Simms v. United States, 012121 DCCA, 17-CM-1137

Docket Nº17-CM-1137
Opinion JudgeGLICKMAN, ASSOCIATE JUDGE
Party NameShawn Simms, Appellant, v. United States, Appellee.
AttorneyAnna B. Scanlon for appellant. Rupa Ranga Puttagunta was on the brief for appellant. Jillian D. Willis, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time, and Elizabeth Trosman, Chrisellen R. Kolb, and Colleen Kukowski, Assistant United States Attorneys...
Judge PanelBefore Glickman and Easterly, Associate Judges, and Fisher, Senior Judge. Fisher, Senior Judge, dissenting:
Case DateJanuary 21, 2021

Shawn Simms, Appellant,

v.

United States, Appellee.

No. 17-CM-1137

Court of Appeals of The District of Columbia

January 21, 2021

Argued February 22, 2019

Appeal from the Superior Court of the District of Columbia (CMD-5762-17) (Hon. Danya A. Dayson, Trial Judge)

Anna B. Scanlon for appellant. Rupa Ranga Puttagunta was on the brief for appellant.

Jillian D. Willis, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time, and Elizabeth Trosman, Chrisellen R. Kolb, and Colleen Kukowski, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman and Easterly, Associate Judges, and Fisher, Senior Judge. [*]

OPINION

GLICKMAN, ASSOCIATE JUDGE

This appeal from a conviction for unlawfully distributing marijuana concerns the effect of changes wrought in the District of Columbia's controlled substances law by the Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative of 2014, D.C. Law 20-153 (hereinafter referred to as the "Legalization Initiative" or just the "Initiative"). District law generally prohibits the distribution of marijuana, by sale or otherwise, as it does other controlled substances. But the Initiative amended the law to legalize purchases, by adults, of marijuana in small amounts (up to two ounces). Thus, such transactions now are simultaneously illegal for the sellers but legal for the buyers. Additionally, as a second exception to the general ban on distribution, the Initiative made it lawful for adults to transfer up to one ounce of marijuana, without remuneration, to other adults. The legal question presented in this appeal is whether the Initiative's changes in the law allow a person to purchase up to an ounce of marijuana in order to transfer it to another person (who may fund the purchase), as what sometimes has been called a buyer's purchasing agent.

Appellant Shawn Simms acted as such a buyer's agent in the transaction for which the government prosecuted him in Superior Court for unlawfully distributing marijuana. Both his purchase and transfer of marijuana were lawful under District law as it has been amended by the Legalization Initiative. The trial judge found appellant guilty, however, on the theory that he aided and abetted a sale transaction that was unlawful for the seller to make. We conclude that appellant's conviction must be reversed. We hold that merely purchasing marijuana on behalf of another, in the manner now expressly permitted by our amended statute, is not enough to render the purchaser guilty of unlawful distribution as an aider and abettor of the seller.

I.

Appellant was charged with one count of unlawful distribution of marijuana in violation of D.C. Code § 48-904.01(a)(1) (2014 Repl. & 2020 Supp.). The principal witness at his bench trial, Metropolitan Police Department Officer William Turner, testified that he encountered and arrested appellant under the following circumstances.

On April 4, 2017, while participating as an undercover officer in a buy/bust narcotics law enforcement operation in Southeast D.C., Officer Turner approached a woman he saw playing with her dog on Mellon Street S.E. and asked her whether she knew where he could buy marijuana. The woman told him "they were up at the store" and (in Officer Turner's words at trial) "directed [his] attention to [appellant]," who happened to be present in the vicinity. Officer Turner approached appellant and told him he was trying to buy marijuana. Appellant, too, responded by saying that "they were up at the store." Appellant did not ask Officer Turner how much marijuana he wanted and expressed no interest in helping him obtain it.

Nonetheless, Officer Turner asked appellant whether he knew who "they" were and could take him to "them." Appellant agreed to do so. Together they walked up to the store, a takeout called America's Best Wings, and entered it. Officer Turner gave appellant $20 in pre-recorded funds to make the purchase for him. Appellant located the seller, a man later identified as John Livingston. In exchange for the $20, Livingston gave appellant a small plastic bag containing 1.61 grams of marijuana. Officer Turner and appellant then left the store. Appellant gave the bag of marijuana to Officer Turner. Officer Turner thanked him for his help and the two men separated. Appellant neither asked for nor received anything from Officer Turner in return for his services. There is no evidence that appellant sought or received any remuneration from the seller.

Shortly after Officer Turner's departure, other officers participating in the buy/bust operation stopped and arrested both appellant and Livingston. The police recovered the pre-recorded $20 from Livingston, who later pleaded guilty to distribution of marijuana. They recovered nothing incriminating from appellant.

The government presented no other evidence to prove that appellant was working with Livingston or anyone else to distribute marijuana, that appellant benefited from or had a stake in the sale, or that appellant had any arrangement or connection with Livingston besides being the purchaser in this single transaction.

Appellant, who put on no evidence in his defense, moved for a judgment of acquittal, arguing that his unremunerated actions in purchasing a small amount of marijuana for a buyer were lawful under the plain terms of D.C. Code § 48-904.01(a)(1), following the statute's amendment two years earlier by the Legalization Initiative, and that the evidence introduced by the government was insufficient to convict him as the seller's accomplice under an aiding-and-abetting theory. The government countered that the statute still made the sale of marijuana illegal, and it disputed the availability of a buyer's agent defense.

Denying appellant's motion and crediting Officer Turner's testimony, the trial judge found appellant guilty as an aider and abettor of the sale of marijuana. The judge found that, after being "pointed out" as "somebody who could aid in the purchase of drugs," appellant did the following: He "accompanied the buyer [Officer Turner] to the point of sale"; he inquired of Officer Turner "how much [marijuana] he wanted, . . . asking a question which facilitated the transaction, the actual sale of the drugs";1 and he "took the money" from Officer Turner, "spoke directly to the seller," "transferred the money [and] completed the transaction himself," and gave the marijuana to the buyer.

By taking these actions, the judge reasoned, it was "fairly clear that [appellant] associated himself with the commission of the crime of the sale," that "he participated in the crime as something he wished to bring about," and that "he intended by his action to make it succeed." The judge added that while appellant "may have aided the buyer . . . or the purchaser, aiding the purchase and the sale are not mutually exclusive; one can do both." Appellant, the judge said, "aided the transaction, not just the transfer without remuneration of the drugs"; his actions were "concerned not only with altruistic aid of the buyer, but interested in the completion of the sale."

II.

Appellant argues there was insufficient evidence to convict him of unlawful distribution of marijuana as an aider and abettor because purchasing a small amount of marijuana and transferring it to another without remuneration are both lawful activities under the statutory amendments made by the Legalization Initiative, and there was no evidence that he was remunerated for engaging in these activities or that he acted with the intent of aiding the seller. In assessing appellant's claim, we view the evidence in the light most favorable to sustaining the verdict on appeal, with due deference to the fact finder's prerogative to weigh the evidence and draw justifiable inferences of fact.2 Where the issue is one of statutory interpretation, our review is de novo.[3] As stated in this court's recent opinion explicating the Legalization Initiative, our "aim is to ascertain and give effect to the legislature's intent," and our "primary index is the plain language of the statute, which we examine holistically, accounting for its full text, language as well as punctuation, structure, and subject matter."4

Until 2014, as explained more fully in Kornegay,

5 D.C. Code § 48-904.01(a)(1) made it unlawful for anyone to distribute, or to possess with intent to distribute, marijuana (a controlled substance) in any amount. Appellant's conduct in purchasing and transferring the marijuana would have been a crime under that prior law. But in D.C. Law 20-126, the Marijuana Decriminalization Amendment Act of 2014 (hereinafter the "Decriminalization Act"), the D.C. Council provided that "[n]otwithstanding any other District law, the possession or transfer without remuneration of marijuana weighing one ounce or less shall constitute a civil violation" and "shall not constitute a criminal offense."6 The following year, the Legalization Initiative went even further and amended D.C. Code § 48-904.01(a)(1) to legalize the purchase and possession of marijuana under two ounces, and the transfer without remuneration of marijuana under one ounce, for persons 21 years of age or older. The statute now provides, in relevant part, that: Notwithstanding any provision of this chapter to the contrary, it shall be lawful, and shall not be an offense under District of Columbia law, for any person 21 years of age or older to:

(A) Possess, use, purchase, or transport marijuana weighing 2 ounces or less;

(B) Transfer to another person 21 years of age or older, without remuneration, marijuana weighing one ounce or less[.]7

In line with this provision, the amended statute specifies that the...

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