Privileged and CorgitlenfialAttomey Work Prodact: Do Not Disclose to hind-sParties DIVISION BUREAU PROSECUTION MEMOI - APPROVALS: A. DEAN MAzio DIVISION DATE: AAG: John Verner DATE: Anne Kaczmatek SonjaFatak . DEFENSE ATTORNEY: Elaine Pourinski FILE NO.: AGENCY: MSP - Hampshire LEAD INVESTIGATOR: MSP Sgt. Joseph Ballou g) . ?g . A CHARGES: 1 Ch. 268 Tampering with Evidence (4 rwj?x Ch. 940 ?34: Possession of Class (cocaine) . 33 - Ch: 94C ?37: Theft of Controlled Substances from Disoensarg 1 All infatuation contained inthis memorandum was prepared in aid of litigation. This memmandnm consists of the thoughts and impressions of Assistant Attorney General Anne Kaczmarek; and no pa1t of this memorandum was reviewed or adopted by any witness in this case. The contents of this memorandum are intended solely for use within the Massachusetts Of?ce of the Attorney General. APPLICABLE SENTENCE d; FINE RANGE: Ch. 263 Tampering with Evidence - 10 years max Ch. 940 ?34: Possession of Class {cocainel 1 year HOC Ch. 940 ?371 Theft of Controlled Substances from Dispensary 10 years max FACTS On January 17, 2013 evidence of?cer, Sharon Salem, discovered that i l? from Spring?eld PD were missing ?om the Amherst Drug Lab?s evidence safe. When the submitting agency brings drugs to the lab to be tested, all of the submitted samples from that agency on that date are organized into a batch. The ding samples are not retained to the submitting agency until all of the samples in the batch are tested. Salem testi?ed in the that she nonnally collects all the drug certi?catesfora batch, double checks them with the drug samples, and then assembles the batch to be picked up. Ms. Salem?s duties as evidence officer require her to assemble all Eg samples which have beenwm order to return them to the submitting agency. The missing samples were from two different Springjeld eases, nmnbers A12-047 91 ?and Al 12-04791 had been assigned to chemist, Sonja Farah. Fatal: had tested the Emile on Jamiar?r 4, 20l3. Salem had acerti?eate of analysis for the sample but no drugs, When Salem realized that was missing, she looked through the rest of'the Springi?ield batch to see if it had gotten misplaced. At that time, she discovered that 1331124047 93 was also - missing. ?l?his sample was also assigned to Farak for testing but the certi?cate of analysis had not been generated yet. Salem lo oked through other batches in the evidence safe before going home . A. 2de) for the day. 1' The next morning, Salem arrived at work around 8:30 and told her supervisor, Jim Hanchett, about the missing samples. Farah had been at the lab earlier in the morning but had letjt around 8am to go to Spring?eld District Court to testify in a trial. Also present at the lab visas the other chemist, Rebecca Pontes?. Hanchett and Salem began looking in other places in the lab, including the temporary safe where Pontes and Earak would store the samples they were still processing. Hanchett also checked the massIspec data to con?rm that Farak had completed the analyses of both of the missing samples found that Farak, in fact, had tested both samples /md they were bothpositive for coming ?i?w is gut? ti; (3 WM Hanchett ?nally moved?to Farak? workstation to 10 ok for the samples. As he pulled open the ?rst cabinet, Hanchett discovered a white plastic bin with a plastic bag of cocaine, chunks of Waxy-like substance in a saucer, and white chunks in another saucer. Also in the bin was a pestle and drug paraphernalia.2 Hanchett continued to look through Farak?s workstation for the missing samples. Hanchett pulled out a manila envelope from her workstation and found the packaging for the two missing samples. :Tliei sample?s? We?re properly-labeledtyith the A appropriate sample number, the heatysealed packaging?had been sliced open and the contents the bagglo oked strange. . While visually inspecting the bags, Hanehett noted that sainpl?e' 1/3123? 94791 sunshade bravo different substances While margins did not . f. appear to he cocaine. at all. I Hanchett called Maj or Connolly of the State Police to alert him of the problem and the Amherst drug lab was immadiately shut doyvn. WhenMajcr Connolly and his team arrived at the lab, Hanchett was instructed to perform a prelimhlaiy drug analysis on the two drug samples 2 Two crack pipes were found in Farak?s workstation and, while it is not completely abnormal for crack pip es to be in the lab, they are usually secured as evidence for a case. a . '3 . a ?nd plastic bin. Hanchett performed the test on the ibis Bar-spite" ear microscopically to be cocaine.3 Hanchett performed a and the baggie of cocaine found in tie . substances. The plastic baggie did app Earak?sri?et weight. Mien-he analyzed 2 r} 5K k?e??h #compared his results to Farak?s results and they were two different substances. yd? . The state police also found an empty K: - gas.) complete analysis of samples 91 and He testified in the grand jur that he .. Farak?s anal sis did not contain an si cant and was cocaine in free base form. 3? 1 ?a?e?ett'ahalj?rzed' the counterfeit?lo 01(51ng portior'i- arms-047.91; He failed that it was not cocaineand was unable to identify the substance. The sainple Wasal's?o n?sls?i?gtwo. 0479.3, he found that it was not cocaine either. at?) a, The sample number printed on the K~pack ba . an testing. The sample had been described as being we - upected to be crack cocaine and had a gross weight of 13.6 grams .4 There is no evidence that Farah had begun to test the sample. The empty K~pack bag was sent to Sudbury for analysis and the residue tested positive for crack ?rst)? - BS While conducting an an 1t the evidence sage to eterrnine if mor missing, it was discovered that sample nurn we .- also missing. This sample had i just recently been submitted by the Holyoke Pole Depnt. on January 11, 2013. The sample had been suspected crack cocaine and had a gross weight of 28.5 grams. The sample bag for . was founrarnn?gpyz?i?n Farak?s workstation. It appears that Farah took the sample out of a larger Holyoke batch that had been submitted only a week prior to the closure of the lab. 3 The Sudbury lab also tested the sample and con?rmed that the 11.7 3 grams. 4Gross weight includes the crack plastic bag contained crack cocaine and weighed cocaine and its original packaging. Um 4 has 36 ids; an ?ns Wm c; PE. awaitede {Leif}: Investigators tracked down Farak at the Spring?eld District Court. She was waiting outside of ?a courtroom to testify. She?was taken to the district attorney?s of?ce and interviewed in one of their conference rooms. During the interview, Earak stated?that there should not be any controlled substances at'her workstation. After several more questions regarding whether investigators would ?nd unsecured controlled substances at her workstation, Farak asked for her MOSES representative to be present. Q34 - ?Sign Erie (?are t? a at . Investigators located Farak?s vehicle5 in the parking lot and secured it, pending a search Q6 Q?i? (pastas in: 3?19 it (less avki?? Vela this, la, w) warrant. A visual inspection of the vehicle revealed a very messy interior With many manila envelopes from the Amherst lab strewn about. These are the same manila envelopes which are used to hold drug samples. A search warrant of the car was authorized and conducted in the early morning hours of January 18, 2013. Items of note recovered ?'om the vehicle were manila envelopes with sample numbers?; news article involving an indicted chemist out in San Francisco; and, mental health Worksheets describing how Farah-feels when" she Uses illegal substances and the temptation of Working with ??nge?ful samples?.7 Recovered from the driver?s door map pocket was a ?works? kit: a large plastic bag which contained a plastic bag of crack cocaine, a smaller crack rock wrapped in weigh papers, a lab spatula, copper mesh, and a bag of burnt copper mesh? 5 Farak is the registered owner of a 2002 black Volkswagen Gulf. _5 All the corresponding samples have been sent to Sudbury to be re?tested. At this time, it is believed that had discovery that she had prepared for court in the envelopes, and that these samples are unrelated to the tampg?gd samples. The samples are older and have been long sent back to the submitting agencies. They are being re?tested a precaution. ese worksheets were not submitted to the grand jury out of an abundance of caution in order to protect possibly privileged information. Case law suggests, however, that the paperwork is not privileged. 8 Weigh paper is speci?c paper used in the drug laboratories to hold drugs while they are being analyzed in order to avoid contamination. 9 Timothy Woods ?om the Sudbuiy lab testi?ed that he copper inesh is used as a ?lter when smoking crack cocaine so that the crack embers are not inhaled. The burnt copper mesh was ?eld tested on the incident date and was The State Police also found a green tote bag shoved in the back of Farak?s workstation in a crawl space. After securing a search warrant for that bag, the bag was searched on January 25, 2013. The items the tote bag appeared to be the items that Farak used to make counterfeit crack cocaine and possibly to add weight to tanipered samples. There 'was a bottle of belting clay, lab dishes, 321a, baking powder, Dove soap and a razor blade, soy wax candle, oven i I a plastic bag with cocaine10 residue, a plastic bag containing a to of crack cocaine, rid 9 K: . pack11 bags that were, sliced open?. Chemist Tim Woods had an opportunity to review the items taken from the tote bag hwy while he was at the grand jury. Some of the items submitted to the Sudbury drug lab were 3:0 unidenti?able until Woods was able to compare-those items with what was found the tote 1.665 bag. For instance, sample A12-04973 which no longer tested positive for cocaine, is believed to be oven baked clay based'upon similar consistency. A12~0479l Was a different consistency and . we has? evidence tampering, Farak?s wife was subpoenaed into the grand jur 13 J. ikki Michelle Lee has 1; believed to be that of the soy candle as both substances are?malleable and waxllilre. In an attempt to narrow the time frame ofFarah?s substance abuse and corresponding signi?cant emotional and physical problems. She brought in documentation from her doctor ?Jr . id stating that she is bipolar, has an anxiety disorder, and suffers hem severe migraines. As a result of a head injuryJLee has limited short term memory. Aware of her limitations as a witness, Lee still testi?ed in the grand jury in order to ?lo ck in? her testimony. She testi?ed that a believed at that time to be heroin. Mr. Woods also testi?ed that the burnt copper may react with the ?eld test and that the carbon present would cause a ?false? positive for heroin. Farah was charged in district court with ?3 ossession of class A: heroin. - Egg; 0 All of the cocaine recovered in Farak?s belongings is in ?ree base (crack) form. a s, A K?pack bags are used at the Amherst lab to seal the drug samples after they are tested. 12 These were K?paclc bags did not have sample numbers assigned to them. E3 Farah and Lee were married in 2005 in Massachusetts. Lee provided the Ne- Mega} (MN. ias?? L10 . R: leash he as (see mew leis ?lo ?9 . trek 3 was. . she had only seen Farak use cocaine once in 2000. en asked if Farak?s personality had changed recently, her wife stated that Farak seemed to leave the house more often when they - argued. Lee believed it was so Farak could ?cool? down '?om the ?ght but, inJhindsight, wondered if something else could be happening: She stated that she never. observed any drugs in the house and that Farak had very few ?iends. Lee rarely drove in Farak?s vehicle, preferring to drive in her own truck because of back problems. on the night that Farak-was arrested, Farak called her wife and stated ?I?m getting into trouble. It?s better that you are not here?, referring to the fact that Lee was at her parent?s home in New York state. The Amherst lab had only four employees Because of this small number and increased . court time, all employees had access to the dru safe. The safe could he opened by either a card scanner or a key. Farah used a key so there is no digital record of when she accessed the safe. Jim Hanchett was the sup ervisor; Sharon Salem was the evidence of?cer; and, Reb ecca Pontes. and Farah were each Chemist ll. Hanchett testi?ed in the grand jury that Farak?s productivity had declined in the last 4-5?months prior to her arrest. In fact, around-September or October 2012, Hanchett approached Farak to discuss the fact that her analysis numbers had declined 96; 0 half. Hanchett testi?ed that Farak explained she had a lot of court time but Hanchett did not \{?vfg believe it. He asked her to?start focusing on testing. - He also noticed that Farak was missing a gal frequently from the lab~ she would be gone for 15 minutes at a time. At ?rst I-Ianohett believed {36$ 2i a she was simply using the restroom; however, he testi?ed to one incident that contradicted this get; theory. He recalled that a prosecutor called the lab looking for Farak and she was not in the lab. Hanchett sent Salem to the ladies? room. Salem checked two different bathrooms on different ?oors but Farak was not there. A?er that incident, Hanchett believed that Farah was talo'ng walks outside eyen though he did not confront her about this. . CHARGING Ch. .268 Tampering with Eviden_,ce (10 year max) . Ch. 94C ?34: Possession of Class (cocaine) 1 year HOC . Ch. 940 ?37z Theft of Controlled Substances ??om Dispensarj 10 years max Ch. 268 ?13Ez Lampering with Eviden?; In order to prove the defendant of this offense, must prove two elements beyond a reasonable doubt: First Whoever alters, destroys, mutilates, or conceals a record, document, or other Element: object, or attempts to do so; with the intent to impair the record, document or obj ect's integrity or availability for use in an of?cial pro seeding, whether or not the proceeding is pending at that? time. . Second Element: 1 . $9 For purposes of this statute it is-not necessary to prove that the evidence would be admissible at trial ori?ce ?'om privilege. For purposes of this havestigation an o?icial 911} proceeding is either a proceeding in court or a grand jury. In order to prove the elements of this indictment the Commonwealth will present the circumstantial evidence of Farak?s destruction of the four samples: A12?0479l 93; Alli-04973; and A13-00156. First, we will present the mass/spec data that was generated ?'orn Farak?s analyses of and?Al?2-04793 and ?mu? WW1 hww?? ?inf a} time seal-M. 5 compare that to the Sudbury analyses. The comparisonwill show that the samples were no longer the same chemical composition and tha Farak must have exchangedcounterfei substances for the crack cocaine. Next the evidence of the clay, wax, and soap recovered with from the workstation supports the inference that Farak stole the crack cocaine from the sample and exchanged it with the counterfeit material. For the two remaining samples and A13-00156, the Commonwealth willpresent evidence ?om the submitting agency regarding the compositioii of the sample when it was?rst submitted to?the lab as well as the description of the gross weight when thesamples were received in the lab. With the samples gone or destroyed, and the empty bags in Farak?s possession, the inference that Farak used the cocaine for personal use, coupled with all the other evidence, is strongEnigma. G.L. c.'94C 34: Possession of Controlled Substances - . . In order to substantiate the possession charges against the defendant, the Comonwealth must prove the following;~ l. The drug involved was a Class controlled substance; 2. The defendant had possession or control of the controlled substance; . . . 3y:- . We 3. The defendant possessed the substance knowingly or intentionally. par? . The Commonweal present evidence that Farak had in her possession crack co caines workstatio . During her brief interview with State Police, Farak stated that there should not be control substances at her workstation. Her statement . acknowledges that the plastic bag of unmarked crack cocaine and a cocaine ?rock? wrapped in weigh pap er is against lab protocol so that substantially undercuts the argument th he cocaine was present for analysis reasons. The plastic bag in her desk had a total weight During the?execution of the search warrant for Farak?s vehicle, a large plastic bag . containing a plastic bag of crack cocaine and drug paraphernalia was recovered. Farah was seen sitting in the drivers? seat while the vehicle tvas parked at the courthouse anhe cocaine was found in the drivers? side map pocket. The plastic bag of cocaine Wei ed 5.6 a a and there was also a separate crack rock wrapped in weigh paper. Additionally, spatula, cooper mesh, and burnt copper niesh in the bag. All of the crack cocaine recovered during the investigation totaled 17.63 grams, just shy of traf?cking weight. Based on all of the evidence recovered thus far, there is no reason to believe that Farak is selling, distributing, or sharing the cocaine with anyone else. Although the total amth missing and recovered might suggest a ?possession with intent? indictment, there are no indicia of distribution to support this charge. Also, Farak?s admissions on her ?emotional worksheets"ti:ecovered from her car detail her struggle with substance abuse. Ch. 94C ?371 Theft of Controlled Substances from Dispensary: i ?In order to- substantiate'the possession charges against the defendant, the Commonwealth must prove the following: l. Whoever steals a controlled substance; From a registered manufacturer, wholesale druggist, pharmacy or other person authorized to dispense or possess any controlled substance. This charge is often associated with narcotics stolen ??om pharmacies; there are no cases on point involving drug depositories in the Commonwealth; To prove this indictment the Commonwealth must Show that-the defendant took, with the intent to permanently deprive, the crack cocaine from the drug lab. The drug lab is authorized by the state to have possession of 10 the narcotics while the drugs are being analyzed under MG 940 and the statute is implemented by the State. Police by General Order lN'V?l 1_?Controlled Substance? Storage and Handling?. It is clear that the forensic drug labs have the authority to possess the narcotics for a. vii-k8 analysis purposes. However, chemists are not allowed to transport the narcotics outside of the ab; a member of law enforcement must transport the narcotics to and from the lab and court. $333 This policy reinforces the Commonwealth?s argument that the authority of the lab to possess the . narcotics is limited to testing and storage. i The evidence presented would show that Farak, in her duties as a chemist, had access to all of the drugs in the lab. With regard to the four compromised drug samples, we can prove she took the crack cocaine that was submitted to the lab. For samples A12-04791 and we have Farak?s analysis for both samples, and can contrast the re?test of those samples to prove she removed the crack cocaine and added counterfeit substances. Both sample bags were found . sliced open in her workstation. For samples and the Commonwealth would showr that the bags were. submitted with suSpected crack cocaine and the bags were found sliced open and empty in her work areas. An inference can be made based on the totality of the . circumstances. Fifi QM 06 13w raf?es \Xt?f Raises mumnot foresee any suppression issues. The searchwarrant for the defendant?s motor . . vehicle was based up on the facts that were known at the lab ?regardhig the four tampered samples i er car. Numerous manila envelopes were observed scattered about the interior aho re same type of manila envelopes used at the lab to hold drug samples. Additionally, Farak was seen in her vehicle shortly before she was interviewed by the police and she was the last occupant seen in the motor vehicle. This fact eliminates the argument that the drugs were in her car without her knowledge. The second search warrant for the tote bag recovered at her workstation should also be upheld. That af?davit set forth probable cause based - on the evidence found at her workstation and from her car. Farak?s interview prior to arrest was non-custodial. She was asked to go to a Conference room at the district attorney?s of?ce. After only several minutes of questioning regarding lab protocol, Farak asked for the interview to [stop and requested her MOSES representative. Farak was allowed to end the interview, which was recorded, and she was driven home. The most signi?cant issue that is outstanding is the scope of Farak?s drug abuse. We are - charging her with the tampering of the four known cases but there is likely more. I believe that we should indi the?lmown cases now in order to remove the. . revie of all crack cocaine cases from ?vm were crack cocainesubmissions in that 6 month time frame, 86 of those samples are still at i the Amherst lab, and 16 have been analyzed. Based upon her? ?writings? and the samples we know were tampered with, limiting inquiry to crack cocaine cases is reasonable. :5th This case is unlike the Dookhan case in many ways. Most signi?cantly, there was not a breakdown of quality control and allowed access to 51%? 20/ drugs as a function of the small amount of employees. When her productivity drastically frag-r? ?1 aha-5:. changed, her sup erviscr addressed the issue?. I believe that the impact of Farak?ls malfeasance is most likely limited to drug submissions of crack cocaine, and the tainted samples can be easily identi?ed by re~testing. We are also hoping that the defendant, once indicted, will detail how long she has been abusing drugs and how many cases are affected. Farah would expect some consideration in sentencing for that information . 12 13