Opinion
19-P-1413
11-23-2020
COMMONWEALTH v. MARVIN POMPILUS.
NOTICE: 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
A State-wide grand jury returned multiple indictments against the defendant, Marvin Pompilus, in three counties, for trafficking of persons for sexual servitude (trafficking) and deriving support from prostitution (deriving support). The indictments, involving seven victims, were consolidated in Suffolk County. Following a jury trial in the Superior Court, the defendant was convicted of ten counts of trafficking and seven counts of deriving support After the defendant was sentenced, he filed a timely notice of appeal. Approximately one year later, the defendant filed a motion to vacate his convictions and to dismiss all indictments that charge duplicative offenses pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The Commonwealth conceded that four of the challenged deriving support convictions were duplicative of the trafficking convictions, and the judge dismissed those convictions. The motion judge, who was also the trial judge, denied the remainder of the motion. The defendant did not file a notice of appeal from that order.
The jury found the defendant not guilty of two counts of trafficking and one count of deriving support. Some indictments, not relevant to this appeal, were disposed of prior to trial. Also, during the trial, one indictment was dismissed at the request of the Commonwealth, and the judge allowed a motion for a required finding of not guilty on another indictment. None of these indictments are at issue on appeal.
On appeal, the defendant contends that (1) the evidence of trafficking as to each victim was insufficient, (2) two of the three trafficking convictions of K.M. and of S.M. are duplicative, (3) the Commonwealth committed egregious government conduct, and (4) the judge erred in admitting, for its probative value, the prior grand jury testimony of I.N. We affirm.
As required by G. L. c. 265, § 24C, we identify the victims by their initials.
1. Sufficiency of the evidence. We review claims of insufficient evidence to determine "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Circumstantial evidence can suffice to support a conviction. See Commonwealth v. Webster, 480 Mass. 161, 167 (2018).
General Laws c. 265, § 50 (a), provides, in relevant part: "Whoever knowingly . . . 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 . . . shall be guilty of the crime of trafficking of persons for sexual servitude . . . ." The phrase "[c]ommercial sexual activity" is defined as "any sexual act on account of which anything of value is given, promised to or received by any person." G. L. c. 265, § 49. Notwithstanding the defendant's contention, control of the terms of the client visit is not a required element necessary to prove trafficking. See Commonwealth v. Dabney, 478 Mass. 839, 856-857 (2018). In addition, force or coercion is not necessary for the Commonwealth to meet its burden. Id. at 852-854. Indeed, "[t]he clear and deliberate focus of the statute is the intent of the perpetrator, and not the means used by [him] to accomplish his . . . intent." Commonwealth v. McGhee, 472 Mass. 405, 415 (2015).
a. The victims. i. E.B. E.B., a heroin user, was on probation in 2015 in the State of Maine when she stopped reporting to her probation officer and traveled to Massachusetts with her boyfriend. A warrant was issued for her arrest. E.B.'s boyfriend posted advertisements (ads) on Backpage.com for "dates" where men paid for sex with E.B. While staying at a hotel on Cape Cod, E.B. met the defendant and gave him her telephone number. A few days later, E.B. left her boyfriend and joined the defendant and his friend, Gabriel Nieves.
From June 12, 2015 to June 15, 2015, the defendant stayed at the Yarmouth Resorts, which he paid for with a prepaid Visa debit card ending in x4430 (x4430 Visa card). He provided the hotel with a telephone number ending in x7827. On June 14, 2015, Nieves was driving a car that was pulled over by the police. E.B. and the defendant, who was in possession of $6 thousand were passengers in the car.
E.B., who the defendant called his "Barbie," traveled with him from hotel to hotel. The defendant paid for E.B.'s food, hotel and clothing, and provided her with drugs, free of charge. On June 18, 2015, the defendant registered at the Hyatt in Braintree with the x4430 Visa card. Video surveillance showed E.B. standing next to the defendant at check in. That night an ad was placed on Backpage.com for a "BARBIE GIRL!!" in the South Coast area and included the x7827 telephone number. The ad was also paid for with the x4430 Visa card.
Following her arrest, described infra, E.B. stayed in contact with the defendant. She programmed her inmate telephone account to call the x7827 number and a second number, ending in x9494, provided by the defendant. The two spoke often and, as they were calls from a jail, they were recorded.
ii. I.N. I.N., a heroin addict, posted ads on Backpage.com for sex work. She met the defendant in the summer of 2015, while E.B. was still working with him. The defendant provided heroin to I.N. in exchange for her sex trade earnings. Over the course of a month, the defendant paid for I.N.'s Backpage.com ads, dropped her off at "outcall dates," and collected the money that she was paid. On June 26, 2015, in response to a tip, Randolph police officers arrested I.N. for drug-related offenses. She was with the defendant, who had $1,128 in cash, and E.B., who was arrested on the Maine warrant.
An outcall date is when the seller travels to the buyer.
On July 1, 2015, the defendant registered at the Hyatt in Braintree using the x4430 Visa card. He told E.B. that he was "getting ready to take fuckin' what's her name [I.N.]" from Nieves. Around that same time, I.N. posted her own ad on Backpage.com. When she arrived at a hotel in Braintree to meet her date, she was met by the defendant. He gave I.N. heroin and let her use the hotel room for dates, in exchange for I.N.'s sex worker earnings. Thereafter, I.N.'s Backpage.com ads were paid with the defendant's prepaid Visa card ending in x5063 and the x4430 Visa card.
iii. C.W. In an unrelated arrest in Randolph on the same night that I.N. and E.B. were arrested, C.W. encountered the defendant outside the police station. Nieves, I.N., and C.W. got into a car with the defendant after he offered heroin to C.W. The group traveled to a hotel in Norfolk County where I.N. posted an ad on Backpage.com. When her dates arrived, the other three people left the hotel room. I.N. gave her earnings to the defendant or to Nieves who then gave the money to the defendant. C.W. said I.N. was treated "like she was just their worker."
The defendant told C.W. that she was to replace E.B. and "start making him money" in exchange for drugs. He told her to create an ad on Backpage.com. On June 28, 2015, an ad appeared featuring the x7827 telephone number and C.W.'s actual e-mail address. Later that day, C.W. fled from the defendant.
iv. K.M. On July 9, 2015, the defendant told E.B. that he anticipated making $4,000 to $5,000 and he planned to control the women and their drug habits. The defendant registered at the Hyannis Harbor Hotel using the x5063 Visa card. Thereafter, an ad on Backpage.com featured the x7827 telephone number, a photograph of a red headed woman, and an e-mail address belonging to K.M. The defendant told E.B. that he would make back the money that he spent on the hotel room because they were getting many telephone calls.
During the defendant's hotel stay from July 9, 2015 to July 11, 2015, eight ads were posted on Backpage.com with K.M.'s photograph and either the x7827 or x9494 telephone numbers. Most of the ads were posted from an IP address assigned to the Hyannis Harbor Hotel.
On July 11, 2015, the defendant registered at the Hyannis Holiday Motel with the x5063 Visa card. He gave the motel the x9494 telephone number. Four more Backpage.com ads appeared with K.M.'s photograph and either the x7827 or x9494 telephone numbers. The defendant told E.B. that the "bitch[es]" were keeping big tips and that he hoped to earn $8,000 by the weekend.
The defendant registered at the Hyannis Harbor Hotel from July 13, 2015 to July 15, 2015. Eight Backpage.com ads were posted with the x7827 telephone number during that time, and most from an IP address assigned to the hotel. Another Backpage.com ad appeared featuring K.M. and the x9494 telephone number, but with a location of Boston.
On July 19, 2105, K.M. registered at the Candlewood Suites in Norwood using the x5063 Visa card. Three Backpage.com ads were posted during this time. K.M. called the Backpage.com customer service lines for the x4430 and x5063 Visa cards using her cellular telephone. Thereafter the defendant registered at the Quality Inn in Yarmouth from July 21, 2015 to July 23, 2015. During this time, K.M. posted an ad on Backpage.com. S.M., described infra, joined the defendant and K.M. at this hotel, and posted ads on Backpage.com. The defendant paid for S.M.'s hotel, food, and supplies in exchange for S.M.'s earnings. On July 25, 2015, the defendant told E.B. that he "dropped" K.M. because she was arguing with S.M.
v. S.M. S.M., a drug user and a dancer, met the defendant in the summer of 2015. Shortly thereafter, the defendant sent text messages from the x9494 telephone number to her offering drugs. During this exchange, S.M. told the defendant that she had her own place in Mattapan. The defendant told her that he wanted to take her to a resort on Cape Cod. He also told E.B. that he had "one real good game right now" because S.M. had her own place and he did not need to spend money on hotels. The defendant went to S.M.'s home in Boston with K.M. Photographs and text messages confirmed that the trio were in Boston.
From July 17, 2015 to July 19, 2015, the defendant registered at the Ramada Inn in Boston using the x5063 Visa card. During this time, K.M. posted ads in the Boston section of Backpage.com featuring Fiona (the name used by K.M.) and S.M.'s actual first name. At checkout, the bill included a charge from the room to the x7827 telephone number.
During the last week of July, 2015, the defendant and S.M. exchanged numerous text messages that showed that she was still working for the defendant. Indeed, on August 1, 2015, S.M. sent a text message to the defendant that she wanted to split her earnings sixty-forty.
vi. J.V. J.V., a heroin addict, began to work for the defendant in 2013. The defendant paid for her hotel rooms, Backpage.com ads, and food. He also provided her with drugs and kept all of J.V.'s earnings. By the summer of 2015, although he was supplying drugs to her, J.V. was no longer working for the defendant. However, on August 2, 2015, the defendant contacted J.V. The next day, he checked into the Comfort Inn in Randolph. An ad was posted on Backpage.com featuring J.V.'s actual e-mail address and the x7827 telephone number. The police were called as a result of an argument between the defendant and J.V. When the police arrived, the defendant was not there. He was located with S.M. later that evening. When he was arrested, the defendant had in his possession the x7827 telephone and the x4430 and x5063 Visa cards.
The x7827 telephone contained voicemail messages from men in response to the "BARBIE GIRL!!" ad.
Here, the jury could have found that the defendant enticed and recruited or attempted to entice and recruit each of the victims to engage in the commercial sex trade. The evidence included the defendant's payment of hotels, food, and supplies for the victims. He also provided the victims, most of whom were addicts, with drugs. Finally he assisted with and paid for most of the Backpage.com ads that advertised the victims. This is particularly compelling where the credit cards and telephone numbers associated with these ads were attributable to the defendant.
The defendant was found not guilty of all indictments relating to L.D., another woman.
2. Duplicative convictions. The defendant next claims that trafficking is chargeable only as a continuing offense and therefore certain convictions are duplicative. Put another way, he submits that the conduct charged as to K.M. and S.M. constituted a single, continuing offense, and that the resulting multiple convictions for trafficking were duplicative. He acknowledges that no court has so held and we decline to do so here. Cf. Commonwealth v. Peretz, 212 Mass. 253, 254 (1912) (deriving proceeds of prostitution is continuing offense).
The parties do not agree on whether this issue was preserved for appellate review as a result of the defendant's failure to file a notice of appeal following the denial, in part, of his motion for postconviction relief. This, however, is of no moment, as it does not alter the result.
The defendant's argument implicates the statute's unit of prosecution which is defined as "a criminal act or course of conduct punishable by law." Commonwealth v. Dykens, 473 Mass. 635, 640 n.4 (2016). A unit of prosecution is determined by interpreting the statute, including consideration of the statute's text and legislative purpose. See Commonwealth v. Bolden, 470 Mass. 274, 277 (2014). It is undisputed that the purpose of the trafficking statute is to punish conduct directed at a discrete victim. See McGhee, 472 Mass. at 419-420. Here, the evidence showed that the defendant sexually exploited the victims in various locations, in numerous hotels, and in three different counties over the course of more than eight weeks. None of the offenses were necessary or incidental to the others. See Commonwealth v. Suero, 465 Mass. 215, 221-223 & 221 n.6 (2013). The convictions are not duplicative as the statute punishes conduct injurious to a specific victim and thus, as here, supports a smaller unit of prosecution.
3. Egregious government conduct. The defendant next claims that the convictions relating to S.M. and K.M. were the result of coerced testimony from S.M. and therefore must be reversed. S.M. failed to appear at a final pretrial conference in response to a summons; a capias issued for her arrest. Following her arrest and a Martin hearing on February 8, 2018, the judge appointed counsel for S.M. and determined that she had a Fifth Amendment privilege. Thereafter the judge allowed the Commonwealth's motion to immunize her. The judge found S.M. in contempt because she refused to testify. He incarcerated her until the end of trial or no later than February 19, 2018. S.M.'s attorney told the judge that she was suffering symptoms of drug withdrawal. As a result, the Commonwealth suggested that she be incarcerated at MCI-Framingham where drug treatment services were available. The judge declined to do so. On February 13, 2018, S.M. was transported to the courthouse and agreed to testify. She testified that she was "still like in withdrawal a little" but that she was sober and understood the questions. Following her testimony, the contempt judgment was discharged.
See generally Commonwealth v. Martin, 423 Mass. 496 (1996).
The defendant claims, for the first time on appeal, that the temporary incarceration of S.M., following her refusal to testify, was egregious government conduct that requires reversal of the convictions relating to S.M. and K.M. We review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Santos, 95 Mass. App. Ct. 791, 794-795 (2019). The parties agree that this claim is similar to an entrapment defense. Commonwealth v. Monteagudo, 427 Mass. 484, 485 n.1 (1998). "The challenge under egregious conduct is a constitutional due process challenge and is 'reserved for . . . only the most intolerable government conduct.'" Id., quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991). Accordingly, the defendant must show "excessive government involvement in creating the prosecuted crime" and extreme "government coercion to induce the defendant to commit the crime." United States v. Mosley, 965 F.2d 906, 910-912 (10th Cir. 1992). See Commonwealth v. Gratereaux, 49 Mass. App. Ct. 1, 3-6 (2000). As to the first part of the test, the defendant alleges that an officer of Backpage.com was assigned to work with law enforcement and therefore was a member of this prosecution team. Accordingly, this bare allegation, which fails to connect this employee to this investigation, is insufficient to demonstrate government creation of the crime.
As to the second part of the test, the defendant argues that the government confined S.M. without access to drug treatment until she agreed to testify. He does not cite to any authority -- and nor have we found any -- that holds that the detention of a contemnor is improperly coercive. Moreover, his argument overlooks the fact that when S.M. testified, she reported that she was sober and felt better.
4. Admission of grand jury testimony. The defendant's final claim is that it was error to admit, for its probative value, the prior inconsistent grand jury testimony of I.N. As a general matter, the prior inconsistent statement of a witness may be introduced, but only for purposes of impeachment. See Commonwealth v. Bookman, 386 Mass. 657, 665 (1982); Commonwealth v. Carrasquillo, 54 Mass. App. Ct. 363, 368 (2002) ("it remains the customary rule that [prior inconsistent statements] may be received only as a means of impeaching the present credibility of the witnesses"). However, under certain conditions, prior inconsistent testimony by a witness before a grand jury can be admitted as substantive evidence. See Commonwealth v. Daye, 393 Mass. 55, 71 (1984). To do so, there must be an opportunity for the effective cross-examination of the witness at trial. The grand jury testimony must be the statement of the witness and not merely a confirmation or denial of an allegation by the interrogator. And, the grand jury testimony must not be coerced. Commonwealth v. DaSilva, 471 Mass. 71, 76 (2015). See Mass. G. Evid. § 801(d)(1)(A) (2019). Here, the defendant contends, without citation to the transcript, that he was unable to meaningfully cross-examine I.N. This is belied by the record. While the defendant concedes that the witness's grand jury testimony was inconsistent with her trial testimony, I.N. recalled the underlying events and was cross-examined about her confinement in the hotel room. And, the record is explicit that I.N.'s grand jury testimony was her own, not the product of coercion, and was more than a mere confirmation or denial of the allegation. See Daye, supra at 74-75.
The parties do not agree on whether this issue was preserved; however, the result is the same under either standard of review.
At trial, I.N. minimized the defendant's role in this case. Over the defendant's objection, the Commonwealth was permitted to introduce in evidence I.N.'s grand jury testimony that the defendant confined her in a hotel room and made her participate in dates all night.
To the extent that the defendant argues for the first time on appeal that the evidence was insufficient as to the convictions relating to I.N. because of the admission of her prior testimony, this argument also fails. The required corroborative evidence of the prior statement need only "offer at least some additional evidence on [the challenged] element," and "need not be sufficient in itself to establish a factual basis for each element of the crime." Commonwealth v. Sineiro, 432 Mass. 735, 741-742 (2000). Moreover, "[t]his corroboration requirement concerns the sufficiency of the [prior testimony], not its admissibility." McGhee, 472 Mass. at 423. Finally, the corroborative evidence may be circumstantial. Commonwealth v. Noble, 417 Mass. 341, 345-346 (1994). Here the other evidence adduced at trial was sufficient to corroborate I.N.'s grand jury testimony that the defendant forced her to remain in the hotel room, to post an ad on Backpage.com, and to perform sex work.
Judgments affirmed.
By the Court (Vuono, Meade & Blake, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 23, 2020.