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.

Request an escalation instruction when the government argues that the defendant forfeited his right to self-defense by provoking a conflict

Brandon Andrews v. United States (decided October 22, 2015).

Players:  Associate judges Glickman and Fisher, Senior judge Steadman.  Opinion by Judge Glickman.  PDS for Mr. Andrews.  Trial judge:  Robert E. Morin.  

Facts:  Brandon Andrews was convicted of second-degree murder, ADW, and related weapons offenses for the shooting death of his ex-girlfriend’s brother, Leonard Bigelow.  He contended that he shot Mr. Bigelow in self-defense when he went to the Bigelow home to talk to his ex-girlfriend, and Mr. Bigelow charged towards him with a knife while he stood on the street.  The government introduced evidence that, three days before the shooting, the decedent had pulled a knife on Mr. Andrews and threatened to kill him if he did not leave his sister alone, and that on the night of the shooting, the decedent warned Mr. Andrews over the phone that he would be waiting for him if Mr. Andrews tried to visit her.  At the government’s request, the trial court instructed the jury, in accordance with Redbook Instruction 9.504(A), that “[o]ne who deliberately puts himself in a position where he reasonably believes that his presence will provoke trouble cannot claim self-defense.”  Mr. Andrews argued that there was no factual basis for this instruction. 

Issue:  Was there a factual basis for the jury to find beyond a reasonable doubt that, by going to the Bigelow home, Mr. Andrews deliberately provoked the fatal conflict and thus forfeited his right to self-defense?        

Holding:  Yes.  “[T]he jury readily could have found that appellant deliberately chose to risk a deadly confrontation with [the decedent] by placing himself in a position where his presence would be likely to provoke exactly that,” based on the decedent’s threat three days earlier and the decedent’s warning on the night of the shooting that he would be waiting for Mr. Andrews.        

    

Of Note: 

• The Court rejected the argument that Mr. Andrews had regained his right to self-defense by disengaging with the decedent after the decedent pulled a knife and threatened him three days before the shooting.  It noted that Mr. Andrews “continued to pester” his ex-girlfriend, that that the decedent’s warning that he would be waiting for Mr. Andrews could be construed as “a renewed threat . . . of physical violence.”

• In Footnote 22, the Court left open the possibility that Mr. Andrews might have been entitled to an “escalation instruction” that would have told the jury that even if Mr. Andrews provoked a confrontation, he regained the right to self-defense if the decedent’s “reaction was disproportionate to the provocation; that it was unforeseeable, in other words, that [the decedent] would employ (as appellant allegedly perceived) more than non-deadly force against him.”  Because Mr. Andrews did not request such an instruction, the Court did not reach the question.

How to Use:

Request an escalation instruction if you have a case where the government argues forfeiture by provocation.  An escalation instruction will help to limit the extremely broad language of the provocation instruction and allow you to argue that your client had the right to defend himself against deadly force even if he provoked a non-deadly conflict.  MW

Read full opinion here.