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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 

10 Each 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

11 The 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 

12 Of 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,

13 Though 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, twentyfive 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.