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Commonwealth v. Abdul-Alim

Appeals Court of Massachusetts, Hampden

March 9, 2017

COMMONWEALTH
v.
AYYUB N. ABDUL-ALIM.

          Heart: December 13, 2016.

         Indictments found and returned in the Superior Court Department on January 19, 2012.

         A pretrial motion to suppress evidence was heard by John S. Ferrara, J., and the cases were tried before Constance M. Sweeney, J.

          James B. Krasnoo for the defendant.

          Alyson Yorlano, Assistant District Attorney, for the Commonwealth.

          Present: Milkey, Massing, & Sacks, JJ.

          MASSING, J.

         The defendant, Ayyub Adbul-Alim, appeals from his convictions of unlawful possession of a firearm and unlawful possession of ammunition, aggravated by previous convictions of a serious drug offense and a firearms violation. See G. L. c. 269, §§ 10(a), 10(d), 10(h), 10G(a). He claims, as he did at trial, that his prosecution was the result of a joint Federal and State effort designed to coerce him to provide information about the activities of potential Islamic terrorists in the Springfield area. In light of this claim, he argues specifically that (1) his motion to suppress the firearm and ammunition should have been allowed, (2) the trial judge wrongly denied his request for a continuance of the trial, (3) a mistrial ought to have been declared after the jury reported a deadlock, and (4) the trial judge thwarted appellate counsel's efforts to obtain record documents. We affirm.

         1. Motion to suppress.

         a. Background.

         The motion judge found the following facts -- which the record supports and the defendant does not challenge as clearly erroneous -- regarding the search of the defendant's person.

         The defendant had been married to Siham Nafi Stewart for about two years. They lived with their young child in a second-floor apartment on State Street in Springfield. During the investigation of a murder in the apartment building, Stewart and the defendant were identified as witnesses; Stewart met with a Springfield police lieutenant. Days later, after hearing gunfire in the apartment building, she called 911 and spoke with the Springfield police officers who responded to her apartment.

         "[C]oncerned for the well-being of her child and herself if they continued to live with the defendant in that apartment, " Stewart went to the Springfield police department "to disclose that her husband, the defendant, was involved in drug dealing and possessed a firearm." After speaking with a Springfield police sergeant, she was introduced to another Springfield officer, Ronald Sheehan, a twenty-five year veteran who was also a member of the Federal Bureau of Investigation (FBI) joint counterterrorism task force (task force), a joint effort of Federal, State, and local law enforcement personnel. Stewart told Sheehan that the defendant's supplier was a white male with tattoos on his hand who drove a white Jeep Cherokee. She showed Sheehan a photograph of the defendant's handgun. Sheehan learned that the defendant had prior convictions for drug trafficking and unlawful possession of a firearm, disqualifying him from lawfully possessing a gun in Massachusetts. Stewart and Sheehan had a number of in-person and telephone contacts over the next two to three weeks leading up to the defendant's arrest.

         One evening in December, 2011, Stewart called Sheehan to tell him that the defendant was about to meet his supplier at the gasoline station next door to the apartment building. Sheehan and two other Springfield officers, partners William Berrios and Anthony Sowers, went to the location. Berrios and Sowers saw a white Jeep Cherokee in the gasoline station parking lot and parked their marked cruiser behind it.[1]

         Sheehan then received a second call from Stewart. She told him that the defendant had just left the apartment, was wearing a red vest, and had his gun with him. Sheehan observed the defendant leave the building, wearing a red vest or jacket, and walk toward the gasoline station. He warned Berrios and Sowers that the defendant was approaching and was armed. Berrios and Sowers seized the defendant, each grabbing an arm, and ...


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