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SJC-11981

COMMONWEALTH vs. ADMILSON RESENDE.

Plymouth. April 4, 2016. - July 25, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Controlled Substances. Constitutional Law, Plea, Conduct of 

government agents. Due Process of Law, Plea, Disclosure of

evidence, Presumption. Practice, Criminal, Plea, New 

trial, Conduct of government agents, Disclosure of 

evidence, Presumptions and burden of proof. Evidence, 

Guilty plea, Certificate of drug analysis, Presumptions, 

Disclosure of evidence.

Indictments found and returned in the Superior Court 

Department on November 9, 2006.

A motion to withdraw a guilty plea, filed on October 2, 

2012, and supplemented on March 20, 2014, was heard by Paul A. 

Chernoff, J., special judicial magistrate, and an order 

affirming the proposed order of the special judicial magistrate 

was entered by Frank M. Gaziano, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Patrick Levin, Committee for Public Counsel Services, for 

the defendant.
2

Laurie Yeshulas, Assistant District Attorney (Lisa J.

Jacobs, Assistant District Attorney, with her) for the 

Commonwealth.

SPINA, J. The present case is the most recent in a series 

of cases concerning the egregious misconduct of Annie Dookhan, a 

chemist who was employed in the forensic drug laboratory of the 

William A. Hinton State Laboratory Institute (Hinton drug lab) 

from 2003 until 2012. On January 23, 2007, the defendant, 

Admilson Resende, pleaded guilty on indictments charging 

distribution of a class B controlled substance (cocaine), G. L. 

c. 94C, § 32A (c) (five counts); violation of the controlled 

substances laws in proximity to a school or park, G. L. c. 94C, 

§ 32J (three counts); and possession of a class B controlled 

substance (cocaine) with intent to distribute, G. L. c. 94C, 

§ 32A (c) (one count).1 He completed service of his sentences.2 

On October 2, 2012, the defendant filed in the Superior Court a 

motion to withdraw his guilty pleas pursuant to Mass. R. Crim. 

1 An indictment charging unlawful possession of a class D 

controlled substance (marijuana), G. L. c. 94C, § 34, as amended 

through St. 1996, c. 271, § 1, was placed on file.

2 With respect to the indictments charging distribution of 

cocaine and possession of cocaine with intent to distribute, the 

defendant was sentenced to concurrent terms of a mandatory 

minimum sentence of one year in a house of correction. G. L. 

c. 94C, § 32A (c), as amended through St. 1991, c. 391. With 

respect to the school or park zone charges, the defendant was 

sentenced to concurrent terms of a mandatory minimum sentence of 

two years in a house of correction, to commence on and after the 

completion of his sentences for the underlying drug crimes. 

G. L. c. 94C, § 32J, as amended through St. 1998, c. 194, § 146.

 
3

P. 30, as appearing in 435 Mass. 1501 (2001), based on Dookhan's 

malfeasance.

Prior to the issuance of a ruling on the defendant's 

motion, this court decided Commonwealth v. Scott, 467 Mass. 336 

(2014), in which we articulated, in reliance on Ferrara v. 

United States, 456 F.3d 278, 290-297 (1st Cir. 2006), a twoprong framework for analyzing a defendant's motion to withdraw a 

guilty plea under rule 30 (b) in a case involving the misconduct 

of Dookhan at the Hinton drug lab. Scott, supra at 346-358. 

Under the first prong of the analysis, a defendant must show 

egregious misconduct by the government that preceded the entry 

of the defendant's guilty plea and that occurred in the 

defendant's case. Id. at 347-354. We recognized that, given 

the breadth and duration of Dookhan's malfeasance, it might be 

impossible for a defendant to show the required nexus between 

government misconduct and the defendant's own case. Id. at 351-

352. Consequently, we established a special evidentiary rule 

whereby a defendant seeking to vacate a guilty plea under rule 

30 (b) as a result of the revelation of Dookhan's misconduct, 

and proffering a certificate of drug analysis (drug certificate) 

from the defendant's case signed by Dookhan on the line labeled 

"Assistant Analyst," would be entitled to "a conclusive 

presumption that egregious government misconduct occurred in the 

defendant's case." Id. at 352. Application of this conclusive 
4

presumption in a particular case meant that a defendant's 

evidentiary burden to establish each element of the first prong 

of the Ferrara-Scott framework was satisfied. Id. at 353-354. 

The defendant then had the burden under the second prong of the 

analysis of particularizing Dookhan's misconduct to his or her 

decision to tender a guilty plea. Id. at 354-355. That is to 

say, the defendant had to "demonstrate a reasonable probability 

that he [or she] would not have pleaded guilty had he [or she] 

known of Dookhan's misconduct." Id. at 355. A successful 

showing on this second prong of the Ferrara-Scott framework 

would warrant an order granting the defendant's motion to 

withdraw a guilty plea.

In light of our decision in Scott, as well as new evidence 

concerning the Hinton drug lab's analyses of the samples in his 

case,3 the defendant filed supplemental pleadings on March 20, 

2014, in support of his motion to withdraw his guilty pleas. He 

pointed out that Dookhan had set up and operated the gas 

chromatography-mass spectrometry (GC-MS) machine for three out 

3 On April 1, 2013, defense counsel filed a motion in the 

Superior Court for the production of documentation from the 

forensic drug laboratory of the William A. Hinton State 

Laboratory Institute (Hinton drug lab) that supported the 

results set forth on each certificate of drug analysis (drug 

certificate) in the defendant's case. Counsel sought, in 

particular, the reviewable data produced by the gas 

chromatography-mass spectrometry (GC-MS) machine that had 

performed the drug analyses. The motion was allowed, and the 

office of the Inspector General produced the requested 

documentation.

 
5

of the seven samples in his case (although her name did not 

appear on those drug certificates), and that she had been the 

confirmatory chemist for a fourth sample. As a consequence, the 

defendant asserted that, with respect to these four samples, he 

was entitled to the conclusive presumption articulated in Scott, 

467 Mass. at 352, that egregious government misconduct occurred 

in his case. He further argued that he would not have pleaded 

guilty had he known of Dookhan's misconduct at the time of his 

pleas.

Following an evidentiary hearing, a special magistrate 

appointed by the Chief Justice of the Superior Court Department 

of the Trial Court pursuant to Mass. R. Crim. P. 47, 378 Mass. 

923 (1979), denied the defendant's motion to withdraw his guilty 

pleas. See Commonwealth v. Charles, 466 Mass. 63, 89-90 (2013) 

(describing authority of special magistrate to conduct guilty 

plea colloquies in Hinton drug lab sessions). The defendant 

appealed the special magistrate's proposed order dated May 12, 

2014, to the Regional Administrative Justice of the Superior 

Court, who denied the defendant's appeal and affirmed the 

decision of the special magistrate. See id. at 66, 90-91. The 

defendant filed a timely notice of appeal in the Appeals Court, 

and we subsequently granted his application for direct appellate 

review. For the reasons that follow, we conclude that the 

defendant was not entitled to the conclusive presumption that 
6

egregious government misconduct occurred in his case, and that 

his motion to withdraw his guilty pleas was properly denied.4

1. Background. On four divers dates in August, 2006, 

Detective Timothy Stanton of the Brockton police department 

conducted "controlled buys" of what appeared to be cocaine from 

the defendant. Each purchase occurred in a similar manner. 

Stanton would telephone a number that had been provided by the 

defendant and would meet him (or, on the first occasion, a 

female associate) at a designated location in the "Village" 

section of Brockton. Each of these locations was within 1,000 

feet of an elementary school or a park. Stanton would purchase 

two "twenty" bags of an off-white rock-like substance from the 

defendant for forty dollars. Before and after several of these 

controlled buys, the defendant was observed leaving and 

reentering a multifamily home on North Montello Street. Field 

tests conducted on the substances indicated the presumptive 

presence of cocaine. Based on these controlled buys, Stanton 

applied for and was granted a search warrant for the defendant's 

residence on the first floor of the North Montello Street 

address.

4 Although our recent decision in Commonwealth v. Resende, 

474 Mass. 455 (2016), concerned the same defendant as in the 

present case, the issues raised in the two cases are entirely 

different.

 
7

On August 22, 2006, Stanton engaged in a fifth controlled 

buy with the intention of executing the search warrant 

immediately thereafter. He telephoned the defendant, who 

directed him to the corner of North Montello Street and King 

Avenue and advised him that he would have one "forty" bag 

instead of two "twenty" bags. When Stanton arrived at the 

meeting place, he telephoned the defendant and subsequently 

observed him leaving the residence on North Montello Street. 

Stanton gave the defendant two twenty dollar bills with 

prerecorded serial numbers in exchange for a clear plastic bag 

containing an off-white rock-like substance. A team of police 

officers then secured the defendant and took him into custody. 

The defendant was advised of the Miranda rights and acknowledged 

that he understood those rights. Found on the defendant's 

person were a Nextel cellular telephone (on which Stanton's 

telephone call was still visible), three pieces of an off-white 

rock-like substance wrapped in clear plastic, a bag containing 

green vegetable matter, and two twenty dollar bills having the 

prerecorded serial numbers.

The substances recovered from the five controlled buys and 

from the defendant's person were sent to the Hinton drug lab for 

analysis. Seven drug certificates were issued. As relevant to 

the present appeal, three of the drug certificates, stating that 

the substances seized from the defendant contained cocaine as 
8

defined in G. L. c. 94C, § 31, were signed on the line labeled 

"Assistant Analysts" by Daniela Frasca and Michael Lawler. 

However, as will be explained in greater detail infra, Dookhan 

was the so-called "setup operator" for the substances (samples 

779099, 779110, and 779125) that were analyzed to generate these 

certificates. A fourth drug certificate, stating that the 

substance (sample 810059) seized from the defendant contained 

cocaine as defined in G. L. c. 94C, § 31, was signed on the line 

labeled "Assistant Analysts" by Frasca and Dookhan.5

In 2012, Dookhan admitted to tampering with evidence at the 

Hinton drug lab, failing to comply with quality control 

measures, forging the initials of an evidence officer, and "dry 

labbing."6 See Scott, 467 Mass. at 339-340. It appeared that 

"the motive for her wrongdoing was in large part a desire to 

increase her apparent productivity." Id. at 341. Following a 

5 Two of the remaining drug certificates, stating that the 

substances (samples 810300 and 810301) seized from the defendant 

contained cocaine as defined in G. L. c. 94C, § 31, were signed 

on the line labeled "Assistant Analysts" by Kate Corbett and 

Della Saunders. The final drug certificate, stating that the

substance (sample 810302) seized from the defendant contained 

marijuana as defined in G. L. c. 94C, § 31, was signed on the 

line labeled "Assistant Analyst" by Saunders. Because there is 

no evidence that Dookhan was involved in the analyses of the 

substances for which these three drug certificates were 

generated, we do not consider them further.

6 Dookhan's admission to "dry labbing" meant that "she would 

group multiple samples together from various cases that looked 

alike and then test only a few samples, but report the results 

as if she had tested each sample individually." Commonwealth v. 

Scott, 467 Mass. 336, 339 (2014).

 
9

criminal investigation into Dookhan's misconduct, the Attorney 

General's office indicted her on twenty-seven charges --

seventeen counts of tampering with evidence, eight counts of 

obstruction of justice, one count of perjury, and one count of 

falsely claiming to hold a degree from a college or university. 

See id. at 337 & n.3. On November 22, 2013, Dookhan pleaded 

guilty to all of the charges. See id. She was sentenced to 

from three years to five years in the State prison, followed by 

a probationary term of two years.

2. Testing procedures at the Hinton drug lab. At the 

April 22, 2014, hearing before the special magistrate on the 

defendant's motion to withdraw his guilty pleas, the parties 

presented, among other evidence, a report from the office of the 

Inspector General (report), dated March 4, 2014, describing its 

comprehensive investigation of the operation and management of 

the Hinton drug lab from 2002 to 2012.7

 In addition, the 

defendant presented the testimony of Michael Lawler, the 

confirmatory chemist for samples 779099, 779110, and 779125, 

with respect to which Dookhan was the setup operator.8

 Lawler, 

7 The report was issued one day before the release of our 

opinion in Scott and greatly enhanced public understanding of 

the details surrounding Dookhan's misconduct at the Hinton drug 

lab.

8 On November 4, 2014, the defendant filed a motion to 

reconstruct the testimony given by Lawler at the hearing on the 

defendant's motion to withdraw his guilty pleas. Due to an 

 
10

whom the special magistrate found to be credible, described the 

GC-MS machine, as well as the duties and responsibilities of a 

primary chemist, a confirmatory chemist, and a setup operator.

When a law enforcement agency brought a substance to the 

Hinton drug lab for analysis, an evidence officer would accept 

the substance and assign it a sample number, which would be 

attached to the substance through all of the phases of the 

testing process. The evidence officer would create a drug 

receipt, which included the sample number, and would give a copy 

of the receipt to the law enforcement agency that had requested 

the analysis. Then, the evidence officer would generate a 

control card9 and place it, together with the substance, in a 

manila envelope labeled with the sample number. Eventually, the 

substance would be assigned to a chemist for analysis.

The special magistrate described the testing process used 

by the Hinton drug lab as a "two-phase system," rather than a 

equipment malfunction, a transcript of that hearing could not be 

produced. The parties subsequently filed a joint statement 

regarding their recollections of Lawler's testimony, and the 

special magistrate accepted the statement.

9 The control card would list information about the sample, 

including its number, its net weight, the identity of the 

primary and confirmatory chemists assigned to the sample, and 

the analytical results. The control card stayed with the sample 

throughout the testing process.

 
11

"two-chemist system."10 During the preliminary phase, substances 

submitted by law enforcement agencies for analysis were assigned 

to a primary chemist. That individual would be responsible for 

weighing the samples and conducting preliminary bench tests, 

which included color, microcrystalline, gas chromatography, 

infrared spectroscopy, ultraviolet spectroscopy, macroscopic, 

and microscopic tests. The primary chemist would document the 

test results and make preliminary determinations as to the 

identities of the samples. Then, the primary chemist would 

prepare the samples for the confirmatory testing process by 

making aliquots11 for analysis by the GC-MS machine. In 

addition, the primary chemist would complete a GC-MS control 

sheet, setting forth the date, the identity of the primary 

chemist, the name of the submitting law enforcement agency, a 

list of samples in numerical order, the chemist's preliminary 

10 The special magistrate found that under a "two-chemist 

system," the primary chemist conducted the preliminary bench 

tests, and the confirmatory chemist received the samples for 

analysis by the GC-MS machine, operated the GC-MS machine, and 

confirmed the preliminary findings made by the primary chemist. 

In contrast, under a "two-phase system," one chemist was 

responsible for the preliminary testing phase, and one or two 

different chemists were responsible for the confirmatory phase 

(except in rare instances when a single chemist completed both 

phases). When performing the confirmatory phase, one chemist 

would receive the samples and operate the GC-MS machine, and a 

different chemist would analyze the results generated by the GCMS machine.

11 An aliquot is a small portion of the sample that the 

primary chemist places into a glass vial and dissolves with a 

solvent.

 
12

findings, and any comments that would be helpful to the 

confirmatory chemist in the subsequent analysis. Finally, the 

primary chemist would take the GC-MS control sheet, the control 

card, and the aliquots to the room where the GC-MS machines were 

located (GC-MS room) so that the confirmatory phase of the 

testing process could begin.

With respect to the confirmatory testing process, the 

Hinton drug lab generally followed the protocol recommended by 

the Scientific Working Group for the Analysis of Seized Drugs, 

which relied on use of a GC-MS machine. The GC-MS room was 

situated in the middle of the laboratory complex and was 

accessible by only one door. Each machine was a large, boxshaped piece of equipment with a robotic arm that had a syringe 

attached to the end of it. Placed inside the GC-MS machine was 

a carousel which could be loaded with 100 to 120 vials, 

depending on the size of the machine. When operational, the 

carousel would move the vials toward the syringe which would 

puncture the top of each vial to commence the testing process 

for that sample. After the contents of a vial were analyzed, 

the GC-MS machine automatically purged the syringe by "spitting" 

its contents into a waste receptacle and then putting the 

syringe into a cleaning solution.

The confirmatory phase involved three separate steps --

receipt of the samples in the GC-MS room, operation of the GC-MS 
13

machine, and analysis of the results from the GC-MS machine to 

confirm the preliminary identification of the samples. It was 

common practice at the Hinton drug lab for the setup operator to 

complete the first two steps, and for the confirmatory chemist, 

who signed the drug certificates, to complete the last step.12 

Chemists were assigned to work as the setup operator for weeklong shifts. Although the setup operator had some level of 

autonomy because he or she was not directly supervised, a 

supervisor usually was present in the GC-MS room. On some 

occasions, the setup operator would become the confirmatory 

chemist and would analyze the results produced by the GC-MS 

machine. On other occasions, the GC-MS machine would run 

overnight, so the setup operator might not be the chemist who 

would interpret the results the following morning and sign the 

drug certificates.

At the beginning of the confirmatory phase, the setup 

operator would receive the aliquots from the primary chemist and 

verify that the number on each vial matched the sample numbers 

on the accompanying GC-MS control sheet and control card. The 

setup operator would inspect the vials and document any 

problems, including signs of contamination. Then, he or she 

12 According to the special magistrate's findings and the 

report from the office of the Inspector General, chemists at the 

Hinton drug lab did not consider it to be a requirement that one 

chemist perform all three steps of the confirmatory phase of the 

testing process.

 
14

would place the aliquots, along with vials containing 

standards,13 blanks,14 and a quality control standard mix,15 on 

the carousel of the GC-MS machine for analysis. The setup 

operator would complete a "sequence" or "batch" sheet, an 

internal document that specified the order in which the various 

vials were arranged on the carousel, and enter the information 

from the sheet into the GC-MS machine. The setup operator would 

not open the aliquots.

Before the aliquots could be analyzed, the setup operator 

was required to confirm that the GC-MS machine was ready for 

operation. This involved "tuning" the GC-MS machine to ensure 

that it was operating within acceptable parameters, ascertaining 

that the GC-MS machine correctly identified the quality control 

standard mix, and confirming that tests on the first few vials 

13 A standard was a known controlled substance against which 

the aliquots were compared. In the present case, the standard 

was cocaine. The aliquots being analyzed were bracketed by 

standards to ensure that the GC-MS machine was operating 

properly at the beginning, middle, and end of the testing 

sequence. If the setup operator noticed that the GC-MS machine 

had not identified the standard correctly, the "run" of the 

assorted vials would be terminated, and another run would be 

prepared using a new standard.

14 Blanks typically consisted of the solvent that had been 

used to dissolve the aliquots. They were inserted on the 

carousel between the aliquots and the standards, and were used 

to ensure that there was no contamination during the testing 

process.

15 The quality control standard mix was a combination of 

cocaine and codeine. It was used to ensure that the GC-MS 

machine was operating properly.

 
15

containing standards and blanks also correctly identified those 

substances. In addition, the setup operator was responsible for 

other quality control measures, including ensuring that the 

standards were not contaminated, emptying the waste receptacle, 

lubricating the syringe, and replacing the injection seal, as 

necessary.16 If at any time the setup operator determined that 

the GC-MS machine was not fit for operation, the operator would 

terminate the "run" of a batch of vials and restart the analysis 

process.

The GC-MS machine would produce reviewable data that the 

chemists referred to as "documentation." Once the GC-MS machine 

had completed its analysis of the aliquots, the confirmatory 

chemist would check the placement of the vials against the 

sequence sheet to ensure that they were tested in the correct 

order. The confirmatory chemist then would analyze the 

documentation and identify each sample without using the primary 

chemist's notes. This identification would be added to the 

front of the GC-MS control sheet and the control card. A sample 

would have to test positive in both the preliminary and 

confirmatory phases in order to be conclusively identified as 

the controlled substance at issue. Finally, the primary and 

confirmatory chemists would sign the drug certificates. If 

16 The location and purpose of the injection seal are 

unclear from the record.

 
16

there was an inconsistency between the identification made by 

the primary chemist and that made by the confirmatory chemist, 

the samples would be returned to the primary chemist for further 

analysis or for the preparation of new aliquots.

3. Testing in the defendant's case. As to samples 779099, 

779110, and 779125, Lawler testified that Daniela Frasca was the 

primary chemist, Dookhan was the setup operator, and he was the 

confirmatory chemist. Frasca conducted the bench tests, 

prepared the aliquots for analysis by the GC-MS machine, and 

preliminarily identified the three samples as cocaine. Dookhan 

then placed the assorted vials on the carousel of the GC-MS 

machine on Friday, October 6, 2006, and entered the sequence of 

their arrangement into the machine. She initiated the analysis 

process that morning, it continued throughout the night, and it 

was finished the following morning, Saturday, October 7. Lawler 

testified that Dookhan would have been responsible for 

performing any necessary quality control measures, and for 

ensuring that the GC-MS machine was operating properly prior to 

the run. Once the analysis was completed on Saturday morning, 

Lawler reviewed the performance of and documentation from the 

GC-MS machine. He testified that he would have checked the GCMS machine and would have examined the placement of the vials 

before he removed them from the carousel. Based on his review 

of the documentation, Lawler confirmed that samples 779099, 
17

779110, and 779125 contained cocaine, and he signed the drug 

certificates.17

Lawler testified that although he had some concerns about 

Dookhan based on her productivity as a primary chemist, he did 

not have similar concerns regarding her work in the GC-MS room. 

Lawler stated that confirmatory testing on the GC-MS machine was 

"very static," meaning that it was not possible to increase or 

accelerate the process, and that it did not involve any 

"creativity." When asked how a "rogue" person could influence 

the results of the GC-MS machine, Lawler testified that he did 

not see how it could be done without detection.

4. Decision of the special magistrate. In a thorough and 

well-reasoned memorandum of decision denying the defendant's 

motion to withdraw his guilty pleas, the special magistrate 

pointed out that Scott does not address whether the conclusive 

presumption of egregious government misconduct is available to a 

defendant in a case where Dookhan merely was the setup operator 

and did not sign the drug certificates. The special magistrate 

found that the roles of setup operator and confirmatory chemist, 

while overlapping, were not so closely analogous or 

interchangeable that they should be treated as one, and that the 

language in Scott clearly limits the conclusive presumption to 

17 With respect to sample 810059, Dookhan signed the drug 

certificate on the line labeled "Assistant Analysts," certifying 

that the sample contained cocaine.

 
18

those cases where Dookhan was the primary or confirmatory 

chemist. Accordingly, he declined to expand the scope of Scott

such that the defendant would be entitled to a conclusive 

presumption that egregious government misconduct occurred with 

respect to the analyses of samples 779099, 779110, and 779125.

The special magistrate then considered whether, absent the 

conclusive presumption, the defendant nonetheless had 

demonstrated that Dookhan, while acting as the setup operator, 

had engaged in "particularly pernicious" misconduct, and that 

such misconduct was material to the defendant's decision to 

plead guilty. See Scott, 467 Mass. at 346-348, 354-355, citing 

Ferrara, 456 F.3d at 290, 291. The special magistrate found 

that there was no evidence that Dookhan had acted with 

purposeful malfeasance while serving as the setup operator for 

samples 779099, 779110, and 779125. To the contrary, he 

continued, the evidence indicated that Dookhan had performed her 

duties as would have been expected. That being the case, the 

special magistrate concluded that the defendant had failed to 

satisfy his burden of proof with respect to the first prong of 

the Ferrara-Scott framework. Turning to the second prong of the 

framework, the special magistrate also concluded that the 

defendant had not demonstrated a reasonable probability that he 

would not have pleaded guilty had he known of Dookhan's 

misconduct. He found that the factual bases for the defendant's 
19

guilty pleas were not substantially weakened by Dookhan's 

purported misconduct in this case, and that the defendant's 

sentences after pleading guilty were considerably more favorable 

than the sentences that could have been imposed if he had 

proceeded to trial.

Finally, with respect to sample 810059, the special 

magistrate stated that because Dookhan was the confirmatory 

chemist, the defendant was entitled to the conclusive 

presumption articulated in Scott that egregious government 

misconduct occurred with respect to the analysis of this 

particular sample. However, he concluded that, for essentially 

the same reasons he already had articulated, the defendant had 

failed to satisfy his burden of proof under the second prong of 

the Ferrara-Scott framework. Accordingly, the special 

magistrate denied the defendant's motion to withdraw his guilty 

pleas.

5. Standard of review. A motion to withdraw a guilty plea 

is treated as a motion for a new trial pursuant to Mass. R. 

Crim. P. 30 (b). Commonwealth v. Furr, 454 Mass. 101, 106 

(2009). "Under Mass. R. Crim. P. 30 (b), a judge may grant a 

motion for a new trial any time it appears that justice may not 

have been done. A motion for a new trial is thus committed to 

the sound discretion of the judge." Scott, 467 Mass. at 344. 

We review the allowance or denial of a motion to withdraw a 
20

guilty plea to determine whether the judge abused that 

discretion or committed a significant error of law. Id. We 

accept the judge's findings of fact if they are supported by the 

evidence because the judge who heard the witnesses testify is 

the "final arbiter [on] matters of credibility." Id., quoting 

Commonwealth v. Schand, 420 Mass. 783, 787 (1995).

6. Egregious misconduct by the government in the 

defendant's case. The defendant first contends that, although 

Dookhan did not sign the drug certificates pertaining to samples 

779099, 779110, and 779125, she nonetheless effectively acted as 

a confirmatory chemist for those samples because she tuned the 

GC-MS machine, verified that it was functioning properly, placed 

the vials on the carousel, and initiated the analysis process. 

The defendant points out that Dookhan's admitted misconduct 

while serving as a confirmatory chemist included the failure to 

verify the proper functioning of a GC-MS machine and the 

falsification of reports to hide her wrongdoing. See Scott, 467 

Mass. at 339-341, 353 n.9. In light of this malfeasance, the 

defendant argues that he was entitled to the conclusive 

presumption articulated in Scott, 467 Mass. at 352, that 

egregious government misconduct occurred in his case. We 

disagree.

We stated in Scott, supra at 339-341, 353 n.9, that Dookhan 

appeared to have engaged in misconduct during the confirmatory 
21

phase of the analysis process at the Hinton drug lab. However, 

the present case is not one in which Dookhan was performing the 

dual roles of setup operator and confirmatory chemist with 

respect to samples 779099, 779110, and 779125. Contrary to the 

defendant's assertions, Dookhan's work as the setup operator did 

not involve the "testing" of drugs. Testing was performed first 

by the primary chemist (Frasca), who completed bench tests and 

made a preliminary identification of each sample based on her 

subjective interpretation of the results, and then by the GC-MS 

machine, which produced documentation that was reviewed and 

interpreted by the confirmatory chemist (Lawler). Notably, 

Dookhan did not prepare the aliquots for analysis by the GC-MS 

machine because that task was the responsibility of Frasca. 

Dookhan's role was simply to receive the aliquots, prepare the 

GC-MS machine, and initiate the analysis process. Once the 

analysis process had been completed, Lawler checked the GC-MS 

machine, verified the proper placement of the vials on the 

carousel, and reviewed the documentation. If there had been any 

inconsistency between the identification made by Frasca and that 

made by Lawler, the samples would have been returned to Frasca 

for further analysis or for the preparation of new aliquots. In 

the opinion of Lawler, whom the special magistrate found to be 

credible, tampering with the GC-MS machine would have been 

detectable.
22

Significantly, the office of the Inspector General found no 

evidence that Dookhan tampered with drug samples that were 

assigned to other chemists, such as Frasca and Lawler in the 

present case. When Dookhan tampered with her own samples, it 

appeared that she was motivated, in large part, by her desire to 

increase her apparent productivity. See Scott, 467 Mass. at 

341, 352. Given that there was no way to increase or accelerate 

the analysis process on a GC-MS machine, Dookhan would have had 

no reason to tinker with its operation while serving as the 

setup operator. Any such tinkering would not have enhanced her 

productivity. Indeed, based on its comprehensive investigation 

of the Hinton drug lab from 2002 to 2012, the office of the 

Inspector General did not suggest treating with increased 

suspicion those cases where Dookhan served as the setup 

operator. We conclude that the special magistrate did not abuse 

his discretion or otherwise err in determining that the 

defendant was not entitled to the conclusive presumption 

articulated in Scott, supra at 352, that egregious government 

misconduct occurred in his case with respect to the analyses of 

samples 779099, 779110, and 779125.18

18 Given that Dookhan signed the drug certificate for sample 

810059 on the line labeled "Assistant Analysts," the special 

magistrate properly concluded that the defendant was entitled to 

the conclusive presumption that egregious government misconduct 

occurred with respect to the analysis of this particular sample.

 
23

Absent this conclusive presumption, a defendant who moves 

to withdraw his guilty pleas has the evidentiary burden of 

establishing, as an initial matter, each element of the first 

prong of the Ferrara-Scott framework. See Ferrara, 456 F.3d at 

290; Scott, 467 Mass. at 346-354. Here, the defendant was 

required to show that Dookhan engaged in "egregiously 

impermissible conduct" in his case, and that such misconduct 

preceded the entry of his guilty pleas.19 Ferrara, supra. See 

Scott, supra. Based on the report, the timing and the scope of 

Dookhan's misconduct during the confirmatory phase of the 

analysis process at the Hinton drug lab do not suggest that she 

engaged in malfeasance with respect to samples 779099, 779110, 

and 779125, which were analyzed in October, 2006.

First, the report found that around March, 2011, chemist 

Kate Corbett reported to the supervisor of the GC-MS room that 

Dookhan had forged her initials on a batch sheet, falsely 

indicating that Corbett had been the operator of the GC-MS 

machine for the particular run of samples indicated on the 

sheet. Apart from the fact that this incident occurred nearly 

four and one-half years after the defendant's samples were 

analyzed, there was no evidence to suggest that Dookhan had 

19 It is well established that Dookhan's work at the Hinton 

drug lab, including her service as the setup operator for 

samples 779099, 779110, and 779125, was conduct "by the 

government." Scott, 467 Mass. at 348-350.

 
24

tampered with the actual operation of the GC-MS machine, 

notwithstanding her forgery of Corbett's initials on the batch 

sheet. Next, the report found that between May 10, 2011, and 

May 14, 2011, Dookhan falsified four days of reports pertaining 

to the quality control standard mix runs on the GC-MS machine. 

See note 15, supra. Dookhan completed these reports as if the 

GC-MS machine had performed satisfactorily, when it had not, and 

then she signed the reports as the "quality control reviewer," 

thereby approving her own falsified test results.20 After 

discovering this misconduct, the office of the Inspector General 

reviewed 3,930 quality control standard mix results from 2005 to 

2012. It did not find any additional falsified reports or 

evidence of other wrongdoing with respect to the quality control 

standard mixes. Finally, the report found that in June, 2011, 

Dookhan forged the initials of chemist Nicole Medina on a socalled "tune report." During the course of its comprehensive 

investigation, the OIG reviewed tune reports from 2009 to 2012. 

It did not find any reports indicating that the GC-MS machines 

were operating outside acceptable parameters. We conclude that 

20 According to the report, the job of the "quality control 

reviewer" was "to collect the quality control record from the 

chemists and various areas of the lab, ensure that the chemists 

had filled in the records, sign them, and present them" to the 

"quality assurance reviewers." The signature of the "quality 

control reviewer" documented that "the reviewer had looked at a 

list of checkmarks on a completed form created by a chemist 

indicating he or she had performed one of the necessary quality 

control tasks."

 
25

the defendant did not establish that Dookhan engaged in 

egregious misconduct while serving as the setup operator for 

samples 779099, 779110, and 779125. Accordingly, the special 

magistrate properly determined that the defendant could not 

withdraw his guilty pleas where he failed to satisfy each 

element of the first prong of the Ferrara-Scott framework.

As discussed, the analysis of a defendant's motion to 

withdraw a guilty plea under Mass. R. Crim. P. 30 (b) in a case 

involving the misconduct of Dookhan at the Hinton drug lab 

proceeds under a two-prong framework. See Scott, 467 Mass. at 

346-358, citing Ferrara, 456 F.3d at 290, 291. Given our 

conclusion that the defendant here has failed to satisfy the 

first prong of the framework with respect to the testing of 

samples 779099, 779110, and 779125, we need not further consider 

whether, under the second prong, the defendant demonstrated "a 

reasonable probability that he would not have pleaded guilty had 

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

Ferrara, supra at 290, 294. However, the second prong is 

relevant with respect to sample 810059 because the drug 

certificate pertaining to that one sample, stating that it 

contained cocaine as defined in G. L. c. 94C, § 31, was signed 

on the line labeled "Assistant Analysts" by Frasca and Dookhan. 

As to that one sample, the defendant was deemed to have 

satisfied each element of the first prong of the Ferrara-Scott
26

framework. See Scott, supra at 353-354. We therefore proceed 

to consider the second prong as it relates to sample 810059.21

7. Material influence on the defendant's decision to plead 

guilty. Under the second prong of the Ferrara-Scott framework, 

the defendant had the burden of particularizing "Dookhan's 

misconduct to his decision to tender a guilty plea." See Scott, 

467 Mass. at 354. That is to say, the defendant had to 

demonstrate, based on a totality of the circumstances, "a 

reasonable probability that he would not have pleaded guilty had 

he known of Dookhan's misconduct." Id. at 355. In reliance on 

Ferrara, 456 F.3d at 294, this court identified in Scott a 

number of factors that could be relevant to a defendant's 

showing under this second prong, including "(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 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 

21 Sample 810059 pertained to indictments charging

distribution of cocaine and violation of the controlled 

substances laws in proximity to a school.

 
27

agreement." Scott, supra at 355-356. Additional factors for 

consideration under the second prong might include, but are not 

limited to, "whether the defendant was indicted on additional 

charges," id. at 357, as well as "whether the defendant had a 

substantial ground of defense that would have been pursued at 

trial," id. at 356, and whether other special circumstances, 

such as collateral immigration consequences arising from 

conviction of a particular crime, were present. Id. at 356 & 

n.13, citing Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011).

"Ultimately, a defendant's decision to tender a guilty plea 

is a unique, individualized decision, and the relevant factors 

and their relative weight will differ from one case to the 

next." Scott, 467 Mass. at 356. We emphasized in Scott that 

"the full context of the defendant's decision to enter a plea 

agreement will dictate the assessment of his claim that 

knowledge of Dookhan's misconduct would have influenced the 

defendant's decision to plead guilty." Id. at 357. "Because a 

multiplicity of factors may influence a defendant's decision to 

enter a guilty plea, a court attempting to answer this question 

must use a wide-angled lens." Ferrara, 456 F.3d at 294.

The defendant contends that the special magistrate erred in 

concluding that knowledge of Dookhan's misconduct likely would 

not have been material to the defendant's decision to plead 

guilty. The defendant points out that he did not have a prior 
28

criminal record, and he contends that he pleaded guilty only

because he believed that he had no viable trial strategy in 

light of the Commonwealth's presentation of the drug 

certificates. The defendant emphasizes that there was no plea 

bargain in this case because not only did the Commonwealth 

refuse to dismiss any of the charges against him, but the 

prosecutor also urged the judge to impose an aggregate sentence 

of from four to six years in State prison, rather than three 

years in a house of correction, as the defendant requested. In 

the defendant's view, he did not receive a substantial benefit 

from pleading guilty. Had he known of Dookhan's malfeasance, 

the defendant continues, he would have had "nothing to lose but 

everything to gain" by proceeding to trial and challenging the 

reliability of her work at the Hinton drug lab. We disagree.

Apart from the drug certificates, the evidence against the 

defendant was strong. Stanton conducted five controlled buys, 

each of which involved a hand-to-hand exchange of cash for two 

"twenty" bags or one "forty" bag of an off-white rock-like 

substance. Not only could a rational jury have inferred that 

Stanton received what he had requested from the defendant, but 

field tests conducted on the substances indicated the 

presumptive presence of cocaine.22 See Commonwealth v. Marte, 84 

22 Although it does not appear that field tests were 

performed on the substances recovered from the defendant when he 

 
29

Mass. App. Ct. 136, 139-142 (2013) (presumptively positive field 

tests having requisite foundation, together with other 

corroborative circumstantial evidence, may carry persuasive 

weight in identifying substances). See also 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"). Notwithstanding the fact 

that all but one of the drug certificates were signed by 

chemists other than Dookhan, evidence of her misconduct would 

not have detracted from the factual bases supporting the 

defendant's guilty pleas. Furthermore, apart from Dookhan's 

malfeasance, there is no evidence that the defendant had a 

substantial ground of defense that he would have pursued at 

trial.

Contrary to the defendant's argument, he did receive a 

significant benefit from pleading guilty instead of proceeding 

to trial. With respect to six counts of distribution of cocaine 

and possession of cocaine with intent to distribute, the judge 

sentenced the defendant to concurrent terms of one year in a 

house of correction. Had the defendant gone to trial, he could 

was taken into custody on August 22, 2006, the drug certificates 

pertaining to those substances, stating that they contained 

cocaine, were signed on the line labeled "Assistant Analysts" by 

Kate Corbett and Della Saunders, and there is no evidence that 

Dookhan was the setup operator for the analyses of those 

substances.

 
30

have been sentenced to from two and one-half years to ten years 

in State prison, or from one year to two and one-half years in a 

house of correction, on each count. G. L. c. 94C, § 32A (c), as 

amended through St. 1991, c. 391. With respect to three counts 

of violating the controlled substances laws in proximity to a 

school or park, the judge sentenced the defendant to concurrent 

terms of two years in a house of correction, to commence on and 

after the completion of his sentences for the underlying drug 

crimes. Had the defendant gone to trial, he could have been 

sentenced to from two and one-half years to fifteen years in 

State prison, or from two years to two and one-half years in a 

house of correction, from and after his sentences on the 

underlying drug crimes, on each count. G. L. c. 94C, § 32J, as 

amended through St. 1998, c. 194, § 146. In addition, with 

respect to the marijuana charge, which was placed on file, the 

defendant could have been sentenced to six months in a house of 

correction. G. L. c. 94C, § 34, as amended through St. 1996, 

c. 271, § 1. Regardless of the fact that the defendant did not 

have a prior criminal record, his decision to plead guilty 

resulted in the imposition of a far more lenient aggregate 

sentence than the judge could have imposed following the 

defendant's likely convictions after trial, given the strength 

of the Commonwealth's evidence. See Commonwealth v. Mills, 436 

Mass. 387, 400 n.9 (2002) (judge may consider defendant's 
31

willingness to admit guilt as factor in more lenient 

sentencing). We conclude that the special magistrate did not 

abuse his discretion or otherwise err 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.

8. Conclusion. The order denying the defendant's motion 

to withdraw his guilty pleas is affirmed.

So ordered.