The DC Court of Appeals in Kornegay v. U.S., decided on September 3, 2020, clarified whether possession of 2 ounces or less of marijuana can qualify as Possession With Intent to Distribute (“PWID”), which still remains illegal.

Appellant was pulled over during a routine traffic stop and the Park Policer Officers had seized few zip lock bags, a scale, and size-able amount of cash from him with total weight of marijuana at 1.73 ounces.  He was charged with PWID and at trial a Metropolitan Police Department (“MPD”) officer testified as an expert in the “packaging, distribution, and sale of marijuana on the streets of the District of Columbia and now the defendant’s possession was consistent with sale and not personal use.  The trial court found him guilty of PWID.

On appeal the defendant argued that because it is now expressly lawful for an adult to possess less than two ounces of marijuana and because less than two ounces of marijuana in these circumstances no longer falls within the definition of a controlled substance, it cannot be a crime to possess with the intent to distribute that amount of marijuana.

The applicable Statute (§ 48–904.01) as enacted provides:

 (a)(1) Except as authorized by this chapter or Chapter 16B of Title 7 [§ 7-1671.01 et seq.], it is unlawful for any person knowingly or intentionally to manufacture, distribute, or possess, with intent to manufacture or distribute, a controlled substance. Notwithstanding any provision of this chapter to the contrary, it shall be lawful, and shall not be an offense under District of Columbia law, for any person 21 years of age or older to:

• (A) Possess, use, purchase, or transport marijuana weighing 2 ounces or less;
• (B) Transfer to another person 21 years of age or older, without remuneration, marijuana weighing one ounce or less;
• (C) Possess, grow, harvest, or process, within the interior of a house or rental unit that constitutes such person’s principal residence, no more than 6 cannabis plants, with 3 or fewer being mature, flowering plants; provided, that all persons residing within a single house or single rental unit may not possess, grow, harvest, or process, in the aggregate, more than 12 cannabis plants, with 6 or fewer being mature, flowering plants;
• (D) Possess within such house or rental unit the marijuana produced by such plants; provided that, nothing in this subsection shall make it lawful to sell, offer for sale, or make available for sale any marijuana or cannabis plants.

Moreover, Marijuana that is or was in the personal possession of a person 21 years of age or older at any specific time if the total amount of marijuana that is or was in the possession of that person at that time weighs or weighed 2 ounces or less.

Mr. Kornegay specifically argued that his conviction for PWID is invalid because the 2015 amendments to D.C. Code § 48-904.01, both in subparagraph (a)(1)(A) and in paragraph (a)(1A), make it lawful for an adult to possess two ounces or less of marijuana, even if that individual has the intent to distribute.

The government on the other hand argued that the decriminalization is only for possession of marijuana for “personal use.”  Once someone forms the intent to distribute marijuana, that person has ceased to possess the marijuana merely for personal use.

The court of Appeals held that it was lawful for Mr. Kornegay to possess less than two ounces of marijuana in these circumstances.  Accordingly, the Statute permits an adult to possess two ounces or less of marijuana regardless of their intent, so long as that adult does not “sell, offer for sale, or make available for sale” the marijuana.

The government argued that the packaging, the scale and the cash seized all point to intent to sale.

The Court of Appeals disagreed expounding: the act of putting any object that might be sold, or is even intended for sale, into a container is not commonly understood as making that object available for sale. A person making lemonade does not make it available for sale simply by virtue of pouring it into paper cups. They are merely packaging the lemonade in such a way that it could be sold, but they would have to take some sufficient additional action or actions to communicate the availability of lemonade for purchase.

The decision suggests that short of selling marijuana to an undercover agent, possession of less than two ounces does not support a PWID-Marijuana charge.

Refer to our Washington DC Criminal Lawyer page for more detailed information on this topic.