Commonwealth v. Mendez

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23-P-395 Appeals Court

COMMONWEALTH vs. RENE MENDEZ.

No. 23-P-395.

Hampden. January 8, 2024. - June 27, 2024.

Present: Vuono, Wolohojian, & Toone, JJ.1

Unlawful Interference. Intimidation of Witness. Witness,
Intimidation. Perjury. Evidence, Guilty plea. Practice,
Criminal, Plea. Controlled Substances.

Indictments found and returned in the Superior Court
Department on December 14, 2020.

The cases were heard by David M. Hodge, J.

Sean J. Gallagher for the defendant.
Travis H. Lynch, Assistant District Attorney (Kerry L.
Koehler, Assistant District Attorney, also present) for the
Commonwealth.

VUONO, J. The charges in this case, willful interference

with a criminal investigation (two counts), in violation of

1 Justice Wolohojian participated in the deliberation on
this case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.
2

G. L. c. 268, § 13B, and perjury, in violation of G. L. c. 268,

§ 1, arose from unusual circumstances. As we discuss in more

detail below, the defendant waived indictment and pleaded guilty

to a district attorney's complaint charging him with trafficking

heroin. The complaint alleged that the offense occurred on

November 12, 2015, in Springfield. However, unbeknownst to the

Commonwealth at the time of the defendant's plea, the

defendant's admissions regarding the crime were false. This

fact came to light when the defendant filed a motion to withdraw

his guilty plea in which he claimed that he was innocent and had

been coerced into pleading guilty to protect his nephew, Matthew

Oquendo, who was facing trafficking and firearm offenses

stemming from the same investigation. The defendant also

asserted that he was in custody on November 12, 2015, in

connection with an unrelated charge, and, consequently, he could

not have committed the crime in the manner alleged. Ultimately,

the defendant's trafficking conviction was vacated, and the

defendant was charged with the offenses described above based on

the false representations he made during the course of the

investigation and his plea hearing. Following a jury-waived

trial, the defendant was found guilty on all counts. The

question raised on appeal is whether the Commonwealth's evidence

was sufficient to support the convictions beyond a reasonable

doubt. We affirm.
3

Background. During the evening of November 11, 2015,

Sergeant Robert Wise of the West Springfield police department

was investigating a report of criminal activity at the Central

Chevrolet dealership located on Memorial Avenue when he

encountered the defendant and arrested him for breaking into

motor vehicles and related offenses. The defendant was held

overnight and transported to the District Court in Springfield

the following day, November 12, 2015. Due to a prior pending

criminal complaint, the defendant was held without the right to

bail and placed in the custody of the Hampden County sheriff's

department. The record does not disclose when the defendant was

released from custody, but there is no dispute that he was being

held in the house of correction throughout the events that

transpired in connection with the execution of a search warrant

on November 12, 2015, by members of the Drug Enforcement

Administration and the Western Massachusetts Gang Task Force

(collectively, the "task force"). We now turn to those events,

which we recount only to the extent necessary for our

discussion.

In the fall of 2015, Oquendo became a target of a drug

investigation conducted by the task force. In connection with

that investigation, the task force obtained a search warrant for

a house located at 23 Silver Street in Springfield. The warrant

was executed between five and six in the evening. Oquendo and
4

another individual, not the defendant, were in the house and

arrested. The police found thousands of bags of heroin packaged

for sale and three firearms. Oquendo was subsequently indicted

for trafficking over 200 grams of heroin and possession of a

firearm during the commission of a felony (three counts) on

December 17, 2015.

The prosecution of the case against Oquendo was assigned to

assistant district attorney Christopher McDonald. At some point

after Oquendo was indicted, Oquendo's attorney approached

McDonald and informed him "that there would be an individual

willing to take responsibility." That person was the defendant.

McDonald then drafted a proffer agreement and sent it to the

defendant's attorney, who arranged for the defendant to meet

with Special Agent John McGrath, who was a member of the task

force and involved in the investigation of Oquendo. That

meeting was held on March 9, 2018, at the office of the Drug

Enforcement Administration in Springfield.

Up to that point, McGrath did not know of any connection

between the defendant and the investigation. At trial, McGrath

was asked during direct examination whether the defendant's name

"[came] up at all during the course of the investigation," to

which he replied, "No." McGrath also testified that he did not

know that the defendant and Oquendo were related. He explained

that he first became aware of the defendant's claim that he was
5

the owner of the drugs in question when McDonald contacted him

and asked him to speak with the defendant. The meeting was

brief. The defendant told McGrath that the drugs were his and

that he was present at the house on November 12 and "had gone

out the back door" prior to the arrival of law enforcement

agents. McGrath then relayed the information to McDonald and

opined, "I couldn't say [the defendant] wasn't telling the

truth." McGrath had no further involvement in the case and had

retired by the time he testified at trial.

Almost one year after the defendant met with McGrath, the

defendant and Oquendo reached a plea deal with McDonald. The

defendant agreed to waive indictment and plead guilty to

trafficking between thirty-six and one hundred grams of heroin

pursuant to a district attorney's complaint. McDonald and the

defendant further agreed to jointly recommend a five- to six-

year State prison sentence. The terms of Oquendo's plea

agreement were far more favorable. Oquendo agreed to plead

guilty to the lesser included offense of possession with intent

to distribute heroin after which McDonald would file a nolle

prosequi with respect to all three firearm offenses. McDonald

agreed to recommend a sentence of two and one-half years to the

house of correction, one year to be served, with the balance

suspended.
6

The pleas went forward as planned at a joint hearing on

February 20, 2019. At the beginning of the hearing, the

defendant waived his right to an indictment. Then, after some

preliminary discussion regarding sentence recommendations,

McDonald informed the judge that Oquendo's plea was "contingent

on Mr. Mendez's plea." The defendant and Oquendo were placed

under oath and, despite the contingency, the pleas were

conducted simultaneously. McDonald recited the facts the

Commonwealth would have proven at trial as follows:

"Your Honor, back in October of 2015, Springfield Police
started receiving information that 23 Silver Street in
Springfield was housing a large amount of heroin. On
November 12th, they applied for a search warrant. On that
day, when they set up on the house, they observed
Mr. Oquendo arrive in a Honda vehicle and go into the
house. They then executed the search warrant. Just prior
to executing [the] search warrant, Mr. Mendez had left out
the back door and was not present during the execution of
the warrant itself. They found Mr. Oquendo in the second
floor bedroom. In the house, they located large amounts of
heroin, in the vehicle as well, about 1400 bags of heroin,
totally around 21,000 bags total in the house.

"This was essentially a stash house, with Mr. Mendez being
a princip[al] owner of the narcotics that were found.
However, Mr. Oquendo did have constructive possession over
them with the ability and intent to exercise control over
them if buyers were to arrive.

"These drugs were tested at the [S]tate lab here in
Springfield by Kelsey Medeiros, confirmed to be heroin and
confirmed to be over [thirty-six] grams."

Both the defendant and Oquendo agreed that those facts were

true. Specifically, the judge asked the defendant:
7

The judge: "Mr. Mendez, did you hear the facts that were
just recited by the prosecutor?"

Mr. mendez: "I did, Your Honor."

The judge: "At least as to your involvement and charges
against you, do you agree that those facts are true?"

Mr. mendez: "I agree, Your Honor."

At the conclusion of the hearing, the judge accepted the

pleas and imposed the agreed upon sentence of five to six years

in prison on the defendant. With respect to Oquendo, the judge

adopted defense counsel's recommendation and imposed a more

lenient sentence than the prosecutor had recommended: two and

one-half years to the house of correction, thirty days to be

served, with the balance suspended for two years.2 As promised,

McDonald then filed a nolle prosequi on the remaining charges

against Oquendo.

At trial, McDonald testified that he would not have charged

the defendant in the absence of his admission that he owned the

heroin. He further explained that the "sole reason" for

agreeing to the plea deal with Oquendo, who was facing a twelve-

year mandatory minimum sentence on the trafficking charge alone,

was the fact that the defendant came forward and claimed

ownership of the heroin.

2 It appears from the transcript that the entire proceeding
was conducted in fifteen minutes or less.
8

Shortly after the plea hearing, the defendant began serving

his sentence.3 However, within a year, on December 23, 2019, he

filed a pro se motion entitled "Motion for notice to the court,"

in which he claimed he was serving an "illegal sentence." The

motion was supported by an affidavit in which the defendant

averred that he was "coerced . . . to plead[ing] guilty" by his

attorney and that he "was never involved in the November 12,

2015, case for trafficking in Heroin with his nephew Matthew

Oquendo." In the motion, the defendant claimed that he

discussed a possible plea deal that would help his nephew at a

meeting with his attorney and Oquendo's attorney and then under

a "false preten[s]e" he went to court and pleaded guilty "to a

crime that never happen[ed]." The defendant's motion was

brought to the attention of the judge who presided over the two

pleas. In a margin endorsement, the judge corrected certain

errors in the docket and mittimus but took no action regarding

the merits of the motion.

Six months later, on June 5, 2020, the defendant filed a

second pro se motion challenging his guilty plea. This motion,

which was properly captioned as, "Motion to withdraw guilty

plea," was more detailed than the prior motion although the

3 The defendant requested and was granted permission to
self-surrender thirty days after the imposition of the sentence.
9

substance was the same.4 The defendant again alleged that he had

not committed the crime of trafficking and that he pleaded

guilty to help his nephew avoid prison. Among the new details,

however, was one significant disclosure. For the first time,

the defendant asserted that he could not have committed the

crime because he "was incarcerated on the night his nephew . . .

was arrested on November 12, 2015." According to the defendant,

the "agreed plea was false from beginning to end."5 This motion

also was brought to the attention of the plea judge, who ordered

the Commonwealth to respond within sixty days.

That response, if there was one, has not been provided to

us. Regardless, the Commonwealth, now alerted for the first

time that the defendant had been in custody on November 12,

2015,6 responded first by obtaining the indictments at issue in

this appeal, and second by filing a motion to vacate the

defendant's guilty plea to trafficking heroin. The Commonwealth

4Several exhibits, including a copy of the search warrant
application and supporting affidavit, were attached to the
motion.

5Two months later, on August 13, 2020, the defendant filed
a motion to withdraw his motion to withdraw his guilty plea,
claiming that he had "reconsidered his position on this matter
and feels that it is in his best interest to withdraw his motion
at this time." Nothing in the record explains why the defendant
changed tack at this point.

6At trial, McDonald testified that he first learned that
the defendant was incarcerated on November 12, 2015, when the
defendant filed his motion to withdraw his plea.
10

then entered a nolle prosequi on the district attorney's

complaint. As previously noted, the defendant was convicted of

willful interference with a criminal investigation and perjury,

and this appeal ensued.

Discussion. In reviewing a claim challenging the

sufficiency of the evidence, we ask whether, viewing the

evidence in the light most favorable to the Commonwealth, "any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979). In this case, we answer

that question affirmatively with respect to all three

convictions.

1. G. L. c. 268, § 13B. The defendant was charged with

two counts of violating G. L. c. 268, § 13B, generally known as

the witness intimidation statute. As relevant here, the statute

makes it criminal to willfully mislead an investigator or an

attorney directly or indirectly with the intent to interfere,

impede, or obstruct a criminal investigation or criminal

proceeding of any type. See Commonwealth v. Fortuna, 80 Mass.

App. Ct. 45, 51 (2011). The indictment charged in count one

that the defendant willfully misled John McGrath, "a police

officer or investigator," and, in count two, that the defendant

willfully misled Christopher McDonald, "an attorney."
11

Viewed in the light most favorable to the Commonwealth, the

evidence was sufficient with respect to both counts. A rational

trier of fact, here the judge, reasonably could have found that

the defendant misled McGrath and McDonald with the requisite

intent when he falsely claimed that he owned the heroin in

question and that he was present at the house where the drugs

were found prior to the execution of the search warrant.

Furthermore, it was reasonable to conclude that the defendant's

lie interfered with a criminal investigation and a criminal

proceeding because it induced the Commonwealth to charge the

defendant with the crime of trafficking and to offer Oquendo a

more favorable plea agreement than it otherwise would have.

With respect to count one (misleading McGrath), the

defendant argues that the Commonwealth's evidence was

insufficient because the criminal investigation into Oquendo's

illegal distribution of heroin had concluded by the time he

claimed ownership of the drugs during his proffer with McGrath.

This argument is unavailing. First, viewing the evidence in the

light most favorable to the Commonwealth, as we must, the judge

reasonably could have found that the investigation was ongoing

and, if anything, was reinvigorated when the defendant came

forward and told McGrath that the heroin found during the

execution of the search warrant belonged to him. Second, even

were we to agree, which we do not, that the investigation had
12

concluded, the statute is not limited to prohibiting conduct

that impedes or interferes with an active investigation. To the

contrary, our case law has interpreted the "statute to encompass

'any investigation or proceeding that may result in criminal-

type sanctions.'" Commonwealth v. Occhiuto, 88 Mass. App. Ct.

489, 505 (2015), quoting Commonwealth v. Figueroa, 464 Mass.

365, 370 (2013). This "expansive definition" does not require

the Commonwealth "to prove the exact nature [or stage] of the

criminal proceedings" (citation omitted). Occhiuto, supra.

Indeed, as we explained in Occhiuto, "the investigation need not

have been commenced at the time of the defendant's statements,

nor need it be pending" (citations omitted). Id.

The defendant further argues that, even if the criminal

investigation was active at the time he came forward, the

Commonwealth still fell short of meeting its burden of proof

because his conduct did not mislead McGrath. Although, as the

defendant notes, McGrath was skeptical of his claim, and there

was no evidence that McGrath embarked on a so-called "wild goose

chase," neither circumstance diminished the sufficiency of the

Commonwealth's evidence. It matters not that McGrath was unsure

whether the defendant was telling the truth or that he did

nothing other than relate the information the defendant had

provided to McDonald because the Commonwealth was not required

to prove that McGrath believed in or acted upon the false
13

information. Instead, the Commonwealth was required to prove

that "the defendant's alleged statement[] . . . reasonably could

have led police astray." Commonwealth v. Paquette, 475 Mass.

793, 800 (2016).

Here, the evidence established beyond a reasonable doubt

that the defendant's statements regarding ownership of the

heroin and his presence at the stash house shortly before the

execution of the search warrant were false. Those false

statements reasonably could have led McGrath and other members

of the task force to pursue a materially different course of

action. That McGrath himself took no further action after

interviewing the defendant is of no consequence, where, as here,

there was also sufficient proof of the defendant's intent to

interfere with the investigation. See, for example, Figueroa,

464 Mass. at 372-373, where the Supreme Judicial Court affirmed

a defendant's conviction under § 13B even though the defendant's

attempt to mislead his parole officer with a false alibi was

unsuccessful. See also Commonwealth v. Casiano, 70 Mass. App.

Ct. 705, 709 (2007), quoting Commonwealth v. Robinson, 444 Mass.

102, 109 (2005) ("[t]he statute punishes anyone who 'willfully

endeavors' to intimidate a witness; it does not require that the

intimidation be successful").

Lastly, the defendant argues that the Commonwealth's

evidence with respect to the conviction on count two (misleading
14

McDonald) was insufficient because McDonald is not an

investigator, and the plea hearing, which the defendant

acknowledges is a criminal proceeding that falls within the

statute, "went smoothly." These arguments require little

discussion. First, the indictment specifies that McDonald is an

attorney, and attorneys are persons specifically included within

the statute. Second, the fact that the plea hearing went

forward "smoothly" misses the point, which is that, but for the

defendant's false statement, Oquendo's plea agreement would

never have been tendered in the first place.

2. G. L. c. 268, § 1. "The crime of perjury in a judicial

proceeding occurs whenever one 'willfully swears or affirms

falsely in a matter material to the issue or point in

question.'" Commonwealth v. Walters, 472 Mass. 680, 702 (2015),

quoting Commonwealth v. Geromini, 357 Mass. 61, 63 (1970). See

G. L. c. 268, § 1. "Our case law instructs that a false

statement is material if it 'tend[s] in reasonable degree to

affect some aspect or result of the inquiry'" (citations

omitted). Commonwealth v. White, 70 Mass. App. Ct. 71, 73

(2007).

The perjury charge was based on the defendant's

representation at the plea hearing that the facts recited by

McDonald regarding his involvement in the crime were true. The

defendant argues that the Commonwealth failed to prove that his
15

replies to the judge's questions were false or material and,

therefore, the judge erred in denying his motion for a required

finding of not guilty. We disagree.

As we have previously concluded, there was abundant

evidence from which the judge as the trier of fact could

conclude beyond a reasonable doubt that the defendant falsely

affirmed that McDonald's recitation of the facts was true. The

defendant subsequently admitted in an affidavit that he had no

involvement in Oquendo's drug distribution scheme and, in fact,

was not present at the house where the heroin was found on

November 12, 2015. In addition, the untruthfulness of the

defendant's responses at the plea hearing were corroborated by

evidence that unequivocally established the defendant was in

police custody on November 12, 2015. Furthermore, the

defendant's false answers were undeniably material as they were

the basis upon which the judge accepted his guilty plea.

Nor are we persuaded by the defendant's assertion that this

evidence is in "equipoise" and, as a result, is insufficient.

While the defendant is correct that a judge must grant a motion

for a required finding of not guilty where "the evidence tends

equally to sustain either of two inconsistent propositions,"

Commonwealth v. Tavares, 484 Mass. 650, 654-655 (2020), that is

not the case here. Based on the evidence that the defendant was

in police custody on November 12, 2015, and had a motive for
16

lying, namely, to spare his nephew from a prison sentence, the

judge could reasonably conclude beyond a reasonable doubt that

the defendant's post-conviction statements recanting ownership

of the drugs were true and his earlier statements were false.

The defendant also challenges his conviction of perjury on

the ground that his plea of guilty was void ab initio. Without

a valid plea, he argues, the perjury conviction cannot stand.

Specifically, the defendant claims that because there was no

judicial determination of probable cause before the district

attorney's complaint was filed and he was not arraigned on the

complaint, we should declare the plea void. We decline to do

so. The defendant waived any nonjurisdictional defects in the

proceedings by virtue of pleading guilty. See Commonwealth v.

Cabrera, 449 Mass. 825, 830 (2007). Moreover, although it was

brief, the judge's colloquy with the defendant at the beginning

of the plea hearing demonstrated a clear waiver of the right to

be indicted by a grand jury upon a finding of probable cause and

an implicit waiver of the right to a formal arraignment.

Judgments affirmed.