Submitted
May 24, 2019
Page 1141
Appeal
from the Superior Court of the District of Columbia
(CF2-16339-13), (Hon. Ronna Lee Beck, Motion Judge)
Paul H.
Zukerberg, Washington, DC, was on the brief for appellant.
Jessie
K. Liu, United States Attorney, and Elizabeth Trosman, T.
Anthony Quinn, and Elizabeth Gabriel, Assistant United States
Attorneys, were on the brief for appellee.
Before
Glickman and Thompson, Associate Judges, and Washington,
Senior Judge.
OPINION
Thompson,
Associate Judge:
Page 1142
Appellant, John Larracuente, moved pursuant to D.C. Code §
16-803.02 (2016) (the "record-sealing statute") to
seal the records in Superior Court Case No. 2013-CF2-16339, a
case in which he pled guilty to possession with intent to
distribute (PWID) marijuana. The Superior Court denied the
motion without a hearing, concluding that the government had
shown by a preponderance of the evidence that appellant
possessed an amount of marijuana that exceeded the amount
decriminalized under D.C. Code § 48-904.01(a)(1)
(2016),[1] and that sealing also was not
available under the "interest of justice standard"
of § 16-803.02(a)(2). Appellant contends in this appeal that
(1) the Superior Courts ruling was based on an erroneous
interpretation and application of the record-sealing statute;
(2) the government failed to meet its burden of establishing
that appellants conviction was not for conduct that has
since been decriminalized; (3) the Superior Court relied on
speculation in concluding otherwise; and (4) the court abused
its discretion and deprived appellant of due process in
denying his motion without a hearing. For the reasons that
follow, we affirm.
I.
In its
filings opposing appellants motion to seal, the government
submitted copies of appellants plea-proceeding transcript;
the police report describing the items seized from
appellants apartment during execution of a search warrant on
September 11, 2013; the Drug Enforcement Administration
chemical analysis report for the substance seized; the police
Gerstein affidavit; and other documents. Although
the documents refer to differing estimates or measurements of
the weight of the marijuana the police recovered from
appellants apartment, the documents indicate that appellant
— who told officers that all of the items in the
apartment were his — possessed more than the
now-permissible two ounces of marijuana. The Superior Court
found that the government established by a preponderance of
the evidence that appellant had possessed "over the
decriminalized amount of marijuana[,]" and that, more
likely than not, appellant intended to distribute more than
the amount permitted by § 48-904.01(a)(1)(B) (one ounce or
less). The court therefore concluded that appellant did not
qualify for record-sealing under § 16-803.02(a)(1) or under
the "interest of justice standard" of §
16-803.02(a)(2) (giving the Superior Court discretion, in the
interest of justice, to seal records relating to a
now-decriminalized offense, even if that offense was
accompanied by an offense that remains illegal). See
Washington v. United States, 206 A.3d 864, 869 (D.C.
2019).
Appellant
contends that the Superior Court misapplied § 16-803.02(a) by
failing to take a "categorical approach," rather
Page 1143
than a case-specific-facts approach, to determine whether the
offense of which appellant was convicted had been
decriminalized.[2] Specifically, appellant argues that §
16-803.02(a) should be interpreted to mandate approval of a
motion to seal so long as the least culpable act(s) that
would satisfy the elements of the offense to which the
records relate have been decriminalized. Appellant argues
that the case-specific-facts approach creates
inequities,[3] and that use of a categorical approach
is necessary to achieve the remedial effect the Council of
the District of Columbia (the "Council") intended
in enacting the record-sealing statute. Appellant further
contends that the government did not negate the possibility
that the marijuana found in his apartment was home-grown
(thus falling within the statutory permission to possess
marijuana produced by cannabis plants grown in the interior
of a home) and also did not prove that ...