noting that "the DEA-7 reports [admitted in violation of defendant's confrontation rights] alone supplied th[e] essential proof” that what defendant distributed or possessed "was a controlled substance, namely cocaine or a mixture containing cocaine, in a measurable amount,” but that “[t]he government presented ample credible evidence, independent of the chemist's reports, to prove the elements [of attempted possession and distribution of crack cocaine]”
How later courts described this case
- noting that "the DEA-7 reports [admitted in violation of defendant's confrontation rights] alone supplied th[e] essential proof” that what defendant distributed or possessed "was a controlled substance, namely cocaine or a mixture containing cocaine, in a measurable amount,” but that “[t]he government presented ample credible evidence, independent of the chemist's reports, to prove the elements [of attempted possession and distribution of crack cocaine]”
Written by the judges who cited it.
The opinion
REID, Associate Judge,
concurring:
I fully agree that Mr. Washington was prejudiced due to the government’s failure to adhere to the notice requirements of D.C.Code § 48-905.06. I also agree that the trial court’s ruling allowing the admission of the DEA-7 reports was not harmless under Kotteakos v. United States, 328 *46 U.S. 750, 765 , 66 S.Ct. 1289 , 90 L.Ed. 1557 (1946), with respect to the lesser-included offense and the intent element. In my view, the inferences which the government seeks to draw from Mr. Washington’s admission that he frequented the drug sale area and knew Mr. James and others, together with other circumstantial evidence, is not strong and compelling enough to support a harmless error conclusion concerning the intent element of the lesser-included offense.
I write separately, because of Judge Glickman’s invocation of and reliance on the “burn bag” theory in his harmless error analysis. I believe that in a harmless error analysis, such as that in this case, there is a limit to which we can rely on a few sentences culled from testimony presented by the government’s expert witness, to invoke “the possibility that appellant s intent was only to possess and sell so-called ‘burn bags’ — bags containing fake drugs rather than the real thing.” That “possibility” may lead to the arena of speculation and may result in ignoring or undercutting strong and compelling circumstantial evidence of intent in greater and lesser-included drug offense cases, even though we have said consistently and repeatedly that there is no distinction between direct and circumstantial evidence. See Spencer v. United States, 688 A.2d 412, 415 (D.C.1997) (citations omitted).