January 29, 1993
RODERICK LONG, APPELLANT
UNITED STATES, APPELLEE
Appeal from the Superior Court of the District of Columbia; (Hon. Robert S. Tignor, Trial Judge)
Before Schwelb, Farrell, and Sullivan, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge : Roderick Long was convicted by a jury of possession of heroin with the intent to distribute it (PWID). D.C. Code § 33-541 (a)(1) (1988). The trial Judge also found him guilty of unlawful possession of drug paraphernalia, in violation of D.C. Code § 33-603 (a) (1988). *fn1
Long testified at trial that he purchased the heroin in question with money contributed by him and by four companions for the purpose of sharing it with those companions. On appeal, he contends that the trial Judge, by his instructions and by his rulings relating to the parties' proposed closing arguments, erroneously barred Long from asserting as a defense that his conduct fell outside the statutory meaning of unlawful "distribution." We affirm.
On November 28, 1990, at about 11:30 a.m., police officers, armed with a search warrant and its ominous companion, the battering ram, knocked on the door of Long's apartment and announced their presence. The officers received no response, but heard footsteps suggesting that people were running from the entrance to the apartment. Some ten seconds after having knocked and announced, the officers effected a forcible entry by breaking down the door with the ram.
There were five men in the apartment, one of whom was its tenant, Roderick Long. Long, who was in the kitchen, threw something in the direction of the stove. The police promptly recovered from a pot of hot grease which was on the stove a bundle of plastic ziploc bags wrapped together with a rubber band. These bags contained a white powder which later proved to be heroin. Ten more packets of heroin were found in a bedroom, and police also recovered a number of syringes, home-made pipes, and other narcotic paraphernalia, *fn2 as well as a shotgun.
Long, who was born in 1947, testified at trial that he had a heroin habit and that he had been using unlawful drugs for twenty-six years. He admitted that he had been in possession of the ten packets of heroin and that he had attempted to discard them by throwing them into the pot of hot grease. He denied, however, that the heroin was for sale. Rather, he maintained that each of the other four men at the apartment, one of whom was living with him, had given him money, and that a short time before the police arrived, he and one of the men had gone out to purchase heroin for the group.
The principal legal issue in the case arose during a Discussion of jury instructions and of points which counsel proposed to raise during closing argument. Noting that Long had testified that he intended to pass the heroin around to his friends, the prosecutor maintained that Long had in effect admitted his intent to distribute. The prosecutor asked for permission to make this argument to the jury. Through his counsel, Long contended that such an argument should not be permitted because it was contrary to law:
If two people go out and buy a rock of cocaine . . . but only the first person carries it down the street, and then when they get to their apartment, they both smoke it, that first person is not guilty of distribution. At least, I don't think that's what the legislature intended, for that first person to be guilty of distribution, because he's the one who carried it from the point of purchase to the point of use and then more than one person used it.
Otherwise, all users would be guilty of distribution, because I think the Court can take judicial notice of the fact that drug users share their drugs, and sharing of drugs is not the same as transferring in the language that the legislature intended.
The Judge, who gave the issue thoughtful and conscientious consideration, initially agreed with Long's submission:
If two people go out, put money together to buy a substance, with the understanding that they will share it among themselves, they are both buying, they are both purchasing. Technically, they're also aiding and abetting the distribution, but I just don't see that as the type of transfer that is sanctioned, that the legislature intended to sanction.
It just does not seem to me likely that the statute is intended to sanction, as a thirty-year felony with a mandatory minimum sentence, actions of two users who share a commonly-owned store of drugs.
The Judge indicated that he planned to instruct the jury in accordance with this view. *fn3
The prosecutor, however, requested that argument and jury instructions be deferred until the next day so that he could find authority on the point. The following morning, the Judge, while understandably remaining troubled, felt constrained to reverse his earlier tentative judgment:
As to the matter we were discussing yesterday, frankly, on reflection, I'm not sure that it's appropriate for me, based on what I perhaps think the legislature should admit, to limit the Government's argument. This statute is more stringent than the Harrison Narcotics Act. I believe it's clear that the old purchasing agent defense *fn4 that used to be available is not available under this statute.
Previously, if one were believed to have been acting only as an agent of the buyer, a conduit so to speak, then that was a defense, but it's not under this statute. This statute prohibits transfer. "Distribute" means 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's an agency relationship.
So, that language was, I believe, specifically intended to eliminate the purchasing agent defense. Transfer has to be other than by administering. "Dispense" means to distribute a controlled substance pursuant to lawful order. So, that's not an issue and administering isn't an issue.
So, I'm hard put . . . . I'm inclined to believe that there is no basis for me to find that . . . the legislature did not intend to prohibit the type of transfer that your client has apparently acknowledged was his purpose. Two or more people go and purchase drugs in a joint activity or joint venture, one of them brings the drugs home, he hands part of them to the other person. I -- contrary to what I indicated yesterday, I don't think that I can say that that is not the type of transfer prohibited by the statute.
It's somewhat troubling to me that one who engages in that activity would thereby be subject to a mandatory minimum sentence, but I can't limit a party from arguing because the possible result would be troubling to me.
In conformity with this ruling, the Judge permitted the prosecutor to argue that, by testifying that he intended to share the heroin with his purported co-purchasers, Long had effectively acknowledged his intent to distribute heroin to them. Long's counsel inquired whether he could argue, in response, that the ten-pack "was owned jointly by the group for personal use." The Judge responded that "you can argue that if you wish, but if they come back and ask whether it's an illegal distribution or transfer to transfer to someone whom you consider to be a joint possessor, I would have to tell them that it would still be an illegal transfer." *fn5
In light of the Judge's ruling, the prosecutor noted during the course of his argument that Long had testified that he had panicked and thrown the heroin into the grease, "but that his intent was to distribute drugs to the other people in the apartment." He invited the jurors to listen carefully to the Judge's instruction that a transfer is "simply giving the drugs out, whether for money or not, to other people." Long's attorney responded that
there were five junkies in the apartment when the police came in. Each one of them uses several packs of heroin a day. The amount of heroin in that apartment was a day or two supply, at most, for the people who were there, not a sufficient amount to show that they intended to sell it, a sufficient amount to show that they intended to use it.
In his initial charge to the jury, the Judge stated that to establish the third (intent) element of PWID,
the government must prove beyond a reasonable doubt that the defendant possessed the controlled substance with the specific intent to distribute the controlled substance. The term "distribute" means the actual, constructive or attempted transfer of a controlled substance.
Late in the afternoon of the first day of deliberations, the jurors sent a note to the Judge in which they inquired as to the elements of PWID and "specifically, what constitutes distribution and does it require an intent to distribute in exchange for money?" The Judge responded the following morning by re-reading his original instruction and adding that
it is not necessary for the government to prove that the defendant intended to receive money or property in return for a transfer of a controlled substance.
Long was convicted, inter alia, of PWID. This appeal followed.
In determining whether Long's acknowledged plan to share the drugs with his companions necessarily reflected an intent to distribute heroin, as the prosecutor was permitted to argue and as the Judge at least implied in his instructions, we must first consider the language of the statute. It is unlawful in the District of Columbia to possess a controlled substance with intent to distribute it. D.C. Code § 33-541 (a)(1) (1988). As used in our Controlled Substances Act,
"Distribute" means the actual, constructive, or attempted transfer from 1 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) (1988). Transfer is not defined in the statute, but the word is evidently used in the familiar dictionary sense: "to carry or take from one person or place to another." *fn6 This, according to his own testimony, is precisely what Long intended to do; having bought the drugs on the street, he carried them to another place (his apartment) and he intended, until the preemptive strike by the officers thwarted his plan, to give much of the contraband to his companions.
In a series of decisions during the past few years, this court has construed the term "distribute" literally. In Malloy v. United States, 605 A.2d 59, 61 (D.C. 1992) (per curiam), we summarized the law as follows:
A sale or an exchange of money for drugs is not required under the statute. See Wright v. United States, 588 A.2d 260, 262 (D.C. 1991) ("giving or sharing of drugs with another constitutes distribution under the law, and an intention to [give or] share is evidence of an intent to distribute"); Chambers v. United States, 564 A.2d 26, 31 & n.10 (D.C. 1989). Nor does the statute distinguish among types of transfers between parties, i.e. sales to third persons or, as in this case, deliveries between a dealer and a courier. Cf. United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir. 1973) (under parallel federal statute, 21 U.S.C. § 802 (11), sale not required and agency relationship not relevant to issue of distribution). Appellant's act of delivery [to the individual who entrusted him with the drugs] is a separate act of distribution under D.C. Code § 33-501 (9).
See also Shabazz v. United States, 606 A.2d 191, 193 (D.C. 1992); United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979).
Long does not challenge the reasoning of Malloy, Wright or Chambers, nor does he ask us to overrule any of these cases. He seeks, however, to distinguish them on the ground that "in the previously decided cases the companion never had any proprietary interest in the drugs, exercising no dominion or control over them." Long maintains that since his companions had, according to his account, "chipped in money in advance for the drugs," they were joint possessors from the moment he purchased the heroin, and therefore had a right from that time forward "to their fair share of the whole."
This argument might prevail if Long had purchased rare books, rice, or roses, but it is not persuasive in a case in which the purpose of the purported joint venture was to acquire and share heroin. As the trial Judge remarked when the supposed proprietary interest of Long's companions was raised below, "I'm not sure that's really the best term to use when we're speaking of contraband. I wonder what type of real proprietary interest one can have in contraband."
In State v. Toppan, 425 A.2d 1336 (Me. 1981), the defendant grew marijuana in his garden. Two of his friends contributed money, seeds, and labor. Each friend was to receive a share of the marijuana after it was harvested. Toppan claimed that the entire venture was a joint enterprise, that the marijuana was shared solely with his two co-entrepreneurs, and that no "furnishing" had occurred because all of the participants were "joint possessors" of the drug from the outset. Id. at 1338.
In upholding Toppan's conviction for furnishing *fn7 marijuana, the court emphatically rejected his "joint possession" theory. Noting that the "sharing agreement" violated Maine law, the court said:
Since the agreement was illegal, it created no rights of ownership or possession in the parties to it. [Citations omitted.] Toppan and his friends acquired from the agreement no legally enforceable rights with respect to the crop. Toppan stated at trial that it was his intention that when the marijuana was harvested his friends were to receive, or keep, a part of the harvest. Before the crop was harvested, however, Toppan had practical control over the marijuana by virtue of his joint ownership and possession of the farm with his wife. At the moment he and his friends actually divided some of the harvested crop and each took possession of his individual share, there was a transfer of factual control amounting to a direct 'furnishing' . . . .
Id at 1339 (emphasis added).
We agree with the foregoing analysis. Like Toppan, Long claimed that he was going to share unlawful contraband with his companions. As in Toppan, he had "practical control" of the heroin. The moment Long divided the ten-pack among the group of five, as he testified he intended to do, a "transfer of factual control" would take place. Long admitted that he was planning just such a transfer. That is PWID.
In advance of oral argument, this court directed the attention of counsel to United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977). At the Conclusion of argument, we invited the parties to file supplemental memoranda addressing the applicability of Swiderski to the present case, as well as any legislative history or other authority which might aid the court in the Disposition of this appeal. We now consider the issues raised in these supplemental submissions.
In Swiderski, the named defendant and his then fiancee, Maritza De Los Santos, jointly and simultaneously purchased a substantial quantity of cocaine for $1,250. A short time later, they were arrested by officers of the Drug Enforcement Agency who had been conducting surveillance. Ms. De Los Santos had the cocaine and $3,100 in her purse; Swiderski "had an additional $529 in his possession. 548 F.2d at 448. Although there was evidence that the defendants intended to distribute at least some of the cocaine to third parties, *fn8 the defendants denied such an intent, and contended in effect that they had been set up and that someone had slipped cocaine into Ms. De Los Santos' handbag.
In his closing argument, the prosecutor argued that even if the defendants had purchased the cocaine merely with the intent to share it or "snort" it together, this would be sufficient to establish their intent to distribute. Over defense counsel's objection, the trial Judge twice instructed the jury that giving or passing cocaine to a "friend" or "fiancee" constitutes "distribution." Id. at 448-49. *fn9
The court, in an opinion by Judge Mansfield, unanimously reversed the defendants' PWID convictions and remanded for resentencing on the lesser included offense of unlawful possession. The court concluded that the federal Comprehensive Drug Abuse Prevention and Control Act, viewed "as a whole," draws a sharp distinction between drug offenses of a commercial nature and illicit personal use of controlled substances. Id. at 449-50. According to the court, Congress provided for more severe penalties for trafficking and distribution because "such conduct tends to have the dangerous, unwanted effect of drawing additional participants into the web of drug abuse." Id. at 450.
It was the court's view, on the other hand, that "where two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together, their only crime is personal drug abuse . . . " Id. "Since both acquire possession from the outset and neither intends to distribute the drug to a third person, neither serves as a link in the chain of distribution." Id. Thus, the court concluded, "the mere existence of joint possession by two closely related persons -- here an engaged couple who later married one another -- is alone not enough to provide the basis for such an inference [of intent to distribute]." Id.
Emphasizing that Congress sought "to distinguish between one who acts as a link in the chain of distribution and one who has already acquired possession of his own use," 548 F.2d at 451, the court rejected the government's argument that the abolition of the so-called "buyer's agent" defense *fn10 demonstrated that Congress also intended to punish (as PWID) the sharing of drugs between two persons who simultaneously acquire joint possession of the drugs. Id. In the court's view,
the agent who delivers to his principal performs a service in increasing the distribution of narcotics. Without the agent's services the principal might never come into possession of the drug. Purchasers who simultaneously acquire drugs jointly for their own purpose, however, do not perform any service as links in the chain; they are the ultimate users.
Id. Accordingly, the court held that the trial Judge's instructions were erroneous, reversed the defendants' PWID convictions, and remanded for resentencing.
The court's general approach in Swiderski has been followed by the Supreme Courts of California, People v. Edwards, 39 Cal. 3d 107, 216 Cal. Rptr. 397, 702 P.2d 555 (1985), *fn11 and of Minnesota, State v. Carithers, 490 N.W.2d 620 (Minn. 1992). *fn12 Moreover, the fundamental message of Swiderski -- that the legislature did not intend to treat with equal severity on the one hand, entrepreneurs who profit from distribution of heroin or crack, and on the other hand, addicts who pool their resources to purchase drugs for their own joint use -- finds meaningful support in the legislative history of the District's Uniform Controlled Substances Act *fn13 and of its federal counterpart. *fn14 We therefore decline the government's belated invitation to reject Swiderski as incorrectly decided. *fn15
We agree with the government, however, that Swiderski does not control this case. Swiderski and his fiancee purchased the drugs jointly and simultaneously. Long, on the other hand, brought heroin home to his friends and, according to his own account, was about to pass several packets on to them when his plans were interrupted by a police battering ram. Unlike Swiderski, Long had already begun to serve, and was intending to continue to serve, "as a link in the chain of distribution." See Swiderski, supra, 548 F.2d at 450. Unlike the appellants in Edwards, see note 11, (supra) , Long was more than an "equal partner" with his companions, for he took a far more active role than they did in the drug transaction; indeed, he acted as a go-between for the other addicts and the seller in order to provide the addicts with their drugs.
In United States v. Wright, 593 F.2d 105 (9th Cir. 1979), the defendant claimed that a woman had given him money to purchase heroin. He did so, and the two of them subsequently snorted together. Relying on Swiderski, Wright requested a jury instruction to the effect that this scenario did not constitute distribution on his part. The court affirmed the trial Judge's refusal so to instruct, because
the evidence in this case does not support a Swiderski charge. This is not a case in which two individuals proceeded together to a place where they simultaneously purchased a controlled substance for their personal use. Here Wright operated as the link between the person with whom he intended to share the heroin and the drug itself. He was not entitled to the instruction he sought.
Wright, supra, 593 A.2d at 108 (citation omitted). *fn16
Wright is essentially this case. Indeed, Long acknowledged that he intended to distribute heroin to several persons who were not present when it was purchased. The trial Judge correctly held that this acknowledgment amounted to an admission of PWID, and his rulings based on that holding were correct. Long's convictions must therefore be, and each is hereby