Wishop v. United States
Wishop v. United States
Opinion of the Court
Clyde Smith and Gregory Wishop were jointly convicted of distributing two controlled substances, phencyclidine (PCP) and marijuana, in violation of D.C.Code § 33-541(a)(1) (1986 Supp.). Wishop’s sole contention before this court
I
The evidence showed a fairly typical street-corner sale of drugs by the two defendants to an undercover police officer. After Wishop indicated to the officer, Paul Sinclair, that he had PCP for sale, Sinclair told Wishop that he wanted to make a purchase. Wishop then turned to Smith, who was just coming out of a nearby house, and spoke with him. Smith beckoned to Sinclair, and when Sinclair went over to him, Smith gave Sinclair a tinfoil packet in exchange for $15. Smith then went back into the house, and Sinclair left the area, noting that Wishop was still “standing around” a short distance down the street. Officer Sinclair broadcast lookouts for Wishop and Smith, and moments later they were both arrested.
The contents of the tinfoil packet were later analyzed by a chemist from the Drug Enforcement Administration. According to the chemist’s report, which was introduced into evidence and read to the jury, the packet contained 461.6 milligrams of plant material, consisting of “phencyclidine on marijuana.” The net weight of the phency-clidine was 19.4 milligrams, or 4.2 percent of the total.
II
Appellant contends that the trial judge erred when he instructed the jury that “in order to establish the first essential element of the offense, the government must prove beyond a reasonable doubt that the defendant transferred or attempted to transfer some measurable or usable amount of a controlled substance.” He maintains that the term “measurable” should not have been included in the instruction because it enabled the government to avoid proving that there was a “usable” amount of each of the two controlled substances, as the law requires. At trial, however, defense counsel did not object to the instruction as given.
In Edelin v. United States, 227 A.2d 395 (D.C. 1967), this court held for the first time that the government, m a narcot ics case, must prove that the defendant possessed a “usable” quantity of narcotics.
Part of the Government's prima facie case is to prove that a substance in defendant’s possession allegedly in violation of [D.C.Code § 33-402(a) (1961), a predecessor of the current narcotics laws] is proscribed as a narcotic drug under the statutory scheme of narcotics control. If this substance cannot be sold, if it cannot be administered or dispensed, common sense dictates that it is not such a narcotic as contemplated by Congress to be a danger to society, the possession of which is proscribed.
We ... hold that where there is only a trace of a substance, a chemical constituent not quantitatively determined because of minuteness, and there is no additional proof of its usability as a narcotic, there can be no conviction under § 33-402(a).
Id. at 398-399 (emphasis added). We have consistently followed Edelin in numerous other cases over the last twenty years. E.g., Harris v. United States, 489 A.2d 464, 470 (D.C. 1985); Hawkins v. United States, 482 A.2d 1230, 1233 (D.C. 1984); Blakeney v. United States, 366 A.2d 447, 448-449 (D.C. 1976); Jones v. United States, 318 A.2d 888, 889 (D.C. 1974); Payne v. United States, 294 A.2d 501, 502-503 (D.C. 1972); see also Hinton v. United States, 137 U.S.App.D.C. 388, 394, 424 F.2d 876, 882 (1969). Although the defendants in all of these cases, including Edelin itself, were charged only with possession of narcotics (or, in Hinton, with its federal
The government asserts in its brief that under District of Columbia law “a measurable amount of a controlled substance is a usable amount” (emphasis in original). That is not what Edelin says. Edelin holds only that if the quantity of a drug is too small to be capable of quantitative analysis, there must be “additional proof of its usability as a narcotic” in order to sustain a conviction. 227 A.2d at 399. Implicit in this holding is the converse proposition that if the quantity is more than a trace, and therefore measurable, “additional” proof of usability may not be necessary (though of course it is not prohibited, and in some cases the facts may require it). Thus, although the two terms are not synonymous as the government asserts, the fact that a drug is measurable tends to show that it is also usable.
The instruction at issue in this case was potentially confusing because it implied that the government had to prove that the quantity of drugs was either measurable or usable. This is plainly incorrect. Edelin and its progeny make clear that the critical requirement is usability, not mea-surability. Of course, as we have said, the fact that a drug is measurable — ie., capable of quantitative analysis — will usually suffice to prove that it is usable. Edelin makes this clear by requiring “additional proof” of usability only when the amount of the drug is too small to be measured.
Nevertheless, we are satisfied that the instructions, read as a whole, were sufficient to inform the jury of the elements of the crime and the government’s burden of proof. Super.Ct.Crim.R. 30, like its identical federal counterpart, requires a timely objection to an instruction before a party “may assign as error any portion of the charge or omission therefrom_” The purpose of this requirement “is to afford the trial court an opportunity to correct any instructional defect and thereby avoid error which otherwise might necessitate a new trial.” Watts v. United States, supra, 362 A.2d at 708 (citations omitted); accord, e.g., Johnson v. United States, 387 A.2d 1084, 1089 (D.C. 1978) (en banc). “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S.
This is not one of those rare cases. The chemist’s report and Detective Finkelberg’s testimony, both of which were uncontro-verted, showed that there was both a measurable and a usable amount of each drug in the tinfoil packet. The fact that the drugs were actually measured, as the chemist’s report disclosed, was obvious evidence of their measurability. The fact that the drugs were offered for sale in a quantity and in a container similar to those in which such drugs were usually sold on the street was further evidence of their usability. Viewing the record as a whole, we see no danger that the jury could reasonably have been misled by the challenged instruction. The judgment of conviction is accordingly
Affirmed.
. Both Smith and Wishop appealed from their convictions, but Smith withdrew his appeal.
. Appellant asserts that the chemist’s report "did not distinguish between the amount of phency-
. Detective Finkelberg testified as follows:
Q. [by the prosecutor]: ... Detective Fink-elberg, assuming that the net weight of what was in that tinfoil that you just opened up was 19.4 milligrams, would that be a usable amount?
A. Yes. I am sure that is more than 19.4 milligrams, though.
THE COURT: You mean the weight of the entire substance or the weight of the controlled substance?
MS. COMBS [the prosecutor]: The weight of the controlled substance. If the weight of that entire substance in that tinfoil, assuming that was 461.6 milligrams, is that a usable amount?
THE WITNESS: Definitely.
. Appellant is represented by different counsel on this appeal.
. To this extent the instant case appears to be one of first impression in the District of Columbia.
. Usability can also be established by other means — by expert testimony, for example, as in this case.
. Thus, if the evidence in a given case failed to show measurability, and there were no “additional proof’ of usability, the defendant would be entitled to a judgment of acquittal before the case even went to the jury.
.In the federal courts, by contrast, the government is required to prove only a measurable quantity, rather than a usable quantity. See United States v. Jeffers, 524 F.2d 253, 256-258 (7th Cir. 1975). If we were writing on a clean slate, there would be nothing to prevent us from following Jeffers and similar federal precedents, assuming of course that we found them persuasive. With Edelin on the books, however, this division of the court is precluded from doing so by M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971).
Concurring Opinion
concurring:
I concur in the result because I agree that whatever the correct law is as to mea-surability/usability, there is no plain error here.
However, I do not agree with the majority’s application of the Edelin principle. That case interpreted Congressional concern as focusing on future sale or administration of the proscribed substance by the possessor. Hence, “if this substance cannot be sold, if it cannot be administered or dispensed,” then “common sense” dictates that its possession does not fall within the statute. Thus, we held that “where there is only a trace,” the government must show that it is nonetheless usable; i.e., that it can be “sold ... administered or dispensed.”
If in fact a controlled substance is sold in the marketplace, then by definition it is “usable” for purposes of sale and falls within D.C.Code § 33-541(a). (I would apply the principle to all the activities proscribed in that section.) Edelin and its progeny are dealing with an interpretation of legislative intent.
This same line of thought is expressed in several recent cases from California, at least formerly a leading “usability” jurisdiction. In People v. Hardin, 149 Cal.App.3d 994, 995, 197 Cal.Rptr. 194, 195 (1983), the court held that “defendant was properly convicted [of sale of a controlled substance] without a jury instruction to the effect that to constitute the crime a usable amount of methamphetamine must have been present in the substance sold.” Several grounds underlay this holding,
I might add that I also harbor considerable doubt about the proper application of the Edelin principle even to cases of possession of more than a “trace” of a controlled substance. I would not reach that issue in disposing of the case before us.
. Edelin referred to the substance’s usability “as a narcotic.” 227 A.2d at 399. At least in the context of a sale, I read that phrase as simply requiring that the quantity be sufficient to pass in the market and induce purchase "as a narcotic.” That the Edelin concern relates to both use and sale is reiterated in Blakeney v. United States, 366 A.2d 447, 449 (D.C. 1976), where we said:
Edelin went no further than to recognize in the common sense application of the statute that where the seized substance is of an amount so inconsiderable as to make it of no utility to a user and unmarketable, it is not such a narcotic as contemplated by Congress to be a danger to society. (Emphasis added.)
. Edelin was decided under a provision of a statute, enacted by the Congress, dealing with "narcotic drugs,” and understandably dealt with that concept. See D.C.Code § 33-501 et seq. (1981). In 1981, the D.C. Council enacted a sweeping overhaul of existing legislation by passage of the "District of Columbia Uniform Controlled Substances Act of 1981,” D.C.Code § 33-501 et seq. (1987 Cum.Supp.). I assume for present purposes that no change was effected with respect to the "usability requirement, but some of the terminology used in the Edelin line of cases may now be inapposite.
.The case also refers to the wording of the California statutes, which included the phrase “any quantity”, and in that regard is distinguishable.
Reference
- Full Case Name
- Gregory A. WISHOP, Appellant, v. UNITED STATES, Appellee
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- 23 cases
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- Published