United States v. West

FILED
United States Court of Appeals
Tenth Circuit

February 14, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 11-3070
WILLIE D. WEST,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 2:09-CR-20050-CM-1)

Barry R. Grissom, United States Attorney, and Trent M. Krug, Assistant United
States Attorney, Kansas City, Kansas, on the brief, for Plaintiff-Appellee.

Carl Folsom, III, Bell Folsom, P.A., Lawrence, Kansas, on the brief, for Defendant-
Appellant.

Before BRISCOE, Chief Judge, BALDOCK and LUCERO, Circuit Judges. *

BALDOCK, Circuit Judge.

In tandem, 21 U.S.C. §§ 841(a) & 860(a) proscribe distributing controlled

substances within 1000 feet of a “playground.” Similarly, §§ 856(a)(1) & 860(a)

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
in tandem proscribe maintaining a place within 1000 feet of a “playground” for

the purpose of distributing controlled substances. Subsection 860(e)(1) defines

“playground” as an outdoor public facility “containing three or more separate

apparatus intended for the recreation of children including, but not limited to, sliding

boards, swingsets, and teeterboards.” In this appeal, we must determine whether the

Government established that the public park near where Defendant Willie D. West

engaged in illicit drug activity contained the three “separate apparatus” necessary

to constitute a “playground” within the meaning of § 860(a).

I.

A confidential informant purchased controlled substances from Defendant in

controlled buys. Some of these purchases occurred at Defendant’s apartment in

Lawrence, Kansas. Defendant’s apartment was within 1000 feet of Holcom Park.

A grand jury indicted Defendant on four counts related to Holcom Park and § 860(a).

One count charged Defendant with distributing cocaine base within 1000 feet of a

public playground in violation of 21 U.S.C. §§ 841(a) & 860(a). One count charged

Defendant with distributing marijuana within 1000 feet of a public playground in

violation of the same. One count charged Defendant with possessing marijuana

within 1000 feet of a public playground with an intent to distribute in violation of

the same. And one count charged Defendant with maintaining a place within 1000

feet of a public playground for the purpose of distributing marijuana in violation of

§§ 856(a)(1) & 860(a). Defendant proceeded to jury trial.

2
 As part of the Government’s case-in-chief, an officer testified:

Holcom Park is . . . a city park complex that includes . . . four baseball
fields, two soccer fields, two tennis courts, . . . two handball courts, a
volleyball court and a covered area for picnics and then a children’s
park area with . . . a jungle-gym apparatus and another set of swings,
and then a jungle-gym apparatus that sits next to the first one connected
by a bar that you could swing across.

Rec. Vol. 2, at 114. Defendant never challenged the Government’s argument that

these fields and courts existed in Holcom Park. At the close of the Government’s

case, Defendant moved for a judgment of acquittal, arguing the evidence failed to

establish that Holcom Park is a “playground” within the meaning of § 860(a). The

district court denied Defendant’s motion. The jury subsequently returned a verdict

of guilty on all counts. 1 Defendant next filed a motion for a new trial, renewing his

argument that Holcom Park is not a “playground.” The district court again denied

Defendant’s motion. In a written order, the court held the Government’s evidence

“relating to the park was sufficient to satisfy the statutory definition of ‘playground’

and to support the jury’s verdicts.” United States v. West, 2010 WL 2949609, at *3

(D. Kan. July 22, 2010) (unpublished). The court referenced the Government’s

argument that “[e]ven if the jury found the [jungle gyms] constituted one apparatus,

1
The jury convicted Defendant on eight drug-related counts in total. The
district court ran Defendant’s 48-month sentences on all counts currently. Although
Defendant challenges only four counts of conviction related to § 860(a), we still
must consider his argument on the merits because a “separate conviction, apart from
the concurrent sentence, has potential adverse collateral consequences that may not
be ignored.” Ball v. United States, 470 U.S. 856, 865 (1985).

3
. . . the . . .baseball diamonds, volleyball courts, and Holcom’s other amenities are

each apparatus intended for the recreation of children.” Id. Defendant appealed.

We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.

II.

On appeal, Defendant continues to argue Holcom Park does not meet

§ 860(e)(1)’s definition of a “playground,” and thus the Government’s evidence

necessarily does not support his § 860(a) convictions. Defendant contends the two

jungle gyms connected by a set of monkey bars are one apparatus and the swingset

another. According to Defendant, “[e]ither a jungle gym or a swingset would

certainly qualify as an ‘apparatus’ under 21 U.S.C. § 860(e)(1). However, the play

area at Holcom Park does not meet the statutory definition of a playground, because

there were not three or more separate apparatus intended for the recreation of

children.” Defendant argues that for the evidence to support his convictions, the

recreational fields and courts would have to be “separate apparatus.” Defendant does

not dispute that those fields and courts are “intended for the recreation of children.”

But according to Defendant, the fields and courts are not separate apparatus because

they are not similar to the playground apparatus listed in § 860(e)(1)’s definition,

i.e., “sliding boards, swingsets, and teeterboards.” We consider the district court’s

construction of § 860(a) de novo. See United States v. Martinez-Haro, 645 F.3d

1228, 1232 (10th Cir. 2011). We rely on our construction of § 860(a) to consider de

novo whether the evidence was sufficient to sustain the jury’s verdict. See United

4
States v. Acosta-Gallardo, 656 F.3d 1109, 1123 (10th Cir. 2011).

A.

Our only encounter with § 860(a) came in United States v. Smith, 13 F.3d 380,

382 (10th Cir. 1993). We construed § 860(a) as an offense, rather than a sentencing

enhancement, “which has as an element of proof that the distribution occurred within

1,000 feet of a protected place.” Id. at 382. We held the Government’s evidence

that a park consisted of “playgrounds, walking paths, [and] gazebos,” did “not meet

the requirements of the definition of a playground” set forth in § 860(e)(1) (formerly

subsection (d)). Id. Accordingly, “a reasonable jury could not convict [defendant]

beyond a reasonable doubt of an offense which requires activity ‘within 1,000 feet

of a . . . playground’ as an element.” Id. (ellipses in original).

The Fourth Circuit next interpreted § 860(a) in United States v. Parker, 30

F.3d 542 (4th Cir. 1994). In that case, the evidence of a “playground” consisted of

defendant’s testimony that he had met an accomplice “at a basketball court” in the

park, and the accomplice’s testimony that he met defendant “while playing one-

on-one basketball” in the park. Id. at 545. Defendant argued this evidence was

insufficient to establish “that his § 841 violation occurred within 1000 feet of a

‘playground’ as defined in § 860.” Id. at 551. The Government maintained a

reasonable jury could infer “the park ‘had at least two separate baskets and a

blacktop where kids could play hopscotch as well as other games.’” Id. 552. In

other words, the Government argued “the two baskets plus the one blacktop

5
constitute[d] the requisite ‘three or more separate apparatus.’” Id. The court held

that on the evidence presented no rational jury could find beyond a reasonable doubt

that defendant possessed crack within 1000 feet of a “playground,” as Congress

defined that term:

The Government’s argument is too cute by half (or perhaps two-thirds).
The jury could not reasonably have inferred that there were two
basketball hoops in the park when [the accomplice] testified only to
playing “one-on-one” (i.e., half-court) basketball there (as opposed to
full-court basketball).

Furthermore, it is quite a stretch to consider a blacktop a “separate
apparatus intended for the recreation of children.” . . . [A] mere surface
paved with blacktop – e.g., an interstate highway – is surely not “an
apparatus intended for the recreation of children.” And [the
Government] violate[s] the age-old canon of ejusdem generis by
assuming that a blacktop is akin to the “sliding boards, swingsets, and
teeterboards” that Congress specified . . . .

Id. at 552–53.

In United States v. Johnson, 1997 WL 811737 (5th Cir. Dec. 13, 1997) (per

curiam) (unpublished), a panel of the Fifth Circuit weighed in on § 860(a)’s meaning.

Defendant challenged his convictions related to the distribution of controlled

substances “within 1000 feet of a playground.” Id. at *1. According to defendant,

the evidence was insufficient to support the jury’s finding that a group of little

league baseball fields constituted a “playground.” Specifically, Defendant contended

“that the evidence at trial of four backstops and two concession stands did not

sufficiently demonstrate three or more separate apparatus.” Id. The court disagreed

and summarily concluded “evidence of four baseball backstops, three of which were

6
for either little league or pee-wee little league fields, was more than sufficient

to prove the existence of three separate apparatus intended for the recreation of

children.” Id.

Most recently, the Ninth Circuit construed § 860(a) in United States v. Migi,

329 F.3d 1085 (9th Cir. 2003). Like the defendants in Smith, Parker, and Johnson,

defendant claimed the evidence was insufficient to sustain his § 860(a)-related

convictions for drug-related offenses occurring within 1000 feet of a “playground.”

The park in that case “contained a swingset, a basketball court, a softball field, and

a skating rink.” Id. at 1086–87. Defendant conceded the swingset was an

“apparatus” under § 860(e)(1)’s definition of “playground.” He claimed, however,

that the basketball court, the softball field, and the skating rink were not “apparatus.”

The court defined “apparatus” as “a collection or set of materials or appliances

designed for a particular use.” Id. at 1088 (internal ellipses and brackets omitted)

(quoting Webster’s Third New Int’l Dictionary 102 (unabridged 1986)). Based on

that definition, the court rejected defendant’s claim and held “basketball courts,

softball fields, and skating rinks are each ‘apparatus intended for the recreation of

children,’” because “each consist[s] of a collection or set of materials or appliances

designed for recreational use.” Id. at 1088–89. The court reasoned that “no legal

difference” existed between (1) “sliding boards, swingsets, and teeterboards” and (2)

“basketball courts, softball fields, and skating rinks:” “All are ‘apparatus intended

for the recreation of children.’” Id. at 1088. According to the court, defendant’s

7
reliance on the principle of ejusdem generis was misplaced:

The principle of ejusdem generis does not apply here because the
statute’s plain meaning is apparent. An application of ejusdem generis
would narrow Congress’s definition of “children” from people “under
18 years of age” to those young enough to be able to play on swingsets,
slides, and teeter-boards.[2] In addition, we need not apply ejusdem
generis because Congress modified its list of examples with the phrase
“including, but not limited to.” That phrase “mitigates the sometimes
unfortunate results of rigid application of the ejusdem generis
rule.” Therefore, we will not apply the ejusdem generis principle to
§ 860(e)(1)’s list of examples.

Id. at 1088–89 (internal brackets and footnotes omitted).

B.

The foregoing recitation of the law makes the outcome of this case painfully

apparent. Defendant does not dispute that the swingset in Holcom Park is one

“apparatus” for purposes of § 860(a) & (e)(1). We also assume for the sake of

argument that the park’s two jungle-gyms connected by a set of monkey bars

constitute only one “apparatus.” That leaves us with “four baseball fields, two

soccer fields, two tennis courts, . . . two handball courts, [and] a volleyball court,”

none of which, Defendant points out, are much like the “sliding boards, swingsets,

and teeterboards” listed in § 860(e)(1). But neither are basketball hoops, baseball

2
In subsection (c) of § 860, Congress refers to “children” as “person[s] under
18 years of age.” That subsection, which is entitled “[e]mploying children to
distribute drugs near schools and playgrounds,” proscribes using “a person under 18
years of age to violate [§ 860(a)].” 21 U.S.C. § 860(c). “The normal rule of
statutory construction assumes that identical words used in different parts of the
same act are intended to have the same meaning.” Sorenson v. Sec’y of the
Treasury, 475 U.S. 851, 860 (1986) (internal quotations omitted).

8
backstops, or softball fields much like the apparatus specifically enumerated in

§ 860(e)(1). Nonetheless, the Fourth Circuit in Parker, while rejecting the idea that

a “blacktop” is an “apparatus” within the meaning of § 860(e)(1), certainly suggested

that a basketball hoop is an “apparatus”: “The Government’s argument is too cute

by half . . . . The jury could not reasonably have inferred that there were two

basketball hoops in the park . . . .” Parker, 30 F.3d at 552. Meanwhile, the Fifth

Circuit in Johnson squarely held a baseball backstop is an “apparatus.” Johnson,

1997 WL 811737, at *1. And in Migi, the Ninth Circuit held the totality of a softball

field, among other things, is an “apparatus.” Migi, 329 F.3d at 1089.

In construing § 860(a) & (e)(1), we first and foremost look to the statute’s

language to ascertain Congressional intent. See Russell v. United States, 551 F.3d

1174, 1178 (10th Cir. 2008); see also United States v. Sprenger, 625 F.3d 1305, 1307

(10th Cir. 2010) (“Our interpretation of a statute begins with its plain language.”).

“The language of the statute may not be distorted under the guise of construction, or

so limited by construction as to defeat the manifest intent of Congress.” United

States v. Alpers, 338 U.S. 680, 681–82 (1950). As an interpretative aid, the principle

of ejusdem generis, properly applied, is a canon of construction that “[o]rdinarily . . .

limits general terms which follow specific ones to matters similar to those specified.”

Gooch v. United States, 297 U.S. 124, 128 (1936). But we resort to the principle

“not to obscure and defeat the intent and purpose of Congress, but to elucidate its

words and effectuate its intent.” Alpers, 338 U.S. at 682. “[W]e do not woodenly

9
apply limiting principles every time Congress includes a specific example along with

a general phrase.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227 (2008).

Undoubtedly, Congress’ intent in enacting § 860(a) was “to create drug-free

zones by increasing punishment for drug transactions that occur near places where

children gather.” Johnson, 1997 WL 811737, at *1. A thoughtless application of the

principle of ejusdem generis in construing § 860(e)(1)’s definition of “playground”

would thwart that intent as encompassed within the statute’s plain language. First,

we wholeheartedly agree with the Ninth Circuit that reliance on ejusdem generis to

limit the meaning of “apparatus” in § 860(e)(1) to devices similar to “sliding boards,

swingsets, and teeterboards” would be inconsistent with Congress’ reference to

“children” in § 860(c) as “person[s] under 18 years of age.” Migi, 329 F.3d at

1088–89; see supra n.2. We may safely assume that not many teenagers play on

sliding boards, swingsets, teeterboards, or similar apparatus. Yet teenagers are

considered “children” for purposes of § 860(c). Consequently, we consider them

“children” for purposes of § 860(e)(1) because, absent good reason to the contrary,

“when the same words are used in different sections of the law, they will be given

the same meaning.” See In re Harline, 950 F.2d 669, 674 (10th Cir. 1991). As the

Ninth Circuit aptly observed: “[A]pplication of ejusdem generis [to subsection

(e)(1)] would narrow Congress’s definition of ‘children” from people ‘under 18 years

of age’ to those young enough to be able to play on swingset, slides, and teeter-

boards.” Migi 329 F.3d at 1088–89. But any such definition of “children” for

10
purposes of § 860(e)(1) is unacceptable because it is inconsistent with Congress’

characterization of “children” in § 860(c). 3

Second, courts have historically employed the principle of ejusdem generis to

limit general terms following specific terms. See Black’s Law Dictionary 556 (8th

ed. 2004). In § 860(e)(1), however, Congress did not employ specific terms followed

by general terms in providing examples of “apparatus.” Rather Congress described

“apparatus” as “including, but not limited to, sliding boards, swingsets, and

teeterboards.” 4 21 U.S.C. § 860(e)(1) (emphasis added). In the analogous context

of interpreting a contract that contained the phrase “including, but not limited to,”

then Judge Alito told us that “[t]he rule of ejusdem generis applies only if the

3
While we do not necessarily disagree with the Fourth Circuit’s conclusion
in Parker that a “blacktop” in itself is not an apparatus within the meaning of
§ 860(e)(1)’s definition of “playground,” needless to say we do not agree with its
reliance on the principle of ejusdem generis to reach that conclusion. Parker, 30
F.3d at 553.
4
The concurrence states we fail to acknowledge the “substantial contrary
authority” applying the canon to statutes that use “including, but not limited to.” But
the concurrence cites to only one federal court of appeals decision. United States v.
Philip Morris USA, Inc., 396 F.3d 1190, 1200 (D.C. Cir. 2005). The majority in
Philip Morris engaged in no analysis of ejusdem generis and did not justify its
application of the doctrine. The dissent doubted the doctrine should apply given
Congress’ “expansive language” of “including, but not limited to.” Id. at 1224
(Tatel, J. dissenting). Importantly, the Supreme Court has clearly indicated that the
principle applies “when a statute sets out a series of specific items ending with a
general term.” Hall Street Assoc., LLC v. Mattel, Inc., 552 U.S. 576, 586 (2008);
see also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (defining
ejusdem generis as “the statutory canon that where general words follow specific
words in statutory enumeration, the general words are construed to embrace only
objects similar in nature to those objects enumerated by the preceding specific
words.”) (internal citation omitted). Here, we do not have such a statute. Instead,
the statute uses a general phrase and then ends with a series of specific examples.

11
provision in question does not express a contrary intent. Thus, since the phrase

“including, but not limited to” plainly expresses a contrary intent, the doctrine of

ejusdem generis is inapplicable.” Cooper Distrib. Co. v. Amana Refrig., Inc., 63

F.3d 262, 278 (3d Cir. 1995) (Alito, J.). Notably, this is exactly what the Ninth

Circuit told us in Migi, wherein the court refused to apply ejusdem generis “because

Congress modified its list of examples [in § 860(e)(1)] with the phrase ‘including,

but not limited to.’” Migi, 329 F.3d at 1089; see also Cintech Indus. Coatings, Inc.

v. Bennett Indus., Inc., 85 F.3d 1198, 1202–03 (6th Cir. 1996) (following Cooper

Distrib.).

As mentioned above, the Government introduced uncontroverted evidence at

trial that Holcom Park contains “four baseball fields, two soccer fields, two tennis

courts, . . . two handball courts, [and] a volleyball court” in addition to the swingset

and playground equipment. Rec. Vol. 2, at 114. Furthermore, the Government

introduced pictures into evidence which appear to show a baseball backstop

(Government Exhibits 33 and 34). We conclude that this evidence, at a minimum,

would have allowed the jury to reasonably find that the baseball field with the

backstop constituted an “apparatus.” 5 More specifically, the baseball field with the

backstop constituted “a collection or set of materials, instruments, [or] appliances

. . . designed for a particular use.” Webster’s Third New Int’l Dictionary 102 (1981).

5
We need not determine whether the jury reasonably could have inferred that
the other items generally described to exist in Holcom Park, but not shown in the
photographs, constituted “apparatuses.”

12
 Thus, Holcom Park constitutes a “playground” within the meaning of § 860(a)

because it is an outdoor public facility “containing three or more separate apparatus

intended for the recreation of children including, but not limited to, sliding boards,

swingsets, and teeterboards.” 21 U.S.C. § 860(e)(1). We need go no further than

that. Defendant’s convictions are –

AFFIRMED. 6

6
On appeal, Defendant also challenges the district court’s decision to allow
a police officer testifying on behalf of the Government to give his expert opinion that
the marijuana and other items found in Defendant’s apartment were consistent with
the distribution of marijuana. Specifically, Defendant argues the district court
abused its discretion in allowing a police officer with two years of experience
dealing with drug cases to qualify as an expert in drug distribution. United States
v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006) (setting forth the legal
standards under which we review the admission of expert testimony). At trial,
however, the district court qualified the officer as an expert pursuant to Fed. R. Evid.
702, after the officer testified about his background, education, training, and
experience. Rec. Vol. 4, at 30–34. Based thereon, the district court determined the
Government had laid a sufficient foundation for the officer’s expert opinion. Rec.
Vol. 4, at 55–56. The court further determined the officer’s testimony would be
sufficiently reliable based on that foundation. Id. Defendant’s argument that the
district court erred in its assessment is meritless.

13
11-3070, United States v. West

LUCERO, J., concurring in the judgment.

I agree with the majority that the record contains sufficient evidence to

support the jury’s conclusion that Holcom Park contained “three or more separate

apparatus intended for the recreation of children.” 21 U.S.C. § 860(e)(1). I

further agree that a baseball backstop qualifies as “apparatus intended for the

recreation of children” under that statute. (See Majority Op. 12.) I decline to

join the majority opinion, however, because I see no need to hold that the

principle of ejusdem generis does not apply to the statute at issue. As I see it,

“apparatus intended for the recreation of children” encompasses backstops and

related sports structures regardless of whether the canon applies. Because this is

an issue on which courts are split and which could have wide-ranging

consequences, I would avoid the majority’s unqualified pronouncement.

The majority concludes that ejusdem generis does not apply principally

because the statute contains the phrase “including but not limited to.” (See

Majority Op. 11-12.) Although they aptly cite significant support for their

position, my colleagues fail to acknowledge the substantial contrary authority

applying the canon to statutes that use the same phrase. See United States v.

Philip Morris USA, Inc., 396 F.3d 1190, 1200 (D.C. Cir. 2005) (applying the

canon to a list preceded by “including, but not limited to”); BNSF Ry. Co. v. Bhd.

of Locomotive Eng’rs & Trainmen, 595 F. Supp. 2d 722, 734 (N.D. Tex. 2008)

(applying canon to agreement containing “but not limited to” formulation);
Schmidt v. Mt. Angel Abbey, 223 P.3d 399, 404 n.14 (Or. 2009) (applying canon

to statute); Bd. of Chosen Freeholders v. State, 732 A.2d 1053, 1059 (N.J. 1999)

(same). Further, as the majority recognizes, (Majority Op. 6), the Fourth Circuit

applied ejusdem generis to the very statute before us. United States v. Parker, 30

F.3d 542, 553 & n.10 (4th Cir. 1994).

In light of this split, decisive resolution of the issue would be advisable

only if it were necessary to our disposition of the case. I disagree with West’s

contention that application of the canon would exempt the equipment the majority

rightly construes as “apparatus.” His argument depends on a “wooden[]” and

“thoughtless” application of the canon that, as the majority rightly notes,

(Majority Op. 9-10), is entirely prohibited. If, however, we employ ejusdem

generis “not to obscure and defeat the intent and purpose of Congress, but to

elucidate its words and effectuate its intent,” United States v. Alpers, 338 U.S.

680, 682 (1950), it is clear that the sports equipment relied on by the majority

counts as “apparatus intended for the recreation of children” under the statute.

Under ejusdem generis, an “apparatus” would have to belong to the same general

class as the listed items, but it would not have to share all the exact same

characteristics. Backstops, nets, and goals, like sliding boards, swingsets, and

teeterboards, are all structures often found on a playground. Indeed, as the

majority recognizes, application of the canon did not preclude the Fourth Circuit

from concluding that a basketball hoop qualifies as an “apparatus.” (Majority Op.

9 (citing Parker, 30 F.3d at 552).)

2
 After deciding that ejusdem generis does not apply, the majority has no

trouble concluding that “apparatus intended for the recreation of children” easily

encompasses the baseball backstop at Holcom Park. Given the capacious

definition of “apparatus,” that conclusion is clear. But it does suggest the

potential hazard in taking ejusdem generis entirely off the table. Ignoring the

examples of swingsets, teeterboards, and sliding boards, I see nothing in the

statute that would prevent, for instance, a toy truck from qualifying as an

“apparatus intended for the recreation of children,” even though that would seem

absurd and contrary to Congress’ intent. 1 Moreover, the majority’s opinion could

preclude us from applying ejusdem generis to any statute with the words

“including but not limited to,” a potentially wide-ranging issue upon which there

is a split of authority. Because the apparatus identified by the majority qualifies

under the statute regardless of whether the canon applies, I see no need to decide

that issue.

1

The statute only requires that the playground “contain[]” three such apparatus.  
§   860(e)(1).

3