concurring:
I concur in the result because I agree that whatever the correct law is as to mea-surability/usability, there is no plain error here.
However, I do not agree with the majority’s application of the Edelin 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 dispensed,” 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 share with only four states. See Note, Criminal Liability for Possession of No-nusable 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.) Edelin 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 People v. Hardin, 149 Cal.App.3d 994, 995, 197 Cal.Rptr. 194, 195 (1983), 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 substance sold.” Several grounds underlay this holding,3 includ*1010ing, 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.” People v. Mata, 180 Cal.App.3d 955, 959, 226 Cal.Rptr. 150, 152 (1986). On this point, the two cases in turn rely on an extended discussion in People v. Diamond, 10 Cal.App.3d 798, 89 Cal.Rptr. 126 (1970), distinguishing sale cases from possession cases and asserting that “[pjroof of the intentional sale of a dangerous drug is proof the quantity sold was ‘usable for sale’.” Id. at 801, 89 Cal.Rptr. at 127.
I might add that I also harbor considerable doubt about the proper application of the Edelin principle even to cases of possession of more than a “trace” of a controlled substance. I would not reach that issue in disposing of the case before us.
. Edelin referred to the substance’s usability “as a narcotic.” 227 A.2d at 399. 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 Edelin concern relates to both use and sale is reiterated in Blakeney v. United States, 366 A.2d 447, 449 (D.C.1976), where we said:
Edelin 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.)
. Edelin 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 Edelin line of cases may now be inapposite.
.The case also refers to the wording of the California statutes, which included the phrase “any quantity”, and in that regard is distinguishable.