Opinion
16-P-475
03-03-2017
COMMONWEALTH v. John CASSIDY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of unlawful possession of an assault weapon, G. L. c. 140, § 131M ; four counts of unlawful possession of a large capacity feeding device, G. L. c. 269, § 10(m ) ; unlawful possession of a large capacity weapon, G. L. c. 269, § 10(m ) ; and unlawful possession of ammunition, G. L. c. 269, § 10(h ). On appeal he argues that his convictions under G. L. c. 269, § 10(m ), should be reversed because the Commonwealth failed to prove that he knew of the "large capacity" characteristics of the weapon and feeding devices in his possession. He further argues that Massachusetts's firearms licensing scheme is void for vagueness and that it violates the Second Amendment to the United States Constitution and art. 17 of the Massachusetts Declaration of Rights. We affirm.
The defendant was represented by counsel at trial but is representing himself on appeal.
The facts are not in dispute. The defendant was born and raised in Texas, where he purchased a nine-millimeter handgun and an AK-47 style firearm. In 2010 he was accepted to law school in Massachusetts. Before the start of the school year, he drove his car from Texas to Massachusetts, transporting the weapons with him.
In March of 2011, police executed a search warrant for the defendant's apartment in Dartmouth and found an AK-47 style firearm with a clip attached to it; two ammunition magazines, one loaded and one unloaded; a loaded nine-millimeter pistol; and boxes of assorted ammunition totaling over 150 rounds. The defendant admitted during a postarrest interview, and then again at trial, that he transported the weapons from Texas but never obtained any firearms licenses in Massachusetts.
The defendant's arguments on appeal provide no basis to reverse his convictions. First, we reject his contention that, to obtain the five convictions under G. L. c. 269, § 10(m ), the Commonwealth had to prove that he had specific knowledge that he was in possession of a firearm and feeding devices qualifying as "large capacity." The only proof required, rather, was that (1) the defendant knowingly possessed the firearm and feeding devices, and (2) the firearm and feeding devices met the definition of "large capacity" set out in G. L. c. 140, § 121. See Commonwealth v. Young , 453 Mass. 707, 713 nn.9 & 10 (2009). There was no requirement that the Commonwealth "prove that the defendant knew that the physical characteristics of the firearm he possessed ... rendered it subject to regulation." Commonwealth v. O'Connell , 432 Mass. 657, 663 (2000). Nor was there any requirement that the Commonwealth "prove that the defendant knew that a license was necessary to lawfully possess the firearm." Young , 453 Mass. at 713 n.9. Thus, the defendant's claimed ignorance of the law does not constitute grounds for reversal. See O'Connell , 432 Mass. at 663–664 (affirming conviction for possession of "sawed-off shotgun" despite defendant's asserted "ignorance vis-à -vis that firearm's dimensions").
A "large capacity feeding device" is defined as "(i) a fixed or detachable magazine, box, drum, feed strip or similar device capable of accepting, or that can be readily converted to accept, more than ten rounds of ammunition or more than five shotgun shells; or (ii) a large capacity ammunition feeding device as defined in the federal Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. section 921(a)(31) as appearing in such section on September 13, 1994." G. L. c. 140, § 121. A "large capacity weapon" is defined as "any firearm, rifle or shotgun: (i) that is semiautomatic with a fixed large capacity feeding device; (ii) that is semiautomatic and capable of accepting, or readily modifiable to accept, any detachable large capacity feeding device; (iii) that employs a rotating cylinder capable of accepting more than ten rounds of ammunition in a rifle or firearm and more than five shotgun shells in the case of a shotgun or firearm; or (iv) that is an assault weapon." Ibid .
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Second, the defendant fails to show that the licensing scheme is void for vagueness. The defendant does not point to any particular statute, let alone any particular words or phrases, to support his contention that the scheme is vague. Instead, relying on a statistical study relating to prosecution rates of firearms offenses in Massachusetts, the defendant claims that "from 2006 to 2008 half of the firearm offenses [were] not even prosecuted," demonstrating, he says, that Massachusetts is "arbitrary at enforcing its gun offenses." But even putting aside that this study is not part of the trial record, the statistics cited by the defendant are not relevant to whether the statutory scheme is void for vagueness. To succeed on a vagueness challenge, the defendant must identify statutory language that fails to "define the criminal offense with sufficient definitiveness that ordinary people can understand what conduct is prohibited." Commonwealth v. McGhee , 472 Mass. 405, 414 (2015), quoting from Commonwealth v. Zubiel , 456 Mass. 27, 30 (2010). The defendant has identified no such language at all, and so his vagueness challenge fails at the threshold.
Finally, we reject the defendant's argument that "Massachusetts's gun licensing scheme is nothing more than an excise tax on a fundamental right: private gun ownership," in violation of the Second Amendment and art. 17 of the Declaration of Rights. The Second Amendment "does not prohibit laws regulating who may purchase, possess, and carry firearms, and where such weapons may be carried." Chardin v. Police Commr. of Boston , 465 Mass. 314, 323 (2013), citing District of Columbia v. Heller , 554 U.S. 570, 626–627 (2008). See Commonwealth v. McGowan , 464 Mass. 232, 240–241 (2013). Furthermore, "[t]here is no right under art. 17 of the Declaration of Rights of the Massachusetts Constitution for a private citizen to keep and bear arms and thus to require that a citizen have a license to do so is not unconstitutional." Chief of Police of Shelburne v. Moyer , 16 Mass. App. Ct. 543, 547 (1983), citing Commonwealth v. Davis , 369 Mass. 886 (1976).
Judgments affirmed .