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Digsby v. United States

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Argued February 5, 2009

Before REID and GLICKMAN, Associate Judges, and BELSON, Senior Judge.

A jury found appellant, Nathaniel J. Digsby, guilty of unlawful possession with intent to distribute a controlled substance (heroin) and unlawful possession with intent to distribute a controlled substance (marijuana),*fn1 both in violation of D.C. Code § 48-904.01 (a)(1) (2001); and unlawful possession of drug paraphernalia, in violation of § 48-1103 (a).*fn2 Mr. Digsby contends that his conviction must be reversed because the trial court violated his constitutional Sixth Amendment confrontation right by ruling, over his objection, that a Drug Enforcement Administration report, the “DEA-7,” prepared by a DEA chemist, would be admitted into evidence without the testimony of the chemist. The government agrees, but argues that the error in allowing the DEA-7 into evidence without testimony from the chemist was harmless beyond a reasonable doubt, and that even if this court concludes that the convictions for possession with intent to distribute heroin and marijuana (“PWID”) must be reversed, it should remand the case “for entry of judgment on the lesser-included offenses of attempted PWID heroin and attempted PWID marijuana.” We affirm the trial court’s judgment of conviction on the marijuana charge, but we reverse the trial court’s judgment of conviction on the heroin charge and remand the case for a new trial on the heroin count.

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