Lowman v. United States

SCHWELB, Associate Judge,

concurring in part and dissenting in part:

The majority sustains Katrina Lowman’s conviction on “an aiding and abetting theory,” maj. op. at 90, but apparently finds it unnecessary to determine whether Ms. Low-man was aiding her codefendant and a juvenile to sell crack cocaine, or simply helping Officer Johnson to buy some. The omitted analysis makes a great deal of difference, for aiding and abetting the distribution of a controlled substance is a felony now subject to a mandatory minimum sentence,1 see D.C.Code § 33-541(c)(l)(A) (1988); Dupree v. United States, 583 A.2d 1000 (D.C.1990), while aiding the buyer to possess drugs is a misdemeanor. In my opinion, the evidence, viewed in the light most favorable to the prosecution, establishes Ms. Lowman’s guilt of aiding and *95abetting possession of cocaine, but not of helping anyone to sell it. Accordingly, I respectfully dissent from the affirmance of her conviction; I join my colleagues in holding that the evidence against Carter was sufficient.

I.

THE EVIDENCE

Although there were variations in eviden-tiary detail between the accounts provided by the defense and prosecution, the essential facts are not in dispute. There was no evidence that Ms. Lowman was out searching for buyers on behalf of Carter or the juvenile, or that she was in cahoots with either of the two in any way.2 Officer Johnson testified that it was he who asked Ms. Lowman where he could purchase a “20 rock” of crack cocaine. According to Johnson, Ms. Lowman took him to Carter. Ms. Lowman inquired whether Carter had “20’s”.3 Carter and the juvenile then sold Johnson a “rock” of cocaine, and Ms. Lowman left the scene. She never handled the drugs or the money, and there is no suggestion that she received, or expected to receive, anything of value from the principals in the sale.

On these facts, construed in the light most favorable to the prosecution,4 Ms. Lowman’s conviction could not rationally rest on a finding, beyond a reasonable doubt, that there was some prearrangement, coordinated action, or community of unlawful purpose between Ms. Lowman on the one hand and Carter and the juvenile on the other. The question fairly presented is whether one who directs a buyer to a potential seller is engaged, contrary to the common sense meaning of the term, in the distribution of unlawful drugs. See Annotation, Criminality of Act Directing to, or Recommending, Source From Which Elicit Drugs may be Purchased, 42 A.L.R.3d 1072 (1972 & Supp.1992) (hereinafter Annotation). An objective resolution of that question requires careful analysis of the statutory language, legislative history, and analogous judicial precedent.

II.

LEGAL DISCUSSION

A The Statutory Framework.

In the District of Columbia, “it is unlawful for any person knowingly or intentionally to ... distribute ... a controlled substance.” D.C.Code § 33 — 541(a)(1) (1988). Our “aiding and abetting” statute, D.C.Code § 22-105 (1989), provides in pertinent part that

[i]n prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the *96principal offender, shall be charged as principals and not as accessories....

(Emphasis added.)

To establish aiding and abetting, the prosecution was obliged to prove that Ms. Low-man “ ‘in some sort associated] [her]self with the venture, that [s]he participated] in it as in something that [s]he wished] to bring about, that [s]he [sought] by [her] action to make it succeed.’ ” Brooks v. United States, 599 A.2d 1094, 1099 (D.C.1991) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938) (Learned Hand, J.)); see also Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769-70, 93 L.Ed. 919 (1949) (adopting Peoni definition). It is not sufficient to show that Ms. Lowman aided someone; the government must prove that the assistance was given to “the perpetrator” of the crime. Brooks, supra, 599 A.2d at 1099; see also United States v. Staten, 189 U.S.App.D.C. 100, 108, 581 F.2d 878, 886 (1978). “In order for one to be an accomplice [or an aider or abettor][5] [s]he must be concerned in the commission of the specific crime with which the defendant is charged, [s]he must be an associate in guilt of that crime, a participant in that offense as principal or accessory.” Risinger v. United States, 236 F.2d 96, 99 (5th Cir.1956) (emphasis added). The specific crime which Ms. Lowman is alleged to have aided and abetted in this case was distribution of cocaine, and the principal offenders were her codefendant and his juvenile confederate.

If the words of the statute are accorded their ordinary everyday meaning, see Riggs Nat. Bank v. District of Columbia, 581 A.2d 1229, 1235 (D.C.1990), then it is difficult to see how Ms. Lowman could be found to have aided and abetted the distribution of cocaine. She did not advise or incite the sellers to sell drugs, nor connive with them in any way. On the contrary, she advocated no action on their part, but simply asked Carter if he had any 20’s for sale. Ms. Lowman likewise did not aid or abet the principal offenders to do anything. Rather, her significant dealings were all with the prospective buyer.

The government argues that Ms. Lowman “facilitated” the sale. This is undoubtedly true, in the sense that she made it easier for Officer Johnson to buy a packet of crack, and ultimately for the sellers to sell it. Such an argument, however, proves too much. A cab driver who transports a buyer to the scene also “facilitates” a sale in this unrestricted sense of the word. Every purchaser of drugs makes it easier, by his or her conduct, for a seller to sell. Indeed, the purchaser’s role is far more vital to the sale, and encourages it in considerably greater measure, than Ms. Lowman’s role of, at most, a buyer-sponsored intermediary. Accordingly, if the government’s position were adopted, and if everyone who assisted a buyer of drugs were thereby rendered a distributor, then, a forti-ori, every purchaser would also logically have to be deemed an aider and abettor to a felony, and would therefore be subject to a mandatory minimum sentence. The consequence of such a construction of the statute, however, would be “to write out of the Act the offense of simple possession, since under such a theory every drug abuser would be liable for aiding and abetting the distribution which led to his own possession.” United States v. Swiderski 548 F.2d 445, 451 (2d Cir.1977).6 If the buyer is not an aider and abettor to the sale, then I do not see how we can logically hold that someone who renders assistance to the buyer can be guilty of distribution.7

*97At best, from the government’s point of view, the statutory language is ambiguous; conceivably, it could be stretched, albeit with some difficulty, to reach the conduct of one who assists the buyer and thereby ultimately makes it easier for the seller to effect the sale. If this is so — and I think that such an expansion tends to distort the ordinary meaning of the words “aiding and abetting” and “distribution” — then the present case surely provides an appropriate occasion for invoking the rule of lenity.

“The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself.” United States v. Wiltberger, 5 Wheat (18 U.S.) 76, 95, 5 L.Ed. 37 (1820); Dupree, supra, 583 A.2d at 1004 n. 1 (D.C.1990) (concurring opinion).8 It “ ‘rests on the fear that expansive judicial interpretation will create penalties not originally intended by the legislature.’ ” Riggs, supra, 581 A.2d at 1262 (quoting 3 N. Singer, Sutherland, Statutory Construction, § 59.03, at 11 (4th ed. 1986)). “This policy embodies the instinctive distaste against men [and women] languishing in prison unless the lawmaker has clearly said they should.” United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971) (quoting H. Friendly, Mr. Justioe Frankfurter and the Reading of Statutes (1967)). Distribution of cocaine is now subject to a mandatory minimum penalty which restricts the judge’s traditional sentencing discretion, and application of the rule of lenity is especially appropriate. Winters v. Ridley, 596 A.2d 569, 573 n. 5 (D.C.1991) (per curiam) (Schwelb, J., concurring).

Dismissing the rule of lenity with a correct but patently inapposite aphorism,9 my colleagues construe “aiding and abetting” quite broadly, and go on to treat aid directed to the buyer as though it were the far more serious offense of providing assistance to the seller. They acknowledge that there may be “humanitarian or policy considerations favoring the dissent’s approach,” id. at 92, but insist that we should not concern ourselves with such considerations, and must instead leave them to the legislature. It is here, in my view, that the majority’s logic demonstrably founders.

The language of the statute, as I have shown, is not so plain that the only reasonable construction of it inexorably draws the unfortunate Ms. Lowman within its ambit. If there is an ambiguity, we surely ought not to resolve it by construing a criminal statute as expansively as the majority does. Even in cases where the governing text is a good deal more favorable to the prosecution than the language of the statutes on which the majority relies here, courts need not and should not slavishly follow that text to reach an unjust result. Mendoza v. United States, 565 F.2d 1285, 1289-90 (5th Cir.1978). “General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character.” United States v. Kirby, 74 U.S. (7 Wall) 482, 486-87, 19 L.Ed. 278 (1868) (emphasis added); see also Consumers Union of United States v. Walker, 79 U.S.App.D.C. 229, 230, 145 F.2d 33, 34 (1944) (quoting Kirby). When a criminal statute is broadly construed in a manner which, as the majority virtually acknowledges, disregards “humanitarian” considerations, then surely this is injustice.

Justice Chase’s language for the Court in Noonan v. Bradley, 76 U.S. (9 Wall.) 394, 407, 19 L.Ed. 757 (1869), has the ring of conviction and the force of truth:

[W]hen an instrument is susceptible of two constructions — the one working injustice and the other consistent with the right of the case — that one should be favored which standeth with the right.

In Noonan, to be sure, the Court was talking about a contract between private parties.

*98The principle so eloquently enunciated in Justice Chase’s opinion, however, surely applies with even greater force to legislation, see Kirby, supra, particularly where, as here, we are dealing with a criminal statute which contains a mandatory minimum feature and which deals so harshly with the liberty of the citizen.

B. Legislative History.

Neither party has cited any pertinent legislative history, and I am unaware of any that deals directly with the issue here presented. The materials that are available persuade me, however, that the legislature never intended to treat conduct such as Ms. Low-man’s as distribution of cocaine, or as warranting the imposition of a mandatory minimum penalty.

According to the Report of the Judiciary Committee, see maj. op. at 8, a central purpose of the enactment of the local statute was to abolish the “unilateral approach” of the former Uniform Narcotics Act, which was viewed as not discriminating sufficiently between serious and less serious offenders, and to “introduce a system in which the penalty for prohibited conduct is graded according to the nature of the offense and the schedule of the substance involved.” See Long, supra, 623 A.2d at 1150 n. 13 (emphasis added) (quoting Report).10 The emphasis in the Committee Report on proportionality between crime and punishment belies any suggestion that the legislation was designed to require severe punishment, including prolonged incarceration, for an individual who, in response to a prospective buyer’s inquiry, did no more than simply inform that buyer where drugs could be purchased, walk with him to a prospective seller, and inquire whether cocaine was available. The “nature” of Ms. Lowman’s offense is surely different from, and substantially less grave than, distribution in the ordinary meaning of that word.

C. The Case Law.

According to the majority, this appeal is controlled by Griggs v. United States, 611 A.2d 526 (D.C.1992). I must respectfully disagree.

In that case, which was originally decided by unpublished memorandum opinion and judgment (MOJ), id. at 526 n. *,11 the defendant, Griggs, led a female undercover police officer to his codefendant, James Williams, who was in possession of cocaine for sale. Evidently attempting to vouch for the officer’s reliability, Griggs told Williams that the officer was Griggs’ cousin. Williams then sold cocaine to the officer. Both Williams and Griggs were convicted of distribution. An impartial jury could rationally find that the only plausible reason for Griggs to represent that the officer was his cousin was in order to encourage and induce Williams to sell cocaine to her. Moreover, such a jury could reasonably conclude from Griggs’ remark about his supposed relationship with the officer that Griggs was screening potential customers for Williams (albeit with less than exemplary12 fidelity) and that he was therefore in league with Williams. Under these circumstances, the prosecution made out a sufficient case of aiding and abetting to warrant the denial of a motion for judgment of acquittal. To read Griggs as holding more than that, and as standing for the proposition that anyone who helps a buyer find a seller is guilty of distribution, is to extract that decision from its context.13

*99In the present case, on the other hand, Ms. Lowman made no representation to the sellers regarding Johnson’s reliability as a potential customer, nor did she say anything else to persuade or induce them to sell. Rather, she simply asked Carter whether he had any 20’s for sale. There was no evidence that she was working for (or together with) Carter or the juvenile. Indeed, if she had been one of Carter’s “runners” or “jugglers,” she would presumably have known what merchandise he had available, and the question which she asked Carter would have been superfluous. The scenario which the court encountered in Griggs was thus materially different from the situation presented here, and that decision cannot fairly be viewed as controlling.14

The better-reasoned decisions in other jurisdictions suggest that a conviction of distribution on these facts should not be sustained. In Morei v. United States, 127 F.2d 827 (6th Cir.1942), Beach, an undercover agent, contacted Platt, a physician, and asked Platt to sell him heroin. Platt stated that he did not have any, but told Beach the name and address of Morei as a potential supplier, and directed Beach to tell Morei that Platt had sent him. Beach purchased heroin from Morei, and Platt was eventually charged as an aider and abettor and the jury found him guilty.

The appellate court reversed Platt’s conviction. The court explained that the prosecution was required to prove the existence of

a community of unlawful intention between [Platt] and the perpetrator of the crime. The concept of an accessory before the fact[15] presupposes a prearrangement to do the act.

Id. at 831 (citation omitted; emphasis added). The court went on to state that

[tjhere was no community of scheme between him and the other defendants. They shared in no common intent or plan, nor was there any prearrangement or concert of action. Dr. Platt was paid nothing and it is not claimed that he asked for any remuneration or expected to receive anything from the claimed transaction.... This is not the purposive association with the venture that, under the evidence in this case, brings Dr. Platt within the compass of the crime of selling or purchasing narcotics, either as principal, aider and abettor, or accessory before the fact.

Id. at 831-32.

The Morei decision is now more than half a century old, but its reasoning is cogent and continues to persuade.16 A number of courts have either explicitly followed Morei or adopted essentially the same reasoning. I advert briefly to a few of the decisions.

In State v. Gladstone, 78 Wash.2d 306, 474 P.2d 274 (1970), Gladstone gave a police informant the name of one Kent as an individu*100al who would sell marijuana. He also provided directions to Kent’s home, and drew the informant a map.17 Kent thereafter sold drugs to the informant. Following Morei, and quoting at length from that decision, the court held this evidence insufficient to show aiding and abetting because Gladstone did not induce, counsel or encourage Kent to sell, and because Gladstone derived no benefit, consideration or reward. Id. at 278-79.

In People v. Gordon, 32 N.Y.2d 62, 343 N.Y.S.2d 103, 295 N.E.2d 777 (1973), the defendant, Gordon, gave Cryan, an undercover trooper, the name of Newlon as a dealer in narcotics, and provided Cryan with directions to Newlon’s residence. After Newlon sold marijuana to Cryan, Gordon was convicted as a “facilitator” of a felony. The Court of Appeals, in an opinion by Chief Judge Fuld in which the prosecution’s theory was characterized as “unusual,” id. 343 N.Y.S.2d at 106, 295 N.E.2d at 779, reversed Gordon’s conviction. The court held, inter alia, that while Gordon may have been aiding Cryan to possess a dangerous drug, that offense was a misdemeanor only. The court concluded that there was insufficient evidence to sustain Gordon’s conviction.

In Bowles v. State, 265 Ark. 457, 579 S.W.2d 596 (1979), Baker, an undercover officer, asked the defendant Bowles, a bartender, where he could buy large quantities of marijuana. Bowles referred Baker to Cash, and Baker purchased a large supply of marijuana from Cash. Bowles was charged and convicted as an accomplice to the delivery of a controlled substance. In reversing Bowles’ conviction, the court adopted the rationale of other jurisdictions which have held that a “facilitator” of a sale of illicit drugs is not an accomplice of the seller, so long as he is interested only on behalf of the buyer. Id. 579 S.W.2d at 598.18

In Daigger v. State, 268 Ark. 249, 595 S.W.2d 653 (1980), undercover agents attempted to purchase LSD from Taylor, but could not agree on a price. Taylor then took the agents to Mr. and Mrs. Daigger, who effected a sale. Taylor and both Daiggers were convicted of “delivery” of LSD. The court affirmed the convictions of the Daig-gers, but reversed as to Taylor. Citing its earlier decision in Bowles, supra, the court held that

a man who simply introduced the buyer to the seller was not guilty of delivery. The middleman must take a more active part to be a principal or even an accomplice.

Id. 579 S.W.2d at 654 (emphasis added).

In Davila v. Texas, 664 S.W.2d 722 (Tex.Cr.App.1984) (en banc) Chism, an undercover agent, visited the defendant, Gloria Davila, at her residence. He told her that he wanted to buy heroin. Mrs. Davila spoke to her husband, Cosme, and told him what Chism wanted. Cosme then sold Chism four balloons containing heroin. Mrs. Davila was convicted of delivery of heroin by “constructive transfer.” On appeal, the court reversed Mrs. Davila’s conviction, holding that there was no proof that the contraband was under her control, and that her “act in merely relaying an offer from buyer to seller was not sufficient to prove that the seller acted at [her] ‘instance or direction.’” Id. at 725.19

In People v. Bryant, 106 A.D.2d 650, 483 N.Y.S.2d 117 (2d Dept.1984), an undercover officer and an informant approached Bryant in a bar and indicated that they wished to purchase cocaine. Bryant pointed to a man seated in another part of the bar and said: “Go see Michael and tell him I said it’s okay to serve you.” Id. 483 N.Y.S.2d at 118. The *101two ostensible purchasers did so, a sale followed, and Bryant was subsequently convicted of sale of cocaine. In reversing his conviction, the court noted that

[t]he purchase was suggested by the buyer and she paid the seller directly. There is not a scintilla of evidence to establish any previous relationship between defendant and Michael nor to show that defendant stood to profit from the sale. Under the circumstances, the judgment must be reversed and the indictment dismissed.... It is well established that one who participates in a sale of illegal narcotics solely to assist the buyer and has no direct interest in the contraband being sold cannot be convicted of criminal sale of a controlled substance.

Id. 483 N.Y.S.2d at 118-19 (citations omitted).20

My colleagues seem to think it important that Ms. Lowman accompanied the officer to the scene of the sale. As noted above, however, the defendants in Daigger, Davila and Bryant were likewise where the action was. Walking over with the officer and inquiring whether Carter had “twenties” may constitute more help to the buyer than would be provided by staying away, but I do not think it can logically convert Ms. Lowman’s conduct into aiding and abetting the sale.

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To be sure, there are decisions sustaining convictions in comparable circumstances. See, e.g., United States v. Tyler, 758 F.2d 66, 70-71 (2d Cir.1985) (reversing conspiracy conviction but affirming aiding and abetting conviction because defendant who helped willing buyer to locate willing seller brought about a sale that, without his participation, would not have been made); Haywood v. State, 562 So.2d 297, 300 (Ala.Cr.App.1990) (defendant who brought buyer and seller together and communicated the buyer’s desire to the seller thus “aided in the distribution of a controlled substance”); Annotation, supra, 42 A.L.R.3d at 1076-78, and authorities there cited. It is difficult to generalize, because cases raising the issue arise in a wide variety of scenarios; two cases are seldom precisely alike. In my opinion, in any event, the courts that follow the reasoning typified by the decisions in Morei and Daigger have the better of the argument. I would join them.

III.

CONCLUSION

This is a case of considerable importance. In my view, the majority decision tends to frustrate the legislative design that the courts recognize the differences between various kinds of drug offenders, and that they impose punishment in each case that is appropriate to the offense. If, by pointing out a drug dealer to a purchaser and inquiring about the dealer’s wares, Ms. Lowman became a distributor herself for purposes of punishment, then our prisons will continue to be filled by comparatively minor participants in the destructive drug trade. The “big enchiladas,” meanwhile, seldom venture out into the street, and are far less likely to be apprehended. The result — that people like Ms. Lowman are classed as felons and sentenced to long prison terms — is not only manifestly unjust, but also contrary, at least, in my view, to the Council’s intent and to the canons of construction applicable to criminal statutes.

If Ms. Lowman is guilty of distribution, what is the next stop down the line? Does a cab driver who accedes to a customer’s request to drive him to a brothel thereby render himself punishable as a pimp? Is a wife subject to a mandatory minimum penalty for aiding and abetting distribution if, seeing her addict husband in the agony of withdrawal pains, and desperate to alleviate his suffering, she drives him to a dealer, who then sells him heroin? If the answer to these questions is no, then we should be careful about how “creatively” we construe our Controlled Substances Act in cases such as this.

Undercover officers frequently approach citizens like Ms. Lowman in the drug-ridden *102neighborhoods throughout our city in which these people have to live. Seeking to apprehend the drug traffickers who make life miserable for their neighbors, the police often ask these citizens leading questions. I have no problem with that; the officers are doing their job. Apparently, however, a less than sagacious answer to such a leading question can propel a citizen perilously near the prison gate. Before we conclude, on as little evidence as the prosecution produced against Ms. Lowman, that our elected representatives intended to treat her conduct as distribution, I suggest that we take a long hard look at the problem en banc.

. Ms. Lowman, a first offender, qualified for the "addict exception,” Dupree, supra, 583 A.2d at 1002-03, and did not receive a mandatory minimum sentence. She was nevertheless sentenced to serve a minimum of two years in prison, twice the maximum sentence for unlawful possession of cocaine.

. As my colleagues point out, Ms. Lowman testified that she knew the juvenile and had seen Carter before but did not know him. I do not understand them to contend that this level of acquaintance (or lack thereof) establishes that she was somehow in league with one or both of them, although there may be some intimation to that effect in the majority opinion. Maj. op. at 91. If, as the better reasoned authorities hold, proof of community of unlawful purpose is required, then surely Ms. Lowman cannot be convicted, absent other evidence of collusion, simply because she knew one of the sellers and recognized the other.

. Ms. Lowman testified that it was Officer Johnson who made this inquiry, but for purposes of this appeal we must accept the officer’s version. Green v. United States, 608 A.2d 156, 158 (D.C.1992).

. As the court recently stated in United States v. Salamanca, 300 U.S.App.D.C. 384, 393, 990 F.2d 629, 638, (1993), in which the evidence of aiding and abetting was held to be insufficient,

[w]e do not fulfill our duty through rote incantation of the principles governing a review of sufficiency of evidence followed by summary affirmance.... The sufficiency of the evidence warrants particular scrutiny when the evidence strongly indicates that a defendant is guilty of a crime other than that for which he was convicted, but for which he was not charged. Under such circumstances, a trier of fact, particularly a jury, may convict a defendant of a crime for which there is insufficient evidence to vindicate its judgment that the defendant is blameworthy. Compelling evidence that a defendant is guilty of some crime is not, however, a cognizable reason for finding a defendant guilty of another crime.

(Citations omitted and internal punctuation adapted; emphasis added). In the present case, there was strong evidence that Ms. Lowman aided and abetted the possession of cocaine, an offense different from the one of which she was convicted. Accordingly, the need for “particular scrutiny” which the court recognized in Sala-manca is equally imperative here.

. For present purposes, I see no material difference between an accomplice and an aider or abettor. See Christian v. United States, 394 A.2d 1, 48 (D.C.1978) (per curiam), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979); Egan v. United States, 52 App.D.C. 384, 390, 287 F. 958, 964 (1923).

. Cf. Thompson v. United States, 30 App.D.C. 352, 362-64 (1908) (pregnant woman who requested defendant to perform illegal abortion did not aid and abet abortionist and therefore was not his accomplice).

. It is true that the former "procuring agent” defense, which immunized an agent who distributed to his own principal from prosecution for sale, has been legislatively abolished. See Long v. United States, 623 A.2d 1144, 1149 n. 10, (D.C.1993); Swiderski, supra, 548 F.2d at 451. A transfer of drugs now constitutes distribution "whether or not there is an agency relationship.” D.C.Code § 33-501(9) (1988). In my view, however, this legislative change has no bearing on this case. Ms. Lowman did not distribute cocaine either to a principal or to anyone else.

. The concurring opinion in Dupree was endorsed in substance by the majority. Id. at 1004 n. 5.

. According to my colleagues, the rule of lenity is not to be used to "beget” an ambiguity. Maj. op. note 6. By insisting that one who has no association with the seller, and who provides information to the buyer, nevertheless "unambiguously” aids and abets the distribution of cocaine, the majority hangs its hat on a truly insecure and wobbly peg. A chain is only as strong as its weakest link.

. My colleagues acknowledge, maj. op. at 92, that the legislative history reflects the Council's intention to distinguish between "possession” and "distribution” and to view the latter offense as more severe. Surely a logical corollary of this distinction is to treat one who aids the seller (but is subordinate to him) more severely than one who aids the buyer or possessor (but is subordinate to him).

. Perhaps because Griggs was originally an unpublished opinion which could not be cited as precedent, the court eschewed any detailed discussion of the statutory language and legislative history, and did not deal with the numerous decisions of courts in other jurisdictions which have addressed similar issues.

. I use this adjective, of course, from Williams’ perspective rather than from my own.

. It is true that in Griggs, as the majority points out, maj. op. at 91 n. 4, the defendant asked for payment from the buyer. This does not detract, however, from the decisive fact that the defendant affirmatively encouraged the seller to sell by implicitly vouching for the buyer’s trustworthiness and eligibility to buy.

. The other decisions of this court cited by the majority are even more readily distinguishable than Griggs. In Green, supra, 608 A.2d at 157, the defendant, Green, sought out a buyer and brought him to the codefendant seller. Upon his arrest. Green was found to be in possession of $297 in cash, as well as an electronic beeper. If a picture is worth a thousand words, this tangible evidence was worth a million. In the case at hand, nothing incriminating was recovered from Ms. Lowman.

In Stevenson v. United States, 608 A.2d 732 (D.C.1992) — another converted MOJ — Stevenson watched while his confederate, Washington, sold cocaine to an undercover officer. Washington received a pre-recorded $20 bill from the officer and handed it to Stevenson. This bill was found on Stevenson at the time of his arrest shortly thereafter. Obviously, an impartial jury could reasonably conclude that Stevenson was in league with Washington.

In Minor v. United States, 623 A.2d 1182, (D.C.1993), the defendant "participate[d] in the sale with the seller by bringing the seller to the buyer and by quoting the seller's price to the buy-er_" Id. at 1186 (emphasis added). The two men were plainly working with one another, a critical factor which is altogether missing here.

. The court characterized any difference between an "accessory before the fact” and an "aider and abettor” as unimportant for the purposes of the case. Id., 127 F.2d at 831.

. It is true, as my colleagues point out, maj. op. at 91 n. 5, that the United States Court of Appeals for the Sixth Circuit has "distinguishfed]” Morei in United States v. Winston, 687 F.2d 832, 835-36 (6th Cir.1982). This is not astonishing, since in Winston, the defendant "acted as a salesman for [the seller],” "set up the sale,” and quoted the seller’s price to the buyer. Id. at 835. Any intimation that Winston somehow casts doubt on Morei is incorrect.

. In my opinion, one who draws a map for the buyer facilitates a sale just as much as one who shows the buyer where the seller is and walks over to the scene. If Gladstone was not aiding and abetting distribution, then neither was Ms. Lowman.

. Cash testified that Bowles told him that it was safe to do business with Baker. The court held this insufficient to show that Bowles facilitated the sale, rather than the purchase, of marijuana. Id., 579 S.W.2d at 599.

.In Texas, a person is criminally responsible for the conduct of another if he aids or attempts to aid its commission. See, e.g., Buitureida v. State, 684 S.W.2d 133, 144 (Tex.App.1984). The majority's attempt to distinguish the case on the ground that it did not involve "aiding and abetting,” see maj. op. at 91 n. 5, is therefore unavailing.

. In New York, as in the District, one who aids and abets another to commit a crime is liable as a principal. People v. Van Denburg, 107 A.D.2d 891, 483 N.Y.S.2d 836, 838 (3d Dept.1985). Accordingly, contrary to my colleagues’ assertion, maj. op. at 91 n. 5, the court in Bryant necessarily held that the accused was not aiding and abetting the seller.