Commonwealth v. Guardado ( 2023 )

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SJC-13315
COMMONWEALTH vs. CARLOS GUARDADO.
Middlesex. September 11, 2023. - October 26, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Firearms. License. Constitutional Law, Right to bear arms,
Double jeopardy. Due Process of Law, Elements of criminal
offense. Practice, Criminal, Instructions to jury,
Reconsideration, New trial, Double jeopardy.
Indictments found and returned in the Superior Court
Department on June 26, 2019.
A pretrial motion to suppress evidence was heard by C.
William Barrett, J., and the cases were tried before Paul D.
Wilson, J.
After review by this court, 491 Mass. 666 (2023), a motion
for reconsideration was allowed in part.
Elaine Fronhofer for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. This is a companion case to Commonwealth v.
Guardado, 491 Mass. 666 (2023) (Guardado I), concerning the
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proper remedy for the constitutional violations described
therein. A Superior Court jury convicted the defendant of,
among other things, unlawfully carrying a firearm, unlawfully
carrying a loaded firearm, and unlawfully carrying ammunition.
See id. at 667. On appeal, this court determined that, in light
of the United States Supreme Court's decision in New York State
Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111, 2122 (2022),
which was issued after the defendant's convictions, absence of
licensure is an essential element of those crimes. See Guardado
I, supra at 690, 692. Accordingly, we held that the trial judge
erred when he failed to instruct the jury that, to convict the
defendant of those crimes, they would have to find that the
defendant lacked a firearms license. See id. at 691. We
vacated the defendant's convictions and ordered that the
Superior Court judge enter judgments of not guilty on the
indictments, precluding the Commonwealth from retrying the
defendant on those charges. See id. at 694.
The Commonwealth has moved for reconsideration, arguing
that because the constitutional rule established in Bruen, 142
S. Ct. at 2122, did not exist at the time the defendant was
convicted, the Commonwealth should have an opportunity to retry
the defendant. We conclude that the Commonwealth is correct.
Ordinarily, the prohibition against double jeopardy bars retrial
if, as the Commonwealth concedes, there was insufficient
3
evidence at trial to establish an essential element of the
crime. However, the Commonwealth had no reason to introduce
evidence of the defendant's lack of licensure under then-
prevailing law. Because the Commonwealth is not being given a
second bite at the proverbial apple to supply evidence that it
was required to muster in the earlier trial, double jeopardy
does not bar retrial.
1. Background. a. Trial. In June 2019, a grand jury
issued indictments charging the defendant with one count of
illegal possession of a firearm, G. L. c. 269, § 10 (a); two
counts of illegal possession of a large capacity feeding device,
G. L. c. 269, § 10 (m); one count of illegal possession of
ammunition, G. L. c. 269, § 10 (h); and one count of illegal
possession of a loaded firearm, G. L. c. 269, § 10 (n). The
facts underlying those charges are recited in Guardado I, 491
Mass. at 668-673.
When the judge instructed the jury at trial, he did not
include absence of a firearms license among the elements that
the Commonwealth would have to prove for the jury to convict the
defendant. The defendant did not object to this omission from
the jury instructions.
In June 2021, the defendant was convicted on all counts
except for one count of illegal possession of a large capacity
4
feeding device. The defendant filed a timely notice of appeal,
and we transferred the case to this court on our own motion.
b. Appeal. The defendant argued on appeal that the judge
erred by failing to instruct the jury that absence of licensure
is an essential element of the crimes of unlawful possession of
a firearm and unlawful possession of ammunition. The defendant
relied on the Supreme Court's holding in Bruen, 142 S. Ct. at
2122, that the Second Amendment to the United States
Constitution protects an individual's right to carry a firearm
outside the home. The defendant contended that, as a result of
Bruen, his convictions of unlawful possession of a firearm,
unlawful possession of ammunition, and unlawful possession of a
loaded firearm should be reversed.
We reviewed the defendant's argument under a standard that
ordinarily is reserved for issues preserved at trial. We
reasoned that the defendant "did not have an adequate
opportunity at the time of his trial" to object to the jury
instructions, because the Court's decision in Bruen had not
issued until after the defendant had been convicted. Guardado
I, 491 Mass. at 686. Under the "clairvoyance exception," which
allows a defendant to raise an unpreserved issue on appeal "when
the constitutional theory on which the defendant has relied was
not sufficiently developed at the time of trial," Commonwealth
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v. Rembiszewski, 391 Mass. 123, 126 (1984), the defendant was
entitled to review of the issue, Guardado I, supra.
We concluded, in light of Bruen, that absence of licensure
is an essential element of the crimes of unlawful possession of
a firearm and unlawful possession of ammunition. See Guardado
I, 491 Mass. at 690. Accordingly, we held that the judge erred
by omitting absence of licensure from his instructions on those
crimes to the jury. See id. at 691. We vacated the defendant's
convictions on the indictments charging unlawful possession of a
firearm, unlawful possession of ammunition, and unlawful
possession of a loaded firearm,1 and we remanded the matter to
the Superior Court for entry of judgments of not guilty on those
indictments. See id. at 694.
c. Motion to reconsider. In May 2023, the Commonwealth
moved for reconsideration of the remedy this court issued in
Guardado I, 491 Mass. at 694. We granted the Commonwealth's
motion for reconsideration in part and asked the parties to file
briefs on the following issue: "[W]hether the court should
continue to hold that the remedy in [Guardado I] for an
erroneous jury instruction relieving the Commonwealth of the
burden of proving absence of firearm[s] licensure is vacatur of
1 A defendant may not be convicted of unlawful possession of
a loaded firearm if he or she is not convicted also of unlawful
possession of a firearm. See Commonwealth v. Tate, 490 Mass.
501, 520 (2022).
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the conviction and remand for entry of a judgment of
acquittal. . . . Or, should the court consider the jury
instruction, which conformed to controlling precedent at the
time, to be trial error that results in vacatur of the
conviction and remand for a new trial."2
2. Discussion. Based on their differing applications of
the double jeopardy principle, the parties disagree as to what
the appropriate remedy should be for the erroneous jury
instructions. The Commonwealth argues that we erred by ordering
the Superior Court to enter judgments of not guilty on the
defendant's convictions. According to the Commonwealth, because
the evidence it presented at trial was insufficient only because
of a postconviction change in the law, double jeopardy does not
bar retrial. The defendant contends that, because the
Commonwealth's evidence at trial was not sufficient according to
2 The Commonwealth raised in its motion additional issues,
including whether to extend the license requirement to the crime
of unlawful possession of a large capacity feeding device. See
G. L. c. 269, § 10 (m). We grant the Commonwealth's motion to
reconsider that issue, insofar as the Commonwealth requests that
we not address whether absence of a license is an essential
element of that offense. In the exercise of our discretion, we
have decided to avoid answering an unpreserved constitutional
claim. We leave for another day, with the benefit of full
briefing and argument, the question whether large capacity
feeding devices are "arms" protected by the Second Amendment
following Bruen. See, e.g., Ocean State Tactical, LLC v. Rhode
Island, 646 F. Supp. 3d 368, 385-388 (D.R.I. 2022).
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the state of the law at the time of his appeal, double jeopardy
requires the entry of judgments of acquittal.
"At its core, the prohibition against double jeopardy,
which flows from the Fifth Amendment to the United States
Constitution, as well as the statutory and common law of
Massachusetts, provides that 'a person cannot twice be put in
jeopardy for the same offense.'" Commonwealth v. Sanchez, 485
Mass. 491, 506 (2020), quoting Marshall v. Commonwealth, 463
Mass. 529, 534 (2012). This prohibition protects defendants
against the possibility that "prosecutors could treat trials as
dress rehearsals until they secure the convictions they seek."
Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018). It also
ensures that defendants will not receive "multiple punishments"
for the same offense. United States v. Ursery, 518 U.S. 267,
273 (1996). To prevent such injustices, double jeopardy
protections forbid the Commonwealth from prosecuting the
defendant for the same offense after a final verdict has been
entered. See Commonwealth v. Brown, 470 Mass. 595, 603 (2015),
quoting Marshall, supra.The prohibition against double jeopardy generally precludes
retrial if the Commonwealth presented insufficient evidence at
the original trial to support the defendant's conviction. See
Commonwealth v. Bolling, 462 Mass. 440, 453 (2012). See also
United States v. Wacker, 72 F.3d 1453, 1465 (10th Cir. 1995),
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cert. denied, 523 U.S. 1035 (1998), citing Burks v. United
States, 437 U.S. 1, 10 (1978) ("by reversing a conviction for
insufficient evidence, the reviewing court is actually making a
determination that the trial court erred in failing to direct a
verdict of acquittal on the evidence; accordingly, the defendant
should be treated as though he or she were acquitted").
Otherwise, the Commonwealth would be able to take advantage of a
trial error by presenting a stronger case the second time
around, thereby "getting a second bite at the proverbial apple"
(quotation and citation omitted). Commonwealth v. Claudio, 484
Mass. 203, 208 (2020). If, given the evidence presented at
trial, no "trier of fact could have found the essential elements
of the crime beyond a reasonable doubt," the Commonwealth does
not get to try again (citation omitted). Commonwealth v. Brown,
479 Mass. 600, 608, 611 (2018).
The double jeopardy principle, however, "does not prevent
the government from retrying a defendant who succeeds in getting
his conviction set aside . . . because of some error in the
proceedings leading to conviction." United States v. Acosta-
Sierra, 690 F.3d 1111, 1123 (9th Cir. 2012), cert. denied, 568
U.S. 1183 (2013), quoting Lockhart v. Nelson, 488 U.S. 33, 38–39
(1988). See Commonwealth v. DiBenedetto, 414 Mass. 37, 45
(1992), S.C., 427 Mass. 414 (1998), 458 Mass. 657 (2011), and
475 Mass. 429 (2016) (double jeopardy did not bar retrial where
9
conviction was vacated due to erroneous admission of deposition
testimony). Where a guilty verdict is reversed because of "an
error in the jury instructions," the proper remedy is to remand
for "a new trial." Commonwealth v. Vargas, 475 Mass. 338, 349
(2016). This holds true even when the error in the jury
instructions resulted in a misallocation in the burden of proof.
See Commonwealth v. Skinner, 408 Mass. 88, 94-95, 99 (1990)
(remand for new trial because jury instructions relieved
"government of its burden of proof on an element of a crime").
See also United States v. Godin, 534 F.3d 51, 61 (1st Cir. 2008)
("Generally, if an erroneous jury instruction is not harmless
error, we vacate the conviction and remand for a new trial").
In such circumstances, a retrial does not impose on the
defendant any of the evils from which the prohibition against
double jeopardy is intended to protect. See Marshall, 463 Mass.
at 534.
Here, the Commonwealth concedes that it did not present
evidence at trial to indicate that the defendant lacked a
firearms license. The Commonwealth therefore did not introduce
sufficient evidence to establish beyond a reasonable doubt an
essential element of the crimes at issue. See Guardado I, 491
Mass. at 690, 692 ("absence of a license is an essential element
of the offense[s] of unlawful possession of a firearm" and
"unlawful possession of ammunition"). Ordinarily, this would
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establish that the "[d]ouble [j]eopardy [c]lause forbids a
second trial." See Commonwealth v. Lopez, 484 Mass. 211, 221
(2020), quoting Commonwealth v. Amado, 387 Mass. 179, 190
(1982).
We conclude, however, that this case does not present the
same concerns. At the time of the defendant's trial, this
court's precedent clearly had established that absence of
licensure was not an essential element of any of the crimes with
which the defendant was charged. See Commonwealth v. Allen, 474
Mass. 162, 174 (2016). Rather, proper licensure explicitly was
recognized to be an affirmative defense. See Commonwealth v.
Gouse, 461 Mass. 787, 804-806 (2012). Thus, given that the
defendant did not "provide notice of intent to raise the defense
of license" prior to trial, the Commonwealth proceeded at trial
under the impression, created by this court's decisions, that a
conviction did not depend on whether the defendant possessed a
firearms license. Commonwealth v. Humphries, 465 Mass. 762, 767
(2013). It only was after the defendant's trial that the
Supreme Court issued its decision in Bruen, which in turn led
this court to overturn its previous holdings and rule that
absence of licensure is an essential element of the crimes. See
Guardado I, 491 Mass. at 690.
Because the evidence against the defendant was insufficient
only when viewed through the lens of a legal development that
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occurred after trial, the Commonwealth has not "been given [a]
fair opportunity to offer whatever proof it could assemble" at
trial. Burks, 437 U.S. at 16. Further, because absence of
licensure was not recognized as an essential element at the time
of trial, the resulting verdict did not resolve this element of
the offenses charged. See Commonwealth v. Hebb, 477 Mass. 409,
413 (2017), quoting Brown, 470 Mass. at 603-604 ("where a
verdict does not specifically resolve all the elements of the
offense charged, it is defective . . . and thus does not trigger
double jeopardy protections"). A new trial is warranted so that
the Commonwealth may have "one complete opportunity to convict"
the defendant under the new law. Hebb, supra, quoting Yeager v.
United States, 557 U.S. 110, 118 (2009). See United States v.
Houston, 792 F.3d 663, 670 (6th Cir. 2015) ("the government
would not be seeking a second bite at the apple but a first bite
under the right legal test").
Here, because the Commonwealth reasonably could not have
known we would reverse our holdings in Gouse, 461 Mass. at 807-
808; Humphries, 465 Mass. at 767; and Allen, 474 Mass. at 174, a
judgment of acquittal is not required by principles of double
jeopardy. See Commonwealth v. Jefferson, 461 Mass. 821, 831-832
(2012) (retrial, rather than acquittal, was appropriate remedy
where trial judge erroneously denied defendants their
opportunity to raise affirmative defense, because otherwise
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Commonwealth would not have "opportunity to offer evidence in
rebuttal"). Without the ability to gaze into the future of this
court's and the Supreme Court's rulings, and without any notice
from the defendant of an intent to raise the issue of licensure,
the Commonwealth simply had no reason to believe that any
evidence concerning licensure would be necessary. Were the
judgments of acquittal to stand, we would be denying the
Commonwealth a "first opportunity to prove what it did not need
to prove before but needs to prove now." United States v.
Harrington, 997 F.3d 812, 818 (8th Cir. 2021).
Neither Commonwealth v. Munoz, 384 Mass. 503 (1981), nor
Commonwealth v. Beal, 474 Mass. 341 (2016), compels a different
result. In Munoz, supra at 503, the defendant was convicted of
operating an uninsured motor vehicle. The trial judge, over the
defendant's objection and consistent with the model jury
instructions at the time, had instructed the jury that they
could presume the defendant's vehicle was uninsured unless the
defendant proved otherwise. See id. at 505, 510. This court
held that the judge erroneously relieved the Commonwealth of its
evidentiary burden, as "insurance [was] an element of the crime
charged." See id. at 507. Because the Commonwealth had not
presented evidence that the defendant's vehicle was uninsured,
we reversed the defendant's conviction and entered judgment for
the defendant. See id. at 509-510.
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According to the defendant, Munoz establishes that retrial
is barred on an insufficient showing of evidence on an essential
element of the offense, even if that element was established
only through precedent after trial. The defendant observes that
this court entered judgment for the defendant in Munoz despite
the Commonwealth's reliance during trial on the then-prevailing
model jury instructions, which indicated that lack of insurance
was not an essential element of the crime. See id.We are not convinced that Munoz is on point. Munoz did not
involve the creation of a new rule that was then applied to the
defendant's case. Contrast Guardado I, 491 Mass. at 690 ("In
the wake of Bruen, this court's reasoning in [previous
decisions] is no longer valid"). In this case, a "new" rule
"dictated by [a] decision" of the Supreme Court displaced the
established and contrary law under the decisions of this court
while the defendant's case was pending on direct review. Id. at
694. By contrast, in Munoz, 384 Mass. at 507-508, the
defendant's trial involved an error that was contrary to the
state of the law in the Commonwealth at the time of the
defendant's trial. On review, this court clarified the state of
the law given existing precedent. See id. See also Diatchenko
v. District Attorney for the Suffolk Dist., 466 Mass. 655, 663-
664 (2013), S.C., 471 Mass. 12 (2015) (distinguishing creation
of "new constitutional rule" from "merely apply[ing] an
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established constitutional standard to a novel set of facts").
Moreover, in Munoz, supra at 505, the Commonwealth's error at
trial was due not to a reliance on a directly contradictory line
of decisions from this court, but to a reliance on model jury
instructions, which do not have the same force of law as this
court's decisions, and the defendant challenged the erroneous
instructions. The Commonwealth in Munoz therefore was required
to prove at the time of trial that the defendant's vehicle was
uninsured, and so was not owed a "second opportunity to prove
what it should have proved earlier." United States v. Weems, 49
F.3d 528, 531 (9th Cir. 1995).
In Beal, 474 Mass. at 342, 345, the defendant received a
sentencing enhancement under the Massachusetts armed career
criminal act, G. L. c. 269, § 10G (ACCA), after the Commonwealth
presented evidence of the defendant's certified convictions of
assault and battery and assault and battery against a public
official. We held, based on an intervening Supreme Court
decision, that the evidence presented at trial was insufficient
to prove that the defendant had committed a "violent crime" and
that, as a result, double jeopardy precluded a retrial. See id.
at 353-354.
Beal is not analogous. First, at the time the Commonwealth
tried the defendant in Beal, the law was unsettled as to whether
a certified conviction of assault and battery or assault and
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battery against a public official was sufficient under the ACCA,
and, in fact, there was reason to suggest that it was not. See
Johnson v. United States, 559 U.S. 133, 135, 140-142 (2010)
(battery offense for "[a]ctually and intentionally touch[ing]"
another did not qualify as violent crime under analogous Federal
ACCA). See also United States v. Holloway, 630 F.3d 252, 257
(1st Cir. 2011), citing Shepard v. United States, 544 U.S. 13,
26 (2005) (conviction may serve as violent crime under Federal
ACCA only if each possible type of offense of conviction
qualifies as violent crime). Second, the defendant in Beal
objected before trial to the use of certified copies of his
convictions to prove that he had committed a categorically
"violent crime," and yet the Commonwealth declined to offer
additional proof despite having the opportunity to do so. Beal,
474 Mass. at 354 n.12.3
Other jurisdictions have held that "a defendant cannot make
out a sufficiency challenge as to offense elements that the
government had no requirement to prove at trial under then-
3 We recognize that we noted in Beal, 474 Mass. at 354 n.12,
that remand was inappropriate because "the dispositive issue
. . . is sufficiency of the evidence; even if the judge had
instructed the jury properly, the result on appeal would be no
different because the evidence the Commonwealth introduced was
insufficient." To the extent that Beal suggests that retrial is
barred on double jeopardy grounds due to insufficient evidence,
no matter the state of clearly established precedent, it is no
longer valid precedent.
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prevailing law." United States v. Reynoso, 38 F.4th 1083, 1090-
1091 (D.C. Cir. 2022). See Harrington, 997 F.3d at 817-818;
United States v. Nasir, 982 F.3d 144, 176 (3d Cir. 2020),
judgment vacated on other grounds, 142 S. Ct. 56 (2021);
Houston, 792 F.3d at 669-670; United States v. Robison, 505 F.3d
1208, 1224-1225 (11th Cir. 2007), cert. denied sub nom. United
States v. McWane, Inc., 555 U.S. 1045 (2008); United States v.
Gonzalez, 93 F.3d 311, 322 (7th Cir. 1996); Weems, 49 F.3d at
531; People v. Ramirez, 2023 IL 128123, ¶¶ 28-31 (2023). But
see United States v. Miller, 84 F.3d 1244, 1258 (10th Cir. 1996)
("we will remand for a new trial only if the jury could have
returned a guilty verdict if properly instructed").
For example, in United States v. Ellyson, 326 F.3d 522,
525-526 (4th Cir. 2003), the defendant was convicted of
possessing child pornography under the Child Pornography
Prevention Act of 1996 (CPPA), which defined child pornography
to include any image that "appears to be [depicting] a minor
engaging in sexually explicit conduct." The jury at the
defendant's trial was instructed accordingly. See id. at 530.
Following the defendant's trial, the Supreme Court held that the
CPPA was "overbroad and unconstitutional" because its
prohibition of "virtual images" reached beyond what is
permissible under the First Amendment to the United States
Constitution. See Ashcroft v. Free Speech Coalition, 535 U.S.
17234, 248-249, 251, 258 (2002). The Court of Appeals for the
Fourth Circuit held that, in light of the Supreme Court's
decision in Free Speech Coalition, the jury instructions
erroneously had "permitted the jury to convict [the defendant]
on . . . [an] unconstitutional basis." Ellyson, supra at 531.
Importantly, the Court of Appeals also held that the defendant
could be retried, regardless of whether the evidence at trial
was insufficient to establish that the images in the defendant's
possession were real. See id. at 532. The court reasoned that
there were no "double jeopardy concerns," because "[a]ny
insufficiency in proof was caused by the subsequent change in
the law under Free Speech Coalition, not the government's
failure to muster evidence." Id. at 533. See United States v.
Kim, 65 F.3d 123, 126-127 (9th Cir. 1995) (appellate court
should not "examine the sufficiency of evidence of an element
that the [g]overnment was not required to prove under the law
. . . at the time of trial because the [g]overnment had no
reason to introduce such evidence in the first place").
The defendant cites decisions from several United States
Courts of Appeals to support his proposition that acquittal is
the proper remedy. See United States v. Bruno, 661 F.3d 733,
742-743 (2d Cir. 2011); United States v. Mount, 161 F.3d 675,
678 (11th Cir. 1998); United States v. Hightower, 96 F.3d 211,
215 (7th Cir. 1996); United States v. Smith, 82 F.3d 1564, 1567-
18
1568 (10th Cir. 1996). However, a closer examination of these
cases reveals that they are inapposite.
First, the Court of Appeals for the Second Circuit in
Bruno, 661 F.3d at 743 & n.2, favorably cited much of the same
Federal precedent that we cite supra but held that the "sound
reasons" for remand did not apply where "the government conceded
that it would present no new evidence if [the defendant] were
retried." As such, a bar on retrial did not "deny the
government an opportunity to present its evidence." Id. at 743.
By contrast, here, the Commonwealth makes no such concession; to
the contrary, it seeks the opportunity to present evidence of
lack of licensure.
Second, the remaining three cases that the defendant cites
-- that is, Mount, 161 F.3d 675; Hightower, 96 F.3d 211; and
Smith, 82 F.3d 1564 -- all can be distinguished on the same
grounds. In each case, the government argued at trial that it
had presented sufficient evidence to convict the defendant
either of using or carrying a firearm in connection with drug
trafficking under 18 U.S.C. § 924(c). See Mount, supra at 678;
Hightower, supra at 215; Smith, supra at 1566. While the
defendants' cases were on appeal, the Supreme Court clarified
the "use" prong of the statute. See Bailey v. United States,
516 U.S. 137, 144 (1995), superseded by statute as stated in
Welch v. United States, 578 U.S. 120, 134 (2016). Importantly,
19
because the juries in these cases already had been instructed
properly on the alternative "carry" prong, and because there was
insufficient evidence to convict the defendants under this
alternative theory, the proper remedy was vacating the
defendants' convictions rather than remanding for a new trial.
Mount, supra at 680-681. Hightower, supra. Smith, supra at
1568.
The defendant concedes that there are some circumstances in
which a retrial may be the appropriate remedy for a posttrial
legal development that causes the evidence at trial to be
insufficient. In particular, where the posttrial legal
development is not "constitutionally required," such that the
court has discretion to apply the legal development only
prospectively, the defendant allows that the double jeopardy
principle does not preclude a retrial. See Commonwealth v.
Ashford, 486 Mass. 450, 453 (2020) ("Where the statutory
interpretation at issue is not constitutionally required, . . .
we retain some discretion to apply the rule only
prospectively"). The defendant argues, though, that acquittal
is the proper remedy when the legal development is a new
constitutional rule that must be applied to cases pending on
direct review. See Commonwealth v. Dagley, 442 Mass. 713, 721
n.10 (2004), cert. denied, 544 U.S. 930 (2005), citing Griffith
v. Kentucky, 479 U.S. 314, 322 (1987) ("newly declared
20
constitutional rule must be applied to cases pending on direct
review"). Because the Supreme Court's decision in Bruen, 142
S. Ct. at 2122, established a new constitutional rule, the
defendant contends, a retrial here would violate the double
jeopardy principle.
We are not persuaded. The defendant's analysis appears to
conflate, on the one hand, whether this court was
constitutionally required to apply to his case the new rule in
Bruen, 142 S. Ct. at 2122, and, on the other hand, what the
proper remedy is for a violation of the constitutional rule.
Because Bruen was decided after the defendant's trial but while
the case was pending on appeal, he is entitled to the benefit of
the new rule; that is, the right to have the Commonwealth prove
that he lacked a license. The cited propositions from Ashford
and Dagley do not assert that retrial is inappropriate in any
instance where a new constitutional rule is applied to a case
pending on direct review. See Ellyson, 326 F.3d at 533 (proper
remedy for new rule mandated by Supreme Court's intervening
interpretation of First Amendment was retrial).
3. Conclusion. For the reasons discussed, we conclude
that this court erred when it remanded to the Superior Court for
entry of judgments of not guilty on the indictments charging
unlawful possession of a firearm, unlawful possession of
ammunition, and unlawful possession of a loaded firearm.
21
Accordingly, we vacate that portion of our prior order and
remand to the Superior Court for a new trial on those
indictments.
So ordered.