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14-P-1802 Appeals Court

COMMONWEALTH vs. DANNY ANTONE.

No. 14-P-1802.

Bristol. February 5, 2016. - January 4, 2017.

Present: Green, Hanlon, & Henry, JJ.

Controlled Substances. Practice, Criminal, New trial, Plea, 

Conduct of government agents, Disclosure of evidence. 

Evidence, Certificate of drug analysis, Exculpatory.

Indictments found and returned in the Superior Court 

Department on November 4, 2010.

A motion to vacate a guilty plea and for a new trial, filed 

on October 18, 2012, was heard by Wendie Gershengorn, J., 

special judicial magistrate, and an order affirming the proposed 

order of the special judicial magistrate was entered by Renee P. 

Dupuis, J.

Sharon L. Sullivan-Puccini for the defendant.

David A. Wittenberg, Assistant District Attorney, for the 

Commonwealth.

HENRY, J. The defendant, Danny Antone, appeals from an 

order denying his motion to vacate his guilty plea to the 

offense of trafficking in cocaine (one hundred grams or more), 
2

G. L. c. 94C, § 32E(b)(3). His motion arises from the 

misconduct of Annie Dookhan, a chemist who was employed at the 

William A. Hinton State Laboratory Institute (Hinton lab or 

lab). See Commonwealth v. Scott, 467 Mass. 336, 337-342, 349-

350 (2014) (describing Dookhan's misconduct). On appeal, the 

defendant argues that his motion should have been allowed 

because (1) there was a reasonable probability that he would not 

have pleaded guilty if he had known of Dookhan's misconduct,

(2) the Commonwealth failed to provide exculpatory evidence 

concerning Dookhan's misconduct, and (3) Dookhan's misconduct 

constitutes newly discovered evidence. We affirm.

Background. 1. Facts pertaining to plea.

1 As the result 

of information provided by a confidential informant (CI) in the 

summer of 2010, the New Bedford police began to conduct 

surveillance of the defendant. On one occasion they observed 

him make a variety of maneuvers while driving his vehicle that 

 

1 We summarize the facts found by the Regional 

Administrative Justice, reserving certain details for discussion 

with the issues raised. See Commonwealth v. Charles, 466 Mass. 

63 (2013) (describing role and authority of Regional 

Administrative Justices and special judicial magistrates in 

procedures adopted for matters related to Dookhan's misconduct). 

As the Regional Administrative Justice adopted the findings of 

the special judicial magistrate, we treat the magistrate's 

findings as those of the Regional Administrative Justice. See 

Commonwealth v. Williams, 89 Mass. App. Ct. 383, 388 (2016). We 

supplement those findings "with evidence in the record that is 

uncontroverted and that was implicitly credited by the [Regional 

Administrative Justice]." Commonwealth v. Hernandez, 473 Mass. 

379, 380 (2015) (quotations omitted).
3

were consistent with someone conducting "counter surveillance." 

The police arranged for the CI to make two controlled purchases 

of cocaine from the defendant.

2 The police field test of the 

substance in each controlled purchase was positive for cocaine.

Based on this information, the police obtained search 

warrants on August 13, 2010, for the defendant's home and 

vehicle. In preparation for execution of the warrants, the 

police began surveillance of the defendant's home on August 18, 

2010. At approximately 9:00 P.M., they observed him depart in 

his vehicle. The police followed and eventually stopped the

defendant's vehicle. Detective Justin Kagan approached the 

vehicle on foot and observed that the defendant had locked his 

doors and was drinking from a plastic water bottle. Detective 

Evan Bielski, who also was present, stated that, based on his 

training and experience, the defendant's conduct was consistent 

with swallowing drugs. When the defendant refused the 

detectives' requests to open the door, the detectives broke one 

of the windows. After a brief struggle, the defendant was taken 

into custody.

The police took the defendant back to his home, which was 

within one thousand feet of a public school, and showed him 

 

2 Immediately after completing each controlled purchase, the 

CI gave the purchased substance to the police. For both 

controlled purchases, surveillance was constant and at no time 

did the CI meet with anyone else.
4

copies of the search warrants. Bielski noticed newly installed 

steel doors at the home. Although initially uncooperative, the 

defendant eventually agreed to disclose the location of the 

"drugs." He led the police into a bedroom and indicated that 

the drugs were in a tote bag. Inside the tote bag, Detective 

Haggerty discovered four plastic bags containing a substance 

that Bielski, based on his training and experience, believed to 

be cocaine. These bags, which were weighed at the police 

station, had a combined weight well over 200 grams. Detective 

Gracia found a fifth plastic bag containing a small amount of a 

substance that Bielski similarly identified as cocaine. Also 

recovered during the search of the home was cash in the amount 

of $220 (ninety dollars of which was in nine rolls of ten one 

dollar bills), three pairs of binoculars, scales, packaging 

materials, cutting agents, a cellular telephone, and cocaine 

cooking materials, including metal strainers, a hot plate with a 

pot of water on it, and four glass tubes. All of the cooking 

and packaging materials were set up in a storage room. 

According to Bielski, the room dedicated to cooking and 

processing the cocaine in combination with the cocaine and 

cutting agents, both of which Bielski identified, indicated the 

defendant was engaged in cocaine distribution and sale, rather 

than personal use. Bielski also stated that the binoculars were 

significant because they were counter-surveillance equipment.
5

The five plastic bags containing substances that Bielski 

identified as cocaine were sent to the Hinton Lab for analysis.

The lab issued four certificates; one certificate was issued for 

two of the bags. Each certificate is signed by Della Saunders 

as the primary chemist and Dookhan as the confirmatory chemist

and is dated September 8, 2010. Each certificate identifies the 

substance in each bag as one containing cocaine, as defined in 

G. L. c. 94C, § 31, and lists the weight of the substances. The 

aggregate weight of the substances is 266.88 grams. Both 

Saunders and Dookhan were listed as expert witnesses for the 

Commonwealth in a joint pretrial memorandum.

At the defendant's plea hearing on April 25, 2012, the 

judge was informed by the parties that the defendant had agreed 

to plead guilty in exchange for the reduction of the charge of 

trafficking in 200 or more grams of cocaine to trafficking in 

100 or more grams of cocaine, a sentencing recommendation of 

from ten to twelve years in State prison, and the entry of a 

nolle prosequi on the habitual offender and school zone charges. 

The agreement eliminated the risk that the defendant, who was 

fifty-seven years old, would face a minimum mandatory twenty-two 

year sentence.

3 The judge accepted the defendant's guilty plea

 

3 At the time, the trafficking offense carried a minimum 

mandatory sentence of fifteen years and a maximum sentence of 

twenty years. The habitual offender charge required the 

imposition of the maximum sentence for the underlying offense, 
6

to the reduced charge and imposed the recommended sentence. The 

Commonwealth nol prossed the two remaining charges.

2. Motion to vacate plea. About six months after the 

defendant's plea, in light of the issues that surfaced at the 

Hinton lab, the defendant moved to withdraw his guilty plea. 

After a hearing at which exhibits were introduced, a special 

judicial magistrate, who had been assigned to preside over 

criminal cases related to Dookhan's misconduct, issued findings, 

rulings, and a proposed order denying the defendant's motion.

The magistrate applied the two-prong test set forth in 

Commonwealth v. Scott, 467 Mass. at 346-358 (Ferrara-Scott

test).

As to the first prong, the magistrate found that the 

defendant was entitled to a conclusive presumption that

egregious government misconduct occurred in his case because he 

had "furnished drug analysis certificates bearing Annie 

Dookhan's signature on the line labeled 'Assistant Analyst.'"

As to the second prong, the magistrate concluded that the 

defendant "fail[ed] to demonstrate a reasonable probability 

that, had he known of Dookhan's misconduct, he would have 

rejected the plea deal and proceeded to trial." The magistrate

rested this conclusion on her findings that "the presence of 

 

here twenty years, and the school zone charge required a minimum 

two-year sentence to be served on and after the sentence imposed 

on the underlying conviction.
7

strong circumstantial evidence of drug distribution, including 

distribution materials, [the defendant's] evasive behavior, and 

[the defendant's] personal knowledge as to the location of the 

cocaine in the target residence, diminishe[d] the materiality of 

the drug certificates" and that the plea deal considerably 

reduced the defendant's exposure to committed time. Given the 

"appreciable benefits of the plea deal" and "the strong 

circumstantial evidence underlying the charges," the magistrate 

was "not convinced that a reasonable defendant in [the 

defendant's] shoes would have rejected the deal had information 

of Dookhan's malfeasance been available." The magistrate 

therefore recommended that the defendant's motion be denied.

The defendant filed an objection to the magistrate's 

findings, rulings, and proposed order. See Commonwealth v. 

Charles, 466 Mass. at 71 & n.9 (describing review procedure).

The Regional Administrative Justice (motion judge) adopted the 

magistrate's findings and rulings and denied the defendant's 

motion, adding as a basis for the denial that Dookhan was not 

the primary chemist.

4 This appeal followed.

 

4 The defendant argues that the motion judge applied the 

wrong standard of review because she adopted the magistrate's 

findings and the magistrate stated that she was "not convinced 

that a reasonable defendant in Antone's shoes would have 

rejected the deal had information of Dookhan's malfeasance been 

available." We disagree. The motion judge's findings apply the 

correct standard, and specifically state that she adopted the 

magistrate's "analysis that Antone has not demonstrated a 
8

Discussion. 1. Standard of review. "A motion to withdraw 

a guilty plea is treated as a motion for a new trial under 

Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001)." 

Commonwealth v. Furr, 454 Mass. 101, 106 (2009). The 

disposition of such a motion is "committed to the sound 

discretion of the judge." Scott, supra at 344. "[T]he judge's 

findings of fact are to be accepted if supported by the 

evidence." Ibid. "We review an order [on] a new trial motion 

to determine if the judge committed a significant error of law 

or other abuse of discretion." Ibid. (quotation omitted).

Here, because the motion judge adopted the magistrate's findings 

and rulings, we apply the same standard of review to them. 

Commonwealth v. Williams, 89 Mass. App. Ct. 383, 388 (2016). As 

the motion judge also was the plea judge, "[w]e grant 

substantial deference to [her] decision." Commonwealth v. 

Sylvain, 473 Mass. 832, 835 (2016) (quotations omitted).

2. Ferrara-Scott test. Relying on Ferrara v. United 

States, 456 F.3d 278, 290-297 (1st Cir. 2006), the Supreme 

Judicial Court articulated a two-prong test for analyzing a 

defendant's motion to withdraw a guilty plea in cases involving 

Dookhan's misconduct at the Hinton lab. See Scott, 467 Mass. at

 

reasonable probability that he would not have pleaded guilty had 

he known of Dookhan's misconduct."
9

346-358. See also Bridgeman v. District Attorney for the 

Suffolk Dist., 471 Mass. 465, 467 n.6 (2015).

Under the first prong, a defendant must show egregious 

misconduct by the government that preceded the entry of the 

defendant's guilty plea and where, as here, Dookhan signed the 

certificates as an assistant analyst before the defendant 

entered his plea, Scott provides that such misconduct is 

conclusively presumed.

5 Scott, supra at 347, 351-352. See 

Commonwealth v. Ruffin, 475 Mass. 1003, 1004 (2016) ("Underlying 

[the conclusive presumption established in Scott] is the 

assumption that the misconduct evidenced by the certificate 

antedated the guilty plea").

Under the second prong, the defendant "must demonstrate a 

reasonable probability that he would not have pleaded guilty had 

he known of Dookhan's misconduct." Scott, supra at 355. The 

defendant must "particularize Dookhan's misconduct to his 

decision to tender a guilty plea." Id. at 354. This is 

necessarily a fact-specific inquiry.

6 See id. at 356.

 

5 The finding on the first prong is not challenged on 

appeal. We note that it is supported by the record: Dookhan 

signed the certificates as an assistant analyst on September 8, 

2010, and the defendant entered his plea on April 25, 2012.

6 The court in Scott outlined the factors that may be 

relevant to the defendant's showing under this prong, which 

"include (1) whether evidence of the government misconduct could 

have detracted from the factual basis used to support the guilty 

plea, (2) whether the evidence could have been used to impeach a 
10

The thrust of the defendant's claim is that, had he known

about Dookhan's misconduct, he would have insisted on going to

trial because it is likely Dookhan's misconduct would have 

invalidated the lab's analysis of the substances and the 

Commonwealth, therefore, would not have been able to prove they

were cocaine.

7 Specifically, he emphasizes that the confirmatory 

testing performed by Dookhan is a far more discriminating 

process than that used in the simple bench top tests conducted 

by the primary chemist, and because the confirmatory test was 

not performed, the primary test was not confirmed.

8 See Scott, 

 

witness whose credibility may have been outcome-determinative,

(3) whether the evidence was cumulative of other evidence 

already in the defendant's possession, (4) whether the evidence 

would have influenced counsel's recommendation as to whether to 

accept a particular plea offer, and (5) whether the value of the 

evidence was outweighed by the benefits of entering into the 

plea agreement." Scott, supra at 355. Additional factors "may 

include whether the defendant had a substantial ground of 

defense that would have been pursued at trial or whether any 

other special circumstances were present on which the defendant 

may have placed particular emphasis in deciding whether to 

accept the government's offer of a plea agreement." Id. at 356.

7 The defendant also asserts that "the weight of the 

substances is called into question where the police weighed it 

at the station with an unspecified, presumably un-calibrated 

device." As the police and the primary chemist independently 

weighed the substances and both determined the substances 

weighed well over 200 grams, we see no merit in the defendant's 

assertion.

8 It has since been learned that the labels "primary 

chemist" and "confirmatory chemist" are terms of art. The 

primary chemist "would be responsible for weighing the samples 

and conducting preliminary bench tests," "make preliminary 

determinations as to the identities of the samples," and prepare 
11

supra at 340-341 (describing Hinton lab protocols for primary 

and confirmatory tests).

Relying on Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 

574 (2014), the defendant argues that without the far more 

discriminating confirmatory test, the primary test could not be 

used by the Commonwealth to prove the substances were cocaine. 

In Gaston, however, the question was whether there was a 

"substantial risk that the jury would have reached a different 

conclusion" had evidence of Dookhan's misconduct and her role as 

the confirmatory chemist been admitted at trial. Id. at 573. 

The court questioned, without deciding, whether the primary 

tests were sufficiently reliable to be admitted but reasoned 

that "[i]f admitted, standing alone, [the tests'] discriminatory 

weaknesses provide fodder for cross-examination." Id. at 574.

The Gaston court, in reviewing Dookhan's misconduct in the 

context of a trial, concluded that the misconduct would have 

been a real factor in the jury's deliberations, ibid., and 

granted the defendant a new trial. See id. at 576.

 

samples "for the confirmatory testing process." Commonwealth v. 

Resende, 475 Mass. 1, 8 (2016). Unlike the primary chemist, 

"the confirmatory chemist uses sophisticated instrumentation

. . . that has both a high discriminatory power to identify the

substance and the ability to produce instrument-generated

documentation of test results." Commonwealth v. Gaston, 86 

Mass. App. Ct. 568, 574 (2014).
12

Here, unlike in Gaston, the issue is whether the defendant 

would have pleaded guilty had he known of Dookhan's misconduct, 

not whether her misconduct was a real factor at a jury trial. 

To address this question, the Commonwealth obtained a detailed 

affidavit from the primary chemist in this case, Saunders, 

regarding the analysis she performed.

9 Saunders stated that 

after making sure the evidence (the plastic bags containing the 

substances to be tested) matched the description on the evidence 

control cards, she signed it out of the evidence office. She 

determined the net weight of the substance contained in each 

plastic bag. Saunders then performed tests, including color and 

 

9 Given the motion judge's statement that "[n]o reasonable 

person in [the defendant's] position would have rejected the 

Commonwealth's deal, especially in view of the fact that Dookhan 

was not the primary chemist in the matter," we can infer that 

the judge credited Saunders's affidavit and viewed her initial 

testing as potentially showing that the substance was cocaine 

and, in turn, a basis for accepting the plea. The defendant's 

brief does not dispute the validity of the affidavit. Instead, 

it argues that the motion judge's finding "ignores the 

importance of the secondary chemist" whose testing is more 

"sophisticated" and "discriminatory" -- an argument that 

implicitly credits Saunders's affidavit as outlining the lack of 

sophisticated testing.

We note that defense counsel did not challenge the 

admission of Saunders's affidavit at the motion hearing and, in 

fact, used it to support the defendant's motion. Further, while 

the affidavit did not exist at the time of the defendant's plea, 

he would have known -- from the certificates and a joint 

pretrial memorandum that lists Saunders as an expert witness for 

the Commonwealth -- that Saunders played a role in determining 

that the substances were cocaine and the nature of that role as 

later explained in the affidavit would have been discoverable.
13

microcrystalline tests, on the substance in each plastic bag and

documented that her findings were consistent with the presence 

of cocaine. Next, Saunders took a small sample of the substance 

in each plastic bag and placed it in a glass vial, added a 

reagent, capped the vial, and submitted only the vials and the 

evidence control cards to the gas chromatogram/mass spectrometer 

section of the lab for confirmatory testing. Saunders secured 

the plastic bags in her evidence locker, to which only she and 

her supervisor had a key. After the confirmatory tests were 

completed, the evidence control cards were returned to Saunders; 

the cards contained Dookhan's initials and confirmatory findings 

of cocaine. The evidence office generated certificates, which

were signed by Saunders and Dookhan and notarized. Saunders 

then returned the plastic bags to the evidence office.

There is little question that had the defendant been aware 

of Dookhan's misconduct when deciding to plead guilty, he would

have concluded that the confirmatory and far more inculpatory 

testing could not be used against him, but that conclusion does 

not necessarily render the work of the primary chemist a 

nullity. Saunders's affidavit makes clear that she performed at 

least two tests that indicated the substances were consistent 

with cocaine and that her role in testing and storing the 

substances was entirely independent of the testing done by 

Dookhan. While there may have been some uncertainty whether the 
14

results of primary testing would be admissible at trial, see 

Gaston, 86 Mass. App. Ct. at 574, in deciding whether to plead 

guilty the defendant had to consider the likelihood that at 

least some aspect of that testing would be admissible, in the 

same way that field tests may be admitted. See Commonwealth v.

Marte, 84 Mass. App. Ct. 136, 140-144 (2013) (field testing 

admitted; and in combination with circumstantial evidence 

sufficient to prove identity of substance).

Moreover, as found by the motion judge, there was 

significant additional evidence that suggested the substances at 

issue were cocaine. See Commonwealth v. Dawson, 399 Mass. 465, 

467 (1987) ("Proof that a substance is a particular drug need 

not be made by chemical analysis and may be made by 

circumstantial evidence"). The police had conducted two 

controlled purchases from the defendant and both substances 

purchased field tested positive for cocaine; a room in the 

defendant's home had all the requisite supplies, tools, and 

instruments specific to cooking, processing, and packaging 

cocaine for distribution; the defendant pointed out the "drugs"

to the police; and an experienced detective, based on his 

training and experience, was potentially available to testify.

While there is no guarantee that the detective who 

identified the drugs as cocaine before the grand jury would have 

been able to testify to that opinion at trial, the defendant, in 
15

deciding whether to plead guilty, had to consider the 

possibility that the detective would be qualified to testify 

that the substances were consistent with cocaine. The 

detective's testimony that the substances' appearance was 

consistent with cocaine would have been inculpatory. And to the 

extent the defendant claims that the controlled purchases and 

the materials found in his apartment evidence merely 

distribution rather than the composition of the substances, he 

overlooks proof that the controlled purchases involved only 

cocaine, his apartment was specifically set up for cooking and 

processing cocaine, and the only drugs found in the apartment 

were identified by the police as consistent with cocaine. The 

nature of the distribution enterprise lends circumstantial force 

to the inference that the substance was cocaine. In sum, there 

was significant evidence, apart from the confirmatory test by 

Dookhan, that the Commonwealth may have been able to use to 

prove that the substances were cocaine.

In addition, as the motion judge found, the plea agreement

significantly reduced the defendant's sentence. See Scott, 467 

Mass. at 357 (noting that when assessing second prong of 

Ferrara-Scott test, judge may consider sentence reduction 

resulting from plea). The agreement enabled the defendant, who

was fifty-seven years old at the time of the plea hearing, to 

avoid a minimum mandatory twenty-two year sentence and receive a 
16

ten to twelve year sentence.10 In these circumstances, the value 

of the evidence of Dookhan's misconduct was outweighed by the 

benefits of entering into a favorable plea agreement that 

eliminated potentially ten additional years in prison in a case 

in which the defendant was confronted with a variety of 

evidence, apart from the confirmatory test conducted by Dookhan, 

that the Commonwealth may have been able to use to prove the 

substances were cocaine. Contrary to the affidavits submitted 

by the defendant and his attorney, the motion judge did not err 

in concluding that "[n]o reasonable person in [the defendant's] 

position would have rejected the Commonwealth's deal."

3. Exculpatory and newly discovered evidence claims. The 

defendant also contends that the motion to vacate his guilty 

plea should have been allowed on the basis that the Commonwealth 

failed to provide exculpatory evidence (prosecutorial 

nondisclosure claim) concerning Dookhan's misconduct, as 

required by Mass.R.Crim.P. 14(a)(1)(A), as amended, 444 Mass.

 

10 The magistrate and the motion judge both thought that the 

defendant faced a mandatory fifteen year sentence if found 

guilty on the original charge of trafficking in 200 or more 

grams of cocaine, and that the plea deal offered by the 

Commonwealth, which reduced the charge to trafficking in 100 or 

more grams of cocaine, enabled the defendant to avoid five 

additional years of committed time. In fact, the benefit to the 

defendant was greater, as the plea deal included the entry of a 

nolle prosequi on an habitual offender charge, which enabled the 

defendant to avoid a mandatory twenty year sentence on the 

original trafficking charge. See note 3, supra.
17

1501 (2005), and the United States and Massachusetts 

Constitutions, see Brady v. Maryland, 373 U.S. 83 (1963), and

that Dookhan's misconduct constitutes newly discovered 

evidence.

11

Knowledge of Dookhan's misconduct evolved over a number of 

months as the investigation progressed. The defendant complains

that the Commonwealth did not disclose letters sent by Dr. Linda 

Han, the director of the Bureau of Laboratory Sciences, to the 

Norfolk and Suffolk County12 district attorney's offices and 

ultimately all district attorneys for all counties. The first 

letter was dated February 1, 2012, and addressed to the Norfolk

district attorney, informing him of a "possible breach of 

protocol with respect to ninety drug samples" tested at the lab 

and that were exclusively from Norfolk County.13 The second 

 

11 We assume, without deciding, that Brady applies and that 

the defendant's claim of prosecutorial nondisclosure is not 

waived by the entry of his guilty plea. See Scott, supra at 346 

n.5, 359 n.15.

12 The defendant's case was in Bristol County.

13 On January 31, 2012, the Governor's legal counsel gave 

notice of a breach of protocol relating to ninety samples from 

Norfolk County to the Norfolk County district attorney, the 

United States Attorney for the District of Massachusetts, and 

the Massachusetts District Attorneys Association. The defendant 

argues it is reasonable to conclude that the District Attorneys 

Association notified individual district attorneys. The 

Commonwealth does not state whether it received this notice or a 

copy of the follow up letter of February 1, but did argue that 

the letter offered reassurances of the integrity of the samples 

and "accuracy of the sample analysis."
18

letter, dated February 21, 2012, outlined a breach of protocol 

related to the ninety samples from Norfolk County and described 

the failure of a chemist to properly log the transfer of the 

samples that she removed from the evidence office for testing.

14 

The letter further indicated that, although the chemist 

responsible for these mistakes was an otherwise exemplary 

employee, she had been removed from all responsibilities 

involving laboratory analysis. The letter also indicated that 

an investigation found "there was no evidence to suggest that 

the integrity of the results was impacted by the documentation 

issue with the log book." The letter did not name the chemist 

involved.

The defendant also has identified a third letter, dated 

April 20, 2012, just five days before his plea, from Dr. Han to 

the Suffolk County district attorney about the investigation 

into the handling of the Norfolk County evidence. The defendant 

argues that it is reasonable to conclude that all of the 

district attorneys' offices received a similar letter and the 

magistrate assumed they received the letters. No information in 

these three letters suggests tests conducted on any evidence 

 

14 The defendant's brief notes that the executive summary in 

the Hinton Laboratory Drug Lab Internal Inquiry states, "[t]he 

February 21 letter was disseminated to all county District 

Attorneys Offices in the Commonwealth."
19

submitted from Bristol County were involved in the breach of 

protocol, and the April 20 letter affirmatively states only 

Norfolk County evidence was "involved." 

Finally, the defendant cites to evidence of a fourth letter 

sent from a defense attorney to the Bristol County district 

attorney's office two weeks prior to the defendant's plea. That 

letter of April 11, 2012, identifies Dookhan as the chemist 

involved in misconduct at the lab and indicates that despite 

Dookhan's suspension from her duties, she had testified as an 

expert chemist in a Bristol County criminal prosecution without 

disclosing her suspension.15

Even if we assume that the letters were disseminated to all 

the district attorneys before the date of the defendant's guilty 

plea on April 25, 2012, and that they might have some 

exculpatory benefit, the defendant fares no better, whether the 

letters are viewed as exculpatory or newly discovered evidence.

In Scott, the Supreme Judicial Court discussed at length 

the similarity among the standards used to assess prejudice to 

the defendant under the second prong of the Ferrara test (see 

discussion, supra), the test for prosecutorial nondisclosure 

under Federal case law, and our formulation of the test for 

cases in which a defendant claims that counsel's ineffective 

 

15 The April 11, 2012, letter is not in the record. Rather, 

the defendant has included a September 5, 2012, letter referring 

to the existence of the April 11 letter.
20

assistance induced the defendant to plead guilty. See Scott, 

467 Mass. at 346 n.5, 355-356 & n.12, 359 n.15. See also 

Commonwealth v. Clarke, 460 Mass. 30, 46-48 (2011) (prejudice 

test for withdrawal of guilty plea in ineffective assistance of 

counsel cases). As the court concluded in Scott:

"[I]f a defendant is unable to establish prejudice under 

the second prong of the Ferrara analysis, it is likely that 

he or she would be unable to make the showing of prejudice 

required by [his or her claims of newly discovered evidence 

and prosecutorial nondisclosure] as well. Therefore, 

[consideration] of the defendant's motion based on the 

voluntariness analysis . . . set forth in [Scott] should be 

sufficient to dispose of [these claims]."

Scott, supra at 361-362 (citations omitted).

Where we have found that the motion judge did not commit an 

error of law or abuse of discretion in determining that the 

defendant had failed to satisfy his burden of demonstrating a 

reasonable probability that he would not have pleaded guilty had 

he known of Dookhan's misconduct, we similarly conclude that he 

has not satisfied his burden on his prosecutorial nondisclosure

and newly discovered evidence claims concerning that same

misconduct.

Order denying motion to

 vacate guilty plea

 affirmed.