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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 14-CO-938

                            ROSS GREEN, APPELLANT,

                                       V.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF2-16529-12)

                      (Hon. Robert I. Richter, Trial Judge)

(Argued October 15, 2015                                      Decided July 20, 2017)

      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 for the court by Associate Judge FISHER.

      Dissenting opinion by Senior Judge RUIZ at page 22.

      FISHER, Associate Judge: After a bench trial, appellant Ross Green was

convicted    of,    among      other   offenses,     possession       of    3,    4-
                                             2


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


      1
         D.C. Code § 48-904.01 (a) (2012 Repl.). Appellant was also convicted of
a number of misdemeanor charges involving drugs and guns, but he does not
contest those convictions. Appellant was acquitted entirely of two PWID charges
related to other drugs and four were reduced to the lesser-included offense of
possession. He was also acquitted of the corresponding charges of possession of a
firearm during a crime of violence and “while armed” enhancements.
                                        3


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.

        2
         She arrived at this estimate by dividing the 8.2 grams of powered MDMC
in the ziplock bag by the 0.1 grams found in each MDMC capsule. Appellant now
challenges this estimate and Ms. LaVictoire‟s qualifications to provide it.
However, appellant did not object to her expertise at trial, nor did he present any
evidence to rebut her estimate that the powder might produce 82 capsules.
                                         4




       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
                                         5


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
                                           6


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
                                          7


“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.
                                            8


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
                                           9


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 New Trial Motion



                           1.    Which Standard Applies?



      Rule 33 allows the trial court to grant a new trial to a defendant “if the

interests of justice so require” or “based on newly discovered evidence.” Super.

Ct. Crim. R. 33. A motion based on the interests of justice “may be made only

within 7 days after the verdict or finding of guilty or within such further time as the

Court may fix during the 7-day period.” Id. “A motion for a new trial based on

newly discovered evidence may be made only before or within three years after the

verdict or finding of guilty.” Id.
                                         10




      Here, the court granted appellant‟s first extension during the time period

prescribed in Rule 33, but the second extension was approved well outside the

seven-day limit set by the rule. Ordinarily, the delay in filing the motion for a new

trial would alter the standard by which the motion is judged.            Under the

circumstances of this case, however, the government has forfeited any argument

that appellant‟s motion for a new trial was filed too late to be judged under the

“interests of justice” standard.3 We, therefore, are not constrained by the stricter

standard that applies to motions based on newly discovered evidence.4


      3
         Court rules containing time limits have been separated into two categories:
jurisdictional or claim-processing. Smith v. United States, 984 A.2d 196, 199
(D.C. 2009). “„[C]laim-processing‟ rules are „court-promulgated rules,‟ „adopted
by the Court for the orderly transaction of its business.‟” Id. at 200 (quoting
Bowles v. Russell, 551 U.S. 205, 211 (2007)). “„[C]laims-processing rules[]‟ . . .
do not limit a court‟s jurisdiction, but rather regulate the timing of motions or
claims brought before the court. Unless a party points out to the court that another
litigant has missed such a deadline, the party forfeits the deadline‟s protection.”
Dolan v. United States, 560 U.S. 605, 610 (2010) (citing, as an example, the
Supreme Court‟s holding in Eberhart v. United States, 546 U.S. 12, 19 (2005), that
Fed. R. Crim. P. 33 (b)(2) is a “claims-processing rule”). The time limits in
Rule 33, therefore, may be forfeited by a party otherwise entitled to enforce them.
      4
         The requirements of this more rigorous test are: “(1) the evidence must
have been discovered since the trial; (2) the party seeking the new trial must show
diligence in the attempt to procure the newly discovered evidence; (3) the evidence
relied on must not be merely cumulative or impeaching; (4) it must be material to
the issues involved; and (5) of such nature that in a new trial it would probably
produce an acquittal.” Godfrey v. United States, 454 A.2d 293, 299 n.18 (D.C.
1983) (citation omitted).
                                          11




                            2.     The Interests of Justice



      Many of our decisions applying Rule 33‟s interests of justice standard

involve motions filed after jury verdicts. In that context, when “evaluating the

interests of justice, the trial court—sitting as a thirteenth juror—determines

whether a fair trial requires that the [additional] evidence be made available to the

jury.” Ingram v. United States, 40 A.3d 887, 902 (D.C. 2012) (brackets and

citation omitted). When a case has been tried without a jury, the court is not

limited to starting afresh if it decides that a new trial should be granted. Instead, it

may “vacate the judgment, take additional testimony, and direct the entry of a new

judgment.” Super. Ct. Crim. R. 33. In this case, Judge Richter did not reopen the

record and enter a new judgment, but considered the newly proffered evidence,

then denied the motion.5


      5
          In his order denying the new trial motion, Judge Richter remarked that
“the evidence is still clearly convincing that MDMC was possessed with the intent
to distribute.” Focusing on this language, appellant argues that the trial court did
not apply the correct “standard of guilt.” This argument misconstrues Judge
Richter‟s order. The court had not vacated the judgment and was not making a
new finding of guilt, to which the burden of proof beyond a reasonable doubt
would apply. Instead, Judge Richter was explaining why he had decided to deny
appellant‟s motion for a new trial. It was appellant‟s burden to persuade the court
to grant that motion. Tyer, 912 A.2d at 1167.
                                          12




      Our precedents have repeatedly cautioned that the power to grant a new trial

in the interests of justice is “temperately to be utilized.” See Sellars v. United

States, 401 A.2d 974, 979 (D.C. 1979); Brodie v. United States, 295 F.2d 157, 160

(D.C. Cir. 1961); Benton v. United States, 188 F.2d 625, 627 (D.C. Cir. 1951).

“The rules do not define „interests of justice[,]‟ and courts have had little success in

trying to generalize its meaning.” United States v. Wheeler, 753 F.3d 200, 208

(D.C. Cir. 2014) (internal quotation marks omitted) (applying Fed. R. Crim. P.

33).6 “But a new trial will be ordered in the interest of justice only when, after

considering the evidence, the court can find that „exceptional circumstances‟

prevented the defendant from receiving a fair trial.” Tyer, 912 A.2d at 1167.



      Perhaps unsurprisingly, our precedents do not cabin or clearly describe the

“exceptional circumstances” that will justify granting a new trial in the interests of

justice. “The facts are of critical importance to our consideration of the appeal[,]

particularly if we are not limited to the „newly discovered evidence‟ standards for

granting a new trial.” Brodie, 295 F.2d at 158. However, some guiding principles

emerge from decisions issued over the last sixty-five years.



      6
          Fed. R. Crim. P. 33 is almost identical to Super. Ct. Crim. R. 33.
                                        13


      In Benton, the court remanded for a new trial where, four days after the

verdict, the defendant submitted an affidavit from the victim‟s mother declaring

her belief that her twelve-year-old daughter had not been sexually assaulted. 188

F.2d at 626-27. The mother attended the trial and, at the close of its case, the

government tendered her to the defense as a potential witness, but the defense did

not call her to testify. Id. at 626. In her affidavit, the mother noted disparities

between her memory of the events surrounding the alleged sexual assault and her

daughter‟s testimony at trial. Id. at 626-27. Most importantly, the mother attested:

“[I]n my opinion, my conscience does not allow me to believe that anything

happened to my girl on that night. I heard what Mr. Benton said, and I heard what

my daughter said.” Id. at 627.



      The court of appeals found the situation “exceptional” because the

conviction rested almost entirely on the victim‟s testimony, which had been

disputed by testimony from the accused. The opinion emphasized that



            [w]hen in such a case as this the additional evidence
            brought to the court‟s attention is that of the mother, who
            saw and talked to the child shortly after the alleged
            incident, and this evidence varies substantially from that
            given by the child, upon which the conviction rests
            almost entirely, we think a fair trial requires that the
            mother‟s testimony be made available to the jury.
                                        14




Benton, 188 F.2d at 627 (referring to these circumstances as “special factors”

justifying the unusual action of reversing the trial court and ordering a new trial)

(footnotes omitted). The court appeared to be influenced, at least in part, by the

prevailing rule at the time, that a person could not stand convicted of such an

offense “unless the [child‟s] testimony is corroborated or otherwise strong and

convincing.”    Id. at 627 n.2.     We have since abolished the corroboration

requirement for sexual offenses, Gary v. United States, 499 A.2d 815, 833-34

(D.C. 1985) (en banc), so it is fair to question whether a new trial would have been

ordered under current law.



      The decision in Brodie dealt with an uncommon claim of misidentification.

Within forty-eight hours after his conviction at a bench trial, the defendant moved

for a new trial based on “newly discovered evidence.” 295 F.2d at 159. He had

repeatedly denied involvement in the crime, and men who claimed to have actually

committed the offenses (or to have been present) offered to testify on his behalf.

Id. at 158-59. The trial judge denied the motion due to a “lack of diligence” by

defense counsel. Id. at 159.
                                           15


      Recognizing that the “newly discovered evidence” label placed on the

motion “may have misled the [trial judge] to apply the strict and narrow standards

of due diligence rather than view the motion . . . as one which invoked broader

discretionary powers,” the court of appeals remanded the case “with all its puzzling

aspects” for further consideration applying the “interests of justice” standard. 295

F.2d at 160. In doing so, the court noted that, although appellant would not have

“the burden of showing his own diligence” under this more liberal standard, “the

element of diligence, while still present, might well be but one of a number of

factors to be considered . . . .” Id. at 159, 160.



      More recent decisions have focused on external pressures which may have

interfered with an appellant‟s ability to present a full defense. In Lyons v. United

States, 833 A.2d 481 (D.C. 2003), defense counsel represented both before and

after trial that the defendant was afraid to exonerate himself because of threats

against him, his family, and a witness. Id. at 484-85 & n.5, 488. Recognizing that

the defendant had been denied a fair trial if these allegations were true, we

remanded the case for the trial court to conduct a “hearing to determine if [the

defendant‟s] claims of fear and intimidation were credible.” Id. at 488-89. See

also Geddie, 663 A.2d at 532 (defendant sought “a new trial on the ground that
                                          16


threats from his co-defendant . . . deprived him of his right to testify and his right

to a fair trial”).



       The desire to present a better defense is not, without more, a sufficient basis

for granting a new trial. In Huggins v. United States, 333 A.2d 385 (D.C. 1975), a

police officer‟s testimony at the defendant‟s second trial was inconsistent with his

testimony at the first trial. Defense counsel failed to impeach the officer with his

prior testimony although counsel had a transcript of the earlier proceeding. Id. at

386. We evaluated the motion for new trial under both the “newly discovered

evidence” and “interests of justice” standards, and held that relief was not

warranted under either. The belated discovery of the contradictory statements did

not qualify as newly discovered evidence because counsel had exhibited a lack of

due diligence. Id. at 387. Nor did the motion qualify under the interests of justice

standard, because “it is only under exceptional circumstances where, considering

the evidence, the defendant did not receive a fair trial, that a new trial will be

ordered,” and there was “no showing that [the officer‟s testimony] was perjurious,”

or “that an acquittal would necessarily follow.” Id.



       The decision in Benton appears to have been the most generous in

concluding that the interests of justice required a new trial. But that decision was
                                          17


based upon a very peculiar set of circumstances.         It did not establish a rule

allowing a “do-over” simply because a defendant is dissatisfied with the outcome

and only then decides to look for evidence to support his case. As our case law

demonstrates, “a new trial . . . in the interest of justice” will be justified only if

“„exceptional circumstances‟ prevented the defendant from receiving a fair trial.”

Tyer, 912 A.2d at 1167.



                     3.      Appellant Is Not Entitled to Relief



      Appellant has completely failed to meet that standard. This record is not

comparable to the unique scenario presented in Benton. There was no question of

misidentification. No codefendant intimidated appellant or prevented him from

presenting a full defense.    The evidence he submitted after trial was equally

available prior to trial. In short, nothing interfered with appellant‟s ability to

present his defense. Indeed, he won acquittals or partial acquittals on many of the

charges against him. See note 1, above.



      Appellant‟s counsel cross-examined the two government experts who

testified about the drugs.     However, he presented no evidence to refute the

government‟s testimony that “molly” could refer to MDMC. Plainly believing that
                                         18


Detective Thomas‟s testimony was mistaken, counsel nonetheless elected not to

request a continuance so he could locate witnesses to expose the purported

inaccuracy (or, perhaps, to testify about the quantities in which MDMC was

normally sold):



             [Defense Counsel]: I‟ll go to my grave on this count and
             the fact that Molly is some completely other drug. And
             in the event of an adverse verdict, I‟ll post trial this —

             The Court: I mean, instead of saying you‟ll go to your
             grave and swearing and — you‟re not a witness in this
             case. On this evidence, I have the expert saying it‟s
             Molly, I have this unprescribed drug that they‟ve
             analyzed saying it‟s this, that this is what they‟re talking
             about, and I have no evidence to the contrary.



      Despite the court‟s indisputably accurate observations, appellant made no

effort to contest these issues at trial, choosing instead to “post trial” the issue,

represented by new counsel. Although appellant is not required to demonstrate his

own diligence under the interests of justice standard, diligence is a valid factor for

the trial court, and this court, to consider. See Brodie, 295 F.2d at 160. Even

assuming, for the sake of argument, that defense counsel, having read the text

messages, reasonably thought that an expert in drug trafficking would not be

necessary to gain a partial acquittal for his client on the PWID MDMC charge

(leaving only the lesser-included offense of misdemeanor possession), and further
                                            19


assuming that he was surprised by the testimony of the government‟s experts,

nothing prevented counsel from requesting time to find and call appropriate

rebuttal witnesses. Such a request could have been more easily accommodated in a

bench trial such as this than in a jury trial.7



       Here, as Judge Richter recognized, appellant‟s motion reflected a “post-trial

change in tactics.” Appellant‟s regret that he did not present a better defense at

trial is not an “exceptional circumstance,” and thus, as the court properly

concluded, it does not entitle him to a new trial.



       Judge Richter was not required to hold a hearing before denying the motion.

See Prophet v. United States, 707 A.2d 775, 779 (D.C. 1998) (“We have upheld

the denial of a Rule 33 motion without a hearing when the trial court, after

examining the proffered affidavit of a witness, concluded that the material

contained in the affidavit would not „in all likelihood‟ result in an acquittal.”

(citing Poteat v. United States, 363 A.2d 295, 297 (D.C. 1976)). Having recently

conducted the bench trial in this case, Judge Richter was well-positioned to



       7
        Appellant does not raise a claim of ineffective assistance of counsel, and
we could not address that question without a fully developed record on the issue.
See Mack v. United States, 570 A.2d 777, 785-86 (D.C. 1990).
                                             20


evaluate the proffered affidavits, and he concluded that “[t]hese new assertions,

even if presented at trial, would not have resulted in a different verdict.”



      More importantly, Judge Richter recognized that the motion represented a

“post-trial change in tactics.” As we have demonstrated, appellant‟s new attack on

this one charge did not meet the “exceptional circumstances” test. This was

apparent from an examination of the affidavits and the court‟s thorough knowledge

of the trial record, which together provided the court sufficient information to

evaluate appellant‟s claim to a new trial.



      Therefore, in order to determine that “the interests of justice” did not

“require” a new trial, it was not necessary to further litigate whether appellant and

his friends (and others) used the term “molly” to refer to MDMC, MDMA, or

both.8 Nor was it necessary to reiterate the direct and circumstantial evidence that


      8
          Although Judge Richter did not rely on such cases, we note judicial
decisions indicating that “molly” has been used to refer to MDMC. See, e.g.,
United States v. Brey, 627 F. App‟x 775, 776 (11th Cir. 2015) (“The PSR states
that „molly‟ is a term referring to several schedule I controlled substances and their
analogues, including MDMA/ecstasy (3, 4-methylenedioxy-methamphetamine)
[and] MDMC/methylone (3, 4-methylenedioxy-methcathinone)[.]”); United States
v. Abbott, 613 F. App‟x 817, 818 (11th Cir. 2015) (challenging conviction “for
conspiracy to possess with intent to distribute 3, 4-methylenedioxy-N-
methylcathinone („methylone‟ or „Mollies,‟ a schedule I controlled substance
similar to ecstasy)”); United States v. Chong, 990 F. Supp. 2d 320, 321 (E.D.N.Y.
                                                                        (continued…)
                                          21


appellant was selling MDMC (a drug chemically similar to MDMA) in capsules

containing .1 gram of powder. Dr. Duer‟s understanding that MDMC is often (or

even typically) distributed in larger quantities would not undercut this evidence

demonstrating the customs of appellant and his buyers.



                                 III.   Conclusion



      On this record, we cannot say that exceptional circumstances prevented

appellant from receiving a fair trial. The trial court did not abuse its discretion in

denying the motion for a new trial, or in doing so without first holding a hearing.

The judgment of the Superior Court is hereby



                                        Affirmed.




(…continued)
2014) (“„Molly‟ is a term used by users, suppliers, and law enforcement for
methylone. . . . It is associated with a variety of chemical substances . . . .”);
Glispie v. State, 779 S.E.2d 767, 771-72 (Ga. Ct. App. 2015) (text messages
referring   to     “molly”;    capsules    “tested    positive   for    3,      4-
methylenedioxymethcathinone, commonly known as methylone or „Molly‟”).
                                           22


      RUIZ, Senior Judge, dissenting: Appellant appeals his conviction, after a

bench trial, of possession with intent to distribute MDMC.1 I would remand the

case to the Superior Court for further consideration of appellant‟s motion for a new

trial on that charge, pursuant to the interest of justice standard, and for clarification

of the trial court‟s reasoning.



      Further consideration and clarification are necessary for two reasons. First,

in denying the motion for new trial, the trial court might have relied, unduly, on a

factor — that the evidence presented with the motion represented a “change in

tactics” and was “too late” — that is not supported by the record. Second, further

clarification is necessary to reconcile the court‟s guilty verdict with its reasoning

for denying the motion based on the evidence presented at trial and with the

motion. The trial court may well need to hold a hearing to properly assess the

expert evidence presented with appellant‟s motion.




      1
         MDMC is methylenedioxy-methcathinone hydrochloride. Its distribution
or possession with intent to distribute is a felony, see D.C. Code § 48-904.01 (a)(1)
(2012 Repl.), but its simple possession is a misdemeanor. See Thomas v. United
States, 650 A.2d 183, 184 (D.C. 1994). Appellant does not challenge the finding
that he possessed MDMC; his appeal concerns only the finding of intent to
distribute.
                                         23


      The trial and motion for new trial. During trial, a government witness gave

testimony that defense counsel thought was patently incorrect, and in closing

alerted the trial court, stating that he “would go to the grave” on this point, and

noting that if appellant was found guilty of possession with intent to distribute

MDMC, he would file a posttrial motion for new trial.2 In a filing five days after

the court found appellant guilty, counsel requested additional time to file the

motion. The motion was duly filed by new appellate counsel within the period

granted by the court, and the court proceeded to decide the motion. At no time did

the government object to the granting of the extension to file the motion.



      The motion was filed pursuant to Superior Court Criminal Rule 33. Quoting

the Rule, appellant requested a new trial “if the interest of justice so requires” —

the standard that applies to motions filed “within seven days after the verdict or

finding of guilty. . . .” Super. Ct. Crim. R. 33 (a), (b)(2). Alternatively, and again

quoting Rule 33, appellant requested that because this was a bench trial, instead of


      2
         A government witness, Detective George Thomas, testified that “molly”
referred to the drug MDMC. Detective Thomas‟s testimony was relevant to the
charge of PWID MDMC because some three months before appellant was found to
possess MDMC, he had sent texts offering to sell “molly.” Whether appellant was
referring to MDMC when he said “molly” was therefore circumstantial evidence of
his intent to sell MDMC in the past, even if it did not directly support that he
intended to sell the MDMC which he was charged with possessing three months
later.
                                         24


having a new trial, the court could “vacate judgment, take additional testimony,

and direct the entry of a new judgment.” Super. Ct. Crim. R. 33 (a).



      When considering the Rule 33 motion, the trial court did not make express

reference to the two specific requests made by appellant under Rule 33 or the

standard that applies in deciding whether to grant the motion “in the interest of

justice.”3 In denying appellant‟s motion, the trial court referred to the evidence

submitted with the new trial motion as “a change in trial tactics” that was “both too

late and insufficient.”   The trial court‟s reference to appellant‟s motion as a

“change in trial tactics” that was “too late” is unexplained and, on this record,

mystifying. Counsel clearly challenged at trial the government‟s evidence that

appellant possessed MDMC with the intent to distribute. The government‟s case

that appellant had the intent to distribute MDMC was based on texts found on

appellant‟s cellphone and the quantity of MDMC found in appellant‟s home. Trial

counsel immediately disputed the testimony of the government‟s witness that the


      3
         Appellant‟s motion did not refer to the third basis for a new trial under
Rule 33, the availability of “newly discovered” evidence, which may be filed up to
three years after judgment, Super. Ct. Crim. R. 33 (b)(2), nor has appellant ever
suggested that the evidence submitted with his motion met the requirements for
newly discovered evidence. The trial court did not refer to the standard for newly
discovered evidence. Yet the government argued in the trial court and argues in
this court that the case law relevant to newly discovered evidence is relevant to the
motion filed in this case.
                                          25


“molly” referred to in the texts was a street name for MDMC, but was instead a

reference to MDMA, a different drug than the one appellant was charged with.

See note 2 supra. Trial counsel also argued that evidence of the bare quantity of

the drug seized at appellant‟s home 4 was insufficient by itself to support an

inference of intent to distribute because it lacked context and the government had

presented no evidence “that refutes the fact that this is consistent with personal

use . . . .”5 Counsel pointed out that such evidence was particularly important in a

case where the drugs were not packaged for sale and there was scant evidence of

the drug-selling paraphernalia (e.g., bags, ledgers) that routinely supports an

inference of intent to distribute. In the posttrial motion, appellate counsel made the

same arguments on both points that had been made during trial, supported those

arguments with affidavits from experts, and asked the trial court to reopen the

      4
        The MDMC seized at appellant‟s home was in one plastic bag, weighing
8.2 grams, two capsules that contained a total of .19 grams and a partial tablet
containing .2 grams.
      5
          Trial counsel argued:

                    The [government] expert talked about Ecstasy and
              then MDMC and then talked about what he told me was
              Methyolone. . . . But that is diluted to the point where he
              said — he agreed with me that it was sort of diluted
              Ecstasy. So in order to get high from the drug, one would
              have to use more. So if there‟s eight grams, somebody
              would be using a significant amount of significantly
              more of the drug since diluted, you need more to get
              high.
                                         26


record “to take additional testimony” after a bench trial, as expressly provided for

in Rule 33. Thus, there was no change in the defense‟s tactics, only further

evidentiary support for the arguments previously made to the court.



      Moreover, it was not “too late” as there was no delay in filing the motion.

Trial counsel told the judge during trial that in the event of an adverse judgment,

appellant would be filing a motion for new trial. Appellant timely asked for an

extension within the seven-day time limitation set out in Rule 33 to file a motion to

be considered under the more liberal “interest of justice” standard, without

objection by the government. The trial court granted the extension and the motion

was filed within the time allowed by the judge. In short, the record does not

support that the motion presented a “change in tactics” and was “too late.” Thus,

the trial court should reconsider the motion without taking into account these

unsupported factors. See Geddie v United States, 663 A.2d 531, 534 (D.C. 1995)

(“[G]enerally the factual record must be capable of supporting the determination

reached by the trial court.”).



      Moreover, unlike under the “newly discovered” evidence standard, delay is

not a primary focus under the interest of justice standard. See Brodie v United

States, 295 F.2d 157, 160 (D.C. Cir. 1961); Sellars v. United States, 401 A.2d 974,
                                          27


979 (D.C. 1979) (noting that, though the decision whether to grant a new trial

under the interest of justice standard is committed to the trial court‟s discretion and

should be “temperately . . . utilized,” the standard to be applied is “broader in

scope than the limitations which have been held applicable where the motion is

based on newly discovered evidence” (quoting Benton v. United States, 188 F.2d

625, 627 (1951))). This is sensible because, to be considered under the interest of

justice standard, the motion has to be filed within seven days of the finding of

guilt, whereas in the case of a later-filed, newly discovered evidence motion (up to

three years), “the passage of time inevitably ripens the finality of the judgment and

increases the difficulty of again proving a case.” Brodie, 295 F.2d at 159-60.

Judge Fisher‟s opinion properly rejects the government‟s suggestion that the newly

discovered evidence standard should be applied in this case and purports to use the

interest of justice standard. Yet it approves of the trial court‟s comment that the

motion was a posttrial change of tactics that came too late as reasons for denying

the new trial motion, relying on Brodie for the proposition that “lack of diligence”

can be taken into account under the interest of justice standard. As the court made

clear in Brodie, however, diligence is “but one of a number of factors to be

considered,” and may not be “controlling.” Id. at 159. In Brodie, the appellate

court reversed and remanded the denial of a motion for new trial because it

appeared to have been driven by the “due diligence” standard rather than upon
                                         28


consideration of the facts of the case against the ultimate consideration: whether

“a fair trial requires” that the evidence proffered with the motion for new trial be

considered by the fact-finder. Id.



      The evidence. In deciding what the interest of justice requires, “the facts are

of critical importance.” Id. at 158. Here, the trial court concluded, without holding

a hearing, that the “new assertions [presented in appellant‟s motion] even if

presented at trial, would not have resulted in a different verdict.” On this record,

that conclusion is far from evident.



      A remand for clarification is necessary to reconcile the court‟s guilty verdict

and its subsequent denial of the new trial motion after being presented with

additional evidence that contradicted evidence on which the original verdict was

based. In finding appellant guilty of possession with intent to distribute MDMC,

the trial court relied on two different strands of evidence from which intent to

distribute could be inferred: (1) five texts on appellant‟s cellphone in which he

referred to “molly” and other drugs he was selling to friends and (2) the quantity of

MDMC that was found in his home. The trial court acknowledged that neither one

sufficed, stating that although “the quantity alone might not be enough, [and] the
                                         29


text messages alone might not be enough, . . . together they clearly constitute proof

beyond a reasonable doubt.” (Emphasis added.)



      The trial court‟s assessment that each of the individual strands of evidence

was by itself insufficient to convict was well taken. The texts were not particularly

strong evidence of appellant‟s intent to distribute as none referred specifically to

MDMC but to a different drug, MDMA. Moreover, even if, as Detective Thomas

had testified (but defense counsel vigorously disputed), “molly” referred to

MDMC, the texts mentioning “molly” were sent during a 3-5-week period in May-

June that significantly predated, by three months, the seizure of MDMC during a

search at appellant‟s home in September on which the charges were based. There

were no texts referring to “molly” that corresponded to the time when the

government proved appellant possessed MDMC.            The inference of intent to

distribute from the quantity of the drug seized also was inherently weak because it

was presented without any physical evidence, such as packaging or supplies that

corroborated that the MDMC was being sold or prepared for sale. Instead, the

government‟s witness, Danielle LaVictoire, merely made a straightforward

mathematical calculation that the 8.2 grams found in a plastic bag could be divided

into 82 capsules of .1 gram. This calculation was apparently based on the fact that

two capsules with a total of .19 grams were found at the house, although there was
                                        30


no evidence presented of the quantity of MDMC in each capsules. However, there

was no cache of empty capsules or evidence that the powder was being transferred

into capsules for distribution, nor was there any expert evidence that a capsule

containing .1 gram of MDMC was marketable as such.



      With the motion for new trial, appellant submitted the sworn affidavits of

two experts.6 They stated that “molly” was a term used to refer to MDMA, not

MDMC. This testimony — which was unrebutted by the government in the

posttrial motions proceeding — directly contradicted Detective Thomas‟s trial

testimony that the use of “molly” in appellants‟ stale text messages referred to

MDMC.      The expert affidavits also supported the argument made at trial by

defense counsel that possession of the MDMC found at appellant‟s home could be

consistent with personal use.



      6
         The experts were Wayne C. Duer, Ph.D. Chemistry, American Academy
of Forensic Sciences member, who has published thirty-seven articles in peer-
reviewed scientific journals and worked in forensic toxicology for thirty-seven
years, including the Florida Department of Business Regulation (ten years), the
Florida Department of Law Enforcement (seven years) who certified him as a
forensic chemist and toxicologist, the Hillsborough County, Tampa, Florida
Medical Examiner‟s Department (fifteen years), and as a private expert consultant
(five years); and Michael Radon who has forty years‟ of professional experience in
the drug and alcohol counseling, detoxification and rehabilitation field, which has
included over 1,000 bio-psych-social assessments requiring familiarity with drug
street names.
                                         31


      In addition to dismissing the evidence presented in appellant‟s motion as a

“change in tactics” that was “too late,” the trial court disposed of the request to

vacate judgment, take new evidence, and enter new judgment for misdemeanor

possession of MDMC by concluding that, “these new assertions, even if presented

at trial, would not have resulted in a different verdict.” As already discussed, the

assertions were not “new” as both were presented during trial. What was new was

the expert evidence presented in support of those arguments. The trial court had

said, in finding appellant guilty, that the evidence of texts with references to

“molly” was insufficient by itself to find appellant guilty of intent to distribute

MDMC and had similarly expressed that the evidence of the quantity of the

MDMC, by itself, was insufficient for an inference of intent to distribute. Thus,

both were necessary, in the trial court‟s view, for a finding of guilt beyond a

reasonable doubt. The expert evidence submitted with the motion for new trial

confirmed the trial court‟s assessment that each strand of the government‟s

evidence to prove intent to distribute was indeed insufficient on its own to support

a finding of guilt. Yet, when faced with additional proof that further undermined

the government‟s case, and without having heard the witnesses whose testimony

had been proffered in sworn affidavits, the trial court summarily concluded their

evidence would not have made a difference. In this bench trial, it would have been

relatively easy to reopen the record to admit such important evidence. It is difficult
                                          32


to reconcile the trial court‟s summary denial of the request for new trial or to admit

the proffered testimony as being in the interest of justice in light of its recognition

of the deficiencies in the government‟s case and stated reasons for the finding of

guilt.



         The facts of the case warranted a more searching examination.            The

government‟s case that appellant had the intent to distribute MDMC was based on

weak and circumstantial evidence. Appellant‟s Rule 33 motion presented expert

evidence that directly contradicted Detective Thomas‟s testimony that “molly” is

MDMC; the trial court had recognized this problem, referring to the “confusion” in
                                   7
Detective Thomas‟s testimony.          The affidavits took specific aim at Ms.

LaVictoire‟s testimony that the 8.2 grams of MDMC would yield 82 capsules and,

more importantly, cast doubt on whether even that number of capsules would be

inconsistent with personal consumption by appellant, who was shown to be a drug




         7
          Judge Fisher‟s opinion cites four decisions from other jurisdictions
“indicating that „molly‟ has been used to refer to MDMC.” See ante at note 8. As
there noted, the trial court in the case before us was not made aware of these
decisions, nor was the evidence presented in those cases presented to the trial court
here. The government has not cited these cases on appeal. It is unclear whether
and, if so, how, these citations are to figure into our consideration of the trial
court‟s denial of appellant‟s Rule 33 motion.
                                           33


user.8 The trial court did not say that the proffered witnesses were unqualified or

that their affidavits were on their face incredible. Nor could the trial court have

relied on countervailing evidence, as the government did not present any evidence

in its opposition to the posttrial motion to rebut appellant‟s expert witnesses. Cf.

Tyer v. United States, 912 A.2d 1150, 1167 (D.C. 2006) (noting with respect to

recantations proffered posttrial, that “if the trial court does not deem the

recantation credible, that determination ends the inquiry” under the interest of

justice standard). The trial court did not explain why this expert evidence, which

supported that appellant‟s texts did not refer to the sale of MDMC and that the

MDMC appellant possessed was consistent with his personal use, would not have

resulted in a different finding of intent to distribute.9 If credited by the trial court,

appellant‟s proffered evidence would require acquittal of the felony conviction on

the charge of PWID MDMC and warrant entry of judgment for misdemeanor


      8
         Appellant had a history of prescribed amphetamine drug use, having over
800 pills prescribed and the government finding 138 of them. As noted by the
expert affidavits, use of certain drugs results in the user developing a tolerance for
MDMC, especially if they have a history of taking amphetamines. Accordingly,
given appellant‟s history of prescribed amphetamine drug use and the
government‟s failure to prove beyond a reasonable doubt that appellant was not a
heavy user of MDMC, the 8.2 grams of MDMC in his possession could be
consistent with appellant‟s personal use.

      9
         Likewise, the majority opinion does not deal with the substance of the
experts‟ affidavits.
                                          34


possession of MDMC. Presented with evidence that had the potential to dictate a

different result, it is not enough simply to say, without explanation and in evident

tension with an earlier assessment of the government‟s case, that the proffered

evidence would not have made a difference even if it had been presented at trial.

Careful consideration of such critical evidence surely is a requirement in

determining the interest of justice. See Prophet v. United States, 707 A.2d 775,

779 (D.C. 1998) (affirming denial of Rule 33 motion after noting that trial court

“not only gave careful consideration to the motion but explained in detail the

reasons for its ruling”).



      For these reasons, I would remand the case for further consideration and

clarification by the trial court and, as appropriate, a hearing so that the trial court

can assess the weight of the expert evidence presented with the Rule 33 motion.10


      10
         Appellant argues that the trial court erred as a matter of law by applying
an incorrect standard — clear and convincing instead of beyond a reasonable doubt
— when it stated that “the evidence is still clearly convincing that MDMC was
possessed with the intent to distribute.” I do not believe that the trial court‟s
comment should be read as confusing the standard for a finding of guilt beyond a
reasonable doubt because it was made in the context of the motion for new trial,
where appellant has the burden to persuade the judge.

      The trial court did make a puzzling comment in explaining its guilty verdict,
however. Concerning the defense argument that there was no evidence that the
MDMC seized at appellant‟s home was inconsistent with personal use, the trial
court countered that there was no evidence that appellant was “a fiend.”
                                                                    (continued…)
                                        35


Otherwise, this court‟s review on appeal is a meaningless exercise. See Portillo v.

United States, 62 A.3d 1243, 1257 (D.C. 2013) (stating that the trial court “shall

make finding of fact on the record sufficient to allow meaningful appellate

review”).




(…continued)
Presumably this meant that only a very heavy user or highly addicted person could
possibly have that quantity for personal consumption. But it was not the defense‟s
burden at trial to establish that appellant possessed the drugs for personal use. In
the absence of any physical evidence of intent to distribute, it remained the
government‟s burden to prove beyond a reasonable doubt that the quantity of drugs
was inconsistent with personal use by the appellant. However, the government
presented no evidence at trial about the usual dose of MDMC, or how often it may
be consumed, or appellant‟s likely consumption. With the Rule 33 motion, when
he had the burden to persuade the trial court, appellant presented expert evidence
that MDMC is ten times less potent than MDMA; that users develop a tolerance to
the drug; that the effect of MDMC is relatively short-lived and that, as a result,
users consume MDMC repeatedly to maintain a high. There was ample evidence
presented at trial that appellant possessed and used a number of drugs.
