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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Ricci,
Middlesex.
Present: Greenberg, Dreben, & Mason, JJ.
Paul J. Haley for the defendant.
Peter A. D'Angelo, Assistant District Attorney (Michael D. Friedland, Assistant
District Attorney, with him) for the Commonwealth.
MASON, J.
After a jury trial in the Superior Court, the
defendant was convicted of trafficking in cocaine in an amount of 200 grams or
more. See G. L. c. 94C, § 32E(b)(4). On appeal, he claims that
the judge erred in failing to grant his motion to suppress certain wiretap
evidence and also cocaine and other evidence seized during a search of his
residence pursuant to a warrant. He also argues that certain of the judge's
instructions impermissibly shifted the burden of proof with respect to a
defense he had raised, that the Commonwealth failed to provide him with certain
materials necessary to his defense, and that he should have been permitted to
remove the case to Federal court. The defendant separately argues in his own
pro se brief that he was improperly prohibited from introducing certain
evidence that was necessary to complete a conversation to which a witness had
testified, and that the Commonwealth used false information to procure the
wiretap warrant. We affirm the conviction.
Background. The judge did not make extensive findings of fact in ruling on the
defendant's various motions to suppress, which principally raised questions of
law. We recite the relevant undisputed facts elicited at the suppression
hearing.
On
Richard Prior, a State police trooper assigned to the
Trooper Prior decided to investigate both Festa and the defendant and, during
his investigation, he was informed by a confidential reliable informant that
the defendant was a major cocaine distributor who regularly sent his
associates, including Festa and Costa, to Florida to arrange for cocaine to be
sent back to Boston. Trooper Prior also found papers that were consistent with
drug distribution records in the defendant's trash at his residence in
Subsequently, on July 19, 1995, two Middlesex County assistant district
attorneys, acting in reliance on a lengthy affidavit prepared by Trooper Prior
detailing the results of his investigation, applied for and obtained a wiretap
warrant from a Superior Court judge. That warrant only authorized the executing
officers to keep track of the times, dates, and telephone numbers associated
with incoming and outgoing calls of the home telephones of the defendant and
Festa. Then the police learned that the defendant was also communicating with
one Christopher Brunco, an individual whom State police officers at
On the morning of
At this time, State police Trooper Robert McCarthy was conducting a
surveillance of the defendant's home, and observed a number of cars coming to
and going from the home. At about
Believing that cocaine had just been delivered to the defendant's home, and
that there were a number of persons inside, the police determined that they
should secure the home. Trooper Prior accordingly knocked on the front door of
the defendant's residence and announced, "State Police, open up."
About a minute later, Trooper Stephen Matthews observed the defendant open a
second-floor window and attempt to toss out a paper bag. Trooper Matthews
yelled up at the defendant, "State Police," and the defendant
responded, "Fuck You." At this point,
About the same time, Brunco opened the front door and allowed Trooper Prior and
several other officers to enter. Both the defendant and Brunco were arrested.
The police found a handgun on the defendant. They also seized a paper bag in
the upstairs room that the defendant had occupied when he was observed by
Trooper Matthews.
Thereafter, Trooper Prior obtained a search warrant. The police conducted a
search of the defendant's home pursuant to the warrant and discovered that the
bag they had secured contained 496 grams of cocaine. They also discovered a
scale, drug distribution records, plastic baggies, a large amount of cash and,
floating in the defendant's toilet, a plastic bag.
At trial, Troopers Prior and Matthews, and also several of the other officers
who had participated in the search of the defendant's home, testified to the
foregoing events. The Commonwealth also called Henry Festa, Emanuel Costa and
Christopher Brunco as witnesses for the Commonwealth. Each of these persons
testified that they had regularly received and distributed packages of cocaine
for the defendant or his associates.
Testifying in his defense, the defendant did not deny that he had possessed
cocaine on the day of the raid but said that he had done so only because he was
then working on an undercover basis with two agents assigned to the Boston
office of the Federal Bureau of Investigation (FBI) to investigate and
apprehend a major drug dealer in the Medford area. Allegedly, he had met with
the agents just hours before the raid, and they had instructed him to begin
buying a large amount of cocaine from the dealer, which he had in fact done
immediately after the meeting. The defendant further testified that he had been
engaging in similar activities with the FBI since 1992, and that both FBI
agents knew that he was dealing in drugs in connection with these activities
and had authorized him to do so.
In addition to presenting his own testimony, the defendant called the two FBI
agents as witnesses for the defense. One testified that the defendant had in
fact served as a confidential informant for the FBI since 1992, but that he had
never authorized the defendant to deal in drugs, or otherwise violate the law,
and did not know that he was doing so. The other agent similarly testified that
he had never authorized the defendant to deal in drugs or otherwise violate the
law.
The defendant also called Trooper Prior as a witness for the defense. Trooper
Prior testified that he had met with one of the FBI agents called by the
defense some time in February 1995, and had discussed with him the
investigation Trooper Prior was conducting into the activities of Festa and the
defendant, but that he had initiated the meeting only in response to information
he had received that Festa (not the defendant) might be an informant for the
FBI. Trooper Prior further testified that the agent had told him at that time
only that the agent had never heard of Festa and that, while the defendant had
been intercepted on a wiretap the FBI had been conducting of another
individual, nothing on the wiretap was criminal and the FBI had nothing
important to disclose about the defendant.
1. Wiretap evidence. The defendant claims that the wiretap evidence should have
been suppressed because the Commonwealth failed to comply with the requirement
set forth in G. L. c. 272, § 99 M, that a return be filed with
the judge issuing the wiretap warrant within seven days after termination of
the warrant. The defendant also complains that the judge's orders authorizing
the wiretaps failed to identify particularly all persons whose conversations
could be intercepted and also failed to include sufficient instructions to the
executing officers so as to minimize the interception of nonpertinent
conversations. The defendant finally contends that, in his affidavits
supporting the wiretap applications, Trooper Prior relied on information
provided to him by the FBI agent and described as criminal activities on the
part of the defendant that had been authorized by the FBI. We address each of
these contentions in the order they have been presented.
(a) Timely return. General Laws c. 272, § 99 M, requires that a return
must be made to a judge issuing a wiretap warrant "[w]ithin seven days
after termination of the warrant or the last renewal thereof."[1]
Under this provision, a return is to be made "as soon as practicable"
after the termination of a warrant, and in no event more than seven days after
the termination of the warrant. Commonwealth v. Westerman, 414
The Commonwealth concedes that it failed to comply with this provision. The
An assistant district attorney testified at the suppression hearing that the
assistant responsible for filing the return misunderstood the order to mean
that the warrant would not "terminate" for purposes of the statutory
seven-day period until October 7, 1995, rather than September 22, 1995,[2]
that this mistake was not discovered until Friday, September 29, 1995, and that
the assistant thereafter filed the return as soon as he possibly could, on
Monday, October 2, 1995. After hearing this and other testimony, the motion
judge specifically found that there was no credible evidence of any tampering
with the tapes, that any delay in the filing and sealing requirement was
"de minimis," and the defendant's constitutional rights were not
infringed. On appeal, the defendant does not challenge these findings but claims
that suppression of all of the wiretap evidence was automatically required
because of the Commonwealth's failure to comply with the statutory seven-day
period. The statute, however, has not been construed so stringently. A slight
delay in complying with the seven-day period will not require the suppression
of wiretap evidence where, as here, the Commonwealth has acted in good faith
and not obtained any tactical advantage from the delay, and there is no
evidence that the tapes have been compromised.
(b) Particularity. Citing Berger v. New York, 388 U.S. 41 (1967), the defendant
claims that the orders issued did not, as required, closely constrain the use
of electronic surveillance, as they failed to identify particularly all persons
whose conversations could be intercepted. The September 8, 1995, order,
the only order permitting the police to monitor or record any conversations,
provided that the authorization was limited to "those communications of
Vincent Ricci, Henry 'Rico' Festa and their associates, agents and
co-conspirators, some of whom have yet to be identified, which relate to the
possession and/or distribution of cocaine, or conspiracy to commit the
same." The defendant makes no coherent argument that this narrowly
tailored authorization failed to comply with any statutory or constitutional
requirement.
In fact, the relevant language of G. L. c. 272, § 99 I, as
amended by St. 1968, c. 738, § 1, provides only that a wiretap order must
contain "[a] particular description of the person and the place, premises
or telephone or telegraph line upon which the interception may be conducted,"
and also "[a] particular description of the nature of the oral or wire
communications to be obtained by the interception including a statement of the
designated offense to which they relate." It does not require that the
order contain the specific identities of all persons whose conversations might
be intercepted pursuant to the order if those identities are unknown at the
time the order is issued. The order issued in this case complied with the
statutory requirements. Compare
(c) Minimization instructions. Federal law requires that a wiretap order
provide that the interception shall "be conducted in such a way as to
minimize the interception of communications not otherwise subject to
interception under this chapter." 18 U.S.C. § 2518(5). While the
State statute has no express equivalent, the
The defendant claims that the
The defendant has not claimed that the instructions were in any specific sense
inadequate. Nor has he claimed that minimization was not actually achieved by
the officers executing the warrant in this case. In fact, the Commonwealth has
pointed out that the judge reviewed approximately 617 telephone calls recorded pursuant
to the warrant and suppressed only four of them for noncompliance with the
minimization requirement. In these circumstances, suppression of the remaining
wiretap evidence was plainly not required due to any failure by the executing
officers to be aware of, and comply with, the need for minimization and the
limits of the wiretap order.
(d) Reliance on authorized activities. The defendant finally claims that the
wiretap evidence should have been suppressed because, in his affidavit
submitted in support of the first warrant application, Trooper Prior used
information provided by the FBI and relied on criminal activities of the defendant
that had been authorized by the FBI. The defendant did not even raise this
claim until one of the FBI agents he had called as a witness testified at
trial. The judge at that time interrupted the trial and held a full hearing
into the claim. At the conclusion of the hearing, the judge found as follows:
"I find beyond a reasonable doubt that
the, whatever information [the FBI agent] provided to then Trooper Prior, was
not information that formed any substantial basis, or indeed any basis at all
for the affidavit and the subsequent authorizations that flowed from the
affidavit."
This finding was fully supported by the
testimony of Trooper Prior, which we have previously described. Indeed, the
defendant does not even claim to the contrary. The defendant therefore was not
entitled to suppression of the wiretap evidence because of any improper use by
Trooper Prior of information provided by the FBI.
2. Failure to suppress cocaine and other evidence seized from the defendant's
residence. In denying the defendant's motion to suppress the cocaine and other
evidence seized from his residence during the search conducted pursuant to the
warrant obtained by Trooper Prior, the judge found that both probable cause and
exigent circumstances existed to justify the prior warrantless entry of the
home. The judge relied particularly on the fact that, prior to their entry, the
police had observed the defendant attempting to throw a bag from the upstairs
window.
The defendant does not dispute that exigent circumstances existed as soon as
the police observed him attempting to dispose of the bag from the upstairs
window. Nevertheless, the defendant claims that the police themselves
deliberately manufactured these exigent circumstances first by failing to
obtain a warrant before Brunco had arrived at the defendant's residence and
then by knocking on the defendant's door and announcing their presence as soon
as Brunco had arrived at the residence. The defendant claims, therefore, that
the entry was unlawful and the evidence obtained during the subsequent search
of the defendant's home should have been suppressed under the fruit of the
poisonous tree doctrine. See Wong Sun v.
The defendant's argument overlooks the fact that there was no evidence
presented at the suppression hearing that the police actually knew, or had
reason to believe, that Brunco or anyone else would be delivering the cocaine
to the defendant at his residence (as distinct from a public restaurant or some
other location) until they intercepted Brunco's call to the defendant at 8:22
P.M. on the evening in question and then, just a few minutes later, actually
saw him arrive at the defendant's residence carrying a package. On the other
hand, there was substantial evidence presented at the suppression hearing that,
when the police did see Brunco arrive at the defendant's home carrying an
object, they reasonably believed that the defendant and several other persons
were present in the home and that some or all of them might quickly disperse as
soon as it had been delivered.
However, we need not decide whether the police acted unlawfully in initially
entering the defendant's residence without a warrant because Trooper Prior did
not rely to any significant extent on information the police obtained as a
result of that entry when he subsequently applied for the warrant to search the
residence. Rather, he submitted a fifty-five page affidavit in which he set
forth in detail each of the defendant's prior telephone calls with Brunco and
others with respect to the cocaine coming from
We therefore conclude that the warrantless entry of the defendant's residence,
even if unlawful, did not require a suppression of the cocaine and other
evidence discovered as a result of the subsequent valid search of the residence
pursuant to the warrant obtained by Trooper Prior.[4] See Commonwealth
v. Hall, 366 Mass. 790, 795-798 (1975); Commonwealth v. Singer, 29 Mass. App.
Ct. 708, 714 (1991). See also Commonwealth v. Cast, 407
3. Improper burden-shifting. The judge instructed the jury during his main
charge that the Commonwealth was required to prove each element of the crime of
trafficking in cocaine beyond a reasonable doubt, a standard which he explained
for the jury. He then stated, however, that the defendant had raised the
defense that he was acting under the authority of the FBI and that "[t]his
is the one phase of the case where the defendant has to prove something."
The judge then stated that "[h]e does not have to prove it beyond a
reasonable doubt," but "[h]e has to prove that it's more likely true
than not that what he says is so." The judge further stated that:
"If the government fails to prove any
element of its case beyond a reasonable doubt, then you must return a verdict
of not guilty. If the government proves all elements, beyond a reasonable
doubt, but the defendant proves by a preponderance of the evidence, more likely
true than not, that he was acting under authority, then you must return a
verdict of not guilty. If the defendant -- if the government proves its case,
beyond a reasonable doubt, and the defendant fails to persuade you that, it's
more likely true than not, that he was acting under authority, then you may
return a verdict of guilty."
The defendant did not object to these
instructions. The prosecutor, however, did object and informed the judge both
immediately after the charge had been given and also immediately after the jury
had begun their deliberations that he believed the instructions were improper
to the extent they placed a burden on the defendant to prove his defense of
authority by a preponderance of the evidence.[5]
After hearing arguments from counsel, the judge recalled the jury and told them
that he had mispoken with respect to the question of authority and wanted to
"correct" his instructions with respect to that point. The judge then
told the jury that the defendant did not have the burden of persuading the jury
on the question of authority, but rather the Commonwealth had the burden. More
specifically the judge stated:
"I suggested that the defendant had a
burden of persuading you. In that, I believe now, I was incorrect. The
defendant does not have the burden of persuading you. The government has the
burden of persuading you, on the basis of the evidence, that the defendant
either did not have authority, or that he reasonably, or that he did not reasonably
rely on the authority."
The judge further instructed the jury that:
"[I]t is the government's burden to
persuade you, beyond a reasonable doubt, that [the defendant] did not
reasonably rely on the, whatever the government told him. That is to say, that
he was not reasonable in acting as though he believed that the government was
authorizing him to commit the acts which he then committed."
The judge repeated these corrected instructions
the next day when the jury specifically requested that he repeat his
"amended information." In response to this request, the judge again
told the jury that it was "the government's burden to prove, beyond a
reasonable doubt, not only that [the defendant] was trafficking in cocaine, as
I described it to you and explained it to you, but that he was not doing it
with the authorization of the authorities, the FBI."
The defendant does not substantively challenge the corrected instructions[6]
but claims that, in giving them, the judge should have repeated his entire
instructions and told the jury to begin their deliberations all over again. In
fact, it appears from the record that the jury had only just begun their
deliberations at the time the judge corrected his instructions. Moreover, we
can discern from the record no purpose, and the defendant has not suggested
any, that would have been served by the judge repeating his entire
instructions. While the judge initially misspoke, he repeatedly and forcefully
instructed the jury that, as with every other issue, the Commonwealth bore the
burden of proving beyond a reasonable doubt that the defendant, in trafficking
in cocaine, had not acted under the authority of the FBI, which was the only
live issue raised by the defendant. In these circumstances, the judge's failure
to repeat his entire instructions not only did not create a substantial risk of
a miscarriage of justice, but was not error.
4. Failure to furnish exculpatory evidence. Prior to trial, the defendant
requested that the judge sign a request to the FBI that it furnish copies of
any reports it had pertaining to the defendant's activities as an informant,
and that the prosecutor submit this request to the FBI. Both the judge and the
prosecutor agreed to take these actions, even though the defendant refused to
furnish any authorization for the release of such reports. Subsequently, when
the FBI declined to furnish any documents in response to the judge's request,
the defendant himself submitted a request for the documents pursuant to the
Federal Freedom of Information Act, 5 U.S.C. § 552, and regulations
promulgated thereunder. In response to this request, the FBI furnished to the
defendant numerous documents, portions of which were redacted.
The defendant made no attempt to obtain a court order directing the prosecutor
to take any further action. Rather, he introduced several of the redacted
documents at trial and then argued to the jury that the redactions themselves
showed that there was reasonable doubt in the case. More specifically, the
defendant argued:
"I suggest to you that there is a lot of
reasonable doubt in this case. I suggest to you that the over 125 pages that
I've introduced to you as FBI documents with all the black marks, everyone of
those black marks, is reasonable doubt. Everyone of those black marks is
something I can't stand here and argue[] to you. The only one to tell you what
it meant, and what it was, and what was going on was Vincent Ricci
. . . . And he told you, 'I'm not guilty.'"
Notwithstanding his affirmative use of the
redactions in the foregoing manner, the defendant claims for the first time on
appeal that he is entitled to a reversal of his conviction because the
"Federal Bureau of Investigation essentially made a mockery of the
discovery process" and the Commonwealth failed to prevent this from
happening. We disagree. First, the defendant has made no showing that the
prosecutor could have obtained unredacted documents from the FBI, or that he
even alerted the prosecutor that he wanted him to do so. Nor has the defendant
made any showing, or even specific speculation, that the redactions actually
denied him information that was critical to his defense.
5. Removal to Federal court. The defendant claims that, because he raised a
colorable defense that he was acting under the authority of the FBI, he had a
right to have the case removed to the United States District Court for the
District of Massachusetts, but he was improperly denied the ability to exercise
that right. More specifically, the defendant claims that he filed a petition
pursuant to 28 U.S.C. § 1446 for removal of the case to the United States
District Court for the District of Massachusetts, but a judge of that court
wrongfully dismissed the petition and the United States Court of Appeals for
the First Circuit denied his appeal from that dismissal.
It does not appear from the record why the defendant's removal petition was
dismissed. Nevertheless, in light of the dismissal, the Superior Court plainly
had jurisdiction to continue with its proceedings. The Federal removal statute
provides in pertinent part only that a criminal prosecution commenced in a
State court "may be" removed to an appropriate
6. Denial of verbal completeness. During his cross-examination of one of the
FBI agents, the prosecutor asked whether the agent had received information
from any person other than the defendant that the defendant had disclosed to
that other person that the defendant was working for the FBI. The agent
responded affirmatively, but then indicated that he could not describe all of
the circumstances of his receiving this information due to constraints that had
been put on his testimony by the United States Attorney General.
At this point, counsel for the defendant objected and argued to the judge that
if the agent was unable to disclose all the circumstances of his receiving
information about the defendant's asserting that he was working for the FBI,
then the agent should not be permitted to testify about the matter at all
because it was hearsay. The judge agreed with this objection and therefore
excluded the testimony and instructed the jury to disregard "what the
witness said somebody else told him about what the defendant was doing."
Based on the foregoing events, the defendant claims for the first time on
appeal that he was improperly denied the right to submit evidence to which he
was entitled under the doctrine of verbal completeness.
7. False affidavit. The defendant finally claims that various materials
attached to his separate brief show that Trooper Prior deliberately misstated
certain of the facts that were set forth in the lengthy affidavit he submitted
in support of the application for the initial wiretap warrant, which was issued
on
Judgment affirmed.
FOOTNOTES:
[1] General Laws c. 272,
§ 99 M, as amended by St. 1968, c. 738, § 1, provides in its entirety
that: "Within seven days after termination of the warrant or the last renewal
thereof, a return must be made thereon to the judge issuing the warrant by the
applicant therefor, containing the following:
"a. a statement of the nature and location of the communications
facilities, if any, and premise or places where the interceptions were made;
and
"b. the periods of time during which such interceptions were made; and
"c. the names of the parties to the communications intercepted if known;
and
"d. the original recording of the oral or wire communications intercepted,
if any; and
"e. a statement attested under the pains and penalties of perjury by
each person who heard oral or wire communications as a result of the
interception authorized by the warrant, which were not recorded, stating
everything that was overheard to the best of his recollection at the time of
the execution of the statement."
[2] The wiretap order issued on September 8, 1995,
provided that "[t]he termination date of this Order shall be no later than
thirty (30) days from the date of effect of this Order," but also that the
"interceptions shall be authorized for a period not exceeding fifteen (15)
days from the date of the first interception." The date of first
interception was
[3] For example, the instructions directed that, if
neither the defendant nor Festa were a party to an intercepted call, then the
intercepting officer should monitor no more than the first ninety seconds of
the call to determine if it was a "pertinent conversation," and, if
it was not, then the officer should only "spot monitor" the call
after an additional thirty seconds to determine whether it had become a
"pertinent conversation."
[4] We reject the defendant's contention that the
cocaine should have been suppressed in any event merely because the police
would not have secured and subsequently searched the bag containing the cocaine
unless they had first seen the defendant attempt to throw such a bag from the
upstairs window of his house. Having intercepted Brunco's call to the defendant
and then observed him entering the defendant's house with an object in his
hand, the police obviously would have seized and searched the bag pursuant to
the warrant even if they had not seen the defendant attempt to throw such a bag
from the upstairs window.
[5] We reject the defendant's contention, raised in
his separate pro se brief, that because defense counsel did not object to the
judge's instructions, the prosecutor had no power or authority to do so on his
own. It cannot be overemphasized that we frequently have urged prosecutors to
bring to the attention of the judge any possible error in the judge's
instructions that might cause prejudice to the defendant.
[6] We express no view on this issue because it was
not argued by the parties.