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United States v. Fortes

United States District Court, D. Massachusetts

September 30, 2016

UNITED STATES OF AMERICA,
v.
JOHN FORTES, Defendant.

          USA, Plaintiff, represented by Donald L. Cabell, United States Attorney's Office MA, Amanda P. Strachan, United States Attorney's Office MA & Jeremy M. Sternberg, Holland & Knight.

          OPINION AND ORDER

          GEORGE A. O'TOOLE, Jr., District Judge.

         Petitioner John Fortes moves to set aside his conviction and vacate his guilty plea pursuant to 28 U.S.C. § 2255. Fortes argues that, because of notorious misconduct by former state laboratory chemists Annie Dookhan and Sonja Farak, which was unknown to him at the time he pled guilty, his guilty plea should be regarded as having been involuntary and his conviction should be vacated. For the reasons stated below, Fortes's motion to vacate is denied.

         I. Factual Background

         A. Investigation of Fortes

         In 2004, a joint task force comprised of federal and state agents conducted an investigation into alleged criminal activity in New Bedford, MA. During the investigation, state police and federal agents conducted a series of controlled drug buys using a cooperating witness who had known Fortes for over ten years. The government's case included the following evidence: On May 27, 2004, the cooperating witness called Fortes's cellular phone, made arrangements to purchase powder cocaine from Fortes, met Fortes at an agreed-upon location in a car registered to Fortes's girlfriend and known to officers as regularly driven by Fortes, gave Fortes the agreed-upon cash payment, and obtained from Fortes a plastic bag containing a white power substance. The meeting took place under surveillance and was both videotaped and audiotaped. The suspected cocaine was sent to the Massachusetts Department of Public Health ("DPH") Drug Laboratory in Jamaica Plain (the "Hinton Lab") and was tested by Elisabeth O'Brien as the primary chemist and Farak as the confirming chemist. The analysis revealed that the substance was cocaine with a net weight of 28.12 grams.

         On June 2, 2004, the cooperating witness again called Fortes on his cellular phone to make arrangements to purchase cocaine and ammunition from Fortes. Under surveillance by officers, the cooperating witness met Fortes at an agreed-upon location and in exchange for an agreed-upon amount of cash obtained a clear plastic bag with white powder substance, as well as another bag containing bullets. The controlled buy took place under surveillance and was both videotaped and audiotaped. The suspected cocaine was sent to the Hinton Lab for chemical analysis and, after testing by primary chemist Elisabeth O'Brien and confirming chemist Farak, was determined to be cocaine with a net weight of 25.00 grams.

         On June 22, 2004, the investigating team arranged a third controlled buy between the cooperating witness and Fortes under similar circumstances. This transaction was not the subject of a criminal charge.

         After conducting additional surveillance on Fortes, the government applied for and obtained a search warrant for the apartment where officers believed Fortes was living. A search of that apartment was executed on June 24, 2004, and agents seized numerous items, including cash, a digital scale, a cellular phone with the phone number the cooperating witness had called to arrange the controlled buys, two driver's licenses bearing Fortes's name and photograph, an invoice to Fortes for an oil and filter change on the vehicle observed to have been involved in the first transaction with the cooperating witness, various firearms and ammunition, a plastic bag containing cocaine, and two plastic bags containing marijuana. Fortes was arrested during the execution of the search warrant.

         B. Annie Dookhan

         Dookhan's offenses are now well-known. She worked as chemist at the Hinton Lab from 2003 through 2012. In 2011, Dookhan was cited for a breach of laboratory protocol. The DPH launched an investigation which exposed an alarming pattern of lapses and irregularities at the Hinton Lab. Dookhan was ultimately indicted and pled guilty to twenty-seven criminal charges, including perjury and evidence tampering, admitting among other things that she rigged test results by contaminating negative samples with known drugs from completed tests and dry-labbing (i.e., falsely certifying she had tested drug samples when she had only given them a visual examination).

         C. Sonja Farak[1]

         Farak was a chemist employed by the DPH from July 2003 through July 2012 and by the Massachusetts State Police from July 2012 through January 2013. She worked at the Hinton Lab during her first year of employment and subsequently worked at a state drug laboratory in Amherst (the "Amherst Lab"). According to testimony from the grand jury investigation conducted by the Attorney General's Office, Farak was a recreational drug user prior to working with the DPH. After working at the Amherst Lab for about one year, Farak began to consume laboratory reference standards, known substances that the Amherst Lab had purchased from drug or chemical companies for use in the laboratory.[2] Starting in about 2009, Farak began using drugs from policesubmitted samples at the Amherst Lab. Farak also performed work under the influence of a variety of narcotics, took and manipulated samples from other chemists, manufactured her own crack cocaine at the Amherst Lab, and manipulated the computer inventory used to track drugs in the Amherst Lab. Farak's malfeasance finally emerged in 2013 after a chemist noticed drug samples assigned to Farak were missing. An ...


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