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Green v. United States

Court of Appeals of Columbia District

July 20, 2017

Ross Green, Appellant,
v.
United States, Appellee.

          Argued October 15, 2015

         Appeal from the Superior Court of the District of Columbia (CF2-16529-12) (Hon. Robert I. Richter, Trial Judge)

          Kerri L. Ruttenberg, with whom William D. Coglianese was on the brief, for appellant.

          Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, and Christian Natiello, Assistant United States Attorneys, were on the brief, for appellee.

          Before Fisher and McLeese, Associate Judges, and Ruiz, Senior Judge.

          OPINION

          Fisher, Associate Judge

         After a bench trial, appellant Ross Green was convicted of, among other offenses, possession of 3, 4-methylenedioxymethcathinone hydrochloride ("MDMC") with intent to distribute ("PWID"), a felony.[1] He did not file a direct appeal, but now challenges the denial of his motion for a new trial. We affirm.

         I. Background

         A. The Trial

         On September 20, 2012, police officers entered appellant's home to execute a search warrant and seized an assortment of pills, tablets, and capsules of various colors, and a pink ziplock bag of orange powder. (The conviction under review here relates only to MDMC.) The police also seized a digital scale, an assault rifle, a handgun, magazines for the rifle and handgun, and assorted ammunition. Danielle LaVictoire, who was qualified without objection as an expert in controlled-substance analysis, testified that one partial tablet, two capsules, and the ziplock bag of powder tested positive for MDMC. Her report, admitted as Exhibit

          2.2, described the drug more formally as "3, 4-methylenedioxymethcathinone (methylone) hydrochloride." She also said that, based on the amount of MDMC powder in the two capsules found in Green's apartment, "you might be able to make 82 capsules worth" of MDMC from the quantity of powder in the ziplock bag.[2]

         Detective George Thomas was qualified without objection as an expert in the distribution and use of illegal drugs. He testified that MDMC is a different compound than methylenedioxymethamphetamine ("MDMA" or "ecstasy"), but that they are chemically similar-MDMC is only "one analog or one compound different from Ecstasy or MDMA." He also testified that MDMC is more potent than MDMA, that the "street name" for MDMC is "molly, " and that the amount of MDMC found in appellant's apartment was inconsistent with possession for personal use. The cell phone seized from appellant's apartment contained numerous text messages, from May and June of 2012, in which he discussed selling a variety of drugs, including "molly, " to other individuals. Those text messages did not use the initials MDMC.

         Appellant called Dr. Jeffrey Smith, an expert in internal and emergency medicine and continued care, to testify that appellant had prescriptions for many of the drugs seized from his apartment, though not for the MDMC. Although appellant's counsel adamantly asserted that MDMC was not "molly, " he presented no evidence to support that claim and called no other witnesses. Appellant did not testify.

         When announcing his finding on June 12, 2013, Judge Richter observed that "the evidence is overwhelming . . . that the MDMC was possessed with the intent to distribute." He commented that while "the quantity alone might not be enough, [and] the text messages alone might not be enough, . . . together they clearly constitute proof beyond a reasonable doubt."

         B. The Motion for a New Trial

         On June 17, 2013, five days after the finding of guilt, appellant asked the court to extend the deadline for filing a motion for a new trial. The court granted the request on June 19, giving appellant until September 9 to file a Rule 33 motion. Appellant's new counsel asked for a second extension on July 8, and the court granted that enlargement of time on July 9, giving appellant until October 9 to file his motion for a new trial.

         Nearly four months after the finding of guilt, on October 9, 2013, appellant filed a motion for a new trial pursuant to Super. Ct. Crim. R. 33 ("Rule 33"). With that motion, he submitted an affidavit, signed on October 7, 2013, from Michael Radon, who had over forty years of experience working as a substance-abuse counselor or supervisor in Massachusetts, the West Indies, and Maryland. Since 2011, Mr. Radon has worked as a consultant and expert witness. He averred that "molly" was the street name for MDMA, not MDMC, and that the two substances had "unique, non-overlapping street names."

         Appellant also submitted the affidavit of Dr. Wayne Duer, a forensic toxicologist in Florida, signed on October 4, 2013, who said that the quantity of MDMC found in appellant's apartment "typically would yield significantly less than between 16 and 41 capsules, tablets or caplets of MDMC." He based this statement on "a DEA publication" about the amount and form in which MDMC is normally distributed and his prediction that some powder would be lost in the process of filling the MDMC capsules. Both proposed experts stated in their affidavits that MDMC was one of a class of drugs to which users were known to develop a tolerance, thus necessitating taking more of the drug to achieve the same "high." As Judge Richter commented, these statements about tolerance and typical dose seem to be intended as "new evidence suggesting personal use."

         In addition to asserting that "molly" is not used to refer to MDMC, appellant's motion for a new trial attacked other aspects of Detective Thomas's testimony. Thomas had said that MDMC is more potent than MDMA, but the affiants swore the opposite was true. The detective also testified that MDMC is not methylone, but Dr. Duer swore that "MDMC is methylone."

         After briefing by the parties, Judge Richter denied the motion in a short order, concluding that "[t]hese new assertions, even if presented at trial, would not have resulted in a different verdict." "Even if there had been some confusion in Detective Thomas' testimony regarding MDMA and MDMC, " Judge Richter noted, "the evidence is still clearly convincing that MDMC was possessed with the intent to distribute." Appellant had "also attack[ed], for the first time post-trial, the chemist's testimony regarding the MDMC and present[ed] new evidence suggesting personal use." Nevertheless, "[g]iven the testimony presented at trial, the evidence of PWID is more than sufficient and convincing." In sum, appellant's "post-trial change in tactics for meeting the Government's evidence is both too late and insufficient."

         II. Analysis

         The "trial court's denial of a motion for new trial is reviewed for abuse of discretion. We will not reverse if the denial is reasonable and supported by the record." Tyer v. United States, 912 A.2d 1150, 1166 (D.C. 2006). "In general, a trial court does not need to hold a hearing before ruling on a motion for new trial." Geddie v. United States, 663 A.2d 531, 534 (D.C. 1995). The moving party bears the burden of persuasion. Tyer, 912 A.2d at 1167.

         A. Appellant's Arguments

         Appellant posits that the affidavits attached to his Rule 33 motion negated crucial evidence presented by the government at trial. First, he asserts that the text messages about "molly" did not indicate his intent to distribute MDMC because "molly" is MDMA, not MDMC. Thus, he assumes these text messages must be ignored altogether. Second, he contends that the quantity of MDMC he possessed, standing alone, is insufficient, as a matter of law, to prove his intent to distribute.

          He argues, therefore, that his PWID conviction should be vacated due to insufficient evidence and the case remanded for entry of a judgment of guilt for the lesser-included offense of misdemeanor possession of MDMC. In the alternative, he seeks a new trial on the PWID charge.

         B. The Evidence Was Sufficient

         Appellant argues that the evidence was insufficient to prove his intent to distribute MDMC. It is not at all clear that he is entitled to raise this issue now, having failed to take a direct appeal. We need not decide this issue, however, because his argument is founded on an erroneous premise. He asks us to consider the trial record not as it actually exists, but as it might have existed if the affidavits he submitted were testimony that had been presented at trial and credited by the trial court. But we do not decide sufficiency challenges based on a hypothetical record; instead, we review the evidence that was before the fact-finder when it made its finding of guilt. See, e.g., Vest v. United States, 905 A.2d 263, 266 (D.C. 2006) ("It is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction." (brackets and citation omitted)); cf Best v. United States, 66 A.3d 1013, 1019-20 (D.C. 2013) (in determining whether the Double

         Jeopardy Clause would bar a retrial, "[w]e evaluate sufficiency based on the evidence that was before the trial court, even if it was admitted erroneously") (citing Lockhart v. Nelson, 488 U.S. 33, 40-42 (1988)). Appellant makes no effort to demonstrate that the evidence actually in the trial record was insufficient to support his conviction for PWID. See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (explaining that reversal for insufficient evidence is appropriate only if, "upon the record evidence adduced at the trial[, ] no rational trier of fact could have found proof of guilt beyond a reasonable doubt").

         C. The ...


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