Opinion
21-P-13
07-14-2022
COMMONWEALTH v. XIU CHEN.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Xiu Chen, appeals from her convictions, after a Superior Court jury trial, of six counts of trafficking of persons for sexual servitude, G. L. c. 265, § 50 (a), six counts of conspiracy to commit trafficking of persons for sexual servitude, G. L. c. 274, § 7, five counts of deriving support from prostitution, G. L. c. 272, § 7, and five counts of keeping a house of ill fame, G. L. c. 272, § 24. Concluding that exploitation is not an element of trafficking of persons for sexual servitude, that the judge correctly applied the rape shield statute, that the jury instructions were proper, and that a detective's testimony about sex trafficking investigations was properly admitted, we affirm.
The jury also convicted the defendant of four counts of money laundering, G. L. c. 267A, § 2. The defendant raises no issues on appeal regarding these convictions.
1. Exploitation.
The Legislature passed the trafficking of persons for sexual servitude statute as part of an act titled, "An act relative to the commercial exploitation of people." St. 2011, c. 178, § 23. The statute provides in relevant part:
"Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, another person to engage in commercial sexual activity, . . . or causes a person to engage in commercial sexual activity . . .; or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude."
G. L. c. 265, § 50 (a). Despite the title of the act, "the plain and ordinary meaning of the actus reus in the . . . statute does not . . . necessarily 'connote[] some level of inducement, manipulation, or coercion.'" Commonwealth v. Dabney, 478 Mass. 839, 855 (2018). See Commonwealth v. McGhee, 472 Mass. 405, 415 (2015) ("whether a person being trafficked for sexual servitude has been forced or coerced into engaging in such activities is immaterial for purposes of ascertaining whether a criminal act has been committed"); Commonwealth v. Gonzalez, 99 Mass.App.Ct. 161, 169 (2021) (force not required to prove charge of trafficking of persons for sexual servitude).
The Supreme Judicial Court has specifically discerned that one may "entice . . . simply by making an attractive offer" and may "'recruit' [by] 'hir[ing] or otherwise obtain[ing someone] to perform services,' . . . 'secur[ing] the services of' another, . . . [or] 'muster[ing],' 'rais[ing],' or 'enlist[ing] [another].'" Dabney, 478 Mass. at 856, quoting Webster's Third New International Dictionary 1899 (1993). Here, the jury found on all six counts that the defendant had "recruit[ed]" and "entic[ed]" a person to engage in commercial sexual activity.The defendant did not need to exploit or victimize to recruit or entice. See Dabney, supra at 854 ("The jury could have found that the defendant 'enticed' and 'recruited' the victim to engage in 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"). Accordingly, the defendant's argument that the Commonwealth failed to prove that the victims were exploited fails.
On all six counts, the jury also found that the defendant had "provid[ed]" and "obtain[ed] by any other means" a person to engage in commercial sexual activity. On five counts, the jury found that the defendant had "harbor[ed]" and "transport[ed]" a person to engage in commercial sexual activity and had "benefit[ed] financially" from a violation of G. L. c. 265, § 50 (a).
2. Rape shield statute.
The rape shield statute largely prohibits the admission of "[e]vidence of the reputation of a victim's sexual conduct" and "[e]vidence of specific instances of a victim's sexual conduct" in investigations or proceedings involving, among other crimes, trafficking of persons for sexual servitude. G. L. c. 233, § 21B. Here, the judge properly excluded questions about the victims' histories of employment to exclude any implication that they were previously engaged in prostitution.
Although not relevant here, "evidence of the victim's sexual conduct with the defendant or evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim" may be admissible. G. L. c. 233, § 21B.
Some evidence regarding the victims' histories of employment was admitted. One victim testified that she did not perform prostitution at her other place of employment, and another witness admitted that most of the women knew or were not surprised to hear that they were expected to masturbate the clients.
The defendant's theory that it is a defense to a charge of sex trafficking that the victims had worked as prostitutes previously is not sound. See McGhee, 472 Mass. at 427.
"[N]othing in the language of the human trafficking statute suggests that it excludes conduct aimed at victims who have engaged in prostitution in the past. An individual who previously has worked as a prostitute nonetheless might decide to engage in a particular act of prostitution." Dabney, 478 Mass. at 856. A person "engage[s]" in commercial sexual activity with each exchange of sexual services for a fee. Commonwealth v. Lowery, 487 Mass. 851, 862 (2021). Accordingly, "[t]he exclusion of evidence pertaining to [the victims'] alleged histor[ies] of prostitution had no bearing on whether the defendant[] violated G. L. c. 265, § 50 (a), and such exclusion did not prejudice the defendant['s] case[]." McGhee, supra. See Dabney, supra at 840-841, 854 ("The jury could have found that the defendant 'enticed' and 'recruited' the victim to engage in prostitution" despite victim's history of prostitution). Cf. Commonwealth v. Matos, 78 Mass.App.Ct. 578, 579 (2011) (evidence that minor previously engaged in prostitution relevant to whether defendant induced minor to engage in prostitution). The judge properly excluded questions regarding the victims' alleged prior prostitution.
3. Jury instructions.
"Trial judges have 'considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration.'" Commonwealth v. Alden, 93 Mass.App.Ct. 438, 444 (2018), quoting Commonwealth v. Kelly, 470 Mass. 682, 688 (2015). As the defendant objected at trial, "we consider whether there was error and, if so, whether the error was prejudicial." Commonwealth v. Rivera, 97 Mass.App.Ct. 285, 295 (2020), citing Commonwealth v. Womack, 457 Mass. 268, 273 (2010).
The judge instructed the jury that "[t]he particular title of the [trafficking of persons for sexual servitude] statute is not important." Here, the title that the judge instructed the jury to disregard, "trafficking of persons for sexual servitude," was written by the publisher, Thomson Reuters, not the Legislature. The only title provided by the Legislature was "An act relative to the commercial exploitation of people." St. 2011, c. 178. Although the title of a statute may be instructive in statutory interpretation, see, e.g., Berriault v. Wareham Fire Dist., 365 Mass. 96, 96-97 (1974), "[t]he title cannot control the plain provisions of the act," Bay Colony Mktg. Co. v. Fruit Salad, Inc., 41 Mass.App.Ct. 662, 666 n.5 (1996), and the interpretation of a statute is a legal question reserved for the judge, not the jury. See Commonwealth v. Trotto, 487 Mass. 708, 734-735 (2021). Accordingly, the judge acted within his discretion in instructing the jury that the publisher-supplied title of the statute was unimportant.
The judge also instructed the jury, "It is irrelevant whether those women consented to engage in prostitution." This is a correct statement of law. See McGhee, 472 Mass. at 427 ("whether [the victim] was a willing participant in the defendants' [pimping operation]" was "irrelevant" to trafficking of persons for sexual servitude charges). Accordingly, the judge properly instructed the jury.
4. Testimony about the investigation.
The defendant argues that the admission of a detective's testimony about the sex trafficking investigation requires a new trial. "Because the defendant did not object at trial to the challenged testimony . . ., 'we review [her] claims to determine whether there was error, and, if so, whether the error created a substantial risk of a miscarriage of justice.'" Commonwealth v. Diaz, 100 Mass.App.Ct. 588, 596 (2022), quoting Commonwealth v. Bannister, 94 Mass.App.Ct. 815, 822 (2019) . Here, the detective testified to the steps of human trafficking investigations, including looking at how a business recruits employees and customers, determining how customers pay for services, and interviewing people who may have information about the business. The detective also testified that the state does not normally criminally charge sex buyers, mentioned the name of one officer who was not testifying as a witness, and referred to the operation as a "takedown operation."
The defendant had previously elicited testimony about this trooper.
In sexual assault cases, evidence about the course of an investigation is improper when it suggests an inference that the disputed testimony of a victim is credible, which is a factual determination properly left to the jury. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The detective's testimony, however, suggested no such inference but rather provided the jury with background information for the case. The judge acted within his discretion in allowing the testimony.
Judgments affirmed.
The panelists are listed in order of seniority.