Opinion
No. 74-512
Decided May 20, 1976. Rehearing denied July 1, 1976. Certiorari granted September 13, 1976.
Defendant was accused of sale and conspiracy to sell narcotic drug, and she asserted defense that she was solely the agent of undercover policeman in obtaining and transferring the drug to him. Following conviction, she appealed.
Affirmed
1. CRIMINAL LAW — Defenses — "Procuring Agent" Theory — Sale of Narcotics — — Not Available — Refusal of Instruction — Proper. The procuring agent defense is not available to a defendant charged with engaging in a prohibited "sale" of narcotics as that term is defined in state statute, and thus a theory of the case instruction expressing this defense was properly refused.
Appeal from District Court of Pueblo County, Honorable Richard Robb, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, E. Ronald Beeks, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, for defendant-appellant.
Defendant Mary Esther Santiago was found guilty by a jury of sale, and conspiracy to sell, a narcotic drug in violation of what are now § 12-22-322(1)(b) and § 18-2-201, C.R.S. 1973. The principal issue on appeal is whether the court erred in refusing to submit to the jury a tendered instruction setting forth the so-called "procuring agent" theory. Since we decline to adopt the theory, we affirm the conviction.
The facts pertinent to this review are these: A police officer engaged in undercover narcotics operations was in an automobile stopped at a traffic light. When another vehicle stopped beside the officer's car, he called to the defendant, one of its occupants, and asked if she knew where he could obtain some drugs. She said she did not, but gave the officer her telephone number with instructions to telephone her the next day. When the officer called, the defendant told him to meet her at a parking lot and he agreed to do so. Following her instructions, the officer met her and got into her car. A few minutes later another vehicle arrived. Defendant talked with the occupant of the other automobile and then drove her vehicle several blocks and stopped. She asked for and received fifteen dollars from the officer. The other car parked behind defendant's vehicle, and a man got out, walked up to defendant, took the fifteen dollars from her, and gave her in return a plastic bag containing the narcotic. She in turn handed this to the officer. Defendant was thereafter arrested and this prosecution followed.
By § 12-22-301(25), C.R.S. 1973, "sale," as that term is used with respect to narcotic drugs, "includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee." (emphasis supplied) Based upon her interpretation of this definition, defendant contended at trial that she was acting as agent of the undercover police officer rather than for herself and thus could not be convicted of sale or conspiracy to sell a narcotic drug, and she offered a theory of the case instruction expressing this defense. The court's refusal to give this instruction is alleged to be error.
As explained in People v. Dinkel, 189 Colo. 404, 541 P.2d 898, the procuring agent theory was first adopted in U.S. v. Sawyer, 210 F.2d 169 (3rd Cir.). Thereafter it was followed by several other Federal Circuits in drug violation prosecutions. See, e.g., U.S. v. Brown, 453 F.2d 101 (8th Cir.); U.S. v. Barcella, 432 F.2d 570 (1st Cir.); U.S. v. Winfield, 341 F.2d 70 (2d Cir.); Lewis v. U.S., 337 F.2d 541 (D.C. Cir.). However, subsequent to these rulings, Congress amended the statute, changing the prohibited act from "sale" to "distribution" of heroin. See 21 U.S.C. § 841(a). The term "distribution" includes "delivery," and the latter word is defined in the statute as an "actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship." 21 U.S.C. § 802 (emphasis supplied). That amended statute clearly precludes the use of the "procuring agent" theory. See U.S. v. Pierce, 498 F.2d 712 (D.C. Cir.).
The People rely on People v. Dinkel, supra, as being directly dispositive of the instant case, but we do not find it so. In Dinkel the defendant was convicted of unlawfully "dispensing" a dangerous drug as that term is defined in what is now § 12-22-403(6), C.R.S. 1973, and the Supreme Court held "that the procuring agent theory is not applicable . . . where the defendant was convicted of dispensing a dangerous drug rather than selling the same." (emphasis supplied) Here, however, the conviction was for sale and conspiracy to sell a narcotic drug. Thus, the question still remains as to whether the procuring agent defense is available to a defendant charged with engaging in a prohibited "sale" of narcotics as that term is defined in § 12-22-301(25), C.R.S. 1973.
Defendant urges that we should follow the interpretations of the federal statute made prior to its amendment in cases such as U.S. v. Brown, supra, as well as interpretations of statutes employing the term "sale" made by several state courts, and in this regard she relies heavily on Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346. In Dinkel, however, after concluding that the statute relating to "unlawfully dispensing" a dangerous drug is analogous to the present federal statute and thus holding the procuring agent theory inapplicable, the court then cites with approval State v. Allen, 292 A.2d 167 (Me.). In that case, the Maine Supreme Court gave a broad interpretation to a statute proscribing the "sale" of drugs and, based on its interpretation of legislative intent, refused to validate the "loophole" that would exist if the state were required to prove that a "transfer was not being made as agent of the buyer." The Illinois Supreme Court has also rejected the procuring agent theory in interpreting a similar statute which employed the term "sale." People v. Aldridge, 19 Ill.2d 176, 166 N.E.2d 563; and People v. Shannon, 15 Ill.2d 494, 155 N.E.2d 578.
[1] We find the reasoning in the Maine and Illinois decisions persuasive. Therefore, we reject the "procuring agent theory" where, as here, a "sale" is charged under § 12-22-322(1)(b), C.R.S. 1973.
We have considered the defendant's other allegations of error and find them to be totally devoid of merit.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.