COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss ‘SUPERIOR COURT NO. 14-340(1-2) HAMPDEN COUNTY Bion SoU COMMONWEALTH Sera EED MAY 18 2685 REYNALDO VELAZQUEZ MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANT'S MOTION TO DISMISS ‘Reynaldo Velazquez has been indicted for Trafficking na Controlled Substance, to wit ‘Cocaine, (200+ Granns) in violation of G.L. e. 94C, §326(b)(4) and Possession ofa Firearm ‘Daring the Commission of a Felony in violation of G-L. . 265, §18B. He has moved to dismiss the indictments on the ground thatthe Commonwealth did not present sufficient evidence to the grand jury. After a hearing, a review ofthe parties’ submissions, including the grand jury ‘minutes the motion to dismiss is DENIED. BACKGROUND “The grand jury heard testimony ftom Springfield Police Department Detective Bdward Kalish and U.S, Postal Inspector Richard Tracy. They testified as follows: After an investigation conducted by Postal Inspoctor Richard Tracy on January 29,2014, ‘wo packages were removed from the stream of mail atthe main branch of the Springfield, MA Post Office. Inspector Tracy called for the assistance of Massachusetts State Police Trooper Baxter and his K-9 dog “Kdos.” The dog was allowed to sniff the packages and “alerted” to the presence of nareotes n each of them. Two Federal search warrants were oblained authorizing the search of each package. One of the boxes that was addressed to Evangelina Gonzalezcontained two kilograms of cocaine, while the other, which was addressed to Angel Gonzalez, contained four kilograms of cocaine, The packages were then sealed. ‘The following day, January 30, 2014, the Mr, Velazquez accompanied Evangelina Gonzalez to the lobby ofthe main U.S, Post Office in Springfield. Once there, he presented the postal cle with two slips of paper, each of which had a postal tracking mumber on it, and told the clerk, “We are hereto pick these up." Also present was the other Co-defendant, Angel Gonzalez, along with another female, Nefateris Medina, ‘The postal clerk took the slips of paper, and tod the three individuals that he would need photo identification from whoever was going to sign for the boxes. Mr. Velazquez said that he ‘as not the person who as going to sign forthe packages and gestured towands Evangelina Gonzalez, Ms. Gonzalez approached the clerk and gave him her identification. The clerk then went to retrieve the packages, while Mr. Velazquez went ouside to get Angel Gonzalez. Once the clerk produced the packages, Evangelina Gonzalez signed for her package. Angel Gonzalez id the: ne withthe package tht was adiressed o him. As the four were leaving the Post Office they were placed under ast ‘As Mr Velasquez was being placed into custody, be informed Detective Kalish that he ‘was in possession ofa firearm. Detective Kalish then recovered a Smith & Wesson 40 caliber handgun loaded with 11 rounds fom Mr, Velasque’s waistband. He also recovered e spar clip loaded with 10 rounds of ammunition from Me, Velasquee's ight ron pocket, Mr, Velazquez stated that he didnot have a license to cary a firearm, Once atthe police station, the officers confirmed that Mr. Velasquez did have a license to cary.DISCUSSION ‘The standard applicable to a motion to dismiss based on the evidence presented toa ‘grand jury is well established, Generally, “a court will not review the competency or sufficiency of the evidence before a grand jury.” Commomsealth v. O'Dell, 392 Mass. 445, 450 (1984). A. court may, however, consider whether the grand jury received sufficient evidence to establish “probable cause to arrest.” and whether the integrity ofthe proceedings was impaired. MeCarthy, 385 Mass. at 163; ee also O‘Dell, 392 Mass. at 446.447, A reviewing coust does not evaluate the credibility ofthe evidence presented tothe grand jury; rather, the Court considers the evidence in the light most favorable to the Commonwealth, leaving tothe grand jury all “questions of credibility. Commomwealth v, Washington W., 462 Mass. 204, 210 (2012); Commonwealth v. Riley, 73 Mass. App. Ct. 721, 727 (2009) (“The weight and credibility ofthe evidence is wholly forthe grand jury”). ‘To support an indictment, the grand jury must receive evidence sufficient to establish the identity ofthe accused and probable cause to arrest him or her. O'Dell, 392 Mass. at 450; McCarthy, 385 Mas. at 163, Probable cause to arrest is defined as “more than mere suspicion ‘but something less than evidence sufficient to warrant a conviction.” Commonwealth v. Roman, 414 Mass. 642, 643 (1993) (internal quotations omitted). To establish probable cause, the ‘Commonwealth must present the grand jury with evidence on each element of the ime charged. Commonwealth v. Moran, 453 Mass. 880, 884 (2009). The evidence need not be direct, however; circumstantial evidence that would support the necessary inference i sufficient for ‘probable cause. Commomvealth v. Taskey, 78 Mass. App. Ct. 787, 798 (2011) (holding circumstantial evidence sufficient for grand jury to find probable cause for conspiracy indictment). Indeed, as at tral, elements involving intent or mental state are seldom susceptible of proof by direct evidence; circumstantial evidence supporting reasonable inferences is the usual form of proof. See Commonwealth v. McCarthy, 281 Mass. 253, 257-258 (1932). Generally, the court doesnot inquire into the quality ofthe evidence before the grand jury “unless extraordinary circumstances are present. Commonwealth v. Freeman, 407 Mass. 279, 282 (1990). ‘The grand jury is historically an investigative and accusatory body. Commonwealth v (O”Dell, 392 Mass, 445, 450 (1984), The evidence that must be presented tothe grand jury to establish probable cause to arest is considerably Tess exacting than the evidence required foraguilty verdict. 0 Dell, 392 Mass. at 451. Despite this lesser standard, the grand jury must still hear evidence on each element ofthe crime for which an indictment is sought. Commonwealth -. Moran, 453 Mass. 880, 884 (2009), Inorder to prove a defendant guilty of trafficking in cocaine (200% grams}, the Commonwealth must prove each of the following elements beyond a reasonable doubt: Fist: thatthe defendant possessed an item or several items; ‘Second: that the item or items that the defendant allegedly possessed wes ‘controlled substance, inthis case, cocaine; ‘Thie: that the defendant possessed that controlled substance knowingly or intentionally; Fourth; thatthe defendant had the specific intent to distribute or dispense that controlled substance, and; Fifth: thatthe amount ofthe controled substance was 200 grams or more, as alleged in the indictment. To prove the defendant guilty of the crime of possession of a firearm during the commission of a felony the Commonwealth must prove thee things beyond a reasonable doubt: First ‘That the defendant committed or attempted to commit a felony, and Second: That while doing so, the defendant knowingly possessed a Seam, rifle ot shotgun (or) had a firearm, rifle or shotgun under his (bet) control; “The evidence presented tothe grand jury inthis case is sufficient to suppor the grand jury's determination of probable cause on both counts of the indictment. See O’Dell, 392 Mass. at 451, Notably, evidence of constructive possession and/or joint venture was sufficient 10 indict Mr. Velazquez. Mr. Velazquez presented the postal clerk with two slips of paper, each of ‘which had a postal tracking number omit, and told the clerk, “We are hereto pick these up.” In a separate regard, Mr. Velazquez informed Detective Kalish that he was in possession of a firearm ‘ashe was being placed into custody. Indeed, he was in possession of «firearm atthe time. ‘Whether or not he ad a license to carry is immaterial tothe firearm offense chargedORDER For the foregoing reasons, the Mr. Velazquez” Motion to Dismiss is DENIED. rany Dated: March 18, 2015 Ma Associate Justice ofthe Superior Court