The opinion
District of Columbia
Court of Appeals
No. 13-CF-1131
JUL 28 2016
KEVIN YOUNG,
Appellant,
v. CF2-17496-12
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: WASHINGTON, Chief Judge; BECKWITH, Associate Judge; and REID,
Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby
ORDERED and ADJUDGED that appellants conviction for possession with
intent to distribute (―PWID‖) is affirmed. The case is remanded to allow the trial court to
vacate appellant‘s conviction for possession of liquid PCP.
For the Court:
Dated: July 28, 2016.
Opinion by Associate Judge Corinne Beckwith.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CF-1131
7/28/16
KEVIN YOUNG, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-17496-12)
(Hon. Michael Ryan, Trial Judge)
(Argued April 14, 2015 Decided July 28, 2016)
Cecily Baskir for appellant.
Kristina L. Ament, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the briefs were filed, and Chrisellen
R. Kolb and Kara Traster, Assistant United States Attorneys, were on the brief, for
appellee.
Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and REID,
Senior Judge.
BECKWITH, Associate Judge: After police officers discovered two partially
filled vials of liquid PCP in the driver-side door of appellant Kevin Young‘s SUV,
Mr. Young was arrested and charged with possession of a controlled substance
2
with intent to distribute (PWID) and possession of liquid PCP. See D.C. Code
§§ 48-904.01 (a)(1), (d)(2) (2012 Repl.). Before trial, Mr. Young‘s nephew
Maurice Young1 indicated that if he were granted immunity from criminal charges,
he would testify that he was the last person to have driven the vehicle. The
Attorney General of the District of Columbia declined to grant Maurice immunity
from any charges related to drug possession and underage drinking, and in a Carter
proceeding regarding the reasonableness of that decision, see Carter v. United
States, 684 A.2d 331 (D.C. 1996) (en banc), the trial court ruled that no
reasonableness inquiry was required because Maurice‘s testimony was not ―clearly
exculpatory.‖ Mr. Young was ultimately convicted after a trial in which Maurice
invoked his Fifth Amendment rights when asked if he had been the last driver of
the vehicle. Mr. Young contends that the trial court erred by ruling that the
testimony was not clearly exculpatory. We agree that the proffered testimony was
exculpatory, but we affirm the trial court‘s ruling because the proffered testimony
was not material. We also conclude that the government provided sufficient
evidence of Mr. Young‘s intent to distribute to support his PWID conviction, but
we remand for the trial court to merge Mr. Young‘s convictions for PWID and
possession of liquid PCP.
1
To avoid confusion, we will refer to appellant Kevin Young as Mr. Young
and to his nephew as Maurice.
3
I.
According to the evidence at trial, in October 2012, Metropolitan Police
Department Officer Christopher Clayton responded to a disorderly conduct call
regarding a man and a boy who were arguing at an apartment building in the
southeast quadrant of the District. The officer approached the two, who were later
identified as Mr. Young and his nephew Maurice, to ask them ―what was going
on‖ and to determine ―[i]f any crime had occurred.‖ The officer noticed a white
SUV ―just in a parking lot, all by itself, with the engine running,‖ and another
officer on the scene, William Hawkins, went to ―check out‖ the car. Using his
flashlight to peer into the car, Officer Hawkins spotted a belt with an empty gun
holster and handcuff case in the back seat of the car and two vials in the driver-side
door handle. Officer Hawkins went back and whispered this information to Officer
Clayton, and Officer Clayton asked Mr. Young if he was a police officer.
According to Officer Clayton, Mr. Young said he was not, and that he had just
found those items. Mr. Young admitted that it was his vehicle and that he ―just
drove up.‖
Mr. Young then walked over to the vehicle with the officers and opened the
driver-side door, ―immediately plac[ing] his left hand over the two vials by the
door handle.‖ The officers noticed a smell that they recognized as PCP. Officer
Clayton asked Mr. Young what he was covering up, and after answering ―oils,‖
4
Mr. Young was arrested and handcuffed. Officer Clayton then noticed that the
vials held an amber liquid, which (as the parties stipulated at trial) contained 5.6
grams of liquid PCP.
Prior to trial, Mr. Young moved to suppress the PCP and the statements he
made during the encounter, but the trial court ruled that the officers did not engage
in custodial interrogation within the meaning of the Fifth Amendment and that Mr.
Young had voluntarily opened the car door, which led the officers to smell PCP
and see the vials in plain view. At the suppression hearing, Mr. Young testified
that he had driven the car to the apartment with his nephew as the sole passenger.
Maurice testified similarly. But on the morning of jury selection, counsel for Mr.
Young raised a ―Carter issue,‖ indicating that Maurice had been the last one to
drive the car and that the drugs belonged to him.2 See Carter v. United States, 684
A.2d 331, 344–45 (D.C. 1996) (en banc) (outlining process for judicial review of
government‘s decision not to grant immunity to a ―crucial defense witness‖ who
invokes his Fifth Amendment right against self-incrimination). The court
appointed counsel for Maurice, who proffered that Maurice would testify that he
2
It appears that counsel for Mr. Young first learned this information that
morning when the prosecutor gave him Brady material that included an officer‘s
statement that Mr. Young told him on the night of the offense that Maurice was
driving and that the drugs belonged to Maurice. See Brady v. Maryland, 373 U.S.
83 (1963). Counsel then heard a similar statement directly from Mr. Young.
5
had driven the SUV on the night in question but that he had no knowledge of the
drugs in the SUV. The trial court concluded that Maurice had a Fifth Amendment
right against admitting to driving under the influence (DUI) in light of testimony at
the suppression hearing that he was intoxicated, and the court also determined that
the fact that Maurice was driving ―would be significant . . . in a chain [of facts] that
could exculpate Kevin Young.‖ The trial court concluded that the Carter standard
had been met,3 and so the court asked the prosecutor to confer with the Office of
the Attorney General (OAG) to discuss possible immunity for Maurice from DUI
charges as well as a potential charge of constructive possession of PCP. The OAG
ultimately granted Maurice immunity from charges stemming from DUI and
driving without a permit, but it declined to grant him immunity from charges
related to drug possession and underage drinking.4 According to the OAG,
Maurice‘s testimony that he was driving ―would be a clear instance of perjury‖
because he had earlier testified during the suppression hearing that Mr. Young was
driving. ―We cannot support that,‖ the OAG attorney said.
3
That is, the proffered testimony was ―material, exculpatory, non-
cumulative evidence, unobtainable from any other source.‖ 684 A.2d at 345.
4
The OAG, rather than the U.S. Attorney‘s Office, had the authority to
immunize Maurice from the DUI and no-permit charges because it has the
responsibility to prosecute D.C. criminal traffic offenses. The OAG had the
authority to immunize him from the remaining charges because he was a juvenile.
6
Mr. Young then moved for sanctions under Carter, but the trial court
reconsidered the question whether Carter applied at all. The court concluded that
it had initially applied the wrong standard and that the proffered testimony did not
―clearly exculpate‖ Mr. Young because ―the fact that it could tend to inculpate
Maurice Young in some sort of joint constructive possession theory doesn‘t
exculpate Kevin Young from the same theory.‖ Because the testimony was not
―wholly exculpatory,‖ the court ruled that ―Carter‘s not implicated by it.‖ ―The
only clear exculpation,‖ the court stated, would be if Maurice testified ―the drugs
were mine, or I can tell you that the drugs weren‘t Kevin Young‘s.‖
Maurice ultimately testified at trial without immunity from the charges
related to drug possession and underage drinking. He asserted his Fifth
Amendment rights when asked whether he was the driver or passenger of the car
on the last ride with Mr. Young before the police arrived. Maurice also invoked
the Fifth Amendment when asked if he ―put those drugs in that particular car,‖ but
after consulting with counsel, he answered the question ―[n]o.‖ On cross-
examination, the government introduced Maurice‘s suppression hearing testimony
that Mr. Young had been driving the SUV. On redirect, Maurice testified that his
prior testimony was untruthful because he was afraid of being prosecuted, and that
he was ―now telling the truth and taking the Fifth‖ because the government would
not grant him immunity.
7
The jury convicted Mr. Young of both PWID and possession of liquid PCP.
II.
On appeal, Mr. Young first argues that the trial court erred in determining
that Carter was ―not implicated‖ because Maurice‘s testimony would not be
―clearly exculpatory‖ to Mr. Young. The parties initially dispute whether Carter
requires the proffered testimony to be exculpatory or ―clearly‖ exculpatory. In
laying out the four-part test, Carter uses the former term three times and the latter
once, see generally 684 A.2d at 340–44, and our cases since have inconsistently
used one formulation or the other. Compare, e.g., Hayes v. United States, 109
A.3d 1110, 1116 (D.C. 2015) (―exculpatory‖), with Wynn v. United States, 80 A.3d
211, 220 (D.C. 2013) (―clearly exculpatory‖). The parties have not cited, nor have
we found, any case in which this court analyzed the distinction or determined that
it made a difference to the holding.5
5
We found only one published opinion in which the parties disputed
whether the testimony was exculpatory. See Bell v. United States, 950 A.2d 56
(D.C. 2008). The dispute there was factual, however, rather than legal; appellant
proffered that the Carter witness would testify that appellant did not commit the
crime, but the witness‘s counsel proffered that he would ―not only deny any
culpability in the robbery, but also point the finger of blame at appellant.‖ Id. at
61–63. The trial court credited the witness‘s counsel and found that Carter was
not implicated. Id. at 62. In that case, the testimony was clearly inculpatory, and
so the court had no occasion to analyze whether the proper standard was
―exculpatory‖ or ―clearly exculpatory.‖
8
Carter adopted its four-part test from a Second Circuit case holding that
―[d]efense witness immunity is required only upon a showing that ‗(1) the
government has engaged in discriminatory use of immunity to gain a tactical
advantage or, through its own overreaching, has forced the witness to invoke the
Fifth Amendment; and (2) the witness’[s] testimony will be material, exculpatory
and not cumulative and is not obtainable from any other source.‘‖ Carter, 684
A.2d at 340 (quoting United States v. Rivera, 971 F.2d 876, 887 (2d Cir. 1992)).
The Carter majority emphasized that its rule ―emanates from settled law that the
government has a constitutional duty to volunteer exculpatory evidence to a
criminal defendant.‖ Id. at 344 (citing United States v. Agurs, 427 U.S. 97 (1976),
and United States v. Bagley, 473 U.S. 667 (1985)). Both Agurs and Bagley involve
applications of the Brady doctrine, under which due process is violated when the
prosecutor suppresses ―evidence favorable to an accused . . . where the evidence is
material either to guilt or punishment.‖ 373 U.S. at 87.
It is therefore clear that the Carter majority intended the word ―exculpatory‖
in its four-part standard to mean the same thing as in the Brady context.6
6
―Favorable‖ evidence under Brady includes impeachment evidence ―as
well as exculpatory evidence,‖ see Bagley, 473 U.S. at 676, although the Carter
court clarified that ―the defendant‘s proposed witness must be offering exculpatory
evidence in order to begin to come within the rationale of this opinion.‖ Carter,
684 A.2d at 344 n.17.
9
Exculpatory evidence under Brady is that evidence that ―tends substantively to
negate guilt.‖ Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995).7 We therefore
disagree with the contention that the evidence must completely or wholly exculpate
appellant to be considered ―exculpatory.‖ The proffered testimony here was
favorable to Mr. Young, and thus exculpatory, because it established that another
person was the most recent occupant of the driver‘s seat where the drugs were
found and thus increased the likelihood that the drugs did not belong to Mr.
Young. No more was required to meet this prong of the test.
The government argues, alternatively, that we may affirm Mr. Young‘s
convictions on the ground that the OAG‘s decision not to immunize Maurice was
reasonable because ―this case involved such clear indications that Maurice Young
intended to perjure himself at appellant‘s trial.‖ We stated in Carter that a ―threat
7
Some courts have defined exculpatory evidence in a manner that conflates
it with materiality. See Mays v. City of Dayton, 134 F.3d 809, 815 (6th Cir. 1998)
(―[E]xculpatory evidence [is] defined as material evidence that would have a
bearing upon the guilt or innocence of the defendant.‖ (citing Brady, Agurs, and
Bagley)). Our case law makes clear that favorability and materiality are distinct
concepts. See Vaughn v. United States, 93 A.3d 1237, 1244 (D.C. 2014) (stating
that under Brady, ―the government has a constitutionally mandated obligation to
disclose to the defense, prior to trial, information in the government‘s actual or
constructive possession that is favorable and material‖); Miller v. United States, 14
A.3d 1094, 1109 (D.C. 2011) (confirming that there is a duty to disclose favorable
evidence ―even when the items disclosed subsequently prove not to be material‖
(citing Boyd v. United States, 908 A.2d 39, 59-60 & n.31 (D.C. 2006))).
10
of a blatant perjury . . . may sometimes be so apparent as to be demonstrable to the
trial judge [that] the government could not reasonably be expected to cloak in
advance such testimony with immunity.‖ 684 A.2d at 342. We do not share the
government‘s confidence that Maurice‘s proffered trial testimony would constitute
perjury. At the outset, while Maurice indicated he would testify at Mr. Young‘s
trial contrary to his testimony at the suppression hearing, he offered a plausible
explanation for the discrepancy, and it is not at all obvious that Maurice‘s proposed
trial testimony was the untrue account. But even leaving that question aside, the
record reflects some ambiguity—only exacerbated by Maurice‘s apparent
cognitive limitations8—about whether Maurice grasped the questions he was asked
and therefore whether he believed he was giving false testimony at the suppression
hearing or later believed his proposed trial testimony would be false.9 See In re
8
The trial court commented on these issues at a pretrial hearing, stating, ―I
don‘t know what‘s going on with Maurice Young, but he is the first person I‘ve
ever run into that didn‘t know how old he was, and it didn‘t seem like he was
trying to—it didn‘t seem like he was intentionally not telling the truth.‖ Defense
counsel likewise stated that Maurice ―has an interesting way of understanding his
birthday. He believes each year he goes up. And his birth date goes back, which is
why sometimes he is born 1993, sometimes he is born in ‘94 and sometimes born
in ‘95.‖
9
Compare Suppression Hr‘g Tr. at 50-51 (―Q. And you didn‘t use that car
to get to that apartment that day, did you? A. No.‖), and (―Q. You didn‘t drive in
the Oldsmobile to that – to the apartment, correct? A. Yes.‖), with id. at 53-54
(―Q. And how did you get there, Mr. Young? How did you get to 5109 F Street?
A. We drove there. Q. When you say we, who are we? A. Me and my Uncle
(continued…)
11
White, 11 A.3d 1226, 1273 (D.C. 2011) (―Perjury is proven if the evidence shows
that ‗the accused testified falsely and that he did not, at the time, believe his
testimony to be true.‘‖ (alterations omitted) (quoting Boney v. United States, 396
A.2d 984, 986 (D.C. 1979))). On these facts, we cannot say that the government‘s
refusal to immunize Maurice was grounded in ―clear indications of potential
perjury.‖ Carter, 684 A.2d at 342.
Further, consistent with Carter‘s purpose in balancing the defendant‘s Sixth
Amendment right and the witness‘s Fifth Amendment right, the questions whether
the denial of immunity is reasonable and whether sanctions against the government
are appropriate rely in part on ―whether there will be a distortion of the fact-finding
process‖ should the government deny immunity. 684 A.2d at 345. Here, the
government‘s refusal to immunize Maurice may have contributed to such a
distortion when, after Maurice invoked the Fifth Amendment in response to the
question whether he was driving the SUV, the government introduced his
suppression hearing testimony about who was driving the vehicle and argued,
(…continued)
Kevin. Q. And who drove there? A. My uncle.‖). As Mr. Young states in his
reply brief, by the time Maurice was asked ―And who drove there?,‖ he had been
―asked multiple variations of the same question,‖ and the questions were not
precise about whether ―driving‖ or ―using‖ the car meant that Maurice was actually
operating the car or merely riding in it as a passenger.
12
based on that testimony, that Kevin Young had been driving. As a result, unless
Maurice waived his Fifth Amendment privilege against self-incrimination to
disavow his earlier testimony, the trial record in Mr. Young‘s case would be
―distorted‖ because the jury would hear only one side of the story—Maurice‘s
testimony that Mr. Young was the driver. The Carter process was designed to
alleviate this tension between Maurice‘s and Mr. Young‘s constitutional rights, and
the government‘s actions in this case—refusing to immunize Maurice and then
presenting his earlier testimony contrary to the testimony he was withholding
pursuant to the Fifth Amendment—exacerbated this tension. Maurice was put into
a difficult situation on redirect where he continued to assert the privilege but
admitted his suppression hearing testimony was false, essentially asking the jury to
draw a negative inference from his invocation. See Tr. 7/19/13 at 31-32
(responding to counsel‘s question whether he was ―now telling the truth and taking
the Fifth‖). In essence, where Carter seeks to balance the defendant‘s and the
witness‘s rights, thereby protecting both, the government‘s introduction of
Maurice‘s prior testimony had the opposite effect: Maurice was forced to admit to
a crime and Mr. Young was unable to argue that Maurice was the driver of the car
so the jury should have a reasonable doubt that he possessed the PCP found in the
driver-side door.10 Given this concern at trial, our uncertainty about the
10
During closing argument, defense counsel argued (among other things)
(continued…)
13
government‘s perjury contention, and the fact that the trial court never ruled on the
reasonableness or unreasonableness of the OAG‘s decision not to immunize
Maurice, we decline the government‘s invitation to affirm on this alternate basis.
We may nonetheless affirm the trial court ruling that Carter was ―not
implicated‖ on these facts on any other basis apparent from the record as long as
the appellant does not suffer ―procedural unfairness—that is, that she has had
notice of the ground upon which affirmance is proposed, as well as an opportunity
to make an appropriate factual and legal presentation with respect thereto.‖ In re
Walker, 856 A.2d 579, 586 (D.C. 2004). Here, the parties‘ briefing devoted ample
attention to whether the proffered testimony was ―clearly exculpatory,‖ as the
government put it, or whether the testimony would ―introduce some reasonable
doubt about whether Mr. Young had constructive possession of the drugs,‖ in the
words of Mr. Young. In fact, Mr. Young argued that the evidence that Maurice
was driving would ―be enough to create reasonable doubt for a reasonable jury as
to whether Mr. Young—as a recent passenger in the car—had the necessary ability
(…continued)
that because Maurice invoked the Fifth Amendment in response to the question
whether he was the last driver of the vehicle, there was ―a reasonable doubt,‖ but
he could not explain exactly why or how, and the trial court properly sustained an
objection to defense counsel‘s statement that because Maurice pleaded the Fifth
―you [the jury] can infer that he has something to hide.‖ See Martin v. United
States, 756 A.2d 901, 905 (D.C. 2000).
14
and intent to exercise dominion and control over the drugs—an element necessary
to prove both the possessory offenses with which he was charged.‖ This argument,
in our view, sounds in ―materiality,‖ which as noted above is a separate component
of the four-part Carter test. If Maurice‘s proffered evidence was not material
within the meaning of Carter, we will affirm the trial court‘s ruling that Carter was
―not implicated‖ on these facts.11
Under the Brady doctrine—and therefore under Carter, as it incorporated the
Brady standard—evidence is material if ―there is a reasonable probability that . . .
the result of the trial would have been different‖ had the evidence been presented.
Bagley, 473 U.S. at 684. Here, we conclude that Maurice‘s proffered testimony
that he was the last driver would not give rise to a reasonable probability of a
11
While in its brief the government analyzes the effect of the Carter ruling
in terms of harmlessness rather than materiality, resolving this matter on
materiality grounds enables us to analyze the disputed components of Carter‘s
four-part test and avoids the illogic of an approach that implicitly assumes that the
materiality requirement is met while undertaking a nearly identical harmlessness
inquiry. The respective approaches would in any event lead to the same result on
the facts of this case. See Wonson v. United States, No. 12-CF-1433, slip op. at 19
(D.C. Apr. 14, 2016) (amended July 21, 2016) (―But assuming that the government
should have disclosed the full report . . . to the defense prior to trial, Mr. Wonson
has no Brady claim on appeal. Our conclusion, with the benefit of hindsight, that
the admission of the bullet evidence was harmless, likewise compels a conclusion
that this report would not have satisfied the materiality component of a successful
Brady claim.‖); see also id. n.25 (―This conclusion has no bearing on the
government‘s disclosure obligations pretrial.‖).
15
different outcome in Mr. Young‘s case.12 As an initial matter, although Maurice
invoked the Fifth Amendment rather than testify that he had been driving the
vehicle, the jury heard him disavow his prior testimony that he was not the
vehicle‘s driver. And even assuming Maurice was the driver, the government
presented considerable evidence of Mr. Young‘s ―ability and intent to exercise
dominion and control over the drugs,‖ including that Mr. Young (1) was riding in a
car that smelled of PCP, (2) covered up the PCP when the door was opened, and
(3) asserted (incorrectly) that the vials contained ―oils.‖ Moreover, Mr. Young
claimed ownership of the car and Maurice denied ownership of the drugs. In these
circumstances, we are persuaded that Maurice‘s proffered testimony was not
material within the meaning of Carter13 and that the trial court did not err in
12
Mr. Young does not argue that evidence that Maurice was the driver
would affect the government‘s ability to prove intent to distribute. We discuss the
evidence to support that element of the PWID charge infra.
13
While Brady materiality determinations are usually made post-trial based
upon a review of the record of the trial that played out in the absence of the Brady
evidence, see In re Kline, 113 A.3d 202, 208-09 (D.C. 2015), trial courts that
resolve Carter issues prior to or during trial evaluate the materiality of the
testimony at issue based upon proffers and any other evidence that has been
presented at the time. Here, while the evidence at trial inevitably informs our
conclusion that Maurice‘s testimony was not material, we note that much of that
evidence—including the fact that Mr. Young was riding in a car that smelled of
PCP, that he claimed ownership of the car, that he sought to hide the PCP, and that
he inaccurately described the vials as containing ―oils‖—was presented at the
suppression hearing and was known to the trial court when it made its Carter
ruling. But see Vaughn, 93 A.3d at 1262 n.29 (noting that generally ―[t]he
(continued…)
16
concluding that Carter was ―not implicated‖ on these facts.
III.
Mr. Young next argues that the record contains insufficient evidence of
intent to distribute to support that element of the PWID charge. We overturn a
conviction if ―the evidence, when viewed in the light most favorable to the
government, is such that a reasonable juror must have a reasonable doubt as to the
existence of any of the essential elements of the crime.‖ Rivas v. United States,
783 A.2d 125, 134 (D.C. 2001) (en banc) (quoting Curry v. United States, 520
A.2d 255, 265 (D.C. 1987)).
Mr. Young possessed a very small amount of PCP—only six milliliters of
liquid, 5.6 grams total, 21.5% (1.2 grams) of which was PCP. It was contained in
two half-ounce glass vials that were each a quarter full. The government presented
the expert testimony of MPD Officer Joseph Abdalla, who explained that in his
experience, half-ounce glass vials are ―usually‖ purchased by street dealers for
$220 from midlevel dealers, and street dealers then take the vials and stand ―in an
open air market,‖ where they can earn $450 to $500 distributing the liquid to
(…continued)
materiality assessment this court conducts on appellate review is necessarily
different from the materiality assessment‖ that can be made pretrial).
17
customers who dip cigarettes in the PCP solution and smoke them.14 Officer
Abdalla opined that the vials in this case were ―identical to the half-ounce vials
which a street dealer purchases.‖ He further indicated that he had learned from the
experience of undercover police officers that ―[y]ou can‘t walk up on the street
corners and ask to b[u]y a wholesale quantity such as half-ounces and ounces of
PCP.‖
This evidence is sufficient for a reasonable jury to infer that Mr. Young
intended to distribute the liquid PCP found in his car. See In re W.R., 52 A.3d 820,
822 (D.C. 2012) (noting that the ―packaging of narcotics‖ can provide evidence of
intent to distribute). Even though the small amount of drugs could have been
consistent with personal use,15 ―relatively small amounts of drugs may be sufficient
to further prove that the drugs are for sale‖ when ―their packaging is suited for
distribution.‖ Rivas, 783 A.2d at 147.
14
See Scott v. State, 808 P.2d 73, 76 (Okla. Crim. App. 1991) (noting that
vials ―are used in the trade for dipping cigarettes in single doses for sale‖).
15
Officer Clayton, the arresting officer, swore in the criminal complaint that
the amount of PCP seized had an approximate street value of $4,200 and was
enough for approximately 170 dippers. Officer Abdalla‘s expert testimony
indicated it was enough for only nine dippers, a street value of $180.
18
IV.
Mr. Young argues that his convictions for possession of liquid PCP and
PWID should merge under the Double Jeopardy Clause of the Fifth Amendment.
The government does not object to merger in this case, and we agree that merger is
proper.
―Discerning legislative intent is key in determining whether offenses merge,
as ‗the question of what punishments are constitutionally permissible is not
different from the question of what punishments the Legislative Branch intended to
be imposed.‘‖ Graure v. United States, 18 A.3d 743, 765 n.31 (D.C. 2011)
(quoting Byrd v. United States, 589 A.2d 386, 388-89 (D.C. 1991)). The
legislative history of the Liquid PCP Possession Amendment Act of 2010 shows
that the D.C. Council intended to create an ―exception‖ for liquid PCP to the
general rule that simple possession of a controlled substance is a misdemeanor.
D.C. Council, Report on Bill 18-556 at 1 (Apr. 13, 2010). This provision
essentially acts as a penalty enhancement for possession of PCP when the drug is
in liquid form, and the Council did not demonstrate any intent to abrogate the well-
accepted principle that possession is a lesser-included offense of PWID. See
Brockington v. United States, 699 A.2d 1117, 1120 (D.C. 1997). In fact, the
committee report indicates that the Act ―is targeted at mere possession of liquid
19
PCP,‖ so ―the penalty should be lower than that of possession with the intent to
distribute other drugs, such as marijuana.‖ Report on Bill 18-556 at 8.
In addition, one of the two reasons the Council gave for this enhancement
was that ―possession of liquid PCP is rarely consistent with personal use‖ because
PCP ―typically is distributed as a liquid but not consumed in that form.‖ Report on
Bill 18-556 at 1, 5. If the Council intended to target possession of liquid PCP
because it often indicates intent to distribute, it would be peculiar for the Council
to have also intended for defendants to be separately convicted of PWID. It
appears instead that the Council recognized that in many cases it is difficult for the
government to prove intent to distribute, so it increased the penalty for mere
possession of liquid PCP to ―enable the District to better address the fight against
PCP—a dangerous and destructive drug—by going after the distributors.‖ Id. at 6.
Mr. Young‘s conviction for PWID is affirmed. We remand to allow the trial
court to vacate his conviction for possession of liquid PCP.
So ordered.