Commonwealth v. Hayes

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20-P-1108 Appeals Court
COMMONWEALTH vs. TIMOTHY HAYES.
No. 20-P-1108.
Suffolk. December 13, 2022. - March 28, 2023.
Present: Green, C.J., Meade, & Blake, JJ.
Trafficking. Prostitution. Deriving Support from Prostitution.
Money Laundering. Joint Enterprise. Evidence, Joint
enterprise. Constitutional Law, Probable cause. Search
and Seizure, Probable cause. Probable Cause. Cellular
Telephone.
Indictments found and returned in the Superior Court
Department on June 29, July 13, and July 18 2017.
The cases were tried before Janet L. Sanders, J.
Megan A. Siddall for the defendant.
Nicole M. Nixon, Assistant Attorney General, for the
Commonwealth.
GREEN, C.J. Following a jury trial in the Superior Court,
the defendant and a codefendant, Pingxia Fan,1 were convicted on
1 Both defendants appealed from their convictions. The
Supreme Judicial Court transferred Fan's appeal to that court on
2
various charges arising from their operation of a series of
brothels in North Reading, Quincy, Boston, and Cambridge.2 On
appeal, the defendant contends that the evidence was
insufficient to support his convictions, and that the
information provided in support of a search warrant application
was inadequate to establish a nexus between the alleged crimes
and his home and cell phone.3 Discerning no cause in the
defendant's various claims to disturb the judgments, we affirm.
its own motion, and the defendant's appeal in the present case
was stayed pending that review. In Fan's appeal, the Supreme
Judicial Court affirmed her convictions, disposing of several
claims raised by the defendant in this appeal: (1) that the
Commonwealth was required to prove the identity of a specific
victim; and (2) that the trial judge erroneously (a) excluded
grand jury testimony of two witnesses who were unavailable at
trial, and (b) admitted evidence describing a distraught
unidentified woman (inferably a human trafficking victim)
outside the North Reading location. See Commonwealth v. Pingxia
Fan, 490 Mass. 433 (2022). We accordingly do not consider those
claims in the present appeal. A third codefendant, Simon Lin,
was also tried and acquitted of a single count of human
trafficking in the same trial.
2 The charges included multiple counts of trafficking of
persons for sexual servitude, see G. L. c. 265, § 50 (a);
deriving support from prostitution, see G. L. c. 272, § 7;
keeping a house of ill fame, see G. L. c. 272, § 24; and money
laundering, see G. L. c. 267A, § 2.
3 Though the defendant mentions the search of his vehicle in
the caption in his brief to the section discussing the search
warrant, his brief does not otherwise offer any argument
challenging the searches of either his vehicle or his bank
records. We "need not pass upon [these] questions or issues" as
they are "not argued in the brief." See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
3
Background. We summarize the facts the jury could have
found, viewing the evidence in the light most favorable to the
Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-
677 (1979). In January 2017, law enforcement began to
investigate five different residences4 located in North Reading,
Boston, Quincy, and Cambridge where they believed illegal sexual
services were being provided. Police found the apartments
through advertisements for massage services on the website
Backpage.com (Backpage),5 and then contacted the leasing offices
for those apartments. The defendant's name was on the rental
agreements for the North Reading and Cambridge apartments and
one of the Quincy apartments, and the defendant signed as a
witness to Fan's signature on the rental agreement at the other
4 Four of the five locations were apartments; the location
in North Quincy was a single-family house. For convenient
reference, we refer hereafter to the locations collectively as
"apartments."
5 "'Backpage.com (Backpage) [was] a website that allow[ed]
individuals to advertise a variety of products and services
through user-generated posts.' Commonwealth v. Lowery, 487
Mass. 851, 853 n.1 (2021). Although Backpage was used to
advertise many legal goods and services, it became well known
for hosting "80 percent of the online advertising for illegal
commercial sex in the United States." See Citron & Wittes, The
Problem Isn't Just Backpage: Revising Section 230 Immunity, 2
Geo. L. Tech. Rev. 453, 453 (2018). See also Doe No. 1 v.
Backpage.com, LLC, 817 F.3d 12, 16 (1st Cir. 2016), cert.
denied, 137 S. Ct. 622 (2017); Backpage.com, LLC v. Dart, 807
F.3d 229, 230 (7th Cir. 2015), cert. denied, 137 S. Ct. 46
(2016)." Pingxia Fan, 490 Mass. at 436 n.2.
4
Quincy apartment.6 The defendant also paid monthly rent for each
of those apartments, using checks that included his name and
home address.7
On January 2, 2017, police stopped the defendant after
observing him make an illegal U-turn outside the North Reading
apartment. The defendant told the officers that he was coming
from his home in Gloucester to his secondary residence at the
North Reading apartment to check the mail and empty the trash in
the Dumpster by the apartment building. In the Dumpster where
the defendant said he had left trash from the apartment,
officers found one black trash bag on top of a pile of cardboard
boxes. The officers opened the trash bag and found used
condoms, condom packaging with the brand name "Kimono," and
small cards explaining "How to use a condom" in multiple
languages.
For the next three months, police surveilled each apartment
location. They observed the defendant at the locations in North
Reading, Boston, North Quincy, and Cambridge regularly taking
out the trash from the apartments and bringing groceries and
6 The fifth apartment, located in Boston, was Fan's
residence in addition to serving as one of the brothel
locations.
7 Fan initially paid the rent for one of the Quincy
apartments, but after the first few months, the defendant paid
the rent and utility payments for that apartment.
5
other supplies into each. Police frequently observed the
defendant visit each location, where upon arrival he brought
bags of supplies inside, stayed for a brief time, and then left
with bags of trash. Police also frequently observed men visit
the apartments, enter when young Asian women answered the door,
and leave within an hour thereafter. Police interviewed several
of the men after they left the apartments. The men admitted
that they had gone to the apartments in response to an
advertisement for massage services on Backpage, that they had
given money to the women in the apartments, and that after a
brief massage they received sexual services. The men also
explained that, though the advertisements were for massage
services, they understood and expected that they would receive
sexual services.
Officers obtained and simultaneously executed a warrant to
search the five locations, the defendant's home in Gloucester,
the defendant's vehicle, various bank accounts and safe deposit
boxes belonging to the defendant and Fan,8 and the defendant's
cell phone. In each of the apartment locations, officers found
similar scenes: sparse furnishings, mattresses on the floor,
8 In addition to the records subpoenaed during the
investigation and relied on in the search warrant affidavit, the
search subsequent to the warrant revealed a safe deposit box
bearing the defendant's name and home address and containing
$10,000 in cash.
6
supplies of Kimono-brand condoms and paper towels, and cash. At
several of the apartments, officers found papers, including
utility bills with the defendant's name, ledgers with the names
"Kiki" and "AA" and a list of numbers that corresponded to the
prices the massage customers testified to having paid, and, at
the Boston location, a bank statement bearing the defendant's
name and a printout of a Backpage advertisement.
In the defendant's Gloucester home, officers found cash,
ledgers with the names "Kiki," "Angel," and "EE" alongside
columns of numbers, and a cardboard box full of condoms. A safe
in the defendant's bedroom contained bank statements with the
defendant's name that listed checks paid for the North Reading
and Quincy apartments, utility bills with the defendant's name,
and documents (including bank statements and utility bills) and
a driver's license with Fan's name. The defendant was arrested
and his cell phone seized from his person. A digital evidence
analyst extracted data from the defendant's cell phone,
including numerous text messages and telephone calls between the
defendant and an "Amy E";9 e-mail messages regarding the rental
of the apartments in North Reading and Quincy; a saved password
for a Backpage account; and an Internet history including
searches for apartment rental websites and Backpage. The cell
9 There was evidence that Fan was sometimes called "Amy."
7
phone also contained a video of two women in bathrobes speaking
to each other in Chinese that was recorded near one of the
Quincy apartments, and a video of an Asian woman in lingerie
that was recorded near the Boston apartment.
Additionally, a search of the defendant's financial records
obtained by subpoena revealed purchases of mattresses, a charge
from Backpage, utility payments for the North Reading apartment,
and twenty-seven cash deposits totaling $48,110 from 2016 to
2017 with no indication of payments to the defendant from an
employer or payroll account.
Discussion. 1. Sufficiency of the evidence. The
defendant challenges the sufficiency of the evidence in two
respects.10 First, he contends that the evidence did not
establish that he knew of the criminal enterprise. He also
contends that the evidence did not establish that he derived
10Each of the charged offenses includes an element of
knowledge. General Laws c. 265, § 50 (a), states that
"[w]hoever knowingly . . . subjects . . . , recruits, entices,
harbors, transports, provides or obtains by any means . . .
another person to engage in commercial sexual activity . . .
shall be guilty of the crime of trafficking of persons for
sexual servitude." General Laws c. 272, § 24, prohibits
"keep[ing] a house of ill fame which is resorted to for
prostitution." General Laws c. 272, § 7, prohibits anyone,
"knowing a person to be a prostitute, [from] liv[ing] or
deriv[ing] support . . . from the earnings or proceeds of his
prostitution." General Laws c. 267A, § 2, prohibits
"transport[ing] or possess[ing] a monetary instrument or other
property that was derived from criminal activity with the intent
to promote, carry on or facilitate criminal activity."
8
support from it. In evaluating a challenge to the sufficiency
of the evidence, we consider whether, "after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt" (citation omitted).
Latimore, 378 Mass. at 677. A fact finder may make reasonable
inferences from the evidence, but a conviction "may not rest on
the piling of inference upon inference or on conjecture and
speculation" (citation omitted). Commonwealth v. Colas, 486
Mass. 831, 836 (2021).
The Commonwealth presented evidence supporting a conclusion
that the defendant had worked together with Fan in a human
trafficking scheme since 2016, when a Backpage advertisement
invited women interested in working as "female companions" to
call the defendant's cell phone number.11 The defendant also
made at least one payment to Backpage, and saved a Backpage
account password on his cell phone. The defendant's repeated
engagement with Backpage casts substantial doubt on his claim
that he was unaware of the advertisements posted there. There
was also evidence that those advertisements included photographs
of scantily clad or topless young Asian women, and offered "NURU
11The advertisement also included an e-mail address that
was registered to Fan.
9
[m]assage," "SHOWER TOGETHER," "KISSING [g]irlfriend package,"
"[s]exy [l]ingerie," and "[e]verything . . . naked." A rational
person viewing the advertisements would infer that services
other than ordinary massage were being offered. Indeed, the
customers who spoke to the police after leaving the apartments
testified at trial that, though the advertisements did not
explicitly promise sexual activity, they expected to receive
sexual services during their visits.
Surveillance showed that the defendant frequently visited
the apartments that he rented, both alone and accompanied by
Fan, to bring in supplies and take out trash. When the
defendant told the police he had dropped trash in a Dumpster,
the police opened the only trash bag in that Dumpster and found
Kimono-brand condoms and packaging and other evidence of sexual
trafficking. Kimono-brand condoms were also found inside the
apartments and a cardboard box full of condoms was found at the
defendant's home in Gloucester. Each apartment was sparsely
furnished, except for mattresses on the floor, and held few
indicia of residential life; the supplies stocked in each
consisted mainly of condoms and similar items indicating sexual
activity, and cash. The defendant would have seen these items
and observed the condition of each apartment, which are far more
consistent with sexual activity than with ordinary apartment
living or massage services, every time he visited them.
10
The inference that the defendant knew of the sexual
services operation is bolstered by the evidence found at his
Gloucester home and on his cell phone. The defendant kept
customer ledgers similar to those found in the apartments,
condoms, and quantities of cash at his home. His cell phone
contained videos of scantily clad Asian women at multiple
locations coinciding with the apartment locations. Finally, the
large amounts of cash deposited into the defendant's bank
account beginning in 2016, with no indication of employment or
any other source of income, supported the inference that the
defendant was profiting from the sexual services operation.
Neither mere presence at the scene of a crime nor
association with a person involved in the crime is sufficient to
convict a defendant under a joint venture theory. See
Commonwealth v. Silvia, 97 Mass. App. Ct. 151, 155 (2020);
Commonwealth v. Meehan, 33 Mass. App. Ct. 262, 265 (1992). The
evidence in the present case, however, rebuts the defendant's
claim that he was unaware of commercial sexual activity within
the apartments or that he was not involved in its support. The
defendant's activities, both on Backpage and at the apartments,
along with the evidence found in the defendant's possession at
his home and on his cell phone, were more than sufficient for a
reasonable jury to infer that the defendant was both aware of
and actively engaged in the illegal sexual services operation in
11
concert with Fan. See Commonwealth v. Merry, 453 Mass. 653, 661
(2009) (inferences need only be reasonable, not necessary or
inescapable). See also Commonwealth v. Mullane, 445 Mass. 702,
715-716 (2006).
2. Searches of the defendant's house and cell phone. The
defendant separately claims that the search of his home was not
supported by probable cause, and therefore violated the Fourth
and Fourteenth Amendments to the United States Constitution,
art. 14 of the Massachusetts Declaration of Rights, and G. L.
c. 276, § 1. When reviewing the sufficiency of a warrant
application, our "inquiry begins and ends with the 'four corners
of the affidavit' that supported it" (citation omitted).
Commonwealth v. Escalera, 462 Mass. 636, 638 (2012). We
consider the affidavit as a whole and in a commonsense manner,
and give "considerable deference to the magistrate's
determination [of probable cause]" (citation omitted).
Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 486 (2020).
See Commonwealth v. McDermott, 448 Mass. 750, 767, cert. denied,
552 U.S. 910 (2007). A search warrant is supported by probable
cause when the facts in the accompanying affidavit provide a
"substantial basis to conclude that the items sought are related
to the criminal activity under investigation, and that they
reasonably may be expected to be located in the place to be
searched at the time the search warrant issues" (quotations and
12
citations omitted). Commonwealth v. Snow, 486 Mass. 582, 586
(2021). A nexus between the items sought and the place to be
searched need not be based on direct observations, but may be
based on "the type of crime, the nature of the . . . items
[sought], the extent of the suspect's opportunity for
concealment, and normal inferences as to where a criminal would
be likely to [keep the items sought]" (citation omitted).
Commonwealth v. Fernandes, 485 Mass. 172, 184 (2020), cert.
denied, 141 S. Ct. 1111 (2021). An affidavit need not show that
"evidence more likely than not will be found"; it must provide
"merely that quantum of evidence from which the magistrate can
conclude, applying common experience and reasonable inferences,
that items relevant to apprehension or conviction are reasonably
likely to be found at the location." Commonwealth v. Murphy, 95
Mass. App. Ct. 504, 509 (2019). The fact that the place to be
searched is the defendant's home is not sufficient by itself to
establish that evidence of a crime will be found there; the
affidavit must contain "particularized information based on
police surveillance or otherwise, that would permit a reasonable
inference that the defendant likely kept [evidence of a crime]
in the home" (quotation and citation omitted). Escalera, supra
at 643.
Based on the defendant's extensive role in, and sprawling
nature of, the operation, involving multiple participants, five
13
locations across four cities, multiple vehicles used to
transport multiple victims, and multiple banks accounts, the
judge who issued the warrant to search the defendant's home was
justified in doing so. See Andre-Fields, 98 Mass. App. Ct. at
484 ("the type of crime involved, and the apparent scope of the
operation, permitted the inference that [the defendant] would
maintain records of his . . . business" at his apartment).
In Andre-Fields, we held that there was probable cause to
search the defendant's residence where the search warrant
affidavit allowed the inference that the defendant regularly
stayed at his apartment and used it as a home base for his
ongoing illegal operation. See Andre-Fields, 98 Mass. App. Ct.
at 482-483.
In the present case, it was similarly reasonable to expect
that evidence of the crimes would be found in the defendant's
home. Police surveilled the defendant, Fan, and each of the
apartments used as brothels for months. As described in the
preceding section, based on the defendant's role in leasing and
paying rent and utilities for the apartments, his frequent and
large bank deposits totaling nearly $50,000 in cash (with no
other identifiable source of income), and his repeated visits to
each location, bringing supplies and removing trash, it was
reasonable for the warrant judge to conclude that the defendant
played a central role in the human trafficking scheme. Police
14
located the defendant's home from surveillance of the
defendant's vehicle, as well as the information used by the
defendant for the bank accounts into which he deposited cash
proceeds inferably from the business, and from which he paid
rent and utilities for the apartments used in the business.
In the affidavit supporting the application for a search
warrant, the affiant relied on his training and experience to
state that persons running illegal businesses often store
business records (including papers, documents, and various
computer-generated records) and large amounts of cash in their
homes or vehicles, and on their cell phones and computers.12
Taking as a whole the information in the affidavit, it was
reasonable to expect that cash proceeds of the business, bank
and other financial records inferably related to the business,
and leases and utility bills related to the five apartments
housing the business's operations would probably be found at the
defendant's house, rather than within any one or more of the
individual apartments, particularly since the apartments were
spread across a large area, contained very few furnishings other
than mattresses and items used for sexual activity, and saw a
steady stream of patrons going in and out of the apartments
12Of course such statements, standing alone, would not
establish probable cause, but here, as discussed infra, there
was more.
15
after brief encounters. Instead, the need to coordinate the
operation of multiple locations, employ women to work at each
location, and supply each location with items to facilitate
commercial sex supported the inference that the defendant's
human trafficking operation would be coordinated from a single
location, separated from customer traffic, and would generate
business records held at that location, particularly in light of
the fact that it was listed as the address for the bank account
into which deposits of cash proceeds were made and from which
rent and utility bills were paid. See Murphy, 95 Mass. App. Ct.
at 513 (procurement of equipment, mapping of targets, and
employment of accomplices gave rise to inference that
incriminating records were generated and located at place where
such activities occurred).13
Similarly, the warrant application furnished probable cause
to search the defendant's cell phone. The affiant stated that,
13Though we conclude that the affidavit furnished probable
cause to support a search of the defendant's Gloucester home, we
are unpersuaded by the Commonwealth's suggestion that the
probability calculus is enhanced by an incident in which police
observed the defendant removing a trash bag from the North
Reading apartment, putting it in his car, and driving away;
police then observed the defendant's car at his home, twenty-
five miles away, approximately two hours later. Accepting the
inference that the defendant transported the trash bag from the
North Reading apartment to his home, we see no particular
likelihood that the defendant would have brought the bag inside
his home upon arriving there, or that police could expect to
find it or others like it upon execution of the search warrant.
16
based on his training and experience, persons involved in
running human trafficking operations utilize computers, online
services, and cell phones to advertise or recruit commercial sex
business. Indeed, the investigation revealed that the operation
relied on Backpage advertisements, suggesting that evidence of
activity related to placement of those advertisements could be
expected to be found on the defendant's cell phone. Compare
Commonwealth v. Lowery, 487 Mass. 851, 857 (2021) (probable
cause to search cell phone associated with telephone number
listed in Backpage advertisement for sexual services), with
Commonwealth v. White, 475 Mass. 583, 590 (2016) (no probable
cause where affidavit failed to establish existence of
particularized evidence). Additionally, police were aware that
the defendant was in regular communication with Fan, whom they
suspected to be working in concert with the defendant to run the
business. These facts together rise above a reliance on the
"general ubiquitous presence of cellular telephones in daily
life." Lowery, supra at 858, quoting Commonwealth v. Morin, 478
Mass. 415, 426 (2017). The defendant's communications with Fan,
in conjunction with the central role that cell phones play in
commercial sex operations and the pair's reliance on Backpage
advertisements to conduct their business, provided probable
cause to search the defendant's cell phone.
3. Evidentiary matters. The defendant claims that the
17
trial judge erred in admitting prior bad act evidence and
physical evidence that police found in a Dumpster outside the
North Reading apartment. The defendant preserved his objections
when he moved to exclude the evidence, so we review for
prejudicial error. See Commonwealth v. Grady, 474 Mass. 715,
719 (2016). We consider each contention in turn.
a. Prior bad act evidence. The defendant argues that the
trial judge erred in allowing a 2016 Backpage advertisement
recruiting "female companions" and including the defendant's
cell phone number. Prior bad acts are inadmissible to show a
defendant's bad character or propensity to commit a crime. See
Commonwealth v. Almeida, 479 Mass. 562, 568 (2018); Mullane, 445
Mass. at 708-709. Such evidence may, however, be admissible to
"establish motive, opportunity, intent, preparation, plan,
knowledge, identity, or pattern of operation" (citation
omitted). Almeida, supra. See Mass. G. Evid. § 404(b)(2)
(2022). In the context of the other evidence illustrating the
nature of the business operated by the defendant and Fan, the
Backpage advertisement (posted six months before the charged
conduct) was relevant to show that the defendant was part of an
ongoing and extensive scheme with Fan to hire women to work for
them in multiple locations around Boston. Indeed, several of
the victims described moving to the Boston area to work in
response to such advertisements, and meeting Fan by arrangement
18
through such an advertisement before beginning to work for her.
When considered together with the rest of the copious evidence
tying the defendant to the human trafficking scheme, the
evidence was relevant and not unduly prejudicial.
b. Evidence from a Dumpster outside the North Reading
apartment. The defendant also challenges the admission of
evidence that the police found in a Dumpster outside the North
Reading apartment that included used condoms, condom packaging,
and other evidence of commercial sexual activity. The police
searched the Dumpster shortly after the defendant told them he
had just emptied trash from his apartment there, and found a
single trash bag sitting on top of a large pile of cardboard
boxes. It is a reasonable inference that the single trash bag
on the top of the pile of cardboard in the Dumpster was the one
left there only minutes earlier by the defendant. It was
therefore not an abuse of discretion to admit the evidence. See
Commonwealth v. Miller, 475 Mass. 212, 228 (2016) (weaknesses in
chain of custody go to weight, not admissibility, of evidence).
Judgments affirmed.