Appeal from the Superior Court of the District of Columbia (F-5826-04) (Hon. Brian Holeman, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID, GLICKMAN, and THOMPSON, Associate Judges.
Opinion for the court by Associate Judge GLICKMAN.
Concurring opinion by Associate Judge REID at p. 17.
Appellant Eric R. Washington was tried and convicted on charges of distribution of a controlled substance (cocaine) and possession with intent to distribute a controlled substance (cocaine) ("PWID"). His convictions must be reversed because the trial court admitted a Drug Enforcement Administration chemist's substance analysis ("DEA-7") reports, and refused to allow appellant to cross-examine the chemist in person, despite the government's failure to furnish copies of the DEA-7 reports to appellant in advance of trial as required by D.C. Code § 48-905.06 (2001). These erroneous rulings were not harmless even with respect to the jury's implicit guilty verdicts on the lesser-included offenses of attempted distribution of a controlled substance and attempted PWID. Accordingly, appellant must be afforded a new trial.
Police arrested appellant on the afternoon of September 16, 2004, minutes after an undercover officer in a nearby observation post saw him appear to sell drugs to two men who were later identified as Franklin James and Charles Thomas. The observation post officer, Angelo Battle, watched as James and Thomas walked up to appellant, who was sitting in a yard in the 1500 block of Olive Street, N.E. Battle testified that James spoke with appellant and handed him some green bills that "appeared to be U.S. currency." Appellant then went to a fence approximately twenty feet away, moved a brick, and picked up a small green bottle. He poured several "clear ziplock bags containing a white substance" into his hand, put some of the bags back in the bottle, restored the bottle to its hiding place, and returned to James. Appellant and James engaged in a "hand-to-hand transaction," after which James and Thomas departed on foot. As Battle testified at trial, the contents of the green bottle "raised [his] suspicion;" he "identified the items as being a suspected narcotic, possibly crack cocaine or heroin." Battle called in the arrest team, and appellant was promptly apprehended. In a search incident to his arrest, police recovered a crumpled $20 bill from appellant's right front pants pocket and an additional $80 from his right rear pants pocket.
Meanwhile, other officers stopped James and Thomas, who were still together. Thomas was found to be in possession of "one clear zip containing [a] white rocky substance."*fn1 No incriminating evidence was found on James. At Battle's direction, Officer Peter Shaw retrieved the green bottle underneath the brick by the fence. Inside the bottle, which was wrapped in black electric tape, were twelve small clear ziplock bags. These bags too contained a white, rocky substance. They were submitted along with the items seized from Thomas to a Drug Enforcement Administration ("DEA") laboratory for chemical analysis.
At trial, the government relied on the DEA chemist's analyses to prove that the white rocks contained a measurable amount of a controlled substance.*fn2 The government did not call the chemist to testify in person, however. Instead, over appellant's objection (as we discuss below), the court permitted the government to introduce the chemist's written DEA-7 reports of his analyses. According to those reports, the twelve ziplock bags in the green bottle contained .72 grams of cocaine base, and the ziplock bag recovered from Thomas contained an unquantified residue of the same drug.
The government called Detective Anthony Washington to testify as an expert on the distribution and use of cocaine in the District of Columbia. He explained that sellers often keep their drugs in a hidden "stash" rather than on their person, and that sellers frequently employ "facilitators" to acts as liaisons with unfamiliar buyers. (The government's theory at trial was that James served as such an intermediary between appellant and Thomas.) Detective Washington further testified that the ziplock bags of crack cocaine found in the green bottle were "specifically packaged for street distribution." Based on the amount of cocaine as reported in the DEA-7, he estimated that each ziplock bag had a street value of $10 to $20. Finally, Detective Washington opined that possession of twelve ziplock bags of cocaine on the street at one time is more consistent with an intent on the part of the holder to distribute the drugs than to use them personally, because users typically limit their purchases to minimize the risk of buying counterfeit drugs:
Usually when the buyers go out and make purchases of crack cocaine [for personal use], they only buy between one to three bags. . . . The main reason is there's no quality control out there. An individual go out [sic] and buy illicit drugs on the street, they [sic] don't know what they're buying. It could be from the best cocaine they purchased, to the point where it may not be cocaine at all. If the person buys something that is not cocaine, they can't take it back to the drug dealer and say this is no good, the product is bad, give me my money back. It's a big loss for them. They have to take it as a loss and move on. Normally this is why we don't see individuals out there buying more than three bags at a time.
In his defense, appellant testified that he was on Olive Street visiting his brother and cousin when James, whom he knew, and another man stopped by. Appellant denied receiving any currency from James or selling drugs to anyone. He also denied walking over to the fence, retrieving anything from the green bottle, or possessing any ziplock bags of cocaine. Appellant admitted handing something to James, but he claimed that it was only a cigarette, not cocaine. He further stated that the money in his possession when he was ...