The opinion of the court was delivered by: SHADUR
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
On May 6, 1991 this Court issued its oral ruling granting the motion of defendant Camilo Testa ("Testa") to strike from Count Six of the indictment in this case the references to Theodore Roosevelt Senior High School and 21 U.S.C. § 845a ("Section 845a").
On June 5 the United States filed a motion for reconsideration of that ruling, and this brief memorandum opinion and order explains the reasons for this Court's denial of that motion.
In its initial oral ruling, this Court analogized the task of reading the Section 845a language to the type of statutory construction to which courts have attached the label reddendo singula singulis, even though this Court recognized that Section 845a really did not present an instance of matching up multiple antecedent and multiple consequent terms.
Although the concept suggested by the maxim was thus not literally applicable to the parsing of Section 845a, it is worth noting that the Illinois Supreme Court has attached that same label to a situation (much like the present one) in which the task of statutory construction involves an inquiry into which of two antecedents a single later phrase or clause addresses ( In re Thompson, 79 Ill. 2d 262, 265, 402 N.E.2d 609, 611, 37 Ill. Dec. 607 (1980)). In any event, if this Court's mention of the Latin maxim had somehow misled the prosecutor into the current motion to reconsider, apologies would be in order -- but a reading of the United States' current memorandum reflects that the persistent misreading of the operative Section 845a language remains entirely that of the prosecutor.
On the facts of this case, Testa and his codefendants allegedly kept a large quantity of cocaine (20 kilograms!) in a so-called stash house that was located within 1,000 feet of a public high school. That location however was maintained only for storage purposes -- counsel for the government concedes that the United States has no evidence from which an intention to distribute the cocaine near the high school was involved (rather the situation was one in which defendants assertedly intended to move the cocaine, when the time for distribution arrived, from the stash house to a location away from the high school for that purpose).
Here is the conduct for which Section 845a (and now Section 860) provides an enhanced penalty:
Any person who violates section 841(a)(1) . . . of this title 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. . . .
At the first step of analysis, the government has the reading of the statute right (Government Response Mem. filed April 25, 1991 at 2):
An examination of the statute, as amended, shows Congress intended to provide an enhanced penalty for three separate and distinct offenses, specifically:
1) distributing a controlled substance in or on, or within one thousand feet of a school;
2) possessing with intent to distribute a controlled substance in or on, or within one thousand feet of a school; and
3) manufacturing a controlled substance in or on, or within one thousand feet of a school.
But where the United States Attorney's office went wrong the first time around, and where it continues to go wrong in its motion to reconsider, is in the proper reading of the statutory language that proscribes the second of those three offenses -- the one at issue here.
There is no dispute that each of the first and third alternatives under Section 845a addresses some active conduct in proximity to a school--the actual distribution or manufacture of a controlled substance. Indeed, although to be sure a statute's title is not viewed as part of the statutory language, it is worth noting that Section ...