COMMONWEALTH OF MASSACHUSETTS COMMONWEALTH CARLTON HENDERSON MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANT S MOTION TO SUPPRESS EVIDENCE

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1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CRIMINAL ACTION NO COMMONWEALTH v. CARLTON HENDERSON MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANT S MOTION TO SUPPRESS EVIDENCE The defendant is charged with murder in the shooting deaths of two people, William Medina and Antonio Dos Reis, on May 7, The defendant was indicted in June 2017, almost thirty years later. The principal basis for the indictments against him consists of statements that he made to Boston Police and a federal prosecutor in July He now moves to suppress those statements on the grounds that they were made pursuant to a proffer agreement. After an evidentiary hearing covering seven days, this Court concludes that there was indeed such an agreement and that pursuant to its terms, the statements cannot be used against the defendant. The Motion is therefore ALLOWED. FINDINGS OF FACT Because of the passage of time, many of the witnesses at the evidentiary hearing were unable to recall important details. To the extent they did have a memory, the accounts they gave of the events in the summer of the critical time period for purposes of this motion were inconsistent and sometimes conflicting. Moreover, some of the files maintained by the witnesses during the relevant time period either could not be located or have been destroyed. 1

2 Accordingly, it is of no surprise that a written proffer agreement between the defendant and the government has not been located. There was nevertheless ample testimony concerning the context of and circumstances surrounding the statements at issue so that this Court is able to resolve the key factual question raised by this Motion, which is whether there was a proffer agreement in place at the time the statements were made. Resolution of that issue turns on which testimony this Court credits and what reasonable inferences that this Court draws from the credible evidence. Making those credibility determinations, this Court makes the following findings of fact. In June 1991, the defendant was indicted in federal court in Louisiana on drug and gun charges. He was convicted in July 1992 and sentenced to 188 months in federal prison. In 1993, the defendant, who was serving his federal sentence in Arizona, contacted his trial attorney in the Louisiana case, Merle Schneidewind. As of 1993, Schneidewind had been practicing law 20 years and (as at least one witness testified) was a well-regarded criminal defense lawyer in the San Diego legal community. The defendant told Schneidewind that he had information the government might be interested in and was seeking to trade this information for a reduction of his sentence. Schneidewind went to visit the defendant in Arizona to hear what information he had to offer, then contacted prosecutors in the San Diego United States Attorney s Office. To the best of his memory, Schneidewind talked to ether Assistant U.S. Attorney (AUSA) Michael Wheat or AUSA John Pierce. Pierce was at that time in charge of an investigation of a San Diego based drug ring headed by one Leslie Rogers. Wheat worked in the same office as Pierce, albeit in a different unit in Based on their conversation with Schneidewind, Wheat and/or Pierce understood that the defendant had information about the San Diego drug operation, which had extended to other parts of the country, including Boston. In 2

3 that connection, they learned that the defendant had some information about an unsolved double homicide in Boston in 1988 that was related to that drug ring. Either Wheat or Pierce called up Brian Kelly, an AUSA in the Boston U.S. Attorney s Office. Kelly had worked in the San Diego office just a few years before and was friends with Wheat. Kelly was told about the information the defendant had passed on to San Diego prosecutors through Schneidewind and was asked if he was interested in the Boston angle of what at that point was a federal investigation. Kelly said that he was: although murder is a state crime, it could be part of a federal prosecution (for example, under the RICO statute) and as Kelly reasoned, nothing ventured, nothing gained. On June 7, 2018, the defendant was moved from his designated prison facility in Arizona and transferred to the Metropolitan Correctional Center (MCC) in San Diego, a holding facility for federal detainees. This arrangement was made by federal prosecutors. Before any meeting occurred between the defendant and any government agents, Schneidewind obtained a proffer agreement from federal prosecutors. Sometimes referred to as a Queen for a Day agreement, a proffer agreement is typically a letter from a U.S. Attorney s Office that is addressed to an individual whom prosecutors are interested in interviewing but who, in the course of such an interview, might also incriminate himself. The individual is often looking to obtain some benefit from his information, but the government needs to know what he has to offer before making any particular promises to help him. To get the information and to be able to assess its value, prosecutors agree not to use any statements made in the proffer session against the person being interviewed. The proffer letter commits this agreement to writing. Schneidewind specifically remembered going over the terms of such an agreement at the MCC with the defendant in June 1993 before the defendant talked to any government 3

4 representatives. Schneidewind recalled that the defendant was very nervous about talking to the government, but that his concerns were allayed when Schneidewind assured him that the agreement protected him from the government s using his statements against him and that, so long as he was truthful, he had nothing to worry about. The defendant wanted to know what he would get in return. Schneidewind explained that that would depend on the information he gave and whether prosecutors regarded it as valuable. With that advice, the defendant decided to meet with government officials and tell them what he knew. The specific document described by Schneidewind has not been found: Schneidewind maintains his client files for fifteen years and therefore would have destroyed the defendant s files ten years ago. The federal prosecutor who arranged the meeting with Boston police, Brian Kelly, was unable to locate his file, although he made an effort to do so. Pierce testified that he almost certainly had a file on Henderson but that his files had been purged. Neither Pierce nor Kelly had any specific memory of whether there was a written agreement or not. They agreed, however, that such agreements follow a standard form and that the form that was used in 1993 was essentially identical to Exhibit 2 at the evidentiary hearing. That agreement states that statements made by a person interviewed as part of a proffer to the U.S. Attorney would not be used except for purpose of cross-examination or impeachment of that person, or in a prosecution based on false statements made during the proffer. This Court finds and concludes that, before the defendant met with anyone in San Diego, the U.S. Attorney s Office there sent him a proffer letter similar to Exhibit 2 and that he would not have otherwise cooperated with authorities had no agreement existed. 4

5 Between June 1993 and April 1994, the defendant submitted to numerous interviews by government officials, all of them at the U.S. Attorney s Office in San Diego. In total, he was questioned for 55 hours. At one point, federal agents took him outside the office to point out certain sites around San Diego. Documents generated at the time of these interviews describe him as a cooperating witness, not as a target or suspect. The defendant provided information about drug, trafficking, illegal gun trafficking and homicides. It was understood by all those participating in the interviews that the proffer agreement applied. One of the very first meetings to take place between the defendant and the government involved then Boston AUSA Kelly. With the information that he obtained from either Wheat or Pierce, Kelly contacted the Boston Police Department and learned that there was indeed an unsolved 1988 double homicide. Arrangements were made for Boston homicide detectives Charles Horsley and Tom Traylor to travel to San Diego with Kelley. Although he has no specific memory of any written proffer agreement, Kelly went into the meeting with the defendant with the expectation that the defendant was likely to incriminate himself but that he was being interviewed as a possible witness for the government, not as a target of any investigation; in other words, he was making a proffer. Under such circumstances, a written proffer letter would almost certainly have been issued if requested by defense counsel and if Schneidewind had requested one for the defendant, he most certainly would have gotten it. 1 That Schneidewind did request one (and that he got it) is supported by his own testimony, which this Court credits. As Schneidewind explained, he would never have agreed to have a client 1. According to Kelly, in some percentage of cases in the early 1990s, he conducted proffer interviews pursuant to an oral agreement. As he testified: there s nothing improper about doing it that way. Still a written agreement (or proffer letter) is preferable, and Kelly had no reason to believe that one was not executed before his own interview of the defendant. 5

6 interviewed by the government in these circumstances without a written proffer agreement. Indeed, not to have an agreement in place would likely be the basis for some kind of bar discipline. Horsley and Taylor conducted the interview of the defendant, which took place in the San Diego U.S. Attorney s office on July 27, Schneidewind was at the meeting long enough to be introduced to the Boston detectives but did not stay, since it was clearly understood that the proffer agreement he had with the federal prosecutors covered all government meetings and the investigation being conducted at that point was federally directed. The defendant s statement was tape recorded. After the interview, Kelly and the two detectives flew back to Boston. In December 1993, one of the two people that the defendant had implicated in the double homicide was killed in Miami, Florida. In 1994, Leslie Rogers, the San Diego drug kingpin who allegedly ordered the slayings, was killed by Los Angeles police in The defendant was unable to obtain any reduction in his sentence, and for the next twenty years, the defendant s statement was essentially forgotten. In 2014, the Boston Police Department hosted a cookout for victims of homicide. At that cookout, Medina s sister, Maravelle Crespo, approached Boston Police Detective John Cronin, with the Cold Case Squad, and inquired about the unsolved murder of her brother. Crespo is a Boston police officer in the homicide division. Cronin contacted Traylor, who was retired; Traylor recalled the San Diego interview of the defendant but little else. Homicide detective Melvin Ruiz began working with Cronin on the matter and in that connection, tracked down the defendant who was living in Phoenix. The defendant declined to talk to him and said that they should speak with the FBI. He said that his attorney would contact them, but no one did. Ruiz then contacted Kelly, who was now in private practice: Kelly told him that he thought a proffer 6

7 agreement was entered into before the July 1993 interview. Detectives also contacted Horsley, who said that he assumed that there was such an agreement because why would his attorney let him talk to us without one. Finally, Ruiz talked on the telephone to Schneidewind, who told him that there was no written proffer. Schneidewind testified that what he meant by that was that he had not prepared any document that summarized what information that his client had to offer, not that he was denying the existence of an agreement with the federal prosecutors not to use his client s information against him. This Court credits that testimony. RULINGS OF LAW Where a suspect makes an incriminating statement to law enforcement, his statement may not be used against him unless the Commonwealth proves beyond a reasonable doubt that his statement was voluntary that is, that it was the product of a rational intellect and a free will. Commonwealth v. Selby, 420 Mass. 656, 662 (1995), quoting Commonwealth v. Davis, 403 Mass. 575, 581 (1988). In the instant case, however, the defendant is not claiming that his statements were coerced or that he suffered from some physical or mental condition that rendered his statement involuntary. Rather, he argues that the July 27, 1993 statement cannot be used against him because of the proffer agreement. Proffer agreements, like plea bargains, are construed under contract law principles. United States v. Melvin, 730 F.3d 29, 37 (1 st Cir. 2013). One of those principles is that the party seeking to enforce the contract has the burden of proving its existence by a preponderance of the evidence. It is therefore incumbent on the defendant to prove that a proffer agreement existed. That said, this Court acknowledges that, unlike the normal commercial contract, a proffer agreement also carries with it due process concerns. United States v. Pelletier, 898 F.2d 297, 302 (2d Cir. 1990). Because of the overwhelming bargaining advantage that the 7

8 government has in these situations, any ambiguity in the agreement must be construed against the government. United States v. Scott, 12 F.Supp.3d 298, 302 (D.Mass. 2014); see also United States v. Melvin, 730 F.3d at 37 (government must turn square corners when it undertakes a criminal prosecution, and that applies equally to the interpretation of proffer agreement). Proffer agreements may be unwritten, based on oral statements or implied from the circumstances. United States. v. Jimenez, 256 F.3d 330, 347 (5 th Cir. 2001). In that event, the Court is to look to the reasonable expectations of the parties, keeping in mind, however, that the prosecutor in the best position to avoid misunderstandings as to the scope of the agreement and that the defendant s consent to appear at a proffer session should not become a lever that can be used to uproot his right to fundamental fairness under the Due Process clause. Melvin, 730 F.3d at 39, quoted with approval in Scott, 12.F.Supp. at 302. In the instant case, the Court concludes that the defendant has met his burden of proving that the defendant and federal prosecutors entered into a proffer agreement sometime in early summer 1993, before the defendant was interviewed by detectives Horsley and Traylor. A term of that agreement was that no statement made by him in a proffer session would be used against him, except to impeach him as a witness at trial. This Court further concludes that because Horsley and Traylor conducted the interview only as a result of being introduced to the defendant by Kelly, a federal prosecutor, the proffer agreement applied to the statements the defendant gave to Boston police on July 27, Although the crime of murder would be prosecuted in state court, the 1988 double homicide had a federal dimension to it because of its connection to a national drug ring. The proffer agreement issued by the federal authorities thus applied equally to statements given to state authorities acting together with federal prosecutors as part of what was at that point a federal investigation. 8

9 For all the foregoing reasons and for other reasons stated in open court on July 26, 2018, this Court concludes that the July 27, 1993 statement must be suppressed from evidence at trial. Dated: July 31, 2018 Janet L. Sanders Justice of the Superior Court 9