Opinion
18-P-1257
11-22-2019
COMMONWEALTH v. Christian MIRANDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Christian Miranda, was convicted of conspiracy to traffic cocaine and conspiracy to distribute marijuana. He was convicted as a habitual offender with respect to the cocaine conspiracy count after a second jury trial. On appeal he raises a variety of claims concerning the issuance and extension of a wiretap warrant, the conduct of his trial, and the habitual offender enhancement. We affirm.
The defendant also appeals from the single justice's denial of his motion to file a Moffett brief. See Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981). The defendant was represented by counsel, who filed an appellate brief at or near the maximum length allowed by the appellate rules in effect at the time. See Mass. R. A. P. 16 (h), as amended, 438 Mass. 1601 (2003). Although counsel did not "disassociate himself from [the defendant's] ‘Moffett’ issues," he nonetheless sought leave for the defendant to file a second brief pro se raising twelve additional issues. "While a court may, in its discretion, permit a party to proceed in a hybrid manner, it is not obligated to do so." Commonwealth v. LeBaron, 464 Mass. 1020, 1020 (2013), citing Commonwealth v. Molino, 411 Mass. 149, 152-154 (1991). The single justice did not abuse his discretion in denying the defendant's motion to file a Moffett brief, which, if allowed, would essentially have permitted him to file two briefs and evade the page limits of then-existing rule 16. Moreover, after consulting with the defendant, his second appointed appellate counsel sought and was granted leave to file a substitute brief, nearly fifty pages in length, raising ten issues, including several mentioned in the defendant's motion to file a Moffett brief.
1. Definition of "organized crime." The defendant argues that the term "organized crime" as used in the Massachusetts wiretap statute is unconstitutionally vague. As he raises this argument for the first time on appeal, he is entitled to relief only if he possesses a valid claim of error that creates a substantial risk of a miscarriage of justice. See Commonwealth v. Johnson, 470 Mass. 300, 307 (2014). He does not.
"A statute violates due process and is void for vagueness when individuals of normal intelligence must guess at the statute's meaning and may differ as to its application, thus denying them fair notice of the proscribed conduct." Commonwealth v. Disler, 451 Mass. 216, 223 (2008). "If a statute has been clarified by judicial explanation, however, it will withstand a challenge on grounds of unconstitutional vagueness." Commonwealth v. Crawford, 430 Mass. 683, 689 (2000).
The Supreme Judicial Court first elucidated the definition of "organized crime" in Commonwealth v. Thorpe, 384 Mass. 271 (1981), cert. denied, 454 U.S. 1147 (1982). The court held that "the Legislature intended to define organized crime as ‘a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.’ " Id. at 277, quoting G. L. c. 272, § 99 A. Subsequent decisions have offered further clarification. The hallmarks of organized crime, warranting electronic surveillance in Massachusetts, are a high degree of organization and discipline in connection with an ongoing illegal business operation. See Commonwealth v. Mitchell, 468 Mass. 417, 425-427 (2014) ; Commonwealth v. Tavares, 459 Mass. 289, 300-301 (2011) ; Commonwealth v. Long, 454 Mass. 542, 556-557 (2009) ; Commonwealth v. D'Amour, 428 Mass. 725, 736-737 (1999). Likewise, case law has explained what organized crime is not. Organized crime does not involve mere "garden-variety" criminal activity, D'Amour, supra at 737; requires more than a one-time "coordination among cohorts," Long, supra at 558; and is not characterized by a "roguish or free-agent quality," Tavares, supra at 302.
Significantly, the court declined to limit organized crime to conduct involving violence and the infiltration of legitimate business activities. Thorpe, 384 Mass. at 277. See Commonwealth v. D'Amour, 428 Mass. 725, 735-736 (1999).
Because the meaning of organized crime has been definitively construed and is well understood, the defendant's vagueness challenge fails. See Commonwealth v. Hyde, 434 Mass. 594, 598 (2001) (noting that wiretap statute and its exceptions are "carefully worded and unambiguous").
The defendant also argues that we should adopt the definition of "organized crime" proposed by the dissent in Thorpe, 384 Mass. at 286-292 (Liacos, J., dissenting). We do not possess the authority to do so. See Commonwealth v. Harrington, 74 Mass. App. Ct. 14, 15 (2009). Nor may we accept the defendant's invitation to overrule the Supreme Judicial Court's decision in Commonwealth v. Moody, 466 Mass. 196, 198 (2013), that the Massachusetts wiretap statute authorizes a judge to issue a warrant to intercept cellular telephone calls and text messages.
2. Nexus to organized crime. The defendant contends that his motion to suppress should have been allowed because the "Greene A" wiretap application failed to establish the requisite nexus to organized crime. "A wiretap warrant may only issue ‘[u]pon a showing ... that there is probable cause to believe that a designated offense has been, is being, or is about to be committed ....’ " Long, 454 Mass. at 555, quoting G. L. c. 272, § 99 E 2. The designated offense must have a nexus with organized crime. Long, supra at 556; D'Amour, 428 Mass. at 735. With narrow exceptions, see Long, supra at 554, "our inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit.’ " Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). We review the wiretap application materials to determine whether they supplied the judge with a "substantial basis" to issue the warrant. O'Day, supra at 298. See D'Amour, 428 Mass. at 736 ("It is not our province to engage in de novo review of an application [for a wiretap warrant]; instead we test it in a practical and common sense manner to determine whether the facts [the application] sets forth are minimally adequate to support the findings made by the issuing judge" [quotation and citation omitted] ).
The affidavit accompanying the "Greene A" warrant application set forth in detail how, for fifteen years, detectives in the Boston Police Department's youth violence strike force and special investigations unit had monitored a group of individuals known as the "Magnolia Street Steelers" and their participation in numerous crimes, including drug distribution. During the investigation, officers spoke with several individuals who openly claimed membership in the group, including the subject of the wiretap, Ricardo Greene. Using traditional investigation methods, including interviews of identified and confidential informants, controlled buys, physical surveillance, telephone toll record analysis, and searching trash, the officers identified an ongoing organized drug distribution business.
The affidavit described a hierarchy within the group, including roles in drug distribution. The affidavit identified the leader of the group, one of its founding members, whom Greene "idolized." The leader was also the main drug supplier, and at various times when he was incarcerated, other members -- at one point, the defendant -- took on the role of leader and main supplier. Greene was a mid-level dealer, selling larger quantities, such as eighths and sixteenths of a kilogram of cocaine, to other members, and also made street-level sales to individual customers. The affidavits identified several men, including Greene's father, who worked for or with Greene in dealing and distributing "crack" cocaine. On one occasion, officers watched two unknown men take trash bags from Greene's residence -- later discovered to include evidence of large-scale drug dealing -- and dispose of them at a remote location.
This evidence supports the inference that the two unknown men were low-level participants in the organization.
The affidavit provided ample evidence that Greene and others were engaged in preparing and distributing drugs. Officers conducted multiple controlled buys involving Greene and other members of the group. Officers found materials used in packaging and distributing drugs in the trash from both Greene's and his father's residences. Phone records showed that Greene and others communicated using a rotating set of cell phones bought prepaid or under false names. Considered as a whole, in a commonsense rather than a hypercritical manner, see Commonwealth v. Holley, 478 Mass. 508, 521 (2017), the application provided sufficient evidence for the issuing judge to conclude that the individuals named in the affidavit were "in fact, operating an organized drug business." Commonwealth v. Burgos, 470 Mass. 133, 142 (2014).
The defendant also argues that the allegations in the "Carter B" wiretap affidavit do not establish that his alleged crimes had a nexus to organized crime. The "Carter B" affidavit relies on and fully incorporates prior wiretap affidavits including the "Greene A" and "Carter A" affidavits. The affidavit thus established the requisite nexus to organized crime and included significant evidence linking the defendant and his cell phone to the drug distribution scheme.
3. Wiretap renewals. The defendant next contends that there was no basis to allow the first wiretap warrant extension because the scope of the conspiracy was fully ascertained upon the conclusion of the "Greene A" wiretap. He also argues that even if authorization of the "Greene B" wiretap renewal was proper, there was no need for additional wiretaps thereafter.
Applications for wiretap warrant renewals "must incorporate the warrant sought to be renewed"; "must set forth the results of the interceptions thus far conducted"; and, in addition, "must set forth present grounds for extension in conformity with paragraph F" of the statute. G. L. c. 272, § 99 J 1. The affidavits in support of both extensions set forth the conversations intercepted during the prior period of the warrant, described with particularity the communications sought to be intercepted during the extension periods, and also explained why traditional investigative procedures would be insufficient. See G. L. c. 272, § 99 E 3.
Paragraph F concerns the particularity with which the application must describe the designated offense under investigation; the facts establishing probable cause; the persons, places, and communications sought to be intercepted; and the duration of the interception. See G. L. c. 272, § 99 F.
As stated in the original "Greene A" wiretap affidavit and reiterated in the renewal applications, the goals of the investigation were to identify, apprehend, and bring about the successful prosecution of individuals at all levels of the drug distribution chain, both higher and lower than Greene; to identify the locations utilized to manufacture and store drugs; to expose the full scope of the drug distribution chain; and to permanently dismantle the criminal drug distribution activities of the organization. The application for the first renewal acknowledged that while evidence obtained during the course of the first wiretap could support the arrest and prosecution of Greene, use of normal investigative procedures would not suffice to identify, apprehend, and prosecute all persons involved in the organization or the sources of the drugs. And the application for the second renewal disclosed that additional electronic surveillance would be required to "dismantle" the organization and to identify the dealers at higher levels, the local and street-level dealers, the location of the contraband, and the use of the proceeds. The defendant has failed to demonstrate any error or abuse of discretion in the approval of the wiretap warrant renewals.
4. Franks/Amral hearing. The defendant moved for a Franks/Amral hearing for the disclosure of the identity of one confidential informant. In support of his motion, he asserted that the informant must have been fabricated because Greene was on house arrest during the time period when the controlled buys with the confidential informant supposedly occurred; therefore, he could not have participated in the controlled buys.
To be entitled to a Franks hearing, the defendant must make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks v. Delaware, 438 U.S. 154, 155-156 (1978). The false statement must be "necessary to the finding of probable cause." Id. at 156. An Amral hearing is ordered where "the defendant by affidavit asserts facts which cast a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant." Commonwealth v. Amral, 407 Mass. 511, 522 (1990). "Mere suspicion that there was no informant, or that the informant's ‘reliability’ credentials have been misstated, or that his information was other than as recited by the affiant, is not enough to trigger an in camera hearing." Id.
Here, the judge acknowledged Greene's representation that he was under house arrest from mid-August to mid-September 2008. This fact, however, does not support the need for a Franks/Amral hearing. With respect to the controlled buy that took place in August, after the informant arranged for the purchase with Greene, the drugs were actually delivered by Greene's father, consistent with Greene's suggested immobility. And although Greene's house arrest may have prevented him from personally participating in controlled buys during the first half of September, the controlled buys described in the affidavit could have occurred during the second half. The defendant failed to allege facts that "cast a reasonable doubt on the veracity of material representations made by the affiant concerning" the controlled buys. Amral, 407 Mass. at 522.
5. Magnolia Street Steelers affiliation evidence. The defendant argues that photographs showing him wearing a Pittsburgh Steelers jersey and images of coconspirators with tattoos of the Steelers' logo, the word "Steelers," and the phrase "Mag Steel," should not have been admitted because they were highly prejudicial evidence of gang affiliation and that the prejudice outweighed any probative value. We disagree.
As an initial matter, no evidence of gang affiliation was actually introduced. When ruling on the defendant's objection, the trial judge stated, "[A]bsent something happening that changes it ... there won't be a reference to gangs, gang affiliation. The Pittsburgh Steelers evidence will be admitted, but without the prosecution or any witness on the prosecution advancing the claim that it is a gang."
In any event, evidence of gang affiliation is admissible to show motive or joint venture. See Commonwealth v. Gray, 463 Mass. 731, 752-753 (2012) ; Commonwealth v. Swafford, 441 Mass. 329, 332-333 (2004) ; Mass. G. Evid. § 404 (b) (2) (2019). Such evidence must be excluded, however, if "its probative value is outweighed by the risk of unfair prejudice to the defendant." Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). "The defendant bears the burden of establishing both an abuse of discretion and the resulting prejudice." Gray, supra at 752.
The defendant was charged with conspiracy to distribute drugs. Conspiracy is defined as "a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose." Commonwealth v. Lonardo, 74 Mass. App. Ct. 566, 568-569 (2009), quoting Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 249 (1971). To prove its case, the Commonwealth needed to demonstrate an association between the defendant and his coconspirators. In this regard, as the trial judge accurately noted, photographs of the defendant and his coconspirators wearing clothing and displaying tattoos with the same insignia was probative and not just "marginally relevant." Furthermore, the photographs were not unduly prejudicial given the limitations placed on how they were used. The trial judge did not abuse her discretion in admitting the Steelers evidence.
6. Instruction on conspiracy. The defendant claims that the trial judge's instruction on conspiracy incorrectly allowed the jury to aggregate drug amounts from separate drug transactions to determine whether he conspired to distribute over 200 grams of cocaine. As the defendant failed to object or request a specific jury instruction at trial, our review is limited to whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 15 (1999).
The instructions contained no error. Conspiracy is a continuing course of conduct. Commonwealth v. Cerveny, 387 Mass. 280, 288 (1982). When considering conspiracies involving controlled substances, we consider the acts underlying the conspiracy together, not disparately. See id. Accordingly, the jury were entitled to aggregate the amount of drugs involved over the course of the entire conspiracy. Commonwealth v. Albert, 51 Mass. App. Ct. 377, 384-385 (2001) (judge did not err in allowing jury to aggregate drug amounts over course of conspiracy). In any event, as the jury heard evidence of at least one cocaine transaction that alone involved more than 250 grams, the given instructions posed no risk of a miscarriage of justice.
7. Habitual offender enhancement. The defendant asserts that the indictment charging the habitual offender enhancement was defective because the grand jury were not presented with the dates of the predicate offenses or any evidence establishing that the convictions arose from separate criminal episodes. See Commonwealth v. Garvey, 477 Mass. 59, 66 (2017). As the defendant failed to raise this claim until his second postconviction motion, the claim is waived. See G. L. c. 277, § 47A ; Commonwealth v. Kater, 432 Mass. 404, 411 (2000) ; Commonwealth v. Hrycenko, 417 Mass. 309, 312 (1994).
The so-called clairvoyance exception does not excuse the waiver, as Garvey, supra, did not break new ground. Rather, "the concept that the prior convictions must stem from separate episodes has been an implied assumption in our earlier holdings." Garvey, 477 Mass. at 64. Moreover, given the evidence presented at the habitual offender phase of the trial, it is clear that the Commonwealth could have cured the defect if the defendant had made a timely objection. There is no risk of a miscarriage of justice.
8. Habitual offender indictment amendment. We need not address the defendant's argument that the trial judge erred in allowing the Commonwealth to amend the habitual offender indictment with the Rhode Island conviction. The verdict slip states that the jury found the defendant guilty based on all three listed offenses, including the offenses specified in the indictment. Even excluding the Rhode Island conviction, the two Massachusetts offenses were sufficient to sustain the habitual offender enhancement. Any error was harmless beyond a reasonable doubt.
The judgments are affirmed. The orders denying the defendant's motion for new trial and the defendant's amended motion to vacate the habitual offender conviction are also affirmed. The single justice's order denying the defendant's motion to file a Moffett brief is affirmed.
So ordered.
Affirmed