Substances. Practice, Criminal, Plea, New trial, Conduct of
government agents, Presumptions and burden of proof.
Evidence, Guilty plea, Certificate of drug analysis,
Presumptions and burden of proof.
Alexandra H. Deal for the defendant.
S. Yeshulas, Assistant District Attorney, for the
26, 2007, the defendant, Wayne L. Ruffin, pleaded guilty to
two counts of distribution of cocaine, in violation of G. L.
c. 94C, §§ 32A and 32E. Two other counts, alleging
drug violations near a school zone or park, in violation of
G. L. c. 94C, § 32J, were dismissed. Thereafter, on
October 3, 2007, the substances were tested at the William A.
Hinton State Laboratory Institute, and Annie Dookhan was one
of the two "assistant analysts" who signed the
certificates of drug analysis (drug certificates). Years
later, after Dookhan's misconduct had been discovered,
see generally Commonwealth v. Scott, 467
Mass. 336 (2014), the defendant unsuccessfully moved for a
new trial, seeking to vacate his guilty pleas on the ground
of Dookhan's misconduct. The defendant appeals from the
denial of that motion, as well as his renewed motion for a
new trial. We affirm.
with due process considerations, a guilty plea may be
accepted only when it is "intelligently and voluntarily
made." Scott, 467 Mass. at 345, quoting
Commonwealth v. Furr, 454 Mass. 101, 106
(2009). A plea may be defective, for example, where it has
been "involuntarily induced by government misconduct
that since has been discovered." Scott,
supra at 345-346. In this case, the defendant
contends that his pleas were not "knowing and
voluntary" because he was unaware at that time of the
pleas of Dookhan's misconduct or that she would
eventually test the alleged controlled substances in his
cases. The motion judge properly rejected the argument. Where
governmental misconduct is alleged in circumstances such as
these, we have applied the two prong-analysis of Ferrara
v. United States, 456 F.3d 278, 290 (1st Cir.
2006) . See Scott, supra at 346. The first
prong has three parts. "[T]the defendant first must show
that egregious government misconduct preceded the
entry of his guilty plea and that it is the sort of conduct
that implicates the defendant's due process rights"
(emphasis added) . Id. at 347. Under the second
part, the defendant must establish that the "egregious
misconduct was undertaken 'by government agents'
prior to the entry of the defendant's guilty
plea" (emphasis added) . Id. at 348. The third
part requires a defendant to show a nexus between the
government misconduct and the defendant's own case.
Id. at 350. If all three parts of the first prong
are satisfied, the second prong of Ferrara requires
a defendant to particularize the governmental
"misconduct to his decision to tender a guilty
plea." Id. at 354.
involved a drug certificate that, unlike the certificate in
this case, antedated the defendant's guilty
plea. Because of the unprecedented scope of Dookhan's
misconduct, we focused on and recognized that the requisite
nexus might be "impossible for the defendant to
show." Scott, 467 Mass. At 351. For that
reason, we held that "in cases in which a defendant
seeks to vacate a guilty plea under Mass. R. Crim. P. 30
(b)[, as appearing in 435 Mass. 1501 (2001), ] as a result of
the revelation of Dookhan's misconduct, and where the
defendant proffers a drug certificate from the
defendant's case signed by Dookhan on the line labeled
'Assistant Analyst, ' the defendant is entitled to a
conclusive presumption that egregious government misconduct
occurred in the defendant's case." Id. At
352. Underlying that presumption, however, is the assumption
that the misconduct evidenced by the certificate antedated
the guilty plea.
drug certificate signed by Dookhan postdates the
defendant's guilty plea, the underlying assumption of
Scott is absent. The Scott presumption
exists to relieve defendants of "costly administrative
burden[s], " see Scott, 467 Mass. at 353,
because "the only reliable and available basis ... to
assess whether Dookhan's wrongful conduct touched the
defendant's case" is contained in the drug
certificate. Id. Where certificates indicate that
Dookhan analyzed the drugs in the defendant's case after
the plea proceedings were concluded, even presuming
misconduct occurred at that time, her involvement cannot be
said presumptively and retroactively to have induced the
defendant's plea months earlier. For the presumption
articulated in Scott to apply, it is incumbent on
the defendant to establish that the presumptive governmental
misconduct antedated the plea. See id. (where
certificate antedated plea, "furnishing a drug
certificate signed by Annie Dookhan as an assistant analyst
in the defendant's case satisfies the defendant's
evidentiary burden to establish each element of the first
prong of the Ferrara analysis"). In this case,
the defendant failed to satisfy his evidentiary burden with
respect to the first prong of Ferrera.
serendipitous assignment of Dookhan as one of two chemists
who tested the alleged controlled substances in the
defendant's cases -- after his pleas had been accepted
and he had been sentenced -- does not give rise to a
presumptive basis for vacating the guilty pleas. There being
no basis to find that any governmental misconduct occurred in
his case prior to the acceptance of his pleas, or that any
governmental misconduct rendered the defendant's guilty
pleas unintelligent or involuntary, the motion judge properly
declined to vacate the guilty pleas.
denying motion for a new trial affirmed.
 The defendant did not file his own
affidavit in support of his motion to vacate his ...