New Expert Testimony on Difference Between MDMA and MDMC, Quantity Consistent With Personal Use, Did Not Warrant a New Trial on PWID

Green v. United States (decided July 20, 2017)

Players: Associate Judges Fisher and McLeese, Senior Judge Ruiz. Opinion by Judge Fisher. Dissent by Judge Ruiz. Kerri L. Ruttenberg & William D. Coglianese for Mr. Green. Trial Judge: Robert I. Richter.

Facts: A search of Mr. Green’s home produced what was later identified as slightly over 8.2 g of MDMC powder. A cell phone found in the search had text messages from several months prior that discussed selling “Molly.”

At trial, an expert witness testified that the 8.2 g of MDMC found might make 82 capsules. She based her estimate on each capsule containing .1 g. Another expert witness testified that MDMC is different but chemically similar to MDMA; that MDMC is more potent than MDMA; and that the street name for MDMC is “Molly.”

Judge Richter found Mr. Green guilty of PWID on June 12, 2013. The judge held 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.”

On June 17, 2013, Mr. Green asked for and received an extension on the deadline to file a motion for a new trial pursuant to Rule 33. The new deadline became September 9. On July 8, Mr. Green asked for and received another extension to October 9. Within this time, Mr. Green filed his motion. The motion included an affidavit from an expert witness who stated that “Molly” was the street name for MDMA, not MDMC. The motion also included an affidavit from another expert witness, who suggested that the quantity was not inconsistent with personal use. He stated that the amount of MDMC found in the apartment would only make between 16 and 41 capsules of MDMC. The motion argued that the evidence was insufficient to prove PWID in light of the affidavits. Alternatively, Mr. Green requested a new trial on the PWID charge.

Judge Richter denied the motion, ruling that the “new assertions . . . would not have resulted in a different verdict.” The judge characterized the motion as a “post-trial change in tactics” and “too late.”

Issue 1: Was the evidence insufficient to prove PWID in light of the affidavits attached to Mr. Green’s Rule 33 motion?

Holding: No. The test for sufficiency of the evidence is based only on the evidence actually before the fact-finder when it made the finding of guilt. The court was correct not to include the new evidence in the sufficiency analysis.

Issue 2: Does this appeal qualify for review under the “interests of justice” standard despite being filed outside the time frame designated by Rule 33?

Holding: Yes.  Rule 33 provides a mechanism for a new trial in “the interests of justice” or when there is “newly discovered evidence.” A motion only qualifies under “the interest of justice” standard if it is filed with 7 days, or with a period designated by the court during that 7-day period. The second extension here was not set within the original 7-day period. However, the government forfeited its argument that the more restrictive standard of review for “newly discovered evidence” applies, because they did not object to the two extensions given Mr. Green by the court. The court must evaluate Mr. Green’s motion under the “interests of justice” prong of Rule 33.

Issue 3: Is a new trial required in "the interests of justice"?

Holding: No. A Rule 33 motion for a new trial in the interest of justice should be granted only if exceptional circumstances prevented the defendant from having a fair trial. This is a very fact-specific inquiry, but prior cases provide some guidance.

The DCCA has found exceptional circumstances when the victim’s mother gave an affidavit stating that she no longer believed her daughter’s testimony, which was the only evidence against the defendant. Benton v. United States, 188 F.2d 625 (D.C. Cir. 1951). The DCCA has also held that a defendant’s diligence may be one factor in the “interests of justice” inquiry, but the burden is not on the defendant to prove her own diligence. Brodie v. United States, 295 F.2d 157 (D.C. Cir. 1961). A defendant was held to have been denied a fair trial when he alleged that he had received threats against him and his family if he testified against his co-defendant. Lyons v. United States, 833 A.2d 481 (D.C. 2003). A defendant’s motion was denied when he failed to impeach an officer with transcripts available to him at trial. Huggins v. United States, 333 A.2d 385 (D.C. 1975).

Mr. Green did not demonstrate that exceptional circumstances prevented him from receiving a fair trial. The evidence submitted in his motion was available prior to trial. Counsel could have requested a continuance to call a rebuttal witness, especially because this was a bench trial.

The Dissent: Judge Ruiz dissented, asserting that the judge’s stated reasons for denying the Rule 33 motion were not supported by the record. The motion was not a “change in tactics,” because counsel disputed both the testimony that MDMC was called “Molly” and that the amount was inconsistent with personal use. When rendering the guilty verdict, the court specifically mentioned that the evidence on neither of these two points was sufficient by itself. The new evidence in the motion directly contested those two points. The court should have examined the affidavits more carefully in these circumstances.

According to Judge Ruiz, the majority mistakenly categorizes the assertions as “new,” when they were all raised at trial. Judge Ruiz also suggested that the majority contravened Brodie by focusing too much on Mr. Green’s diligence. It would have been easy to reopen a bench trial to hear more evidence on these points. In light of the court’s acknowledgment that these points in the case were insufficient on their own, the court cannot so easily say that the new information would not have resulted in a different verdict. 

LS

Read the full opinion here.

Lookout for Two Black Males in a White Car Did Not Provide Reasonable Suspicion

Armstrong & Joiner v. United States (decided July 20, 2017)

Players: Chief Judge Blackburne-Rigsby, Senior Judges Washington and Belson. Opinion by Judge Washington.  Lee T. Friedman & Matthew M. Madden for Mr. Armstrong.  PDS for Mr. Joiner. Trial Judge: William M. Jackson

Facts: Two robberies occurred within ten minutes of each other in the same area. Officers broadcasted a lookout for two black males in a white car, possibly a Mercury Sable, with tinted windows. The first and second robberies’ lookouts gave different descriptions of the suspects clothing.

Less than five minutes after the second robbery, appellants were stopped in a white Chevrolet Lumina, eight blocks from the first robbery and fifteen blocks from the second. Three black men were in the vehicle, none wearing clothing that matched either of the lookouts. The officers still searched the car and found items from the second robbery.

Appellants were convicted after a motion to suppress the evidence seized in the Terry stop and warrantless search of the vehicle was denied.

Issue: Did the officers have sufficient specificity to provide the particularized reasonable suspicion necessary to stop the vehicle?

Answer: No. The description of only two black men in a white car with tinted windows lacks the specificity necessary to warrant a stop.

The DCCA has previously held that a lookout description limited to a person’s race and generic clothing color does not provide particularized suspicion, and that this extends to a generic description of a car. The court held that the description of a “white Mercury Sable” does not provide police with sufficient particularized suspicion to stop any white American sedan, and concluding otherwise would give officers “unfettered discretion to pull over an infinite number of white vehicles.”

But the court held a generalized lookout description applicable to many people is not dispositive; the court looks to the totality of the circumstances when considering if a Terry stop was justified. A close spatial and temporal proximity between the reported crime and seizure can justify a Terry stop with an imperfect description. The number of people in the area, the time of day, and direction of flight may also be considered.

Even when looking at the totality of the circumstances, the stop was still not justified. The lookout, which “boiled down to two black men in a white car at high noon on a weekday in downtown D.C.,” did not provide particularized suspicion. The government contended that it was reasonable to think the suspects might have been found within a four-block radius of the robbery three minutes afterward, but the court noted the standard is whether the information provides the officers with particularized suspicion to believe appellants’ car was the car being sought as opposed to other cars in the area. And, although it is reasonable to think the particular white car might still have been in the area, it is just as likely other white cars not involved in the robbery were in the area. The descriptions called for a dragnet search that is not justified by Terry, so the court reversed and remanded.

Dissent: Judge Belson dissented, asserting that the entire area covered between the robberies and the stop was not unreasonably large, only about twelve by six blocks, and that the suspects could not have traveled much farther than that given the short time between the robbery and the stop.

The dissent agreed that the description with nothing else lacks reasonable particularized suspicion. But, the collective knowledge doctrine provides grounds for the stop, as other officers knew it was an older, four-door sedan, which is sufficiently particularized. The majority also incorrectly assumed that other similar white, older, American cars were being driven on that street at the same time, when actually only one other car was pulled over during the search. So, the dissent reasoned that the police response was reasonable and not a “dragnet” search.

AB

Read the full opinion here.

The Term "Parking Area" in POCA Statute Does Not Mean a Parking Lot

Campbell v. United States (decided July 20, 2017)

Players: Associate Judges Beckwith and McLeese, and Senior Judge Belson. Opinion by Judge Beckwith. Vincent A. Jankoski for Mr. Campbell. Trial Judge: Milton C. Lee.

Facts: On June 9, 2014, Officer Poor saw a car parked on an unmarked grassy area between two church parking lots. The car was off, and a towel was draped over a missing rear window. When the officer approached the car, he saw Mr. Campbell sleeping in the driver’s seat and a half-empty bottle of vodka in the center console. Officer Poor woke Mr. Campbell up and asked if he had been drinking. Mr. Campbell admitted that he had a few sips.

At trial, Mr. Campbell was convicted of first-degree theft, unauthorized use of a vehicle, receiving stolen property, and possession of an open container of alcohol (POCA) in a “vehicle in or upon any street, alley, park, or parking area,” D.C. Code § 25-1001(a)(2). On appeal, Mr. Campbell challenged the sufficiency of the evidence for each of the convictions. He argued that the phrase “parking area” in the POCA statute does not include the location in which he was arrested. Based on this statutory claim, he challenged the convictions of theft and unauthorized use of a vehicle by arguing that “the trial court should have suppressed the fruits of the search incident to his unlawful arrest for POCA.”

Issue 1: Is Mr. Campbell’s statutory sufficiency challenge preserved if at trial his motion for judgment of acquittal (MJOA) only focused on his constructive possession of the bottle of alcohol?

Holding: Yes. A general motion for acquittal preserves the full range of sufficiency challenges. At trial, Mr. Campbell presented a specific sufficiency argument instead of a general MJOA. The DCCA expressed doubt that making one specific sufficiency claim renders another sufficiency claim unpreserved, but did not need to decide that. In any event, Mr. Campbell’s sufficiency claim would be reviewed de novo because it is a question of statutory construction.

Issue 2: Does the phrase “parking area” in the POCA statute include the location in which Mr. Campbell was arrested?

Holding: No. The original language of the POCA statute prohibited possession of open containers of alcohol in vehicles in a “parking,” not a “parking area.” Although the term “parking area” is not defined in the statute, the term “parking” is defined as “that area of public space which lies between the property line and the edge of the actual or planned sidewalk which is nearer to such property line, as such property line and sidewalk are shown on the records of the District,” D.C. Code § 25-101(36). This is distinct from the common meaning of parking area that the government advances, which is closer to a parking lot. There was no discussion of a change in meaning when the POCA statute was amended to change “parking” to “parking area.”

Elsewhere in the Code, the Council also uses “parking” and “parking area” interchangeably. The Urban Forest Preservation Act of 2003 defines “public parking” similarly to the POCA statute, but only uses the term “public parking area” throughout the rest of the statute. D.C. Law 14-309 § 102(4). The Council has also demonstrated their ability to use the term “parking lot” when they mean parking lot. D.C. Code § 38-826.05(a); D.C. Code § 7-2509.07(a), (a)(2).

Further, if the term “parking area” were interpreted as distinct from “parking,” subsection (b) of the POCA statute would be rendered meaningless. Subsection (b) currently exempts certain areas of the “parking” from the rest of the statute’s prohibitions. But if “parking” had a different meaning than “parking area,” those area within the “parking” would be excluded from the statute’s prohibition.

When there is ambiguity in the statutory construction of a criminal statute, the rule of lenity requires the court to construe the prohibition narrowly. Therefore, “parking area” must be given the less expansive definition, and must be construed as interchangeable with “parking.”

Finally, the government didn't argue that Mr. Campbell was found in the “parking” within the meaning of the statute. Instead, it argued that Mr. Campbell was on public property. However, it does not matter whether Mr. Campbell was on public property if that public property is not one of the enumerated places covered by the POCA statute. The Council has shown that it is able to ban activities in all public places if it so chooses. D.C. Code § 22-1312.

The DCCA reversed Mr. Campbell’s conviction and remanded to the trial court. It also remanded to allow the court to vacate Mr. Campbell’s conviction for receiving stolen property.

Of Note: The Court upheld Mr. Campbell’s convictions for first-degree theft and unauthorized use of a vehicle. In footnote 13, the Court held Mr. Campbell’s suppression arguments on these convictions were waived, because the statutory argument on which they were based was not raised at trial. The government moved to vacate the conviction for receiving stolen property after Mr. Campbell argued that conviction contradicted his conviction for first-degree theft. 

LS

Read the full opinion here.

New Evidence or Argument Not Necessary for Motion for Reconsideration

Bernal v. United States (decided June 29, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judge McLeese, and Senior Judge Ferren. Opinion by Chief Judge Blackburne-Rigsby. Trial Judge: Michael Ryan. PDS for Mr. Bernal.

Facts: Prior to trial, appellant moved to suppress a confession and buccal swab obtained while in police custody. Following officer testimony about the manner in which the confession and swab were obtained, the government requested a thirty-day continuance to obtain a second buccal swab and decide whether to call an expert to respond to the expert that appellant had disclosed three days prior. The trial court denied the government’s motion for continuance.

The government then filed a motion to reconsider the continuance ruling based on the same grounds as before. They also renewed their request for a second swab. The court granted a seven-day continuance and authorized the second swab, but stated the continuance was based solely on the government's need for time to evaluate the defendant's expert notice.

During the continuance, the government procured a second buccal swab and matched it to a sample of suspect DNA. Appellant was convicted and appealed the court’s grant of a motion for reconsideration.

Issue: Does the Superior Court have the authority to grant a reconsideration for a thirty-day continuance when the government did not offer any new information to justify reconsideration?

Holding: Yes. Trial courts have great deference over issues pertaining to case management, and can reconsider previously decided issues as long as the decision is “consonant with justice” and interlocutory. Trial courts may rely on their inherent powers to reconsider an interlocutory ruling, as long as there are no superseding procedural rules or constitutional restraints. Here, since there were no such constraints on reconsideration, the trial court was free to grant reconsideration that was “consonant with justice.” Reconsideration was “consonant with justice” because the decision to grant a seven-day continuance for late expert notice showed “a thoughtful balancing of competing considerations.”

Of Note:
The Court rejected appellant's argument that a motion for reconsideration can only be granted when the party seeking reconsideration presents: 1) newly discovered evidence, 2) an intervening change in the law, or 3) the original decision was based on a manifest error of law or was clearly unjust.

In footnote 11, the Court recognized that Super. Ct. Crim. R. 48(a)(2) requires the trial court’s approval before the government can dismiss charges without prejudice. And, that it would be erroneous for the trial court not to recognize it had the discretion to deny the government’s dismissal of an indictment.

Read the full opinion here.