Commonwealth v. Saletino

16 Mass. L. Rptr. 312
CourtMassachusetts Superior Court
DecidedMay 2, 2003
DocketNo. 2538284
StatusPublished

This text of 16 Mass. L. Rptr. 312 (Commonwealth v. Saletino) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Saletino, 16 Mass. L. Rptr. 312 (Mass. Ct. App. 2003).

Opinion

Lowy, J.

The defendant, Pedro Saletino (“defendant”), is charged with several counts of trafficking cocaine. A paid confidential informant (“Cl”) was a percipient witness to the transactions for which the defendant is charged. The Commonwealth has previously turned over the informant’s name, as well as the terms of his remuneration for his participation in these transactions and other discovery information. The defendant, through his counsel’s due diligence, is aware of other investigations in which the informant was involved with the federal government. Now facing trial after absenting himself from the jurisdiction for over seven years, the defendant seeks discovery of all other cases in which the informant has worked undercover for the government.

I. FACTUAL BACKGROUND

This Court held a hearing on the defendant’s discovery motion on February 25, 2003. The Court now summarizes the procedural posture of the case, the allegations of the Commonwealth, and the assertions of the defendant pertinent to the motion.

On at least two prior occasions, the Cl involved in this case worked with the Massachusetts drug task force here involved, resulting in the conviction of several men charged with trafficking cocaine, back to 1991. Affidavit Supporting August 5, 1993 Search Warrant.

In approximately May of 1993, the Cl informed officers that the defendant was selling cocaine. As a result of an investigation, the defendant was arrested by the officers in June 1993 in Chelsea for trafficking thiriy-five baggies of crack cocaine. The defendant was released on bail. In July 1993, the Cl then informed the officers that the defendant continued to sell cocaine. On August 3, 1993, the Cl arranged for an undercover officer to accompany the Cl to meet the defendant and buy cocaine. On that date, the Cl and the officer met the defendant in East Boston. All three traveled to Lynn, where the Cl and the defendant went into the apartment where the drugs were located. The Cl purchased sixty-two grams of cocaine, while the officer waited in the car.

Over the following three days, August 4-6, 1993, the officer, the Cl, and the defendant made arrangements for the officer to buy a kilogram of cocaine. All parties traveled to Cape Cod, to “check out” the buying officer. The kilo purchase took place in Lynn on August 6, 1993, with the defendant, the Cl and the undercover officer all participating. The task force entry team arrived and arrested various defendants, including defendant Saletino. The defendant was charged with trafficking in over twenty-eight grams of cocaine, trafficking in over 200 grams of cocaine, and conspiracy. On August 7, 1993, the defendant was released on $1,000 bail, and then defaulted. He was returned from the state of Washington on a Governor’s warrant in July 2001. He had previously been convicted in Alaska of false application for a passport.

At all times during the August 1993 drug deals, the Cl was the only non-government participant involved in the police task force investigation. Given the Cl’s status as a percipient witness, the Commonwealth provided the Cl’s name to Saletino’s co-defendant in August 1994. The Commonwealth has also informed the defendant that the Cl was paid $1,000 for his cooperation in this investigation, provided a list of his offenses from probation records, and offered to have the Cl available to speak with defendant’s prior counsel, though the Cl exercised his right not to do so. Through his own diligence, counsel for the defendant has identified a federal case in which the Cl also assisted the government. United States v. Sidhom, 142 F.Sup.2d 150 (2001). The federal case stemmed from events that occurred in the summer of 1998, and involved a motion for downward departure from the sentencing guidelines. Id. at 152. The United States District Court Judge’s opinion detailed the Cl’s assistance in a money laundering investigation. Id. The factual findings state that the Cl had been a “long time confidential informant of various state and federal law enforcement agencies” and had received “both financial compensation, as well as protection from a 1991 deportation order.” Id. The court found that the [313]*313Sidhom defendant had been the focus of a “sting operation” based on two isolated money laundering transactions completed under the guise of personally assisting the CI. Id. at 153-54.

Defense counsel, in an affidavit, states that he has also learned, through the Sidhom case and defendant’s prior counsel in the case at bar, that the Cl worked as an informant for the Federal Bureau of Investigation, the Drug Enforcement Administration, the Immigration and Naturalization Service, the Massachusetts State Police, and the Quincy Police Department, beginning in at least 1990, and extending at least up until April 2000. Defendant’s counsel also asserts that the Cl has received substantial financial payment, cooperation with his own prosecution, and deportation relief.

The defendant seeks a list of all cases in which the Cl has assisted in law enforcement investigation. Based on the information already known to him about the Cl, the defendant has asserted that he intends to put forth a defense of entrapment and to impeach the credibility of the CL The record contains an affidavit from defendant’s counsel explaining his research and strategy for the case. There is no affidavit from the defendant himself. Further, the defendant makes no statement, either in affidavit or pleading form, regarding the basis for, the use of, or the necessity for this additional discovery material. The Commonwealth argues that the defendant has put forth no reason to warrant awarding such a broad order for additional discovery, particularly when balanced against the informant privilege and the government’s interest in maintaining the Cl’s ongoing safety.

II. RULINGS OF LAW

A. Pretrial Discovery

Mass.R.Crim.P. 14 establishes mandatory as well as discretionary discovery procedures. The mandatory rules include the requirement that the prosecutor turn over any exculpatory evidence. Rule 14(a)(1)(C). Discretionary discovery material includes a wide array of other possible items, such as the additional Cl information requested in this motion. Rule 14(a)(2). Defendants do not have unlimited access to witnesses and documents in advance of trial. Commonwealth v. Oliveira, 438 Mass. 325, 339 (2002). Section (a)(2) motions must demonstrate that the items requested are “material and relevant” to the issue. Id.; Oliveira, 438 Mass. at 339.1 In addition, when submitting a motion for discovery, the motion must be accompanied by an affidavit based on personal knowledge.2 Rule 13(a)(2); Commonwealth v. Pope, 392 Mass. 493, 497 (denying pretrial motion submitted without an affidavit from defendant). “The requirement of really adequate affidavits [with pretrial motions] should be strongly enforced as a matter of good judicial administration.” Commonwealth v. Benjamin, 358 Mass. 672, 676 n.5 (1971).

In this case, defendant’s motion was accompanied by an affidavit from defense counsel, detailing counsel’s investigatory work to uncover the Cl’s past activities, his intent to raise the defense of entrapment, and his intent to impeach the Cl’s credibility at trial via evidence of bias.

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Bluebook (online)
16 Mass. L. Rptr. 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-saletino-masssuperct-2003.