-: SJC-13447,
Commonwealth versus Epshod Jeune.
-: Attorney Rappaport, welcome back.
-: Thank you very much.
It's nice to be back.
If it please the court,
Steven Rappaport on behalf of Epshod Jeune.
The focus of this argument today is going to be
on the prejudicial impact of the erroneous admission
of the O'Brien testimony.
-: Can I ask one...
Before you get too far, Fisher has been decided.
-: [Attorney Rappaport] Yes, I know.
-: These issues seem to be almost exactly the same as Fisher.
So when you distinguish the argument here
from what we've already decided,
that would be helpful, at least for me.
Because we tend not to change our minds
within a couple of months, right?
-: And I understand that, Your Honor.
I had the advantage, of course,
of watching the Fisher argument numerous times.
And I think I know...
-: But you also have the advantage
of reading the Fisher decision.
-: Oh, absolutely.
And I'm gonna comment quite a bit on that.
Justice Kafker: Go ahead.
-: If I may.
-: I don't mean to cut you off.
-: It's such an interesting question.
-: How is this case different than the Fisher case?
In this Passover Easter season,
I'm about to sit down at a Seder,
and somebody's gonna ask that question.
(speaking in foreign language)
Why is this night different than all other nights?
Well, I was actually thinking of that as,
how am I gonna deal with this case?
'Cause this is not an easy situation for me to be in,
arguing on behalf of Mr. Jeune at this time.
But I do believe I have certain advantages.
For instance, a major part of Fisher's argument
had to do with whether or not it was erroneously admitted,
whether this evidence was erroneously admitted.
And there was quite a bit of back and forth as to,
well, the prejudicial impact versus the probative value.
I would submit, I don't know whether this court
found the admission of the evidence erroneous
because the prejudicial effect
outweighed the probative value
or because there was absolutely no probative value
in that evidence.
-: The evidence being O'Brien's narrative versus the video
-: Exactly.
The video is clearly valid evidence in the case.
-: I don't know if we did a 403 analysis.
-: Well, Justice Georges was questioning counsel.
-: Well, I would go by the written opinion.
Because I think what the opinion says is that
it was erroneous for O'Brien to narrate period,
not whether we should do a 403.
-: Well, it wasn't the narrative.
For him to make the identification,
to say, "Those are the guys."
It's perfectly all right for him to say, for instance,
"Look at the clothing here and look at the clothing here."
-: So assuming that we think it was erroneous,
that there was no balancing as you're suggesting,
what makes this case different,
which I think is where you started,
which is why the prejudicial effect?
-: There are two major differences.
One is the nature of the defense.
And the second thing
is the most important video in this case,
the Burlington video where the homicide occurs.
It absolutely,
with regard to the second individual alleged to be Jeune,
it was hopelessly obscure.
There was just no way of making an identification
of that individual from that video.
And frankly, look at what happened at Burger King.
This was the first time
that there's this actual face-to-face meeting
with the individuals.
The first thing that O'Brien does
when he has Fisher get out of the car is he pat frisks him.
Why does he pat frisk him?
He pat frisks him because he recognizes him.
This is what he says.
"I recognized him from the video
"as this fellow who was walking into the hotel."
"Did you pat frisk Jeune?"
"No."
-: But wouldn't whether he's obscured or not
go more towards whether or not he can give an opinion.
We already acknowledged...
I think everybody agrees,
and hopefully the Commonwealth does too,
that that shouldn't have happened.
And all our case law and the appeals court case law
on whether or not it's an obscured versus a clear video
goes into whether or not someone can do it.
And here, it's clear, couldn't do it.
-: So now we say he can't.
I think you were the first justice to raise the issue
of the limiting instruction in this case
and saying, "Well, in Wardsworth,
"we didn't have a limiting instruction,
"but in this case we do."
And frankly, that's not true.
There was no limiting instruction in this case.
-: Didn't Judge Henry say,
"Hey, that's your call," to the jury essentially?
No, that's not what he said.
That's part of what Justice Henry said.
And certainly in the opinion in Fisher,
this court said that the most impactful factor
in determining that the admission of the testimony
was not prejudicial was this limiting instruction.
But let's look at the limiting instruction.
First of all, the timing of the instruction.
O'Brien testified over three days, extensive testimony.
On day six of the trial,
he was talking just about the Keurig video.
He wasn't talking about identifying
either of the individuals.
But on day seven, long, long direct examination
with numerous references to these being the guys.
Day eight, once again, long direct examination
as to these being the guys.
-: That's 'cause there's a lot of evidence
that these are the guys,
and particularly about your client.
-: My client was involved in this joint venture.
-: Let's keep on track so we can get to that.
-: Okay, okay.
Justice Gaziano: So what was the fault
of the limiting instruction?
-: This is what he says.
Well, first of all, it's the timing.
It's one thing to say to the jury right now,
"Ignore the elephant that walked into the room just now."
It's another thing to let the elephant sit in the room
for three days and then say,
"Oh by the way, ignore that elephant that came through."
And that did pretty much happen in this case.
-: So it was too late.
-: Certainly too late, I would submit.
But the first instruction given to the jury was as follows,
"O'Brien's testimony was offered
"for whatever assistance it may provide you
"in making your determinations.
"You may consider O'Brien's testimony
"regarding the identity of those persons in the video
"and give it whatever weight
"that you deem it fairly is entitled to."
This was the first instruction.
There's no limitation on the use of the evidence there.
Justice Gaziano: What's the last thing he says though?
-: Well, you have to make your own determination.
And in fact, I think in the Fisher opinion,
that was underlined.
And it's part of the record, I believe,
the jury instructions in this case.
Nothing's underlined.
How would a reasonable juror take this instruction
given by Judge Henry?
He's telling them, "You don't have to use it.
"You still have to make your own decision,
"but you can use this in any way that it may help you."
If you take a look at what instruction
is given at every single superior court criminal case
and was given in this,
the general instructions to the jury are,
"You are the sole and exclusive judges of the facts.
"You alone determine what evidence to accept,
"how important any evidence is that you accept,
"and what conclusions you draw from the evidence."
That's given as boilerplate to every jury.
And that's what this instruction said.
-: But Judge Henry does.
First, he says, "You are not bound to accept that testimony.
"Indeed, you must make your own determination
"as to what you see-"
-: [Attorney Rappaport] As you have to do with any evidence.
-: And then in the concluding instruction, he goes,
"If you conclude that he intended to tell the truth,
"you must also consider the possibility
"that he made a good faith error in identification."
You know, and we got the honest mistake here.
-: Well, don't we have to do that
with considering the credibility of any witness?
The witness may be lying,
but then again, the witness may have made a mistake.
These are general instructions given to a jury.
This did not limit in any way.
In fact, Judge, there's three times,
three times in addition to the first time
at the end of direct examination of O'Brien.
There are three more times that the judge says to the jury,
and these are his words,
"You must give the identification testimony
"of Trooper O'Brien whatever weight
"you deem it's fairly entitled to receive.
"You heard the testimony of Trooper O'Brien
"who identified persons-"
-: Can I shift you just a little bit?
'Cause there's just so much evidence
and our opinion makes this point
that your guy is there and- -: Where's there?
-: He's in all three places.
-: What's the scene of the crime?
Is the scene of the crime the hotels,
or is the scene of the crime the room?
I mean seriously, Your Honor, which is it?
According to Fisher, the scene of the crime is the hotels.
"I wasn't there.
"I had nothing to do with this."
And the evidence was overwhelming that he was as well
involved in this scheme.
-: So does that dovetail?
And one of the first things you said on prejudice
was the nature of the defense?
-: [Attorney Rappaport] Absolutely.
-: Then you went into obscured video
and then the limiting instruction.
So get back to nature of the defense,
how the nature of the defense distinguishes from Fisher.
-: Well, Fisher's defense was,
"I wasn't involved in this in any way."
That's what his defense was.
"I'm not the guy that appears in any of those videos."
-: Right, and so how does your client's defense differ?
-: "I wasn't in the rooms."
First, let's start with Gattuso.
-: Your defendant defined the scene of the crime as the room.
And he was maybe at the hotel, but not in the room.
-: Absolutely.
In his opening, and certainly in his closing,
defense counsel says, "Look, a reasonable verdict
"in this case would be
"guilty as to robbery of Gattuso, because he's involved,
"and guilty of the homicide-"
-: He has her credit cards, right?
-: Everything.
Judge, this was, if I tell you overwhelming...
I try cases.
If it wasn't for Commonwealth versus Brown,
this would've been a long guilty plea.
I mean, seriously, if not for Commonwealth versus Brown.
At least, defense counsel recognized,
"Wait a minute, Brown may be a game changer
"depending upon a person's role in the offense."
Might a jury say that the getaway driver
or the lookout is just as guilty as the person in the room?
Certainly, but they also might say,
"Well, wait a minute,
"knowledge and intent really matters here.
"Somebody's out in the getaway car,
"somebody's down the hall as a lookout,
"that's very different." -: I'm confused.
-: Meaning that you're suggesting there were three people
involved in this rather than two?
-: Maybe as many as four.
Three, we know there's at least three people.
That's a given, and the Commonwealth concedes-
-: The only reason we know there's three people
or you can make an argument that there's three people
is when they get to the car,
there are three or four people in it.
-: No, no, no, no, no.
Your Honor, if I may. -: Go ahead.
-: The videos show that as two individuals leave the car,
the two individuals who are alleged to be Fisher and Jeune
leave the car and walk into the hotel,
the car is moving around outside.
And O'Brien admits it.
He actually says that.
Well, obviously, there's at least a third person
involved in this.
And I submit to the court, there's at least a third person.
We don't know if there's a fourth.
Is there a getaway driver and a lookout?
I mean, the nature of these crimes,
one would think that you would wanna have a lookout.
These hotels look very very busy: people coming in and out.
It wasn't that late at night.
It is a time when people would be coming in and out.
I mean, the point is, yes, he was involved from day one.
In his opening, I think defense counsel said something like,
"Well, if you don't think the police
"planted all this evidence,
"you're gonna come back with this as your result."
But what happened here doesn't say anything
about what happened in Johnson's room.
Johnson's room is the crime scene.
If my client is driving his car that night,
especially at the Burlington Hotel
where he's well known by everybody who works there,
was the local marijuana dealer at the hotel
and everybody staying at the hotel
who smoked marijuana knew him,
why would he be the guy that goes into the hotel?
-: Well, isn't he the guy
who comes in through the side entrance,
not in the front entrance, or might-
-: He's supposedly number two.
He's supposedly the fellow that comes in the side entrance.
You cannot make out a face.
All you can see is a dark hoodie,
a cap, dark pants, and dark shoes.
The gait of the individual was a major factor
that O'Brien used to try to compare.
Well, look at this guy in Saugus.
Look at this guy in Woburn.
And look at this video of the defendant at work in Waltham.
You can't do that with the Burlington video
because it doesn't show the gentleman's gait in any way.
All you have is this person coming in
in a black hoodie, dark clothing.
You can't tell anything about the way the person walks
from that particular video.
So the main difference between this and Fisher
is the nature of the defense.
Yes, it's a joint venture.
Yes, my client's involved in a joint venture.
But he wasn't in the room.
First, we start with Gattuso.
Gattuso describes an individual, as the second individual,
very different than Jeune.
First of all, clothing.
The Commonwealth's alleging that the person
that went into the room was wearing a black hoodie.
Gattusa says, "No, it's a gray hoodie."
She's off by at least five inches with regard to the height.
Facial hair.
We know that Jeune at the time has facial hair.
This woman is talking about the man's complexion,
but he didn't have any facial hair.
Tattoos.
We know Jeune is heavily tattooed on his hands.
She says, "I didn't see any tattoos on his hands."
"Well, he was probably wearing gloves,"
as one of the people in one of the videos
is shown to be wearing a glove.
Nope, he wasn't wearing gloves.
The argument was, "Wait a minute,
"that's not Jeune in the room."
Not that Jeune's not involved,
not that Jeune doesn't show up on one of the videos.
At that particular hotel, at the Woburn Hotel,
he's identifiable in one of the videos.
But he's not the man in the room according to Gattuso.
Well, what does the Commonwealth say about that?
I know that one of the factors that the court looks at
in situations like this is prejudice.
What did the DA say in her closing?
Well, "Michelle Gattuso has her memory in her mind's eye.
"The police have the video."
Later on, "The police took the time to examine the videos."
I know that one of the issues in Wardsworth was,
well, there's four guys.
Judge Kafker, you actually picked up on that:
four witnesses in Wardsworth versus one.
Well, not according to this closing.
She didn't say, "Well, O'Brien had the video."
"The police have the video."
She's implying that there are more than one person
who could provide this information.
Nobody else testified about any videos in this case.
I submit that, that kind of takes it out of,
there's just one person giving the testimony.
-: Can I ask about the baseball hat?
Was there something distinguishing about the baseball hat?
-: In the Burlington video, you can't see the baseball cap.
You can just see the brim.
You really don't see anything.
There may be a sticker, but you really can't tell.
In the Woburn video,
which basically O'Brien identifies him
from the Woburn video and then says
it's the same guy there.
But you can make an identification of him from that video.
And he's wearing a very distinctive shirt.
He's wearing a very distinctive cap.
That cap, I don't believe was ever recovered.
They do recover an A's cap.
He supposedly had like a Oakland A's baseball cap,
but it was a different color.
The cap that they recover from Jeune's house
was a different color than the hat in the video, number one.
But there were photos of Jeune wearing the T-shirt.
There's no question that Jeune is depicted
in that Woburn video.
There's a substantial question as to whether or not
he's depicted in the Burlington video.
And quite frankly, Jeune concedes
that he's involved in the armed robbery of Gattuso.
I'm not asking that the court reverse that conviction.
I am asking the court to reverse the murder conviction
because the evidence is very, very different
as to Burlington.
I do wanna say a few things, if I may, before I finish.
First of all, O'Brien's testimony wasn't cumulative.
He was the only person who identified Jeune
as being the person in those videos.
It wasn't collateral.
Because as I say, Jeune had conceded early on,
"Yes, I'm involved in this particular crime."
But it goes to his identification of him
as being the man going into the room.
So it's not collateral.
The imprimatur of the super witness, if you will,
I think it's particularly bad in this case.
First of all, we know that O'Brien is, if not the lead,
one of the lead investigators in the case.
I think what sets him off
from other police officers, though, is the fact
that he was excluded from the sequestration order.
And he's in and out, and he admits that he's in and out
of the courtroom throughout this entire long trial.
He may be viewed much more
as a member of the prosecution team
than as just a mere police officer.
And I submit that that also gives him enhanced credibility,
including how many times he says he's watched it.
I already mentioned the closing argument
where I believe, once again,
it almost takes it out of the one witness situation
and says, "Well, there are many witnesses
"who could tell you this."
And, finally, I have to come back
to the limiting instruction.
You know, there was evidence in this case
about the Saugus attempt with one of the sex workers
and the defense had objected.
It was prior-bad-act evidence.
So what you have is during,
or I should say prior to the testimony coming in
about Saugus, you have Judge Henry saying,
"This evidence must not be considered
"to prove the defendant's bad acts,
"only for a limited purpose."
At the beginning, prior to the testimony, he says,
"I'm giving you this instruction at this time
"because the testimony that you are about to hear
"is being offered only for a limited purpose.
"I want you to understand the narrow nature of the purpose."
That's a limiting instruction.
That is a limiting instruction.
It says, "This evidence may only be used
"for this purpose, not for this."
There absolutely was no limiting instruction.
And yes, Judge, you're right.
-: Just have one final question for you 'cause you're over.
So the Woburn, you say there's no question
your client is in the Woburn room, right?
-: No, no, no, no, no, no, no.
No question that he's involved in the Woburn case.
He's seen approaching the hotel.
And by the way, O'Brien says-
-: You're saying when we read through this whole record,
we can't determine that he's the guy in the room
in Woburn as well.
'Cause if he is the guy in the room in Woburn,
we know the gun's used in the room,
the gun's pointed at the person's head.
So if he's involved in that one in the room,
can't we find the necessary intent
for felony murder even after Brown?
'Cause he knows that guns are being pointed
at sex workers' heads in the other one.
-: Well, now, you're making a determination that-
-: Well, I'm just using what you're conceding.
And I'm trying to understand what you're conceding.
'Cause unlike your briefs, you've come up with a new theory
that's not in your briefs.
So I'm trying to respond on the move here
to what I didn't see in any of the briefs.
-: Okay.
And, Judge, in a sense, I must apologize.
But in a sense, when you prepare for oral argument,
you see things you've never seen before.
-: I've been down this road already.
So I'm just trying to get a sense,
if we find he's in the room in the Woburn one,
and there's sufficient evidence of that,
and it's a pointing a gun at the head, threatening to shoot,
basically blow your head off kind of robbery,
isn't that gonna be enough
for the felony murder conviction here?
-: I don't know.
I don't know because I don't know
how a reasonable juror would have looked at it.
What I do know is that a reasonable juror was told,
"You can use this for whatever purpose you want."
So there is really no limiting instruction.
And the overwhelming evidence of guilt
as to Mr. Jeune in this case is that he was involved
in a joint venture to rob various sex workers.
What's not clear in this case- -: With a firearm.
-: Excuse me. -: With a firearm.
-: With a firearm, okay.
What's not clear in this case is whether or not
he was, A, one of the two people in Gattuso's room.
Because frankly,
not only does she describe somebody very differently,
she fails to pick his photo out of an array.
I know that the Commonwealth argued as well,
he was younger then.
She picks out an entirely different individual.
I would submit that the evidence
that he's in Gattuso's room is far from overwhelming.
And there's no evidence that he's in Johnson's room.
The evidence is that he was engaged with others
in a scheme to rob various sex workers.
He's guilty of the armed robbery for sure.
He's guilty of the attempted armed robbery for sure.
He's not necessarily guilty of the homicide,
and certainly not murder if he's not in the room.
I'm not saying he couldn't be found guilty of murder.
There's no way you can say that if he's not in the room
that he knew and he intended what happened in that room.
So yes, the crime scene as far as Fisher was concerned,
I'm nowhere near this.
I'm not involved.
-: Okay, but you don't have to be.
-: Right, right, I'm just trying to get to the point
that we're almost six minutes over.
-: [Attorney Rappaport] I'm sorry, Your Honor.
-: And if there's nothing else that you have,
I think we get it.
No, you've done a very good job
of getting your point across.
-: I appreciate it. -: Thank you, I appreciate it.
-: Okay, Attorney Elliott.
-: Good morning.
May it please the court,
Assistant District Attorney Christa Elliott
from Middlesex on behalf of the Commonwealth.
I'm gonna turn first, as my brother focused on,
to the identification issue.
But I do want to first note
that the defendant's defense at trial
was not that he was not in the room.
Rather, if we look to the defendant's closing,
at the very beginning of his closing,
he defines the key theme of his closing by saying
that the theme is, quote,
"Wanton and reckless conduct is not murder.
"If it results in the death of a human being,
"it is manslaughter, but it is not murder."
And then closes out the closing by saying, quote,
"If you come back with manslaughter and armed robbery,
"which has a life sentence,
"you will have done justice and there will be no winners."
-: So this was a third prong
versus involuntary manslaughter case.
-: Exactly, correct.
There was not a question at trial
as to whether or not the defendant
was one of the people in the room.
There was the recognition essentially to the jury
as long as you believe the Commonwealth's evidence,
my guy was there
was essentially what defense counsel was arguing
but just trying to mitigate the malice throughout.
So turning to the identification issue,
the Commonwealth does concede
that in light of this court's decision in Fisher
that Trooper O'Brien's identification of the defendant
in the hotel surveillance footage was error.
However, this fleeting singular identification
did not prejudice the defendant
where the evidence against him was utterly overwhelming
as this court acknowledged in Fisher.
And the trial judge gave repeated and forceful instructions
to the jury that they alone were responsible
for determining the identity of the men in the footage.
There was no issue with the instructions that were given.
The instructions were comprehensive.
They were clearly targeted to Trooper O'Brien.
They repeatedly mentioned his name and invoked his name,
telling the jurors that they must be the ones
to make the determination based on the video alone.
And there was no error in those instructions.
And certainly, there was no prejudice
based on the overwhelming-
-: But I mean, it's just contradictory to allow the testimony
and then to give the instruction.
Because to allow him to testify and then to tell the jury,
"You can consider it in any way you want
"but you make the call," then leads to the logical question:
Then why is he testifying in the first place?
-: Well, to be clear that this-
-: We've already said, it's error.
-: So in terms of that, that instruction,
I mean that is the appropriate instruction
to give a witness who is making an identification
based on the video.
And I apologize-
-: I think you'd say it if it's someone with familiarity,
an appropriate witness, not O'Brien.
-: Correct, correct, exactly.
And because, of course, as far as the judge-
-: Given the fact that it wasn't an appropriate witness,
that O'Brien shouldn't have testified as he did,
the reliance on the jury instruction,
to say there's no prejudice seems awkward at the least.
Because, you know, as your opposing counsel has pointed out,
they could consider it for whatever value
they considered it to have
when in fact they shouldn't have heard it at all.
-: Yes, and I do want to address both,
kind of two tiers of points here.
The first is that I think it's important
to read the instructions in their entirety.
Because that language
about "considering it for whatever value
"you believe it would have," is couched within,
"You are not bound to accept that testimony.
"And indeed, you must make your own determinations,"
and similar invocations throughout.
And so those instructions
really do need to be read as a whole
as opposed to having those individual pieces excerpted.
But also in Jeune's case,
the evidence against Jeune was so incredibly strong
that regardless of whether or not
there was that singular problematic-
-: Stronger than the Fisher evidence.
-: Significantly stronger than the Fisher evidence.
Here, we had the obvious likeness of the defendant
to the person who was in the video.
We had his phone and its records
for two separate phone numbers.
We had one of the phones
and then the records for two numbers,
we never found the second phone,
that provided direct evidence of his guilt,
including the fact that he had accessed
the backpage.com ads of all of the women
who were working as escorts.
He had communicated with the victims.
And all of his location information for those cell phones
perfectly lined up with the surveillance footage
that captured his-
-: He's clearly either the brains of the operation
or he's involved in everything.
This new argument, though, raises some...
He's robbing his own hotel, which is a little odd,
that he's running in.
So you want to address that?
I understand it's new
and you're gonna have to do this on the fly.
But why don't you take a shot at it anyway?
-: Of course.
I think that, you know, we have a,
even with this argument, there is a clear inference
that can be made that this defendant was in fact
in those hotel rooms.
I think that the fact that the defendant
enters through the side door in Burlington,
the hotel where he is known,
where he has worked up until a couple days before
or at least relatively recently,
is incredibly probative of the fact
that he is intentionally trying to hide his person
further than he was in the other videos
and does support the fact that he was in fact
that person who was in the room.
Looking to Gattuso's testimony,
there is specific evidence that Gattuso
testified that there were two people who were in her room.
The surveillance footage shows two people
going from the vehicle into that hotel.
It does not show a third person going into that hotel.
So the reasonable inference for the jurors
is that both of those people
that are observed going into the hotel in Woburn
are in fact the two people that ended up in Gattuso's room,
regardless of whether or not there are any discrepancies.
-: Is the hat distinctive?
The hat seems to be important.
The video shows some very unusual hat.
And is that the same hat found in his house?
-: I would have to double check.
Certainly, that hat has been admitted into evidence.
It was not something that I specifically focused on.
There was absolutely an A's hat
that was found and then admitted into evidence
that was found in Jeune's house
after the execution of the search warrant.
But I would have to review the record again.
-: And from what I remember, Gattuso does...
This guy has all these tattoos on his hands,
including distinctive ones about Haiti
and some other things.
Does she testify that the person has no tattoos
and is not wearing gloves?
I can't remember.
-: I believe she did testify to that.
That was part of her testimony.
I think that it is important to remember
that this is a woman who interacted with these two men
for, as she testified, between three and four minutes
in an incredibly high stakes environment
with a gun trained to her head
and for much of the time on the floor.
You know, the fact that there are inconsistencies
in her description is not particularly surprising.
-: Is it the Commonwealth's theory that he was the shooter?
-: Yes.
Well, the Commonwealth did not have a specific theory.
That was what the jury came back kind of indicating.
-: But didn't they come back with the opposite though?
I thought Fisher is the principal.
Who's found to be the principal in this?
I can't remember; was it Fisher or Jeune?
One of them has a principal conviction,
and the other only has a felony murder conviction, right?
-: They're both felony murder convictions, Your Honor.
-: No, they both have felony murder,
but I thought one also has a principal.
-: Well, Jeune had...
I do apologize, I don't have the verdict slip
in front of me at the moment.
But Jeune was found guilty of possession of the firearm,
whereas Fisher was not.
-: But he had the ammo in his house.
-: He had have the ammo at his house.
So the impression based on the verdicts
was that the jury believed that Jeune was the person
who fired the gun.
But regardless of who it was that fired the gun,
it does not matter for the purposes
of joint venture felony murder.
-: Right, was Fisher acquitted of possession of the ammo
or of possession of a firearm?
-: Yes, I believe that it was a not guilty
on possession of the firearm.
I would double check the record,
but that is my recollection for Fisher.
If there are no further questions on that issue,
I would simply note that
the bulk of the rest of this case
is really controlled by Fisher
with the exception, of course,
of the possession of the firearm charge,
which the Commonwealth has conceded does need to be remanded
pursuant to Bruen and Guardado 1 and 2.
If there are no further questions, I would rest on my brief.