity is that fair warning must be afforded of what the law requires and that accused persons should be punished only for criminal activity clearly defined by the legislature. Id. at 452. These policies would be undercut if the Court were to give this ambiguous statute the broad interpretation the government suggests. The government's argument also contradicts the "venerable principle that a law will not be interpreted to produce absurd results." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 324, 100 L. Ed. 2d 313, 108 S. Ct. 1811 n.2 (1988) (Scalia, J., concurring in part, dissenting in part).
Given the understandable congressional concern about children involved with drugs, it would be absurd to penalize a defendant who distributes drugs to or in direct proximity to children as severely as one who merely possesses drugs but happens to drive, walk, or live within several blocks of a school or playground.
In addition, given the likelihood that most drug transactions in the District of Columbia necessarily occur near a school or playground simply because in this urban area there are schools or playgrounds almost everywhere,
the United States Attorney would have virtually unfettered authority under the statute to charge each drug defendant either once or twice for essentially the same offense. It is inappropriate for the courts to give the statute such a broad, so overreaching meaning in the absence of clearer language than is present here.
The second issue which arose in this case and a number of cases previously before this Court is whether the amount of the drugs being possessed constitutes an element of the crime under 21 U.S.C. § 841.
This Court has consistently held that where, as here, the indictment charges a defendant with knowing possession with intent to distribute five grams or more of cocaine base, the government must be put to its proof as to each element. If the government cannot prove the amount of drugs, it has been the view of this Court that it should not request the grand jury to indict a defendant for it.
Subsequent to this Court's ruling, however, the Court of Appeals for this Circuit addressed this issue in a footnote, stating "we note, as have numerous other courts, that the quantity of drug possessed is not a constituent element of the offense of possession with intent to distribute under 21 U.S.C. § 841(a). Quantity is relevant only to punishment; the district judge, and not the jury, makes this determination." United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992) (citing other Circuits).
In light of this opinion -- by which this Court is of course bound -- holding that the amount of drugs should not be considered an element under 21 U.S.C. § 841, it is worth noting that serious double jeopardy problems arise if the government prosecutes under both that statute and 21 U.S.C. § 860. Under 21 U.S.C. § 841, the elements of the offense, in light of Patrick, supra, are (1) knowing (2) possession of a controlled substance (3) with the intent to distribute. The elements under 21 U.S.C. § 860 are (1) knowing (2) possession of a controlled substance (3) with the intent to distribute (4) within one thousand feet of a school. On that analysis, the first count becomes a lesser included offense of the second count, and prosecution of a defendant under both statutes would be unconstitutional under Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932). See also, United States v. Williams, 782 F. supp. 7 (D.D.C. 1992) (J.H. Green, J.).
For the foregoing reasons, it is the Court's view that when a defendant is charged with possession with intent to distribute drugs under 21 U.S.C. § 860, the prosecution is required to prove that he intended to distribute the drugs within the areas designated under the statute.
March 24, 1992
HAROLD H. GREENE
United States District Judge