Heard: October 2, 2018.
received and sworn to in the Lynn Division of the District
Court Department on June 22, 2012. Following review by the
Appeals Court, 90 Mass.App.Ct. 1107 (2016), the case was
tried before Michael A. Patten, J.
Supreme Judicial Court granted an application for direct
M. Osborne for the defendant.
R. Mello, Assistant District Attorney, for the Commonwealth.
Healey, Attorney General, & Maria Granik, Assistant
Attorney General, for the Attorney General, amicus curiae,
submitted a brief.
Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano,
Lowy, Budd, Cypher, & Kafker, JJ.
over a century the Commonwealth has outlawed living off of or
otherwise sharing in money earned by a known
prostitute. Historically, "pimps or
purveyors" have been understood to be the objects of
this prohibition, although no definition of either
"pimp" or "purveyor" has ever appeared in
the statutory text, currently codified at G. L. c. 272,
§ 7.Claiming that, without further
clarification, the language of this statute is
unconstitutionally vague and that he suffered prejudice from
jury instructions tracking such language, the defendant,
Jonathan E. Brown, seeks reversal of his conviction on a
single count of deriving support from prostitution under G.
L. c. 272, § 7. We disagree and affirm.
conclude that G. L. c. 272, § 7, is constitutional, as
we construe it to target those who, with the intent to
profit from prostitution, live or derive support or
maintenance from, or share in the earnings or proceeds of,
the known prostitution of others. We reach this conclusion
from reading the statutory language in the context of common
understanding and ordinary usage, as well as the
statute's legislative history and severe penalty
provisions, all of which demonstrate with sufficient clarity
that G. L. c. 272, § 7, is directed at so-called
"pimping." Because a pimp knowingly and
intentionally profits from the prostitution of another, he or
she differs from the child of a sex worker, a local merchant
who sells food to a known sex worker, or a medical
professional who provides a sex worker with counselling
services; the literal language of the statute may reach all
of these individuals, but, unlike a pimp, they lack the
intention to profit from the prostitution of another.
the evidence was sufficient for the jury to conclude that the
defendant -- who accompanied a woman to a prearranged
prostitution transaction and was caught, immediately after
leaving the scene with that woman, with the entire proceeds
of the transaction hidden in his shoe -- knowingly and
intentionally profited from the prostitution of another, and
therefore engaged in pimping within the meaning of G. L. c.
272, § 7. While we prospectively clarify the jury
instructions to avoid any possible confusion that this
statute might apply to those who lack such an intent, we
discern no prejudicial or other reversible error in the
Facts. The facts, in the light most favorable to the
Commonwealth, are as follows. See Commonwealth
v. Latimore, 378 Mass. 671, 677 (1979).
21, 2012, as part of a national antiprostitution
"sting" operation, law enforcement officers
arranged to meet two women at a hotel in Saugus after
responding to Internet advertisements for female
prostitution. Police were instructed to watch for two women
arriving at the Saugus hotel, and that evening, a police
surveillance team observed two women, the defendant, and
another man arrive at the hotel in a black motor vehicle. The
two men waited in the vehicle in the rear parking lot of the
hotel while the women went inside to a hotel room. There,
another surveillance team observed as an undercover officer,
posing as a customer, agreed with one of the women to have
sex for $250. The officer handed the woman $250 in cash,
after which he answered a prearranged telephone call and told
the two women they had to leave. The women returned to the
vehicle and were driven away with the
defendant. The police stopped the vehicle and, after
frisking the defendant, found the same $250 that the officer
had given the woman as payment for sex hidden in the
defendant was subsequently charged and convicted at a bench
trial of deriving support from prostitution under G. L. c.
272, § 7,  but his conviction was reversed by the
Appeals Court in an unpublished memorandum and order pursuant
to its rule 1:28 due to the prosecution's errors in its
closing argument. See Commonwealth v.
Brown, 90 Mass.App.Ct. 1107 (2016). Before his
second trial, the defendant moved to dismiss the charge,
claiming that the statute was unconstitutional for vagueness.
That motion was denied. At the second trial, which was tried
before a jury, the defendant moved for a required finding of
not guilty, relying on the Appeals Court decision in
Commonwealth v. Thetonia, 27
Mass.App.Ct. 783 (1989), which examined the meaning of the
terms "pimp or purveyor" as set out in the
statute's legislative history. That motion was also
denied. Finally, relying again on Thetonia, the
defendant sought supplementary instructions that would change
Instruction 7.140 of the Criminal Model Jury Instructions for
Use in the District Court (2009) (model jury instruction
7.140). The defendant's requested instruction, based on
model jury instruction 7.140, with his requested
supplementary language emphasized, is as follows:
"Deriving Support from Prostitution
"The defendant is charged with knowingly deriving
support from the earnings of a prostitute. This is
commonly known as the 'pimping' statute. Chapter
7 of Section 272 of our General Laws provides as follows:
'Whoever, knowing a person to be a prostitute, shall live
or derive support or maintenance, in whole or in part, from
the earnings or proceeds of his prostitution ... or shall
share in such earnings or proceeds . . . shall be
"In order to prove the defendant guilty of this offense,
the Commonwealth must prove three [(and with the requested
changes, four)] things beyond a reasonable doubt:
"First, that a particular person was engaged in
prostitution. A prostitute is a person who engages in common,
indiscriminate sexual activity for hire.
"Second, The Commonwealth must prove beyond a reasonable
doubt that the defendant knew [(emphasis in
original)] that such person was a prostitute; and
"Third, The Commonwealth must prove beyond a reasonable
doubt that the defendant shared in some substantial
way in the earnings or proceeds from that person's
"Fourth, The Commonwealth must prove beyond a
reasonable doubt that the Defendant played a substantial role
in facilitating this person's prostitution. For example,
it is not enough if the Defendant simply drove the prostitute
to a job."
judge denied the requested supplementary instructions and
gave model jury instruction 7.140. The jury found the
defendant guilty under G. ...