-: SJC-13592, Commonwealth versus Nathaniel (indistinct).
-: Good morning, Your Honors.
May it please the court.
The constitutional prohibition against double jeopardy
prohibits the Commonwealth from retrying Mr. (indistinct)
on the charge of carrying a firearm,
where the Commonwealth failed to introduce evidence
that he lacked a license to carry a firearm
during his original trial that occurred
post Bruen but pre-Guardado.
The Commonwealth was put on notice by Bruen
that the Second Amendment encompassed
an individual's right to carry a firearm in public.
Bruen specifically held that the second
and the 14th Amendment protect an individual's right
to carry a handgun for self-defense outside the home
and further held that when the Second Amendment text
covers an individual's conduct,
the Constitution presumptively protects that conduct.
-: It also Bruen put everyone on notice, in your view.
I'm not sure why you focused solely on the idea
that it put the Commonwealth on notice.
It presumably put everyone on notice of the same thing.
Okay, so also defense counsel?
Counsel: Yes. Everyone should have been on notice.
-: Okay, so what we have here is instructional error.
-: We don't, because the Commonwealth did not,
at the time of the trial,
the law presumed that the defendant
had the right to carry a firearm outside the home.
-: Oh, so is it your position that the jury
were instructed properly in this case?
-: No, they weren't. -: Okay, so
it was instructional error.
-: It was substantive error, Your Honor,
because that takes..
There were a number of errors that occurred.
-: All right.
For me, it makes a difference to know whether
your position is that the jury were instructed correctly
on the law or incorrectly on the law.
-: The jury was instructed incorrectly on the law.
-: Okay. -: But that-
-: So let's just stop there for a moment, if you don't mind.
So normally when an instructional error is unpreserved,
we review for substantial risk of a miscarriage of justice.
Now, why would that not be the same rule
that we would apply here?
-: We would review this for a substantial risk
of miscarriage of justice.
-: Okay, and ordinarily when that happens,
what's the remedy when an instruction
is missing an essential element of a crime?
What has been the remedy
that we have ordered in prior cases?
-: This is a case, Judge.
This is different because this case involves
the failure to present evidence after,
to combat a presumptive right to have to carry.
And that's the difference in this case,
it wasn't merely a failure to instruct the jury properly.
It was a failure to present evidence.
-: We've had cases like that.
We've had cases where the jury were not instructed
on an element of the crime.
And evidence wasn't presented on the element.
And do you know what the remedy has been?
-: Judge, if this is just an,
if there was insufficient evidence,
that is a different story.
For example, the case involving, Jefferson case,
if I can bring out.
In Jefferson, the defense had evidence
that this was an antique firearm,
that it shouldn't have been heard.
But the court in that case stated essentially
because the defense was not allowed
to present this evidence, it still had a right to be heard.
It had a right to be heard on it.
And in this case, it falls under the Burke scenario
where there was insufficient evidence introduced
after everyone was put on notice
that the defendant had a right to carry.
And that's a different scenario
from when it was just a mere instructional error.
The evidence was not produced.
It could have been produced such as in Bookman.
Had the Commonwealth at that point produced evidence
of lack of licensure,
there would've been sufficient evidence.
It would've just been a mere instructional error scenario.
But here, the Supreme Court essentially said,
"This is a right people have."
You have the right to carry outside the home.
It cannot be-
-: They haven't directly addressed the issue.
They haven't resolved, or at least expressly dealt
with the issue we deal with in Guardado, right?
They haven't come right out and said
what we're supposed to do in this context,
we're having to intuit what they want here, right?
-: Well, I don't think we have to intuit too far
because they did come out and and directly state-
-: They're saying that states can impose
licensing requirements, right?
-: Certainly, they can.
They absolutely can.
-: And does Bruen say anything about
who has the burden of production of a license?
-: No, but- -: So it doesn't say that,
so what is the direct connection between Bruen
and the proposition that we wrote an opinion in Guardado
won on?
-: Well, Guardado said that ever since Bruen,
since the decision in Bruen,
and that was the triggering point,
that was the turning point.
That Bruen stated that the Second Amendment
protected such conduct and therefore-
-: Right, but it didn't say anything about
who has the burden of production on a license.
-: No, but if we look at Winship and the line of cases there,
we can't expect a defendant to prove something
he has the right to do.
It is the burden of the Commonwealth.
-: I thought Gauss just said that the burden of production
was on the defendant and once he raises the license issue,
then the burden of proof under Winship
is still with the Commonwealth.
Did I have that wrong?
-: Gauss said that the Second Amendment did not apply
and that's the major difference.
-: So one would have to take Bruen, combine it with Gauss,
read Gauss, the rationale for Gauss,
and then come to the conclusion
that the burden of production
that Gauss puts on the defendant is improper.
-: I would say yes, Your Honor. Excuse me.
-: And you thought all of that was obvious
at the time of the trial.
-: I stated, it should have been obvious.
I'm not stating it was obvious,
but it should have been obvious.
It was obvious to this court in Bruen, I mean in Guardado,
that Bruen changed the law.
And because of that change, and it was constitutional law,
it wasn't just an interpretation of Massachusetts law.
It was a federal holding from the highest court
on constitutional law, and it had to be followed.
And therefore, making the defendant prove
that he had the right to carry on conduct,
that the Supreme Court said he presumptively had that right
was improper and this court-
-: Right, then that's not an issue really.
I think the Commonwealth concedes that that was improper.
And so the question is only I thought
whether the Commonwealth has the opportunity to prove
for the first time the lack of license.
-: Yes, and indeed after reading Bruen,
which essentially knocked the foundation off of Gauss,
'cause Gauss was based on the fact
that this court interpreted Heller and McDonald
not to indicate that the Second Amendment
applied to carrying outside the home.
That certainly set up red flags
about whether Gauss was still good law in Massachusetts.
The Commonwealth could have still-
-: They're a little different red flags than,
I mean, Guardado is the guiding light here, right?
I mean we're acting sort of like a federal circuit court,
discerning the meaning of the US Supreme Court, right?
And so- -: I wouldn't say so.
I think that the Supreme Court is-
-: The Supreme Court hasn't directly addressed the question.
I mean, they've..
-: The Supreme Court has, it is a logical trail.
The Supreme Court said
this is presumptively protected conduct.
And therefore, this court,
any sort of prosecution has to treat it
as presumptively protected conduct, which was not done.
-: But that, so that's the inference, right?
That you're making there,
because the Bruen case was a civil licensing scheme, right?
-: It was, but it ruled on a constitutional provision
in very broad language.
And it essentially said
this is presumptively protected conduct,
therefore it can't be ignored.
And one way of not ignoring that would be to do
what the Commonwealth did in Bookman,
which is just to introduce the evidence anyhow.
-: Can you walk me through the timing?
There's Bruen, there's Guardado one
and there's Guardado two.
This case fits in where in that,
'cause in Guardado two- -: It was before Guardado one.
It was between Bruen and Guardado one.
-: Between Bruen and Guardado one.
And so we haven't resolved the meaning of Bruen,
at least for Massachusetts courts until Guardado two, right?
-: This case has not ruled, has not officially abrogated
Gauss.
But-
-: This case falls,
these are all post Bruen on appeal, post Bruen cases,
pre-Guardado.
-: Yes. This is what this is.
So this court has not abrogated Gauss at the time,
but the Supreme Court's holdings still must be followed.
And that becomes a due process issue, in my case, because-
-: In your view,
what could the trial judge here have done?
The trial judge was not asked
for a different instruction than the one that was given.
Guardado one had not yet come out.
What error did the judge make?
-: I'm not pitching this on an error on the judge.
-: I understand that, but I have a hard time understanding
whose error you're pointing to.
You're not raising an ineffective
assistance of counsel claim.
So you're not arguing that the defense counsel
should have challenged this instruction.
The instruction is given, became the law of the case.
And then the evidence conformed to the law of the case
that apparently everyone was satisfied with,
I'm not saying it was correct.
I'm just saying as the case was tried,
that was the law of the case.
So who made a mistake?
Counsel: You cannot convict a defendant
on insufficient evidence.
-: Sure. That would give you a new trial.
That would give you a new trial.
-: That is the error.
You know, I could have raised an ineffective assistance
for counsel claim, but I instead-
-: You didn't. -: I didn't,
because it's sufficient, it's a substantial risk of justice
to convict someone on insufficient evidence.
-: Right, so if you had raised it
as an ineffective assistance of counsel,
the remedy would've been a new trial.
I'm really trying to zone in on,
and I assume it's obvious is why is the remedy
a double jeopardy remedy as opposed to the remedy
that has been used traditionally
when we look at all of these similar types of errors,
which is that you get a new trial.
-: Well, because this is again, insufficient evidence,
because the Commonwealth had the opportunity to present it.
There was nothing forbidding the Commonwealth
from introducing evidence of lack of licensure.
-: Wasn't that the case in Guardado?
-: Well, it was, in Guardado,
the law hadn't changed at that time.
We did not believe that the Second Amendment-
-: [Judge Wolohojian] Guardado came after Bruen?
-: I'm sorry, but the trial of Guardado did not.
The trial in Guardado came before Bruen.
And that was the law of the land then.
By the time Mr. (indistinct) trial came,
Bruen had issued and Bruen had said
this is presumptively acceptable conduct.
And therefore, the burden was on the Commonwealth
to prove that it was not.
At federally.
-: Have the federal courts dealt with this issue?
'Cause he's gonna stand up and cite
some of these other federal cases about
instructional error, insufficient evidence,
but they're not exactly on point, right?
Do we have any federal circuit court decisions
on this issue?
-: I couldn't- -: Which is where
it's post Bruen,
maybe we're one of the few states that did this.
I don't know of other states had this affirmative
defense approach or not.
But is there any guidance in the federal courts on this?
-: I did not find any cases.
All the cases cited by the Commonwealth,
the law changed after trial.
And the difference in Mr. (indistinct) case
is the law changed before trial.
And that's why we are obliged to obey the federal law.
And that's why the Commonwealth could certainly,
I mean, if the Commonwealth had introduced evidence,
it would've been a Bookman scenario.
It would've been a judicial error in failing to instruct.
But because they didn't introduce evidence at that point-
-: The best thing for you is the statement in Guardado.
I can't remember if it's in Guardado one or Guardado two.
This was a pre-Bruen case, therefore you get a retrial.
Now we're dealing with the gap,
which is this is a post-Bruen,
was it so obvious that you had to do this
post-Bruen without a Guardado decision?
We haven't, I just don't know if anyone's answered
that question out there.
-: I'm not aware of any cases
in which this has been resolved.
So the Commonwealth- -: Your basic argument,
just so I understand it, is
Bruen made it clear that this is something
that Commonwealth has to prove
and therefore, it's a sufficiency of evidence case
and it's insufficient.
That's essentially your argument.
That is my argument.
And in this case, the Commonwealth has conceded
that there was insufficient evidence,
conceded in its brief, I have addressed the issue
and I would ask that this court order that no retrial occur.
Thank you very much.
-: Thanks, Counsel.
Attorney Charles.
-: Good morning.
May it please the court, Assistant District Attorney,
Jamie Michael Charles from Middlesex
on behalf of the Commonwealth.
With me at counsel table is
Assistant District Attorney Timothy Ferrier.
He handled the single justice proceedings in this case
and also briefed the Crowder matter,
which this court will be hearing next.
It is still true as this court noted in Guardado two.
And just to quote that,
at the time of the defendant's trial,
this court's precedent clearly had established
that licensure was not an essential element.
Judge Wendlandt: But that precedent
was based on an understanding
of the limits of the Second Amendment,
which Bruen said were wrong.
-: So I would agree with that,
but I think this court has to take, so number one,
I think, as Your Honor already alluded to my sister,
Bruen was not a case that was directly
addressing the question.
The Commonwealth concedes
that Bruen did make these general statements
about the presumptive protection
that the Second Amendment provides to people
outside of the home.
But it was an administrative case,
dealing with a licensing regime.
It did not directly address any sort of criminal statute.
So we're not in a Counterman world
or in a Johnson v. US world
where the United States Supreme Court
is making a direct pronouncement on a criminal statute
and what needs to be proven or not proven
as to a particular element.
This was a general statement
about a constitutional protection made in the context
of a very different sort of case
that was not addressing the kind of questions
that we're addressing now.
I would also generally note,
and I know I raised these in Guardado one
when I was before you,
but I think the context here is different.
Although none of Your Honors were sitting on this court
back when Gauss and Loadholt and Powell were decided,
the way those cases were addressed by this court
in a post Heller/McDonald landscape
did not suggest that this court felt
that the 278 section seven burden of production
was invalidated by the Supreme Court's pronouncements
in those cases.
So for example, this court acknowledged in Guardado one
that essentially what Heller said was that
was what Bruen said, except in the home.
10H, 269-10H has always required
that the Commonwealth prove as an element of that crime,
that the defendant either was unlicensed
or did not have an FID card, in the home.
This court did not feel the need
and in fact expressly declined in the Powell case in 2011
to revisit the 278 Section seven presump edition,
notwithstanding Heller and McDonald.
So the Commonwealth is dealing with 40 years
of precedent dating back to Jones
that says a license is an exception.
-: I get the past, but once Guardado
and I'll defer to the author of Guardado on this,
but once Guardado says,
post-Bruen, we gotta do this post-Bruen,
you can't rely on the affirmative defense stuff.
Jamie: I don't dispute the legality of the-
-: I'm just trying to understand which law
is binding on us and in this environment.
-: The Commonwealth's view is that this court,
in terms of the retroactive effect of its ruling,
giving the benefit of a new trial to individuals
who are tried post-Bruen is a 100% correct.
-: That's easy. That's the easy part.
The hard part is the one we're dealing with right now,
which is, okay, this case was tried after Bruen.
We have subsequently in Guardado one or two
say that this affirmative defense doesn't work anymore.
How does that work now?
-: It becomes a question of sufficiency of evidence
in double jeopardy, correct?
-: That's correct, Your Honor. -: That's what it comes down to
as whether or not the remedy is dismissal
versus a new trial.
-: That's entirely correct.
And to be clear, the Commonwealth is not suggesting
that there's a supremacy clause conflict here,
that this court trumps
what the United States Supreme Court says.
The Commonwealth is merely arguing,
and I think the record supports that
it was not sufficiently on notice.
I believe the language this court used in Guardado two
was the Commonwealth reasonably could have known.
And what I'm arguing to you now is that the Commonwealth,
until this court decided Guardado one,
could not reasonably have known
that this 40 years of precedent was invalidated
based on the general statement
that was made in the context of a decision
by the United States Supreme Court.
-: That's the standard? -: Nothing to do-
-: I just wanna make sure I understand.
So it's the sufficiency,
'cause we have insufficient evidence, right?
We all agree there's insufficient evidence.
Jamie: Judged by the new post Guardado standard, yes.
-: Right, so there's insufficient evidence.
There's the Bruen decision.
And is this sufficiency of notice that Bruen..
Where do we get that? Do we get that from Guardado?
I'm just trying to understand,
if I'm writing a decision that makes your point,
what do I cite for the idea?
"Okay, Bruen's been decided subsequently,
this court says in Guardado,
the affirmative defense doesn't work.
But we weren't sufficiently on notice,
therefore we get a second try."
I'm just trying to, what do we cite?
-: I would agree that there's not a case
to directly point you to,
but I think it's a confluence of cases.
It is the cases that the Commonwealth cited in Guardado two
and in its brief in this case from the federal circuits,
acknowledging that those cases dealt with the change
of the law, the post-dated trial,
talking about this idea of getting a second bite
versus a first bite at the apple.
-: Again, those are easy.
It's the predated- -: Cases like Runyon,
for example, that the Commonwealth cites
in its case 456 mass at 234,
because I believe as Justice Wolohojian was questioning
what could we have expected trial courts to do?
Bruen was not a direct pronouncement
that provided clear guidance
about the effect on Massachusetts criminal prosecutions
and the burden of proof and the burden of production.
Our trial courts had clear guidance,
40 years of clear guidance that persisted
post-Heller and McDonald from this court.
-: As Guardado cut back on that though,
when Guardado says Bruen,
I don't know if Guardado says this,
makes clear that this affirmative defense approach
doesn't work, how do we take that into,
and also Guardado is easy because it's a pre-Bruen case.
So it says you get a new trial.
It fits in with your federal cases.
Are there any cases where we have
the Supreme Court's issued a general principle
that hasn't addressed this very specific question
and then Massachusetts clarifies that?
But for the Commonwealth in Guardado, it's retroactive.
And I don't mean to cut you off,
I'm just trying to articulate what I can't understand.
-: The Commonwealth's position is that
setting aside the obvious wrinkle
that these federal cases dealt with
post-trial changes in the law,
the underlying rationale of those cases
and why it makes sense to grant a new trial,
but not preclude that new trial on the basis
of double jeopardy is that the Commonwealth
is not being given this second bite at the apple.
It's not that it was clear to the government
or frankly to defense attorneys or defendants
or judges of the trial courts in this commonwealth
that this had to be done.
So to the Commonwealth's knowledge,
essentially every single trial that occurred between
Bruen and Guardado one occurred in the trial courts
of the Commonwealth without defendants requesting this
instruction, without trial judges recognizing
that this was an element
that the Commonwealth now needed to prove.
And without the prosecutor, the government understanding
that it needed to introduce evidence,
it unquestionably had because no defendants
who provide proof of licensure-
-: Wait, wait.
As a practical matter, we understand that that's obvious,
but again, the Supreme Court's double jeopardy
jurisprudence is pretty, it can be pretty rigid.
And I'm just trying to make sure,
are there cases that we can look at,
Supreme Court cases where they say,
"Okay, because we hadn't directly addressed
this specific point,
even though we'd sort of given general guidance,
there's not double jeopardy
in an insufficient evidence case?"
Are there things..
-: The Commonwealth is not aware of that case.
I think again, we can look to cases
that are not directly on point, but somewhat helpful.
For example, the Beals case.
There, this court did apply double jeopardy principles
against the Commonwealth.
And that was in part because the defense attorney
at trial raised this issue.
They squarely raised the idea that an assault
and battery conviction standing alone was insufficient
to establish the predicate for an armed criminal.
And the law was not clear,
but the defendant had put the Commonwealth on notice
and the Commonwealth proceeded at its peril
and therefore this court had no qualms
with applying double jeopardy.
And I actually, I can't say that
that was an incorrect application of the law.
But here, no party to the prosecution, to the case,
put anyone on notice.
And again, just to address a question
that you directly asked before, Justice Kafker,
while the Commonwealth was not able
to find any federal cases,
New York does treat unlawful possession prosecutions
in the same way that the government
or that the Commonwealth does in Massachusetts.
They essentially view a license as an exception
to the statute that takes you out of the criminal sphere.
And in 2023, they decided a couple of cases,
Cabrera, 41 New York third, 35,
and David, 41 New York third 90,
where the defendants raised a variety
of similar constitutional claims, post-Bruen.
Now ultimately those courts determined
that those claims were waived because in New York,
if you don't raise it at the trial court,
you don't get to raise it on appeal.
But in the Cabrera case,
the court did sort of directly address at page 49 and 50
this idea of like, what did Bruen directly address?
And they said, quote, "Bruen did not address the rest
of New York's licensing scheme
or the interplay between the invalidation
of New York's proper cause requirement
and state statutes criminalizing unlicensed possession
of a firearm," end quote.
So the one other jurisdiction that's sort of similar-
-: Can I ask? -: Yes.
-: So are those, are certiorari been sought on those cases
and are there, from what I understand,
one of the briefs says, certiorari
is it still pending in Guardado?
-: So certiorari has been denied in Guardado
That was pending at the time of briefing
and has since been resolved.
And I apologize, I should have looked it up.
I'm not aware of the certiorari status of those New York.
Judge Wendlandt: Well, you said they were waived claims.
-: They were, they were. The court did view them as waived.
I don't know enough about the New York jurisprudence
to understand whether that was an erroneous conclusion
by the Court of Appeals,
but they certainly concluded that under their jurisprudence,
they were waived claims and therefore,
they weren't gonna address them.
-: I understand your point that no one directly
raised this as a matter of notice,
but it could be helpful to talk a little bit
about notice in the more substantive sense.
And I think that it is a source of confusion
that the court in Bruen talks about the burden,
talks about a burden in a way,
of that this is presumptively lawful conduct.
And so therefore the burden on some level
will be on the Commonwealth to prove a crime has occurred
versus a Winship issue like we have here,
where we have a burden of production
and then the burden of proof was
actually on the Commonwealth.
So can you talk about a burden that comes out of Bruen
versus a burden at issue here?
'Cause I think that that,
isn't that the heart of the notice question?
-: Again, not to fall back on a point I've already made,
but I think in assessing separate and apart from the fact
that Bruen didn't directly address any of the stuff
that we're talking about now, looking back to how-
-: Well, hold on, it absolutely did, right?
-: In the macro sense it did,
because obviously this court in Guardado one
interpreted those general pronouncements
and applied them to our case law
and determined that prior precedent Jones and Gauss
and these other cases were no longer valid.
But I only mean in the sense that it was not,
it's not akin to these other sort of federal cases
from the United States Supreme Court
that have prompted an immediate reaction in lower courts,
like Rahaf or Barrage or Johnson.
-: Well, let me give you an different hypothetical.
And this is intended to be a friendly question,
because I think it's a difficult question
to think about the burden of proof
and a burden of production.
So Guardado said this is, you know,
you can't have a state statute that presumes
that no one can have a handgun
and you have to get special permission to get one,
because of the Second Amendment.
So if you had a state criminal statute
that was sort of very much akin to the,
an analog of the New York regime
that said it is a crime to be out and about
without a license for any, you understand my point.
-: Yes. -: Even though
Bruen was not itself a criminal case,
wouldn't you understand Bruen
to have essentially abrogated that criminal statute?
-: Yes, I think then we would be in a situation
akin to what this court dealt with in Cruz post-Counterman,
where you're getting a clear direction
from the United States Supreme Court
and everyone understands what they're saying,
vis-a-vis our criminal statute.
-: So speaking doctrinally
and trying to relate it to Winship
and a presumption, a burden of production.
Can you articulate why this is different?
-: Well, I mean, at a base level, it's different
because the Commonwealth always retains
the burden of proof as to licensure.
There's hasn't been any shifting of a burden essentially,
it's just a preliminary step
that the Commonwealth would characterize
as a very minimal preliminary step,
reasonable preliminary step
that our courts were asking defendants to bring.
Because I mean, not to state the obvious again,
but I think generally if someone produces a valid license
at the time they're stopped or a firearm is found,
or anytime prior to a complaint
or an indictment being returned, they're not being charged.
No one's proceeding on a prosecution against someone
who's lawfully licensed to carry a firearm.
So this was at the imposition of a very low level
initial burden on defendants,
granted at a time where perhaps
we had a less centralized system
that I think Justice Gaziano
pointed out in Guardado one and two
during oral argument is perhaps not the same today
as it was back then,
but at the end of the day,
the Commonwealth is still once being put on notice of this,
of the fact that the defendant is claiming
they do have a license,
they're still being required to prove it.
So the statute- -: And so you don't view
that the placing the burden of production
on defendants as analogous to the
violative of Bruen criminal statute
that I was hypothesizing.
-: I don't view it as apples to apples,
but again, I think it's a little bit removed
from the core question of which is essentially
a notice question, right?
Because if we're talking about sort of,
I mean, I don't rely on,
both my sister here and my sister in the other case
are quick to distinguish the specific facts
of the Jefferson case.
The Commonwealth cited that case,
and I believe this court cited that case in Jefferson
or in Guardado two more for the idea of this
fairness principles, where none of the parties involved
are aware that this is an obligation
and where there hasn't been a direct pronouncement
from a higher court that is sufficiently clear
so that the government can reasonably understand
that it has that obligation.
I mean, it's a tougher case-
-: My problem is you just don't,
I get it in a certain sense,
but we don't have any authority for this.
It was sort of clear, but not really clear, right?
-: Well again, you piece it together
from different things, right?
We have Vasquez and Runyon essentially saying
that the Supreme Judicial Court
is the highest court of the commonwealth
and lower courts are obligated to follow its pronouncements.
We have 40 years of precedent from this court.
-: But this is, we're on the federal side here.
So we're more like..
That's why I was interested
in your federal circuit court analysis.
But again, all of those involve post..
We're..
-: A post-trial change- -: I understand,
her argument is simple.
Bruen was decided, you said in Guardado that Bruen's clear
and got rid of this,
therefore, and then it becomes an insufficient case.
Your argument is Bruen wasn't that clear
and therefore we weren't on notice.
It seems like..
-: I think that's correct in a sense.
To give a hypothetical,
if this was a situation like Counterman,
where the government had proceeded post-Counterman
and not sought to make the requisite showing,
I would say there would be a stronger argument
that double Jeopardy would apply
because the decision of the United States Supreme Court
was fairly clear and direct.
I think what we're asking you to do
is to sort of apply those federal circuit cases
that we've cited and the spirit of those cases which say,
"Okay, yes, let's acknowledge that the change in the law
there was post-trial, but it was still a new rule."
And here, the government didn't understand the new rule
because it wasn't clearly stated
in the United States Supreme Court decision
that is the basis for it.
It was sort of a tangential flow.
-: I'm just trying to make sure I can articulate
your argument.
So Bruen has set out a general principle,
but the SJC until Guardado has not made it clear
what its interpretation of that decision is.
Therefore, you're really only bound by SJC law on this
and not the US Supreme Court's,
because the US Supreme Court hasn't definitively ruled
like- -: That is the argument
that the Commonwealth has given to you, yes.
And if we were in a land where-
-: Okay, so now I understand.
I understand that argument. Now can I ask you about waiver?
Does waiver get you anything that no one's raised this?
I'm just trying to understand how that works.
-: Given how this court has interpreted its waiver
jurisprudence, I'm not sure what,
I would've made the argument
if I felt it would've availed the Commonwealth.
Judge Wendlandt: If you were in New York, maybe.
-: If I was in New York perhaps,
but as the Commonwealth understands
this court's waiver jurisprudence,
if it doesn't avail the Commonwealth-
-: But when we've interpreted the US Supreme Court,
you can waive, oh, I don't know if you can
waive double jeopardy issues.
That's the problem, right?
Do we go to a substantial risk in double jeopardy?
I thought we don't.
-: I'm not sure we even get, I mean, it's..
I'm not even sure it's a matter of which standard applies,
if it's a straight double jeopardy question,
but it's a straight insufficiency question.
And the Commonwealth was,
and this court finds that the Commonwealth was on notice,
then I think we lose.
-: Right, if Bruen had held,
the burden of production on licensing
cannot be on the defendant,
then I think you'd be in a different world.
-: I would not argue with Your Honor
that we would lose in that scenario.
And I'm sure there's a variety of other hypotheticals
where the court could have said something
that was somewhat clear that wasn't that direct,
but that was still clear enough
to put the Commonwealth on notice.
Here, again, at the risk of being a broken record,
just that wasn't what Bruen was about.
I don't dispute that these general pronouncements were made,
but this is not a case like Rahaf or Johnson,
where the United States Supreme Court is saying
"Attention lower courts, when you try this
particular type of criminal case,
the burden is on the government to prove X."
That was nowhere near anything said in Bruen.
And so to now hold that against the government
and say all of these defendants
get a get outta jail free card and you can't retry them
when we clearly had the evidence at our disposal
and had we had any inkling
that it was required, even from defense counsel,
which again, neither this defendant nor Mr. Crowder-
-: A little difficult to say he had no inkling,
given what we said in Guardado.
But I get your point.
You may not been- -: Pre-Guardado,
no one had that guidance.
-: Right, but Guardado an interpretation of Bruen.
But I understand your point is
you didn't have sufficient notice,
given that Bruen hadn't specifically addressed the question.
Jamie: Correct, again-
-: And we're gonna see you in a little bit.
-: That's correct.
I'll rest on my brief as to this
and ask that you remand for a new trial
and allow the Commonwealth a second,
or a first opportunity to prove
what it did not know it previously had to prove that.
Judge Wendlandt: Almost misstated that, huh? (chuckles)
-: Thank you, Your Honors.