Owens v. United States

*406 SCHWELB, Associate Judge,

concurring:

I am pleased to join Judge Pryor’s opinion for the court. I think it worthwhile, however, to add some thoughts about our conclusion that the evidence was sufficient to support Owens’ conviction for PWID.

There can be no doubt, if the prosecution’s testimony is credited, that Owens participated in the sale of a zip-lock bag of crack cocaine to Larry Hale, an officer of the Metropolitan Police Department who was working under cover. A substantially more difficult question is presented as to whether the government proved beyond a reasonable doubt that Owens (jointly with Williams) possessed the two bags of cocaine recovered from Williams with the intent to distribute them, or that Owens aided and abetted Williams’ PWID of those two bags. Owens contends, in effect, that the evidence was insufficient as a matter of law to convict him of PWID. Although I disagree with Owens’ position, his argument is by no means implausible.

The government’s evidence in this case is entirely consistent with the hypothesis that although Owens was aware of Williams’ drug selling operation, 1 his own connection to that operation was confined to the sale of a single bag of crack cocaine. Nothing in the record contradicts the possibility that Owens wanted some quick money (or cocaine) and thus participated in the sale of a single packet, but that he engaged in no activity reláted to (and indeed had no interest in) any other contraband which Williams might wish to sell. 2 We are thus confronted with a situation in which, even if everything happened just as the prosecution witnesses recounted it, Owens could nevertheless be not guilty of PWID.

There is case law in this jurisdiction suggesting that under these circumstances, the government’s evidence was insufficient as a matter of law. In Hammond v. United States, 75 U.S.App.D.C. 397 , 127 F.2d 752 (1942) (per curiam), 3 the court stated:

Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt it is the duty of the trial judge to instruct the jrny to return a verdict for the accused, and where all the substantial evidence is as consistent with innocence as with guilt it is the duty of the appellate court to reverse a judgment against him.

Id. at 398 , 127 F.2d at 753 (quoting Isbell v. United States, 227 F. 788, 792 (8th Cir.1915). 4 The decision in Hammond was unanimous. In the present case, I would not be prepared to say that the evidence, viewed in the light most favorable to the prosecution, “exclude[s] every other hypothesis but that of guilt.” Owens’ PWID conviction would, at best, be quite shaky under the Hammond analysis.

We are, of course, required to follow a decision of the United States Court of Appeals for the District of Columbia Circuit issued prior to February 1, 1971, unless that decision has been overruled by this court sitting en banc. See M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971), or by the Supreme Court of the United States. Moreover, one panel of the United States Court of Appeals lacks the authority to overrule the decision of a prior panel; only the full court, sitting en banc, may do so. See, e.g., United States v. Doe, 235 U.S.App.D.C. 99 , 101 n. 2, 730 F.2d 1529 , 1531 n. 2 (1984); Thompson v. Thompson, 100 U.S.App.D.C. 285 , 286 & n. 1, 244 F.2d 374 , 375 & n. 1 (1957). 5 If a situation *407 arises in which a division of this court (or of the United States Court of Appeals) has failed to follow a legal rule established by pre-MAP. District of Columbia Circuit precedent, we are obliged to follow the precedent which has been improvidently ignored. See Taylor v. First Am. Title Co., 477 A.2d 227, 230 (D.C.1984); Mims v. Mims, 635 A.2d 320, 329 (D.C.1993) (Ferren, J., dissenting, on a point not reached by the majority). Unless Hammond has been appropriately overruled, we are bound by that decision.

For almost fifty of the fifty-five years since Hammond was decided, however, the rule of that case has been honored more in the breach than in the observance. In Curley v. United States, 81 U.S.App.D.C. 389 , 160 F.2d 229 , cert. denied, 331 U.S. 837 , 67 S.Ct. 1512 , 91 L.Ed. 1850 (1947), a case involving a colorful politician who exercised his authority as Mayor of Boston while serving a sentence for conspiracy to commit mail fraud, a sharply divided court acknowledged the language from Hammond quoted above, but gave it short shrift:

It is true that the quoted statement seems to say that unless the evidence excludes the hypothesis of innocence, the judge must direct a verdict. And it also seems to say that if the evidence is such that a reasonable mind might fairly conclude either innocence or guilt, a verdict of guilt must be reversed on appeal. But obviously neither of those translations is the law. Logically, the ultimate premise of that thesis is that if a reasonable mind might have a reasonable doubt, there is, therefore, a reasonable doubt. That is not true. Like many another rule become trite by repetition, the quoted statement is misleading and has become confused in application.

81 U.SApp.D.C. at 392, 160 F.2d at 232 . After explaining in some detail the respective functions of the judge and jury, the majority opinion continued:

The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter.

Id. at 392-93 , 160 F.2d at 232-33 .

The court in Curley acknowledged that “the view which we take is perhaps at variance with the views which have been taken by some of the Circuit Courts of Appeal.” Id. at 395 n. 31, 160 F.2d at 235 n. 31 (citing contrary authority from the Second, Third, Eighth and Tenth Circuits). Judge Wilbur K. Miller dissented, noting that the majority’s position had been rejected in Hammond “by an able and unanimous court, after having attention sharply called to the theory which the opinion in this case says is the ‘true rule.’” Id. at 401 , 160 F.2d at 241 . Nevertheless, since Curley , the United States Court of Appeals has followed the majority approach in that case, and not the unanimous decision in Hammond. See United States v. Harris, 140 U.S.App.D.C. 270 , 286, 435 F.2d 74, 90 (1970).

For many years, this court has likewise followed the articulation of the majority opinion in Curley , and has implicitly rejected the more rigorous standard in Hammond . In Patten v. United States, 248 A.2d 182 (D.C.1968), decided three years prior to M.A.P. v. Ryan, we stated, citing Curley , that the government “need not negate all inferences consistent with innocence.” Id. at 183 (footnote omitted). One year after the MAP. decision, we described as “well settled law” the proposition that “the government is not required to negate every possible inference [of innocence] before an accused can be found guilty of an offense beyond a reasonable doubt.” In re T.J.W., 294 A.2d 174, 176 (D.C.1972) (citing Banks v. United States, 287 A.2d 85, 87 (D.C.1972)). We have adhered to that approach ever since. See, e.g., Chaconas v. United States, 326 A.2d 792, *408 797-98 (D.C.1974); Irick v. United States, 565 A.2d 26, 30 (D.C.1989).

Notwithstanding the imposing array of modem District of Columbia authority standing for the proposition that Curley is right and that Hammond is wrong, I would still have some trepidations as to how we (and our colleagues aeross the street) got from there to here 6 were it not for the Supreme Court’s jurisprudence beginning with Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954). There, the trial judge had declined the defendant’s request to instruct the jury that where the government’s evidence is circumstantial, it must be such as to exclude every reasonable hypothesis other than guilt. The Supreme Court noted that “there is some support of this type of instruction in the lower court decisions,” id. at 139, 75 S.Ct. at 137 (citations omitted), but went on to state:

[T]he better rule is that where the jury is properly instructed on the standard for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.

Id. at 139-40 , 75 S.Ct. at 137 (emphasis added) (citations omitted). Subsequently, in Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), the Supreme Court stated that the Curley standard “is now the prevailing criterion for judging motions for acquittal in federal criminal trials.” Id. at 318 n. 11, 99 S.Ct. at 2789 n. 11 (citing 2 Charles Wright, Federal Practice and Procedure, (1969 & Supp.1978)).

The quoted passage in Holland related to jury instructions, but the Court’s discussion would make no sense if the prosecution were required, in every case, to negate every hypothesis other than guilt. The Supreme Court’s subsequent discussion in Jackson reinforces that conclusion. Both the United States Court of Appeals and this court have relied on Holland as providing support for the Curley formulation as to evidentiary suf-ficieney. See Harris, supra, 140 U.S.App. D.C. at 286, 435 F.2d at 90 ; Chaconas, supra, 326 A.2d at 797 . Accordingly, notwithstanding M.A.P. v. Ryan, and the federal appellate court’s analogous informal rule, the Hammond approach is no longer binding authority in this jurisdiction.

Applying the Curley standard to the case at hand, I am bound to agree with Judge Pryor that the evidence was sufficient to sustain Owens’ conviction for PWID. To be sure, an impartial juror would not be compelled to conclude, on the basis of the government’s evidence, that Owens, jointly with Williams, possessed the two packets with the intent to distribute them, or that he aided and abetted Williams’ selling operation in relation to those two packets. In my opinion, however, Owens’ complicity in Williams’ PWID could reasonably be inferred from the evidence, and Owens has presented nothing of substance to refute that inference. Accordingly, I vote to affirm Owens’ conviction for PWID, and I also join Judge Pryor’s opinion for the court in all other respects.

. Upon learning that Officer Hale wanted to purchase some crack, Owens escorted Hale several blocks to the location at which Williams was conducting his illicit enterprise.

. It is also true, however, that Owens introduced no evidence in support of any such hypothesis.

. It is noteworthy that Judge (later Justice) Rutledge was a member of the court that decided Hammond .

.In Isbell , Judge Sanborn, writing for a majority of the court, cited numerous authorities in support of this formulation, and he wrote a spirited defense of it. 227 F. at 792-93 . It is not at all obvious to me that the modern authorities are right and that Isbell is wrong.

. "It is an informal but generally accepted rule of this court that a recent opinion of a division may not be overruled by another panel of judges, but only by the full bench.” Mallory v. United States, 104 U.S.App.D.C. 71, 72 , 259 F.2d 801, 802 (1958) (per curiam).

. [T|he panel's disregard of a controlling precedent of this Court is troubling. It is a fundamental maxim that judges “must act alike in all cases of like nature.” Rex v. Wilkes, 98 Eng.Rep. 327, 335 (1770). Whatever the practical effects of this opinion, litigants attempting to determine what law controls in this circuit should not be faced with irreconcilable decisions.

Birt v. Surface Transportation Bd., 321 U.S.App. D.C. 195, 98 F.3d 644, 645 (1996) (Sentelle J., with whom Silberman, Williams and Ginsburg, JJ. join, concurring in denial of rehearing en banc).