Appeal from the Superior Court of the District of Columbia. (Hon. A. Franklin Burgess, Jr., Trial Judge). (Hon. Arthur L. Burnett, Sr., Trial Judge)
EN Banc. Before Wagner, Chief Judge,* Ferren, Terry, Steadman, Schwelb, Farrell, King, and Sullivan, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: King
KING, Associate Judge: On December 30, 1992, two divisions of this court, in unrelated cases, affirmed the convictions of Sean A. Thomas and Alonzo D. Washington for controlled substance violations, rejecting claims that the evidence presented did not constitute a "usable amount" of the controlled substance in question. Thomas v. United States, 619 A.2d 20 (D.C. 1992), and Washington v. United States, 619 A.2d 30 (D.C. 1992) (per curiam). In Thomas, Judge Sullivan, in a separate opinion, suggested that the en banc court address the question of whether this court should continue to apply the usable amount standard. Thereafter, the court granted the government's motion for rehearing en banc in both cases to re-examine the validity of the usable amount requirement in prosecutions for violations of laws related to controlled substances. *fn1 See Edelin v. United States, 227 A.2d 395 (D.C. 1967). We hold that, in order to secure a conviction for controlled substance violations, the government need only prove there was a measurable amount of the controlled substance in question. The usable amount standard will no longer apply to prosecutions under the Controlled Substances Act for offenses committed after the date of this opinion. *fn2
A. No. 91-CF-113, Thomas v. United States
On October 3, 1989, Thomas approached an undercover police officer and, after a brief conversation, sold the officer one rock of crack cocaine for twenty dollars. The rock purchased by the undercover officer was determined by chemical analysis to weigh 160 milligrams, 93% of which was cocaine.
Thomas was convicted of distribution of cocaine, *fn3 and on appeal he principally contended there was insufficient evidence to prove there was a usable amount of cocaine and that the trial court erred in failing to instruct the jury on the definition of usable amount.
The division, concluding that a laboratory report indicating the quantity of cocaine in the rock sold, together with expert testimony by a police officer concerning the significance of the results contained in the report, provided the "necessary information" for the jury, held that it was not reversible error for the expert witness to define the term usable amount for the jury. Thomas, supra, 619 A.2d at 25-27. The division held that the trial court did not commit plain error by failing to define usable amount, id. at 28; however, the court promulgated a suggested jury instruction providing such a definition. Id. at 27.
B. No. 91-CF-818, Washington v. United States
On November 26, 1990, two undercover patrol officers arrived at the 300 block of L Street, S.W., after being informed that someone in that vicinity was "working," i.e., selling drugs. One of the officers then walked to a nearby fence, where Washington had been observed handling blue ziplock bags, and recovered a white bag that contained fourteen blue ziplock bags, all of which held rock-like substances. An expert witness for the government testified that the fourteen bags contained a total of 7.233 grams of cocaine of 92% purity.
Washington was convicted of possession with intent to distribute cocaine, *fn4 and he contended on appeal that there was insufficient evidence to support the conviction because the government failed to establish through expert testimony that he possessed a usable amount of cocaine.
The division disagreed, holding that expert testimony was not essential to establish usable amount, and concluded that "the government established usability in a variety of ways," including evidence of the quantity of drugs recovered, the packaging of the drugs, as well as observation of Washington selling, to an unidentified citizen, a ziplock bag that he had obtained from the same white bag recovered by the officers. Washington, supra, 619 A.2d at 32-33.
II. In its initial brief in No. 91-CF-818, the government contended that the applicable statute prohibits the possession of a controlled substance with intent to distribute, without regard to the quantity of the substance involved. Moreover, it maintained that "proof of usable amount is not required to support a conviction under D.C. Code § 33-541." The latter argument was premised upon four separate criticisms of the usable amount requirement as being: (1) inconsistent with the plain language and legislative history of the relevant statutes, (2) contrary to the overwhelming weight of state and federal authority, (3) difficult to apply, thereby, generating needless litigation, and (4) contrary to the legislative policy of complete suppression of unauthorized possession of controlled substances. These arguments were all new in the sense that they were made for the first time in this court, so far as we can determine, in May 1992, when the government filed its initial brief in No. 91-CF-818. Thus, the arguments were first presented eleven years, and scores of appeals involving the issue, after the applicable statute, the District of Columbia Uniform Controlled Substances Act of 1981 ("DC-CSA"), *fn5 was first enacted into law by the Council of the District of Columbia ("Council").
The prohibition applicable to these cases makes it "unlawful for any person knowingly or intentionally to manufacture, distribute, or possess with intent to manufacture or distribute, a controlled substance." D.C. Code § 33-541 (a)(1). Appellant Thomas was charged with distribution, while appellant Washington was charged with possession with intent to distribute a controlled substance. The government contends that any amount of a controlled substance is a violation of this statutory provision, an interpretation which, it asserts, is plain from the law's terms. We find it puzzling, if the meaning is as clear and as obvious as the government contends it to be, that it has taken this long for this argument to be presented to us. This belated discovery of the statute's meaning, however, does not estop the government from making the argument because, if we conclude that the Council's intent was as is contended by the government, we are obligated to apply that intent. What is plain to us is that the terms in the statute are not as crystal clear in their meaning as they are to the government. One may question, for example, whether a substance can even be identified as a "controlled substance," as defined by the statute, if it is so minute as to escape all measurement. In short, it is not obvious, in our view, that the Council in adopting the DC-CSA, without doubt, intended that any amount of a controlled substance would be sufficient to support a conviction.
Since the meaning is not plain, we will resort, as we ordinarily must, to interpretative techniques that courts find helpful in determining the intent of the legislature. We have identified two applicable principles that appear, at least on the surface, to produce conflicting results. The two interpretative approaches both involve presumptions concerning the meaning of words or terms in a new statute when the same words or terms appear in an already existing statute and have a reasonably settled and understood meaning. One presumption, urged upon us by the government, holds that when the Council enacts, in substance, some existing federal statute, it does so, absent an indication to the contrary, together with any known and settled interpretations of the provisions of that statute by the highest court or courts called upon to interpret it. McReady v. Department of Consumer & Reg. Affairs, 618 A.2d 609, 615 (D.C. 1992) (citation omitted). Similarly, when a legislative body uses words or terms that have appeared in other legislation enacted by the same legislative body, or as in this case a predecessor legislative body, *fn6 then it is presumed, absent a contrary indication, that the words or terms incorporated into the new statute will have the same meaning as those words or terms had in the existing statute. Lorillard v. Pons, 434 U.S. 575, 581, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978) (when "Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law"). *fn7 Amicus argues that we should apply this presumption.
Before applying these interpretative aids, however, we think it helpful to provide some background regarding the statutes involved in this inquiry. The usable amount requirement was imposed by this court in 1967 in Edelin, supra, 227 A.2d at 399. The provision interpreted in Edelin was part of the Uniform Narcotic Drug Act ("UNA"), which was enacted by Congress in 1938. *fn8 It provided that "it shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug *fn9 . . . ." D.C. Code § 33-402 (a) (1961). The offenses created by the UNA were misdemeanors, punishable by a term of incarceration of up to one year. Although the UNA contains prohibitions of a variety of acts, e.g., the statute makes it unlawful to manufacture, sell, administer, etc., possession of a narcotic drug was the only charge that arose in our reported cases.
At the time Edelin was decided, misdemeanor narcotic possession cases, involving small quantities, were prosecuted in the Court of General Sessions (the predecessor court to the Superior Court) *fn10 and felony drug charges, which involved either larger amounts or actual sales, were prosecuted in the United States District Court, principally pursuant to the Harrison Narcotics Act *fn11 and the Jones-Miller Act. *fn12 See Palmore v. United States, 411 U.S. 389, 392 n.2, 36 L. Ed. 2d 342, 93 S. Ct. 1670 (1973) (discussing prosecutions of criminal cases in the District of Columbia). Both of these statutes were repealed in 1970 when Congress enacted the Federal Controlled Substances Act ("US-CSA"). *fn13
After enactment of the US-CSA, felony drug prosecutions continued to take place in the Federal District Court and misdemeanor possession charges continued to be prosecuted in the Court of General Sessions and, after court reorganization, in the Superior Court. *fn14 During the first decade of its existence, no felony drug prosecutions took place in the Superior Court. In 1981, however, the Council enacted DC-CSA, which is virtually identical in nearly every respect to the US-CSA. The prohibition provision applicable to these cases is, for all practical purposes, the same in the two statutes. The US-CSA provides:
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, ...