Consistent with Earlier Rulings, Court Rejects “Dookhan Motion” for New Trial

BOSTON, Sept. 25, 2013—A special magistrate hearing cases affected by the crisis at a former Department of Public Health drug-testing facility has rejected a former Roxbury resident’s motion to vacate the guilty plea he entered after accepting a package full of heroin sent to him from India, Suffolk County District Attorney Daniel F. Conley said.

Special Judicial Magistrate Elizabeth Donovan’s decision in the case against KELLY TONGO (D.O.B. 9/29/84) is consistent with those of other municipal, superior, and federal court judges who have refused to allow defendants to withdraw the guilty pleas they made knowingly, willingly, and voluntarily in cases unaffected by the lab crisis.

“There is no evidence suggesting [former state chemist Annie] Dookhan mishandled the drugs tested in the defendant’s case,” Donovan wrote in a 13-page decision received today by prosecutors. “Nor is there any showing of prejudice to the defendant.”

Tongo pleaded guilty to trafficking in heroin in 2011, about a year after he accepted delivery of a package from India containing more than 150 grams of heroin. The package was addressed to “Franc Smith,” and during his plea colloquy Tongo admitted to identifying himself by that name to the Boston Police officer dressed as a FedEx deliveryman who took custody of the package after Customs and Border Patrol officials opened and field-tested it at a shipping facility. Tongo also admitted during his plea colloquy that he had been expecting the package and believed that it contained drugs.

After revelations of Dookhan’s alleged malfeasance at the Hinton Laboratory where the drugs in Tongo’s case were certified, Tongo moved to withdraw his guilty plea. Donovan denied that motion for a variety of reasons.

Noting that there was no indication of Dookhan’s alleged malfeasance when the defendant pleaded guilty in September 2011, Donovan wrote, “there is no evidence that the Commonwealth knew or should have known of the existence of any potential exculpatory evidence to impeach Dookhan until at least the time when State Police conducted its investigation [in 2012].”

Donovan also pointed out that there is no evidence that the substance Tongo admitted to possessing was anything but heroin.

“Here the defendant has presented no evidence that any exculpatory evidence would tend to negate his guilt,” she wrote. “At most the evidence of Dookhan’s misconduct would be limited to impeachment evidence which would be weighed against the findings by the Border Patrol officer who did a field test which included the weight and substance and the defendant’s admission he was awaiting a package from India containing drugs which he took possession of for his friend.”

Donovan’s decision is consistent with judges’ rulings in similar motions across every level of Massachusetts’ criminal justice system.

In May, a judge in Brighton Municipal Court wrote that a man who pleaded guilty to possession of heroin with intent to plead guilty could not withdraw that plea simply because of Dookhan’s indictment.

“[The] defendant has not raised any additional ground that the particular drugs found in the possession of the defendant are in any way tainted apart from the fact that they were brought to the lab where Dookhan was working,” Judge Patricia Bernstein wrote of BRIAN BUBANAS. “The court concludes based on the information contained in defense counsel’s affidavit and the commonwealth’s memorandum that drugs seized in the instant case were likely not affected …. As previously noted, no evidence has been proffered that this particular substance was connected in any way to the alleged misdeeds of the one chemist at the state lab who has been charged with criminal wrongdoing or that the factual basis underlying the plea was invalid.”

A Suffolk Superior Court Judge made similar findings in the cases of two confessed drug dealers, denying to stay either man’s sentence. LANDERS IVEY and PAUL FIDLER “failed to establish any nexus between alleged misconduct at the Hinton Laboratory and the analysis of the drug exhibits” in their cases, Judge Jeffrey Locke wrote.

A federal judge also denied requests by men to withdraw their guilty pleas in drug cases with evidence tied to the Hinton Laboratory.

“Here, neither Merrit nor Wilkins makes a claim of actual innocence,” Judge Richard Stearsns wrote. “Thus, any impeaching material regarding Dookhan’s mishandling of evidence … would only be relevant at trial to the extent that it might be used to challenge the chain of custody of the drugs at issue, or possibly to impeach the efforts of the substitute chemist to repair the damage done by Dookhan. Neither of these purposes … has any relevance to the validity of the defendants’ guilty pleas.”

Finally, no Suffolk County defendant has been acquitted on the so-called “Dookhan defense,” with judges and juries consistently convicting those whose sole defense at trial is that Hinton Laboratory personnel or their work cannot be trusted. In one case, that of JULIO MEDINA, jurors returned a conviction for heroin distribution less than 15 minutes after receiving the evidence.

“When we approach these cases, we have one overriding concern, and that’s seeing justice done,” Conley said. “We constantly ask ourselves whether the charges are fair in light of the facts and whether the evidence supports a conviction. That goes not just for drug cases but for every case. In the Hinton Lab cases, we’ve affirmatively asked that many defendants be released from their sentences while we re-assess the evidence. No one in my office want to see an innocent person convicted, much less incarcerated. But if that evidence supports a conviction, especially in a high-level, international trafficking case like this one, then we’ll argue just as forcefully to ensure that the guilty are held to account.”

Assistant District Attorney Vincent DeMore argued against Tongo’s motion. The defendant was represented by attorney Veronica White.


 All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.