SJC-13207_04_Appellee_Commonwealth_Brief - PINGXIA FAN - Quincy - Sex trafficking

1 COMMONWEALTH OF MASSACHUSETTS Appeals Court SUFFOLK, SS. NO. 20-P-1329 COMMONWEALTH, Appellee, v. PINGXIA FAN, Defendant-Appellant. ON APPEAL FROM JUDGMENTS OF THE SUPERIOR COURT BRIEF OF THE COMMONWEALTH MAURA HEALEY Attorney General Susanne Reardon, BBO # 561669 Assistant Attorney General Criminal Bureau One Ashburton Place Boston, Massachusetts 02108 (617) 963-2832 email: [email protected] Supreme Judicial Court for the Commonwealth Full Court: SJC-13207 Filed: 11/24/2021 9:32 AM 2 TABLE OF CONTENTS TABLE OF AUTHORITIES................................. 4 STATEMENT OF ISSUES.................................. 7 STATEMENT OF THE CASE................................ 7 STATEMENT OF FACTS.................................. 10 A. The Scope of the Investigation................. 10 B. Surveillance and Investigation at Edgewood Apartment Complex in North Reading............. 12 C. Surveillance and Investigation at 64 Beach Street in Chinatown............................ 17 D. Surveillance and Investigation at 1 North Central Avenue in Quincy....................... 20 E. Surveillance and Investigation at the Walden Park Apartment Complex in Cambridge............ 25 F. Surveillance and Investigation at the Avalon Apartment complex in Quincy.................... 28 G. Additional Investigation....................... 33 ARGUMENT............................................ 35 I. The Trial Judge Properly Denied Defendant’s Motion to Sever Her Trial from Her Co￾Defendants, Where the Strong Evidence Against Her Mitigated any Prejudice Resulting From Antagonistic Defenses........... 35 II. The Trial Court Properly Excluded Grand Jury Testimony of Unavailable Witnesses, Where Defendant Did Not Fulfill the Evidentiary Requirements for the Admission of Such Testimony...................................... 40 III. Testimony About A Young Asian Woman In A Bathrobe In The Woods Outside The Edgewood Apartments Was Properly Admitted Where It Was Relevant And Not Unduly Prejudicial........ 45 3 IV. The Trial Judge Properly Instructed the Jury that the Commonwealth Did Not Have to Prove the Existence of a Specific Victim in Order to Prove Human Trafficking..................... 48 CONCLUSION.......................................... 52 CERTIFICATE OF COMPLIANCE........................... 53 CERTIFICATE OF SERVICE.............................. 53 STATUTORY ADDENDUM.................................. 54 4 TABLE OF AUTHORITIES Cases Commonwealth v. Brown, 477 Mass. 805 (2017) ............................. 41 Commonwealth v. Buttimer, 482 Mass. 754, (2019) ............................ 48 Commonwealth v. Clemente, 452 Mass. 295 (2008) ..................... 41, 42, 43 Commonwealth v. Dabney, 478 Mass. 839 (2018) ............................. 50 Commonwealth v. DePina, 476 Mass. 614 (2017) ............................. 37 Commonwealth v. Fernandes, 487 Mass. 770 (2021) ............................. 36 Commonwealth v. Given, 441 Mass. 741 (2004) ............................ 47 Commonwealth v. Gray, 463 Mass. 731 (2012) ............................. 44 Commonwealth v. Haggett, 79 Mass. App. Ct. 167 (2011) ..................... 39 Commonwealth v. Henley, 488 Mass. 95, 2021 WL 341327 at *16 (2021) ....... 37 Commonwealth v. Keown, 478 Mass. 232 (2017) ............................. 46 Commonwealth v. Lucien, 440 Mass. 658 (2004) ............................. 48 Commonwealth v. Mason, 485 Mass. 520 (2020) ............................. 45 Commonwealth v. McAfee, 430 Mass. 483 (1999) ............................. 37 Commonwealth v. McGhee, 472 Mass. 405 (2015) ............................. 50 5 Commonwealth v. Mendes, 457 Mass. 805 (2010) ............................ 49 Commonwealth v. Moran, 387 Mass. 644 (1982) ..................... 36, 39, 40 Commonwealth v. Pena, 485 Mass. 378 (2020) ............................. 46 Commonwealth v. Pompilus, 98 Mass. App. Ct. 1120, 2020 WL 6840798 (2020) ... 50 Commonwealth v. Rutherford, 476 Mass. 639 (2017) ............................. 47 Commonwealth v. Stewart, 450 Mass. 25 (2007) .............................. 40 Commonwealth v. Sylvia, 456 Mass. 182 (2010) ............................. 46 Commonwealth v. Vasquez, 462 Mass. 827 (2012) ............................. 37 Commonwealth v. Watson, 487 Mass. 156 (2021) ............................. 36 United States v. Omar, 104 F. 3d 519 (1st Cir. 1997) .................... 43 Wallace W. v. Commonwealth, 482 Mass. 789 (2019) ............................ 49 Statutes G.L. c. 265, § 50................................ 48-49 G.L. c. 265, § 50(a)................................. 8 G.L. c. 267A, § 2.................................... 8 G.L. c. 272, § 24.................................... 8 G.L. c. 272, § 7..................................... 8 G.L. c. 274, § 7..................................... 8 6 Other Authorities Mass. R. Crim. P. 9(b).............................. 36 Mass. R. Crim. P. 9(d)(1)........................... 37 Mass. G. Evid. § 401 (2020)......................... 45 Mass. G. Evid. 804(a)(5)............................ 39 Fed. R. Evid. 804(b)(1)(B)....................... 41-42 7 STATEMENT OF ISSUES I. Whether Defendant’s motion to sever was properly denied where the strong evidence against her mitigated any prejudice resulting from antagonistic defenses. II. Whether the trial court properly excluded the grand jury testimony of two witnesses who did not testify at the trial where Defendant did not fulfill the evidentiary requirements for the admission of such testimony. III. Whether testimony about a young Asian woman in the woods outside one of the brothel locations was properly admitted where it was relevant and not unduly prejudicial. IV. Whether Defendant was entitled to an instruction that required the jury to unanimously find that there was a specific named victim at each location where such unanimity is not required by the statute or caselaw. STATEMENT OF THE CASE Defendant Pingxia Fan (“Defendant”) was arrested on May 4, 2017 for her role in a human trafficking scheme in brothels in five different locations.1 A 1 Co-defendants Timothy Hayes and Simon Lin were also arrested on the same day. Hayes was later indicted on (footnote continued) 8 statewide grand jury returned twenty-three indictments against her in Suffolk, Norfolk and Middlesex counties on June 29, 2017: five counts of trafficking of persons for sexual servitude in violation of G.L. c. 265, § 50(a); five counts of deriving support from prostitution in violation of G.L. c. 272, § 7; five counts of keeping a house of ill fame in violation of G.L. c. 272, § 24; five counts of conspiracy in violation of G.L. c. 274, § 7; and three counts of money laundering in violation of G.L. c. 267A, § 2. (R1/3, 23-54).2 On October 3, 2017, the cases were consolidated in Suffolk County (R1/5). On January 15, 2019, Defendant filed a Motion for Relief from Prejudicial Joinder (R1 8; 57-61). The Commonwealth filed several motions in limine on December 19, 2019: 1) to admit prior-bad-act evidence (Backpage ads); 2) to admit evidence of a trash pull after a traffic stop of Defendant; and 3) to admit the (footnote continued) the same charges as Defendant and Lin was indicted on two counts of money laundering, two counts of human￾trafficking and one count of conspiracy. 2 Defendant’s Record Appendix will be referred to by Volume and page number as (R--/--), or by date and page number where there is no volume number and the trial transcripts by volume and page number as (Tr. -- /--). 9 recording of a 911 call (R1/10; 143-156). At a pre￾trial hearing, Defendant’s motion for severance was denied after the Commonwealth agreed not to admit co￾defendant Hayes’ statement to police (Tr. 12/19/20 4- 15). The Commonwealth’s motions were allowed except as to the recording of the 911 call, but a witness was permitted to testify as to what she observed prior to calling 911 (R1 10-11). A jury trial against all three co-defendants commenced on January 6, 2020 (Sanders, J., presiding) (R1 12). Justice Sanders denied Defendant’s motion for required finding of not guilty on January 21, 2020 (R1 12). The Commonwealth filed a nolle prosequi as to all of the conspiracy counts against Defendant (RA1 17). On January 23, 2020, the jury found Defendant not guilty of one count of keeping a house of ill fame and guilty of the remaining charges (R1 13-14). Justice Sanders sentenced Defendant to concurrent terms of five to six years on the human-trafficking convictions; concurrent sentences of two years in the House of Correction on the deriving support from prostitution and keeping a house of ill fame convictions; and a consecutive term of two years of probation on the money laundering convictions (R1 16, 10 20). On the same day Defendant pleaded guilty to a separate Norfolk County indictment that was returned on September 2 and was consolidated with the Suffolk County cases on November 16, 2017 (R1/5, 19-21, 55- 56).3 She was sentenced to a concurrent term of four to five years on this indictment (R1/17). Defendant filed a timely notice of appeal on February 18, 2020 (R1 21, 81).4 STATEMENT OF FACTS A. The Scope of the Investigation In January of 2017, North Reading police Lieutenant Thomas Romero began an investigation into human trafficking at the Edgewood apartment complex located at 103 Lowell Road in North Reading (Tr. III/42-43). He started by looking at Backpage.com5 ads for massages that indicated a North Reading location 3 Defendant’s invitation to this Court to consider this guilty plea when issuing its decision should be rejected where Defendant did not file a motion to withdraw her guilty plea and where that conviction is not at issue in this appeal. 4 Co-defendant Hayes’ appeal is pending before this court (2020-P-1108). 5 Backpage.com was a website on which people could post advertisements for goods, services, or jobs (Tr. IV/187). The website was taken down as a result of a federal search warrant in April 2018 (Tr. IV/188). 11 and then directed detectives to call the number in the ads to get a specific address (Tr. III/44). Once the detectives determined that the specific address was at the Edgewood Apartments, they went to the leasing office there to get information about who was on the lease (Tr. III/46). Lieutenant Romero subsequently referred the investigation to Troopers Thomas Murphy and Jack Louie, who worked with the Human Trafficking Division at the Attorney General’s Office (Tr. III/46- 47). As a result of Lieutenant Romero’s referral, Trooper Louie became involved in the investigation of the Edgewood apartment in January 2017 (Tr. III/76- 78). He worked with several other law enforcement agencies, including the North Reading police, the Gloucester police, the Boston police, the Quincy police, and the FBI (Tr. III/79). Through both physical and electronic surveillance (including surveillance cameras and GPS tracking devices), the investigating officers discovered four other locations related to the trafficking scheme at issue, one at 64 Beach Street in Chinatown, one at North Central Avenue in North Quincy, one at the Avalon apartments in Quincy, and one at the Walden Apartments in Cambridge 12 (Tr. III/78). They focused on three vehicles: a red Toyota Rav 4 registered to Defendant at 64 Beach Street in Boston; a blue Ford F150 registered to co￾defendant Hayes at 8 Cedarwood Road in Gloucester; and a black Ford Escape registered to co-defendant Lin at 68 Tyler Street in Boston (Tr. III/81). All three vehicles were surveilled with a GPS tracker authorized by search warrants (Tr. III/81-82).6 B. Surveillance and Investigation at Edgewood Apartment Complex in North Reading After referring the investigation to the State police, Lieutenant Romero continued surveillance of the Edgewood Apartment complex (Tr. III/47-48). The complex has 11 buildings and 406 units (Tr. V/251). Building 103, Apartment 104 was of particular interest to the investigation.7 On various dates Lieutenant Romero observed white males waiting outside Building 103, using their cell phones, and being greeted by 6 Search warrants were later executed simultaneously at each of the five locations as well as Hayes’ residence at 8 Cedarwood Road in Gloucester on May 4, 2017 (Tr. III/86). 7 Co-defendant Timothy Hayes signed a lease for this apartment in November 2016 for three months from December 2016 through February 2017 (Tr. V/253-256). 13 young Asian females; these men would stay about half an hour before exiting the building (Tr. III/48-49). During his three-month surveillance Trooper Louie observed the red Rav 4 at the Edgewood apartments about twenty to thirty times with either Defendant or Hayes driving (Tr. III/92-93, 110). He observed Defendant, who used her own key to enter the apartment, bringing in supplies, taking trash out, and transporting females to and from the location; (Tr. III/93-94). Defendant also sometimes drove the black Ford Escape registered to Lin and was observed by Trooper Louie arriving at the apartment in the Escape with three other females sometime in February 2017 with luggage and grocery bags (Tr. III/111-112). After about twenty minutes, two Asian females exited the apartment with luggage and drove off with Defendant (Tr. III/114). Throughout his surveillance at the Edgewood apartment, Trooper Louie observed numerous men pull into the parking lot, walk up to front door of Building 103 on their phones, and someone would let them in; these men usually stayed less than an hour (Tr. III/119). Roberta Murphy lived in Unit 102, across the hall from Unit 104 during the relevant time (Tr. V/286- 14 287). In December 2016, two Asian women moved into Unit 104 (Tr. V/289-290). Beginning in January 2017, Ms. Murphy saw the two women frequently meeting men at the front door of the building and taking them back to the apartment (Tr. V/291, 293). The women were often wearing silk bathrobes (Tr. V/291-293). One day she saw 8-10 men entering the apartment (Tr. V/296). Roberta eventually voiced her concerns to the property management and the North Reading police (Tr. V/298). John McCafferty went to Apartment 104 on January 1, 2017 in response to a Backpage.com ad for a nuru massage (Tr. VIII/37-38). He believed the massage would have a sexual component to it (Tr. VIII/38). He called the telephone number in the ad and spoke to an Asian woman named Coco (Tr. VIII/41). When he arrived at building 103, a young Asian woman named Angela, who was wearing a bathrobe, met him at the door and allowed him in (Tr. VIII/44-45). Angela took him into a bedroom with a mattress on the floor and he paid her $160 in cash (Tr. VIII/46). Angela put a condom on him and they had oral and vaginal intercourse (Tr. VIII/47). When McCafferty left the apartment complex, the police pulled him over and he told them what happened 15 in the apartment and gave them the phone number that he had called (Tr. VIII/49-50). He was not arrested in exchange for his truthful testimony (Tr. VIII/50).8 Kalpesh Patel responded to a Backpage.com ad for a massage on January 5, 2017 (Tr. VI/167-168). An Asian woman who answered the phone told him to go to 103 Lowell Road in North Reading for a $150 one-hour massage (Tr. VI/168, 171). An Asian woman in a white bathrobe opened the outer door and led him to a ground floor apartment (Tr. VI/174, 175). They went into a bedroom with just a bed and he gave the woman $150 (Tr. VI/176). Patel took his clothes off and lay down on his stomach; the woman massaged his back for about half an hour (Tr. VI/177-178). She then told him to turn around and Patel noticed that she had taken off her top (Tr. VI/178). The woman massaged his penis until he ejaculated (Tr. VI/179-180). After Patel left the apartment, he was stopped by police (Tr. VI/181). He eventually told them what had happened in the apartment and gave them the phone number from the 8 Police decided not to charge the men that were stopped coming out of each location because they cooperated with police and gave statements about what occurred in the apartments (Tr. IV/80-81). 16 Backpage.com ad that he called (Tr. VI/181-182). The police did not arrest him in exchange for his truthful testimony (Tr. VI/182-183). On April 11, 2017 at approximately 10 PM Janet Engrem was driving past the Edgewood Apartments on Lowell Road (Tr. X/31-32). She saw an Asian woman in a short pink terrycloth bathrobe with no shoes on in the woods waving her hands (Tr. X/33-34). Ms. Engrem’s husband turned the car around and the woman came to their window and said “hurry, hurry, go Chinatown” while trying to get in the car (Tr. X/38). Ms. Engrem called 911; when they pulled over to the side of the road, the woman was gone (Tr. X/39, 41). North Reading Police Sergeant Encarnacao was dispatched to the general area of Building 103 at the Edgewood Apartments as a result of the above 911 call (Tr. II/267). He exited his car and looked around the parking lot and surrounding area (Tr. II/267-268). At the rear of the building, he observed a pair of womens’ high heels eight to ten feet from the back door of Building 103 and about thirty to forty feet from Lowell Road (Tr. II/269-270). Trooper Jose Cuevas executed a search warrant at Unit 104 on May 4, 2017 (Tr. VI/211-212). When he 17 arrived at the apartment, there were two Asian females there who did not speak English (Tr. VI/213).9 The apartment had very little furniture and the bedrooms had mattresses on the floor (Tr. VI/218-219). He found cash in various places and trash bags with both new and used Kimono brand condoms (Tr. VI/221-224). C. Surveillance and Investigation at 64 Beach Street in Chinatown Trooper Louie observed Defendant and Hayes at 64 Beach Street multiple times during his surveillance (Tr. III/126). He also frequently saw men entering and exiting the location (Tr. III/133). On March 27,2017, Joseph Heinen called the phone number on an ad on Backpage.com and was directed to 64 Beach Street in Chinatown (Tr. V/158-160). He was looking for a massage with a “happy ending” (Tr. V/159). When he arrived at the address, he was buzzed in and proceeded to an apartment on the second floor (Tr. V/164). He was greeted by an Asian woman and entered a sparsely furnished apartment (Tr. V/164- 165). They went to a bedroom with a mattress on the floor and Heinen gave the woman $130 in cash (Tr. 9 The women were detained until the scene was clear but were not charged with criminal offenses because the police considered them to be victims (Tr. IV/79-80). 18 V/166). The woman directed Heinen to remove his clothes and lay down on his stomach (Tr. V/166-167). She massaged his back for about ten minutes and then told him to turn over (Tr. V/167). She asked him if he wanted to have sex and he said no so she proceeded to massage his penis with her hand until he ejaculated (Tr. V/168-169). The police called Heinen the following day and asked him what happened at 64 Beach Street (Tr. V/169-170). When he met with police, he was honest about what had occurred, and the police did not arrest him in exchange for his truthful testimony (Tr. V/170). A search warrant was executed at apartment 2 on May 4, 2017 (Tr. III/86-87). Defendant, her son, Sheng Yang, and two other females,10 were in the apartment at the time (Tr. III/135). The women were transported to an FBI office and interviewed (Tr. III/135). Trooper Louie was among the officers to execute the warrant. He found three bedrooms in the apartment (Tr. III/139). One had a bed and was full of clothes and other items and (Tr. III/139). A box of Kimono 10 The Commonwealth’s motion to impound identifying information of the victims in this case was allowed on July 20, 2017 (R2/66). 19 condoms was found under the bed (Tr. III/145). A bag of money, a bank statement with Hayes’ name on it, and a piece of paper with a Backpage.com listing on it were also found in this bedroom (Tr. III/146). The second bedroom had a mattress on the floor, a plastic container of Kimono brand condoms, a bag of paper towels, and luggage in the closet (Tr. III/147- 148). There was also a bathrobe on the bed with money in the pocket (Tr. III/147-148). The third bedroom was similar to the second, with a mattress on the floor, paper towels and a container of Kimono condoms (Tr. III/148). In the living area of the apartment, Trooper Louie observed Kimono condoms and a list of numbers and dates (Tr. III/141-142). Money and Kimono condoms were also found in some of the kitchen drawers (Tr. III/144). CQ, one of the women found at 64 Beach Street when the warrant was executed testified that she came to New York from China in 2016 (Tr. VIII/120). In 2017 she came to Boston to do massage work (Tr. VIII/121- 122). An older Chinese woman picked her up at the bus station and took her to 64 Beach Street (Tr. VIII/122- 124). She gave massages to men at that location and 20 also engaged in sex for a fee (Tr. VIII/126). She kept some of the money and gave the rest to the woman who lived in the house (Tr. VIII/128). Defendant’s son, Sheng Yang, came from China to live with his mother at 64 Beach Street on April 18, 2017 (Tr. VI/9-10).11 He stayed in a bedroom with his mother and two Asian women stayed in the other two bedrooms (Tr. VI/65). He believed his mother was running a massage business because he would see men coming into the apartment and heard massage type noises from the bedrooms (Tr. VI/70-71). He also sometimes heard what he thought were “sex noises” (Tr. VI/71-72). Yang also rented a safe deposit box with his mother, she put $40,000 into it and he put $1,000 into it (Tr. VI/73-75). D. Surveillance and Investigation at 1 North Central Avenue in Quincy Cristo Wong owns 1 North Central Avenue in Quincy (Tr.VI/80). Defendant signed a one-year lease for the house in October 2016 (Tr. VI/84-85, 89). She gave 11 Justice Sanders admitted Yang’s grand jury testimony substantively at trial because she found that, at certain points, his trial testimony contradicted the grand jury testimony and, at other times, certain of his testimony amounted to feigning a lack of memory (Tr. VI/54). 21 Wong a check for the deposit and paid the first few months’ rent with checks (Tr. VI/90). At some point Defendant asked Wong if she could install surveillance cameras on the house (Tr. VI/94). Wong agreed and she installed them herself (Tr. VI/94). Investigators installed a pole camera across the street from 1 North Central Avenue in Quincy in March 2017 and checked the video daily (Tr. III/151-152). Trooper Louie also surveilled this location and saw Defendant bringing supplies, taking out trash, and transporting females there on multiple occasions (Tr. III/152). Trooper Louie also saw unknown females entering and exiting with luggage, often with Defendant and sometimes with Hayes (Tr. III/170-172). He also saw several different Asian women with bathrobes come outside briefly (Tr. III/172-173) and males entering and exiting with water bottles (Tr. III/173-174). During the second week of April 2017, Gaetano Brancaccio noticed an ad on Backpage.com with pictures of young Asian women in lingerie (Tr. V/214). The ad mentioned nuru massage, which he understood as both parties being naked (Tr. V/213-214). He called the phone number in the ad and a woman with an Asian 22 accent directed him to 1 North Central Avenue in Quincy (Tr. V/212, 215). An Asian woman greeted him at the door and took him to a room with a bed and box spring on the floor (Tr. V/220). He paid $160 in cash for a half hour massage (Tr. V/221). The woman left the room with the cash and returned wearing lingerie (Tr. V/222-223). Brancaccio had taken off his clothes and was lying face down on the bed; the woman massaged his back for about 10-15 minutes (Tr. V/222-223). She then told him to turn over and asked if he would like anything else; when he agreed, she put a condom on him and they had sex (Tr. V/223-224). A second woman later came in and he had sex with her while the first woman stayed in the room (Tr. V/224-225). On a subsequent date, Brancaccio called the same number and went back to the North Central Avenue location for a one-hour massage with the expectation that sex would be included (Tr. V/236-237). He gave an Asian woman $160 in cash and she gave him a ten-minute massage before they engaged in sex using a condom that she provided (Tr. V/240). When he left, the police stopped him and asked what had occurred in the house (Tr. V/241). He did not initially tell them the truth, but eventually testified at the grand jury and 23 admitted that he had paid for sex (Tr. V/241-242). The police did not arrest him in exchange for his truthful testimony (Tr. V/243). State Trooper John MacDonald was the evidence officer during a search of this location on May 4, 2017 (Tr. VIII/15-16). Officers found cash and Kimono condoms in a bag in the kitchen (Tr. VIII/22). There were two bedrooms on the first floor with mattresses on the floor and no other furniture (Tr. VIII/22-23, 25). Kimono condoms, sanitizer, and other items were found in a box next to the beds in both bedrooms (Tr. VIII/23). Kimono condoms were also found in a red envelope under the mattress in the first bedroom (Tr. VIII/23) and in a drawer in a table in the second bedroom (Tr. VIII/24). In the basement, officers discovered cash and a box of surveillance equipment (Tr. VIII/26). Biqun Xiao and Robert Mozer, who had both been observed bringing groceries to some of the other locations, were in the apartment when the search was executed (Tr. VIII/27, 30). Mozer was arrested and Xiao and two other women found at the house were transported to a federal facility in Chelsea to receive services (Tr. VIII/30-31). 24 Biqun Xiao came to the United States from China in 2016; she found work as a masseuse in New York (Tr. IV/86). After three or four months, Xiao found masseuse work in Chicago for a month and then found an ad for massage work in Boston on WeChat12 (Tr. IV/88- 89). She spoke with Defendant in response to the ad and arrived in Boston in June 2016 (Tr. IV/89-90). Defendant directed her to Apartment two at 64 Beach Street (Tr. IV/91). Xiao met Defendant, who was referred to as “the boss,” the following day (Tr. IV/89, 98). Defendant instructed Xiao that she should perform sexual services as well as massage (Tr. IV/99). Xiao worked every day from 10 AM to 1 AM and saw up to seven male customers per day; Defendant provided her with condoms (Tr. IV/100; 122). Xiao charged $130 for half an hour and $160 for an hour; she kept $80 of the half hour fee and $90 of the hour fee and gave the rest of the money to Defendant (Tr. IV/100). Defendant taught her how to keep a ledger of customers and Xiao would give Defendant the money at 12 WeChat is a Chinese multi-purpose messaging, social media and mobile payment app. https://www.cnbc.com/2019/02/04/what-is-wechat-china￾biggest-messaging-app.html 25 the end of the day (Tr. IV/101). Xiao regularly saw Hayes at 64 Beach Street because Defendant was his girlfriend (Tr. IV/109-110). Defendant also transported Xiao to the Quincy and North Reading locations for two weeks each (Tr. IV/102-103). There were other women working at the other locations and Xiao described Defendant as “the boss” of them too (Tr. IV/103). Xiao was later charged with conspiracy13 but on January 2, 2020, Xiao signed an agreement with the prosecutor that the charge would be dismissed if she testified truthfully at trial (Tr. IV/134-135). E. Surveillance and Investigation at the Walden Park Apartment Complex in Cambridge Defendant and Hayes met with Jeremy Hoegemann, the property manager at Walden Park Apartment complex in Cambridge, on February 17, 2017 (Tr. VI/136-137, 139). On February 21, 2017, they signed a one-year lease for Apartment 0E, which was the first apartment on the right after coming in from the exterior door in the basement (Tr. VI/141-142, 144-145, 148). 13 Xiao was charged with conspiracy based on observations of her bringing supplies into 1 North Central Avenue with Defendant. 26 Hoegemann subsequently observed men frequently going into and coming out of the apartment (Tr. VI/150-151). During March of 2017, Michael Grendel, who lived in an apartment on the fourth floor at the Walden complex, also started to notice that men were frequently entering and exiting the building through the outer door (Tr. VI/160-162). Physical and electronic surveillance at Apartment 0E at the Walden Park Apartment Complex revealed activity similar to that at the other locations. Men were observed approaching the apartment, talking on their cell phones, and staying inside less than an hour before leaving (Tr. IV/18-19). Defendant was seen on surveillance cameras at the complex bringing in groceries and leaving with trash bags (Tr. IV/22); and coming and going with Asian females (Tr. IV/22-23). Patrick Minkle responded to an ad for massage on Backpage.com on March 15, 2017 (Tr. V/79-81). Because of the pictures of scantily clad Asian women in the ad, he believed that the massage would involve sex (Tr. V/81). Minkle texted the phone number in the ad and asked for pricing; he was informed that one hour would cost $160 and two hours would cost $320 (Tr. V/82-83). He made an appointment and was directed to 27 the Walden Park apartments (Tr. V/82,84). When he arrived at the address, he called the same number and an Asian woman told him to go to the back door (Tr. V/86). An Asian woman in a bathrobe met him at the backdoor and let him into the building (Tr. V/87-88). She led Minkle into an apartment on the first floor and into a bedroom (Tr. V/89-90). Minkle handed her $320 in cash and the woman texted someone; it was his understanding that he was paying for sex (Tr. V/91). Minkle took his clothes off and lay down on his stomach, and the woman massaged him for 45 minutes (Tr. V/92). The woman then told Minkle to turn over; she took her bathrobe off and they had sex with a condom that she supplied (Tr. V/92-93). After Minkle left the apartment, he was pulled over by the State Police (Tr. V/95). After initially telling the trooper that he had only received a massage, he admitted that he had paid for sex (Tr. V/95-96). Prior to March 15, Minkle had also responded to Backpage ads in North Reading and Quincy, and had similar interactions with Asian women at these locations, paying cash for massage and sex (Tr. V/96- 100). Police did not arrest him in exchange for his truthful testimony (Tr. V/101). 28 State Trooper Evan Breeding participated in a search at Apartment 0E on May 4, 2017 as the evidence officer, logging evidence as it was found (Tr. VII/60- 63; 70). When he entered the apartment, there were two Asian women there who did not speak English (Tr. VII/64, 68). The main living area of the apartment was sparsely furnished and the bedrooms had mattresses on the floor with just a few personal effects (Tr. VII/64,69). Trooper Breeding logged numerous new and used condoms, lingerie, bras, and miscellaneous clothing during the search (Tr. VII/69). Cash was also found hidden in a saltshaker in the oven (Tr. VII/69). Three ledgers were found with the names “Kiki” and “AA” at the top and a list of numbers, either 13 or 16,14 below the names; the numbers appeared to be totaled at the bottom of the papers (Tr. VII/70-73). F. Surveillance and Investigation at the Avalon Apartment complex in Quincy Hayes signed a twelve-month lease for apartment 2408 in building 2 at the Avalon apartment complex in Quincy in April 2017 (Tr. VI/189-191, 193). At the time, the complex had just opened and there were not 14 These numbers coincided with the pricing of $130 for half an hour and $160 for an hour that customers testified to. 29 many tenants yet (Tr. VI/200). After the lease was signed, Sean Dion, a maintenance worker at Avalon, noticed men who were not residents coming and going frequently from building 2 (Tr. VI/200-201). An Asian female would greet them at the front door and let them in (Tr. VI/202-203). Dion occasionally was inside building 2 and saw the men entering apartment 2408 (Tr. VI/205). During surveillance at this location, officers also observed more of the same activity as at the other locations, with men arriving and leaving within an hour (Tr. IV/25-27). A week or two after Gaetano Brancaccio visited the Quincy North Central Avenue brothel, he called the same phone number and got no answer; he looked for the same Backpage ad and did not find it but found a similar one with a different phone number (Tr. V/227). He called the new number and spoke with what sounded like the same Asian woman (Tr. V/228). This time he was directed to the Avalon apartment complex (Tr. V/229-230). A different Asian woman met him at the front door and took him to an apartment on the fourth floor (Tr. V/231-232). He paid her $160 in cash and the woman had sex with him after proving him with a condom (Tr. V/233). 30 On April 26, 2017 Marek Pelczar visited an apartment at the Avalon complex in response to an ad for a massage on Backpage.com (Tr. V/115-116). The ad had photos of young Asian women in bikinis, so he was hoping the massage would have a sexual component (Tr. V/116-117). When he called the number listed in the ad, a woman told him she would meet him at the door to let him in (Tr. V/118-119). A woman took him to an apartment with sparse furnishings on the fourth floor (Tr. V/123). He went into a bedroom with just an air mattress on the floor and gave a young Asian woman wearing a bikini $130 in cash (Tr. V/124-125). Pelczar took his clothes off and the woman massaged his back; he then turned over and the woman massaged his penis until he ejaculated (Tr. V/126). He had previously gone to the same apartment after calling the same phone number and had the same experience of paying cash for sex (Tr. V/127-129). After leaving the apartment complex the second time, Pelczar was stopped by the police (Tr. V/132). Pelczar told the police what happened at the apartment, showed them the Backpage.com ad, and gave them the phone number he used to set up the appointment (Tr. V/132-133). The phone number he gave the police, (646) 431-5713, which 31 was on the Backpage.com ad, was later determined to be Defendant’s number. Defendant listed this as her phone number on her Uber account (Tr. IV/107-108) and on her BJ’s account (Tr. IX/172-173). Biqun Xiao also identified this as Defendant’s phone number (Tr. IV/117). Police did not arrest him in exchange for his truthful testimony (Tr. V/133-134). On April 27, 2017, Venkata Koppavolu responded to a Backpage.com ad that showed a young Asian woman in underwear; a woman with an Asian accent answered his call and directed him to the Avalon apartment complex (Tr. V/176-180). A woman greeted him at the door and took him to the third or fourth floor (Tr. V/183-184). When he entered the apartment, he noticed that there was no furniture (Tr. V/186). He gave the woman $130 in cash and the woman took him to a bedroom that had only a bed and a table with a lamp (Tr. V/186, 188). After he took a shower, he laid down on the bed on his stomach and the woman massaged his back for a few minutes (Tr. V/187-189). She then told him to turn over and she massaged his penis until he ejaculated (Tr. V/190). Koppovolu left the apartment in an Uber and was stopped by the police (Tr. V/192). He told the police 32 what had happened in the apartment, showed the police the Backpage.com ad to which he had responded, and gave them the phone number that he had called (Tr. V/194). The police did not arrest him in exchange for his truthful testimony (Tr. V/195). State Trooper Loming Chan participated in a search at apartment 2408 on May 4, 2017 (Tr. VII/77,79). When officers arrived, there were two Asian women who did not speak English (Tr. VII/80-81). One of the women jumped off the fourth-floor balcony and injured herself (Tr. VII/83-84). Trooper Chen noticed that there was no furniture in the living room of the apartment (Tr. VII/84). There were numerous papers on the kitchen counter, including three ledger￾type papers like those found at the other apartments and a Lucky Star bus ticket from Boston to New York (Tr. VII/94-98). Officers also discovered cash in a paper bag and a garbage can containing used condoms and paper towels (Tr. VII/89-90). A box of unused Kimono condoms was found underneath the kitchen sink and a package of paper towels with cash hidden inside was found in the kitchen closet (Tr. VII/90-91). In the first bedroom, there was a bed, a chair, a bin next to the bed containing paper towels, cleaning 33 products, and sex lube (Tr. VII/92). The second bedroom contained the same items: a bed and chair, and the same bin (Tr. VII/92-93). Officers also found a jacket in the closet of this bedroom that had cash in the pocket (Tr. VII/93-94). G. Additional Investigation As part of the investigation State Police Sergeant Eric Gagnon executed a search warrant for a safe deposit box registered to Defendant’s son Sheng Yang at Cathay Bank in Chinatown on May 5, 2017 (Tr. VIII/79). He found $45,000 in US currency as well as some Chinese money (Tr. VIII/80).15 Defendant also rented her own safe deposit box at Cathay Bank and records indicate that she visited the deposit box 35 times between July 7, 2016 and March 2017 (Tr. IX/142, 149). On the day investigators searched the box, it contained $15,020 (Tr. IX/158). Defendant also had an account at Bank of America in which a total of $11,159.51 was deposited between July 2016 and January 2017 (Tr. IX/165, 169). Jillian Petruzziello, a financial investigator at the Attorney General’s Office, sent out almost one 15 Yang testified that his mother put $40,000 into it and he put $1,000 into it (Tr. VI/73-75). 34 hundred subpoenas to various banks and other entities (Tr. IX/71). Her first subpoena was to Backpage.com, based on ads seen by the North Reading police (Tr. IX/71-72). Investigator Petruzziello received thousands of ads from Backpage.com in response to the subpoena and, after reviewing them, she focused on twelve ads (Tr. IX/82-83). One of the ads contained a phone number that Fan had listed on her Uber account (Tr. IX/107-109). Investigator Petruzziello then sent subpoenas to Google to get subscriber information for the email addresses on the ads (Tr. IX/86-87). Two of the ads were associated with the email address [email protected] and Google certified that the user for that account was Ping Fan (Tr. IX/119-121). A few of the other ads were posted from an IP address associated with Andy Huynh(Tr. IX/134- 135). A subsequent investigation of Defendant’s bank accounts at Cathay Bank revealed a check paid from Defendant to Mr. Huynh on December 26, 2016 for $3635 (Tr. IX/144). There was also a check for $1500 paid to Cristo Wong, who owned the house at 1 North Central Street in Quincy, on September 26, 2016 (Tr. IX/152). 35 A subpoena for records from BJ’s, where Defendant had an account, showed that she bought 90 packages of paper towels, 175 cases of water, and ten packages of trash bags between July 1, 2016 and June 14, 2017 (Tr. IX/173-174). She also purchased an eight-channel security system on November 3, 2016 (Tr. IX/174). This was identified as the same security system that was in the basement of 1 North Central Avenue in Quincy (Tr. IX/175). Hayes bought two queen sized mattresses with Defendant’s BJ’s account on December 2, 2016, using a Citibank credit card (Tr. IX/176-178). ARGUMENT I. The Trial Judge Properly Denied Defendant’s Motion to Sever Her Trial from Her Co-Defendants, Where the Strong Evidence Against Her Mitigated any Prejudice Resulting From Antagonistic Defenses. Defendant claims that her motion to sever was improperly denied because she and co-defendant Hayes presented mutually antagonistic and irreconcilable defenses. Where there was strong evidence against Defendant, aside from any prejudice caused by the antagonistic defenses, the denial of the motion was not an abuse of discretion. Defendant filed a pre-trial motion to sever based on incriminating statements made to police by Hayes 36 and because she planned to blame Hayes for the criminal activity and to allege that she was not involved (R1/57-59). When the Commonwealth agreed not to admit an inculpatory statement that Hayes had given to the police, Justice Sanders denied the motion (Tr. 12/19/19 p.15). At the final pre-trial conference on January 3, 2020, Justice Sanders declined to reconsider her ruling (Tr. 1/3/20. p. 48). When criminal charges against two or more individuals “arise out of the same criminal conduct,” there is a presumption that the individuals will be tried together. Commonwealth v. Watson, 487 Mass. 156, 167-168 (2021), quoting Mass. R. Crim. P. 9(b). Trying multiple defendants together when the indictments against them arise from the same events “expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice time and energy to serve upon juries, and avoids the necessity of recalling witnesses to successive trials.” Commonwealth v. Fernandes, 487 Mass. 770, 789-790 (2021), quoting Commonwealth v. Moran, 387 Mass. 644, 658 (1982). 37 Severance is a matter within the sound discretion of the trial judge. Commonwealth v. DePina, 476 Mass. 614, 628 (2017). Mass. R. Crim. P. 9(d)(1) provides that a judge may grant a severance of defendants if it appears that joinder “is not in the best interests of justice.” Where parties present mutually antagonistic defenses, which are “irreconcilable,” and “the acceptance of one party’s defense will preclude the acquittal of the other,” the prejudice that ensues requires severance. Commonwealth v. Henley, 488 Mass. 95, 171 N.E. 3d 1085, 1114 (2021). “In order for such compelling prejudice to arise, it is not enough that the defendants are hostile to one another or that one defendant would have a better chance of acquittal if tried alone.” Commonwealth v. McAfee, 430 Mass. 483, 486 (1999). Further, where there is sufficient other evidence of guilt, even mutually antagonistic and irreconcilable defenses do not require severance. Commonwealth v. Vasquez, 462 Mass. 827, 838 (2012). Although the defendants in this case tried to place the blame on each other during closing arguments and during cross-examination of various witnesses, this would only have been marginally prejudicial in light of the strong evidence against both of them. The 38 Commonwealth presented its case against the defendants as a common scheme where each defendant acted in furtherance of the human trafficking enterprise in some way. The evidence against Defendant included the following: Biqun Xiao and Chen Weng Qing testified that Defendant was the person who instructed them to perform sexual services for a fee at the Chinatown location as well as North Reading and Quincy (Tr. IV/89-104; VIII/122-128); investigators observed Defendant bringing supplies and transporting women to the Edgewood apartment (Tr. III/93-94), to 1 North Central Avenue in Quincy (Tr. III/152, 170-172), and to the Walden Park apartment (Tr. IV/22-23); Defendant signed leases at 1 North Central Avenue (Tr. VI/84-85) and at the Walden Park apartment (Tr. VI/141-142); Defendant’s phone number was on one of the Backpage.com ads and the e-mail on two of the ads was registered under Defendant’s name (Tr. IX-107-109; 119-121). Bank accounts and safe deposit boxes under Defendant’s name also had large cash deposits during the relevant time period (Tr. IX/158, 165, 169). The Commonwealth’s closing argument laid out all of the evidence supporting the elements of the trafficking statute including how each defendant recruited, 39 transported, provided, and harbored women in this scheme (Tr. X/134-169). Cross-examination suggesting that co-defendant Hayes controlled her and closing arguments that Hayes was the mastermind of the business did not require severance in light of the strong evidence that Defendant and Hayes were both heavily involved in the trafficking scheme. Defendant’s suggestion that her right to testify was affected by the joint trial also fails to turn the tide. Co-defendant Hayes would not have been able to cross-examine Defendant on irrelevant personal issues meant to make Defendant look bad. Commonwealth v. Haggett, 79 Mass. App. Ct. 167, 175 (2011)(trial judge has discretion to limit cross-examination when it touches on matter of “tangential materiality”). Moreover, if co-defendant Hayes cross-examined Defendant about the trafficking scheme, he would potentially open the door to incriminating evidence about his own role in the scheme. The circumstances of this case stand in contrast to Commonwealth v. Moran, 387 Mass. at 645-646. In that case, Moran and a co-defendant got into a confrontation with the intoxicated victim outside a 40 bar. One or both of the defendants took the victim’s wallet and hit the victim in the head several times; they left the victim in his truck where he was later asphyxiated on his own vomit. Id. Both were convicted of felony murder. Each defendant testified and essentially blamed the other for the killing and the Commonwealth's case tended to prove “that at least one defendant, but not necessarily both of them, robbed and killed [the victim]” and therefore the “only realistic escape for either defendant was to blame the other.” Id. at 659. In this case, any prejudice resulting from the antagonistic defenses was minimal. Severance was not required where the jury was warranted in finding Defendant guilty based on strong evidence linking her to the crimes. Commonwealth v. Stewart, 450 Mass. 25, 31 (2007). II. The Trial Court Properly Excluded Grand Jury Testimony of Unavailable Witnesses, Where Defendant Did Not Fulfill the Evidentiary Requirements for the Admission of Such Testimony. Defendant alleges that the trial judge improperly excluded the grand jury testimony of two unavailable women found at apartment 103 at the Edgewood complex when the search warrants were executed and thereby violated her right to present a defense. A total of 41 eight women who were found at the brothels when the search warrants were executed on May 4, 2017 testified at the grand jury the following day. At trial, one of these women and Biqun Xiao testified and Defendant sought to introduce the testimony of two other women who said that they gave massages but did not participate in sex for a fee and that Defendant did not instruct them to do so. (R2/11-13, 19-20, 22-25, 30-31, 53-54, 60). Defendant preserved this claim by objecting when the judge made her ruling and therefore the ruling should be reviewed for prejudicial error. Commonwealth v. Brown, 477 Mass. 805, 820 (2017). This Court should not disturb the trial judge's decision absent a clear error of judgment in weighing the relevant factors. Id. Where Defendant failed to meet one of the requirements for the admission of such evidence, this claim should be denied. A prior recorded statement of an unavailable witness or declarant is admissible when it is offered against a party who had a reasonable opportunity and similar motivation on the prior occasion for cross￾examination of the declarant. Commonwealth v. Clemente, 452 Mass. 295, 313 (2008), citing Fed. R. 42 Evid. 804(b)(1)(B)(which has the same requirements for the former testimony exception to the hearsay rule). “A declarant is considered to be unavailable as a witness if . . . (5) the declarant is absent from the trial or hearing and the statement’s proponent has not been able to procure the declarant’s attendance by process or other reasonable means.” Mass. G. Evid. 804(a)(5). Defendant claims that the witnesses were unavailable based only on the fact that the Commonwealth was unable to locate them. She does not provide any evidence that she was unable to procure their attendance aside from co-defendant Hayes’ counsel’s statements to the court that he could not find addresses associated with them (Tr. X/61). But even if the witnesses were deemed unavailable under the rule, Defendant has failed to show that the Commonwealth had a similar motivation for cross￾examination during the grand jury proceedings. In Commonwealth v. Clemente, supra, the Supreme Judicial Court (“SJC”) considered the question of whether grand jury testimony of a witness who later becomes unavailable may be used against the Commonwealth at trial. The court found that the prior-recorded- 43 testimony exception to the rule against admitting hearsay is not generally applicable to grand jury testimony grand jury because the testimony of such witnesses is usually far more limited than at trial and is often presented without an effort to corroborate or discredit it. Id. at 315. “[T]he Commonwealth’s objective is to present enough evidence to obtain an indictment, and not to develop its case as fully as possible.” Id. at 314. Therefore, the burden is on a defendant to establish that the Commonwealth had an opportunity and similar motive to develop fully a (now unavailable) witness’s testimony at the grand jury. Id. at 315. “It is likely to be very difficult for defendants offering grand jury testimony to satisfy the ‘opportunity and similar motive’ test.” Id. at 315, quoting United States v. Omar, 104 F. 3d 519, 523 (1st Cir. 1997). Defendant’s brief lacks any convincing argument that the Commonwealth had a similar opportunity and motive to develop the testimony of the now unavailable witnesses as required by Massachusetts law. See Mass. G. Evid. § 804(b)(1). The Commonwealth had been investigating the case for a few months but had very limited information about these particular witnesses 44 at the time they testified before the grand jury. The grand jury was used to preserve their testimony and to give the Commonwealth time to build its case. This case stands in contrast to Commonwealth v. Gray, 463 Mass. 731 (2012), in which the defendant sought to admit grand jury testimony to impeach the hearsay identification evidence of an unavailable witness. The witness (Jamison) had identified a person other than the defendant during his grand jury testimony and later asserted his Fifth Amendment privilege. Id. at 736, 741. At trial two other witnesses testified to Jamison’s identification of the defendant as the shooter. Id. at 741. The SJC held that the grand jury testimony was improperly excluded not as substantive evidence but as proper impeachment evidence. Id. at 746-747. In this case, the grand jury testimony at issue was not admissible where it did not impeach any of the witnesses’ testimony. The evidence that men were coming to the various locations and paying for sex was strong and would not have been affected by the prior testimony of two women who alleged that they did not engage in such activity. Moreover, at such an early point in their investigation, the Commonwealth would 45 not have had reason to discredit the testimony of these witnesses. Therefore, any error in failing to admit the grand jury testimony was harmless. The judge properly excluded the grand jury testimony. III. Testimony About A Young Asian Woman In A Bathrobe In The Woods Outside The Edgewood Apartments Was Properly Admitted Where It Was Relevant And Not Unduly Prejudicial. Defendant claims that the trial judge improperly permitted a witness to testify that she observed a young Asian woman dressed in a bathrobe coming out of the woods behind the Edgewood Apartments at 10 PM on April 11, 2017 and thereby violated her due process rights. This claim should be denied where the evidence was relevant to the Commonwealth’s case and was not unduly prejudicial. “Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action.” Commonwealth v. Mason, 485 Mass. 520, 533 (2020), quoting Mass. G. Evid. § 401 (2020). “Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge’s broad discretion and will not be disturbed absent palpable error.” 46 Commonwealth v. Keown, 478 Mass. 232, 242 (2017), quoting Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). The Commonwealth initially sought to admit the recording of Ms. Engrem’s 911 call as an excited utterance (R1/68-72). Justice Sanders initially reserved decision on the recording of the 911 call but agreed that Ms. Engrem’s testimony about the circumstances that gave rise to the call was relevant to the Commonwealth’s case. (Tr. 1/3/20 p. 65). Later in the trial, after further argument, Justice Sanders rejected the excited utterance argument and denied the motion in limine as to the admissibility of the 911 call itself (Tr. VIII/133). She affirmed her decision that Ms. Engrem could testify, finding that the probative value of the evidence outweighed its prejudicial effect. (Tr. VIII/140). This assessment was proper where it involved another observation made by a disinterested third party of a young Asian woman in a bathrobe in the immediate vicinity of the Edgewood apartment brothel in the evening (Tr. 1/3/20 pp. 63-65). The jury had already heard about the observations made by investigators and neighbors about young Asian women meeting men at the door of Building 47 104 (Tr. III/48-49; Tr. V/291, 293)) and testimony from men who met with these women inside Apartment 104. (Tr. VIII/44-45; Tr. VI/174, 175). The fact that the evidence was cumulative of other admissible evidence reduced the risk of any prejudicial effect. Commonwealth v. Pena, 485 Mass. 378, 386 (2020). Defendant’s claim that the admission of this evidence violated his due process rights must also be denied where admissible evidence does not violate due process. Commonwealth v. Given, 441 Mass. 741, 746-747 (2004) (evidence which is admissible under standard evidentiary rules is presumptively reliable under due process clause). Defendant correctly notes that coercion is not a required element of human trafficking, but despite this, Defendant made a point of verifying during cross-examination of every man who had paid for sex at the brothels that the women engaged in the sex acts voluntarily and were not held against their will. In light of this, the Commonwealth was entitled to show the jury a fuller picture of the trafficking scheme and to counter Defendant’s inference that the women were merely making a living. In her closing argument, the prosecutor properly commented on the admissible 48 evidence suggesting that the woman at the side of the road clearly wanted to leave the area and that the other woman who testified about selling sex was obviously uncomfortable while testifying. Commonwealth v. Rutherford, 476 Mass. 639, 644 (2017)(prosecutor entitled to respond to defendant’s argument).Defendant did not object to this part of the prosecutor’s closing, suggesting that the alleged error was not as prejudicial as he now makes it out to be. Commonwealth v. Lucien, 440 Mass. 658, 664-665 (2004). IV. The Trial Judge Properly Instructed the Jury that the Commonwealth Did Not Have to Prove the Existence of a Specific Victim in Order to Prove Human Trafficking. Defendant lastly claims that she was entitled to an instruction that required the jury to unanimously agree on a specific victim at each location. As Defendant herself points out, she objected to the judge’s refusal to give such an instruction but did not object to the instruction the judge actually gave (D.Br. at 54). This court should therefore review this claim to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Buttimer, 482 Mass. 754, 774 (2019). Where the requested instruction was based on an improper interpretation of the human trafficking 49 statute, there was no error and the claim should be denied. Pursuant to G.L. c. 265, § 50, the Commonwealth must prove Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, another person to engage in commercial sexual activity, a sexually￾explicit performance or the production of unlawful pornography in violation of chapter 272, or causes a person to engage in commercial sexual activity, a sexually￾explicit performance or the production of unlawful pornography in violation of said chapter 272; or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude . . . . Defendant alleges that the phrase “another person” requires the Commonwealth to identify a named victim. Neither the statute itself nor the caselaw interpreting the statute supports this claim. See Wallace W. v. Commonwealth, 482 Mass. 789, 793 (2019)(citation omitted)(“our respect for the Legislature’s considered judgment dictates that we interpret the statute to be sensible, rejecting unreasonable interpretations unless the clear meaning of the language requires such an interpretation.”); Commonwealth v. Mendes, 457 Mass. 805, 810-811 50 (2010)(citation omitted)(“Where the language of a statute is clear, courts must give effect to its plain and ordinary meaning and need not look beyond the words of the statute itself.”) The goal of the human trafficking statute, enacted in 2011, was to target those profiting from commercial sex, not those performing the sex acts. In analyzing the legislative intent behind the statute in Commonwealth v. Dabney, 478 Mass. 839, 853 (2018), the SJC found that “the Legislature [] intended to change the focus of police and prosecutors from targeting prostitutes to going after the men who pay for sex with them and the pimps who profit from the transactions.” See also Commonwealth v. McGhee, 472 Mass. 405, 415 (2015)(“[t]he clear and deliberate focus of the statute [was] the intent of the perpetrator, not the means used by the perpetrator to accomplish his or her intent”). This intended purpose does not support the idea that a victim must be identified, but only that a defendant must have assisted in the crime of trafficking another person in one of the enumerated ways. Defendant’s reliance on Commonwealth v. Pompilus, 98 Mass. App. Ct. 1120, 2020 WL 6840798 (2020) (former 51 Rule 1:28 decision) is also misplaced. In that case, the defendant alleged that his convictions were part of an ongoing scheme and that separate convictions based on individual victims were duplicative. 2020 WL 6840798 at *4. This court rejected that argument and held that the trafficking statute punishes conduct against each individual victim. This opinion does not stand for the requirement that each victim be named. Although many trafficking cases will have identified victims, it is likely that some, like this one, will have victims who are no longer available at the time of trial. Surely the Legislature did not intend for defendants in such cases to escape prosecution. In fact, since the Commonwealth chose to seek indictments based on each location rather than each victim, Defendant was subject to fewer indictments than she could have been. Surveillance of the brothel sites, and the testimony of Biqun Xiao, CQ, and the men who visited each one of the brothels supported the element that “another person” was selling sex for a fee. Other evidence including bank records and evidence obtained pursuant to search warrants clearly showed that Defendant recruited, enticed, harbored, and 52 transported these women for purposes of sex trafficking. Justice Sanders properly denied the requested instruction where it was not based on the statutory language or caselaw interpreting the statute. Where none of the claims raised by Defendant are meritorious, the claim that the cumulative effect of the errors requires reversal should also be rejected. CONCLUSION For the foregoing reasons, this Court should affirm the convictions. Respectfully submitted, MAURA HEALEY ATTORNEY GENERAL /s/ Susanne Reardon Susanne Reardon Assistant Attorney General Criminal Bureau One Ashburton Place Boston, Massachusetts 02108 [email protected] (617) 963-2832 BBO # 561669 Date: September 10, 2021 53 CERTIFICATE OF COMPLIANCE I, , hereby certify that the foregoing brief complies with all of the rules of court that pertain to the filing of briefs, including, but not limited to, the requirements imposed by Rules 16 and 20 of the Massachusetts Rules of Appellate Procedure. The brief complies with the applicable length limit in Rule 20 because it is 46 pages long (not including the portions of the brief excluded under Rule 20) in 12- point Courier New font, which prints approximately 10 characters per inch. __/s/ Susanne Reardon_____ Susanne Reardon BBO No. 561669 Assistant Attorney General CERTIFICATE OF SERVICE I hereby certify that on September 10, 2021 I filed with the Appeals Court and served the attached brief of the Commonwealth in Commonwealth v. Pingxia Fan, No. 2020-P-1329, through the electronic means provided by the clerk on the following registered users: David Osborne [email protected] /s/ Susanne Reardon_________ Susanne Reardon Assistant Attorney General One Ashburton Place Boston, MA 02108 [email protected] (617) 963-2832 54 STATUTORY ADDENDUM G.L. c. 265, § 50................................... 55 G.L. c. 272, § 7.................................... 56 G.L. c. 272, § 24................................... 57 G.L. c. 274, § 7.................................... 57 Mass. R. Crim. P. 9(b).............................. 58 Mass. G. Evid. § 401 ............................... 59 Mass. G. Evid. § 804................................ 60 Fed. R. Evid. 804................................... 61 55 MASSACHUSETTS GENERAL LAWS CHAPTER 265 CRIMES AGAINST THE PERSON SECTION 50 Trafficking of persons for sexual servitude; trafficking of persons under 18 years for sexual servitude; trafficking by business entities; penalties; tort actions brought by victims (a) Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, another person to engage in commercial sexual activity, a sexually-explicit performance or the production of unlawful pornography in violation of chapter 272, or causes a person to engage in commercial sexual activity, a sexually-explicit performance or the production of unlawful pornography in violation of said chapter 272; or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude and shall be punished by imprisonment in the state prison for not less than 5 years but not more than 20 years and by a fine of not more than $25,000. Such sentence shall not be reduced to less than 5 years, or suspended, nor shall any person convicted under this section be eligible for probation, parole, work release or furlough or receive any deduction from his sentence for good conduct until he shall have served 5 years of such sentence. No prosecution commenced under this section shall be continued without a finding or placed on file. (b) Whoever commits the crime of trafficking of persons for sexual servitude upon a person under 18 years of age shall be punished by imprisonment in the state prison for life or for any term of years, but not less than 5 years. No person convicted under this subsection shall be eligible for probation, parole, 56 work release or furlough or receive any deduction from his sentence for good conduct until he shall have served 5 years of such sentence. (c) A business entity that commits trafficking of persons for sexual servitude shall be punished by a fine of not more than $1,000,000. (d) A victim of subsection (a) may bring an action in tort in the superior court in any county wherein a violation of subsection (a) occurred, where the plaintiff resides or where the defendant resides or has a place of business. Any business entity that knowingly aids or is a joint venturer in trafficking of persons for sexual servitude shall be civilly liable for an offense under this section. CHAPTER 272 CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER SECTION 7 Support from, or sharing, earnings of prostitute Whoever, knowing a person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of his prostitution, from moneys loaned, advanced to or charged against him by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or shall share in such earnings, proceeds or moneys, shall be punished by imprisonment in the state prison for a period of five years and by a fine of five thousand dollars. The sentence of imprisonment imposed under this section shall not be reduced to less than two years, nor suspended, nor shall any person convicted under this section be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct or otherwise until he shall have served two years of such sentence. Prosecutions commenced under this section shall not be continued without a finding nor placed on file. 57 SECTION 24 Keeping house of ill fame Whoever keeps a house of ill fame which is resorted to for prostitution or lewdness shall be punished by imprisonment for not more than two years. CHAPTER 274 FELONIES, ACCESSORIES AND ATTEMPTS TO COMMIT CRIMES SECTION 7 Conspiracy; penalties Any person who commits the crime of conspiracy shall be punished as follows: First, if the purpose of the conspiracy or any of the means for achieving the purpose of the conspiracy is a felony punishable by death or imprisonment for life, by a fine of not more than ten thousand dollars or by imprisonment in the state prison for not more than twenty years or in jail for not more than two and one half years, or by both such fine and imprisonment. Second, if clause first does not apply and the purpose of the conspiracy or any of the means for achieving the purpose of the conspiracy is a felony punishable by imprisonment in the state prison for a maximum period exceeding ten years, by a fine of not more than ten thousand dollars or by imprisonment in the state prison for not more than ten years or in jail for not more than two and one half years, or by both such fine and imprisonment. Third, if clauses first and second do not apply and the purpose of the conspiracy or any of the means for achieving the purpose of the conspiracy is a felony punishable by imprisonment in the state prison for not more than ten years, by a fine of not more than five thousand dollars or by imprisonment in the state prison for not more than five years or in jail for not more than two and one half years, or by both such fine and imprisonment. Fourth, if clauses first through third do not apply and the purpose of the conspiracy or any of the means for achieving the purpose of the conspiracy is a crime, by a fine of not more than two thousand dollars 58 or by imprisonment in jail for not more than two and one half years, or both. If a person is convicted of a crime of conspiracy for which crime the penalty is expressly set forth in any other section of the General Laws, the provisions of this section shall not apply to said crime and the penalty therefor shall be imposed pursuant to the provisions of such other section. MASSACHUSETTS RULES OF CRIMINAL PROCEDURE RULE 9 Joinder of Offenses or Defendants (Applicable to District Court and Superior Court) (a) Joinder of Offenses. (1) Related Offenses. Two or more offenses are related offenses if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan. (2) Joinder of Related Offenses in Complaint or Indictment. If two or more related offenses are of the same or similar character, they may be charged in the same indictment or complaint, with each offense stated in a separate count. (3) Joinder of Related Offenses for Trial. If a defendant is charged with two or more related offenses, either party may move for joinder of such charges. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice. (4) Joinder of Unrelated Offenses. Upon the written motion of a defendant, or with his written consent, the trial judge may join for trial two or more charges of unrelated offenses upon a showing that failure to try the charges together would constitute harassment or unduly consume the time or resources of the parties. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice. (b) Joinder of Defendants. Two or more defendants may be joined in the same indictment or complaint if the charges against them arise out of the same criminal 59 conduct or episode or out of a course of criminal conduct or series of criminal episodes so connected as to constitute parts of a single scheme, plan, conspiracy or joint enterprise. The defendants may be charged separately or together in one or more counts; all of the defendants need not be charged in each count. (c) Consolidation of Offenses or Defendants on Motion of Court. The trial judge may order two or more indictments or complaints to be tried together if the offenses and the defendants, if more than one, could have been joined in a single indictment or complaint. The procedure shall be the same as if the prosecution were under a single indictment or complaint. (d) Relief From Prejudicial Joinder. (1) In General. If it appears that a joinder of offenses or of defendants is not in the best interests of justice, the judge may upon his own motion or the motion of either party order an election of separate trials of counts, grant a severance of defendants, or provide whatever other relief justice may require. (2) Motion by the Defendant. A motion of the defendant for relief from prejudicial joinder shall be in writing and made before trial and shall be supported by an affidavit setting forth the grounds upon which any alleged prejudice rests, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known. (e) Conspiracy. An indictment or complaint for conspiracy to commit a substantive offense shall not be tried simultaneously with an indictment or complaint for the commission of the substantive offense, unless the defendant moves for joinder of such charges pursuant to subdivision (a) of this rule. MASSACHUSETTS GUIDE TO EVIDENCE SECTION 401 Test for Relevant Evidence Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and 60 (b) the fact is of consequence in determining the action. SECTION 804 Hearsay Exceptions; Declarant Unavailable (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant (1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies; (2) refuses to testify [this criterion not recognized]; (3) testifies to not remembering the subject matter [this criterion not recognized]; (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statement's proponent has not been able to procure the declarant's attendance by process or other reasonable means. But this Subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying. (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Prior Recorded Testimony. Testimony that (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one, and (B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination. 61 Federal Rule of Evidence 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as a Witness (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure: (A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or (B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4). But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying. (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Former Testimony. Testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had--an opportunity and similar motive to develop it by direct, cross-, or redirect examination. 62