Appeal from the Superior Court of the District of Columbia; (Hon. Ronald P. Wertheim, Trial Judge)
Before Rogers, Chief Judge, Farrell, Associate Judge, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: In this criminal appeal, we are compelled to reverse appellant's convictions and order a new trial because the prosecutor was allowed to impeach a defense witness with a prior, assertedly inconsistent, statement which the witness in fact did not make or adopt, and the erroneous impeachment bore directly on appellant's culpability in this essentially one-witness police identification case.
Appellant, a co-defendant Anthony Wiley, and M.W. a juvenile were charged with distribution of cocaine and possessing cocaine with intent to distribute, both in violation of D.C. Code § 33-541 (a)(1) (1988). Appellant and Wiley were also charged with enlisting a person under the age of eighteen to distribute cocaine, in violation of D.C. Code § 33-547 (a). *fn1 A jury found appellant guilty on all counts. The government's evidence showed, in outline, that an undercover police officer, Victor Graves, was approached by Wiley at 22nd and Savannah Street, S.E., where Wiley asked if Officer Graves "was . . . looking." When Graves said he needed "two twenties" (meaning rock cocaine at $20 per unit), Wiley replied that he could get him a "half," a "50 dollar piece," for $40. Graves agreed and the two walked a short distance until Wiley looked toward a black jeep and said, "There go my man right there." He then left and had a brief conversation with appellant, the driver of the jeep, before returning to Graves and accepting $40 from him in prerecorded funds. Minutes later the passenger of the vehicle, M.W., called Wiley over and appellant handed him a plastic bag, which Wiley gave to Graves. Wiley then passed the $40 in prerecorded police money to M.W. All three defendants were arrested a short time later. When the police took three one-dollar bills from appellant, he volunteered to the searching officer, "Is that the marked money from the drugs?" *fn2 M.W. was also searched and found to be concealing sixteen bags of rock cocaine inside his underwear. Only Officer Graves had witnessed the transfer of drugs by appellant.
Appellant testified that he was a college graduate and a partner in a construction company. He claimed he went looking for M.W. on the day in question to retrieve a calculator he had loaned him. As they arrived together at M.W.'s home to get the calculator, Wiley approached appellant's jeep and spoke with him briefly, but not about drugs. Wiley then walked away, but M.W. called him back and handed him cocaine in return for currency. Appellant claimed he immediately told M.W. to "get that stuff out of my car," after which M.W. went into his house and retrieved the calculator. As appellant was driving him back to where they originally met, the police pulled the jeep over and arrested them. According to appellant, when the police removed money from his pockets he exclaimed, "That's my money, that's not no marked money."
We first reject appellant's challenges to the sufficiency of the evidence supporting his conviction. The only issue meriting Discussion is his twofold contention that the government failed to prove either the actus reus or the mens rea required for conviction under D.C. Code § 33-547 (a). *fn3 First, appellant argues that at most the evidence showed him to be an accomplice or aider and abettor of M.W., rather than one who "enlists, hires, contracts, or encourages" a person under age 18 to sell a controlled substance. We have not had occasion to construe this statutory language before, but it provides no support textually for appellant's claim that aiding and abetting does not suffice. The verb "encourages" employed disjunctively is a classic alternative formulation of the purposeful activity necessary to establish aiding and abetting. See, e.g., United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (Learned Hand, J.) (quoting common law definitions of "aide" as including "all persons counselling, abetting, plotting, assenting, consenting or encouraging to doe the act," or "who by shewing an express Liking Approbation or Assent to another's felonious Design of committing Felony abet and encourage him to commit it").
However, even if we assume for the sake of argument that causative -- in the sense of procuring -- activity by the adult is essential for conviction under § 33-547, the evidence fairly permitted the jury to conclude that appellant "enlisted" M.W. in the drug activity. Appellant was the driver of the jeep and M.W. the front seat passenger. After Wiley told Officer Graves, "There go my man right there," Wiley went over and spoke with appellant, presumably about the sale of narcotics. He then returned to Graves and told him the occupants were "going to get it." The jeep remained parked, however, and minutes later M.W., inferably at the direction of appellant (since the juvenile had not talked to Wiley), called Wiley back to the jeep where appellant reached in front of M.W. and handed Wiley the drugs. When the pair were arrested later, the juvenile was found to be holding a stash of sixteen bags of crack cocaine inside his underwear. On these facts the jury could reasonably infer that appellant was the primary agent in the drug operation utilizing ("employing") the juvenile's services. Indeed, it was not irrational to infer that the stash was kept by M.W. precisely because of his lesser vulnerability as a juvenile to criminal punishment.
Notwithstanding this latter inference, appellant argues as well that the government failed to prove he knew M.W. was under 18 years of age. The Judge correctly instructed the jury that the statute does not require that knowledge. Appellant concedes the statute contains no express requirement of this sort, and cites no legislative history implying one. Indeed, given the obvious difficulty of proving such knowledge, to impose this requirement on the government would be quite inconsistent with the legislative intent to compound punishment for those who distribute drugs to minors c employ them in distribution. See D.C. Code § 33-546 (punishing distribution to persons under 18; no express requirement that perpetrator know person was a minor). Not surprisingly, federal courts construing the similar federal statute punishing use of a minor to distribute drugs have also found no requirement that the defendant know the person employed was under age. United States v. Williams, 922 F.2d 737, 739 (11th Cir.), cert. denied, 112 S. Ct. 258 (1991); United States v. Valencia-Roldan, 893 F.2d 1080, 1083 (9th Cir.), cert. denied, 110 S. Ct. 2181 (1990); United States v. Carter, 854 F.2d 1102, 1109 (8th Cir. 1988); see also United States v. Holland, 258 App. D.C. 236, 244-45, 810 F.2d 1215, 1223-24, cert. denied, 481 U.S. 1057, 95 L. Ed. 2d 854, 107 S. Ct. 2199 (1987) (statute punishing distribution of controlled substances within 1000 feet of a school does not violate due process even though perpetrator may be unaware of school's proximity); cf. D.C. Code § 22-3901 (c) (enhanced penalty for commission of certain offenses against person 60 years of age or older subject to statutory affirmative defense that accused knew or reasonably believed victim was not 60); Fields v. United States, 547 A.2d 138, 140 (D.C. 1988).
We turn to appellant's argument that the trial Judge erred in allowing the prosecutor to impeach M.W., called as a defense witness, with an inconsistent statement he had purportedly made at his own juvenile plea proceeding. To evaluate this argument, we must examine the record in considerable detail.
At trial M.W. testified, contrary to the testimony of Officer Graves, that it was he who had sold the drugs to Graves (with Wiley's assistance) for $40, and that appellant had had nothing to do with the transaction. *fn4 M.W. concluded his direct examination by admitting that at the time of his guilty plea, he had "stood before a Judge of this court and told that Judge about involvement" in the sale. The prosecutor began cross-examination by asking immediately: "Now, at that time when you pled guilty you told the Judge that Mr. Outlaw gave you the cocaine and that you gave him the marked money, didn't you?" M.W. answered, "No, I didn't." The prosecutor referred to the factual proffer read by the prosecutor (an Assistant Corporation Counsel) at the plea hearing and asked:
Q. And when he read that statement to you that day, the assistant that was in the court said that what happened, in the recitation of the facts, was that Mr. Outlaw gave you ...