United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2007 Decided January 8, 2008

No. 06-3051

UNITED STATES OF AMERICA,

APPELLEE

v.

RICARDO T. LACEY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00456-01)

Dennis M. Hart, appointed by the court, argued the cause

and filed the brief for appellant. 

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Jeffrey A. Taylor, U.S.

Attorney, and Roy W. McLeese, III and Elizabeth Trosman,

Assistant U.S. Attorneys.

Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.
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SENTELLE, Circuit Judge: Appellant Ricardo Lacey was

indicted for several offenses including distribution of cocaine

base and theft. During the trial proceedings he moved the court

for judgment of acquittal on the theft charge. The court denied

the motion. He was subsequently convicted of, inter alia, the

charges of theft and distribution of cocaine base, the latter for

which he was sentenced to a mandatory minimum term. We

affirm the conviction for theft but reverse the conviction for

distribution of cocaine base and remand for sentencing on the

lesser included offense of distribution of cocaine.

Background

During a sting operation conducted by the Metropolitan

Police Department an undercover officer made arrangements

with appellant Ricardo Lacey to buy illicit drugs from him on

four separate occasions. On one of these occasions Lacey sold

to the officer what was later determined to be 60 grams of

cocaine, allegedly cocaine base. On the last occasion the

undercover officer arranged to meet Lacey to make another

purchase of drugs for $11,500. At the appointed time Lacey and

the officer met in the officer’s unmarked vehicle. Upon entering

the vehicle Lacey placed a plastic bag purporting to contain

illicit drugs onto the back seat. The officer then handed $5,000

to Lacey, telling him that the rest of the money was in the trunk.

When the officer exited the vehicle, ostensibly to retrieve the

money from the trunk, Lacey exited with him. At that point

Lacey was placed under arrest. The undercover officer later

determined that the plastic bag Lacey placed on the back seat

purporting to contain illicit drugs in fact contained only vinegar

and trading cards. 

Lacey was subsequently indicted on multiple counts. In

particular for this appeal, Lacey was indicted for unlawful

distribution of 50 grams or more of cocaine base in violation of
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21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) (Count Two), and

for first degree theft in violation of D.C. Code §§ 22-3211 and

22-3212(a) (Count Ten) for wrongfully obtaining the $5,000.

A jury trial was held in district court. At the conclusion of

the government’s case Lacey moved for judgment of acquittal.

Concerning Count Ten, theft, during discussions on the motion

the subject of asportation as an element of theft was raised, with

Lacey arguing to the court that this element was missing because

the $5,000 was taken away from him as soon as he was arrested

after exiting the undercover officer’s vehicle. The court,

however, after stating that asportation does not have a time

requirement, concluded that asportation was established when

Lacey exited the vehicle with the $5,000 still in his possession.

The court denied the motion for judgment of acquittal as to

Count Ten.

The jury subsequently found Lacey guilty on four counts,

including Counts Two and Ten. At the sentencing hearing the

probation officer told the court that a 120 month mandatory

minimum sentence applied to Count Two, and the court

consequently imposed that sentence. The court also imposed a

concurrent term of eight years for theft of the $5,000, as well as

concurrent sentences on other counts.

Lacey now appeals, challenging the district court’s ruling

on asportation and its imposition of a 120 month mandatory

minimum sentence for Count Two.

Analysis

Asportation. The District of Columbia theft statute, D.C.

Code § 22-3211, states in pertinent part:

(b) A person commits the offense of theft if that person
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wrongfully obtains or uses the property of another with

intent:

(1) To deprive the other of a right to the property

or a benefit of the property, or

(2) To appropriate the property to his or her own

use or to the use of a third person.

Asportation is “[t]he act of carrying away or removing

(property or a person).” BLACK’S LAW DICTIONARY (8th ed.

2004). Lacey argues that asportation is an element of theft,

although not expressly set forth in the statute. In support of this

contention, Lacey puts forth various arguments: that the

“definitional direction” of the statute contains that legal concept;

that when considering an earlier version of the theft statute we

wrote that asportation was an element of theft, citing United

States v. Barlow, 470 F.2d 1245, 1250 (D.C. Cir. 1972); that in

other jurisdictions asportation remains an element of theft, see,

e.g., United States v. Thordarson, 646 F.2d 1323, 1335 n.22 (9th

Cir. 1981); and that the theft statute is analogous to the D.C.

robbery statute, D.C. Code § 22-2801, which also does not

expressly set forth an asportation element but which was meant

to codify the common law which does have an asportation

element, see Neufield v. United States, 118 F.2d 375, 390 (D.C.

Cir. 1941). The government, in response to Lacey’s asportation

contention, argues that there is no support for his contention

either on the face of the theft statute, in its legislative history, or

in the case law. In particular the government notes that in

Moorer v. United States, 868 A.2d 137, 143 n.11 (D.C. 2005),

the D.C. Court of Appeals, citing D.C. Code § 22-3211, stated

that “[t]heft does not have an asportation element.”

While it is likely that the Moorer decision is dispositive of

the issue, there was sufficient evidence of asportation by Lacey
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even if asportation is an element of the D.C. theft statute.

Asportation, as an element of other crimes, has been found by

the D.C. Court of Appeals to be satisfied by minimal movement.

See, e.g., Newman v. United States, 705 A.2d 246, 264 (D.C.

1997) (asportation element of robbery satisfied by “minimal

movement of the property,” i.e., defendants’ directions to

victims to throw their money to the floor); Simmons v. United

States, 554 A.2d 1167, 1171 n.9 (D.C. 1989) (asportation

element of taking property without right satisfied by “slightest

moving of an object from its original location,” i.e., defendant’s

removal of purse from victim’s shoulder). Here, the undercover

officer testified during the trial that while in the vehicle he

handed Lacey $5,000, that he then exited the vehicle in order to

get the rest of the money out of the trunk, and that Lacey exited

the vehicle with him still holding onto the $5,000. We

consequently agree with the government that even if Lacey is

correct that asportation is an element of theft, a reasonable jury

could have found on the evidence before it, taken in the light

most favorable to the government, that this element was satisfied

by Lacey’s movement of the $5,000 when he exited the vehicle.

See United States v. Adewani, 467 F.3d 1340, 1343 (D.C. Cir.

2006) (rational trier of fact could have found elements of crime

after considering record evidence in light most favorable to the

government).

Sentencing. Lacey contends that the district court’s

imposition of a 120 month mandatory minimum sentence for

Count Two was in error. The government also makes this

contention, asserting that the case should be remanded for

resentencing. We agree. The 120 month mandatory minimum

sentence was imposed on Lacey for distributing 50 grams or

more of cocaine base in violation of 21 U.S.C. §

841(b)(1)(A)(iii). In United States v. Brisbane, 367 F.3d 910,

914 (D.C. Cir. 2004), we held that “a conviction premised on

‘cocaine base’ under 21 U.S.C. § 841 cannot stand unless the
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1

In Brisbane and in Baugham “we left unresolved whether

proof of smokability alone would suffice.” Baugham, 449 F.3d at

171. 

evidence establishes that the cocaine at issue was crack or that

it was smokable.” United States v. Baugham, 449 F.3d 167, 171

(D.C. Cir. 2006).1 Here, during discussions on instructions to be

submitted to the jury, the trial court in fact determined that no

testimony had been presented indicating that the cocaine base at

issue was smokable or that it was crack. Accordingly, Lacey’s

conviction for distributing cocaine base under §

841(b)(1)(A)(iii) cannot stand. By convicting Lacey of

distributing cocaine base under § 841(b)(1)(A)(iii), “the jury

necessarily concluded that the drugs were some form of

cocaine.” Brisbane, 367 F.3d at 915. Because distribution of

cocaine is a lesser included offense of distribution of cocaine

base under § 841(b)(1)(A)(iii), and because we “have the power

to modify a criminal judgment to reduce the conviction to that

of a lesser included offense,” the district court is instructed “to

enter a judgment of conviction for distributing ‘cocaine’ and to

sentence accordingly.” Id. at 914, 915 (citation and some

internal quotation marks omitted).

Conclusion

For the foregoing reasons, the conviction of Ricardo Lacey

for Count Ten, theft, is affirmed; the case is remanded for resentencing, consistent with this opinion, on Count Two.