     05-5985-cr
     United States v. Wilson
 1
 2                        UNITED STATES COURT OF APPEALS
 3
 4                             FOR THE SECOND CIRCUIT
 5
 6                                August Term, 2007
 7
 8
 9   (Argued: August 29, 2007               Decided: September 24, 2007)
10
11                              Docket No. 05-5985-cr
12
13   - - - - - - - - - - - - - - - - - - - -x
14
15   UNITED STATES OF AMERICA,
16
17                       Appellee,
18
19                -v.-                                     05-5985-cr
20
21   MALETHA WILSON,
22
23                       Defendant-Appellant.
24
25   - - - - - - - - - - - - - - - - - - - -x
26

27         Before:             JACOBS, Chief Judge, KATZMANN, and HALL,
28                             Circuit Judges.
29
30         Petitioner Maletha Wilson appeals from a judgment of

31   conviction on two counts of 21 U.S.C. § 856(a)(2) in the

32   United States District Court for the Western District of New

33   York, Siragusa, J.         Affirmed.

34                                      JONATHAN SVETKEY, Watters &
35                                      Svetkey, LLP, New York, New
36                                      York, for Appellant.
37
 1                               BRADLEY E. TYLER, Assistant
 2                               United States Attorney, of
 3                               counsel (Terrance P. Flynn,
 4                               United States Attorney, Western
 5                               District of New York, on the
 6                               brief), United States Attorney’s
 7                               Office for the Western District
 8                               of New York, Rochester, New
 9                               York , for Appellee.
10
11   PER CURIAM:
12
13       Defendant-Appellant Maletha Wilson appeals from a

14   judgment of conviction entered in the United States District

15   Court for the Western District of New York (Siragusa, J.),

16   convicting her after a jury trial of two counts of knowingly

17   and intentionally making her residence available for use for

18   the purpose of unlawfully manufacturing, storing,

19   distributing, or using a controlled substance, in violation

20   of 21 U.S.C. § 856(a)(2).   She shared two apartments with a

21   drug dealer, and acknowledges that there were drugs, along

22   with drug-related paraphernalia, at both premises; but she

23   argues that the evidence was insufficient chiefly on the

24   ground that the government failed to prove that she herself

25   intended that the premises would be used for the unlawful

26   purpose.

27



                                   2
1                                BACKGROUND

2        On October 3, 2002, Rochester police officers arrested

3    one Yusef Blocker outside 323 Arnett Boulevard, where he was

4    living with Wilson.     Wilson allowed the police to enter her

5    apartment, told them that she wanted to check on her baby in

6    a back bedroom, and was followed there by the police.

7    There, they saw--in plain view--a razor, a plate, and two

8    plastic bags containing a white rock substance.     At trial,

9    Wilson stipulated that the substance was 12.836 grams of

10   cocaine base.     Also in the bedroom were unused Ziploc bags

11   and a razor blade in the baby’s coat.

12       On May 7, 2004, Rochester police officers executed a

13   search warrant at 35 Jackson Street, where Wilson was then

14   living.    No one was present when the officers entered and

15   found a digital scale and unused Ziploc bags in the master

16   bedroom closet.     In another bedroom, the officers found a

17   cigar box containing a substance which they suspected was

18   cocaine.    At trial, Wilson stipulated that the substance

19   consisted of 61.690 grams of powder cocaine and 31.648 grams

20   of cocaine base.

21       On February 23, 2005, Wilson was interviewed by a


                                     3
1    special agent of the Bureau of Alcohol, Tobacco and

2    Firearms.     She said that she was living with Yusef Blocker

3    in the apartment on Arnett Boulevard when it was searched in

4    October 2002, and that she was living with Blocker at 35

5    Jackson Street when it was searched in May 2004.     Evidence

6    at trial also indicated that her name was on both leases.

7    The Department of Social Services paid half the rent (and

8    her mother the other half) at each location.

9

10                               DISCUSSION

11       Wilson argues that the evidence against her was

12   insufficient to support her conviction.     A defendant

13   challenging the sufficiency of the evidence “bears a heavy

14   burden.”    United States v. Griffith, 284 F.3d 338, 348 (2d

15   Cir. 2002).     “Not only must the evidence be viewed in the

16   light most favorable to the government and all permissible

17   inferences drawn in its favor, but if the evidence, thus

18   construed, suffices to convince any rational trier of fact

19   of the defendant’s guilt beyond a reasonable doubt,” the

20   conviction must stand.     United States v. Martinez, 54 F.3d

21   1040, 1042 (2d Cir. 1995) (internal citations omitted).


                                     4
1                                  I

2        In the main, Wilson contends that under 21 U.S.C. §

3    856(a)(2), the government had to prove that, in making her

4    home available to others, it was Wilson’s own purpose to

5    allow them to engage in narcotics trafficking there.     This

6    is a fundamental misreading of subsection (a)(2).

7        Section 856(a)(2) makes it unlawful for a person to:

 8            manage or control any place, whether
 9            permanently or temporarily, either as an
10            owner, lessee, agent, employee, occupant, or
11            mortgagee, and knowingly and intentionally
12            rent, lease, profit from, or make available
13            for use, with or without compensation, the
14            place for the purpose of unlawfully
15            manufacturing, storing, distributing, or using
16            a controlled substance.
17
18   The law thus prohibits a person with a premises from

19   knowingly and intentionally allowing its use for the purpose

20   of manufacturing, storing or distributing drugs.     The intent

21   of the prohibition is “to prohibit an owner from providing a

22   place for illegal conduct, and yet to escape liability on

23   the basis either of lack of illegal purpose, or of

24   deliberate ignorance”.   United States v. Tamez, 941 F.2d

25   770, 774 (9th Cir. 1991).   Accordingly, “under § 856(a)(2),

26   the person who manages or controls the building and then


                                   5
1    rents to others, need not have the express purpose in doing

2    so that drug related activity take place; rather such

3    activity is engaged in by others (i.e., others have the

4    purpose).”     United States v. Chen, 913 F.2d 183, 190 (5th

5    Cir. 1990).     The phrase “for the purpose,” as used in this

6    provision, references the purpose and design not of the

7    person with the premises, but rather of those who are

8    permitted to engage in drug-related activities there.

9          This interpretation is compelled by the preceding

10   subsection, 856(a)(1), in which the phrase “for the purpose”

11   applies to the intent of the person with an interest in the

12   premises.     That is, subsection 856(a)(1) makes it illegal

13   to:

14               knowingly open, lease, rent, use, or maintain
15               any place, whether permanently or temporarily,
16               for the purpose of manufacturing,
17               distributing, or using any controlled
18               substance.
19
20   Under Wilson’s reading, both subsections--(a)(1) and (a)(2)

21   --would proscribe the same conduct.     But it would be

22   impermissible to conflate these two subsections, rendering

23   one superfluous.     See Williams v. Taylor, 529 U.S. 362, 404

24   (2000) (“It is . . . a cardinal principle of statutory



                                     6
1    construction that we must give effect, if possible, to every

2    clause and word of a statute.” (internal citation and

3    quotation marks omitted)).

4

5                                    II

6        Wilson also challenges the sufficiency of the evidence

7    to prove that she knew her residence was being used for drug

8    trafficking.   Our review of the trial record discloses

9    sufficient evidence to support Wilson’s conviction.     A

10   cooperating witness testified that on numerous occasions, he

11   and Blocker engaged in drug manufacturing activities at both

12   of Wilson’s residences, and that he overheard Blocker ask

13   Wilson for Ziploc bags and a Pyrex dish, two items used for

14   those activities.   Wilson admitted to the police that she

15   knew Blocker sold drugs.     And crack cocaine, cocaine powder

16   and drug paraphernalia were found in her residences,

17   including a razor and Ziploc bags in baby clothes in her

18   bedroom.   Given this evidence, a reasonable jury could--and

19   did--conclude that Wilson knowingly allowed others to use

20   those residences for the manufacture, storage and

21   distribution of narcotics.


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1       For the foregoing reasons, the judgment of the district

2   court is affirmed.




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