Appeal from the Superior Court for the District of Columbia (CF2-13220-10) (Hon. Jennifer M. Anderson, Trial Judge)
The opinion of the court was delivered by: Oberly, Associate Judge:
(Submitted September 25, 2012
Before GLICKMAN, BLACKBURNE-RIGSBY and OBERLY, Associate Judges.
Marcus Snell was convicted of five gun-related charges stemming from an incident on the evening of July 4, 2010: unlawful possession of a firearm (felon-in-possession); carrying a pistol without a license outside one‟s home or place of business (felony CPWL); unlawful discharge of a firearm; possession of an unregistered firearm (UF); and unlawful possession of ammunition (UA).*fn1 On appeal, he challenges all of these convictions on several grounds. He first argues that his conviction under D.C. Code § 22-4504 ("the CPWL statute") cannot be sustained because that statute has been rendered "ineffective" in light of the District of Columbia Council‟s repeal, in 2009, of the statutory provision for granting licenses to carry pistols. Second, Snell makes several merger arguments. Third, he argues that the government‟s failure to turn over Jencks Act material denied him a fair trial. Finally, Snell argues that the evidence presented at trial about two firearms rather than just one constituted a constructive amendment of the indictment, which did not specify the use of two firearms. We reject Snell‟s arguments and affirm the judgment of the Superior Court.
On July 4, 2010, Joy Winslow was sitting on a porch with friends and family, including Snell, watching children set off fireworks. According to Winslow, a physical altercation broke out, which Snell tried to break up. He became agitated and pulled out a black pistol and fired it into the air. Stanley Dawson, a neighbor, confronted Snell about firing the pistol in the presence of children. Snell left but returned later that night and told Winslow that someone had just stolen his gun.
Around midnight, apparently after Snell had been robbed, Dawson‟s aunt, Jacqueline McCoy, was sitting on her front porch when Snell approached and demanded to know where Dawson was. McCoy testified that Snell was carrying a silver pistol and, after repeatedly shouting, pointed it into the air, threatening to shoot. McCoy went inside to call 911; while she was on the phone with the 911 operator, she heard shots being fired outside.
At Snell‟s trial on the gun charges, he stipulated to the fact that he had no registration certificate for any firearm or ammunition and no license to carry a pistol. At the close of the evidence, the trial judge gave the jury a unanimity instruction, stating: "[Y]ou must all agree that [Snell] either committed the first incident with Miss Winslow or the second incident that Miss McCoy described or you can conclude that he committed both." The jury found Snell guilty of UA and unlawful discharge, based on the first incident with Winslow, and guilty of felon-in-possession, UF, and CPWL, based on the second incident with McCoy.
I.The Validity of the CPWL Statute
Snell was charged with felony CPWL ("CPWL outside the home"): carrying a pistol without a license "in a place other than the person‟s dwelling place, place of business, or on other land possessed by the person." D.C. Code § 22-4504 (a)(1). An element the government must prove in all CPWL prosecutions is that the carrying was done without a license. See McCullough v. United States, 827 A.2d 48, 58 (D.C. 2003). The government does not dispute that at the time Snell committed the offense, there no longer was a regulatory scheme in the District for people to obtain licenses to carry pistols. In 2008, as part of its response to the Supreme Court‟s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the D.C. Council repealed D.C. Code § 22-4506 (2001), the statute giving the Chief of Police authority to issue licenses to carry pistols under certain circumstances, and did not replace it with any new licensing scheme. Inoperable Pistol Amendment Act of 2008, D.C. Law 17-388 (codified at D.C. Code § 22-4504.01 (1) (Supp. 2010)). In repealing D.C. Code § 22-4506, the Council left D.C. Code § 22-4504 ("the CPWL statute") unchanged, and at the time Snell was charged with CPWL in 2010, the Council had done nothing to amend the statute in light of the repealed licensing provision.*fn2 Snell thus argues that he cannot be convicted of violating a statute with which, he contends, it was technically impossible to comply.*fn3 See WAYNE R. LAFAVE, CRIMINAL LAW § 6.2 (c) (5th ed. 2003) ("one cannot be criminally liable for failing to do an act that he is physically incapable of performing"); Port Huron v. Jenkinson, 43 N.W. 923, 924 (Mich. 1889) ("No legislative or municipal body has the power to impose the duty of performing an act upon any person which it is impossible for him to perform, and then make his non-performance of such duty a crime."); Arrington, 585 A.2d at 1344 n.2 ("In the absence of a valid statute [a defendant‟s] prosecution c[annot] be maintained.").
Keeping in mind ""[t]he cardinal principle of statutory construction . . . to save and not to destroy,‟" Teachey v. Carver, 736 A.2d 998, 1004 (D.C. 1999) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937)), we conclude that the Council inadvertently neglected to address the license-requirement language of CPWL when it repealed the licensing provision and that felony CPWL remained a prosecutable offense even after the Council made it impossible to obtain a license. Cf. United States Parole Comm'n v. Noble, 693
A.2d 1084, 1087 (D.C. 1997) ("When two statutes are capable of co-existence it is the duty of the courts, absent a clearly expressed legislative intention to the contrary, to regard each as effective.") (alterations and internal quotation marks omitted). It is clear that when the Council repealed the licensing provision, it did not intend to abolish the prohibition against carrying pistols on the street, an act of particular concern to the Council.*fn4
If we were to sever the license-requirement language from felony CPWL
- as the Council eventually did - the "remaining provision, standing
alone, [is] fully operative as a law." McClough v. United States, 520
A.2d 285, 289 (D.C. 1987) (internal quotation marks omitted); see also
D.C. Code § 45-201 (a) (2001). Without the license-requirement
language, felony CPWL becomes a blanket prohibition against carrying a
pistol outside the home, unless it is registered and being used in
compliance with D.C. Code § 22-4504.01 (Supp. 2010). The Council would have prohibited - and eventually did prohibit - this
conduct without an exception for license-holders, see supra notes 2 &
4, and the prohibition does not run afoul of Heller, as this court has
interpreted it. Although the Council may not institute a wholesale ban
on carrying a pistol in one‟s own home or place of business, Heller
did not extend one‟s rights under the ...