District of Columbia

Court of Appeals

No. 13-CF-1131 

KEVIN YOUNG,

Appellant, 

v. CF2-17496-12

 

UNITED STATES, 

Appellee.

On Appeal from the Superior Court of the District of Columbia

Criminal Division

BEFORE: WASHINGTON, Chief Judge; BECKWITH, Associate Judge; and REID, 

Senior Judge.

J U D G M E N T 

 

 This case came to be heard on the transcript of record and the briefs filed, 

and was argued by counsel. On consideration whereof, and as set forth in the opinion 

filed this date, it is now hereby 

 ORDERED and ADJUDGED that appellants conviction for possession with 

intent to distribute (―PWID‖) is affirmed. The case is remanded to allow the trial court to 

vacate appellant‘s conviction for possession of liquid PCP.

For the Court:

 

Dated: July 28, 2016.

Opinion by Associate Judge Corinne Beckwith.

JUL 28 2016
Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound 

volumes go to press. 

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CF-1131 

KEVIN YOUNG, APPELLANT,

V.

UNITED STATES, APPELLEE. 

Appeal from the Superior Court

of the District of Columbia

(CF2-17496-12)

(Hon. Michael Ryan, Trial Judge)

(Argued April 14, 2015 Decided July 28, 2016) 

Cecily Baskir for appellant.

Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. 

Machen Jr., United States Attorney at the time the briefs were filed, and Chrisellen

R. Kolb and Kara Traster, Assistant United States Attorneys, were on the brief, for 

appellee. 

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and REID, 

Senior Judge.

BECKWITH, Associate Judge: After police officers discovered two partially

filled vials of liquid PCP in the driver-side door of appellant Kevin Young‘s SUV, 

Mr. Young was arrested and charged with possession of a controlled substance

7/28/16
2

with intent to distribute (PWID) and possession of liquid PCP. See D.C. Code 

§§ 48-904.01 (a)(1), (d)(2) (2012 Repl.). Before trial, Mr. Young‘s nephew 

Maurice Young1indicated that if he were granted immunity from criminal charges,

he would testify that he was the last person to have driven the vehicle. The 

Attorney General of the District of Columbia declined to grant Maurice immunity

from any charges related to drug possession and underage drinking, and in a Carter

proceeding regarding the reasonableness of that decision, see Carter v. United 

States, 684 A.2d 331 (D.C. 1996) (en banc), the trial court ruled that no 

reasonableness inquiry was required because Maurice‘s testimony was not ―clearly 

exculpatory.‖ Mr. Young was ultimately convicted after a trial in which Maurice 

invoked his Fifth Amendment rights when asked if he had been the last driver of 

the vehicle. Mr. Young contends that the trial court erred by ruling that the 

testimony was not clearly exculpatory. We agree that the proffered testimony was 

exculpatory, but we affirm the trial court‘s ruling because the proffered testimony 

was not material. We also conclude that the government provided sufficient 

evidence of Mr. Young‘s intent to distribute to support his PWID conviction, but 

we remand for the trial court to merge Mr. Young‘s convictions for PWID and 

possession of liquid PCP.

 

1

 To avoid confusion, we will refer to appellant Kevin Young as Mr. Young 

and to his nephew as Maurice.
3

I.

According to the evidence at trial, in October 2012, Metropolitan Police 

Department Officer Christopher Clayton responded to a disorderly conduct call 

regarding a man and a boy who were arguing at an apartment building in the 

southeast quadrant of the District. The officer approached the two, who were later 

identified as Mr. Young and his nephew Maurice, to ask them ―what was going 

on‖ and to determine ―[i]f any crime had occurred.‖ The officer noticed a white 

SUV ―just in a parking lot, all by itself, with the engine running,‖ and another 

officer on the scene, William Hawkins, went to ―check out‖ the car. Using his 

flashlight to peer into the car, Officer Hawkins spotted a belt with an empty gun 

holster and handcuff case in the back seat of the car and two vials in the driver-side 

door handle. Officer Hawkins went back and whispered this information to Officer 

Clayton, and Officer Clayton asked Mr. Young if he was a police officer. 

According to Officer Clayton, Mr. Young said he was not, and that he had just 

found those items. Mr. Young admitted that it was his vehicle and that he ―just 

drove up.‖ 

Mr. Young then walked over to the vehicle with the officers and opened the 

driver-side door, ―immediately plac[ing] his left hand over the two vials by the 

door handle.‖ The officers noticed a smell that they recognized as PCP. Officer 

Clayton asked Mr. Young what he was covering up, and after answering ―oils,‖ 
4

Mr. Young was arrested and handcuffed. Officer Clayton then noticed that the 

vials held an amber liquid, which (as the parties stipulated at trial) contained 5.6 

grams of liquid PCP. 

Prior to trial, Mr. Young moved to suppress the PCP and the statements he 

made during the encounter, but the trial court ruled that the officers did not engage 

in custodial interrogation within the meaning of the Fifth Amendment and that Mr. 

Young had voluntarily opened the car door, which led the officers to smell PCP 

and see the vials in plain view. At the suppression hearing, Mr. Young testified 

that he had driven the car to the apartment with his nephew as the sole passenger. 

Maurice testified similarly. But on the morning of jury selection, counsel for Mr. 

Young raised a ―Carter issue,‖ indicating that Maurice had been the last one to 

drive the car and that the drugs belonged to him.2 See Carter v. United States, 684 

A.2d 331, 344–45 (D.C. 1996) (en banc) (outlining process for judicial review of 

government‘s decision not to grant immunity to a ―crucial defense witness‖ who 

invokes his Fifth Amendment right against self-incrimination). The court 

appointed counsel for Maurice, who proffered that Maurice would testify that he 

 

2

 It appears that counsel for Mr. Young first learned this information that 

morning when the prosecutor gave him Brady material that included an officer‘s 

statement that Mr. Young told him on the night of the offense that Maurice was 

driving and that the drugs belonged to Maurice. See Brady v. Maryland, 373 U.S. 

83 (1963). Counsel then heard a similar statement directly from Mr. Young. 
5

had driven the SUV on the night in question but that he had no knowledge of the 

drugs in the SUV. The trial court concluded that Maurice had a Fifth Amendment 

right against admitting to driving under the influence (DUI) in light of testimony at 

the suppression hearing that he was intoxicated, and the court also determined that

the fact that Maurice was driving ―would be significant . . . in a chain [of facts] that 

could exculpate Kevin Young.‖ The trial court concluded that the Carter standard 

had been met,3and so the court asked the prosecutor to confer with the Office of 

the Attorney General (OAG) to discuss possible immunity for Maurice from DUI

charges as well as a potential charge of constructive possession of PCP. The OAG 

ultimately granted Maurice immunity from charges stemming from DUI and 

driving without a permit, but it declined to grant him immunity from charges 

related to drug possession and underage drinking.

4

 According to the OAG,

Maurice‘s testimony that he was driving ―would be a clear instance of perjury‖ 

because he had earlier testified during the suppression hearing that Mr. Young was 

driving. ―We cannot support that,‖ the OAG attorney said. 

 

3

 That is, the proffered testimony was ―material, exculpatory, noncumulative evidence, unobtainable from any other source.‖ 684 A.2d at 345.

4

 The OAG, rather than the U.S. Attorney‘s Office, had the authority to 

immunize Maurice from the DUI and no-permit charges because it has the 

responsibility to prosecute D.C. criminal traffic offenses. The OAG had the 

authority to immunize him from the remaining charges because he was a juvenile. 
6

Mr. Young then moved for sanctions under Carter, but the trial court 

reconsidered the question whether Carter applied at all. The court concluded that 

it had initially applied the wrong standard and that the proffered testimony did not 

―clearly exculpate‖ Mr. Young because ―the fact that it could tend to inculpate 

Maurice Young in some sort of joint constructive possession theory doesn‘t 

exculpate Kevin Young from the same theory.‖ Because the testimony was not 

―wholly exculpatory,‖ the court ruled that ―Carter‘s not implicated by it.‖ ―The 

only clear exculpation,‖ the court stated, would be if Maurice testified ―the drugs 

were mine, or I can tell you that the drugs weren‘t Kevin Young‘s.‖ 

Maurice ultimately testified at trial without immunity from the charges 

related to drug possession and underage drinking. He asserted his Fifth 

Amendment rights when asked whether he was the driver or passenger of the car 

on the last ride with Mr. Young before the police arrived. Maurice also invoked 

the Fifth Amendment when asked if he ―put those drugs in that particular car,‖ but 

after consulting with counsel, he answered the question ―[n]o.‖ On crossexamination, the government introduced Maurice‘s suppression hearing testimony 

that Mr. Young had been driving the SUV. On redirect, Maurice testified that his 

prior testimony was untruthful because he was afraid of being prosecuted, and that 

he was ―now telling the truth and taking the Fifth‖ because the government would 

not grant him immunity. 
7

The jury convicted Mr. Young of both PWID and possession of liquid PCP.

II.

On appeal, Mr. Young first argues that the trial court erred in determining 

that Carter was ―not implicated‖ because Maurice‘s testimony would not be 

―clearly exculpatory‖ to Mr. Young. The parties initially dispute whether Carter

requires the proffered testimony to be exculpatory or ―clearly‖ exculpatory. In 

laying out the four-part test, Carter uses the former term three times and the latter 

once, see generally 684 A.2d at 340–44, and our cases since have inconsistently

used one formulation or the other. Compare, e.g., Hayes v. United States, 109 

A.3d 1110, 1116 (D.C. 2015) (―exculpatory‖), with Wynn v. United States, 80 A.3d 

211, 220 (D.C. 2013) (―clearly exculpatory‖). The parties have not cited, nor have 

we found, any case in which this court analyzed the distinction or determined that

it made a difference to the holding.5

 

5

 We found only one published opinion in which the parties disputed 

whether the testimony was exculpatory. See Bell v. United States, 950 A.2d 56 

(D.C. 2008). The dispute there was factual, however, rather than legal; appellant 

proffered that the Carter witness would testify that appellant did not commit the 

crime, but the witness‘s counsel proffered that he would ―not only deny any 

culpability in the robbery, but also point the finger of blame at appellant.‖ Id. at 

61–63. The trial court credited the witness‘s counsel and found that Carter was 

not implicated. Id. at 62. In that case, the testimony was clearly inculpatory, and 

so the court had no occasion to analyze whether the proper standard was 

―exculpatory‖ or ―clearly exculpatory.‖
8

Carter adopted its four-part test from a Second Circuit case holding that 

―[d]efense witness immunity is required only upon a showing that  ̳(1) the

government has engaged in discriminatory use of immunity to gain a tactical 

advantage or, through its own overreaching, has forced the witness to invoke the 

Fifth Amendment; and (2) the witness’[s] testimony will be material, exculpatory 

and not cumulative and is not obtainable from any other source.‘‖ Carter, 684 

A.2d at 340 (quoting United States v. Rivera, 971 F.2d 876, 887 (2d Cir. 1992)). 

The Carter majority emphasized that its rule ―emanates from settled law that the 

government has a constitutional duty to volunteer exculpatory evidence to a 

criminal defendant.‖ Id. at 344 (citing United States v. Agurs, 427 U.S. 97 (1976),

and United States v. Bagley, 473 U.S. 667 (1985)). Both Agurs and Bagley involve 

applications of the Brady doctrine, under which due process is violated when the 

prosecutor suppresses ―evidence favorable to an accused . . . where the evidence is 

material either to guilt or punishment.‖ 373 U.S. at 87.

It is therefore clear that the Carter majority intended the word ―exculpatory‖ 

in its four-part standard to mean the same thing as in the Brady context.6 

 

6

 ―Favorable‖ evidence under Brady includes impeachment evidence ―as 

well as exculpatory evidence,‖ see Bagley, 473 U.S. at 676, although the Carter

court clarified that ―the defendant‘s proposed witness must be offering exculpatory 

evidence in order to begin to come within the rationale of this opinion.‖ Carter, 

684 A.2d at 344 n.17.
9

Exculpatory evidence under Brady is that evidence that ―tends substantively to 

negate guilt.‖ Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995).7 We therefore

disagree with the contention that the evidence must completely or wholly exculpate 

appellant to be considered ―exculpatory.‖ The proffered testimony here was 

favorable to Mr. Young, and thus exculpatory, because it established that another 

person was the most recent occupant of the driver‘s seat where the drugs were 

found and thus increased the likelihood that the drugs did not belong to Mr. 

Young. No more was required to meet this prong of the test.

The government argues, alternatively, that we may affirm Mr. Young‘s 

convictions on the ground that the OAG‘s decision not to immunize Maurice was 

reasonable because ―this case involved such clear indications that Maurice Young 

intended to perjure himself at appellant‘s trial.‖ We stated in Carter that a ―threat 

 

7

 Some courts have defined exculpatory evidence in a manner that conflates 

it with materiality. See Mays v. City of Dayton, 134 F.3d 809, 815 (6th Cir. 1998) 

(―[E]xculpatory evidence [is] defined as material evidence that would have a 

bearing upon the guilt or innocence of the defendant.‖ (citing Brady, Agurs, and 

Bagley)). Our case law makes clear that favorability and materiality are distinct 

concepts. See Vaughn v. United States, 93 A.3d 1237, 1244 (D.C. 2014) (stating 

that under Brady, ―the government has a constitutionally mandated obligation to 

disclose to the defense, prior to trial, information in the government‘s actual or 

constructive possession that is favorable and material‖); Miller v. United States, 14 

A.3d 1094, 1109 (D.C. 2011) (confirming that there is a duty to disclose favorable 

evidence ―even when the items disclosed subsequently prove not to be material‖ 

(citing Boyd v. United States, 908 A.2d 39, 59-60 & n.31 (D.C. 2006))). 
10

of a blatant perjury . . . may sometimes be so apparent as to be demonstrable to the 

trial judge [that] the government could not reasonably be expected to cloak in 

advance such testimony with immunity.‖ 684 A.2d at 342. We do not share the 

government‘s confidence that Maurice‘s proffered trial testimony would constitute 

perjury. At the outset, while Maurice indicated he would testify at Mr. Young‘s 

trial contrary to his testimony at the suppression hearing, he offered a plausible 

explanation for the discrepancy, and it is not at all obvious that Maurice‘s proposed 

trial testimony was the untrue account. But even leaving that question aside, the 

record reflects some ambiguity—only exacerbated by Maurice‘s apparent 

cognitive limitations8—about whether Maurice grasped the questions he was asked 

and therefore whether he believed he was giving false testimony at the suppression 

hearing or later believed his proposed trial testimony would be false.9 See In re 

 

8

 The trial court commented on these issues at a pretrial hearing, stating, ―I 

don‘t know what‘s going on with Maurice Young, but he is the first person I‘ve 

ever run into that didn‘t know how old he was, and it didn‘t seem like he was 

trying to—it didn‘t seem like he was intentionally not telling the truth.‖ Defense 

counsel likewise stated that Maurice ―has an interesting way of understanding his 

birthday. He believes each year he goes up. And his birth date goes back, which is 

why sometimes he is born 1993, sometimes he is born in ‘94 and sometimes born 

in ‘95.‖ 

9

 Compare Suppression Hr‘g Tr. at 50-51 (―Q. And you didn‘t use that car 

to get to that apartment that day, did you? A. No.‖), and (―Q. You didn‘t drive in 

the Oldsmobile to that – to the apartment, correct? A. Yes.‖), with id. at 53-54 

(―Q. And how did you get there, Mr. Young? How did you get to 5109 F Street? 

A. We drove there. Q. When you say we, who are we? A. Me and my Uncle 

(continued...)
11

White, 11 A.3d 1226, 1273 (D.C. 2011) (―Perjury is proven if the evidence shows 

that  ̳the accused testified falsely and that he did not, at the time, believe his

testimony to be true.‘‖ (alterations omitted) (quoting Boney v. United States, 396 

A.2d 984, 986 (D.C. 1979))). On these facts, we cannot say that the government‘s 

refusal to immunize Maurice was grounded in ―clear indications of potential 

perjury.‖ Carter, 684 A.2d at 342.

Further, consistent with Carter‘s purpose in balancing the defendant‘s Sixth 

Amendment right and the witness‘s Fifth Amendment right, the questions whether 

the denial of immunity is reasonable and whether sanctions against the government

are appropriate rely in part on ―whether there will be a distortion of the fact-finding 

process‖ should the government deny immunity. 684 A.2d at 345. Here, the 

government‘s refusal to immunize Maurice may have contributed to such a 

distortion when, after Maurice invoked the Fifth Amendment in response to the 

question whether he was driving the SUV, the government introduced his 

suppression hearing testimony about who was driving the vehicle and argued, 

 

(...continued)

Kevin. Q. And who drove there? A. My uncle.‖). As Mr. Young states in his 

reply brief, by the time Maurice was asked ―And who drove there?,‖ he had been 

―asked multiple variations of the same question,‖ and the questions were not 

precise about whether ―driving‖ or ―using‖ the car meant that Maurice was actually 

operating the car or merely riding in it as a passenger. 
12

based on that testimony, that Kevin Young had been driving. As a result, unless 

Maurice waived his Fifth Amendment privilege against self-incrimination to

disavow his earlier testimony, the trial record in Mr. Young‘s case would be 

―distorted‖ because the jury would hear only one side of the story—Maurice‘s 

testimony that Mr. Young was the driver. The Carter process was designed to 

alleviate this tension between Maurice‘s and Mr. Young‘s constitutional rights, and 

the government‘s actions in this case—refusing to immunize Maurice and then 

presenting his earlier testimony contrary to the testimony he was withholding 

pursuant to the Fifth Amendment—exacerbated this tension. Maurice was put into 

a difficult situation on redirect where he continued to assert the privilege but 

admitted his suppression hearing testimony was false, essentially asking the jury to 

draw a negative inference from his invocation. See Tr. 7/19/13 at 31-32 

(responding to counsel‘s question whether he was ―now telling the truth and taking 

the Fifth‖). In essence, where Carter seeks to balance the defendant‘s and the 

witness‘s rights, thereby protecting both, the government‘s introduction of 

Maurice‘s prior testimony had the opposite effect: Maurice was forced to admit to 

a crime and Mr. Young was unable to argue that Maurice was the driver of the car 

so the jury should have a reasonable doubt that he possessed the PCP found in the 

driver-side door.10 Given this concern at trial, our uncertainty about the 

 

10

 During closing argument, defense counsel argued (among other things) 

(continued...)
13

government‘s perjury contention, and the fact that the trial court never ruled on the 

reasonableness or unreasonableness of the OAG‘s decision not to immunize 

Maurice, we decline the government‘s invitation to affirm on this alternate basis.

We may nonetheless affirm the trial court ruling that Carter was ―not 

implicated‖ on these facts on any other basis apparent from the record as long as 

the appellant does not suffer ―procedural unfairness—that is, that she has had 

notice of the ground upon which affirmance is proposed, as well as an opportunity 

to make an appropriate factual and legal presentation with respect thereto.‖ In re 

Walker, 856 A.2d 579, 586 (D.C. 2004). Here, the parties‘ briefing devoted ample

attention to whether the proffered testimony was ―clearly exculpatory,‖ as the 

government put it, or whether the testimony would ―introduce some reasonable 

doubt about whether Mr. Young had constructive possession of the drugs,‖ in the 

words of Mr. Young. In fact, Mr. Young argued that the evidence that Maurice 

was driving would ―be enough to create reasonable doubt for a reasonable jury as 

to whether Mr. Young—as a recent passenger in the car—had the necessary ability 

 

(...continued)

that because Maurice invoked the Fifth Amendment in response to the question 

whether he was the last driver of the vehicle, there was ―a reasonable doubt,‖ but 

he could not explain exactly why or how, and the trial court properly sustained an 

objection to defense counsel‘s statement that because Maurice pleaded the Fifth

―you [the jury] can infer that he has something to hide.‖ See Martin v. United 

States, 756 A.2d 901, 905 (D.C. 2000). 
14

and intent to exercise dominion and control over the drugs—an element necessary 

to prove both the possessory offenses with which he was charged.‖ This argument, 

in our view, sounds in ―materiality,‖ which as noted above is a separate component 

of the four-part Carter test. If Maurice‘s proffered evidence was not material

within the meaning of Carter, we will affirm the trial court‘s ruling that Carter was 

―not implicated‖ on these facts.11

Under the Brady doctrine—and therefore under Carter, as it incorporated the 

Brady standard—evidence is material if ―there is a reasonable probability that . . . 

the result of the trial would have been different‖ had the evidence been presented. 

Bagley, 473 U.S. at 684. Here, we conclude that Maurice‘s proffered testimony

that he was the last driver would not give rise to a reasonable probability of a 

 

11

 While in its brief the government analyzes the effect of the Carter ruling 

in terms of harmlessness rather than materiality, resolving this matter on 

materiality grounds enables us to analyze the disputed components of Carter‘s 

four-part test and avoids the illogic of an approach that implicitly assumes that the 

materiality requirement is met while undertaking a nearly identical harmlessness 

inquiry. The respective approaches would in any event lead to the same result on 

the facts of this case. See Wonson v. United States, No. 12-CF-1433, slip op. at 19 

(D.C. Apr. 14, 2016) (amended July 21, 2016) (―But assuming that the government 

should have disclosed the full report . . . to the defense prior to trial, Mr. Wonson 

has no Brady claim on appeal. Our conclusion, with the benefit of hindsight, that 

the admission of the bullet evidence was harmless, likewise compels a conclusion 

that this report would not have satisfied the materiality component of a successful 

Brady claim.‖); see also id. n.25 (―This conclusion has no bearing on the 

government‘s disclosure obligations pretrial.‖).
15

different outcome in Mr. Young‘s case.

12

 As an initial matter, although Maurice 

invoked the Fifth Amendment rather than testify that he had been driving the 

vehicle, the jury heard him disavow his prior testimony that he was not the 

vehicle‘s driver. And even assuming Maurice was the driver, the government 

presented considerable evidence of Mr. Young‘s ―ability and intent to exercise 

dominion and control over the drugs,‖ including that Mr. Young (1) was riding in a 

car that smelled of PCP, (2) covered up the PCP when the door was opened, and 

(3) asserted (incorrectly) that the vials contained ―oils.‖ Moreover, Mr. Young 

claimed ownership of the car and Maurice denied ownership of the drugs. In these 

circumstances, we are persuaded that Maurice‘s proffered testimony was not 

material within the meaning of Carter13 and that the trial court did not err in 

 

12

 Mr. Young does not argue that evidence that Maurice was the driver 

would affect the government‘s ability to prove intent to distribute. We discuss the 

evidence to support that element of the PWID charge infra.

13

 While Brady materiality determinations are usually made post-trial based 

upon a review of the record of the trial that played out in the absence of the Brady 

evidence, see In re Kline, 113 A.3d 202, 208-09 (D.C. 2015), trial courts that 

resolve Carter issues prior to or during trial evaluate the materiality of the 

testimony at issue based upon proffers and any other evidence that has been 

presented at the time. Here, while the evidence at trial inevitably informs our 

conclusion that Maurice‘s testimony was not material, we note that much of that 

evidence—including the fact that Mr. Young was riding in a car that smelled of 

PCP, that he claimed ownership of the car, that he sought to hide the PCP, and that 

he inaccurately described the vials as containing ―oils‖—was presented at the 

suppression hearing and was known to the trial court when it made its Carter 

ruling. But see Vaughn, 93 A.3d at 1262 n.29 (noting that generally ―[t]he 

(continued...)
16

concluding that Carter was ―not implicated‖ on these facts.

III.

Mr. Young next argues that the record contains insufficient evidence of 

intent to distribute to support that element of the PWID charge. We overturn a 

conviction if ―the evidence, when viewed in the light most favorable to the 

government, is such that a reasonable juror must have a reasonable doubt as to the 

existence of any of the essential elements of the crime.‖ Rivas v. United States, 

783 A.2d 125, 134 (D.C. 2001) (en banc) (quoting Curry v. United States, 520 

A.2d 255, 265 (D.C. 1987)).

Mr. Young possessed a very small amount of PCP—only six milliliters of 

liquid, 5.6 grams total, 21.5% (1.2 grams) of which was PCP. It was contained in 

two half-ounce glass vials that were each a quarter full. The government presented 

the expert testimony of MPD Officer Joseph Abdalla, who explained that in his 

experience, half-ounce glass vials are ―usually‖ purchased by street dealers for 

$220 from midlevel dealers, and street dealers then take the vials and stand ―in an 

open air market,‖ where they can earn $450 to $500 distributing the liquid to 

 

(...continued)

materiality assessment this court conducts on appellate review is necessarily 

different from the materiality assessment‖ that can be made pretrial). 
17

customers who dip cigarettes in the PCP solution and smoke them.

14

 Officer 

Abdalla opined that the vials in this case were ―identical to the half-ounce vials 

which a street dealer purchases.‖ He further indicated that he had learned from the

experience of undercover police officers that ―[y]ou can‘t walk up on the street 

corners and ask to b[u]y a wholesale quantity such as half-ounces and ounces of 

PCP.‖ 

This evidence is sufficient for a reasonable jury to infer that Mr. Young 

intended to distribute the liquid PCP found in his car. See In re W.R., 52 A.3d 820, 

822 (D.C. 2012) (noting that the ―packaging of narcotics‖ can provide evidence of 

intent to distribute). Even though the small amount of drugs could have been

consistent with personal use,15 ―relatively small amounts of drugs may be sufficient 

to further prove that the drugs are for sale‖ when ―their packaging is suited for 

distribution.‖ Rivas, 783 A.2d at 147.

 

14

 See Scott v. State, 808 P.2d 73, 76 (Okla. Crim. App. 1991) (noting that 

vials ―are used in the trade for dipping cigarettes in single doses for sale‖).

15

 Officer Clayton, the arresting officer, swore in the criminal complaint that 

the amount of PCP seized had an approximate street value of $4,200 and was 

enough for approximately 170 dippers. Officer Abdalla‘s expert testimony 

indicated it was enough for only nine dippers, a street value of $180. 
18

IV.

Mr. Young argues that his convictions for possession of liquid PCP and 

PWID should merge under the Double Jeopardy Clause of the Fifth Amendment. 

The government does not object to merger in this case, and we agree that merger is 

proper.

―Discerning legislative intent is key in determining whether offenses merge, 

as  ̳the question of what punishments are constitutionally permissible is not 

different from the question of what punishments the Legislative Branch intended to 

be imposed.‘‖ Graure v. United States, 18 A.3d 743, 765 n.31 (D.C. 2011) 

(quoting Byrd v. United States, 589 A.2d 386, 388-89 (D.C. 1991)). The 

legislative history of the Liquid PCP Possession Amendment Act of 2010 shows 

that the D.C. Council intended to create an ―exception‖ for liquid PCP to the 

general rule that simple possession of a controlled substance is a misdemeanor. 

D.C. Council, Report on Bill 18-556 at 1 (Apr. 13, 2010). This provision 

essentially acts as a penalty enhancement for possession of PCP when the drug is 

in liquid form, and the Council did not demonstrate any intent to abrogate the wellaccepted principle that possession is a lesser-included offense of PWID. See 

Brockington v. United States, 699 A.2d 1117, 1120 (D.C. 1997). In fact, the 

committee report indicates that the Act ―is targeted at mere possession of liquid 
19

PCP,‖ so ―the penalty should be lower than that of possession with the intent to 

distribute other drugs, such as marijuana.‖ Report on Bill 18-556 at 8.

In addition, one of the two reasons the Council gave for this enhancement 

was that ―possession of liquid PCP is rarely consistent with personal use‖ because 

PCP ―typically is distributed as a liquid but not consumed in that form.‖ Report on 

Bill 18-556 at 1, 5. If the Council intended to target possession of liquid PCP 

because it often indicates intent to distribute, it would be peculiar for the Council 

to have also intended for defendants to be separately convicted of PWID. It 

appears instead that the Council recognized that in many cases it is difficult for the 

government to prove intent to distribute, so it increased the penalty for mere 

possession of liquid PCP to ―enable the District to better address the fight against 

PCP—a dangerous and destructive drug—by going after the distributors.‖ Id. at 6. 

Mr. Young‘s conviction for PWID is affirmed. We remand to allow the trial 

court to vacate his conviction for possession of liquid PCP.

So ordered.