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SJC-11981
COMMONWEALTH vs. ADMILSON RESENDE.
Plymouth. April 4, 2016. - July 25, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Controlled Substances. Constitutional Law, Plea, Conduct of
government agents. Due Process of Law, Plea, Disclosure of
evidence, Presumption. Practice, Criminal, Plea, New
trial, Conduct of government agents, Disclosure of
evidence, Presumptions and burden of proof. Evidence,
Guilty plea, Certificate of drug analysis, Presumptions,
Disclosure of evidence.
Indictments found and returned in the Superior Court
Department on November 9, 2006.
A motion to withdraw a guilty plea, filed on October 2,
2012, and supplemented on March 20, 2014, was heard by Paul A.
Chernoff, J., special judicial magistrate, and an order
affirming the proposed order of the special judicial magistrate
was entered by Frank M. Gaziano, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Patrick Levin, Committee for Public Counsel Services, for
the defendant.
2
Laurie Yeshulas, Assistant District Attorney (Lisa J.
Jacobs, Assistant District Attorney, with her) for the
Commonwealth.
SPINA, J. The present case is the most recent in a series
of cases concerning the egregious misconduct of Annie Dookhan, a
chemist who was employed in the forensic drug laboratory of the
William A. Hinton State Laboratory Institute (Hinton drug lab)
from 2003 until 2012. On January 23, 2007, the defendant,
Admilson Resende, pleaded guilty on indictments charging
distribution of a class B controlled substance (cocaine), G. L.
c. 94C, § 32A (c) (five counts); violation of the controlled
substances laws in proximity to a school or park, G. L. c. 94C,
§ 32J (three counts); and possession of a class B controlled
substance (cocaine) with intent to distribute, G. L. c. 94C,
§ 32A (c) (one count). 1 He completed service of his sentences. 2
On October 2, 2012, the defendant filed in the Superior Court a
motion to withdraw his guilty pleas pursuant to Mass. R. Crim.
1
An indictment charging unlawful possession of a class D
controlled substance (marijuana), G. L. c. 94C, § 34, as amended
through St. 1996, c. 271, § 1, was placed on file.
2
With respect to the indictments charging distribution of
cocaine and possession of cocaine with intent to distribute, the
defendant was sentenced to concurrent terms of a mandatory
minimum sentence of one year in a house of correction. G. L.
c. 94C, § 32A (c), as amended through St. 1991, c. 391. With
respect to the school or park zone charges, the defendant was
sentenced to concurrent terms of a mandatory minimum sentence of
two years in a house of correction, to commence on and after the
completion of his sentences for the underlying drug crimes.
G. L. c. 94C, § 32J, as amended through St. 1998, c. 194, § 146.
3
P. 30, as appearing in 435 Mass. 1501 (2001), based on Dookhan's
malfeasance.
Prior to the issuance of a ruling on the defendant's
motion, this court decided Commonwealth v. Scott, 467 Mass. 336
(2014), in which we articulated, in reliance on Ferrara v.
United States, 456 F.3d 278, 290-297 (1st Cir. 2006), a two-
prong framework for analyzing a defendant's motion to withdraw a
guilty plea under rule 30 (b) in a case involving the misconduct
of Dookhan at the Hinton drug lab. Scott, supra at 346-358.
Under the first prong of the analysis, a defendant must show
egregious misconduct by the government that preceded the entry
of the defendant's guilty plea and that occurred in the
defendant's case. Id. at 347-354. We recognized that, given
the breadth and duration of Dookhan's malfeasance, it might be
impossible for a defendant to show the required nexus between
government misconduct and the defendant's own case. Id. at 351-
352. Consequently, we established a special evidentiary rule
whereby a defendant seeking to vacate a guilty plea under rule
30 (b) as a result of the revelation of Dookhan's misconduct,
and proffering a certificate of drug analysis (drug certificate)
from the defendant's case signed by Dookhan on the line labeled
"Assistant Analyst," would be entitled to "a conclusive
presumption that egregious government misconduct occurred in the
defendant's case." Id. at 352. Application of this conclusive
4
presumption in a particular case meant that a defendant's
evidentiary burden to establish each element of the first prong
of the Ferrara-Scott framework was satisfied. Id. at 353-354.
The defendant then had the burden under the second prong of the
analysis of particularizing Dookhan's misconduct to his or her
decision to tender a guilty plea. Id. at 354-355. That is to
say, the defendant had to "demonstrate a reasonable probability
that he [or she] would not have pleaded guilty had he [or she]
known of Dookhan's misconduct." Id. at 355. A successful
showing on this second prong of the Ferrara-Scott framework
would warrant an order granting the defendant's motion to
withdraw a guilty plea.
In light of our decision in Scott, as well as new evidence
concerning the Hinton drug lab's analyses of the samples in his
case, 3 the defendant filed supplemental pleadings on March 20,
2014, in support of his motion to withdraw his guilty pleas. He
pointed out that Dookhan had set up and operated the gas
chromatography-mass spectrometry (GC-MS) machine for three out
3
On April 1, 2013, defense counsel filed a motion in the
Superior Court for the production of documentation from the
forensic drug laboratory of the William A. Hinton State
Laboratory Institute (Hinton drug lab) that supported the
results set forth on each certificate of drug analysis (drug
certificate) in the defendant's case. Counsel sought, in
particular, the reviewable data produced by the gas
chromatography-mass spectrometry (GC-MS) machine that had
performed the drug analyses. The motion was allowed, and the
office of the Inspector General produced the requested
documentation.
5
of the seven samples in his case (although her name did not
appear on those drug certificates), and that she had been the
confirmatory chemist for a fourth sample. As a consequence, the
defendant asserted that, with respect to these four samples, he
was entitled to the conclusive presumption articulated in Scott,
467 Mass. at 352, that egregious government misconduct occurred
in his case. He further argued that he would not have pleaded
guilty had he known of Dookhan's misconduct at the time of his
pleas.
Following an evidentiary hearing, a special magistrate
appointed by the Chief Justice of the Superior Court Department
of the Trial Court pursuant to Mass. R. Crim. P. 47, 378 Mass.
923 (1979), denied the defendant's motion to withdraw his guilty
pleas. See Commonwealth v. Charles, 466 Mass. 63, 89-90 (2013)
(describing authority of special magistrate to conduct guilty
plea colloquies in Hinton drug lab sessions). The defendant
appealed the special magistrate's proposed order dated May 12,
2014, to the Regional Administrative Justice of the Superior
Court, who denied the defendant's appeal and affirmed the
decision of the special magistrate. See id. at 66, 90-91. The
defendant filed a timely notice of appeal in the Appeals Court,
and we subsequently granted his application for direct appellate
review. For the reasons that follow, we conclude that the
defendant was not entitled to the conclusive presumption that
6
egregious government misconduct occurred in his case, and that
his motion to withdraw his guilty pleas was properly denied. 4
1. Background. On four divers dates in August, 2006,
Detective Timothy Stanton of the Brockton police department
conducted "controlled buys" of what appeared to be cocaine from
the defendant. Each purchase occurred in a similar manner.
Stanton would telephone a number that had been provided by the
defendant and would meet him (or, on the first occasion, a
female associate) at a designated location in the "Village"
section of Brockton. Each of these locations was within 1,000
feet of an elementary school or a park. Stanton would purchase
two "twenty" bags of an off-white rock-like substance from the
defendant for forty dollars. Before and after several of these
controlled buys, the defendant was observed leaving and
reentering a multifamily home on North Montello Street. Field
tests conducted on the substances indicated the presumptive
presence of cocaine. Based on these controlled buys, Stanton
applied for and was granted a search warrant for the defendant's
residence on the first floor of the North Montello Street
address.
4
Although our recent decision in Commonwealth v. Resende,
474 Mass. 455 (2016), concerned the same defendant as in the
present case, the issues raised in the two cases are entirely
different.
7
On August 22, 2006, Stanton engaged in a fifth controlled
buy with the intention of executing the search warrant
immediately thereafter. He telephoned the defendant, who
directed him to the corner of North Montello Street and King
Avenue and advised him that he would have one "forty" bag
instead of two "twenty" bags. When Stanton arrived at the
meeting place, he telephoned the defendant and subsequently
observed him leaving the residence on North Montello Street.
Stanton gave the defendant two twenty dollar bills with
prerecorded serial numbers in exchange for a clear plastic bag
containing an off-white rock-like substance. A team of police
officers then secured the defendant and took him into custody.
The defendant was advised of the Miranda rights and acknowledged
that he understood those rights. Found on the defendant's
person were a Nextel cellular telephone (on which Stanton's
telephone call was still visible), three pieces of an off-white
rock-like substance wrapped in clear plastic, a bag containing
green vegetable matter, and two twenty dollar bills having the
prerecorded serial numbers.
The substances recovered from the five controlled buys and
from the defendant's person were sent to the Hinton drug lab for
analysis. Seven drug certificates were issued. As relevant to
the present appeal, three of the drug certificates, stating that
the substances seized from the defendant contained cocaine as
8
defined in G. L. c. 94C, § 31, were signed on the line labeled
"Assistant Analysts" by Daniela Frasca and Michael Lawler.
However, as will be explained in greater detail infra, Dookhan
was the so-called "setup operator" for the substances (samples
779099, 779110, and 779125) that were analyzed to generate these
certificates. A fourth drug certificate, stating that the
substance (sample 810059) seized from the defendant contained
cocaine as defined in G. L. c. 94C, § 31, was signed on the line
labeled "Assistant Analysts" by Frasca and Dookhan. 5
In 2012, Dookhan admitted to tampering with evidence at the
Hinton drug lab, failing to comply with quality control
measures, forging the initials of an evidence officer, and "dry
labbing." 6 See Scott, 467 Mass. at 339-340. It appeared that
"the motive for her wrongdoing was in large part a desire to
increase her apparent productivity." Id. at 341. Following a
5
Two of the remaining drug certificates, stating that the
substances (samples 810300 and 810301) seized from the defendant
contained cocaine as defined in G. L. c. 94C, § 31, were signed
on the line labeled "Assistant Analysts" by Kate Corbett and
Della Saunders. The final drug certificate, stating that the
substance (sample 810302) seized from the defendant contained
marijuana as defined in G. L. c. 94C, § 31, was signed on the
line labeled "Assistant Analyst" by Saunders. Because there is
no evidence that Dookhan was involved in the analyses of the
substances for which these three drug certificates were
generated, we do not consider them further.
6
Dookhan's admission to "dry labbing" meant that "she would
group multiple samples together from various cases that looked
alike and then test only a few samples, but report the results
as if she had tested each sample individually." Commonwealth v.
Scott, 467 Mass. 336, 339 (2014).
9
criminal investigation into Dookhan's misconduct, the Attorney
General's office indicted her on twenty-seven charges --
seventeen counts of tampering with evidence, eight counts of
obstruction of justice, one count of perjury, and one count of
falsely claiming to hold a degree from a college or university.
See id. at 337 & n.3. On November 22, 2013, Dookhan pleaded
guilty to all of the charges. See id. She was sentenced to
from three years to five years in the State prison, followed by
a probationary term of two years.
2. Testing procedures at the Hinton drug lab. At the
April 22, 2014, hearing before the special magistrate on the
defendant's motion to withdraw his guilty pleas, the parties
presented, among other evidence, a report from the office of the
Inspector General (report), dated March 4, 2014, describing its
comprehensive investigation of the operation and management of
the Hinton drug lab from 2002 to 2012. 7 In addition, the
defendant presented the testimony of Michael Lawler, the
confirmatory chemist for samples 779099, 779110, and 779125,
with respect to which Dookhan was the setup operator. 8 Lawler,
7
The report was issued one day before the release of our
opinion in Scott and greatly enhanced public understanding of
the details surrounding Dookhan's misconduct at the Hinton drug
lab.
8
On November 4, 2014, the defendant filed a motion to
reconstruct the testimony given by Lawler at the hearing on the
defendant's motion to withdraw his guilty pleas. Due to an
10
whom the special magistrate found to be credible, described the
GC-MS machine, as well as the duties and responsibilities of a
primary chemist, a confirmatory chemist, and a setup operator.
When a law enforcement agency brought a substance to the
Hinton drug lab for analysis, an evidence officer would accept
the substance and assign it a sample number, which would be
attached to the substance through all of the phases of the
testing process. The evidence officer would create a drug
receipt, which included the sample number, and would give a copy
of the receipt to the law enforcement agency that had requested
the analysis. Then, the evidence officer would generate a
control card 9 and place it, together with the substance, in a
manila envelope labeled with the sample number. Eventually, the
substance would be assigned to a chemist for analysis.
The special magistrate described the testing process used
by the Hinton drug lab as a "two-phase system," rather than a
equipment malfunction, a transcript of that hearing could not be
produced. The parties subsequently filed a joint statement
regarding their recollections of Lawler's testimony, and the
special magistrate accepted the statement.
9
The control card would list information about the sample,
including its number, its net weight, the identity of the
primary and confirmatory chemists assigned to the sample, and
the analytical results. The control card stayed with the sample
throughout the testing process.
11
"two-chemist system." 10 During the preliminary phase, substances
submitted by law enforcement agencies for analysis were assigned
to a primary chemist. That individual would be responsible for
weighing the samples and conducting preliminary bench tests,
which included color, microcrystalline, gas chromatography,
infrared spectroscopy, ultraviolet spectroscopy, macroscopic,
and microscopic tests. The primary chemist would document the
test results and make preliminary determinations as to the
identities of the samples. Then, the primary chemist would
prepare the samples for the confirmatory testing process by
making aliquots 11 for analysis by the GC-MS machine. In
addition, the primary chemist would complete a GC-MS control
sheet, setting forth the date, the identity of the primary
chemist, the name of the submitting law enforcement agency, a
list of samples in numerical order, the chemist's preliminary
10
The special magistrate found that under a "two-chemist
system," the primary chemist conducted the preliminary bench
tests, and the confirmatory chemist received the samples for
analysis by the GC-MS machine, operated the GC-MS machine, and
confirmed the preliminary findings made by the primary chemist.
In contrast, under a "two-phase system," one chemist was
responsible for the preliminary testing phase, and one or two
different chemists were responsible for the confirmatory phase
(except in rare instances when a single chemist completed both
phases). When performing the confirmatory phase, one chemist
would receive the samples and operate the GC-MS machine, and a
different chemist would analyze the results generated by the GC-
MS machine.
11
An aliquot is a small portion of the sample that the
primary chemist places into a glass vial and dissolves with a
solvent.
12
findings, and any comments that would be helpful to the
confirmatory chemist in the subsequent analysis. Finally, the
primary chemist would take the GC-MS control sheet, the control
card, and the aliquots to the room where the GC-MS machines were
located (GC-MS room) so that the confirmatory phase of the
testing process could begin.
With respect to the confirmatory testing process, the
Hinton drug lab generally followed the protocol recommended by
the Scientific Working Group for the Analysis of Seized Drugs,
which relied on use of a GC-MS machine. The GC-MS room was
situated in the middle of the laboratory complex and was
accessible by only one door. Each machine was a large, box-
shaped piece of equipment with a robotic arm that had a syringe
attached to the end of it. Placed inside the GC-MS machine was
a carousel which could be loaded with 100 to 120 vials,
depending on the size of the machine. When operational, the
carousel would move the vials toward the syringe which would
puncture the top of each vial to commence the testing process
for that sample. After the contents of a vial were analyzed,
the GC-MS machine automatically purged the syringe by "spitting"
its contents into a waste receptacle and then putting the
syringe into a cleaning solution.
The confirmatory phase involved three separate steps --
receipt of the samples in the GC-MS room, operation of the GC-MS
13
machine, and analysis of the results from the GC-MS machine to
confirm the preliminary identification of the samples. It was
common practice at the Hinton drug lab for the setup operator to
complete the first two steps, and for the confirmatory chemist,
who signed the drug certificates, to complete the last step. 12
Chemists were assigned to work as the setup operator for week-
long shifts. Although the setup operator had some level of
autonomy because he or she was not directly supervised, a
supervisor usually was present in the GC-MS room. On some
occasions, the setup operator would become the confirmatory
chemist and would analyze the results produced by the GC-MS
machine. On other occasions, the GC-MS machine would run
overnight, so the setup operator might not be the chemist who
would interpret the results the following morning and sign the
drug certificates.
At the beginning of the confirmatory phase, the setup
operator would receive the aliquots from the primary chemist and
verify that the number on each vial matched the sample numbers
on the accompanying GC-MS control sheet and control card. The
setup operator would inspect the vials and document any
problems, including signs of contamination. Then, he or she
12
According to the special magistrate's findings and the
report from the office of the Inspector General, chemists at the
Hinton drug lab did not consider it to be a requirement that one
chemist perform all three steps of the confirmatory phase of the
testing process.
14
would place the aliquots, along with vials containing
standards, 13 blanks, 14 and a quality control standard mix, 15 on
the carousel of the GC-MS machine for analysis. The setup
operator would complete a "sequence" or "batch" sheet, an
internal document that specified the order in which the various
vials were arranged on the carousel, and enter the information
from the sheet into the GC-MS machine. The setup operator would
not open the aliquots.
Before the aliquots could be analyzed, the setup operator
was required to confirm that the GC-MS machine was ready for
operation. This involved "tuning" the GC-MS machine to ensure
that it was operating within acceptable parameters, ascertaining
that the GC-MS machine correctly identified the quality control
standard mix, and confirming that tests on the first few vials
13
A standard was a known controlled substance against which
the aliquots were compared. In the present case, the standard
was cocaine. The aliquots being analyzed were bracketed by
standards to ensure that the GC-MS machine was operating
properly at the beginning, middle, and end of the testing
sequence. If the setup operator noticed that the GC-MS machine
had not identified the standard correctly, the "run" of the
assorted vials would be terminated, and another run would be
prepared using a new standard.
14
Blanks typically consisted of the solvent that had been
used to dissolve the aliquots. They were inserted on the
carousel between the aliquots and the standards, and were used
to ensure that there was no contamination during the testing
process.
15
The quality control standard mix was a combination of
cocaine and codeine. It was used to ensure that the GC-MS
machine was operating properly.
15
containing standards and blanks also correctly identified those
substances. In addition, the setup operator was responsible for
other quality control measures, including ensuring that the
standards were not contaminated, emptying the waste receptacle,
lubricating the syringe, and replacing the injection seal, as
necessary. 16 If at any time the setup operator determined that
the GC-MS machine was not fit for operation, the operator would
terminate the "run" of a batch of vials and restart the analysis
process.
The GC-MS machine would produce reviewable data that the
chemists referred to as "documentation." Once the GC-MS machine
had completed its analysis of the aliquots, the confirmatory
chemist would check the placement of the vials against the
sequence sheet to ensure that they were tested in the correct
order. The confirmatory chemist then would analyze the
documentation and identify each sample without using the primary
chemist's notes. This identification would be added to the
front of the GC-MS control sheet and the control card. A sample
would have to test positive in both the preliminary and
confirmatory phases in order to be conclusively identified as
the controlled substance at issue. Finally, the primary and
confirmatory chemists would sign the drug certificates. If
16
The location and purpose of the injection seal are
unclear from the record.
16
there was an inconsistency between the identification made by
the primary chemist and that made by the confirmatory chemist,
the samples would be returned to the primary chemist for further
analysis or for the preparation of new aliquots.
3. Testing in the defendant's case. As to samples 779099,
779110, and 779125, Lawler testified that Daniela Frasca was the
primary chemist, Dookhan was the setup operator, and he was the
confirmatory chemist. Frasca conducted the bench tests,
prepared the aliquots for analysis by the GC-MS machine, and
preliminarily identified the three samples as cocaine. Dookhan
then placed the assorted vials on the carousel of the GC-MS
machine on Friday, October 6, 2006, and entered the sequence of
their arrangement into the machine. She initiated the analysis
process that morning, it continued throughout the night, and it
was finished the following morning, Saturday, October 7. Lawler
testified that Dookhan would have been responsible for
performing any necessary quality control measures, and for
ensuring that the GC-MS machine was operating properly prior to
the run. Once the analysis was completed on Saturday morning,
Lawler reviewed the performance of and documentation from the
GC-MS machine. He testified that he would have checked the GC-
MS machine and would have examined the placement of the vials
before he removed them from the carousel. Based on his review
of the documentation, Lawler confirmed that samples 779099,
17
779110, and 779125 contained cocaine, and he signed the drug
certificates. 17
Lawler testified that although he had some concerns about
Dookhan based on her productivity as a primary chemist, he did
not have similar concerns regarding her work in the GC-MS room.
Lawler stated that confirmatory testing on the GC-MS machine was
"very static," meaning that it was not possible to increase or
accelerate the process, and that it did not involve any
"creativity." When asked how a "rogue" person could influence
the results of the GC-MS machine, Lawler testified that he did
not see how it could be done without detection.
4. Decision of the special magistrate. In a thorough and
well-reasoned memorandum of decision denying the defendant's
motion to withdraw his guilty pleas, the special magistrate
pointed out that Scott does not address whether the conclusive
presumption of egregious government misconduct is available to a
defendant in a case where Dookhan merely was the setup operator
and did not sign the drug certificates. The special magistrate
found that the roles of setup operator and confirmatory chemist,
while overlapping, were not so closely analogous or
interchangeable that they should be treated as one, and that the
language in Scott clearly limits the conclusive presumption to
17
With respect to sample 810059, Dookhan signed the drug
certificate on the line labeled "Assistant Analysts," certifying
that the sample contained cocaine.
18
those cases where Dookhan was the primary or confirmatory
chemist. Accordingly, he declined to expand the scope of Scott
such that the defendant would be entitled to a conclusive
presumption that egregious government misconduct occurred with
respect to the analyses of samples 779099, 779110, and 779125.
The special magistrate then considered whether, absent the
conclusive presumption, the defendant nonetheless had
demonstrated that Dookhan, while acting as the setup operator,
had engaged in "particularly pernicious" misconduct, and that
such misconduct was material to the defendant's decision to
plead guilty. See Scott, 467 Mass. at 346-348, 354-355, citing
Ferrara, 456 F.3d at 290, 291. The special magistrate found
that there was no evidence that Dookhan had acted with
purposeful malfeasance while serving as the setup operator for
samples 779099, 779110, and 779125. To the contrary, he
continued, the evidence indicated that Dookhan had performed her
duties as would have been expected. That being the case, the
special magistrate concluded that the defendant had failed to
satisfy his burden of proof with respect to the first prong of
the Ferrara-Scott framework. Turning to the second prong of the
framework, the special magistrate also concluded that the
defendant had not demonstrated a reasonable probability that he
would not have pleaded guilty had he known of Dookhan's
misconduct. He found that the factual bases for the defendant's
19
guilty pleas were not substantially weakened by Dookhan's
purported misconduct in this case, and that the defendant's
sentences after pleading guilty were considerably more favorable
than the sentences that could have been imposed if he had
proceeded to trial.
Finally, with respect to sample 810059, the special
magistrate stated that because Dookhan was the confirmatory
chemist, the defendant was entitled to the conclusive
presumption articulated in Scott that egregious government
misconduct occurred with respect to the analysis of this
particular sample. However, he concluded that, for essentially
the same reasons he already had articulated, the defendant had
failed to satisfy his burden of proof under the second prong of
the Ferrara-Scott framework. Accordingly, the special
magistrate denied the defendant's motion to withdraw his guilty
pleas.
5. Standard of review. A motion to withdraw a guilty plea
is treated as a motion for a new trial pursuant to Mass. R.
Crim. P. 30 (b). Commonwealth v. Furr, 454 Mass. 101, 106
(2009). "Under Mass. R. Crim. P. 30 (b), a judge may grant a
motion for a new trial any time it appears that justice may not
have been done. A motion for a new trial is thus committed to
the sound discretion of the judge." Scott, 467 Mass. at 344.
We review the allowance or denial of a motion to withdraw a
20
guilty plea to determine whether the judge abused that
discretion or committed a significant error of law. Id. We
accept the judge's findings of fact if they are supported by the
evidence because the judge who heard the witnesses testify is
the "final arbiter [on] matters of credibility." Id., quoting
Commonwealth v. Schand, 420 Mass. 783, 787 (1995).
6. Egregious misconduct by the government in the
defendant's case. The defendant first contends that, although
Dookhan did not sign the drug certificates pertaining to samples
779099, 779110, and 779125, she nonetheless effectively acted as
a confirmatory chemist for those samples because she tuned the
GC-MS machine, verified that it was functioning properly, placed
the vials on the carousel, and initiated the analysis process.
The defendant points out that Dookhan's admitted misconduct
while serving as a confirmatory chemist included the failure to
verify the proper functioning of a GC-MS machine and the
falsification of reports to hide her wrongdoing. See Scott, 467
Mass. at 339-341, 353 n.9. In light of this malfeasance, the
defendant argues that he was entitled to the conclusive
presumption articulated in Scott, 467 Mass. at 352, that
egregious government misconduct occurred in his case. We
disagree.
We stated in Scott, supra at 339-341, 353 n.9, that Dookhan
appeared to have engaged in misconduct during the confirmatory
21
phase of the analysis process at the Hinton drug lab. However,
the present case is not one in which Dookhan was performing the
dual roles of setup operator and confirmatory chemist with
respect to samples 779099, 779110, and 779125. Contrary to the
defendant's assertions, Dookhan's work as the setup operator did
not involve the "testing" of drugs. Testing was performed first
by the primary chemist (Frasca), who completed bench tests and
made a preliminary identification of each sample based on her
subjective interpretation of the results, and then by the GC-MS
machine, which produced documentation that was reviewed and
interpreted by the confirmatory chemist (Lawler). Notably,
Dookhan did not prepare the aliquots for analysis by the GC-MS
machine because that task was the responsibility of Frasca.
Dookhan's role was simply to receive the aliquots, prepare the
GC-MS machine, and initiate the analysis process. Once the
analysis process had been completed, Lawler checked the GC-MS
machine, verified the proper placement of the vials on the
carousel, and reviewed the documentation. If there had been any
inconsistency between the identification made by Frasca and that
made by Lawler, the samples would have been returned to Frasca
for further analysis or for the preparation of new aliquots. In
the opinion of Lawler, whom the special magistrate found to be
credible, tampering with the GC-MS machine would have been
detectable.
22
Significantly, the office of the Inspector General found no
evidence that Dookhan tampered with drug samples that were
assigned to other chemists, such as Frasca and Lawler in the
present case. When Dookhan tampered with her own samples, it
appeared that she was motivated, in large part, by her desire to
increase her apparent productivity. See Scott, 467 Mass. at
341, 352. Given that there was no way to increase or accelerate
the analysis process on a GC-MS machine, Dookhan would have had
no reason to tinker with its operation while serving as the
setup operator. Any such tinkering would not have enhanced her
productivity. Indeed, based on its comprehensive investigation
of the Hinton drug lab from 2002 to 2012, the office of the
Inspector General did not suggest treating with increased
suspicion those cases where Dookhan served as the setup
operator. We conclude that the special magistrate did not abuse
his discretion or otherwise err in determining that the
defendant was not entitled to the conclusive presumption
articulated in Scott, supra at 352, that egregious government
misconduct occurred in his case with respect to the analyses of
samples 779099, 779110, and 779125. 18
18
Given that Dookhan signed the drug certificate for sample
810059 on the line labeled "Assistant Analysts," the special
magistrate properly concluded that the defendant was entitled to
the conclusive presumption that egregious government misconduct
occurred with respect to the analysis of this particular sample.
23
Absent this conclusive presumption, a defendant who moves
to withdraw his guilty pleas has the evidentiary burden of
establishing, as an initial matter, each element of the first
prong of the Ferrara-Scott framework. See Ferrara, 456 F.3d at
290; Scott, 467 Mass. at 346-354. Here, the defendant was
required to show that Dookhan engaged in "egregiously
impermissible conduct" in his case, and that such misconduct
preceded the entry of his guilty pleas. 19 Ferrara, supra. See
Scott, supra. Based on the report, the timing and the scope of
Dookhan's misconduct during the confirmatory phase of the
analysis process at the Hinton drug lab do not suggest that she
engaged in malfeasance with respect to samples 779099, 779110,
and 779125, which were analyzed in October, 2006.
First, the report found that around March, 2011, chemist
Kate Corbett reported to the supervisor of the GC-MS room that
Dookhan had forged her initials on a batch sheet, falsely
indicating that Corbett had been the operator of the GC-MS
machine for the particular run of samples indicated on the
sheet. Apart from the fact that this incident occurred nearly
four and one-half years after the defendant's samples were
analyzed, there was no evidence to suggest that Dookhan had
19
It is well established that Dookhan's work at the Hinton
drug lab, including her service as the setup operator for
samples 779099, 779110, and 779125, was conduct "by the
government." Scott, 467 Mass. at 348-350.
24
tampered with the actual operation of the GC-MS machine,
notwithstanding her forgery of Corbett's initials on the batch
sheet. Next, the report found that between May 10, 2011, and
May 14, 2011, Dookhan falsified four days of reports pertaining
to the quality control standard mix runs on the GC-MS machine.
See note 15, supra. Dookhan completed these reports as if the
GC-MS machine had performed satisfactorily, when it had not, and
then she signed the reports as the "quality control reviewer,"
thereby approving her own falsified test results. 20 After
discovering this misconduct, the office of the Inspector General
reviewed 3,930 quality control standard mix results from 2005 to
2012. It did not find any additional falsified reports or
evidence of other wrongdoing with respect to the quality control
standard mixes. Finally, the report found that in June, 2011,
Dookhan forged the initials of chemist Nicole Medina on a so-
called "tune report." During the course of its comprehensive
investigation, the OIG reviewed tune reports from 2009 to 2012.
It did not find any reports indicating that the GC-MS machines
were operating outside acceptable parameters. We conclude that
20
According to the report, the job of the "quality control
reviewer" was "to collect the quality control record from the
chemists and various areas of the lab, ensure that the chemists
had filled in the records, sign them, and present them" to the
"quality assurance reviewers." The signature of the "quality
control reviewer" documented that "the reviewer had looked at a
list of checkmarks on a completed form created by a chemist
indicating he or she had performed one of the necessary quality
control tasks."
25
the defendant did not establish that Dookhan engaged in
egregious misconduct while serving as the setup operator for
samples 779099, 779110, and 779125. Accordingly, the special
magistrate properly determined that the defendant could not
withdraw his guilty pleas where he failed to satisfy each
element of the first prong of the Ferrara-Scott framework.
As discussed, the analysis of a defendant's motion to
withdraw a guilty plea under Mass. R. Crim. P. 30 (b) in a case
involving the misconduct of Dookhan at the Hinton drug lab
proceeds under a two-prong framework. See Scott, 467 Mass. at
346-358, citing Ferrara, 456 F.3d at 290, 291. Given our
conclusion that the defendant here has failed to satisfy the
first prong of the framework with respect to the testing of
samples 779099, 779110, and 779125, we need not further consider
whether, under the second prong, the defendant demonstrated "a
reasonable probability that he would not have pleaded guilty had
he known of Dookhan's misconduct." Scott, supra at 355. See
Ferrara, supra at 290, 294. However, the second prong is
relevant with respect to sample 810059 because the drug
certificate pertaining to that one sample, stating that it
contained cocaine as defined in G. L. c. 94C, § 31, was signed
on the line labeled "Assistant Analysts" by Frasca and Dookhan.
As to that one sample, the defendant was deemed to have
satisfied each element of the first prong of the Ferrara-Scott
26
framework. See Scott, supra at 353-354. We therefore proceed
to consider the second prong as it relates to sample 810059. 21
7. Material influence on the defendant's decision to plead
guilty. Under the second prong of the Ferrara-Scott framework,
the defendant had the burden of particularizing "Dookhan's
misconduct to his decision to tender a guilty plea." See Scott,
467 Mass. at 354. That is to say, the defendant had to
demonstrate, based on a totality of the circumstances, "a
reasonable probability that he would not have pleaded guilty had
he known of Dookhan's misconduct." Id. at 355. In reliance on
Ferrara, 456 F.3d at 294, this court identified in Scott a
number of factors that could be relevant to a defendant's
showing under this second prong, including "(1) whether evidence
of the government misconduct could have detracted from the
factual basis used to support the guilty plea, (2) whether the
evidence could have been used to impeach a witness whose
credibility may have been outcome-determinative, (3) whether the
evidence was cumulative of other evidence already in the
defendant's possession, (4) whether the evidence would have
influenced counsel's recommendation as to whether to accept a
particular plea offer, and (5) whether the value of the evidence
was outweighed by the benefits of entering into the plea
21
Sample 810059 pertained to indictments charging
distribution of cocaine and violation of the controlled
substances laws in proximity to a school.
27
agreement." Scott, supra at 355-356. Additional factors for
consideration under the second prong might include, but are not
limited to, "whether the defendant was indicted on additional
charges," id. at 357, as well as "whether the defendant had a
substantial ground of defense that would have been pursued at
trial," id. at 356, and whether other special circumstances,
such as collateral immigration consequences arising from
conviction of a particular crime, were present. Id. at 356 &
n.13, citing Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011).
"Ultimately, a defendant's decision to tender a guilty plea
is a unique, individualized decision, and the relevant factors
and their relative weight will differ from one case to the
next." Scott, 467 Mass. at 356. We emphasized in Scott that
"the full context of the defendant's decision to enter a plea
agreement will dictate the assessment of his claim that
knowledge of Dookhan's misconduct would have influenced the
defendant's decision to plead guilty." Id. at 357. "Because a
multiplicity of factors may influence a defendant's decision to
enter a guilty plea, a court attempting to answer this question
must use a wide-angled lens." Ferrara, 456 F.3d at 294.
The defendant contends that the special magistrate erred in
concluding that knowledge of Dookhan's misconduct likely would
not have been material to the defendant's decision to plead
guilty. The defendant points out that he did not have a prior
28
criminal record, and he contends that he pleaded guilty only
because he believed that he had no viable trial strategy in
light of the Commonwealth's presentation of the drug
certificates. The defendant emphasizes that there was no plea
bargain in this case because not only did the Commonwealth
refuse to dismiss any of the charges against him, but the
prosecutor also urged the judge to impose an aggregate sentence
of from four to six years in State prison, rather than three
years in a house of correction, as the defendant requested. In
the defendant's view, he did not receive a substantial benefit
from pleading guilty. Had he known of Dookhan's malfeasance,
the defendant continues, he would have had "nothing to lose but
everything to gain" by proceeding to trial and challenging the
reliability of her work at the Hinton drug lab. We disagree.
Apart from the drug certificates, the evidence against the
defendant was strong. Stanton conducted five controlled buys,
each of which involved a hand-to-hand exchange of cash for two
"twenty" bags or one "forty" bag of an off-white rock-like
substance. Not only could a rational jury have inferred that
Stanton received what he had requested from the defendant, but
field tests conducted on the substances indicated the
presumptive presence of cocaine. 22 See Commonwealth v. Marte, 84
22
Although it does not appear that field tests were
performed on the substances recovered from the defendant when he
29
Mass. App. Ct. 136, 139-142 (2013) (presumptively positive field
tests having requisite foundation, together with other
corroborative circumstantial evidence, may carry persuasive
weight in identifying substances). See also Commonwealth v.
Dawson, 399 Mass. 465, 467 (1987) ("Proof that a substance is a
particular drug need not be made by chemical analysis and may be
made by circumstantial evidence"). Notwithstanding the fact
that all but one of the drug certificates were signed by
chemists other than Dookhan, evidence of her misconduct would
not have detracted from the factual bases supporting the
defendant's guilty pleas. Furthermore, apart from Dookhan's
malfeasance, there is no evidence that the defendant had a
substantial ground of defense that he would have pursued at
trial.
Contrary to the defendant's argument, he did receive a
significant benefit from pleading guilty instead of proceeding
to trial. With respect to six counts of distribution of cocaine
and possession of cocaine with intent to distribute, the judge
sentenced the defendant to concurrent terms of one year in a
house of correction. Had the defendant gone to trial, he could
was taken into custody on August 22, 2006, the drug certificates
pertaining to those substances, stating that they contained
cocaine, were signed on the line labeled "Assistant Analysts" by
Kate Corbett and Della Saunders, and there is no evidence that
Dookhan was the setup operator for the analyses of those
substances.
30
have been sentenced to from two and one-half years to ten years
in State prison, or from one year to two and one-half years in a
house of correction, on each count. G. L. c. 94C, § 32A (c), as
amended through St. 1991, c. 391. With respect to three counts
of violating the controlled substances laws in proximity to a
school or park, the judge sentenced the defendant to concurrent
terms of two years in a house of correction, to commence on and
after the completion of his sentences for the underlying drug
crimes. Had the defendant gone to trial, he could have been
sentenced to from two and one-half years to fifteen years in
State prison, or from two years to two and one-half years in a
house of correction, from and after his sentences on the
underlying drug crimes, on each count. G. L. c. 94C, § 32J, as
amended through St. 1998, c. 194, § 146. In addition, with
respect to the marijuana charge, which was placed on file, the
defendant could have been sentenced to six months in a house of
correction. G. L. c. 94C, § 34, as amended through St. 1996,
c. 271, § 1. Regardless of the fact that the defendant did not
have a prior criminal record, his decision to plead guilty
resulted in the imposition of a far more lenient aggregate
sentence than the judge could have imposed following the
defendant's likely convictions after trial, given the strength
of the Commonwealth's evidence. See Commonwealth v. Mills, 436
Mass. 387, 400 n.9 (2002) (judge may consider defendant's
31
willingness to admit guilt as factor in more lenient
sentencing). We conclude that the special magistrate did not
abuse his discretion or otherwise err in determining that the
defendant had failed to satisfy his burden of demonstrating a
reasonable probability that he would not have pleaded guilty had
he known of Dookhan's misconduct.
8. Conclusion. The order denying the defendant's motion
to withdraw his guilty pleas is affirmed.
So ordered.