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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CM-370

DARNELL W. KORNEGAY, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CMD-14607-17)

(Hon. Patricia A. Broderick, Trial Judge)

(Argued October 23, 2019 Decided September 3, 2020)

Nigel A. Barrella for appellant.

Kevin Birney, Assistant United States Attorney, with whom Jesse K. Liu, 

United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, and Andrea 

Coronado, Assistant United States Attorneys, were on the brief, for appellee. 

Before EASTERLY and MCLEESE, Associate Judges, and STEADMAN, Senior 

Judge.

Opinion for the court by Associate Judge EASTERLY.

Dissenting opinion by Senior Judge STEADMAN at page 19.
2

EASTERLY, Associate Judge: During a search after a traffic stop, police 

found less than two ounces of marijuana on and near Darnell W. Kornegay’s 

person. Mr. Kornegay was convicted after a bench trial of possession with intent 

to distribute a controlled substance (“PWID”). Relying on recent amendments to 

the D.C. Code, he argues on appeal as he did at trial that, because it is now 

expressly lawful for an adult to possess less than two ounces of marijuana and 

because less than two ounces of marijuana in these circumstances no longer falls

within the definition of a controlled substance, it cannot be a crime to possess with 

the intent to distribute that amount of marijuana. Alternatively, he argues that the 

evidence of his intent to distribute marijuana is legally insufficient. We agree that 

it was lawful for Mr. Kornegay to possess less than two ounces of marijuana in 

these circumstances, need not address his second argument, and remand for the 

trial court to vacate his conviction.

I. Facts

Officers of the United States Park Police pulled over Mr. Kornegay, then 

twenty-two, on August 24, 2017, for a suspected window-tint violation as he was 

driving in the 2600 block of Southern Avenue Southeast. As one officer 

approached the vehicle, he noticed Mr. Kornegay reaching underneath his seat. 
3

After instructing Mr. Kornegay to roll down his window, the officer saw a clear 

plastic bag containing a “green plant like material” in the armrest of the driver’s 

door. The officer then directed Mr. Kornegay to step out of the vehicle and patted

him down. Near Mr. Kornegay’s waistband, the officer felt “an unnatural bulge” 

which turned out to be two more sandwich bags of a “green plant like material.” 

All three bags contained marijuana, the combined weight of which was 

approximately 1.73 ounces. The officers also recovered $769 in cash from Mr. 

Kornegay’s pants pocket, as well as additional empty plastic sandwich bags and a 

digital scale bearing a “green plant like material residue” from beneath the driver’s 

seat of the car.

Mr. Kornegay was charged with PWID marijuana, in violation of D.C. Code 

§ 48-904.01(a)(1) (2014 Repl. & 2020 Supp.). At a bench trial, a Metropolitan 

Police Department (“MPD”) officer testified as an expert in the “packaging, 

distribution, and sale of marijuana on the streets of the District of Columbia.” He 

testified that, with the scale, marijuana, plastic bags, and cash, Mr. Kornegay, at 

the time of his arrest, “ha[d] everything . . . need[ed] to sell marijuana.” Mr. 

Kornegay testified in his own defense. He admitted that he smoked marijuana and 

stated that on the night he was pulled over, he was heading to a birthday party and 

was taking some marijuana with him to give as a gift to the “birthday girl” and to 
4

share with friends at the party. He testified that he was carrying cash that evening 

because he liked to pay for things in cash. The court did not credit Mr. Kornegay’s 

testimony and found him guilty of PWID marijuana. This appeal followed.

II. Legal Framework

For decades, marijuana has been defined in the D.C. Code as “a controlled 

substance.” See District of Columbia Uniform Controlled Substances Act of 1981, 

D.C. Law 4-29 §§ 102(3), 212(b), 401(a)(1) (1981). As such, D.C. Code § 48-

904.01(a)(1), which makes it a crime “for any person knowingly or intentionally 

to . . . possess[] with intent to . . . distribute[] a controlled substance,” has long 

been understood to apply to marijuana in any amount.

1 But in 2014, the law 

governing marijuana changed significantly. 

 

1

 Reaching back further in time, marijuana was designated a “poison,” the 

actual sale of which without the proper license was unlawful. See An Act to 

regulate the practice of pharmacy and the sale of poisons in the District of 

Columbia, Pub. L. No. 148, ch. 2084, § 13, 34 Stat. 175, 180 (1906). See generally

Richard J. Bonnie & Charles H. Whitebread, II, The Forbidden Fruit and the Tree 

of Knowledge: An Inquiry into the Legal History of American Marijuana 

Prohibition, 56 Va. L. Rev. 971, 989–91, 998–1011 (1970) (discussing the 

evolution of the criminalization of marijuana).
5

First, the D.C. Council enacted the Marijuana Possession Decriminalization 

Amendment Act of 2014, which made it only a civil infraction for a person to 

possess or “transfer without remuneration” one ounce or less of marijuana. D.C. 

Law 20-126, § 101(a) (codified as amended at D.C. Code § 48-1201(a)). The 

impetus for the legislation was the acknowledged absence of a strong public health 

rationale for marijuana criminalization,

2

coupled with a reassessment of its costs, 

including the disproportionate arrest rates of African Americans for marijuana 

possession3and “the devastating toll” of these arrests on the individuals, their 

 

2 Marijuana Possession Decriminalization Amendment Act of 2014, D.C. 

Council, Report on Bill 20-409, at 6 (2014) (noting “that marijuana is generally 

accepted to be no more harmful or addictive than alcohol or tobacco, perhaps less 

so”).

3 The Council cited data showing, among other things, that (1) marijuana 

possession arrests had increased 62% between 2001 and 2010 and that the 

District’s per capita marijuana arrest rate in 2010 was higher than any other state in 

the nation; and (2) of the individuals arrested for a single count of marijuana 

possession in the District between 2010 and 2013, the percentage of African 

American arrestees was never lower than 87.72% and went as high as 93.77%, 

even though African Americans are only about half of the District’s population and 

the use of marijuana by blacks and whites is comparable. Report on Bill 20-409, at

3–4.
6

families, and communities,4as well as the diversion of law enforcement, public 

defender, and judicial resources flowing from these arrests.5

The Council enacted D.C. Code § 48-1201(a) against the backdrop of strong 

public opinion in favor of decriminalization of marijuana for personal use.6 But 

the District’s voters were not satisfied, and later that same year they went further 

and approved the Legalization of Possession of Minimal Amounts of Marijuana for 

Personal Use Initiative of 2014, D.C. Law 20-153 (2014). As described in the 

ballot summary, this initiative called for a 

change[ to] the laws of the District of Columbia to make 

it lawful . . . for a person 21 years of age or older to 

possess up to 2 ounces of marijuana for personal use; . . . 

[and] transfer without payment (but not sell) up to one 

ounce of marijuana to another person 21 years of age or 

older . . . .

Id. With the approval of this initiative, D.C. Code § 48-904.01(a), the umbrella 

statute that prohibits the “manufacture, distribut[ion], or possess[ion]” of a 

controlled substance “with the intent to manufacture or distribute,” was amended 

 

4 The report noted that the downstream consequences of such an arrest 

include loss of employment, housing, food assistance, and other forms of public 

support, which adversely impact both the individual arrested and their families. 

Report on Bill 20-409, at 5.

5 Report on Bill 20-409, at 4–5.

6

 Report on Bill 20-409, at 6 (citing 2013 poll showing that “75% of District 

residents support decriminalization of small amounts of marijuana”).
7

in two ways. See D.C. Code § 1-204.105 (2016 Repl.) (providing that initiatives 

adopted by voter referendum “shall be an act of the Council” after the Board of 

Elections and Ethics certifies the vote). 

First, the amended statute expressly made it “lawful and . . . not . . . an 

offense under District 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;

(C) Possess, grow, harvest, or process, within the interior 

of house or rental unit that constitutes such person’s 

principal residence, no more than 6 cannabis plants 

[meeting certain qualifications, and including a cap on 

the number of plants in a single residence]; 

(D) Possess within such house or rental unit the 

marijuana produced by such plants; provided that nothing 

in this subsection shall make it lawful to sell, offer for 

sale, or make available for sale any marijuana or 

cannabis plants.

D.C. Law 20-153, § 2(a) (codified at D.C. Code § 48-904.01(a)(1)). Second, the 

amended statute excluded from the definition of “controlled substance” and 

“controlled substances” throughout the District of Columbia Code “[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 
8

that person at that time weighs or weighed 2 ounces or less,” certain marijuana 

plants, and certain marijuana produced by those plants. Id. § 2(b) (codified at D.C. 

Code § 48-904.01(a)(1A)(A)). This provision qualified that the definition of 

“controlled substances” still “shall include any marijuana or cannabis plant sold or 

offered for sale or made available for sale.” Id. (codified at D.C. Code § 48-

904.01(a)(1A)(B)). These amendments went into effect in 2015. See id. § 5.

III. Analysis

Mr. Kornegay argues that his conviction for PWID is invalid because the 

2015 amendments to D.C. Code § 48-904.01, both in subparagraph (a)(1)(A) and

in paragraph (a)(1A), make it lawful for an adult to possess two ounces or less of 

marijuana, even if that individual has the intent to distribute. We review questions 

of statutory interpretation de novo.

7 Peterson v. United States, 997 A.2d 682, 683 

(D.C. 2010). Our aim is “to ascertain and give effect to the legislature’s intent.” 

 

7

 In its brief, the government raises, but does not advance, an argument that 

plain error, rather than de novo, review applies. As we explained in Carrell v. 

United States, 165 A.3d 314 (D.C. 2017) (en banc), however, “it is well settled in 

this jurisdiction that a full range of challenges to the sufficiency of the evidence are 

automatically preserved at a bench trial by a defendant’s plea of not guilty . . . 

[including] challenges to the requisite elements of the crime.” Id. at 326 (citation 

and internal quotation marks omitted).
9

Lopez-Ramirez v. United States, 171 A.3d 169, 172 (D.C. 2017) (internal quotation 

marks omitted). Our “primary index” is the plain language of the statute, id., 

which we examine holistically, “account[ing] for [its] full text, language as well as 

punctuation, structure, and subject matter,” Hood v. United States, 28 A.3d 553, 

559 (D.C. 2011) (internal quotation marks omitted); accord Peoples Drug Stores, 

Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (“The 

primary and general rule of statutory construction is that the intent of the lawmaker 

is to be found in the language that [they] ha[ve] used.” (internal quotation marks 

omitted)). 

D.C. Code § 48-904.01(a)(1) makes it “unlawful for any person 

knowingly . . . to . . . possess[] with intent to . . . distribute[] a controlled 

substance.” But subparagraph (a)(1)(A), a product of the 2015 amendments to the 

statute, by its plain language carves out an exception from the crime of possession 

and provides that “it shall be lawful, and shall not be an offense . . . for any person 

21 years of age or older to . . . [p]ossess . . . marijuana weighing 2 ounces or less.” 

D.C. Code § 48-904.01(a)(1)(A). The crime of possession with intent to distribute 

marijuana requires the government to prove (1) the elements of possession, namely 

that the defendant “knowingly exercise[d] direct physical custody or control over”

an illegal amount of that substance, Johnson v. United States, 40 A.3d 1, 14 (D.C. 
10

2012) (internal quotation marks omitted); see also Rivas v. United States, 783 A.2d 

125, 129 (D.C. 2001) (en banc) (defining the elements of constructive possession),

and (2) as an additional element, a defendant’s purpose to distribute the amount 

possessed. At least in the absence of some contrary provision of law, the language

of § 48-904.04(a)(1)(A) would naturally be understood to mean that possession of 

two ounces or less of marijuana is no longer a crime, without regard to whether the 

possessor intended to distribute the marijuana.

The government argues, however, that the 2015 amendments to the D.C. 

Code § 48-904.01 decriminalized only possession of marijuana for “personal use.” 

According to the government, “[o]nce someone forms the intent to distribute 

marijuana, that person has ceased to possess the marijuana merely for personal 

use” as authorized by the 2015 amendments. The weakness in this argument is that 

the words “personal use” do not appear in D.C. Code § 48-904.01; they are found 

only in the legislative history of the 2015 amendments, such as it exists, in the 

summary statement of the voter initiative. Cf. Zukerberg v. Bd. of Elections & 

Ethics, 97 A.3d 1064, 1076 n.68 (D.C. 2014) (explaining that a ballot summary 

may be a means of discerning the voting public’s intent). 
11

Although we look to legislative history to “resolve a genuine ambiguity or a 

claim that the ‘plain meaning’ [of statutory language] leads to a result that would 

be absurd, unreasonable, or contrary to the clear purpose of the legislation,” Hood, 

28 A.3d at 559, we neither discern any ambiguity in the statute regarding the 

conduct it defines as lawful, nor do we see any unreasonableness in reading the 

statute as written. Intent to distribute is almost always inferred from the 

circumstances of possession. See Abdulshakur v. District of Columbia, 589 A.2d 

1258, 1263 (D.C. 1991) (observing that “[i]ntent is a state of mind, and must 

ordinarily be proved circumstantially”). But the legislative history of the 

Marijuana Possession Decriminalization Amendment Act of 2014 reflects that the 

Council was concerned about the reliance on circumstantial evidence that could be

fully consistent with personal use, particularly in the communities that have been 

disproportionately targeted with marijuana arrests. See Marijuana Possession 

Decriminalization Amendment Act of 2014, D.C. Council, Report on Bill 20-409, 

at 10–11 (2014) (explaining that “[t]oo many marijuana users have been accused of 

distribution merely because they carry their marijuana in a particular way or 

because they don’t have a bank account” and “routinely carry monthly rent 

payments or other large payments in cash on their person”). Thus, one could 

reasonably conclude that, in order to shield from prosecution possession of less 
12

than two ounces of marijuana, it is necessary to make it lawful to possess that 

amount even if intent to distribute could also be established. 

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 

enacted8and as codified, this exception-within-an-exception is typographically 

located within subparagraph (D) (making lawful the possession of only a subset of 

cannabis,9specifically, marijuana grown from cannabis plants lawfully possessed 

within the home, as described in subparagraph (C)). But the text of this exception-

 

8

 Legalization of Possession of Minimal Amounts of Marijuana for Personal 

Use Initiative of 2014, D.C. Law 20-153, § 2(a) (2014).

9

 “[C]annabis” is defined under D.C. law as “all parts of the plant genus 

Cannabis, including both marijuana and hashish defined as follows,” while the 

term “marijuana” as defined refers specifically to “the leaves, stems, flowers, and 

seeds of all species of the plant genus Cannabis, whether growing or not.” D.C. 

Code § 48-901.02(3); see Hood, 28 A.3d at 559 (“[W]hen a legislature defines the 

language it uses, its definition is binding upon the court . . . .” (internal quotation 

marks omitted)).
13

within-an-exception plainly refers to the entirety of § 48-904.01(a).

10 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.

Because the government has not argued that the language “sell [or] offer for 

sale” in D.C. Code § 48-904.01(a)(1)(D) has any relevance to this case, we focus 

exclusively on the meaning of “make available for sale.” This phrase is not

defined in the D.C. Code. We thus construe the words in this phrase “according to 

their ordinary sense and with the meaning commonly attributed to them.”11 Tippett 

 

10

 Further it would make little sense to apply this language only to conduct 

discussed within subparagraph (D) instead of all of the lawful activities 

enumerated in subparagraphs (A) through (D). By contrast, subparagraph (C) 

contains a different exception-within-the-exception, but, as it clarifies the specific 

conduct made lawful in that subparagraph (possession of cannabis plants within 

one home when more than one person lives and cultivates cannabis in the 

residence), we do not read that exception to apply to the entirety of paragraph

(a)(1). See D.C. Code § 48-904.01(a)(1)(C). 

11

 The parties did not cite, and we could not find, any analogs to this phrase

in other laws decriminalizing marijuana possession that illuminate its meaning 

here. Of the states that have legalized use of marijuana, only three use the 

language “made available for sale” in their marijuana regulations. The Colorado 

constitution, which was amended in 2012, sets out which acts are no longer 

criminal offenses under Colorado law and provides that marijuana plants may be 

possessed so long as the plants and the marijuana grown from the plants are not 

“made available for sale.” Colo. Const. art. 18, § 16(3)(b). California and 

Michigan regulations that post-date D.C.’s 2015 amendments contain specific rules 

(continued...)
14

v. Daly, 10 A.3d 1123, 1126 (D.C. 2010) (en banc) (internal quotation marks 

omitted). According to its ordinary sense, the phrase “make available for sale” 

signals that a defendant must at the very least take some action beyond possession. 

We need not define the precise nature of the conduct that constitutes 

“mak[ing marijuana] available for sale,” because the government presented no

evidence at trial that Mr. Kornegay engaged in any conduct, beyond possession,

that could possibly be characterized as his making the marijuana in his possession

available for sale. The evidence established that Mr. Kornegay was driving his 

vehicle when the officers pulled him over and found marijuana in the car and on 

his person. As a matter of law, this evidence by itself did not establish that Mr. 

Kornegay was making the marijuana available for sale at the time of his arrest.

To respond to the government’s arguments, however, we must explain what 

“making available for sale” is not. The government argues that the “making 

available for sale” exception-within-the-exception for possession of two ounces or 

less of marijuana is satisfied if there is evidence that an individual has decided to 

 

(...continued)

for marijuana “made available for sale” at temporary marijuana or cannabis sales 

events. Cal. Code Regs. tit. 16, § 5602(i)–(j) (2020); Mich. Admin. Code r. 

420.27(11) (2020).
15

sell the marijuana in his possession to another person. The government’s 

interpretation criminalizes an act that the statute says is not criminal (possession of 

less than two ounces) by virtue of a person’s merely conceiving of selling that

marijuana for even a fleeting moment. But no one would say that someone who 

possesses an object—e.g., a home, a car, a piece of furniture—has made it 

available for sale simply by thinking about selling it. More than mere thought, the 

“ordinary sense” of the phrase requires some action. Tippett, 10 A.3d at 1127. 

Alternatively, the government argues that possessing marijuana in packaging 

(in this case in clear plastic bags) suffices as conduct to “make marijuana available 

for sale.” Without more, we are unpersuaded by this argument also. The act of 

putting any object that might be sold, or is even intended for sale, into a container 

is not commonly understood as making that object available for sale. For example, 

a person making lemonade does not make it available for sale simply by virtue of 

pouring it into paper cups. They are merely packaging the lemonade in such a way 

that it could be sold, but they would have to take some sufficient additional action 

or actions to communicate the availability of lemonade for purchase.12 

12 We do not mean to suggest that “making available for sale” is equivalent 

to “offering for sale,” but we need not explore the precise distinction between the 

two in this case. 
16

Accordingly, we hold that reliance on generic packaging alone will not suffice to 

show that marijuana was “ma[d]e available for sale” within the meaning of D.C. 

Code § 48-904.01(a)(1)(D).

Our dissenting colleague concludes that Mr. Kornegay made the marijuana 

available for sale because (1) Mr. Kornegay possessed the marijuana with intent to 

sell it; (2) the marijuana was packaged so it could easily be sold; and (3) 

inferentially, he had previously sold marijuana. See post at 20. Even taking those 

circumstances as adequately supported by the evidence, we conclude that they fall 

short of making the marijuana available for sale. Our colleague describes Mr. 

Kornegay’s car as a “mobile marijuana store,” but there is no evidence in the 

record either that Mr. Kornegay had previously sold marijuana from his car or that 

he had arrangements to do so in the future. Id. Finally, we do not share our 

dissenting colleague’s view that it is hard to imagine what more Mr. Kornegay 

could have done, short of actually offering the marijuana for sale, to make the 

marijuana available for sale. For example, the government could have presented

evidence that he actually was using the car as a point of sale, that he was driving

the car to a location where he hoped to find customers, or that he sent a confederate 

out on foot to look for customers to bring back to the car to purchase marijuana. 

No such evidence was presented here.
17

Based on our understanding of the plain language of D.C. Code § 48-

904.01(a)(1), Mr. Kornegay did not commit the crime of possession with intent to 

distribute marijuana. Mr. Kornegay was old enough to legally possess a lawful 

amount of marijuana, the amount he possessed did not exceed the limit under the 

law, and he did nothing that could be construed as making the marijuana he 

possessed available for sale so as to render his conduct unlawful. Accordingly, we 

conclude that Mr. Kornegay’s PWID conviction cannot stand.

We have conducted this analysis under § 48-904.01(a)(1), but the 

government suggests that Mr. Kornegay’s conviction for PWID can be upheld

under § 48-904.01(a)(1A). That provision carves out from the definition of 

“controlled substances” marijuana weighing two ounces or less “in the personal 

possession” of a person twenty-one years of age or older, D.C. Code § 48-

904.01(a)(1A)(A), but excepts (and thus keeps within the definition of a controlled 

substance) marijuana “sold or offered for sale or made available for sale.” D.C. 

Code § 48-904.01(a)(1A)(B).

13 The government reasons that the marijuana was 

 

13

 This provision is not surplusage in light of D.C. Code § 48-

904.01(a)(1)(D) because this paragraph amends the definition of “controlled 

substance” and “controlled substances” throughout the District of Columbia Code,

including, for example, in D.C. Code § 48-903.02, which requires anyone 

manufacturing, dispensing, or distributing a controlled substance to register

annually with the Mayor. See Feaster v. Vance, 832 A.2d 1277, 1283 (D.C. 2003) 

(continued...)
18

still a controlled substance since it was no longer “in [his] personal possession” by 

dint of his stated intent to give it to others, adverting back to its “not-for-personaluse” argument, see supra pages 10–12. 

We need not precisely define the bounds of “personal possession” here.14 

For the purposes of this case, we are satisfied that nothing in § 48-904.01(a)(1A) 

undermines the conclusion we have previously reached: even if we were to 

assume for purposes of discussion that the marijuana at issue was not in Mr. 

Kornegay’s “personal possession”—a proposition of which we are doubtful, given

that it was found in Mr. Kornegay’s pants and within his immediate reach in the 

driver’s side door, see Johnson, 40 A.3d at 14—that would only mean that the 

marijuana met the legal definition of “marijuana” for purposes of D.C. Code § 48-

904.01(a)(1). It would not mean, or even tend to imply, that Mr. Kornegay was 

 

(...continued)

(explaining that, when interpreting a statute, “each provision of the statute should 

be construed so as to give effect to all of the statute’s provisions” (internal 

quotation marks omitted)).

14

 We note that the government’s interpretation of D.C. Code § 48-

904.01(a)(1A)(A)(i) is in tension with subparagraph (a)(1A)(B). If the exclusion 

of two ounces of marijuana from the definition of “controlled substance” under 

(a)(1A)(A)(i) did not apply if an individual had an intent to sell it, it would 

undercut (a)(1A)(B), which states that the exclusions of marijuana and cannabis 

plants from the definition of a “controlled substance” detailed under (a)(1A)(A)(i–

iii) extend up to the point that the marijuana or cannabis plants are “sold or offered 

for sale or made available for sale.” 
19

making the marijuana available for sale at the time of his arrest such that his 

conduct violated the statute, especially since “made available for sale” in D.C. 

Code § 48-904.01(a)(1A)(B) is likely to have the same definition as “make 

available for sale” does in D.C. Code § 48-904.01(a)(1)(D). 

IV.

Under D.C. Code § 48-904.01(a)(1)(A), Mr. Kornegay’s possession of 1.73 

ounces of marijuana was not criminal as a matter of law. Accordingly, we reverse 

the judgment of the trial court and remand for the trial court to vacate Mr. 

Kornegay’s conviction.

So ordered.

STEADMAN, Senior Judge, dissenting: To my mind, the determinative aspect 

of this appeal is the applicability to this case of the exception in D.C. Code § 48-

904.01(a)(1)(D) relating to “make available for sale.” I disagree with my 

colleagues’ conclusion on that point.

This phrase in context applies to action that is short of an “offer to sell” and 
20

yet is prohibited. But how short? The statutory language and the legislative 

history, such as it is, appear to reflect a determination to continue banning the 

commercial distribution of marijuana. In my view, at the very least, when the 

marijuana has been transmuted into a format and product that is readily available 

for sale in the usual way and is possessed in circumstances where such a sale can 

readily be effectuated, and with the intent to make such a sale, it has been made 

available for sale within the meaning of the statute. 

The evidence is to be looked at as a whole, not piece by piece. In this case, 

appellant was found in his car in possession of three packets of marijuana 

packaged in a manner ready for sale, two of which were concealed in his “groin 

area.” He had a supply of additional packets at hand. He had in his pocket a 

sizable amount of cash in multiple denominations. And, importantly, he had under 

his seat a weighing device containing marijuana residue. An expert testified that 

all these circumstances were consistent with a typical seller of marijuana. 

Appellant’s car was effectively a mobile marijuana store. It is hard to imagine 

what more could be done with the marijuana that would make it “readily available 

for sale” without an actual offer of sale. I respectfully dissent.