Wishop v. United States
531 A.2d 1005
D.C.
1987
Check Treatment

Gregory A. WISHOP, Appellant, v. UNITED STATES, Appellee.

No. 84-1023.

District of Columbia Court of Appeals.

Decided Oct. 8, 1987.

Submitted July 8, 1987.

531 A.2d 1005

Bоard in determining whether an applicant was appropriate to receive a grant, renewal, or transfer of a liquor license pursuant to former D.C.Code § 25-115(a)(6).

at 712-13 (Newman, J., concurring).

Therefore, although this issue has never been directly addressed by the court, the implication of our prior decisions is that the appropriateness test of former § 25-115(a)(6) applied to license renewal cases. See also

(per curiam) (in deciding that neighbors of restaurant have standing to challenge renewal of liquor license, court implies that neighborhood preference applies to renewal cases), cert. denied,
.

Turning to municipal regulations, we find none that set out the criteria applicable to liquor license renewals. The regulations do provide, however, that the Board is to make findings on the appropriateness of an establishment for its location in deciding whether to grant an application for an initial liquor license or for the transfer of an existing liquor license to a new location. 23 DCMR § 1024.4 (1986). By omission, therefore, the regulations provide some support for petitioner‘s view that appropriateness is not a proper subject for the Board to consider with respect to the renewal of a license. On balance, however, given this court‘s prior application of the appropriateness standard to liquor license renewal aрplications and Congress’ clear intention to have the Board determine whether the place for which renewal of a liquor license is sought remains appropriate for the neighborhood in which it is located, we find no error in the Board‘s practice of applying former D.C.Code § 25-115(a)(6) to renewal applications.

Petitioner‘s final argument is that the procеeding before the Board was fatally flawed by a Board member‘s questioning of a witness concerning unconstitutional considerations, such as the race and residency of Shepherd Park‘s patrons. We agree with petitioner that there was some inappropriate questioning of a witness about irrelevant matters, including the raсe and residency (District of Columbia, Maryland, or Virginia) of Shepherd Park‘s patrons. But the Board in no way relied upon, or even mentioned, this testimony in its findings of fact. Furthermore, the testimony produced was so vague as to be almost useless, even if race and residency had been relevant considerations. The witness, an off-duty police officer who works weekend evenings as a security guard at Shepherd Park, testified only that there was a mix of cars from the three jurisdictions, and that Shepherd Park‘s patrons were more than sixty per cent white, but that the number of blacks and Hispanics had been increasing lately. No one testified concerning the racial mix of the nеighborhood in which Shepherd Park is located. The Board erred in allowing one of its members to elicit testimony concerning race and residency of Shepherd Park‘s patrons from a witness at the hearing. But because there was no reliance by the Board on this testimony in its findings of fact and conclusions of law, we find no reversible errоr.

Affirmed.

Thomas R. Kennedy, Washington, D.C., appointed by this court, was on the brief, for appellant.

Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Mary Ellen Abrecht, Natalia M. Combs, and Clifford T. Keenan, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before FERREN, TERRY and STEADMAN, Associate Judges.

TERRY, Associate Judge:

Clyde Smith and Gregory Wishop were jointly convicted of distributing two controlled substances, phencyclidine (PCP) аnd marijuana, in violation of D.C.Code § 33-541(a)(1) (1986 Supp.). Wishop‘s sole contention before this court1 is that the trial court committed plain error in instructing the jury that the government must prove beyond a reasonable doubt that he distributed a “measurable or usable amount of a controlled substance.” We reject his argument and affirm the conviction.

I

The evidence showed a fairly typical street-cornеr 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 wеnt 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 phencyclidine was 19.4 milligrams, or 4.2 percent of the total.2

An expert witness testified, without objection from either defense counsel, that PCP was normally sprinkled on marijuana, oregano, or parsley and smoked in a hand-rolled cigarette. The expert, Detective Steven Finkelberg, also stated—again without objection—that 461.6 milligrams of marijuana treated with PCP was “definitely” a usable amount,3 and that PCP was sold on the street “in a tinfoil like this [referring to the packet sold to Officer Sinclair] of approximately fifteen dollars.”

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 thе 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.4 Consequently, appellant must demonstrate plain error before we may reverse his conviction, i.e., error “so clearly prejudicial to [appellant‘s] substantial rights as to jeopardize the very fairness and integrity of the trial.”

(en banc) (citations omitted). We find no plain error.

In

, this court held for the first time that the government, in a narcotics 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 nаrcotics 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 рroscribed.

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).

(emphasis added). We have consistently followed
in numerous other cases over the last twenty years. E.g.,
;
;
;
;
; see also
. Although the defendants in all of these cases, including
itself, were charged only with possession of narcotics (or, in
, with its federal equivalent) whereas the case at bar involves distribution rather than mere possession,5 we see no reason not to apply the “usable quantity” rule of
to a distribution case as well.

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

says.
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.
. 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 cоurse 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.6 ”
 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.”
(citation omitted).

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.

and its progeny make clear that the critical requirement is usability, not measurability. Of course, as we have said, the fact that a drug is measurable—i.e., capable of quantitative analysis—will usually suffice to prove that it is usable.
makes this clear by requiring “additional proof” of usability ‍‌​​​‌‌‌​‌‌‌‌‌​​​‌​​‌‌​​‌​​‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌‌‌​​‍only when the amount of the drug is too small to be measured.7 The instruction would have been morе accurate if it had made clear that the government must prove there was a usable quantity of each drug charged, and that measurability could be regarded as evidence of a usable quantity, along with any other evidence bearing on the issue of usability. Instructions in future cases should reflect this distinction and focus the jury‘s attention оn usability as a necessary element of proof, which the government has the burden to establish beyond a reasonable doubt.8

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 counterрart, 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 nеw trial.”

(citations omitted); accord, e.g.,
(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.”
(footnote omitted).

This is not one of those rare cases. The chemist‘s report and Detective Finkelberg‘s testimony, both of which were uncontroverted, showed that there wаs 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 thе 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.

STEADMAN, Associate Judge, concurring:

I concur in the result because I agree that whatever the correct law is as to measurability/usability, there is no plain error here.

However, I do not agree with the majority‘s application of the

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 dispensеd,” 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.”1 This requirement has been perhaps imprecisely referred to in our subsequent cases as “usability“, a peculiarity that at the last readily available count we shаre with only four states. See Note, Criminal Liability for Possession of Nonusable Amounts of Controlled Substances, 77 COLUM.L.REV. 596 (1977).

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.)

and its progeny are dealing with an interpretation of legislative intent.2 “Common sense” says to me that Congress and the District of Columbia Council did not intend to make licit an active local market in controlled substances, particularly where sold in plainly measurable quantities, as here.

This same line of thought is expressed in several recent cases from California, ‍‌​​​‌‌‌​‌‌‌‌‌​​​‌​​‌‌​​‌​​‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌‌‌​​‍at least formerly a leading “usability” jurisdiction. In

, 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 substаnce sold.” Several grounds underlay this holding,3 includ-

ing, as explained in a subsequent case, the fact that “the requirement that ‘usable quantity’ be proven applies to simple possession cases, not to cases of sale.”

. On this point, the two cases in turn rely on an extended discussion in
, distinguishing sale cases from possession cases and asserting that “[p]roof of the intentional sale of a dangerous drug is proof the quantity sold was ‘usable for sale.‘”
.

I might add that I also harbor considerable doubt about the proper application of the

principle even to cases of pоssession of more than a “trace” of a controlled substance. I would not reach that issue in disposing of the case before us.

TERRY

ASSOCIATE JUDGE

Donald CARR, Jr. and Anthony L. Carr, Appellants, v. UNITED STATES, Appellee.

Nos. 85-1102, 85-1231.

District of Columbia Court of Appeals.

Decided Oct. 8, 1987.

Argued April 8, 1987.

Joseph J. Bernard, Washington, D.C., appointed by this court, for appellant Donald Carr, Jr.

Thomas K. Clancy, Washington, D.C., appointed by this court, for appellant Anthony L. Carr.

Notes

1
Both Smith and Wishop appealed from their convictions, but Smith withdrew his appeal.
referred to the substance‘s usability “as a narcotic.”
. 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
concern relates to both use and sale is reiterated in
, where we said:
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.)
2
Appellant asserts that the chemist‘s report “did not distinguish between the amount of phencyclidine and the amount of marijuana, but merely described the combination of the two as a dangerous drug, net weight 19.4 milligrams.” We disagree. Fairly read, the chemist‘s report established that 19.4 milligrams—or 4.2 percent of the total amount of 461.6 milligrams—was phencyclidine, and that the rest (95.8 percent) was marijuana.
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
line of cases may now be inapposite.
3
Detective Finkelberg testified as follows:
Q. [by the prosecutor]: . . . Detective Finkelberg, 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. The case also refers to the wording of the California statutes, which included the phrase “any quantity“, and in that regard is distinguishable.
4
Appellant is represented by different counsel on this appeal.
5
To this extent the instant case aрpears to be one of first impression in the District of Columbia.
6
Usability can also be established by other means—by expert testimony, for example, as in this case.
7
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 bеfore the case even went to the jury.
8
In the federal courts, by contrast, the government is required to prove only a measurable quantity, rather than a usable quantity. See
. 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 wе found them persuasive. With Edelin on the books, however, this division of the court is precluded from doing so by
.