Fatumabahirtu v. United States, Nos. 08–CM–314

• Decision Date: 03 June 2010
• Docket Number: Nos. 08–CM–314,08–CM–781.
• Citation: 26 A.3d 322
• Parties: Surur FATUMABAHIRTU and Shahzad Aslam, Appellants,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

26 A.3d 322

Surur FATUMABAHIRTU and Shahzad Aslam, Appellants,

v.UNITED STATES, Appellee.

Nos. 08–CM–314

08–CM–781.

District of Columbia Court of Appeals.

Argued June 3, 2010.1Decided Aug. 11, 2011.

Jeffrey L. Light, Washington, DC, appointed by the court, for appellant Surur Fatumabahirtu.Steven Kiersh, Washington, DC, appointed by the court, filed a brief, for appellant Shahzad Aslam.Keith A. Becker, Assistant United States Attorney, with whom Channing D. Phillips, Acting United States Attorney at the time the brief was filed, and Roy W. McLeese III and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.Before OBERLY, Associate Judge, REID,² Associate Judge, Retired, and STEADMAN, Senior Judge.REID, Associate Judge, Retired:

These appeals involve a matter of first impression requiring an interpretation of a subsection of the District of Columbia Drug Paraphernalia Act of 1982 (“DPA”), D.C.Code § 48–1103(b) (2001).³ After the government gave notice of its intent to proceed on the lesser-included charge of “[a]ttempted [p]ossession of [d]rug [p]araphernalia with [i]ntent to [s]ell” instead of the charged offense, the trial court found appellants, Surur Fatumabahirtu and Shahzad Aslam, guilty of attempted sale of drug paraphernalia. Ms. Fatumabahirtu contends that the DPA contains both an intent and a knowledge element, and that the government failed to present evidence on these elements sufficient to convict her beyond a reasonable doubt. Mr. Aslam asserts that the government failed to present evidence sufficient to prove the knowledge element of the statute beyond a reasonable doubt, and that the statute is unconstitutionally vague.

We hold that D.C.Code § 48–1103(b) requires the government to prove that an owner or a clerk of a commercial retail store had (1) the specific intent to deliver or sell drug paraphernalia (as defined in D.C.Code § 48–1101(3)), and (2) knew, or reasonably should have known, that the buyer of the items would use them illegally to inject, ingest, or inhale a controlled substance. We further hold that in our jurisdiction both the specific intent and knowledge requirements of D.C.Code § 48–1103(b) are satisfied by credible and compelling direct, indirect, or circumstantial evidence that, at the time of the sale, the owner or clerk of a retail establishment had knowledge or reasonably should have known that the buyer would use the items sold together (here a glass ink pen and a copper scouring pad) to inject, ingest or inhale a controlled substance. In addition, we hold that as construed in this opinion, the DPA is not unconstitutionally vague. Finally, we conclude that the government presented credible, strong, and compelling indirect and circumstantial evidence to convict Ms. Fatumabahirtu and Mr. Aslam of attempted sale of drug paraphernalia; and thus for the reasons stated in this opinion, the trial court properly convicted them of that charge.

FACTUAL SUMMARY

The record shows that by information, dated July 20, 2007, the government charged Ms. Fatumabahirtu and Mr. Aslam with a violation of D.C.Code § 48–1103(b). Specifically, the information alleged that:

On or about July 6, 2007, within the District of Columbia, [Ms.] Fatumabahirtu [and Mr.] Aslam did unlawfully, knowingly and intentionally have in [their] possession drug paraphernalia, that is, items to use and sell drugs with the intent to deliver and sell the said items to use and sell drugs and under circumstances where [they] should reasonably know that the said items to use and sell drugs would be used to introduce a controlled substance into the human body.

On November 2, 2007, the government notified appellants that it intended to proceed on the lesser-included charge of attempted possession of drug paraphernalia with intent to sell.⁴

The government presented the testimony of three fact witnesses (officers of the Metropolitan Police Department (“MPD”)), and one narcotics expert (an MPD detective). During the hearing on Mr. Aslam's motion to suppress evidence under the Fourth Amendment,⁵ Officer Jose Garcia, who had received training relating to drug paraphernalia, and who had made ten prior drug paraphernalia arrests, testified that on the night of June 28, 2007, his undercover activity took him to stores and gas stations located on Georgia Avenue, in the Northwest quadrant of the District of Columbia. He entered a gas station store in the 7600 block of Georgia Avenue and asked for “[w]hat they call an ink pen.” He described the “ink pen” as one that did not write but which could be used “like a pipe” for ingesting crack cocaine when taken apart. In response to the question as to whether the ink pen was “something that could ever write,” Officer Garcia said, “No sir.” He also confirmed that there was no ink in the pen. The store clerk, later identified as Ms. Fatumabahirtu, gave him a “metal scrubber[ ]” in addition to the ink pen. Both items were packaged “in a little bag”; Officer Garcia paid $4.00 for the bag. After making the purchase, the officer exited the store and informed the arrest team. Officer Garcia made an in-court identification of Ms. Fatumabahirtu as the person who sold him the pen and scrubber. On cross-examination by counsel for Mr. Aslam, Officer Garcia acknowledged that he did not test the ink pen to see whether it could write.

After Officer Garcia's purchase, MPD sought and received a warrant to search “the entire premises” of the store. The search, which took place on July 6, 2007, produced alleged drug paraphernalia from three separate areas of the store, including the place used for storing merchandise. Mr. Aslam contended that the affidavit in support of the government's application for a search warrant was “overbroad and lacking in specificity,” and hence, “the fruits of the warrant should be suppressed.” The trial court denied Mr. Aslam's motion to suppress, saying in part: “I don't find the affidavit to be defective, nor [Officer Garcia's] testimony to be inherently incredible such that ... nobody would believe that what he's saying would amount to probable cause to have a warrant issued to go search the place.”

The trial judge incorporated Officer Garcia's direct testimony into the trial proceeding, but allowed defense counsel to pose additional questions on cross-examination. Counsel for Ms. Fatumabahirtu established that the undercover officer was separated from Ms. Fatumabahirtu by glass at the time of his purchase, and that she placed the separate items (the pen and the scrubber) in the bag.

Officer Ramey Kyle was part of the search team that executed the search warrant at the store; Ms. Fatumabahirtu was present during the search. Officer Kyle located several items which were seized, including two boxes of copper scouring pads, digital scales, and small, empty ziplock bags. Based on his training and experience, Officer Kyle believed that the scouring pads, the digital scales, and the empty ziplock bags could be used as drug paraphernalia. All of the items, except for the ziplock bags “were in a back storeroom”; the bags were found “in a cabinet underneath the cash register.” While the search was underway, Mr. Aslam, the manager of the site, arrived. Officer Kyle made an in-court identification of Mr. Aslam, and also identified photographs (taken at the store) of business licenses in Mr. Aslam's name.

Another officer who participated in the execution of the search warrant was Jeff Janczyk; he had been trained in the identification of drug activity and drug paraphernalia, and had participated, with other officers, in “approximately a thousand arrests.” The majority of these arrests were for drug paraphernalia. He identified Ms. Fatumabahirtu as the person who was behind the counter when the search warrant was executed, and Mr. Aslam as a person who entered the store during the search. Officer Janczyk located “a box of glass pens behind the counter,” scouring pads “in a front area above the counter,” and Mr. Aslam's business license bearing a photograph of him. In response to questions by Mr. Aslam's counsel, Officer Janczyk said he believed that the pens in the box recovered from the store could write but he did not agree that they were “not hollowed out.” Ms. Fatumabahirtu's counsel stated that “[t]he pens ...

[that Officer

Janczyk] located ... at that point ... were not capable of being used ... as drug paraphernalia....” Officer Janczyk responded, in part: “Typically, someone would take the scouring pad—and put it in the pen. That would make it drug paraphernalia.” He added: “That's typically what we see when we arrest someone and recover drug paraphernalia off of them.”

The officer who actually seized the items from the store during execution of the warrant was Officer Jennifer Jamieson. On direct examination, she was asked to open one of the boxes seized from the store and to describe what she saw. She stated that the box contained about twenty-five boxes of “glass ball pens,” and that in each closed or sealed box there were about thirty-six pens. Government counsel asked Officer Jamieson to “try to write” with the pen on a clean piece of paper. She answered “yes” to government counsel's question, “were you able to write on that piece of paper?” Officer Jamieson identified other items seized, including a Coke can that was hollow inside, five or six digital scales, and invoices showing items shipped to Mr. Aslam from a company in Baltimore. Officer Jamieson admitted that Ms. Fatumabahirtu's name did not appear on the invoices.

Detective Rene Dessin testified as the government's narcotics expert. He explained that the “pen-type object” was used as a pipe for smoking crack cocaine. The glass part of the object is “use[d] ... as a pipe, glass pipe,” the pen is taken out, a strand of coil from the scouring pad is inserted in the glass tube to act as a coil, it is “burn[ed]” or “heat[ed],” used, and the pen part serves as a “push...