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SJC 13315 Commonwealth v Carlos Guardado.
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Okay, Attorney Fronhofer.
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Thank you, Your Honors.
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May it please the court.
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Elaine Fronhofer for Carlos Guardado.
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This case involved two separate errors,
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a jury instruction, trial error,
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and the error that dictates the remedy required here
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and insufficiency of the evidence.
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Specifically the Commonwealth's failure
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to prove the element of lack of licensure.
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In its request for a different remedy,
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the Commonwealth makes two main claims.
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First, it argues that it was, "Unjust,"
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for this court to permit the defendant
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to rely upon the clairvoyance exception,
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but not give that same benefit to the government.
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I have two responses to that.
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Number one,
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the clairvoyance exception pertains
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to the standard of review,
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not the remedy for the constitutional error
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that occurred, in this case,
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the insufficiency of the evidence.
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Can I ask you a question about that?
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You've said now twice
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that it's insufficiency of the evidence,
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and I see that that's how you argued it in brief.
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Why is that the correct rubric
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under which to examine
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this claim to bear
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when in fact, the law was contrary
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and prior and to our decision in that case?
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Because, Your Honors,
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the due process clause requires
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that the government prove its case.
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Right, but it's not really insufficiency of the evidence.
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It's not like the government knew that it had to prove
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that element of the case that did everything it could
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to muster up the evidence.
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Instead, it's really more like, "Oh, here's a new thing.
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You have to now show that the sky is blue
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and you didn't do that."
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How?
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Why is insufficiency evidence the right rubric?
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As this court said in Beal,
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it is because the court is required to apply that law.
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It doesn't have the.
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In Beal, there was one bite at the apple.
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So in Beal, there was two ways to prove the crime.
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And Commonwealth chose one way
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and we said it was unconstitutional or fault of federal law,
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but the Commonwealth had opened to it the other avenue
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and chose not to.
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So they had a bite at the apple and Beal.
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Here, they didn't have a bite at the apple.
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Well, I don't think that's exactly true.
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As I argued in my brief,
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the statute that they were prosecuting is
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unlawful possession without a license.
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But when we say in Gouse, we say you don't.
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I mean, we're very clear in our precedent
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that that's not annulment.
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No, that wasn't annulment.
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Right.
Well, that's true, but--
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This court said, it told everybody, "Don't do this."
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Well, you didn't say, "Don't do this."
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You said, "You don't have to."
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"You don't have to. "
You said that.
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But the Constitution requires it,
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and it's the Constitution that trumps.
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Right, and the Constitution requires it post Bruen.
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Not.
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And that, I guess I disagree with that.
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And just like the Constitution didn't require post,
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you know, sorry.
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'Cause Gouse says that Heller McDonald did not require it.
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Right?
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That's what Gouse said.
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Right.
But it was incorrect.
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And then--
But it was incorrect.
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And the court said in Bruen that...
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Well--
The interpretation of
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that what that this was required
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under the Second Amendment didn't just occur
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when Bruen was decided,
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or when Garduado was decided.
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It occurred, at least back when Heller was decided in Bruen,
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the court said, "Courts are misinterpreting this.
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We have never limited this to only possession in the home.
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We are here reiterating what the Second Amendment protects."
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And so that right existed
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at the time of Mr. Guardado's trial.
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And so, the fact that the government
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decided not to put that in
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and they did decide not to put it in,
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they said, "It would've been easy for us to do so."
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And in other cases, they did put that evidence in.
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If they claim they have that evidence,
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it was a decision they made.
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And I guess I just wanna go fall back
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and to Justice Wendlandt's point.
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I can understand the frustration of prosecutors
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in this case saying, "Well, we didn't know, we were told."
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But the fact of the matter is,
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their frustration cannot trump Fifth Amendment
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and 14th Amendment law.
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So, we should be reversing then or allowing new trials.
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And how many years are we going back?
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Under your theory, if the law was as it was before Bruen,
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Bruen just clarified it,
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I take it all these cases need to be reversed.
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It's up to you, Your Honors, to decide what to do with it
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but you're in the Guardado decision.
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You said that Guardado would apply to cases on appeal.
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As I understand.
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Your decision.
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I think what we're trying to ask you is,
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because of the Bruen decision, and it says,
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it goes back to the founding fathers under Justice Thomas,
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we'd have to basically grant a new trial
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to anybody who's alive.
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Right?
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I mean, that is an argument.
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It doesn't apply in my case,
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but it's an argument to be made.
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But clearly, it applies in this case.
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But hold it, but the rule,
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I just wanna make sure I understand
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the rule you're saying
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'cause again, this is not, ultimately,
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this is the US Supreme Court's decision
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as much as ours, right?
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So, if Bruen is just a clarification,
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not a change of the law,
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are you saying that all the cases
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in which we've just not required proof of licensure
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from, I don't know how many years back,
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all of those need to be reversed and new trials allowed?
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Is that what you're saying?
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Well, I do not think you should get a new trial
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if if the government didn't prove its case,
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I'm arguing in this case.
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Right, no, I understand.
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That it's remand for acquittal as this court said.
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Excuse me, that's what--
I'm sorry, yes.
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So that's your view.
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So, how many years back are we?
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How many cases?
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We're talking about thousands and thousands of cases.
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I don't know the number of cases,
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and I also don't know whether it's how this court interprets
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when it occurred, but clearly,
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at least back to Heller when the court said,
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"It is an individual right."
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But I--
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Why isn't Heller a clarification of the law too?
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Why isn't Heller the same as Bruen?
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Well, it was the first time.
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I mean, I can't say for certain
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how the court will interpret it, but clearly in Heller,
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the highest court in the land said,
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"It is an individual right."
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And they didn't limit it to just in the home.
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That's what Bruen said.
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We are reiterating here what we said in Heller.
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Right, I'm just trying to understand
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where we draw a line.
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If it's not something new and unexpected,
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but rather just a clarification of existing law.
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I think you're asking us to basically,
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you know, reverse all of those convictions.
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All these gun cases for the last how many years, right?
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Well, I don't know how many of them
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that didn't present any evidence at all of licensure.
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Like as you, Your Honors, are aware in cases they did.
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So your argument is,
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Gouse was wrongly decided.
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Yes.
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Yes.
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And getting back to Justice Wendlandt's initial question,
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the reason why it's an insufficiency evidence issue is
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because that's what the Supreme Court has said for decades.
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You know, in case after case
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but Burke is the most explicit.
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What the Commonwealth is really asking is saying,
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"Look, it's just unfair.
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We didn't know."
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And what the court in Burke said,
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and I just quote it again,
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"Where the double jeopardy clause is applicable,
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its sweep is absolute.
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There are no quote equities to be balanced
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for the clause has declared constitutional policy
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based on grounds which are not open
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to judicial examination."
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Can you just remind me,
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was Burke a case where there was element of the crime
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that the government was not aware of prior?
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No, Burke's, I don't think was--
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[Justice Wendlandt] No, it wasn't.
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Right, I don't know.
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I guess I'm wondering why shouldn't we follow,
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in this case, the Weems jurisprudence?
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Harrington that your opposing council sites.
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Or those cases.
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Right, well, I would say--
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Insufficiency is not the right rubric.
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Well, those cases represent one line of thought
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in the Federal Circuits, and these are all outer Circuits.
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Again, and I think, I just got wanna say this.
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I guess taking it on the merits
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and not dismissing it
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because it's the 9th Circuit or the, you know,
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the EA Circuit.
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On the merits, why shouldn't we follow
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those well-reasoned decisions?
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Because I think they're not well-reasoned
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and I think that they are not--
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[Justice Wendlandt] Can you explain why you feel that way?
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Yeah, yes.
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Well, I'll say this,
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but I do wanna just point out to, Your Honors,
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that none of the cases that the Commonwealth has cited,
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not one involved the situation that this court confronted
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where there was a post-trial clarification of
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what the government was constitutionally required to prove.
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And at trial, it failed to meet that proof,
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not one single case.
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Before you go on,
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can I ask you to explain why Ellison is not that case?
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Because the court specifically stated in Ellison,
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the government's proof at trial met
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the post-trial clarification of
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what was constitutionally required.
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It was not, in the end,
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an insufficiency of the evidence case.
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So, there hasn't been a case
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that the Commonwealth has been able to find,
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not one where this court reached,
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where this was the situation,
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and the court allowed the Commonwealth
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or the government to retrial the defendant.
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This would be the first case
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that under any of us could find, if you reverse.
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This is the reason why I think
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that they were wrongly decided is
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because in a long line of US Supreme Court decisions,
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in many other situations
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where the courts have confronted situations
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where defendants got their convictions reversed, sorry,
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were acquitted under an error of law situation.
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The court said, "The double jeopardy clause is clear.
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There is no recourse."
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And I'm talking about Smith versus United States,
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Arizona versus Rumsey.
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I cite several, it might be United States versus Green.
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These are all situations where it was pretty clear
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that the defendant, if they had, you know,
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not made errors during the trial,
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the judge hadn't misconstrued the law,
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the person would've been guilty, would've been found guilty.
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But the court said, "Your hands are tied.
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The double jeopardy clause does not allow this."
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And I just wanna say,
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speaking the other thing that Burke said is,
267
00:10:52.297 --> 00:10:54.810
"Where the evidence of an offense is insufficient,
268
00:10:54.810 --> 00:10:57.690
the only, quote, just remedy available
269
00:10:57.690 --> 00:11:00.480
for the appellate court is the direction of
270
00:11:00.480 --> 00:11:01.730
a judgment of acquittal."
271
00:11:04.596 --> 00:11:07.290
And I understand that the equities in this case,
272
00:11:07.290 --> 00:11:08.760
in Your Honors' minds,
273
00:11:08.760 --> 00:11:10.770
might weigh in favor of the Commonwealth,
274
00:11:10.770 --> 00:11:12.840
but you cannot ignore that the equities
275
00:11:12.840 --> 00:11:14.970
that are embodied in the double jeopardy clause,
276
00:11:14.970 --> 00:11:17.910
that's what the United States Supreme Court said in Green.
277
00:11:17.910 --> 00:11:20.610
There are equities that weigh in favor of Mr. Guardado,
278
00:11:20.610 --> 00:11:22.110
who would be forced to stand trial again.
279
00:11:22.110 --> 00:11:24.390
He's already served his entire sentence.
280
00:11:24.390 --> 00:11:26.340
Sorry, committed sentence.
281
00:11:26.340 --> 00:11:28.740
And it was those equities that are embodied
282
00:11:28.740 --> 00:11:30.870
and others in the double jeopardy clause.
283
00:11:30.870 --> 00:11:33.187
And this is what the court in Green said.
284
00:11:33.187 --> 00:11:35.310
"Thus, it is one of the elemental principles of
285
00:11:35.310 --> 00:11:37.710
our criminal law that the government cannot secure
286
00:11:37.710 --> 00:11:39.540
a new trial by means of an appeal,
287
00:11:39.540 --> 00:11:42.597
even though an acquittal may appear to be erroneous."
288
00:11:43.740 --> 00:11:45.120
I think in the cases, and okay,
289
00:11:45.120 --> 00:11:46.650
so getting back to the federal cases
290
00:11:46.650 --> 00:11:48.750
that the government cites, the government cites,
291
00:11:48.750 --> 00:11:51.450
there's overwhelming support in the Federal Circuits
292
00:11:51.450 --> 00:11:54.930
for this alternate remedy that this court did not grant.
293
00:11:54.930 --> 00:11:56.280
But that is not the case.
294
00:11:56.280 --> 00:11:58.050
If you look at the cases carefully,
295
00:11:58.050 --> 00:12:01.650
it is clear that the 2nd, the 10th and the 11th Circuits,
296
00:12:01.650 --> 00:12:04.710
even in statutory post-trial statutory
297
00:12:04.710 --> 00:12:06.180
reinterpretation cases,
298
00:12:06.180 --> 00:12:08.610
have held that you do have to look
299
00:12:08.610 --> 00:12:10.590
at the sufficiency of the evidence
300
00:12:10.590 --> 00:12:12.420
that double jeopardy does apply.
301
00:12:12.420 --> 00:12:14.130
And cases I cited in my reply brief,
302
00:12:14.130 --> 00:12:17.880
United States versus Smith and United States versus Mount,
303
00:12:17.880 --> 00:12:20.040
are two 10th and 11th Circuit cases
304
00:12:20.040 --> 00:12:22.140
where the court remanded for acquittal
305
00:12:22.140 --> 00:12:24.930
because there was a post-trial clarification of
306
00:12:24.930 --> 00:12:26.370
what the statute required.
307
00:12:26.370 --> 00:12:28.710
And the government's proof of trial was
308
00:12:28.710 --> 00:12:30.690
later rendered insufficient.
309
00:12:30.690 --> 00:12:33.120
There was not this wall of support in the Federal Circuits
310
00:12:33.120 --> 00:12:34.569
as the Commonwealth suggests.
311
00:12:34.569 --> 00:12:35.757
How about counsel
312
00:12:35.757 --> 00:12:39.150
and I apologize because my memory's may be a little bit hazy
313
00:12:39.150 --> 00:12:39.983
on this.
314
00:12:39.983 --> 00:12:41.450
Didn't the Michigan Supreme Court,
315
00:12:42.690 --> 00:12:45.150
wasn't there a state Supreme Court that faced
316
00:12:45.150 --> 00:12:50.150
this same issue and said that remand was the right remedy?
317
00:12:50.670 --> 00:12:52.232
Remand for new trials?
318
00:12:52.232 --> 00:12:53.081
Is that what you're saying?
For new trial.
319
00:12:53.081 --> 00:12:53.914
I'm sorry, Your Honor.
320
00:12:53.914 --> 00:12:55.713
I'm not familiar with the case, so I can't.
321
00:12:55.713 --> 00:12:56.546
Okay.
I didn't see it.
322
00:12:56.546 --> 00:12:57.636
Thank you.
323
00:12:57.636 --> 00:12:59.670
The other thing I just wanna say is that
324
00:12:59.670 --> 00:13:02.190
the Commonwealth cites the case of
325
00:13:02.190 --> 00:13:03.690
Commonwealth versus Jefferson,
326
00:13:03.690 --> 00:13:05.760
a 2012 case to make the argument
327
00:13:05.760 --> 00:13:08.850
that focusing on what is fair to the government
328
00:13:08.850 --> 00:13:11.250
in terms of double jeopardy analysis,
329
00:13:11.250 --> 00:13:12.810
is something this court has done.
330
00:13:12.810 --> 00:13:16.233
But that analysis of Jefferson is,
331
00:13:17.700 --> 00:13:20.010
it's a misleading representation, I'll just say.
332
00:13:20.010 --> 00:13:21.450
When the Commonwealth quotes
333
00:13:21.450 --> 00:13:24.457
from the case of Commonwealth versus Jefferson,
334
00:13:24.457 --> 00:13:26.460
"It excises the language that showed
335
00:13:26.460 --> 00:13:28.860
what the court was actually most concerned about
336
00:13:28.860 --> 00:13:30.750
was that what happened at trial was unfair
337
00:13:30.750 --> 00:13:31.710
to the defendants."
338
00:13:31.710 --> 00:13:35.106
This is the antique gun case that the court talks that,
339
00:13:35.106 --> 00:13:37.950
and specifically the defendant's ability
340
00:13:37.950 --> 00:13:39.810
to present that affirmative defense.
341
00:13:39.810 --> 00:13:43.920
And it does quote the language as, I mean, it does state,
342
00:13:43.920 --> 00:13:45.660
as the Commonwealth quoted that language,
343
00:13:45.660 --> 00:13:47.430
that remanding for trial would also,
344
00:13:47.430 --> 00:13:49.080
in fairness, allow the Commonwealth
345
00:13:49.080 --> 00:13:51.240
to submit rebuttal evidence, but--
346
00:13:51.240 --> 00:13:52.380
Chief Justice in Kenton, in that case,
347
00:13:52.380 --> 00:13:53.490
was balanced in the fairness.
348
00:13:53.490 --> 00:13:55.230
He basically said it would be unfair to one side
349
00:13:55.230 --> 00:13:56.680
and unfair to the other side.
350
00:13:57.660 --> 00:14:01.290
Right, but the concern was that the defendants did
351
00:14:01.290 --> 00:14:02.436
had not presented their affirmative defense.
352
00:14:02.436 --> 00:14:03.269
But he didn't say,
353
00:14:03.269 --> 00:14:04.170
"Had the defendant done that,
354
00:14:04.170 --> 00:14:05.190
the Commonwealth would've done this.
355
00:14:05.190 --> 00:14:07.309
So, let's do it again."
Right.
356
00:14:07.309 --> 00:14:09.390
Right, do it again, but importantly,
357
00:14:09.390 --> 00:14:11.400
it was not an insufficiency of the evidence case.
358
00:14:11.400 --> 00:14:12.810
Double jeopardy was not an issue.
359
00:14:12.810 --> 00:14:14.910
So this suggestion that Jefferson--
360
00:14:14.910 --> 00:14:17.250
No, he said it it was a legal requirement
361
00:14:17.250 --> 00:14:18.930
that it wasn't flushed out.
362
00:14:18.930 --> 00:14:19.810
So we're gonna do it again.
363
00:14:19.810 --> 00:14:20.643
Yes, yes.
364
00:14:20.643 --> 00:14:21.600
And I just wanna be clear, Your Honor--
365
00:14:21.600 --> 00:14:22.800
Like this case.
That
366
00:14:22.800 --> 00:14:25.080
this court has never taken the position
367
00:14:25.080 --> 00:14:28.320
that when it comes to double jeopardy analysis,
368
00:14:28.320 --> 00:14:31.140
fairness to the government is what is at issue.
369
00:14:31.140 --> 00:14:32.640
Double jeopardy is a, you know,
370
00:14:32.640 --> 00:14:34.380
a doctrine that's been around since
371
00:14:34.380 --> 00:14:35.670
before this country was founded.
372
00:14:35.670 --> 00:14:37.170
It's enshrined in our Bill of Rights,
373
00:14:37.170 --> 00:14:38.550
it's in our common law.
374
00:14:38.550 --> 00:14:40.800
It's purpose as this court has correctly
375
00:14:40.800 --> 00:14:42.120
and consistently upheld,
376
00:14:42.120 --> 00:14:46.140
is protecting citizens from repetitive prosecutions
377
00:14:46.140 --> 00:14:47.760
by a powerful state.
378
00:14:47.760 --> 00:14:50.460
And that is why the law has been so clear.
379
00:14:50.460 --> 00:14:52.440
And this is the thing thing I want to really just emphasize,
380
00:14:52.440 --> 00:14:55.050
Your Honors, is that the law is clear today.
381
00:14:55.050 --> 00:14:56.370
Beal is clear,
382
00:14:56.370 --> 00:14:58.773
this court was clear, Munoz is clear.
383
00:14:59.697 --> 00:15:02.970
What the Commonwealth is asking is for this kind of fuzzy,
384
00:15:02.970 --> 00:15:06.540
wobbly line where it's unfair to the Commonwealth.
385
00:15:06.540 --> 00:15:08.100
Well, there's all sorts of situations
386
00:15:08.100 --> 00:15:09.540
where the Commonwealth could make the argument
387
00:15:09.540 --> 00:15:10.710
that it's unfair.
388
00:15:10.710 --> 00:15:13.170
So I understand as I mentioned that, Your Honors,
389
00:15:13.170 --> 00:15:15.930
might feel that the Commonwealth was completely blindsided
390
00:15:15.930 --> 00:15:17.370
by the holding in Bruen.
391
00:15:17.370 --> 00:15:19.770
I don't particularly fully believe that,
392
00:15:19.770 --> 00:15:21.990
but even if you accept that,
393
00:15:21.990 --> 00:15:23.490
you can imagine other situations
394
00:15:23.490 --> 00:15:25.579
where the proverbial writing on the wall was even here.
395
00:15:25.579 --> 00:15:28.680
The Commonwealth has to follow our guidance, right?
396
00:15:28.680 --> 00:15:30.870
So, you know,
397
00:15:30.870 --> 00:15:33.750
we've said that you don't need to put it in.
398
00:15:33.750 --> 00:15:36.900
So, I mean, the Commonwealth is blindsided,
399
00:15:36.900 --> 00:15:38.010
they're following our law.
400
00:15:38.010 --> 00:15:40.140
They can't not follow our law, right?
401
00:15:40.140 --> 00:15:43.500
They can introduce evidence of a license
402
00:15:43.500 --> 00:15:46.020
when Bruen was on the docket.
403
00:15:46.020 --> 00:15:47.370
You know, I mean, they can.
404
00:15:48.960 --> 00:15:49.860
Their hands weren't tied,
405
00:15:49.860 --> 00:15:51.690
that they were not forbidden from doing it.
406
00:15:51.690 --> 00:15:53.880
And many district attorneys did.
407
00:15:53.880 --> 00:15:56.510
And so, but my point being, Your Honor,
408
00:15:56.510 --> 00:15:59.070
is that once you get up, once you get away from this--
409
00:15:59.070 --> 00:16:00.570
What's your support for that proposition
410
00:16:00.570 --> 00:16:02.220
that many district attorneys did.
411
00:16:03.383 --> 00:16:04.920
That many attorneys,
412
00:16:04.920 --> 00:16:07.360
many district attorneys introduced evidence of licensure?
413
00:16:07.360 --> 00:16:08.730
Yeah.
Well, I mean, I'm sorry.
414
00:16:08.730 --> 00:16:11.490
I am aware that other people are in,
415
00:16:11.490 --> 00:16:12.720
since Guardado was decided,
416
00:16:12.720 --> 00:16:14.790
I'm aware that other people are not in the position
417
00:16:14.790 --> 00:16:17.610
that I'm in, that they don't have the, you know,
418
00:16:17.610 --> 00:16:19.020
the luxury of the argument that I can make,
419
00:16:19.020 --> 00:16:19.906
that there was no evidence at all.
420
00:16:19.906 --> 00:16:20.739
Right, right.
And, of course,
421
00:16:20.739 --> 00:16:21.660
there is the Bookman decision.
422
00:16:21.660 --> 00:16:23.055
Right.
423
00:16:23.055 --> 00:16:23.888
But in any event, Your Honors,
424
00:16:23.888 --> 00:16:25.280
the point I'm making is that
425
00:16:26.572 --> 00:16:29.280
this moving away from this very clear line,
426
00:16:29.280 --> 00:16:31.830
that this policy that you have always held,
427
00:16:31.830 --> 00:16:33.570
that we have to look at
428
00:16:33.570 --> 00:16:35.880
whether there was sufficient evidence, our hands are tied.
429
00:16:35.880 --> 00:16:37.680
That's what Burke says.
430
00:16:37.680 --> 00:16:39.570
And it is a policy as this,
431
00:16:39.570 --> 00:16:44.310
as Burke said, is that it's not something you get to decide,
432
00:16:44.310 --> 00:16:47.190
it's not an available remedy to say,
433
00:16:47.190 --> 00:16:49.620
we can decide whether or not to impose
434
00:16:49.620 --> 00:16:50.760
the Fifth Amendment protection.
435
00:16:50.760 --> 00:16:51.840
Okay, thank you very much.
436
00:16:51.840 --> 00:16:52.673
Thank you.
437
00:16:55.110 --> 00:16:56.163
Attorney Charles.
438
00:16:59.610 --> 00:17:00.480
Good morning, Your Honors.
439
00:17:00.480 --> 00:17:01.313
May it please the court.
440
00:17:01.313 --> 00:17:03.780
Assistant District Attorney, Jamie Michael Charles,
441
00:17:03.780 --> 00:17:05.760
for Middlesex on behalf of the Commonwealth.
442
00:17:05.760 --> 00:17:08.070
Can you talk about how you see
443
00:17:08.070 --> 00:17:10.320
the double jeopardy clause applying or not applying
444
00:17:10.320 --> 00:17:11.160
in this case?
445
00:17:11.160 --> 00:17:12.003
Absolutely.
446
00:17:12.960 --> 00:17:14.460
The first thing I just wanna say is that
447
00:17:14.460 --> 00:17:16.470
the cases my sister just cited for you
448
00:17:16.470 --> 00:17:21.470
that she cites in her brief Smith, Rumney, Green,
449
00:17:21.480 --> 00:17:23.310
those cases concerned a situation
450
00:17:23.310 --> 00:17:26.490
whether where rightly or wrongly at trial,
451
00:17:26.490 --> 00:17:28.920
a trial judge acquitted the defendant
452
00:17:28.920 --> 00:17:31.740
and therefore jeopardy attached prior to any appeal,
453
00:17:31.740 --> 00:17:34.290
prior to any change in the law on appeal.
454
00:17:34.290 --> 00:17:36.870
We have a completely different situation here.
455
00:17:36.870 --> 00:17:40.610
At the time that Mr. Guardado was tried, which was a year.
456
00:17:40.610 --> 00:17:41.443
(Attorney Charles coughs)
457
00:17:41.443 --> 00:17:42.276
Excuse me.
458
00:17:42.276 --> 00:17:45.450
A year before Bruen was even decided.
459
00:17:45.450 --> 00:17:47.340
The law in this commonwealth and the law,
460
00:17:47.340 --> 00:17:49.690
as everyone understood it in the United States,
461
00:17:50.820 --> 00:17:52.830
supported the Commonwealth's position
462
00:17:52.830 --> 00:17:56.310
that licensure did not have to be proved
463
00:17:56.310 --> 00:17:59.597
to prove the offense of 10a, 10h, 10n.
464
00:17:59.597 --> 00:18:02.853
But it turns out the Second Amendment required it.
465
00:18:04.350 --> 00:18:07.440
You may not have known this court may have said otherwise,
466
00:18:07.440 --> 00:18:10.050
but it turns out from time, you know,
467
00:18:10.050 --> 00:18:12.900
from the beginning of the founding,
468
00:18:12.900 --> 00:18:16.590
that the Constitution required the Commonwealth
469
00:18:16.590 --> 00:18:19.620
to prove lack of licensure.
470
00:18:19.620 --> 00:18:20.940
Well--
How do you respond
471
00:18:20.940 --> 00:18:22.740
to that argument by your sister?
472
00:18:22.740 --> 00:18:24.300
Well, I think the first thing I would say is that
473
00:18:24.300 --> 00:18:27.150
this court found in Guardado that Bruen announced
474
00:18:27.150 --> 00:18:29.700
a new rule and did not apply it retroactively
475
00:18:29.700 --> 00:18:32.400
to the beginning of our nation's founding.
476
00:18:32.400 --> 00:18:36.330
So from this court's perspective, and my sister and--
477
00:18:36.330 --> 00:18:39.060
Well, let's just assume that it did.
478
00:18:39.060 --> 00:18:41.943
The Second Amendment always required this.
479
00:18:43.380 --> 00:18:44.213
What is the Government's position--
480
00:18:44.213 --> 00:18:45.810
Let's assume the Second Amendment always required
481
00:18:45.810 --> 00:18:47.910
this proof, then I would say that the case law,
482
00:18:47.910 --> 00:18:51.090
the Commonwealth cites is still applicable
483
00:18:51.090 --> 00:18:53.520
because we still have a situation
484
00:18:53.520 --> 00:18:57.780
where the case was tried under an erroneous view of the law,
485
00:18:57.780 --> 00:19:00.210
and the jury instructions that were given
486
00:19:00.210 --> 00:19:03.420
to the jury did not accurately reflect
487
00:19:03.420 --> 00:19:04.650
what needed to be proved so--
488
00:19:04.650 --> 00:19:06.720
And the government didn't prove its case.
489
00:19:06.720 --> 00:19:09.483
So, why doesn't that require acquittal?
490
00:19:10.920 --> 00:19:11.753
Well, again,
491
00:19:12.810 --> 00:19:16.590
if the court wants to accept that this goes back to,
492
00:19:16.590 --> 00:19:18.510
if this court wants to invalidate
493
00:19:18.510 --> 00:19:20.550
tens of thousands of firearms convictions
494
00:19:20.550 --> 00:19:22.560
dating back to Jones,
495
00:19:22.560 --> 00:19:23.883
I guess earlier,
496
00:19:25.530 --> 00:19:27.570
then I suppose that's what this court will have to do.
497
00:19:27.570 --> 00:19:29.670
But I think this court already decided
498
00:19:29.670 --> 00:19:31.740
that Bruen announced a new rule
499
00:19:31.740 --> 00:19:34.020
and I think that the vast majority,
500
00:19:34.020 --> 00:19:36.030
not I think, the Commonwealth's position is
501
00:19:36.030 --> 00:19:38.730
the vast majority of federal case law.
502
00:19:38.730 --> 00:19:39.563
And again,
503
00:19:39.563 --> 00:19:41.310
I'm submitting a 16L letter to the court today
504
00:19:41.310 --> 00:19:43.380
because the Commonwealth found a case
505
00:19:43.380 --> 00:19:45.150
from the 6th Circuit that also reaches
506
00:19:45.150 --> 00:19:47.010
a similar conclusion,
507
00:19:47.010 --> 00:19:52.010
United States versus Houston 792F.3d 663.
508
00:19:52.110 --> 00:19:55.260
So nine of the 12 Federal Circuits essentially agree with
509
00:19:55.260 --> 00:19:57.210
the Commonwealth's position that in this situation
510
00:19:57.210 --> 00:20:02.190
where a trial occurred and based on either
511
00:20:02.190 --> 00:20:05.790
the fact that the law did not require something
512
00:20:05.790 --> 00:20:09.660
or all parties involved in the trial understood
513
00:20:09.660 --> 00:20:11.220
that the law did not require something
514
00:20:11.220 --> 00:20:14.280
such that the jury were not instructed on that point.
515
00:20:14.280 --> 00:20:17.100
9 of 12 Circuits agree
516
00:20:17.100 --> 00:20:19.590
that in that circumstance the appropriate remedy is
517
00:20:19.590 --> 00:20:22.020
a remand for a new trial and that it doesn't make sense
518
00:20:22.020 --> 00:20:24.150
to apply double jeopardy principles.
519
00:20:24.150 --> 00:20:25.290
Do we have cert requests?
520
00:20:25.290 --> 00:20:28.090
Because this is ultimately not gonna be our call, right?
521
00:20:29.280 --> 00:20:33.210
'Cause if we got a Federal Circuit split.
522
00:20:33.210 --> 00:20:35.194
You say nine to three at this point.
523
00:20:35.194 --> 00:20:37.230
I don't mean to suggest it's a Circuit split.
524
00:20:37.230 --> 00:20:39.360
I don't believe the other three Circuits have commented
525
00:20:39.360 --> 00:20:40.350
on it one way or the other
526
00:20:40.350 --> 00:20:41.700
based on the Commonwealth's research.
527
00:20:41.700 --> 00:20:44.340
I have not found a single Federal Circuit
528
00:20:44.340 --> 00:20:45.630
that has affirmatively said that
529
00:20:45.630 --> 00:20:47.340
in this kind of circumstance,
530
00:20:47.340 --> 00:20:48.930
double jeopardy principles should apply.
531
00:20:48.930 --> 00:20:51.630
All the federal case law that is quoted Burke,
532
00:20:51.630 --> 00:20:54.240
has emphasized that it's a very narrow exception
533
00:20:54.240 --> 00:20:56.160
to the general principle that the Commonwealth gets
534
00:20:56.160 --> 00:21:00.060
to retry a case where it is overturned on appeal.
535
00:21:00.060 --> 00:21:01.770
And are there any,
536
00:21:01.770 --> 00:21:05.043
I take it there's some assert requests in this or not?
537
00:21:06.630 --> 00:21:10.260
If there are, I was attempting to say before that,
538
00:21:10.260 --> 00:21:13.350
my sister is perfectly, they can take assert.
539
00:21:13.350 --> 00:21:16.050
I'm not aware of it at present in this case.
540
00:21:16.050 --> 00:21:18.060
But certainly that is something that the defendant can do
541
00:21:18.060 --> 00:21:18.893
if he feels.
No, no.
542
00:21:18.893 --> 00:21:20.400
I'm talking about out in these,
543
00:21:20.400 --> 00:21:23.193
I'm focused on the federal case law,
544
00:21:25.662 --> 00:21:27.930
'cause again, we've described Bruen as a new rule.
545
00:21:27.930 --> 00:21:29.580
I get it.
546
00:21:29.580 --> 00:21:30.813
The US Supreme Court,
547
00:21:31.920 --> 00:21:33.990
were they clear or did they leave
548
00:21:33.990 --> 00:21:35.440
that vague in their decision?
549
00:21:37.470 --> 00:21:38.820
I don't believe it's as clear
550
00:21:38.820 --> 00:21:40.713
as my sister is making it out to be.
551
00:21:41.910 --> 00:21:43.726
I don't believe.
552
00:21:43.726 --> 00:21:45.180
I unfortunately would have to submit a 16L letter
553
00:21:45.180 --> 00:21:46.013
to the court.
554
00:21:46.013 --> 00:21:47.910
I don't believe that Your Honors are the only court
555
00:21:47.910 --> 00:21:50.520
that has found that Bruen announced a new rule.
556
00:21:50.520 --> 00:21:52.350
And I'd be happy to submit something to the court.
557
00:21:52.350 --> 00:21:54.660
If it wasn't a new rule, there'd be no clairvoyance.
558
00:21:54.660 --> 00:21:56.190
Right?
559
00:21:56.190 --> 00:21:58.278
I believe that's accurate.
560
00:21:58.278 --> 00:21:59.790
And again,
561
00:21:59.790 --> 00:22:03.840
well, this court has an interesting waiver doctrine as well
562
00:22:03.840 --> 00:22:05.460
that is not necessarily the same.
563
00:22:05.460 --> 00:22:09.420
Yeah, we get to find on waiver whenever we want to.
564
00:22:09.420 --> 00:22:10.350
Correct.
565
00:22:10.350 --> 00:22:12.180
I think that's astutely stated.
566
00:22:12.180 --> 00:22:13.200
(Justices laugh)
567
00:22:13.200 --> 00:22:14.310
But.
568
00:22:14.310 --> 00:22:15.360
You weren't so complimentary
569
00:22:15.360 --> 00:22:18.873
when you asked for reconsideration, but we'll continue.
570
00:22:19.740 --> 00:22:22.410
But again, I don't think the Commonwealth is.
571
00:22:22.410 --> 00:22:23.370
The commonwealth acknowledges
572
00:22:23.370 --> 00:22:25.290
that the clairvoyance exception determines
573
00:22:25.290 --> 00:22:26.190
the standard of review.
574
00:22:26.190 --> 00:22:29.190
I'm not saying it creates a substantive right.
575
00:22:29.190 --> 00:22:32.220
I'm merely pointing out that on the one hand,
576
00:22:32.220 --> 00:22:33.053
the court is saying,
577
00:22:33.053 --> 00:22:35.040
the defendant couldn't have possibly objected
578
00:22:35.040 --> 00:22:36.690
to this because no one could have known, right?
579
00:22:36.690 --> 00:22:39.690
That's exactly what the Reynoso case says in the DC Circuit.
580
00:22:39.690 --> 00:22:42.749
They said, "Neither the trial judge, the defendant himself,
581
00:22:42.749 --> 00:22:45.180
the parties or the jury understood
582
00:22:45.180 --> 00:22:47.580
that this particular element was an element
583
00:22:47.580 --> 00:22:49.770
at the time of trial and therefore,
584
00:22:49.770 --> 00:22:52.530
applying double jeopardy is essentially a non-sequitur."
585
00:22:52.530 --> 00:22:54.843
How do you distinguish Munoz and Beal?
586
00:22:56.280 --> 00:23:00.480
You know, so, as the Commonwealth argued in its brief,
587
00:23:00.480 --> 00:23:02.970
that was not, I think they're both distinguishable,
588
00:23:02.970 --> 00:23:04.050
I'll say at the outset
589
00:23:04.050 --> 00:23:06.780
because they did not involve situations
590
00:23:06.780 --> 00:23:09.090
where there was clearly defined precedent of
591
00:23:09.090 --> 00:23:12.360
the Commonwealth that dictated what the right outcome was.
592
00:23:12.360 --> 00:23:16.500
So in Munoz, all this court did in Munoz's was
593
00:23:16.500 --> 00:23:21.500
essentially declined to extend 278, section 7,
594
00:23:21.810 --> 00:23:23.730
to the crime of unlicensed operation.
595
00:23:23.730 --> 00:23:25.715
There was no prior precedent.
596
00:23:25.715 --> 00:23:27.630
As there was here with Jones
597
00:23:27.630 --> 00:23:29.257
and all these other cases that said,
598
00:23:29.257 --> 00:23:30.090
"Commonwealth,
599
00:23:30.090 --> 00:23:32.430
you do not have to prove that someone is unlicensed
600
00:23:32.430 --> 00:23:34.133
to find them guilty of unlicensed operation."
601
00:23:34.133 --> 00:23:35.550
It was just a jury instruction.
602
00:23:35.550 --> 00:23:38.520
It was just an erroneous district court jury instruction.
603
00:23:38.520 --> 00:23:40.770
So there was no binding precedent from this court
604
00:23:40.770 --> 00:23:42.937
or the appeals court telling the Commonwealth,
605
00:23:42.937 --> 00:23:45.600
"Don't worry about this, just prove the other elements.
606
00:23:45.600 --> 00:23:46.440
You're good to go."
607
00:23:46.440 --> 00:23:47.850
All right, what about Beal?
608
00:23:47.850 --> 00:23:50.610
Beal actually, you know, I wish I had flushed
609
00:23:50.610 --> 00:23:53.460
this out more in my brief, but seeing how much
610
00:23:53.460 --> 00:23:54.480
the defendant focused on it,
611
00:23:54.480 --> 00:23:56.610
the Commonwealth dug in a little deeper,
612
00:23:56.610 --> 00:23:57.960
if there's a variety of reasons
613
00:23:57.960 --> 00:23:59.100
that Beal is distinguishable.
614
00:23:59.100 --> 00:24:03.540
So, first, again, the law was not settled.
615
00:24:03.540 --> 00:24:04.740
Based on the Commonwealth research,
616
00:24:04.740 --> 00:24:06.480
there was no prior decision of this court
617
00:24:06.480 --> 00:24:08.580
or the appeals court that had affirmatively,
618
00:24:08.580 --> 00:24:10.620
explicitly stated that assault
619
00:24:10.620 --> 00:24:13.860
and battery is a categorically violent crime
620
00:24:13.860 --> 00:24:16.680
under either the force clause or the residual clause.
621
00:24:16.680 --> 00:24:19.050
Both Colon and Eberhart post-dated
622
00:24:19.050 --> 00:24:21.390
the defendant's conviction in Beal.
623
00:24:21.390 --> 00:24:24.540
In fact, if you look back in Commonwealth versus Burke
624
00:24:24.540 --> 00:24:27.090
in 1983, 390 Mass. 480,
625
00:24:27.090 --> 00:24:30.390
and then First Circuit precedent,
626
00:24:30.390 --> 00:24:34.410
United States v Harris 964 F.2d 1234 and 92,
627
00:24:34.410 --> 00:24:36.390
that's a decision by Justice Breyer.
628
00:24:36.390 --> 00:24:39.240
And two months prior to the defendant's conviction in Beal,
629
00:24:39.240 --> 00:24:40.290
I don't know why I'm pointing that way,
630
00:24:40.290 --> 00:24:42.480
but in the defendant's conviction in Beal,
631
00:24:42.480 --> 00:24:47.480
in US v Holloway 630 F.3d 252, which was in January of 2011,
632
00:24:48.030 --> 00:24:50.190
Massachusetts and the First Circuit recognize
633
00:24:50.190 --> 00:24:51.450
that A and B is a crime,
634
00:24:51.450 --> 00:24:53.250
Massachusetts A and B is a crime
635
00:24:53.250 --> 00:24:56.580
that can be proved in violent and non-violent ways.
636
00:24:56.580 --> 00:24:58.860
And arguably, if you read the Holloway case,
637
00:24:58.860 --> 00:25:00.676
they make clear that a certified conviction of
638
00:25:00.676 --> 00:25:03.330
A and B would be insufficient
639
00:25:03.330 --> 00:25:05.730
under the Federal Armed Career Criminal Act.
640
00:25:05.730 --> 00:25:08.340
Which as this court recognizes, is essentially identical
641
00:25:08.340 --> 00:25:10.500
to the Massachusetts version of that statute.
642
00:25:10.500 --> 00:25:13.050
I would also note that in Beal at trial,
643
00:25:13.050 --> 00:25:14.700
at the subsequent offender trial,
644
00:25:14.700 --> 00:25:16.920
defense counsel objected
645
00:25:16.920 --> 00:25:18.720
to the way the Commonwealth was trying to prove
646
00:25:18.720 --> 00:25:22.320
their case and he cited a 2010 decision
647
00:25:22.320 --> 00:25:24.090
of the United States Supreme Court
648
00:25:24.090 --> 00:25:26.130
Johnson versus United States,
649
00:25:26.130 --> 00:25:29.220
in which they had interpreted a similar Florida assault
650
00:25:29.220 --> 00:25:32.460
and battery law that had both harmful and offensive ways
651
00:25:32.460 --> 00:25:36.150
and determined that that did not categorically qualify
652
00:25:36.150 --> 00:25:39.510
under the Federal ACCA under the force clause.
653
00:25:39.510 --> 00:25:40.630
So there was a variety.
654
00:25:40.630 --> 00:25:43.410
So, there was no binding Massachusetts precedent
655
00:25:43.410 --> 00:25:46.920
that said what the Commonwealth did in Beal was okay.
656
00:25:46.920 --> 00:25:49.800
There was First Circuit in Massachusetts precedent
657
00:25:49.800 --> 00:25:51.840
that made clear that assault and battery could be proved
658
00:25:51.840 --> 00:25:54.360
in a violent way and in a nonviolent way.
659
00:25:54.360 --> 00:25:56.730
And there was a Supreme Court case
660
00:25:56.730 --> 00:25:58.410
that was decided more than a year
661
00:25:58.410 --> 00:26:01.260
before the subsequent offender portion of Beal's trial
662
00:26:01.260 --> 00:26:03.870
that found a similar statute in a different state
663
00:26:03.870 --> 00:26:06.900
to not qualify under the Federal ACCA,
664
00:26:06.900 --> 00:26:09.540
which again has been determined to substantially mirror
665
00:26:09.540 --> 00:26:10.830
the Mass ACCA.
666
00:26:10.830 --> 00:26:14.010
So, I would say Beal wasn't remotely the same.
667
00:26:14.010 --> 00:26:15.600
I would also just note that having reviewed
668
00:26:15.600 --> 00:26:17.520
the party's briefs in Beal,
669
00:26:17.520 --> 00:26:18.900
the only case that was cited by
670
00:26:18.900 --> 00:26:21.240
either party was DiBenedetto.
671
00:26:21.240 --> 00:26:22.770
None of the Federal Circuit case law,
672
00:26:22.770 --> 00:26:24.300
much of which existed at the time
673
00:26:24.300 --> 00:26:27.240
that the Commonwealth cites here was briefed by the courts,
674
00:26:27.240 --> 00:26:28.410
was considered by the court.
675
00:26:28.410 --> 00:26:30.990
So while I acknowledge that the court did undertake
676
00:26:30.990 --> 00:26:33.390
a sufficiency of the evidence analysis in that case,
677
00:26:33.390 --> 00:26:35.340
there really wasn't any sort of
678
00:26:35.340 --> 00:26:38.670
drawn out conversation about should that be happening
679
00:26:38.670 --> 00:26:39.720
in the first place.
680
00:26:39.720 --> 00:26:42.870
And I think, again, if you look at the case law here,
681
00:26:42.870 --> 00:26:44.040
the vast, again,
682
00:26:44.040 --> 00:26:45.270
I'm citing the federal case law
683
00:26:45.270 --> 00:26:48.960
because Massachusetts hasn't always reached every question,
684
00:26:48.960 --> 00:26:52.440
but the only reason I can't say it's uniform is
685
00:26:52.440 --> 00:26:54.810
because I can't find certain Circuits that have weighed it
686
00:26:54.810 --> 00:26:55.830
one way or the other.
687
00:26:55.830 --> 00:26:58.140
But most of the case law that the Commonwealth found is--
688
00:26:58.140 --> 00:27:00.540
What about the cases in council's reply brief.
689
00:27:01.631 --> 00:27:03.180
I'm happy to go through
690
00:27:03.180 --> 00:27:06.120
and distinguish every case she has cited.
691
00:27:06.120 --> 00:27:09.330
I would note that with respect to the Smith case,
692
00:27:09.330 --> 00:27:10.890
that appears to be,
693
00:27:10.890 --> 00:27:13.110
now obviously Circuit courts have more than three judges
694
00:27:13.110 --> 00:27:14.520
and they don't always sit on done,
695
00:27:14.520 --> 00:27:19.020
and so there may be differing interpretations of their law.
696
00:27:19.020 --> 00:27:22.100
The Commonwealth found a case that postdates the Smith case
697
00:27:22.100 --> 00:27:23.400
in the 10th Circuit
698
00:27:23.400 --> 00:27:27.630
from 2019 United States versus Arciniega-Zetin,
699
00:27:27.630 --> 00:27:30.513
755 Federal Appendix 835.
700
00:27:31.380 --> 00:27:35.250
And in that case, in describing what was said in Wacker,
701
00:27:35.250 --> 00:27:37.687
the 10th Circuit said as follows,
702
00:27:37.687 --> 00:27:40.050
"We must order the dismissal of any charge
703
00:27:40.050 --> 00:27:42.540
that the government failed to prove by sufficient evidence."
704
00:27:42.540 --> 00:27:43.837
And here's the important part.
705
00:27:43.837 --> 00:27:47.280
"Under the law enforced during his trial.
706
00:27:47.280 --> 00:27:49.650
But if the government's proof sufficed
707
00:27:49.650 --> 00:27:51.450
under the now outdated law,
708
00:27:51.450 --> 00:27:54.090
then showing that this proof would not suffice
709
00:27:54.090 --> 00:27:56.880
under the Supervening law won't win the defendant
710
00:27:56.880 --> 00:27:57.713
a dismissal."
711
00:27:57.713 --> 00:27:59.520
So that's the 10th Circuit.
712
00:27:59.520 --> 00:28:01.140
More than a decade after Smith,
713
00:28:01.140 --> 00:28:03.690
reiterating what they said in Wacker,
714
00:28:03.690 --> 00:28:07.650
that if you engage in a sufficiency analysis at all,
715
00:28:07.650 --> 00:28:10.410
you have to do it under the law as it was
716
00:28:10.410 --> 00:28:11.460
at the time of trial.
717
00:28:11.460 --> 00:28:14.310
You can't do it on the law that now exists
718
00:28:14.310 --> 00:28:16.860
that didn't exist at the time of trial.
719
00:28:16.860 --> 00:28:18.960
With respect, I do want to talk about Ellison
720
00:28:18.960 --> 00:28:20.430
'cause I think it's important.
721
00:28:20.430 --> 00:28:23.070
I think, with all due respect to my sister,
722
00:28:23.070 --> 00:28:28.070
she isolating and mistakenly quotes that case.
723
00:28:28.290 --> 00:28:33.067
The full quote from that case is as follows,
724
00:28:33.067 --> 00:28:35.940
"The basis for setting aside Ellison's conviction is not
725
00:28:35.940 --> 00:28:37.680
an insufficiency of the evidence.
726
00:28:37.680 --> 00:28:40.060
Rather, we must set aside the verdict
727
00:28:42.647 --> 00:28:45.090
because of the un-erroneous jury instruction."
728
00:28:45.090 --> 00:28:46.117
And here's the important part,
729
00:28:46.117 --> 00:28:49.530
"Under Circuit law at the time of trial,
730
00:28:49.530 --> 00:28:51.870
the government presented more than sufficient evidence
731
00:28:51.870 --> 00:28:54.630
to support a guilty verdict against Ellison,
732
00:28:54.630 --> 00:28:56.370
prior to Free Speech Coalition,
733
00:28:56.370 --> 00:28:58.440
the United States Supreme Court that changed the law.
734
00:28:58.440 --> 00:29:01.350
It was unnecessary for the government to offer evidence
735
00:29:01.350 --> 00:29:03.540
that a minor depicted in a given image was
736
00:29:03.540 --> 00:29:06.690
an actual child and not a computer generated image."
737
00:29:06.690 --> 00:29:08.910
So they're saying it's not a sufficiency case
738
00:29:08.910 --> 00:29:11.340
because the government's evidence was sufficient
739
00:29:11.340 --> 00:29:12.750
at the time of trial.
740
00:29:12.750 --> 00:29:15.330
That's why it's not an insufficiency case.
741
00:29:15.330 --> 00:29:20.330
Only Free Speech Coalition created that insufficiency.
742
00:29:20.520 --> 00:29:22.320
And I think that case is doubly important
743
00:29:22.320 --> 00:29:24.540
because my sister tries in her initial brief,
744
00:29:24.540 --> 00:29:26.610
tries to draw this non-existent distinction
745
00:29:26.610 --> 00:29:29.730
between statutory changes and constitutional changes.
746
00:29:29.730 --> 00:29:31.620
But you can't get much more constitutional
747
00:29:31.620 --> 00:29:32.700
than the First Amendment.
748
00:29:32.700 --> 00:29:34.740
And Ellison said exactly that,
749
00:29:34.740 --> 00:29:36.420
that where you have a change that's dictated
750
00:29:36.420 --> 00:29:38.010
by the Constitution,
751
00:29:38.010 --> 00:29:40.140
we're not gonna say that that was insufficient
752
00:29:40.140 --> 00:29:41.310
where you have to prove something
753
00:29:41.310 --> 00:29:42.910
you didn't have to prove before.
754
00:29:43.770 --> 00:29:46.170
Is there a difference in the analysis
755
00:29:46.170 --> 00:29:49.620
under our common law double jeopardy,
756
00:29:49.620 --> 00:29:54.510
which may not be co-extensive with the federal?
757
00:29:54.510 --> 00:29:55.920
I will certainly acknowledge
758
00:29:55.920 --> 00:29:59.580
that Massachusetts can grant more rights to a defendant.
759
00:29:59.580 --> 00:30:03.450
I don't believe that Munoz and Beal represent
760
00:30:03.450 --> 00:30:04.410
that kind of a difference.
761
00:30:04.410 --> 00:30:06.960
I just think they're, A, distinguishable
762
00:30:06.960 --> 00:30:10.050
and B, I don't believe this court
763
00:30:10.050 --> 00:30:13.890
or the appeals court has ever really drilled down
764
00:30:13.890 --> 00:30:18.330
to this degree as to when double jeopardy should apply.
765
00:30:18.330 --> 00:30:21.550
So I guess the answer is no, I don't think
766
00:30:23.010 --> 00:30:24.780
that the state constitution
767
00:30:24.780 --> 00:30:27.825
or this court's jurisprudence grants more rights
768
00:30:27.825 --> 00:30:30.360
under double jeopardy principles.
769
00:30:30.360 --> 00:30:32.127
Either way, it's an open question.
770
00:30:32.127 --> 00:30:33.090
Correct.
771
00:30:33.090 --> 00:30:36.093
The Commonwealth believes that it is an open question.
772
00:30:37.200 --> 00:30:38.670
So again,
773
00:30:38.670 --> 00:30:41.400
I just wanna reemphasize what some of these courts said.
774
00:30:41.400 --> 00:30:43.890
I think the 8th Circuit said it really well
775
00:30:43.890 --> 00:30:45.990
when they note that the Commonwealth is not being given
776
00:30:45.990 --> 00:30:47.460
a second bite at the apple,
777
00:30:47.460 --> 00:30:50.160
they're merely being given a first opportunity
778
00:30:50.160 --> 00:30:53.040
to prove what they did not need to prove before.
779
00:30:53.040 --> 00:30:56.130
With respect to the ramifications of this,
780
00:30:56.130 --> 00:30:59.400
if you were to prevail the defendant
781
00:30:59.400 --> 00:31:01.680
under double jeopardy couldn't be sentenced again.
782
00:31:01.680 --> 00:31:02.513
Correct?
783
00:31:03.660 --> 00:31:05.550
I don't believe he could be sentenced
784
00:31:05.550 --> 00:31:08.032
to anything more severe.
785
00:31:08.032 --> 00:31:11.010
He's already served his time for this.
786
00:31:11.010 --> 00:31:11.906
So that's a--
787
00:31:11.906 --> 00:31:12.739
He served his committed sentence.
788
00:31:12.739 --> 00:31:14.820
Right, so that's a double jeopardy,
789
00:31:14.820 --> 00:31:16.140
that's another double jeopardy issue.
790
00:31:16.140 --> 00:31:17.400
Correct, he could not.
791
00:31:17.400 --> 00:31:19.500
Isn't it just in finality to serve in a sentence,
792
00:31:19.500 --> 00:31:20.520
he served the sentence.
793
00:31:20.520 --> 00:31:21.353
Correct.
794
00:31:21.353 --> 00:31:23.730
The only remaining portion of his sentence is
795
00:31:23.730 --> 00:31:28.730
a period of probation that the Commonwealth agreed to stay.
796
00:31:29.250 --> 00:31:30.810
As it seems like at a minimum,
797
00:31:30.810 --> 00:31:32.310
this defendant would be entitled to,
798
00:31:32.310 --> 00:31:36.720
is going to receive a new trial on the non
799
00:31:36.720 --> 00:31:39.960
or on the 10a charge in this case
800
00:31:39.960 --> 00:31:41.280
and the other associated charges
801
00:31:41.280 --> 00:31:42.630
that were affected by Bruen.
802
00:31:42.630 --> 00:31:45.753
So, but again, for the Commonwealth's purposes,
803
00:31:47.700 --> 00:31:49.920
we're not looking to make the defendants serve more time
804
00:31:49.920 --> 00:31:50.910
if he served his time,
805
00:31:50.910 --> 00:31:53.040
but whether or not he's convicted is relevant
806
00:31:53.040 --> 00:31:56.700
to the repercussions if there are future offenses
807
00:31:56.700 --> 00:31:58.890
as it is in many other cases
808
00:31:58.890 --> 00:32:01.020
where we're talking about subsequent offenders
809
00:32:01.020 --> 00:32:02.364
and armed career criminals.
810
00:32:02.364 --> 00:32:06.360
So if all of these convictions that are affected
811
00:32:06.360 --> 00:32:10.770
by Guardado are just deemed to be acquittals,
812
00:32:10.770 --> 00:32:14.490
that is gonna throw a wrench in many circumstances
813
00:32:14.490 --> 00:32:17.640
or in many cases where these convictions served
814
00:32:17.640 --> 00:32:20.490
as predicates for other enhancements.
815
00:32:20.490 --> 00:32:21.930
And I don't think that's appropriate.
816
00:32:21.930 --> 00:32:24.959
Where the government didn't know at the time of these trials
817
00:32:24.959 --> 00:32:27.120
and where this court had been telling the government
818
00:32:27.120 --> 00:32:29.220
for 45 years dating back to Jones,
819
00:32:29.220 --> 00:32:32.070
and I think it was '76 or thereabouts,
820
00:32:32.070 --> 00:32:34.860
and reaffirmed it post-Heller and post-McDonald
821
00:32:34.860 --> 00:32:38.490
in Gouse and Harris that we did not have to prove this,
822
00:32:38.490 --> 00:32:40.170
that this was an affirmative defense
823
00:32:40.170 --> 00:32:42.510
that had to first be raised by the defendant.
824
00:32:42.510 --> 00:32:43.830
And so for all those reasons,
825
00:32:43.830 --> 00:32:46.530
the Commonwealth would ask that this court conclude
826
00:32:46.530 --> 00:32:49.230
that the appropriate remedy here is a new trial
827
00:32:49.230 --> 00:32:51.513
and not acquittal for the affected cases.