Commonwealth v. Khan ( 2017 )

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16-P-1216 Appeals Court
COMMONWEALTH vs. MOHAMMED T. KHAN.1
No. 16-P-1216.
Middlesex. September 19, 2017. - November 28, 2017.
Present: Vuono, Blake, & Singh, JJ.
Larceny. Practice, Criminal, Required finding, Instructions to
jury, Assistance of counsel. Evidence, Joint venturer,
Fingerprints.
Indictments found and returned in the Superior Court
Department on May 21, 2014.
The cases were tried before Diane M. Kottmyer, J.
David H. Erickson for the defendant.
Nicole Nixon, Assistant District Attorney, for the
Commonwealth.
BLAKE, J. Following a jury trial in the Superior Court,
the defendant, Mohammed T. Khan, was convicted of seven counts
of larceny over $250 from a person older than the age of sixty,
and was adjudged by the trial judge to be a common and notorious
1
Also known as Mohammed T. Kann.
2
thief.2 The defendant appeals claiming that the judge erred in
(1) denying his motions for required findings of not guilty, (2)
instructing the jury on joint venture liability rather than
accessory after the fact, and (3) admitting fingerprint
evidence. He also claims that his trial attorney was
ineffective. We affirm.
Background. In the light most favorable to the
Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979), the jury could have found the following facts.
1. The scam. In February, 2014, each of the four victims
received telephone calls from individuals who claimed that the
victim's grandchild was in jail and needed money for bail. The
caller directed the victims to send cash via FedEx packages to
addresses in Lowell, Massachusetts. All of the calls originated
from a Canadian area code and none of the callers had a foreign
accent.
A. Victim Johnson.3 On February 12, 2014, Johnson, an
eighty-six year old man living in Utah, received a telephone
call from a person identifying himself as Johnson's grandson,
2
The defendant also was charged with two counts of
attempted larceny over $250 from a person older than the age of
sixty. The Commonwealth filed a nolle prosequi as to one of
these counts and, as to the other, the judge entered a required
finding of not guilty at the close of the Commonwealth's case.
3
We have omitted in our recitation some identifying
information that appears in the record.
3
Corbin, claiming that he was in jail and needed help. Shortly
thereafter, Johnson received another telephone call from a
person identifying himself as Mr. Watson. Watson claimed that
Corbin had been in a motor vehicle accident and that, during a
search, police found drugs in the vehicle. Johnson was directed
to send $7,500 dollars in cash for Corbin's bail. Watson
indicated he would arrange for pick-up of the cash and delivery
through FedEx.
Johnson then received a telephone call from "the shipping
department" and was provided with a name and shipping address:
Arthur Smith, 218 Wilder Street, unit 32, Lowell. The package
was to be delivered to Lowell before 8:00 A.M. the following
day. The cash was placed in a yellow eight-by-ten-inch envelope
addressed as instructed with Johnson's return address on the top
left-hand corner. A FedEx employee arrived at Johnson's home.
The yellow envelope was placed in a FedEx package and addressed
as instructed.
The next morning, Johnson received another telephone call
from Watson, who explained that while the cash had been received
and Corbin had been cleared of the drug charges, the police also
found a gun in the car. As a result of this serious charge,
Watson explained that two lawyers would be necessary at the cost
of $15,000 each and that Corbin's bail had been increased from
$7,500 to $27,000. Watson said Corbin needed approximately
4
$50,000 that day. Johnson cobbled together another $42,000
dollars in cash4 and sent it via FedEx to a name and address
provided by Watson: Ryan Pederson, 282 Salem Street, apartment
9, Lowell. The money was packaged and sent in a similar fashion
to the first cash payment.
The following day, Johnson received yet another telephone
call from a person asking for the balance of the money owed.
When Johnson telephoned his son to inquire about Corbin, Johnson
realized he was the target of a scam. That same day, a person
telephoned Johnson indicating that the money should be sent to
an address in the Bronx, New York. Johnson did not send any
more money and filed a police report.
B. Victim Hobbs. In February, 2014, Hobbs, an eighty-two
year old woman who also lives in Utah, received a telephone call
from someone who identified himself as a police officer named
Stanley O'Reilly. O'Reilly asked Hobbs if she had a grandchild
named Michael, reporting that Michael had been arrested and
needed $7,500 for bail and other services. Hobbs packaged the
money as instructed by O'Reilly. The next day a FedEx employee
arrived to pick up the package. The package was addressed to
Stanley O'Reilly at 282 Salem Street, apartment 9, Lowell.
O'Reilly telephoned again the next day and told Hobbs that a gun
4
Between Johnson and his wife, they also gathered another
eight hundred dollars, but miscalculated that amount as $8,000,
and thought they sent a total of $50,000.
5
had been found in Michael's automobile and an additional $50,000
was needed for bail. Hobbs telephoned Michael's wife and
learned that Michael was not in prison. Hobbs notified police
and provided O'Reilly's name and telephone number.
C. Victim Senior.5 On January 28, 2014, Senior, an eighty-
three year old woman from Texas, received a telephone call from
someone she thought was her grandson, Tyler. This person told
Senior that he needed bail money after being involved in a hit-
and-run automobile accident and asked that she call his
attorney, David Hunter, at a telephone number he provided.
Senior telephoned Hunter who provided shipping instructions for
the cash, which Senior followed. Over two weeks in January and
February of 2014, Senior received additional telephone calls
asking her to send more money. She sent between $70,000 and
$90,000 via FedEx to addresses in Connecticut, Rhode Island,
Pennsylvania, and Massachusetts. She sent three packages to
Massachusetts. On February 11, 2014, Senior sent the first
package containing $5,000 to David Williams at 151 Wood Street,
apartment 7, Lowell. On February 12, 2014, she sent the second
package containing $6,500 to David Rowland at 104 Delmont
Avenue, apartment 20, Lowell. On February 13, 2014, she sent
5
Senior's testimony was read to the jury by the prosecutor
with the agreement of defense counsel.
6
the third package containing $5,600 to Tyler Jacobs at 218
Wilder Street, apartment 32, Lowell.
D. Victim Klein. On February 13, 2014, Klein, a sixty-
seven year old woman from Utah received a telephone call from
someone who identified himself as Detective Jonathan Watson.
Watson told Klein that her grandson had been in an automobile
accident and that drugs were found in the vehicle. Klein was
asked to send $7,500 for a "bail bondsman." Watson instructed
Klein to go to the bank and provided her with a telephone number
with a 438 area code6 to call for further instructions.
Klein received a second telephone call from someone
claiming to be a police officer who provided shipping
instructions. She addressed the package to Daniel McLean at 104
Belmont Avenue, unit 20, Lowell, although it should have been
104 Delmont Avenue. On February 14, 2014, Klein received a
telephone call reporting that a gun had been found and that it
was believed to have been used in a number of robberies. Klein
was told her grandson's bail had been increased to $37,000. She
sent another package with $24,000 to an address Watson provided
in the Bronx, New York. The next day Klein told her husband
6
The parties stipulated that the area code 438 "is an
exchange assigned to telephones, landline and cellular, that
become active in the region centered around Montréal, Quebec and
Canada."
7
what was happening. They telephoned the police and then FedEx
to stop the package, but they were unsuccessful.
2. Khan's role in the scam. In February, 2014, Khan told
his friend, Franklin Murungi, that FedEx would be delivering
packages to Murungi's address at 218 Wilder Street and to
Murungi's wife, Dorothy Mutembei's address at 104 Delmont
Avenue, both located in Lowell. Khan told Murungi that he
needed to use these addresses because Khan had been receiving a
lot of packages from FedEx to his apartment. Khan told Murungi
that the packages contained driving records from friends in
Africa who were coming to live in the United States. On
February 13, 2014, Murungi told Khan a package had been
delivered. Khan arrived at Murungi's home early the next
morning to retrieve the package. Murungi agreed to drive Khan
to a house at 282 Salem Street in Lowell. During the ride,
Murungi overheard Khan talking on the telephone to his sister.
The telephone conversation was about a package that had been
delivered. Khan was overheard telling his sister that he was on
the way to the address. When the telephone call ended, Khan
told Murungi that he no longer needed to go to Salem Street as
FedEx had already attempted delivery of the package. Instead,
he asked Murungi to take him to Murungi's wife's address at 104
Delmont Avenue as a package had been delivered and was ready for
pick-up. Murungi telephoned his wife and learned that a package
8
had been delivered to the apartment complex office. Murungi
drove Khan to the complex where he retrieved the package and
Murungi then dropped Khan off at his house with the FedEx
packages.
Two FedEx employees confirmed that they had delivered
packages on February 13 and 14, 2014. The first employee handed
a package on February 13, 2014, to a man at 218 Wilder Street,
Lowell, who had hearing aids in both ears.7 The next day, she
delivered another package to 282 Salem Street, apartment 9,
Lowell, to a different man. She attempted to deliver a second
package to that address later that day but no one was at the
apartment to accept delivery. In the interim, someone
telephoned to have the package redelivered. The second FedEx
employee testified that he took the package and delivered it.
On February 21, 2014, search warrants were executed at both
282 Salem Street and 218 Wilder Street in Lowell. No FedEx
packages or paperwork was discovered at those locations. Lowell
police Detective Gary Dillon spoke with Murungi both at 218
Wilder Street and at the police station. When asked about
receiving any packages, Murungi brought up a person by the name
of "Moe," whose last name began with a "K." This person lived
at 18 Belmont Street, apartment 12 in Lowell. Dillon, along
with other police officers, went to the Belmont Street
7
Khan has a hearing aid in each ear.
9
apartment. Khan answered the door and let the police officers
into the apartment. Khan's sister and her husband were also
present in the apartment. Dillon informed Khan that the police
were there to investigate a scam involving the shipment of
packages through FedEx.
Khan claimed that a cousin or an uncle from Canada had
shipped paperwork to Khan from Liberia to be able to get
licensed in the United States. He told Dillon that he did not
have any of the paperwork in the apartment. While Dillon was
speaking to Khan, Khan also was having a conversation with his
sister in a language Dillon did not understand. Although Dillon
asked Khan to speak to his sister in English so Dillon could
understand their conversation, Khan did not do so.8
After receiving written consent from Khan to search the
apartment, an opened FedEx package was found on the corner of
Khan's bed. The package was addressed to Arthur Smith, 218
Wilder Street, apartment 32 in Lowell. The return address was
Johnson's Utah address. Sandwiched between the opened FedEx
package and the eight-by-ten-inch yellow envelope was a white
envelope. The envelopes were photographed and later sent to the
Massachusetts State police laboratory for fingerprint analysis.
When asked about the package, Khan told Dillon that his cousin
8
Khan testified that he spoke to his sister in his native
dialect, Fula, to ask her what she wanted him to say and that
she instructed him to falsely mention a cousin.
10
or uncle would send a white male to pick up the packages from
Khan once received and that sometimes he let this person into
his bedroom with the packages. Khan reported that he received
about eight to ten packages at addresses on Delmont Avenue,
Wilder Street, and Salem Street. The detectives did not find
any cash. Dillon arrested Khan and, as he was leaving the
apartment, Khan's sister asked him about the possibility of
bail, in English. Processing of the package sent for analysis
revealed a fingerprint on the white envelope consistent with
Khan's right thumbprint.
At trial, Khan testified that his fingerprint was on the
white envelope because he gave the envelope, containing $200, to
his sister as payment for Liberian licenses for him and his
roommate. He also claimed that at the time that he gave her the
white envelope, he also gave her the FedEx package that was sent
by Johnson. When Khan was asked why he lied to the officers
about who sent the packages, he claimed that he was protecting
his sister who asked him to furnish her with addresses. Khan
further claimed that he did not know of the underlying scheme
and received no economic benefit from it.
Discussion. 1. Sufficiency of the evidence. Khan claims
that the judge improperly denied his motions for required
findings of not guilty made at the close of the Commonwealth's
case and again at the close of the evidence. He argues that the
11
evidence was insufficient to prove that he participated as a
joint venturer in the underlying scheme. We review the evidence
to determine "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." Latimore, 378 Mass. at 677. Reasonable
inferences may be drawn from the evidence, Commonwealth v. Bush,
427 Mass. 26, 30 (1998), and need only be reasonable and
possible, not necessary or inescapable. Commonwealth v. Morgan,
449 Mass. 343, 349 (2007).
To establish the defendant's guilt as a joint venturer to
the larceny scheme, the Commonwealth must prove, beyond a
reasonable doubt, that "the defendant knowingly participated in
the commission of the crime," with "the intent required for that
offense." Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).
See Commonwealth v. Bright, 463 Mass. 421, 435 (2012), quoting
from Commonwealth v. Braley, 447 Mass. 316, 320 (2007) (joint
venture "may be proved by circumstantial evidence"). Here, the
necessary intent is the intent to obtain money from another,
sixty years of age or older, by false pretenses by making false
statements oneself or by having false statements made by a joint
venturer, with the intent that the person, in reliance on the
false statements, would part with money. G. L. c. 266, § 30(5).
12
See Commonwealth v. St. Hilaire, 470 Mass. 338, 343, 348 (2015);
Commonwealth v. Alvarez, 90 Mass. App. Ct. 158, 159-160 (2016).
Intent may be inferred from "the defendant's knowledge of
the circumstances and subsequent participation in the offense."
Commonwealth v. Cohen, 412 Mass. 375, 381 (1992) (citation
omitted). "Participation may take the form of an agreement to
be available to assist in the commission of the crime. Such
agreement need not 'be made through a formal or explicit written
or oral advance plan or agreement; it is enough consciously to
act together before or during the crime with the intent of
making the crime succeed.'" Bright, supra, quoting from
Zanetti, supra at 470.
When viewed in its totality, the evidence presented,
including Khan providing his friends' addresses to use for
deliveries, his attempts to be present at these addresses to
accept delivery in person, the timing of the telephone calls to
the victims when compared to the delivery dates of the packages,
the corresponding addresses on the packages consistent with the
telephone callers' instructions to the victims, Khan's
interaction with police, and the discovery of FedEx packaging on
his bed and the fingerprint on the white envelope establish that
Khan knowingly participated in a larcenous scheme and shared an
intent to defraud the victims of money. There was no error in
13
denying the defendant's motion for required findings of not
guilty at the close of the Commonwealth's case.
Khan's testimony, which the jury were free to discredit,
was that he thought the packages contained Liberian licenses.
See Commonwealth v. Platt, 440 Mass. 396, 404 (2003). This
evidence did not cause the Commonwealth's case to deteriorate as
"everything turned on the credibility" of the defendant.9 Id. at
397 n.1. Accordingly, the motion for required findings of not
guilty at the close of the evidence also was properly denied.
See Commonwealth v. Berry, 68 Mass. App. Ct. 78, 81 (2007).
2. Jury instructions. The defendant argues that the judge
improperly instructed the jury on joint venture, and instead
should have instructed them on the uncharged offense of
9
Khan claims that although the circumstantial evidence
presented may support an inference that he was aware of the
underlying scheme and took part in inducing the victims to pay
money, it also equally supports the inference that he was
picking up packages as a favor to his estranged sister for a
scheme of which he was unaware. See Commonwealth v. O'Brien,
305 Mass. 393, 400 (1940), quoting from Smith v. First Natl.
Bank in Westfield, 99 Mass. 605, 612 (1868) ("When the evidence
tends equally to sustain either of two inconsistent
propositions, neither of them can be said to have been
established by legitimate proof"). The defendant's reliance on
this principle fails because it assumes that the jury were
required to believe his testimony, which they were not. See
Commonwealth v. Triplett, 398 Mass. 561, 567 (1986) ("The fact
finder, not the witness, must determine the weight and
credibility of testimony").
14
accessory after the fact.10 He contends that the principal crime
was an inducement to part with property under false pretenses,
see G. L. c. 266, § 34, and that therefore the crime was
completed when FedEx picked up the packages from the victims.
Because the defendant's actions in the scam allegedly began
after that point, he argues, he should have been charged as an
accessory after the fact. This argument fails because the
defendant was not charged under c. 266, § 34, but under c. 266,
§ 30, which criminalizes the act of obtaining the property of
another by false pretenses with intent to defraud. Thus, the
crime was complete when Khan obtained the property of another,
here, the money.
The defendant also not only failed to object to the trial
judge's instructions, he joined in the Commonwealth's request
for the given instruction. Indeed, even if the defendant had
properly preserved a request for a jury instruction on the
offense of accessory after the fact, such an instruction would
not have been given because that crime was not charged, and the
instruction would have risked confusing the jury. Commonwealth
v. Newson, 471 Mass. 222, 234 (2015). There was no error, and
10
The defendant also claims that if he had been charged as
an accessory after the fact, he would have been entitled to
assert a consanguinity defense at trial. See G. L. c. 274, § 4.
Consanguinity can only be asserted as an affirmative defense to
a charge of accessory after the fact to a crime committed by a
family member. Commonwealth v. Iacoviello, 90 Mass. App. Ct.
231, 247 (2016). The evidence did not support such a charge.
15
therefore no substantial risk of a miscarriage of justice.
Compare Commonwealth v. St. Louis, 473 Mass. 350, 360 (2015).
Contrast Commonwealth v. Ford, 424 Mass. 709, 712 (1997).
3. Admissibility of fingerprint. Khan's argument that the
fingerprint analysis on the white envelope was not relevant,
misleading, and more prejudicial than probative is unavailing.11
Because the objection was preserved, we review for prejudicial
error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Whether evidence is relevant and whether its probative
value is substantially outweighed by the prejudicial effect is
in the "trial judge's broad discretion and [is] not disturbed
absent palpable error." Commonwealth v. Simpson, 434 Mass. 570,
579 (2001). During a bench conference, the judge determined
that the configuration of the white envelope, sandwiched between
the FedEx package and the yellow envelope sent by Johnson, was
probative of the defendant's participation and knowledge of the
11
Defense counsel also objected to the admission of the
photograph that showed the configuration of the white envelope
to the FedEx package that was sent by Johnson. Defense counsel
contended that the admission of the photograph was prejudicial
because the detective who first saw the configuration of the
envelope and the package did not testify. This argument is
unavailing. The judge correctly determined that the witness
substitution did not go to the admissibility of the photograph
but rather to the credibility of the evidence, as it was an
issue of authentication. See Commonwealth v. Zitano, 23 Mass.
App. Ct. 403, 407 (1987) ("Any deficiencies in the foundation
laid for the admission . . . would affect only the weight to be
afforded that evidence"). See also Commonwealth v. Caruso, 476
Mass. 275, 287 n.8 (2017).
16
underlying scheme. Also, the fingerprint was not the singular
evidence that the Commonwealth presented. See Commonwealth v.
Morris, 422 Mass. 254, 257 (1996) ("Fingerprint evidence coupled
with other evidence may rationally link a defendant to a
crime"). Furthermore, even if error, the defendant cannot claim
prejudice when defense counsel used the fingerprint evidence to
support his theory that Khan was acting at the direction of his
sister and that the packages contained driver's licenses. Cf.
Commonwealth v. Keo, 467 Mass. 25, 33 (2014) (admission of
testimony on another defendant's state of mind not prejudicial
when it supported defendant's theory of case).
4. Ineffective assistance of counsel. Khan claims that
his trial counsel was ineffective for failing to investigate the
Canadian fraud scheme, not seeking an accessory after the fact
jury instruction in a pretrial motion, failing at trial to
request this same jury instruction, and by not calling a police
detective as a witness. Khan raises this claim in its weakest
form, having failed to file a motion for new trial in the
Superior Court. See Commonwealth v. Diaz, 448 Mass. 286, 289
(2007). A review of the record does not reveal patently
ineffective or manifestly unreasonable lawyering. See generally
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
As to the failure to investigate claim, additional fact
finding would be necessary to evaluate this claim and we will
17
not review an issue outside of the trial record. Commonwealth
v. Brookins, 416 Mass. 97, 104 (1993). As addressed supra, the
facts did not support a charge of accessory after the fact.
Accordingly, any pretrial or trial motion would have been
futile. See Commonwealth v. Hanson, 79 Mass. App. Ct. 233, 237-
238 (2011). Nor has Khan shown his trial counsel was
ineffective for failing to call a police detective as a witness,
as his testimony, at best, would have been cumulative. See
Commonwealth v. Britto, 433 Mass. 596, 602 (2001).
Judgments affirmed.