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Commonwealth v. Khan

Appeals Court of Massachusetts, Middlesex

November 28, 2017

COMMONWEALTH
v.
MOHAMMED T. KHAN. [1]

          Heard: September 19, 2017.

         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.

          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 (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, 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 cash[4] 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, ...


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