01/19/2024
HAMPDEN, ss.
SUPERIOR COURT DOCKET NOS. 1279CR00043 and 1479CR00007
COMMONWEALTH OF MASSACHUSETTS
COMMONWEALTH
VS.
AYYUB ABDUL-ALIM
FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON DEFENDANT'S MOTIONS FOR POST-CONVICTION RELIEF
I. Introduction
The defendant, Ayyub Abdul-Alim, challenges his convictions on two fi****ms offenses
in 1279CR00043 ("the 2012 case," which was tried in April 2014, before Sweeney, J.) and for possession of a high capacity feeding device ni 1479CR00007 ("the 2014 case," which was tried
ni May 2018, before Page, J.).' Despite the two-year gap ni the issuance of the indictments ni these cases, they arose out of incidents which occurred nine days apart in December 2011: the
seizure of a firearm from the defendant's person outside his apartment on December 9, 2011, at issue ni the 2012 case; and the seizure of a firearm, magazine and ammunition during the ex*****on of a search warrant in an apartment on December 18, 2011, at issue in the 2014 case. In both cases, the defendant has maintained that police planted the evidence and framed him to
' Both trial judges have retired.
In the 2012 case, the defendant was indicted on January 19, 2012, on charges of unlawful possession of a firearm without an FID card, ni violation of G. L. c. 269, § 10(h), and ni violation of G. L. c. 269, § 10G (Count 1); for carrying a firearm without a license, ni violation of G. L. c. 269, § 10(a), and ni violation of G. L. c. 269, § 10G, and of G. L. c. 269, § 10(d) (Count 2); and a third charge on which the Commonwealth ultimately filed a nolle prosequi. On April 15, 2014, the jury convicted the defendant on so much of Counts 1and 2 as alleged first offenses and the defendant pleaded guilty to the enhanced portions of those counts.
respectth1 iteo,hetedcharan,saComonalnary 2gd,hrahteWendanevnedchar,avtrial under Commonwealth v. Guardado, 491 Mass. 6 (2023) (Guardado 1), vacated ni part by Commonwealth .v Guardado, 493 Mass. 1(2023) (Guardado Il. At issue now si the defendant's conviction for possession of a large capacity feeding device, ni violation of G.L. c. 269, §10(m) (Count 4).
coerce him to cooperate with the FBI and provide information about persons affiliated with the mosque and community center frequented by the defendant, in furtherance of the FBI's investigation of activities of suspected Islamic radicals. Before the court are the defendant's amended consolidated motions for post-conviction relief?
With respect to the 2012 case, the defendant claims entitlement to a new trial on many grounds, among them that he has newly discovered evidence - FBI documents - showing that between 2002 and 2010, the FBI repeatedly sought the defendant's cooperation, but the
defendant declined. In the 2014 case, as to Count 4, the defendant moves to revise and revoke the sentence under Mass. R. Crim. P. 29 and, alternatively, for entry of a not guilty finding under Mass. R. Crim. P. 25(a)(2), on the grounds that there was insufficient evidence that the defendant knew that the magazine was a high capacity feeding device. After an evidentiary hearing and considering the voluminous record, the court makes the following findings of fact' and rulings of law, and allows the defendant's consolidated motions for post-conviction relief.
II. The 2012 Case
A. Facts
1. Evidence at Trial
At the defendant's trial, held on April 10-15, 2014, the jury heard the following evidence. nI December 2011, the defendant, his wife Siham Stewart,* and her ten-year old son lived ni a second-floor apartment ni the complex at 683-685 State Street, Springfield. At some point ni the
2 The defendant also filed, ni both cases, a Motion ot Amend His Consolidated Motions to Revise and Revoke Sentence and Motions for New Trial ( #162 ni 1279CR00043 and #171 ni 1479CR00007). As set forth ni the order below, those motions ot amend are both alowed.
3The findings are based on the evidence, viewed ni the light most favorable ot the Commonwealth, admited at both trials and the evidence admitted at the evidentiary hearing on the defendant's consolidated motions for post- conviction relief. The court reserves some details for the legal analysis.
*Stewart's wedding ot the defendant ni 2010 was religious but invalid under civil law. 2
weeks before December 8, 2011, Stewart informed an officer in the Springfield Police Department (SPD) that the defendant was involved ni drug dealing and had a firearm. The
defendant's prior convictions prohibited him from lawfully possessing a gun ni Massachusetts. Stewart spoke with Ronald Sheehan, a highly experienced SPD officer who was also a member of the Federal Bureau of Investigation (FBI) Joint Terrorism Task Force ("the Task Force"). The
Task Force was ajoint effort of Federal, State and local law enforcement personnel and was created following the events of September 1, 2001. Sheehan testified that he was deputized as a
Federal agent and assigned to the Department of Justice. He also testified that he was a "co-case agent" on Stewart, who was identified as an informant.
On December 9, 2011, Stewart called Sheehan ot tell him that the defendant was about to meet his drug supplier at the gas station next door to the apartment building. Stewart described the drug supplier's car, a white jeep. Sheehan and other SPD officers went there and saw the vehicle matching the description given by Stewart as that of the supplier. Stewart, who was watching events unfold from her apartment window, telephoned Sheehan and told him that the defendant had just left the apartment, had a gun, and how he was dressed. Police saw the defendant and seized him, but did not initially find a gun ni their pat-frisk. Stewart called Sheehan again to inform him that the gun was ni the defendant's underpants. Police then found the handgun, a 25 caliber C**t semi-automatic pistol, its magazine, and its 5 live cartridges as ammunition. Police asked the defendant for a license, and he replied that he did not have one.
Law enforcement made a series of cash payments to Stewart beginning ni April 2012. Stewart received atotal of $11,949. Most or al of these payments were made ni person by
5Defense counsel extensively cross-examined officers who were at the scene of the arrest about inconsistencies ni their accounts of seizing the gun (i.e., whether the defendant was inside or outside of the cruiser; whether the gun was found inside his underpants or between his underpants and pants, and the type of gun seized).
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Sheehan. At trial, the payments were sometimes characterized as having been paid by hte Federal government and at least once by the Springfield Police Department. On at least one occasion,
FBI Special Agent James Hisgen signed of on Sheehan's payment to Stewart. Stewart and Sheehan denied that those payments were for her involvement ni the defendant's case.
The defendant's trial testimony gave a different account of these events, consistent with the defense theory that the prosecution of both the 2012 and 2014 cases was the result of a joint Federal and State effort to coerce him ot provide information about the activities of potential Islamic terrorists ni the Springfield area. At his trial ni the 2012 case, the defendant testified that police found no gun on him but planted it on him, and that once he was placed in the cruiser, Sheehan asked the defendant fi he was "ready to make the deal of a lifetime." The defendant replied that the gun was not his and that surveillance camera videos should be reviewed. (Trial Test. Vol. 2, p. 140; and Vol. 3, pp. 10-11).
Both the defendant and Sheehan testified that on December 1, 2011, two days after the defendant's arrest, when the defendant was being held at the police station, Sheehan and an FBI agent (who was after trial revealed to be James Hisgen), visited the defendant and asked if he wanted to cooperate and become an informant. The defendant told the jury that the same FBI agent had previously gone ot the defendant's mosque ni the winter of 2010 and asked the defendant about cooperating, but the defendant did not do so. Sheehan and the FBI agent asked the defendant to call fi he wanted to cooperate. The defendant did not agree to cooperate.
Relevant to whether, as the defendant argued, police had planted the pistol on him, was whether the gun had fingerprints matching those of the defendant. At trial, SPD Sergeant Daniel Reigner testified that there were no useable fingerprints on the items seized from the defendant. Reigner explained that usually none are found because any slight touch against them can easily
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destroy the fingerprints. The defendant challenged that testimony insofar as it did not show that there were no fingerprints on the inside of the gun, which had not been taken apart. During the
trial, the defendant moved for a required finding of not guilty, which motion Judge Sweeney denied. On April 15, 2014, the defendant was convicted on Counts 1and 2 (unlawful possession of a firearm without an FID card, and carrying a firearm without a license, both as subsequent offenses).2 Discovery and Defense Efforts to Obtain FBI Materials
In pretrial discovery, the defendant sought, among other things, materials concerning
what he believed was the joint investigation by the FBI and local police related ot his case. The Commonwealth did not produce that discovery. In November 2013, about five months before trial, defense attorney Thomas Robinson® submitted a request under the Freedom of Information Act (FOIA) for documents concerning the FBI's investigation of the defendant. Having not received those documents by April 9, 2014, the defendant moved to continue the trial. The defense believed that those documents would show the FBI's longstanding interest in the defendant as a potential informant, its related communications with him, the FBI's visits to his mosque, and requests for him to cooperate. Judge Sweeney denied the defendant's motion to continue the trial, which had already been continued by two months, in part to accommodate hte defendant's unresolved FOIA request.
*The defendant was represented by Attorney Thomas Robinson from June 15, 2012, through trial in April 2014. The record of this case shows that Robinson provided highly competent representation to the defendant. Robinson tenaciously sought relevant pretrial discovery from the Commonwealth. He filed motions ot dismiss and multiple motions (some successful) to suppress evidence. During trial, Robinson capably exposed evidentiary weaknesses ni the Commonwealth's case.
>The defendant filed a lawsuit to obtain those FBI documents and moved to continue the trial until they were provided ot him. Robinson states ni his affidavit dated August 11, 2021 (and admitted as Exhibit 1in the evidentiary hearing on the defendants' post-conviction motions), "In April of 2014, Iwas compeled ot go to trial on Indictment No. 12-043 over my objection before the resolution of the FOIA litigation." The FBI provided hte FOlA-requested FBI materials ni nine batches between October 2014 and February 2016.
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3. The Defendant's Direct Appeal
In his direct appeal, the defendant reiterated his claim that his prosecution was the result
of ajoint Federal and State effort ot coerce him to provide information about the activities of
potential Islamic terrorists ni hte Springfield area. Se Abdul-Alim, 91 Mass. App. Ct. 165, 16 (2017).® The Appeals Court affirmed the judgment ni the 2012 case.
4. Post-Trial Production of FBI Records
Between October 30, 2014, and February 4, 2016, the defendant obtained materials responsive ot his FOIA request regarding FBI investigative information about the defendant's activities, his communications with FBI agents, and his possible connections with radical Islamic persons or organizations. The records show a longstanding interest by the FBI ni the defendant, going back at least to 2002, due to his possible connections with groups or individuals viewed by the FBI as radical Islamists, some of whom were viewed as possibly having ties to terrorism and
other criminal conduct involving drug trafficking and fi****ms offenses. The documents also support the defendant's assertion that an FBI agent (later revealed to be James Hisgen) visited the defendant's mosque, spoke with him there, and subsequently exchanged several telephonic communications with him ot arrange his interview at an FBI office. The defendant ultimately did
&The Appeals Court rejected the defendant's argument that the trial judge wrongly denied his request for continuance of the trial in order to wait for the FOIA-requested documents to be provided. The Appeals Court stated that: (1) if the prosecution of the defendant were the result of a joint State and Federal effort, the defendant would be entitled to exculpatory evidence ni the possession of both State and Federal law enforcement personnel involved in the investigation; (2) the Commonwealth would have an obligation to produce to the defendant "discovery material ni the possession of any State or Federal offices involved ni the investigation" if Sheehan's discussions with Stewart about the defendant or the fi****ms charges were the result of a joint State and Federal investigation; and (3) the Commonwealth would have an obligation to disclose to the defendant fi SPD police planted a gun on the defendant as part of a joint counter-terrorism effort to coerce the defendant to become an informant. The Appeals Court identified no basis in the record to challenge the Commonwealth's assertion that the defendant's arrest was not the product of a joint effort by Federal and State law enforcement officers. The Appeals Court clarified that "[to the extent the defendant seeks or possesses new information, not included ni the [Trial Court] record, ot challenge this conclusion, his remedy si to file a postconviction motion in the Superior Court, where such facts can be developed and considered." Id. at 170.
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not meet for that interview.
B. Rulings of Law on New Trial Motion in 2012 Case
There is a presumption of regularity ni convictions. See Commonwealth .v Lopez, 426 Mass. 657, 662 (1998). The disposition of a new trial motion is addressed to the sound discretion
of the judge. Commonwealth v. Schand, 420 Mass. 783, 787 (1995). The judge may grant a new trial "at any time fi ti appears that justice may not have been done." Mass. R. Crim. P. 30(b). In ruling on a motion for new trial, the judge must determine whether there has been a significant error of law or other abuse of discretion. Commonwealth v. Milley, 67 Mass. App. Ct. 685, 687 (2006). An error creates a substantial risk of a miscarriage of justice unless it did not materially influence the verdict. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Among the defendant's primary grounds for claiming entitlement to a new trial ni the 2012 case is that the evidence of the FBI's longstanding investigation of the defendant and
T' he documents admited into evidence as Exhibit 2at the October 30, 2023, evidentiary hearing on hte defendant's motions for postconviction relief contain the following information and/or support the following inferences. (1) nI May of 2002, the FBI had information that the defendant had numerous associations with groups which are the subject of international terrorism cases and investigations. (2) nI October 2002, the FBI was investigating, using information from the Amherst Police Department and the Bureau of Alcohol, To***co and Fi****ms, the defendant's activities, including whether he was providing financial support ot any designated terrorist organizations. (3) nI March 2003, an FBI memorandum stated that the FBI sought to identify the defendant's relationship with the leadership of the local Muslims of America; that the defendant was then awaiting trial on State drug trafficking and fi****ms charges which "may yield up ot a ten-year State Prison sentence that may enhance our opportunities ot debrief Alim . . . [A]n interview of [the defendant] should be conducted." (Court records show that the defendant was convicted in 2003 on multiple counts of trafficking co***ne three years earlier). (4) In 2004, the FBI continued to investigate the defendant's contacts with an organization whose members were involved ni training individuals convicted ni the First World Trade Center bombing. (5) In June 2004, the defendant was transferred from a Massachusetts prison to New York, where he was interviewed by Federal authorities about his father and then returned ot Massachusetts. (6) On October 22, 2004, the FBI was informed by "DUSM [redacted] that talks with [the defendant] have fell [sic] through due to the fact that the DA in Amherst was unwilling to negotiate in regard to [the defendant's] state sentence." This supports an inference that the FBI had been unable to obtain the defendant's cooperation because ti had no leverage, since the prosecutor ni a State case against the defendant would not agree to a more favorable sentence. (7) An FBI agent (now known to be Hisgen) went to the defendant's mosque ni April 2008 to speak with the defendant. The FBI noted in various reports that it sought to interview the defendant about any mosque-related persons, organizations and activities and possible terrorism acts. Subsequently, ni July and August of 2010, the defendant exchanged voicemail messages and other communications with an FBI agent and discussed being interviewed at the FBI office, but never appeared for an interview. (8) On November 29, 2010, the defendant was the property manager of apartments above 683-687 State Street, Springfield.
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repeated efforts to seek his cooperation is newly discovered and would have been a real factor in the jury's deliberations had ti been presented. A defendant seeking a new trial on the grounds of
newly discovered evidence must demonstrate that the evidence si newly discovered, that it is
credible and material, and that it casts real doubt on the justice of the conviction. Commonwealth
v. Pina, 481 Mass. 413, 435 (2019). The defendant's burden has also been described as a two- part test in which the defendant must first establish that the evidence was unknown ot the defendant or trial counsel and not reasonably discoverable at the time of trial, and that it casts real doubt on the justice of the conviction. Commonwealth v. Cowels, 470 Mass. 607, 616 (2015). For newly discovered evidence to cast real doubt on the justice of the conviction, "the
judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Commonwealth v. Grace, 397 Mass. 303, 306 (1986).
In making this assessment, the motion judge does not decide whether the verdict would have been different, but whether the new evidence "would probably have been a real factor in the
jury's deliberations." Id. In this case, where the trial judge has retired, this court has carefully scrutinized the entire record to determine fairly whether the newly discovered FBI evidence "would probably have been a real factor ni the jury's deliberations." See id.
The newly discovered evidence "must be weighty and of such nature as to its credibility,
potency, and pertinency to fundamental issues in the case as to be worthy of careful
consideration." Commonwealth v. Flynn, 100 Mass. App. Ct. 1111, 1113 (2021), quoting
Commonwealth .v Brown, 378 Mas. 165, 171 (1979). "Newly discovered evidence that si cumulative of evidence admitted at the trial tends to carry less weight than new evidence that is
different in kind." Flynn, 100 Mass. App. Ct. at *3, quoting Grace, 397 Mass. at 305-306. See also Commonwealth v. Cintron, 435 Mass. 509, 518 (2001) (defendant failed to meet standard
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for new trial because evidence "would not have differed in any particular way" from testimony at
trial). Where newly discovered evidence is cumulative, it does not raise a substantial risk that a jury would reach a different conclusion fi given this evidence. Id.
The defendant, through Attorney Robinson, diligently sought the FBI records ni discovery requests and FOIA litigation, wel before trial in the 2012 case. The records were only given to the defendant after his trial, and ni nine batches over the course of 16 months, between October 2014 and February 2016. Therefore, the court finds that the FBI records were not reasonably discoverable at the time of trial and that they qualify as newly discovered evidence. See Cowels, 470 Mass. at 616.
The records are plainly pertinent to the crux of the defense, that the evidence was planted in order to coerce the defendant's cooperation ni the FBI investigation. The FBI records are "weighty and of such nature as to its credibility, potency, and pertinency to fundamental issues ni the case as to be worthy of careful consideration." See Flynn, 10 Mass. App. Ct. at 1113. The FBI records are both credible and material. See Pina, 481 Mass. at 435.
At issue is whether this newly discovered evidence casts real doubt on the justice of the conviction, such that there "is a substantial risk that the jury would have reached a different conclusion had the evidence been admited at trial," and specifically whether the new evidence "would probably have been a real factor in the jury's deliberations." Grace, 397 Mass. at 306.
The question is extremely close. As set forth above, the jury heard from two witnesses, Sheehan and the defendant, that Sheehan and an FBI agent visited the defendant shortly after his arrest and sought his cooperation with the FBI, and that the defendant was not interested. This undisputed fact could be viewed as lending some credibility to the defendant's testimony that on
December 9, 2011, moments after the defendant's arrest, Sheehan asked the defendant fi he wanted to make a deal.
The newly discovered FBI records go further, as they reveal a longstanding interest by the FBI in the defendant dating back to May 2002. At that point, the defendant faced indictments on co***ne trafficking (of which he was convicted in 2003). The defendant was being investigated by the FBI because of his perceived connection with groups or individuals who may have been viewed by the FBI as radical Islamists or who may have had connections with or information about radical Islamists. (The court notes that this investigation was occurring ni the months after the tragedy of 9/11). The FBI records support inferences that the FBI repeatedly considered using the defendant's criminal matters as a way ot obtain his cooperation. In May 2003, the FBI records show that the defendant's potential ten-vear sentence on then pending
criminal charges "may enhance our ability ot debrief [him and that] an interview of [the defendant] should be conducted." That plan was also evident in 2004, when the FBI interviewed the defendant in New York, after having him transferred from a Massachusetts prison, and sought his cooperation, but talks for such cooperation fell through because a State prosecutor would not agree to provide some leniency ni the defendant's sentencing ni the State case. The FBI documents also corroborate the defendant's trial testimony that ni about 2010 (although the FBI records give the date of the visit as April 2008), an FBI agent visited the defendant's mosque, spoke with him there, and tried to obtain his cooperation. Viewed together, these and other FBI records disclose a pattern of conduct by the FBI, from 2002 through late 2010, ni which the FBI was investigating the defendant, repeatedly seeking ways to obtain his cooperation (including by considering ways to influence his prosecution and/or sentencing in
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State cases), yet was unsuccessful due to noncooperation by a State prosecutor or by the defendant.
In deciding whether these facts disclosed by the FBI records "would probably have been a real factor in the jury's deliberations," see Grace, 397 Mass. at 306, the court considers the records in light of the strength of the Commonwealth's case. This was not a case ni which there was overwhelming evidence of guilt. On one hand, the prosecution presented the testimony of Sheehan, a highly experienced officer who testified about the arrest of the defendant on December 9, 2011 (and that the gun was not planted on the defendant), and the FBI agent's visit to the defendant, two days later, asking the defendant to be an informant.
On the other hand, as ably highlighted by defense counsel in trial, the Commonwealth's case was far from ironclad. Among the evidentiary gaps were: (1) the absence of testing for fingerprints inside the gun; (2) the absence of a videotape of the arrest scene (at a gas station), which would have shown whether the gun was found on the defendant or had been put there by police; (3) the Task Force's payments (of over $11,000 at that point) to Stewart, a key witness ni the 2012 case, beginning ni 2012, and questions about the plausibility of testimony by Stewart and Sheehan denying that those payments were unrelated to Stewart's provision of information about the defendant; and (4) inconsistencies and gaps ni officers' accounts about the seizure of the gun from the defendant (including whether the defendant was inside or outside the cruiser at the time the gun was found, and the type of gun).
In sum, the newly discovered FBI records, had they been available to the defendant before trial, would not have been merely cumulative of other evidence and would not have merely corroborated some aspects of the defendant's testimony. Instead, they would have provided some evidence of the FBI's longstanding and unsuccessful efforts to obtain the
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defendant's cooperation, including by trying to influence the outcome of his criminal proceedings in State cases. Because the Commonwealth did not present at trial overwhelming evidence of guilt, and some legitimate credibility questions loom larger ni light of the FBI records, the court finds and rules that the newly discovered FBI records "would probably have been a real factor in the jury's deliberations." See Grace, 397 Mass. at 306. Consequently, the defendant's motion for new trial in the 2012 case is allowed.
III. The 2014 Case
The sole issue ni the 2014 case is the legality of the conviction on Count 4, for unlawful
p o s s e s s i o n o f a l a r g e c a p a c i t y f e e d i n g d e v i c e , i n v i o l a t i o n o f G. L . . c 2 6 9 , § 1 0 ( m ) . T h e d e f e n d a n t moves to revise and revoke the sentence under Mass. R. Crim. P. 29, or alternatively for entry of a finding of not guilty under Mass. R. Crim. P. 25(a)(2), or alternatively for a new trial. Among the grounds upon which he seeks post-conviction relief is that the Commonwealth failed to present sufficient evidence that the defendant knew that the magazine was a high capacity feeding device.
A. Facts
The defendant's trial on the 2014 indictments was jury-waived before Page, J. and began
on May 2, 2018. The trial judge was presented with hte folowing evidence. 1. Evidence Found in Bathroom Ceiling of Apartment 6
On December 17, 2011, the defendant was in custody at a house of correction, having been arrested nine days earlier on the charges which were the subject of the 2012 case, as set forth above. When Stewart visited the defendant that day, he asked her to go to apartment 6 on the fourth floor of the apartment complex, to retrieve a bag from the bathroom ceiling, and ot have "Dennis" help her move the bag ot the defendant's store, Nature's Garden, which was on the
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ground floor ni the same building complex. The defendant indicated to Stewart that the bag was heavy and its contents expensive, and he made a gesture that suggested to Stewart that he was speaking about agun.'°
Stewart reported that conversation to police who, on December 18, 2011, obtained a warrant to search apartment 6. Stewart had a key to that apartment and let police inside. SPD Captain Philip Tarpey participated ni the ex*****on of that search warrant. Tarpey testified that after conducting a protective sweep of the apartment, police went ot the bathroom and found, ni a black duffle bag ni the bathroom ceiling, contraband, including the following: (1) a Norinco SKSS semi-automatic rifle; (2) a semi-automatic rifle magazine that can hold 30 rounds and function with the Norinco rifle; (3) 27 rounds of 7.62 ammunition capable of being fired from
the Norinco rifle; (4) five spent, empty shell casings for 7.62 rounds that had been struck and
fired and contained no projectile; (5) a .25 caliber semi-automatic pistol; and (6) live rounds of
ammunition, a holster, and a magazine for the 25 caliber pistol.
2. Stewart's Testimony Regarding Defendant's Use of Guns
Stewart testified that she knew from incidents on two occasions that the defendant had
guns. She testified that on the Fourth of July," the defendant fired agun which had ben ni the same duffle bag later found by police in the ceiling ni apartment 6. Stewart was not on the roof at that time but recognized the sound of the firing as different from fireworks. On a second
1o Apartment 6was not where the defendant had lived with Stewart. Stewart had not previously entered apartment 6. The defendant had been, until July of 2011, the apartment manager for the complex. Stewart testified that when hte defendant was arrested, she was given his possessions, including keys, one of which wasot apartment .6 She further testified that there were at that time no longer tenants occupying that apartment and that the defendant was preparing apartment 6 for his second wife.
In his motion, the defendant does not cite evidence supporting his claim that tenants occupied apartment 6 ni December 201. Instead, the defendant points ot the trial testimony of Norton Norzelin that Norzelin resided ni apartment 6 from January 2010 through December 2010. (See Defendant's Consolidated Motions, #147 ni 1479C00007), at pp. 102-103).
1 It si unclear whether Stewart was referring ot July 4, 2010, or July 4, 2011. 13
occasion, she heard four shots and called the police. Two days later, the defendant told her that he had shot a gun four times.
3. Payments to Stewart for Information
Stewart testified that of the $13,000 to $14,000 in payments she received from the government, most were handed to her by Sheehan, who, as explained above, was working on the
Task Force with Federal, State and local law enforcement personnel. Sheehan testified that Stewart received no money for information ni this case, but received approximately $14,000
beginning in 2012, with the last payment for hotel costs made by the District Attorney's Office ni 2017. That office's victim witness program paid for Stewart's hotel lodging for several weeks when the defendant was released from prison.
4. Fingerprint Evidence
A latent fingerprint was recovered from the high capacity magazine at issue ni Count 4.
SPD Officer Lee Prentice conducted fingerprint analysis and concluded that the fingerprint
matched that of the defendant. Prentice passed away before the trial. At trial, SPD Officer Juan Estrada testified that he had processed the magazine for fingerprints, obtained an impression and,
consistent with Prentice, concluded that the fingerprint on the magazine belonged ot the defendant. Estrada testified that it would be very difficult ot plant a fingerprint, and that he has never seen or heard of it being done.
5. Evidence of FBI seeking Defendant's Cooperation
The defense called as a witness Benjamin Swan, a State Representative. Swan testified
that in mid- ot late 2011, the defendant entered Swan's office at least twice to complain about efforts by a police officer and an FBI agent who wanted the defendant ot be an informant.!2
21 Although hte defendant had previously told his defense counsel, Daniel Kely, that eh would testify at trial, and particularly with respect ot the FBls' eforts ot have hmi be an informant, the defendant changed his mind during
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6. Close of Evidence and Defendant's Closing Argument
At the close of the Commonwealth's case and again at the close of all of the evidence, the
defendant moved for a required finding of not guilty. The trial judge denied those motions.
In his closing argument, Attorney Kelly drew attention to the evidentiary problems with
Commonwealth's case and invited the inference that the magazine and other evidence allegedly found ni apartment 6 had been planted. Kelly argued from the evidence that the Commonwealth's case was undermined by, inter alia: (1) the search warrant return's failure ot list significant items
which allegedly were found, including the 2.5 caliber handgun and clip, magazines, and a holster; (2) the police records were significantly inconsistent with respect to the number of bullets found; (3) three evidence cards stated that the evidence was found ni September 2011, not December 2011; (4) the absence of a videotape of Stewart's jail visit to support her account that the defendant made a hand gesture signalling that there was a gun ni the bag to be moved; (5) the discrepancy between Stewart's testimony that she received keys to apartment 6 (and other possessions of the defendant) when the defendant was arrested, and the fact that the booking sheet does not document that; and (6) police failed to follow protocol by not having a second person check Officer Estrada's fingerprint analysis.
7. Conviction and Sentencing
On May 7, 2018, at the conclusion of the jury-waived trial, Judge Page found the defendant guilty, in relevant part, on Count 4, for possession of a high capacity feeding device. On May 21, 2018, Judge Page sentenced the defendant ot prison for not less than four years and not more than seven years on each of the four counts of the indictment, with each sentence to run
trial and did not testify. The FBI records which were produced after the trial ni the 2012 case were not offered into evidence ni the trial ni the 2014 case.
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concurrently with the other, and 48 days of credit for time spent awaiting trial and disposition. On May 25, 2018, the defendant moved to revise or revoke the sentence. He also timely
filed a notice of appeal, which appeal has been stayed pending disposition of his consolidated motions to revise and revoke sentences and new trial motions in his 2012 and 2014 cases.
B. Rulings of Law on Motion for Post-Conviction Relief in 2014 Case
The dispositive issue with respect ot Count 4 is whether the jury was presented with
sufficient evidence that the defendant knew that the magazine was a large capacity feeding
device. The defendant's motion si brought under various procedural rules, 3 but substantively seeks a required finding of not guilty pursuant to the second sentence of Mass. R. Crim. P.
25(b)(2), which provides in pertinent part, "If a verdict of guilty is returned, a judge may on motion set aside the verdict and order anew trial, or order the entry of afinding of not guilty.
" The Commonwealth agrees that the defendant's Rule 25(b)(2) motion is timely. See Commonwealth v. Arias, 488 Mass. 1004, 1007 (2021) (five day limit in first sentence of Rule 25(b)(2) does not apply ot motion brought under second sentence of rule, which may be filed at any time), citing Commonwealth v. Guy G., 53 Mass. App. Ct. 271, 278 (2001) (applications for relief under second sentence of Rule 25(b)(2) "are without limit of time in the same sense as motions for a new trial under Mass. R. Crim. P. 30(b)").
31 The defendant also moves for relief under Mas. R. Crim. P. 29(a)(2), which authorizes acourt ot revise or
revoke an unjust sentence and reads ni relevant part: "The judge, upon the judge's own motion, or the written motion of adefendant, filed within sixty days of adisposition, within sixty days of issuance of arescript by an appelate
i ape dischargustice yma not sue ters nda condition si het s e e lord ruel a e i ore disgotion criminal disposition si severely limited."' Commonwealth v. Tejeda, 481 Mas. 794, 796 (2019), quoting Commonwealth v. Goodwin, 458 Mass. 1, 16 (2010). The purpose of the rule is "to allow a judge ot consider whether the sentence imposed was just i'n light of the facts as they existed at the time of sentencing.' Tejeda, 481 Mas. at 796, quoting Commonwealth v. McCuloch, 450 Mas. 483, 487 (2008). The defendant timely filed a motion ot revise and revoke on May 25, 2018. (Se docket #127). At isue si whether the defendant has shown that justice may not have been done. See Mass. R. Crim. P. 29(a). The court concludes, for reasons explained ni the analysis of the defendant's motion under Rule 25(b)(2), that the defendant has shown that justice may not have been done and that the appropriate remedy is a new trial.
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General Laws c. 269, § 10(m), punishes "any person not exempted by statute who knowingly has in his possession... a large capacity weapon or large capacity feeding device therefor who does not possess a valid license to carry fi****ms...." "A large capacity feeding device is 'a fixed or detachable magazine... or similar device capable of accepting, or that can be readily converted to accept, more than ten rounds of ammunition.'" Commonwealth v.
Cassidy, 479 Mass. 527, 532 (2018). The requisite "knowledge can be inferred from
circumstantial evidence, including any external indications signaling the nature of the weapon." Id. at 537.
In this case, the magazine which police found in the black duffle bag in the ceiling of the bathroom ni apartment 6 is a large capacity feeding device which can hold 30 rounds of
ammunition. Appellate court rulings issued after the defendant's May 7, 2018, conviction have clarified the factors to be considered in determining the key issue here, whether the Commonwealth has proven the requisite knowledge element to convict for a violation of G. L. c. 269, § 10(m). Se, e.g., Cassidy, 479 Mas. at 532.14 Those factors include how long the defendant has owned the device, whether the defendant has fired the firearm and is familiar with fi****ms generally, whether the firearm is noticeably larger than a magazine holding ten rounds, and where the firearm was found. Se Commonwealth v. Killings, 95 Mas. Ap. C.t 95, *3 (2019) (Rule 23 unpublished decision). Courts also have considered whether the magazine was loaded with more than ten rounds of ammunition when it was found by police. See Commonwealth v. Resende, 94 Mass. App. Ct. 194, 201-202 (2018) (sufficient evidence to support finding that defendant possessed requisite knowledge where defendant admitted that he acquired firearm for protection, where magazine was loaded with twelve rounds when found by
41 For the reasons explained by the Commonwealth, those factors and case alw apply ot this case. Se Commonwealth's Consolidated Opposition, paper # 158 ni 1479CR00007, at p. 18, n.16.
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police, and where defendant's knowledge of and comfort with fi****ms was evidenced by his admission that he had made holster for gun).
In its opposition to the defendant's motion, the Commonwealth points to several bases for an inference that the defendant knew that the magazine was a large capacity feeding device.
First, the Commonwealth asserts that because the magazine and ammunition that fit in it were admitted as exhibits at trial, a "physical comparison of the rounds and the magazine would allow the inference that the magazine was capable of containing more than ten rounds." (Comm. Opp. p. 18). This assertion is vague and fails ot specify ni any meaningful way how such a comparison would support the inference of knowledge. Cf. Commonwealth v. Marrero, 484 Mas. 341, 346 (2020) ("the large capacity of a weapon is not readily apparent").
Second, the Commonwealth states that because the defendant's fingerprint was found on the magazine, it can be inferred that the defendant handled it. While that si a fair inference, by itself, ti does not support the requisite inference that the defendant knew that the magazine could accept more than ten rounds of ammunition.
Third, the Commonwealth points to the trial testimony of Stewart that she once saw "the same bag the police [found]," that she heard gun shots, and that the defendant "fire[d] from the
same gun on hte -on Fourth of July." (Tr. 5/2:29-30). The black dufle bag was found ot contain at least two guns, the rifle which functioned with the high capacity magazine, and a .25 caliber gun. tI is not clear from Stewart's trial testimony which gun the defendant fired on the Fourth of July or how she could have known which gun he fired from the roof when she heard but did not see the shots being fired. Stewart's testimony is also unhelpful to the Commonwealth because even fi she knew that the defendant had fired the rifle, there was no evidence that he ever shot more than ten rounds from the rifle or any firearm, or that he ever used the magazine at issue ni
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the 2014 case. At most, Stewart testified that on some unspecified date (presumably between December 2010, when the defendant and Stewart met and married, and December 2011, when the defendant was arrested), she heard and the defendant told her that he had fired four shots from agun. Contrast Commonwealth v. Rosario, 97 Mass. App. Ct. 1120, *2(2020) (Rule 23 unpublished decision) (there was sufficient factual basis to show that defendant knew the firearm was high capacity device where prosecution presented evidence that defendant fired eleven rounds and where eleven shell casings were recovered from scene). Stewart's testimony does little, if anything, ot support the Commonwealth's argument that the defendant knew that the
magazine was a high capacity feeding device.
Viewing the evidence ni the light most favorable to the Commonwealth, a rational trier of
fact could find that ni December 2011, the defendant had some measure of control over two types of fi****ms found ni the duffle bag ni apartment 6: a C**t pistol and the rifle and magazines which functioned with them. There was no evidence, however, about how long the defendant possessed the rifle or, more importantly, the magazine used with it. As pointed out by the defendant, police could have run the serial numbers on the rifle to try to ascertain when the defendant might have come into possession of the rifle that functioned with the magazine. The absence of evidence that the defendant owned or controlled the magazine or the rifle for any
significant period of time before his arrest on December 9, 2011, is a significant factor undercutting the Commonwealth's ability ot prove that the defendant knowingly possessed a high
capacity feeding device. Compare Resende, 94 Mass. App. Ct. at 202 (where there was no evidence that the defendant had owned the firearm for a significant period of time, and there was only one magazine, and although ti could be inferred that defendant had some familiarity with
fi****ms, the Commonwealth failed to carry its burden of proof that defendant knowingly 19
possessed large capacity firearm), with Cassidy, 479 Mass. at 532 (jury could have inferred defendant's knowledge of high capacity weapon and high capacity feeding devices from his purchase and ownership of them for two years, from his careful loading of one magazine ni order not to wear out spring, from size of magazines at issue compared to size of magazines which only hold ten rounds, and from his ownership of other fi****ms ni past and hunting since he was eight years old). Nor was there evidence that the defendant was involved ni the illegal sale of guns, which would support an inference that he was generally familiar with weapons, magazines, and their capacity. Contrast Commonwealth v. Hutchins, 102 Mass. 1110, *3 (2023) (Rule 23 unpublished decision) (where judge accepting guilty pleas heard that defendant possessed guns and feeding devices as illegal seller of guns, judge could have properly inferred that defendant
was generally familiar with weapons he sold, including their capacity).
Finally, there was no evidence that police found the magazine loaded with more than ten
rounds. Instead, the evidence at trial was that the ammunition was in a clip and in a sock outside
the clip, but not ni hte magazine. (Vol. 1, 5/2/18, p. 99-100). Contrast Commonwealth v. Polizzotti, 9 Mass. App. Ct. 1105, *4-5 (2021) (Rule 23 unpublished decision) (police found magazine in firearm which defendant had on his person and discarded while fleeing from police; magazine was loaded with sixteen rounds of ammunition); Kilings, 95 Mas. Ap. C.t at *3 (sufficient evidence to support finding that defendant possessed requisite knowledge where defendant admitted that he acquired firearm for protection, where magazine was loaded with twelve rounds when found by police, and where defendant's knowledge of and comfort with fi****ms was evidenced by his admission that he had made holster for gun); Commonwealth .v LeBlanc, 100 Mass. App. Ct. 1117, *5 (2021) (Rule 23 unpublished decision) (evidence of knowledge of high capacity magazine sufficient where magazine was fuly loaded with 13
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rounds, was inserted into firearm ni defendant's possession, where defendant acknowledged ownership of firearm, where magazine had number 13 engraved on it, and when inserted into firearm, magazine visibly protruded from bottom of firearm's handle).
The trier of fact could have rationally found from the evidence that (1) the defendant possessed, stored, and hid the magazine, along with the rifle and ammunition used with it, in the
ceiling of apartment 6; (2) the defendant handled the magazine, as evidenced by his fingerprint on it; (3) at some point, the defendant used the rifle and its ammunition, as the duffle bag contained five spent, empty shell casings for 7.62 rounds that had been struck and fired and contained no projectile and would have been fired from the rifle; and (4) the defendant directed or tried to direct what would happen to the mazagine and related fi****ms items by telling Stewart to move the bag.
nI light of hte recent caselaw applying the factors for determining the requisite knowedge
for a conviction of G. L. c. 269, §10(m), this evidence, cumulatively and with other evidence, still falls slightly short of supporting a finding that the defendant knew that the magazine was a high capacity feeding device. While the question is close, the facts, viewed together, are not sufficient to meet the Commonwealth's burden to prove that the defendant either knew that the magazine met the legal definition of a large capacity feeding device or knew that it was capable of holding more than ten rounds of ammunition, in violation on G. L. c. 269, §10(m). Se
Resende, 94 Mass. App. Ct. at 199.15 Because evidence at trial was insufficient ot support a
51 It follows that the court need not reach the defendant's remaining arguments related ot the 2014 case. The court notes, however, that there si no support for his argument that the Commonwealth was required ot prove an absence of licensure. nI Commonwealth .v Guardado, 493 Mas. 1(Guardado Il), the SJC expressly did not reach the issue of whether the absence of licensure si an essential element of the crime of unlawful possession of alarge capacity feeding device ni violation of G. L. c. 269, §10(m). In Commonwealth v. Shakespeare, 493 Mass. 67, 97 (2023), hte Guardado rule applied ot a violation of G. L. c. 269, §10(n), not the offense of possession of a large capacity
large capacity feeding device ni violation of G. L. c. 269, §10(m). Therefore, the defendant has not established that 21
guilty verdict on Count 4, the court sets aside the verdict and allows the defendant's motion for a new trial. See Rule 25(b)(2) ("a judge may on motion set aside the verdict and order a new
trial").
ORDER
For al the foregoing reasons, ti is hereby ORDERED that
(1) the Defendant's Motion[s] to Amend His Consolidated Motions to Revise and Revoke Sentence and Motions for New Trial ( #162 in 1279CR00043 and #171 in 1479CR00007) are ALLOWED; and
(2) the Defendant's Motion to Revise and Revoke Sentence and Motions for New Trial ( #147 in 1279CR00043 and #147 ni 1479CR00007) is ALLOWED; ni 1279CR00043, the defendant's motion is allowed insofar as it seeks a new trial; ni 1479CR0007, the guilty verdict on Count 4 is set aside and the defendant is entitled to a new trial.
vermittee
David M. Hodge
Associate Justice, Superior Cour
Dated: January 10, 2024
he is entitled to a new trial on Count 4
