LOWELL — Jury selection was scheduled to begin next Tuesday in the murder retrial of the Phan brothers, but the case has veered off course after prosecutors moved to introduce a new gang-related motive — a shift that drew objections from the defense and has contributed in delaying the start of the trial.

The conflict escalated when attorney William Dolan — now representing Channa Phan — filed a motion to dismiss the charges against his client, arguing that prosecutors failed to provide information connected to their gang-motive theory.

Channa Phan, and his older brothers, Billy and Billoeum, are charged with first-degree murder for the fatal shooting of 22-year-old Tyrone Phet outside his Lowell home in 2020.

During two separate days of hearings in Middlesex Superior Court last week, Middlesex Assistant District Attorneys Yashmeen Desai and Thomas Brant told the court they intend to establish Phet’s killing as a retaliatory strike by the Phan brothers for a drive-by shooting at 478 Wilder St. in Lowell.

Desai told Judge Chris Barry-Smith on Friday that the two incidents are “intimately intertwined.”

According to the prosecutors, the Phan brothers are members of a street gang known as the Outlaws, and the Wilder Street location functioned as their stash house for cash, guns and drugs. Desai and Brant contend that the residence was targeted in the shooting by the rival gang, Crazy Mob Family, or CMF.

The shooting, which took place at about 2 a.m. on Sept. 13, 2020, led police to obtain a search warrant for the Wilder Street home. A Lowell Police incident report states that officers seized guns, ammunition, body armor, 200 grams of cocaine, 100,000 pressed pills containing methamphetamine and fentanyl, as well as other drugs, digital scales and packaging materials.

The incident also resulted in the arrests of Sareun Sam and Daosadeth Xavapy inside the Wilder Street home. No one has been charged in connection with the drive-by shooting.

At the time of the police raid on the home, then-Lowell Police Superintendent Kelly Richardson described the residence as housing a “major drug distribution operation,” in the city, adding, “This should put a dent in the availability of pills.”

Less than 24 hours later — at about midnight on Sept. 14 — Phet was shot and killed in a hail of gunfire while sitting in his car outside his home at 50 Spring Ave.

According to authorities, Phet — a 2016 graduate of Chelmsford High and captain of the football team his senior year — was struck eight times. Police recovered 21 spent shell casings at the scene, including 10 10 mm casings  and 11 .40-caliber casings.

Desai said that Phet was not a known member of CMF, but he was living in a multifamily home on Spring Avenue where a CMF member had previously resided. Because their stash house had been shot up and a significant amount of their product seized, Desai argued the Phan brothers went to “a known CMF location to shoot at whoever they can find” and “to send a message back to their rival gang.”

Although this motive had been discussed by law enforcement before the case initially went to trial in November 2024, it was not clearly presented to the jury by the prosecution, which was then led by Middlesex Assistant District Attorney Daniel Harren, who has since left the office for private practice.

That initial trial ultimately ended with a hung jury and mistrial.

“We are seeking to now explain to the jury a little bit of the background about the facts and circumstances of the night these three men executed our victim,” Desai told Barry-Smith.

During the initial trial, the prosecution’s immunized witness, Abdulai Maranda did introduce a gang element, testifying he was a low-level member of the Outlaws and had been invited into the gang by one of the Phan brothers. He also testified that he was aware of the stash house on Wilder Street, but the prosecution did not present the shooting at the residence — or any gang-related motive tied to it — as part of its case.

Barry-Smith said that, under case law governing the admission of gang evidence, prosecutors must establish admissible evidence that the Wilder Street shooting was carried out by CMF and how Phet had some connection to the alleged gang-related circumstances.

The prosecution suggested they would be able to do so through Maranda’s testimony, as well as that of police officers and residents of the Spring Street address.

The suggestion was shot down by the defense.

During the hearing on Friday, Dolan pointed to grand jury testimony showing that Maranda had no personal knowledge of the shooting at Wilder Street.

He read from the transcript, which included an attorney asking Maranda what he heard about a shootout at the address. Maranda responded, “I read it in the paper.”

“His basis of knowledge is inadmissible hearsay,” Dolan said.

“They are saying this is a gang war,” he added about the prosecution. “They are not saying it’s transferred intent, they’re not saying it’s mistaken identity, they’re asking the jury to make that inference just because.”

Attorney Mark Wester, representing Billy Phan, echoed Dolan’s argument that there is no admissible evidence linking CMF to the Wilder Street shooting, nor any evidence that Phet was a CMF member or that 50 Spring St. was an active CMF location.

“They have named one person who lived at 50 Spring Ave., someone they refer to as Sunny,” Wester said. “That is the only individual in the discovery identified as a CMF member, and that person moved out at least two years before the September 2020 shooting.”

He also noted that he found nothing in the files of Sam and Xavapy that connected them to any gang or gang activity.

Attorney Lorenzo Perez, who represents Billoeum Phan, echoed the rest of the defense team, noting that “gang evidence is such a high hurdle to get over.”

“The Commonwealth would be repeatedly announcing that the defendants are gang members and that they’re on trial for this series of crimes,” Perez said. “It is such a prejudicial label to place on defendants at trial.”

Also during the hearings, Dolan noted that he had not received a 17-page report based on the Wilder Street incident that he said was being withheld by the Middlesex District Attorney’s Office.

As Barry-Smith noted during Friday’s hearing, prosecutors had turned over additional discovery to the defense — material that Dolan said he was forced to file a motion to dismiss in order to obtain. He has also alleged discovery violations against the Middlesex District Attorney’s Office.

“It is my position that they had more discovery that they had knowledge of and they were waiting for the door to be open to spring it on the defense,” Dolan told Barry-Smith. “I think doing this in the rebuttal fashion is much in the same way.”

Desai responded that the prosecution is not seeking to introduce any new evidence related to the Wilder Street shooting. She said that information describing the early‑morning gunfire, the police response and the subsequent search warrant — along with the officers’ observations and the weapons and drugs seized — had already been provided to the defense.

“All of that, in the Commonwealth’s estimation, has already been turned over,” Desai said.

She acknowledged that the broader Wilder Street investigation has generated additional discovery, but argued that the facts the prosecution intends to use are not new.

The Phan brothers’ previous defense team for the first trial — Steven Rappaport for Billy Phan, James McCall for Billoeum Phan and Rosemary Scapicchio for Channa Phan — argued that the brothers were not involved in any organized gang activity and sought to undermine Maranda’s credibility.

Brant said the defense attorneys in the retrial are attempting to have the case tried “the exact way as before.”

“And the exact way before was an immunized witness — someone associated with these individuals — getting up on the stand and talking about drug dealing … and all these crimes around town, and the jury being left with no supporting evidence whatsoever,” Brant said. “And the defense being able to portray these three individuals as nothing more than brothers — basically a benevolent group of brothers — showing pictures of them at weddings and birthday parties.

“I think they want the case done exactly the same way,” Brant continued, “and to leave the jury with this question of why would this person — who they have no idea who he is — got shot in a place they know nothing about, and for a reason they knew nothing about.”

Barry‑Smith ruled on the prosecution’s motion on Friday, stating he would not expand the scope of gang evidence for the upcoming trial, citing three deficiencies in the Commonwealth’s showing: a lack of admissible evidence that CMF carried out the Wilder Street shooting, no demonstrated connection between the gang and the location, and no indication that the victim was alleged to be a CMF member.

Barry-Smith described the information presented by the prosecution as “too thin.”

He added that he was not making any ruling on potential rebuttal evidence, saying he would have to see how the trial unfolds.

Barry‑Smith also said he would issue decisions on Dolan’s motion to dismiss the indictments and on the alleged discovery violations next week.

The parties are scheduled to return for another hearing on those and additional motions at 10 a.m. Tuesday.

As for the trial — with the pending motions and other issues — it is now expected to begin until the week of Jan. 26.

Follow Aaron Curtis on X @aselahcurtis, or on Bluesky @aaronscurtis.bsky.social.