Simms v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-CM-1137

SHAWN SIMMS, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CMD-5762-17)

(Hon. Danya A. Dayson, Trial Judge)

(Argued February 22, 2019 Decided January 21, 2021)

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 for the court by Associate Judge GLICKMAN.

Dissenting opinion by Senior Judge FISHER at page 22.

*
Judge Fisher was an Associate Judge at the time of oral argument. His status
changed to Senior Judge on August 23, 2020.
 2

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
 3

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
 4

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.
 5

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
 6

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.”

1
We must disregard this finding because it is without support in the record
and is clearly erroneous. See D.C. Code § 17-305 (2012 Repl.). Officer Turner did
not testify that appellant asked him how much marijuana he wanted. Officer Turner
testified only that he asked appellant to take him to the store, appellant agreed to do
so, and he gave appellant $20 to make the purchase. This testimony was not enough
to support the inference that appellant asked Officer Turner how much marijuana he
wanted. We need not belabor the point, however, because even if appellant had
asked, it would not have implied he was aiding and abetting the seller as opposed,
for example, to merely ascertaining that the buyer wanted to purchase (only) a lawful
amount of marijuana.
 7

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

2
E.g., Dorsey v. United States, 902 A.2d 107, 111 (D.C. 2006).
3
Kornegay v. United States, 236 A.3d 414, 418 (D.C. 2020) (reversing
conviction for possession with intent to distribute marijuana where defendant had
less than two ounces and was not shown to be making the marijuana available for
sale).
 8

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:

4
Id. (punctuation and citations omitted).
5
See id. at 416–18.
6
Decriminalization Act § 101, codified in D.C. Code § 48-1201(a), (b) (2014
Repl. & 2020 Supp.).
 9

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 term “controlled

substance” “shall not include . . . [m]arijuana that is or was in the personal possession

of a person 21 years of age or older at any specific time if the total amount of

marijuana that is or was in the possession of that person at that time weighs or

weighed 2 ounces or less” 8—with the exception that “any marijuana . . . sold or

offered for sale or made available for sale” remains a “controlled substance.” 9

Consequently, under the present law, the purchase and sale of a small amount

of marijuana are treated differently—the buyer’s action is now legal, whereas the

7
D.C. Code § 48-904.01(a)(1)(A) – (B).
8
Id. § 48-904.01(a)(1A)(A)(i).
9
Id. § 48-904.01(a)(1A)(B).
 10

seller’s is still a criminal offense. 10 And transferring a small amount of marijuana

without remuneration likewise is treated differently from selling it—the former is

lawful while the latter is not.

Despite these changes in the law, the government argues that facilitating any

“distribution” of marijuana is still a crime under District law, with no exception for

anyone merely acting as a purchasing agent for a consumer-buyer, because (1) D.C.

Code § 48-904.01(a)(1) continues to provide that, “[e]xcept as authorized by this

chapter . . . it is unlawful for any person knowingly or intentionally to . . . distribute,

or possess, with intent to . . . distribute, a controlled substance”; 11 and (2) the term

10
See also D.C. Code § 48-904.01(a)(1)(D); Kornegay, 236 A.3d at 419–20
(“Our discussion of D.C. Code § 48-904.01(a)(1) does not end here, because the
exception to the statute that makes it generally lawful to possess less than two ounces
of marijuana (with or without the intent to distribute) is itself subject to an exception:
Section 48-904.01(a)(1)(D) contains the proviso that ‘nothing in this subsection shall
make it lawful to sell, offer for sale, or make available for sale any marijuana or
cannabis plants.’ We acknowledge that, both in the statute as enacted and as
codified, this exception-within-an-exception is typographically located within
subparagraph (D) (making lawful the possession of only a subset of cannabis,
specifically, marijuana grown from cannabis plants lawfully possessed within the
home, as described in subparagraph (C)). But the text of this exception-within-an-
exception plainly refers to the entirety of § 48-904.01(a). Accordingly, we
understand § 48-904.01(a)(1) to permit an adult to possess two ounces or less of
marijuana regardless of their intent, so long as that adult does not ‘sell, offer for sale,
or make available for sale’ the marijuana.”).
11
Id. (emphasis added).
 11

“distribute” is statutorily defined as “the actual, constructive, or attempted transfer

from one person to another other than by administering or dispensing of a controlled

substance, whether or not there is an agency relationship.” 12

We do not consider this a tenable argument in support of appellant’s

conviction. We agree that, other than in the case of small transfers of marijuana

covered by the Legalization Initiative, the statutory prohibition on drug

“distribution” precludes a “buyer’s agent” or similar defense. To remove that

defense in drug distribution prosecutions as a general matter was, in fact, the reason

the words “whether or not there is an agency relationship” were included in the

statutory definition of “distribute.” Prior to 1970, federal controlled substances law

(the so-called “Harrison Act”) made it a crime to sell narcotics, and a defendant was

not considered to be engaged in the sale of narcotics if he only “undertook to act in

the prospective purchaser’s behalf” and “purchased the drug from a third person with

whom he was not associated in selling.” 13 In the Comprehensive Drug Abuse

12
Id. § 48-901.02(9) (2014 Repl. & 2020 Supp.) (emphasis added).
13
United States v. Sawyer, 210 F.2d 169, 170 (3d Cir. 1954); see also Lewis
v. United States, 337 F.2d 541, 543–44 & n.4 (D.C. Cir. 1964).
 12

Prevention and Control Act of 1970, 14 however, Congress adopted an expanded

definition of distribution (encompassing but not limited to sales) that applied to

virtually all transfers of controlled substances “whether or not there exists an agency

relationship,” thereby eliminating the purchasing agent defense in prosecutions

under federal law. 15 And the same definition of distribution was included in the

District of Columbia statute, thereby generally precluding a purchasing agent

defense and similar defenses under our law too. 16

But although the Legalization Initiative did not amend that statutory

definition, the Initiative altered its applicability—the prohibition on distribution

itself no longer applies to marijuana in the same way as it does to controlled

substances in general. Section 48-904.01(a)(1) begins with the qualification

“[e]xcept as authorized by this chapter . . . .” The requisite authorization is now

14
21 U.S.C. § 801 et seq.
15
See United States v. Porter, 764 F.2d 1, 11-12 (1st Cir. 1985); United States
v. Marquez, 511 F.2d 62, 64 (10th Cir. 1975); United States v. Pierce, 498 F.2d 712,
713 (D.C. Cir. 1974).
16
See, e.g., Long v. United States, 623 A.2d 1144, 1149 n.10 (D.C.1993);
Minor v. United States, 623 A.2d 1182, 1186 (D.C. 1993) (italicization omitted)
(“Being an agent of the buyer is not . . . a valid defense to a charge of distributing a
controlled substance.”).
 13

there—as stated above, the same subsection states explicitly that “[n]otwithstanding

any provision of this chapter to the contrary, it shall be lawful . . . for any person 21

years of age or older to . . . [t]ransfer to another person 21 years of age or older,

without remuneration, marijuana weighing one ounce or less.” 17 Thus, while there

remains a prohibition on transfers of marijuana (1) by sale, (2) in quantities greater

than an ounce, or (3) to persons under 21 years of age, the statute expressly exempts

from that prohibition, and unambiguously permits, unremunerated transfers of an

ounce or less of marijuana to an adult.

Under a straightforward reading of D.C. Code § 48-904.01(a)(1), appellant’s

purchase of less than two grams of marijuana was on its face lawful, and his transfer

of that amount of marijuana to Officer Turner without remuneration was likewise

lawful. 18 That appellant purchased the marijuana for someone other than himself is

immaterial. In Kornegay this court rejected the contention that the amendments to

§ 48-904.01 “decriminalized only possession of marijuana for ‘personal use,’” and

concluded that subsection (a)(1) makes it lawful for an adult to possess two ounces

17
Id. § 48-904.01(a)(1)(B) (emphasis added).
18
It is undisputed that both appellant and Officer Turner were over 21 years
of age.
 14

or less of marijuana “regardless” of an intent to distribute it, “so long as that adult

does not ‘sell, offer for sale, or make available for sale’ the marijuana.” 19 The

validity of appellant’s conviction therefore depends on whether the trial judge

nonetheless properly found him liable for illegally distributing marijuana, based on

his involvement in an illegal sale, under the law of aiding and abetting.

In the District of Columbia, accomplices prosecuted for aiding and abetting

the principal offender in the commission of a crime are charged as principals. 20 To

be criminally culpable under the “purpose-based” definition of “aiding and abetting”

that we follow, “an accomplice ‘must be concerned in the commission of the specific

crime with which the principal defendant is charged; he must be an associate in guilt

of that crime.’” 21 This “purpose-based” standard “require[s] proof that the

accomplice intended to help the principal to commit the charged offense.” 22

19
Kornegay, 236 A.3d at 419–20.
20
D.C. Code § 22-1805 (2012 Repl.).
21
Wilson-Bey v. United States, 903 A.2d 818, 831 (D.C. 2006) (en banc)
(emphasis in original, punctuation and citation omitted).
22
Id. at 834.
 15

In this case, the trial judge considered it enough to hold appellant guilty as an

aider and abettor of the seller that appellant’s actions as an intermediary for the buyer

“aided the transaction.” Before the Legalization Initiative, this court indicated that

“aiding the transaction” would have been a permissible basis for accomplice

liability, at least in some circumstances (and it still may be, where the transaction

involves drugs other than marijuana and thus is illegal for all participants). 23

But after the Legalization Initiative, this cannot be quite right with respect to

small marijuana transactions. Under a statutory regime that criminalizes only the

sale side of the transaction and explicitly declares the purchase to be lawful, “aiding

the transaction” does not provide a sufficient or satisfactory test of criminal

accomplice liability because it does not take into account which side the defendant

was on. Certainly it would be incongruous to prosecute the purchasing agent for

“aiding and abetting” the purchaser where the statute declares the purchase lawful

23
See Lowman v. United States, 632 A.2d 88, 91 (D.C. 1993) (“Even were
Lowman implicitly arguing that she was aiding and abetting the buyer rather than
the seller, the jury could reasonably find that Lowman encouraged and facilitated
the sale of the drugs and, therefore, that she was aiding and abetting the seller’s
distribution of cocaine.”); Griggs v. United States, 611 A.2d 526, 529 (D.C. 1992)
(holding that appellant who offered to escort an undercover police officer to the
seller of crack cocaine, introduced the officer to the seller as his cousin, and waited
while the officer purchased the cocaine from the seller, thereby “‘encouraged and
facilitated’ [the seller’s] crime of distribution”).
 16

(and subsequent uncompensated transfers between the agent and the purchaser to be

lawful as well). And to say that the buyer’s surrogate also became an accomplice of

the seller merely by facilitating the transaction for the buyer would seem to be

incongruous too, because we would not say that about buyers themselves. That all

persons who participate in any sale transaction can be said to intend the sale to be

made, regardless of which side of the transaction they are on, cannot be taken to

mean they all are accomplices of the seller by virtue of that fact alone. 24

As the Supreme Court explained in Abuelhawa v. United States, 25

Where a transaction like a sale necessarily presupposes
two parties with specific roles, it would be odd to speak of
one party as facilitating the conduct of the other. A buyer
does not just make a sale easier; he makes the sale
possible. No buyer, no sale; the buyer’s part is already
implied by the term “sale,” and the word “facilitate” adds
nothing. We would not say that the borrower facilitates
the bank loan. 26

24
To illustrate the point, when readers of this opinion go to the store to buy
groceries for themselves, we would not say their purpose in doing so is to help the
grocers make the sales. The same holds true when our readers are running errands
to buy groceries for others.
25
556 U.S. 816 (2009).
26
Id. at 820 (2009) (holding that a purchaser of drugs, guilty only of a
misdemeanor for such conduct, could not be convicted of a felony on the premise
that his purchases facilitated or aided and abetted the sales).
 17

“[W]here a statute treats one side of a bilateral transaction more leniently,” the Court

also pointed out, “adding to the penalty of the party on that side for facilitating the

action by the other would upend the calibration of punishment set by the legislature,

a line of reasoning exemplified in the courts’ consistent refusal to treat noncriminal

liquor purchases as falling under the prohibition against aiding or abetting the illegal

sale of alcohol.” 27

We think it significant, for present purposes, that the case Abuelhawa cited

for the latter proposition was Lott v. United States. 28 Citing numerous other courts’

decisions, Lott explicitly held that under a statute penalizing the sale but not the

purchase of liquor, “the offense is committed only by the vendor or someone who

aids him in selling, and [] the purchaser and those who aid him in the purchase are

not guilty of aiding or abetting in the commission of the offense.” 29 Courts

construing statutes criminalizing sales but not (or differently from) purchases of

27
Id.
28
205 F. 28 (9th Cir. 1913).
29
Id. at 29 (emphasis added).
 18

drugs have reached the same conclusion. 30 In our view, for the reasons given above,

this general conclusion makes sense.

Thus, the statutory dichotomy arising from the Legalization Initiative compels

us to ask in this case whether the government proved more than that appellant “aided

the transaction.” Appellant could not be convicted as an accomplice of the seller if

appellant acted (without remuneration) solely with the intention of helping the buyer

make a lawful purchase of marijuana. To convict appellant for aiding and abetting

the seller, the government needed to prove that he intended his participation to aid

30
See, e.g., People v. Roche, 379 N.E.2d 208, 211 (N.Y. 1978) (“Since the
thrust of our statutes . . . is not directed against purchasers, an individual who
participates in such a transaction solely to assist a buyer . . . incurs no greater criminal
liability than does the purchaser he aids and from whom his entire standing in the
transaction is derived. Specifically, without more he may not be treated as an
accomplice of the seller.”); State v. Bressette, 388 A.2d 395, 398 (Vt. 1978) (“[T]he
charge of selling [marijuana] . . . requires . . . proof that, in some manner, the person
charged was acting on behalf of the seller, rather than just for the buyer. To hold the
agent of the buyer to a criminal responsibility that the buyer himself does not carry
under the statute seems to us a strained construction, not to be resorted to unless
plainly compelled by legislative language and purpose, a compulsion not here
demonstrated.”).

As we have discussed above, a buyer’s purchasing agent also was not
considered to be the seller’s accomplice under the former federal controlled
substances law. (Under current federal law, which contains no exception for
marijuana, the question would seem to be moot because the definition of distribution
encompasses the activities of the buyer’s agent without the need to consider that
person’s accomplice liability.)
 19

the seller; i.e., that he acted with the purpose not simply to make a purchase (though

that necessarily and tautologically would entail a sale), but to help the seller to make

the unlawful sale. 31

The trial judge did not find that appellant’s purpose was to so aid the seller.

We agree with appellant that the evidence the government presented at trial was

insufficient to support such a finding. There was no evidence, for example, that

appellant was stationed on Mellon Street for the purpose of connecting would-be

buyers with the seller, or that he otherwise was engaged in drug distribution

activities. 32 Appellant did nothing inside America’s Best Wings suggesting he was

31
It should be noted that we have no occasion in this opinion to address co-
conspirator liability, as distinguished from accomplice liability.
32
We do not overlook Officer Turner’s testimony that a woman on the street
“directed” his attention to appellant when he asked her where he could buy
marijuana. Appellant did not object to the admission of this testimony on hearsay
(or other) grounds. See Little v. United States, 613 A.2d 880, 882 (D.C. 1992)
(adopting Federal Rule of Evidence 801(a)’s definition of hearsay as including
“nonverbal conduct of a person, if it is intended by the person as an assertion”). See
also United States v. Caro, 569 F.2d 411, 416 n.9 (5th Cir. 1978) (co-conspirator’s
pointing at appellee’s home “constitute[d] . . . assertive conduct” and was
inadmissible without an applicable hearsay exception); United States v. Abou-Saada,
785 F.2d 1, 8 (1st Cir. 1986) (co-conspirator’s pointing at appellant in view of police
“amount[ed] to hearsay, for it [was] conduct intended as an assertion”). Even so, as
the trial judge herself stated, the woman’s action “obviously does not lead [to] the
conclusion that [appellant] was selling drugs in the neighborhood.” The judge
thought it did justify “a reasonable inference that . . . someone knew that [appellant]
could aid in the sale of drugs.” That inference adds nothing, however, to what the
 20

part of the seller’s distribution operation or anything other than a customer. Nor was

there evidence that appellant had a prior arrangement with the seller, that he had a

stake in seeing the sale consummated, or that he hoped to profit in some way by

being of assistance to the seller. In fact, it appears appellant would have been

perfectly content to point the officer to America’s Best Wings and let him buy the

marijuana there on his own. Appellant only became involved with the purchase after

Officer Turner specifically requested his help (which Officer Turner needed because

he did not know the identity of the seller).

In short, appellant did only what an apparent buyer asked him to do to achieve

the buyer’s lawful acquisition of a small amount of marijuana for personal use.

Nothing appellant did was inconsistent with that understanding of his limited role.

That appellant knew where to buy the marijuana, and that he was willing to lend his

aid to a stranger who asked for his help in getting it, is not enough to prove that

appellant was working as an accomplice of the seller or expecting the seller to

remunerate him for his involvement in the exchange. In the eyes of the law,

evidence otherwise showed, that appellant not only could, but actually did, help
facilitate the sales transaction. The inference that Officer Turner’s interlocutor
believed (or “knew”) appellant could do so does not overcome the lack of any proof
that appellant actually was working in some way on behalf of the seller.
 21

appellant’s proven behavior was no different from that of a person who simply runs

an errand to lawfully buy a small amount of marijuana as a favor for a friend. 33

III.

Without proof that appellant acted for the purpose of aiding the seller to

conduct his illegal business, his actions in buying a small amount of marijuana and

transferring it, without remuneration, to Officer Turner were lawful under D.C. Code

§ 48-904.01(a)(1). We therefore must reverse his conviction for violating that

statute. 34

33
Consider the following hypothetical. A man who wants to lawfully obtain
and smoke marijuana in the District of Columbia, but who does not know where to
get it or, perhaps, is physically unable to do so, asks an acquaintance to purchase
some for him. He gives her $20 to do so. The acquaintance happens to know of
someone who sells marijuana on the street corner, and she agrees to run the errand.
She uses the $20 to buy the marijuana from the seller on the corner and brings it
back to her friend, receiving nothing but her friend’s gratitude in return. Based on
those facts alone, should she really be viewed as having criminally aided and abetted
the seller? We find that very hard to believe. Her actions, we are certain, would and
should be considered legal under our current law. We fail to see how appellant’s
proven conduct in this case is materially distinguishable.
34
To avoid any possible misunderstanding, we again note that the holding of
this opinion applies only to the purchases and transfers of marijuana in small
quantities covered by the Legalization Initiative. We recognize no generally
applicable buyer’s agent defense in District law to the distribution of controlled
substances. See Minor, 623 A.2d at 1186–87. We agree with our dissenting
colleague that, under District of Columbia law, it is still generally true that “being
 22

So ordered.

FISHER, Senior Judge, dissenting: In the District of Columbia “the law is clear

that being an agent of the buyer is not recognized as a valid defense to a charge of

distributing a controlled substance.” Minor v. United States, 623 A.2d 1182, 1186

(D.C. 1993). Nevertheless, my colleagues hold that appellant’s conviction must be

reversed because he was merely acting as a buyer’s agent. This decision is based on

at least two legal errors: (1) they mistakenly conclude that the Legalization Initiative

authorized a buyer’s agent defense to a charge of distributing small amounts of

marijuana and (2) they view the evidence in the light most favorable to appellant.

I do not quarrel with the general proposition that the Council (or the voters,

when exercising their legislative power through an initiative) may effectively

overrule holdings of this court. Indeed, the very title of the Legalization of

Possession of Minimal Amounts of Marijuana for Personal Use Initiative of 2014,

D.C. Law 20-153, forthrightly signals that it was meant to change the law relating

to possession of marijuana. And the Initiative does make this change, providing that

an agent of the buyer is not recognized as a valid defense to a charge of distributing
a controlled substance.” Id. at 1186. But as we have explained, the amendments to
D.C. Code § 48-904.01 have abrogated that general rule with respect to small
amounts of marijuana.
 23

it “shall not be an offense” for a “person 21 years of age or older” to possess

marijuana “weighing 2 ounces or less.” D.C. Code § 48-904.01(a)(1)(A).

Having read this new statutory language, a person might logically ask how

she is supposed to gain possession of marijuana without violating the law, and what

can she lawfully do with it once she possesses it. The Initiative did not leave the

answers to inference or implication. Instead, it expressly made it lawful not only to

possess, but also to “use, purchase, or transport marijuana weighing 2 ounces or

less.” D.C. Code § 48-904.01(a)(1)(A). Moreover, it specified that the term

“controlled substance” does not include “[m]arijuana that is or was in the personal

possession of a person 21 years of age or older at any specific time if the total amount

of marijuana that is or was in the possession of that person at that time weighs or

weighed 2 ounces or less.” D.C. Code § 48-904.01(a)(1A)(A)(i). But sales of

marijuana are still forbidden. “Notwithstanding the provisions of this paragraph, the

terms ‘controlled substance’ and ‘controlled substances,’ as used in the District of

Columbia Official Code, shall include any marijuana or cannabis plant sold or

offered for sale or made available for sale.” D.C. Code § 48-904.01(a)(1A)(B).

Thus, the new statute expressly addresses key questions arising from the

decision to legalize the possession of small amounts of marijuana for personal use.
 24

By contrast, the language of the statute does not explicitly authorize a buyer’s agent

defense, and we should not indulge efforts “to broaden the meaning of statutory

language by mere inference or surmise or speculation[.]” Grayson v. AT&T Corp.,

15 A.3d 219, 237-238 (D.C. 2011) (en banc). Moreover, “[t]his court will not lightly

deem one of its decisions to have been implicitly overruled and thus stripped of its

precedential authority.” Thomas v. United States, 731 A.2d 415, 420 (D.C. 1999).

When this court rejected the buyer’s agent defense, it relied in major part upon

the statutory definition of distribution, which prohibited the transfer of a controlled

substance to another “whether or not there is an agency relationship.” Minor, 623

A.2d at 1186 (quoting former D.C. Code § 33-501(9)). This key definition was not

changed. Even after the Legalization Initiative, to “distribute” means the transfer of

a controlled substance “from one person to another . . . whether or not there is an

agency relationship.” D.C. Code § 48-901.02(9). The buyer’s agent theory

continues to be precluded by statute.

The majority’s decision thus seems to rest on implications drawn from two

parts of the statute — the right of a person to purchase a small amount of marijuana,

and the provision making it lawful to “[t]ransfer to another person 21 years of age

or older, without remuneration, marijuana weighing one ounce or less.” D.C. Code
 25

§ 48-904.01(a)(1)(B). It reasons that a buyer is not confined to purchasing the

marijuana himself because an agent may lawfully buy it for him. I have already

explained why that is not a valid proposition. It is also an unwise pronouncement,

seeming to immunize clever middlemen who are key participants in the chain of

commercial distribution.

My colleagues also focus too narrowly on the transfer from appellant to

Officer Turner. We are required instead to consider the record as a whole, and to

view it in the light most favorable to the verdict. Suggesting that appellant just

“happened” to be there, that he was acting altruistically, or that he was pressured

into participating violates our standard of review. The trial court correctly

understood that this was a commercial transaction and that appellant was an integral

part of the sale. As she explained, “aiding the purchase and the sale are not mutually

exclusive.” See Lowman v. United States, 632 A.2d 88, 91 (D.C. 1993) (“Even were

Lowman implicitly arguing that she was aiding and abetting the buyer rather than

the seller, the jury could reasonably find that Lowman encouraged and facilitated

the sale of the drugs and, therefore, that she was aiding and abetting the seller’s

distribution of cocaine.”).
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The Initiative did not legalize this distribution of a controlled substance.

Appellant was not engaged in social sharing by passing a joint to a friend, nor was

he contributing marijuana he already lawfully possessed. We do not know whether

appellant received some commission from Mr. Livingston, but, given the record

before us, the government was not required to prove that he did. The statute was not

intended to immunize someone like appellant who knowingly served as a middleman

in a sale of marijuana. The record plainly discloses that he took the officer to the

point of sale, collected the money in advance, and soon transferred a controlled

substance in return. It cannot realistically be said that this was a transfer of

marijuana without remuneration.