Opinion
11-P-681
05-04-2012
COMMONWEALTH v. NY HONG.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On February 9, 2009, after a jury trial, the defendant, Ny Hong, was convicted of conspiracy to traffic in cocaine, G. L. c. 94C, § 40. He claims on appeal that the conspiracy charge should have been barred by principles of collateral estoppel arising from the defendant's earlier trial for cocaine possession and cocaine trafficking.
Background. On June 15, 2007, a grand jury returned a three-count indictment alleging that the defendant, on or about January 4, 2007, possessed cocaine with intent to distribute, G. L. c. 94C, § 32A(c), trafficked in cocaine in excess of 100 grams, G. L. c. 94C, § 32 E(b)(3), and conspired to traffic cocaine in excess of 100 grams, G. L. c. 94C, § 40.
The defendant was tried first on the possession and trafficking charges. On October 8, 2008, prior to jury deliberations, the trial judge dismissed the possession with intent to distribute charge. After the presentation of evidence, the judge instructed the jury on the trafficking charge, and on the lesser included offense of simple possession of cocaine. On the same day the jury returned a split verdict, finding the defendant not guilty of trafficking in cocaine and guilty of simple possession of cocaine. After the verdict, the jury reconvened at the request of the judge to determine the exact quantity of the cocaine possessed by the defendant. After further deliberation, the jury specified that the defendant possessed 100.67 grams of cocaine.
The defendant was tried separately on the conspiracy charge in the absence of a motion for joinder. See Angiulo v. Commonwealth, 401 Mass. 71, 80 n.10 (1987). Although the defendant filed a general notice of appeal he argues error only with respect to the conspiracy conviction.
The evidence presented at the first trial consisted of the fruits of a search warrant executed at 44 Shaffer Street in Lowell on January 4, 2007. During the search a total of 114.73 grams of cocaine was recovered, including 100.5 grams found in a vacuum cleaner and 0.17 grams from the defendant's person. Other implements of drug distribution were found in the apartment, and evidence was presented that the defendant lived on the premises and was the only person present when the search was executed.
The only difference between possession of cocaine with intent to distribute under § 32A(c) and trafficking under § 32E(b)(3) is the quantity of cocaine involved, because § 32E(b)(3) contains a threshold quantity of 100 grams or more, but less than 200 grams.
The judge apparently requested the special verdict to obtain additional information for sentencing purposes. He stated at sidebar, with regard to his sentencing, 'It would be more informed if for some reason the jury thought that . . . the failure of the evidence from the Commonwealth [sic] point of view was in terms of intent to distribute as opposed to being in possession of a full 113 grams. I think it would be useful.' He subsequently told the jury that he requested the additional verdict 'for purposes of having as clear a sense as I can of your verdict and what it means exactly.'
On December 1, 2008, the defendant moved to dismiss the conspiracy to traffic charge on the grounds that the prosecution was barred by principles of collateral estoppel based on the results of the first trial. After a hearing, the motion was denied by a judge, who was not the trial judge. The defendant was subsequently tried before a jury on the conspiracy charge.
During the conspiracy trial, the Commonwealth presented similar evidence to what was offered at the first trial, with a few significant additions. These included testimony from Kerrie Ann Kaminski, a former crack addict and police informant, who testified that she had engaged in many controlled buys of cocaine from both the defendant and his coconspirator, Tina Philakham, at the apartment at 44 Shaffer Street (premises). Kaminski also testified that she had witnessed Philakham prepare a batch of crack cocaine on the premises using a glass coffee pot. The landlady of the premises also testified that the defendant and Philakham had rented the apartment together.
The trial judge, who was not the judge at the first trial, denied the defendant's motion for a required finding of not guilty at the close of the Commonwealth's case, and the jury found the defendant guilty of conspiracy to traffic on February 9, 2009.
Discussion. Collateral estoppel precludes a party from relitigating between the same parties an issue already decided by a valid, final judgment. Ashe v. Swenson, 397 U.S. 436, 443 (1970). The application of collateral estoppel in a criminal case requires three elements: '(1) a common factual issue; (2) a prior determination of that issue in litigation between the same parties; and (3) a showing that the determination was in favor of the party seeking to raise the estoppel bar.' Commonwealth v. Lopez, 383 Mass. 497, 499 (1981). Additionally, '[t]he doctrine of collateral estoppel . . . may bar totally a subsequent prosecution if one of the issues necessarily decided at the first trial is an essential element of the alleged crime in the second trial.' Commonwealth v. Benson, 389 Mass. 473, 478 (1983) (emphasis added).
Collateral estoppel may be invoked against the Commonwealth. Commonwealth v. Williams, 431 Mass. 71, 73-77 (2000).
The defendant concedes that generally, a conspiracy prosecution does not run afoul of collateral estoppel when commenced after a verdict of not guilty on the underlying substantive offense. See id., at 479-480 (conspiracy to commit arson prosecution allowed to proceed despite a not guilty verdict in the earlier substantive arson trial); Commonwealth v. DeCillis, 41 Mass. App. Ct. 312, 314 (1996) (citation omitted) ('There is a 'fundamental distinction between a substantive offense and a conspiracy to commit that offence . . . . Each is a separate and distinct offence and each may be separately punished'').
However, the defendant argues that here it was not the acquittal alone that conclusively decided the issue of intent to distribute. Rather, he claims that the acquittal on the trafficking charge in addition to the special verdict finding simple possession of 100.67 grams of cocaine definitively established that the defendant lacked the intent to distribute those same 100.67 grams. The defendant argues that 'the intent to distribute cocaine that reached the trafficking threshold' is an essential element of conspiracy to traffic cocaine, and reasons that because the intent element was decided in the defendant's favor at the first trial, the conspiracy prosecution should have been barred. See Benson, supra at 478.
The Commonwealth argues that 'intent to distribute cocaine that reached the trafficking threshold' is not an essential element of conspiracy to traffic in cocaine, and that therefore a prior adjudication of that issue should have no effect on a subsequent conspiracy prosecution.
In its argument the Commonwealth relies on Commonwealth v. Pero, 402 Mass. 476 (1988), a 1988 decision with strikingly similar facts to the case at bar. In Pero, the defendant was indicted on numerous narcotics offenses, including possession of cocaine with intent to distribute and conspiracy to traffic in cocaine. Id. at 477. A jury convicted Pero of possession of cocaine but acquitted him of possession with intent to distribute. Ibid. In a subsequent trial, Pero was convicted of the conspiracy to traffic in cocaine charge. Ibid. Pero argued on appeal that the Commonwealth was collaterally estopped from prosecuting the conspiracy charge because he had been acquitted of possession with intent to distribute, which, he argued, was an essential element of the crime of conspiracy. Id. at 477-478.
The court agreed with Pero that 'the relitigation of the issue of possession with intent to distribute [was] barred' by the first verdict. Ibid. However, the court affirmed the conspiracy conviction, concluding that possession with intent to distribute was not a necessary element of conspiracy to traffic in cocaine. Id. at 478. The court concluded that the defendant had erroneously conflated the intent to distribute a specific amount of cocaine with the agreement to traffic in cocaine, noting that '[t]he issues are not the same.' Ibid.
In distinguishing the two issues, the Pero court stated that while in the first trial the Commonwealth needed to prove that the defendant 'did knowingly . . . possess with the intent to distribute . . . Cocaine,' in the second trial the Commonwealth needed only to prove that the defendant 'did conspire with [his coconspirators] to traffic in Cocaine by knowingly or intentionally distributing, dispensing or possessing with the intent to distribute.' Ibid. The court concluded that the jury's initial not guilty verdict on the possession with intent to distribute charge did 'not settle the question whether the defendant entered an agreement with the coconspirators . . . 'to traffic in cocaine." Id. at 478-479. The court held that the essence of the conspiracy is 'the agreement to traffic in cocaine and such agreement does not require possession of cocaine at the time of the agreement' (emphasis added). Id. at 479. See Commonwealth v. Frazier, 410 Mass. 235, 244-246 (1991) (in the context of a motion to suppress, holding that possession of cocaine is not an essential element of conspiracy to traffic cocaine).
This last holding from Pero inescapably and conclusively disposes of the defendant's argument. To support a conspiracy charge, the Commonwealth need only prove that the defendant agreed on or about the alleged date to distribute some amount over 100 grams, regardless of whether or not he possessed that exact amount at the time the alleged illegal agreement took place, or indeed whether he happened to possess more than that amount without the intent to distribute it (as is the case here). Here, the Commonwealth was not estopped from arguing that the defendant had entered into an agreement with Philakham to distribute over 100 grams of cocaine on or about January 4, 2007, and there was ample circumstantial evidence presented at the conspiracy trial to support a finding that the defendant did so.
Unlike the present case, there apparently was no special verdict in the first Pero trial whereby the jury definitively found that the defendant did possess an amount of cocaine in excess of the trafficking threshold. The special verdict is ultimately irrelevant, however, because of the holding in Pero that a conspiracy charge is not barred even if the defendant possesses no cocaine at all. See Pero, supra at 478-479.
This included the testimony by Kerri Ann Kaminski describing her many cocaine purchases from the defendant and his coconspirator, as well as most of the evidence from the first trial, including the implements of cocaine distribution found in the house, and the 100.67 grams of cocaine that the first jury found the defendant had simply possessed. The Commonwealth did not explicitly argue at the conspiracy trial that Ny Hong possessed the 100.67 grams with an intent to distribute them at the time of his arrest.
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Because the intent to distribute cocaine in a defendant's possession that reaches the trafficking threshold is not an essential element of conspiracy to traffic, the Commonwealth was not collaterally estopped from prosecuting the conspiracy to traffic charge. The motion judge's denial of the motion to dismiss was not in error, and the judgments are affirmed.
Judgments affirmed.
By the Court (Cypher, Green & Trainor, JJ.),