ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 90-00291-02)
Before: Becker, Greenberg and Alito, Circuit Judges
Zaida Rodriguez appeals from a judgment of sentence following conviction for two drug-related offenses. Rodriguez advances arguments concerning the interpretation and constitutionality of the so-called "schoolyard" provision of the federal drug laws, then 21 U.S.C. § 845a (now recodified at 21 U.S.C. § 860). She also challenges the admission of evidence that she claims was irrelevant and unfairly prejudicial. We will affirm.
In June 1990, two Philadelphia police officers assigned to the Drug Enforcement Administration (DEA) Task Force, Ronald Abel and Gary Martinez, observed a woman whom they later identified as Rodriguez driving away from 3062 Boudinot Street. The officers followed and watched as the woman stopped at 28 East Silver Street and entered the house, which is located within 1000 feet of an elementary school. The woman soon returned to her car, carrying a white pillowcase that the officers believed contained cocaine. As the woman drove off with the officers in pursuit, packages later identified as containing cocaine were thrown out of one of the car's windows. The officers stopped to retrieve the packages, and the woman escaped.
Rodriguez was indicted a few months later for four drug-related offenses.*fn1 After two of the four counts were dismissed, a jury trial was held on the two remaining charges. The jury found Rodriguez guilty of both charges, possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and violating the schoolyard provision. Rodriguez appealed.
Rodriguez first argues that there was insufficient evidence that she violated the schoolyard provision.*fn2 This statute prescribes enhanced penalties for, among others:
Any person who violates [21 U.S.C.] 841(a)(1) or [21 U.S.C.] 856 . . . 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, or a playground, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility.
Rodriguez argues that this provision does not apply to a defendant who possesses drugs within 1000 feet of a school but intends to distribute them elsewhere. Rather, she asserts, the statute requires proof of an intent to distribute drugs within 1000 feet of a school. She claims that, while there was evidence that she possessed cocaine within 1000 feet of a school, there was no evidence that she intended to distribute the cocaine within 1000 feet of a school. Moreover, she contends that the district court committed reversible error by failing to instruct the jury that proof of an intent to distribute the cocaine within 1000 feet of a school was required.*fn3 There is no indication that Rodriguez raised this issue of statutory construction in the district court.*fn4 Consequently, we could reverse her conviction only if we found plain error.*fn5
A. To date, one other court of appeals has addressed the issue of statutory construction presented here. In United States v. Wake, 948 F.2d 1422 (5th Cir. 1991), the Fifth Circuit held that the schoolyard provision applies to a defendant who possesses drugs within 1000 feet of a school even if he or she intends to distribute them elsewhere. See also State v. Ivory, 124 N.J. 582, 592 A.2d 205 (1991) (interpreting similarly worded state statute). We agree with the Fifth Circuit's analysis and its Conclusion.
First, we believe that this interpretation is supported by the language of the schoolyard statute. This provision applies to three types of criminal conduct: distributing drugs, possessing drugs with the intent to distribute, and manufacturing drugs. In cases involving the distribution or manufacture of drugs, it is clear that this provision requires that the actus reus must occur within 1000 feet of a school. Accordingly, it is reasonable to interpret the statute as applying in the same way to the offense of possession with intent to distribute. Since the actus reus for this offense is possession, it follows that possession of the drugs, not the intended location for distribution, must be located within 1000 feet of a school.
This interpretation is also supported by Congress' decision to make the schoolyard provision applicable to the manufacture of drugs within 1000 feet of a school. By prescribing enhanced penalties for the manufacture of drugs near a school (regardless of the intended site of distribution), Congress made clear that it did not wish to confine the schoolyard statute to cases in which a defendant distributes or intends to distribute drugs near a school. Rather, Congress was more broadly concerned about serious drug crimes that occur in proximity to schools.
B. The legislative history supports this interpretation of the schoolyard provision. As originally enacted in 1984, the schoolyard statute applied only to the distribution of drugs within 1000 feet of a school. In 1988, however, Congress enacted the amendment that added possession with intent to distribute to the list of covered offenses. In an analysis of the 1988 amendment submitted on behalf of the Senate Judiciary Committee, Senator Biden stated*fn6
Section 845a [now 860] of title 21 currently makes it a crime to distribute or to manufacture controlled substances within 1,000 feet of a school. This section adds "possession with intent to distribute" to the list of offenses covered by this statute so that the enhanced penalties would apply to someone apprehended near a school with a quantity of drugs sufficient to indicate an intention to distribute.
134 Cong. Rec. S17,360, S17,365 (daily ed. Nov. 10, 1988) (statement of Senator Biden) (emphasis added). The identical analysis was also offered by Senator Nunn, on behalf of Senators Byrd, Dole, Rudman, Moynihan, Rudman, D'Amato, Wilson, Gramm, and "numerous ...