United States District Court, D. Massachusetts
For USA, Plaintiff: John A. Wortmann, Jr., LEAD ATTORNEY, United States Attorney's Office, Boston, MA.
AMENDED MEMORANDUM AND ORDER
Patti B. Saris, Chief United States District Judge.
Defendant Junior Gray, currently serving a term of supervised release, seeks to vacate his conviction and set aside his guilty plea in light of the troubling scandal surrounding chemist Annie Dookhan and the William F. Hinton Drug Laboratory in Jamaica Plain. Gray argues that his plea was invalid because the government failed to inform him of Dookhan's misconduct before he pleaded guilty. (Docket No. 67). If he had known about the scandal, Gray says that he would have chosen to go to trial instead of plead guilty. The government opposes Gray's motion and has requested summary dismissal. (Docket No. 84). For the following reasons, Gray's Motion to Vacate Pursuant to 28 U.S.C. § 2255 is DENIED. The government's request for summary dismissal is ALLOWED.
FACTUAL AND PROCEDURAL BACKGROUND
Gray seeks to set aside his conviction for one count of possession of cocaine base (also known as crack cocaine) with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). The facts underlying his conviction are largely undisputed.
On February 27, 2010, the Boston Police Department was investigating a drug dealer known as " E" who was selling crack cocaine in the area around the Pine Street Inn on Harrison Avenue. The police believed that " E" was using a certain telephone number to conduct his sales. As a result, an undercover officer called the number to set up a controlled drug buy. Gray answered the phone and agreed to sell $60 worth of crack cocaine to the undercover near the Pine Street Inn. While the undercover was on his way over, Gray called and said to hurry up because he was waiting at a Mobil gas station.
Soon after arriving at the gas station, the undercover observed Gray pull up in a Honda Civic. After entering and exiting the convenient store, Gray looked around as if he were trying to find someone. The undercover officer yelled, " E!, I'm right here." Gray then asked the undercover a series of questions and took him around the corner to a more secluded area. The undercover officer said that he wanted " three," but Gray demanded to see the money first. The undercover officer complied and handed Gray $60 in prerecorded bills, which Gray inspected under a street lamp. Gray then spit out of his mouth three plastic bags of crack cocaine and gave them to the undercover officer. The undercover thanked Gray and began walking away, alerting the other officers in the area that the sale had been completed.
As Gray got back into his car to leave, he was promptly blocked off by an unmarked police car while another officer approached Gray's driver's side window. Gray put the Honda in reverse and attempted to flee, but the car smashed into a curb. The officers then arrested Gray and recovered the $60 of buy money. They also frisked Gray and felt a hard object near his buttocks. Gray said, " You don't feel nothing." After the officers brought Gray back to the police station, they conducted a strip search, which revealed 20 bags of crack cocaine similar to the three bags the undercover had purchased from Gray earlier. The officers visually identified the drugs as crack cocaine. They also conducted field tests using samples from the controlled drug buy and strip search.
Both tests returned positive results for crack cocaine.
Relevant here, the evidence next went to the Hinton Drug Laboratory in Jamaica Plain, former workplace of chemist Annie Dookhan. But Dookhan was not the primary chemist on Gray's case. Rather, Daniela Frasca was assigned as the primary chemist for both sets of drugs. As the primary chemist on the case, Frasca's job was to visually examine the substances, document the gross and net weights, and perform all presumptive tests, including reagent spot/color and microcrystalline tests. Frasca was also responsible for keeping both sets of drugs locked in her personal lab cabinet. After completing the initial analysis, Frasca prepared small samples of the substance to be given to a confirmatory chemist, who in this case was Annie Dookhan. Dookhan's responsibility as confirmatory chemist was to run the sample through a gas chromatography-mass spectrometer (GC/MS) machine. At no time did Dookhan have access to the drugs other than the vials prepared by Frasca. See Gov't Request for Summary Dismissal Exh. 10 (Frasca Affidavit). After analysis was complete, the lab returned two certificates signed by Frasca and Dookhan stating that the evidence from the controlled drug buy and strip search altogether contained 3.43 grams of crack cocaine.
On December 17, 2010, Gray pleaded guilty to one count of possession with intent to distribute and distribution of cocaine base. At the plea hearing, he did not disagree with the government's allegations that he had been in possession of crack cocaine and distributed it to the undercover officer in exchange for $60. The Court also specifically asked Gray, " Were you the person who spit the crack cocaine out of your mouth?" and he responded, " Yes." At sentencing, Gray also did not object to the Presentence Report's statement that the drugs purchased and seized from him were crack cocaine. Based on the drug weight and a three-level reduction for acceptance of responsibility, Gray's total offense level was 13. Combined with a criminal ...