No. xx-xxx0




xxxxxxxxxxxxxx, Defendant-Appellant.








The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from the final judgment of the district court (entered December 14, 1995) having been filed on December 8, 1995, this Court has jurisdiction over this appeal under 28 U.S.C. 1291.


I. Whether the district court erred in ruling that Congress's enactment of the "schoolyard statute," 21 U.S.C. 860(a), did not exceed its Commerce Clause power as defined in United States v. Lopez, 115 S. Ct. 1624 (1995).

II. Whether the trial court erred in coercing from Mr. xxxxx a waiver of his right to dismissal for a speedy trial violation by informing him only of the possibility of dismissal without prejudice and by telling him that the government would reindict him, when, in fact, he was entitled to seek dismissal with prejudice and, even if that were denied, whether to reindict would be determined by a grand jury, not the government.

III. Whether there was insufficient evidence from which the jury could conclude beyond a reasonable doubt that the distance from Tyler Elementary School to the point at which Mr. xxxxx possessed heroin with the intent to distribute was less than 1,000 feet.


Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.


A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On May 11, 1995, a federal grand jury sitting in the District of Columbia returned a two-count indictment charging Mr. Kenneth A. xxxxx with possession with intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(i) (Count One), and doing so within 1,000 feet of a school in violation of 21 U.S.C. 860(a) (Count Two). (A. 8-9). (1)

A jury trial commenced before the Honorable Royce C. Lamberth on September 11, 1995. On September 13, 1995, the jury returned a verdict of guilty on both counts. On December 4, 1995, the court vacated Count One as a lesser included offense of Count Two (subject to reinstatement if Count Two were to be reversed on appeal) and sentenced Mr. xxxxx on the schoolyard count to 121 months in prison and 8 years of supervised release. (A. 29-32; 12/4 Tr. 5-7). Mr. xxxxx filed a timely notice of appeal. (A. 33).

B. Statement of Facts

1. The Speedy Trial Violation.

Mr. xxxxx was arrested on April 11, 1995 and arraigned on a criminal complaint before Magistrate Robinson on April 12, 1995. He was ordered held without bond. (A. 3). He was indicted on May 11, 1995, and arraigned on the indictment before Judge Lamberth on May 17, 1995. At the arraignment, Mr. xxxxx "ask[ed] for a speedy trial date" (5/17 Tr. 2) and the parties proposed July 10th or 11th (5/17 Tr. 3-4). When the court could not accommodate those dates and defense counsel told the court he was definitely expecting to file a pretrial motion, the court ordered pretrial motions due on May 30 and left the trial date open, to be set by further order. (5/17 Tr. 2-5; A. 10).

On June 8, 1995, defense counsel made an oral motion to extend the deadline for pretrial motions (A. 11). The court entered a written order granting the motion "[a]fter consulting with defense counsel in chambers and government counsel by telephone." (A. 11). The court ordered pretrial motions due on June 20, 1995, and set a trial date of September 11, 1995. (A. 11).

On August 15, 1995, defense counsel filed a motion to suppress evidence, (A. 12-15), and a motion for nunc pro tunc appointment under the Criminal Justice Act, stating that his client's inability to pay him under their retainer agreement had "hampered the presentation of certain substantive motions" (A. 18). On August 16, 1995, the government, noting that July 10th had been the 90th day after Mr. xxxxx's arrest, filed a motion to advance the trial date to August 18, 1995. (A. 20-22). (2) The court called an emergency status hearing late that afternoon, noting, "We've got tremendous problems here." (8/16 Tr. 2).

Defense counsel explained that the problem had occurred because he had not been paid and stated, "we don't want to dismiss and reindict." (8/16 Tr. 2). The parties analyzed the status of the 70-day Speedy Trial Act clock as follows:

[PROSECUTOR]: [O]n May 11th the indictment was returned. From that day forward the clock is running. . . .

THE COURT: I thought it ran from the first of -- . . . After indictment it runs from first appearance or arraignment. . . . So the time will start on May 17th, was the arraignment before me.

[PROSECUTOR]: On June 8th . . . was the day that counsel requested the Court for more time to prepare motions.


[PROSECUTOR]: I believe that would suffice to toll the clock.


[PROSECUTOR]: The motion was due on June 20th, so I don't know if after June 20th, without a further filing. I assume the clock restarts on June 20th.


PROSECUTOR]: And I would assume that it was . . . August 14th that counsel's motion was filed, (3) the clock was tolled again. So the only periods that count for the 70 days are May 17th through June 8th and June 20th through August 14th.

[DEFENSE COUNSEL]: That's 60 days. (4) I don't think we need it. My client is willing to waive. He says he wants to go to trial September 11th. He doesn't want it to, you know, have it dismissed and reindicted. . . . And he understands the difference between the two, that you would probably, according to the law, grant dismissal, but you would give then 24 hours to reindict him, and we'll be back here tomorrow with a new calendar.

(8/16 Tr. 6-8).

The Court then obtained from Mr. xxxxx a waiver of his right to seek dismissal under the Speedy Trial Act:

THE COURT: Now, we're here today on this emergency hearing because the Court looked at the Speedy Trial Act, and the motion not having been filed on your behalf, I believe from the Speedy Trial Act if you wanted to make a motion for me to dismiss this indictment, I would be compelled to dismiss it today.

The government advises me if I do that, they will have a special grand jury session tomorrow and reindict you on the same evidence tomorrow, and eventually the case would still go to trial.

Your attorney said he talked to you and you would just as soon try to keep the September 11th trial date and get this over with, but it is really your option. If you want to make the motion to dismiss, I'll grant it, and it's up to you if you want to do that, but the government will, I'm sure, follow through with their word, and just reindict you tomorrow, and we'll still have a trial. It probably won't be September 11th that way, but it's really up to you, and you tell me in your own words what you want to do?

DEFENDANT xxxxx: I want to waive the dismissal and start trial September 11th.

THE COURT: And make sure we get to trial on September 11th. I'll accept that, and I think you understand. Do you have any questions at all you want to ask me about it?

DEFENDANT xxxxx: No, sir.

THE COURT: You know just what I'm doing?

DEFENDANT xxxxx: Yes, sir.

THE COURT: Do you know what you're doing?


DEFENDANT xxxxx: Yes, sir.

(8/16 Tr. 11-12).

2. The Government's Case.

The government's case consisted of testimony from the two officers who arrested Mr. xxxxx (Officer Stanley Greene and Officer Peter Schumacher), a DEA chemist, a drug expert, and the officer who measured the distance to the school.

Officers Greene and Schumacher testified that they were on mountain bike patrol at 6:00 p.m. on April 11, 1995, when they received a radio run lookout for a black male, wearing dark clothing, carrying a gun inside a paper bag at the rear of 712 12th Street, S.E. (Tr. 131-32; 249-50). (5) The officers rode their bikes west on I Street and turned north on 12th Street. (Tr. 134; 250). Officer Schumacher turned first and rode up the left side of 12th Street. (Tr. 134, 250-51). Officer Greene then turned onto the righthand sidewalk. (Tr. 134, 144, 251).

Greene immediately saw Mr. xxxxx walking towards him carrying a paper bag in both hands. (Tr. 134-36). He said, "Hey, my man. Come here. Let me talk to you." (Tr. 137). Mr. xxxxx stated, "Hey, what. I ain't done nothing," and turned around and ran up 12th Street toward G Street. (Tr. 137-38). Greene dismounted his bike and chased Mr. xxxxx up the sidewalk, calling ahead to his partner. (Tr. 138-39, 253-54, 256). When Schumacher turned and saw Mr. xxxxx running towards him, Schumacher dismounted his bike and began running down the sidewalk. (Tr. 139, 255-56). Mr. xxxxx then turned back toward Greene, threw the bag to his right into the street, and ran towards the Potomac Gardens fence on his left. (Tr. 139, 256-57). Mr. xxxxx attempted to scale the fence but Greene succeeded in pulling him down and arresting him with Schumacher's assistance. (Tr. 140-41, 257-58).

Meanwhile, a car had driven north on 12th Street, past the bag. (Tr. 260). It screeched as it backed up alongside the bag about 20-30 feet from where the officers were handcuffing Mr. xxxxx. (Tr. 189-90, 192, 260). When both passenger doors opened and the passengers started to get out, Schumacher drew his weapon, and the car drove off. (Tr. 211, 260-65). Greene then went to retrieve the bag, and found that it contained six plastic sandwich bags of white powder and an empty container labeled "quinine hydrochloric." (Tr. 141, 153-54). The chemist testified that the powder was 123.9 grams of heroin mixture cut to a purity of 24%. (Tr. 229). The drug expert testified that that quantity of heroin would cost between $16,000 and $20,000 wholesale, and could be sold retail for between $30,960 and $108,400, depending on how it was further cut and packaged. (Tr. 341-47). He explained that Southeast Asia is the source for the majority of heroin in the United States and that the poppy plants from which heroin is produced are not grown in the District of Columbia. (Tr. 335-36).

With respect to the measurement to the school, Officer Greene testified that Officer Catterton began the measurement at the point "where the bag was dropped" -- the point Greene "ha[d] marked on the diagram, Government's 1, and the photograph, Government's 2, with the red dot marked bag" (Tr. 162-63), which represented the spot where the bag had landed (Tr. 145, 151-52). Officer Catterton testified that he began the measurement "[s]omewhere like in the sidewalk area" between the alley and I Street on 12th Street ("[a]bout mid-block") -- what Officer Greene had pointed to as "the point of drop." (Tr. 305-07). Catterton used a "measuring wheel" to go north on 12th Street, west through the alley, and over to the rear entrance of Tyler Elementary School. That measurement was "approximately 825 feet." (Tr. 307-08). Catterton then went to the front entrance of the school (in the 1000 block of G Street) and measured east on G Street and then south on 12th Street back to the starting point. That measurement was "approximately 935 feet." (Tr. 307-08).

Catterton stated that the measuring wheel is stored in the back of the crime scene search cruiser, that he had "no idea" if it had ever been calibrated, that the officers return a wheel to the Property Division for maintenance only if it stops clicking altogether, and that he had never had his wheel (which could be as much as ten years old) checked for accuracy. (Tr. 314-17). With respect to its margin for error, Catterton acknowledged that he would not notice "if you pushed it ten feet, and it came back eight feet." (Tr. 316). On redirect, Catterton stated that none of the visible parts of the equipment were broken or chipped and that he had no reason to believe it is not accurate, "[b]ut that's why I use approximate, when I do my figures." (Tr. 321). (6)

3. The Defense Case.

Mr. xxxxx testified that he began using crack cocaine in 1990 and that he supported his habit by stealing. He acknowledged a Virginia larceny conviction for stealing clothes and a 1993 conviction for possession of crack cocaine. (Tr. 378-79, 380). He testified that during the week before his arrest he had been observing the habits of two people who he thought were engaging in drug transactions. (Tr. 380). On the day of the arrest, when he saw the person he believed to be the buyer place what he thought was a bag of money in a dumpster inside the fence at Potomac Gardens, Mr. xxxxx went and got the bag and jumped the fence. (Tr. 380-82). He began walking down 12th Street towards I Street when he saw Officer Schumacher look at him and keep riding up the street. (Tr. 383). Officer Greene ordered him to stop at the same time the people he had just stolen from approached 12th Street in their car. (Tr. 383-84). He turned and ran to avoid the people in the car, not Officer Greene (whom he did not realize was a police officer). (Tr. 383-84). By the time he had thrown the bag and was pulled off the fence by Officer Greene, the car was backing up. Contrary to the officers' testimony that the bag was always visible, Mr. xxxxx testified that the car backed up between the three of them and the bag and blocked the bag from view. (Tr. 385). (7)

The jury returned a verdict of guilty on both the possession with intent to distribute count and the schoolyard count, but Judge Lamberth vacated the former as a lesser included offense of the latter.


Mr. xxxxx is entitled to a judgment of acquittal on the schoolyard count for two independent reasons.

First, the schoolyard statute itself, 21 U.S.C. 860(a), is outside Congress's Commerce Clause power. Under the rationale of the Supreme Court's decision in United States v. Lopez, 115 S. Ct. 1624, 1632-33 (1995), Congress cannot justify regulation of school zones on the theory that anything that damages the educational environment has an impact on interstate commerce. Although drug distribution does affect interstate commerce, that activity is already comprehensively criminalized under 21 U.S.C. 841 (a lesser-included offense of 860(a)). The only thing regulated by 860(a) that is not regulated by 841 is presence within 1,000 feet of a school. While Congress's purpose in attempting to eliminate criminal influences from school zones was worthy, criminal law enforcement and education are areas where states have historically been sovereign. The same federalism concerns that invalidated the Gun-Free School Zone Act in Lopez require invalidation of the schoolyard statute here.

Moreover, even assuming 860(a) is constitutional, the government failed to present sufficient evidence that Mr. xxxxx committed his drug offense within 1,000 feet of a school. The only evidence on the distance element was Officer Catterton's measuring wheel reading of "approximately 825 feet" from where the bag landed to Tyler Elementary School. That measurement is insufficient to support the verdict for two reasons.

First, it measured from the point where the drugs had been abandoned rather than from the point where Mr. xxxxx possessed them with the intent to distribute them. It is impossible to tell on this record whether the additional distance to the point where the offense actually occurred was more or less than 175 feet.

Second, Officer Catterton qualified his own measurement by acknowledging that he had not calibrated the measuring equipment and that, for all he knew, he could have pushed the device 10 feet and registered a reading of 8 feet. Extrapolating that margin of error to the reading he did get means that, under Officer Catterton's own testimony, the actual distance (just to the abandoned bag) could have been 1031 feet or more. As qualified by Catterton, the reading he testified to was too uncertain to serve as the basis for a rational mind to conclude beyond a reasonable doubt that the locus of the offense was within 1,000 feet of a school.

In addition, the case must be remanded for dismissal under the Speedy Trial Act because Mr. xxxxx's waiver of his right to dismissal was based on legally erroneous information from the court. At the time of the emergency status conference, 93 non-excludable days had passed since Mr. xxxxx's indictment and he was statutorily entitled to have it dismissed. In obtaining his waiver of the right to dismissal, the court informed Mr. xxxxx only of the possibility of dismissal without prejudice when, in fact, Mr. xxxxx had a substantial claim to dismissal with prejudice. Moreover, the court told Mr. xxxxx that the government would certainly reindict him when, of course, the decision whether to reindict would be in the hands of a grand jury. Because Mr. xxxxx was misled with respect to the valuable right he was giving up, his "waiver" should be invalidated and the case returned to the trial court for a determination whether to dismiss with or without prejudice.



A. Standard Of Review

The district court's ruling on the constitutionality of 21 U.S.C. 860(a) (Tr. 375) is reviewed de novo.

B. The Schoolyard Statute Is Unconstitutional Under United States v. Lopez.

On several occasions since the Supreme Court's decision in United States v. Lopez, 115 S. Ct. 1624 (1995), this Court has been presented with Commerce Clause challenges to 860(a) but has not yet had to resolve this constitutional issue. In United States v. Applewhite, 72 F.3d 140, 141 (D.C. Cir. 1995), the Court did not have to decide the Lopez issue because it reversed the 860(a) count on sufficiency grounds like those argued by Mr. xxxxx in Point III, infra. In United States v. Baucum, 66 F.3d 362 (D.C. Cir. 1995), reh'g denied, 80 F.3d 539 (D.C. Cir. 1996), and United States v. Edmonds, 69 F.3d 1172, 1177 (D.C. Cir. 1995), the defendants had not raised a Commerce Clause challenge in the trial court and this Court ruled that Lopez did not qualify as a "supervening decision" that would justify reaching the merits of the unpreserved claim. Here, the issue was preserved and Judge Lamberth's ruling upholding the statute is ripe for review.

In Lopez, the Supreme Court held that it was beyond Congress's constitutional power over interstate commerce to enact the Gun-Free School Zones Act (18 U.S.C. 922(q)), which prohibited the possession of firearms within 1,000 feet of a school. Starting with "first principles" -- that "[t]he Constitution creates a Federal Government of enumerated powers" and that "a healthy balance of power between the States and the Federal govermment will reduce the risk of tyranny and abuse from either front," Lopez, 115 S. Ct. at 1626 -- the Court held that 922(q) was an intolerable federal encroachment into areas that must be left to the states.

The Court explained that no connection between the possession of guns in schools and interstate commerce was apparent from the face of statute and that there was no legislative history to suggest that Congress had considered the relation between gun possession in school zones and interstate commerce. Lopez, 115 S. Ct. at 1630-32. The government attempted to provide such a justification to the Court post hoc, by arguing that violent crime resulting from guns in school zones has costs that are spread via insurance throughout the population, reduces the willingness of individuals to travel to certain areas, and threatens the learning environment in a way that adversely affects the Nation's economic well-being. Id. at 1632. But the Court held:

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under

the Commerce Clause to a general police power of the sort retained by the States.

Lopez, 115 S. Ct. at 1634.

The same federalism concerns that motivated the Lopez Court to strike down the Gun-Free School Zones Act are implicated by the schoolyard statute under which Mr. xxxxx was prosecuted. (8) Section 860(a) provides:

Anyone who violates section 841(a)(1) . . . 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 housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is . . . subject to [twice the maximum punishment authorized by 841(b)].

Judge Lamberth ruled that Congress had authority to enact this statute in light of the "long tradition of federal regulation of food and drugs under the commerce power." (Tr. 375). It is true that the distribution of drugs affects interstate commerce. See, e.g., United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995) (upholding 21 U.S.C. 841 post-Lopez); United States v. Davis, 561 F.2d 1014, 1018-20 (D.C. Cir. 1977) (same, pre-Lopez). But drug distribution is already comprehensively criminalized in 21 U.S.C. 841 -- the lesser-included offense of 860(a). When Congress created a separate prohibition on violating 841 near schools, the only thing it was regulating that was not already regulated was the environment surrounding schools.

The legislative history of 860(a) does not indicate that Congress ever discussed, or apparently even considered, whether the activity of distributing drugs within 1,000 feet of a school affects interstate commerce -- a fact that disturbed the Lopez Court about the statute challenged in that case. Lopez, 115 S. Ct. at 1632 ("to the extent that congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye, they are lacking here").

What does appear on the record is a statement by Senator Paula Hawkins, the sponsor of the bill, making clear that the purpose of the bill was the protection of schools and schoolchildren and the creation of a healthy educational environment: "Young people suffering from drug abuse need our help. While we cannot legislate discipline in the family or in the schools, we can assist in their establishment by helping to eliminate outside negative influences." 130 Cong. Rec. S559 (daily ed. Jan. 31, 1984). Confirming this legislative objective, this Court in United States v. Holland, 810 F.2d 1215 (D.C. Cir. 1987), stated:

It is a matter of universal awareness that when government provides educational facilities for children away from their homes it assumes a parental responsibility to furnish them an educational environment as free from crime as reasonably it can make it. Its

protection of them is most needed within the school and its proximate surroundings.

Id. at 1222; see also id. at 1219. Thus, the legislative purpose of 860(a), while certainly a worthy one, appears distinctly unrelated to interstate commerce. The Lopez Court pointed out the logical flaw in allowing Congress to rely on damage to the educational environment as authority for federal regulation:

[I]f Congress can, pursuant to its Commerce Clause power, regulate activities that adversely affect the learning environment, then, a fortiori, it also can regulate the educational process directly. Congress could determine that a school's curriculum has a "significant" effect on the extent of classroom learning [and] mandate a federal curriculum for local elementary and secondary schools.

Lopez, 115 S. Ct. at 1633. To allow such federal regulation of the schools would be to eliminate entirely any "distinction between what is truly national and what is truly local." Id. at 1634.

The enactment of the schoolyard statute reflects an outdated assumption on the part of the Congress that it possesses an almost plenary federal police power over "areas such as criminal law enforcement or education where States historically have been sovereign" (115 S. Ct. at 1632). The Lopez Court was concerned that 922(q) was regulating an area already regulated by the states. See Lopez, 115 S. Ct. at 1631 n.3 (quoting Statement of President Bush on Signing Crime Control Act of 1990: "'Most egregiously, section [922(q)] inappropriately overrides legitimate state firearms laws with a new and unnecessary Federal law'"); id. at 1641 (Kennedy, J., joined by O'Connor, J., concurring) ("over 40 States already have criminal laws outlawing the possession of firearms on or near school grounds"). Like 922(q), 860 "criminalizes conduct already denounced as criminal by the States, [thereby] effect[ing] a 'change in the sensitive relation between federal and state criminal jurisdiction.'" Lopez, 115 S. Ct. at 1631 n.3 (citation omitted). (9)

The Supreme Court's decision in Lopez has implications far beyond the Gun-Free School Zones Act. Congress can no longer assume that every worthy thing it wants to do can be justified under the mantra "interstate commerce." Just recently, Judge Kiser of the Western District of Virginia relied on Lopez in striking down the Violence Against Women Act. See Washington Post, July 30, 1996, at A1, col. 1 (opinion not yet available on Westlaw). The schoolyard statute is likewise outside Congress's commerce power; Congress's justification in passing it -- protecting the educational environment -- was found insufficient in Lopez itself.


A. Standard of Review

Whether the district court provided Mr. xxxxx with legally erroneous information about his rights under the Speedy Trial Act is a question of law reviewed de novo. See United States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir. 1991) (facts supporting Speedy Trial Act ruling reviewed under clearly erroneous standard; legal questions reviewed de novo).

B. This Court Should Invalidate Mr. xxxxx's Waiver And Remand For A Determination By The District Court Whether Dismissal Should Be With Or Without Prejudice.

Under the Speedy Trial Act, "the trial of a defendant charged in an . . . indictment . . . shall commence within seventy days from the filing date (and making public) of the . . . indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. 3161(c)(1). As of the emergency hearing on August 16, 1995, 93 non-excludable days had passed under the Speedy Trial Act: May 12 through May 16 (5 days); May 18 through June 7 (21 days); and June 9 through August 14 (67 days). Mr. xxxxx was therefore entitled to dismissal of his indictment under the sanction provision of 18 U.S.C. 3162(a)(2), which sets forth factors to be considered by the district court in determining whether the dismissal should be with or without prejudice. Because the district court misinformed Mr. xxxxx as to the legal ramifications of a motion to dismiss, his ostensible waiver of such a motion was not valid.

The speedy trial clock began to run on the day of indictment (May 11), because the indictment post-dated Mr. xxxxx's first appearance before a judicial officer (his April 11 arraignment on the criminal complaint). See 3161(c)(1); United States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir. 1992); United States v. Owokoniran, 840 F.2d 373, 374 (7th Cir. 1987); United States v. Pringle, 751 F.2d 419, 431 (1st Cir. 1984); United States v. Haiges, 688 F.2d 1273, 1274 (9th Cir. 1982). (10) The date of the indictment (May 11) and the date of the arraignment on the indictment (May 17) are excludable under 3161(h)(1) as "other proceedings concerning the defendant." Pringle, 751 F.2d at 431; Ortega-Mena, 949 F.2d at 158; Haiges, 688 F.2d at 1274. Likewise, June 8 (the date the court heard and granted the defendant's oral motion for an extension of time to file motions) is excludable as such a proceeding. 3161(h)(1)(F).

The period from June 9 through June 20 (the extension of the deadline for filing motions) is not excludable under 3161(h)(8) because, even if such period is a "continuance" as defined in that section:

No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.

3161(h)(8)(A). Contrary to this statutory mandate, the trial court did not make any on-the-record finding that the extension to June 20 served the ends of justice, let alone give any explanation of its reasons for so finding. The request for the extension was heard in an off-the-record telephone conference and the written order granting the request does not say why the extension was

necessary, suggest that the time should be excludable, or make any mention of the Speedy Trial Act at all. (A. 11). (11)

After June 8, therefore, the speedy trial clock ran continuously until August 15 when defense counsel filed his motion to suppress evidence and motion for appointment of counsel nunc pro tunc under the Criminal Justice Act. 3161(h)(1)(F). As of the emergency status hearing, 93 non-excludable days had passed. There is no question, therefore, that, as of the August 16 hearing, the 70-day limit had been violated and that Mr. xxxxx was entitled to dismissal of the indictment upon his motion therefore. See 3162(a)(2) ("If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant."). The trial court correctly recognized that, if Mr. xxxxx asked for a dismissal, the court would have no choice but to grant it. See 8/16 Tr. 11 ("I believe from the Speedy Trial Act if you wanted to make a motion for me to dismiss this indictment, I would be compelled to dismiss it today.").

Mr. xxxxx's "waiver" of his right to dismissal is invalid because it was based on erroneous legal information from the court. In obtaining the waiver, the court talked about dismissal only in terms of dismissal without prejudice and told Mr. xxxxx that "the government will, I'm sure, follow through with their word, and just reindict you tomorrow, and we'll still have a trial." (8/16 Tr. 11). In fact, Mr. xxxxx was entitled to move for dismissal with prejudice, in which case the court would have been required to consider specified statutory factors in deciding whether to dismiss with or without prejudice. See 3162(a)(2). Even if the court had decided to dismiss without prejudice, reindictment was up to a grand jury, not the government. See United States v. Wright, 6 F.3d 811, 811-12 (D.C. Cir. 1993) (after dismissal without prejudice grand jury reindicted on only two of original five counts). And even if a grand jury had reindicted Mr. xxxxx and he had been convicted on the second indictment, he would have been entitled to appeal the district court's refusal to dismiss with prejudice.

The right to seek dismissal with prejudice is an extremely valuable right. "The statute itself does not favor either form of dismissal over the other." Wright, 6 F.3d at 813. Three factors, "among others," are to be considered by the district court in making the with/without prejudice decision: "the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice." 3162(a)(2).

Here, the possession with intent to distribute charges against Mr. xxxxx were much less serious and carried a much lighter minimum penalty than the conspiracy, distribution and gun charges found to be "serious" in Wright, 6 F.3d at 814. With respect to the facts and circumstances which led to the dismissal, this Court has distinguished between situations in which the goverment has engaged in a "'pattern of neglect'" from those in which the violation represents an "'isolated unwitting violation.'" Wright, 6 F.3d at 814 (quoting United States v. Taylor, 487 U.S. 326, 339 (1988)). In Wright, the government was chastised for its inability to explain how the defendant's case "managed to escape its attention" and for the "lac[k] [of] any centralized mechanism to monitor compliance" with the Speedy Trial Act. Id. at 815. The Court rejected the government's suggestion that the the responsibility for monitoring compliance falls solely on the clerk of the court: "It is up to the United States Attorney's Office, as well as the district court, to ensure that Congress's demands are met." Id. Of particular relevance to this case, the Court noted:

[I]f the United States Attorney's Office persists in its ad hoc method of compliance, and if that method leads to more violations of the Act, the Government's "lackadaisical attitude" toward enforcing Congress's directives could well be used as evidence of a "pattern of neglect."


If Mr. xxxxx had not been misled as to his rights and had asked for dismissal, the district court would have had to consider the violation in his case as part of such a "pattern of neglect" before deciding what kind of dismissal was called for. The district court would have had to consider whether the government had heeded this Court's warning in Wright or had continued its ad hoc policy of leaving responsibility with the individual AUSA handling the case. The court would also have had to consider the number of other post-Wright cases that had been allowed to fall through the cracks. See 3166(b)(3); 3170 (requiring collection and maintenance of statistics on sanctions for noncompliance). The third factor -- the impact of reprosecution on the administration of justice -- would depend in large part on the court's resolution of the first two factors.

Given this Court's warnings in Wright, Mr. xxxxx had a substantial claim for dismissal with prejudice. The court's statements to Mr. xxxxx obscured the true value of the dismissal right he was giving up and rendered the resulting "waiver" invalid.

"Congress left the prejudice decision 'to the guided discretion of the district court.'" Wright, 6 F.3d at 813 (quoting United States v. Taylor, 487 U.S. 326, 335 (1988)). Because "[t]he district court is best situated to decide whether to dismiss with prejudice," United States v. Willis, 958 F.2d 60, 64 (5th Cir. 1992), this Court should remand in order that the district court may exercise its discretion applying the three factors set forth in 3162(a)(2).


A. Standard of Review

This Court reviews the trial court's denial of a Mr. xxxxx's motion for judgment of acquittal de novo. This Court does not defer to the district court, but rather must make its own independent judgment regarding the sufficiency of the evidence, viewing it in the light most favorable to the government. See Burks v. United States, 437 U.S. 1, 16-17 (1978); United States v. Johnson, 952 F.2d 1407, 1409 (D.C. Cir. 1992). Mr. xxxxx's conviction must be reversed if, on the evidence presented, a reasonable mind could not find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

B. No Reasonable Juror Could Conclude Beyond A Reasonable Doubt That The Actual Distance From Tyler Elementary School To The Locus Of The Offense Was Less Than 1,000 Feet.

In order to prove a violation of 21 U.S.C. 860 (a), the government was required to prove beyond a reasonable doubt that Mr. xxxxx knowingly and intelligently possessed a controlled substance with the intent to distribute ("PWID"), and that he did so within 1,000 feet of a school. United States v. Stephens, 23 F.3d 553, 555 (D.C. Cir.), cert. denied, 115 S. Ct. 522 (1994) (citing United States v. McDonald, 991 F.2d 866, 869 (D.C. Cir. 1993)). "Section 860(a) is violated only if the distance between the real property of a school and the locus of the defendant's PWID . . . is less than 1,000 feet." United States v. Applewhite, 72 F.3d 140, 144 (D.C. Cir. 1995). Here, as in Applewhite and United States v. Johnson, 46 F.3d 1166, 1169-70 (D.C. Cir. 1995), the government failed to present sufficient evidence from which the jury could find beyond a reasonable doubt that the distance between the location where the crime occurred and the protected location was less than 1,000 feet.

1. The Improper Terminal Point

In Johnson, this Court found that the government failed to carry its burden of proof when it "inexplicably offered evidence not of the distance from a school to the point in the house where Johnson possessed the drugs, but only of a measurement made by Officer Reid from Randle Heights Elementary School to a point five feet up the walkway to Johnson's house." 46 F.3d at 1169. Likewise in Applewhite, this Court concluded that the government had not met its burden where the police measured the distance only up to the apartment building in which the drugs were found and not to the actual "locus of the drug offense" -- the point in the kitchen of the apartment where the PWID actually occurred. 72 F.3d at 144. Similarly here, the government used an "improper terminal point" of measurement, Johnson, 46 F.3d at 1169, and failed to present evidence from which a jury could determine the omitted distance beyond a reasonable doubt.

Here, the "approximately 825 feet" measurement to the "point of drop" (Tr. 305-307) -- the spot where the bag had landed (Tr. 162-63) -- was meaningless. The crime that the statute requires to have taken place within 1,000 feet of a school was possession with intent to distribute drugs. Once the bag was in the street, the defendant no longer possessed the drugs, let alone with the intent to distribute. In fact, even at the spot from which he threw the bag, (12) the defendant had no intent to distribute. At that location, his intent was to abandon, not distribute, the drugs. At some unknowable point in time between when Officer Greene first saw Mr. xxxxx with the bag and when he threw the bag to the ground up the block, Mr. xxxxx's intent to distribute disappeared. Even viewing the evidence in the light most favorable to the government, the only point at which there was sufficient evidence to find an intent to distribute beyond a reasonable doubt was at the moment before Mr. xxxxx began to flee (by the corner of 12th and I Streets). The record is clear that, at that point, Mr. xxxxx was farther from Tyler elementary school (located at 10th and G Streets) (Tr. 305, 307) than he was when he threw the bag (up 12th Street toward G Street). But there is nothing in the record that would enable the jury to calculate whether the additional distance between the spot from which he began to run and the place where the bag landed was less than 175 feet. (13)

Several times, the prosecutor asked the jury to give the government the benefit of the doubt on the measurement because the officer had testified as to the longer pedestrian route rather than "as the crow flies." (14) This Court has indeed held that the distance requirement is satisfied by a straight-line, as-the-crow-flies, measurement. See Applewhite, 72 F.3d at 143 (citing Johnson, 46 F.3d at 1169-70). But the government cannot rely on that proposition here. As this Court held in Applewhite:

As in [Johnson], however, there is no evidence in the record here from which the jury could have derived the shorter straight line distance. The Government's case must therefore stand or fall upon the adequacy of the 920.2 foot measurement as proof that the appellant possessed the drugs within 1,000 feet of the school.

72 F.3d at 143 (emphasis added). See also Johnson, 46 F.3d at 1170:

It is entirely possible -- perhaps probable -- that [the straight line distance was sufficiently shorter than the pedestrian distance to make up for the improper terminal point]. If so, we have no idea why the government did not prove it. . . . Since there is no evidence of either the straight line measurement or the distance between the terminal point of Reid's measurement and the point of possession, it is impossible to determine whether or not this equation [for calculating the necessary differential between the straight line and pedestrian measurements] is true. Therefore, the government cannot prevail.


2. The Admitted Margin of Error

The government has an additional fundamental problem in this case that was not present in Johnson or Applewhite. Even aside from the fact that the government measured to "a point short of the location of [the PWID]," Applewhite, 72 F.3d at 144, the evidence is insufficient here because Officer Catterton admitted that the measurement he reported was within his margin of error. Given that Catterton's testimony allowed for a range of possible distances both over and under 1,000 feet, it was a matter of pure speculation for the jury as to the side of the line on which the actual distance fell. For this reason, too, "the distance in this case was not resolved with the precision necessary to support the jury's verdict." Applewhite, 72 F.3d at 143 (emphasis added).

The Supreme Court has recognized the due process implications of obtaining a criminal conviction based on measurements from equipment of uncertain reliability. After discussing the procedures for Intoxilyzer accuracy certification by the California Department of Health and the National Highway Saftey Traffic Administration, and the elaborate calibration and testing procedures used when taking actual measurements, the Court in California v. Trombetta, 467 U.S. 479, 489-90 & n.9 (1984), noted the constitutional significance of these safeguards:

[I]f the Intoxilyzer were truly prone to erroneous readings, then Intoxilyzer results without more might be insufficient to establish guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).

467 U.S. at 489 n.10 (emphasis added).

Here, the only evidence of the distance to the school was the measuring wheel data offered by Officer Catterton. Catterton acknowledged that he had "no idea" if the equipment he used had ever been calibrated. (Tr. 315-16). He admitted that its calibration could be faulty, that it might be as much as ten years old, that it is subject to no regular maintenance, and that it is stored in the back of a police cruiser. (Tr. 306, 315-17). The most he could say with respect to whether this treatment had resulted in any damage was: "Nothing visible." (Tr. 321). (15)

Not only did Officer Catterton not calibrate the device before or after he used it, (16) he admitted to a large margin of error, acknowledging specifically that he would not have noticed any discrepancy if the actual distance had been 25% more than the odometer reading -- if he had "pushed it ten feet, and it came back eight feet." (Tr. 316). Extrapolating that testimony to the "approximately 825 feet" measurement Catterton reported means that, under Catterton's own testimony, the actual distance (just to the bag) could in fact have been 1031 feet (825 + (25% of 825)) (17) -- and very possibly more, since the 825 feet was only "approximate" and since Catterton was not asked whether he would have noticed an even larger discrepancy.

No reasonable jury could convict beyond a reasonable doubt on the state of this record. The measurement provided by Catterton was simply too uncertain and open-ended to serve as the basis for a reasonable mind to conclude beyond a reasonable doubt that the relevant distance was less than 1,000 feet. (18) "'A jury is entitled to draw a vast range of reasonable inferences from evidence, but may not base a verdict on mere speculation.'" United States v. Teffera, 985 F.2d 1082, 1085 (D.C. Cir. 1993) (quoting United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.), cert. denied, 498 U.S. 948 (1990)). Given the qualifications Officer Catterton placed on his measurement, and the absence of any other evidence of the relevant distance, whether the actual distance was more or less than 1,000 feet was, on this record, a matter of pure speculation.

In the analogous context of blood alcohol measurements, courts have held that, where the measuring device has an acknowledged margin of error, the measured reading by itself can support a verdict of guilt beyond a reasonable doubt only if the reading exceeds the statutory limit by at least the margin of error. In Hawaii, for example, where it is criminal to drive with a blood alcohol concentration (BAC) of 0.10% or more,

the prosecution must establish that the result of the chemical test involved "when taken together with its tolerance for error must equal or exceed the statutory" threshold of .10 BAC to prove "beyond a reasonable doubt that the actual weight of alcohol in [a defendant's] blood was at least 0.10%."

State v. Dibenedetto, 906 P.2d 624, 632 (Haw. Ct. App. 1995) (quoting State v. Boehmer, 613 P.2d 916 (Haw. 1980)).

Likewise, in Haynes v. State, 865 P.2d 753, 754, 755-56 (Alaska 1993), the Alaska Supreme Court held that a defendant must be given the benefit of the Intoximeter's margin of error and that it violated due process under the Alaska Constitution to revoke the license of a driver whose BAC measured .106 where the .01 margin of error raised the possibility that the actual BAC was .096 -- less than the statutory requirement of .10 -- even though the standard for revocation was merely a preponderance of the evidence. See also State v. Hvistendahl, 405 N.W.2d 273, 276 (Neb. 1987) ("a test result which is subject to margin of error must be adjusted so as to give the defendant the benefit of that margin") (citing State v. Bjornsen, 271 N.W.2d 839 (Neb. 1978) (dismissing case for insufficiency where government chemist conceded on cross-examination that 0.10 BAC reading was subject to 0.005 margin of error)). Cf. People v. Magri, 3 N.Y.2d 562, 147 N.E.2d 728, 731 (N.Y. 1958) ("were the only evidence here that of the untested radar equipment, we would hold, as in the case of an untested automobile speedometer [citation omitted] that such evidence is insufficient to sustain a conviction for speeding").

Those courts that have allowed conviction despite the fact that, taking account the margin of error, the actual blood alcohol concentration might have been under the statutory limit, have done so only by interpreting their substantive statutes as creating an offense of registering a particular BAC reading as opposed to actually having a particular blood alcohol level. See Haynes, 865 P.2d at 755 (discussing the two approaches). In other words, these courts conclude that their legislature considered the inherent margin of error and incorporated it into the statutory limit. Id. See, e.g., Nelson v. Commonwealth, 430 S.E.2d 553, 554-55 (Va. Ct. App. 1993) (General Assembly was presumably aware that measuring devices have inherent margins of error yet chose to word statute such that BAC is to be determined "as indicated by a chemical test administered in accordance with [state code]"); Isbell v. Miller, 797 P.2d 738, 743 (Ariz. Ct. App. 1990) (state regulations define 10% margin of error as acceptable for breath tests; distinguishing Alaska statute); Nugent v. Iowa Dept. of Transportation, 390 N.W.2d 125, 127-28 (Iowa 1986) (license revocation statute allows administrative revocation based solely on particular test result without consideration of margin of error; distinguishing criminal cases requiring proof of a BAC high enough to allow for margin of error).

Obviously, the "schoolyard statute" at issue here is not of this type. Congress in 860(a) did not penalize trafficking in drugs at a location that yields a measuring wheel reading of less than 1,000 feet to the nearest school. Congress penalized trafficking in drugs at a location that actually is within 1,000 feet of a school. Given that requirement, Mr. xxxxx's conviction cannot stand since, under the government's own evidence, (19) the distance to Tyler Elementary school could have been at least 1031 feet.


For the foregoing reasons, the judgment against Mr. xxxxx must be vacated and the case remanded to the district court for entry of a judgment of acquittal on Count Two. In addition, the case must be remanded to the district court for determination whether dismissal under the Speedy Trial Act should be with or without prejudice and, if the court dismisses without prejudice, for a new trial on Count One.

Respectfully submitted,





Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant Kenneth A. xxxxx


I hereby certify that the foregoing Brief for Appellant Kenneth A. xxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).



Assistant Federal Public Defender


I hereby certify that two copies of the foregoing Brief for Appellant Kenneth A. xxxxx have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 10-435, 555 Fourth Street, N.W., Washington, D.C., 20001, this 30th day of July, 1996.



Assistant Federal Public Defender

1. "A. __" refers to pages of the Appendix filed with this brief. "5/17 Tr. __" refers to pages of the May 17, 1995, arraignment transcript (Appendix. Tab A). "8/16 Tr. __" refers to pages of the August 16, 1995, status hearing transcript (Appendix. Tab B). "Tr. __" refers to pages of the sequentially numbered transcripts of the trial proceedings, beginning with page one on

September 11, 1995, and ending with page 485 on September 13, 1995 (Appendix. Tab C). "12/4 Tr. __" refers to pages of the December 4, 1995, sentencing transcript (Appendix. Tab D).

2. The 90-day limit was a reference to the Speedy Trial Act requirement that detained defendants be tried within 90 days of their detention. 18 U.S.C. 3164(b). The sanction for violation of this requirement is automatic review of release conditions. 3164(c). The government's motion did not mention the 70-day limit applicable to all defendants ( 3161(c)(1)), the sanction for violation of which is dismissal ( 3162(a)(2)).

3. The defense motions were actually filed on August 15. (A. 12, 17).

4. In fact, even under the prosecutor's erroneous calculation -- excluding everything but May 18 through June 7 and June 21 through August 13 -- 75 days of speedy trial time had passed.

5. The citizen's 911 report that was the basis for the radio run in fact described the man with the gun as wearing a multicolored jacket and a baseball cap with a red Orioles insignia. (A. 24). The jury never learned that Mr. xxxxx did not fit the citizen's description (he was wearing a black shirt, green jacket, and blue jeans) (Tr. 134), because the government succeeded in excluding the 911 tape in limine. (Tr. 4-8; A. 24-27).

6. Despite this testimony, the court sustained the government's objection to defense counsel's statement in closing that "[Catterton] told you, 'I approximate that,' because something might be wrong with the equipment." (Tr. 453).

7. This testimony was supported by photographs the police had taken in which there were skidmarks so close to the sidewalk that Schumacher conceded that if those marks belonged to the car that he had heard screech, the bag would not have been visible to him. (Tr. 279-84).

8. The Ninth Circuit rejected Commerce Clause challenges to the schoolyard statute in two pre-Lopez decisions. United States v. McDougherty, 920 F.2d 569, 571-72 (9th Cir. 1990); United States v. Thornton, 901 F.2d 738, 741 (9th Cir. 1990). The Seventh and Fifth Circuits have upheld 860(a) since Lopez. United States v. Rogers, 1996 WL 399850, *11-12 (7th Cir. July 17, 1996); United States v. Clark, 67 F.3d 1154, 1165-66 (5th Cir. 1995), cert. denied, 116 S. Ct. 1432 (1996).

9. At least 46 states regulate the distribution of drugs on or near school grounds. See, e.g., Ala. Code 13A-12-250; Alaska Stat. 11.71.030(b); Ariz. Rev. Stat. Ann. 13-3411(A)(2).

10. In light of this authority, the district court erred as a matter of law in concluding that the clock did not begin to run until the May 17 arraignment on the indictment. (8/16 Tr. 6).

11. It does not appear that the extension of the motions deadline qualifies as a "continuance" in any event. The time during which motions are being prepared is not ordinarily excluded and there is no indication that the trial date was pushed back by the granting of the extra days.

12. The testimony was that the bag landed 6-10 feet into the street. (Tr. 145, 182, 191, 267-68, 271). No one gave any estimate as to how far Mr. xxxxx was from the street when he threw

the bag. According to the diagram admitted into evidence as Government's Exhibit 1 (currently being held for safekeeping by government counsel), Mr. xxxxx threw the bag from the grassy area along the sidewalk. If, as Officer Greene testified, that diagram is "a fair approximation of the rough scale of things" (Tr. 143), the distance from where Mr. xxxxx threw the bag to where it landed appears to be almost the width of two car lanes. See Tr. 295-96 (12th Street is a four-lane road).

13. The measurement was begun "[a]bout mid block." (Tr. 305). See also Gov't. Exhibit 1 (red dot indicating where bag landed is precisely halfway between G and I Streets). Because the 700 block of 12th Street is twice as long as an ordinary block -- running from G to I Streets without any break for H Street -- the mid-point of the 700 block is actually a full city block from either corner. Gov't. Exhibit 1.

14. See Tr. 123 (prosecutor's opening statement: "And they walked -- they didn't even do it as the crow flies. They went around blocks, and around corners, to the school and still came out less than 1,000 feet, measuring to two different doors of the school; one less than 1,000 feet, one less than 900."); Tr. 307 (eliciting testimony from Catterton that the distance he walked would be greater than "how a crow would fly"); Tr. 439 (prosecutor's closing argument: "And, in fact, as you know, he erred in favor of the defense in the way he measured. He did it as the person walks, around corners and angles, not the more direct route, as the crow flies").

15. The mechanism that actually calculates the distance is not visible but is inside of a box which is positioned between two wheels. The odometer readout is on top of the box. (Tr. 321).

16. The testimony in United States v. Bowlding, Appeal No. 94-3087, Crim. No. 93-416 (JHG), shows how simple it is to put in evidence of a reliable measurement (2/7/94 Bowlding Tr. 285):

Q How do you know that that instrument was accurate?

A Well, through the police department I don't know, so for my own safety, what I do is before and after each measurement I calibrate it. And how I calibrate it is I take a separate tape measure, run the tape along the ground. I did this in the hallway of my office. Ran the tape along the ground, measured, and then check the meter against the measurements on the tape. I did it five times. And then I go out to the scene [and take the measurement] and went back to the station, [and] checked the meter again to make sure it was still accurate.

17. Looking at the extrapolation another way, Officer Catterton testified that, for all he knew, the measuring wheel reading could have been only 80% of the actual distance (a reading of 8 feet when the distance was really 10 feet). His reading of 825 feet could therefore have represented an actual distance of 1031 feet, since 80% of 1031 is 825.

18. A reasonable doubt is a doubt that would "cause a reasonable person to hesitate or pause in the graver or more important transactions of life." Criminal Jury Instructions for the District of Columbia (RedBook), Instruction 2.09 at p. 76 (4th ed. 1993). Suppose a reasonable person knew that he had to travel to a certain remote (and gas-stationless) location in order to prevent conviction of an innocent person and that he knew that his gas tank would take him exactly 1,000 miles. If, using a 10-year-old map measuring wheel that had been bouncing around the back of his trunk, he measured the distance on the map as 825 miles but thought from eyeballing it that it could be 1031 miles or more, any reasonable person would have the kind of doubt that would cause him to hesitate before venturing out without an extra can of gasoline.

19. The issue would obviously be different if the margin of error evidence had come from someone other than Catterton. If Catterton had denied any margin of error or testified to a margin of error too small to make a difference in the outcome, the jury would of course have been free to disregard any other evidence indicating a material margin of error. See People v. Gustafson, 551 N.E.2d 826, 834 (Ill. App. Ct. 1990) (jury was free to reject defense expert's margin of error testimony); State v. Hvistendahl, 405 N.W.2d 273 (Neb. 1987) (trier of fact is entitled to choose between conflicting margins of error). But here, Catterton's reading was offered with the qualification that it could be inaccurate to a degree that was legally significant.