-: SJC-13207 Commonwealth vs. Pingxia Fan
-: Okay, attorney Osborne, when you're ready.
-: Yes, your honor.
Good morning, your honors.
My name is David Osborne and I represent the defendant
in this case, Pingxia Fan.
And I appreciate the chance to raise this issue.
It's an important issue, there's several issues
that we raise in our brief, but I'm gonna talk about
the issue primarily that brung us to the dance here today,
which is the question of whether a jury
has to unanimously decide on the particular person
who was trafficked under the sex trafficking statute
for Massachusetts.
And there's a reason why I think no court in Massachusetts
has ever considered this issue.
The reason is that I don't think I've ever seen
a sex trafficking case that is not victim centric.
In other words, each count is linked to a specific victim
conduct against the victim,
and that's how the Commonwealth proves the case
and that's law, because trafficking is a crime
against a person so it would make sense that you would show
how the prohibited conduct affected a particular person.
And that's another reason by the way, your honors,
why some of these Amicus briefs that talk about
the sky falling if your honors agree with our interpretation
of the statute, simply aren't correct.
The Commonwealth routinely alleges
and proves a specific victim for human trafficking crimes.
I am not aware of a case and the Commonwealth
has not directed us to one that is different,
except this case, this case is different.
This case is not victim centric, it's venue centric.
And in this case, each count is based
on where the conduct took place,
not the person against whom the conduct was directed.
The trial court, I think said it well...
-: Council, could I interrupt you,
because I just wanna focus
on just the fundamental statutory construction issue.
-: Sure.
-: And to the extent that we have our construction law
that tells us that we don't put stuff in,
or we don't read stuff out.
Why can't we just say in this case,
I understand that you've seen it as applied
in other types of trafficking cases,
but if just focused on the words of the statute,
why doesn't a person just mean what it means,
a human being, another individual?
Why do we have to go any further than that
particularly in this case where there was a lot of evidence
that there was another individual
that was being used in this way in the trafficking sense?
-: Sure.
Your honor, that is the heart of the dispute here
and you have articulated the Commonwealth point of view,
which is that the statute says another person,
as long as there's some other person...
-: Why is that wrong?
-: It is wrong.
And the reason is because you need to have
a unanimous jury verdict on the specific offense
that has been criminalized by the legislature.
And that brings us to pompous,
which is a case that we site.
And I know the Commonwealth says, well,
it doesn't really have anything to do with it,
but it actually has everything to do with how we arrive
at this position, because pompous is a case about
what is the unit of prosecution for a sex trafficking case.
And in that case, and it's unpublished I understand that
but I think the logic is sound
and this court should agree with it.
It says that the unit of prosecution is, well,
it says the purport in arriving at the unit of prosecution,
the court says that the purpose of the trafficking statute
is to punish conduct at a discreet person
or another place that says a specific person.
But the idea here is, or specific victim.
The idea here is that it's not just conduct
that you engage in, that violates our societal norms
that would be for instance, driving support
or other kinds of public order based statutes.
This statute as a crime against a person
requires a discreet victim.
And to your question,
why isn't enough to say it's another person?
Well, the reason is because you have to prove
a separate criminal act for each count.
You can't just lump all these actions together
and say pick one jury you don't have to agree
on it unanimously.
If the specific separate criminal act
in each case is the discreet victim as pompous tells us,
then the jury has to arrive
at a unanimous decision about who that person is.
And usually it's not even an issue
because the Commonwealth it's proof is that there's
only one person who could possibly be the victim
for any particular account.
-: But let me push back on that for a little bit,
because here's the other side of that.
When you started your argument,
you said that the was focused on locus.
And so when you think about these different counties
where you have Suffolk county, Norfolk county,
Middlesex county,
it wasn't as if there wasn't evidence.
And if you look at the way that it went
through Sara Aman trial for every county,
they had one of one or more people
who purchased the services testified to going to the place,
paying someone in cash for what ended up happening,
that there was someone there that accepted that money
and performed the sexual services.
So to the extent that you're concerned about
perhaps somebody being convicted here,
where there isn't any more defined, who that was,
there was testimony from the actual John
that I went to this place, I paid this money
somebody met me, somebody let me in,
somebody did the services and I left at this location.
So again, I see if we then infuse this word
into the statute, which is seemingly
what you're asking us to do,
all of those prosecutions go away.
And if, to the extent that we're talking about
criminalizing, that conduct of deriving income
from treating people this way,
wouldn't that defeat the legislative intent of this statute.
-: That's not the statute, your honor,
that's a different statute,
deriving income from commercial sex.
-: That understood, but there's all in terms of dispatch.
-: Yes, and I understand you're raising
the evidentiary question of wasn't there enough
evidence here that there was another person.
Well, here's the problem.
The problem is that we don't have anything
that links the defendant's conduct to any of those actions.
You have evidence, of customers who and provided
with sex by people who are at these places
at these venues or apartments, whatever you wanna call them,
but there is no evidence whatsoever
as to the defendant's conduct
against those particular people.
If there was some evidence,
perhaps the identity of the person,
the specific person wouldn't be important,
but there is no evidence.
-: Well, there's no direct evidence,
but there's circumstantial evidence.
I mean, Ms. Xhao testified, that your client was Lucy
who told her that this is what you're expected to do
and brought her to these three different.
So there was evidence of it.
-: Well, there was some evidence, but first two things first,
you don't know what the jury unanimously agreed on
and I'm gonna refer to it as BX
because that information is actually impounded.
So I'll refer to them by initials,
but I understand the person
you're talking about, your honor.
BX testified that she did give some testimony
about my client's involvement in trafficking.
But there's a couple of things.
First of all, we have no idea if the jury credited that
because she was originally charged as a co-conspirator,
she was not charged as a victim.
Her status as a victim transformed
when she entered into a cooperation agreement
against the defendants.
And that was brought out at trial,
she was cross examined extensively on that.
There's no particular reason to believe that the jury
gave credit to her evidence
and she's the only victim who testified.
The other important question on BX is if you,
as I said, you have to prove each account.
You can't just say, well, there's people, there are women,
there are women wearing bath robes there's guys
who are having sex for the women in these places
so that proves that there's another person.
You have to actually link the person you're saying
as a victim to the particular count.
And that's where the Commonwealth's case fell apart,
because what the Commonwealth failed to do
and I think it's because the Commonwealth
never even thought it had to do it,
but the Commonwealth never made any attempt
to actually link a specific victim to the conduct
that was happening at an apartment, except in one case.
I will grant you this, your honor, count seven,
I do think that the evidence potentially was sufficient
for count seven.
That was at the north central avenue apartment in Quincy.
I think her testimony it's thin,
but I think her testimony would be enough,
except that we don't know
if the jury unanimously agreed on that.
That's the problem.
But with regard to every other count...
-: Can I ask exactly what your...
I'm reading your brief defendant alleges that the phrase,
another person, well, that's a Commonwealth.
Another person requires to come to identify a name victim.
I'm just trying to make sure I understand
what you're asking.
-: Yeah, your honor there's a lot of misunderstanding
about what our claim is even though I thought
it was pretty carefully stated in our statement of issues.
What we say is that the jury has to have unanimously
agree on the particular person who was trafficked.
You don't have to agree on the name, there are cases
that are cited in some of these Amicus briefs,
but they're all about the sufficiency of indictment,
it's got nothing to do with what we're saying.
We're saying there has to be unanimous agreement
on who that person is.
-: Was the jury instruction wrong?
-: Pardon.
-: Was the jury instruction wrong in that regard?
-: Well, it wasn't wrong in two ways, your honor
and there's two pieces to that.
That's a good question.
One is that the court failed to give the instruction
that was requested, which was on specific unanimity
on this point.
And the second is that the judge, actually, for some reason,
I don't quite know why it wasn't requested
by the Commonwealth, but she went a little further
and she said, she said, you don't have to agree
on the specific identity of the person...
-: You have the proof that a person's engaged
in prostitution...
-: Exactly, somebody's engaged.
-: And again, tied to the commercial location.
-: And that's the problem your honors
I just wanna emphasize this.
It's the one point I want you to take away today
is that we know what the specific act is.
It's trafficking against a discreet person.
You cannot...
-: Well the statute doesn't say a discrete person.
-: Well that's what pompous says is the criminal act.
-: Obviously the statute, doesn't include a name of a victim,
you can't that's case specific.
But I think the only way you can interpret this
and to ensure that you are, you have a unanimous
verdict on the specific wrongful conduct
is if the jury agrees on who it was directed at,
there are many cases we didn't go into other states.
-: But are you relying on the cases
where we've got these child rape cases,
where we've got a bunch of incidents with
the father's abusing the child
and you ask for a specific unanimity instruction
so that we pin down the date?
I'm confused by...
-: It's akin to that.
There, obviously this is a very different statute,
but yeah, the bottom line...
-: Is that because there we're doing with a danger,
it that some of these acts may not be proven convincingly
to all of them.
There's not really ambiguity we've got as short as it says
the particular John, on the particular date is...
-: The John's your honor, they don't tell us anything
because there's no evidence that says Mr. Hayes, or Ms. Fan
was engaged in trafficking these women.
All we know is that sex took place there.
That's all we know.
So that's the problem.
There has to be a link between the defendant's conduct
and a discreet victim.
-: Well, you just melded two very different things.
You just said that John can't tell you that your client
was the person that put all of this in play,
that's a separate question.
That John can tell you they met with someone,
that they met with a person, which is,
and engaged in commercial sexual activity.
Tying that back to your client there's other evidence
of that, that's not what we're were talking about.
-: But your honor, you're disconnecting the prohibited act,
the trafficking, the harboring, the enticing, whatever,
from the victim by saying,
well, there's proof that there's sex going on
and there's proof that the defendants were engaged
in harboring trafficking, enticing, recruiting, whatever
and that's enough, but you haven't linked the two.
You've got to link the two facts.
You've got to link because that's what the statute says.
If you want to go to the, what the statute actually says,
it says another person and it's in the singular,
it's not in the plural,
which means it's an individual person
it's not the world at large
the legislature did not say any person,
it said a another person, which means under Wasley,
a case of this court recently considered.
That means it's an individual human being
and that's what the instructional was.
-: Well it means that it's an individual human,
other than the defendant.
-: Other, I think that would be reasonable.
Yes, your honor, because there is potentially an issue here
about whether Ms. Fan who admitted to prostitution
or her counsel admitted to prostitution,
that she engaged in prostitution.
Potentially the jury could have convicted her on that,
but that's an absurd result.
We're not suggesting, I don't think anyone would suggest
that the trafficking statute prohibits somebody
from trafficking, or you can be liable
under the trafficking statute for prostituting yourself.
-: Are you suggesting there's a danger 'cause
we're trying to protect the victims of the trafficking.
-: Yes.
-: That's one of the reasons. -: Absolutely.
-: There's some protection over their identity.
Are you suggesting there's some danger here that by not,
I mean, you could have asked, I want a unanimity
instruction on whether there was trafficking
on this particular event.
If you're basing the trafficking conviction
on these three different events, I take it you could have
asked for that or is that what you're asking you?
-: No, well, it's different, your honor, because the statute,
I don't know that that would, because the mean,
I don't think you necessarily need a unanimity instruction
on the means, what you need is on the act.
What constitutes the offense?
Pompous says the offense...
-: I mean, it's that because there's a danger
that on this day it was just a massage
and on this other day it was a sexual massage.
-: It's a little different, your honor,
but something like that.
So you could imagine a situation where in this case on,
let's say count seven,
which was the Quincy of one of the Quincy venues.
You could imagine six jurors sitting there and say,
well, yeah, I think that miss Fan trafficked person X
at place during that timeframe,
and you could imagine six juror saying,
well, I think that she trafficked Y during that timeframe,
at that place.
Now under the instructions that the jury received,
all they had to do was decide that there was trafficking
at that place during that time and somebody
disconnected from any of those events,
somebody was there engaging sex.
-: So if the jury, if all 12 jurors agreed that
there was trafficking with this person on that event
that danger we're dealing with is what,
that it's because her name was X rather than Y?
-: No, it's not that your honor.
It's that the statute, again, I go back to pompous.
Pompous says that the act,
the prohibited act is conduct against a discreet person.
You can't just ignore that piece of it.
That's what distinguishes from, for instance,
it's not like it's distinguished by venue.
Well, if you could engage in trafficking
at this place, then that's a crime.
That's obviously not what the statute says,
'cause it says, if you engage in trafficking
against another person.
So pompous says, it's got to be directed
at a specific person, a discreet person.
And I'm not suggesting that in every case,
you need to go through this instruction
but when you have multiple potential victims,
some, we don't even know if they are victims
they may not be there because of any conduct
at the defendants engaged in, or they may not be victims
that the jury would find credible for instance, BX,
you have to ensure that since the offense
is the conduct against a victim,
you have to instruct the jury if requested.
And if there are, there is a possibility of some confusion
or a non unanimous verdict, you have to instruct the jury
agree on who the particular person was.
It doesn't mean that there couldn't be other acts
that would also violate the count or prove the count
but you have to have one and that's all the defendants
who asked for in this case, connect one particular person,
agree on that person, you don't have to identify the name,
you don't have to do all these things
that some of these Amicus brief suggested would cause
the sky to fall and we couldn't protect victims.
We can adequately protect victims.
You could have prosecuted this case in a way
that would've ensured the defendant's rights
to a unanimous verdict and protect the victims.
But instead we got this sort of very novel way
of framing the case, organizing the counts
and so we have no idea if the jury actually agreed.
Yes, there was a particular person was trafficked
at that place during that timeframe,
we have no idea which also creates double jeopardy concerns.
How do we prevent Ms. Fan
from being prosecuted again for conduct against a victim,
a specific victim if we don't know who the victim was
in the first place.
It creates all kinds of serious problems,
which can be resolved very simply.
If the Commonwealth has evidence of a victim,
it doesn't have to present the testimony of the victim,
it doesn't have to give the name of the victim,
but if it can show that somebody was harmed,
then the jury can agree on that unanimously.
-: Thank you very much counsel.
Let's move to attorney Rudin.
-: Good morning your honors.
Susan Rudin assistant attorney geneal
on behalf of common wealth with me today is Nancy Rostin
and Brodigan who are the child prosecutor in this case.
-: Would you address the double jeopardy issue
that the attorney Osborne just raised?
-: Sure.
So first of all and this is not my brief
I should have put in my brief in this cases
the various troupers who executed a such warrant
at each location actually identified victims
that were found there with a picture
as well as their date of birth and their name.
So to the extent that the defendant is arguing that
we didn't know who this people were,
yes we didn't have some of them testify trial
but we knew who they were.
We had photos of them, we had their names...
-: But this about the jury
finding that not just the investigators.
-: So the jury was told, they were shown these photos
which were admitted into evidence
and because these victims identity were on record
there isn't really a danger of double jeopardy
especially when you look at the important thing
to remember here as some of your honors has mentioned is
what is the underline purpose of this trafficking statue
and I think it's very clear from the legislature history
that it's to protect the victims of trafficking
and to focus on the activity
that these people are doing in trafficking other humans.
-: How does the square with our case law, our child,
our rape victims, just Kafka brought that up
where the danger is in multiple kids in a family
in six jurors believe offenses against Adam
and six jurors believe offenses against Billy
and we don't have unanimous decisions that way.
And we tell the jurors you have to be unanimous
as to who in what act.
-: I mean, those are cases where specific victims testified
we don't necessarily have that here
we just have testimony we have two victims who testified.
But we have testimony from each location
about people who went there
and engaged in commercial sexual activity,
which covers what the statutes says,
that another person engaged in commercial sexual activity
during the timeframe that was named in the indictments.
-: Back to the double jeopardy point.
So we know that his client has been convicted
for trafficking on that day,
but we don't know which one she's convicted for,
because there's six different women working in this place.
How do we enforce the jeopardy that the chief
was just asking about what's to prevent you from saying,
well, okay, you were just convicted
for the January 6th trafficking, but that was really X,
not Y we were talking about how do we solve that problem
and it's related to the other one the that justice Gaziano
was just following up on?
-: Well, we solve that because the statute doesn't require
a specific victim, Commonwealth is not required
to show a specific name victim.
Now defendant says...
-: But double jeopardy is a constitutional problem.
-: Correct.
But that's only if you are tried again for same crime.
-: Yeah, exactly and that's the point is if we don't know,
the jury came to one mind as to the particular victim,
then couldn't the government retry on sensibly
the same victims.
-: But that's what I'm saying, your honor,
the Commonwealth was not required to show a specific victim.
In fact, defendant says, he's not saying
that we had to name a victim 'cause that's what the
Amicus briefs are so concerned about
with the sort of the nature of victims
in these kind of cases, there are many reasons
why they wouldn't want to come to court and testify.
-: I get why you wanna protect their exact identity
meaning we don't want Jane Smith age born
on January 24th 1980, but we need a database
that indicates who the individual was to,
well, I mean, you're shaking your head,
but what's to prevent you...
Well, I know it's nice for you because you could keep what,
so tomorrow, can those two ladies next to you
bring prosecutions now for the exact same date
and just say, well, we had another person there
and then he's gonna, well,
wasn't I just convicted for that one?
-: No, your honor.
That's not how our office does things, first of all...
Well, I know you're more professional than that,
but what's to prevent you from doing it as a matter of law.
-: Well, here's the thing the defendant just said,
he didn't think that it was required
and he's not asking the re that there's a requirement
of a specific name person
so how else is the Commonwealth supposed to identify
the person?
I mean, there's besides saying what their name is,
there's really not a way to identify a specific victim
and in terms of saying there's a discreet,
what are they gonna say, an Asian woman at this location?
-: Well, no, but we have normally in crimes,
I mean, juveniles, we protect their identities
but we identify them.
We know who they are so that we don't have
a double jeopardy problem.
So there are no specifics in this thing,
I mean, I'm sympathetic to protecting the identity.
I understand that that's what trafficking,
we don't want to reveal and cause more harm to the victims,
but we do need to keep track of who
the actual victims are, don't we?
No?
-: I'm sorry, I guess we just agree on that, your honor.
I think the isn't...
-: The reason, because it's not this case that you're worried
about double jeopardy, it's some imaginary next case.
And the double jeopardy claim is in the imaginary next case
not this one.
You worry about whether there's double jeopardy
in this case.
-: That's the worry, your honor?
-: No, no.
-: What I'm saying is,
there's no concern about double jeopardy in this case.
-: I don't think so, No.
-: But the concern that's being raised
is a legitimate concern about another case
that if at that other case where the double jeopardy
claim's going to have to be brought,
you don't have a double jeopardy problem here.
-: Okay.
-: I think he's trying to help you.
I think he's saying that...
-: And when the next case comes,
they would raise double jeopardy
and you would argue against it.
-: Absolutely.
Yes.
I mean, as I said, the victims in this case,
particular case were identified by photo and name.
So I don't know that we have even the double jeopardy issue.
-: Well, there may be.
And again, although I went into the record,
I didn't go as deeply as when we have to write it,
but let's just give you a hypothetical.
You have all of the Johns that test,
but let's just say that on the day that
when one of the testifying Johns,
there were two women in that apartment.
At trial, did that particular John say
who the particular person, maybe not by name,
but identified them somehow that that's the person
that I went and paid and engaged in the activity with?
-: They did identify by the way the person looked,
they didn't, I don't think any of them tested.
-: But then you could see what the problem would be.
Because if we were to vacate that
and say, okay, now you've gotta retrial.
How are we gonna be...
You said your yourself,
we know that I think all of the women
were of Asian cultural descent,
how are we going to make sure that on the retrial,
it's not the same person
that your prosecuting the defendant for,
if there's no way to distinguish which one of the two
that were in the apartment happened to be the one
that particular John testified to having gone
and engaged with.
-: I mean, if you're saying retry,
because you're gonna reverse and we have to retry,
I mean, I think my argument stands that all we have to show
is that another person engaged
in commercial sexual activity, not a specific person.
So I don't think it matters...
-: It doesn't matter to double jeopardy?
-: Well, again, if you reverse and we have to retry,
that's not gonna be double jeopardy.
I mean, obviously the defendant didn't
bring a sufficiency claim here, and that's pretty telling
if he thinks that there's not enough evidence to show
a discreet victim, as he said, as is required.
But the Commonwealth under the wording of the statute
is entitled to decide how it's going to prosecute its case.
In this case, there were five different locations,
very discreet locations, where there was testimony
by men who went into each location
and engaged in commercial sex.
There was testimony, abundant evidence that the defendant
was tied to each of these locations.
She in fact signed the leases on two of them.
She was observed at all of them.
So there was evidence to tie her to all of these locations
where it was clear commercial sex was taking place.
And I know there's maybe some disagreement,
but I argue that that's all that we were required to show
to prove this human trafficking.
-: On the separate issue about the grand jury testimony
from two women who said they were just misuses.
Sorry.
The separate issue about the grand jury testimony
about the two women who said they were just misuses,
are they two of the women potentially
that were relied on to prove this case?
Or is it clear that those incidents
say we were unhappy with that issue,
is it clear that the case we're dealing with
doesn't involve those two women?
Meaning that again, I don't know who the people are
because you say you don't have to identify them,
but are those two women who say they just gave massages,
are they any of the same Johns we're relying on?
Do we know that?
-: I don't think we can know that
because we don't know specific...
-: Isn't that a potential problem?
If two women, we have grand jury testimony
from two women who say they just gave massages,
but those are the same two women that may be
the source of some of these convictions.
And that wasn't allowed in.
I understand, we know that they weren't the two women
it's easy, but if then the judge's decision
not to allow that grand jury testimony makes complete sense,
but can we rule out that they're the basis
of some of these charges.
'Cause we don't know who anyone is.
-: Again, I'll just go back to my argument
that we have shown that another person was engaging
in commercial sex and there was
maybe there were two at grand jury who testified
that they did not, there were another six who did
and again, go back to the evidence
from the different men who went to these locations
if clearly was commercial sex was occurring there.
So that's how it...
again, as you have said,
the judge made the right decision and not allowing
that grand jury testimony and 'cause it clear clearly wasn't
the grand jury was just somewhere where the Commonwealth
put these witnesses in.
It was literally the day
after the search warrants took place
and they were just putting these victims in
to preserve the testimony of the grand jury.