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McRae v. United States

Court of Appeals of Columbia District

November 3, 2016

Travis McRae, Appellant,
United States, Appellee.

          Submitted March 15, 2016

         Appeal from the Superior Court of the District of Columbia (CF2-7361-14) Hon. Anita Josey-Herring, Trial Judge

          Robin M. Earnest was on the brief for appellant.

          Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Robert Eckert, and Jay Apperson, Assistant United States Attorneys, were on the brief for appellee.

          BEFORE: Glickman and Thompson, Associate Judges; and Ferren, Senior Judge.


         This case was submitted to the court on the transcript of record, the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that appellant's conviction of possession with intent to distribute ("PWID") is reversed, and the matter is remanded for entry of a judgment of conviction on the lesser included offense of simple possession of marijuana.

          Glickman, Associate Judge

          Travis McRae appeals his conviction for possession of marijuana with intent to distribute ("PWID").[1] His principal claim on appeal, and the only one we find it necessary to address, is that the evidence at trial was insufficient to prove he intended to distribute the 22.7 grams of marijuana recovered by police from the pocket of his jacket. We agree that the evidence of intent to distribute was insufficient.[2]


         On the night of November 15, 2013, according to the government's evidence at trial, appellant was standing outside an apartment building at 208 36th Street N.E. with several other men when a police car drove up and stopped in front of them. The officers, members of a gun recovery unit, were responding to a report of a shooting in the block. Metropolitan Police Officer Pinto called out, "Hey, guys, police, " and got out of the car along with two other officers. Appellant turned and ran into the apartment building. Officer Pinto pursued him as he ran upstairs and inside Apartment 4, into a bedroom, out a back door, and downstairs to the back yard. The officer gave up the chase when appellant ran off into an adjoining alley. On the ground beside the alley, however, Officer Pinto found appellant's discarded jacket. It contained appellant's identification card, which gave his address as 208 36th Street NE, Apartment 4; mail addressed to him there; the keys to that apartment; and a plastic bag containing 22.7 grams (four-fifths of an ounce) of marijuana.

         The police secured Apartment 4 while Officer Pinto obtained a warrant to search it. In the bedroom through which appellant had fled, the police found his photograph and personal papers bearing his name; a digital scale; 175 empty ziplock bags in varying sizes and colors; and a loaded handgun.

         Detective George Thomas testified for the prosecution at trial as an expert in the distribution and use of illegal drugs, including marijuana, in the District of Columbia. He opined that dealers often use digital scales and ziplock bags like those found in Apartment 4 for selling drugs on the streets, though most of the bags were so small they "would actually not be utilized for purposes of selling marijuana because they're not designed for that. They're designed for other drugs." Only the 31 reddish bags found in Apartment 4 would be used for marijuana, the detective testified, and even they were on the small side for that purpose.[3] However, he said, it is "rather common" for consumers to buy drugs in bags like the one that held the marijuana in appellant's jacket.

         Detective Thomas further testified that "lot[s] of times marijuana is sold by [the] ounce or multiple ounce at a time." As an example, he said, "There are individuals that have purchased it by the pound and have broken it down into smaller increments and sold it by the half ounce and one-half ounce [sic], " while "some individuals have chosen to sell it" in smaller packages such as twenty, ten, or even five dollar bags. A $10 or "dime" bag would typically contain approximately one gram, while a $5 or "nickel" bag would contain about half a gram. Detective Thomas estimated that if the quantity of marijuana found in appellant's jacket were sold on the street by the gram, it would yield approximately $220 to $230. On "the streets, " Detective Thomas added, users normally purchase drugs in small quantities because "[i]f you ask for too many drugs on the streets, [the sellers will] turn you away." However, he said, "[m]arijuana has a uniqueness to it because, yes, you can do both, but at the same time if you get over an ounce, they're not going to deal with you."

         Finally, Detective Thomas testified that "[o]ne of the most common ways" of consuming marijuana is by smoking it with a pipe or rolled up in cigarette paper, cigar leaf, or a "manufactured roll." The detective believed it would take "quite a while" - more than just a long weekend - for even a ...

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