Commonwealth v. Khan

92 Mass.App.Ct. 487

88 N.E.3d 279

COMMONWEALTH

v.Mohammed T. KHAN.¹

No. 16–P–1216

Appeals Court of Massachusetts, Middlesex..

September 19, 2017

November 28, 2017

David H. Erickson, Acton, for the defendant.

Nicole Nixon, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Blake, & Singh, JJ.

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 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, 393 N.E.2d 370 (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. 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, 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 $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 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 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 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 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 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...