Opinion
21-P-113
05-17-2022
COMMONWEALTH v. KIRK GRAHAM.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was indicted on eleven charges stemming from his involvement in a drug distribution operation. A Superior Court jury found the defendant guilty of one count of distribution of cocaine, G. L. c. 94C, § 32A (c0, and one count of money laundering, G. L. c. 267A, § 2. On appeal, the defendant contends that there was insufficient evidence of money laundering and that trial counsel's numerous errors deprived him of his right to effective assistance of counsel. We affirm.
The defendant was indicted for multiple counts of drug and firearm offenses. Seven of the indictments contained sentencing enhancements based on prior convictions.
The defendant was acquitted of the remainder of the charges. He pleaded guilty to the charge of conspiracy to violate drug laws.
Discussion.
1. Sufficiency of evidence.
At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty as to the charge of money laundering. We now review the defendant's challenge to the denial of that motion under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
Where, as here, a charge of money laundering is prosecuted under the first subsection of the statute, the Commonwealth must prove that the defendant "knowingly transport[ed] or possess[ed] a monetary instrument or other property that was derived from criminal activity with the intent to promote, carry on or facilitate criminal activity." G. L. c. 267A, § 2 (1). A "monetary instrument" includes "the currency and coin of the United States." G. L. c. 267A, § 1.
The defendant insists the Commonwealth was required to prove, but did not, that the defendant "transported or possessed money from prior drug sales with the intent to use that same specific money to further facilitate criminal activity." Without such proof, the defendant contends that there is a possibility that some of the money expended "to facilitate criminal activity" was derived from lawful means. This argument is not supported by the plain language of the statute, which contains no such specificity requirement. Additionally, "the Commonwealth need not disprove every possible theory of the case." Commonwealth v. Woods, 466 Mass. 707, 716 n.8 (2014).
In interpreting the "concealment" prong of the money laundering statute, see G. L. c. 267A, § 2 (2), the Supreme Judicial Court looked to the analogous Federal statute. See Commonwealth v. Braune, 481 Mass. 304, 308 (2019) . Accordingly, we note that Federal courts have also addressed the Federal analogue to G. L. c. 267A, § 2 (1), see 18 U.S.C. § 1956(a)(1)(A)(i), and have disclaimed a requirement that "the government [] trace the money to a particular illegal drug transaction." United States v. Hardwell, 80 F.3d 1471, 1483 (10th Cir. 1996). See United States v. Puig-Infante, 19 F.3d 929, 940 (5th Cir. 1994) (evidence of defendant's involvement "in a continuing, self-funded drug organization" sufficient to prove expended funds were derived from criminal activity).
The Commonwealth presented evidence of a drug distribution operation, organized by the defendant out of an apartment building in Turners Falls. Witnesses for the Commonwealth described the building as a locus for the manufacturing, packaging, sale, and use of illegal drugs. These witnesses --residents of the apartment building -- testified that the defendant sold drugs to them for their personal use, but that he also gave them individually wrapped bags of powder cocaine, "crack" cocaine, and heroin to sell to others. One witness testified, under a grant of immunity, that the defendant stored the money from these sales in the witness's apartment. At one point, the resident believed there to be "[ten] grand, easy . . . hidden in [his] closet." Another witness, also testifying under a grant of immunity, had lived at the building for more than two years and had bought drugs from the defendant on a daily basis; he had no knowledge of the defendant having any employment. The defendant paid his rent in cash. When police searched the defendant's apartment following his arrest, they discovered a plastic bag containing $5,700 in cash. See Commonwealth v. Lopez, 31 Mass.App.Ct. 547, 551 (1991).
The Commonwealth also presented evidence that the defendant transported or possessed this money "with the intent to promote, carry on or facilitate criminal activity." G. L. c. 267A, § 2 (1). The defendant supplied his drug distribution operation by purchasing bulk amounts of cocaine and heroin. A witness testified that the defendant would periodically meet with suppliers, and that the witness had twice accompanied the defendant to New York for this purpose. They returned to Massachusetts after one of these trips with "a kilo of coke," which they then bagged for individual sale. The evidence also suggested that the defendant attempted to hide his identity when engaged in criminal activity. Contrast Commonwealth v. Durango, 47 Mass.App.Ct. 185, 189 (1999). For example, when the defendant drove to New York, he did so in a vehicle that was registered to another. The defendant also rented his apartment, and conducted his drug transactions, under an alias. Taken together, this evidence was sufficient for a jury to infer that the defendant intended to use the proceeds of his drug sales to further his criminal activity, that is, to fund the bulk drug purchases necessary to resupply his operation. The judge properly denied the defendant's motion for a required finding of not guilty.
To the extent that the defendant also claims that the jury instructions were "inadequate" and the verdict slip "erroneous," the defendant neither identifies the alleged errors nor supports his claims by citation to relevant legal authority. See Commonwealth v. Gordon, 407 Mass. 340, 350 (1990) (defendant's conclusory argument, lacking citation to legal authority, insufficient for appellate argument).
2. Motion for new trial.
The defendant also appeals from the denial of his motion for a new trial based on numerous claims of ineffective assistance of counsel. "Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974) .
Because the trial judge had retired, the defendant's motion was assigned to a different judge.
a. Pretrial ineffective assistance claims.
The defendant contends that he was denied effective assistance because trial counsel failed to file motions to dismiss the conspiracy and money laundering charges and also failed to file a motion to suppress. However, "[i]t is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success." Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) .
The grand jury heard evidence that various residents of the apartment building helped the defendant to procure, package, and distribute illegal drugs, that is, that there was an agreement between the defendant and the residents to violate the drug laws. In addition, the grand jury heard that the defendant's drug distribution operation generated cash proceeds and that the defendant purchased bulk amounts of drugs to resupply that operation. This was sufficient evidence to establish "probable cause to believe the crime[s] alleged in the indictment[s] [had] been committed," Commonwealth v. Fernandes, 483 Mass. 1, 11 (2019), and to return indictments that provided the defendant with notice of the charges against him. See Commonwealth v. Wentworth, 482 Mass. 664, 668-669 (2019).
Contrary to the defendant's claim, the Commonwealth is not required to identify the alleged coconspirators by name. Cf. Commonwealth v. Geane, 51 Mass.App.Ct. 149, 152 n.5 (2001) ("The nature of the res converted is not an element of [larceny]").
Nor is there merit to the defendant's argument that trial counsel should have moved to suppress evidence for lack of probable cause. "To establish probable cause, the Commonwealth must demonstrate a nexus between the crime under investigation and the subject of its search." Commonwealth v. Louis, 487 Mass. 759, 763 (2021). Here, the facts contained in the affidavit were informed by tips from five confidential informants. The affidavit stated that the defendant rented an apartment in the building and procured drugs in bulk for resale out of that building. The defendant did not meet with the "street level dealers" in his apartment, but instead used his cell phone to arrange meetings at other locations in the building. See Commonwealth v. Perkins, 478 Mass. 97, 105 (2017) ("detailed and specific knowledge concerning the defendant's use of a cellular telephone to arrange drug transactions" provides nexus to search cell phone). Thus, even though the affidavit did not provide direct proof that evidence of the defendant's drug distribution operation would be found in his apartment, it was a reasonable inference that the apartment was used "as a base of operations for a drug delivery business," Commonwealth v. Escalera, 462 Mass. 636, 645 (2012), and that the defendant carried drugs on his person from the apartment to the prearranged drugs sales. See Commonwealth v. Matias, 440 Mass. 787, 794 (2004).
The informants' consistent and uniform descriptions of the defendant and his drug activities established a basis for their knowledge. See Commonwealth v. O'Day, 440 Mass. 296, 301 (2003) ("The level of detail . . . provided . . . was 'consistent with personal observation, not mere recitation of a casual rumor'" [citation omitted]). As to their veracity, four of the five informants had previously provided information to police that resulted in convictions for drug offenses. See Commonwealth v. Amral, 407 Mass. 511, 515 (1990). The fifth, despite having no comparable track record as an informant, gave the police detailed information that was essentially cumulative of, and corroborated by, information given by the other informants. See Commonwealth v. Barbosa, 463 Mass. 116, 134 (2012).
The defendant argues that, even though there may have been information that he used cell phones to communicate drug deals, there was no specific information that drug related text messages would be found, especially since he could have deleted old text messages, "like most people do." However, the search warrant affidavit related that drug related cell phone communications result in the creation of records of these communications on the cell phones themselves, in the form of call logs as well as text messages. Notwithstanding the defendant's unsupported assertion of what most people do with their old text messages, the affidavit provided probable cause to believe that evidence of drug related communications would be found on the cell phones.
The defendant has similarly failed to show that trial counsel was ineffective for failing to move for a hearing under Franks v. Delaware, 438 U.S. 154, 155-156 (1978), where the affidavit purporting to identify "false statements" contained in the search warrant affidavit was almost immediately disavowed by its affiant or for adequately moving to strike the jury venire. See Commonwealth v. Iglesias, 426 Mass. 574, 579 (1998) ("failure [to challenge composition of petit jury] does not demonstrate error in the absence of a showing that such a motion would have been successful").
b. Ineffective assistance at trial claims.
The defendant also recites a litany of alleged deficiencies at trial. None of them, individually or collectively, satisfy the standard for ineffective assistance of counsel. See Commonwealth v. Ortiz, 53 Mass.App.Ct. 168, 178 (2001) ("Dividing the performance of trial counsel piece by piece to form a collage of alleged ineffectiveness is generally not persuasive, as we assess the performance of counsel as a whole").
First, trial counsel's cross-examination of a cooperating witness did not "fill[] in evidentiary gaps in the Commonwealth's case" on the single conviction for distribution of cocaine. It was not disputed at trial that the witness had participated in controlled buys; rather, the material issue was whether the defendant was the seller during each of the transactions. Here, where the jury convicted the defendant on the only distribution count for which there was direct evidence that the witness coordinated the controlled buy with the defendant we cannot say that "a different approach to impeachment would likely have affected the jury's conclusion" (citation omitted) . Commonwealth v. Valentin, 470 Mass. 186, 190 (2014).
We note that trial counsel may have had a strategic reason to identify that particular controlled buy, namely, that in January 2015, the witness was facing violation of probation proceedings.
The remainder of the defendant's claims require little discussion. For example, trial counsel can hardly be faulted for failing to object to testimony that described the workings of the defendant's drug distribution operation. See Commonwealth v. McLaughlin, 79 Mass.App.Ct. 670, 678 (2011) ("The absence of an unmeritorious or futile objection cannot constitute ineffectiveness"). Such evidence was probative of the money laundering charge, and the judge properly instructed the jury that the evidence was not to be used as propensity evidence regarding the distribution charges. The motion judge did not err in denying the defendant's motion for a new trial.
The defendant's final claims, that trial counsel was ineffective for failing to raise the discrepancy between the gross and net weight of the cocaine seized, to press for "updated discovery," or to object to a witness at the subsequent offender portion of his trial, are meritless. See Commonwealth v. Laguer, 410 Mass. 89, 94 (1991) (no ineffective assistance where defendant's claims were "either predicated on facts that have not been established or are grounded on mere speculation with regard to likely prejudice").
Judgments affirmed.
Order denying motion for new trial affirmed.
The panelists are listed in order of seniority.