Commonwealth v. Guardado

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SJC-13315

COMMONWEALTH vs. CARLOS GUARDADO.

Middlesex. September 11, 2023. - October 26, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.

Firearms. License. Constitutional Law, Right to bear arms,
Double jeopardy. Due Process of Law, Elements of criminal
offense. Practice, Criminal, Instructions to jury,
Reconsideration, New trial, Double jeopardy.

Indictments found and returned in the Superior Court
Department on June 26, 2019.

A pretrial motion to suppress evidence was heard by C.
William Barrett, J., and the cases were tried before Paul D.
Wilson, J.

After review by this court, 491 Mass. 666 (2023), a motion
for reconsideration was allowed in part.

Elaine Fronhofer for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.

GAZIANO, J. This is a companion case to Commonwealth v.

Guardado, 491 Mass. 666 (2023) (Guardado I), concerning the
 2

proper remedy for the constitutional violations described

therein. A Superior Court jury convicted the defendant of,

among other things, unlawfully carrying a firearm, unlawfully

carrying a loaded firearm, and unlawfully carrying ammunition.

See id. at 667. On appeal, this court determined that, in light

of the United States Supreme Court's decision in New York State

Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111, 2122 (2022),

which was issued after the defendant's convictions, absence of

licensure is an essential element of those crimes. See Guardado

I, supra at 690, 692. Accordingly, we held that the trial judge

erred when he failed to instruct the jury that, to convict the

defendant of those crimes, they would have to find that the

defendant lacked a firearms license. See id. at 691. We

vacated the defendant's convictions and ordered that the

Superior Court judge enter judgments of not guilty on the

indictments, precluding the Commonwealth from retrying the

defendant on those charges. See id. at 694.

The Commonwealth has moved for reconsideration, arguing

that because the constitutional rule established in Bruen, 142

S. Ct. at 2122, did not exist at the time the defendant was

convicted, the Commonwealth should have an opportunity to retry

the defendant. We conclude that the Commonwealth is correct.

Ordinarily, the prohibition against double jeopardy bars retrial

if, as the Commonwealth concedes, there was insufficient
 3

evidence at trial to establish an essential element of the

crime. However, the Commonwealth had no reason to introduce

evidence of the defendant's lack of licensure under then-

prevailing law. Because the Commonwealth is not being given a

second bite at the proverbial apple to supply evidence that it

was required to muster in the earlier trial, double jeopardy

does not bar retrial.

1. Background. a. Trial. In June 2019, a grand jury

issued indictments charging the defendant with one count of

illegal possession of a firearm, G. L. c. 269, § 10 (a); two

counts of illegal possession of a large capacity feeding device,

G. L. c. 269, § 10 (m); one count of illegal possession of

ammunition, G. L. c. 269, § 10 (h); and one count of illegal

possession of a loaded firearm, G. L. c. 269, § 10 (n). The

facts underlying those charges are recited in Guardado I, 491

Mass. at 668-673.

When the judge instructed the jury at trial, he did not

include absence of a firearms license among the elements that

the Commonwealth would have to prove for the jury to convict the

defendant. The defendant did not object to this omission from

the jury instructions.

In June 2021, the defendant was convicted on all counts

except for one count of illegal possession of a large capacity
 4

feeding device. The defendant filed a timely notice of appeal,

and we transferred the case to this court on our own motion.

b. Appeal. The defendant argued on appeal that the judge

erred by failing to instruct the jury that absence of licensure

is an essential element of the crimes of unlawful possession of

a firearm and unlawful possession of ammunition. The defendant

relied on the Supreme Court's holding in Bruen, 142 S. Ct. at

2122, that the Second Amendment to the United States

Constitution protects an individual's right to carry a firearm

outside the home. The defendant contended that, as a result of

Bruen, his convictions of unlawful possession of a firearm,

unlawful possession of ammunition, and unlawful possession of a

loaded firearm should be reversed.

We reviewed the defendant's argument under a standard that

ordinarily is reserved for issues preserved at trial. We

reasoned that the defendant "did not have an adequate

opportunity at the time of his trial" to object to the jury

instructions, because the Court's decision in Bruen had not

issued until after the defendant had been convicted. Guardado

I, 491 Mass. at 686. Under the "clairvoyance exception," which

allows a defendant to raise an unpreserved issue on appeal "when

the constitutional theory on which the defendant has relied was

not sufficiently developed at the time of trial," Commonwealth
 5

v. Rembiszewski, 391 Mass. 123, 126 (1984), the defendant was

entitled to review of the issue, Guardado I, supra.

We concluded, in light of Bruen, that absence of licensure

is an essential element of the crimes of unlawful possession of

a firearm and unlawful possession of ammunition. See Guardado

I, 491 Mass. at 690. Accordingly, we held that the judge erred

by omitting absence of licensure from his instructions on those

crimes to the jury. See id. at 691. We vacated the defendant's

convictions on the indictments charging unlawful possession of a

firearm, unlawful possession of ammunition, and unlawful

possession of a loaded firearm,1 and we remanded the matter to

the Superior Court for entry of judgments of not guilty on those

indictments. See id. at 694.

c. Motion to reconsider. In May 2023, the Commonwealth

moved for reconsideration of the remedy this court issued in

Guardado I, 491 Mass. at 694. We granted the Commonwealth's

motion for reconsideration in part and asked the parties to file

briefs on the following issue: "[W]hether the court should

continue to hold that the remedy in [Guardado I] for an

erroneous jury instruction relieving the Commonwealth of the

burden of proving absence of firearm[s] licensure is vacatur of

1 A defendant may not be convicted of unlawful possession of
a loaded firearm if he or she is not convicted also of unlawful
possession of a firearm. See Commonwealth v. Tate, 490 Mass.
501, 520 (2022).
 6

the conviction and remand for entry of a judgment of

acquittal. . . . Or, should the court consider the jury

instruction, which conformed to controlling precedent at the

time, to be trial error that results in vacatur of the

conviction and remand for a new trial."2

2. Discussion. Based on their differing applications of

the double jeopardy principle, the parties disagree as to what

the appropriate remedy should be for the erroneous jury

instructions. The Commonwealth argues that we erred by ordering

the Superior Court to enter judgments of not guilty on the

defendant's convictions. According to the Commonwealth, because

the evidence it presented at trial was insufficient only because

of a postconviction change in the law, double jeopardy does not

bar retrial. The defendant contends that, because the

Commonwealth's evidence at trial was not sufficient according to

2 The Commonwealth raised in its motion additional issues,
including whether to extend the license requirement to the crime
of unlawful possession of a large capacity feeding device. See
G. L. c. 269, § 10 (m). We grant the Commonwealth's motion to
reconsider that issue, insofar as the Commonwealth requests that
we not address whether absence of a license is an essential
element of that offense. In the exercise of our discretion, we
have decided to avoid answering an unpreserved constitutional
claim. We leave for another day, with the benefit of full
briefing and argument, the question whether large capacity
feeding devices are "arms" protected by the Second Amendment
following Bruen. See, e.g., Ocean State Tactical, LLC v. Rhode
Island, 646 F. Supp. 3d 368, 385-388 (D.R.I. 2022).
 7

the state of the law at the time of his appeal, double jeopardy

requires the entry of judgments of acquittal.

"At its core, the prohibition against double jeopardy,

which flows from the Fifth Amendment to the United States

Constitution, as well as the statutory and common law of

Massachusetts, provides that 'a person cannot twice be put in

jeopardy for the same offense.'" Commonwealth v. Sanchez, 485

Mass. 491, 506 (2020), quoting Marshall v. Commonwealth, 463

Mass. 529, 534 (2012). This prohibition protects defendants

against the possibility that "prosecutors could treat trials as

dress rehearsals until they secure the convictions they seek."

Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018). It also

ensures that defendants will not receive "multiple punishments"

for the same offense. United States v. Ursery, 518 U.S. 267,

273 (1996). To prevent such injustices, double jeopardy

protections forbid the Commonwealth from prosecuting the

defendant for the same offense after a final verdict has been

entered. See Commonwealth v. Brown, 470 Mass. 595, 603 (2015),

quoting Marshall, supra.

The prohibition against double jeopardy generally precludes

retrial if the Commonwealth presented insufficient evidence at

the original trial to support the defendant's conviction. See

Commonwealth v. Bolling, 462 Mass. 440, 453 (2012). See also

United States v. Wacker, 72 F.3d 1453, 1465 (10th Cir. 1995),
 8

cert. denied, 523 U.S. 1035 (1998), citing Burks v. United

States, 437 U.S. 1, 10 (1978) ("by reversing a conviction for

insufficient evidence, the reviewing court is actually making a

determination that the trial court erred in failing to direct a

verdict of acquittal on the evidence; accordingly, the defendant

should be treated as though he or she were acquitted").

Otherwise, the Commonwealth would be able to take advantage of a

trial error by presenting a stronger case the second time

around, thereby "getting a second bite at the proverbial apple"

(quotation and citation omitted). Commonwealth v. Claudio, 484

Mass. 203, 208 (2020). If, given the evidence presented at

trial, no "trier of fact could have found the essential elements

of the crime beyond a reasonable doubt," the Commonwealth does

not get to try again (citation omitted). Commonwealth v. Brown,

479 Mass. 600, 608, 611 (2018).

The double jeopardy principle, however, "does not prevent

the government from retrying a defendant who succeeds in getting

his conviction set aside . . . because of some error in the

proceedings leading to conviction." United States v. Acosta-

Sierra, 690 F.3d 1111, 1123 (9th Cir. 2012), cert. denied, 568

U.S. 1183 (2013), quoting Lockhart v. Nelson, 488 U.S. 33, 38–39

(1988). See Commonwealth v. DiBenedetto, 414 Mass. 37, 45

(1992), S.C., 427 Mass. 414 (1998), 458 Mass. 657 (2011), and

475 Mass. 429 (2016) (double jeopardy did not bar retrial where
 9

conviction was vacated due to erroneous admission of deposition

testimony). Where a guilty verdict is reversed because of "an

error in the jury instructions," the proper remedy is to remand

for "a new trial." Commonwealth v. Vargas, 475 Mass. 338, 349

(2016). This holds true even when the error in the jury

instructions resulted in a misallocation in the burden of proof.

See Commonwealth v. Skinner, 408 Mass. 88, 94-95, 99 (1990)

(remand for new trial because jury instructions relieved

"government of its burden of proof on an element of a crime").

See also United States v. Godin, 534 F.3d 51, 61 (1st Cir. 2008)

("Generally, if an erroneous jury instruction is not harmless

error, we vacate the conviction and remand for a new trial").

In such circumstances, a retrial does not impose on the

defendant any of the evils from which the prohibition against

double jeopardy is intended to protect. See Marshall, 463 Mass.

at 534.

Here, the Commonwealth concedes that it did not present

evidence at trial to indicate that the defendant lacked a

firearms license. The Commonwealth therefore did not introduce

sufficient evidence to establish beyond a reasonable doubt an

essential element of the crimes at issue. See Guardado I, 491

Mass. at 690, 692 ("absence of a license is an essential element

of the offense[s] of unlawful possession of a firearm" and

"unlawful possession of ammunition"). Ordinarily, this would
 10

establish that the "[d]ouble [j]eopardy [c]lause forbids a

second trial." See Commonwealth v. Lopez, 484 Mass. 211, 221

(2020), quoting Commonwealth v. Amado, 387 Mass. 179, 190

(1982).

We conclude, however, that this case does not present the

same concerns. At the time of the defendant's trial, this

court's precedent clearly had established that absence of

licensure was not an essential element of any of the crimes with

which the defendant was charged. See Commonwealth v. Allen, 474

Mass. 162, 174 (2016). Rather, proper licensure explicitly was

recognized to be an affirmative defense. See Commonwealth v.

Gouse, 461 Mass. 787, 804-806 (2012). Thus, given that the

defendant did not "provide notice of intent to raise the defense

of license" prior to trial, the Commonwealth proceeded at trial

under the impression, created by this court's decisions, that a

conviction did not depend on whether the defendant possessed a

firearms license. Commonwealth v. Humphries, 465 Mass. 762, 767

(2013). It only was after the defendant's trial that the

Supreme Court issued its decision in Bruen, which in turn led

this court to overturn its previous holdings and rule that

absence of licensure is an essential element of the crimes. See

Guardado I, 491 Mass. at 690.

Because the evidence against the defendant was insufficient

only when viewed through the lens of a legal development that
 11

occurred after trial, the Commonwealth has not "been given [a]

fair opportunity to offer whatever proof it could assemble" at

trial. Burks, 437 U.S. at 16. Further, because absence of

licensure was not recognized as an essential element at the time

of trial, the resulting verdict did not resolve this element of

the offenses charged. See Commonwealth v. Hebb, 477 Mass. 409,

413 (2017), quoting Brown, 470 Mass. at 603-604 ("where a

verdict does not specifically resolve all the elements of the

offense charged, it is defective . . . and thus does not trigger

double jeopardy protections"). A new trial is warranted so that

the Commonwealth may have "one complete opportunity to convict"

the defendant under the new law. Hebb, supra, quoting Yeager v.

United States, 557 U.S. 110, 118 (2009). See United States v.

Houston, 792 F.3d 663, 670 (6th Cir. 2015) ("the government

would not be seeking a second bite at the apple but a first bite

under the right legal test").

Here, because the Commonwealth reasonably could not have

known we would reverse our holdings in Gouse, 461 Mass. at 807-

808; Humphries, 465 Mass. at 767; and Allen, 474 Mass. at 174, a

judgment of acquittal is not required by principles of double

jeopardy. See Commonwealth v. Jefferson, 461 Mass. 821, 831-832

(2012) (retrial, rather than acquittal, was appropriate remedy

where trial judge erroneously denied defendants their

opportunity to raise affirmative defense, because otherwise
 12

Commonwealth would not have "opportunity to offer evidence in

rebuttal"). Without the ability to gaze into the future of this

court's and the Supreme Court's rulings, and without any notice

from the defendant of an intent to raise the issue of licensure,

the Commonwealth simply had no reason to believe that any

evidence concerning licensure would be necessary. Were the

judgments of acquittal to stand, we would be denying the

Commonwealth a "first opportunity to prove what it did not need

to prove before but needs to prove now." United States v.

Harrington, 997 F.3d 812, 818 (8th Cir. 2021).

Neither Commonwealth v. Munoz, 384 Mass. 503 (1981), nor

Commonwealth v. Beal, 474 Mass. 341 (2016), compels a different

result. In Munoz, supra at 503, the defendant was convicted of

operating an uninsured motor vehicle. The trial judge, over the

defendant's objection and consistent with the model jury

instructions at the time, had instructed the jury that they

could presume the defendant's vehicle was uninsured unless the

defendant proved otherwise. See id. at 505, 510. This court

held that the judge erroneously relieved the Commonwealth of its

evidentiary burden, as "insurance [was] an element of the crime

charged." See id. at 507. Because the Commonwealth had not

presented evidence that the defendant's vehicle was uninsured,

we reversed the defendant's conviction and entered judgment for

the defendant. See id. at 509-510.
 13

According to the defendant, Munoz establishes that retrial

is barred on an insufficient showing of evidence on an essential

element of the offense, even if that element was established

only through precedent after trial. The defendant observes that

this court entered judgment for the defendant in Munoz despite

the Commonwealth's reliance during trial on the then-prevailing

model jury instructions, which indicated that lack of insurance

was not an essential element of the crime. See id.

We are not convinced that Munoz is on point. Munoz did not

involve the creation of a new rule that was then applied to the

defendant's case. Contrast Guardado I, 491 Mass. at 690 ("In

the wake of Bruen, this court's reasoning in [previous

decisions] is no longer valid"). In this case, a "new" rule

"dictated by [a] decision" of the Supreme Court displaced the

established and contrary law under the decisions of this court

while the defendant's case was pending on direct review. Id. at

694. By contrast, in Munoz, 384 Mass. at 507-508, the

defendant's trial involved an error that was contrary to the

state of the law in the Commonwealth at the time of the

defendant's trial. On review, this court clarified the state of

the law given existing precedent. See id. See also Diatchenko

v. District Attorney for the Suffolk Dist., 466 Mass. 655, 663-

664 (2013), S.C., 471 Mass. 12 (2015) (distinguishing creation

of "new constitutional rule" from "merely apply[ing] an
 14

established constitutional standard to a novel set of facts").

Moreover, in Munoz, supra at 505, the Commonwealth's error at

trial was due not to a reliance on a directly contradictory line

of decisions from this court, but to a reliance on model jury

instructions, which do not have the same force of law as this

court's decisions, and the defendant challenged the erroneous

instructions. The Commonwealth in Munoz therefore was required

to prove at the time of trial that the defendant's vehicle was

uninsured, and so was not owed a "second opportunity to prove

what it should have proved earlier." United States v. Weems, 49

F.3d 528, 531 (9th Cir. 1995).

In Beal, 474 Mass. at 342, 345, the defendant received a

sentencing enhancement under the Massachusetts armed career

criminal act, G. L. c. 269, § 10G (ACCA), after the Commonwealth

presented evidence of the defendant's certified convictions of

assault and battery and assault and battery against a public

official. We held, based on an intervening Supreme Court

decision, that the evidence presented at trial was insufficient

to prove that the defendant had committed a "violent crime" and

that, as a result, double jeopardy precluded a retrial. See id.

at 353-354.

Beal is not analogous. First, at the time the Commonwealth

tried the defendant in Beal, the law was unsettled as to whether

a certified conviction of assault and battery or assault and
 15

battery against a public official was sufficient under the ACCA,

and, in fact, there was reason to suggest that it was not. See

Johnson v. United States, 559 U.S. 133, 135, 140-142 (2010)

(battery offense for "[a]ctually and intentionally touch[ing]"

another did not qualify as violent crime under analogous Federal

ACCA). See also United States v. Holloway, 630 F.3d 252, 257

(1st Cir. 2011), citing Shepard v. United States, 544 U.S. 13,

26 (2005) (conviction may serve as violent crime under Federal

ACCA only if each possible type of offense of conviction

qualifies as violent crime). Second, the defendant in Beal

objected before trial to the use of certified copies of his

convictions to prove that he had committed a categorically

"violent crime," and yet the Commonwealth declined to offer

additional proof despite having the opportunity to do so. Beal,

474 Mass. at 354 n.12.3

Other jurisdictions have held that "a defendant cannot make

out a sufficiency challenge as to offense elements that the

government had no requirement to prove at trial under then-

3 We recognize that we noted in Beal, 474 Mass. at 354 n.12,
that remand was inappropriate because "the dispositive issue
. . . is sufficiency of the evidence; even if the judge had
instructed the jury properly, the result on appeal would be no
different because the evidence the Commonwealth introduced was
insufficient." To the extent that Beal suggests that retrial is
barred on double jeopardy grounds due to insufficient evidence,
no matter the state of clearly established precedent, it is no
longer valid precedent.
 16

prevailing law." United States v. Reynoso, 38 F.4th 1083, 1090-

1091 (D.C. Cir. 2022). See Harrington, 997 F.3d at 817-818;

United States v. Nasir, 982 F.3d 144, 176 (3d Cir. 2020),

judgment vacated on other grounds, 142 S. Ct. 56 (2021);

Houston, 792 F.3d at 669-670; United States v. Robison, 505 F.3d

1208, 1224-1225 (11th Cir. 2007), cert. denied sub nom. United

States v. McWane, Inc., 555 U.S. 1045 (2008); United States v.

Gonzalez, 93 F.3d 311, 322 (7th Cir. 1996); Weems, 49 F.3d at

531; People v. Ramirez, 2023 IL 128123, ¶¶ 28-31 (2023). But

see United States v. Miller, 84 F.3d 1244, 1258 (10th Cir. 1996)

("we will remand for a new trial only if the jury could have

returned a guilty verdict if properly instructed").

For example, in United States v. Ellyson, 326 F.3d 522,

525-526 (4th Cir. 2003), the defendant was convicted of

possessing child pornography under the Child Pornography

Prevention Act of 1996 (CPPA), which defined child pornography

to include any image that "appears to be [depicting] a minor

engaging in sexually explicit conduct." The jury at the

defendant's trial was instructed accordingly. See id. at 530.

Following the defendant's trial, the Supreme Court held that the

CPPA was "overbroad and unconstitutional" because its

prohibition of "virtual images" reached beyond what is

permissible under the First Amendment to the United States

Constitution. See Ashcroft v. Free Speech Coalition, 535 U.S.
 17

234, 248-249, 251, 258 (2002). The Court of Appeals for the

Fourth Circuit held that, in light of the Supreme Court's

decision in Free Speech Coalition, the jury instructions

erroneously had "permitted the jury to convict [the defendant]

on . . . [an] unconstitutional basis." Ellyson, supra at 531.

Importantly, the Court of Appeals also held that the defendant

could be retried, regardless of whether the evidence at trial

was insufficient to establish that the images in the defendant's

possession were real. See id. at 532. The court reasoned that

there were no "double jeopardy concerns," because "[a]ny

insufficiency in proof was caused by the subsequent change in

the law under Free Speech Coalition, not the government's

failure to muster evidence." Id. at 533. See United States v.

Kim, 65 F.3d 123, 126-127 (9th Cir. 1995) (appellate court

should not "examine the sufficiency of evidence of an element

that the [g]overnment was not required to prove under the law

. . . at the time of trial because the [g]overnment had no

reason to introduce such evidence in the first place").

The defendant cites decisions from several United States

Courts of Appeals to support his proposition that acquittal is

the proper remedy. See United States v. Bruno, 661 F.3d 733,

742-743 (2d Cir. 2011); United States v. Mount, 161 F.3d 675,

678 (11th Cir. 1998); United States v. Hightower, 96 F.3d 211,

215 (7th Cir. 1996); United States v. Smith, 82 F.3d 1564, 1567-
 18

1568 (10th Cir. 1996). However, a closer examination of these

cases reveals that they are inapposite.

First, the Court of Appeals for the Second Circuit in

Bruno, 661 F.3d at 743 & n.2, favorably cited much of the same

Federal precedent that we cite supra but held that the "sound

reasons" for remand did not apply where "the government conceded

that it would present no new evidence if [the defendant] were

retried." As such, a bar on retrial did not "deny the

government an opportunity to present its evidence." Id. at 743.

By contrast, here, the Commonwealth makes no such concession; to

the contrary, it seeks the opportunity to present evidence of

lack of licensure.

Second, the remaining three cases that the defendant cites

-- that is, Mount, 161 F.3d 675; Hightower, 96 F.3d 211; and

Smith, 82 F.3d 1564 -- all can be distinguished on the same

grounds. In each case, the government argued at trial that it

had presented sufficient evidence to convict the defendant

either of using or carrying a firearm in connection with drug

trafficking under 18 U.S.C. § 924(c). See Mount, supra at 678;

Hightower, supra at 215; Smith, supra at 1566. While the

defendants' cases were on appeal, the Supreme Court clarified

the "use" prong of the statute. See Bailey v. United States,

516 U.S. 137, 144 (1995), superseded by statute as stated in

Welch v. United States, 578 U.S. 120, 134 (2016). Importantly,
 19

because the juries in these cases already had been instructed

properly on the alternative "carry" prong, and because there was

insufficient evidence to convict the defendants under this

alternative theory, the proper remedy was vacating the

defendants' convictions rather than remanding for a new trial.

Mount, supra at 680-681. Hightower, supra. Smith, supra at

1568.

The defendant concedes that there are some circumstances in

which a retrial may be the appropriate remedy for a posttrial

legal development that causes the evidence at trial to be

insufficient. In particular, where the posttrial legal

development is not "constitutionally required," such that the

court has discretion to apply the legal development only

prospectively, the defendant allows that the double jeopardy

principle does not preclude a retrial. See Commonwealth v.

Ashford, 486 Mass. 450, 453 (2020) ("Where the statutory

interpretation at issue is not constitutionally required, . . .

we retain some discretion to apply the rule only

prospectively"). The defendant argues, though, that acquittal

is the proper remedy when the legal development is a new

constitutional rule that must be applied to cases pending on

direct review. See Commonwealth v. Dagley, 442 Mass. 713, 721

n.10 (2004), cert. denied, 544 U.S. 930 (2005), citing Griffith

v. Kentucky, 479 U.S. 314, 322 (1987) ("newly declared
 20

constitutional rule must be applied to cases pending on direct

review"). Because the Supreme Court's decision in Bruen, 142

S. Ct. at 2122, established a new constitutional rule, the

defendant contends, a retrial here would violate the double

jeopardy principle.

We are not persuaded. The defendant's analysis appears to

conflate, on the one hand, whether this court was

constitutionally required to apply to his case the new rule in

Bruen, 142 S. Ct. at 2122, and, on the other hand, what the

proper remedy is for a violation of the constitutional rule.

Because Bruen was decided after the defendant's trial but while

the case was pending on appeal, he is entitled to the benefit of

the new rule; that is, the right to have the Commonwealth prove

that he lacked a license. The cited propositions from Ashford

and Dagley do not assert that retrial is inappropriate in any

instance where a new constitutional rule is applied to a case

pending on direct review. See Ellyson, 326 F.3d at 533 (proper

remedy for new rule mandated by Supreme Court's intervening

interpretation of First Amendment was retrial).

3. Conclusion. For the reasons discussed, we conclude

that this court erred when it remanded to the Superior Court for

entry of judgments of not guilty on the indictments charging

unlawful possession of a firearm, unlawful possession of

ammunition, and unlawful possession of a loaded firearm.
 21

Accordingly, we vacate that portion of our prior order and

remand to the Superior Court for a new trial on those

indictments.

So ordered.