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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-CF-1082

                           DAMIAN SMITH, APPELLANT,
                                                                      09/21/2017
                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF2-14109-13)

                       (Hon. Neal E. Kravitz, Trial Judge)

(Submitted December 20, 2016                         Decided September 21, 2017)

      William C. Claiborne, III was on the brief for appellant.

       Channing D. Phillips, United States Attorney, and Elizabeth Trosman,
Elizabeth H. Danello, Andrew Floyd, and Janani J. Iyengar, Assistant United
States Attorneys were on the brief for appellee.

     Before EASTERLY, Associate Judge, and WASHINGTON, and FERREN, Senior
Judges.

      Opinion for the court by Senior Judge FERREN.

      Concurring opinion by Senior Judge FERREN at page 35.


      
        Judge Washington was the Chief Judge of the court at the time this appeal
was submitted. His status changed to Senior Judge on March 20, 2017.
                                          2

      FERREN, Senior Judge: Appellant, Damian Smith, was convicted of

possession with intent to distribute a schedule I controlled substance,1 “3-4

methylenedioxypyrovalerone” (MDPV), commonly known as “Bath Salts.” He

appeals his conviction, arguing for reversal on two grounds: (1) the government

failed to preserve physical evidence material to the defense and discoverable

pursuant to Super Ct. Crim. R. 16 (a)(1)(C); and (2) there was insufficient evidence

to justify Smith‟s intention to distribute the MDPV found in his possession. We

affirm.


                               I. Facts and Proceedings




      On July 20, 2015, a jury found Smith guilty of Possession with Intent to

Distribute (PWID) based on his possession of MDPV.               According to the

government‟s evidence at trial, he had been arrested on August 9, 2013, after his

girlfriend, Iesha Miller, called the police from her apartment.      When Officer

Armand Artinian responded to the call, he saw Smith on the couch without pants,

dressed in his boxer briefs. Before taking Smith into custody, Officer Artinian

asked him if he had pants he could wear. According to Artinian, Smith replied that

he had clothing in Miller‟s car, but Miller interjected that Smith had “some
      1
          D.C. Code, § 48-904.0l (a)(l) (2001).
                                          3

clothing in the bedroom.” Officer Artinian retrieved a pair of shorts from a bed in

the bedroom, and Miller confirmed that these were the clothing she had in mind.




      The officer then “walked over to Mr. Smith [with the shorts] and said, „Here.

Put these on.‟” Smith declined to do so (in Artinian‟s words) because “they were

not his” — they had “a hole in the crotch or a tear in the crotch.”2 The officer then

searched the shorts, found and removed “a bag full of white pills,” handed the

shorts to Smith, and directed him to put them on.           Smith did so and was

photographed wearing the shorts. This photograph was admitted in evidence at

trial over defense objection.




      Smith was wearing the shorts when he was transported to the D.C. jail, and

although the corrections officials took the shorts in exchange for jail garb, they

were not formally seized as evidence by the government. Smith was detained in

the jail for six months for violation of the terms of release on an unrelated domestic




      2
        Later, at trial, counsel for Smith also argued to the jury that a few days
before Smith was arrested, Miller had hosted an overnight party of 25 or so others
a few days earlier, one of whom could have left the shorts behind.
                                         4

violence charge and for sundry parole violations. He never retrieved the shorts,3

which apparently were destroyed.4




      In addition to denying Smith‟s motion to suppress the pills seized from the

shorts, the trial court declined Smith‟s Rule 16 request to suppress the photo

showing Smith wearing them.5 The government conceded, and the court agreed,

that the government had violated its Rule 16 obligation by failing to preserve the

shorts. Contrary to Smith‟s assertion, however, the court did not perceive a

“deliberate” or “intentional” destruction or loss of the shorts; it found the

      3
         On September 16, 2013, over five weeks after his arrest, Smith authorized
Iesha Miller to pick up his property at the D.C. Jail. She did so, minus the missing
shorts, on October 9, 2013, as evidenced by a property receipt.
      4
          At the pretrial suppression hearing, government counsel acknowledged
that the D.C. Jail destroys inmate clothing “15 days after intake . . . and that they
do not preserve for very long clothing that a prisoner arrives to D.C. jail in unless
someone comes and picks it up within 15 days of intake.”
      5
           D.C. Super Ct. Crim. R. 16 (a)(1)(C), applicable at the time of trial,
provided: “Documents and tangible Objects. Upon request of the defendant the
prosecutor shall permit the defendant to inspect and copy or photograph books,
papers, documents, photographs, tangible objects, buildings or places, or copies or
portions thereof, which are within the possession, custody or control of the
government, and which are material to the preparation of the defendant‟s defense,
or are intended for use by the government as evidence in chief at the trial, or were
obtained from or belong to the defendant” (emphasis added). This rule was
amended in 2016 and now appears, as modified, in Super. Ct. Crim. R. 16
(c)(1)(E).
                                         5

government culpable only of “negligence” and accordingly fashioned three Rule

16 sanctions. The prosecution was precluded from (1) arguing that the shorts fit

Smith; (2) eliciting opinion testimony from the police about whether the shorts fit;

and (3) objecting (as hearsay) to admission of Smith‟s prior out-of-court statement

that the shorts were not his.


                                II. Rule 16 Issue


     A. Standard of Review

      On appeal, Smith argues that the sanctions imposed against the government

for failing to preserve the shorts were inadequate. Contrary to the trial court‟s

finding, he maintains that the government had “deliberately destroyed the shorts

after extracting from them all of the evidentiary value.” As a consequence, he

says, the “staged” photograph depicting his wearing the shorts at the scene of arrest

(in an effort to show that they “fit”) should have been withheld from the jury as an

essential Rule 16 sanction.




      In challenging the trial court‟s refusal “to suppress the photograph,” Smith

stresses that the court, as a matter of law, misapplied the factors required for

determining appropriate Rule 16 sanctions. We review ultimately for abuse of trial
                                           6

court discretion,6 an analysis that — if we find legal error along the way — extends

to determining, as a separate matter, whether the error was of a “magnitude to

require reversal,”7 or, instead, was “harmless” under Kotteakos v. United States.8

Initially, therefore, we review de novo whether the court considered the proper

factors in assessing whether and how to sanction the government for its Rule 16

violation.9


      6
         See Williams v. United States, 77 A.3d 425, 437 (D.C. 2013) (“decisions
whether and how to sanction the government for a violation of Rule 16 are
committed to the discretion of the trial judge”); Ferguson v. United States, 866
A.2d 54, 59 (D.C. 2005) (“Generally, in reviewing a denial of a request for
sanctions, we must ascertain whether the trial court abused its discretion.”).
      7
         (Markus) Johnson v. United States, 960 A.2d 281, 295 (D.C. 2008) (in
reviewing for abuse of discretion, “if we find error, we must consider whether it
was harmless.”) (citing (James) Johnson v. United States, 398 A.2d 354, 366 (D.C.
1979) (“having found error, is it of a magnitude to require reversal.”) (emphasis
omitted)).
      8
         328 U.S. 750, 765 (1946) (“But if one cannot say, with fair assurance,
after pondering all that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the error, it is impossible
to conclude that substantial rights were not affected.”); see Ferguson, 866 A.2d at
65 (quoting Kotteakos in holding that appellant “was not substantially prejudiced”
by government‟s failure to comply with Rule 16); Jackson v. United States, 768
A.2d 580, 584 (D.C. 2001) (remanding record for adequate findings to permit
review of whether documents withheld in violation of Rule 16 were “prejudicial”
under Kotteakos).
      9
        See Ferguson, 866 A.2d at 59 (in reviewing trial court Rule 16 discovery
determination for abuse of discretion, this court reviews for “correct interpretation
and application of Rule 16, . . . a legal question, . . . de novo[,]” and if court denies
the discovery request, this court “determine[s] whether the nondisclosure was
                                                                (continued . . .)
                                         7



     B. Law Governing Evaluation of Trial Court Sanctions under Rule 16


    Recently, in Koonce v. District of Columbia,10 this court reconfirmed the

following three criteria for evaluating trial court sanction decisions under Rule 16.

We must weigh “(1) the degree of [government] negligence or bad faith involved;

(2) the importance of the evidence lost; and (3) the evidence of guilt adduced at

trial[,] in order to come to a determination that will serve the ends of justice.”11

This court has commonly applied these criteria verbatim to sanctions analysis in

Rule 16 cases.12

___________________________
(. . . continued)
prejudicial”) (quoting Jackson,768 A.2d at 584 (citing Kotteakos, 328 U.S. at 764-
65.))
         10
            111 A.3d 1009, 1014 (D.C. 2015) (quoting United States v. Day, 697
A.2d 31, 35 (D.C. 1997) and Cotton v. United States, 388 A.2d 865, 869 (D.C.
1978)).
      11
         Id. In Koonce and earlier cases, the comma bracketed in criterion (3)
above is omitted. We add it to make clear that all three criteria are germane to
serving the “ends of justice.”
      12
          We occasionally have employed somewhat different formulations for
evaluating Rule 16 sanctions. For example, in Robinson v. United States, 825 A.2d
318, 331 (D.C. 2003) (quoting Brown v. United States, 372 A.2d 557, 560-61
(D.C. 1977)), we assessed the „“(1) the circumstances occasioning the loss; (2)
systematic steps taken toward preservation; and (3) the magnitude of demonstrated
evidentiary materiality.‟” And in Ferguson, 866 A.2d at 59 (quoting Lee v. United
States, 385 A.2d 159, 163 (D.C. 1978)), we applied „“(1) the reasons for the
nondisclosure; (2) the impact of the nondisclosure on the trial of the particular
                                                          (continued . . .)
                                          8



      1. “The Degree of Negligence or Bad Faith Involved” (culpability for
         the loss)



      We look, first, at culpability for the loss. For context we begin with the

obvious: unless the government could prove that the shorts in which the drugs

were found belonged to Smith, there could be no conviction. Thus, absent the

shorts, the photo of Smith wearing them was essential to the government‟s case,

and Smith‟s defense substantially turned on rebutting the government‟s prima facie

showing, through the photo, that they fit him. As explained below, the trial court

committed two errors. First, the government‟s fault was greater than the trial court

found. Second, and contrary to another trial court finding, responsibility for loss of

the shorts was not properly allocated, even in part, to appellant Smith.




___________________________
(. . . continued)
case; and (3) the impact of the particular sanction on the proper administration of
justice in general.‟” Our most recent decision, Koonce, and its forebears, see supra
note 10, are derived from the original formulation in this jurisdiction in United
States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971). For that reason, we choose to
apply the Koonce/Bryant criteria here.
                                           9

      a.      The Government’s Negligence

      As we have noted, at trial the court rejected Smith‟s allegation that the

government had deliberately destroyed the shorts. Rather, the court attributed that

loss to “ordinary negligence on the part of the government”; there was no “bad

faith or any intention to hide material evidence” — no record basis “to believe that

the government thought the shorts were somehow exculpatory or otherwise

beneficial to the defense and sought to hide them from the defendant.”13 The court

elaborated:

              My sense of what happened is that Officer Artinian just
              did not understand the pertinence of the shorts . . . . It‟s
              somewhat surprising to me. He‟s been an officer for
              several years. But I guess he‟s not a — he‟s not a
              narcotics investigator. And I guess he was just thinking
              of this, as government counsel has said, really as a
              domestic violence investigation and didn‟t realize that
              these other issues were — were of importance. That


      13
           In finding no “bad faith” by the government, the trial court implicitly
found no constitutional violation. See Koonce, 111 A.3d at 1014 (“[T]o show that
a failure to preserve discoverable evidence that is „potentially useful to the
defense‟ violates due process, appellant must also establish that the government
acted in bad faith” (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
Although Smith‟s trial counsel argued that “the only remedy” for the missing
shorts was “dismissal” of the prosecution, he never made a constitutional claim
that the government‟s failure to preserve the shorts reflected bad faith — a finding
we have held essential to a dismissal sanction under Rule 16. See Williams, 77
A.3d at 437-38 (quoting Day, 697 A.2d at 36)).
                                          10

              said, I think he should have realized it. And that‟s why I
              think there‟s some negligence here.[14]


      In finding “ordinary” or “some” negligence, the trial court limited the

government‟s neglect to the actions of Officer Artinian, based on the officer‟s own

apparent impression or assumption that the shorts were not exculpatory. As far as

we can tell, moreover, the court appeared to understand the officer‟s neglect as an

exercise of poor judgment, not as a violation of an MPD general order specifying

that police “officers must preserve all potentially discoverable material” that

“comes into the[ir] possession.”15      The government, however, has a Rule 16

obligation that transcends the judgment of an “individual officer.”16 “We have

repeatedly recognized that the government has a general duty to preserve

discoverable evidence under Superior Court Criminal Rule 16 (a)(1)(C) and long-

established case law.”17




      14
         The jury was informed that Officer Artinian had been reprimanded and
docked vacation time for an unrelated incident of mishandling prisoner property.
      15
           See MPD General Order 601.02 I., IV.A. (2004).
      16
         Koonce, 111 A.3d at 1016 (“The government‟s discovery obligations are
measured by the standards set out in Rule 16, not the subjective notions of what an
individual officer might „seem to believe.‟”).
      17
           Id. at 1013 (internal quotation marks and brackets omitted).
                                         11

      Earlier, at the pretrial hearing on sundry motions to suppress, the trial court

appeared to recognize that Officer Artinian was not alone at fault. After citing the

government‟s Gerstein proffer,18 which referenced the drugs found in a “pair of

men‟s shorts,” the court remarked that the “U.S. Attorney‟s Office would have

understood the evidentiary significance of those shorts” and “probably should have

gotten a search warrant” to seize them. But the court apparently did not factor the

prosecutor‟s inaction into the negligence calculus.




      We may assume that an arrestee‟s clothing, exchanged for prison garb, does

not inherently signal evidentiary significance (in contrast, for example, with a

videotape of an arrest scene). But the trial court here assuredly recognized before

trial that the shorts the police had ordered Smith to wear — distinguishable from a

arrestee‟s usual clothing by Smith‟s disclaimer of ownership — qualified for

preservation under Rule 16. Thus, despite the court‟s observation at trial limiting

government culpability to the negligence of Officer Artinian, the court had to be

aware, from the pretrial hearing, of the significance of the shorts for the defense,

and thus of the prosecutor‟s — not just the officer‟s — responsibility to preserve

that evidence.

      18
           Gerstein v. Pugh, 420 U.S. 103 (1975).
                                          12



      Accordingly, given the prosecutor‟s as well as the officer‟s negligence —

only the latter of which the court clearly appears to have factored into its

culpability analysis — we cannot say that the government‟s fault was limited to the

court‟s reliance on Officer Artinian‟s simple negligence. To be sure, we have

observed that “[t]he trial court has considerable discretion in determining the

degree of negligence or bad faith involved in the failure to preserve evidence,” and

“[w]e will disturb the trial court‟s findings that the government did not act in bad

faith or was not grossly negligent only if those findings are plainly wrong or

without facts to support [them].”19 In this case, however, we must conclude that

the facts do not support a limitation of the government‟s culpability to ordinary

negligence (even if we were to assume that the trial court‟s awareness of the

prosecutor‟s responsibility was folded into the ordinary negligence determination).

We are satisfied that evidence supports the trial court‟s finding that the government

did not “deliberately” fail to preserve the shorts handed to Smith. But on this

record, given the failure not just one, but two, responsible government departments




      19
           Koonce, 111 A.3d at 1014 (internal citations omitted).
                                          13

to assure the required preservation, we perceive no less than gross negligence by

the government.20




      b.     Erroneous Assignment of Partial Culpability to Appellant


      The trial court, however, did not limit its negligence analysis to the

government; the court injected the question whether Smith himself shared

responsibility for assuring retention of the shorts. This, too, was clear error.




      Early at the pretrial hearing, counsel for Smith informed the court that

neither he nor “anyone else [he] was aware of” (implying previous counsel at

Smith‟s arraignment) had told Smith “to preserve those shorts.” Later at the

hearing, the prosecutor explained that the D.C. Jail followed a standard procedure:

holding inmate clothing no longer than 15 days after intake, subject to destruction

unless retrieved on the inmate‟s behalf. Nonetheless, in learning of that policy, the


      20
          Cf. Day, 697 A.2d at 35-36 (in negligent vehicular homicide case, the
government was found grossly negligent in failing to preserve from destruction
appellant‟s Oldsmobile of “paramount significance” to defense preparation, but
dismissal of the indictment was reversed, and the case was remanded for trial,
because dismissal would have been justified, as violation of due process, only upon
showing of bad faith).
                                           14

trial court did not address whether the government, knowing the importance of the

shorts to the defense, had a duty to make timely disclosure of that policy at

arraignment or otherwise within the 15 days. Instead, the trial court responded to

the destruction policy, as applied to the shorts, merely by saying that it “sounds

like they‟re probably destroyed.”        The court then went on to assign partial

responsibility for loss of the shorts to Smith:




             [T]he equities [were] not entirely on the defendant‟s side,
             given the defendant actually had possession of the shorts
             for some period of time when he was under arrest and
             before he was transported to the D.C. Jail and that he and
             his lawyer certainly had just as good an opportunity as
             the government to understand the materiality of these
             shorts.




      The court, in other words, was suggesting that although Officer Artinian had

seized the MDPV pills at the scene of arrest, Smith continued to wear the shorts

until he was processed at D.C. Jail, and then at the court, leaving him (once he had

a lawyer) in a position to assure their retention as evidence. Exploiting that

opportunity, reasoned the court, would have supported Smith‟s assertion at the

scene of arrest (if true) that the shorts were not his.
                                           15

      Contrary to the trial court‟s statement quoted above, there is nothing of

record to indicate that Smith had an opportunity to assess the legal significance of

the shorts between his arrest and intake at the jail on August 9, 2013, and his

arraignment the next day in court when counsel was appointed for him. Smith

concedes in his brief that the Department of Corrections (DOC) provided him

“with a notice saying that it was the [Department‟s] policy to destroy all property

taken from inmates, including clothing, if not picked up within 15 days.”

However, neither Smith‟s brief nor the trial court record discloses when Smith

received this notice; nor does the government argue that the notice shifted any

responsibility to Smith for retrieval of the shorts.21




      In any event, whatever notice of the 15-day destruction policy Smith may

have received, such notice was irrelevant to the trial court‟s sanctions analysis.

The trial court had already determined that the government had violated its

obligation to disclose, pursuant to Rule 16, a tangible object in its custody or
      21
          Perhaps the jail‟s clothing-destruction policy was stated on the form that
Smith signed when he exchanged street clothes for jail garb. See Department of
Corrections Policy and Procedure, 4050.1F, Attach. 1, Inmate property (2013).
That policy also was stated on the DOC website. See Department of Corrections
Policy and Procedure, Inmate property No. 4050.1F § 17 (2013),
https://doc.dc.gov./page/doc-program-statements. The government, however, has
cited neither of these sources; nor has it argued whether — or how or when —
Smith received such notice.
                                          16

control. We are aware of no authority that would permit notice of a policy to

destroy objects in the government‟s custody or control to override the

government‟s “general duty to preserve discoverable evidence” (here the shorts)

under “Rule 16 (a)(1)(C) and long-established case law.”22           Nor is there any

evidence that Smith in any way thwarted the government‟s preservation of the

shorts. Accordingly, we are unwilling to say that the government‟s failure to

preserve the shorts in its custody can be mitigated by an opportunity the defense

may have had to prevent their disappearance.23




        2. “Importance of the Evidence Lost” (magnitude of adversity to
           defense preparation)




      We turn, next, to the importance of the evidence lost — the magnitude of



      22
         Koonce, 111 A.3d at 1013 (quoting Williams, 77 A.3d at 435 (quoting
Bean v. United States, 17 A.3d 635, 638 (D.C. 2011))).
      23
          Although the trial court erroneously found that the government‟s failure
to preserve the shorts was no more than “some” or “ordinary” negligence, and that
Smith was partly at fault for their loss, it is important, in fairness, to note that the
court sua sponte raised the shorts-preservation issue. The court asked where the
shorts were when Smith‟s counsel, pretrial, objected to admission of the
photograph on the ground that, in forcing Smith “to wear those shorts,” Officer
Artinian had created “tainted evidence” — “evidence from non-evidence.”
                                          17

adversity to defense preparation — absent remedial sanctions.24 At the outset of

trial, the court recognized that the photograph of Smith wearing the shorts, which

Smith sought to keep from the jury, was highly material to the government‟s case.

Indeed, if the photo showed that the shorts fit Smith, it would support a finding that

the MDPV pills found on the shorts were Smith‟s as well. Thus “ultimately,” the

court observed, “the photograph is probably going to be viewed as the most

relevant evidence to the jury.”



      Smith does not dispute that the contested photo entered in evidence depicted

him wearing the shorts. At a pretrial colloquy with counsel, however, the trial

court observed that the photo did not necessarily show a clear fit, if only because

Smith‟s shirt was pulled over the waist.25 Nonetheless, with Smith standing up, the

shorts fit well enough not to fall down. Moreover, if not precluded by sanction,

officers at the scene would have been free to testify that the shorts fit Smith, and

the prosecutor, if not also precluded, would surely have reminded the jury of that

testimony in closing argument.
      24
          See Koonce, 111 A.3d at 1014 (“importance of the evidence lost”);
Ferguson, 866 A.2d 54 at 59 (“impact of the nondisclosure on the trial”);
Robinson, 825 A.2d at 331 (“magnitude of demonstrated evidentiary materiality”).
      25
         According to the trial court, it was “unfortunate that the shirt covers up the
waistline of the shorts. You can‟t see . . . at all whether the waist is the correct
size.”
                                         18

      Had the shorts been available at trial, we cannot say that Smith could have

proved that they did not fit. But with their loss — without effective mitigating

sanctions in place — it is evident from the photo (and Officer Artinian‟s

testimony) that Smith‟s denial that he owned the shorts faced substantial, if not

insurmountable, roadblocks.26




      3. “Evidence of Guilt Adduced at Trial”




      We consider, finally, the third Koonce criterion for evaluating sanctions:

“the evidence of guilt adduced at trial[,] in order to come to a determination that


      26
          Smith‟s hearsay denial to Officer Artinian at the scene of arrest was the
only evidence before the jury that Smith disclaimed ownership of the shorts. Smith
now argues — for the first time on appeal — that loss of the shorts unfairly
undermined his denial of ownership in a way unrelated to how they fit. Officer
Artinian testified that when he handed the shorts to Smith, Smith denied that they
were his because they had a “hole” or “tear” in the crotch, a feature not disputed at
trial. Smith now complains (without having done so at trial) that the officer‟s
testimony erroneously implied that Smith could not have seen the hole when the
shorts were handed over, and thus that in recalling the hole, Smith must have
known the shorts were his. Smith never makes clear how having the shorts in
evidence at trial would have refuted that implication. Moreover, the officer‟s
testimony did not unequivocally say that Smith could not have seen the hole during
the hand-over. Finally, Smith‟s crotch-tear argument lacks currency because the
prosecutor did not ever mention at trial the implication of Officer Artinian‟s
testimony that Smith posits — an implication that never was part of the
government‟s case and, in sum, has no force on this record.
                                           19

[would] serve the ends of justice.”27 The evidence of Smith‟s guilt was substantial,

primarily (1) pills (according to expert testimony) filled with an unlawful

controlled substance taken from shorts that were identified to the police as Smith‟s

by his girlfriend, and (2) shorts that appeared to fit Smith, as evidenced by a photo

from the scene of the arrest and seizure. Again: absent sanctions effectively

mitigating unavailability of the shorts at trial, Smith‟s opportunity to rebut the

government‟s prima facie case that the shorts and pills belonged to him was

undoubtedly jeopardized.



      Our evaluation of this “guilt” criterion requires us to determine whether the

sanctions that limited prosecution tactics were both responsive and proportional to

the government‟s failure to produce the shorts, in order to ensure not only that any

advantage to the government from that loss was effectively mitigated but also to

provide adequate deterrence against similar derelictions in the future.28 We are

satisfied that the trial court adequately satisfied these concerns.




      27
           Koonce, 111 A.3d at 1014; see supra note 11.
      28
         See Lee v. United States, 385 A.2d 159, 163-64 (D.C. 1978) (sanction for
violating Rule 16 “served neither to redress the conceded negligence of the
government nor to deter it in the future,” and therefore was “not just under the
circumstances”).
                                         20

      Because the trial court could not dismiss the case absent a showing that the

government had acted in bad faith,29 the trial court took mitigation of the Rule 16

violations very seriously; it carefully crafted sanctions that precluded the

government from capitalizing on that violation. In recognizing that a central issue

would be whether the shorts fit Smith, the court, as we have noted, precluded the

government from: (1) arguing that the shorts fit Smith; (2) eliciting testimony from

the police about whether the shorts fit; and (3) objecting (as hearsay) to admission

of Smith‟s prior out-of-court statement that the shorts were not his.




      At the same time, the trial court indicated that it did not want “to go

overboard.” The court had observed at a pretrial hearing that one could not see

from the photo “whether the waist is the correct size,”30 but the court said later at

trial that the photo was not misleading: there was no reason to believe that the

photo “inaccurately portray[ed] the way that the defendant fit into those shorts.”

The court ruled, accordingly, that barring admission of the photograph would not

be appropriate. The court added that the government was free to ask the jury to

draw its own conclusions from the photograph and “consider how well the shorts


      29
           See supra note 13.
      30
           See supra note 25.
                                           21

fit on the defendant in determining whether the government has proved beyond a

reasonable doubt that the drugs recovered from the shorts were in the defendant‟s

possession.”




      In this way, the court — we believe properly — sought to achieve (in its

words) the “goal” of “strip[ping] what [it] consider[ed] to be unfair — any unfair

advantage that the government might otherwise get from the absence of the

[shorts] from the trial but not to . . . prevent the government from presenting what

is, I think, relevant but not distorted evidence.”




                                         *****


      In sum, in considering whether and how to sanction the government for its

Rule 16 violations, the trial court erred in assessing culpability, the first Koonce

criterion; it understated the government‟s negligence while improperly allocating

partial fault to Smith. The court, however, satisfied the second and third criteria,

effectively recognizing the importance of the evidence lost, as well as properly

accounting for the evidence adduced at trial, when crafting the sanctions.
                                         22

    C. Harmless Error

      We now must determine whether the trial court‟s errors in finding the

government responsible for ordinary, rather than gross, negligence, and assigning

partial responsibility to Smith for loss of the shorts, resulted in sanctions

insufficient to “serve the ends of justice” — and thus constituted an abuse of

discretion. To the contrary, the sanctions were indeed sufficient. In spite of the

court‟s errors, the three sanctions adequately compensated the defense for the

missing shorts. It is “highly probable” that the trial court‟s errors “did not affect

the verdict”; they were harmless — as we shall explain.31




      First, the trial court conscientiously exercised its discretion. Although the

court understated the government‟s culpability, that error did not appear to affect,

let alone undermine, the court‟s sanctions analysis.        Without regard to the

government‟s degree of fault, the court clearly expressed a desire not to allow the

government an “unfair advantage.” Nor is there any evidence that the court cut

back on sanctions because it erroneously believed that Smith had been partially


      31
           See Robles v. United States, 50 A.3d 490, 495-96 (D.C. 2012), as
amended on denial of reh’g and reh’g en banc (May 15, 2013) (under Kotteakos,
the government must show that it is “highly probable” that “the error did not affect
the verdict”).
                                         23

responsible for loss of the shorts.    In sum, the trial court took great care in

fashioning sanctions that would appropriately limit the impact of the photo as a

substitute for the shorts.32



       Second, in addition to the trial court‟s conscientious exercise of discretion,

the record convinces us, objectively, that the court‟s sanctions were effective.

They were powerful; the government was precluded in three significant ways from

eliciting evidence that the shorts fit (evidence that Smith could otherwise not

effectively rebut because the shorts were gone).           More specifically, and

significantly, the first two sanctions prevented the prosecution from “pounding

home” to the jury, through police witnesses and closing argument, that the pants

doubtless fit Smith33 — sanctions consistent with the trial court‟s own perception

       32
          Relying on language from Koonce, Smith contends that the missing shorts
were “central to the government‟s proof,” 111 A.3d at 1021, were therefore
essential “for use by Mr. Smith,” and thus could not be represented at trial by a
substitute “staged photograph.” As in Koonce, however, where we upheld
sanctions calibrated to compensate for a missing videotape and liquor bottle, we
perceive no basis for suppressing the photo as a matter of law without inquiry as to
whether sanctions in lieu of the missing shorts would be “just under the
circumstances.” Id. at 1020 (quoting Gethers v. United States, 684 A.2d 1266,
1272 (D.C. 1996)).
       33
          In closing argument, therefore, the government referenced the fit of the
shorts, without objection, in only a general way, stating that “[m]any people when
presented with a pair of shorts would not be concerned about the ownership of
those shorts or perhaps whether they fit or not.”
                                        24

of the photograph‟s inconclusive value.34 Nor, because of the third sanction, could

the prosecutor directly question Smith‟s hearsay denial that the shorts were his.35

Accordingly, aside from the photo, the government could not effectively

corroborate whether the shorts fit Smith.




      Finally, Smith‟s defense, as enhanced by the sanctions, was substantial, not

weak. It consisted of: (1) Smith‟s denial that the shorts belonged to him; (2) the

innuendo (government malfeasance) attributable to the very fact that the shorts

were missing36 (although defense counsel was not allowed to argue that the

government had failed to produce the shorts because “they knew they didn‟t fit”

Smith); (3) counsel‟s suggestion that the shorts themselves might have revealed




      34
           See supra note 25.
      35
          Because Officer Artinian, in the government‟s case, acknowledged that
Smith had denied ownership of the shorts, it is not clear how the government could
have objected to Smith‟s hearsay denial. We can reasonably infer from the third
sanction, however, that the court would not have permitted the government to
directly question that denial.
      36
          During closing arguments, defense counsel argued that the shorts were
not Smith‟s, asking, “Where are they? Where are the shorts? Where are the
shorts? Where is the evidence? Where are the shorts? No DNA. No name inside
of the label; not even an understanding based on the photograph and we have the
shirt coming over the waist. Officer Artinian, how does he put the shorts on?
Well, — well, with difficulty.”
                                        25

ownership through DNA analysis or a label implicating someone else; 37 (4)

counsel‟s argument that the photo did not assuredly show that the shorts fit Smith

— a perception (as previously noted) that was shared by the trial court;38 and (5)

the suggestion that the shorts may have belonged to a recent houseguest of Ms.

Miller.39




      Accordingly, in light of the benefits to the defense from the sanctions

imposed (whether the government‟s negligence was “ordinary” or “gross”), it

would be a stretch to conclude that any discernible prejudice to the defense from

the photo was serious enough to warrant its suppression — especially when

suppression would create severe (perhaps conclusive) jeopardy to the

government‟s case40 without findings that the government had acted deliberately



      37
            See supra note 35.
      38
            See supra note 25.
      39
            See supra note 2.
      40
            Suppression of the photo would not have been a dismissal of the
indictment, a sanction justified only upon a constitutional, due process violation
attributable to bad faith. See Day, 697 A.2d at 35-36 (citing Arizona
v.Youngblood, 488 U.S. 51, 58 (1988)); accord Williams, 77 A.3d at 437-38. On
the record here, however, suppression of the photo, as a practical matter, may well
have led to abandonment of the prosecution.
                                         26

or in bad faith.41 Under these circumstances, we cannot conclude that the trial court

abused its discretion in fashioning the sanctions, which in our judgment were

carefully crafted to put appropriate limitations on the government‟s use of the

photograph. After reviewing the proceeding, as limited by the trial court‟s

sanctions, we cannot say to any meaningful level of certainty that the loss

“substantially prejudiced” Smith.42 Although the trial court committed two

discretionary errors, they were “harmless,” not of a “magnitude to require reversal”

under Kotteakos.43



            III. Sufficiency of the Evidence for Distribution of MDPV




      Smith next argues that the evidence was insufficient to prove “the identity of

the alleged controlled substance” (MDPV) or his “intent to distribute it,” as

required for conviction of PWID.




      41
           See supra note 13 and accompanying text.
      42
           Ferguson, 866 A.2d at 65, 67; see supra note 8.
      43
           See supra notes 8 & 9.
                                        27

      A. Expert Testimony

      Smith begins by citing Digsby v. United States44 for the proposition that, for

possession with intent to distribute, the evidence must be enough to “conclude

beyond a reasonable doubt that a measurable amount of [the controlled substance]

was seized.”45 To establish that amount from the pills seized from the shorts, the

government relied on testimony by a “forensic chemist” from the Drug

Enforcement Agency (DEA), Stephen Michael Demchuk, whose qualifications as

an expert in “analysis of controlled substances” were not challenged. Citing DEA

policy, Demchuk tested one, randomly selected pill of the 79 seized and found that

it contained .28 grams net weight of “3-4 methylenedioxypyrovalerone”

(MDPV).46      Demchuk further testified that, although he had tested only one pill

and did not “know what the other tablets were,” he had “looked at each of the



      44
           981 A.2d 598 (D.C. 2009); accord Thomas v. United States, 650 A.2d
183, 184 (D.C. 1994) (en banc) (for conviction of controlled substance violation,
“government need only prove there was a measurable amount of the controlled
substance in question”); Price v. United States, 746 A.2d 896, 899 (D.C. 2000)
(meaning that the detectable amount must be “quantifiable,” and more than a
“trace.”).
      45
           Digsby, 981 A.2d at 608.
      46
        At the time Demchuk received the bag there were 76 pills and several pill
fragments which, he concluded, accounted for the three other pills of the original
79.
                                         28

tablets and the markings on them. They were white, round tablets with a duck

imprint on them. They all appeared identical.”




      Smith does not dispute that the one pill tested contained MDPV. Nor does

he question that one pill was a measurable amount, meaning it was “quantifiable,”

not merely a “trace” of the substance.47 Rather, Smith contends that DEA expert

Demchuk, by testing only one pill, did not rely on “a scientifically valid sample”

sufficient to establish reliable proof that the remaining pills contained an unlawful

controlled substance. Indeed, Smith contends in his brief — correctly — that

Demchuk “offered no testimony” beyond exterior appearance “to support any

inference that the pills which he did not test contain[ed] the same substance as the

pill which he did test.”




      The government, however, relied on the testimony of another expert for

evidence of Smith‟s intent to distribute MDPV, rather than mere possession for




      47
           See supra note 42. Neither party requested a lesser included offense
instruction that would have permitted conviction based on mere possession.
                                         29

personal use of whatever amount he had.48          That “narcotics expert,” MPD

Detective George Thomas, testified that anyone who possessed “in excess of seven

[MDPV] pills” would have “an amount significant enough for distribution.” He

further testified, accordingly, that for personal use an individual would have, at

most, no more than five (he later said seven) pills. Carrying more than that for

personal use, he added, was uncommon because “a user always runs the risk of

getting ripped off just on one pill. . . . [T]hey‟re not going out and buy 25 to 50

pills at a time.”




       Then came a critical question from the prosecutor: “[h]ow confident are you

that these pills [in the bag taken from Smith] are of the same manner and

character?” Detective Thomas answered, “I‟m 95 percent confident that they are

the same manner, the same texture; they‟ll produce the same chemical analysis or

color reaction from a [positive] field test associated with these pills.”49 (Earlier,


       48
         We have said that the government can prove specific intent to distribute
“from expert testimony and the possession of a quantity of drugs that exceeds a
reasonable supply.” Taylor v. United States, 662 A.2d 1368, 1371 (D.C. 1995).
An expert, therefore, will commonly testify about the “packaging, and value of the
drugs possessed,” in order to distinguish the situation from possession for mere
personal use. Spriggs v. United States, 618 A.2d 701, 704 (1992).
       49
          An unidentified pill taken from the bag in the shorts had been field-tested
at the police station after Smith‟s arrest and tested positive for amphetamines. A
                                                             (continued . . .)
                                          30

Thomas had testified that the pills did not appear to be counterfeit because they all

had “clear valleys and peaks,” not “pits and the ridges” typically found on

counterfeits.)   The detective then concluded, based on the volume and his

estimated value of 79 pills ($3,800), that Smith had possessed them “with the

intent to distribute and not for personal use.”




      There was no objection to any substantive testimony of Detective Thomas.50




___________________________
(. . . continued)
field test is not dispositive but nonetheless can „“constitute evidence‟ of the
identity of the seized substance.” Digsby, 981 A.2d at 605 (citing Duvall v. United
States, 975 A.2d 839, 845-46 (D.C. 2009)).
      50
            Counsel for Smith did not challenge the qualifications of Detective
Thomas to testify as an expert in the areas of “distribution,” “packaging,” and
“pric[ing]” narcotics, as well as on MPD and DEA “procedures for safeguarding
narcotics evidence.” Nor did counsel object to the substance of the Thomas
testimony summarized in the text above. Counsel limited his objections to the
prosecutor‟s questions of Thomas, on redirect examination, about the size, shape,
and color of the pills (sustained as irrelevant) and about the defense intimation that
pills in the batch may have been counterfeits (questions clarified). Counsel,
moreover, did not object to the prosecutor‟s closing argument to the jury or to the
trial court‟s PWID instructions to the jury, which virtually tracked the ones we call
“standard.” See Criminal Jury Instructions for the District of Columbia, No. 6.201
(4th ed. rev. 2008).
                                            31

       B. Arguments on Appeal

       On appeal, Smith contends that Detective Thomas was “not qualified to

opine on probability or statistical evidence,” and that he had erroneously relied on

the “appearance” of the untested pills, not on analysis of their “substance,” to

establish that the quantity of pills was great enough to reflect an intent to distribute.

Smith calls the detective‟s testimony “junk science,” stressing that the prosecutor,

in closing argument to the jury, relied on an impermissible inference from the one,

tested pill that “all the pills in the bag were bath salts.”




       We must reject these contentions, as Smith offered no objection at trial

challenging Detective Thomas‟s expert qualifications or his testimony that he was

“95 percent confident” that all the pills taken from the bag in the shorts contained

MDPV.51 The trial court was well aware that Smith appeared satisfied to have the

Thomas testimony go to the jury intact. In denying Smith‟s motion for judgment




       51
           In claiming insufficiency of the evidence, Smith maintains that the
government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose
that the testimony of MPD Detective George Thomas in support of the charged
intent to distribute “was not scientifically reliable.” Having rejected Smith‟s
argument, absent objection at trial, that the detective had engaged in “junk
science,” we perceive no room for this argument.
                                           32

of acquittal at the end of the government‟s case (after which the defense rested

without presenting additional evidence), the trial court added:




             I will say I was somewhat surprised by the redirect
             examination testimony of Detective Thomas, which came
             in without objection, that he‟s 95% confident that all of
             these pills are the same. I actually think that‟s outside his
             area of expertise, but there was no objection. And it
             came in so I think it’s in the record, for whatever it’s
             worth. (Emphasis added.)




      Absent objection, therefore, the following evidence was before the jury: that

one pill taken from the shorts worn by Smith, retrieved from the scene of arrest

by Officer Artinian, tested positive for MDPV; that a field-tested pill found in the

shorts was also MDPV-positive; that all the pills found in the shorts looked alike;

and that according to Detective Thomas, a narcotics expert: the pills did not

appear to be counterfeit; he was 95% sure, from their “manner” and “texture,” that

the pills would produce the “same chemical analysis or color reaction from a field

test associated with these pills”; and that because of the number and estimated

value of the pills (76 valued at $3,800), Smith had possessed them “with the intent

to distribute and not for personal use.”
                                         33

      Based on this evidence (including any that could be called circumstantial),52

we have no doubt — nor did the trial court in denying Smith‟s motion for

judgment of acquittal53 — that a reasonable jury could find Smith guilty beyond a

reasonable doubt of possession with intent to distribute a schedule I controlled

substance, MDPV.54



      C. Reply Brief Argument: Lack of Foundation for Detective Thomas’s
         Testimony




      For the first time in his reply brief — citing the trial court‟s comment that

Detective Thomas appeared to be “outside his area of expertise” when testifying

that he was “95% confident that all of these pills are the same” — Smith asks this

court to find plain error in the trial court‟s allowing that testimony to go to the
      52
         Bernard v. United States, 575 A.2d 1191, 1193-94 (D.C. 1990)
(circumstantial evidence sufficient to prove identity of suspected unlawful drug).
      53
         In his motion for judgment of acquittal, counsel for Smith focused almost
exclusively on challenging the chain of custody of the pills, which is not an issue
on appeal.
      54
           We have affirmed convictions in similar cases with fewer drugs worth
significantly less than the drugs seized in this case. See, e.g., Taylor, 662 A.2d at
1371 (crack cocaine worth $180 sufficient for conviction of possession with intent
to distribute); Spriggs, 618 A.2d at 704 (eight packets of heroin and five packets of
cocaine worth approximately $470 sufficient for conviction of possession with
intent to distribute).
                                          34

jury.55 We decline this invitation. “[I]t is the longstanding policy of this court not

to consider arguments raised for the first time in a reply brief.”56 Accordingly:



              [p]oints not urged in a party‟s initial brief are treated as
              abandoned. . . . We follow this rule because the failure to
              raise an issue in one‟s brief prevents the opposing party
              from briefing the issue, and it prevents both this court
              and opposing counsel from preparing for its
              consideration.57



       In extraordinary circumstances, of course, we could waive this limitation in

order to pursue further review. Here, however, the record does not suggest a

reason why we should consider this new argument challenging intent to distribute,

especially when the government will have lacked an opportunity to be heard on it.

As to the evidence itself, the DEA test of one pill, coupled with a field test of

another from the same bag — a bag containing at least 76 look-alike pills —




      55
        As noted earlier, see supra note 50, Smith did not question Detective
Thomas‟s expertise at trial.
      56
          Aeon Fin. LLC v. District of Columbia, 84 A.3d 522, 530 (D.C. 2014)
(quoting Marshall v. United States, 15 A.3d 699, 711 n.2 (D.C. 2011) (internal
quotation marks omitted)).
      57
           In re Shearin, 764 A.2d 774, 778 (D.C. 2000) (citations omitted).
                                            35

strongly suggests a quantity of pills containing MDPV. We therefore shall not

extend the inquiry to plain error review.



                                       *****



      For the reasons explained above, the judgment of conviction is affirmed.



                                                     So ordered.




      FERREN, Senior Judge, concurring: Without dispute, the government‟s

grossly negligent loss of appellant Smith‟s shorts — evidence material to both the

defense and the prosecution — was a violation of Super. Ct. Crim. R. 16.

Fortunately for the government, however, the prosecutor had a photograph of

Smith wearing shorts at the scene of arrest — evidence in lieu of the missing shorts

that was essential to the government‟s case. If that photo were to be admitted in

evidence, however, the trial court was required to impose effective Rule 16

sanctions on the prosecution‟s use of the photo, in order to compensate the defense

for unavailability of the shorts in the courtroom. Implicitly, therefore, the law, and

thus this court‟s analysis, is premised on an assumption that availability of the
                                         36

shorts at trial, without sanctions, would have been preferred by the defense over

admission of the photo, limited by sanctions. This may be one of the rare cases,

however, in which the government‟s loss of evidence was of benefit, not a burden,

to the defense.




      We have an interesting question: how, exactly, did the fact that the shorts

were missing affect Smith‟s defense preparation? Although the government, as

well as the trial court, agreed that the shorts were “material” to Smith‟s defense, it

is not clear how their presence at trial necessarily would have enhanced Smith‟s

argument that the shorts were not his.




      To illustrate this uncertainty, we should look, first, at Smith‟s defense

without the shorts in hand — a defense, enhanced by sanctions that we have

characterized as “substantial, not weak.”1 Can we be sure that if the shorts had

been available, Smith‟s case would have been stronger? — that Smith (absent a

plea bargain) would have put them on in rebuttal to show the jury that they did not

fit? Depending on the truth about ownership, which we cannot know, there may


      1
          See ante at 23-24.
                                            37

well have been a more conclusive case for conviction if the shorts had been

available for plea negotiations or trial.




      Based on the photo evidence alone it would appear that the government had

the upper hand with the missing shorts. But even worse for Smith, if the shorts did

belong to him (as his girlfriend told Officer Artinian), there is sound reason for

concluding that Smith‟s defense actually benefited from the jail‟s clothing

destruction policy and the government‟s reliance on the photo evidence, limited by

the sanctions. All things considered, therefore, loss of the shorts was material to

defense preparation, but we cannot say to any meaningful level of certainty

whether the loss did — or did not — in reality prejudice Smith.




      None of this speculation matters for resolving the Rule 16 issue — nor

should it. When the government is responsible for the loss of evidence

presumptively critical to the defense, Rule 16 sanctions must be imposed to assure

fairness to the accused.     The question thus becomes whether, in light of the

sanctions, the Rule 16 violation — the loss of the shorts — was nonetheless

harmless. Because we cannot know whether the shorts, if available at trial, would

have helped or hurt Smith‟s defense, we cannot permit speculation of the sort I‟ve
                                         38

engaged in here play a part in the harmless error analysis. We are limited, as in all

cases, to determining indirectly — as objectively as possible by application of the

Koonce criteria2 — whether the record supports a conclusion that the government‟s

errors, as mitigated by sanctions, were harmless or of a magnitude requiring

reversal.




      For the reasons stated in the court‟s opinion, I am satisfied that the trial

court‟s errors, as mitigated, were harmless, and that the judgment of conviction

should be affirmed.




      2
          Koonce v. District of Columbia, 111 A.3d 1009, 1014 (D.C. 2015).
