Durham v. United States

RUIZ, Associate Judge,

dissenting in part: 1

In this appeal we are confronted with a question we have not yet answered concerning the meaning of “distribution” in D.C.Code § 33-541(a)(l) (1998). I disagree with the majority’s conclusion that the crime of drug distribution includes the conduct of a person who, having been given drugs, returns the drugs to the original transferor. That conclusion, although supportable by a literal application of the language of the statute, is nonsensical and leads to the absurd result that, if the transferee in this case had kept the cocaine handed to him, he would have been liable only for possession of cocaine, which is punishable as a misdemeanor by up to 180 days’ incarceration and a fine of not more than $1,000, see D.C.Code § 33-541(d); but, because he tried to undo the transaction, by returning the drugs to the person who distributed the cocaine to him, he becomes liable for distribution of cocaine, which is a felony punishable by up to thirty years’ incarceration and a fíne of up to $500,000, see D.C.Code § 33-541(a)(2)(A). Nothing in our precedent compels this incongruous result, which is contrary to a reasonable interpretation of the statute consistent with legislative intent.

At the outset, it is important to recognize what is and is not at issue on appeal. At trial, appellant requested the trial court to instruct the jury that, “If you believe the defendant’s theory of the case [that he was merely returning drugs which he rejected as payment by another of a debt owed to him], you must find him not guilty of Count I, Distribution of Cocaine.” The trial court denied the request, not because there was not sufficient evidence to support the defendant’s version of events, 2 but because the trial court concluded that there was no legal basis for the instruction. If the trial court’s conclusion was wrong, we must reverse. As the Supreme Court has noted, “a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) (cita *209 tions omitted). Unless there is no factual or legal basis for the requested instruction, the trial court must instruct on the defendant’s theory of the case. See Doby v. United States, 550 A.2d 919, 920 (D.C.1988). Thus, we are faced with a pure issue of law . 3

Appellant was charged with and convicted 4 of distribution of cocaine and possession with intent to distribute cocaine 5 pursuant to D.C.Code § 33-541(a)(l), which provides that “it is unlawful for any person knowingly or intentionally to manufacture, distribute, or possess, with intent to manufacture or distribute, a controlled substance.” The statute defines “distribution” as the “actual, constructive, or attempted transfer from one person to another other than by administering or dispensing of a controlled substance, whether or not there is an agency relationship.” D.C.Code § 33-501(9) (emphasis added). This court, in turn, has defined “transfer” in the familiar, dictionary sense of that word, as “ ‘to carry or take from one person or place to another.’ ” Long v. United States, 623 A.2d 1144 , 1147 n. 6 (D.C.1993) (quoting Philip B. Gove, WebsteR’s Third New INTERNATIONAL Dictionary 2426-27 (1986)).

As the majority correctly states, we have construed and applied literally the term “distribute” in a number of situations. See Malloy v. United States, 605 A.2d 59, 61 (D.C.1992) (per curiam) (holding that unlawful distribution had taken place where the appellant, who claimed that he was only the custodian of drugs owned by another, admitted to possessing drugs as a “mule” for transportation to another city to be given to the dealer who had entrusted the drugs to him, because “a sale or exchange of money for drugs is not required under the statute”); Wright v. United States, 588 A.2d 260, 262 (D.C.1991) (upholding an instruction that the defendant’s admission that he intended to share drugs with a friend was evidence of an intent to distribute, concluding that “giving or sharing drugs with another constitutes distribution under the law, and an intention to share is evidence of intent to distribute”); Chambers v. United States, 564 A.2d 26, 31 (D.C.1989) (holding defendant’s testimony that he bought cocaine with intention to share it with friends sufficient to prove intent to distribute).

In Long, supra, appellant was convicted of possession of heroin with the intent to distribute. See 623 A.2d at 1147 . Appellant had testified at trial that he bought the heroin with money to which he and four companions had contributed to purchase and share the heroin for their use. The court held that Long’s acknowledged plan to buy the drugs in order to then share the drugs with his friends was evidence of intent to distribute. In reaching that conclusion, we reviewed and adopted the reasoning in United States v. Swiderski, 548 F.2d 445 (2d Cir.1977), in which the court concluded that there was no intent to distribute in a situation where two defendants, a man and his fiancée, bought drugs together at the same time for personal use, only one received the *210 drugs from the seller, and immediately handed to his fiancée her share of the drugs, which both sampled on the spot. See id. at 1151. 6 We distinguished the situation in Long from that in Swiderski because in Long the appellant had purchased the drugs by himself — albeit with some of the money contributed by others — and then had given them to his friends, The facts in Long , in other words, were not meaningfully different from those in Wright and Chambers, supra, in which we had held that the intent to share drugs with others for personal use constitutes intent to distribute. Although we distinguished Swiderski on its facts, in Long we éxpressly “decline[d] the government’s ... invitation to reject” the reasoning of the Court of the Second Circuit in Swiderski. See Long, supra, 623 A.2d at 1150-51 .

Unlike the situation in Long, Wright and Chambers , here there is no transfer to a third party — the friends who were to share in personal use in those cases. The only two actors here are Thomas, the initial distributor, and appellant, the intended recipient of the drugs, who, after rejecting the drugs because of their poor quality, returned them to Thomas. To the extent that Long is instructive, it supports appellant’s argument because, by approving the reasoning in Swiderski , in Long we recognized that there is a difference, significant to the distribution statute, between a purchase of drugs that are subsequently transferred to other third party users (the case in Wright, Chambers and Long), and the facts in Swiderski , which involved a joint simultaneous purchase by two buyers acting as a unit, even though in Swid-erski only one buyer received the drugs and actually transferred them to his co-purchaser. 7 In other words, in Long we approved the Swiderski court’s refusal to apply a literal interpretation of the term “distribution” without regard to the underlying facts. Although the facts in Swider-ski are not entirely on point, 8 its rationale is more applicable to this case than that of Wright, Chambers or Long because Swid-erski, like this case, does not involve a subsequent transfer to a party outside of the parties engaged in the initial transfer of drugs. If the two joint purchasers in Swiderski were considered as one for the purpose of rejecting the notion that there was a distribution between them, a fortio-ri, the actions of a single transferee in sampling, and after rejecting the drugs, returning them to the distributor, cannot be compartmentalized into separate transactions. 9

The start to interpreting a statute is, of course, the statutory language. “ ‘Absent *211 a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.’ ” In re G.G., 667 A.2d 1331, 1333 (D.C.1995) (quoting West End Tenants Ass’n v. George Washington Univ., 640 A.2d 718, 726 (D.C.1994)). Even where the words of a statute are unambiguous, however, we do not give effect to a plain language interpretation which is “ ‘plainly at variance with the policy of the legislation as a whole.’ ” Id. (quoting Tenants Ass’n, supra, 640 A.2d at 726 n. 14) The court must determine the meaning of the language “ ‘in accordance with the legislative intent and common understanding to prevent absurdities and to advance justice.’ ” Id. (quoting 1A NORMAN J. SingeR, SutheRLAND Statutory CoNstruction § 20.08 (5th ed.1993)). This approach is required by the doctrine of separation of powers, which cabins our judicial function to give effect to the legislature’s intent. See District of Columbia Nat’l Bank v. District of Columbia, 121 U.S.App.D.C. 196, 198 , 348 F.2d 808, 810 (1965).

There is no dispute that the legislature intended to treat those who deal in drugs for their own personal use differently from those who deal in drugs as entrepreneurs, i.e., for the purpose of passing it on to others, most usually for profit. We have characterized the difference as whether the conduct is a link in the chain of distribution — rather than an endpoint — in the drug trade. See Long, supra, 623 A.2d at 1149 . This legislative intent is evident from distinctions in the statute drawn between possession and distribution, and the widely different penalties that can be imposed upon people involved in the drug trade, depending on whether they are convicted of possession, a misdemeanor, or found guilty of distribution or possession with intent to distribute, which are felonies. Such a disparity in sanction reveals that the legislature considered that “distribution” is different in nature from, and much more serious than, mere “possession” of drugs. As we stated in Long , the purpose of the statute was to “introduce a system in which the penalty for prohibited conduct is graded according to the nature of the offense and the schedule of the substance involved.” 623 A.2d at 1150 n. 13 (quoting Council of the District of Columbia, Report of the Committee on the Judiciary on Bill 4-123, the “District of Columbia Uniform Controlled Substances Act of 1981,” 5) (April 8, 1981) (emphasis added). It is therefore important to elucidate the reasons underlying the distinctions created by the legislature to determine whether the conduct in this case is of the nature of the crime of possession or that of distribution, as the legislature conceived them. In conducting this inquiry we must bear in mind that the legislature considered that there are significant differences between the two and that distribution, which carries a much stiffer penalty, is a more serious crime. Thus, to the extent that the statutory language can be read so that the conduct at issue in this case could come within either the crime of possession or that of distribution, it is also part of our judicial role, in effectuating the legislature’s intent, to apply the rule of lenity and include the conduct within the less serious offense of possession so as not to create penalties not contemplated by the legislature. See Riggs Nat’l Bank v. District of Columbia, 581 A.2d 1229, 1262 (D.C.1990). 10

Because there are only two actors in this transaction, the government is unable to *212 argue, as it did in Lowman v. United States, 632 A.2d 88 (D.C.1993), that appellant acted as an aider or abettor of the seller or somehow acted as an- agent for a distributor in approaching a buyer. 11 See 632 A.2d at 89 . Nor can appellant be described as an inherent part of the seller’s drug operation as in Malloy , where the drugs were transported from one location to another for the benefit of the seller. See supra note 9. The appellant in this case simply cannot be said to have been acting for either a third-party seller or buyer; rather he was acting for himself, a principal on the receiving end of the transaction. As in Lowman , however, the government makes the argument, which the majority finds persuasive, that appellant’s handing back the drugs constitutes distribution because it “facilitated” the seller’s future distribution of cocaine. According to the government, by rejecting the cocaine tendered to him, and handing the drugs back to Thomas, appellant ensured that the drugs would remain available in the stream of commerce for distribution to others. Presumably, the government believes that if this description of the effect of the appellant’s actions is accurate, it would be sufficient to be deemed “distribution” under the statute.

The government’s theory is flawed on both counts, however, because it is neither accurate nor sufficient under the statute. First, the underlying thesis that someone who refuses to accept drugs encourages the drug trade by making it necessary to recruit others, may, as an economic matter, be logical, but it is invalid in the context of a criminal offense. Drug distributors obviously need consumers (those who possess drugs for personal use), but the dealer’s need for customers does not convert consumers into “links” in the drug trade within the meaning of the distribution statute. They are end users, who, as in this case, sometimes accept drugs “on approval.” See Long, supra, 623 A.2d at 1149 ( Purchasers who ... acquire drugs ... for their own purpose ... do not perform any service as links in the chain; they are ultimate users.’ ”) (quoting Swiderski, supra, 548 F.2d at 451 ). Second, even if there were some theoretical basis for the government’s argument, it is insufficient to satisfy the legislature’s clear design that there is a significant line between those who distribute drugs and those who possess them. Under the government’s all-encompassing theory of “distribution by facilitation,” even a passerby who rejects drugs offered casually' on the street facilitates the drug trade by refusing to buy drugs, ensuring that the rejected seller will have to move on to another hoped-for customer. Cf. Lowman, supra, 632 A.2d at 96 (Schwelb, J., dissenting) (noting that under the government’s theory of facilitation, “[ejvery purchaser of drugs makes it easier, by his or her conduct, for a seller to sell.”) This reed is much too slim to support the conclusion that a person who is and acts as a consumer, is transformed into a distributor by literal application of the word “transfer.” For these reasons, I respectfully dissent and would reverse Durham’s conviction for distribution.

. I join the opinion of the majority concerning the admissibility of what appeared to the police to be a drug transaction involving appellant just prior to the transaction that was the subject of the charge at issue in this appeal.

. A trial court should instruct the jury on the defendant’s theory of the case when that theory negates the defendant’s guilt of the crime charged if the instruction is supported by " 'any evidence, however weak.’ ” Graves v. United States, 554 A.2d 1145, 1147 (D.C.1989) (quoting Gray v. United States, 549 A.2d 347, 349 (D.C.1988)). Given that it is the jury’s responsibility to assess credibility, in this case there was sufficient evidence — no matter how questionable it may appear to us — of the alleged underlying factual scenario to support the requested instruction. Appellant, who was trained as an auto mechanic, testified that he had been a crack addict for ten years and that he did auto repair work on the side to maintain his habit. He further testified that on the day of his arrest, he was washing his boss' car outside the restaurant where he was employed doing maintenance work. A Mr. Thomas approached him. According to appellant, Mr. Thomas owed him $50 for repairs he made to the car of Mr. Thomas’ girlfriend. In payment of that debt, Mr. Thomas tendered three and a half rocks of crack cocaine in individual packets, told appellant to "check them out,” and then went into a nearby barbershop for a haircut. After he finished washing the car, appellant went to the rear of the building to inspect the drugs, which he found to be of poor quality. After waiting some time for Mr. Thomas to exit from the barbershop, during which appellant spoke to a friend who drove up and went to the store to buy a lottery ticket for his boss, Mr. Thomas exited from the barbershop. Appellant told Mr. Thomas he did not want the crack. Mr. Thomas then gave him $50, and appellant returned the drugs to him.

. The jury appears to have been confused on the issue. After retiring to deliberate, the jury sent the following note: "We would like clarification of the term distribution and transfer.”

. Appellant was sentenced to not less than three, nor more than twelve, years on each count, to run concurrently — much more than he could have been sentenced had he been convicted of possession.

. As appellant's requested instruction was directed exclusively to count 1, distribution of cocaine, this appeal does not challenge his conviction on count 2, possession of cocaine with intent to distribute. Presumably, appellant considers that the jury could not have been instructed to acquit him of possession with intent to distribute even if the jury believed his story about returning the drugs, because as a matter of law his possession of several individually packaged bags of cocaine would permit a jury to infer intent to distribute sufficient to convict him of possession with intent to distribute, particularly in light of the officer’s testimony that appellant had been observed earlier in what appeared to be a drug sale. See Lawrence v. United States, 603 A.2d 854, 858 (D.C.1992).

. In Swiderski , as here, the recipients rejected the drugs as too poor in quality for their own use. Unlike in this case where appellant returned the drags, one of the defendants in Swiderski indicated that they might keep the drags to sell to others, who, presumably, would not be as insistent on quality.

. The majority argues that Swiderski is not only distinguishable on its facts but unpersuasive because "post-Swiderski " opinions of this court (Wright, Chambers and Malloy) support a broad and literal interpretation of the term "distribution” that encompasses the return of drugs at issue in this case. See ante at 203. What the majority overlooks, however, is that in Long , we engaged in a more recent and pointed discussion on the subject. What is relevant for our purposes is not that the Second Circuit decided Swiderski in 1977, but that this court decided in 1993 to adopt Swid-erski ’s reasoning, after our decisions in Wright¡ Chambers and Malloy , upon which the majority relies.

. As the court stated in Swiderski , "[o]ur holding here is limited to the passing of a drag between joint possessors who simultaneously acquired possession at the outset for their own use.” 548 F.2d at 450-51 .

. This case is also unlike Malloy , where appellant was convicted of aiding and abetting distribution after he gave the drugs back to the dealer for whom he had acted as a "mule” by transporting drags worth over $20,000 on the street from Baltimore to Washington, D.C. The trial judge in that case found that appellant’s actions had "aided and abetted the dealer's scheme to distribute the drags, noting that use of a courier insulated the dealer from -the risk of arrest while transporting the drags”. 605 A.2d at 60 .

. In this regard, the majority incorrectly concludes that the legislature included the concept of leniency in the statute but "chose to do so only in the sentencing phase of the legal process ... through the establishment of the so-called ‘addict exception’ to the mandatory-minimum sentences for the crime of distribution.” Ante at 205. That the legislature sought to recognize the special case of addicts who are involved in drug distribution to support their habit — cases in which there is no doubt that the addicts are selling drugs — and mitigate the sanction even though they engage in drug distribution, does not answer whether there was any "distribution” within the meaning of the statute on the facts before us. See Swiderski, supra, 548 F.2d at 451 n. 3.

. The government does not argue, and the record on appeal does not reflect, that an aiding and abetting instruction was given to the jury in this case.