DCCA on Drug Paraphernalia, Proof Beyond Reasonable Doubt

I haven’t written a DCCA criminal case summary in a long time, partly because PDS came along and started writing them all up (and doing it better than I ever did). But I simply couldn’t resist writing about this one, as a lovely demonstration that legal standards like “proof beyond a reasonable doubt” and “sufficiency of evidence” have meaning, have teeth — at least sometimes. It also doesn’t hurt that this case involves an extensive discussion of something called a “Bob Marley grinder.”

bobmarley

The opinion of the court, written by Judge McLeese (the most recent appointee to the DCCA), reverses one man’s conviction of possessing drug paraphernalia. The alleged paraphernalia was the “Bob Marley grinder.” Which, apparently, is a metal tobacco/herb/spice grinder, with “a picture of Bob Marley on the front.” (Looks like they’re for sale on Amazon, just like everything else under the sun.) Which — of course — we can assume is being used to grind up marijuana, even though the defendant had no marijuana when he was arrested. I mean, come on! It has a picture of Bob Marley on it!

But that “of course” isn’t enough to meet the standard for a criminal conviction — proof beyond a reasonable doubt. And as the opinion notes:

drug use and drug trafficking are associated with a wide array of items, including spoons, needles, syringes, ziplock bags, microwave ovens, cigarette rolling papers, razor blades, pipes, foil, mirrors, straws, scissors, measuring cups, strainers, and scales.

Grinders, too, have lawful uses. Who’s to say beyond a reasonable doubt that the defendant wasn’t using the grinder for tobacco (or, less likely, cilantro)? The prosecution would have to do more — like show traces of marijuana inside this particular grinder.

The court compares this to a situation in which the prosecution insists — without other evidence — that a single silver spoon is being used for heroin. Of course, it’s not quite the same situation — but the difference between that situation and this case is only a “difference in degree.” That doesn’t warrant a different conclusion when analyzing whether the evidence is sufficient, beyond a reasonable doubt, that this grinder was possessed for drug-related purposes.

Overall, an excellent (and easy to read) opinion that illustrates what meaningful appellate review looks like. Kudos to Jamison Koehler for representing his client (with obvious excellence) in this appeal.

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DCCA: D.C. gun law unconstitutional

Can it be a crime to simply ride in a car in which you know there is an illegal gun? In a 2-1 opinion by Judge Glickman today, the D.C. Court of Appeals says no.

The law in question is a 2009 D.C. law, D.C. code § 22-2511, which criminalizes the knowing presence in a motor vehicle containing a firearm. (“PMVCF” for short.) The law was supposed to make it easier to convict the occupants of a car where a gun is found, when the government can’t prove who actually owned it or had control over it.

The court found two constitutional problems with the law: first, it shifted the burden away from the government and onto the defendant regarding whether the defendant’s presence in the car was voluntary or involuntary. But the court wrote this constitutional flaw would not require striking down the statute entirely, but rather modifying the law to put the burden on the government.

More troubling to the court was that this was a “crime of omission.” In other words, if you learn that there’s an illegal gun in the car, failing to get out of the car as soon as you can is a crime — and laws that criminalize the failure to do something are very rare. The court compared it to a 1957 Supreme Court case in which Los Angeles required convicted felons to register with the city when they moved there; the Supreme Court found that law unconstitutional, because it was an unexpected and unusual crime of omission.

Although ignorance of the law is no excuse, you simply wouldn’t expect to be punished just for being around someone who’s breaking the law. The court pointed to one way in which the law is illogical — you can hang around with someone all day and go anywhere with them while they’re carrying an illegal gun, but don’t you dare get into a car with them. This is not what an ordinary person would expect.

Judge Thompson concurred in the judgment only, finding that the jury was improperly instructed and that the defendant should get a new trial. She dissented, however, from the court’s decision to hold the statute unconstitutional. She argued the 1957 Lambert case was an anomaly, and has almost never been used to strike down other statutes.

The defendant’s conviction was reversed, and the statute prohibiting presence in a motor vehicle containing a firearm was struck down. For now, PMVCF is no longer a crime in the District. But given the hard line DC takes on gun charges, it’s probably still not a good idea.

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DCCA: DNA analysts should present results in court

Earlier this summer, I wrote about the North Carolina Supreme Court‘s handling of the doctrinal mess made by the U.S. Supreme Court‘s fractured opinions in Williams v. Illinois.  Well, on September 12, the D.C. Court of Appeals announced its latest solution to this problem, in Jenkins v. United States — and it turns out the approaches of NC and DC are basically polar opposites.

"DNA lab" by flickr user snre
Supreme Court results: inconclusive.

In my earlier post, I reviewed the Supreme Court’s 4-1-4 breakdown in Williams and concluded that the North Carolina court had followed the spirit of four Justices, and as a result, probably stretched the law to allow testimony about drug analysis that five Justices would have forbidden.

On the other hand, the new D.C. opinion starts with a case that is, in many important ways, just like Williams: the evidence included DNA profiles that were produced before police had identified the defendant as a suspect. (The twist is that the police did have a suspect at the time — not the defendant, but another guy whom the DNA exonerated.) It’s almost certain from Williams that five Justices would say that this important out-of-court evidence is fair game, if they were faced with the question. But the defendant argued this evidence should not be admitted, Williams notwithstanding, and the D.C. court had to decide what effect the Supreme Court’s fractured opinion in Williams had on existing law.

The answer in D.C. turns out to be, none at all (unless you have a case almost identical to Williams.) When dealing with non-majority opinions, the practice is to try to identify a rule that gives the result on the narrowest possible grounds identified by the concurrence. In other words, how do the plurality and concurring opinions overlap?

Reading the plurality and concurrence in Williams, the D.C. court (through Judge Oberly) decided they don’t overlap at all. Williams, then, did not change existing law. As a result, the court announced it would mostly stick with the bright-line rule that existed pre-Williams (essentially the approach of the Williams dissent.) If the government wants to introduce scientific evidence, call the analyst who performed the test.

This drew a dissent (on many grounds) from Judge Thompson. In important part, she wrote that the D.C. court’s previous post-Williams decision (Young) did not forbid out-of-court testimony in circumstances like this. (The majority described Young as stating a rule that gave a “sufficient” condition for what counts as “testimonial,” but not a “necessary” one.) And she pointed out that five Justices of the Supreme Court would undoubtedly allow this testimony, albeit for various reasons. But in the end, it was the “various reasons” that troubled the majority. If there’s no single reason, then there’s no rule for the lower courts to apply.

Paradoxically, though DC and NC have reached totally different results, both of their approaches also seem to violate the rule of “counting to five.” (Not a real “rule” — as this case shows, the courts are not actually supposed to speculate on what five Justices would rule, but rather are supposed to follow existing rules as best they can.) And this paradox perfectly illustrates the importance of the Supreme Court providing clear guidance (or at least, majority opinions) on important questions. Without this guidance, results are unpredictable — and the meaning of the United States Constitution depends on what state or territory or circuit you live in.

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DC Court of Appeals: Multi-car collision merits multiple convictions

In a split opinion today, the DC Court of Appeals rules that a criminal defendant can be charged with multiple counts of destruction of property stemming from a multi-car collision.

Judge King, writing for the court, held that DC’s destruction of property statute, § 22-303, was meant to protect individual property interests; and so when multiple cars were damaged as a result of defendant’s recklessly running a red light (while fleeing police), the defendant could be charged with damaging each individual car. These offenses did not merge for double jeopardy purposes. Destruction of property has, in recent years, been interpreted as a crime against a person in the domestic violence context; this case seems to extend that interpretation for the first time into the double jeopardy merger context.

"Multi-car Pileup" by flickr user stevenharris
Pile up the cars, pile up the charges.

The court also implied that it was somehow important that the collisions did not happen simultaneously, but rather happened in quick succession. This distinguished the case from prior cases, which held that a defendant could not be prosecuted for two crimes when defendant’s own (stolen) car was damaged in a collision with another car. If there are two damaged cars but only one (obviously simultaneous) collision, the property damage crimes merge.

Judge Easterly dissented from this portion of the court’s ruling. In her view, simultaneity should be irrelevant if, as the court held, the offense is actually intended to protect individual property interests. More importantly, she wrote that the court was wrong to interpret DC’s destruction of property statute as one protecting individual interests for merger purposes. The collisions were one big pileup resulting from one criminal act — with respect to the property damage, in her view, the offenses should have merged.

The court declined to adopt this reasoning, and let all the convictions stand.

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