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United States District Court, D. MassachusettsDec 21, 2007
CRIMINAL NO. 07-10176-DPW. (D. Mass. Dec. 21, 2007)

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CRIMINAL NO. 07-10176-DPW.

December 21, 2007


The defendant has been charged with the offense of distributing cocaine within 1,000 feet of a playground in violation of 21 U.S.C. § 860. The government contends the entire Boston Common is a playground for purposes of § 860 and that § 860 is applicable because the alleged transaction took place approximately 300 feet from the edge of the Common. The defendant concedes that the Boston Common contains among other facilities a totlot, ballfields and a skating rink; but he seeks a pretrial ruling construing the term "playground" under 21 U.S.C. § 860 to constitute less than the entirety of the Common, in order to present a defense on the basis that the alleged drug transaction took place more than 1,000 feet from a playground. In response to the request of the parties, I offer these preliminary observations in anticipation of the hearing later today.

I share the view of the Tenth Circuit that
The term "playground" can have varied meanings. To some, a playground could be a cow pasture; to others, a fenced-in surface of asphalt; and to still others, a playground is a place containing various apparatus. Congress chose to define the term in a specific manner, and, consequently, proof must be adduced in order to sustain a jury's conclusion that a playground was involved.
United States v. Smith, 13 F.3d 380, 382 (10th Cir. 1993). Accordingly, I turn to the words of the statute.

Section 860(a) provides that any person who engages in the knowing and intentional distribution of a "controlled substance in or on, or within one thousand feet of, the real property comprising . . . a playground" may be punished more severely than one who engages in such distribution elsewhere.

Section 860(d) defines a "playground" as

any outdoor facility . . . intended for recreation, open to the public, and with any portion thereof containing three or more separate apparatus intended for the recreation of children including but not limited to, sliding boards, swingsets, and teeterboards.

The threshold question therefore is whether the entire Boston Common is "real property comprising a playground." I have had occasion recently to construe the plain meaning of the word "comprise" in the different context of a patent case. Cytyc Corp. v. Tripath Imaging, Inc., 505 F.Supp.2d 199, 216-17, n. 15, (D. Mass. 2007). There, I observed that an important distinction exists between the word "comprise" and "includes" — a word for which "comprise" is sometimes erroneously, and over the counsel of usage experts, substituted:

The distinction is concisely stated in Gowers. "The difference between comprise and include is that comprise is correct when all the components are enumerated and include when only some of them are." Sir Ernest Gowers, The Complete Plain Words 215 (S. Greenbaum J. Whitcut revision) (3d. ed. 1988).
Jacques Barzun has urged writers "to make the effort of coming to terms with include, compose and comprise." Jacques Barzun, Simple Direct: A Rhetoric for Writers 128 (rev. ed. 1994). Barbara Wallraff explains that "[t]he reason comprise is confusing to many people is the same reason that it's useful: It doesn't work the same way as similar words." Barbara Wallraff, Word Court 176 (2000).
Among those concerned with maintaining meaningful linguistic distinctions, the difference between "comprise" and "include" continues to be observed.
The preeminent Twentieth Century newspaper copy editor explained that "[c]omprise has the meaning of contain, embrace, include and comprehend . . . The whole comprises the parts, not the reverse." Theodore M. Bernstein, The Careful Writer: A Modern Guide to English Usage 113 (1965). He further observed that "[t]he word include, however, usually suggests that the component items are not being mentioned in their entirety. If all are being mentioned it would be better to write `The seven were . . .'; or, if there is an irresistible urge for a fancy word, to use comprised." Id. at 228.
Similarly, a journeyman book of American usage cautions writers to "be careful to use include only of incomplete lists: A baseball team is made up of nine players. It includes a pitcher, a catcher, and four infielders. It is composed of these, plus three outfielders. (And the team comprises these nine players; they compose the team.)" Kenneth G. Wilson, The Columbia Guide to Standard American Usage 106 (1993).
Of course the distinctiveness of words in common and ordinary meaning can be eroded when those bodies charged with superintending language . . . neglect the distinctions. Thus, the former editor of the Oxford English dictionaries has reported from the field that " [c]omprise is . . . competing with include". The New Fowler's Modern English Usage 387 (3d ed. 1996). Nevertheless in this competition he finds that the differences still remain: "[w]hen two words such as include and comprise have roughly the same meaning, examination will generally reveal a distinction; and the distinction between the present two seems to be that comprise is appropriate when the content of the whole is in question, and include only when the admission or presence of an item is in question."
Id. at 217.

Observing the appropriate linguistic distinctions, I conclude that only the real property facility intended for recreation that contains the requisite apparatus for children is within the scope of § 860. The entirety of real property that merely includes, among other things, such recreational opportunities, is not necessarily within § 860's scope.

Although the question is a factual one which ultimately must be decided, if necessary, by a finder of fact, it does not appear that the entirety of Boston Common is within § 860. Commentators have described the Boston Common as multipurpose real estate intended for more than just recreation. See generally, David Hackett Fischer, Boston Common, in American Places, 125-143 (William E. Leuchtenburg ed., 2000); Susan Wilson, Boston Sites and Insights, 251-57 (1994). For example, a burial ground with 487 headstones lies within the Common. Id. at 255. And the property is populated by an extensive collective of public statuary. Marty Carlock, A Guide to Public Art in Greater Boston, 30-32 (1988).

The various purposes for which the real property of the Boston Common has been intended have evolved and proliferated over the past nearly four centuries of the Common's existence. Boston purchased the 50 or so acres of open land which now comprise the Boston Common in 1634. "In English custom, the colonists set aside the field for common use, in particular miliary training and the grazing of cattle." Friends of the Public Garden, Images of America: Boston Common 7 (2005). "By 1830, the City had banished the cows." Id. at 8. And, while as a general proposition, "[b]y the 1850s, the Common, now surrounded by residential neighborhood, had become a natural playground for children," id. at 44, that use of the term "playground" is not necessarily coincident with the precise definition found in § 860(d). "The Common today . . . is a valued resource of the people of Boston and many thousands of annual visitors — a place of sports, informal and organized; exhibitions; musical events; a Shakespeare festival; rallies and protests; charity and art shows; and on New Year's Eve, Boston's famous First Night." Id. at 9.

To be sure, there are now outdoor facilities of the type specified by § 860 for the recreation of children within the Boston Common. Yet, while "[t]he Common has always been a resort for children, . . . there was no children's playground until about 1950. In 2002 this facility was renewed through private benefactors as the Tadpole Totlot." Id. at 127. I note that the Boston Common now includes not merely a renewed totlot but also those separate elements such as "tennis courts, ballfields, and a skating rink" having characteristics the Ninth Circuit has found, and I agree, are "apparatus intended for the recreation of children." United States v. Migi, 329 F.3d 1085, 1089 (9th Cir. 2003). But these various apparatus would appear to be only part of the real property which comprises the Boston Common. Currently, and through its history, the Common has reportedly "comprised" a good deal more than apparatus for recreation.

I recognize that some courts have been satisfied that identification of real property as a "park" can be sufficient to conclude that the property is necessarily an outdoor facility open to the public and intended for recreation. See United States v. Parker, 30 F.3d 542, 552 (4th Cir. 1994). But with respect, I find the use of the term "park" as a shorthand definition for playground has deflected more thorough pursuit of the scope of the statutory definition of playground. Surely, not all "parks" can necessarily be said to be entirely playgrounds within the meaning of § 860, even if they have three separate apparatus intended for the recreation of children. Parks, after all, come in various sizes and flavors. It would stretch the limitations of § 860 well beyond their breaking point to say that the entirety of any such real property containing the requisite apparatus was a playground. Consider for example, the 2,221,766 acres of Yellowstone National Park. It is inconceivable that every place in, on and within 1,000 feet of the perimeter of such a park can be said to fall within § 860.

Although the opinions have not always been explicit on the point, the reported cases appear to concern specifically recreational parks smaller than the Boston Common, let alone this country's great National Parks. Internet research discloses, for example, that Honolulu's `A'ala Park at issue in United States v. Migi, 329 F.3d 1085 (9th Cir. 2003), the only case cited by the government, is a pocket park of less than an acre. And, according to the website of the City of Charlottesville, Tonsler Park, the land discussed in United States v. Parker, 30 F.3d 542 (4th Cir. 1994) is 7.4 acres and includes a recreation center, tennis and basketball courts, and playground equipment. I note further that in United States v. Smith, 13 F.3d 380 (10th Cir. 1993), the court determined that no reasonable jury could convict the defendant under § 860 because the government had failed to present any evidence that Crawford Park, a 24-acre park in Tulsa, had the requisite three apparatus. Id. at 382.

I find the Massachusetts version of a law similar to § 860 to be instructive. The state statute punishes intentional drug distribution "within one hundred feet of a public park or playground." Mass. Gen. Laws ch. 94C § 32J. Although the state statute cannot provide specific guidance regarding what the United States Congress meant when it used the term "playground" in § 860, the statute does provide evidence of the ordinary meaning of "recreation" in the context of parks and playgrounds. Massachusetts courts interpreting the statute have noted the disjunctive quality of "park" and "playground," Commonwealth v. Davie, 703 N.E.2d 236, 2398 (Mass.App.Ct. 1998), and have found Boston Common to be a "public park" containing more than just a playground. Commonwealth v. Graham, 55 Mass. App. Ct. 1104, at *1 (2002) (unpublished opinion). The Appeals Court in Davie noted that in dictionaries and prior caselaw a park has been defined variously "as a place of beauty or of public recreation," "maintained for recreational or ornamental purposes," and "maintained for the purposes of pleasure, exercise, amusement or ornament." 46 Mass. App. at 28. It would appear, although this also is a question of fact, that while Boston Common is a park, it has several purposes beyond mere recreation. For present purposes, however, I conclude as a matter of law that a park — particularly one of the Boston Common's size, history and ornamentation — may comprise more than a "playground" as defined in § 860.

Giving the words "comprise" and "recreation" in § 860 their ordinary meaning requires a focus on the discrete real property areas which actually comprise a playground. Accordingly, without further refinement at this time, I hereby preliminarily advise the parties that the fact finder in this case will be instructed that it will not be sufficient to satisfy § 860 for the government merely to prove that the drug transaction at issue here took place within 1,000 feet of the Boston Common. Rather, the government must prove beyond a reasonable doubt that the transaction took place within 1,000 feet of some distinctive playground facility (and its curtilage) located within the Boston Common.