-: SJC-13652, Commonwealth v. Brendan J. Garafalo
and nine companion cases.
(door closing)
(papers rustling)
-: Attorney Campbell?
-: Good morning, may it please court,
Julianne Campbell on behalf of the Commonwealth.
I'm here today asking that this court vacate
the Superior Court's allowance
of the defendants' motions to dismiss
because according to this court's own precedent
and the plain language of the human trafficking statute,
the grand jury in this case heard evidence
that established probable cause
that each of these defendants attempted to entice,
recruit, or obtain by any means another human being
for purposes of commercial sexual services.
With respect to that, Your Honors, I'd suggest that
in the light most favorable to the Commonwealth,
the evidence here, at a minimum, established
that these defendants attempted to hire another human being
to perform services,
specifically, commercial sexual services.
-: Hiring is different
than recruitment or enticement, correct?
-: Your Honors,
with respect to this court's definition of recruit
in Commonwealth v. Dabney,
which I believe Your Honor was the author of that opinion,
this court defined recruit as to hire for services,
so applying that definition
according to this court's own precedent,
the evidence that this grand jury heard
where these defendants attempted to hire a person
for commercial sexual services,
there was certainly probable cause
that they committed the offense of human trafficking.
I'd suggest that that's one avenue
that supports the Commonwealth's theory of the case,
perhaps the most clear.
I'd also suggest that obtained by any means,
which is certainly broad language
in keeping with the statute itself,
which this court has acknowledged is a broad statute,
that the defendants attempted to obtain by any means,
in this case, by paying an individual,
attempted to obtain another human being
for commercial sexual services.
-: So to me, I think that's your strongest argument,
the obtain, not so much the entice,
which I think has some element of,
I don't know, wooing in some way, (chuckling)
and I also think recruit requires some effort
to bring the person in, and I think responding
to an ad is not either of those things,
but certainly obtain has a broad meaning,
meaning to get, essentially,
and they were seeking to get this person and-
-: And I would acknowledge that I think
the Commonwealth's theory on enticement is
perhaps the weakest of the three
that the Commonwealth advances, however,
again I'd suggest that there are two other avenues,
and I take the court's point with respect to recruit,
however, I am relying on this court's interpretation
of that- -: Well, what if you relied
on the dictionary definition?
Does the dictionary say that recruiting is just hiring
somebody who is responding to an ad?
So let's say I put an ad out to sell my car,
and somebody responds.
Are they recruiting me to sell my car?
-: So in Dabney, this court relied on this-
-: Are they recruiting me to sell my car?
I put an ad out, I'm selling a car.
-: Well, it's not, I would suggest in that,
so I'd like to answer that in that I don't,
in my reply brief, I suggest that a general offer is
not an offer within the meaning.
However, recruit would not apply
because it's for hiring for services as opposed
to obtaining an object in Your Honor's hypothetical.
So, but with respect to the broader question
of whether an advertisement is an offer, under,
as I argue in my reply brief, under general principles
of contract law, and I do cite cases in my reply brief,
an advertisement is not an offer under contract principles.
It is an invitation for offers,
and in this case, I would suggest that these defendants,
while there was an advertisement inviting offers,
it was these defendants who reached out with the specifics
that they were looking for,
how much time they were looking for, what services,
specific sexual acts they were looking for,
and in that respect- -: I thought the ad,
let's call it that,
delineated specific services.
-: Your Honor, the ads themselves are
in the Commonwealth's impounded record appendix.
J. Wendlandt: Yeah.
-: They list a variety of services.
J. Wendlandt: Right.
-: And so, but again,
and I point to the case cited in the Commonwealth brief,
an advertisement for a list of services
in general context is never understood to be an offer.
It is an invitation for offers, and I would suggest
that this context should not have
some other specific interpretation
simply because it involves an advertisement
of a human being.
J. Kafker: Could you expand your, are you done?
-: Well, I was gonna ask you, so in Dabney,
it was a recruitment by money.
The person was hired to perform this.
In this case,
the sexually trafficked people are already on board.
They don't need to be recruited, they're in place.
So isn't that a distinction?
-: It's not, and I would again point to Dabney
in where Your Honor wrote for this court
that even in an instance in which merely assisting
an adult consenting prostitute will still constitute
the crime of sex trafficking in those circumstances
where all the statutory elements are met.
Here, I would suggest that the actus reus of obtaining
by any means, or hiring someone for services is satisfied,
and the mens rea is knowingly,
and these defendants, in the light most favorable
to the Commonwealth, knowingly reached out,
knowingly specified the terms of the offer
that they were looking to satisfy, and-
-: So every john is a trafficker, is that right?
I'm just trying to understand,
'cause we're doubling the penalty, right?
There's a penalty for being a john
that's two and a half years.
This is a five-year penalty, is that right?
-: Yes, and I appreciate that Your Honor is asking
about the penalty, but I-
-: Well, I'm confused.
I'm not sure I understand whether this is, to me,
there's trafficking statutes and there are john statutes,
and you're basically turning every john statute
into a trafficking statute.
Are you, I mean, is-
-: I hear what Your Honor's saying.
-: Is there a john that isn't a trafficker under your view?
I understand they're contributing to,
they're commercializing sex and they're,
but at least the lay person's understanding
of trafficking versus being a john,
traffickers are, they're getting a mandatory,
minimum five-year penalty.
They're a different category of evil, I thought.
-: And I appreciate Your Honor's point with respect to that,
and if I may answer-
-: It's a question I just don't understand.
To me, you're collapsing the john statutes
and the trafficking statutes.
That may be correct, but I don't know why.
-: And if I may respond, so first I'd suggest that the sex
for a fee statute and the human trafficking statute are
separate in that sex for a fee requires
that a fee be provided.
The human trafficking statute,
there is no requirement that a thing of value-
-: Seems silly
I mean, of course they're paying in some,
that can't be what we're really-
-: Your Honor, well, if I may continue,
that is one significant difference
in that human beings are often trafficked by individuals
and are not compensated in any way in a broader term.
Beyond that, Your Honor is considering,
and I think this is part of the error
of the Appeals Court in how it defined obtains,
Your Honor is considering a colloquial idea
in how we have historically thought of trafficking.
-: Well, but it's also the plain meaning.
The word trafficking appears in this statute, right?
-: But that's not the word that the,
that is the name of the statute.
That is not the words that the legislature used to enact
what constitutes human trafficking,
and it is not the language that the Commonwealth is using
in its theory of these-
J. Gaziano: I'm sorry.
J. Wendlandt: I'm sorry, go ahead.
-: There's an issue about whether
or not the Appeals Court added an element of predisposition,
which is what the AG brings up and you bring up.
Put that aside.
The issue we have is legislative intent to see whether
or not the legislature intended this statute to reach
so broad as to ensnare people
who are hires of sexual services.
When we look at the words, it's force, coerce,
or obtain, don't we have to judge the words in context?
We always say that the words in the statute are judged
by the company they keep.
So there's coercion, there's enticement,
and there's a payment.
Those to me all indicate the traditional person
who hires, entices people to prostitute themselves.
-: If I may respond in two parts, one,
fraud, force, and coercion do not appear in the statute,
and that's the Commonwealth's perspective,
and that's what McGee holds and that's what Dabney-
J. Gaziano: Recruit, entice,
or obtain by any means, the statute.
-: Correct, there's no word of force.
-: Right, well, I mean, actually in Dabney,
we wrote coercion is part of it, or harm isn't part it.
-: But if I may respond,
and this is again getting back to Justice Kafker's point
of this idea that well,
aren't we criminalizing the same conduct?
-: Well, we have the right to do the,
the government can do that.
We do that in the drug cases all the time.
-: And that is, it's discretion
that is vested in the executive branch as to which penalty.
-: As long as the legislature's clear, right?
That the government has basically two arrows to shoot.
-: And well, that's not entirely true, Your Honor,
because in those cases where there are different statutes,
the statutes themselves don't say
the government is entitled to choose.
That is what this court infers by the existence
of those two statutes.
-: If the offense conduct is clearly encapsulated
in two different statutes, sure,
it's your discretion to charge murder or manslaughter.
-: This court's own language has said
that this is a clear and unambiguous statute,
and the words themselves are not ambiguous.
-: The Court is always, the cases
that you're referring to have been dealing
with classic traffickers.
They haven't been dealing with johns, right?
This is the first time we're dealing
with whether what is traditionally understood
to be a john is a trafficker, right?
The other cases, I mean, if you look at them,
they're all discussions of classic traffickers, right?
They're not like what we're dealing with here.
-: I'm not disputing that, Your Honor,
but as this court has found, the legislative intent
for this statute has been to take the victims
of human trafficking out of the statute.
-: I totally agree with you, but you're actually,
that's not the, it doesn't, the victims,
we're not prosecuting the victims here.
We're prosecuting the johns as traffickers,
and that is a different problem
than one we've addressed so far.
-: But according to, again, the plain language
of the statute, this conduct-
J. Kafka: Language isn't that plain.
-: Well, with respect to recruit,
where this court has defined it
as to hire for the services of,
this squarely fits in that,
as to obtain, which- -: Well, let's say obtain,
yeah, like focus on obtain,
because I think at least as to me,
recruit is a losing battle,
but obtain, that one has some legs.
-: And it is intentionally broad,
and the dictionary definition of obtain is to attain
by some planned action or effort.
-: And so what do we say, what do we do with the fact
that the statute actually does say
what constitutes the crime of trafficking persons,
which I think is to Justice Kafka's point is
that traditionally, the traffickers are the suppliers,
minus the actual sex worker.
Why does the word trafficking not have some bearing
on how we construe obtain?
-: Because trafficking is defined by the legislature
as the series of words used in that statute.
J. Wendlandt: But it uses the word trafficking.
-: In the title, but-
-: No, no, no, in the actual 50A,
it says attempts to recruit, entice,
or obtain by any means,
that that person shall be guilty of the crime
of trafficking persons.
And I'm wondering why trafficking in the statute itself,
not in the title, but in the statute itself,
doesn't inform what obtain should mean.
What's your best argument that it shouldn't?
-: My argument is that those series of words,
shall be guilty of the crime of trafficking,
that is defining these things create-
J. Wendlandt: How do you define trafficking?
-: As someone who entices, recruits, obtains-
J. Wendlandt: So it's a circular definition in your-
-: Not circular, Your Honor,
I'm suggesting that the conduct outlined
by the legislature is what constitutes
the crime of trafficking.
-: Doesn't every john obtain,
again, won't every john be obtaining?
Atty. Campbell: Yes.
-: So every john is a trafficker?
-: Yes, Your Honor.
-: So every john is a five-year penalty then?
-: And so this is my concern with the court.
The court is focusing on the five-year mandatory minimum,
and I understand that that is a significant penalty,
but that is a penalty
that the legislature is entitled to enact,
and moreover, this is not an issue of cruel
or unusual punishment
because these defendants have not yet been convicted,
so I would suggest that the penalty must be divorced
by how the court is-
-: I'm just trying to figure out,
and you know, just asking questions here,
not telling you what our decision is,
so you should understand that,
and when you say what the court seems to be concerned about.
My question to you is why obtained shouldn't be informed
by what people think of as trafficking?
Because, or is it, you know,
here, I'll throw you a softball,
which I thought you would've picked up,
which is that, you know, in Jungers, for example,
that case defines trafficking as the business,
both the supply side and the demand side, of commercial sex.
Judge: Right.
-: Is that a position that the government's taking?
-: Yes, Your Honor, and I would also suggest,
as I do in my brief, that the entire intent
of the statute is to focus on the demand
and the business of commercial sexual trafficking.
-: Well, it's certainly not just the demand,
it's certainly got a lot of supply side.
Recruit, entice, harbor, transport, provide,
those all seem supply side,
not the sex worker, but all the supply side.
So when you said that in your brief,
I paused and wondered, huh?
The only thing to me that is talking
about the demand side potentially is obtain.
-: Or recruit or entice, I would suggest.
Maybe not in this context,
but in general, those would also apply
to the demand side of human trafficking.
-: But before we lose you, can you address the two issues
that remain, that being predisposition,
which seems, as has been argued,
as an added element by the Appeals Court,
and secondly, the attempt ruling?
-: So with respect, if I could first address the,
if Your Honor is asking
about the factual impossibility, is that?
Yes, so this court affirmed Commonwealth v. Bell and Disler,
and so I would suggest that in the context
of an attempt crime,
factual impossibility is certainly not a defense.
And especially here where there is, we go so far
as to even have an overt act of these individuals showing up
for the commercial sexual services they contracted for,
that that certainly-
-: Undercover police work would kind of be blown
if that was the case, right?
Atty. Campbell: I'm sorry?
-: Undercover police work would kind be a nullity
if that were the case, right? -: Yes,
it would be, as would the idea of attempt generally,
I would suggest, even outside
of the context of undercover police work.
And then beyond that with respect, I apologize.
J. Georges: Predisposition.
-: Predisposition, so again,
absent from this statute is any mention
about a victim's predisposition, and so I'd suggest
that what the Appeals Court erroneously did was insert
an element that does not exist in the statute,
and so I would suggest that was error,
and I would ask this court to not imbue an element
that does not exist in the plain language.
J. Gaziano: I will ask if there further questions?
Thank you. -: Thank you.
-: Attorney Noonan?
-: Morning, Your Honors
My name is Patrick Noonan, I represent Brendan Garafalo,
and I'm giving the arguments on all appellees.
With me is co-counsel Sabrina Bonanno,
as well as co-counsels
for all other defendants in this case.
Just addressing some of the issues that were just raised
by the court, Justice Wendlandt is correct
in that the statute does say trafficking in it.
In the "Black's Law Dictionary" of trafficking
or trading or dealing usually in narcotics,
so we're dealing with a circulation in commerce
in the supply side of things and-
-: But trade implies both the supply and demand side,
so I don't see how that helps you.
Judge: Right.
-: Trading and dealing in the narcotics context is somebody
that's putting the drugs out there,
whereas somebody who's buying it is usually somebody
who's a possessor.
-: Well, you're relying on the colloquial understanding
of this, and I think
what counsel Attorney Campbell's been relying on is
the words of the statute.
Can you look at the words of the statute,
not the colloquial, what everybody thinks it means?
-: Well, so I'm sorry Your Honor,
so for the words of the statute, I think
that the Appeals Court got it right in terms of enticement.
The Appeals Court first looked at the proper definitions
of enticement, which are to instigate or incite,
which require acts of initiation.
Here, it's our contention
that the defendants weren't initiating this concept
of engaging in commercial sexual activity,
and under enticement the offer was made by the police
by putting this advertisement up, which was very,
very specific in listing what the services were.
So the Appeals Court, in looking at entice
and recruit, was looking at conduct
which is initiating some sort of response.
So like for recruit, a good analogy
for Justice Gaziano would be a college recruit going
after an athlete, you know,
would you like to play for our school?
Here's the offer.
If you're interested, then you're on the team.
So here, those two, entice and recruit require some acts
of initiation, and here, it was the government that did it,
and the defendants replied,
and then when they had the dialogue,
certainly the defendants offered to pay for sex,
and they agreed to engage in sex,
which is exactly what the sex for a fee statute prohibits.
It has that statutory language in there
It's very plain and clear. J. Wendlandt: So why
didn't they attempt to obtain,
by any means, another person?
-: So I would say that the Appeals Court got it right
when they're talking about what obtain means,
which is to possess, and then when you look at the-
J. Wendlandt: So you're saying they didn't attempt
to possess another person?
-: So with possess, the statutory lang is also
another person, to possess another person.
Possession requires, is also connoting
control over that person,
and you're somewhat trying to change the person's will
or intention to engage in the activity,
so that's what the Appeals Court was saying
when they were looking at obtain.
-: So that's where I think you run into problems.
I don't see where the word obtain's plain,
ordinary meaning requires a changing of minds.
-: Well, the Appeals Court looked at the definition
of obtain, "Black's Law," to get, retain control,
or to get, retain possession.
Obtain is, in the government's view,
is just going to be so overly broad,
and I don't think that this is gonna,
this shouldn't cast such a wide net
to get every john. -: Well, why not?
I mean, I think we've said before
that the legislative intent of this statute was
to allow the state, as opposed to waiting for the feds,
to have the resources to police this kind of conduct,
and by not having coercion, force, or fraud,
expanding what the state officers can do
to pursue trafficking.
-: I also think that the legislative intent
of the sex for a fee statute was to increase the penalty
for those who buy sex. -: But we have statutes
that overlap, so I guess I'm not so persuaded
by the fact that there is a separate statute
that can be used to punish johns.
So I just, I guess I'm wondering why a purchaser
of commercial sex is not obtaining somebody.
Are you buying into or supporting or arguing
for the canon of construction used by the Appeals Court
that lists somehow narrow the generic term
at the end of the list?
And then if so, can you explain to me
how this particular list narrows obtain?
-: So I think that the Appeals Court properly applied
the doctrine, because obtain in the context
of sex trafficking hasn't yet been addressed
by the court, so-
-: Well, that's not why that canon of construction applies.
It doesn't always apply
when the court hasn't yet construed something.
It applies more narrowly when there's a list,
and all of these things in the list have
something in common,
and then there's this generic term at the end
that could really swallow the whole.
-: So I was replying, I was kind of addressing
what the Commonwealth was saying in their brief,
that the doctrine only implies that the statute's ambiguous,
but here, obtain wasn't really yet addressed by the courts.
But with general words following specific words
and so forth, the preceding words for obtain are harbor
and transport, which requires some physical, you know,
physically affecting the person's condition, so for that,
for the doctrine- -: But the list,
the full list is recruit, entice,
harbor, transport, provide.
-: So entice, recruit are initiating conduct,
which is not present here.
Harbor, transport is somehow physically affecting
the other person's condition,
which is not present here. -: Is there ever a situation
where the list doesn't have just one thing in common,
but has these things in common that you're suggesting?
One is about somebody not predisposed to do something,
and then somebody's physical possession.
I've not seen the doctrine applied in that way.
-: The doctrine I think is Latin for this,
you know, similar in kind,
so if we go back- -: Right,
but all of these things need to be similar
in kind to something, what is that thing?
-: Aren't they similar in kind to trafficking?
You go through each word, you recruit them
for trafficking, you entice them to traffic,
you harbor them, you transport them.
The only one that's,
and obtain in that context sounds like classic trafficker.
You obtain, you know, you obtain them from,
and turn them into prostitutes.
Atty. Newnan: Not what, I mean, so-
-: I'm making an argument for you.
Atty. Newnan: Yes, I'm sorry. (laughs)
-: I'm trying to help you.
Atty. Newnan: Then I'll let you fit in, yes, but-
-: Does that really help you, though?
I mean, so let's talk practically.
So to Justice Kafker's point about whether
or not you can obtain them and turn them into trafficking,
we've already said you can't traffic yourself.
Atty. Newnan: Yeah. -: Right?
So somebody's gotta be paying you
to be trafficked, to be trafficking,
so why is it such a controversial construction
of section 50 that yeah, if you go out, and you go out
and solicit commercial sexual activity, you are trafficking,
and it's different than the other,
because back to Attorney Campbell's point,
this talks about folks
that don't necessarily exchange currency.
That's the other statute, right?
That's the other statute that they amended
to give the two and a half years at the same time.
This captures the folks like your client
and all these other folks who never got to the point
of exchanging currency,
but yet we would have no human trafficking
if we had no johns, because you can't traffic yourself.
So why is this controversial to say
that this statute doesn't necessarily,
the legislature didn't intend to sweep up johns
when they say obtain by any other means?
-: Well, if we look at what was the defendant's intention
in responding to the ad was their intention was to pay
for sex, and they had an agreement to pay for sex.
-: Right, they were intended to obtain
by any means another person.
I don't really understand the ambiguity there.
-: If we look at every single sort
of sex trafficking case in Massachusetts
where convictions were affirmed,
you know, we're dealing with a defendant
who approaches a victim and introduces the concept
of engaging in commercial sexual activity
and then is essentially putting them out there
to engage in sex with other customers,
and it's a part of a somewhat part of an operation.
There's no sort of-
-: So that would make sense
if the legislature did not decide to add the words obtain.
That's where I get stuck.
-: And you also, back to Justice Wendlandt's point,
you're only looking at half the equation.
You're only focusing on the supply.
Well, there's also a demand side.
Atty. Newnan: Which is sex for a fee.
-: Well, no it's not, because sex
for a fee is when you actually pay for it.
-: Offer to pay.
-: Offer, okay.
Atty. Newnan: Exactly what happened.
-: Well, we already-
-: And what we're gonna do is we're gonna take
every single john in this particular,
we're gonna take every single john
and we're gonna charge him with sex trafficking,
and we're gonna put him in prison for five years?
I don't think that that was the intent of the statute.
J. Wendlandt: Why? -: If the government-
J. Wendlandt: Why do you say that?
why was that not the intent?
-: Because the intent
to punish the johns was to increase the penalty to two
and a half years is which is what legislature did
at the same time that they enacted
the sex trafficking statute.
-: Do we have legislative history that helps inform this?
I don't remember, is your brief, have you gone to,
do we have the sort of full file here?
'Cause we're starting to get to issues
of legislative intent here.
Do we have any, did you do a review
of the legislative history?
Find anything useful?
-: So the Appeals Court in looking
at the legislative intent was both of those,
the sex trafficking statutes passed in 2011
at the same time the sex for a fee statute is revised,
which it has been in existence for a very, very long time.
So it was revised at the same time
as the sex trafficking statute
to enhance the penalties for the people that buy sex.
-: So when you get to legislative history,
you have to find some ambiguity in the statute,
and I'm wondering why the word obtain is ambiguous
so that we have to get into legislative history,
because usually the best evidence
of legislative intent are the words
that the legislature chose.
-: Well, I would just say
that the legislative intent to punish this conduct,
the legislators chose the sex for fee statute,
they chose the language for the sex for fee statute,
and that's with conduct that was violating-
-: But that's a different statute.
Usually we construe one statute,
we look at the words of that statute.
So looking at the trafficking statute,
why would the legislature have used the word obtain
by any means another person
if they didn't mean to capture the purchasers?
-: I can't speak for what the legislative intent was
for putting that particular word in the statute, I'm sorry.
J. Gaziano: Is it so broad that it's ambiguous?
-: I think that it's not putting the defendants on notice
of what conduct is prohibited by saying obtain by any means.
It's very ambiguous. J. Gaziano: Well,
certainly they're on notice
it's criminal conduct, correct?
-: Sure, but obtain by any means, you know,
you still have to have a statute with sufficient clarity
to put people on notice of what's punished.
So maybe somebody looks at this
and they don't know, they can say,
"I'm violating the sex for a fee statute
by agreeing to engage in conduct with a prostitute,
but am I obtaining that person
and therefore violating the trafficking statute?"
That's kind of an issue.
-: I don't think people would need to,
I don't think the ambiguity jurisprudence says
that you have to know the penalty.
You have to know it's a crime, go on.
-: I mean, classic obtain by any means has
two possible definitions.
The one, just what we're talking about,
it covers the johns 'cause they've obtained.
The other is obtain by any means,
meaning you obtained the sex worker by some means,
any means if you, you know, you brought them in,
you offered them drugs, you did whatever.
J. Wendlandt: Or money.
-: Or money, meaning you offered them to be a sex worker
as opposed to, you know, paying cash for the sex.
I mean, whether this is a john statute
or a trafficker statute isn't clear to me,
but apparently, at least according to the Appeals Court,
the legislative history isn't gonna be
that informative either.
It's all over the place.
-: But I think obtain, similar to the words preceding
and with entice, recruit, still require
that element of initiation.
-: So you need an ambiguity to get
to the statutory construction of the words assessed
by the company they keep and/or the rule of lenity, correct?
Atty. Newnan: I'm sorry?
-: The rule of lenity?
J. Kafker: Yeah.
-: Right, which means that the tie goes to the defendant.
-: Sure, and there could be an issue here with obtain
by any means being ambiguous to the point
where the rule of lenity would apply.
J. Wendlandt: Was that something that you argued?
-: That's in the, yes, it was argued in the lower court.
It was in a motion.
-: That the statute is ambiguous,
and so we should apply the rule of lenity?
-: Yes, it was argued in, it's in the motion
to dismiss filed in the Superior Court.
That was raised as one of the issues as well.
J. Georges: Did you raise it in your brief?
-: No, no, but this is a de novo review,
so I think that the record would.
J. Gaziano: Can you talk about impossibility?
-: Yes, we were seizing on the language in the Fan case.
-: But Fan has to do with the identification
of particular people, their names,
'cause people come and go,
not that it has to be, it still has to be a person.
-: Right, and the language we were seizing on was
the Commonwealth must prove that there was a victim,
i.e., someone that defendant enabled
or caused to engage in commercial sexual activity.
And then looking at the Pompilus case,
they were looking at the statute intending
to punish conduct directed at a discreet victim
and conduct that's injurious to a victim.
And then the model jury instructions were revised after Fan
or right around Fan where they included in parentheses,
harbor, transport, et cetera,
end parentheses, alleged victim.
Here, Commonwealth, when presenting this indictment,
was identifying the victim as society, and so I think
that the indictment should be dismissed there, but-
-: But we also did, in Fan,
we didn't deal with attempts, did we?
-: But I think that the entirety,
I think of section 50A was addressed in the decision,
so I thought that would encompass the attempt as well
because the Fan court I think was looking at 50A,
all the language that we use in it, including attempt.
If there, no other questions I would rest on my brief.
J. Gaziano: Thank you. -: Thank you so much.