NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-6184
Appellant, ) Trial Court No. 3AN-95-8445 Cr
)
v. ) O P I N I O N
)
WILLIAM BURDEN, )
)
Appellee. ) [No. 1560 - December 12, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Jill E. Farrell, Assistant Public Defender, and Barbara
K. Brink, Public Defender, Anchorage, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Rabinowitz, Senior Supreme Court Justice.
MANNHEIMER, Judge.
William Burden acted as the go-between in a cocaine sale;
he was indicted for third-degree misconduct involving a controlled
substance (delivery of cocaine), AS 11.71.030(a)(1). Following his
indictment, Burden sought dismissal of the charge. Burden pointed
out that, although a purchaser of illegal drugs can be prosecuted
for possession, Alaska law specifically precludes the State from
charging the purchaser with sale or delivery (a higher degree of
crime) under the theory that the purchaser acted as the accomplice
of the seller. See AS 11.16.120(b)(2), discussed in more detail
below.
Burden asserted that, even though he acted as a go-between
in the sale of the cocaine, he was working as the agent of the
purchasers, not the seller. Thus, Burden concluded, while he might
be prosecuted for possession (as the accomplice of the purchasers),
he could not be prosecuted for sale or delivery. The superior court
adopted Burden's argument and dismissed the indictment.
Having reviewed the applicable law, we conclude that it
does not matter whether Burden was acting as the agent of the
purchasers or the seller; either circumstance will support Burden's
indictment for delivering cocaine. We therefore reverse the
superior court's decision and direct the superior court to reinstate
the indictment.
American common law recognized a doctrine of statutory
construction that limited the scope of accomplice and co-conspirator
liability: unless a criminal statute explicitly provided otherwise,
a person who cooperated in the commission of a criminal offense
could not be prosecuted as an accomplice or a co-conspirator if the
person's activities in aid of the offense were "an inseparable
incident" of the offense. See Gebardi v. United States, 287 U.S.
112, 53 S.Ct. 35, 77 L.Ed. 206 (1932) (holding that a woman who
agreed to be transported across state lines to engage in unlawful
sexual intercourse could not be prosecuted for conspiracy to violate
the Mann Act). The Alaska legislature has codified this common-law
rule of construction in AS 11.16.120(b)(2):
Except as otherwise provided by a
provision of law defining an offense, a person is not legally
accountable for the conduct of another constituting an offense if
... (2) the offense is so defined that the person's conduct is
inevitably incidental to its commission.
See also the commentary to AS 11.16.120(b)(2), which is found in
1978 Senate Journal, Supp. No. 47 (June 12), p. 4. [Fn. 1] Burden
correctly points out that the Alaska Supreme Court has interpreted
this doctrine to prohibit drug purchasers from being prosecuted or
convicted as accomplices to the sale. See Howard v. State, 496 P.2d
657, 660 (Alaska 1972).
In the past, several courts extended the "inevitably
incidental" doctrine to insulate not only the purchaser of drugs but
also any other person acting on the purchaser's behalf. Under this
expanded interpretation, generally referred to as the "procuring
agent" or "purchasing agent" defense, a person who acted on behalf
of the purchaser in arranging or accomplishing a sale of illegal
drugs could not be prosecuted as an accomplice to the sale (although
the person could be charged as an accomplice to the purchaser's act
of possession). See, for example, Long v. State, 542 S.W.2d 742,
743 (Ark. 1976); State v. Baldwin, 867 S.W.2d 358, 360 (Tenn. App.
1993), and State v. Walker, 514 P.2d 919, 922 (Wash. 1973).
Not all courts extended the doctrine this far apparently
because it is not self-evident that an illegal sale of drugs
"inevitably" includes a go-between. California, for example, held
that "one who acts as a go-between or agent of either the buyer or
seller clearly may be found guilty ... as an aider and abettor to
the seller." People v. Edwards, 702 P.2d 555, 559 n.5 (Cal. 1985);
People v. Cattaneo, 266 Cal.Rptr. 710, 713-15 (Cal. App. 1990).
Accord, State v. Baltier, 505 P.2d 556, 557 (Ariz. 1973); People v.
Shannon, 155 N.E.2d 578, 580 (Ill. 1959); State v. Allen, 292 A.2d
167, 170-72 (Me. 1972).
The Alaska courts have never decided whether a "procuring
agent" or "purchasing agent" defense applies to drug prosecutions
in this state. However, in two cases McReynolds v. State, 739
P.2d 175, 178 (Alaska App. 1987), and Wagers v. State, 810 P.2d 172,
176 (Alaska App. 1991) this court suggested that the defense was
available: that a person acting as the agent for a drug purchaser
could not be prosecuted for sale of drugs under a complicity theory.
Burden urges us to now squarely hold that the agent of a drug
purchaser can not be prosecuted as an accomplice to the sale.
Under Alaska's pre-1982 drug laws, Burden's case would
present a close question. However, in 1982 the Alaska Legislature
rewrote this state's drug laws to conform to the Uniform Controlled
Substances Act. See 1982 SLA, chapter 45, section 2; Dawson v.
State, 894 P.2d 672, 674 (Alaska App. 1995). Alaska law no longer
defines the illegal transfer of controlled substances in terms of
"sale"; instead, the prohibited act is "delivery".
For example, Burden was charged under AS 11.71.030(a)(1).
The pertinent portion of this statute prohibits a person from
"deliver[ing] any amount of [cocaine]" or from possessing cocaine
"with intent to ... deliver". The terms "deliver" and "delivery"
are defined in AS 11.71.900(6):
"[D]eliver" or "delivery" means the
actual, constructive, or attempted transfer [of a controlled
substance] from one person to another ... whether or not there is
an agency relationship [between these persons].
This definition is identical to the one found in the Uniform
Controlled Substances Act (see Uniform Laws Annotated (1988), vol.
9, part II, p. 11), and it mirrors the corresponding definition
under federal drug law, 21 U.S.C.  802(8).
The real question presented by Burden's case is whether,
given this statutory definition of "delivery", the "procuring agent"
defense is available in prosecutions under AS 11.71. We hold that
this defense is not available.
As explained above, the doctrine that exempts drug
purchasers from accomplice liability for their participation in the
sale of drugs is ultimately a rule of statutory interpretation. The
legislative commentary to AS 11.16.120(b)(2) (see footnote 1)
explicitly states that this statute does not forbid the legislature
from holding purchasers or their agents criminally liable for an
illegal sale of drugs. Rather, AS 11.16.120(b)(2) merely requires
that, if the legislature desires to expand accomplice liability in
this area, it must enact a statute that declares this purpose. We
conclude that the Alaska Legislature's decision to define third-
degree controlled substance misconduct in terms of "delivery" rather
than "sale" constitutes a declaration that the agents of cocaine
purchasers may be charged (under a complicity theory) with third-
degree controlled substance misconduct.
Even before the Alaska Legislature enacted our current
drug laws in 1982, federal appellate courts had repeatedly held that
Congress's decision to define federal drug offenses in terms of
"delivery" had eliminated the "procuring agent" defense since the
definition of "delivery" now explicitly included transfers even when
an agency relationship existed between the transferor and
transferee. As the Ninth Circuit declared,
Under [21 U.S.C.  802], "distribute"
means "to deliver ... a controlled substance"[, and] "[d]eliver"
means "the ... transfer of a controlled substance, whether or not
there exists an agency relationship." 21 U.S.C.  802(8) (emphasis
added). Thus, by its terms, the new statute excludes the "procuring
agent" defense in toto.
United States v. Hernandez, 480 F.2d 1044, 1046 (9th Cir. 1973).
See also United States v. Collins, 552 F.2d 243, 245-46 (8th Cir.
1977); United States v. Pierce, 498 F.2d 712, 713 (D.C. Cir. 1974);
United States v. Redwood, 492 F.2d 216 (3rd Cir. 1974); United
States v. Masullo, 489 F.2d 217, 220-21 (2nd Cir. 1973); United
States v. Pruitt, 487 F.2d 1241, 1243-45 (8th Cir. 1973); United
States v. Johnson, 481 F.2d 645, 646 (5th Cir. 1973); United States
v. Workopich, 479 F.2d 1142, 1147 (5th Cir. 1973).
State courts construing similar statutes (statutes based
upon the Uniform Controlled Substances Act) are essentially
unanimous in reaching the same conclusion: when a drug offense is
defined in terms of "delivery" (using a definition of "delivery"
derived from the Uniform Controlled Substances Act), the "procuring
agent" or "purchasing agent" defense is no longer available; a
person acting as the agent of the purchaser can be charged as an
accomplice to the delivery. See McKissick v. State, 522 So.2d 3, 4
(Ala. App. 1987); People v. Cattaneo, 266 Cal.Rptr. 710, 713-15 &
713 n.2 (Cal. App. 1990); People v. Dinkel, 541 P.2d 898, 900 (Colo.
1975); State v. Kelsey, 566 P.2d 1370, 1373 (Haw. 1977); State v.
Sharp, 662 P.2d 1135, 1139 (Idaho 1983); People v. Williams, 221
N.W.2d 204, 205-06 (Mich. App. 1974); Hindman v. State, 647 P.2d
456, 458 (Okla. Crim. App. 1982); Harwood v. State, 543 P.2d 761,
763-64 (Okla. Crim. App. 1975); State v. Baldwin, 867 S.W.2d 358,
360 (Tenn. App. 1993); Wood v. Commonwealth, 197 S.E.2d 200, 202
(Va. 1973); State v. Grace, 812 P.2d 865, 867-68 (Wash. App. 1991);
State v. Sherman, 547 P.2d 1234, 1236 (Wash. App. 1976); State v.
Hecht, 342 N.W.2d 721, 725-28 (Wis. 1984). We have found only one
decision contra: State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977).
Thus, the overwhelming weight of authority supports the
State's position in this appeal: that the 1982 revision of Alaska's
drug laws eliminated the "procuring agent" or "purchasing agent"
defense. Burden cites no cases to the contrary (not even Lott).
Having considered these authorities, we now hold that, under the
definition of "delivery" found in AS 11.71.900(6), a person who acts
as a go-between or facilitator for an illegal drug transaction can
be prosecuted and convicted as an accomplice to the delivery even
though he or she is acting on behalf of the purchaser.
The superior court's order dismissing the indictment is
REVERSED. This case is remanded to the superior court with
directions to reinstate the indictment against Burden.
FOOTNOTES
Footnote 1:
This commentary reads, in full:
[Subsection (b)(2)] requires the legislature to
decide whether the conduct inevitably incidental to a crime should
be made criminal; for example, is the purchaser of sexual services
guilty of prostitution? The Code does not prohibit the
criminalization of such conduct[;] it merely provides that liability
does not occur unless a statute specifically provides that it does.
