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
2

_______________

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
3

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
4

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 Reschenthaler, 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
5

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 Neighborhood 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 Liberties Union of Pennsylvania
6

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
7

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 Multidisciplinary 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 Territorial AIDS Directors, Network for Public Health, Pennsylvania 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 Advocacy Project, Pathways to Housing Pennsylvania, Catholic Worker Free Clinic, Bethesda Project Inc., and St. 

Francis Inn
8

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 Former Department of Justice Official and Leaders
9

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 Leaders 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
10

_______________

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 favors a public-health response to drug addiction, with medical 

staff trained to observe drug use, counteract overdoses, and offer 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 safeinjection 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 Americans 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 
11

carve out an exception. Because we cannot do that, we will reverse and remand.

I. BACKGROUND

A. The federal drug laws

Drug addiction poses grave social problems. The opioid crisis 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 problems. Lawmakers and prosecutors have traditionally used 

criminal prosecution to try to stem the flow, targeting the supply and hoping to curb demand. Others emphasize getting users 

into rehab. Harm-reduction proponents favor treating drug users without requiring them to abstain first. Still others favor

decriminalizing or even legalizing drugs. There is no consensus 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.
12

Title II of that law, the Controlled Substances Act, broadly 

regulates illegal drugs. The Act spells out many crimes. A person 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 together 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, police 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 maintainer 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 manufacturing operations” to “Maintaining drug-involved premises.” 
13

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 Philadelphia. 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 consumption 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 injection 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 
14

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, counteracting 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 experiencing 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 violate 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 illegal 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 
15

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 final 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, final, 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 visitors “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;
16

(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 substance.

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 intentionally 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 
17

“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 defendant 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 “intentionally” introduce this second phrase, modifying the defendant’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 
18

course, Congress can make it a defense. Id. But it does so sparingly, 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 others “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 mental 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 
19

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 structured.

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 temporarily, 

for the purpose of manufacturing, distributing, or using any controlled substance.

21 U.S.C. §856(a)(1) (line break added; mens rea terms italicized). 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 purpose 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 “manufactur[e]” them with a business partner. He can even have his 

employees do that work for him; a kingpin can run a drug 
20

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 dealing operation. See United States v. Verners, 53 F.3d 291, 296–

97 (10th Cir. 1995). He may not manufacture meth in his garage 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 dealers 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 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 substance.
21

21 U.S.C. §856(a)(2) (line breaks added; mens rea terms italicized). 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, lessee, 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. Paragraph (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 “manufacture[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.
22

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” refers 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 involved 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 different 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 semicolon. 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 defendant himself must have the purpose of drug activity. It concedes 
23

that the paragraphs partly overlap. But it argues that (a)(1) covers the crack house’s operator, while only (a)(2) covers a “distant 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 paragraphs fares no better. It postulates an owner who lets her boyfriend 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 independent 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 collapse the two into one.

Safehouse’s reading would also make paragraph (a)(2)’s intent requirement redundant of its purpose requirement. 
24

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 defendants 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 difference 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” 
25

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 instance, 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 Interpretation 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 differently because they target use by different actors.

Second, Safehouse fares no better by citing the rule of lenity. 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 
26

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 “unlawfully,” the prosecution must prove that the victim did not consent to come along. 18 U.S.C. §1201(a). And when one member of a drug ring goes astray and kills someone, his coconspirators 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 partners 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 knowingly 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] control” the site. Second, it will “intentionally ... make [its consumption room] available for [visitors’] use,” knowing that 

they will use drugs there. But visitors will come for other reasons too, including Safehouse’s medical and counseling services. So the question is whether the visitors’ use of the consumption room will satisfy the third phrase: (a)(2)’s purpose 

requirement. It will.
27

A person’s purpose is his “objective, goal, or end.” Purpose, Black’s Law Dictionary (11th ed. 2019). It is something 

he “sets out to do.” Purpose (def. 1a), Oxford English Dictionary (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 purpose” 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 attraction is its consumption room. Visitors will bring their own 

drugs to use them there. And many of Safehouse’s services will 
28

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 reduce 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 purpose, 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 medical 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 defendant can be guilty even if he has the best of motives. A child 
29

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 “consumption room” or “safe-injection site.” App. 683–84. It expects 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 treatment “after they have consumed drugs and are not experiencing withdrawal symptoms.” App. 685.

In short, Safehouse will offer visitors a space to inject themselves 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 important, 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 
30

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 lawmakers. “[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.; accord 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 Recovery 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 
31

banned federal funding of syringe-exchange programs but authorized 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 violate §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, noncommercial 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 market for drugs. The Commerce Clause, together with the Necessary and Proper Clause, gives Congress the power to do that.

U.S. Const. art. I, §8, cl. 3, 18.
32

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 comprehensive regulatory scheme

Using its commerce power, Congress can regulate the 

“channels of interstate commerce”; “instrumentalities,” people, 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 regulate 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 commercial. 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 
33

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 substantially affect interstate commerce. Id.

2. Congress can regulate noneconomic activities only as 

part of a larger regulatory scheme. Congress’s power to regulate noneconomic activities, like many traditionally local 

crimes, is more limited. “Congress may [not] regulate noneconomic, violent criminal conduct based solely on that conduct’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 regulatory 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 
34

(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. Rodia, 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 “ ‘reasonably adapted’ to the attainment of a legitimate end under the 

commerce power.” Raich, 545 U.S. at 37 (Scalia, J., concurring) (quoting United States v. Darby, 312 U.S. 100, 121 

(1941)).

Having discussed the two bases for regulating local activities, we can now apply them. As the next two sections explain, 

both the comprehensive-scheme and aggregate-economiceffect 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 economic activity or not, Congress can regulate it. The drug market 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., 
35

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, cocaine, 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 commerce. 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 activities. The national drug market is bound up with local activities. 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.
36

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., concurring).

3. Section 856 is a key part of the Act’s comprehensive regulatory scheme. At oral argument, Safehouse sought to distinguish 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 manufacture, 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 restaurateurs know that they could face steep fines for tolerating 
37

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 comprehensive 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, substantially 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 available for free is noneconomic. But Raich forecloses that argument.

1. Making properties available for drug use is economic 

activity. Raich defined “economics” broadly as “the production, distribution, and consumption of commodities.” 545 U.S. 

at 25–26 (quoting Webster’s Third New International Dictionary 720 (1966)) (emphasis added). These are all activities that 

affect national supply and demand and thus interstate commerce. So producing, distributing, and consuming drugs are 

“quintessentially economic” activities. Id. Even intrastate 

growing of marijuana for home consumption is economic, 
38

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 substantially 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. Economic activity is broader than commercial activity; it need not 

involve buying and selling. Congress validly banned these noncommercial 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 regulate the whole class of drug activities, and courts cannot “excise” 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)).
39

2. Congress has a rational basis to believe that this activity, as a class, substantially affects interstate commerce. Congress 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 arguably 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 increase drug use and trafficking. That empirical and policy debate 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 regulating 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 druginvolved 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 order 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 economic activity that, in the aggregate, could substantially affect 

interstate commerce.
40

* * * * *

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 rational 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.
1

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.
2

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.”).
3

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).
4

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).
5

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 
6

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).
7

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).
8

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”).
9

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”). 
10

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.”).
11

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 
12

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.
13

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-FirstPermanent-Supportive-Housing-Brief.pdf.

33 Gov’t’s Reply at 15 n.5. 

34 Id.
14

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-syringeexchange-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)).
15

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).
16

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.
17

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.
18

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.
19

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); 
20

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, 
21

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).
22

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).