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.