Ross Green v. United States
164 A.3d 86
D.C.2017Background
- Ross Green was convicted after a bench trial of possession with intent to distribute (PWID) MDMC (methylone); he did not appeal the conviction but later moved for a new trial under Super. Ct. Crim. R. 33.
- Police seized 8.2 g of MDMC powder in a ziplock bag, two capsules and a partial tablet testing positive for MDMC, plus a scale and firearms; expert testified the powder could yield about 82 .1 g capsules.
- Detective Thomas (government expert) testified that “molly” can refer to MDMC and that the quantity was inconsistent with personal use; Green’s phone contained earlier texts offering “molly.”
- Defense contested that “molly” meant MDMC, presented no rebuttal witnesses at trial, and did not request a continuance; after conviction Green filed a Rule 33 motion with two expert affidavits asserting (1) “molly” refers to MDMA not MDMC and (2) the quantity could be consistent with personal use.
- Trial judge denied the Rule 33 motion as a post-trial change of tactics that would not have produced a different verdict; appellate majority affirmed denial for lack of exceptional circumstances warranting a new trial.
Issues
| Issue | Plaintiff's Argument (Green) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the evidence was insufficient to support PWID MDMC | Texts referring to "molly" meant MDMA, not MDMC, and quantity was consistent with personal use, so record lacks proof of intent to distribute | Trial evidence (expert ID of MDMC, quantity, scale, texts) sufficed to prove intent; sufficiency is reviewed on the trial record, not a hypothetical one | Court declined to entertain a belated sufficiency claim based on evidence not presented at trial; affirm conviction |
| Whether Rule 33 motion should be granted in the "interest of justice" based on posttrial expert affidavits | New expert affidavits undermine two strands (meaning of "molly" and quantity/dose) that the court relied on; bench trial record could be reopened or a new trial ordered | Trial judge properly exercised discretion: affidavits were a post-trial tactic, available before trial, and would not likely produce a different result | Majority: denial affirmed—no "exceptional circumstances" prevented a fair trial; judge did not abuse discretion |
| Whether the trial court erred by denying a hearing on the Rule 33 motion | Affidavits raised substantial factual contradictions to trial testimony that warranted a hearing | No hearing required when the trial judge, familiar with the record, reasonably finds affidavits would not change outcome | Majority: no hearing required; judge reasonably concluded affidavits would not alter verdict |
| Whether the Rule 33 filing deadline/standard applied ("interest of justice" v. "newly discovered evidence") | Motion sought relief under "interest of justice" (filed within extensions granted by court) | Government argued stricter newly discovered-evidence standard should apply due to timing | Court applied interest-of-justice standard (government forfeited timeliness argument); nonetheless denied relief on merits |
Key Cases Cited
- Tyer v. United States, 912 A.2d 1150 (D.C. 2006) (standard of review and burden on movant for Rule 33 motions)
- Geddie v. United States, 663 A.2d 531 (D.C. 1995) (hearing generally not required before ruling on Rule 33 motion)
- Brodie v. United States, 295 F.2d 157 (D.C. Cir. 1961) (interest-of-justice standard broader than newly discovered-evidence standard; diligence a factor)
- Benton v. United States, 188 F.2d 625 (D.C. Cir. 1951) (remand for new trial where newly presented evidence from a witness who attended the trial would likely have required making that witness available)
- Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency review looks to evidence actually presented at trial)
- Prophet v. United States, 707 A.2d 775 (D.C. 1998) (affirming denial of Rule 33 motion without hearing when trial court finds affidavit would not likely result in acquittal)