Travis MCRAE, Appellant, v. UNITED STATES, Appellee.
No. 14-CF-1343
District of Columbia Court of Appeals.
Submitted March 15, 2016 Decided November 3, 2016.
148 A.3d 269
As a result, Ms. Surur‘s meritorious ineffective assistance of counsel claim entitles her to a new trial on a writ of error coram nobis.14 We reverse and remand for further proceedings.
So ordered.
relief. The D.C. Superiоr Court‘s authority to grant a writ of error coram nobis derives from the All Writs Act,
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.
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
I.
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 beсause 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 incre-
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 tаke “quite a while“—more than just a long weekend—for even a heavy user to consume “a whole ounce” of marijuana.
The jury found appellant guilty of possession of marijuana with intent to distribute. In addition, it found him guilty of possession of drug paraphernalia (the ziplocks and scale found in the bedroom of Apartment 4),4 a conviction that appellant does not challenge in this appeal. The jury acquitted appellant of possession of a firearm during a crime of violence or dangerous offense5 and all other charges relating to the handgun and ammunition found in the bedroom.
II.
To convict appellant of PWID, the government needed to prove that he possessed the marijuana discovered in his jacket with the specific intent to distribute it.6 In evaluаting appellant‘s challenge to the sufficiency of the government‘s proof of that intent, we view the evidence in the light most favorable to sustaining the jury‘s verdict.7 To prevail, appellant must persuade us that there was “no evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.”8 But while appellate review of sufficiency of the evidence is deferential to the fact finding prerogatives of the jury, it is not “toothless.”9 The reasonable doubt standard requires proof sufficient for a rational jury to reach a “state of near certitude” as to the defendant‘s guilt, proof “more powerful” than what the jury would need just to find something “more likely than not” or even “highly probable.”10 This elevated proof requirement “means more than that therе must be some relevant evidence in the record in support of each essential element of the charged offense.”11 “Slight evidence is not sufficient evidence; a ‘mere modicum’ cannot ‘rationally support a conviction beyond a reasonable doubt.‘”12
In the рresent case, there was no direct evidence that appellant had been selling the marijuana found in his jacket or that he intended to sell it rather than consume it himself. Instead, to prove his intent to distribute the marijuana, the government relied on the inferences that might be drawn, in light of Detective Thomas‘s expert testimony and the surrounding circumstances, from the quantity and packaging of thе marijuana and the physical evidence of drug trafficking activity found in Apartment 4. For the following reasons, we conclude that this evidence was not sufficient to permit a rational fact finder to find beyond a reasonable doubt that appellant intended to distribute the marijuana he had in his jacket.
Our first reason centers on the quantity and packaging of that marijuana. An intent to distribute can be inferred from the possession of a quantity of drugs that “exceeds supply for personal use”15 or that is packaged in a manner indicative of future distribution.16 But that sort of evidence was strikingly absent here. There was no expert testimony or other evidence showing that the quantity or packaging of appellant‘s marijuana was more consistent with an intent to distribute than with personal use. Detective Thomas did not testify, and we do not think it can be maintained, that four-fifths of an ounce of marijuana exceeds a reasonable supply for a single user (even if no one would be likely to smoke all of it
On the contrary, Detective Thomas testified that users can and do buy as much as an ounce of marijuana on the street, and that they commonly do so in bags like the one appellant was carrying. This was as much as to say that appellant, who had only one such bag in his jacket, fit the profile of a consumer of marijuana at least as closely as he fit that of a seller. Case law in this and other jurisdictions confirms that possession of an ounce of marijuana is consistent with personal consumption,17 as does the fact that this and other jurisdictions have decriminalized the possession of an ounce or more of marijuana for personal use.18
Second, while an intent to distribute can be inferred when drugs are found together with drug distribution paraрhernalia,19 no such paraphernalia was found in or near appellant‘s jacket. The government points out that the police found no pipe, cigarette paper, or other apparatus for personal consumption near the marijuana either, but though the absence of such evidence might corroborate affirmative evidence of drug trafficking, it cannot take the place of such evidence.20
Third, while flight from the police is
Fourth, although Detective Thomas explained how appellant could have used the digital scale and some of the empty ziplock bags found inside Apartment 4 to measure, package and sell small amounts of marijuana in nickel or dime bags, his equivocal testimony fell short of linking the drug paraphernalia and the possibility of such activity to the single pack of marijuana, in an amount consistent with personal consumption, that was found in appellant‘s jacket. The detective in fact testified that most of the ziplock bags recovered from the apartment were “designed for other drugs,” i.e., not for selling marijuana, and that while the 31 reddish bags could have been utilized to sell marijuana in gram increments, sellers typically used larger bags for that purpose. Similarly, while the digital scale likewise could have been used to weigh marijuana, it also could have been used for weighing other drugs. Significantly, there was no evidence that the bags and digital scale actually had been used in connection with marijuana at any time. No trace of marijuana was found on the scale, in any of the ziplock bags, or anywhere else in the apartment; and appellant‘s mere personal possession of a consumable amount of marijuana did not itself constitute evidence that the paraphernalia in the apartment had been or would be employed in connection with it. The physical evidence and Detective Thomas‘s testimony unquestionably did implicate appellant in some kind of drug trafficking activity. But it is hardly uncommon for persons who engage in drug dealing to possess marijuana for personal consumption.22
To be sure, the evidence in its totality does raise а strong suspicion that appellant intended to use the digital scale and the ziplock bags in his apartment to cut up and distribute the four-fifths of an ounce of marijuana he was carrying on the street outside the apartment on the night of November 15, 2013. Based on this evidence, we think a reasonable jury readily could find it more likely than not and perhaps even highly likely that appellant possessed the marijuana with the intent to distribute it. But given the limitаtions of the government‘s proof and the unrebutted evidence that appellant could have possessed the marijuana for his own consumption, we think that is as far as a reasonable jury could go; it could not fairly reach a “state of near certitude” that appellant had the intent to distribute the specific amount of marijuana in his possession. In this case, therefore, “[i]f thе standard of proof beyond a reasonable doubt means anything, the factors on which the government relies are not compelling enough to permit a reasonable jury to find [appellant] guilty” of PWID.23
So ordered.