dissenting:
In my opinion, the trial judge’s conclusion that Jefferson did not qualify for the addict exception is based upon a subsidiary finding that is not supported by the evidence. I would so hold and remand for further proceedings.
I.
Jefferson was convicted by a jury of unlawful possession of cocaine with intent to distribute it (PWID). The conviction was based on Jefferson’s alleged possession of a sandwich bag containing eighty-nine ziplock packets of crack cocaine. Officers also recovered three “bum bags” (false cocaine) from Jefferson’s person.
Jefferson claimed at trial that he had no connection with the cocaine in the sandwich bag, and that the arresting officer had “lied on” him in retaliation for a prior encounter in which charges which the officer made against Jefferson had been dismissed. Jefferson also testified at trial that, although he was an addict, he never sold drugs, but that he obtained the money he needed to buy cocaine by selling bum bags instead.1
*480Although the prosecution and defense vigorously contested the question whether Jefferson was ever in possession of the eighty-nine ziploek packets, both parties unequivocally took the position that the cocaine was packaged for ready sale. Detective Myron Smith, the government’s drug expert, testified that the eighty-nine bags were “typical of the packaging found for crack cocaine for sale in the streets of the District of Columbia.” Smith stated that, at twenty dollars a bag, the cocaine had a street value of approximately $1780, and that it would be quite unusual .for a person to have so large an amount for his own use. This was so because it would be much cheaper to buy that amount of crack cocaine in bulk form, and also because
the main disadvantage [of buying 89 separate ziploek bags] is you do not know what you are buying. One or two ziplocks can be quite legitimate for crack cocaine, a rock of crack cocaine, and the other 85 could be what’s known as dirt bags. They could be counterfeit and you have wasted that amount of money, because there are no refunds in the drug business. You have just exhausted all your money and wasted it.
Norman A. Hill, a twenty-five year police veteran who testified as an expert for the defense, agreed with Detebtive Smith that the ziploek bags had been packaged for sale:
Q. ... And in light of your experience, wouldn’t you also agree with me that 89 ziplocks is particularly a large amount for one individual to have?
A. Oh, absolutely.
Q. And 89 ziplocks is an amount that would be used for sale, isn’t that correct? A. And looking at the way it is packaged and broken down in ziploek bags, yes.
Q. So, would you agree with me that it looks like the evidence in this case looked like it was packaged for sale, right? ■
A. Yes, it is ready to sell, street level.
During closing argument, the prosecutor likewise told the jury that the cocaine was “packaged for street sale in individual little bags in a certain size.” She added that the bags were “ready to be sold on the street and distributed to other people.” Jefferson’s attorney never contradicted this proposition, but based his defense on a claim that there was reasonable doubt as to whether Jefferson possessed the cocaine.
The jury, obviously crediting the prosecution witnesses and disbelieving Jefferson, found Jefferson guilty of PWID. In the context in which the case was tried, this meant that, in the jury’s view, Jefferson possessed the drugs and intended to sell them. There was no evidence that Jefferson possessed the contents of the sandwich bag for his own use or for the purpose of sharing the cocaine with friends or associates.2
II.
At the hearing on Jefferson’s request for sentencing pursuant to the “addict exception” to the mandatory minimum sentencing statute then in effect, see D.C.Code § 33-541(c)(2) (1993), the prosecutor conceded that Jefferson was an addict, and the trial judge so found. The disputed question at that stage of the case was whether Jefferson possessed the cocaine with the intent to distribute it “for the primary purpose of enabling [him] to obtain a narcotic drug or abusive drug which he required for his personal use because of his addiction_” Id. Jefferson’s attorney conceded that, notwithstanding Jefferson’s claims of innocence, the judge was bound to accept the jury’s verdict that *481Jefferson possessed the cocaine with the intent to distribute it. Counsel continued as follows:
[W]hat we are saying is that, accepting that the jury has found that he had it, and that they believed that that supported the inference of his having it in order to sell it, nonetheless, his own circumstances and testimony established that whatever he had, everything he did, was in order to get cocaine for himself.
He spent no money on anything else. He did nothing else except chase after his personal satisfaction in the use of, of crack cocaine at the time.
The trial judge accepted the jury’s verdict that Jefferson possessed the cocaine with intent to distribute it. She concluded, however, that the verdict was not necessarily inconsistent with Jefferson’s claim, apparently credited by the judge, that Jefferson sold only burn bags but not cocaine. The judge believed that the verdict could be reconciled with Jefferson’s testimony because Jefferson might have intended to distribute the cocaine by sharing it with friends, rather than by selling it on the street, and because the jury might have so found. In my opinion, this hypothesis is entirely lacking in any support in the record.
It is true, as the trial judge recognized, that the term “distribution” encompasses conduct other than sale, and that a defendant may properly be convicted of PWID if he intends to. “distribute” the drugs by sharing them with his friends, rather than by selling them. See, e.g., Long v. United States, 623 A.2d 1144, 1147 (D.C.1993) (citations omitted). There is no substantial nexus, however, between this correct legal proposition and the record in the present case. Both expert witnesses testified that the eighty-nine bags of cocaine were packaged (and therefore presumably intended) for sale, not for sharing. There was no evidence to the contrary, and the case was presented to the jury as one involving an intent to sell, not an intent to share.
In order to find beyond a reasonable doubt, on this record, that Jefferson was guilty of PWID because he intended to distribute cocaine by sharing it, rather than by selling it, the jury would have had to engage in a “bizarre reconstruction of the facts of the case.” Anderson v. United States, 490 A.2d 1127, 1129 (D.C.1985) (per curiam). I cannot agree with the trial judge’s view that the verdict could reasonably have rested upon this ground. The only interpretation of the jury’s verdict which can be squared with the evidence in the case and with the contentions of the parties is that the jurors credited the government’s case: Jefferson possessed the cocaine and specifically intended to sell it.
If, as I suggest, the “intent-to-sell” construction of the jury’s verdict is the only reasonable one, then Jefferson was substantially prejudiced by the trial judge’s reliance on an “intent-to-share” hypothesis. The judge appears to have credited Jefferson’s claim that, in effect, just about everything that he did was geared to obtaining cocaine to satisfy his craving. If this was true of Jefferson’s activities in general, and if, as the jury found, Jefferson possessed eighty-nine ziplock bags of crack cocaine and intended to sell them, the inference that the intended sales were designed to feed his addiction was a great deal stronger than it would have been if his purpose had been to share cocaine with friends. Because the “intent to share” theory appears to have been central to the judge’s disposition, I would remand the case with directions that the trial judge eliminate from her calculus, in any further consideration of Jefferson’s eligibility for addict exception sentencing, the “intent to share” finding on which her initial determination was apparently based.
III.
Nothing that I have written is meant to suggest that Jefferson should (or should not) receive a more lenient sentence than the one imposed by the judge. It is important to reiterate that “even if the defendant is found to be eligible for sentencing under the addict exception, it remains within the sound discretion of the trial judge to determine whether to use the exception in sentencing.” Stroman v. United States, 606 A.2d 767, 770 (D.C.1992). According to the report of the *482Pretrial Services Agency, Jefferson had at least nine prior convictions at the time of his arrest, including one for possession of marijuana with intent to distribute it.3 In an interview with a representative of the Criminal Justice Act office following his arrest in this case, Jefferson lied regarding his employment. After his conviction, he lied about his drug use to the probation officer who was preparing the presentenee report. The jury’s verdict established that Jefferson lied at trial, and he admitted lying to his cocaine-craving customers.
Many drug abusers have numerous convictions, and some of them make a habit of lying.4 If the “addict exception” were confined to honest citizens who have never committed a crime, I suppose that not very many defendants would be eligible. Even so, a sentencing judge may or may not find conduct such as that in which Jefferson has engaged over the years to be compatible with compassionate rehabilitative sentencing under the addict exception. This, however, is a discretionary call. If the judge, in the exercise of her discretion, proposes to impose a mandatory minimum sentence regardless of Jefferson’s eligibility for the addict exception, then a determination whether he is eligible will serve no useful purpose. See Mozelle v. United States, 612 A.2d 221, 223-24 (D.C.1992).
IV.
For the foregoing reasons, I would vacate Jefferson’s sentence and remand for further proceedings.
. After Jefferson had attempted at trial to defend his bum bag business against the prosecutor's challenge to its probity, the cross-examination continued:
*480Q. Selling something fake to somebody and getting their money is not taking advantage of them?
A. No ma’am.
Q. You think that is honest?
A. Definitely not [an] honest thing to do.
Q. But it is not taking advantage?
A. No, ma'am.
Q. Why?
A. Because that is the way the game is. The coke game.
. Jefferson testified at trial, and again at the "addict exception” hearing, that he had never possessed the eighty-nine bags. He asserted that if he had possessed these bags, then he would have consumed the cocaine himself. This testimony was' purely hypothetical, and Jefferson said nothing from which the jury could have inferred that he intended to share the cocaine with friends, rather than to sell it.
. Jefferson’s PWID marijuana conviction did not render him ineligible for sentencing under the addict exception, because marijuana (cannabis) is not a Schedule I, II, or III substance. See D.C.Code §§ 33-522, -541(c)(2).
. Compare State v. Fong Loon, 29 Idaho 248, 158 P. 233, 236 (1916) (“We believe it will be admitted that habitual users of opium, or other like narcotics, become notorious liars,”) and Godfrey v. United States, 122 U.S.App. D.C. 285, 288-89, 353 F.2d 456, 459-60 (1965) (per curiam) (Miller, J., dissenting) ("During the last fifty years I have had many opportunities to observe the way drug addicts testify in criminal cases about matters which concern their own interests. On the basis of that experience, I believe Judge Pine was correct in saying that they are inherently perjurers... .”) with the majority opinion in Godfrey, holding that a jury instruction to the effect that a drug addict is inherently a perjurer was "obviously erroneous.” 122 U.S.App. D.C. at 287, 353 F.2d at 458. See also Coates v. United States, 558 A.2d 1148, 1152-55 (D.C.1989), in which we determined that there was no general scientific consensus regarding the mendacity of drug abusers.