Commonwealth v. Golding

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13-P-768 Appeals Court
COMMONWEALTH vs. CHRISTOPHER GOLDING.
No. 13-P-768.
Middlesex. May 5, 2014. - July 23, 2014.
Present: Grasso, Grainger, & Milkey, JJ.
Firearms. Controlled Substances. Constitutional Law, Vagueness
of statute.
Indictments found and returned in the Superior Court
Department on April 30, 2009.
The case was heard by Thomas P. Billings, J.
Stephen Neyman for the defendant.
Hallie White Speight, Assistant District Attorney (David
Solet, Assistant District Attorney, with her) for the
Commonwealth.
GRAINGER, J. Following a jury-waived trial in the Superior
Court, the defendant was convicted of possession of a machine
gun while in the commission of a felony (G. L. c. 265, § 18B),
two counts of possession of a machine gun (G. L. c. 269,
2
§ 10[c]), and possession of a silencer (G. L. c. 269, § 10A). 1
The judge found that the defendant had participated in an
exchange of drugs for firearms with an undercover special agent
of the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF). We are unpersuaded by the numerous evidentiary,
statutory, and constitutional arguments the defendant raises on
appeal, and affirm the judgments.
Factual background. The judge could have found the
following: On the basis of information received from a
confidential informant, an ATF agent arranged for the controlled
purchase of a hand grenade from the defendant. The grenade that
the defendant sold to the informant contained no live
explosives; confronted thereafter with the defective nature of
his merchandise, the defendant offered to "make up the grenades"
in a meeting with the informant and an undercover ATF agent at
which the participants discussed the possibility of supplying
machine guns and a silencer to the defendant. The negotiations
began with a proposed exchange of weapons; thereafter the
defendant offered to provide marijuana for the machine guns.
The participants eventually agreed that the defendant would
provide payment for the firearms in the form of OxyContin pills.
1
Prior to trial, the defendant also pleaded guilty to
trafficking in oxycodone over fourteen grams, G. L. c. 94C,
§ 32E(c)(1), and to four counts of distribution of a class B
substance, G. L. c. 94C, § 32A(a).
3
After the defendant had taken possession of the firearms, he was
arrested. We refer to additional facts as they pertain to the
issues raised on appeal.
Sufficiency of the evidence. The defendant asserts that
the evidence was insufficient to support his conviction of
possession of a machine gun while in the commission of a felony,
G. L. c. 265, § 18B. 2 The basis of his argument is that the
defendant's receipt of the machine guns from the undercover
officer as payment for drugs followed the defendant's transfer
of drugs to the officer by a second or so. 3 On this sequence of
events the defendant claims that because the felonious transfer
of drugs to the officer was completed an instant before he took
possession of the firearms, he cannot be charged with possession
of the machine guns "while" committing a felony. Under the
defendant's approach a conviction would require distrustful
participants to a guns-for-drugs exchange to relinquish what
they were trading only when they both also held what they were
receiving. We consider this approach, which relies on
2
The underlying felony was trafficking in oxycodone, to
which he had pleaded guilty. See note 1, supra.
3
The officer's report stated that he "placed the pills in
his jacket pockets and began showing Golding the firearms in the
bag."
4
incidental timing that is entirely immaterial to the transaction
to which the defendant agreed, to be artificial and strained. 4
As the Commonwealth has argued, without the guns there
would have been no drug transaction. See Commonwealth v. Hines,
449 Mass. 183, 190 (2007) (requirement of "[s]ome nexus" between
the firearm and the felony in terms of "proximity and logical
relation"). The defendant's accomplished intention to engage in
a contemporaneous exchange of drugs for firearms satisfies the
statute and provides the required element of "some nexus"
between the possession of the firearm and the underlying felony.
Nexus required by G. L. c. 265, § 18B. In a related
argument, the defendant contends that the nexus required by the
statute is lacking because it was the undercover officer, and
not the defendant, who proposed exchanging guns for drugs. 5
4
This is not a case in which a significant amount of time
transpired after the delivery of the drugs, and we do not
address such a possibility.
5
In fact, the record establishes that it was the defendant
who introduced drugs into a proposed weapons exchange.
Regardless, the defendant does not contend that he was entrapped
into committing a crime that he was not otherwise disposed to
commit. We are not confronted with the potentially troubling
situation where an undercover police officer, an agent of the
Commonwealth, brings a firearm to a drug deal as payment,
transforming the nature of the crime, and thereby enhancing the
punishment for the underlying felony of drug distribution by an
additional five or ten years. The defendant's conduct falls
within the literal sweep of the statute, and the enhanced
punishment is appropriately left to Legislative determination.
5
Regardless of the legal basis invoked to support this argument, 6
it is unavailing here. The evidence indicated that negotiations
progressed from a potential weapons swap to the defendant's
proposal to provide marijuana in exchange for the weapons, and
culminated with an agreement based on his promise to commit a
felony through the delivery of oxycodone. There is no authority
for the proposition that the mutual agreement to change the form
of compensation for a weapons purchase affects the underlying
mens rea. The Commonwealth merely needed to demonstrate that
the defendant knew he was possessing a firearm. See
Commonwealth v. Jackson, 369 Mass. 904, 916 (1976) (conviction
under G. L. c. 269, § 10[a], prohibiting unlicensed possession
of firearms on a "strict liability" basis, upheld where "the
accused knew that he was carrying a firearm").
The argument that the fleeting opportunity to inspect the
weapons was insufficient to qualify as possession is also
unavailing. We decline to give serious consideration to the
suggestion that the officer was required to give the defendant a
chance to operate a machine gun during a controlled undercover
exchange of drugs for weapons, and immediately before effecting
6
The defendant's brief alternatively refers to principles
of mens rea, and an inability to enjoy any possessory benefit
from the receipt of the machine guns due to his arrest at the
scene.
6
an arrest. See Commonwealth v. Lacend, 33 Mass. App. Ct. 495,
498 (1992).
Proof of weapons' characteristics. In a corollary to the
defendant's argument that the inability to inspect the weapons
he received as payment for the drugs defeats the element of
possession necessary for conviction, he also maintains that the
very brief period he handled the machine guns negates the
necessary knowledge on his part that these were firearms.
Absent inspection, he claims, he could not know that he was in
possession of an operable firearm as defined by G. L. c. 140,
§ 121. He does not dispute that he intended to acquire firearms
as defined by the statute, and he does not challenge the
sufficiency of the evidence with respect to the operability of
the machine guns he received. His lack of opportunity to verify
the guns' operability at the moment of receipt does not defeat
the element of possession.
Interpretation of G. L. c. 265, § 18B. The defendant
asserts that the judge's interpretation of G. L. c. 265, § 18B,
was predicated on a misinterpretation of the analogous Federal
provision, 18 U.S.C. § 924(c) (2006). The language of the two
statutes differs, however, and we find no error in the judge's
application of G. L. c. 265, § 18B. Our statute criminalizes
possession at the time a felony is committed, regardless whether
the weapon is employed to commit the felony. We discern no
7
direct relevance in Federal Circuit and United States Supreme
Court decisions interpreting the requirement that a firearm be
possessed "in furtherance" of the underlying crime, or that the
underlying crime "be committed by the use of a deadly or
dangerous weapon," 18 U.S.C. § 924(c)(1)(A) (2006). Our cases
require only some nexus between the firearm and the underlying
felony. See Commonwealth v. Hines, supra. As stated, the
evidence here supports the finding of the necessary nexus.
Contract law principles. The defendant asserts that the
judge erroneously imported principles of contract law to
establish the relationship between the drugs and the guns
required for a conviction. His argument is that the law does
not recognize an illegal contract, hence parties to such an
arrangement have no ability to enforce the terms, hence there is
no element of "consideration" linking firearms to this drug
transaction. The judge rightly observed that the defendant
agreed to accept guns in payment for drugs; the illegality of
the exchange does not defeat the application of the statute. To
the contrary, it is an essential element of the crime.
The issue of vagueness. The defendant argues that the
statute is defectively vague, both on its face and as applied to
him, under the United States Constitution and the Massachusetts
8
Declaration of Rights. 7 He supports his argument by offering
examples of unintended application. 8 This argument ignores
"[s]everal principles applicable to vagueness challenges . . . .
Where, as here, the challenge involves no claim that an
overbroad statute threatens First Amendment interests, a
defendant is entitled to assert only his rights and not those of
others who might be affected by the challenged statute in some
different way." Commonwealth v. Jasmin, 396 Mass. 653, 655
(1986). See Commonwealth v. Hendricks, 452 Mass. 97, 98 n.1
(2008). Consequently, the defendant cannot seek relief on the
basis that the statue is unconstitutional on its face.
His argument also ignores the nexus requirement adopted by
the case law. "[T]he Legislature's obvious intention [is] to
'punish the underlying felonies more seriously when a firearm is
involved.'" Commonwealth v. Hines, supra at 189, quoting from
Commonwealth v. Hawkins, 21 Mass. App. Ct. 766, 769 (1986)
(emphasis supplied). In this case the close connection between
the underlying felony and the firearm is beyond dispute.
7
The defendant did not raise a constitutional challenge to
the statute in the trial court. Consequently, our consideration
is limited to determining whether there was a substantial risk
of a miscarriage of justice. See Commonwealth v. Chou, 433
Mass. 229, 238 (2001).
8
For example, he posits that under G. L. c. 265, § 18B, a
licensed gun owner who is convicted of tax evasion could be
convicted of possession of a firearm "while in the commission
. . . of an offense which may be punished by imprisonment in the
state prison."
9
Judgments affirmed.