Commonwealth v. Garafalo

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23-P-268 Appeals Court

COMMONWEALTH vs. BRENDAN J. GARAFALO
(and nine companion cases1).

Nos. 23-P-268, 23-P-269, 23-P-270, 23-P-271, & 23-P-272.

Plymouth. November 9, 2023. - May 7, 2024.

Present: Ditkoff, Englander, & Walsh, JJ.

Trafficking. Prostitution. Attempt. Statute, Construction.
Practice, Criminal, Dismissal.

Indictments found and returned in the Superior Court
Department on October 15, 2021.

Motions to dismiss were heard by Maynard M. Kirpalani, J.

Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
Patrick J. Noonan for the defendants (Richard J. Sweeney,
for James Bi, & Joshua D. Werner, for Viet H. Nguyen, also
present).

1 One against Brendan J. Garafalo and two each against Brian
D. Dick, Eric P. VanRiper, James Bi, and Viet H. Nguyen. During
the course of this appeal, we received a suggestion of death of
the defendant Brian D. Dick and a request that the charges
against him be dismissed. That issue should be taken up in the
Superior Court.
2

ENGLANDER, J. Massachusetts G. L. c. 265, § 50, the so-

called "human trafficking" statute, enacted in 2011, makes it a

crime for a person to (among other things) "attempt[] to

recruit, entice . . . or obtain by any means, another person to

engage in commercial sexual activity." In this case, five

separate defendants have been charged with violating the

statute, after they responded to advertisements posted by the

State police and were arrested as part of a "sting" operation.

A Superior Court judge dismissed the ensuing indictments, ruling

that because the advertisements were fake and there was no

actual "victim" in these instances, the "another person"

requirement of the statute could not be met.

The case requires us to address the criminal law relative

to attempt crimes, and whether so-called "factual impossibility"

is a defense to the charge at issue (because there was no actual

person who would have provided any sexual services). More

generally, the case also requires us to consider whether and

under what circumstances the human trafficking statute can apply

to persons sometimes referred to as "Johns" -- that is, persons

who seek the services of prostitutes but who do not otherwise

cause or profit financially from the prostitution.

As to the former issue, we conclude that the Commonwealth

may meet the "another person" element of the crime in the

context of a law enforcement sting operation, and that the
3

dismissal on that ground was incorrect. We nevertheless affirm

the dismissal of the indictments, because the evidence before

the grand jury did not establish probable cause that any of the

defendants met the statutory requirement that they "recruit,

entice . . . or obtain by any means" another person, so as to be

guilty of "trafficking" that person. While the statute’s

language is indeed broad, we do not construe it to extend to

conduct that merely responds to an offer from another person,

but that does not otherwise cause or control the offering of

commercial sex. As presented to the grand jury, each of the

defendants responded to an advertisement offering sexual

services, but not more, and thus the statutory language is not

met.

Background. In August of 2021, a division of the State

police posted two advertisements on the Internet. Each

advertisement contained photographs and a description of a woman

who purportedly was offering sexual services for a fee, and

included a telephone number and the words "text me." On August

5, each of the five defendants separately contacted the

telephone number in the advertisements. The communications

thereafter differ somewhat from defendant to defendant, but

eventually each defendant was provided the address of a hotel,

where that defendant could come to meet the purported offeror of
4

services. Upon arrival at the designated hotel room, each

defendant was arrested by State troopers.

A grand jury indicted each defendant on two charges --

G. L. c. 265, § 50, "human trafficking," and G. L. c. 272,

§ 53A, "engaging in sexual conduct for a fee." General Laws

c. 265, § 50 (a), provides, in pertinent part:

"Whoever knowingly: (i) . . . attempts to recruit,
entice, harbor, transport, provide or obtain by any
means, another person to engage in commercial sexual
activity . . . shall be guilty of the crime of
trafficking of persons for sexual servitude" (emphasis
added).

As to penalty, the statute provides for a five-year mandatory

minimum sentence. See G. L. c. 265, § 50 (a).

General Laws c. 272, § 53A (b), provides, in pertinent

part:

"Whoever pays, agrees to pay or offers to pay another
person to engage in sexual conduct . . . shall be
punished by imprisonment in the house of correction
for not more than 2 and one-half years . . . whether
such sexual conduct occurs or not" (emphasis added).

Notably, § 53A does not carry a mandatory minimum sentence.

The defendants each filed a motion to dismiss the charges

as to G. L. c. 265, § 50, the human trafficking statute. They

argued (among other things) that the facts presented to the

grand jury were inadequate to establish probable cause because

(1) there was no victim in these cases, and the statute requires
5

that there be a victim for the crime to be completed (relying

principally on language from Commonwealth v. Fan, 490 Mass. 433

[2022]), and (2) the facts as to each defendant were otherwise

insufficient to satisfy the statute, because the statutory

language was not intended to encompass persons who merely

responded to an advertisement and at most, offered to pay for

sex. As to this latter argument, some defendants pointed out

that the conduct alleged would violate the preexisting statute,

G. L. c. 272, § 53A, and the fact that the acts were already

criminal provided another reason not to read the recently

enacted G. L. c. 265, § 50, as broadly as the Commonwealth

contends.

After a hearing, the judge dismissed the human trafficking

charges, accepting the argument that where there was no actual

victim of the alleged crime, the "another person" requirement

was not met. As a result, the judge did not address whether the

defendants' conduct met the "recruit, entice . . . or obtain by

any means" language. The Commonwealth appeals.2

Discussion. 1. The "another person" requirement. We

first address whether, under the circumstances, the Commonwealth

could meet the statutory element that each defendant attempted

See Mass. R. Crim. P. 15 (a), as amended, 476 Mass. 1501
2

(2017) (Commonwealth's right to interlocutory appeal of decision
granting motion to dismiss complaint or indictment). The
separate appeals were consolidated in this court.
6

to obtain "another person" for commercial sexual activity. The

motion judge concluded that the Commonwealth could not, because

"[t]he grand jury heard no evidence that there were any actual

victims" in the defendants' cases. If that conclusion were

correct, the human trafficking statute (and perhaps any other

statute using such "another person" language) could not be

invoked to prosecute attempt crimes against persons arrested as

a result of a sting operation such as the one at issue.

The law of criminal attempt, however, is not so limited.

Rather, it is well established that an attempt crime occurs when

the defendant forms the intent to commit the criminal act and

then overtly acts upon that intent, Commonwealth v. Ortiz, 408

Mass. 463, 470 (1990), even if the crime could not be completed

for reasons unknown to the defendant.3 This court explained the

principle in Commonwealth v. Bell, 67 Mass. App. Ct. 266 (2006),

a case involving a different statute but analogous facts. In

Bell the defendant responded to a police sting operation,

seeking to commit sexual acts against a young child. After his

arrest, the defendant argued that he could not have committed

attempted rape of a child, because the crime "requires the

3 In addition, the overt act must be sufficiently proximate
to the carrying out of the crime. See Commonwealth v. Bell, 455
Mass. 408, 414 (2009).
7

presence of a victim as an element, and . . . the child in this

case did not really exist." Id. at 269-270.

This court rejected the defendant's argument in Bell,

noting that "factual impossibility is not a defense to a crime."

67 Mass. App. Ct. at 271. We explained that "factual

impossibility arises when the crime cannot physically be

effectuated, such as trying to pick a pocket that proves to be

empty." Id. at 270. We expounded on the rationale as follows:

"That factual impossibility is not a defense reflects
a judgment that a defendant should not be exonerated
simply because of 'facts unknown to him which made it
impossible for him to succeed.' Thus, in an
undercover sting operation culminating in a
defendant's conviction, '[w]hether the targeted victim
. . . [actually exists], the defendant's conduct,
intent, culpability, and dangerousness are all exactly
the same.' In such circumstance, the defendant is
'deserving of conviction and is just as much in need
of restraint and corrective treatment as the defendant
who did not meet with the unanticipated events which
barred successful completion of the crime.'"
(Citations omitted.)4

Id. at 271.

4 The authorities often distinguish "factual impossibility"
from "legal impossibility," but we need not dissect the
distinction in this case. Factual impossibility is where the
defendant intended to perform all the elements of a crime, but
could not due to facts unknown. Legal impossibility is where
the acts the defendant intends simply do not constitute a crime.
See Bell, 67 Mass. App. Ct. at 270. See also 2 W.R. LaFave,
Substantive Criminal Law § 11.5(a) (2023). Here, the evidence
before the grand jury was that the defendant intended to commit
an act with "another person."
8

The reasoning of our opinion in Bell controls here.5 The

facts before the grand jury established probable cause that each

of the defendants intended to pay another person for sexual

acts. The defendants did not know that the person described in

the advertisement was fictitious; indeed, each defendant

actually communicated with a person, and then arrived at the

identified place and entered it. As stated in Bell, each

defendant's "conduct, intent, culpability and dangerousness"

were as if the other "person" –- a victim –- actually existed

(citation omitted). 67 Mass. App. Ct. at 271.

The defendants argue, however, that criminal liability is

foreclosed by the Supreme Judicial Court's construction of the

human trafficking statute in Fan, 490 Mass. at 445-452. We do

not agree. The facts in Fan involved a defendant who ran

multiple brothels. The evidence presented came from several

customers of the brothels, as well as two of the women who

provided services, but the evidence did not link particular

customers to particular victims. The defendant argued that to

5 Our decision in Bell addressed questions reported by the
trial judge. Thereafter the defendant in Bell was tried and
convicted in the Superior Court, and on appeal from the
convictions the Supreme Judicial Court again addressed an issue
regarding the scope of attempt crimes. See Commonwealth v.
Bell, 455 Mass. at 412-417. The issue presented to the Supreme
Judicial Court was different from that before us in Bell, 67
Mass. App. Ct at 270-271, and nothing in the Supreme Judicial
Court's Bell opinion detracts from the reasoning in our earlier
decision.
9

prove a violation of the statute, the Commonwealth needed to

charge and prove (and the jury needed to find) a "specific

victim" that the defendant had trafficked "at the specific

location" charged. Id. at 445. The court rejected that

argument, holding that under the statute the Commonwealth did

not need to prove the victim's identity. It concluded its

analysis by stating:

"Although the Commonwealth must prove beyond a
reasonable doubt that there was a victim, i.e.,
someone whom the defendant enabled or caused to engage
in commercial sexual activity, it need not prove the
identity of that person as an element of the offense."

Id. at 448.

The defendants seize on the language that "the Commonwealth

must prove that there was a victim," but in doing so they remove

the statement from its context. The Fan court was not

addressing an attempt crime, or issues raised by a law

enforcement sting operation. Rather, the court was merely

saying that the human trafficking crime must involve trafficking

of someone other than the defendant who is charged –- i.e.,

"another person." Put differently, a person could not be guilty

of "trafficking" herself. Fan, 490 Mass. at 447. As noted

above, that element is met here, because the defendants

attempted to engage in commercial sexual activity with another

person –- the purported prostitute (actually, a police officer)
10

with whom the defendants communicated. Nothing in Fan holds

that an attempt crime cannot be proved in the circumstances

here.6

2. "Recruit, entice . . . or obtain by any means." That

brings us to the defendants’ separate argument for dismissal –-

in essence, that the human trafficking statute does not apply

where a defendant responded to an advertisement offering sex for

a fee, but did not initiate or impel the offer of sex or stand

to profit from it.7 They argue "that the law was intended to

punish 'pimps' or those persons who traffic human beings for

financial gain. . . . The [L]egislature did not intend to

punish 'Johns' who offer another person a fee in exchange for

sexual conduct." And, the defendants point out, G. L. c. 272,

§ 53A, which predates G. L. c. 265, § 50, does explicitly

criminalize the simple offer of payment to engage in sexual

conduct, "whether such sexual conduct occurs or not." The

defendants contend that the existence of G. L. c. 272, § 53A is

evidence that G. L. c. 265, § 50 was not intended to encompass

the conduct at issue. Moreover, they argue, the human

6 We note that if the defendants were correct, then their
reasoning would also appear to foreclose the criminal charges in
this case under G. L. c. 272, § 53A, as that statute also
requires an offer to pay "another person."

7 We consider this argument because, if correct, it would
result in affirmance of the order below. See Lopes v.
Commonwealth, 442 Mass. 170, 181 (2004).
11

trafficking statute's five-year mandatory minimum sentence

further suggests that the human trafficking crime was intended

to be different in kind than the conduct prohibited by G. L.

c. 272, § 53A.

Some of the defendants’ arguments have considerable force

and, as discussed herein, we ultimately agree that the facts

presented to the grand jury were not sufficient to establish a

human trafficking charge. But the question before us is one of

statutory interpretation, and as always when confronting such a

question, we must start with the language of the statute. See

Worcester v. College Hill Props., LLC, 465 Mass. 134, 138-139

(2013) ("In interpreting the meaning of a statute, we look first

to the plain statutory language"). That language is broader

than the defendants contend. Notably, the Supreme Judicial

Court has rejected previous efforts by defendants to limit the

scope of the human trafficking statute (in ways other than the

defendants argue here), relying primarily upon the breadth of

the language the Legislature employed. See Commonwealth v.

Dabney, 478 Mass. 839, 852-856, cert. denied, 139 S. Ct. 127

(2018); Commonwealth v. McGhee, 472 Mass. 405, 418-420 (2015).

Here, the Commonwealth once again relies on the statute’s plain

language -- in particular, it argues that the defendants’

alleged conduct falls within the words "entice," "recruit," or

"obtain."
12

The Supreme Judicial Court has previously addressed the

meaning of the words "entice" and "recruit," as used in the

human trafficking statute, in Dabney, 478 Mass. at 852-856. In

Dabney, a defendant convicted of human trafficking challenged

the sufficiency of the evidence against him, arguing that he had

merely encouraged the victim, a former prostitute, to begin

prostituting again, but had not coerced her nor derived a

financial benefit. See id. at 852. The Dabney court rejected

those arguments. The court held that coercion or force, which

is a required element of the Federal human trafficking crime, 18

U.S.C. § 1591, is not found in the language of G. L. c. 265,

§ 50, and is not an element of the Massachusetts crime. Id. at

855-856. Nor does the Massachusetts statute require that the

defendant receive a financial benefit, as with a pimp: "an

individual who knowingly enables or causes another person to

engage in commercial sexual activity need not benefit, either

financially or by receiving something of value" (citation

omitted). Id. at 855.

The facts of Dabney, however, were materially different

than the facts here. Although those facts did not necessarily

include coercion, they did involve, unlike here, substantial

efforts by the defendant to convince the victim to engage in

prostitution. In Dabney, "[t]he jury could have found that the

defendant 'enticed' and 'recruited' the victim to engage in
13

prostitution because he told her that she was beautiful and

would make 'good money' from prostitution, controlled the terms

of her client visits, encouraged her to advertise on Backpage,

and helped her pay for and set up the Backpage account."

Dabney, 478 Mass. at 854.

The Dabney court addressed the meaning of "entice" and

"recruit" in the context of the above facts. The court noted

that the dictionary definition of "entice" is to "incite,"

"instigate," "draw on by arousing hope or desire," "allure,"

"attract," "draw into evil ways," "lead astray," or "tempt."

Dabney, 478 Mass. at 855, quoting Webster’s Third New

International Dictionary 757 (1993). The court concluded that

"[o]ne may entice, for example, simply by making an attractive

offer." Dabney, supra at 856. Similarly, the court listed the

definitions of "recruit" as to "hire or otherwise obtain to

perform services," to "secure the services of" another, to

"muster," "raise," or "enlist." Id. at 856, quoting Webster's,

supra at 1899. In Dabney, the court concluded that the

definitions of "entice" and "recruit" were met by the facts in

that case, and affirmed the convictions of human trafficking.

Id.

The Commonwealth argues that the facts presented to the

grand jury in this case are similarly sufficient to meet the

statutory language -- including not only "entice" and "recruit"
14

but also "obtain" -- but we are not persuaded. In our view,

both "entice" and "recruit," as used in the statute, contain an

element of causing another person to engage in an act or

practice in which the person was not otherwise intending to

engage. Many, if not all, of the definitions cited in Dabney

contain this aspect. It is present, for example, in the words

"tempt," and "incite," and perhaps most usefully, in "attract."

Dabney, 478 Mass. at 855-856. Notably, the Dabney court’s

example of a broad reading of entice uses the word "attract" -–

"to make an attractive offer" (emphasis added). Id. And to

attract means that the allegedly attracting party (the

defendant) must at least have initiated the behavior of the

party attracted (the victim). Indeed, the element of causing

someone to do something that they otherwise were not intending

is present in the Dabney court’s description of the defendant’s

conduct in that case –- the defendant "controlled,"

"encouraged," and "helped" the victim. Id. at 854. Nor do we

think the word "recruit" is broader than "entice." "Recruit,"

in the context of human trafficking, similarly means that the

defendant must initiate the concept that the victim will engage

in commercial sexual activity.8 See Heritage Jeep-Eagle, Inc. v.

8 For example, an employer has not "recruit[ed]" a job
applicant that simply approached the employer and asked for a
job.
15

Chrysler Corp., 39 Mass. App. Ct. 254, 258 (1995) ("While courts

should look to dictionary definitions and accepted meanings in

other legal contexts . . . their interpretations must remain

faithful to the purpose and construction of the statute as a

whole").

The facts of this case do not fall within the above

construction. The defendants here responded to advertisements

posted by someone else -– they did not initiate the offer of

commercial sex nor, on these facts, did they take actions to

cause another person to do something that person did not

otherwise intend to do. The defendants did not "incite," or

"tempt," nor did they "attract." Rather, the person they were

communicating with had initiated the offer, and no tempting was

required or occurred.9

The next question is whether the statute’s last phrase of

the list –- "obtain by any means" –- has even greater breadth

than "recruit" or "entice," such that it can encompass the

conduct of the defendants here. We conclude that it does not.

The dictionary definition of "obtain" is perhaps broader than

"entice" or "recruit" -- it is "to gain or attain . . .

9 As is evident from the above discussion, a person who pays
another for sex thus could violate the human trafficking
statute, if their conduct also amounted to enticing or
recruiting a person to engage in commercial sexual activity
where the person did not previously so intend.
16

usu[ally] by some planned action or method." Webster’s Third

New International Dictionary 1559 (2002). Arguably, this

definition -– to "attain" -– could encompass actions of

defendants who merely respond to an advertisement and complete

(or attempt to complete) the sexual transaction first proposed

by the offeror.

In the context of the human trafficking statute, however,

we decline to read "obtain" so broadly, for several reasons.

First, the word itself has a narrower but commonly used meaning,

which is not simply to get or attain, but to possess or control.

Obtain derives from the Latin "tenere" –- to hold. One

"obtains" property, for example, which means they hold or

possess it. Similarly, here the statute requires the defendant

to "obtain" a "person." Context matters, and the use of

"obtain" in the statute is in the context of "trafficking,"

which implies some level of controlling or changing the victim’s

will or intent.10

So construed, the defendants’ conduct here did not attempt

to obtain a person, because the defendants did not attempt to

possess or control someone. They responded to an offer in

10We are here construing only the word "obtain." The words
"entice" or "recruit" do not require that the defendant control
the victim, and in construing "obtain" we are not reimporting a
general element of coercion into the statute. Nor does the
level of control for "obtain[ing]" necessarily have to rise to
the level of coercion.
17

accordance with its terms (so far as appears from the facts

before the grand jury). We are bolstered in this view by at

least two useful aids to construction of statutes. The first is

the doctrine of ejusdem generis, which states that where, as

here, "general words follow specific words in a statutory

enumeration, the general words are construed to embrace only

objects similar in nature to those objects enumerated by the

preceding specific words." Banushi v. Dorfman, 438 Mass. 242,

244 (2002), quoting 2A N.J. Singer, Sutherland Statutory

Construction § 47.17, at 273-274 (6th ed. rev. 2000). See

Powers v. Freetown-Lakeville Regional Sch. Dist. Comm., 392

Mass. 656, 660 n.8 (1984). Here, the words that precede

"obtain" in the list contain an element either of causing the

other "person" to do something they otherwise did not intend

(recruit or entice), or of somehow physically affecting the

other person’s actions (transport, harbor, provide). The

Commonwealth would have us construe "obtain" not to be limited

in either of these ways, but the doctrine of ejusdem generis

suggests otherwise, and thus supports the construction of

"obtain" that we adopt here.

The second helpful aid is an important piece of legislative

history. As the defendants point out, the "payment for sex"

statute, G. L. c. 272, § 53A, predates the human trafficking

statute, and expressly criminalizes the act of offering to pay
18

for sex. Of course, the fact that another criminal statute

already applies to the conduct at issue does not, standing

alone, mean that we should construe such conduct to be excepted

from the human trafficking statute. The Legislature can (and

often does) criminalize the same conduct under two different

statutes. See Dabney, 478 Mass. at 855-856; Commonwealth v.

Hudson, 404 Mass. 282, 285-286 (1989). Here, however, the

Legislature considered and amended § 53A at the same time that

it enacted the human trafficking statute.

We find the Legislature’s amendment to G. L. c. 272, § 53A,

to be material to our analysis here.11 The human trafficking

11The parties have each cited other purported "legislative
history" to us, but we do not find the other history helpful to
our analysis. The defendants, for example, cite a statement
made by a single legislator during discussion of the house bill
precursor to G. L. c. 265, § 50: "It's not the old fashioned
model of trafficking. . . . We will look at perpetrators as
persons who are trafficking other human beings for financial
gain" (emphasis added). State House News Service (House Sess.),
Nov. 15, 2011. As noted above, the Supreme Judicial Court has
expressly rejected the notion that the statute criminalizes only
actions of defendants that are directed at financial gain. See
McGhee, 472 Mass. at 418-420. But in any event the cited
statement carries little or no weight as "legislative history":
"[e]vidence as to statements attributed to individual
legislators as to their motives or mixtures of motives in
considering legislation are not an appropriate source from which
to discover the intent of the legislation." Administrative
Justice of the Hous. Court Dep't v. Commissioner of Admin., 391
Mass. 198, 205 (1984).

The Commonwealth’s purported history is equally unhelpful.
The Commonwealth cites a quote from Dabney, 478 Mass. at 853, to
the effect that the Legislature intended to "change the focus
. . . from targeting prostitutes to going after the men who pay
19

statute was first enacted on November 21, 2011, as the twenty-

third section of a comprehensive bill that addressed several

aspects of sex crimes in the Commonwealth. See 2011 Mass. H.B.

3808, § 23. At the same time, in the twenty-fifth section of

the bill, the Legislature amended G. L. c. 272, § 53A, by (1)

separating out the crime of offering to pay for sex, and (2)

increasing the maximum possible punishment for that crime to two

and one-half years in the house of correction. See 2011 Mass.

H.B. 3808, § 25. Notably, however, the Legislature did not

establish a mandatory minimum sentence for the crime of offering

to pay for sex.

This legislative history is consistent with our conclusion,

as it indicates that the same Legislature that enacted a five-

year mandatory minimum sentence for human trafficking decided to

treat the crime of agreeing to pay for sex differently, with a

lesser, but increased, penalty. To be clear, we do not construe

this history as creating a carve out, such that the human

trafficking statute does not apply to any actions that fall

for sex with them" (emphasis added), suggesting that Johns are
indeed covered by the statute. The quote, however, could be
understood to refer to the amendments in the legislation that
increased the punishment for the persons paying for sex, which
previously were the same as those for sex workers. Moreover,
the quote is not from the legislative history of § 50, but
rather from personal comments made by then State Attorney
General, Martha Coakley, following then Governor Deval Patrick's
signing the bill into law. Gov. Patrick Signs Bill Against
Human Trafficking, Associated Press, Nov. 21, 2011.
20

within G. L. c. 272, § 53A. The language of the human

trafficking statute that we have already discussed –- words like

"entice," "recruit" and "obtain" -– plainly can encompass some

conduct also covered by § 53A.12 Where we find the history

helpful, however, is in suggesting that § 53A sufficiently

differs from G. L. c. 265, § 50 that some conduct covered by

§ 53A is not covered by § 50, and thus not subject to a five-

year mandatory minimum sentence. The conduct alleged by the

Commonwealth here falls into that category. As the evidence

presented to the grand jury did not as a matter of law

constitute "entic[ing]," "recruit[ing]," or "obtain[ing]"

"another person" so as to constitute trafficking of a person for

sexual servitude, the orders dismissing the human trafficking

indictments against each defendant are affirmed.

So ordered.

12The words "by any means" do not add materially to our
analysis of the meaning of "entice," "recruit," or "obtain."
"By any means" evidences the Legislature’s intent that the
statute have a broad scope. But the phrase "by any means" does
not change the meaning of the words that it accompanies.