Commonwealth v. Fan, SJC-13207

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtGAZIANO, J.
Docket NumberSJC-13207
Decision Date09 August 2022



No. SJC-13207

Supreme Judicial Court of Massachusetts, Suffolk

August 9, 2022

Heard: March 9, 2022.

Indictments found and returned in the Superior Court Department on June 29 and September 12, 2017. The cases were tried before Janet L. Sanders, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

David M. Osborne for the defendant.

Susanne G. Reardon, Assistant Attorney General (Nancy O. Rothstein &Gretchen Pallas Brodigan, Assistant Attorneys General, also present) for the Commonwealth.

The following submitted briefs for amici curiae:

Megan A. Siddall for Timothy Hayes.

Rebecca E.S. Pritzker, Cynthia D. Vreeland, Felicia H. Ellsworth, Eliza R. Green, &Makenzi G. Herbst for Amirah, Inc., & another.


Michael W. Morrissey, District Attorney, &Tracey Cusick, Assistant District Attorney, for district attorney for the Norfolk district.

Andrea Harrington, District Attorney, &Patrick Sadlon, Assistant District Attorney, for district attorney for the Berkshire district.

Ian Stone, pro se.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.


The defendant and one of her codefendants were convicted of multiple counts of human trafficking, deriving support from prostitution, keeping a house of ill fame, and money laundering for their roles in operating multiple brothels in the greater Boston area. The defendant maintains that the trial judge erred in denying her motion to sever her trial from that of her codefendant, permitting the introduction of unduly prejudicial testimony, and declining to allow the admission of exculpatory grand jury testimony. The defendant also challenges asserted errors in particular jury instructions, which she argues alone warrant a new trial.

This case requires us to consider certain elements of the offense of human trafficking under G. L. c. 265, § 50 (a), a relatively new provision intended to combat sex trafficking in the Commonwealth. In the defendant's view, the identity of a trafficking victim is an essential element of G. L. c. 265, § 50 (a), and therefore the trial judge erred by declining to instruct the jury to that effect. We conclude, as a matter of first impression, that a defendant may be convicted of human


trafficking under G. L. c. 265, § 50 (a), so long as the jury find that the defendant knowingly trafficked another person, regardless of whether that person is specifically identified. The defendant also argues that, to ensure juror unanimity, the jury must be instructed that they must all agree on the identity of a specific victim where, as here, there is evidence of multiple potential victims. Because the trafficking offenses at issue here were charged as ongoing criminal schemes, rather than as discrete instances of trafficking, we conclude that such an instruction was not warranted, and the trial judge did not err in declining to provide one.

Discerning no error in any of the other challenged decisions by the trial judge, we affirm the defendant's convictions.[1]

1. Background.

a. Facts.

We recite the facts the jury could have found, reserving certain facts for later discussion. The defendant was involved in a romantic relationship with one of her codefendants, Timothy Hayes, and was friends with the other codefendant, Simon Lin. Witnesses described both men as being "in love" with her. Following a joint investigation by


Federal, State, and local law enforcement agencies, investigators began to suspect that the defendant, Hayes, and Lin were working together to operate five brothels located in North Reading, Boston, Quincy, and Cambridge.

Over the course of several months, police conducted surveillance of each of the suspected brothels. The defendant was observed at each location, often carrying trash or groceries and occasionally driving women to or from the suspected brothels. Police also frequently observed men waiting outside each location. The men often were admitted to the apartments by young "Asian women," many of whom came to the door wearing only a bathrobe.

Police interviewed several of the men after they left the apartments; the men conceded that, while inside, they had exchanged money for sexual services. The men each reported that they went to the apartments after having seen an advertisement for a massage on the website (Backpage).[2] When they


called the telephone number listed in the advertisement, an unknown woman with what the men described as an "Asian accent" would answer and would direct the men to one of the five locations. The men would arrive at the designated apartment and would pay between $130 and $320 in cash to the individual woman they met, who then would provide a brief massage before initiating sexual contact.

Police subsequently secured and simultaneously executed warrants to search each of the apartments under investigation. When the search warrant was executed at the location in Boston, police found the defendant, her son, and two women. In one of the Quincy locations, police found two women and one male, later identified as the husband of one of the other occupants. The other locations each were occupied by two women. The apartments were sparsely furnished; they each had at least two bedrooms containing little more than a mattress on the floor. At each location, police discovered cash hidden in various places, a substantial number of used and unused condoms, and handwritten documents that appeared to be ledgers listing various amounts of money.

Police learned that the defendant leased two of the apartments and held another lease jointly with Hayes for one of


the apartments. Hayes individually leased the remaining two apartments. Investigators obtained several Backpage advertisements appearing to reference the apartments by location, one of which included the defendant's cellular telephone number, and two of which were posted using an electronic mail address registered in the defendant's name. The defendant's telephone records showed that she had been in communication with two of the men who admitted to having paid for and received sexual services at the apartments.

b. Prior proceedings.

After the execution of the search warrants, the defendant was arrested and charged with one count each of human trafficking, deriving support from prostitution, keeping a house of ill fame, and conspiracy, separately for each of the five alleged brothels, as well as three counts of money laundering. She subsequently was indicted by the grand jury on these charges. The defendant's case was joined for trial with that of both of her codefendants; the three codefendants' motion for relief from prejudicial joinder was denied after a hearing.[3]

At trial, the prosecutor introduced testimony from a number of law enforcement officers, as well as from several men who testified that they had received sexual services in exchange for


cash payments at the suspect locations. The prosecutor was unable to locate the majority of the suspected trafficking victims, but introduced photographs of each of the women who had been found in the apartments, and provided names for each.

Two of the victims, BX and CWQ,[4] testified at trial. BX testified that she came to Massachusetts to perform massage work after having connected with the defendant through an Internet messaging service. Upon arriving in Boston, the defendant told her that, in addition to massage services, she was expected to provide sexual services, and BX complied. BX testified that the defendant, whom she referred to as "the boss," would drive her between the apartments in Boston, Quincy, and North Reading, where she would engage in sexual contact with men in exchange for a fee. BX said that she would use condoms provided by the defendant, and kept a ledger of her customers, as the defendant required. BX testified that, on average, she would see three to five customers per day, and would give the defendant between thirty-eight and forty-four percent of her earnings. BX also testified that there were other women in the apartments who worked for the defendant and who provided sexual services in exchange for cash.


CWQ testified that she came to Boston in order to perform massage work after hearing about an available job from a friend. CWQ said that a Chinese woman picked her up from the bus station and brought her to the apartment in Boston, where she engaged in sexual contact with male customers for a fee. CWQ explained that she would give some of the money she earned to the woman who met her at the bus stop, whom she described as "older sister," but did not identify by name.[5]

Before beginning deliberations, the jury were provided with verdict slips for each offense charged, separately for each of the five different locations. The jury found the defendant guilty of five counts of human trafficking, G. L. c. 265, five counts of deriving support from prostitution, G. L. c. 272, § 7; four counts of keeping a house of ill fame, G. L. c. § 24; and three counts of money laundering, G. L. c. 267A, § 2.[6]


The defendant timely appealed, and we transferred the case to this court on our own motion.

2. Discussion.

The defendant argues that the trial judge committed multiple errors that, individually and collectively, require a new trial. The asserted errors include the denial of the defendant's motion to sever on the ground of mutually antagonistic and irreconcilable defenses, evidentiary rulings on the admissibility or exclusion of specific testimony, and inaccuracies in the jury instructions. In particular, the defendant maintains that the judge should have allowed her motion to introduce grand jury testimony by two alleged trafficking victims who did not testify at trial, and should have excluded testimony by a witness who saw an "extremely frightened"...

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