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23-P-395 Appeals Court
COMMONWEALTH vs. RENE MENDEZ.
No. 23-P-395.
Hampden. January 8, 2024. - June 27, 2024.
Present: Vuono, Wolohojian, & Toone, JJ.1
Unlawful Interference. Intimidation of Witness. Witness, Intimidation. Perjury. Evidence, Guilty plea. Practice, Criminal, Plea. Controlled Substances.
Indictments found and returned in the Superior Court Department on December 14, 2020.
The cases were heard by David M. Hodge, J.
Sean J. Gallagher for the defendant. Travis H. Lynch, Assistant District Attorney (Kerry L. Koehler, Assistant District Attorney, also present) for the Commonwealth.
VUONO, J. The charges in this case, willful interference
with a criminal investigation (two counts), in violation of
1 Justice Wolohojian participated in the deliberation on this case while an Associate Justice of this court, prior to her appointment as an Associate Justice of the Supreme Judicial Court. 2
G. L. c. 268, § 13B, and perjury, in violation of G. L. c. 268,
§ 1, arose from unusual circumstances. As we discuss in more
detail below, the defendant waived indictment and pleaded guilty
to a district attorney's complaint charging him with trafficking
heroin. The complaint alleged that the offense occurred on
November 12, 2015, in Springfield. However, unbeknownst to the
Commonwealth at the time of the defendant's plea, the
defendant's admissions regarding the crime were false. This
fact came to light when the defendant filed a motion to withdraw
his guilty plea in which he claimed that he was innocent and had
been coerced into pleading guilty to protect his nephew, Matthew
Oquendo, who was facing trafficking and firearm offenses
stemming from the same investigation. The defendant also
asserted that he was in custody on November 12, 2015, in
connection with an unrelated charge, and, consequently, he could
not have committed the crime in the manner alleged. Ultimately,
the defendant's trafficking conviction was vacated, and the
defendant was charged with the offenses described above based on
the false representations he made during the course of the
investigation and his plea hearing. Following a jury-waived
trial, the defendant was found guilty on all counts. The
question raised on appeal is whether the Commonwealth's evidence
was sufficient to support the convictions beyond a reasonable
doubt. We affirm. 3
Background. During the evening of November 11, 2015,
Sergeant Robert Wise of the West Springfield police department
was investigating a report of criminal activity at the Central
Chevrolet dealership located on Memorial Avenue when he
encountered the defendant and arrested him for breaking into
motor vehicles and related offenses. The defendant was held
overnight and transported to the District Court in Springfield
the following day, November 12, 2015. Due to a prior pending
criminal complaint, the defendant was held without the right to
bail and placed in the custody of the Hampden County sheriff's
department. The record does not disclose when the defendant was
released from custody, but there is no dispute that he was being
held in the house of correction throughout the events that
transpired in connection with the execution of a search warrant
on November 12, 2015, by members of the Drug Enforcement
Administration and the Western Massachusetts Gang Task Force
(collectively, the "task force"). We now turn to those events,
which we recount only to the extent necessary for our
discussion.
In the fall of 2015, Oquendo became a target of a drug
investigation conducted by the task force. In connection with
that investigation, the task force obtained a search warrant for
a house located at 23 Silver Street in Springfield. The warrant
was executed between five and six in the evening. Oquendo and 4
another individual, not the defendant, were in the house and
arrested. The police found thousands of bags of heroin packaged
for sale and three firearms. Oquendo was subsequently indicted
for trafficking over 200 grams of heroin and possession of a
firearm during the commission of a felony (three counts) on
December 17, 2015.
The prosecution of the case against Oquendo was assigned to
assistant district attorney Christopher McDonald. At some point
after Oquendo was indicted, Oquendo's attorney approached
McDonald and informed him "that there would be an individual
willing to take responsibility." That person was the defendant.
McDonald then drafted a proffer agreement and sent it to the
defendant's attorney, who arranged for the defendant to meet
with Special Agent John McGrath, who was a member of the task
force and involved in the investigation of Oquendo. That
meeting was held on March 9, 2018, at the office of the Drug
Enforcement Administration in Springfield.
Up to that point, McGrath did not know of any connection
between the defendant and the investigation. At trial, McGrath
was asked during direct examination whether the defendant's name
"[came] up at all during the course of the investigation," to
which he replied, "No." McGrath also testified that he did not
know that the defendant and Oquendo were related. He explained
that he first became aware of the defendant's claim that he was 5
the owner of the drugs in question when McDonald contacted him
and asked him to speak with the defendant. The meeting was
brief. The defendant told McGrath that the drugs were his and
that he was present at the house on November 12 and "had gone
out the back door" prior to the arrival of law enforcement
agents. McGrath then relayed the information to McDonald and
opined, "I couldn't say [the defendant] wasn't telling the
truth." McGrath had no further involvement in the case and had
retired by the time he testified at trial.
Almost one year after the defendant met with McGrath, the
defendant and Oquendo reached a plea deal with McDonald. The
defendant agreed to waive indictment and plead guilty to
trafficking between thirty-six and one hundred grams of heroin
pursuant to a district attorney's complaint. McDonald and the
defendant further agreed to jointly recommend a five- to six-
year State prison sentence. The terms of Oquendo's plea
agreement were far more favorable. Oquendo agreed to plead
guilty to the lesser included offense of possession with intent
to distribute heroin after which McDonald would file a nolle
prosequi with respect to all three firearm offenses. McDonald
agreed to recommend a sentence of two and one-half years to the
house of correction, one year to be served, with the balance
suspended. 6
The pleas went forward as planned at a joint hearing on
February 20, 2019. At the beginning of the hearing, the
defendant waived his right to an indictment. Then, after some
preliminary discussion regarding sentence recommendations,
McDonald informed the judge that Oquendo's plea was "contingent
on Mr. Mendez's plea." The defendant and Oquendo were placed
under oath and, despite the contingency, the pleas were
conducted simultaneously. McDonald recited the facts the
Commonwealth would have proven at trial as follows:
"Your Honor, back in October of 2015, Springfield Police started receiving information that 23 Silver Street in Springfield was housing a large amount of heroin. On November 12th, they applied for a search warrant. On that day, when they set up on the house, they observed Mr. Oquendo arrive in a Honda vehicle and go into the house. They then executed the search warrant. Just prior to executing [the] search warrant, Mr. Mendez had left out the back door and was not present during the execution of the warrant itself. They found Mr. Oquendo in the second floor bedroom. In the house, they located large amounts of heroin, in the vehicle as well, about 1400 bags of heroin, totally around 21,000 bags total in the house.
"This was essentially a stash house, with Mr. Mendez being a princip[al] owner of the narcotics that were found. However, Mr. Oquendo did have constructive possession over them with the ability and intent to exercise control over them if buyers were to arrive.
"These drugs were tested at the [S]tate lab here in Springfield by Kelsey Medeiros, confirmed to be heroin and confirmed to be over [thirty-six] grams."
Both the defendant and Oquendo agreed that those facts were
true. Specifically, the judge asked the defendant: 7
The judge: "Mr. Mendez, did you hear the facts that were just recited by the prosecutor?"
Mr. mendez: "I did, Your Honor."
The judge: "At least as to your involvement and charges against you, do you agree that those facts are true?"
Mr. mendez: "I agree, Your Honor."
At the conclusion of the hearing, the judge accepted the
pleas and imposed the agreed upon sentence of five to six years
in prison on the defendant. With respect to Oquendo, the judge
adopted defense counsel's recommendation and imposed a more
lenient sentence than the prosecutor had recommended: two and
one-half years to the house of correction, thirty days to be
served, with the balance suspended for two years.2 As promised,
McDonald then filed a nolle prosequi on the remaining charges
against Oquendo.
At trial, McDonald testified that he would not have charged
the defendant in the absence of his admission that he owned the
heroin. He further explained that the "sole reason" for
agreeing to the plea deal with Oquendo, who was facing a twelve-
year mandatory minimum sentence on the trafficking charge alone,
was the fact that the defendant came forward and claimed
ownership of the heroin.
2 It appears from the transcript that the entire proceeding was conducted in fifteen minutes or less. 8
Shortly after the plea hearing, the defendant began serving
his sentence.3 However, within a year, on December 23, 2019, he
filed a pro se motion entitled "Motion for notice to the court,"
in which he claimed he was serving an "illegal sentence." The
motion was supported by an affidavit in which the defendant
averred that he was "coerced . . . to plead[ing] guilty" by his
attorney and that he "was never involved in the November 12,
2015, case for trafficking in Heroin with his nephew Matthew
Oquendo." In the motion, the defendant claimed that he
discussed a possible plea deal that would help his nephew at a
meeting with his attorney and Oquendo's attorney and then under
a "false preten[s]e" he went to court and pleaded guilty "to a
crime that never happen[ed]." The defendant's motion was
brought to the attention of the judge who presided over the two
pleas. In a margin endorsement, the judge corrected certain
errors in the docket and mittimus but took no action regarding
the merits of the motion.
Six months later, on June 5, 2020, the defendant filed a
second pro se motion challenging his guilty plea. This motion,
which was properly captioned as, "Motion to withdraw guilty
plea," was more detailed than the prior motion although the
3 The defendant requested and was granted permission to self-surrender thirty days after the imposition of the sentence. 9
substance was the same.4 The defendant again alleged that he had
not committed the crime of trafficking and that he pleaded
guilty to help his nephew avoid prison. Among the new details,
however, was one significant disclosure. For the first time,
the defendant asserted that he could not have committed the
crime because he "was incarcerated on the night his nephew . . .
was arrested on November 12, 2015." According to the defendant,
the "agreed plea was false from beginning to end."5 This motion
also was brought to the attention of the plea judge, who ordered
the Commonwealth to respond within sixty days.
That response, if there was one, has not been provided to
us. Regardless, the Commonwealth, now alerted for the first
time that the defendant had been in custody on November 12,
2015,6 responded first by obtaining the indictments at issue in
this appeal, and second by filing a motion to vacate the
defendant's guilty plea to trafficking heroin. The Commonwealth
4Several exhibits, including a copy of the search warrant application and supporting affidavit, were attached to the motion.
5Two months later, on August 13, 2020, the defendant filed a motion to withdraw his motion to withdraw his guilty plea, claiming that he had "reconsidered his position on this matter and feels that it is in his best interest to withdraw his motion at this time." Nothing in the record explains why the defendant changed tack at this point.
6At trial, McDonald testified that he first learned that the defendant was incarcerated on November 12, 2015, when the defendant filed his motion to withdraw his plea. 10
then entered a nolle prosequi on the district attorney's
complaint. As previously noted, the defendant was convicted of
willful interference with a criminal investigation and perjury,
and this appeal ensued.
Discussion. In reviewing a claim challenging the
sufficiency of the evidence, we ask whether, viewing the
evidence in the light most favorable to the Commonwealth, "any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979). In this case, we answer
that question affirmatively with respect to all three
convictions.
1. G. L. c. 268, § 13B. The defendant was charged with
two counts of violating G. L. c. 268, § 13B, generally known as
the witness intimidation statute. As relevant here, the statute
makes it criminal to willfully mislead an investigator or an
attorney directly or indirectly with the intent to interfere,
impede, or obstruct a criminal investigation or criminal
proceeding of any type. See Commonwealth v. Fortuna, 80 Mass.
App. Ct. 45, 51 (2011). The indictment charged in count one
that the defendant willfully misled John McGrath, "a police
officer or investigator," and, in count two, that the defendant
willfully misled Christopher McDonald, "an attorney." 11
Viewed in the light most favorable to the Commonwealth, the
evidence was sufficient with respect to both counts. A rational
trier of fact, here the judge, reasonably could have found that
the defendant misled McGrath and McDonald with the requisite
intent when he falsely claimed that he owned the heroin in
question and that he was present at the house where the drugs
were found prior to the execution of the search warrant.
Furthermore, it was reasonable to conclude that the defendant's
lie interfered with a criminal investigation and a criminal
proceeding because it induced the Commonwealth to charge the
defendant with the crime of trafficking and to offer Oquendo a
more favorable plea agreement than it otherwise would have.
With respect to count one (misleading McGrath), the
defendant argues that the Commonwealth's evidence was
insufficient because the criminal investigation into Oquendo's
illegal distribution of heroin had concluded by the time he
claimed ownership of the drugs during his proffer with McGrath.
This argument is unavailing. First, viewing the evidence in the
light most favorable to the Commonwealth, as we must, the judge
reasonably could have found that the investigation was ongoing
and, if anything, was reinvigorated when the defendant came
forward and told McGrath that the heroin found during the
execution of the search warrant belonged to him. Second, even
were we to agree, which we do not, that the investigation had 12
concluded, the statute is not limited to prohibiting conduct
that impedes or interferes with an active investigation. To the
contrary, our case law has interpreted the "statute to encompass
'any investigation or proceeding that may result in criminal-
type sanctions.'" Commonwealth v. Occhiuto, 88 Mass. App. Ct.
489, 505 (2015), quoting Commonwealth v. Figueroa, 464 Mass.
365, 370 (2013). This "expansive definition" does not require
the Commonwealth "to prove the exact nature [or stage] of the
criminal proceedings" (citation omitted). Occhiuto, supra.
Indeed, as we explained in Occhiuto, "the investigation need not
have been commenced at the time of the defendant's statements,
nor need it be pending" (citations omitted). Id.
The defendant further argues that, even if the criminal
investigation was active at the time he came forward, the
Commonwealth still fell short of meeting its burden of proof
because his conduct did not mislead McGrath. Although, as the
defendant notes, McGrath was skeptical of his claim, and there
was no evidence that McGrath embarked on a so-called "wild goose
chase," neither circumstance diminished the sufficiency of the
Commonwealth's evidence. It matters not that McGrath was unsure
whether the defendant was telling the truth or that he did
nothing other than relate the information the defendant had
provided to McDonald because the Commonwealth was not required
to prove that McGrath believed in or acted upon the false 13
information. Instead, the Commonwealth was required to prove
that "the defendant's alleged statement[] . . . reasonably could
have led police astray." Commonwealth v. Paquette, 475 Mass.
793, 800 (2016).
Here, the evidence established beyond a reasonable doubt
that the defendant's statements regarding ownership of the
heroin and his presence at the stash house shortly before the
execution of the search warrant were false. Those false
statements reasonably could have led McGrath and other members
of the task force to pursue a materially different course of
action. That McGrath himself took no further action after
interviewing the defendant is of no consequence, where, as here,
there was also sufficient proof of the defendant's intent to
interfere with the investigation. See, for example, Figueroa,
464 Mass. at 372-373, where the Supreme Judicial Court affirmed
a defendant's conviction under § 13B even though the defendant's
attempt to mislead his parole officer with a false alibi was
unsuccessful. See also Commonwealth v. Casiano, 70 Mass. App.
Ct. 705, 709 (2007), quoting Commonwealth v. Robinson, 444 Mass.
102, 109 (2005) ("[t]he statute punishes anyone who 'willfully
endeavors' to intimidate a witness; it does not require that the
intimidation be successful").
Lastly, the defendant argues that the Commonwealth's
evidence with respect to the conviction on count two (misleading 14
McDonald) was insufficient because McDonald is not an
investigator, and the plea hearing, which the defendant
acknowledges is a criminal proceeding that falls within the
statute, "went smoothly." These arguments require little
discussion. First, the indictment specifies that McDonald is an
attorney, and attorneys are persons specifically included within
the statute. Second, the fact that the plea hearing went
forward "smoothly" misses the point, which is that, but for the
defendant's false statement, Oquendo's plea agreement would
never have been tendered in the first place.
2. G. L. c. 268, § 1. "The crime of perjury in a judicial
proceeding occurs whenever one 'willfully swears or affirms
falsely in a matter material to the issue or point in
question.'" Commonwealth v. Walters, 472 Mass. 680, 702 (2015),
quoting Commonwealth v. Geromini, 357 Mass. 61, 63 (1970). See
G. L. c. 268, § 1. "Our case law instructs that a false
statement is material if it 'tend[s] in reasonable degree to
affect some aspect or result of the inquiry'" (citations
omitted). Commonwealth v. White, 70 Mass. App. Ct. 71, 73
(2007).
The perjury charge was based on the defendant's
representation at the plea hearing that the facts recited by
McDonald regarding his involvement in the crime were true. The
defendant argues that the Commonwealth failed to prove that his 15
replies to the judge's questions were false or material and,
therefore, the judge erred in denying his motion for a required
finding of not guilty. We disagree.
As we have previously concluded, there was abundant
evidence from which the judge as the trier of fact could
conclude beyond a reasonable doubt that the defendant falsely
affirmed that McDonald's recitation of the facts was true. The
defendant subsequently admitted in an affidavit that he had no
involvement in Oquendo's drug distribution scheme and, in fact,
was not present at the house where the heroin was found on
November 12, 2015. In addition, the untruthfulness of the
defendant's responses at the plea hearing were corroborated by
evidence that unequivocally established the defendant was in
police custody on November 12, 2015. Furthermore, the
defendant's false answers were undeniably material as they were
the basis upon which the judge accepted his guilty plea.
Nor are we persuaded by the defendant's assertion that this
evidence is in "equipoise" and, as a result, is insufficient.
While the defendant is correct that a judge must grant a motion
for a required finding of not guilty where "the evidence tends
equally to sustain either of two inconsistent propositions,"
Commonwealth v. Tavares, 484 Mass. 650, 654-655 (2020), that is
not the case here. Based on the evidence that the defendant was
in police custody on November 12, 2015, and had a motive for 16
lying, namely, to spare his nephew from a prison sentence, the
judge could reasonably conclude beyond a reasonable doubt that
the defendant's post-conviction statements recanting ownership
of the drugs were true and his earlier statements were false.
The defendant also challenges his conviction of perjury on
the ground that his plea of guilty was void ab initio. Without
a valid plea, he argues, the perjury conviction cannot stand.
Specifically, the defendant claims that because there was no
judicial determination of probable cause before the district
attorney's complaint was filed and he was not arraigned on the
complaint, we should declare the plea void. We decline to do
so. The defendant waived any nonjurisdictional defects in the
proceedings by virtue of pleading guilty. See Commonwealth v.
Cabrera, 449 Mass. 825, 830 (2007). Moreover, although it was
brief, the judge's colloquy with the defendant at the beginning
of the plea hearing demonstrated a clear waiver of the right to
be indicted by a grand jury upon a finding of probable cause and
an implicit waiver of the right to a formal arraignment.
Judgments affirmed.