Commonwealth v. Julius E. Clemente.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-480

COMMONWEALTH

vs.

JULIUS E. CLEMENTE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the

defendant, Julius E. Clemente, was convicted of possession with

intent to distribute a class A substance.1 Following an ensuing

jury-waived trial, the defendant was also convicted of

possession with intent to distribute a class A substance,

subsequent offense. In view of the improper admission of the

defendant's prior convictions for possession with intent to

distribute, we vacate the judgments and remand for such

proceedings as the Commonwealth deems appropriate.

Background. We recite the facts as the jury could have

found them at trial, reserving additional facts for discussion.

1The defendant was indicted for trafficking a class A
substance but convicted of the lesser included offense of
possession with intent to distribute a class A substance.
On April 16, 2021, Federal law enforcement officials from the

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and

Brockton Police officers executed a search warrant at the

defendant's apartment in Brockton. There had been an extensive

investigation into the defendant's firearm and drug trafficking

activities. The defendant was the only person in the apartment

at the time of the search.

The apartment had three bedrooms.2 Bedroom two was locked

with a deadbolt and was removed from its hinges for officers to

enter. In that bedroom officers found, on a bureau, a digital

scale and four plastic bags (baggies) containing a white powdery

substance. One baggie contained fentanyl and cocaine and

weighed a combined 7.55 grams; a second baggie, weighing 0.43

grams, also contained fentanyl and cocaine; and the two other

baggies, weighing 0.84 and 0.37 grams, both contained cocaine.

Inside of a nightstand in bedroom two, officers also found

baggies and mail in the defendant's name. In the same

nightstand, officers found a notebook and an envelope,

identified as drug ledgers, detailing drug-related sales and

2 At trial, witnesses referred to the bedrooms as "bedroom
number one," "bedroom number two," and bedroom number three."
Officers found evidence, described herein, in bedrooms two and
three, but nothing of evidentiary value in bedroom one.

2
activity, including names, dollar amounts, drug weights, and

drug-related terminology.3

In bedroom three, officers found two knotted plastic

baggies on the bed, one containing four grams of a white powdery

substance confirmed to be fentanyl, and the other a green leafy

substance. Officers also found a vehicle title from the

Registry of Motor Vehicles bearing the defendant's name and

address, and the defendant's daughter's birth certificate.

Inside a bureau in bedroom three, officers found three rounds of

nine-millimeter ammunition.

In the kitchen, officers found a bag containing a box of

ammunition and "male clothing." In the living room, officers

found a spent shell casing underneath a couch, and a firearm

lock in a shoebox.

The defendant was arrested and transported to the Brockton

police station. During the booking process, after hearing an

officer advise another officer that the defendant was being

charged with trafficking in fentanyl, the defendant asked, "how

he was being charged with trafficking of fentanyl, the bag only

weighed four grams."

3 In bedroom two, officers also found items with the
defendant's sister's name on them, personal items belonging to
the defendant's sister, women's clothing, and "small amounts of
men's clothing."

3
The Commonwealth also introduced evidence that the firearm

and drug trafficking activities that were the subject of the

investigation and search "were interlinked." In one instance,

for example, the defendant encouraged a drug purchasing customer

who had a drug debt to "go buy firearms that [the defendant]

could traffic to work off that drug debt." The defendant also

admitted to selling marijuana. In addition, an expert witness

testified regarding the packaging, distribution, and sale of

fentanyl and cocaine, the relationship between firearms and drug

dealing, and the use of digital scales in drug distribution

operations. He testified that the way the bags of white powdery

substances were packaged was consistent with drugs packaged for

street level narcotics distribution. He also testified that the

writing in the notebook and on the envelope found in bedroom two

constituted records of drug purchases.

Finally, the Commonwealth introduced evidence in its case-

in-chief of the defendant's two prior convictions for possession

with intent to distribute a class A substance (fentanyl).

Specifically, the Commonwealth elicited evidence that in July

and August of 2018 -- approximately three years prior to the

search and arrest in the present case -- police officers

searched the defendant's home4 and found a plastic bag containing

4 There is no dispute that the defendant lived in the same
apartment in 2018 and 2021.

4
white powder, a "calibration weight," and a digital scale in the

defendant's bedroom, and another digital scale and calibration

weight inside the kitchen.5 Evidence of the defendant's prior

convictions was admitted through the testimony of a police

officer who participated in the July 2018 search of the

defendant's home, a redacted audio recording of the defendant's

plea colloquy, which included the prosecutor's recitation of

facts, and copies of the docket sheets reflecting the

defendant's prior convictions.6

Discussion. 1. Prior conviction evidence. Before trial,

the Commonwealth moved in limine to admit evidence of the

defendant's 2018 convictions for possession with intent to

distribute fentanyl to prove knowledge and intent. The

defendant moved to exclude such evidence. In a written order,

5 Regarding the July 27, 2018, search of the defendant's
apartment, officers found a calibration weight, a digital scale
with white powdery residue, and a baggie containing 0.083 grams
of fentanyl. Regarding the August 8, 2018 search, officers
found a digital scale with fentanyl residue, a box of clear
plastic bags, a suboxone strip, and 0.4 grams of a class B
substance.

6 After the Commonwealth rested its case-in-chief, the
defendant's mother testified, inter alia, that bedroom three was
the defendant's room, and her daughter occupied bedroom two and
"always keeps her room locked." The defendant's mother also
testified that she visited shooting ranges for stress relief,
and had brought shell casings from the shooting range to the
apartment on prior occasions to "make a shadow box."

5
the judge denied the defendant's motion and, regarding the

Commonwealth's motion, ruled as follows:

"Allowed as to evidence of the defendant's 2018 convictions
for Possession with Intent to Distribute, which may be
admitted for the limited purpose of proving intent to
distribute drugs in the instant case" (footnote omitted).

Later at trial, over objection, the Commonwealth introduced

evidence of the defendant's guilty pleas and prior convictions

in the manner described supra. At the time that the evidence

was admitted, the judge instructed the jury:

"So you just heard some evidence that the defendant
allegedly was arrested and charged with a possession with
intent to distribute a controlled substance offense.
You'll -- and you're going to hear some more evidence about
that. And essentially, that he pled guilty on two prior
occasions in 2018, which is several years before this
occasion, of course, that we're here to talk about, to
possession of a controlled substance with intent to
distribute.

"This evidence is admitted only insofar as it may bear on
issues of the defendant's state of mind or intent in this
case. Like all evidence, it's up to you to decide whether
to believe it or not and to decide what weight that
evidence should have. The evidence is not introduced,
however, to show that the defendant had a bad character or
propensity for any sort of criminal behavior. You may not
consider the evidence for those purposes. The defendant is
not charged with committing any crime other than the charge
contained in the indictments in this case.

"And particularly, you [may] not take evidence of these
other acts as a substitute for proof that the defendant
committed the crimes charged in this case, nor may you
consider it as proof that the defendant has a criminal
personality or a bad character or had a propensity to
commit the crimes with which he is charged in this case.

"If you conclude that the Commonwealth has proved beyond a
reasonable doubt that the defendant possessed a controlled

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substance in this case, then you may consider the evidence
of the prior offenses only, that is solely, on the limited
issue of the defendant's state of mind or intent in this
case. You may not consider this evidence for any other
purpose. Specifically, you may not use it to conclude that
if the defendant committed these other prior acts, he must
have also committed the crimes charged in this -- in these
indictments."

The judge provided a similar comprehensive limiting instruction

to the jury in his final charge.

The defendant argues that the judge committed reversible

error in admitting the prior convictions because they

constituted inadmissible propensity evidence, and the risk of

unfair prejudice outweighed the probative value of such

evidence. In the context of this particular case, we agree.

"Generally, evidence of a defendant's prior misconduct may

not be admitted to show bad character or propensity to commit

the crime charged." Commonwealth v. Montez, 450 Mass. 736, 744

(2008). However, such evidence may be admitted, where relevant,

"for other, permissible purposes, including, for example, to

'show a common scheme, pattern of operation, absence of accident

or mistake, identity, intent, or motive.'" Id., quoting

Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). A judge's

decision to admit such evidence will be upheld absent "palpable

error." See Montez, supra.

Here, the admission of the prior convictions to prove the

defendant's intent was improper. The prior convictions were

7
admitted to demonstrate that three years prior to possessing a

modest amount of controlled substances in his bedroom, the

defendant had likewise possessed a modest amount of the same

controlled substance in his bedroom; that the defendant admitted

in the earlier case to possessing that controlled substance with

intent to distribute it; and thus the jury should conclude that

he likewise must have had the same intent in this instance.

This constitutes propensity evidence that does not satisfy the

criteria for admission delineated in our precedent.

Commonwealth v. Gollman, 436 Mass. 111, 114 (2002), on

which the Commonwealth relies, is distinguishable. There:

"[t]he defendant, in the previous sales, used female
accomplices, changed venues to conduct his sales (selling
from two different apartments), and sold similar amounts of
crack cocaine ('eight balls' and quantities larger than
commonly possessed for personal use). At the time of his
arrest, the defendant was in possession of 2.71 grams of
crack cocaine (approximately one 'eight ball'), he was in
the company of a female, in a vehicle (a venue different
from his prior venues), and in possession of an operational
pager."

Id. In Gollman, the demonstrable factual detail and similarity

to the circumstances surrounding the crimes charged was "highly

probative of [the defendant's] intent." Id. By contrast, in

the present case there was minimal similarity in conduct or

method of operation linking the prior convictions to the present

circumstances. Although the presence of a digital scale in the

home on each occasion somewhat bolsters the Commonwealth's

8
argument, there is nothing in the present case approaching the

similarity and detail required under Gollman and our other

cases. See Commonwealth v. West, 487 Mass. 794, 805 (2021) (for

evidence to be sufficiently probative, "there must be a 'logical

relationship' between the prior bad act and the crime charged"

[citation omitted]); Gollman, supra at 114 (similarities "were

significant and tended to evince [the defendant's] intent to

distribute the cocaine in his possession"); Helfant, 398 Mass.

at 227 (evidence that showed "a distinctive pattern of

conduct . . . was relevant and material to the disputed issue of

the defendant's intent"). Our conclusion is supported by the

three year gap between the present case and the prior

convictions.7 Contrast Gollman, 436 Mass. at 115 ("previous

sales occurred six and ten weeks prior to [the defendant's]

arrest and were not so remote as to make them inadmissible").

We recognize that the judge provided, and repeated in his

final charge, a thorough limiting instruction. Those

instructions, however, were insufficient to overcome the

7 We do not suggest that a three-year lapse between an
indicted act and prior convictions renders the prior acts
inadmissible. See Gollman, 436 Mass. at 115 ("there is no
specific time limit on when a prior bad act can no longer be
admissible"). We hold only that the lapse of time in the
present circumstances, combined with the lack of "meaningfully
distinctive" similarities between the conduct underlying the
prior convictions and the crime charged, rendered the prior
convictions inadmissible in this case. Id.

9
prejudice created by the admission of the propensity evidence.

In this regard, we note that evidence of the defendant's intent

to distribute was far from overwhelming in view of the amount of

drugs recovered.8 Furthermore, the prejudice was exacerbated by

the prosecutor's repeated use of the prior convictions in

closing argument to urge the jury to convict based upon his

prior intent, i.e., in this context his propensity. See

Commonwealth v. Howard, 469 Mass. 721, 744 (2014), S.C., 479

Mass. 52 (2018).

2. Required finding. The defendant also argues that

evidence of the defendant's intent to distribute was

insufficient. We need not dwell at length on this claim. "When

a relatively small amount of drugs is at issue . . . additional

evidence is generally required to prove an intent to

distribute." Commonwealth v. Ahart, 63 Mass. App. Ct. 413, 414-

415 (2005). See generally Commonwealth v. Wilson, 441 Mass.

390, 401-402 (2004); Ahart, supra; Commonwealth v. LaPerle, 19

Mass. App. Ct. 424, 427 (1985). As detailed above, the

Commonwealth introduced evidence including but not limited to

8 To be clear, the weight of the evidence here was and
remains for the jury to decide. Indeed, in view of the evidence
elicited by the Commonwealth in its case-in-chief, summarized
supra, the defendant's appellate claim that the judge erred in
denying his motion for a required finding of not guilty is
unavailing. See infra.

10
the drugs found in the apartment including the defendant's

bedroom, the individual packaging of drugs, additional materials

used for packaging, the absence of paraphernalia for personal

use, the admission by the defendant that he was a drug dealer

(in marijuana), digital scale, and expert testimony. This

evidence, in its totality, sufficiently supported the reasonable

inference that the defendant intended to sell the drugs in his

possession.

3. Search warrant. The defendant also claims that the

search warrant failed to provide any nexus between the alleged

illegal activity and the home and was thus not supported by

probable cause. We disagree.

Under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights, a search warrant may issue only on a showing of probable

cause. See Commonwealth v. Valerio, 449 Mass. 562, 566 (2007).

In evaluating whether a warrant application establishes probable

cause, our inquiry "always begins and ends with the 'four

corners of the affidavit.'" Commonwealth v. O'Day, 440 Mass.

296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App.

Ct. 426, 428 (1995). "To establish probable cause to search,

the facts contained in an affidavit, and reasonable inferences

that may be drawn from them, must be sufficient for the

magistrate to conclude 'that the items sought are related to the

11
criminal activity under investigation, and that they reasonably

may be expected to be located in the place to be searched at the

time the search warrant issues.'" Commonwealth v. Walker, 438

Mass. 246, 249 (2002), quoting Commonwealth v. Donahue, 430

Mass. 710, 712 (2000). Probable cause does not require

definitive proof of criminal activity. See Commonwealth v.

Spano, 414 Mass. 178, 184 (1993). Instead, "[t]he basic

question for the magistrate, when evaluating an affidavit

supporting an application for the issuance of a search warrant,

is whether there is a substantial basis on which to conclude

that the articles or activity described are probably present or

occurring at the place to be searched." Id. "In dealing with

probable cause . . . we deal with probabilities. These are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent [people], not

legal technicians, act." Commonwealth v. Hason, 387 Mass. 169,

174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175

(1949). Accordingly, a review of a search warrant affidavit

shall be conducted in a realistic and commonsense manner.

Donahue, supra.

Here, the search warrant affidavit of ATF Special Agent

John Cook stated, inter alia, that: on January 3, 2021, an

empty gun box for a Glock G42 pistol was thrown out of the

driver's side window of a white sport utility vehicle (SUV);

12
Boston police officers were notified of this observation,

responded, and seized the empty gun box; the serial number for

the pistol was printed on the box; a search of an ATF database

disclosed that on December 8, 2020, "Anisha Correa" had

purchased that gun from a Bass Pro Shop in Hooksett, New

Hampshire; the database also reflected that Correa had purchased

three other handguns from Bass Pro Shop that same day; in

January and February of 2021, Correa had purchased six

additional guns from Bass Pro Shop; and Correa had purchased

eight more guns from other New Hampshire gun dealers in March of

2021. In total, Agent Cook located the purchase of eighteen

guns by Correa between December 2020 and March 17, 2021, at a

cost of over $8,000. Agent Cook found no reports of those

handguns "as being reported lost or stolen."

The affidavit reflects that Agent Cook spoke to employees

at Bass Pro Shop, where Correa had made various gun purchases,

and learned that on at least two occasions Correa was

accompanied inside the store by a male identified by Correa,

through still photographs taken from Bass Pro Shop surveillance

footage, as the defendant; that Correa acknowledged that the

defendant was her boyfriend; and that on some occasions Correa

visited the Bass Pro Shop alone, but could be seen speaking on

her cellphone while purchasing handguns. Part of the

surveillance video viewed by Agent Cook showed Correa

13
accompanied by the defendant and further showed the defendant

pointing at "several firearms stored in the gun cases" and

appearing "to engage store personnel in discussion about the

firearms."

The affidavit further stated that Correa agreed to be

interviewed by Agent Cook; that they met on March 12, 2021; that

Correa was evasive in responding to Agent Cook's questions; and

that when asked about the location of the guns she had

purchased, Correa stated, "somewhere," and "she did not store

them in her residence because of her children." Correa later

gave Agent Cook the name of a fictitious storage facility where

she alleged that she kept the guns. Agent Cook then seized

Correa's cellphone, examined the contents pursuant to a Federal

search warrant, and found hundreds of text messages between

Correa and the defendant between January and March of 2021. The

text messages referenced the purchase of various guns, the

building of guns, and directions from the defendant to Correa to

purchase certain guns for him to resell. The text messages also

contained the defendant's acknowledgment that he gave Correa

money to purchase guns, and his acknowledgment that he "took the

numbers off" a gun. Agent Cook averred that people engaged in

firearms trafficking remove serial numbers from firearms in an

attempt to avoid detection.

14
There were messages from February of 2021 in which the

defendant "made comments of committing acts of violence," to

which Correa responded, "I hope you don't plan on doing

something with your mom and sister in that crib. Get them out

and do what you gotta do." Agent Cook confirmed that the

defendant's mother and sister "both currently reside at" the

same Brockton apartment as the defendant. In a March 7, 2021,

text message exchange involving the purchase of a particular

gun, the defendant told Correa to use "[m]ixed bills not all big

they'll give it to you right away." "Later in the same

conversation, [the defendant] instructed [Correa] to 'Go to

mamas.'"

Finally, Agent Cook also discussed, based on his training

and experience, the use of tools used to obliterate firearms,

which are "relatively expensive" and "must be maintained in an

environment where they will be secure from theft." Based on the

defendant's communications regarding the obliterating of serial

numbers, Agent Cook believed there to be probable cause that

such tools would have been located in the defendant's vehicle or

residence. Agent Cook further averred that people involved in

building firearms generally keep receipts for parts and

accessories in their residence or vehicles or on their person so

that, if a problem occurs, they will have proof of purchase to

show the manufacturer.

15
In view of the information in the search warrant affidavit,

including that summarized above, there was a substantial basis

for concluding that evidence connected to the crime would be

found on the specified premises. See Commonwealth v. Thevenin,

82 Mass. App. Ct. 822, 827 (2012). The affidavit provided

abundant evidence that the defendant purchased firearms through

Correa; the defendant directed much of this activity and

specified on many occasions which firearms to purchase; and the

defendant took possession of those firearms, as evidenced by his

text messages to Correa describing the sale of a Taurus G3

pistol on January 14, 2021 ("Bye bye g3"), and how he had made a

"1300$ flip off those ones" in reference to a Glock 19X pistol

on January 23, 2021. The inference of the defendant's

connection to firearms and tools and materials related thereto

was bolstered by the text messages, which showed that the

defendant directed the operation and told Correa what to

purchase. Moreover, the affidavit established that the

defendant told Correa to purchase a handgun and then "Go to

mamas." In view of the evidence that the defendant lived with

his mother, a reasonable inference was that the defendant was

instructing her to bring the gun to the apartment he shared with

his mother. See Thevenin, supra. See also Commonwealth v.

Defrancesco, 99 Mass. App. Ct. 208, 213 (2021) ("a search

warrant affidavit may establish probable cause that evidence

16
could be found in more than one location"). Finally, the search

warrant affidavit contains abundant evidence that the defendant

was involved in an ongoing pattern of criminal conduct, and thus

there was further reason to believe that the evidence of durable

items of continuing utility, such as guns, gun parts, and tools

to remove serial numbers, would remain in the defendant's

possession at "mamas." See Thevenin, supra; Commonwealth v.

Scanlan, 9 Mass. App. Ct. 173, 181 (1980). The judge did not

err in denying the motion to suppress.

The judgments are vacated. The verdict on the charge of

possession with intent to distribute is set aside, as is the

finding on the related subsequent offense charge. The case is

remanded for such further proceedings as the Commonwealth deems

appropriate and as are consistent with this memorandum and

order.

So ordered.

By the Court (Neyman, Shin &
Wood, JJ.9),

Clerk

Entered: August 22, 2025.

9 The panelists are listed in order of seniority.

17