Commonwealth v. Khan

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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.