In United States v. Hohn, 8 F.3d 1301, 1302 (1993), the appellant was convicted, under 21 U.S.C. § 845a, of the distribution of methamphetamine within one thousand feet of a public school and appealed the district court's denial of his motion to dismiss that charge.
The appellant was arrested on June 20, 1990, in his home, which was "located within 177 feet of Central Park Elementary School (Central Park)." Id.
Central Park's last day of classes for the 1989-90 school year was June 7, 1990. Id. The student body was to be relocated to another building for the 1990-91 school year because "the public school system planned to remodel and attach an addition to the present building." Id.
On appeal, the appellant maintained that Central Park was "not a public school at the time of the offense because it was not operational;" in other words, "because Central Park was closed for remodeling at the time of the arrest, it was not a school as a matter of law." is inapplicable, as aId. at 1307.
The United States Court of Appeals for the Eighth Circuit disagreed with the appellant and held that there was sufficient evidence for a jury to conclude that Central Park satisfied the statutory definition of a "school." Id.
The court first noted that "on June 20, 1990, the date of the appellant's arrest, the public maintained access to the school grounds for recreational purposes." Id. at 1302.
The court then stated:
The magistrate judge found in an opinion adopted by the district court that as a preliminary matter there was sufficient evidence to find that Central Park was a school. The final determination as to whether Central Park met the statutory definition of school was determined by the magistrate judge to be a question of fact appropriate for the jury. We agree. The Omaha public school system continued to carry Central Park on its books as a school. The children continued to use the school grounds. A school need not be in session to trigger the schoolyard statute's penalties. The district court did not err when it denied Hohn's motion to dismiss Count I. Id. at 1307.