United States v. Wilson 1

05-5985-cr
United States v. Wilson
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
August Term, 2007 6
7
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(Argued: August 29, 2007 Decided: September 24, 2007) 9
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Docket No. 05-5985-cr 11
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UNITED STATES OF AMERICA, 15
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Appellee, 17
18
-v.- 05-5985-cr 19
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MALETHA WILSON, 21
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Defendant-Appellant. 23
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Before: JACOBS, Chief Judge, KATZMANN, and HALL, 27
Circuit Judges. 28
29
Petitioner Maletha Wilson appeals from a judgment of 30
conviction on two counts of 21 U.S.C. § 856(a)(2) in the 31
United States District Court for the Western District of New 32
York, Siragusa, J. Affirmed. 33
JONATHAN SVETKEY, Watters & 34
Svetkey, LLP, New York, New 35
York, for Appellant. 36
37

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BRADLEY E. TYLER, Assistant 1
United States Attorney, of 2
counsel (Terrance P. Flynn, 3
United States Attorney, Western 4
District of New York, on the 5
brief), United States Attorney’s 6
Office for the Western District 7
of New York, Rochester, New 8
York, for Appellee. 9
10
PER CURIAM: 11
12
Defendant-Appellant Maletha Wilson appeals from a 13
judgment of conviction entered in the United States District 14
Court for the Western District of New York (Siragusa, J.), 15
convicting her after a jury trial of two counts of knowingly 16
and intentionally making her residence available for use for 17
the purpose of unlawfully manufacturing, storing, 18
distributing, or using a controlled substance, in violation 19
of 21 U.S.C. § 856(a)(2). She shared two apartments with a 20
drug dealer, and acknowledges that there were drugs, along 21
with drug-related paraphernalia, at both premises; but she 22
argues that the evidence was insufficient chiefly on the 23
ground that the government failed to prove that she herself 24
intended that the premises would be used for the unlawful 25
purpose. 26
27

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BACKGROUND 1
On October 3, 2002, Rochester police officers arrested 2
one Yusef Blocker outside 323 Arnett Boulevard, where he was 3
living with Wilson. Wilson allowed the police to enter her 4
apartment, told them that she wanted to check on her baby in 5
a back bedroom, and was followed there by the police. 6
There, they saw--in plain view--a razor, a plate, and two 7
plastic bags containing a white rock substance. At trial, 8
Wilson stipulated that the substance was 12.836 grams of 9
cocaine base. Also in the bedroom were unused Ziploc bags 10
and a razor blade in the baby’s coat. 11
On May 7, 2004, Rochester police officers executed a 12
search warrant at 35 Jackson Street, where Wilson was then 13
living. No one was present when the officers entered and 14
found a digital scale and unused Ziploc bags in the master 15
bedroom closet. In another bedroom, the officers found a 16
cigar box containing a substance which they suspected was 17
cocaine. At trial, Wilson stipulated that the substance 18
consisted of 61.690 grams of powder cocaine and 31.648 grams 19
of cocaine base. 20
On February 23, 2005, Wilson was interviewed by a 21

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special agent of the Bureau of Alcohol, Tobacco and 1
Firearms. She said that she was living with Yusef Blocker 2
in the apartment on Arnett Boulevard when it was searched in 3
October 2002, and that she was living with Blocker at 35 4
Jackson Street when it was searched in May 2004. Evidence 5
at trial also indicated that her name was on both leases. 6
The Department of Social Services paid half the rent (and 7
her mother the other half) at each location. 8
9
DISCUSSION 10
Wilson argues that the evidence against her was 11
insufficient to support her conviction. A defendant 12
challenging the sufficiency of the evidence “bears a heavy 13
burden.” United States v. Griffith, 284 F.3d 338, 348 (2d 14
Cir. 2002). “Not only must the evidence be viewed in the 15
light most favorable to the government and all permissible 16
inferences drawn in its favor, but if the evidence, thus 17
construed, suffices to convince any rational trier of fact 18
of the defendant’s guilt beyond a reasonable doubt,” the 19
conviction must stand. United States v. Martinez, 54 F.3d 20
1040, 1042 (2d Cir. 1995) (internal citations omitted). 21

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I 1
In the main, Wilson contends that under 21 U.S.C. § 2
856(a)(2), the government had to prove that, in making her 3
home available to others, it was Wilson’s own purpose to 4
allow them to engage in narcotics trafficking there. This 5
is a fundamental misreading of subsection (a)(2). 6
Section 856(a)(2) makes it unlawful for a person to: 7
manage or control any place, whether 8
permanently or temporarily, either as an 9
owner, lessee, agent, employee, occupant, or 10
mortgagee, and knowingly and intentionally 11
rent, lease, profit from, or make available 12
for use, with or without compensation, the 13
place for the purpose of unlawfully 14
manufacturing, storing, distributing, or using 15
a controlled substance. 16
17
The law thus prohibits a person with a premises from 18
knowingly and intentionally allowing its use for the purpose 19
of manufacturing, storing or distributing drugs. The intent 20
of the prohibition is “to prohibit an owner from providing a 21
place for illegal conduct, and yet to escape liability on 22
the basis either of lack of illegal purpose, or of 23
deliberate ignorance”. United States v. Tamez, 941 F.2d 24
770, 774 (9th Cir. 1991). Accordingly, “under § 856(a)(2), 25
the person who manages or controls the building and then 26

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rents to others, need not have the express purpose in doing 1
so that drug related activity take place; rather such 2
activity is engaged in by others (i.e., others have the 3
purpose).” United States v. Chen, 913 F.2d 183, 190 (5th 4
Cir. 1990). The phrase “for the purpose,” as used in this 5
provision, references the purpose and design not of the 6
person with the premises, but rather of those who are 7
permitted to engage in drug-related activities there. 8
This interpretation is compelled by the preceding 9
subsection, 856(a)(1), in which the phrase “for the purpose” 10
applies to the intent of the person with an interest in the 11
premises. That is, subsection 856(a)(1) makes it illegal 12
to: 13
knowingly open, lease, rent, use, or maintain 14
any place, whether permanently or temporarily, 15
for the purpose of manufacturing, 16
distributing, or using any controlled 17
substance. 18
19
Under Wilson’s reading, both subsections--(a)(1) and (a)(2) 20
--would proscribe the same conduct. But it would be 21
impermissible to conflate these two subsections, rendering 22
one superfluous. See Williams v. Taylor, 529 U.S. 362, 404 23
(2000) (“It is . . . a cardinal principle of statutory 24

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construction that we must give effect, if possible, to every 1
clause and word of a statute.” (internal citation and 2
quotation marks omitted)). 3
4
II 5
Wilson also challenges the sufficiency of the evidence 6
to prove that she knew her residence was being used for drug 7
trafficking. Our review of the trial record discloses 8
sufficient evidence to support Wilson’s conviction. A 9
cooperating witness testified that on numerous occasions, he 10
and Blocker engaged in drug manufacturing activities at both 11
of Wilson’s residences, and that he overheard Blocker ask 12
Wilson for Ziploc bags and a Pyrex dish, two items used for 13
those activities. Wilson admitted to the police that she 14
knew Blocker sold drugs. And crack cocaine, cocaine powder 15
and drug paraphernalia were found in her residences, 16
including a razor and Ziploc bags in baby clothes in her 17
bedroom. Given this evidence, a reasonable jury could--and 18
did--conclude that Wilson knowingly allowed others to use 19
those residences for the manufacture, storage and 20
distribution of narcotics. 21

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For the foregoing reasons, the judgment of the district 1
court is affirmed. 2

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