Holiday v. United States

683 A.2d 61, 1996 D.C. App. LEXIS 174, 1996 WL 469700

• Court: District of Columbia Court of Appeals
• Decided: July 30, 1996
• Docket: 95-CF-1054, 95-CF-1390, 95-SP-1457 and 95-SP-1467
• Status: Published

Opinions

FERREN, Associate Judge:

These consolidated cases present a common issue requiring interpretation of the 1995 statute that repealed mandatory-minimum sentences for certain nonviolent drug offenses. We must determine whether the mandatory-minimum sentencing provisions apply when the offense was committed before — but the defendant was sentenced after — the effective date of the repealing legislation. In addition, appellants Holiday and Park argue that a variety of errors during their respective trials — including issues of severance, other crimes evidence, and the constitutionality of the particular punishment for possession with intent to distribute under 50 grams of powdered cocaine — require reversal of their convictions and thus new trials.

After addressing — and deflecting — the threshold question whether the government’s petitions for writ of mandamus (alternatively styled as government appeals) are properly before us, we reach the common issue and conclude that mandatory-minimum sentences must be imposed in all four cases under the circumstances presented here. The reason is straightforward. Because the Council of the District of Columbia did not say whether the repealer should, or should not, apply to pending cases, we are compelled by controlling case law to apply two nearly identical statutes enacted to cover such omissions: the so-called federal and local “savings statutes.” Congress and the Council, respectively, have deemed each of these statutes — both applicable in the District of Columbia — to be, without exception, a provision of every statute that repeals another statute imposing a penalty, forfeiture, or liability. Both say that unless the repealer “expressly provides” for the repealer itself to apply to pending cases — which unquestionably is not the case here — the old law, ie., the newly repealed law, shall still apply. We therefore see no choice in the matter but to hold that mandatory-minimum sentencing is still required here.

Finally, after resolving the principal issue, we consider — and reject — the other contentions made in individual eases.

I.

Holiday was convicted of a March 23,1994, distribution of cocaine, D.C.Code § 33-541(a); possession of a prohibited weapon id. § 22-3214(a) (1989 Repl.); carrying a pistol without a license, id. § 22-3204(a); possession of an unregistered firearm, id. § 6-2311(a) (1995 Repl.); and possession of unregistered ammunition, id. § 6-2361(3). On July 20, 1995, Judge Canan sentenced Holiday to four to twelve years in prison, imposing a mandatory-minimum of four years for the distribution conviction. Holiday was sentenced to one-year term of imprisonment on each of his weapons convictions, to run concurrently with the distribution conviction.

Park was convicted of a June 24, 1993 possession with intent to distribute cocaine, id. § 33-541(a), and Judge Richter sentenced her to a mandatory-minimum prison term of five to fifteen years on September 29, 1995.

Palmer pled guilty to a September 15, 1994, distribution of dilaudid, id. § 33-541(a), and Judge Edwards sentenced him on September 25, 1995, to three to nine years in prison, not to a mandatory-minimum term. The judge, moreover, suspended execution of the sentence and placed Palmer on probation for two years, adding a condition that he enter and complete an inpatient drug treatment program.

Burgess pled guilty to a November 23, 1993, distribution of cocaine, id. § 33-541(a) (1993 Repl.), and Judge Edwards sentenced him on September 28, 1995 to four to twelve years in prison — execution of sentence suspended as to all but time served — and to one year of supervised probation. Again, the judge declined to impose a mandatory-minimum prison sentence.

In short, each of these defendants was convicted of committing non-violent drug offenses in 1993 or 1994, but none was sentenced until after the Council had repealed (as of May 25,1995) the mandatory-minimum sentencing provisions of D.C.Code § 33-541(c) that were in force on the dates of their crimes. The central question, therefore, is whether the new, more lenient sentencing provisions (omitting mandatory-minimums) can be applied here, simply because sentencing had not taken place until after the effective date of the repealer; or whether instead, because the Council did n<5t-say one way or another what sentencing scheme was to apply to cases pending on the effective date, an earlier-adopted general “savings statute” necessarily applies and requires the sentencing judges to impose the mandatory-minimums in effect when the offenses were committed.

II.

There is, however, a preliminary procedural question: whether this court should entertain the government’s petitions for writ of mandamus in the two Edwards cases (involving Burgess and Palmer). As we have recognized in previous eases, “the writ of mandamus is an extraordinary writ that should be issued only in exceptional circumstances.” Turner v. Bayly, 673 A.2d 596, 602 (D.C.1996) (quoting Yeager v. Greene, 502 A.2d 980, 983 (D.C.1985)). Counsel for Palmer contends that the government has not met its burden of showing that its right to issuance of the writ of mandamus is “clear and indisputable.” Foster v. Canan, 661 A.2d 636, 636 (D.C.1995) (per curiam) (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp. 485 U.S. 271, 289, 108 S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988)). The government notes conflicting authority in this jurisdiction as to its right to appeal, or to petition for a writ of mandamus, to correct an illegal sentencing order. Compare United States v. Stokes, 365 A.2d 615, 617 (D.C.1976), with United States v. Shorter, 343 A.2d 569, 571 (D.C.1975).

We find it unnecessary to resolve this possible conflict, at least at this time, since we can resolve the merits of the mandatory-minimum sentencing issue on direct appeal in Holiday and Park. Because Super.Ct.Crim.R. 35(a) (1996) permits the trial court to “correct an illegal sentence at any time,” we are confident that steps will be taken to assure that the sentences imposed on Burgess and Palmer will be revisited in light of our rulings in Holiday and Park.

III.

Before we discuss the particular repealing legislation at issue here, we believe it is useful to explain the evolution of general savings statutes that inevitably become part of the analysis when a repealer does not expressly say what classes of cases it covers. (Part A.). We then focus on the quite different approaches the state courts (Part B.) and the federal courts (Part C.) have taken in construing general savings statutes. Appellants stress the predominant state court view that favors retroactive application of ameliorative sentencing legislation despite a general savings statute. The government, on the other hand, presses the federal court approach — derived substantially from Supreme Court authority — that uses the federal general savings statute to bar retroactive application unless the new sentencing legislation itself “expressly” says it shall apply to pending cases. Finally, once we have determined whether the federal and District general savings statutes apply here (we conclude they do), we consider (Part D.) whether, under the terms of the savings statutes, the repealing legislation itself “expressly” provides for retroactive application by making clear that the new sentencing regime applies to pending prosecutions of offenses committed before May 25,1995.

A.

Although nonpenal statutes traditionally operate prospectively, unless there is evidence of legislative intent to the contrary,¹ an opposite presumption applies to repeals of criminal statutes. At common law, such repealing legislation applied retroactively, abating every prosecution which had not yet resulted in final conviction (including appeal to the highest reviewing court) — unless a special provision had been enacted to save prosecutions under the repealed statute.²

Pending criminal prosecutions would abate, unless there was a savings clause in the new legislation, whether the legislation was an outright repeal or merely an amendment or reenactment of the substantive crime, since any such revision effectively repealed the statute underlying the prosecution.³ In this country, moreover, the Constitution affected the abatement analysis. If the new legislation increased the punishment for the same crime, or made previously lawful activity unlawful, the ex post facto clause precluded prosecution under the new statute of offenses committed before the statute’s effective date.⁴ On the other hand, if the repealing legislation enacted more lenient sentencing options, the ex post facto clause did not prohibit courts from continuing the prosecution and applying a new ameliorative sentencing scheme to pending cases.⁵

As a way of preventing abatements of criminal prosecutions and other liabilities when legislatures failed to provide special savings clauses in the repealing legislation, state legislatures began in the last century to adopt general savings statutes applicable thereafter to all repeals, amendments, and reenactments of criminal and civil liabilities.⁶ For criminal prosecutions, therefore, these statutes shifted “the legislative presumption from one of abatement unless otherwise specified to one of non-abatement in the absence of contrary legislative direction.”⁷

When repeal legislation, imposing more lenient punishment, contained a special savings clause, or was to be read in connection with a general savings statute, the court faced the question of statutory interpretation presented in the cases now before us: whether (1) the savings provision preserved the repealed sentencing scheme for a pending prosecution, despite a harsher result than the new legislation called for, or instead (2) the repealing statute, when read together with the savings provision, manifested a legislative intent to apply the lesser punishment from the new statute to pending prosecutions commenced under the repealed statute.

B.

We begin with the body of authority that appellants emphasize: decisions by state supreme courts. For a variety of reasons, many of these courts have ruled that general savings statutes in their jurisdictions do not preclude retroactive application of ameliorative sentencing provisions.⁸ In dissent, Judge Schwelb relies exclusively on these state cases. None of them, however, can be used to interpret the federal and District of Columbia general savings statutes, which are distinguishable either by reference to their terms or by virtue of federal court — including Supreme Court — interpretations that dictate a different result. We lead with the state court jurisprudence, however, to present up front the best possible case for the defendants’ position and to provide background for the particular savings statutes, and the controlling federal case law, that— taken together — eclipse the state court approach and, necessarily, control the analysis here.

We begin with New York where the Court of Appeals considered the following general savings language:

Section 93 declares, “The repeal of a statute or part thereof shall not affect or impair any act done, offense committed * * * penalty, forfeiture or punishment incurred prior to the time such appeal takes effect,” and section 94 provides that all proceedings commenced and pending at the time a statute is repealed “may be prosecuted * * * to final effect in the same manner as they might if such provisions were not so repealed.” (Ellipses in original.)

People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 372, 134 N.E.2d 197, 201 (1956) (quoting N.Y. GENERAL CONSTRUCTION LAW § 93, 94 (Consol.1956)). Despite the express language saving prosecutions as though the provisions of prior law “were not so repealed,” id., the court emphasized that (1) the general savings statute had been adopted primarily to prevent abatement of prosecutions altogether when legislation imposing harsher punishments could not apply retroactively because of the ex post facto clause, id.; (2) there was no constitutional bar to retroactive application of an “ameliorative statute” reducing punishment for a particular crime, id.; (3) the general savings statute was “merely a principle of construction,” id., that must give way to discernible legislative intent to the contrary; and (4) the legislature’s intent that lighter penalties should be applied retroactively could be inferred from the legislature’s very recognition that previous penalties (permitting criminal punishment of juveniles under age 15) had been too severe. Id. at 372-74, 134 N.E.2d at 201-02.

The court inferred such legislative intent not from anything the legislature said but from objective scrutiny of the purposes underlying sentencing statutes. The court concluded that, once the legislature had seen the folly of harsher penalties than those newly enacted, any further enforcement of the repealed penalties could serve no legitimate purpose — only “vengeance or retribution.” Id. at 373, 134 N.E.2d at 202. Thus, said the court, the legislature must have intended the new law to apply immediately, at least in all cases where sentences had not yet been pronounced and finally adjudicated. Id. at 374-75, 134 N.E.2d at 203. The harsher penalties, if applied to defendants still on trial on appeal, no longer could serve as a deterrent to completed conduct. Id. at 372-73, 134 N.E.2d at 201. Nor, when compared with the legislature’s most recent judgment, could harsher penalties serve the needs for confinement and rehabilitation as effectively as the new sentencing regime would provide. Id. at 372-74, 134 N.E.2d at 201-02. The court in Oliver, therefore, paid scant attention to the express language of the general savings statute that authorized pending prosecutions to continue “to final effect in the same manner as they might if such provisions were not repealed.” Id. at 373, 134 N.E.2d at 201. Rather, the court inferred from the new legislation an intent to trump any contrary intent that might be drawn from a general rule of construction enacted by an earlier legislature.⁹

The Supreme Court of Rhode Island, construing a similar, comprehensive general savings statute,¹⁰ readily followed Oliver. In State v. Macarelli, 118 R.I. 693, 375 A.2d 944, 947 (1977), the court adopted Oliver’s “sound judicial philosophy” and said that “[t]o hold otherwise ... would amount to nothing more than arbitrary retribution in contravention of the obvious legislative purpose behind the mitigation of the penalty.”

Other state courts have reached the same result with somewhat different emphases. In In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 177, 408 P.2d 948, 953 (1966), the California Supreme Court, overruling recent precedent,¹¹ essentially adopted the New York court’s analysis in Oliver but stressed that the California general savings statute¹² could not control because its language “positively expressed [the legislature’s] intent that an offender of a law that has been repealed or amended should be punished,” but was ambiguous as to whether the defendant in a pending case “should be punished under the old law or the new one.”[¹³]

In People v. Schultz, 435 Mich. 517, 460 N.W.2d 505 (1990), the Michigan Supreme Court ignored an explicit general savings statute¹⁴ for still another reason. Focusing on one of the themes identified in Oliver, the court concluded that the statute’s historical purpose had been limited to preventing “technical abatements” that would “excus[e] offenders from punishment” altogether; it had not been intended to preclude application of new sentencing legislation to pending cases where the “amendatory act mitigates the authorized terms of punishment but continues to proscribe the same conduct.” Id. 460 N.W.2d at 510.

The Supreme Court of Hawaii saw yet a different basis for rejecting a general savings provision and remanding to resentence under a new, “lesser mandatory minimum” sentencing scheme. In State v. Von Geldern, 64 Haw. 210, 638 P.2d 319 (1981), the court concluded that the general savings statute¹⁵ did not apply to prosecutions pending when this particular sentencing revision was adopted (without its own savings clause), because the legislature’s intent for immediate retroactive implementation was clear from its previous use of retroactivity language in other criminal statutes. These earlier statutes, said the court, had established “a pattern of conduct evidencing an inclination” to permit “more enlightening sentencing provisions” as soon as possible. Id. 638 P.2d at 323.

The Supreme Court of Utah found reason to ignore a general savings statute by focusing on the statutory language. In State v. Tapp, 26 Utah 2d 392, 490 P.2d 334 (1971), the court considered whether the following general savings statute precluded the trial judge from imposing a lesser sentence attributable to a statutory amendment adopted between the time the defendant was charged with possessing marijuana and the date of sentencing:

The repeal of a statute does not * * * affect any right which has accrued, any duty imposed, any penalty incurred, or any action or proceeding commenced under or by virtu# of the statute repealed. (Emphasis added [by Utah Supreme Court].)

Id. 490 P.2d at 336 (quoting Utah Code Ann. § 68-3-5) (ellipses in original). The Court held this statute inapplicable because, by its terms, “no penalty is incurred until the defendant is convicted, judgment entered and sentence imposed.” Id. (emphasis in original). Because a defendant not yet sentenced has “incurred” no penalty, the general savings statute does not apply, and thus the defendant necessarily is subject to the new, more lenient law in effect at time of sentencing.¹⁶ The Utah court, as a consequence, arguably limited the general savings statute to preservation of convictions against collateral attacks after sentencing.

Finally, the Supreme Court of North Dakota ordered application of a new sentencing statute to a pending prosecution for driving without a license when the offense occurred before the new sentencing statute had been adopted but sentencing had taken place thereafter. In State v. Cummings, 386 N.W.2d 468 (N.D.1986), after finding a general savings statute inapplicable to the particular statutory title at issue, the court rejected a statutory canon of construction: “ ‘No part of this code is retroactive unless it is expressly declared to be so.’ ” Id. at 471 (quoting N.D. Cent.Code § 1-02-10). The court perceived that the legislature had an “obvious” (though unspoken) desire for retroactive application of reduced mandatory-minimum penalties. Id. at 472. Citing Oliver and Estrada, the court was impressed, very simply, by the “compelling inference that ... the former penalty was too harsh and that the [new] and lighter punishment was the appropriate penalty....” Id.17

Other state courts have come out differently, holding that the general savings statute requires the trial judge to proceed with the prosecution under the repealed statute.¹⁸ But it is readily apparent that most of the state courts which have considered the issue have been disinclined to apply general savings statutes in this context— and have declined to do so — even in cases, such as Oliver, Macarelli, and Schultz, where plain language, apparently intended to preserve punishments under the repealed statute, could be seen as air tight.

C.

Unlike the state courts, the federal courts, applying the federal savings statute, have been disposed to take the statutory language literally. Since 1871, Congress has kept in force a general savings statute, apparently modeled on earlier state statutes,¹⁹ and now codified at 1 U.S.C. § 109 (1994):

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

We have held that this statute, pursuant to D.C.Code § 49-801 (1990 Repl.),²⁰ applies in the District of Columbia not only to congressional legislation but also to “emergency acts of the D.C. Council” (and thus, presumably, to other Council legislation). United States v. Alston, 580 A.2d 587, 600 (D.C.1990).

In the 1930s, the federal courts applied this general savings statute to criminal cases when considering amendment of the Jones Act,²¹ which provided penalties for violation of the National Prohibition Act.²² In 1931, two federal circuit courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, considered that amendment, which substantially reduced the maximum penalties for selling not more than a gallon of liquor. They held that, in the absence of a provision applying the amendment to previously committed offenses, the general savings statute applied; the amendment “had no application to pending cases.” Hurwitz v. United States, 60 U.S.App.D.C. 298, 298, 53 F.2d 552, 552 (1931) (citing Maceo v. United States, 46 F.2d 788 (1931)).²³

Another case should be mentioned. In Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867 (1963), the D.C. Circuit confronted a case in which the defendant, found guilty of first-degree murder, had pending a petition for writ of certiorari in the Supreme Court when Congress repealed the mandatory death penalty. The court recognized that a specific savings clause in the repealing legislation preserved the defendant’s sentence under the prior statute, but the court added that, “[q]uite apart from the language of the [repealer],” the general savings statute, 1 U.S.C. § 109, was “nonetheless apt.” Id. at 172, 327 F.2d at 870; see also Duffel v. United States, 95 U.S.App.D.C. 242, 243, 221 F.2d 523, 523-24 (1954) (per curiam) (applying both general savings statute, 1 U.S.C. § 109, and special savings clause in repeal legislation to preserve sentence imposed under repealed statute after effective date of repealer). On this authority, the court reached the “inescapable” conclusion that “the death sentence not only was mandatory, final and unreviewable, but that sentence had not been vacated by the amen-datory Act.” Jones, 117 U.S.App.D.C. at 173, 327 F.2d at 871.

Other cases from this jurisdiction add nothing of relevance, either because the decision turned solely on a special savings clause in the repeal legislation preserving the repealed penalty for pending prosecutions,²⁴ or because the amending legislation was adopted after the defendant’s sentence had been finally adjudicated,²⁵ or because the reviewing court did not address the savings clause issue.²⁶

More recently, in United States v. Ross, 464 F.2d 376 (2d Cir.1972), the United States Court of Appeals for the Second Circuit considered whether the defendant should have the benefit of the Comprehensive Drug Abuse Prevention and Control Act of 1970,²⁷ which repealed sundry federal narcotics laws (including mandatory-minimum sentencing provisions). The question arose because “his sentence was imposed after the effective date of the new Act.” Id. at 378. The court held that a specific savings clause in the 1970 Act preserved for pending prosecutions the sentences imposed under the prior act, but the court “buttressed” its decision by applying the general savings statute, 1 U.S.C. § 109.

The Ross court rejected arguments which, as we have seen, satisfied various state courts. For example, Ross gave short shrift to the proposition that the general savings statute applied only to “technical abatement” of an entire prosecution, not to mere sentencing issues.²⁸ Id. at 380. Ross also rejected the contention that, because § 109 literally applied only to save a “penalty, forfeiture or liability incurred” under the repealed statute, the savings statute must apply only to collateral attacks on sentences already imposed.²⁹ Id. at 379 (emphasis added). Rather, the court in Ross emphasized the plain language of § 109 that “[t]he repeal of any statute shall not ... extinguish any penalty, forfeiture, or liability incurred under such statute,” and concluded that, because “sentencing is an integral part of the prosecution,” id. at 379, it was “incurred” (meaning it had accrued) as of a time when the criminal act was committed, before the new sentencing provisions became effective.

Within a year the Supreme Court gave powerful support, albeit indirectly, for the Second Circuit’s application of § 109 in Ross. In Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), the Court addressed the specific savings clause in the Comprehensive Drug Abuse Prevention and Control Act of 1970 and sustained the ruling of the First Circuit which, like the Second Circuit in Ross, had held the more lenient sentencing provisions of the 1970 Act unavailable. In construing the savings clause— “ ‘Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals or amendments made by [it] ... or abated by reason thereof” — the Court confirmed in Bradley that sentencing is part of the prosecution; the sentence is not part of a subsequent, severable proceeding. Bradley, 410 U.S. at 608, 93 S.Ct. at 1154 (quoting § 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1294) (ellipsis in original). “In the legal sense, a prosecution terminates only when the sentence is imposed.” Id. at 609, 93 S.Ct. at 1154. Thus, any prosecution commenced before the effective date of a statutory amendment of the sentencing scheme is not affected by the amendment, even though sentence has not been imposed, since the prosecution — deemed to include the eventual sentence — began before the amendment became effective.

The Court extended its special savings clause analysis in Bradley to the general federal savings statute in Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). There, the Court held that § 109 saved the no-parole provisions repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970, keeping them in place for prosecutions commenced before May 1, 1971, the effective date of the Act. Marrero argued that “because the decision to grant parole under § 4202 is for the Board of Parole, not the trial judge, and is arrived at after the sentence has been entered and the prosecution has come to an end, the parole eligibility decision is not part of the ‘prosecution’ for purposes of § 1103(a) [the specific savings clause].” Marrero, 417 U.S. at 658, 94 S.Ct. at 2535. The Court rejected Marrero’s argument, concluding that statutory eligibility for parole, necessarily determined at the time of sentencing, was inherently part of the prosecution commenced before the effective date of the repealer and, thus, that Marrero’s statutory no-parole status was preserved both by the special savings clause of the 1970 Act and — in an alternative holding, id. at 659 & n. 10, 94 S.Ct. at 2536 & n. 10 — by the general savings statute, 1 U.S.C. § 109.³⁰

Before the general savings statute, 1 U.S.C. § 109, can be held to preserve a penalty, of course, the repealer must “release or extinguish” a penalty. In this connection, Marrero makes clear that when a statute restores sentencing discretion over an option previously foreclosed (in that case parole eligibility), the repealer has “extinguished” a mandatory penalty — triggering application of the general savings statute — even though the sentencing judge could still achieve the result of the repealed statute (e.g., foreclose parole) through the exercise of discretion in a particular case. See Marrero, 417 U.S. at 663-64, 94 S.Ct. at 2538-39. The Court noted in Marrero that Congress originally had withheld parole eligibility from certain narcotics offenders — thereby effectuating “lengthy mandatory minimum sentences as a means of decreasing both drug addiction and trafficking,” id. at 662, 94 S.Ct. at 2537—in much the same way that the Council did by establishing mandatory-minimum sentences. The Court then held that the no-parole provision (i.e., mandatory-minimum sentence) was a “penalty, forfeiture or liability’ saved by § 109.” Id. at 664, 94 S.Ct. at 2538. Subsequently, at least two federal circuit courts of appeals have held that statutes conferring new discretionary sentencing power on trial judges, by repealing mandatory denial of probation eligibility, triggered the general savings statute, 1 U.S.C. § 109, because they released or extinguished a mandatory penalty. See United States v. Jacobs, 919 F.2d 10, 12 (3d Cir.1990) (probation eligibility); United States v. Cook, 890 F.2d 672, 675-76 (4th Cir.1989) (same).³¹ Without doubt, therefore, the federal courts — including, most importantly, the Supreme Court — leave no room for arguing that the repeal of mandatory-minimum sentences can be construed not to “release or extinguish” a penalty “incurred” (accrued) before the effective date of repeal.³²

The weight and reasoning of these federal cases leave no room for this court to adopt the reasoning of the state supreme courts that have held a general savings statute inapplicable because it is ambiguous (Estrada), or expressly is limited to preserving sentences already imposed (Tapp), or is an optional canon of statutory construction (Oliver), or must be construed by reference to legislative intent in other criminal statutes (Von Geldem), or is relevant only to “technical abatements” of an entire criminal offense (Schultz).

On the other hand, none of the Supreme Court and other federal cases cited deals with the second half of the required analysis under § 109: the repealing statute shall not extinguish any penalty incurred (i.e., accruing) under the repealed statute “unless the repealing Act shall so expressly provide.” 1 U.S.C. § 109 (emphasis added). In this jurisdiction, for example, there was not even a hint in Hurwitz that the amendment to the liquor act penalties had an express retroac-tivity provision that arguably supplanted the general savings statute. Appellants make such an argument here — to which we now turn.

D.

(1)

On December 6, 1994, the Council of the District of Columbia enacted legislation repealing the mandatory-minimum sentences for distribution and possession with intent to distribute controlled substances, namely, the District of Columbia Nonviolent Offenses Mandatory-Minimum Sentences Amendment Act of 1994, D.C.Law 10-258, 42 D.C.Reg. 238 (effective May 25, 1995). This statute included the following provisions prescribing the repeal and its effective date:

Sec. 3. Section 401(c) of the District of Columbia Uniform Controlled Substances Act of 1981, effective August 5, 1981 (D.C.Law. 4r-29; D.C.Code § 33-541(c)) is repealed.

Sec. 4. This act shall take effect after a 60-day period of Congressional review following approval by the Mayor (or in the event of veto by the Mayor, action by the Council of the District of Columbia to override the veto) as provided in section 602(c)(2) of the District o[f] Columbia Self-Government and Governmental Reorganization Act, approved December 24, 1973 (87 Stat. 813; D.C.Code § l-233(c)(2)), and publication in either the District of Columbia Register, the District o[f] Columbia Statutes-at-Large, or the District of Columbia Municipal Regulations.

Aside from whatever can be inferred from Sec. 4 spelling out the effective date, this repealing legislation itself contains no language concerning what effect the repeal of mandatory-minimum sentences was to have on pending prosecutions.

All four defendants in the cases on appeal committed offenses before May 25, 1995 but were sentenced several months after that date.³³ The common issue on appeal, therefore, is whether the law required the trial courts to impose mandatory-minimum sentences under D.C.Code § 33-541(c) (1993 Repl.), repealed at the time of sentencing, or permitted the courts to impose more lenient sentences under the amended statute, id. § 33-541 (1993 Repl. & 1995 Supp.).

(2)

At this point we should explain that 1 U.S.C. § 109 is not the only general savings statute we must deal with here. In 1990, little more than four years before enacting the repeal of mandatory-minimum sentences, the Council of the District of Columbia enacted its own local savings statute:

The repeal of any act of the Council shall not release or extinguish any penalty, forfeiture, or liability incurred pursuant to the act, and the act shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of any penalty, forfeiture, or liability, unless the repealing act expressly provides for the release or extin-guishment of any penalty, forfeiture or liability.

The “DistRict of Columbia STATUTORY Savings PROVISION Act of 1990,” D.C.Law 8-165, 37 D.C.Reg. 4827 (effective Sept. 26, 1990) (codified at D.C.Code § 49-304(a) (1996 Supp.)). For purposes of these appeals, all parties agree that, because the language of the District’s savings statute is essentially the same as that of the federal statute, 1 U.S.C. § 109, there is no material difference between the two savings statutes as applied to these cases.³⁴ Thus, no one contends, for example, that despite our analysis in Alston and other cases, only the District’s savings statute applies, and that this court is free to interpret its provisions differently from the construction the federal courts have given to 1 U.S.C. § 109.³⁵

We therefore focus our attention on the identical mandates of both general savings statutes: they preserve repealed sentencing provisions for all prosecutions pending at the time the repealing legislation becomes effective, “unless the repealing act expressly provides” for immediate extinguishment of the repealed provisions.

(3)

In § 4 of the mandatory-minimum repealer quoted earlier, the Council expressly provided for an effective date immediately at the end of the “60-day period of Congressional review”; the Council did not use emergency legislation to make the repealer effective immediately upon enactment.³⁶ Actually, the Council provided for an effective date 30 days later than the normal course of legislation would have produced, since the Council specified a 60-day period of review, such as that applicable to most criminal statutes,³⁷ rather than the 30-day period of review that 'otherwise would have applied to amendments of Title 33, where the mandatory-minimum sentencing provisions were codified.³⁸ In short, if the Council had not expressly provided that the statute become effective after a 60-day period of congressional review, the repeal of § 33-541(c) would have become effective 30 days sooner.

In announcing this effective date, however, the Council did not address in the statute an obvious question: when the act became effective, did it apply (1) only to offenses committed after the effective date, or (2) to offenses charged after the effective date even though some may have been committed before that date, or (3) perhaps to all pending prosecutions where the trial court had not yet imposed sentence, or (4) possibly to all prosecutions where sentence had been imposed but the judgments of conviction were not yet final on appeal, or (5) even to final convictions where offenders were serving their sentences? ³⁹

The legislative history — as the parties agree — is inconclusive. On March 31, 1994, Councilmembers Lightfoot and Thomas introduced Bill 10-617 which, among other things, would repeal D.C.Code § 33-541(c) (imposing mandatory-minimum sentences for distribution and possession with intent to distribute controlled substances).. Council OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY, REPORT ON BILL 10-617, THE “DistRict of Columbia Nonviolent Offenses MandatoRy-Minimum Sentences Amendment Act of 1994,” at 2 (October 26, 1994) [hereafter MandatoRy-Minimum Report]. Bill 10-617 was referred to the Committee on the Judiciary, which held a public hearing on October 17, 1994. Id. Almost everyone who appeared at the hearing supported the repealer. Id. at attachments. United States Attorney Eric H. Holder, Jr., however, expressed concern, indicating that mandatory-minimums “serve several useful purposes.” Id. He concluded that, “[i]f changes are to be made, we believe that only the length of those sentences should be examined.” Id. When the bill came before the Judiciary Committee on October 26, 1994, Councilmember Ray, embracing Mr. Holder’s suggestion, proposed an “Amendment in the Nature of a Substitute” that would retain mandatory-minimum prison terms but reduce them “to 2 years for the first offense, 4 years for the second offense and 6 years for the third offense.” Id. at 5. The Committee accepted the substitute and filed the Mandatory-Minimum Repoet with the Council on Bill 10-617 (as modified by the “substitute”). In that October 26, 1994 report, after generally stating the bill’s purpose — “to reduce the mandatory-minimum sentences for non-violent, unarmed drug offenders” — the following language appeared: “Reducing mandatory-minimums for non-violent offenders charged after the effective date of the act will also make more space available in the District’s corrective facilities for violent offenders.” Id. at 2 (emphasis added).

The Council, however, did not accept the compromise the Committee proffered. Councilmember Lightfoot immediately moved adoption of an amendment that would reinstate the repeal of mandatory-minimums that he and Councilmember Thomas originally had proposed. Transcript, Council of District of Columbia, 36th Legislative Meeting, at 232 (November 1,1994). No express provision was added to clarify the reach of the amendment, and there was no such discussion before the Council voted. Id. The Council adopted the bill — the repeal, not reduction, of mandatory-minimums — as Coun-eilmember Lightfoot had proposed. The “Disteict of Columbia Nonviolent Offenses MandatoRy-Minimum Sentences Amendment Act of 1994,” D.C.Law 10-258, § 3, 42 D.C.Reg. 238, 238 (effective May 25, 1995) (codified at D.C.Code § 33-541 (1995 Supp.)).⁴⁰

When this legislative history was called to the trial court’s attention, first in Holiday and later in Park, the defense counsel and the prosecutor both found the language ambiguous, and neither party argued it was conclusive. In its written pleadings and at argument on the sentencing motion, the government took the position that the words “offenders charged after the effective date” basically were forward looking, rather than allowing for retroactive application, and should be construed to mean “offenses committed after the effective date,” (emphasis added), in order to avoid “potential ex post facto problems.” ⁴¹ The government also emphasized that the absence of express language applying the repealer to offenses committed before the effective date required the court to apply the substantive provisions of the general savings statute, preserving sentencing for those offenses under the repealed law.

Counsel for appellants Holiday and Park (incorporating by reference the pleadings in Holiday) picked up on a theme suggested by Judge Canan: that the language in the MandatoRY-Minimum REPORT — “offenders charged after the effective date — may have applied only to the substitute Committee bill that merely reduced, rather than repealed, the mandatory-minimums. For that reason, according to counsel, this language had no bearing on the repealer finally adopted. Counsel added that offenses “charged” after the effective date inevitably would cover at least some offenses committed before that date; that the government’s pure prospectivity argument accordingly fell short; and that, in any event, nothing in the Committee’s language said the repealer was “limited to persons subsequently charged.”

In short, the government, while arguing that the Committee language should be construed to preclude application of the repealer to all offenses committed before its effective date, primarily advocated the savings statute as the way around an ambiguous, incomplete legislative history. The defense, on the other hand — while arguing that if the Committee language applied, it should be understood to reach back to embrace at least some offenses committed before the repealer’s effective date — primarily urged that the MandatoRY-Minimum Report did not apply to the particular repealer adopted. The defense then pressed the line of state cases, discussed earlier, that rejected general savings statutes. The judge, finding no helpful legislative history, agreed that case law construing the savings statute would control — and then sided with the government. No one at trial — or on appeal for that matter — has argued that the legislative history is conclusive.

We are satisfied that the language of the Mandatory-Minimum Report cannot be rejected simply on the ground that, because the Council adopted the original Lightfoot-Thomas bill rather than the Committee substitute, the MandatoRY-Minimum RepoRT language had no bearing on the matter. The experience and policy underlying the repeal-er were the same as those underlying the proposed reduction of mandatory-minimums, and thus the fact that the Council adopted the former rather than the latter would have no apparent bearing on the class of cases to be covered by the legislative change.

On the other hand, the single Committee reference, without elaboration, to “offenders charged after the effective date” cannot be held conclusive. There was no record of any discussion in committee — or at the Council— about the reach of the repealer; for all we can tell this was committee staffer language generally referring to the concept, but not to the definitive detail, of an effective date drawn from the large number of possible alternatives. Moreover, the date criminal charges are filed is a far less rational line to draw than others — the date of the offense, sentencing, or final adjudication — for purposes of defining the class covered.⁴² Accordingly, something more than a clause in a committee report, without analysis, should be required before a court pays definitive attention.

Furthermore, the federal and local general savings statutes apply, according to their terms, unless the repealing act itself “expressly provides” otherwise. D.C.Code § 49 — 304(a); accord 1 U.S.C. § 109. The Mandatory-Minimum Report does not include the kind of assurance needed to conclude that the Council, by statute, has “expressly” provided for application of the repealer to one group of cases or another. We do not necessarily say that legislative history can never supplement statutory language in such a way that, when read together, they trump application of a general savings statute. In this case, however, the legislative history is too scant and unreasoned to serve as an “express” basis for saying the general savings statutes do not apply.

Finally, as the government noted at trial, to the extent the Mandatory-Minimum Report language has any utility here, we note it at least is forward-looking, is consistent with the theory underlying the general savings statutes, and does not help defendants who are charged, as in these cases, before the effective date of the repealer. All things considered, therefore, we are not comfortable determining the applicable reach of the repealing legislation solely by reference to the Committee language.

(4)

The only way to conclude, as appellants would have it, that the Council “expressly” provided for application of the repealer to all pending prosecutions where sentence had not been imposed (or adjudicated to a final conviction) is to say that there is some kind of objectively discernable imperative — inherent in adopting ameliorative sentencing legislation — which unambiguously means that the very reference to an effective date signals effectiveness immediately, including application to proceedings in pending prosecutions commenced at a time when harsher sentences were anticipated.⁴³

This possible rationale is the only one we can think of to make a bare effective date provision, as such, an “express” directive for retroactive application of the repeal of mandatory-minimum sentences. It is akin to the reasoning of the New York Court of Appeals in Oliver: the view that any rational person, viewing the matter objectively, would have to agree that failure to apply the new sentencing rules retroactively would amount to unacceptable “vengeance or retribution.” Id., 151 N.Y.S.2d at 373, 134 N.E.2d at 202. We cannot agree, however, that Oliver expresses the only rational possibility. We cannot say that a legislature could not rationally conclude that the best approach would be a purely prospective one, so that all defendants who committed crimes before the statute became effective would be treated equally. Otherwise, sentencings could get caught up in manipulations with unfair results overall. Some convicted felons, for example, might be able to arrange sentencing delays to take advantage of the new sentencing scheme, whereas others could not achieve the same result before less sympathetic judges. But, more fundamentally, we see nothing irrational in a legislative conclusion that individuals should be punished in accordance with the sanctions in effect at the time the offense was committed, a viewpoint encompassed by the savings statutes themselves. In short, absent an express provision specifying the class or classes to which the new sentencing scheme applies, we cannot conclude that, “obviously” and inevitably, the legislature must have intended a retroactive, rather than a prospective, approach.

If we were dealing with general savings statutes that were ambiguous as to whether the repealed sentencing statute itself was saved (as in Estrada), or were written loosely enough to permit an implied legislative intent to override the general savings statutes, then perhaps we could see at least an opening for the argument that the general savings statutes should not apply here. But both statutes say the repealing legislation must “expressly provide” for extinguishment of the repealed statute, as applied to “any penalty ... incurred pursuant to the [repealed] act.” D.C.Code § 49-304(a). The mandatory-minimum repealer, however, does not do so by any reasonable stretch of the words “expressly provide.”

In applying the general savings statutes we are not dealing with optional rules of statutory construction; they are substantive provisions deemed a part of every statute that amends or repeals another statute imposing a penalty, forfeiture,' or liability, just in case the scope of an effective date or other applicability provision is not sufficiently spelled out. See Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 54 L.Ed. 1001 (1910); Great Northern Ry. Co. v. United States, 208 U.S. 452, 28 S.Ct. 313, 52 L.Ed. 567 (1908).⁴⁴ These general statutes, therefore, cannot be flicked aside as though legislative intent can, and must, be divined without reference to them. We see nothing “express” in the effective date provision that would make this case any different from Hurwitz or from later federal cases tracking the Supreme Court’s analysis in Marrero. In short, the repealing legislation adds nothing “express” (or necessarily implied, see supra note 44) that would preclude the general savings statutes from preserving the mandatory-minimum sentences in these cases.

We recognize the force in Justice Schae-fer’s observation that general savings statutes are not always salutary, let alone remembered by legislatures that fail to specify the reach of new legislation.

The common-law rule operated unsatisfactorily.-. .. The reaction against the common-law rule took the form of generalized statements of legislative intention.... They produce their own anomalous results. When a newer social view decides that certain conduct is no longer to be punished, the general statute steps in and imposes the punishment fixed by an earlier generation.... Such a [savings] statute is at best the statement of a present legislature as to the intention of a future one. It is so easy to show that the statute, when applicable, has often been overlooked by lawyers and judges that it is hard to believe that legislators have always had it in mind. Without looking beyond our own borders, it is clear that here, at least, such a statute has not been an effective substitute for individualized statements of legislative purpose.

People v. Bilderback, 9 Ill.2d 175, 137 N.E.2d 389, 393 (1956) (applying general savings statute to preserve prosecution for felony rather than misdemeanor). But, as Justice Schafer himself recognized, this is not to say a general savings statute should not apply when, by its terms, the law clearly says it is to apply. See id.

If the Council had intended for the repeal of mandatory-minimum sentences to apply as soon as possible, then a 30-day period of Congressional review (or, for even more immediate application, emergency legislation) could have been accomplished. Further, if the Council had intended for the repeal of mandatory-minimum sentences to apply retroactively — to pending prosecutions, either pre-sentence or pre-final judgment — express language to that effect could have been included. See Hertz, 218 U.S. at 221, 30 S.Ct. at 626, supra note 44. None of this happened. The general savings statutes, therefore, including the District’s own statute passed little more than four years earlier, preserve mandatory-minimum sentences in all cases where the offense was committed before May 25,1995.

IV.

Appellant Holiday also contends the trial court erred in denying his motion for severance, in failing to instruct the jury about the relationship between the drug offenses and the weapons offenses, in admitting expert testimony on the relationship between weapons and illegal drugs, and in denying his motion for continuance after discovery of the government’s alleged violation of Su-pér.Ct.Crim.R. 16.

Officer Robert Washington testified at trial that on March 23, 1994, at approximately 7:25 p.m., he saw a man, later identified as Holiday, selling what appeared to be a small quantity of drugs to a woman driving a white car. Washington apparently did not see any weapon during Holiday’s interaction with the woman. The woman then drove off and, about five minutes later, was stopped four or five blocks away by an arrest team responding to Washington’s radio broadcast. Police recovered from the floor of the woman’s car a white rock that field-tested positive for cocaine. The woman was placed under arrest.

When the woman drove away, Holiday entered a nearby apartment building. Officer Washington continued to watch the scene for another 45 to 60 minutes until he saw Holiday leave the building with two other men and enter a nearby car. Washington alerted another arrest team; he then pulled up next to the car where Holiday was seated. At the same time, approximately 8:80 p.m., two squad cars arrived. One pulled in front, and the other in back, of the ear containing Holiday. As the squad cars were arriving, Washington saw Holiday leaning back, pulling a gun from his waistband, and setting it on the floor of the ear. In a later search of the car, the police discovered a .9 millimeter semiautomatic handgun on the floor. The gun was loaded with black talon bullets; a second magazine containing 18 black talon bullets was found next to the gun. The police did not recover any drugs either from the ear or from Holiday or any other person in the ear. Holiday was then placed under arrest.

Holiday says the trial court erred in denying his motion for severance under Super.Ct.Crim.R. 14.⁴⁵ “Our standard of review of such rulings is abuse of discretion, and appellant must make a showing of compelling prejudice to show such error.” Gooch v. United States, 609 A.2d 259, 264 (D.C.1992). Such prejudice will not normally exist where the evidence of the offenses would be mutually admissible at separate trials or, in any event, is “separate and distinct, such that it would not be ‘amalgamated in the jury’s mind into a single inculpatory mass.’ ” Gooch, 609 A.2d at 265 (quoting Winestock v. United States, 429 A.2d 519, 527 (D.C.1981)).

The government argues that the weapons evidence and the drugs evidence are part of a single transaction or series of transactions and, accordingly, that the evidence of each is admissible to explain the other under the analysis we elaborated in Toliver v. United States, 468 A.2d 958 (D.C.1983). In Toliver, where the appellant had been charged with possession of heroin, we sustained the trial court’s admission of evidence of appellant’s contemporaneous drug sales “to explain the immediate circumstances surrounding the offense charged.” Id. at 960 (citations omitted). We recognized that evidence of other criminal activity under this “circumstances surrounding” rationale was technically “not other crimes evidence because it is too intimately entangled with the charged criminal conduct” to make it so. Id. Such evidence does not really reflect “other” criminal conduct, ie., it is not evidence of separable criminal conduct that is not admissible unless it meets specified exceptions, is more probative than prejudicial, and is permitted only with a jury instruction limiting its use. See Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). We therefore concluded in Toliver that, “where evidence of incidental, uncharged criminal conduct is inextricably intertwined with evidence of the charged offense, evidence of the uncharged criminal conduct is directly admissible without the necessity of a cautionary Drew instruction.” Toliver, 468 A.2d at 961; see also (John) Settles v. United States, 615 A.2d 1105, 1109 (D.C.1992) (Toliver evidence admissible “without any substantive limitations on its use”).

While pressing the Toliver rationale to avoid severance of the gun and drug charges, the government argues, in the alternative, that even if the facts here do not reflect inextricable intertwining of the gun and drug evidence, the evidence of each offense would be admissible in a separate trial of the other under the Drew exceptions permitting use of other crimes evidence to show motive and identity. See Drew, 118 U.S.App.D.C. at 16, 331 F.2d at 90. For this reason, too, says the government, a severance was not warranted.⁴⁶ We are satisfied that the Toliver argument works for the government, and thus we proceed with that analysis without considering Drew.

It is important to make clear, first, that Toliver itself and other eases that have applied it have dealt with the issue of admissibility of uncharged criminal activity in a case of another charged crime. In contrast, we consider here — for purposes of severance analysis — the admissibility of evidence of one charged crime in a trial with another charged crime. Thus, the question of inextricable linkage of the two for Toliver purposes is a question of mutual inextricable linkage — ie., linkage as seen from the perspective of each offense at the time it occurred — much like mutual admissibility under a Drew analysis. See (Charles) Settles v. United States, 522 A.2d 348, 355 (D.C.1987) (discussing mutual admissibility in misjoinder context). There is a significant difference, however. Under Drew, the mutual admissibility question focuses on particular exceptions to the rule barring other crimes evidence; under Toliver, the question is whether evidence of each charged crime is part of the “immediate circumstances surrounding” the other, such that the evidence reflects two transactions (or a series of transactions) so “intimately entangled” that, whether looked at from the beginr ning (drug sale) or the end (weapon offense) each criminal event is not clearly explainable to the jury without evidence of the other.

We begin our Toliver analysis by noting that this court has applied Toliver on occasion to uphold the admissibility of evidence of other criminal activity discovered during an arrest for the charge at issue. See Hawkins v. United States, 482 A.2d 1230, 1233 (D.C.1984) (per curiam) (evidence of weapons police discovered under defendant’s bed was admissible “to explain the circumstances surrounding the search and the arrest” when defendant was charged with possession of cocaine also discovered under defendant’s bed); see also Morrison v. United States, 547 (D.C.1988) (upholding admission of testimony about items stolen from Jeep in case charging receipt of Jeep itself as stolen property). The police had been waiting for Holiday to emerge from the building in order to arrest him on the drug charge; the weapon he happened to be possessing at the time of that arrest was therefore inextricably a part of his arrest for drugs and thus admissible in evidence under Toliver with respect to the drug charge.

As to admissibility of the drug evidence in the gun case, we note that évidence of earlier criminal activity has been held admissible under Toliver-type analysis to explain the circumstances leading up to an eventual arrest. See (Joseph) Bell v. United States, 677 A.2d 1044 (D.C.1996) (evidence of defendant’s drug sales fifteen minutes before arrest admissible in trial for possession with intent to distribute cocaine); Toliver, 468 A.2d at 961 (evidence of defendant’s drug sales admissible in trial for possession, but not sale, of heroin); Green v. United States, 440 A.2d 1005, 1007 (D.C.1982) (police observation of apparent drug sales before appellant’s arrest admissible in trial for possession, but not sale, of marijuana); Day v. United States, 360 A.2d 483, 485 (D.C.1976) (evidence that officers were arresting defendant for reported robbery admissible to explain events immediately preceding defendant’s commission of charged assault on arresting officer). Accordingly, from the perspective of the gun charge, Toliver analysis will permit admission of the drug evidence unless its linkage is too attenuated, the concern to which we now turn.

The facts of this case are similar to those of Joyner v. United States, 540 A.2d 457, 459 (D.C.1988), where the court held that a charge of possession with intent to distribute heroin had been properly joined with charges of assault with intent to kill while armed, assault with a dangerous weapon, and carrying a pistol without a license — without prejudice necessitating severance. Joyner had pointed a gun at someone and pulled the trigger three times, although the gun had not fired. Id. at 458. Joyner fled but was stopped in the same vicinity soon thereafter by a police officer and was arrested. The police searched an area near where the altercation had occurred and found a pistol, a small change purse containing ten small packets of heroin, and a pink laundry slip with Joyner’s name and address on it. Counsel for Joyner sought to sever the drug charge from the assault and weapon offenses. This court held:

The mere fact that Joyner was not arrested until several moments later and a very short distance away from the Watson home under circumstances where the evidence could lead one reasonably to believe that he had just abandoned the two items of contraband and the laundry slip does not seem to us to be a rational basis to hold this joinder [of the drug offense with the others] improper. (Emphasis in original.)

Id. at 459. Although the evidence adduced at trial in Joyner did not establish that the possession of heroin with intent to distribute necessarily was part of a transaction that included the assault, weapon, and ammunition charges, this court held, in effect, that the heroin possession was temporally and geographically connected enough to the other charges to permit joinder under Super.Ct.Crim.R. 8(a). More significantly for our purposes, in response to Joyner’s alternative contention based on Super.Ct.Crim.R. 14, this court found no prejudice warranting severance, apparently because the court (without citing Toliver) saw all the events as part of a whole that the jury needed to hear to understand the crimes charged.

Applying the kind of analysis spelled out in Toliver, we are satisfied that evidence of Holiday’s drug offense was admissible to explain the circumstances of his arrest on the weapon charge, see Day, 360 A.2d at 485, just as we are persuaded that evidence of the weapon offense was inextricably a part of Holiday’s arrest on the drug charge, see Hawkins, 482 A.2d at 1233. We recognize that the time differential between the two offenses — about an hour — distinguishes this case to some extent from Joyner, where the altercation and the discovery of drug evidence were but “moments” apart. Nonetheless, we conclude that the continuity of events here under the eye of a single police officer provides the necessary nexus for applying Toliver to both offenses here. See Croom v. United States, 546 A.2d 1006, 1009 n. 5 (D.C.1988) (affirming admission of evidence of defendant’s threatening conduct upon being confronted by victim and her mother the morning after events leading to charges of carnal knowledge and taking indecent liberties with a child occurred); Tabron v. United States, 410 A.2d 209, 214 (D.C.1979) (evidence that defendant planned to rob drug store admissible to explain circumstances leading up to murder that took place at the drug store).⁴⁷ The trial court, moreover, explicitly found the joined evidence “more probative than prejudicial.” See Green, 440 A.2d at 1007 (Toliver evidence admissible “when its probative value outweighs its prejudicial effect.”).⁴⁸ We cannot disagree on this record. We must conclude that the trial court did not abuse its discretion in denying appellant’s motion to sever the charges.

Holiday also argues that the trial court erred by failing to instruct the jury as to the limited purposes for admitting other crimes evidence. See Sweet v. United States, 449 A.2d 315, 819 (D.C.1982) (“we generally have required the trial court, sua sponte if necessary, to instruct the jury as to the limited purpose for which [other crimes] evidence is admitted and for which it is to be considered”). Appellant did not request such an instruction at trial; we therefore review for plain error. See Green, 440 A.2d at 1008 n. 8.

Because we have ruled that the weapons evidence and the drugs evidence were both admissible under Toliver, appellant’s argument must fail. See Hazel v. United States, 599 A.2d 38, 40 n. 4 (D.C.1991) (“evidence of other criminal activity to explain ‘the circumstances immediately surrounding the charged offense’ may be admitted without any cautionary instruction only when such activity is temporally proximate to the charged crime.”); Parker v. United States, 586 A.2d 720, 724 n. 6 (D.C.1991) (quoting Toliver, 468 A.2d at 961 (“inextricably intertwined” evidence directly admissible without the necessity of cautionary Drew instruction.)).

Holiday next argues that the trial court erred in admitting expert testimony about the relationship between weapons and illegal drug sales. At trial, the government elicited expert testimony from Detective Stroud that “a lot of times drug dealers use weapons to protect their enterprise,” and that “the most popular handgun used [by drug dealers] is the .9 millimeter semiautomatic. The weapon has a lot more stopping power. You can crack off more rounds. Sometimes as many as 20 rounds of ammunition can be fired before you have to reload again.” Before Stroud took the stand, defense counsel objected to Stroud’s testimony linking drugs and weapons.

“The trial court has broad discretion to admit or exclude expert testimony, and its decision either way will not be disturbed on appeal unless it is manifestly erroneous.” Hinnant v. United States, 520 A.2d 292, 293 (D.C.1987) (citing Ibn-Tamas v. United States, 407 A.2d 626, 632 (D.C.1979), and Douglas v. United States, 386 A.2d 289, 295 (D.C.1978)). The court has “ ‘frequently upheld the use of expert testimony to aid the jury’s understanding of drug trafficking in the District.’” Blakeney, 653 A.2d at 369 (quoting Griggs v. United States, 611 A.2d 526, 527 (D.C.1992)). Expert testimony is admissible when it assists the jury in “ ‘understanding matters beyond the ken of the average lay[person].’” Id. (quoting Griggs, 611 A.2d at 528). The trial court ruled that the detective’s testimony was relevant to prove intent to distribute and that “the relevant aspect of it clearly outweighs any prejudicial impact.” See Hinnant, 520 A.2d at 294 (fact that appellant possessed a gun “when he was arrested also supports a finding of intent to distribute”). The trial court did not abuse its discretion in admitting the detective’s expert testimony.

E.

Finally, Holiday argues that the trial court erred in refusing to grant his request for a mid-trial continuance after discovering the government had failed to disclose a Metropolitan Police Department report on the results of a fingerprint examination of the gun and the magazine recovered in this case. The fingerprint report indicated that latent fingerprints had been lifted from the barrel of the weapon recovered but that the prints were “not good enough to be compared against another suspect.”

When the trial court finds, as Judge Canan did here, that a discovery violation has occurred, the court has broad discretion to fashion an appropriate sanction. See Lee v. United States, 385 A.2d 159 (D.C.1978). “[A]mong the factors the trial court must consider and weigh are: (1) the reasons for the nondisclosure, (2) the impact of the nondisclosure on the trial of the particular case, and (3) the impact of the sanction on the proper administration of justice in general.” Id. at 163 (citations omitted); see also Washington v. United States, 600 A.2d 1079, 1081 (D.C.1991) (per curiam). We will reverse an appellant’s conviction only if the trial court abused its discretion in fashioning a remedy and the appellant’s rights were substantially prejudiced. See Washington, 600 A.2d at 1081; Lee, 385 A.2d at 163-64.

Defense counsel requested an overnight continuance so that she would have an opportunity to review the fingerprint report and prepare adequate cross-examination of the fingerprint expert. The trial court denied counsel’s request, allowing counsel instead to speak with the government’s fingerprint expert over the lunch recess and precluding the government from introducing the fingerprint evidence in its case-in-chief.

Assuming without deciding there was a Rule 16 violation here, we do not find an abuse of discretion. The trial judge, in his own words, sought “a proper balance to both sides, to allow both sides not to be unduly prejudiced by what [it] found in this case not to be a deliberate effort ... to frustrate either side.” Furthermore, even if we believed the trial court abused its discretion — which we do not — we would conclude that Officer Washington’s eyewitness testimony that he saw Holiday place the gun on the floor of the car, when coupled with the minimal exculpatory value of the fingerprint report, would demonstrate that appellant had failed to demonstrate prejudice to his substantial rights warranting reversal. See Lee, 385 A.2d at 164.

y.

Appellant Park argues that the trial court abused its discretion in admitting hearsay testimony under the coconspirator exception. She also maintains that the mandatory-minimum sentencing regime is not rationally related to legitimate legislative goals, as applied to the facts of her case, and thus that her sentence is unconstitutional.

The government sought to prove at trial that Park and her husband conducted a cocaine distributing operation from their carryout store, the Fish Market, located near 9th and N Streets, N.W. The government presented evidence at trial that on June 24, 1993, Officer Phillip Burton, working undercover, met an individual later identified as Carl Hatchett near the Fish Market. Burton told Hatchett that he wanted to purchase a “ten pack,” meaning a bundle of ten vials of “Giorgio” brand cocaine powder. After consulting with another individual, Hatchett instructed Burton to wait in the alley and “not [to] buy from anyone else.” Hatchet told Burton that Hatchett “had to go get it in the store.” Another officer then saw Hatchett enter the Fish Market for less than a minute and return to the alley where Burton was waiting. Hatchett sold Burton ten vials of cocaine for $100.

A short time later, the police arrested Hatchett and executed a search warrant at the Fish Market. Police officers recovered (1) a bundle of ten vials of cocaine hydrochloride weighing 481 milligrams from Park’s pocket, (2) a red plastic bucket bearing Park’s fingerprints and containing 205 vials (approximately 12 grams) of cocaine, and (3) two stacks of cash, one of which contained a marked $20 bill that Burton had used in purchasing cocaine from Hatchett. Park testified that a customer had left the plastic bucket in the store and that she repeatedly but unsuccessfully had attempted to contact her husband to have him turn the contraband over to the police.

Park argues, first, that the trial court abused its discretion by admitting Burton’s testimony that Hatchett had told him Burton “had to go get it [the cocaine] in the store.” A eoconspirator’s out-of-court statement is admissible nonhearsay in this jurisdiction ⁴⁹ when the party seeking to introduce the statement establishes that (1) it is more probable than not a conspiracy existed, (2) the defendant had a connection to the conspiracy, and (3) the conspirator made the statements during the course of, and in furtherance of, the conspiracy. See Bellanger v. United States, 548 A.2d 501, 503 (D.C.1988) (per curiam); Butler v. United States, 481 A.2d 431, 439 (D.C.1984) cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985). The trial court’s decision to admit eoconspirator testimony as nonhearsay will be upheld absent an abuse of discretion. See Williams v. United States, 655 A.2d 310, 315 (D.C.1995).

Before Burton took the stand, the trial court ruled that the statement was one of joint activity and was highly probative of the connection between the store and the items found during the search of the store. While acknowledging that the statement was somewhat prejudicial because Hatchett did not mention Park by name, the court concluded that the statement was “clearly admissible and clearly probative.” We see no abuse of discretion in the trial court’s ruling. See Chavarria v. United States, 505 A.2d 59, 62 (D.C.1986) (upholding admission of statement by nontestifying coconspirator advertising marijuana).

Park next argues that the mandatory-minimum sentencing scheme is unconstitutional as applied to the facts of her case because it is not rationally related to any legitimate penological objective. Park points out that the statutory classification punishes first offenses of possession with intent to distribute (PWID) under 50 grams of powdered cocaine more severely than first offenses of PWID under 50 grams of crack cocaine. She then argues that this disparity is at odds with the rest of the sentencing scheme where the seller of crack cocaine is punished equally or more severely than the seller of powdered cocaine. This particular disparity, she says, reflects an irrationality that violates due process and equal protection of the laws.

Park acknowledges that a statutory classification that does not impinge on fundamental rights or involve a suspect class carries a strong presumption of validity. See Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993); Backman v. United States, 516 A.2d 923, 926 (D.C.1986) (per curiam) (rejecting constitutional challenge to distinction between addiction to heroin and addiction to cocaine for purposes of addict exception of D.C.Code § 33-541(c)(2)). The rational-basis test, applicable here, “allows legislatures wide discretion in attacking problems in any rational manner.” Gibson v. United States, 602 A.2d 117, 119 (D.C.1992) (rational basis test is standard applicable to equal protection challenges to sentencing classifications).

In adopting the “Omnibus Narcotic and Abusive Drug Interdiction Amendment Act of 1990,” the Council created “a tiered system of penalties based on the number of convictions and the amount of drug involved” ⁵⁰ to replace a system, originally adopted by citizen initiative, mandating minimum penalties for drug distribution without such differentiation.⁵¹ First, the 1990 Act changed the definition of “narcotic” to include “cocaine, its salts, optical and geometric isomers, and salts of isomers.”⁵² That change alone “inerease[d] the mandatory minimum for cocaine [powder] from 20 months to 4 years.”⁵³ No one here contends that the Council lacked a rational basis for designating cocaine as a narcotic drug.

Next, the Council created a statutory distinction between major and minor drug dealers, with different penalties for each depending on the type of substance involved.⁵⁴ For most substances — e.g., narcotics (including cocaine powder), phenmetrazine, and a PCP mixture — an individual became a major dealer if 500 or more grams were sold; for selling less, one would be a minor dealer.⁵⁵ But, for three drugs in particular — cocaine base (crack cocaine), pure PCP, and methamphetamine — one became a major dealer for selling only 50 or more grams; and, if selling under that, the seller was a minor dealer.⁵⁶

Finally, the Council created a separate classification, carrying an additional year’s mandatory-minimum penalty, for first and second offense minor powder cocaine distributions.⁵⁷ Accordingly, the penalty scheme created by the Council for distributions of cocaine base, cocaine powder, and other narcotic drugs⁵⁸ was:

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Park argues the statute is unconstitutional as applied to eases, such as hers, involving fewer than fifty grains of a controlled substance. Park compiles an impressive array of authorities that sustain imposition of longer sentences for distributing crack cocaine than for distributing an equal amount of powdered cocaine. She also points out that 21 U.S.C. § 841 (1994) imposes a substantially higher prison term for distributing crack cocaine than for distributing an equal amount of powdered cocaine. See United States v. Cyrus, 281 U.S.App.D.C. 440, 443, 890 F.2d 1245, 1248 (1989) (upholding mandatory sentence of ten years for distributing crack cocaine although appellant most likely would have received sentence of two or three years for distributing an equal amount of powdered cocaine). Further, the federal sentencing guidelines treat one gram of cocaine base as equivalent to 100 grams of powdered cocaine for sentencing purposes. See United States v. Lawrence, 951 F.2d 751, 753 (7th Cir.1991). Park then cites state laws to establish that thirteen states punish one for selling crack cocaine more severely than for selling powdered cocaine, while the remaining thirty-seven states punish the two types of cocaine equally. Park contends that even under District of Columbia law, distribution of crack cocaine — for all amounts over fifty grams — is punished equally with, or more severely than, distribution of an equal amount of powdered cocaine. Drawing on these authorities, Park concludes that punishing the distribution of fewer than fifty grams of powdered cocaine more harshly than punishing the distribution of an equal amount of crack cocaine is an anomaly for which there can be no rational basis.

No one seriously could suggest that the respective mandatory-minimum punishments for selling small amounts of powdered cocaine and crack cocaine — looked at separately — are unconstitutional. Neither is irrational in isolation. For this reason alone we cannot say that the decision to punish more heavily for sales of powdered cocaine in certain amounts than for sales of crack cocaine in those same amounts lacks a rational basis; a legislature is not obliged to justify punishment for one crime by reference to punishment for another. As the federal courts have noted when responding to similar challenges to the federal sentencing guidelines:

Political decisions may be harsh yet -within the bounds of power. The Constitution does not compel Congress to adopt a criminal code with all possibility for unjust variation extirpated. Experience with the guidelines suggests the reverse: Every attempt to make the system of sentences ‘more rational’ carries costs and concealed irrationalities, both loopholes and unanticipated severity. Criminals have neither a moral nor a constitutional claim to equal or entirely proportional treatment.

United States v. Marshall, 908 F.2d 1312, 1325-26 (7th Cir.1990); see also United States v. Holland, 810 F.2d 1215, 1219 (D.C.Cir.1987) (“equal protection of the laws does not require Congress in every instance to order evils hierarchically according to their magnitude and to legislate against the greater before the lesser”). Nor is the Council required to rewrite the criminal code when deciding to impose harsher penalties for what it rationally perceives as a particularly vexing crime.

The Council’s decision to punish what it deemed minor powder cocaine sales more harshly than any other minor drug sales— including crack cocaine — does not invalidate the statutory scheme. While not perfectly symmetrical, the scheme is rationally related to legitimate penological objectives. The crime of possession with intent to distribute a given amount of powdered cocaine is punished less severely than possession with intent to distribute an equal amount of crack cocaine in some circumstances; and it is punished equally with distribution of the same amount of crack cocaine in other circumstances. The fact that possession with intent to distribute powdered cocaine happens to be punished more severely than possession with intent to distribute crack cocaine in still other circumstances does not make the statute unconstitutional as applied to Park. In addressing practical problems, the legislature may make “rough accommodations.” Metropolis Theater Co. v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913), quoted in Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970). “Perfection in making the necessary classifications is neither possible nor necessary.” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976) (per curiam).

In any event, the government proffers a rational basis for the reverse statutory distinction Park complains of here in cases involving less than fifty grams of cocaine:

Given that cocaine base [i.e., crack cocaine] is more addictive than cocaine powder (see Brief for Appellant at 22-23), the Council rationally could have believed that small dealers in cocaine powder are less likely than small dealers in cocaine base to be addicts who sell simply to support their habits. Thus, the Council could conclude, low-level dealers in cocaine base generally do not deserve the more severe punishment due low-level dealers in cocaine powder.

While this justification for more severe statutory punishment for selling under fifty grams of cocaine powder than for selling a like amount of crack cocaine seems strained, this court cannot say it is altogether irrational. Federal cases upholding harsher penalties for crack cocaine reason that crack cocaine is cheap, popular, and addictive. While it is certainly legitimate for a legislature to choose to “combat the devastating effects of crack cocaine on our society,” Lawrence, 951 F.2d at 755, by keeping “minor” crack dealers off the streets for significant periods of time, we do not believe the Constitution requires the Council to adopt a crime-fighting approach identical to that adopted in other jurisdictions. It is not surprising, nor does it violate the Constitution, for legislative bodies to attempt diametrically opposed, but rationally based, solutions to a particular social problem. The Constitution requires only that the statutory distinction be supported by at least one “state of facts either known or which could reasonably be assumed,” Backman, 516 A.2d at 927 (quoting United States v. Thorne, 325 A.2d 764, 766 (D.C.1974) (quoting United States v. Carolene Products Co., 304 U.S. 144, 153-54, 58 S.Ct. 778, 784-85, 82 L.Ed. 1234 (1938))); see also F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 314-16, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993). Thus, the distinction need only be hypothetically rational, not necessarily based on a rational judgment actually made by the Council. We conclude that the sentencing scheme of the former D.C.Code § 33-541(c) meets this constitutional test. Accordingly, we decline Park’s invitation to fine-tune the Council’s rational classification scheme; we uphold the constitutionality of the statute as applied to the facts here.

VI.

In summary, these consolidated cases result in the following rulings: (1) the petitions for writ of mandamus in the two Edwards cases are dismissed without prejudice to the right of the government to seek correction of illegal sentences pursuant to Super.Ct.Crim.R. 35 in light of our decisions in the two direct appeals, Holiday and Park; (2) pursuant to the federal general savings statute, 1 U.S.C. § 109, and to the District of Columbia general savings statute, D.C.Code § 49-804(a), mandatory-minimum sentencing is required in all eases of offenses committed before May 25,1995, the effective date of the statute repealing mandatory-minimum sentences; (3) the trial court did not abuse its discretion in denying Holiday’s motion for severance, and did not commit reversible error in admitting expert testimony, in declining to instruct the jury on the limited use of other crimes evidence, and in denying Holiday’s request for a continuance in response to the government’s alleged violation of Super.Ct.Crim.R. 16; therefore, Holiday’s convictions are affirmed; and (4) the trial court did not commit reversible error in admitting nonhearsay statements of an alleged cocon-spirator, and the sentencing structure of former D.C.Code § 33-541(c), as applied to the facts of Park’s case, is constitutional; Park’s conviction, therefore, is affirmed.

So ordered.

PostsCRipt in Response to Dissent

Judge Sohwelb, in dissent, stresses the devastating impact of “lengthy prison sentence[s] which [the defendants do] not deserve” on parents of small children, on racial and ethnic minorities, and on persons dying of AIDS or other medical conditions. Post at 97 n. 11. Criminal conduct often brings tragedy, both for the individuals involved and for the community as a whole. But to achieve the result Judge Sohwelb calls for, this court would have to ignore the law in effect at the time these crimes were committed, excuse the ambiguous language of the statute that repealed mandatory-minimum sentencing, overlook the general savings statutes enacted by Congress and by the Council of the District of Columbia to fill in the gaps caused by such ambiguity, and dismiss the fact that all four of these appellants were convicted— fairly — of contributing to the drug problem that plagues the city. It is the Council’s role to decide what the laws — including their effective dates — will be, and it is this court’s role to apply laws as the Council has written them, not as we would have had the Council write them, or have written them ourselves, in hindsight. We can no more decide to apply a law before it becomes effective than we can decide not to apply a law after it becomes effective.

Judge Sohwelb denigrates use of the federal general savings statute as, in effect, an anomaly adopted “a century and a quarter ago.” Post at 104. The fact is, of course, that the Council itself adopted the local savings statute — equally applicable here (Judge Sohwelb agrees) — in 1990, only four-plus years before the Council repealed mandatory-minimum sentencing.⁵⁹ Seven members — a majority — were on the Council for both legislative decisions.⁶⁰ Furthermore, the Council’s decision to adopt language that is functionally equivalent to the federal statute, but different in wording, shows more than passing attention to the subject. Compare D.C.Code § 49-304(a) with 1 U.S.C. § 109. We therefore cannot accept our colleague’s argument that the Council should be deemed not to have had the general savings statute in mind when it repealed mandatory-minimums without specifying which of the several possible classes of defendants the repealer should affect. See supra Part III. D.(3). Under the circumstances, we have to presume the Council knew what it was doing in declining to provide language in the re-pealer that negates the general savings statutes.

The majority approach accordingly differs from that of our colleague in two key respects. First, Judge Schwelb argues that the Council, in repealing mandatory-minimum sentencing, did not trigger the general savings statute because the repealer did not “release or extinguish” a penalty. Second, he argues that even if a penalty was released or extinguished, the Council of the District of Columbia — although not “expressly” saying so — intended the repealer to apply retroactively, i.e., to affect all pending cases, rather than having the repealed legislation (preserved by the general savings statutes) apply-

As elaborated earlier, our colleague is wrong in his first conclusion because of Supreme Court {Marrero) and succeeding federal circuit court {Jacobs; Cook) authority to the contrary. He errs in his second, fallback argument both because the Council’s repeal-er did not satisfy the requirement of an “express” provision to negate application of the general savings statutes and because, in any event, the Council’s intent — prospective or retroactive application of mandatory minimum sentencing? — is not clear. Even if we were inclined to do so, this court cannot supply a legislative intent that, to this day, is not discernible but for the general savings statutes enacted by Congress — and by the Council itself in 1990 — to govern the very kind of situation at issue here. It therefore follows, ineluctably, that the federal and local general savings statutes, 1 U.S.C. § 109 and D.C.Code § 49-304(a), preserve for the defendants here the mandatory-minimum sentencing provisions in effect when the defendants’ crimes were committed.

1 . See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 841, 110 S.Ct. 1570, 1579, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring).

2 . See Bradley v. United States, 410 U.S. 605, 607-08, 93 S.Ct. 1151, 1153-54, 35 L.Ed.2d 528 (1973).

3 . See Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 2536, 41 L.Ed.2d 383 (1974); Bradley, 410 U.S. at 607-08, 93 S.Ct. at 1153-54.

4 . See Gibson v. United States, 602 A.2d 117, 121 (D.C.1992) ("The ex post facto clause proscribes legislation that retroactively 'alter[s] the definition of crimes or increase[s] the punishment for criminal acts.’ ”) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990)); Cornwell v. United States, 451 A.2d 628, 630 (D.C.1982) (per curiam) ("A ‘law that changes the punishment, and inflects a greater punishment, than the law annexed to the crime, when committed is an ex post facto law.”) (quoting Warren v. United States Parole Comm’n, 212 U.S.App.D.C. 137, 140, 659 F.2d 183, 186 (1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (emphasis deleted))).

5 . See Sekt v. Justice’s Court of San Rafael Tp., 26 Cal.2d 297, 159 P.2d 17, 21 cert. denied, 326 U.S. 756, 66 S.Ct. 96, 90 L.Ed. 454 (1945) (retroactive application of mitigating statutes "is not complicated by the prohibition against ex post facto laws, since it is well settled that beneficial legislation is not within the prohibition of the constitutional provision”).

6 . Note, Today's Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 127 (1972).

7 . Id.

8 . See, e.g., State v. Coolidge, 282 N.W.2d 511, 514 (Minn.1979) ("a statute mitigating punishment is applied to acts committed before its effective date, as long as no final judgment has been reached”); State v. Pardon, 272 N.C. 72, 157 S.E.2d 698, 702 (1967) ("When, however, the law under which a defendant was convicted is amended pending appeal so as to mitigate the punishment, it is logical to assume that the legislature intended the new punishment, which it now feels fits the crime, to apply whenever possible.”).

9 . See also Elkins v. State, 659 N.E.2d 563, 565 (Ind.App.1995) (ameliorative amendment is "sufficient indication of the legislative intent that it be applied to all whom such application would be possible and constitutional” (quoting Lewandowski v. State, 389 N.E.2d 706, 707 (Ind.1979)); People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69 (1989) (applying Oliver).

10 . The Rhode Island general savings statute provided:

No suit, prosecution or indictment, pending at the time of the repeal of any statute for any offense committed * * * shall in any case be affected by such repeal, but such suit, prosecution or indictment, may be proceeded with, and such act shall be deemed to be in force for the purpose of prosecuting the same to final judgment and execution or sentence, as the case may be. (Ellipses in original.)

State v. Macarelli, 118 R.I. 693, 375 A.2d 944, 946 (1977) (quoting R.I. Gen.Laws § 43-3-23).

11 . People v. Harmon, 54 Cal.2d 9, 4 Cal.Rptr. 161, 351 P.2d 329 (1960).

12 . The California general savings statute provided:

The termination of suspension (by whatsoever means effected) of any law creating a criminal

offense does not constitute a bar to the * * * punishment of an act already committed in violation of the law so terminated or suspended, unless the intention to bar such * * * punishment is expressly declared by an applicable provision of law.

Estrada, 48 Cal.Rptr. at 176 n. 2, 408 P.2d at 952 n. 2 (quoting Cal.Gov’t Code § 9608) (ellipses in original).

13 . Later California decisions have cited Estrada for the general proposition that, " ‘where the amendatory statute mitigates punishment and there is no [specific] saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.’ ” People v. Nasalga, 12 Cal.4th 784, 50 Cal.Rptr.2d 88, 94, 910 P.2d 1380, 1385 (1996) (quoting Estrada, 48 Cal.Rptr. at 177, 408 P.2d at 952).

14 . The Michigan general savings statute provided:

The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred trader such statute or any part thereof, unless the repealing act shall so expressly provide and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.”

Schultz, 460 N.W.2d at 509-510 (quoting Mich.Comp.Laws § 8.4a)

15 . Hawaii’s general savings statute provided:

No suit or prosecution pending at the time of the repeal of any law, for any offense committed or for the recovery of any penalty or forfeiture incurred under the law so repealed, shall be affected by such repeal.

Von Geldern, 638 P.2d at 322 n. 3 (quoting Haw.Rev.Stat. § 1-11).

16 . Other states, interpreting similar statutes, have held that the savings statute was inapplicable because the repealed statute did not involve a "penalty.” See Thompson v. Edgar, 259 A.2d 27, 29 (Me.1969) (suspension of driver's license); Sherrill v. State, 14 Md.App. 146, 286 A.2d 528, 532 (1972) (test for criminal responsibility).

17 . Some states have relied on statutes to assure retroactive application of ameliorative sentencing legislation. The Vermont legislature, for example, has adopted an ameliorative amendment to its savings clause:

If the penalty or punishment for any offense is reduced by the amendment of an act or statutory provision, the same shall be imposed in accordance with the act or provision as amended unless imposed prior to the date of the amendment.

State v. Flagg, 160 Vt. 141, 624 A.2d 864 (1993) (quoting 1 Vt.Stat.Ann. § 214(c)).

The general savings clause of West Virginia expressly provides for retroactive application of mitigating statutes enacted before the sentence is pronounced but not for retroactive application thereafter. See State ex rel. Miller v. Bordenkircher, 166 W.Va. 169, 272 S.E.2d 676, 677 (1980) (per curiam) (ameliorative sentencing provisions of new law not applicable to case where judgment was final before repeal of old law became effective). The law provides:

The repeal of a law, or its expiration by virtue of any provision contained therein, shall not affect any offense committed, or penalty or punishment incurred, before the repeal took effect, or the law expired, save only that the proceedings thereafter had shall conform as far as practicable to the laws in force at the time such proceedings take place, unless otherwise specially provided; and that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has taken effect.

Id. (quoting W.Va.Code § 2-2-8).

See also People v. Thomas, 185 Colo. 395, 525 P.2d 1136, 1137 (1974) (en banc) (interpreting statute providing for post-conviction review when "there has been a significant change in the law, applied to appellant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard” as permitting application of changed legal standards "wherever constitutionally permissible”).

18 . See Gee v. State, 508 N.E.2d 787, 789 (Ind.1987) ("The savings clause ... provides that an offense ... shall be prosecuted and remains punishable under the statute in force at the time the offense was committed."); State v. Cramer, 196 Kan. 646, 413 P.2d 994, 996 (1966) (general savings statute preserves "all rights and remedies under a repealed statute when the repealing statute is silent as to whether such rights and remedies shall be abrogated or not.”); State v. Dodge City, 238 Neb. 439, 470 N.W.2d 795, 797 (1991) ("under the general saving clause a pending action is not affected by the repeal or amendment of a statute, and the laws in effect at the time of the commencement of the action are controlling.”).

19 . Note, supra note 6, at 128 & n. 56.

20 . D.C.Code § 49-301 (1990 Repl.) provides:

The common law, all British statutes in force in Maryland on February 27, 1801, the principles of equity and admiralty, all general acts of Congress not locally inapplicable in the District of Columbia, and all acts of Congress by their terms applicable to the District of Columbia and to other places under the jurisdiction of the United States, in force in the District of Columbia on March 3, 1901, shall remain in force except insofar as the same are inconsistent with, or are replaced by, some provision of the 1901 Code. (Omitting citations.)

21 . Pub.L. No. 70-899, 45 Stat. 1446 (codified in 27 U.S.C. § 91, 92 (1929)) (repealed 1935).

22 . Pub.L. No. 66-66, 41 Stat. 305 (1919), Pub.L. No. 67-96, 42 Stat. 222 (1921), Pub.L. No. 70-899, 45 Stat. 1446 (1929) (codified as amended in scattered sections of 27 U.S.C.) (repealed 1935)).

23 . One cannot tell from either circuit court opinion whether sentence initially had been pronounced before or after the effective date of the amendment reducing penalties. The briefs filed in Hurwitz reveal that the amendment had become effective before sentencing, whereas the dates in Maceo — offense committed in 1929, amendment effective January 15, 1931, appeal decided less than a month later, February 12, 1931 — strongly suggest that the defendant had been sentenced before the amendment became effective. It would appear, however, that Maceo was a direct appeal of that sentence, not a collateral attack. Thus, neither Hurwitz’s nor Maceo’s sentence had been finally adjudicated before the ameliorative amendment had become effective. See Pendergrast v. United States, 135 U.S.App.D.C. 20, 26 n. 31 (conviction is final only after "the judgment of conviction was rendered, the availability of appeal exhausted and the time for petition for certiorari elapsed or a petition for certiorari denied”), cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969). Because the cases before us here present only the factual situation present in Hurwitz, we do not decide whether there may be situations in which the apparently different timelines in Maceo and Hurwitz would produce different legal results.

24 . See Quick v. District of Columbia, 71 A.2d 771, 771 (D.C.1950).

25 . See Johnson v. United States, 576 A.2d 739, 740 (D.C.1990) (per curiam) (collateral attack on sentence through motion to vacate).

26 . See Melson v. United States, 505 A.2d 455 (D.C.1986) (per curiam). In Melson, the defendant had committed an offense when the Federal Youth Correction Act (FYCA) was in place but was sentenced after the FYCA had been repealed. The trial court sentenced him under the FYCA and the defendant appealed, contending he should receive an adult sentence (which, under the circumstances, would have had the effect of releasing him from incarceration earlier). . An examination of the briefs filed on appeal reveals the defendant argued that the general savings statute, 1 U.S.C. § 109, did not apply. Rather than contest that argument, the government argued that, by definition, an adult sentence was harsher than an FYCA sentence and accordingly that, because of the ex post facto clause, the judge had to sentence under the FYCA. This court reversed, holding the FYCA sentence was invalid because "the express language of the Crime Control Act removed the statutory authority for FYCA commitments effective October 12, 1984; [and] the defendant waived any right to constitutional protection.” Id. at 456. This court accordingly did not come to grips with the general savings statute issue. For that reason, we cannot say the result in Melson binds this court, under M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971), to hold that the trial judges in the present cases may not impose mandatory-minimum sentences.

27 . Pub.L. No. 91-513, 84 Stat. 1236, 1242 (short title codified at 21 U.S.C. § 801 (1994)).

28 . See supra note 14 and accompanying text (discussing Schultz, 435 Mich. 517, 460 N.W.2d 505 (1990)).

29 . See supra Part III.B. (discussing Tapp, 26 Utah 2d 392, 490 P.2d 334 (1971)).

30 . Judge Schwelb distinguishes Marrero as a case, like Johnson, 576 A.2d at 739, supra note 25, where the defendant had been sentenced before enactment of the ameliorative statute. Post at 100 n. 15. The Court’s analysis in Marre-ro, however, unlike that in Johnson, did not turn on the fact that Marrero’s conviction was final before the effective date of the repealing statute. Rather, the Court focused on the later parole decision date and considered whether the Board of Parole’s decision — to be made after the effective date of the repealing statute — was still part of the prosecution (commenced before the re-pealer's effective date) and thus subject to savings statute analysis. The Court in Marrero— drawing heavily upon the reasoning of Bradley, 410 U.S. at 605, 93 S.Ct. at 1152-53 (where the defendant had been convicted and sentenced after the effective date of the repealing statute)— focused only on two dates: it related the parole decision date back to the date the prosecution was commenced. Accordingly, although the Court concluded that parole eligibility was determined at sentencing, the Court was not concerned about whether the sentencing date itself was before or after the effective date of the repealing statute. In short, the Court did not rely on the distinction that Judge Schwelbe now suggests puts Marrero in a separate analytical class.

31 . The Supreme Court has used the same rationale — focusing exclusively on the statute’s facial mandatory-minimum, without regard to the exercise of judicial discretion — in finding violations of the ex post facto clause. In Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), the Court held that a mandatory fifteen year sentence with possibility of parole for grand larceny was a "more onerous" penalty than a discretionary sentence of up to fifteen years, even though the convicted felons could end up with the same period of incarceration; "the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed.” Id. at 401, 57 S.Ct. at 799. See also United States v. Paskow, 11 F.3d 873, 877 (9th Cir.1993) (statutoiy amendment increasing penalty imposed upon revocation of supervised release violated ex post facto clause when applied to underlying offenses committed before amendment was adopted; ”[i]t is the difference between a court’s discretion to sentence a defendant to a particular term — or to one substantially shorter — and the absolute requirement that the defendant be sentenced to at least that term, that implicates the first prong of the ex post facto prohibition [inflicting a greater punishment on the defendant]”).

32 . Judge Schwelb argues, to the contrary, that the mandatory-minimum repealer “effectively preserved, and did not release or extinguish, penalties previously in effect,” post at 101, simply because a judge can still impose, by exercising discretion under the new statute, the longer, minimum sentences automatically required under the old one. He says "the sentencing court’s retention of the authority to impose sentences far more severe than the previous mandatory minimum terms conclusively refutes the notion that the prior penalties have been ‘extinguished’ or 'released.' ” Post at 100. First, as indicated earlier in the text of this opinion, his position ignores the case law. See, e.g., Marrero, 417 U.S. at 663-64, 94 S.Ct. at 2538-39. Second, his assertion is self-refuting because the repealer clearly extinguishes a more onerous, mandatory, penalty — as evidenced by Judge Edwards’ exercise of discretion to impose more lenient sentences in Palmer’s and Burgess’s cases, as well as by Judge Richter’s and Judge Canan’s announced willingness to impose lesser sentences in Park’s and Holiday’s cases, respectively, if mandatoiy-minimums were not required. Finally, Judge Schwelb asks us to be "just a bit ‘earthy’ about the problem." Post at 103. We therefore note the practical impact here. As Judge Schwelb himself points out, after enactment of mandatory-minimum sentencing, "a defendant had no incentive to plead guilty as his [or her] sentence was pre-ordained,” and prosecutors began to offer pleas of “attempted distribution” or “attempted possession with intent to distribute” as a way around mandatory sentencing. Post at 92. This development itself evidences the fact that defendants and prosecutors alike perceived a considerable difference between mandatory and discretionary penalties, and that repeal of the former would — as a matter of real world impact — extinguish a penalty.

33 . Burgess, Holiday, Park, and Palmer were indicted, respectively, on December 8, 1993, March 31, 1994, June 9, 1994, and November 22, 1994. They were sentenced, respectively, on June 27, 1995, July 20, 1995, September 29, 1995, and September 25, 1995.

34 . No party argues — nor does Judge Schwelb— that D.C.Code § 49-304(a) amends or repeals 1 U.S.C. § 109 as applied to the District of Columbia. But cf. D.C.Code § l-208(b) (1992 Repl.) (Council may amend or repeal acts in force on January 2, 1975).

35 . In Alston, this court reversed a trial court order when that order had dismissed indictments on the ground that the emergency legislation underlying the prosecution had expired and that the Council lacked authority to adopt successive emergency acts to keep the offense alive. Alston, 580 A.2d at 599-600. This court sustained the prosecution, in part, on the ground that the federal general savings statute, 1 U.S.C. § 109, prevented abatement during the one-day gap between expiration of the first emergency act and the effective date of the second emergency act. Id. Without the benefit of our ruling in Alston, and given Alston’s contention in the trial court that the prosecution had abated, the Council adopted emergency, then temporary, then permanent "savings” legislation. District of Columbia Statutory Savings Provision Act of 1990, D.C.Law 8-165, 37 D.C.Reg. 4827 (effective Sept. 26, 1990) (codified at D.C.Code § 49-304(a) (1995 Supp.)). See Council of the District of Columbia, Committee on the Judiciary, Report on Bill 8-552, the "District of Columbia Statutory Savings Provision Act of 1990," at 2 (May 16, 1990). The committee report does not specifically refer to 1 U.S.C. § 109, but there is no discussion to indicate that the Council intended D.C.Code § 49-304(a) to differ in any material respect from 1 U.S.C. § 109.

36 . D.C.Code § l-229(a) (1992 Repl.) (emergency legislation “take[s] effect immediately upon enactment” and is “effective for a period of not to exceed 90 days”).

37 . Statutes that will be codified in Title 22, 23, or 24 of the D.C.Code "shall take effect at the end of the 60-day period” of Congressional review. D.C.Code § l-233(c)(2) (1992 Repl.).

38 . Statutes not to he codified in Titles 22, 23, or 24 of the D.C.Code, and not subject to certain other exceptions not relevant here, take effect after a 30-day period of Congressional review. D.C.Code § l-233(c)(l).

39 . We do not consider whether this fifth option— a "legislative pardon” — would be lawful.

40 . The legislative history of the law is explained as follows in 42 D.C.Reg. 2843 (June 9, 1995):

Pursuant to Section 412 of the District of Columbia Self-Government and Governmental Reorganization Act, P.L. 93-198 "the Act”, the Council of the District of Columbia adopted Bill No. 10-617 on first and second readings, November 1, 1994 and December 6, 1994, respectively. The legislation was deemed approved without the signature of the Mayor on December 30, 1994, pursuant to Section 404(e) of "the Act”, and was assigned Act No. 10-392, and published in the January 13, 1995, edition of the D.C. Register (Void2 page 238) and transmitted to Congress on February 7, 1995 for a 60-day review, in accordance with Section 602(c)(2) of the Act.

The Council of the District of Columbia hereby gives notice that the 60-day Congressional Review Period has expired, and therefore, cites this enactment as D.C.Law 10-258, effective May 25, 1995.

41 . No such problem was articulated, and, given the ameliorative impact of the new legislation, the government’s ex post facto argument lacked discemable content.

42 . See Jackson v. United States, 495 F.2d 349, 352 (8th Cir.1974) (rejecting argument that prosecution begins when offense is charged instead of when offense is committed.)

43 . See State v. Heath, 85 Wash.2d 196, 532 P.2d 621, 622 (1975) (despite express provision of effective date of statutory amendment, "the precise language of the statute [is] of little help in determining whether it is or is not to be given such retroactive applicability.”)

44 . The Supreme Court has recognized that the federal general savings statute is not an optional rule of construction but is to be read instead as a substantive provision incorporated into every statute that amends or repeals another statute imposing a penalty, forfeiture, or liability. The Court explained in Great Northern Ry. Co., 208 U.S. at 465, 28 S.Ct. at 316:

This provision [the statutory predecessor of the general savings statute, 1 U.S.C. § 109] but embodies § 4 of the act approved February 25, 1871, c. 71, 16 Stat. 431, which was entitled "An Act prescribing the Form of the enacting and resolving Clauses of Acts and Resolutions of Congress, and rules for the construction thereof.” As the [general savings statute] in question has only the force of a statute, its provision cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subsequent enactment. But while this is true the provisions of [the savings statute later recodified as 1 U.S.C. § 109] are to be treated as if incorporated in and as a part of subsequent enactments, and therefore under the general principles of construction requiring, if possible, that effect be given to all the parts of a law the section must be enforced unless either by express declaration or necessary implication, arising from the terms of the law, as a whole, it results that the legislative mind will be set at naught by giving effect to the provisions of [1 U.S.C. § 109], (Emphasis added.)

The Supreme Court's decision in Hertz sounds the same theme. In Hertz, the Court considered whether the general savings clause preserved the United States' authority to impose an inheritance tax when the testator died before the effective date of the repealing act (removing authority to collect the tax). 218 U.S. at 215, 30 S.Ct. at 623. The Court quoted the savings statute and then said: "This provision has been upheld by this court as a rule of construction applicable, when not otherwise provided, as a general saving clause to be read and construed as a part of all subsequent repealing statutes, in order to give effect to the will and intent of Congress.” Id. at 217, 30 S.Ct. at 624 (citations omitted). The Court next quoted the above language from Great Northern Ry. Co., explained that the statute was applicable to "liabilities,” including taxes, and then concluded: "Therefore we must take that general saving clause into consideration as a part of the legislation involved in the determination of whether a ‘liability’ had been incurred by the imposition of a tax prior to the act that destroyed the law under which it had been imposed.” Id. at 218, 30 S.Ct. at 624-25 (emphasis added).

The Court in Hertz had responded earlier to its own rhetorical question whether Congress could have intended the result required by the Court’s interpretation of the general savings statute — a response that serves to answer as well Judge Schwelb’s rhetorical question whether "the Council’s perhaps accidental failure to include in the MMSAA an ‘express provision’ of the kind contemplated by the general savings statutes automatically dooms these defendants ... to [mandatory-minimum sentences]." Post at 102-103 (emphasis in original). The Court in Hertz said:

Now, did Congress intend to make such an unjust distinction as would result from such an interpretation of the saving clause in question as shall make the time limit for payment the test as to whether one tax shall he preserved and the other remitted in a situation otherwise identical?

The saving clause does not in terms limit the right saved to a tax or duty which should be due and payable at the date of the repeal. It is perhaps an obvious suggestion that if that had been the purpose of Congress, it would have been easy to make that purpose clear.

Hertz, 218 U.S. at 221, 30 S.Ct. at 626 (emphasis added).

45 . At trial, counsel for Holiday sought severance of the offenses after the government had dismissed charges of distribution of cocaine while armed and possession of a firearm during a crime of violence (PFCV), but he did not claim that the remaining charges were improperly joined, because — to use his words — "they weren't.” Holiday’s counsel reasoned that "until the government dismissed the distribution while armed and possession of a dangerous — possession of a firearm, they were properly joined.” It is not clear whether Holiday's trial counsel meant to raise a misjoinder argument in the trial court, and it is similarly unclear whether Holiday presents a misjoinder argument in his initial brief on appeal. The government contends that any misjoinder argument is barred. See Brown v. United States, 627 A.2d 499, 508 (D.C.1993) (defendant may not take one position at trial and contradictory position on appeal); (Michael) Bell v. United States, 332 A.2d 351, 352-53 (D.C.1975) ("As a general rule, where offenses in an indictment are misjoined and the accused does not timely object, the objection is lost on appeal”). But see Taylor v. United States, 603 A.2d 451, 455 (D.C.1992), cert. denied, 506 U.S. 852, 113 S.Ct. 155, 121 L.Ed.2d 105 (1992) (ruling on untimely claim of misjoinder under plain error standard of review, notwithstanding government’s "technically correct" argument that failure to make timely Rule 8 joinder objection amounted to waiver).

We need not decide, however, whether Holiday has presented a misjoinder argument for our review. Even if the offenses were misjoined, the misjoinder would have been harmless error because, as elaborated below, the drugs evidence and the weapons evidence were mutually admissible as inextricably intertwined Toliver evidence; the government’s case was strong; the weapons and drugs evidence were sufficiently separate and distinct; and the trial court instructed the jury to consider the evidence of each count separately. See Byrd v. United States, 551 A.2d 96, 99-100 (D.C.1988) (despite presumption of prejudice when offenses are improperly joined, mis-joinder may be harmless where evidence of each offense would be mutually admissible in separate trials).

46 . The government also contends that the weapons evidence was admissible in the drug case because the weapons evidence, as such, was not inherently "other crimes” evidence under Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). See Jones v. United States, 477 A.2d 231, 243 (D.C.1984) ("gun possession, without more, is not evidence of wrongful conduct”); but see Johnson v. United States, 596 A.2d 980, 986 (D.C.1991) ("assuming that possession of a .38 revolver like that at issue here would pass the threshold requirement that it constitutes evidence of crime or wrongdoing”); D.C.Code § 22-3204 (carrying pistol without a license). Given our analysis, we do not decide whether the weapons evidence here might be admissible without reference to Drew. Cf. Blakeney v. United States, 653 A.2d 365, 369 (D.C.1995) (pager admissible as probative evidence that defendant was involved in illegal distribution of drugs in possession of cocaine with intent to distribute case); Lewis v. United States, 379 A.2d 1168, 1170-71 (D.C.1977) (admitting physical evidence in the form of a bottle cap "cooker” and syringe in prosecution for possession of heroin when, at the time Lewis was decided, possession of drug paraphernalia was not a crime).

47 . This is not a case such as those referred to in Parker v. United States, 586 A.2d 720, 724-25 (D.C.1991), involving incidents taking place weeks or months before or after the charged offense. See also Holmes v. United States, 580 A.2d 1259, 1266-67 (D.C.1990); Williams v. United States, 549 A.2d 328, 332-33 (D.C.1988).

48 . The potential prejudice from the risk that the jury would cumulate the evidence against the defendant was minimized by the court's instructing the jury as follows:

[E]ach charge is a separate count and you must return a separate verdict for each count, a separate offenses is charged in each one of the counts. Each offense and the evidence which applies to it should be considered separately and you should return separate verdicts as to each count.

The fact that you may find the defendant guilty or not guilty on any one count of the indictment should not control or influence your verdict with respect to any other count.

But see Parks v. United States, 656 A.2d 1137, 1139 (D.C.1995) (joint trial of charges improper under "separate and distinct” theory where it is unlikely jurors could keep evidence of each charge separate in their deliberations, despite limiting instruction).

49 . This court has adopted Fed.R.Evid. 801(d)(2)(E). See Butler v. United States, 481 A.2d 431, 439 (D.C.1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985).

50 . Council of the District of Columbia, Committee on the Judiciary, Report on Bill 8-495, the "Omnibus Narcotic and Abusive Drug Interdiction Amendment Act of 1990,” at 2 (March 7, 1990) [hereafter Drug Report].

51 . Drug Report at 2 (referring to the 30 "Mandatory-Minimum Sentences Initiative of 1981,” D.C.Law 4-166, 30 D.C.Reg. 1083). The existing law did establish different mandatory-minimum penalties for different classes of substances — four years in prison for narcotic drugs, twenty months in prison for controlled or counterfeit substances classified in Schedule I, II or III, and one year in prison for controlled or counterfeit substances-classified in Schedule IV or V. See “Mandatory-Minimum Sentences Initiative of 1981,” D.C.Law 4-166, 30 D.C.Reg. at 1086 (effective March 9, 1983) (codified as D.C.Code § 33-541(c)(l) (1984 Supp.)).

52 . The "Omnibus Narcotic and Abusive Drug Interdiction Amendment Act of 1990,” D.C.Law 8-138, 37 D.C.Reg. 2638 (effective June 13, 1990) (codified at D.C.Code § 33-501(15)(D) (1993 Repl.)) [hereafter "1990 Act”].

53 . Drug Report at 3; see D.C.Code § 33-541(c)(1)(A) (1984 Supp.) (mandatory-minimum prison sentence of four years for narcotic drugs); id. § 33-541(c)(l)(B) (mandatory-minimum prison sentence of twenty months for non-narcotic Schedule I, II or III drugs, including cocaine powder).

54 . Drug Report, at 3.

55 . 1990 Act (codified at D.C.Code § 33-541(c)(l)(A)-(A-3) (1993 Repl.)).

56 . 1990 Act (codified at D.C.Code § 33-541(c)(1)(A) (1993 Repl.)).

57 . Judge Schwelb’s suggestion, post at 108, that the additional year penalty for minor cocaine powder offenses may have been a "mistake” is refuted by specific references to the increased penalty for minor cocaine offenses in the legislative history. See Drug Report at 3 (“Bill 8-495 goes further by increasing the mandatory minimum for cocaine to 5 years for a first offense, 8 years for a second offense, and 10 years for a third or subsequent offenses”); see also The "Omnibus Narcotic and Abusive Drug Interdiction Amendment Act of 1990,” D.C.Law 8-138, 37 D.C.Reg. at 2641 (codified at D.C.Code § 33-541(c)(l)(A-2)(ii) (1993 Repl.)).

58 . A separate category provides a twenty month mandatory-minimum penalty for distributions of other schedule I, II or III drugs, and a one year mandatory-minimum penalty for distributions of other schedule IV or V drugs. D.C.Code § 33-541(c)(1) (1993 Repl.).

59 . The Council considered and adopted the repeal of mandatory-minimum sentencing at the end of 1994. See 42 D.C.Reg. 2843 (June 9, 1995) (“District of Columbia Nonviolent Offenses Mandatory-Minimum Sentences Amendment Act of 1994” was adopted on first and second readings on November 1, 1994, and December 6, 1994, respectively, signed by the Mayor on December 28, 1994, transmitted to both Houses of Congress for its review, and became effective May 25¡ 1995).

The Council took action on the D.C. savings statute — in its emergency, temporary, and final forms — throughout the first half of 1990. See 37 D.C.Reg. 4827, 4828 (July 27, 1990) (emergency act became effective on January 26, 1990; temporary act was adopted on first and second readings on January 16, 1990 and January 30, 1990, respectively, signed by the Mayor on February 18, 1990, it was assigned Act No. 8-156 and transmitted to both Houses of Congress for its review; “District of Columbia Statutory Savings Provision Act of 1990” was-adopted on first and second readings on June 12, 1990, and June 26, 1990, respectively, signed by the Mayor on July 12, 1990, and became effective September 26, 1990).

60 . The Council of the District of Columbia consists of thirteen members. See D.C.Code § 1-221(b)(1) (1992 Repl.). Seven persons were members in both 1990 and 1995, namely, David A. Clarke, John Ray, Hilda H.M. Mason, William Lightfoot, Frank Smith, Charlene Drew Jarvis, and Harry Thomas, Sr. See District of Columbia Board of Elections and Ethics, Historical Listing of Elected Officials Since Home Rule (July 16, 1996) (unpublished, on file with the Board of Elections and Ethics).