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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 24-CF-0043 & 24-CF-0156
ELLIOTT WALLACE, APPELLANT,
and
ANTOINE LAYNE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(2022-CF2-005858 & 2023-CF2-002579)
(Erik Christian, Judge)
(Argued January 8, 2026 Decided August 27, 2026)
Michael Bruckheim for appellant Elliott Wallace.
Justin A. Okezie, appointed by the court, argued the case for appellant Antoine Layne. After the case was argued, this court granted Justin A. Okezie’s motion to withdraw as counsel of record. Anne Keith Walton was on the brief for appellant Antoine Layne.
Michael E. McGovern, Assistant United States Attorney, with whom Jeanine Ferris Pirro, United States Attorney, and Chrisellen R. Kolb, Nicholas P. Coleman, Sara Matar, and Molly Smith, Assistant United States Attorneys, were on the brief, for appellee.
2
Before DEAHL, HOWARD, and SHANKER, Associate Judges.
Opinion of the court by Associate Judge HOWARD.
Opinion by Associate Judge DEAHL, concurring in part and dissenting in part,
at page 25.
HOWARD, Associate Judge: Metropolitan Police Department (MPD) officers
conducted a traffic stop on appellants Elliott Wallace and Antoine Layne, * who were
subsequently arrested and charged with several firearm and drug offenses. At trial,
over the objection of both appellants’ counsels, the government relied on expert
testimony from an MPD officer regarding the packaging, distribution, price, and use
of the narcotics seized during this traffic stop. Relying on this testimony and other
evidence presented, the jury convicted Mr. Wallace and Mr. Layne. On appeal, both
appellants argue that the trial court erred by admitting unreliable expert testimony
from the government’s narcotics expert. In addition, Mr. Wallace argues that there
was insufficient evidence to support his conviction for possession with the intent to
distribute (PWID), and Mr. Layne argues that the trial court improperly acted in a
partisan manner by interfering in the testimony of several witnesses. For the reasons
below, we affirm on all counts.
*
Appellant Mr. Layne’s motion for a temporary stay is denied as moot. Judge Deahl would have granted the motion.
2
I. Background
A. The Traffic Stop
On October 2, 2022, Sergeant Owais Akhtar from the MPD’s Crime
Suppression Team (CST) was on patrol in the Northwest quadrant of D.C. At
approximately 5:30 p.m., Sgt. Akhtar observed a black BMW with heavily tinted
windows and a plastic cover on the license plate, which was an equipment violation.
Sgt. Akhtar pulled the car over near the intersection of 5th Street and T Street NW.
Sgt. Akhtar identified the driver of the vehicle as appellant Mr. Wallace, the front
passenger as Jowan Plummer, and the backseat passenger as appellant Mr. Layne.
At this time, additional CST officers arrived, including Officers Dawes and
Merricks.
During the traffic stop, Sgt. Akhtar noticed Mr. Plummer reach under his seat
with his hand a couple of times. Officer Dawes, standing near the open, rear driver’sside window, could see inside the car and noticed Mr. Layne fidgeting with his
phone and kicking something underneath the passenger-side seat in front of him.
Officer Dawes used his flashlight to get a better look at what Mr. Layne was
attempting to conceal with his foot under the seat but did not yet see what the object
was. Sgt. Akhtar then asked all the men to step out of the vehicle, and the men were
detained.
3
Once the three men were out of the vehicle, the officers observed in the
backseat of the vehicle an open bottle of Remy Martin 1738, which had brown liquid
inside it, as well as a blue solo cup with similar liquid in it from the front seat
cupholder. The officers then observed a firearm underneath the front passenger-side
seat where they had seen Mr. Plummer reach under and Mr. Layne fidget with his
feet. Officer Dawes seized the firearm, which had a round in the chamber and twelve
rounds in the magazine.
Officers then searched Mr. Wallace’s person and found $405 in cash and a
bag of suspected drugs. The drugs included (1) thirteen small individual bags of a
rock substance that tested positive for crack cocaine and N,N-dimethylpentylone,
(2) three small bags of a white powder substance that tested positive for cocaine,
fentanyl, and 4-ANPP, and (3) a vial of amber colored liquid that tested positive for
PCP. Officers also searched Mr. Layne’s person and found $284 in cash and a
sandwich bag containing two individual bags of a white, rock substance that tested
positive for N,N-dimethylpentylone.
All three men were arrested at the end of the traffic stop. Relevant to this
appeal, the government charged Mr. Wallace and Mr. Layne with several firearm
and drug offenses.
4
B. Trial
The case proceeded to a jury trial. At the outset, the trial court instructed the
jury that any actions or questions from the trial judge should not be construed as
conveying any opinion of the trial judge, and instead the jury has the sole
responsibility for deciding the case. In fact, several times during trial, the judge
asked questions of the witnesses, for example, asking Sgt. Akhtar to further explain
how he spotted the equipment violation leading to the traffic stop, asking Sgt. Akhtar
how he requested the individuals exit the vehicle, and asking an investigator how
buccal swabs are collected. Before jury deliberations, the trial judge reiterated to the
jury that any comments, questions, or rulings made by the judge during trial were
not indicative of any opinion of the court, and that the jury had the sole decisionmaking authority.
At the end of trial, the jury found Mr. Wallace guilty of PWID a controlled
substance (Cocaine), possession of liquid PCP; and possession of cocaine (which
merged with his PWID charge for sentencing). Mr. Wallace was sentenced to forty
months of incarceration followed by five years of supervised release. Mr. Layne was
found guilty of PWID a controlled substance (N,N-Dimethylpentylone) while
armed, possession of a firearm during a crime of violence or dangerous offense,
possession of N,N-Dimethylpentylone (merged with PWID), unlawful possession of
5
a firearm (prior conviction), carrying a pistol without a license, possession of an
unregistered firearm, and unlawful possession of ammunition. Mr. Layne was
sentenced to 210 months of incarceration followed by three years of supervised
release. The evidence presented at trial is the key issue on appeal, so we will examine
both sides’ evidence at the trial court, as it is relevant to this appeal, in greater detail
below.
1. The Government’s Evidence
The government presented eleven witnesses at trial, including several of the
officers involved with the traffic stop. Officer Dawes testified that Mr. Layne
fidgeted with something under the front seat of the vehicle, that he seized an open
liquor bottle and firearm from the vehicle, and that he observed no drug
paraphernalia, powder, or containers in the car upon searching it. Officer Dawes also
testified regarding the drugs and cash found in Mr. Wallace’s jacket pocket when
another officer conducted a search incident to arrest. Sgt. Akhtar, who initiated the
traffic stop, testified that Mr. Wallace was cooperative during the stop and did not
appear to be under the influence of drugs. After the pat down and searches of both
appellants, Sgt. Akhtar supervised the processing of the seized drugs into evidence.
Finally, Officer Merricks testified that she responded to the scene and seized a bag
of drugs and cash from Mr. Layne.
6
The government also called several forensic experts who testified regarding
the drugs that were found on appellants’ during the stop. Kyle Brown, a forensic
chemistry supervisor, tested the drugs found during the traffic stop and identified
cocaine, N,N-dimethylpentylone, ANPP, fentanyl, and PCP on Mr. Wallace and
N,N-dimethylpentylone on Mr. Layne. Mr. Brown noted that the drug samples that
were tested were not tested for purity. Brittany Argento, also a forensic chemist,
testified that she tested the drugs found by the officers during the traffic stop and
confirmed the presence of the same drugs as those Mr. Brown testified to.
a. Officer Scott Brown
Most notable to this appeal, the government relied on expert testimony from
Officer Scott Brown, an MPD officer of over thirty-two years who works on
narcotics investigations. The government provided notice that it intended to call
Officer Brown as a narcotics expert, and defense counsel objected and sought to
conduct voir dire on Officer Brown’s knowledge of N,N-dimethylpentylone. Prior
to defense counsel’s voir dire, Officer Brown testified regarding his expertise in
narcotics. Officer Brown had spent the last twenty years in the Violent Crime
Suppression Division, and the last thirteen in the FBI Safe Streets Task Force,
focused on narcotics work. Officer Brown also often taught classes on drug trends
in D.C. Officer Brown was familiar with the most common drugs in D.C. and
7
continued to keep himself knowledgeable on drug trends in D.C. by training and
speaking with other law enforcement agents, drug arrestees, and confidential
informants.
Officer Brown then testified about N,N-dimethylpentylone, which he noted
was more commonly referred to as “boot.” Officer Brown stated that boot was a new
trend in D.C. that he had started seeing more of in the last six months, and Officer
Brown had about a dozen cases of his own dealing with boot. Officer Brown also
discussed boot with confidential sources and other law enforcement agents who were
more knowledgeable on boot than he was. Officer Brown described boot as a drug
that comes in a powder or hard rock substance similar to cocaine and is consumed
in a manner similar to cocaine. Officer Brown noted that boot is a “cheap version of
crack cocaine.” Officer Brown later mentioned that he spoke with another officer
about boot a week before testifying, and he interviewed one or two sources
specifically about boot, with the most recent happening three months before his
testimony.
During voir dire, defense counsel objected to Officer Brown being certified
as an expert due to his lack of knowledge on N,N-dimethylpentylone, or boot. The
defense pointed out that Officer Brown consistently mispronounced the narcotic as
“dimethylon pentylonen,” he had only recently come across boot in the last six
8
months, he had taught no classes or written any papers on boot, and the drug chart
Officer Brown produced was from 2020 and did not include any information on boot.
Counsel for Mr. Layne emphasized that Officer Brown did not have the requisite
expertise in boot to qualify him as an expert in the use and distribution of boot.
Counsel for Mr. Wallace cosigned this argument, arguing that because it could not
be determined what percentage of the drugs found on Mr. Wallace and tested was
boot, Officer Brown was not qualified to testify as an expert on the narcotic. The
trial court overruled both objections and allowed Officer Brown to be certified as an
expert, citing that he had sufficient knowledge on narcotics in general, and that he
could opine as to whether the drugs found on the appellants were for distribution or
personal use. The trial court stated that the defense could challenge Officer Brown’s
credibility on cross examination.
On direct examination, Officer Brown stated that the quantity of drugs found
on the appellants during the traffic stop was “more consistent with” distribution than
with personal use. Officer Brown noted that the thirteen individual bags of crack
cocaine and boot found on Mr. Wallace’s person would have a street value of about
$1,300, and the two bags of boot found on Mr. Layne’s person would have a street
value of about $150 to $300. Officer Brown testified that users do not buy crack
cocaine in “bulk,” and the amount of crack cocaine in just one of the larger thirteen
bags found on Mr. Wallace could cause an overdose if someone attempted to ingest
9
it all. In addition, Officer Brown made several other observations that bolstered his
view that the drugs were possessed for distribution instead of personal use,
including: (1) the presence of a gun, possibly for protection, (2) the lack of drug
paraphernalia in the car to ingest the drugs, (3) that the drugs found on Mr. Wallace
were packaged for ease of distribution, (4) the amount and denominations of cash
the appellants were found with, (5) the variety of drugs Mr. Wallace was found with,
since it was not normal for someone to have multiple different substances at once
unless they were selling one, and (6) the amount of PCP and fentanyl found on
Mr. Wallace, which in contrast were of a quantity that were clearly consistent with
personal use.
2. The Defense’s Evidence
Mr. Layne called no witnesses, but Mr. Wallace called three. 1 Mr. Wallace
first called Chenae Priester, his neighbor, who testified that she had known
Mr. Wallace for over a year and during that time had seen him use crack cocaine
about a hundred times, essentially anytime that she saw him. Next Mr. Wallace
called Alex Alexander, his employer, who testified that he knew Mr. Wallace used
1
Prior to the start of the defense’s case, counsel moved for a judgment of acquittal, which was quickly denied by the trial judge.
10
crack cocaine and observed him smoking crack cocaine a few times a day while
Mr. Wallace was working for him.
Mr. Wallace then called his own narcotics expert, Myron Smith, a former
MPD detective currently residing in North Carolina, who now works as a private
narcotics consultant for trials. Based on his experience in the narcotics field,
Mr. Smith was certified as an expert for trial and examined the drug evidence
collected during the traffic stop and listened to testimony from the other witnesses.
Mr. Smith disagreed with Officer Brown’s assessment of the crack cocaine found on
Mr. Wallace, stating that the amount found was consistent with personal use.
Mr. Smith noted several factors that supported his assessment, including the context
of the traffic stop versus an observed drug deal, the lack of distribution tools, the
relatively low amounts of money found, and the variety of drugs found on
Mr. Wallace, which were not indicative of distribution instead of personal use. For
the “boot” that was found during the traffic stop, Mr. Smith noted that boot was “still
fresh” in the D.C. area, and that officers don’t know enough about its dosage to
assess how much of it a person would buy. Mr. Smith also agreed with Officer
Brown that boot is a “cheaper crack cocaine.”
11
II. Discussion
On appeal, both Mr. Wallace and Mr. Layne argue that the trial court erred by
allowing Officer Brown to testify as a narcotics expert regarding boot. Appellants
argue that Officer Brown was unqualified to opine on boot given his lack of
experience with and knowledge of the narcotic, and any of his testimony regarding
appellants’ intent to distribute boot was unreliable. In addition, Mr. Layne argues
that the trial court erred by improperly questioning several government witnesses
during their testimonies, denying him his right to an impartial decisionmaker.
Mr. Wallace also argues that there was insufficient evidence to prove beyond a
reasonable doubt that he had the requisite intent to distribute crack cocaine.
Applying each respective standard of review in this close case, we affirm the court’s
ruling on all counts. We address each issue in turn.
A. The Expert Testimony of Officer Brown
We begin with the challenge that both appellants raise: the admissibility of
expert testimony from Officer Brown. “We review a trial court’s decision on the
admissibility of expert testimony for abuse of discretion.” Parker v. United States,
249 A.3d 388, 401 (D.C. 2021). We will reverse the trial court’s decision only if it
had an “improper or legally insufficient reason, if its ruling lacked a firm factual
foundation, or if the trial court otherwise failed to exercise its judgment in a rational
12
and informed manner.” Faltz v. United States, 318 A.3d 338, 347 (D.C. 2024)
(quoting Hinton v. United States, 979 A.2d 663, 683-84 (D.C. 2009)). In determining
the admissibility of expert testimony, this court has adopted the reliability-based
standard set forth in Federal Rules of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993). See Motorola Inc. v. Murray, 147
A.3d 751, 756 (D.C. 2016) (en banc).
To determine the admissibility of expert testimony, the trial court considers
whether:
[1] the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; [2] the testimony
is based on sufficient facts or data; [3] the testimony is the
product of reliable principles and methods; and [4] the
expert has reliably applied the principles and methods to
the facts of the case.
Faltz, 318 A.3d at 348. This standard establishes the trial judge as a “gatekeeper”
tasked with making a “preliminary assessment” to ensure that the
“expert . . . employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Lewis v. United States,
263 A.3d 1049, 1059 (D.C. 2021). However, this gatekeeping role is not meant to
displace the adversary system or replace “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof [as]
13
the traditional and appropriate means of attacking shaky but admissible evidence.”
Id. (quoting Motorola Inc., 147 A.3d at 754).
Appellants both argue that the trial court abdicated its role as “gatekeeper” by
allowing Officer Brown to give expert testimony regarding boot without sufficient
facts or data, in violation of Motorola Inc. 2 They point out several alleged
deficiencies in Officer Brown’s expertise, including his mispronunciation of
dimethylpentylone, the fact that he first encountered boot only six months before
trial, his lack of formal training or publications on boot, that he had never been
certified as an expert on boot, and the fact that he had only a “handful” of cases and
conversations prior to trial relating to boot. Given these shortcomings, appellants
argue that speculative and unreliable expert testimony made its way to the jury,
which was an abuse of discretion. We disagree.
2
In his reply brief and during oral argument, Mr. Layne sought to advance a formalistic, procedural argument that the trial court failed to lay a foundation for a reliability assessment of the expert testimony through a proper Daubert analysis. Mr. Layne cites our recent case, Willis v. United States, 346 A.3d 1204 (D.C. 2025), to support this argument that the trial court failed to properly make a sufficient reliability assessment. The government noted at oral argument that this is a new argument distinct from the substantive challenge raised in the original brief. We agree that this procedural argument is different from the substantive, expert testimony challenge in Mr. Layne’s original brief. “We generally will not consider arguments raised for the first time in a reply brief.” Cummings v. Dep’t of Motor Vehicles, 294 A.3d 121, 128 (D.C. 2023). As a result, we will not consider this now and we focus on Mr. Layne’s substantive challenge instead.
14
Mr. Wallace cites Johnson v. District of Columbia, 728 A.2d 70 (D.C. 1999),
to support his argument that Officer Brown’s testimony should not have been
admitted. This case is no longer binding given that it predates this court’s switch to
the Daubert standard, 3 but even if it were, it involved a plumber whom the appellant
sought to offer as an expert on the design and regulation of water heaters, which he
knew almost nothing about. Johnson, 728 A.2d at 74. Here, Officer Brown stated
that, although boot was a recent trend, he had dealt with it in about a dozen
investigations, he had spoken with other officers and confidential sources about it,
and he knew that boot was similar to crack cocaine, a drug that both sides agree he
is an expert on given his roughly twenty years of narcotics experience. Comparing
this level of knowledge, albeit not immense, to a witness who knew next to nothing
in Johnson is misplaced.
Mr. Layne cites several other cases in arguing a similar point. Mr. Layne notes
that in McClain v. Metabolife International, Inc., the court took issue with the expert
witness making an unreliable analogy between two drugs in a toxic tort case. 401
F.3d 1233, 1245-46 (11th Cir. 2005). Here, Officer Brown often did analogize crack
cocaine to boot, describing boot as a “cheap version of crack cocaine” with similar
3
In Johnson, the court applied the old Dyas v. United States, 376 A.2d 827 (D.C. 1977), standard for admitting expert testimony, which we have since moved away from.
15
properties. But we do not have reason here to dispute that analogy, as the defense’s
own expert witness agreed that boot is a cheap version of crack cocaine. If Officer
Brown, an expert regarding the distribution of common narcotics like crack cocaine,
testified that boot was similar to crack cocaine in appearance, price, and distribution,
and those were the aspects of boot he was asked to give expert testimony on, then
we are not convinced that it was improper for Officer Brown to testify as to these
attributes. And it is important to note that Officer Brown was offered and certified
as an expert in narcotics generally, not boot, so McClain is not operable here.
Mr. Layne also relies on United States v. Valencia-Lopez, 971 F.3d 891 (9th
Cir. 2020), both in his brief and during oral argument. Mr. Layne notes that the court
in that case reversed the admission of the expert’s testimony because the expert
lacked personal or specific knowledge of the drug issues at play. Valencia-Lopez,
971 F.3d at 900-01. We have noted though, and Mr. Wallace even agrees in his brief,
that specific knowledge is not always needed for expert testimony, and sufficient
familiarity with the subject matter can be enough. See, e.g., Govan v. Brown, 228
A.3d 142, 155 (D.C. 2020) (“‘While a physician need not be a specialist’ in a
particular field to provide expert testimony, ‘he or she must still be a qualified
physician and have familiarity with the particular subject matter in order to render
an expert medical opinion.’” (citation omitted)). We find the example of Govan more
applicable to this case. Officer Scott Brown was undeniably a narcotics expert and
16
qualified as such, and he testified to his familiarity with boot despite it being new.
We do not see a reason to depart from the trial court’s ruling where Officer Brown
was indeed qualified to speak on narcotics generally, even if that included boot.
While appellants assert that the trial court failed to properly examine the
qualifications of Officer Brown, the trial court in fact allowed defense counsel to
conduct mid-trial voir dire on Officer Brown in front of the jury. Defense counsel
had an opportunity to challenge Officer Brown’s education, training, narcotics
experience, information sources, knowledge of boot, and any other relevant
methodology or skills. At the end of that voir dire, the trial court made clear that
based on Officer Brown’s responses, he had “sufficient education and training to
testify about [the] narcotics in general.” The trial judge also stated that Officer
Brown’s experience with boot in D.C. and a neighboring county was sufficient to
qualify him. It was noted that the forensic experts, who were qualified without
objection, indicated that Mr. Wallace’s drugs were a mix of boot and cocaine, further
supporting the credibility of Officer Brown’s testimony regarding crack cocaine and
boot. With this foundation, we agree with the trial court that Officer Brown was
qualified as a narcotics expert.
After voir dire, appellants had further space to properly challenge Officer
Brown’s credibility on cross-examination. Officer Brown’s alleged inexperience
17
with boot was an issue of credibility and weight that defense counsel should have
and did attack during cross examination, not an issue that should have prevented
certification. See, e.g., Govan, 228 A.3d at 155 (“[T]he trial court properly
understood [expert witness’s methodology choices] as relevant to the weight to
afford the opinion, rather than its admissibility.”); Holbrook v. Lykes Bros. S.S. Co.,
Inc., 80 F.3d 777, 782 (3d Cir. 1996) (“Because of our liberal approach to admitting
expert testimony, most arguments about an expert’s qualifications relate more to the
weight to be given the expert’s testimony than to its admissibility.”). Defense
counsel had an opportunity to discredit Officer Brown during cross examination on
his knowledge of boot, and it was then left to the jury to decide if they were
persuaded by Officer Brown’s testimony or not. We properly leave that to the jury.
While we acknowledge that Officer Brown was not a perfect expert witness
when it came to the narcotic boot, and appellants are justified in their well-delivered
critique of Officer Brown’s relevant expertise, his deficiencies were properly left to
cross-examination and the jury. This is a case-specific analysis, and we take great
care in evaluating the trial court’s decision. However, a foundation was established
for Officer Brown’s expertise in narcotics, and the trial judge articulated a basis for
admitting him; as a result, we are satisfied that this decision was not an abuse of
discretion. We affirm.
18
B. The Trial Court’s Questioning of Witnesses
Next, we address Mr. Layne’s argument that the trial judge improperly
questioned witnesses at various points during trial. We normally review challenges
that a trial judge improperly questioned witnesses for abuse of discretion. Thacker
v. United States, 599 A.2d 52, 63 (D.C. 1991). However, Mr. Layne’s trial counsel
did not object to the trial judge’s questioning during trial, so on appeal the
government seeks a plain-error standard of review. In his reply brief, Mr. Layne
agrees that there was no objection at the trial court, but he nonetheless contends that
this argument was preserved and we should examine the entire trial transcript to
evaluate the trial judge’s involvement in context. Mr. Layne relies on old D.C.
Circuit caselaw to support his argument, including United States v. Barbour, 420
F.2d 1319 (D.C. Cir. 1969), and Jackson v. United States, 329 F.2d 893 (D.C. Cir.
1964). 4 We are not convinced that we must follow these cases.
4
As Mr. Layne notes, these cases predate February 1, 1971, and thus would be binding on this court unless later caselaw has instructed otherwise. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). “[W]e have adopted the rule that no division of this court[] will overrule a prior decision of this court[ ] or refuse to follow a decision of the United States Court of Appeals rendered prior to February 1, 1971, and that such result can only be accomplished by this court en banc.” Id.
19
The D.C. Circuit, more recently than Mr. Layne’s cited cases, has made clear
that if “counsel did not object to the judge’s questions at trial, the plain-error standard
applies.” United States v. Winstead, 74 F.3d 1313, 1319 (D.C. Cir. 1996). Our court
has also consistently applied this standard. See, e.g., Hagood v. United States, 93
A.3d 210, 227 (D.C. 2014); Jennings v. United States, 989 A.2d 1106, 1114 (D.C.
2010); Lampkins v. United States, 973 A.2d 171, 172 (D.C. 2009); Long v. United
States, 940 A.2d 87, 100 (D.C. 2007); see also Keerikkattil v. United States, 313
A.3d 591, 601 (D.C. 2024) (stating that challenges not raised before the trial court
are unpreserved and thus reviewed for plain error “because the failure to raise such
arguments with the trial court deprives that court of the opportunity to remedy the
error before or during trial” (citation omitted)). We will proceed by applying the
plain-error standard to this issue. Under the plain-error standard of review, “‘[t]here
must be an error that is plain and that affects substantial rights,’ and reversal is not
appropriate ‘unless the error seriously affects the fairness, integrity or public
reputation of the judicial proceedings.’” Lampkins, 973 A.2d at 172.
“Prosecution and judgment are two separate functions in the administration of
justice; they must not merge.” Jennings, A.2d at 1115 (quoting Johnson v. United
States, 613 A.2d 888, 895 (D.C. 1992)). “A judge is permitted to ask questions of
witnesses so long as she does not assume a partisan role.” Hagood, 93 A.3d at 228.
“The judge may ‘permissibly illuminate the witness’s testimony’ so long as the
20
questions asked ‘in no way jeopardized the appellant’s presumption of
innocence . . . or improperly suggested to the prosecutor tactics he had not
considered.’” Id. (quoting Johnson, 613 A.2d at 895-96).
Here, Mr. Layne cites four occurrences where the trial judge intervened by
questioning witnesses, allegedly demonstrating impartiality to the detriment of
Mr. Layne. First, the trial judge asked Sgt. Akhtar about the glare coming off the
plastic cover on the vehicle’s license plate, which was the traffic violation that led
him to stop the appellants. Second, the judge, shortly after the above questioning,
asked Sgt. Akhtar to clarify what he said when he instructed the appellants to exit
the vehicle. Third, during the direct examination of Jean-Paul Paskalis, an MPD
crime scene investigator on this case, the trial judge asked Mr. Paskalis to explain
how he typically takes and stores a buccal swab during an investigation. Finally, the
trial judge asked Officer Brown during his cross-examination to clarify why it would
be dangerous to let a buyer into a drug dealer’s car, after Officer Brown stated that
this was potentially dangerous.
We disagree with Mr. Layne that the above instances or any others at trial
were improper and denied him his right to an impartial decisionmaker. All these
instances involved simply clarifying a line of questioning that was already being
conducted, not assisting the prosecution or damaging the defense’s theories as
21
Mr. Layne suggests. See Hagood, 93 A.3d at 228 (stating that the “the trial judge
was clarifying for the record demonstrations or actions performed in court pursuant
to inquiries the prosecutor had initiated”); Long, 940 A.2d at 101 (discussing how
the trial court’s questions “properly sought information to develop more fully a line
of questioning already initiated by the prosecution”). We discern no error, let alone
one that is plain. In addition, Mr. Layne agrees that some of these questions, like the
inquiry into the license plate glare, were not central to the case, so we are not
convinced his substantial rights were impacted by these inquiries. And even if there
were error, the trial judge at the start of trial and at the close of testimony instructed
the jury that any questions from the trial judge should not be construed as conveying
an opinion, and instead the jury has the task of deciding this case, further alleviating
any concern over possible prejudice. See Holloway v. United States, 25 A.3d 898,
903 (D.C. 2011) (“We ordinarily presume that the jury understands and obeys the
trial judge’s instructions.”).
Therefore, we conclude that the trial judge’s questioning of witnesses was
solely to clarify existing inquiries and was not plain error nor harmful to Mr. Layne’s
substantial rights. We affirm.
22
C. The Sufficiency of the Evidence for PWID
We now turn to Mr. Wallace’s insufficiency of the evidence argument. We
review a challenge to the sufficiency of the evidence de novo, “viewing the evidence
in the light most favorable to the [verdict], drawing all reasonable inferences in the
government’s favor, and giving deference to the jury’s right to determine credibility
and weight.” Toyer v. United States, 325 A.3d 417, 424 (D.C. 2024) (quoting
Rollerson v. United States, 127 A.3d 1220, 1232 (D.C. 2015)). Under this lens, we
then must determine whether “there was sufficient evidence from which a reasonable
mind might fairly infer guilt beyond a reasonable doubt.” Id. The government need
not negate “every possible inference of innocence,” id., but rather the appellant bears
the “heavy burden of showing that the [government] offered no evidence upon which
a reasonable mind could find guilt beyond a reasonable doubt.” Id. (quoting Bruce
v. United States, 305 A.3d 381, 392 (D.C. 2023)).
To prove PWID, the government must show that Mr. Wallace (1) knowingly
and intentionally possessed crack cocaine (2) with the specific intent to distribute.
D.C. Code § 48-904.01(a)(1); see also Toyer, 325 A.3d at 424; Kornegay v. United
States, 236 A.3d 414, 418 (D.C. 2020). “An intent to distribute can be inferred from
the possession of a quantity of drugs that ‘exceeds supply for personal use’ or that is
packaged in a manner indicative of future distribution.” Toyer, 325 A.3d at 424
23
(quoting McRae v. United States, 148 A.3d 269, 273 (D.C. 2016)). Intent to
distribute can also be inferred through expert testimony. See Digsby v. United States,
981 A.2d 598, 604-05 (D.C. 2009).
Mr. Wallace states that the government’s only evidence supporting its
argument that he had the intent to distribute the crack cocaine found in his possession
was the possession itself. Mr. Wallace relies on McRae v. United States to support
his argument. In that case, this court found that there was no direct evidence that the
appellant had been selling or intended to sell the marijuana found in his possession,
thus rendering the evidence insufficient to support his PWID conviction. McRae,
148 A.3d at 273. This court noted that “expert testimony or other evidence showing
that the quantity or packaging of appellant’s marijuana was more consistent with an
intent to distribute than with personal use” was “strikingly absent.” Id.
In this case, we see several other pieces of evidence presented by the
government indicating that a reasonable person could infer an intent to distribute
beyond a reasonable doubt, namely expert testimony and other physical evidence
found during the traffic stop. The government’s expert Officer Brown testified that
the amount of crack cocaine found on Mr. Wallace far exceeded what a drug user
would buy for personal use, going so far as to say that just one of the thirteen baggies
found would likely cause an overdose if ingested entirely. See, e.g., Toyer, 325 A.3d
24
at 424 (discussing officer testimony that the amount of crack cocaine found on the
appellant, “4.3 grams” with a “resale price of least $600,” was an “amount greater
than the quantity typically purchased at one time for personal use”). This is unlike
McRae, where the amount of marijuana found on the appellant was consistent with
personal use, and expert testimony to the contrary was absent. 148 A.3d at 273-74.
Officer Brown also noted that the packaging of the crack cocaine was more
consistent with distribution, another difference from McRae where the marijuana
was found in a bag consistent with personal use. Id. at 274. Thus, here we have
evidence that the quantity and packaging of the drugs indicate an intent to distribute.
The government also relied on other evidence found during the traffic stop to
support its theory of intent. Mr. Wallace was found with $405 in cash in multiple
denominations and a variety of other drugs, including small quantities of fentanyl
and PCP that were more akin to personal use; a firearm was found in the vehicle;
and Mr. Wallace was found with no drug-use paraphernalia. Officer Brown noted
that all these factors suggested the crack cocaine was for distribution rather than
personal use. See, e.g., Bruce, 305 A.3d at 392 (stating that “small denominations of
cash and the presence of [a] firearm [are] indicative of a drug-dealing operation,” as
this court has noted in our PWID caselaw). Mr. Wallace again challenges the
credibility of Officer Brown, but we stated above that the trial court did not err in
certifying Officer Brown as an expert; and even if it had, we consider all evidence
25
admitted at trial during a sufficiency of the evidence review, even erroneously
admitted evidence. See Ransom v. United States, 322 A.3d 521, 527 (D.C. 2024).
Thus, under our sufficiency standard of review, we must defer to the jury’s
credibility determination on Officer Brown’s PWID testimony versus the defense’s
expert testimony, and we see no reason to undermine that authority here.
We see sufficient evidence in the record to establish Mr. Wallace’s intent to
distribute crack cocaine. Mr. Wallace has not carried his burden of showing that
there was no evidence upon which a reasonable mind could find him guilty beyond
a reasonable doubt of PWID crack cocaine. We affirm.
III. Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
So ordered.
DEAHL, Associate Judge, concurring in the judgment in part and dissenting in
part: I agree with my colleagues on their resolution of the issues that the opinion for
the court addresses. But I respectfully dissent, in part, because of an issue they have
chosen not to reach: whether there was sufficient evidence to sustain Antoine
Layne’s convictions for possession with intent to distribute and possession of a
26
firearm during a crime of violence or other dangerous offense, with the intent to
distribute being a predicate of the latter charge. In my view, the evidence was
insufficient to sustain Layne’s convictions for those offenses because it did not come
particularly close to establishing, beyond a reasonable doubt, that Layne had the
intent to distribute the modest amount of drugs found on him. And I do not share my
colleagues’ view that we should bypass that issue because Layne raised it only
belatedly, and seemingly in response to questions posed at oral argument. See
Wallace v. United States, 351 A.3d 1, 6-14 (D.C. 2026) (Deahl, J., dissenting).
I have already thoroughly expressed my views on this matter in my dissent
from the court’s denial of Layne’s request to brief his sufficiency argument in the
days after this case was argued and submitted. Id. I offer this epilogue only because,
in that earlier procedural posture, I did not express a firm view on the merits of
Layne’s sufficiency argument, given that Layne was simply seeking to brief the
matter, and I thought we should have let him do that. With that ship having sailed, I
now more firmly conclude that the evidence was insufficient to sustain these
convictions.
I will not comprehensively rehash the many reasons I previously laid out for
doubting the sufficiency of the evidence to sustain the most serious of Layne’s
convictions. Id. at 7-9. I will instead offer a more abbreviated accounting: Layne is
27
serving a 17.5-year prison sentence, and ten of those years are attributable to the
jury’s conclusion that Layne had the “intent to distribute” the dimethylpentylone, or
“boot,” that Layne had on him. I do not see how any rational factfinder could
conclude beyond a reasonable doubt that Layne intended to distribute the moderate
quantity of boot he had on him.
Layne had just seven grams, or about $200 worth of boot. The boot was not
packaged or broken down in a way suggestive of an intent to sell it—to the contrary,
it was in two small rocks, which even the government’s own expert said was more
consistent with personal use than an intent to distribute. The quantity of boot was
not particularly suggestive of an intent to distribute either. While the government’s
expert opined that seven grams was more consistent with an intent to distribute, his
basis for that opinion was facially ludicrous: he posited that “[y]ou would kill
yourself” if you smoked either of the two rocks at once. But that’s like saying that a
handle of bourbon, or a few bottles of wine, are “more consistent with” an intent to
distribute alcohol than possession of it for personal use, because imbibing those
quantities in one sitting could kill you. The glaring hole in that logic is that plenty of
people possess intoxicating substances for personal use in quantities that they do not
28
intend to ingest in a single sitting, and could not safely ingest in one sitting. 1 There
is just a chasm between the two things. And in any event, even if that quantity of
boot were “more consistent” with an intent to distribute, that is a far cry from proof
beyond a reasonable doubt that the boot was marked for distribution.
Also, consider that (1) Layne was not in any open air drug market or seen in
any hand-to-hand exchanges—he was simply riding as a backseat passenger in a car
that was pulled over in a routine traffic stop; (2) there was no evidence that Layne
even had the tools necessary to break the boot down for individual sales, i.e., the
government had no evidence that Layne had any little baggies, cutting implements,
or digital scales—the types of things we often stress as indicative of an intent to
distribute, see, e.g., Buchanan v. United States, 165 A.3d 297, 303 (D.C. 2017)
(highlighting detective testimony about how “the scale, nail file, small zip-lock bags,
and other items found [on the defendant] are tools commonly used to separate and
package drugs for distribution.”); and (3) there was no evidence that Layne had sent
or received any messages suggesting that he was engaged in the drug trade, despite
the government’s clear incentive to procure a search warrant for his phone if it
actually believed he was a drug dealer. In short, the government apparently chose
1
If the government expert’s view was that drug users never procure drugs for the days and weeks ahead, as he at some points suggested, then that is also a ludicrous claim that I do not think any rational factfinder could believe.
29
not to investigate its case—or its investigation came up empty—and Layne is now
serving a decade in prison on charges that the government did not come particularly
close to proving beyond a reasonable doubt. The evidence here was far flimsier than
any possession with intent to distribute conviction that this court has previously
upheld. See Wallace, 351 A.3d at 9 (Deahl, J., dissenting). It was also far flimsier
than the evidence against Wallace—and while I agree with the court that the
evidence was sufficient to uphold Wallace’s distribution conviction, largely because
of the packaging and higher quantity of drugs on him, I view that as a considerably
closer call than the opinion for the court makes it out to be. 2
I note two final aspects of this case that trouble me: First, as I have previously
detailed, and since we have now issued an opinion, Layne is now free to raise this
same sufficiency argument that my colleagues have opted not to address in the
context of an ineffective assistance of appellate counsel claim. Id. at 12. So the claim
is surely coming before this panel regardless, and I continue to believe that we have
not advanced or protected any salient values by delaying the consideration of that
claim.
It is for that reason that I concur only in the judgment as to the issues where
2
I agree with the court’s bottom-line judgment.
30
Second, while the government has steadfastly opposed Layne’s attempts to
belatedly raise this argument, it is worth noting that even if the challenged
convictions were reversed, Layne would still be serving a longer sentence than the
government recommended at sentencing. That is, while the government
recommended a six-year sentence be imposed for all of Layne’s convictions, the trial
court imposed a 17.5-year sentence, and ten of those years hinge on whether Layne
had an intent to distribute. Subtract that decade from Layne’s sentence, and he will
still be serving a sentence that is a year-and-a-half longer than what the government
once thought was fitting. So it is strange to me that the U.S. Attorney’s Office in this
case—whose members are often quick to remind us that their “interest in a criminal
prosecution is not that [they] shall win a case, but that justice shall be done,” Vaughn
v. United States, 93 A.3d 1237, 1253 (D.C. 2014) (quoting Berger v. United States,
295 U.S. 78, 88 (1935))—has so staunchly opposed review of Layne’s claim that he
is legally innocent. I would think, under the circumstances, that they would welcome
that review, as they have done on so many past occasions when similar claims were
belatedly raised. See, e.g., Walker v. United States, 982 A.2d 723, 738 (D.C. 2009)
(reversing defendant’s convictions even though he did not raise a sufficiency
challenge because the government “concede[d]” that his co-defendant’s conviction
“must be vacated for failure of proof”); Jennings v. United States, 431 A.2d 552,
555 n.3 (D.C. 1981) (reversing convictions of three defendants even though only one
31
raised a sufficiency challenge because “the government, in its brief, concedes that it
failed to produce sufficient evidence”); Gilliam v. United States, 80 A.3d 192,
205-06 (D.C. 2013) (deeming it “in the interests of justice to reverse [defendant’s]
convictions along with those” of co-defendants even though defendant failed to brief
dispositive issue because the government did not “defend the trial court’s ruling on
appeal”).
For those reasons, I would reverse Layne’s convictions for possession with
intent to distribute a controlled substance and for possession of a firearm during a
crime of violence. And I therefore respectfully dissent from the court’s decision to
affirm those convictions.