Farak & Federal Court

Farak & Federal Court

GETTING DRUG LAB JUSTICE IN FEDERAL COURT MACDL Post Conviction Conference March 16, 2018 The Palace of Pain Post-Scott (Pre-Bridgeman II) Blues

50 Ways to Deny a 2255 U.S. v. Wilkins, 943 F. Supp. 2d 248 (D. Mass. 2013) (Stearns, J.) (Wilkins I) Defendant who pled had no Brady v. Maryland rights pursuant to U.S. v. Ruiz [M]ore plausible argument under Brady v. U.S., 397 U.S. 742 (1970) still falls miles short of the rare instance of sufficiently egregious misconduct inducing involuntariness of the kind that figured in Ferrara Major prong 2 deficiency stemming from overwhelming circumstantial evidence, . . . including defendants own admissions, that they knowingly possessed and sold crack cocaine

[I]f a defendant does not have a constitutional right of access to impeachment information during pre-trial plea bargaining, his counsel cannot be ineffective for advising him to plead without knowing of that information. U.S. v. Wilkins, 754 F.3d 24 (1st Cir. 2014) (Wilkins II) [O]bvious inability to make Ferrara prong two showing[] dooms his appeal. Dookhans wrongdoing was [not] so malignant. . . it infected everything that was at the Hinton Lab.

Positive re-tests on samples untouched by Dookhan set to rest any real doubt about the nature of the merchandise purveyed by the petitioner. See also . . . U.S. v. Merritt, 755 F.3d 6 (1st Cir. 2014) ([E]vidence of Dookhans skullduggery was not enough to render the appellants guilty plea involuntary or uninformed.) U.S. v. Chin, 54 F. Supp. 3d 87 (D. Mass. 2014) (Saris, J.) (finding defendants actions consistent with a drug dealer who knew that he was selling the real deal)

U.S. v. Jackson, 54 F. Supp. 3d 102 (D. Mass. 2014) (Saris, J.) (admissions at scene & re-tests positive for coke) U.S. v. Smith, 66 F. Supp. 3d 247 (D. Mass. 2014) (Gorton, J.) (field tests positive & conspiracy charge require no proof of chemical composition) U.S. v. Gray, No. 10-cr-10075-PBS (D. Mass. Jan. 14, 2015) (Saris, J.) (Dookhan was confirmatory chemist; evidence of her misconduct limited to role of primary chemist) ... U.S. v. Robinson, 08-cr-10234-RGS (D. Mass. Aug. 26, 2015) (Stearns, J.) (dealers who works on a

regular basis in a heavily frequented outdoor drug mart unlikely to sell counterfeit merchandise) U.S. v. Miranda, 09-cr-10093-RGS (D. Mass. Aug. 26, 2015) (Stearns, J.) (execution of search warrant yielded a number of tools of the trade of drug distribution) U.S. v. Bannister, 08-10365-GAO (D. Mass. Nov. 8, 2015) (OToole, J.) (While Dookhan is not listed as a primary or secondary chemist, some laboratory readouts of tests performed on the suspected drugs in this case do bear her initials, but that doesnt matter because OIG found there is no evidence that Dookhan tampered with any drug samples assigned to another chemist) U.S. v. Tooley, No. 10-cr-0157-DJC (D. Mass. Feb. 11, 2015) (Casper, J.) (defendant secreted 30 bags

on his person & plead guilty before the government had even received the drug certifications) U.S. v. Brown, 08-cr-10050-GAO (D. Mass. Mar. 19, 2015) (OToole, J.) (D stipulated bags contained crack at trial) .... U.S. v. Snow, No. 11-cr-10299-DJC (D. Mass. May 11, 2015) (Casper, J.) (Dookhans name not on drug cert) U.S. v. Carvahlo, 109 F. Supp. 3d 441 (D. Mass. June 18, 2015) (Saris, J.) (cooperating witness confirmed that she and her boyfriend were addicts who smoked the crack cocaine provided by [co-defendant]) U.S. v. Shealey, 113 F. Supp. 3d 444 (D. Mass. 2015) (Gorton, J.) (Defendant never made a claim of factual

innocence or offered an explanation for his guilty plea) U.S. v. Kazana, 05-cr-10239-PBS (D. Mass. Dec. 3, 2015) (Saris, J.) (denying relief despite fact government did not bother to file opposition) U.S. v. Monteiro, 10-cr-10434-GAO (D. Mass. Apr. 29, 2016) (OToole, J.) (substances never went to Hinton) U.S. v. Catalano, 09-cr-10183-GAO (D. Mass. July 26, 2016) (OToole, J.) (search revealed presence of inositol, a product often used to cut cocaine AND . . .

U.S. v. Fortes, 04-cr-10196-GAO (D. Mass. Sept. 30, 2016) (OToole, J.) Dookhan appears to have tested the marijuana seized during the search, but Fortes was not charged with marijuana-related offenses. Farak served as the secondary, confirming chemist for the two drug samples underlying the charged drug offenses, but the Attorney General's investigation revealed that her misconduct with respect to drug samples began

later after she started working at the Amherst Lab. But See Question: Why it is so much harder to challenge a conviction pursuant to 22 U.S.C. Sec. 2255 than it is under Mass. R. Crim. P. 30?

A Few Potential Answers 1. 2. 3. 4. 5. 6. Fed Cases Tend to be Bulletproof Fed Law is Less Defendant Friendly Fed Prosecutors Are Less Apt to Surrender

Fed Plea Colloquies are More Thorough Fed Culture is at Odds with the Presumption of Innocence Fed System Hasnt Faced Crisis of Systemic Proportions Fed Cases Tend to be Bulletproof Evidence of Chemical Composition is Rarely Limited to the Drug Cert Cooperators Attest to Authenticity Agents Frequently Perform Field Testing

Federal Defendants Often Make Recorded Admissions Prolonged Investigations Provide Circumstantial Proof Defendants Are Not Dealing Counterfeit Substances Fed Law is Less Defendant Friendly See Commonwealth v. Davis, 83 Mass. App. Ct. 484, 489 (2013) (citing Commonwealth v. Dawson,

399 Mass. 465, 467 (1987), for the proposition that it would be a rare case in which a witnesss statement that a particular substance looked like a controlled substance would alone

be sufficient to support a conviction). See Castro v. U.S., No. 11-cr-10170MLW (D. Mass. Aug. 9, 2017) (Wolf, J.) (citing U.S. v. Walters, 904 F. 2d 765, 770 (1st Cir. 1990), for proposition that [p]roof based on

scientific analysis or expert testimony is not required to prove the illicit nature of a substance, and identification of a substance as a drug may be based on the opinion of a knowledgeable lay person).

Overburdened (state) prosecutors who lack the time to thoroughly investigate cases, subpoena witnesses, meet with experts, and complete a host of other tasks will find themselves disadvantaged . . . . Worse yet, the prosecutions expert witness is likely to be a chemist from the local crime lab who himself is juggling dozens of other cases and likely will not have time for a detailed meeting . . . . Adam M. Gershowitz & Laura Killinger Fed Prosecutors Are Less Apt to Surrender

Fed Plea Colloquies are More Thorough Here, even the judges own affidavit reveals that he did not explain the elements of the crime, or ask if counsel explained the elements to the

defendant, or ask the defendant to admit the facts. From Commonwealth v. Colon, 439 Mass. 519 (2003) Fed Culture is at Odds with the Presumption of Innocence 97 % of Federal Drug Defendants End Up Pleading Guilty.

When Federal Drug Defendants Move to Withdraw their Pleas, They Are Asking a Judge to Revisit an Outcome that Everyone Regarded as Foreordained at Arraignment. Only Dookhan Defendant to Get Relief from District Judge Sought the More Modest Relief of Resentencing Due to Dookhans Role in Weighing Samples. See U.S. v. Hampton, 109 F. Supp. 3d 431 (D. Mass. 2015) (Young, J.) Fed System Hasnt Faced Crisis of Systemic Proportions

State Court Litigation Proves There is Safety in Numbers Dealing with the Dookhan Scandal Required Expenditure of Extraordinary Resources to Recall Retired Judges to Act as Special Magistrates,

Devote Special Court Sessions to Drug Lab Cases, & Create a Special CPCS Unit. None of it was Enough [C]ase-by-case adjudication poses the considerable risk that the demand of indigent Dookhan defendants for counsel might outstrip the supply of CPCS-qualified attorneys to represent them, and require

this court to implement an appropriate remedy under our general superintendence authority for the constitutional violation suffered by indigent criminal defendants who are denied their right to counsel. Bridgeman v. Dist. Atty for the Suffolk Dist., 476 Mass. 298, 325-26 (2017) PROGNOSIS FOR FARAK/AGOBASED MOTIONS TO WITHDRAW PLEAS

Abandon Hope All Ye Who Enter Here The First Circuits Decisions in Wilkins II and Merritt are Going to Make it Very Difficult for Judge Mastroianni to Conclude that Any Federal Farak Defendants Guilty Plea was Involuntary or Uninformed As a Practical Matter, Farak Only Worked on a Handful of Federal Cases During her Time in Amherst


(2015) The Facts Federal jury finds defendant guilty of five drug charges GSR = 77-96 months Judge Stearns imposes sentence of 84 months on 12/6/11 Two of Defendants Prior State Court Drug Convictions Subsequently Get Dismissed Because of Dookhan Had convictions been vacated prior to 12/6/11, Judge Stearns calculates GSR would have been 63-78 months

Cuevas v. U.S., 778 F.3d 267 (2015) Stearns Denies Petition But Grants Certificate of Appealability [B]ecause Cuevass ultimate sentence of 84 months did

not exceed the statutory maximum for any of the counts for which he was convicted, there was no constitutional or jurisdictional error. Nor is this a case in which this court discerns a manifest injustice counseling against closing the books on Cuevass sentence. . . . Rather, I agree with the Seventh Circuit that [g]iven the interest in finality, [an error in interpretation of a merely advisory guideline] is not a proper basis for voiding a punishment lawful when imposed. Cuevas v. U.S., Nos. 10-cr-10374-RGS (Mass. Mar. 13, 2014)

Cuevas v. U.S., 778 F.3d 267 (2015) The First Circuit Reverses & Remands [D]efendants whose predicate state convictions have been vacated may reopen a federal sentence that was influenced by those convictions, so long as the vacatur of the underlying state convictions demonstrates exceptional circumstances as required by the fourth prong of 2255(a). 778 F.3d at 276; see also id. at 272 (characterizing the vacatur of . . . state convictions in light of Annie Dookhan as sufficiently exceptional to make a claim is cognizable under 2255)

Speculation that the district court today might impose the same sentence is not enough to overcome the fact that, at the time of his initial sentencing, [Cuevas] was sentenced based upon the equivalent of a nonexistent offense. Id. at 275 (quoting Narvaez v. United States, 674 F.3d 621, 629 (7th Cir. 2011)). Cuevas v. U.S., 778 F.3d 267 (2015) On Remand Linda calculates that GSR should actually be 51-63

months At resentencing on 3/27/15, she convinces Stearns to impose time served sentence (and lop off three years of supervised release) Defendant gets out, thrives, and on 10/25/16 persuades Stearns to allow pro se motion for an early termination of supervised release. Cuevas

+ 21,500 Vacated Dookhan Convictions = .... So Far, Not Much Hard Not to Get Depressed When You Shepherdize Cuevas and See How Infrequently it Has Been Deployed This Should be a SYSTEMIC PROBLEM for the

Government WHY HASNT IT BEEN????? . . . the exercise of due diligence. 28 U.S.C. 2255(f)(4): A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run

from . . . the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. Johnson v. U.S., 544 U.S. 295 (2005): [D]iligence can be shown by prompt action on the part of the

petitioner as soon as he is in a position to realize that he has an interest in challenging the prior conviction with its potential to enhance the later sentence. Is it Already Too Late for Federal Defendants with Recently Vacated Dookhan

Convictions? Maybe, Maybe Not Government Will Argue Those Who Waited for April 18, 2017 Global Remedy Did Not Exercise Due Diligence. We Have Counter-Arguments Counter-Arguments Become Harder to Make After April 17, 2018 Cuevas

+ 8,000 Soon-to-be Vacated Farak Convictions = .... TBD We Can Argue Farak-Based Petitions Are Still Timely Because AGO Hid Evidence that Delayed Discovery of True Scope of

Scandal Government Has Counter-Arguments Counter-Arguments Become Easier to Make After June 25, 2018 IF THE 1-YEAR SOL HAS NOT ALREADY EXPIRED . . . Almost Everyone Currently Serving a Federal Sentence for Any Crime Out of Anywhere in

the First Circuit Has a Compelling Case for Resentencing if Their Criminal History Category Was Miscalculated Due to the Inclusion of a Soon-to-be Vacated Farak Conviction REPEAT: Almost Everyone Currently Serving a Federal Sentence for

Any Crime Out of Anywhere in the First Circuit Has a Compelling Case for Resentencing if Their Criminal History Category Was Miscalculated Due to the Inclusion of a Soon-to-be Vacated Farak Conviction

This Includes . . . Cases Where an Invalidated Prior Felony Drug Conviction Served as the Basis for Doubling a Defendants Sentence under 21 U.S.C. 851 Cases Where an Invalidated Serious Drug Offense Led to the Imposition of a 15-year Mandatory Minimum Sentence Pursuant to 18 U.S.C. 924

Cases Where an Invalidated Controlled Substance Offense Resulted in a Career Offender Designation Under U.S.S.G 4B1.1 BUT IT IS NOT LIMITED TO THESE CASES! We are confronted with the fierce urgency of now. In

this unfolding conundrum of life and history, there is such a thing as being too late. This is no time for apathy or complacency. This is a time for vigorous and positive action. Martin Luther King, Jr. Luke Ryan Sasson, Turnbull, Ryan & Hoose (413) 586-4800

[email protected]

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