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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 socalled "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 

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

(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 

10 We 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 

11 The 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 twentythird 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 fiveyear 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 fiveyear 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.

12 The 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.