-: SJC 13315 Commonwealth v Carlos Guardado.
Justice Budd: Okay, Attorney Fronhofer.
-: Thank you, Your Honors.
May it please the court.
Elaine Fronhofer for Carlos Guardado.
This case involved two separate errors,
a jury instruction, trial error,
and the error that dictates the remedy required here
and insufficiency of the evidence.
Specifically the Commonwealth's failure
to prove the element of lack of licensure.
In its request for a different remedy,
the Commonwealth makes two main claims.
First, it argues that it was, "Unjust,"
for this court to permit the defendant
to rely upon the clairvoyance exception,
but not give that same benefit to the government.
I have two responses to that.
Number one,
the clairvoyance exception pertains
to the standard of review,
not the remedy for the constitutional error
that occurred, in this case,
the insufficiency of the evidence.
-: Can I ask you a question about that?
You've said now twice
that it's insufficiency of the evidence,
and I see that that's how you argued it in brief.
Why is that the correct rubric
under which to examine
this claim to bear
when in fact, the law was contrary
and prior and to our decision in that case?
-: Because, Your Honors,
the due process clause requires
that the government prove its case.
-: Right, but it's not really insufficiency of the evidence.
It's not like the government knew that it had to prove
that element of the case that did everything it could
to muster up the evidence.
Instead, it's really more like, "Oh, here's a new thing.
You have to now show that the sky is blue
and you didn't do that."
How?
Why is insufficiency evidence the right rubric?
-: As this court said in Beal,
it is because the court is required to apply that law.
It doesn't have the.
-: In Beal, there was one bite at the apple.
So in Beal, there was two ways to prove the crime.
And Commonwealth chose one way
and we said it was unconstitutional or fault of federal law,
but the Commonwealth had opened to it the other avenue
and chose not to.
So they had a bite at the apple and Beal.
Here, they didn't have a bite at the apple.
-: Well, I don't think that's exactly true.
As I argued in my brief,
the statute that they were prosecuting is
unlawful possession without a license.
-: But when we say in Gouse, we say you don't.
I mean, we're very clear in our precedent
that that's not annulment.
No, that wasn't annulment.
Right. -: Well, that's true, but--
-: This court said, it told everybody, "Don't do this."
-: Well, you didn't say, "Don't do this."
You said, "You don't have to."
-: "You don't have to. " -: You said that.
But the Constitution requires it,
and it's the Constitution that trumps.
-: Right, and the Constitution requires it post Bruen.
-: Not.
And that, I guess I disagree with that.
And just like the Constitution didn't require post,
you know, sorry.
-: 'Cause Gouse says that Heller McDonald did not require it.
Right?
-: That's what Gouse said.
-: Right. -: But it was incorrect.
-: And then-- -: But it was incorrect.
And the court said in Bruen that...
-: Well-- -: The interpretation of
that what that this was required
under the Second Amendment didn't just occur
when Bruen was decided,
or when Garduado was decided.
It occurred, at least back when Heller was decided in Bruen,
the court said, "Courts are misinterpreting this.
We have never limited this to only possession in the home.
We are here reiterating what the Second Amendment protects."
And so that right existed
at the time of Mr. Guardado's trial.
And so, the fact that the government
decided not to put that in
and they did decide not to put it in,
they said, "It would've been easy for us to do so."
And in other cases, they did put that evidence in.
If they claim they have that evidence,
it was a decision they made.
And I guess I just wanna go fall back
and to Justice Wendlandt's point.
I can understand the frustration of prosecutors
in this case saying, "Well, we didn't know, we were told."
But the fact of the matter is,
their frustration cannot trump Fifth Amendment
and 14th Amendment law.
-: So, we should be reversing then or allowing new trials.
And how many years are we going back?
Under your theory, if the law was as it was before Bruen,
Bruen just clarified it,
I take it all these cases need to be reversed.
-: It's up to you, Your Honors, to decide what to do with it
but you're in the Guardado decision.
You said that Guardado would apply to cases on appeal.
As I understand.
-: Your decision.
I think what we're trying to ask you is,
because of the Bruen decision, and it says,
it goes back to the founding fathers under Justice Thomas,
we'd have to basically grant a new trial
to anybody who's alive.
Right?
-: I mean, that is an argument.
It doesn't apply in my case,
but it's an argument to be made.
But clearly, it applies in this case.
-: But hold it, but the rule,
I just wanna make sure I understand
the rule you're saying
'cause again, this is not, ultimately,
this is the US Supreme Court's decision
as much as ours, right?
So, if Bruen is just a clarification,
not a change of the law,
are you saying that all the cases
in which we've just not required proof of licensure
from, I don't know how many years back,
all of those need to be reversed and new trials allowed?
Is that what you're saying?
-: Well, I do not think you should get a new trial
if if the government didn't prove its case,
I'm arguing in this case.
Justice Kafker: Right, no, I understand.
-: That it's remand for acquittal as this court said.
-: Excuse me, that's what-- -: I'm sorry, yes.
-: So that's your view.
So, how many years back are we?
How many cases?
We're talking about thousands and thousands of cases.
-: I don't know the number of cases,
and I also don't know whether it's how this court interprets
when it occurred, but clearly,
at least back to Heller when the court said,
"It is an individual right."
But I--
-: Why isn't Heller a clarification of the law too?
Why isn't Heller the same as Bruen?
-: Well, it was the first time.
I mean, I can't say for certain
how the court will interpret it, but clearly in Heller,
the highest court in the land said,
"It is an individual right."
And they didn't limit it to just in the home.
That's what Bruen said.
We are reiterating here what we said in Heller.
-: Right, I'm just trying to understand
where we draw a line.
If it's not something new and unexpected,
but rather just a clarification of existing law.
I think you're asking us to basically,
you know, reverse all of those convictions.
All these gun cases for the last how many years, right?
-: Well, I don't know how many of them
that didn't present any evidence at all of licensure.
Like as you, Your Honors, are aware in cases they did.
Justice Gaziano: So your argument is,
Gouse was wrongly decided.
-: Yes.
Yes.
And getting back to Justice Wendlandt's initial question,
the reason why it's an insufficiency evidence issue is
because that's what the Supreme Court has said for decades.
You know, in case after case
but Burke is the most explicit.
What the Commonwealth is really asking is saying,
"Look, it's just unfair.
We didn't know."
And what the court in Burke said,
and I just quote it again,
"Where the double jeopardy clause is applicable,
its sweep is absolute.
There are no quote equities to be balanced
for the clause has declared constitutional policy
based on grounds which are not open
to judicial examination."
-: Can you just remind me,
was Burke a case where there was element of the crime
that the government was not aware of prior?
-: No, Burke's, I don't think was--
-: [Justice Wendlandt] No, it wasn't.
-: Right, I don't know.
-: I guess I'm wondering why shouldn't we follow,
in this case, the Weems jurisprudence?
Harrington that your opposing council sites.
Or those cases.
-: Right, well, I would say--
-: Insufficiency is not the right rubric.
-: Well, those cases represent one line of thought
in the Federal Circuits, and these are all outer Circuits.
Again, and I think, I just got wanna say this.
-: I guess taking it on the merits
and not dismissing it
because it's the 9th Circuit or the, you know,
the EA Circuit.
On the merits, why shouldn't we follow
those well-reasoned decisions?
-: Because I think they're not well-reasoned
and I think that they are not--
-: [Justice Wendlandt] Can you explain why you feel that way?
-: Yeah, yes.
Well, I'll say this,
but I do wanna just point out to, Your Honors,
that none of the cases that the Commonwealth has cited,
not one involved the situation that this court confronted
where there was a post-trial clarification of
what the government was constitutionally required to prove.
And at trial, it failed to meet that proof,
not one single case.
-: Before you go on,
can I ask you to explain why Ellison is not that case?
-: Because the court specifically stated in Ellison,
the government's proof at trial met
the post-trial clarification of
what was constitutionally required.
It was not, in the end,
an insufficiency of the evidence case.
So, there hasn't been a case
that the Commonwealth has been able to find,
not one where this court reached,
where this was the situation,
and the court allowed the Commonwealth
or the government to retrial the defendant.
This would be the first case
that under any of us could find, if you reverse.
This is the reason why I think
that they were wrongly decided is
because in a long line of US Supreme Court decisions,
in many other situations
where the courts have confronted situations
where defendants got their convictions reversed, sorry,
were acquitted under an error of law situation.
The court said, "The double jeopardy clause is clear.
There is no recourse."
And I'm talking about Smith versus United States,
Arizona versus Rumsey.
I cite several, it might be United States versus Green.
These are all situations where it was pretty clear
that the defendant, if they had, you know,
not made errors during the trial,
the judge hadn't misconstrued the law,
the person would've been guilty, would've been found guilty.
But the court said, "Your hands are tied.
The double jeopardy clause does not allow this."
And I just wanna say,
speaking the other thing that Burke said is,
"Where the evidence of an offense is insufficient,
the only, quote, just remedy available
for the appellate court is the direction of
a judgment of acquittal."
And I understand that the equities in this case,
in Your Honors' minds,
might weigh in favor of the Commonwealth,
but you cannot ignore that the equities
that are embodied in the double jeopardy clause,
that's what the United States Supreme Court said in Green.
There are equities that weigh in favor of Mr. Guardado,
who would be forced to stand trial again.
He's already served his entire sentence.
Sorry, committed sentence.
And it was those equities that are embodied
and others in the double jeopardy clause.
And this is what the court in Green said.
"Thus, it is one of the elemental principles of
our criminal law that the government cannot secure
a new trial by means of an appeal,
even though an acquittal may appear to be erroneous."
I think in the cases, and okay,
so getting back to the federal cases
that the government cites, the government cites,
there's overwhelming support in the Federal Circuits
for this alternate remedy that this court did not grant.
But that is not the case.
If you look at the cases carefully,
it is clear that the 2nd, the 10th and the 11th Circuits,
even in statutory post-trial statutory
reinterpretation cases,
have held that you do have to look
at the sufficiency of the evidence
that double jeopardy does apply.
And cases I cited in my reply brief,
United States versus Smith and United States versus Mount,
are two 10th and 11th Circuit cases
where the court remanded for acquittal
because there was a post-trial clarification of
what the statute required.
And the government's proof of trial was
later rendered insufficient.
There was not this wall of support in the Federal Circuits
as the Commonwealth suggests.
-: How about counsel
and I apologize because my memory's may be a little bit hazy
on this.
Didn't the Michigan Supreme Court,
wasn't there a state Supreme Court that faced
this same issue and said that remand was the right remedy?
-: Remand for new trials?
Is that what you're saying? -: For new trial.
-: I'm sorry, Your Honor.
I'm not familiar with the case, so I can't.
-: Okay. -: I didn't see it.
Justice Georges: Thank you.
-: The other thing I just wanna say is that
the Commonwealth cites the case of
Commonwealth versus Jefferson,
a 2012 case to make the argument
that focusing on what is fair to the government
in terms of double jeopardy analysis,
is something this court has done.
But that analysis of Jefferson is,
it's a misleading representation, I'll just say.
When the Commonwealth quotes
from the case of Commonwealth versus Jefferson,
"It excises the language that showed
what the court was actually most concerned about
was that what happened at trial was unfair
to the defendants."
This is the antique gun case that the court talks that,
and specifically the defendant's ability
to present that affirmative defense.
And it does quote the language as, I mean, it does state,
as the Commonwealth quoted that language,
that remanding for trial would also,
in fairness, allow the Commonwealth
to submit rebuttal evidence, but--
-: Chief Justice in Kenton, in that case,
was balanced in the fairness.
He basically said it would be unfair to one side
and unfair to the other side.
-: Right, but the concern was that the defendants did
had not presented their affirmative defense.
-: But he didn't say,
"Had the defendant done that,
the Commonwealth would've done this.
So, let's do it again." -: Right.
Right, do it again, but importantly,
it was not an insufficiency of the evidence case.
Double jeopardy was not an issue.
So this suggestion that Jefferson--
-: No, he said it it was a legal requirement
that it wasn't flushed out.
So we're gonna do it again.
-: Yes, yes.
And I just wanna be clear, Your Honor--
-: Like this case. -: That
this court has never taken the position
that when it comes to double jeopardy analysis,
fairness to the government is what is at issue.
Double jeopardy is a, you know,
a doctrine that's been around since
before this country was founded.
It's enshrined in our Bill of Rights,
it's in our common law.
It's purpose as this court has correctly
and consistently upheld,
is protecting citizens from repetitive prosecutions
by a powerful state.
And that is why the law has been so clear.
And this is the thing thing I want to really just emphasize,
Your Honors, is that the law is clear today.
Beal is clear,
this court was clear, Munoz is clear.
What the Commonwealth is asking is for this kind of fuzzy,
wobbly line where it's unfair to the Commonwealth.
Well, there's all sorts of situations
where the Commonwealth could make the argument
that it's unfair.
So I understand as I mentioned that, Your Honors,
might feel that the Commonwealth was completely blindsided
by the holding in Bruen.
I don't particularly fully believe that,
but even if you accept that,
you can imagine other situations
where the proverbial writing on the wall was even here.
-: The Commonwealth has to follow our guidance, right?
So, you know,
we've said that you don't need to put it in.
So, I mean, the Commonwealth is blindsided,
they're following our law.
They can't not follow our law, right?
-: They can introduce evidence of a license
when Bruen was on the docket.
You know, I mean, they can.
Their hands weren't tied,
that they were not forbidden from doing it.
And many district attorneys did.
And so, but my point being, Your Honor,
is that once you get up, once you get away from this--
-: What's your support for that proposition
that many district attorneys did.
-: That many attorneys,
many district attorneys introduced evidence of licensure?
-: Yeah. -: Well, I mean, I'm sorry.
I am aware that other people are in,
since Guardado was decided,
I'm aware that other people are not in the position
that I'm in, that they don't have the, you know,
the luxury of the argument that I can make,
that there was no evidence at all.
-: Right, right. -: And, of course,
there is the Bookman decision.
Justice Gaziano: Right.
-: But in any event, Your Honors,
the point I'm making is that
this moving away from this very clear line,
that this policy that you have always held,
that we have to look at
whether there was sufficient evidence, our hands are tied.
That's what Burke says.
And it is a policy as this,
as Burke said, is that it's not something you get to decide,
it's not an available remedy to say,
we can decide whether or not to impose
the Fifth Amendment protection.
Justice Budd: Okay, thank you very much.
-: Thank you.
-: Attorney Charles.
-: Good morning, Your Honors.
May it please the court.
Assistant District Attorney, Jamie Michael Charles,
for Middlesex on behalf of the Commonwealth.
-: Can you talk about how you see
the double jeopardy clause applying or not applying
in this case?
-: Absolutely.
The first thing I just wanna say is that
the cases my sister just cited for you
that she cites in her brief Smith, Rumney, Green,
those cases concerned a situation
whether where rightly or wrongly at trial,
a trial judge acquitted the defendant
and therefore jeopardy attached prior to any appeal,
prior to any change in the law on appeal.
We have a completely different situation here.
At the time that Mr. Guardado was tried, which was a year.
(Attorney Charles coughs)
Excuse me.
A year before Bruen was even decided.
The law in this commonwealth and the law,
as everyone understood it in the United States,
supported the Commonwealth's position
that licensure did not have to be proved
to prove the offense of 10a, 10h, 10n.
-: But it turns out the Second Amendment required it.
You may not have known this court may have said otherwise,
but it turns out from time, you know,
from the beginning of the founding,
that the Constitution required the Commonwealth
to prove lack of licensure.
-: Well-- -: How do you respond
to that argument by your sister?
-: Well, I think the first thing I would say is that
this court found in Guardado that Bruen announced
a new rule and did not apply it retroactively
to the beginning of our nation's founding.
So from this court's perspective, and my sister and--
-: Well, let's just assume that it did.
The Second Amendment always required this.
What is the Government's position--
-: Let's assume the Second Amendment always required
this proof, then I would say that the case law,
the Commonwealth cites is still applicable
because we still have a situation
where the case was tried under an erroneous view of the law,
and the jury instructions that were given
to the jury did not accurately reflect
what needed to be proved so--
-: And the government didn't prove its case.
So, why doesn't that require acquittal?
-: Well, again,
if the court wants to accept that this goes back to,
if this court wants to invalidate
tens of thousands of firearms convictions
dating back to Jones,
I guess earlier,
then I suppose that's what this court will have to do.
But I think this court already decided
that Bruen announced a new rule
and I think that the vast majority,
not I think, the Commonwealth's position is
the vast majority of federal case law.
And again,
I'm submitting a 16L letter to the court today
because the Commonwealth found a case
from the 6th Circuit that also reaches
a similar conclusion,
United States versus Houston 792F.3d 663.
So nine of the 12 Federal Circuits essentially agree with
the Commonwealth's position that in this situation
where a trial occurred and based on either
the fact that the law did not require something
or all parties involved in the trial understood
that the law did not require something
such that the jury were not instructed on that point.
9 of 12 Circuits agree
that in that circumstance the appropriate remedy is
a remand for a new trial and that it doesn't make sense
to apply double jeopardy principles.
-: Do we have cert requests?
Because this is ultimately not gonna be our call, right?
'Cause if we got a Federal Circuit split.
You say nine to three at this point.
-: I don't mean to suggest it's a Circuit split.
I don't believe the other three Circuits have commented
on it one way or the other
based on the Commonwealth's research.
I have not found a single Federal Circuit
that has affirmatively said that
in this kind of circumstance,
double jeopardy principles should apply.
All the federal case law that is quoted Burke,
has emphasized that it's a very narrow exception
to the general principle that the Commonwealth gets
to retry a case where it is overturned on appeal.
-: And are there any,
I take it there's some assert requests in this or not?
-: If there are, I was attempting to say before that,
my sister is perfectly, they can take assert.
I'm not aware of it at present in this case.
But certainly that is something that the defendant can do
if he feels. -: No, no.
I'm talking about out in these,
I'm focused on the federal case law,
'cause again, we've described Bruen as a new rule.
I get it.
The US Supreme Court,
were they clear or did they leave
that vague in their decision?
-: I don't believe it's as clear
as my sister is making it out to be.
I don't believe.
I unfortunately would have to submit a 16L letter
to the court.
I don't believe that Your Honors are the only court
that has found that Bruen announced a new rule.
And I'd be happy to submit something to the court.
-: If it wasn't a new rule, there'd be no clairvoyance.
Right?
-: I believe that's accurate.
And again,
well, this court has an interesting waiver doctrine as well
that is not necessarily the same.
-: Yeah, we get to find on waiver whenever we want to.
-: Correct.
I think that's astutely stated.
(Justices laugh)
But.
-: You weren't so complimentary
when you asked for reconsideration, but we'll continue.
-: But again, I don't think the Commonwealth is.
The commonwealth acknowledges
that the clairvoyance exception determines
the standard of review.
I'm not saying it creates a substantive right.
I'm merely pointing out that on the one hand,
the court is saying,
the defendant couldn't have possibly objected
to this because no one could have known, right?
That's exactly what the Reynoso case says in the DC Circuit.
They said, "Neither the trial judge, the defendant himself,
the parties or the jury understood
that this particular element was an element
at the time of trial and therefore,
applying double jeopardy is essentially a non-sequitur."
-: How do you distinguish Munoz and Beal?
-: You know, so, as the Commonwealth argued in its brief,
that was not, I think they're both distinguishable,
I'll say at the outset
because they did not involve situations
where there was clearly defined precedent of
the Commonwealth that dictated what the right outcome was.
So in Munoz, all this court did in Munoz's was
essentially declined to extend 278, section 7,
to the crime of unlicensed operation.
There was no prior precedent.
As there was here with Jones
and all these other cases that said,
"Commonwealth,
you do not have to prove that someone is unlicensed
to find them guilty of unlicensed operation."
-: It was just a jury instruction.
-: It was just an erroneous district court jury instruction.
So there was no binding precedent from this court
or the appeals court telling the Commonwealth,
"Don't worry about this, just prove the other elements.
You're good to go."
Justice Gaziano: All right, what about Beal?
-: Beal actually, you know, I wish I had flushed
this out more in my brief, but seeing how much
the defendant focused on it,
the Commonwealth dug in a little deeper,
if there's a variety of reasons
that Beal is distinguishable.
So, first, again, the law was not settled.
Based on the Commonwealth research,
there was no prior decision of this court
or the appeals court that had affirmatively,
explicitly stated that assault
and battery is a categorically violent crime
under either the force clause or the residual clause.
Both Colon and Eberhart post-dated
the defendant's conviction in Beal.
In fact, if you look back in Commonwealth versus Burke
in 1983, 390 Mass. 480,
and then First Circuit precedent,
United States v Harris 964 F.2d 1234 and 92,
that's a decision by Justice Breyer.
And two months prior to the defendant's conviction in Beal,
I don't know why I'm pointing that way,
but in the defendant's conviction in Beal,
in US v Holloway 630 F.3d 252, which was in January of 2011,
Massachusetts and the First Circuit recognize
that A and B is a crime,
Massachusetts A and B is a crime
that can be proved in violent and non-violent ways.
And arguably, if you read the Holloway case,
they make clear that a certified conviction of
A and B would be insufficient
under the Federal Armed Career Criminal Act.
Which as this court recognizes, is essentially identical
to the Massachusetts version of that statute.
I would also note that in Beal at trial,
at the subsequent offender trial,
defense counsel objected
to the way the Commonwealth was trying to prove
their case and he cited a 2010 decision
of the United States Supreme Court
Johnson versus United States,
in which they had interpreted a similar Florida assault
and battery law that had both harmful and offensive ways
and determined that that did not categorically qualify
under the Federal ACCA under the force clause.
So there was a variety.
So, there was no binding Massachusetts precedent
that said what the Commonwealth did in Beal was okay.
There was First Circuit in Massachusetts precedent
that made clear that assault and battery could be proved
in a violent way and in a nonviolent way.
And there was a Supreme Court case
that was decided more than a year
before the subsequent offender portion of Beal's trial
that found a similar statute in a different state
to not qualify under the Federal ACCA,
which again has been determined to substantially mirror
the Mass ACCA.
So, I would say Beal wasn't remotely the same.
I would also just note that having reviewed
the party's briefs in Beal,
the only case that was cited by
either party was DiBenedetto.
None of the Federal Circuit case law,
much of which existed at the time
that the Commonwealth cites here was briefed by the courts,
was considered by the court.
So while I acknowledge that the court did undertake
a sufficiency of the evidence analysis in that case,
there really wasn't any sort of
drawn out conversation about should that be happening
in the first place.
And I think, again, if you look at the case law here,
the vast, again,
I'm citing the federal case law
because Massachusetts hasn't always reached every question,
but the only reason I can't say it's uniform is
because I can't find certain Circuits that have weighed it
one way or the other.
But most of the case law that the Commonwealth found is--
-: What about the cases in council's reply brief.
-: I'm happy to go through
and distinguish every case she has cited.
I would note that with respect to the Smith case,
that appears to be,
now obviously Circuit courts have more than three judges
and they don't always sit on done,
and so there may be differing interpretations of their law.
The Commonwealth found a case that postdates the Smith case
in the 10th Circuit
from 2019 United States versus Arciniega-Zetin,
755 Federal Appendix 835.
And in that case, in describing what was said in Wacker,
the 10th Circuit said as follows,
"We must order the dismissal of any charge
that the government failed to prove by sufficient evidence."
And here's the important part.
"Under the law enforced during his trial.
But if the government's proof sufficed
under the now outdated law,
then showing that this proof would not suffice
under the Supervening law won't win the defendant
a dismissal."
So that's the 10th Circuit.
More than a decade after Smith,
reiterating what they said in Wacker,
that if you engage in a sufficiency analysis at all,
you have to do it under the law as it was
at the time of trial.
You can't do it on the law that now exists
that didn't exist at the time of trial.
With respect, I do want to talk about Ellison
'cause I think it's important.
I think, with all due respect to my sister,
she isolating and mistakenly quotes that case.
The full quote from that case is as follows,
"The basis for setting aside Ellison's conviction is not
an insufficiency of the evidence.
Rather, we must set aside the verdict
because of the un-erroneous jury instruction."
And here's the important part,
"Under Circuit law at the time of trial,
the government presented more than sufficient evidence
to support a guilty verdict against Ellison,
prior to Free Speech Coalition,
the United States Supreme Court that changed the law.
It was unnecessary for the government to offer evidence
that a minor depicted in a given image was
an actual child and not a computer generated image."
So they're saying it's not a sufficiency case
because the government's evidence was sufficient
at the time of trial.
That's why it's not an insufficiency case.
Only Free Speech Coalition created that insufficiency.
And I think that case is doubly important
because my sister tries in her initial brief,
tries to draw this non-existent distinction
between statutory changes and constitutional changes.
But you can't get much more constitutional
than the First Amendment.
And Ellison said exactly that,
that where you have a change that's dictated
by the Constitution,
we're not gonna say that that was insufficient
where you have to prove something
you didn't have to prove before.
-: Is there a difference in the analysis
under our common law double jeopardy,
which may not be co-extensive with the federal?
-: I will certainly acknowledge
that Massachusetts can grant more rights to a defendant.
I don't believe that Munoz and Beal represent
that kind of a difference.
I just think they're, A, distinguishable
and B, I don't believe this court
or the appeals court has ever really drilled down
to this degree as to when double jeopardy should apply.
So I guess the answer is no, I don't think
that the state constitution
or this court's jurisprudence grants more rights
under double jeopardy principles.
-: Either way, it's an open question.
-: Correct.
The Commonwealth believes that it is an open question.
So again,
I just wanna reemphasize what some of these courts said.
I think the 8th Circuit said it really well
when they note that the Commonwealth is not being given
a second bite at the apple,
they're merely being given a first opportunity
to prove what they did not need to prove before.
-: With respect to the ramifications of this,
if you were to prevail the defendant
under double jeopardy couldn't be sentenced again.
Correct?
-: I don't believe he could be sentenced
to anything more severe.
-: He's already served his time for this.
So that's a--
-: He served his committed sentence.
-: Right, so that's a double jeopardy,
that's another double jeopardy issue.
-: Correct, he could not.
-: Isn't it just in finality to serve in a sentence,
he served the sentence.
-: Correct.
The only remaining portion of his sentence is
a period of probation that the Commonwealth agreed to stay.
As it seems like at a minimum,
this defendant would be entitled to,
is going to receive a new trial on the non
or on the 10a charge in this case
and the other associated charges
that were affected by Bruen.
So, but again, for the Commonwealth's purposes,
we're not looking to make the defendants serve more time
if he served his time,
but whether or not he's convicted is relevant
to the repercussions if there are future offenses
as it is in many other cases
where we're talking about subsequent offenders
and armed career criminals.
So if all of these convictions that are affected
by Guardado are just deemed to be acquittals,
that is gonna throw a wrench in many circumstances
or in many cases where these convictions served
as predicates for other enhancements.
And I don't think that's appropriate.
Where the government didn't know at the time of these trials
and where this court had been telling the government
for 45 years dating back to Jones,
and I think it was '76 or thereabouts,
and reaffirmed it post-Heller and post-McDonald
in Gouse and Harris that we did not have to prove this,
that this was an affirmative defense
that had to first be raised by the defendant.
And so for all those reasons,
the Commonwealth would ask that this court conclude
that the appropriate remedy here is a new trial
and not acquittal for the affected cases.