United States v. Safehouse ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-1422
_______________
UNITED STATES OF AMERICA
v.
SAFEHOUSE, a Pennsylvania nonprofit corporation;
JOSÉ BENITEZ, as President and Treasurer of Safehouse
*******************
SAFEHOUSE, a Pennsylvania nonprofit corporation
v.
U.S. DEPARTMENT OF JUSTICE;
WILLIAM P. BARR, in his official capacity
as Attorney General of the United States; and
WILLIAM M. MCSWAIN, in his official capacity as
U.S. Attorney for the Eastern District of Pennsylvania
United States of America, U.S. Department of Justice,
United States Attorney General William P. Barr, and
the United States Attorney for the Eastern District of
Pennsylvania William M. McSwain,
Appellants
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:19-cv-00519)
District Judge: Honorable Gerald A. McHugh
_______________
Argued: November 16, 2020
Before: AMBRO, BIBAS, and ROTH, Circuit Judges
(Filed: January 12, 2021)
_______________
William M. McSwain [ARGUED]
Gregory B. David
John T. Crutchlow
Bryan C. Hughes
Erin E. Lindgren
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellants
2
Ronda B. Goldfein
Yolanda F. Lollis
Adrian M. Lowe
AIDS Law Project of Pennsylvania
1211 Chestnut Street
Suite 600
Philadelphia, PA 19107
Ilana H. Eisenstein [ARGUED]
Courtney G. Saleski
Megan E. Krebs
Ben C. Fabens-Lassen
DLA Piper
1650 Market Street
One Liberty Place, Suite 5000
Philadelphia, PA 19103
Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003
Seth F. Kreimer
University of Pennsylvania School of Law
3501 Chestnut Street
Philadelphia, PA 19104
Counsel for Appellees
3
James G. Mann
Pennsylvania House of Representatives
P.O. Box 202228
Suite B-6 Main Capitol
Harrisburg, PA 17120
Counsel for Amici in support of Appellants Republican
Caucus of the Pennsylvania House of Representatives and
Republican Caucus of the Senate of Pennsylvania
John M. Gore
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
Counsel for Amici in support of Appellants Pat Toomey,
Brian Fitzpatrick, Tom Cotton, John Joyce, Fred Keller,
Mike Kelly, Daniel P. Meuser, Scott Perry, Guy Reschen-
thaler, Lloyd Smucker, and Glenn Thompson
Jeffrey M. Harris
Consovoy McCarthy
1600 Wilson Boulevard, Suite 700
Arlington, VA 22209
Counsel for Amici in support of Appellants Drug Policy
Scholars and Former Government Officials
4
Michael H. McGinley
Justin M. Romeo
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Counsel for Amici in support of Appellants 20 Neighbor-
hood Civic Associations and the Fraternal Order of
Police Lodge 5
Loren L. AliKhan
Office of Attorney General of District of Columbia
Office of the Solicitor General
400 6th Street, N.W., Suite 8100
Washington, D.C. 20001
Counsel for Amici in support of Appellees District of
Columbia, State of California, State of Delaware, State of
Illinois, State of Michigan, State of Minnesota, State of
New Mexico, State of Oregon, State of Vermont, and State
of Virginia
Trevor C. Burrus
Cato Institute
1000 Massachusetts Avenue, N.W.
Washington, D.C. 20001
Counsel for Amici in support of Appellees Cato Institute,
American Civil Liberties Union, and American Civil Lib-
erties Union of Pennsylvania
5
Ezekiel R. Edwards
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, New York 10004
Counsel for Amicus in support of Appellees American
Civil Liberties Union
Mary Catherine Roper
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19102
Counsel for Amicus Appellee American Civil Liberties
Union of Pennsylvania
Michael J. Engle
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102
Counsel for Amici in support of Appellees Dr. Alexis M.
Roth, Dr. Stephen E. Lankenau, and 5th Square
Virginia A. Gibson
Hogan Lovells US
1735 Market Street, 23rd Floor
Philadelphia, PA 19103
Counsel for Amici in support of Appellees King County
Washington, City of New York, City of Seattle, City and
County of San Francisco, and City of Pittsburgh
6
Ellen C. Brotman
Suite 1500
One South Broad Street
Philadelphia, PA 19107
Counsel for Amici in support of Appellees AIDS United,
American Medical Association, Association for Multidis-
ciplinary Education and Research in Substance Use and
Addiction, Association of Schools and Programs of Public
Health, California Society of Addiction Medicine, Drug
Policy Alliance, Foundation for AIDS Research, Harm
Reduction Coalition, National Alliance of State and Terri-
torial AIDS Directors, Network for Public Health, Penn-
sylvania Medical Society, Philadelphia County Medical
Society, Positive Womens Network, Treatment Action
Group, and Vital Strategies
Michael D. LiPuma
Law Firm of Justin F. Robinette
Suite 1109
325 Chestnut Street
Philadelphia, PA 19106
Counsel for Amici in support of Appellees Homeless Ad-
vocacy Project, Pathways to Housing Pennsylvania, Cath-
olic Worker Free Clinic, Bethesda Project Inc., and St.
Francis Inn
7
Jennifer MacNaughton
City of Philadelphia
Law Department
1515 Arch Street
Philadelphia, PA 19102
Counsel for Amici in support of Appellees Mayor Jim
Kenney and Dr. Thomas Farley
Brian T. Feeney
Jessica Natali
Kevin Rethore
Greenberg Traurig
1717 Arch Street, Suite 400
Philadelphia, PA 19103
Counsel for Amici in support of Appellees Philadelphia
Area Community Organizations
Mark C. Fleming
Wilmer Cutler Pickering Hale & Dorr
60 State Street
Boston, MA 02109
Daniel Segal
Matthew A. Hamermesh
Hangley Aronchick Segal Pudlin & Schiller
One Logan Square
18th & Cherry Streets, 27th Floor
Philadelphia, PA 19103
Counsel for Amici in support of Appellees Current and
Former Prosecutors, Law Enforcement Leaders, and For-
mer Department of Justice Official and Leaders
8
Catherine M. Recker
Welsh & Recker
306 Walnut Street
Philadelphia, PA 19106
Counsel for Amicus in support of Appellees Professor
Randy Barnett
Mira E. Baylson
Cozen O’Connor
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Counsel for Amici in support of Appellees Religious Lead-
ers in Philadelphia and Beyond
Thomas A. Leonard, IV
Cozen O’Connor
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Counsel for Amici in support of Appellees Friends and
Family of Victims of Opioid Addiction
9
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Though the opioid crisis may call for innovative solutions,
local innovations may not break federal law. Drug users die
every day of overdoses. So Safehouse, a nonprofit, wants to
open America’s first safe-injection site in Philadelphia. It fa-
vors a public-health response to drug addiction, with medical
staff trained to observe drug use, counteract overdoses, and of-
fer treatment. Its motives are admirable. But Congress has
made it a crime to open a property to others to use drugs. 21
U.S.C. § 856. And that is what Safehouse will do.
Because Safehouse knows and intends that its visitors will
come with a significant purpose of doing drugs, its safe-
injection site will break the law. Although Congress passed
§ 856 to shut down crack houses, its words reach well beyond
them. Safehouse’s benevolent motive makes no difference.
And even though this drug use will happen locally and
Safehouse will welcome visitors for free, its safe-injection site
falls within Congress’s power to ban interstate commerce in
drugs.
Safehouse admirably seeks to save lives. And many Amer-
icans think that federal drug laws should move away from law
enforcement toward harm reduction. But courts are not arbiters
of policy. We must apply the laws as written. If the laws are
unwise, Safehouse and its supporters can lobby Congress to
10
carve out an exception. Because we cannot do that, we will re-
verse and remand.
I. BACKGROUND
A. The federal drug laws
Drug addiction poses grave social problems. The opioid cri-
sis has made things worse: more than a hundred Americans die
every day of an overdose. Dep’t of Health & Human Servs.,
Office of the Surgeon General, Facing Addiction in America:
The Surgeon General’s Spotlight on Opioids 1 (2018). People
of good will disagree about how to tackle these enormous prob-
lems. Lawmakers and prosecutors have traditionally used
criminal prosecution to try to stem the flow, targeting the sup-
ply and hoping to curb demand. Others emphasize getting users
into rehab. Harm-reduction proponents favor treating drug us-
ers without requiring them to abstain first. Still others favor
decriminalizing or even legalizing drugs. There is no consen-
sus and no easy answer.
But our focus is on what Congress has done, not what it
should do. Congress has long recognized that illegal drugs
“substantial[ly]” harm “the health and general welfare of the
American people.” 21 U.S.C. § 801(2). Indeed, half a century
ago, Congress tackled this national problem by consolidating
scattered drug laws into a single scheme: the Comprehensive
Drug Abuse Prevention and Control Act of 1970. Pub. L. 91-
513, 84 Stat. 1236 (codified as amended at 21 U.S.C. §§ 801–
971); see Gonzales v. Raich, 545 U.S. 1, 10–12 (2005). To this
day, this scheme governs the federal approach to illegal drugs.
11
Title II of that law, the Controlled Substances Act, broadly
regulates illegal drugs. The Act spells out many crimes. A per-
son may not make, distribute, or sell drugs. 21 U.S.C. § 841.
He may not possess them. § 844. He may not take part in a drug
ring. § 848. He may not sell drug paraphernalia. § 863. He may
not conspire to do any of these banned activities. § 846. And he
may not own or maintain a “drug-involved premises”: a place
for using, sharing, or producing drugs. § 856.
This last crime—the one at issue—was added later. At first,
the Act said nothing about people who opened their property
for drug activity. Then, the 1980s saw the rise of crack houses:
apartments or houses (often abandoned) where people got to-
gether to buy, sell, use, or even cook drugs. See United States
v. Lancaster, 968 F.2d 1250, 1254 n.3 (D.C. Cir. 1992). These
“very dirty and unkempt” houses blighted their neighborhoods,
attracting a stream of unsavory characters at all hours. Id. But
it was hard to shut crack houses down. To go after owners, po-
lice and prosecutors tried to cobble together conspiracy and
distribution charges. See, e.g., United States v. Jefferson, 714
F.2d 689, 691–92 (7th Cir. 1983), vacated on other grounds,
474 U.S. 806 (1985). But no law targeted the owner or main-
tainer of the premises.
To plug this gap, Congress added a new crime: 21 U.S.C.
§ 856. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,
§ 1841, 100 Stat. 3207, 3207–52. This law banned running a
place for the purpose of manufacturing, selling, or using drugs.
Congress later extended this crime to reach even temporary
drug premises and retitled it from “Establishment of manufac-
turing operations” to “Maintaining drug-involved premises.”
12
Compare 21 U.S.C. § 856(a) & caption (2003) with 21 U.S.C.
§ 856(a) & caption (1986). After all, the statute covers much
more than manufacturing drugs.
B. Safehouse’s safe-injection site
The parties have stipulated to the key facts: Safehouse
wants to try a new approach to combat the opioid crisis. It plans
to open the country’s first safe-injection site. Safehouse is
headed by José Benitez, who also runs Prevention Point Phila-
delphia. Like Prevention Point and other sites, Safehouse will
care for wounds, offer drug treatment and counseling, refer
people to social services, distribute overdose-reversal kits, and
exchange used syringes for clean ones.
But unlike other sites, Safehouse will also feature a con-
sumption room. Drug users may go there to inject themselves
with illegal drugs, including heroin and fentanyl. The
consumption room is what will make Safehouse unique—and
legally vulnerable.
When a drug user visits the consumption room, a Safehouse
staffer will give him a clean syringe as well as strips to test
drugs for contaminants. Staffers may advise him on sterile in-
jection techniques but will not provide, dispense, or administer
any controlled drugs. The user must get his drugs before he
arrives and bring them to Safehouse; he may not share or trade
them on the premises. The drugs he consumes will be his own.
After he uses them, Safehouse staffers will watch him for
signs of overdose. If needed, they will intervene with medical
care, including respiratory support and overdose-reversal
13
agents. Next, in an observation room, counselors will refer the
visitor to social services and encourage drug treatment.
Safehouse hopes to save lives by preventing diseases, coun-
teracting drug overdoses, and encouraging drug treatment. It
believes that visitors are more likely to accept counseling and
medical care “after they have consumed drugs and are not ex-
periencing withdrawal symptoms.” App. 685.
C. Procedural history
The Government sought a declaratory judgment that
Safehouse’s consumption room would violate § 856(a)(2).
Safehouse counterclaimed for a declaratory judgment that it
would not and that applying the statute to Safehouse would vi-
olate either the Commerce Clause or the Religious Freedom
Restoration Act (RFRA). U.S. Const. art. I, § 8, cl. 3; 42 U.S.C.
§§ 2000bb–2000bb-3.
The Government moved for judgment on the pleadings, and
the District Court denied the motion. It held that § 856(a)(2)
does not apply to Safehouse’s proposed consumption room.
United States v. Safehouse, 408 F. Supp. 3d 583, 587 (E.D. Pa.
2019). Rather, it held that someone violates § 856(a)(2) only if
his purpose is for others to manufacture, distribute, or use ille-
gal drugs on the premises. Id. at 595, 605. And it found that
Safehouse’s purpose was to offer medical care, encourage
treatment, and save lives, not to facilitate drug use. Id. at 614.
Because the statute did not apply, the court did not need to
reach Safehouse’s Commerce Clause or RFRA defenses. After
the parties stipulated to a set of facts, the court entered a final
declaratory judgment for Safehouse. The Government now
14
appeals. On appeal, Safehouse renews its Commerce Clause
defense but reserves its RFRA defense for remand.
We have jurisdiction to hear this appeal. The District
Court’s declaratory judgment has “the force and effect of a fi-
nal judgment.” 28 U.S.C. § 2201. “Once [the] district court has
ruled on all of the issues submitted to it, either deciding them
or declining to do so, the declaratory judgment is complete, fi-
nal, and appealable.” Henglein v. Colt Indus. Operating Corp.,
260 F.3d 201, 211 (3d Cir. 2001). So it does not matter that the
court did not reach the affirmative defenses. We review the
court’s reading of the statute and application of the statute to
Safehouse de novo. Rotkiske v. Klemm, 890 F.3d 422, 424 n.2
(3d Cir. 2018) (en banc), aff’d, 140 S. Ct. 355 (2019).
II. SAFEHOUSE WILL VIOLATE 21 U.S.C. § 856(a)(2)
BY KNOWINGLY AND DELIBERATELY
LETTING VISITORS USE DRUGS
Section 856(a)(2) makes it illegal to “manage or control” a
property and then “knowingly and intentionally” open it to vis-
itors “for the purpose of . . . using a controlled substance”:
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful
to—
(1) knowingly open, lease, rent, use, or maintain any
place, whether permanently or temporarily, for the
purpose of manufacturing, distributing, or using
any controlled substance;
15
(2) manage or control any place, whether permanently
or temporarily, either as an owner, lessee, agent,
employee, occupant, or mortgagee, and knowingly
and intentionally rent, lease, profit from, or make
available for use, with or without compensation, the
place for the purpose of unlawfully manufacturing,
storing, distributing, or using a controlled sub-
stance.
21 U.S.C. § 856(a) (emphasis added). This case turns on how
to construe and apply § 856(a)(2)’s last phrase: “for the purpose
of . . . .” Safehouse insists that, to violate that paragraph,
Safehouse itself would need to have the purpose that its visitors
use drugs. The Government disagrees. It argues that only the
visitors need that purpose; Safehouse just needs to intention-
ally open its facility to visitors it knows will use drugs there.
We agree with the Government. To break the law,
Safehouse need only “knowingly and intentionally” open its
site to visitors who come “for the purpose of . . . using” drugs.
The text of the statute focuses on the third party’s purpose, not
the defendant’s. Even if we read paragraph (a)(2) as Safehouse
does, its purpose is that the visitors use drugs. That is enough
to violate paragraph (a)(2).
A. Under § 856(a)(2), the defendant must knowingly
and deliberately let another person use his property
for drug activity.
Before getting to the disputed requirement of “purpose,” we
must first discuss the statute’s two other mental states, neither
of which is really in dispute. To violate (a)(2), a defendant must
16
“knowingly and intentionally . . . make [his property] available
for use” by a third party for that person’s illegal drug use. The
first two phrases of (a)(2) focus on the voluntary conduct or
knowledge of the defendant. The first phrase requires the de-
fendant to “manage or control [a] place.” And the second
phrase requires the defendant to “knowingly and intentionally
rent, lease, profit from, or make [the place] available for use”
for illegal drug activity. The adverbs “knowingly” and “inten-
tionally” introduce this second phrase, modifying the defend-
ant’s making the place available to a third party. In practice,
this means three things.
First, the defendant must know that other(s) are or will be
manufacturing, storing, distributing, or using drugs on his
property. See United States v. Barbosa, 271 F.3d 438, 457–58
(3d Cir. 2001). For instance, the owner of a building cannot be
prosecuted if he does not know that others are selling drugs out
of his building. But the defendant cannot just turn a blind eye
to rampant drug activity. See United States v. Ramsey, 406 F.3d
426, 431–32 (7th Cir. 2005). Other courts hold that the owner’s
willful blindness or deliberate ignorance can suffice. See, e.g.,
United States v. Chen, 913 F.2d 183, 192 & n.11 (5th Cir.
1990).
Second, the defendant need know only that his tenants or
customers are selling or using heroin, fentanyl, cocaine, or the
like. He does not need to know that they are violating the law
or intend for them to do so. See Bryan v. United States, 524
U.S. 184, 192–93 (1998); Barbosa, 271 F.3d at 457–58.
“[I]gnorance of the law generally is no defense to a criminal
charge.” Ratzlaf v. United States, 510 U.S. 135, 149 (1994). Of
17
course, Congress can make it a defense. Id. But it does so spar-
ingly, almost exclusively for tax and regulatory crimes. See
Cheek v. United States, 498 U.S. 192, 199–200 (1991) (tax
crimes); Liparota v. United States, 471 U.S. 419, 426 (1985)
(misusing food stamps). And when Congress does require
knowledge of the law, it uses the word “willfully.” Bryan, 524
U.S. at 191–92 & n.13; Ratzlaf, 510 U.S. at 141–42 (equating
willfulness with “a purpose to disobey the law”). It did not do
so here.
Finally, the defendant must make the place available to oth-
ers “intentionally.” That means deliberately, not accidentally
or by mistake. Barbosa, 271 F.3d at 458. Because paragraph
(a)(2) predicates liability on a third party’s drug activities, it
adds this extra intent requirement to shield owners who are not
complicit. An owner is not liable, for instance, if he knows that
trespassers are doing drugs but did not invite them and does
not want them.
B. Under § 856(a)(2), the defendant need not have the
purpose of drug activity
While (a)(2) requires the defendant to act knowingly and
intentionally, it does not require him to also have another men-
tal state: “purpose.” Paragraph (a)(2) requires someone to have
a “purpose”—but not the defendant. To get a conviction under
(a)(2), the government must show only that the defendant’s
tenant or visitor had a purpose to manufacture, distribute, or
use drugs. This conclusion follows from the law’s language
and grammar. It avoids making paragraph (a)(2) redundant of
(a)(1). It also avoids making (a)(2)’s intent requirement
18
redundant. And it is the conclusion reached by every circuit
court to consider the issue.
1. The plain text requires only that the third party have the
purpose of drug activity. Section 856’s text makes it clear that
(a)(2)’s “purpose” is not the defendant’s. We see this from the
way that paragraphs (a)(1) and (a)(2) are written and struc-
tured.
i. Paragraph (a)(1). The Government does not charge
Safehouse with violating paragraph (a)(1). But to understand
its sibling, paragraph (a)(2), we must start with (a)(1):
[I]t shall be unlawful to—
(1) knowingly open, lease, rent, use, or maintain
any place, whether permanently or tempo-
rarily,
for the purpose of manufacturing, distrib-
uting, or using any controlled substance.
21 U.S.C. § 856(a)(1) (line break added; mens rea terms itali-
cized). This paragraph requires just one actor and two sets of
actions. The actor is the defendant. He “open[s], lease[s],
rent[s], use[s], or maintain[s] [the] place.” He also has “the pur-
pose of manufacturing, distributing, or using” the drugs. These
actions do not require a third party. A person can “maintain”
an apartment or “manufactur[e]” drugs all by himself. Yet this
paragraph does not forbid third parties. A defendant does not
have to act alone; he can “us[e]” drugs with a friend or “man-
ufactur[e]” them with a business partner. He can even have his
employees do that work for him; a kingpin can run a drug
19
empire without ever touching the drugs himself. But even if no
one joins him in his drug activities, he still falls under (a)(1).
The inquiry turns on the purpose of the defendant.
So paragraph (a)(1) bars a person from operating a place
for his own purpose of illegal drug activity. On this, the parties,
the District Court, and our sister circuits all agree. For instance,
a person may not use his bedroom as the base of his drug deal-
ing operation. See United States v. Verners, 53 F.3d 291, 296–
97 (10th Cir. 1995). He may not manufacture meth in his gar-
age and regularly invite others over to use meth in that garage.
See United States v. Shetler, 665 F.3d 1150, 1163–64 (9th Cir.
2011). And he certainly may not rent houses to serve as drug
distribution centers by day and house his street-level drug deal-
ers by night. See United States v. Clavis, 956 F.2d 1079, 1083–
85, 1090–94 (11th Cir. 1992).
ii. Paragraph (a)(2). Now we turn to paragraph (a)(2):
[I]t shall be unlawful to—
...
(2) manage or control any place, whether per-
manently or temporarily, either as an owner,
lessee, agent, employee, occupant, or mort-
gagee, and
knowingly and intentionally rent, lease,
profit from, or make available for use, with
or without compensation, the place
for the purpose of unlawfully manufactur-
ing, storing, distributing, or using a con-
trolled substance.
20
21 U.S.C. § 856(a)(2) (line breaks added; mens rea terms itali-
cized). The District Court read this paragraph, like paragraph
(a)(1), to require that the defendant act for his own purpose of
illegal drug activity. But paragraph (a)(2) does not require such
a high mental state (mens rea). Instead, the defendant need only
deliberately make his place available to another, knowing that
this other person has the purpose of illegal drug activity.
Unlike paragraph (a)(1), paragraph (a)(2) contemplates at
least two actors: a defendant and a third party. The defendant
“manage[s] or control[s]” the place, whether “as an owner, les-
see, agent, employee, occupant, or mortgagee.” He could be a
landlord, a business owner, or a renter.
The second actor is some third party: a tenant, a customer,
or a guest. She is the one who uses or occupies the place. The
law does not mention this third party, but its verbs require her.
The landlord must “rent” or “lease” the place out to a tenant.
For the business owner to “profit from” the place, customers
must pay him. If a defendant “make[s] [the place] available for
use,” someone must be there to use it.
In turn, that third party engages in the drug activity. Para-
graph (a)(2) lays out three sets of actions, corresponding to the
three phrases broken out separately above. The defendant does
the first two: he “manage[s] or control[s]” the place, and he
“rent[s], lease[s], profit[s] from, or make[s] [it] available for
use.” The third party does the last set of actions: she “manufac-
ture[s], stor[es], distribut[es], or us[es] a controlled substance”
(or at least has the purpose to do so). For instance, the tenant,
not the landlord, sells drugs out of the apartment.
21
This third party, we hold, is the one who must act “for the
purpose of” illegal drug activity. The parties vigorously contest
this point. But this reading is logical. Paragraph (a)(1) requires
just the defendant. He must have the purpose of drug activity,
whether he engages in it by himself or with others. Paragraph
(a)(2) requires at least two people, adding the third party. She
performs the drug activity. The phrase “for the purpose of” re-
fers to this new person.
Thus, a defendant cannot let a friend use his house to weigh
and package drugs, even if the defendant himself is not in-
volved in the drug ring. See United States v. McCullough, 457
F.3d 1150, 1157–58, 1161 (10th Cir. 2006). He cannot tell his
son to stop selling drugs from his trailer, yet let him stay even
when he keeps selling. See Ramsey, 406 F.3d at 429, 433. And
he cannot lease storefronts to known drug dealers just because
he needs the money. See United States v. Cooper, 966 F.2d
936, 938 (5th Cir. 1992).
2. Safehouse’s interpretation would make paragraph
(a)(2) and “intentionally” redundant. Together, paragraphs
(a)(1) and (a)(2) compose a coherent package, forbidding dif-
ferent ways of “[m]aintaining [a] drug-involved premises.” 21
U.S.C. § 856 (caption). Each paragraph sets out a distinct
crime, separated by a paragraph number, spacing, and a semi-
colon. United States v. Rigas, 605 F.3d 194, 209 (3d Cir. 2010)
(en banc). Each requires a different actor to have the required
purpose.
Safehouse’s reading, by contrast, would make paragraph
(a)(2) redundant of (a)(1). In each, Safehouse says, the defend-
ant himself must have the purpose of drug activity. It concedes
22
that the paragraphs partly overlap. But it argues that (a)(1) co-
vers the crack house’s operator, while only (a)(2) covers a “dis-
tant landlord.” Oral Arg. Tr. 63. This distinction does not hold.
If each paragraph required just one actor who has the purpose
of drug activity, the distant landlord would fall under either.
Safehouse admits that he violates (a)(2). He is guilty under
(a)(1) too, because he has “rent[ed]” and “maintain[ed]” a
place for drug activity. Nothing would differentiate (a)(2) from
(a)(1).
Safehouse’s other example to distinguish the two para-
graphs fares no better. It postulates an owner who lets her boy-
friend run a crack ring from her apartment while she is at work.
It says she would violate only (a)(2). Not so. If she does not
have the purpose of using the apartment for drug sales,
Safehouse’s reading would exclude her from either paragraph.
But if she does have that purpose, she would be liable under
both.
Thus, on Safehouse’s reading, (a)(2) would do no inde-
pendent work. Recall that a defendant can just as easily violate
(a)(1) while working with someone else. Both paragraphs
would require the defendant to have the requisite purpose, so
(a)(2) would add nothing. That redundancy is fatal. Though
statutes sometimes overlap, we try to avoid reading one part of
a statute to make another part surplusage. Yates v. United
States, 574 U.S. 528, 543 (2015). That is especially true of two
paragraphs nestled in the same subsection. Id. We will not col-
lapse the two into one.
Safehouse’s reading would also make paragraph (a)(2)’s in-
tent requirement redundant of its purpose requirement.
23
Congress added the word “intentionally” to paragraph (a)(2)
but not (a)(1). Intention, like purpose, is a volitional mental
state; it requires the defendant to will something. One cannot
have a purpose of unlawful drug activity without intending that
activity. In paragraph (a)(2), the intent requirement would
make no sense layered on top of requiring the defendant to
have the purpose. But it makes sense to require the defendant’s
intent on top of the third party’s purpose. That protects defend-
ants against liability for mistaken, accidental, or involuntary
use of their property.
3. Other circuits read § 856(a) similarly. Finally, six other
circuits agree with our reading of the two paragraphs. See
United States v. Wilson, 503 F.3d 195, 197–98 (2d Cir. 2007)
(per curiam); United States v. Chen, 913 F.2d 183, 189–90 (5th
Cir. 1990); United States v. Banks, 987 F.2d 463, 466 (7th Cir.
1993); United States v. Tebeau, 713 F.3d 955, 959–61 (8th Cir.
2013); United States v. Tamez, 941 F.2d 770, 774 (9th Cir.
1991); United States v. Verners, 53 F.3d 291, 296–97 & n.4
(10th Cir. 1995). No circuit has held otherwise.
True, as Safehouse notes, no other circuit has addressed a
safe-injection site. The other circuits’ cases involved egregious
drug activity. But these cases all recognize the textual differ-
ence between the defendant’s own purpose under paragraph
(a)(1) and the third party’s purpose under (a)(2). Safehouse has
much better intentions. But good intentions cannot override the
plain text of the statute.
4. Safehouse’s other arguments are unpersuasive.
Safehouse raises three objections to the plain reading of the
text, but they all fail. First, it responds that “for the purpose of”
24
cannot mean two different things in the two sister paragraphs.
It does not. We presume that “purpose” means the same thing
in both. Env’t Def. v. Duke Energy Corp., 549 U.S. 561, 574
(2007). But we do not presume that the “purpose” belongs to
the same actor in each paragraph.
The difference in phrasing draws that distinction. For in-
stance, paragraph (a)(1) forbids a defendant’s “use” of a place
“for the purpose of” drug activity. Paragraph (a)(2) forbids a
defendant’s “mak[ing] [a place] available for use . . . for the
purpose of” drug activity. In each subsection, “for the purpose
of” refers back to “use,” its nearest reasonable referent. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Inter-
pretation of Legal Texts 152–53 (2012). Whoever “use[s]” the
property is the one who must have the purpose. Since the third
party is the actor who “use[s]” the place in paragraph (a)(2), it
is her purpose that matters. Those two phrases are worded dif-
ferently because they target use by different actors.
Second, Safehouse fares no better by citing the rule of len-
ity. We interpret ambiguities in criminal statutes in favor of the
defendant. Liparota, 471 U.S. at 427. Before we do, though,
we must exhaust the traditional tools of statutory construction.
Shular v. United States, 140 S. Ct. 779, 787 (2020). And once
we do that, this statutory text is clear enough, not “grievous[ly]
ambigu[ous].” United States v. Castleman, 572 U.S. 157, 173
(2014) (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)).
Finally, Safehouse objects that it would be “extremely odd”
to tie a defendant’s liability to a third party’s state of mind. Oral
Arg. Tr. 61. That is not so strange. When a robber holds up a
cashier with a toy gun, the prosecution must prove that the
25
cashier had a real “fear of injury.” 18 U.S.C. § 1951(b)(1). Or
in a kidnapping case, to show that the defendant acted “unlaw-
fully,” the prosecution must prove that the victim did not con-
sent to come along. 18 U.S.C. § 1201(a). And when one mem-
ber of a drug ring goes astray and kills someone, his cocon-
spirators can still be liable for murder. Pinkerton v. United
States, 328 U.S. 640, 645–47 (1946). Though only the killer
has the requisite specific intent to kill, it is enough that his part-
ners in crime could reasonably foresee that he would kill in
furtherance of the conspiracy. United States v. Gonzales, 841
F.3d 339, 351–52 (5th Cir. 2016); United States v. Alvarez, 755
F.2d 830, 848–49 (11th Cir. 1985).
In sum, all that paragraph (a)(2) requires is that the third
party, not the defendant, have the purpose of drug activity.
Still, the defendant must have a mental state: he must know-
ingly and willingly let others use his property for drug activity.
Now we apply this statute to Safehouse.
C. Section 856(a)(2) applies to Safehouse because its
visitors will have a significant purpose of drug
activity
Everyone agrees that Safehouse satisfies the first two
phrases of paragraph (a)(2). First, it will “manage [and] con-
trol” the site. Second, it will “intentionally . . . make [its con-
sumption room] available for [visitors’] use,” knowing that
they will use drugs there. But visitors will come for other rea-
sons too, including Safehouse’s medical and counseling ser-
vices. So the question is whether the visitors’ use of the con-
sumption room will satisfy the third phrase: (a)(2)’s purpose
requirement. It will.
26
A person’s purpose is his “objective, goal, or end.” Pur-
pose, Black’s Law Dictionary (11th ed. 2019). It is something
he “sets out to do.” Purpose (def. 1a), Oxford English Diction-
ary (3d ed. 2007).
People often have multiple purposes. A parent might scold
a screaming child both to silence her and to teach her how to
behave in public. But not every purpose satisfies the statute.
The statute requires the actor to act “for the purpose of” drug
activity, not just a purpose of drug activity. 21 U.S.C. § 856(a)
(emphasis added). That choice of “the” rather than “a” means
that not just any purpose will do. The actor’s purpose must be
more than “merely incidental.” Lancaster, 968 F.2d at 1253.
But it need not be his “sole purpose.” Shetler, 665 F.3d at 1161.
Otherwise, Congress would have said “for the sole purpose,”
as it has elsewhere. E.g., 18 U.S.C. § 48(d)(2)(B); 15 U.S.C.
§ 62; 17 U.S.C. § 1201(d)(1).
Since the actor’s purpose must fall somewhere between an
“incidental” and a “sole” purpose, we think the District Court
and our sister circuits have it right: the actor need have only a
“significant purpose” of drug activity. United States v. Russell,
595 F.3d 633, 643 (6th Cir. 2010). If he has a “significant pur-
pose” of drug use, he violates the statute, even if he also has
other significant purposes. United States v. Soto-Silva, 129
F.3d 340, 342, 347 (5th Cir. 1997).
Safehouse’s visitors will have the significant purpose of
drug activity. True, some people will visit Safehouse just for
medical services or counseling. Even so, Safehouse’s main at-
traction is its consumption room. Visitors will bring their own
drugs to use them there. And many of Safehouse’s services will
27
revolve around the visitors’ drug use there. The clean syringes
and fentanyl strips will let them inject drugs more securely.
The respiratory support and overdose-reversal agents will re-
duce their chances of dying of an overdose. And the medical
and counseling care will be offered after they have used drugs.
When a visitor comes to Safehouse to prevent an overdose, that
reason is bound up with the significant purpose of doing drugs.
That satisfies the statute.
Safehouse worries that our reading will punish parents for
housing their drug-addicted children, or homeless shelters for
housing known drug users. It will not. People use these places
to eat, sleep, and bathe. The drug use in homes or shelters
would be incidental to living there. But for most people, using
drugs at Safehouse will not be incidental to going there. It will
be a significant purpose of their visit.
D. In any event, Safehouse has a significant purpose
that its visitors do drugs
Even if paragraph (a)(2) looked to Safehouse’s own pur-
pose, Safehouse would violate the statute. For Safehouse itself
has a significant purpose that its visitors use heroin, fentanyl,
and the like.
Safehouse vigorously contests this point. As it stresses, one
of Safehouse’s purposes is to stop overdoses and save lives.
Other purposes include preventing disease and providing med-
ical care. But as Safehouse conceded at oral argument, “there
can be multiple purposes” that a defendant pursues at once.
Oral Arg. Tr. 53. Plus, motive is distinct from mens rea. A de-
fendant can be guilty even if he has the best of motives. A child
28
who steals bread to feed his hungry sister has still committed
theft. The son who helps his terminally ill mother end her life
has still committed murder.
One of Safehouse’s significant purposes is to allow drug
use. Start with the facility’s name: Safehouse calls it a “con-
sumption room” or “safe-injection site.” App. 683–84. It ex-
pects visitors to bring heroin, fentanyl, or the like with them to
use on-site. It will offer visitors clean syringes and fentanyl
strips and advise visitors on how to inject heroin or fentanyl
safely. Safehouse even foresees a benefit to this on-site drug
use: it thinks visitors will be more likely to accept drug treat-
ment “after they have consumed drugs and are not experienc-
ing withdrawal symptoms.” App. 685.
In short, Safehouse will offer visitors a space to inject them-
selves with drugs. Even on its own reading of purpose, that is
enough to violate the statute.
E. We cannot rewrite the statute to exclude the
safe-injection site
Finally, Safehouse asks us to look beyond the statute’s text
to consider Congress’s intent. The public-policy debate is im-
portant, but it is not one for courts. If the text of a criminal
statute “is plain . . . the sole function of the courts is to enforce
it according to its terms.” Caminetti v. United States, 242 U.S.
470, 485 (1917).
1. We apply the plain text, not Congress’s expectations.
First, Safehouse objects that Congress targeted crack houses,
but never expected the law to apply to safe-injection sites. That
is true but irrelevant. See Pa. Dep’t of Corrs. v. Yeskey, 524
29
U.S. 206, 212 (1998). Statutes often reach beyond the principal
evil that animated them. Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 79 (1998). For instance, though Congress
meant RICO to target mobsters, it reaches far beyond them to
legitimate businesses as well. Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 499 (1985) (analyzing the Racketeer Influenced
and Corrupt Organizations Act, 18 U.S.C. §§ 1961–68).
A court’s job is to parse texts, not psychoanalyze lawmak-
ers. “[W]e do not inquire what the legislature meant; we ask
only what the statute means.” Epic Sys. Corp. v. Lewis, 138 S.
Ct. 1612, 1631 (2018) (internal quotation marks omitted)
(quoting Justice Jackson quoting Justice Holmes). At least
when the text is clear, we will not look beyond it to lawmakers’
statements, because “legislative history is not the law.” Id.; ac-
cord Pellegrino v. TSA, 937 F.3d 164, 179 (3d Cir. 2019) (en
banc). The words on the page, not the intent of any legislator,
go through bicameralism and presentment and become law.
Here, the statute’s plain text covers safe-injection sites. We
look no further.
2. Congress’s recent efforts to combat addiction did not
revoke the statute. Next, Safehouse and its amici claim that our
reading of the statute is bad policy. On average, nearly three
Philadelphians die of drug overdoses each day. A consumption
room, they argue, could save those lives. And the Government
has spent lots of time and money fighting the opioid crisis. In
2016, Congress passed the Comprehensive Addiction and Re-
covery Act, which creates federal grants to treat drug addiction
and prevent overdoses. Pub. L. No. 114-198, § 103, 130 Stat.
695, 699–700 (codified at 21 U.S.C. § 1536). Since then, it has
30
banned federal funding of syringe-exchange programs but au-
thorized an exception. Consolidated Appropriations Act of
2016, Pub. L. No. 114-113, § 520, 129 Stat. 2242, 2652.
Safehouse asks us to read the Act to “[h]armonize[ ]” it with
these federal efforts. Appellees’ Br. 38. But to do that, we
would have to rewrite the statute. These laws say nothing about
safe-injection sites, and § 856(a)(2)’s plain text forbids them. If
that ban undermines Congress’s current efforts to fight opioids,
Congress must fix it; we cannot.
III. APPLYING § 856(a)(2) TO SAFEHOUSE IS A VALID
EXERCISE OF CONGRESS’S POWER OVER INTERSTATE
COMMERCE
Having held that Safehouse’s safe-injection site would vio-
late § 856(a)(2), we turn to its affirmative defense under the
Commerce Clause. Safehouse argues that Congress lacks the
power to criminalize its local, noncommercial behavior. After
all, it will not charge visitors to use the consumption room. But
the Supreme Court foreclosed that argument in Gonzales v.
Raich, rejecting a Commerce Clause challenge to a different
section of the Controlled Substances Act. 545 U.S. 1, 9 (2005).
Raich clarifies that Congress can regulate local, noncommer-
cial activity when that activity will affect a national market.
Even though Safehouse’s consumption room will be local and
free, the Act bans it as part of shutting down the national mar-
ket for drugs. The Commerce Clause, together with the Neces-
sary and Proper Clause, gives Congress the power to do that.
U.S. Const. art. I, § 8, cl. 3, 18.
31
A. Congress can regulate local activities either (1) if
they are economic and, taken together, substantially
affect interstate commerce, or (2) as part of a com-
prehensive regulatory scheme
Using its commerce power, Congress can regulate the
“channels of interstate commerce”; “instrumentalities,” peo-
ple, and “things in interstate commerce”; and “activities that
substantially affect interstate commerce.” United States v.
Lopez, 514 U.S. 549, 558–59 (1995). That last category can
cover local activity and thus risks blurring the line “between
what is truly national and what is truly local.” Id. at 567–68.
To hold that line, we demand that the local activity Congress
regulates be either (1) economic or else (2) covered by a
broader scheme to regulate commerce. See id. at 559–61.
Either route suffices.
1. Congress can regulate local economic activities that
substantially affect interstate commerce. Federal law may reg-
ulate local activities if they are economic and, as a “class of
activities,” they substantially affect interstate commerce.
Raich, 545 U.S. at 17 (quoting Perez v. United States, 402 U.S.
146, 151 (1971)); Lopez, 514 U.S. at 559–60. A court does not
decide for itself that a class of activity has substantial economic
effects. We ask only whether Congress had a rational basis to
think so. Raich, 545 U.S. at 22.
Activities can count as economic even if they are not com-
mercial. Raich, 545 U.S. at 18. That is because, even without
buying or selling, some local activities can collectively affect
national supply and demand. Thus, in Wickard v. Filburn, the
32
Supreme Court upheld a law capping how much wheat a farmer
could grow to feed his own livestock, bake his own bread, and
plant his next year’s crop. 317 U.S. 111, 114, 127–28 (1942).
In the aggregate, it reasoned, excess homegrown wheat could
lower demand, compete with wheat on the market, and so sub-
stantially affect interstate commerce. Id.
2. Congress can regulate noneconomic activities only as
part of a larger regulatory scheme. Congress’s power to regu-
late noneconomic activities, like many traditionally local
crimes, is more limited. “Congress may [not] regulate non-
economic, violent criminal conduct based solely on that con-
duct’s aggregate effect on interstate commerce.” United States
v. Morrison, 529 U.S. 598, 617 (2000). For instance, Congress
cannot ban possessing guns near schools just because violent
crime might raise insurance rates, hinder education, and thus
dampen economic production. Lopez, 514 U.S. at 563–64. Nor
can it ban violence against women based on how it might harm
employment and the economy. Morrison, 529 U.S. at 614–15.
That is the job of state and local legislatures, not Congress.
But Congress can regulate traditionally local, noneconomic
activities as part of a larger regulatory scheme. The laws in
Lopez and Morrison were single-subject statutes, not part of
regulating interstate markets. By contrast, Congress can reach
local, noneconomic activities (like simple possession) as “part
of a larger regulation of economic activity, in which the regu-
latory scheme could be undercut unless the intrastate activity
were regulated.” Lopez, 514 U.S. at 561. For example, when
this Court faced a federal ban on possessing certain machine
guns, we upheld it. United States v. Rybar, 103 F.3d 273, 274
33
(3d Cir. 1996). That law, unlike the one in Lopez, sought to halt
interstate gun trafficking. Id. at 282–83. To shut down the
interstate market in machine guns, it had to reach intrastate
possession too. Id. By the same token, Congress can ban even
intrastate possession of child pornography. United States v. Ro-
dia, 194 F.3d 465, 479 (3d Cir. 1999).
When Congress regulates local noneconomic activities as
part of a scheme, it need only choose means that are “ ‘reason-
ably adapted’ to the attainment of a legitimate end under the
commerce power.” Raich, 545 U.S. at 37 (Scalia, J., concur-
ring) (quoting United States v. Darby, 312 U.S. 100, 121
(1941)).
Having discussed the two bases for regulating local activi-
ties, we can now apply them. As the next two sections explain,
both the comprehensive-scheme and aggregate-economic-
effect rationales independently justify § 856’s ban.
B. Congress can ban local drug-involved premises as
part of a comprehensive regulatory scheme
Whether providing drug-involved premises counts as eco-
nomic activity or not, Congress can regulate it. The drug mar-
ket is national and international. Congress has found that this
trade poses a national threat. Thus, it passed the Controlled
Substances Act, a scheme to suppress or tightly control this
market. The Act properly seeks to shut down the market for
Schedule I and unprescribed Schedule II–V drugs. Because
Congress passed a valid scheme to regulate the interstate drug
trade, § 856 is constitutional as long as it is “reasonably
adapted” to that scheme. Raich, 545 U.S. at 37 (Scalia, J.,
34
concurring) (quoting Darby, 312 U.S. at 121). And it is. To
bolster the Act’s scheme, Congress can reach local premises
where drug activities happen.
1. The Controlled Substances Act is a scheme to tightly
control the interstate drug market. Drugs are big business. In
2016 alone, Americans spent $146 billion on cannabis, co-
caine, heroin, and methamphetamine. Gregory Midgette et al.,
RAND Corp., What America’s Users Spend on Illegal Drugs,
2006–2016, at xiv tbl. S.2 (2019). Congress has recognized that
much of this traffic flows in interstate and international com-
merce. 21 U.S.C. § 801(3). It addressed that market in the Act.
To control drug manufacture, sale, and possession, the Act
creates a “closed regulatory system.” Raich, 545 U.S. at 13.
Because Schedule I drugs have no accepted medical use, the
Act bans them entirely. See 21 U.S.C. § 812(b)(1). For other
drugs that have some accepted uses but a “potential for abuse”
(those in schedules II–V), the Act requires a prescription.
§§ 812(b)(2)(A), (3)(A), (4)(A), (5)(A), 844(a). This scheme
seeks to shut down the markets in Schedule I and unprescribed
Schedule II–V drugs. See Raich, 545 U.S. at 19, 24. That goal
is valid, as the power to regulate a market includes the power
to ban it. Id. at 19 n.29.
2. Congress can serve this goal by reaching intrastate ac-
tivities. The national drug market is bound up with local activ-
ities. Drugs produced locally are often sold elsewhere; drugs
sold or possessed locally have usually been imported from
elsewhere. § 801(3). Even local possession and sale “contribute
to swelling the interstate market.” § 801(4). So to control the
interstate market, the Act reaches intrastate activities.
35
Raich confirms that Congress can do that. Raich upheld the
Act’s ban on local production and possession of marijuana for
personal medical use. 545 U.S. at 9. Unlike the laws in Lopez
and Morrison, this ban was part of a comprehensive regulatory
scheme to shut down the interstate market in marijuana. Id. at
19, 23–24. Drugs are fungible. Id. at 18. Local drugs are hard
to distinguish from imported ones and can be diverted into the
interstate market. Id. at 22. Congress rationally believed that
failing to regulate intrastate drugs “would leave a gaping hole
in the [Act].” Id. So it was necessary and proper to enact a flat
ban, with no intrastate exception. Id.; id. at 34 (Scalia, J., con-
curring).
3. Section 856 is a key part of the Act’s comprehensive reg-
ulatory scheme. At oral argument, Safehouse sought to distin-
guish consuming drugs from providing a place to consume
them. But just as Congress regulates the drug activities, it can
also regulate places where those activities are likely to flourish.
Congress added § 856 to plug a “gaping hole” in the Act that
made it harder to stop drug use and dealing at crack houses and
the like. Raich, 545 U.S. at 22.
Section 856 is reasonably adapted to control drug manufac-
ture, sale, and possession. Consider state laws that forbid
BYOB restaurants to let minors drink alcohol on-site. See, e.g.,
N.J. Rev. Stat. § 2C:33-27(a)(3). Of course, minors themselves
may not drink in public. Id. § 2C:33-15(a). And the restaurants
would not be providing the alcohol, only the space and glasses.
Yet states still punish them if the minors drink there. Why?
Because the ban makes it harder for minors to drink. If restau-
rateurs know that they could face steep fines for tolerating
36
underage drinking, they will prevent it from happening. So too
here. Just as local drug possession “swell[s] the interstate
[drug] traffic,” clamping down on local drug use helps restrict
that market. 21 U.S.C. § 801(3), (4).
We could stop here. Because § 856 is part of the Act’s com-
prehensive regulatory scheme, Congress has the power to ban
even local, noneconomic activity that would undercut that
scheme. But another ground independently supports the Act: it
regulates economic activity that could, in the aggregate, sub-
stantially affect interstate commerce.
C. Congress had a rational basis to believe that
making properties available for drug use will have
substantial economic effects
Even if § 856 were not part of a comprehensive regulatory
scheme, Congress could still regulate the activities it covers.
Safehouse argues that making a local safe-injection site avail-
able for free is noneconomic. But Raich forecloses that argu-
ment.
1. Making properties available for drug use is economic
activity. Raich defined “economics” broadly as “the produc-
tion, distribution, and consumption of commodities.” 545 U.S.
at 25–26 (quoting Webster’s Third New International Diction-
ary 720 (1966)) (emphasis added). These are all activities that
affect national supply and demand and thus interstate com-
merce. So producing, distributing, and consuming drugs are
“quintessentially economic” activities. Id. Even intrastate
growing of marijuana for home consumption is economic,
37
because it could substantially affect the national marijuana
market. Id. at 19, 25–26.
To be sure, Safehouse will not itself consume drugs. But it
will create a “consumption room,” a dedicated space for
streams of visitors to use drugs. “[T]here is an established, and
lucrative, interstate market” for those drugs. Id. at 26. Opening
a space for consuming drugs will encourage users to come do
so. Making consumption easier and safer will lower its risk and
so could increase consumption. More drug consumption would
create more market demand. Just as “home consumption [of] a
fungible commodity” is economic activity that can substan-
tially affect the national market, so too is hosting consumption.
See Raich, 545 U.S. at 7.
It makes no difference that Safehouse will let its visitors
come for free. Wickard grew wheat to feed his own livestock
and bake his own bread. 317 U.S. at 114. And though one of
the drug users in Raich grew her own marijuana and another
was given it as a gift, that did not matter. 545 U.S. at 7. Eco-
nomic activity is broader than commercial activity; it need not
involve buying and selling. Congress validly banned these non-
commercial uses to control supply and demand in the drug
market. Raich, 545 U.S. 22–23; Wickard, 317 U.S. at 127–28.
That was necessary and proper. Congress had the power to reg-
ulate the whole class of drug activities, and courts cannot “ex-
cise” individual cases from that class just because they are
“trivial.” Raich, 545 U.S. at 23 (quoting Perez v. United States,
402 U.S. 146, 154 (1971)).
38
2. Congress has a rational basis to believe that this activ-
ity, as a class, substantially affects interstate commerce. Con-
gress could find that maintaining drug-involved premises, as a
class, substantially affects commerce. Drug dealers may well
congregate near Safehouse, increasing the drug trade and argu-
ably drug demand. True, Safehouse argues that its site will not
increase drug demand, as visitors must buy their drugs before
arriving. And amici dispute whether safe-injection sites in-
crease drug use and trafficking. That empirical and policy de-
bate is for Congress, not courts. It is enough that Congress
could rationally find a causal link between drug-involved
premises as a class and commerce. Raich, 545 U.S. at 22.
Congressional findings confirm common sense. 21 U.S.C.
§ 801(3)–(6). Drugs typically flow through interstate markets
before someone possesses them. § 801(3)(C). And intrastate
possession helps swell the interstate market. § 801(4). So reg-
ulating intrastate activity is necessary and proper to clamp
down on the interstate market. To be sure, these findings in the
Act predate § 856, and they do not specifically discuss drug-
involved premises. But we may consider findings from prior
legislation. Rodia, 194 F.3d at 474 n.4; Rybar, 103 F.3d at 281.
And “Congress [need not] make particularized findings in or-
der to legislate.” Raich, 545 U.S. at 21.
In short, Congress can regulate Safehouse both to complete
the Act’s comprehensive regulatory scheme and to stop eco-
nomic activity that, in the aggregate, could substantially affect
interstate commerce.
39
* * * * *
The opioid crisis is a grave problem that calls for creative
solutions. Safehouse wants to experiment with one. Its goal,
saving lives, is laudable. But it is not our job to opine on
whether its experiment is wise. The statute forbids opening and
maintaining any place for visitors to come use drugs. Its words
are not limited to crack houses. Congress has chosen one ra-
tional approach to reducing drug use and trafficking: a flat ban.
We cannot rewrite the statute. Only Congress can. So we will
reverse and remand for the District Court to consider the RFRA
counterclaim.
40
United States v. Safehouse, et al.
No. 20-1422
_________________________________________________
ROTH, Circuit Judge, dissenting in part and dissenting in
judgment.
The Majority’s decision is sui generis: It concludes that
8 U.S.C. § 856(a)(2)—unlike § 856(a)(1) or any other federal
criminal statute—criminalizes otherwise innocent conduct,
based solely on the “purpose” of a third party who is neither
named nor described in the statute. The text of section
856(a)(2) cannot support this novel construction. Moreover,
even if Safehouse’s “purpose” were the relevant standard,
Safehouse does not have the requisite purpose. For these
reasons, I respectfully dissent.1
I
Despite the ongoing public-health crisis caused by the
COVID-19 pandemic, we cannot forget that the United States
is also in the middle of an opioid epidemic. “Safehouse
intends to prevent as many [opioid-related] deaths as possible
through a medical and public health approach to overdose
prevention.”2 Safehouse is prepared to provide a wide range
of services desperately needed in Philadelphia and routinely
provided at Safehouse’s companion facility, Prevention Point
Philadelphia, including:
clean syringe exchange services, primary
1
I concur with the Majority’s rejection of Safehouse’s argument that
Congress cannot regulate its conduct under the Commerce Clause.
2
Appx. 116.
1
medical care, an HIV clinic, a Hepatitis C clinic,
wound care and education on safer injection
techniques, overdose prevention education,
overdose reversal kits and distribution, housing,
meals, mail services, Medication-Assisted
Treatment, and drug recovery and treatment
services.3
The government takes no issue with any of these
services. Instead, it argues that Safehouse should not be
permitted to open its doors because of one additional service
that it will provide: A Consumption Room. Specifically,
Safehouse will provide “medically supervised consumption
and observation” so that “[t]hose who are at high risk of
overdose death would stay within immediate reach of urgent,
lifesaving medical care.”4 “Medical supervision at the time of
consumption ensures that opioid receptor antagonists such as
Naloxone, and other respiratory and supportive treatments like
oxygen, will be immediately available to the drug user in the
event of an overdose.”5 Significantly, no one is required to use
the Consumption Room to be eligible for any of Safehouse’s
other services,6 nor will Safehouse provide, store, handle, or
encourage the use of drugs, or allow others to distribute drugs
on its property.
3
Id. at 683.
4
Id. at 116.
5
Id.
6
The Safehouse Model, SAFEHOUSEPHILLY.COM,
https://www.safehousephilly.org/about/ the-safehouse-model (last
accessed Nov. 17, 2020) (“Upon arrival, participants may choose to
go directly to the observation room to access MAT and other
services.”).
2
In other words, Safehouse is a drug treatment facility
that also seeks to provide much needed overdose care to drug
users. If these users are denied access to a Consumption Room,
they will still use drugs -- and possibly die on the street.
Philadelphia’s police and mobile emergency services (EMS)
already attempt to provide rescue services for users who pass
out on the streets. Often, the Police and EMS cannot do so in
a timely manner. Instead of patrolling the streets for users who
have overdosed, Safehouse wants to save lives indoors.
At oral argument, the government conceded that
Safehouse could provide the exact same services it plans to
provide in the Consumption Room if it did not do so indoors—
if, for instance, it provided a Consumption Room inside a
mobile van. Yet, according to the Majority’s interpretation of
section 856(a)(2), Safehouse would be committing a federal
crime, punishable by twenty years’ imprisonment, if the
Consumption Room services were provided inside a building,
rather than in a mobile van, parked in front. I cannot interpret
section 856(a)(2) to reach such a result.
II
At oral argument, the government conceded that section
856(a) is poorly written. Indeed, it is nearly incomprehensible.
Rather than construe this ambiguous statute narrowly,
however, the Majority opts for broad criminal liability, arguing
that an organization violates the statute if it makes its property
available to a third party, knowing that the third party has “the
purpose of unlawfully manufacturing, storing, distributing, or
using a controlled substance.”7 I disagree with such a
7
18 U.S.C. § 856(a)(2) (emphasis added).
3
construction of the statute. I know of no statute, other that
section 856(a)(2), in which the “purpose” of an unnamed third
party would be the factor that determines the mens rea
necessary for a defendant to violate the statute. This
problematic construction is particularly evident here because
the parties agree that the “purpose” in section 856(a)(1) refers
to the defendant’s “purpose.”
A
This divergence of interpretation violates the rules of
statutory construction: “identical words used in different parts
of the same statute are generally presumed to have the same
meaning.”8 The Majority offers no reason to disregard this
presumption. And to the extent that there is any ambiguity, the
legislative history goes against the Majority. This precise issue
was addressed in the floor debates of the 2003 amendments to
section 856(a): Then-Senator Joseph Biden stated that “rogue
promoters” charged under the statute must “not only know that
there is drug activity at their event but also hold the event for
the purpose of illegal drug use or distribution. . . . Let me be
clear. Neither current law nor my bill seeks to punish a
promoter for the behavior of their patrons.”9
The Majority also construes section (a)(2)’s mens rea
requirement unlike any other federal criminal statute. Indeed,
the Majority has not identified a single statute that criminalizes
otherwise innocent conduct—here, lawfully making your
property “available for use”—solely because of the subjective
thoughts of a third party not mentioned in the statute.
8
IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005).
9
149 Cong. Rec. S1678 (emphasis added).
4
At oral argument, the government suggested that
conspiracy requires proof of third-party intent. True, but
conspiracy statutes use the word “conspire,” which refers to a
third party and that party’s purpose. For centuries,
“conspiracy” has had a well-accepted common law meaning
that we still use today: an “agreement,” “combination,” or
“confederacy” of multiple people.10 “When Congress uses a
common law term . . . we generally presume that it intended to
adopt the term’s widely-accepted common law meaning . . ..”11
Moreover, conspiracy is a specific-intent crime12 that requires
a defendant to share and agree to facilitate a co-conspirator’s
illicit purpose.13 By contrast, the Majority’s construction of
10
United States v. Hinman, 26 F. Cas. 324, 325 (C.C.D.N.J. 1831)
(No. 15,370); accord United States v. Burr, 25 F. Cas. 187, 193
(C.C.D. Va. 1807) (No. 14,694) (“[A defendant] cannot conspire
alone.”); 4 WILLIAM BLACKSTONE, COMMENTARIES 136 n.19 (“To
constitute a conspiracy . . . there must be at least two persons
implicated in it.”); see also State v. Buchanan, 5 H. & J. 317, 334
(Md. 1821) (“[I]f combinations for any of the purposes mentioned
in the statute, were punishable at all, it could only have been on the
ground, that both the offence of conspiracy (eo nomine), and the
punishment, were known to the law anterior to the enactment of the
statute . . ..”).
11
United States v. Hsu, 155 F.3d 189, 200 (3d Cir. 1998); accord
Salinas v. United States, 522 U.S. 52, 63 (1997).
12
Ocasio v. United States, 136 S. Ct. 1423, 1429 (2016); United
States v. Applewhaite, 195 F.3d 679, 684 (3d Cir. 1999); accord
United States v. Williams, 974 F.3d 320, 369–70 (3d Cir. 2020)
(“[T]he defendant [must] join[] the agreement knowing of its
objectives and with the intention of furthering or facilitating
them.”).
13
See United States v. Tyson, 653 F.3d 192, 209 (3d Cir. 2011)
(“[T]he pertinent inquiry is whether Tyson and Morrell agreed to
5
section 856(a)(2) does not require a defendant to have any
particular purpose whatsoever; it is the third party’s purpose
that is unlawful. And, unlike in a conspiracy, the government
specifically argues that intent to facilitate is not necessary.
Nor is the Majority’s construction of section 856(a)(2)
similar to Pinkerton liability.14 Pinkerton allows for liability
based on a coconspirator’s completed acts,15 not her thoughts.
Moreover, those acts must be a foreseeable part or
consequence of a conspiracy that the defendant intentionally
entered.16 Finally, the penalties for conspiracy and Pinkerton
liability are usually limited to those available for the
underlying crimes.17 By contrast, a section 856(a)(2)
achieve the conspiracy’s ends.”); United States v. Coleman, 811
F.3d 804, 808 (3d Cir. 1987).
14
See Nov. 16, 2020 Tr. at 65:23–66:2.
15
See United States v. Ramos, 147 F.3d 281, 286 (3d Cir. 1998); see
also Bahlul v. United States, 840 F.3d 757, 792 (D.C. Cir. 2016)
(Millett, J., concurring in per curium opinion) (“Pinkerton liability .
. . relies on the imputation of co-conspirators’ completed
offenses.”).
16
See United States v. Casiano, 113 F.3d 420, 427 (3d Cir. 1997).
17
See, e.g., 21 U.S.C. § 846 (“Any person who attempts or conspires
to commit any offense defined in this subchapter shall be subject to
the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspiracy.”);
United States v. Brooks, 524 F.3d 549, 557 (4th Cir. 2008). But see
18 U.S.C. § 371 (providing for five-year maximum for conspiracies
against the United States, which may be committed without an
underlying criminal object); see also United States v. Conley, 92
F.3d 157, 163–65 (3d Cir. 1996).
6
defendant may receive up to twenty years’ imprisonment,
while the third party could be exposed to as little as one year.18
B
The Majority’s construction wreaks havoc with the rest
of the statute. The Majority relies on out-of-circuit decisions,
beginning with United States v. Chen,19 holding that “under §
856(a)(2), the person who manages or controls the building and
then rents to others, need not have the express purpose in doing
so that drug related activity take place; rather such activity is
engaged in by others (i.e., others have the purpose).”20 Chen
and its progeny did not explain their leap from the (likely
correct) conclusion that the illicit “activity is engaged in by
others” to their (incorrect) conclusion that the defendant need
not have an illicit purpose.
Instead, Chen and its progeny stated only that a contrary
interpretation would render either section (a)(1) or (2)
“superfluous.” Unsurprisingly, Chen and its progeny did not
explain that conclusion. In fact, they contradict each other as
to which subsection would be rendered superfluous: The Chen
court stated that section (a)(2) would be superfluous, whereas
18
See 21 U.S.C. § 844(a) (“Any person who [possesses a controlled
substance] may be sentenced to a term of imprisonment of not more
than 1 year, and shall be fined a minimum of $1,000, or both . . . .”).
19
913 F.2d 183 (5th Cir. 1990).
20
Chen, 913 F.2d at 190 (citing United States v. Burnside, 855 F.2d
863 (Table) (9th Cir. 1988)); accord United States v. Tebeau, 713
F.3d 955 (8th Cir. 2013); United States v. Wilson, 503 F.3d 195,
197–98 (2d Cir. 2007); United States v. Banks, 987 F.2d 463, 466
(7th Cir. 1993); United States v. Tamez, 941 F.2d 770, 773–74 (9th
Cir. 1991).
7
other courts of appeals have stated that both sections would
“entirely overlap” and “have no separate meaning.”21
In any event, the text of the statute demonstrates that all
these courts of appeals are wrong. When Chen was decided,
the only overlap between the two sections was the phrase “for
the purpose of.”22 In other words, Chen and its progeny
decided that, to avoid superfluity, the only words that were the
same between the two sections must have different meanings.
There is no rule of construction that supports or even permits
such a reading.
Rather, the distinction between sections (a)(1) and (2) is
in their respective actus reus requirements. Section (a)(1) has
one actus reus element; section (a)(2) has two. Before 2003,
those elements did not overlap at all; the 2003 amendments
created only minor overlap by adding “rent” and “lease” to
section (a)(1). I do not see why we should twist the text of the
statute based on the potential overlap of two words,23 let alone
why Chen did so before any overlap existed.
In sum, the Majority construes sections 856(a)(1) and
(2)’s identical “purpose” elements differently but holds that
their different actus reus elements are identical. That need not
be the case. For example, section (a)(1) would be violated
where a property owner sells drugs from his home but does not
let others use it; section (a)(2) would not. Section (a)(2) would
21
Tamez, 941 F.2d at 774; accord Tebeau, 713 F.3d at 960.
22
Even the listed purposes are not identical: Unlike § (a)(1), § (a)(2)
includes “storing” controlled substances.
23
Loughrin v. United States, 573 U.S. 351, 358 n.4 (2014)
(explaining that even “substantial” overlap between sections of a
criminal statute “is not uncommon”).
8
be violated where a rave operator encourages drug dealers to
attend events to increase attendance; section (a)(1) would not.
Because Safehouse’s construction better comports with the
statute’s text and does not render either section completely
superfluous, I would adopt it.
C
The Majority’s construction also violates the “deeply
rooted rule of statutory construction” that we must avoid
“unintended or absurd results.”24
i
As Safehouse correctly argues, under the Majority’s
construction, parents could violate the statute by allowing their
drug-addicted adult son to live and do drugs in their home even
if their only purpose in doing so was to rescue him from an
overdose. Conceding that its reading of section (a)(2) cannot
be taken literally, the Majority concludes that a defendant
cannot be guilty where drug use is merely “incidental” to the
guest’s other purposes. Thus, the hypothetical parents would
not violate the statute because their son’s drug use was
incidental to his use of the home as a residence. By trying to
assure us that the hypothetical parents would not violate the
statute, the Majority implicitly acknowledges that such a result
would be impermissibly absurd. Although I agree that
24
United States v. Hodge, 321 F.3d 429, 434 (3d Cir. 2003) (Ambro,
J.); accord United States v. Bankoff, 613 F.3d 358, 369 n.10 (3d Cir.
2010) (Ambro, J.) (explaining that assuming Congress was unaware
of the terms used in one statute when enacting another statute
“would lead to an absurd result”).
9
incidental purposes do not trigger the statute, absurd results are
unavoidable under the Majority’s construction.
The Majority relies on the consensus of other courts of
appeals that a defendant’s “casual” drug use in his home does
not violate the original version of section 856(a)(1) because the
drug use was incidental to the purpose for which he maintained
the property, i.e., as a residence.25 Neither the Majority nor the
cases it cites define “incidental.” Fortunately, we have. In
United States v. Hayward,26 we adopted an incidental-purpose
test for 18 U.S.C. § 2423(b), which made it unlawful to “travel
in foreign commerce for the purpose of engaging in sex with a
minor.” We held that illicit sexual activity must be “a
significant or motivating purpose of the travel across state or
foreign boundaries,” rather than merely “incidental” to the
travel.27 Even assuming that other courts of appeals’ gloss on
“maintain” in section (a)(1) survived the 2003 amendment28
and comports with Hayward, it does not neatly apply to a
25
E.g., United States v. Lancaster, 968 F.2d 1250, 1253 (D.C. Cir.
1992).
26
359 F.3d 631 (3d Cir. 2004) (Garth & Ambro, J.).
27
Hayward, 359 F.3d at 638 (emphasis added); accord United States
v. Vang, 128 F.3d 1065, 1071 (7th Cir. 1997). Although “for the
purpose of” in § 2434(b) was later amended explicitly to “with a
motivating purpose,” the legislative history does not indicate that
Congress intended to increase the government’s burden of proof.
28
That amendment added “use” to § 856(a)(1). Other circuits have
continued to assume—correctly, I think—that using drugs in one’s
own home still does not violate § (a)(1). See United States v.
Shetler, 665 F.3d 1150, 1164 n.8 (9th Cir. 2011) (“The amendments
increase the possibility that § 856(a)(1) would be unconstitutionally
vague if construed expansively. What is meant by ‘use’ of ‘any place
... temporarily’ is, for example, certainly far from clear.”).
10
guest’s purpose in “us[ing]” property under section (a)(2) or
avoid the absurd results inherent in the Majority’s construction.
The Majority assumes that the son’s purpose in moving
in with his parents was to use the home as a residence. Not
necessarily. Although the parents likely “maintain” their home
for the purpose of living in it, their son may be motivated by
many purposes to “use” it. If the son could not do drugs there,
would he still move in? Alternatively, the son might already
have a home (or be indifferent to being homeless) but
begrudgingly accepted his parents’ invitation to move in with
them because he shared their concern about overdosing. Like
Safehouse’s participants, the son would ‘use” the home
because he was motivated by an “unlawful” purpose
(supervised drug use) that was not incidental to his residency
in the home, and the parents knew it. Under the Majority’s
construction, the parents were operating a crack house. That
cannot be what the statute intends to say. Or suppose the son
intended to do drugs there once, steal his mother’s jewelry, and
run away. If the parents were reasonably sure that he would
run away but gave him a chance anyway, have they violated
the statute under Chen’s deliberate-ignorance standard? The
Majority’s construction suggests so, particularly if this was the
son’s second or third chance. And under the Majority’s
construction, the parents would certainly violate section (a)(2)
if they invited their son to do drugs in their home under
supervision but not live there; this result is far afield from the
crack houses and raves targeted by the statute.
Even apart from the hypothetical parents, absurd results
abound under the Majority’s construction. For example, the
Majority would criminalize a vacationing homeowner who
pays a house sitter but also allows the sitter to smoke marijuana
11
in his home. If the homeowner knew that the sitter cared less
about the pay than about having a place to smoke marijuana,
housesitting is the incidental use. At oral argument, the
government contended that drug use in these circumstances
would still be an “incidental” purpose because violating the
statute somehow depended on the number of people that the
defendant allowed to use the property. The statute does not
mention a numeric threshold. The Majority does not explain
why a guest’s purpose depends on the number of persons
sharing that purpose, and any threshold would necessarily
involve arbitrary line-drawing.
The Majority would also criminalize homeless shelters
where the operators know their clients will use drugs on the
property. Although the government argues that the shelter, like
the parents, would be protected by the incidental-purpose test,
it again just assumes that “the people who stay [at the shelter]
have housing as their primary purpose.”29 Again, not
necessarily. An operator of a homeless shelter may know (or
be deliberately ignorant of the fact) that some clients will stay
at the shelter because they want a concealed place to use drugs
and to sleep off the high. In other words, if they were
prevented from using drugs there, some of them might not go
there at all.
Throughout these proceedings the government has
followed the statute’s text only selectively. As yet another
example, the government insists that “place” includes only
“real property.”30 Thus, the government concedes that
Safehouse could provide a Consumption Room in a mobile van
29
Gov’t’s Reply at 15.
30
Nov. 16, 2020 Tr. at 34:4–35:7.
12
parked outside its facility. Although that hypothetical does not
directly implicate the “purpose” element, the government’s
response when pressed on this hypothetical at oral argument is
significant: The government conceded that it “ha[sn’t] thought
. . . enough” about the potential consequences of its
construction of the statute.31 As shown above, the
government’s lack of thought is self-evident. In fact, the
government’s construction of the statute, adopted by the
Majority here, is intolerably sweeping. No amount of a textual
gloss will save it.
ii
The Majority’s construction also conflicts with other
federal policies. For example, HUD strongly discourages
landlords from evicting certain classes of tenants for drug use
alone.32 The government again invokes the incidental-purpose
test, arguing that HUD’s “guidance regarding drug use . . . aims
to connect homeless individuals to housing ‘without
preconditions and barriers to entry.’”33 Under the Majority’s
construction, however, HUD’s purpose is irrelevant. Nor is the
landlord protected because this is a “residential example[]”34:
Even if the landlord knows that a tenant uses the property
primarily for drug binges, HUD expects the landlord to
continue leasing the property to the tenant unless the tenant
otherwise violates the lease.
31
Id. at 37:7–21.
32
HUD, HOUSING FIRST IN PERMANENT SUPPORTIVE HOUSING at 3
(July 2014), available at
https://files.hudexchange.info/resources/documents/Housing-First-
Permanent-Supportive-Housing-Brief.pdf.
33
Gov’t’s Reply at 15 n.5.
34
Id.
13
The Majority’s construction is also inconsistent with
congressional grants for sanitary syringe programs. In some
instances, this funding can be used to purchase syringes for the
injection of controlled substances,35 and the CDC strongly
encourages these programs to “[p]rovi[de] . . . naloxone to
reverse opioid overdoses.”36 Naloxone is indicated to reverse
“opioid depression, including respiratory depression.”37 By
explicitly acknowledging that these programs will provide
syringes for controlled substances and encouraging them to
provide medication used to treat ongoing overdoses, Congress
clearly envisioned that drug use would likely occur on or
immediately adjacent to the programs’ properties. In other
words, Congress is knowingly funding conduct that, according
to the Majority, is a crime punishable by twenty years’
imprisonment.
The Majority does not dispute that this would be
anomalous. Instead, the government argues that “Congress’s
failure to speak directly to a specific case that falls within a
more general statutory rule” does not “create[] a tacit
exception.”38 But that begs the question. Safehouse argues
35
See, e.g., Consolidated Appropriations Act of 2016, Pub. L. No.
114-113, 129 Stat. 2242, § 520.
36
CDC, PROGRAM GUIDANCE FOR IMPLEMENTING CERTAIN
COMPONENTS OF SYRINGE SERVICES PROGRAMS, 2016 at 2 (2016),
available at https://www.cdc.gov/hiv/pdf/risk/cdc-hiv-syringe-
exchange-services.pdf.
37
FDA, PRODUCT INSERT, NALOXONE HYDROCHLORIDE INJECTION
SOLUTION (Sept. 9, 2020), available at
https://www.accessdata.fda.gov/spl/data/5ac302c7-4e5c-4a38-
93ea-4fab202b84ee/5ac302c7-4e5c-4a38-93ea-4fab202b84ee.xml.
38
Gov’t’s Reply at 23 (quoting Bostock v. Clayton Cty., 140 S. Ct.
1731, 1746 (2020)).
14
that it does not fall under the “general statutory rule” because
the statute requires it to act with a particular “purpose” that it
does not have; it does not seek to create an “exception.”
Although not dispositive, Congress’s appropriation decisions
provide further evidence that Safehouse’s construction is
correct.
iii
Safehouse’s construction avoids these absurd results.
Illicit drug activity does not motivate parents to make their
home available to an adult son who is addicted to heroin. To
the contrary, they want their son’s drug use to stop. Nor does
illicit drug activity motivate shelter operators to admit
homeless people; or vacationing homeowners to look the other
way when their house sitters use drugs; or landlords to continue
leasing property to HUD recipients. In each instance, the
owners act despite their knowledge that drug use will occur,
not for the purpose that drug use occur.
By contrast, and contrary to the government’s
assertions, illicit drug activity does motivate drug dealers to
operate crack houses. They may have an overarching motive
of making money, but they specifically desire to achieve that
end through drug sales. They want the drug sales to occur.
Making the property available to customers to buy and use
drugs also facilitates the dealer’s unlawful purpose by helping
to avoid police. Similarly, drug sales and use are part of rave
operators’ business models because they drive up attendance.
Thus, in United States v. Tebeau,39 there was ample
circumstantial evidence that the campground owner wanted
39
713 F.3d 955 (8th Cir. 2013).
15
attendees to use drugs. Drug use and sales at his music
festivals were so widespread that they presumably influenced
attendance, for which the owner charged a $50 admission fee.
Indeed, the owner explicitly instructed security to admit
dealers of marijuana and psychedelics, who openly advertised
their products.
****
In sum, despite complaining that Safehouse’s
construction is somehow inconsistent with the statute’s
ambiguous text, the Majority has not identified a single
inconsistency. Instead, the Majority relies on textual gloss
after textual gloss, read into the statute by other courts of
appeals over the last thirty years. The result is like a George
Orwell novel where identical words have different meanings,
different words are superfluous, and two plus two equals five.
Furthermore, the Majority would require a defendant to divine
whether a third party’s illicit purpose is “primary,”
“substantial,” “incidental,” or whatever other adjective fits the
government’s argument at a given moment. Far from having a
“well-established limiting principle,”40 the Majority does not
define these terms, and courts have had substantial difficulty
pinning them down.
I would construe section (a)(2)’s purpose element
consonant with the identical language in section (a)(1) and not
contrary to virtually every other criminal statute on the books.
If the government wishes to prosecute Safehouse, it must show
that Safehouse will act with the requisite purpose. As
explained below, the government has not done so.
40
Gov’t’s Reply at 13.
16
III
I agree with the Majority that a defendant can have
multiple purposes and still be criminally liable.41 I also agree
that a defendant’s intentional, unlawful acts usually are not
excused merely because they are a step to achieving some
benevolent goal. Thus, in United States v. Romano,42 we held
that a lawful motive was not a defense to a crime requiring the
defendant to act with “an” or “any” “unlawful purpose.”43
Where, as here, a statute uses the phrase “for the purpose of,”44
however, our precedents focus on the defendant’s
motivations.45 Accordingly, I would hold that a defendant,
who is not motivated at least in part by a desire for unlawful
drug activity to occur and who in fact wants to reduce drug
activity, has not acted with the requisite purpose under section
856(a). On this record, Safehouse has no “unlawful”
motivating purposes.
A
The government concedes that Safehouse’s entire
facility is the relevant “place.”46 There is no evidence
suggesting that Safehouse will admit anyone to its facility
hoping that they will use drugs. To the contrary, it actively
41
See Hayward, 359 F.3d at 638.
42
849 F.2d 812 (3d Cir. 1988).
43
Romano, 849 F.2d at 812, 816 n.7 (emphasis added); accord 18
U.S.C. § 1382 (making it unlawful to “go[] upon any military . . .
installation, for any purpose prohibited by law or lawful regulation”
(emphasis added)).
44
United States v. Shetler, 665 F.3d 1150, 1162 (9th Cir. 2011).
45
See Hayward, 359 F.3d at 638.
46
Nov. 16, 2020 Tr. at 7:13–23, 8:12–23.
17
tries to persuade users to stop. Unlike drug dealers and rave
operators, Safehouse’s motivating purpose is to put itself out
of business.
The Majority puts undue emphasis on Safehouse’s
belief that the Consumption Room will make participants more
amenable to drug treatment. The record does not show that
that belief is the Consumption Room’s purpose. To the
contrary, increased amenability to drug treatment may be just
an incidental benefit of making Safehouse’s facility “available
for use” for the purpose of providing medical care to people
who would otherwise do drugs on the street and risk
overdose—just as having an indoor place to use drugs is an
incidental benefit of “maintaining” a house for the purpose of
living there. Significantly, Safehouse does not prefer that
participants choose the Consumption Room over direct entry
into rehabilitation: Participants can always enter drug
treatment at Safehouse,47 and, for decades, defendant Benitez
has tried (and continues to try) to have drug users enter into
rehabilitation through PPP.
47
I have again “look[ed] at the factual stipulations,” as the
government requested, but found nothing suggesting that it “is very
unlikely” that “somebody could come into Safehouse and not be
there to . . . ingest drugs” or that Safehouse “is not . . . set up [for]
people to come in to just get treatment.” Nov. 16, 2020 Tr. at 17:10–
18:21. To the contrary, “Safehouse intends to encourage every
participant to enter drug treatment, which will include an offer to
commence treatment immediately,” Appx. at 684, ¶ 9 (emphasis
added), and Safehouse explicitly states on its website that
participants can access its other services withing using the
Consumption Room.
18
Even if just the Consumption Room, not the full
Safehouse premises, were the relevant “place,” the
government’s claim still fails. In effect, the Majority is trying
to put yet another gloss on the statute: Section 856(a)(2)
requires the defendant to make a place “available for use” for
the purpose of “using a controlled substance,” not, as the
Majority would have it, “using a controlled substance [in the
place].” Because Safehouse requires participants to bring their
own drugs, Safehouse likely believes that participants would
use drugs regardless of whether the Consumption Room is
available. Safehouse’s desire for participants to use drugs in
the Consumption Room, as opposed to the street, does not
imply that Safehouse desires that they use drugs at all.
Moreover, and significantly, the record does not suggest
that participants must use drugs to enter to the Consumption
Room. For example, they could go to the Consumption Room
to receive fentanyl testing or safe-injection education for drugs
they intend to ingest elsewhere, or Naloxone to treat an
ongoing overdose that began outside the facility. Nor is there
any evidence that the Consumption Room will facilitate drug
use or that Safehouse believes that it will do so.48 Making the
48
Although the government is correct that § 856(a)(2) does not
include the word “facilitate,” it is hard to imagine how an action can
be taken “for” a particular “purpose” if it does not facilitate that
purpose. Courts routinely use “purpose” and “facilitate”
interchangeably. See, e.g., Abuelhawa v. United States, 556 U.S.
816, 824 (2009) (“The Government does nothing for its own cause
by noting that 21 U.S.C. § 856 makes it a felony to facilitate ‘the
simple possession of drugs by others by making available for use . .
. a place for the purpose of unlawfully using a controlled substance”
even though the crime facilitated may be a mere misdemeanor.”);
United States v. Durham, 902 F.3d 1180, 1193 (10th Cir. 2018);
19
Consumption Room available may make drug use safer, but the
record does not show that safer drug use is easier than unsafe
drug use or causes more drug use to occur.
In conclusion, the government has not met its burden of
showing that drug use will be one of Safehouse’s motivating
purposes. Rather, Safehouse is trying to save people’s lives.
B
Even if “drug use” were Safehouse’s purpose,
Safehouse still does not violate the statute. Moreover, to the
extent that the Majority holds that Safehouse does, the statute
is unconstitutional. “Using a controlled substance” is not
“unlawful” under federal law; possessing it is. At oral
argument, it was suggested that using drugs is unlawful under
state law. Not so. Pennsylvania law criminalizes the use of
drug paraphernalia in certain circumstances,49 but not the use
of drugs itself.50
United States v. McGauley, 279 F.3d 62, 76 (1st Cir. 2002); United
States v. Bolden, 964 F.3d 283, 287 (4th Cir. 2020); United States v.
Petersen, 622 F.3d 196, 208 (3d Cir. 2010); United States v. Cole,
262 F.3d 704, 709 (8th Cir. 2001); United States v. Ellis, 935 F.2d
385, 390–91 (1st Cir. 1991); see also Rewis v. United States, 401
U.S. 808, 811 (1971); Fed. Ins. Co. v. Mich. Mut. Liab. Co., 277
F.2d 442, 445 (3d Cir. 1960) (“Removing and replacing the rear
wheels was to facilitate unloading, not for the purpose of preserving
an existing state or condition . . . .”).
49
See 35 PA. CONS. STAT. § 780-113(a)(32);
50
Commonwealth v. Rivera, 367 A.2d 719, 721 (Pa. 1976) (“The
m[e]re possession of such drugs, however, is not an offense under
the law . . . .”). The government argues that using drugs necessarily
involves unlawful possession. Section 856(a) requires, however,
20
Moreover, because “drug use” is not unlawful in some
states but is unlawful in others, we are faced with situations
where property possessors in different states may be treated
differently by section 856(a)(2). In situations where the only
“unlawful” purpose of an establishment is “drug use,” section
856(a)(2) would allow someone in one state to use his property
in ways that someone in another state could not.51 The Equal
Protection Clause has long been applied to the federal
government52 and prohibits discrimination that is not
“rationally related to a legitimate governmental interest.”53 I
cannot conceive of any rational basis for prosecuting those who
manage or control property in a state where “drug use” is
that the defendant act for the purpose of “unlawfully . . . using”
drugs; it is not enough that they act for the purpose of using drugs
coupled with some different unlawful activity such as possession. If
Congress meant “possessing,” it certainly knew how to say so;
instead, it said “using.” Although proof of use can serve as proof of
unlawful possession, “the terms ‘possession’ and ‘use’ are by no
means synonymous or interchangeable.” United States v. Blackston,
940 F.2d 877, 883 (3d Cir. 1991). The same is true of using drug
paraphernalia for the purpose of ingesting drugs: The operative
unlawful conduct is the use of drug paraphernalia for the purpose of
using drugs; § 856(a) requires the drug use itself, however, to be
unlawful.
51
See Hurtado v. United States, 410 U.S. 578, 595 (1973) (Brennan,
J. concurring in par) (“My conclusion that the majority has
misconstrued the statute is fortified by the conviction that the
statute, as interpreted by the Court, would be invalid under the Due
Process Clause of the Fifth Amendment.”).
52
See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
53
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 533 (1973); cf.
Soto-Lopez v. N.Y. City Civ. Serv. Comm’n, 755 F.2d 266, 275–76
(2d Cir. 1985).
21
illegal and not doing so in a state where “drug use” has not
been made illegal.54
IV
In sum, I cannot agree with the Majority’s interpretation
of section 856(a)(2). Because Safehouse does not have any of
the purposes prohibited by section 856(a)(2), I would affirm
the District Court’s holding that Safehouse’s conduct will not
violate the CSA. For the above reasons, I respectfully dissent.
54
That is not to say that Congress can never incorporate state law
into a federal criminal statute if it does not discriminate based on the
location of property or has a rational basis for doing so. See, e.g.,
United States v. Titley, 770 F.3d 1357, 1360–62 (10th Cir. 2014).
22