COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT CRIMINAL ACTTON NO. 2012-0033 HAMPDEN, ss. HA SQUNTY COMMONWEALTH as a rig in. t3: t3 {1:3 L3 RT 13: a an ROLANDO PENATE whit KW ifutat?wiz?: Wt! ?be MEMORANDUM or DECTSEON AND ORDER ONQLERK 0? ?3 MOTION TO DISMISS COUNTS 1-10 AND 13 The defendant, Rolando Penate (?Penate?), is charged with multiple counts of possession of cocaine and heroin with intent to distribute, and related school zone and ?rearms offenses. Before me now is Penate?s motion to dismiss all of the controlled substance offenses based on egregious government misconduct. Speci?cally, he argues that the misconduct of chemist Sonja Farak (?Farak?), who tested some of the substances seized in this casein December, 2011 and - January 2012, has caused a substantial threat of prejudice to him such that his right to a fair trial has been irreparably harmed. On July 23, 2013, this court, Rup i, ordered an evidentiary hearing on the following issues: (1) Whether Farak engaged in egregious misconduct at the Amherst Drug Laboratory (?Amerst Lab?) from November 2011 to January 2012, when the - Amherst Lab had custody and control of the substances related to Penate?s case; (2) if such misconduct has substantially prejudiced the defendant or irreparably harmed his right to a fair trial; and (3) if ?such misconduct was intentional such that dismissal is appropriate. In light of the fact that I was conducting an evidentiary hearing on the timing and scope of Farak?s alleged misconduct in connection with several motions for new trials in other cases, the parties agreed evidence taken in those cases (in which Penate?s counsel was a participant) would satisfy Judge ft Rup?s order that an evidence be taken on Penate?s claims. I concluded those hearings on October 23, 2013. For the reasons that follow, the Motion to Dismiss is DENIED. FINDINGS OF FACT 1. The Evidentiary Hearing Regarding the Amherst Lab On September 9, 2013, October 7 and 23, 2013, I conducted an evidentiary hearing on: (1) the timing and scope of Farak?s alleged criminal conduct; (2) the timing and scope of the conduct underlying the negative ?ndings in the October 10, 2012, Quality Assurance Audit at the Amherst lab; and (3) how the alleged criminal conduct and audit ?ndings might relate to the testing performed in ?drug la cases. As to those areas, I ?nd the following credible, relevant facts: a. The Amherst Lab The Amherst Lab began operation in 1987. Its primary function was the testing of suspected controlled substances for law enforcement agencies involved. in the prosecution of criminal cases in western Massachusetts. As of January of 2013, there were four employees at the Amherst Lab, supervisor James Hanchett (?Hanchett?), evidence of?cer Sharon Salem (?Salem?), chemist Rebecca Pontes (?Ponies?) and chemist Farak. Suspected controlled substances seized during criminal investigations were hand delivered to the Amherst Lab by the investigating agencies in sealed packaging, logged into evidence, given a laboratory number and placed in the evidence safe by the evidence of?cer. Samples remained there until testing. All four Amherst Lab employees had access to the evidence safe by electronic cards and keys. Although employees were supposed to use the electronic cards, they often used keys. No record was maintained of entry to the safe when keys were used. In the normal course, at the time of testing, the chemist removed the sample from the evidence safe, transported it to the Chemist?s work station, cut open the sealed evidence bag and conducted chemical testing of the sample. The chemists had short term storage lockers at their work stations where evidence could be kept while they examined it. Evidence should not have been stored overnight in these short term storage lockers. After testing was complete, the sample and its package were placed in a larger plastic bag known as a ?K-pac and rescaled. The chemist prepared a written certi?cation of the test results and the submitting agency was noti?ed testing was complete. The submitting agency then retrieved the sample and certi?cation from the Amherst Lab and maintained custody of the sample inside the K-pack until it was needed for trial. When chemists were summoned to testify regarding their test results, they carried the Amherst Lab ?le with them. The lab ?le contained documentary evidence related to the testing and chain of custody, but did not contain any of the controlled substance. For transportation to court, the chemists placed the lab file inside a manila envelope and wrote the lab number on the outside of the envelope. These outer envelopes were often discarded after the case was complete. The controlled substance was transported to court separately by the law enforcement agency. 13. The October 2012 Massachusetts State Police Quality Assurance Audit On July 1, 2012, administration of the Amherst Lab was taken over by the Massachusetts State Police Prior to that date the Amherst Lab was administered by the Massachusetts Department of Public Health. In October 2012, the MSP conducted a Quality Assurance Audit of the Amherst Lab. The audit was a matter of routine in that a quality assurance audit is conducted at all MSP laboratories each year. Part of the purpose of the October audit was to determine what steps the Amherst Lab would have to take to meet the accreditation standards required by the MSP. The Amherst Lab had not been accredited since it began operation in 1987. Laboratories frequently operate without accreditation. Indeed, all MSP laboratories operated without accreditation until 2001. The MSP audit team made certain negative ?ndings which were documented in the Annual Technical Audit Worksheet dated October 10, 2012. Exhibit 1. The negative ?ndings considered most immediate for accreditation purposes were the following: a Chain of custody of evidence stored in short?term overnight storage was not properly documented and evidence retained in short-term storage was not properly sealed. 9 Evidence seals were initialed, but not dated by the chemists. Variances between incoming weights of substances and weights at testing were not documented. 9 Inventory discrepancies were not veri?ed. In addition, the audit team reported negative ?ndings with respect to quality control of the drug testing performed at the Amherst Lab. So called ?reagents? were not regularly tested and known standards were not tested on a daily basis. The audit team recommended steps to remediate each of these problems. According to the audit report, as of October 10, 2012, personnel at the Amherst Lab had taken steps to address all of the negative ?ndings. Kathleen Morrison, a member of the Quality Assurance Audit Team and author of the report, testi?ed that the audit did not raise any question related to the reliability of the testing performed at the Amherst Laboratory. In contrast, the defendants called forensic chemistry consultant Heather Harris who opined that the negative audit ?ndings, while not calling into question the accuracy of individual tests, did raise questions regarding the general reliability of chemical tests performed at the Amherst Lab. I conclude that while the negative ?ndings in the October 2012 Quality Assurance Audit re?ect a lax atmosphere in which theft of controlled substances could go undetected for a period of time, the audit did not reveal any unreliable testing. 2. The Criminal Investigation of Sonja Farak a. Missing Drug Samples On January 17, 2013, Salem, the evidence of?cer at the Amherst Lab, was attempting to match drug test certi?cations with the corresponding drug samples and realized that she was missing samples in two cases. The missing samples were in cases A12-04791 and A12-04793, both of which had been submitted to the Amherst Lab by the Spring?eld Police Department on November14, 2012. Records reflected that Farak had completed testing on those samples earlier in January 2013, and con?rmed that the substances were cocaine. Salem?s search of the evidence locker and temporary evidence storage safes was unsuccessful. On January 18, 2013, Salem reported the missing evidence to her supervisor, Hanchett. Hanchett then searched Farak? workstation and located a white plastic tub inside an unlocked cabinet. The white tub contained what appeared to be controlled substances and related paraphernalia, speci?cally: (1) chunks of a yellowish wax-like substance on a saucer; (2) chunks of what appeared to be plaster of Paris on a saucer; (3) a plastic bag containing apparent cocaine; and (4) a broken crack pipe. The substance which appeared to be cocaine ?eld tested positive for the presence of cocaine and weighed approximately 12 grams. The presence of these items in an unsecure area of Farak?s workstation was a violation of protocol at the Amherst Lab. Hanchett continued his search of Farak?s workstation and located an envelope containing packaging for the missing cases, A12-04791 and A12-04793. The cases were properly packaged and labeled except that the packages were cut open. Case number contained two different kinds of white chunks, one of which did not appear to be cocaine. Hanchett tested that substance for the presence of cocaine. The test was negative. Records of Farak?s test of the substance show that she certi?ed that it tested positive for cocaine on January 4, 2013. Hanchett also tested the substance in the package labeled A12-04793 and found that it tested negative for cocaine, contrary to Farak?s earlier test results. At that point Hanchett and Salem stopped their search and contacted MSP. MSP responded, conducted a further search and located two additional case envelopes in a temporary locker used by Farak. The envelope, labeled was supposed to contain 13.6 grams of suspected cocaine. The second envelope, labeled Al3-00156, was supposed to contain 28.5 grams of suspected crack cocaine. Neither envelope contained the suspected controlled substances and a search for those substances was unsuccessful. On January 19, 2013, Jeremy Miller (?Miller?) of MSP Forensic Services conducted an inventory of all drug evidence at the Amherst Lab. Only the four samples listed above were missing. However, over 100 samples were repackaged because of de?ciencies in the packaging. These were de?ciencies in packaging by the submitting agencies, not by Amherst Lab personnel. A similar inventory was conducted approximately four months earlier by Miller. No missing samples were noted at that time. Hanchett and Pontes observed a change in Farak?s behavior in the months before her arrest. Beginning in September of 2012, Pontes noticed that Farak was frequently absent from her work station during the workday without explanation. During that same time period, Hanchett observed a drop-off in Farak?s productivity, such that he spoke with her about it. E). Search of Farak?s Car That same day, MSP determined that Farak was at the Spring?eld Hall of Justice waiting to testify. Investigators approached her and Farak agreed to be interviewed. After a brief conversation, Farak asked to speak to her union representative and the interview ceased. She declined to consent to a search of her vehicle. Farak?s 2002 Volkswagen Golf, which she had driven to the Hall of Justice, was secured pending application for a search warrant. MSP Sergeant Joseph Ballou applied for and received a warrant authorizing a search of the 2002 Volkswagen Golf. The search was conducted on January 19, 2013, at the barracks in Northampton. In pertinent part, MSP seized the following items from the cluttered vehicle: (1) manila envelopes with case numbers written on them; (2) assorted laboratory paperwork; (3) plastic bag containing a white powdery substance; (4) plastic bag containing assorted pills; and (5) several copies of newspaper articles related to chemical accused of using or stealing controlled substances. Exhibit H. The white powder substance seized from a plastic bag located in the driver?s side door ?eld tested positive for cocaine. A brownish tar-like substance found in the same plastic bag field tested positive for heroin. One of the newspaper articles seized from her vehicle that was printed from a computer on September 20, 2011, contained a story about law enforcement officers illegally possessing steroids. The article contained a handwritten note stating ?thank god'l am not a law enforcement A second article printed on October 28, 2011, reports that a Pitts?eld pharmacist was sentenced to 3 years for stealing oxycontin pills from her workplace. The article refers to the pharmacist having replaced the oxycontin with other medications. A third article downloaded in December of 2011, refers to a former San Francisco police Department drug lab technician who stole cocaine from the drug laboratory. Some of the manila envelopes seized from Farak?s car bore hand written case numbers. One manila envelope was labeled Al 1?03020 to A1 1?03022 and contained lab paperwork. It also bore the name Dimitry Bogo. Another manila envelope contained an empty evidence bag and bore the numbers A08-02990 0289. A third manila envelope bore the number and contained multiple clear plastic bags, some of which were cut open. Another manila envelope with the number contained assorted lab paperwork. The ?rst three digits of the lab numbers refer to the year the lab number was created. Lab numbers A1 1?03020 to A11- 03022, 0289 and A10-04462 each had a line drawn through them on the outside of the manila envelope. Farak'was charged by criminal complaint with two counts of tampering with evidence, unlawful possession of cocaine and unlawful possession of heroin for conduct occurring on January 18, 2013. She was arrested at her residence on January 19, 2013. c. Search of the Tote Bag A nylon tote bag earlier seized from Farak?s work station was searched pursuant to a warrant on January 25, 2013. The search revealed a variety of substances that could be used to dilute or replace cocaine: a bar of soap together with a razor blade; two containers of baking soda; a one-pound container of soy candle wax offuwhite ?akes and an 8~ounce bar of even baked clay. There were other items commonly used in the drug trade: plastic lab dishes; a plastic bag containing a wax paper fold and fragments of copper wire. Finally, the bag contained several laboratory ?K-pack? lab evidence bags. One bore the initials presumably for Rebecca Pontes, another chemist at the Amherst Lab and one of Farak?s coworkers. Seven other Kupack bags had been cut open. Two of them bore Farak?s initials The various K?pack evidence bags bore dates spanning the time period from December 16, 2012, to January 6, 2013. 3. Retesting of Substances Previously Tested By Farak On June 15, 2012, the Westfield Police Department submitted suspected cocaine to the Amherst lab for testing in connection with a prosecution of Byron Stradford. Farak tested the substances on July 11, 2012. The substances tested positive for the presence of cocaine. After the criminal investigation of Farak, the same substances were sent to the drug laboratory at the University of Massachusetts Medical School for retesting. Exhibit 40. The substances were retested by William Hebard (?Hebard?) on March 23, 2013. Hebard observed that the sample submitted appeared to contain two different substances in that they were different in color and consistency. The testing notes and data prepared by Farak did not refer to substances that were different in appearance. Hebard?s test did not identify the second substance, but the mixture of those substances tested positive for the presence of cocaine. On July 5, 2012, the Spring?eld Police Department submitted suspected cocaine to the Amherst lab for testing in connection with a prosecution of Xavier Sands. Farak was the testing analyst. Hebard retested the substances on June 27, 2013, and determined that one sample consisting of 14 bags included 3 bags which contained a substance that looked different in color and consistency than the others. His test of those bags revealed the presence of cocaine and another unidenti?ed substance. Exhibit 36. Farak?s test of those sar?ne bags was positive for cocaine, but made no reference to another substance. On October 10, 2012, the Spring?eld Police Department submitted suspected cocaine to the Amherst Lab in connection with the prosecution of Richard Charles. The sample was signed out to Farak for testing on November 14, 2012. Her test results were positive for cocaine, but no more detail than that. Upon retesting, Hebard noticed three different kinds of white chunks in the sample and an unusual ?soapy? or ?moth ball? smell. His analysis of the three chunks revealed that one tested positive for cocaine and the other two were not controlled substances. on July 6, 2012, the Pitts?eld Police Department submitted suspected cocaine to the Amherst Lab in connection with a prosecution of Shaun Morton. It was signed out by Farak on July 18, 2012, and tested by her on July 23, 2012. The substance was retested by MSP chemist I Kimberly Dunlap (?Dunlap?) on or about July 24, 2013. Dunlap observed that the sample contained a waxy or chalk?like substance unlike she had seen before. Her test revealed that the mixture contained a small amount of cocaine and other substances that were not cocaine. On July 25, 2013, Dunlap retested a second sample related to the prosecution of Shaun Morton. The sample consisted of ?ve bags of white powder. Farak had tested the same substance on August 6, 2012. Dunlap found that the sample contained waxy balls unlike the ?rst Morton sample. She found that four of the bags contained cocaine. The fifth bag had only a trace amount of cocaine and that there were other ?fatty acids? present. 1 5. The Finch and Espinosa Cases On March 17, 2012, Spring?eld Police Detective Greg Bigda submitted to the Amherst Lab what he counted as 51 suspected oxycodone tablets. According to the certi?cation, Farak tested the pills on May 8, 2012, and concluded that they did not contain any controlled substance. Further, Farak?s certi?cation reported 61 rather than 51 pills. Upon learning of the discrepancy, Detective Bigda contacted the assigned Assistant District Attorney to express concern. Although he admitted that he could not remember exactly what the pills he submitted looked like, given his experience as a drug investigator and his use of an on?line pill identifier, he did not think he could have been mistaken about what he submitted. The District Attorney?s 10 Of?ce has dismissed the controlled substance offenses, but ?rearms offenses remain pending against Finch and Espinosa. As to this evidence, I do not ?nd that the discrepancy in the number of pills or Farak?s conclusion that the pills were not oxycodone to be probative on the timing and scope of Farak?s misconduct. CONCLUSIONS OF LAW Dismissal of a criminal case is warranted only where the prosecution or police have engaged in misconduct so egregious that dismissal is warranted to deter future misconduct or where the harm is so great that a fair trial is no longer possible. Commonwealth V. Merry, 453 Mass. 653, 666 (2009). It is a remedy of last resort because it precludes a public trial and terminates criminal proceedings. Commonwealth V. Washington, 462 Mass. 204, 215 (2012). The Commonwealth bears the burden of demonstrating that the defendant was not prejudiced by the misconduct. Commonwealth V. Fontaine, 402 Mass. 491, 497-498 (1988). Here, there is powerful evidence that Farak was stealing cocaine and replacing it with other substances. However, there is insuf?cient evidence before me that she tampered with the samples in Penate?s case or even that she was engaged in misconduct in November 2011, and January of 2012, when the samples in this case were tested. Farak was arrested on January 19, 2013, for conduct alleged to have occurred on January 18, 2013. However, there is circumstantial evidence that this was not the ?rst time that Farak tampered with drug samples at the Amherst Lab. Beginning in September of 2012, her coworkers noticed that Farak was frequently absent from her work Station during the workday without explanation. During that same time period, her supervisor observed a drop-off in Farak?s productivity and talked to her about it. Even more telling, the retesting of samples examined by Farak in cases against defendants Stratford, Sands, Charles and Morton, revealed ll the presence of foreign substances inconsistent with cocaine in color and consistency. These substances were not mentioned in any of Farak?s original tests of these substances which occurred as early as July of 2012. From these facts and all of the physical evidence seized in connection with the criminal investigation of Farak, I conclude that she-removed controlled substances from samples that she was charged with testing and replaced them with other substances to conceal her thefts. Further, I conclude from the evidence uncovered by retesting that she was doing so in the summer of 2012. However, this misconduct, while deplorable, postdates the testing in this case. Therefore, am not persuaded that Farak?s misconduct has substantially prejudiced the defendant or irreparany harmed his right to a fair trial. CONCLUSEON For all of the foregoing reasons, Defendant?s Motion to Dismiss is DENIED. C. cf??y ndlerl Associate Justice of the Superior Court November 4, 2013 l2