September 30, 1993
KATRINA M. LOWMAN, RICHARD LEE CARTER, APPELLANTS
UNITED STATES, APPELLEE
Appeal from the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Jr., Trial Judge)
Before Rogers, Chief Judge, and Terry and Schwelb, Associate Judges. Opinion for the Court by Chief Judge Rogers. Opinion by Associate Judge Schwelb, Concurring in part and Dissenting in part.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: Appellants Katrina M. Lowman and Richard Lee Carter were convicted by a jury of distribution of cocaine. D.C. Code § 33-541 (a)(1) (Repl. 1988). Lowman contends on appeal that the trial Judge erred in denying her motion for a judgment of acquittal, giving an aiding and abetting instruction, and refusing to instruct the jury that certain jury instructions applied only to her and others applied only to her co-defendant, Carter. Carter contends that the trial Judge also erred in denying his motion for a judgment of acquittal. We affirm.
Officer Johnson testified that while working undercover on July 30, 1991, he approached appellant Lowman in the 1400 block of Columbia Road, N.W., and asked her if she knew "anyone with some twenties," meaning twenty-dollar bags of cocaine. Lowman replied, "yes, I will take you up the street." Lowman then approached appellant Carter and asked him, "do you have any twenties?" He responded, "yes. Wait over there by the fence." Carter walked up the street and was met by a juvenile while Lowman and the officer waited by a fence. Carter waved to Lowman and the officer, and both walked towards him.
The officer testified that "Carter displayed a plastic bag, and the juvenile reached into the bag and retrieved a small object." Carter then proceeded to walk up the street, and the juvenile walked back towards the officer and Lowman and handed the officer "a loose rock-like substance." The officer gave the juvenile twenty dollars. *fn1 Lowman was standing next to the officer during this period and only walked away after the drug transaction. She did not, however, handle the drugs or the money. According to Officer Johnson and other officers, the juvenile was arrested while walking with Carter, Carter was arrested shortly afterwards, and Lowman was arrested later, separately from the juvenile and Carter. *fn2
The government also offered expert testimony that a runner brings the buyer to the seller and the holder holds the drugs and/or money, but that it is not inconsistent for runners and holders to have no money or drugs on them when they are arrested.
Lowman testified that she knew the juvenile, and that she had seen Carter before July 30, 1991, but she did not know him personally. She explained that the officer approached her and asked if she knew anyone who had "20 rock." She told the officer that she did know people who were selling drugs, and she "took him down the street to show him who all out there had some." Carter and the juvenile walked by, the officer asked if one of them had drugs, and one of them said yes. Lowman was not sure whether Carter or the juvenile answered the officer. "So all of us stood. . . . The juvenile came back. He said officer , the three of them walked that way . . . . I turned around . . . I was going through the cut." Lowman claimed that she did not expect to receive money or drugs for helping the officer and she denied acting as a runner. She admitted, however, that she understood that a drug transaction would take place, but she claimed that she did not actually see it because she was standing behind the others. Lowman explained that she waited with the others during the drug transaction, not because she wanted to be sure the sale went smoothly, but because she was talking to some friends. She later told a friend that "I don't know why they locked up because I didn't see him with no drugs, I didn't see him do nothing."
Carter called a former girlfriend as a witness. The girlfriend testified that on the evening of July 30, 1991, she and her friend were with Carter and the juvenile almost continuously, except for a few minutes when she made a telephone call, until Carter and the juvenile were arrested. The girlfriend did not see Carter or the juvenile sell drugs.
Carter testified that on July 30, 1991, he went to a liquor store and played video games with the juvenile, his girlfriend, and a friend of his girlfriend's, and then all four of them walked along Columbia Road. Carter saw and spoke with another friend while his girlfriend was on the telephone. He did not see the juvenile sell drugs, nor did he speak with Lowman. According to Carter, "after the undercover officer asked if anybody had any 20's [the juvenile] said yes and stopped. I continued to walk."
Sufficiency of the Evidence. Viewing the evidence, as we must, in the light most favorable to the government, there is no basis on which to conclude that no reasonable juror could have found both appellants guilty beyond a reasonable doubt. See, e.g., Green v. United States, 608 A.2d 156, 158 (D.C. 1992); Williams v. United States, 604 A.2d 420, 421 (D.C. 1992); Wright v. United States, 508 A.2d 915, 918 (D.C. 1986). The court must defer to the jury's right to weigh evidence, determine credibility, and draw inferences from the testimony presented. See, e.g., Green, supra, 608 A.2d at 158; Wright, supra, 508 A.2d at 918. The government is not required to rebut all possible inferences of innocence. See, e.g., In re T.J.W., 294 A.2d 174, 176 (D.C. 1972).
A reasonable jury could reasonably find Lowman guilty of distributing cocaine on an aiding and abetting theory, which the government stressed in closing argument. Lowman admitted that she intended to help the undercover officer find people who were selling the illegal drugs that the officer wanted to buy. According to officers Johnson and Etienne, Lowman, after inquiring if Carter had such drugs, stayed with undercover Officer Johnson until the drug transaction was completed and then she left. The court has recently upheld a conviction under similar circumstances.
In Griggs v. United States, 611 A.2d 526, 527, 529 (D.C. 1992), the defendant was found guilty of distributing a controlled substance, on an aiding and abetting theory, where an officer approached the defendant and asked if anyone was "working," the defendant escorted the officer to a seller, and the defendant told the seller that the officer "wanted one twenty." Id. at 527. The court stated that:
[the defendant] accompanied [the officer] to [the seller], introduced [the officer] as his cousin, and waited while [the officer] purchased crack cocaine from him. This conduct clearly "encouraged and facilitated" [the seller's] crime of distribution. We conclude that the jury's verdict [that the defendant aided and abetted distribution of a controlled substance] was supported by the evidence.
Id. at 529. Griggs is controlling here. *fn3 See also Stevenson v. United States, 608 A.2d 732, 732-33 (D.C. 1992) (defendant stood nearby during drug transaction, seller immediately gave money from sale to defendant; aiding and abetting because conduct was intended to encourage and facilitate); United States v. Monroe, 301 U.S. App. D.C. 100, 990 F.2d 1370, 1372 (1993) (defendant asked if officer was "looking" and referred him to co-defendant); cf. Wright, supra, 508 A.2d at 918 (presence and holding what was probably stolen property); In re J.N.H., 293 A.2d 878, 880 (D.C. 1972) (presence, a "menacing" position in front of shop counter, fleeing with armed man). Although Lowman did not introduce the buyer and seller to each other, as occurred in Griggs, supra, Lowman brought the two together - a willing buyer to a willing seller - and she specifically asked Carter if he had any twenty-dollar rocks, the precise drugs that the undercover officer had said he wanted to buy.
The court recently stated in Minor v. United States, 623 A.2d 1182, 1187 (D.C. 1993) (per curiam), that "being an agent of the buyer is not a defense to a charge of distribution." In that case the defendant took a more active role than Lowman since he quoted a price to the buyer and there was "some kind of exchange" between the defendant and the seller after the sale, implying that the seller and the defendant had a relationship regarding the sale of drugs. 483 N.Y.S.2d at 118. Even were Lowman implicitly arguing that she was aiding and abetting the buyer rather than the seller, the jury could reasonably find that Lowman encouraged and facilitated the sale of the drugs and, therefore, that she was aiding and abetting the seller's distribution of cocaine. Lowman brought the buyer to the seller, asked the seller if he had drugs in the quantity sought by the buyer, remained during the actual sale, and left almost immediately after the sale. There was evidence that Lowman knew one of the sellers and had previously seen the other seller. While Lowman did not vouch for the buyer, as the defendant did (or represented that he could) in Griggs, supra, 611 A.2d at 527, it cannot be reasonably argued that in Griggs the defendant was assisting the seller while Lowman was aiding only the buyer. *fn4
The cases on which our Dissenting colleague relies are distinguishable. In several cases, the defendant merely gave the buyer the name and address of a seller and the buyer went alone to meet the seller, raising the inference that the defendant was not really concerned about whether or not the sale occurred and was only interested in helping the buyer. *fn5 See (infra) Dissenting opinion, at 24-28. Lowman, by contrast, not only brought the buyer to the seller and asked whether the seller had what the buyer wanted to purchase, but she also waited with the buyer while the sale occurred. See Winston, supra, 687 F.2d at 835 (defendant was "the catalyst who put transaction together," introducing the parties, quoting a price, and giving rise to an inference that he "acted with the specific intent to facilitate the sale"). Unlike our Dissenting colleague, (infra) at 21-22, we do not read the legislative history of the District of Columbia's statute to suggest more than that the Council of the District of Columbia was distinguishing between possession and distribution, between first and repeat offenders, and between dealers who sell to adults and those who sell to minors. See 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," at 5, 6. The concern our Dissenting colleague addresses, namely the distinction between a person who aids a buyer and a person who aids the seller of illegal drugs, is not found in that history. The humanitarian and policy considerations favoring the Dissent's approach are, in our view, more properly for the legislature, rather than the court, to weigh in deciding whether to amend existing law. We are unpersuaded at this point that the court's interpretation of aiding and abetting might result in a buyer of illegal drugs being guilty of the crime of distribution. See United States v. Swiderski, 548 F.2d 445, 451 (2d Cir. 1977) (one who receives drugs does not aid and abet distribution "since this would totally undermine the statutory scheme. Its effect would be to write out of the Act the offense of simple possession"); Dissenting opinion at 18. Nor do we concede, as implied by the Dissent at 19-20, that the statutory language is ambiguous. *fn6 Rather, the statutory language covers a broad class of persons, providing, with exceptions not relevant here, that "it is unlawful for any person knowingly and intentionally to . . . distribute . . . a controlled substance." D.C. Code § 33-541 (a) (Repl. 1989). See also Minor, supra, 623 A.2d at 1186-87 (purchasing agent defense has been eliminated); Long v. United States, 623 A.2d 1144, 1149 n.10 (D.C. 1993). Under controlling authority we conclude that there was sufficient evidence that Lowman was aiding and abetting the distribution of cocaine.
A reasonable jury could also reasonably find appellant Carter guilty of distributing cocaine. Officer Johnson testified that Carter replied affirmatively when Lowman asked him whether he had any drugs, told the officer and Lowman to wait by a fence, and then waved them to come over. He also testified that the juvenile removed something from a bag that Carter was holding. See Mason v. United States, 256 A.2d 565, 566-67 (D.C. 1969) (supplying drugs to another, who sold them to undercover officer). Carter admitted being with the juvenile when the officer asked about drugs, and he was with the juvenile when the juvenile was arrested. The juvenile was found with the twenty dollar bill that the officer had used to buy the drugs. The jury could reasonably infer, therefore, that when Carter held out a bag from which the juvenile removed something, Carter was giving the juvenile drugs to sell to the officer. Cf. Green, supra, 608 A.2d at 158. The evidence gave rise as well to a reasonable inference that what the juvenile removed from the bag held by Carter had subsequently field-tested positive for cocaine. Contrary to Carter's contention, it was unnecessary for the government to show that Carter possessed drugs; the government needed only to show that he aided and abetted the juvenile's sale of the drugs. See id. at 157, 158, 160; cf. Greer v. United States, 600 A.2d 1086, 1088 (D.C. 1991).
Appellant Lowman's other contentions are unpersuasive.
Aiding and Abetting Instruction. The trial Judge did not err in giving the aiding and abetting instruction over objections by defense counsel. An aiding and abetting instruction may be given where it appears that there was a principal involved, regardless of whether the defendant is charged as a principal or an aider and abettor. *fn7 Judge v. United States, 599 A.2d 417, 420 (D.C. 1991); Stewart v. United States, 439 A.2d 461, 463 (D.C. 1981); cf. 22 D.C. Code § 22-105 (Repl. 1989); Davis v. United States, 498 A.2d 242, 246 (D.C. 1985). The government argued to the jury that Lowman was aiding and abetting a drug transaction. Although Lowman did not handle money or drugs, she brought the officer to the sellers. Hence, there was evidence from which the jury could reasonably find that she was not the principal but she was instead aiding and abetting a drug sale.
A defendant may be found guilty of aiding and abetting if a crime was committed, the defendant assisted or participated in the crime, and she or he did so with guilty knowledge. Wright, supra, 508 A.2d at 918 (citation omitted); Gillis v. United States, 586 A.2d 726, 728 (D.C. 1991); Byrd v. United States, 364 A.2d 1215, 1219 (D.C. 1976); see also Payton v. United States, 305 A.2d 512, 513 (D.C. 1973). These elements have been met in appellant Lowman's case. The Dissent's reliance on United States v. Salamanca, 300 U.S. App. D.C. 384, , 990 F.2d 629, 638 (1993), see Dissenting opinion at 15-16 n.4, is misplaced because that case involved a defendant's mere presence during a crime whereas the evidence in the instant case showed more than mere presence. See Greer, supra, 600 A.2d at 1088; Creek v. United States, 324 A.2d 688, 689 (D.C. 1974); Perry v. United States, 276 A.2d 719, 719-20 (1971). *fn8
Lowman maintains, however, that she "was not an active participant; at best only a naive person on the street, acting as an unknowing participant, i.e. a good Samaritan." The evidence did not require the jury to accept this assertion. Lowman admitted that she knowingly facilitated a drug transaction by taking the undercover officer to someone she knew was selling drugs. She inquired whether appellant Carter and the juvenile had the drugs that the officer was seeking to buy and then she remained with the officer until the drug transaction was completed. A reasonable jury could reasonably have found that her actions and presence were intended to facilitate a drug sale.
Lowman's reliance on Creek, supra, 324 A.2d 688, is misplaced. In Creek the court stated that a defendant could be found guilty of aiding and abetting a robbery where he acted as a lookout during a purse snatching, fled with the thief, and was arrested in the company of the thief. Creek, supra, 324 A.2d at 689. The court concluded that "the inference that [the defendant's] presence by the gate [where the defendant crouched as a lookout] 'designedly encouraged,' or 'facilitated' the is clearly warranted." Id. Although Lowman did not flee with, and was not arrested in the company of, Carter, she did more than serve as lookout: she actively solicited the sale by conveying and matching up a willing buyer to a willing seller.
Prior Convictions Instruction. Nor do we find any reversible error as a result of the trial Judge's denial of Lowman's request that the jury be instructed that the instruction on prior criminal convictions applied only to Carter. On direct examination, Carter admitted that he had previously been convicted of attempted unauthorized use of a motor vehicle. Upon completion of the direct examination, the Judge instructed the jury that evidence of Carter's prior conviction could be used only to determine credibility of the defendant as a witness and did not bear on whether the defendant was guilty. While a "defendant in a criminal case is entitled to an instruction on any issue 'fairly raised by the evidence,'" Smith v. United States, 309 A.2d 58, 59 (D.C. 1973) (citation omitted), a trial Judge also retains discretion to decide the form and wording of the instruction. *fn9 Assuming that it would have been preferable for the trial Judge to clarify that the prior conviction evidence could only be used to evaluate appellant Carter's credibility, we conclude that it must necessarily have been clear to the jury that this instruction applied only to Carter, and, therefore, that any error was harmless.
The only evidence before the jury concerning a prior conviction was Carter's prior conviction for unauthorized use of a motor vehicle; there was no such evidence concerning Lowman. Immediately after Carter's direct examination, when he admitted his prior conviction, the trial Judge instructed the jury on the limited use of prior convictions in a manner that made it clear that the instruction pertained only to Carter. During the general instructions, the Judge gave a similar limiting instruction on the use of prior convictions. Lowman's counsel conceded that "I think it's clear that it [the instruction] does [apply only to Carter], but I just want this jury to make sure they don't think they're hearing some mysterious instruction applying to Ms. Lowman." In addition, Carter's prior conviction for attempted unauthorized use of a motor vehicle involved a distinct offense that was not similar or related to the charge in the instant case. Cf. Dorman v. United States, 491 A.2d 455, 459-60 & n.2 (D.C. 1984) (en banc). The Judge also instructed the jury that each defendant's guilt or innocence should be determined separately, by considering only the evidence applicable to that defendant. Under these circumstances, any prejudice that might have improperly arisen as a result of Carter's prior conviction was minimal at most. *fn10
Accordingly, we affirm the judgments of conviction. *fn11
SCHWELB, Associate Judge, Concurring in part and Dissenting in part: The majority sustains Katrina Lowman's conviction on "an aiding and abetting theory," maj. op. at 4, but apparently finds it unnecessary to determine whether Ms. Lowman was aiding her co-defendant and a juvenile to sell crack cocaine, or simply helping Officer Johnson to buy some. The omitted analysis makes a great deal of difference, for aiding and abetting the distribution of a controlled substance is a felony now subject to a mandatory minimum sentence, *fn1 see D.C. Code § 33-541 (c)(1)(A) (1988); Dupree v. United States, 583 A.2d 1000 (D.C. 1990), while aiding the buyer to possess drugs is a misdemeanor. In my opinion, the evidence, viewed in the light most favorable to the prosecution, establishes Ms. Lowman's guilt of aiding and abetting possession of cocaine, but not of helping anyone to sell it. Accordingly, I respectfully Dissent from the affirmance of her conviction; I join my colleagues in holding that the evidence against Carter was sufficient.
Although there were variations in evidentiary detail between the accounts provided by the defense and prosecution, the essential facts are not in dispute. There was no evidence that Ms. Lowman was out searching for buyers on behalf of Carter or the juvenile, or that she was in cahoots with either of the two in any way. *fn2 Officer Johnson testified that it was he who asked Ms. Lowman where he could purchase a "20 rock" of crack cocaine. According to Johnson, Ms. Lowman took him to Carter. Ms. Lowman inquired whether Carter had "20's". *fn3 Carter and the juvenile then sold Johnson a "rock" of cocaine, and Ms. Lowman left the scene. She never handled the drugs or the money, and there is no suggestion that she received, or expected to receive, anything of value from the principals in the sale.
On these facts, construed in the light most favorable to the prosecution, *fn4 Ms. Lowman's conviction could not rationally rest on a finding, beyond a reasonable doubt, that there was some prearrangement, coordinated action, or community of unlawful purpose between Ms. Lowman on the one hand and Carter and the juvenile on the other. The question fairly presented is whether one who directs a buyer to a potential seller is engaged, contrary to the common sense meaning of the term, in the distribution of unlawful drugs. See Annotation, Criminality of Act Directing to, or Recommending, Source From Which Illicit Drugs may be Purchased, 42 A.L.R. 3d 1072 (1972 & Supp. 1992) (hereinafter Annotation). An objective resolution of that question requires careful analysis of the statutory language, legislative history, and analogous judicial precedent.
A. The Statutory Framework.
In the District of Columbia, "it is unlawful for any person knowingly or intentionally to . . . distribute . . . a controlled substance." D.C. Code § 33-541 (a)(1) (1988). Our "aiding and abetting" statute, D.C. Code § 22-105 (1989), provides in pertinent part that
in prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories . . . .
To establish aiding and abetting, the prosecution was obliged to prove that Ms. Lowman "'in some sort associated herself with the venture, that she participated in it as in something that she wished to bring about, that she by action to make it succeed.'" Brooks v. United States, 599 A.2d 1094, 1099 (D.C. 1991) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (Learned Hand, J.)); see also Nye & Nissen v. United States, 336 U.S. 613, 619, 93 L. Ed. 919, 69 S. Ct. 766 (1949) (adopting Peoni definition). It is not sufficient to show that Ms. Lowman aided someone; the government must prove that the assistance was given to "the perpetrator" of the crime. Brooks, supra, 599 A.2d at 1099; see also United States v. Staten, 189 U.S. App. D.C. 100, 108, 581 F.2d 878, 886 (1978). "In order for one to be an accomplice [or an aider or abettor] *fn5 she must be concerned in the commission of the specific crime with which the defendant is charged, she must be an associate in guilt of that crime, a participant in that offense as principal or accessory." Risinger v. United States, 236 F.2d 96, 99 (5th Cir. 1956) (emphasis added). The specific crime which Ms. Lowman is alleged to have aided and abetted in this case was distribution of cocaine, and the principal offenders were her co-defendant and his juvenile confederate.
If the words of the statute are accorded their ordinary everyday meaning, see Riggs Nat. Bank v. District of Columbia, 581 A.2d 1229, 1235 (D.C. 1990), then it is difficult to see how Ms. Lowman could be found to have aided and abetted the distribution of cocaine. She did not advise or incite the sellers to sell drugs, nor connive with them in any way. On the contrary, she advocated no action on their part, but simply asked Carter if he had any 20's for sale. Ms. Lowman likewise did not aid or abet the principal offenders to do anything. Rather, her significant dealings were all with the prospective buyer.
The government argues that Ms. Lowman "facilitated" the sale. This is undoubtedly true, in the sense that she made it easier for Officer Johnson to buy a packet of crack, and ultimately for the sellers to sell it. Such an argument, however, proves too much. A cab driver who transports a buyer to the scene also "facilitates" a sale in this unrestricted sense of the word. Every purchaser of drugs makes it easier, by his or her conduct, for a seller to sell. Indeed, the purchaser's role is far more vital to the sale, and encourages it in considerably greater measure, than Ms. Lowman's role of, at most, a buyer-sponsored intermediary. Accordingly, if the government's position were adopted, and if everyone who assisted a buyer of drugs were thereby rendered a distributor, then, a fortiori, every purchaser would also logically have to be deemed an aider and abettor to a felony, and would therefore be subject to a mandatory minimum sentence. The consequence of such a construction of the statute, however, would be "to write out of the Act the offense of simple possession, since under such a theory every drug abuser would be liable for aiding and abetting the distribution which led to his own possession." United States v. Swiderski, 548 F.2d 445, 451 (2d Cir. 1977). *fn6 If the buyer is not an aider and abettor to the sale, then I do not see how we can logically hold that someone who renders assistance to the buyer can be guilty of distribution. *fn7
At best, from the government's point of view, the statutory language is ambiguous; conceivably, it could be stretched, albeit with some difficulty, to reach the conduct of one who assists the buyer and thereby ultimately makes it easier for the seller to effect the sale. If this is so -- and I think that such an expansion tends to distort the ordinary meaning of the words "aiding and abetting" and "distribution" -- then the present case surely provides an appropriate occasion for invoking the rule of lenity.
"The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself." United States v. Wiltberger, 18 U.S. 76, 5 Wheat (18 U.S.) 76, 95, 5 L. Ed. 37 (1820); Dupree, supra, 583 A.2d at 1004 n.1 (D.C. 1990) (concurring opinion). *fn8 It "'rests on the fear that expansive judicial interpretation will create penalties not originally intended by the legislature.'" Riggs, supra, 581 A.2d at 1262 (quoting 3 N. SINGER, SUTHERLAND, STATUTORY CONSTRUCTION, § 59.03, at 11 (4th ed. 1986)). "This policy embodies the instinctive distaste against men [and women] languishing in prison unless the lawmaker has clearly said they should." United States v. Bass, 404 U.S. 336, 348, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971) (quoting H. FRIENDLY, MR. JUSTICE FRANKFURTER AND THE READING OF STATUTES (1967)). Distribution of cocaine is now subject to a mandatory minimum penalty which restricts the Judge's traditional sentencing discretion, and application of the rule of lenity is especially appropriate. Winters v. Ridley, 596 A.2d 569, 573 n.5 (D.C. 1991) (per curiam) (Schwelb, J. Concurring).
Dismissing the rule of lenity with a correct but patently inapposite aphorism, *fn9 my colleagues construe "aiding and abetting" quite broadly, and go on to treat aid directed to the buyer as though it were the far more serious offense of providing assistance to the seller. They acknowledge that there may be "humanitarian or policy considerations favoring the Dissent's approach," [SLIP OP] at 8, but insist that we should not concern ourselves with such considerations, and must instead leave them to the legislature. It is here, in my view, that the majority's logic demonstrably founders.
The language of the statute, as I have shown, is not so plain that the only reasonable construction of it inexorably draws the unfortunate Ms. Lowman within its ambit. If there is an ambiguity, we surely ought not to resolve it by construing a criminal statute as expansively as the majority does. Even in cases where the governing text is a good deal more favorable to the prosecution than the language of the statutes on which the majority relies here, courts need not and should not slavishly follow that text to reach an unjust result. Mendoza v. United States, 565 F.2d 1285, 1289-90 (5th Cir. 1978). "General terms should be so limited in their application as not to lead to inJustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character." United States v. Kirby, 74 U.S. (7 Wall) 482, 486-87, 19 L. Ed. 278 (1868) (emphasis added); see also Consumers Union of United States v. Walker, 79 U.S. App. D.C. 229, 230, 145 F.2d 33, 34 (1944) (quoting Kirby). When a criminal statute is broadly construed in a manner which, as the majority virtually acknowledges, disregards "humanitarian" considerations, then surely this is inJustice.
Justice Chase's language for the Court in Noonan v. Bradley, 76 U.S. (9 Wall.) 394, 407, 19 L. Ed. 757 (1869), has the ring of conviction and the force of truth:
When an instrument is susceptible of two constructions -- the one working inJustice and the other consistent with the right of the case -- that one should be favored which standeth with the right.
In Noonan, to be sure, the Court was talking about a contract between private parties. The principle so eloquently enunciated in Justice Chase's opinion, however, surely applies with even greater force to legislation, see Kirby, supra, particularly where, as here, we are dealing with a criminal statute which contains a mandatory minimum feature and which deals so harshly with the liberty of the citizen.
B. Legislative History.
Neither party has cited any pertinent legislative history, and I am unaware of any that deals directly with the issue here presented. The materials that are available persuade me, however, that the legislature never intended to treat conduct such as Ms. Lowman's as distribution of cocaine, or as warranting the imposition of a mandatory minimum penalty.
According to the Report of the Judiciary Committee, see maj. op. at 8, a central purpose of the enactment of the local statute was to abolish the "unilateral approach" of the former Uniform Narcotics Act, which was viewed as not discriminating sufficiently between serious and less serious offenders, and 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." See Long, supra, 623 A.2d at 1150 n.13 (emphasis added) (quoting Report). *fn10 The emphasis in the Committee Report on proportionality between crime and punishment belies any suggestion that the legislation was designed to require severe punishment, including prolonged incarceration, for an individual who, in response to a prospective buyer's inquiry, did no more than simply inform that buyer where drugs could be purchased, walk with him to a prospective seller, and inquire whether cocaine was available. The "nature" of Ms. Lowman's offense is surely different from, and substantially less grave than, distribution in the ordinary meaning of that word.
C. The Case Law.
According to the majority, this appeal is controlled by Griggs v. United States, 611 A.2d 526 (D.C. 1992). I must respectfully disagree.
In that case, which was originally decided by unpublished memorandum opinion and judgment (MOJ), id. at 526 n.*, *fn11 the defendant, Griggs, led a female undercover police officer to his codefendant, James Williams, who was in possession of cocaine for sale. Evidently attempting to vouch for the officer's reliability, Griggs told Williams that the officer was Griggs' cousin. Williams then sold cocaine to the officer. Both Williams and Griggs were convicted of distribution. An impartial jury could rationally find that the only plausible reason for Griggs to represent that the officer was his cousin was in order to encourage and induce Williams to sell cocaine to her. Moreover, such a jury could reasonably conclude from Griggs' remark about his supposed relationship with the officer that Griggs was screening potential customers for Williams (albeit with less than exemplary *fn12 fidelity) and that he was therefore in league with Williams. Under these circumstances, the prosecution made out a sufficient case of aiding and abetting to warrant the denial of a motion for judgment of acquittal. To read Griggs as holding more than that, and as standing for the proposition that anyone who helps a buyer find a seller is guilty of distribution, is to extract that decision from its context. *fn13
In the present case, on the other hand, Ms. Lowman made no representation to the sellers regarding Johnson's reliability as a potential customer, nor did she say anything else to persuade or induce them to sell. Rather, she simply asked Carter whether he had any 20's for sale. There was no evidence that she was working for (or together with) Carter or the juvenile. Indeed, if she had been one of Carter's "runners" or "jugglers," she would presumably have known what merchandise he had available, and the question which she asked Carter would have been superfluous. The scenario which the court encountered in Griggs was thus materially different from the situation presented here, and that decision cannot fairly be viewed as controlling. *fn14
The better-reasoned decisions in other jurisdictions suggest that a conviction of distribution on these facts should not be sustained. In Morei v. United States, 127 F.2d 827 (6th Cir. 1942), Beach, an undercover agent, contacted Platt, a physician, and asked Platt to sell him heroin. Platt stated that he did not have any, but told Beach the name and address of Morei as a potential supplier, and directed Beach to tell Morei that Platt had sent him. Beach purchased heroin from Morei, and Platt was eventually charged as an aider and abettor and the jury found him guilty.
The appellate court reversed Platt's conviction. The court explained that the prosecution was required to prove the existence of
a community of unlawful intention between and the perpetrator of the crime. The concept of an accessory before the fact *fn15 presupposes a prearrangement to do the act.
Id. at 831 (citation omitted; emphasis added). The court went on to state that
there was no community of scheme between him and the other defendants. They shared in no common intent or plan, nor was there any prearrangement or concert of action. Dr. Platt was paid nothing and it is not claimed that he asked for any remuneration or expected to receive anything from the claimed transaction . . . . This is not the purposive association with the venture that, under the evidence in this case, brings Dr. Platt within the compass of the crime of selling or purchasing narcotics, either as principal, aider and abettor, or accessory before the fact.
Id. at 831-32.
The Morei decision is now more than half a century old, but its reasoning is cogent and continues to persuade. *fn16 A number of courts have either explicitly followed Morei or adopted essentially the same reasoning. I advert briefly to a few of the decisions.
In State v. Gladstone, 78 Wash. 2d 306, 474 P. 2d 274 (Wash. 1970), Gladstone gave a police informant the name of one Kent as an individual who would sell marijuana. He also provided directions to Kent's home, and drew the informant a map. *fn17 Kent thereafter sold drugs to the informant. Following Morei, and quoting at length from that decision, the court held this evidence insufficient to show aiding and abetting because Gladstone did not induce, counsel or encourage Kent to sell, and because Gladstone derived no benefit, consideration or reward. 474 P.2d at 278-79.
In People v. Gordon, 32 N.Y.2d 62, 295 N.E. 2d 777, 343 N.Y.S.2d 103 (N.Y. 1973), the defendant, Gordon, gave Cryan, an undercover trooper, the name of Newlon as a dealer in narcotics, and provided Cryan with directions to Newlon's residence. After Newlon sold marijuana to Cryan, Gordon was convicted as a "facilitator" of a felony. The Court of Appeals, in an opinion by Chief Judge Fuld in which the prosecution's theory was characterized as "unusual," 295 N.E.2d at 779. reversed Gordon's conviction. The court held, inter alia, that while Gordon may have been aiding Cryan to possess a dangerous drug, that offense was a misdemeanor only. The court concluded that there was insufficient evidence to sustain Gordon's conviction.
In Bowles v. State, 265 Ark. 457, 579 S.W. 2d 596 (Ark. 1979), Baker, an undercover officer, asked the defendant Bowles, a bartender, where he could buy large quantities of marijuana. Bowles referred Baker to Cash, and Baker purchased a large supply of marijuana from Cash. Bowles was charged and convicted as an accomplice to the delivery of a controlled substance. In reversing Bowles' conviction, the court adopted the rationale of other jurisdictions which have held that a "facilitator" of a sale of illicit drugs is not an accomplice of the seller, so long as he is interested only on behalf of the buyer. 579 S.W.2d at 596. *fn18
In Daigger v. State, 268 Ark. 249, 595 S.W.2d 653 (Ark. 1980), undercover agents attempted to purchase LSD from Taylor, but could not agree on a price. Taylor then took the agents to Mr. and Mrs. Daigger, who effected a sale. Taylor and both Daiggers were convicted of "delivery" of LSD. The court affirmed the convictions of the Daiggers, but reversed as to Taylor. Citing its earlier decision in Bowles, supra, the court held that
a man who simply introduced the buyer to the seller was not guilty of delivery. The middleman must take a more active part to be a principal or even an accomplice.
595 S.W.2d at 654 (emphasis added).
In Davila v. Texas, 664 S.W.2d 722 (Tex. Cr. App. 1984) (en banc) Chism, an undercover agent, visited the defendant, Gloria Davila, at her residence. He told her that he wanted to buy heroin. Mrs. Davila spoke to her husband, Cosme, and told him what Chism wanted. Cosme then sold Chism four balloons containing heroin. Mrs. Davila was convicted of delivery of heroin by "constructive transfer." On appeal, the court reversed Mrs. Davila's conviction, holding that there was no proof that the contraband was under her control, and that her "act in merely relaying an offer from buyer to seller was not sufficient to prove that the seller acted at 'instance or direction.'" Id. at 725. *fn19
In People v. Bryant, 106 A.D.2d 650, 483 N.Y.S.2d 117 (App. Div. 2d Dept. 1984), an undercover officer and an informant approached Bryant in a bar and indicated that they wished to purchase cocaine. Bryant pointed to a man seated in another part of the bar and said: "Go see Michael and tell him I said it's okay to serve you." 483 N.Y.S.2d at 118. The two ostensible purchasers did so, a sale followed, and Bryant was subsequently convicted of sale of cocaine. In reversing his conviction, the court noted that
the purchase was suggested by the buyer and she paid the seller directly. There is not a scintilla of evidence to establish any previous relationship between defendant and Michael nor to show that defendant stood to profit from the sale. Under the circumstances, the judgment must be reversed and the indictment dismissed. . . .
It is well established that one who participates in a sale of illegal narcotics solely to assist the buyer and has no direct interest in the contraband being sold cannot be convicted of criminal sale of a controlled substance.
483 N.Y.S.2d at 118-19 (citations omitted). *fn20
My colleagues seem to think it important that Ms. Lowman accompanied the officer to the scene of the sale. As noted above, however, the defendants in Daigger, Davila and Bryant were likewise where the action was. Walking over with the officer and inquiring whether Carter had "twenties" may constitute more help to the buyer than would be provided by staying away, but I do not think it can logically convert Ms. Lowman's conduct into aiding and abetting the sale.
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To be sure, there are decisions sustaining convictions in comparable circumstances. See, e.g., United States v. Tyler, 758 F.2d 66, 70-71 (2d Cir. 1985) (reversing conspiracy conviction but affirming aiding and abetting conviction because defendant who helped willing buyer to locate willing seller brought about a sale that, without his participation, would not have been made); Haywood v. State, 562 So. 2d 297, 300 (Ala. Cr. App. 1990) (defendant who brought buyer and seller together and communicated the buyer's desire to the seller thus "aided in the distribution of a controlled substance"); Annotation, supra, 42 A.L.R. 3d at 1076-78, and authorities there cited. It is difficult to generalize, because cases raising the issue arise in a wide variety of scenarios; two cases are seldom precisely alike. In my opinion, in any event, the courts that follow the reasoning typified by the decisions in Morei and Daigger have the better of the argument. I would join them.
This is a case of considerable importance. In my view, the majority decision tends to frustrate the legislative design that the courts recognize the differences between various kinds of drug offenders, and that they impose punishment in each case that is appropriate to the offense. If, by pointing out a drug dealer to a purchaser and inquiring about the dealer's wares, Ms. Lowman became a distributor herself for purposes of punishment, then our prisons will continue to be filled by comparatively minor participants in the destructive drug trade. The "big enchiladas," meanwhile, seldom venture out into the street, and are far less likely to be apprehended. The result -- that people like Ms. Lowman are classed as felons and sentenced to long prison terms -- is not only manifestly unjust, but also contrary, at least, in my view, to the Council's intent and to the canons of construction applicable to criminal statutes.
If Ms. Lowman is guilty of distribution, what is the next stop down the line? Does a cab driver who accedes to a customer's request to drive him to a brothel thereby render himself punishable as a pimp? Is a wife subject to a mandatory minimum penalty for aiding and abetting distribution if, seeing her addict husband in the agony of withdrawal pains, and desperate to alleviate his suffering, she drives him to a dealer, who then sells him heroin? If the answer to these questions is no, then we should be careful about how "creatively" we construe our Controlled Substances Act in cases such as this.
Undercover officers frequently approach citizens like Ms. Lowman in the drug-ridden neighborhoods throughout our city in which these people have to live. Seeking to apprehend the drug traffickers who make life miserable for their neighbors, the police often ask these citizens leading questions. I have no problem with that; the officers are doing their job. Apparently, however, a less than sagacious answer to such a leading question can propel a citizen perilously near the prison gate. Before we conclude, on as little evidence as the prosecution produced against Ms. Lowman, that our elected representatives intended to treat her conduct as distribution, I suggest that we take a long hard look at the problem en banc.