Heard: April 12, 2019.
Firearms. Judicial Estoppel. Practice, Criminal, Double
jeopardy, Required finding. Constitutional Law, Double
jeopardy. Complaint received and sworn to in the Quincy
Division of the District Court Department on December 26,
to dismiss and for reconsideration were heard by Diane E.
Moriarty, J., and the case was reported by her.
A. Pidani for the defendant.
Susanne M. O'Neil, Assistant District Attorney, for the
Present: Vuono, Wolohojian, & Hand, JJ.
case was reported to us by a judge of the District Court
(motion judge) pursuant to Mass. R. Crim. P. 34, as amended,
442 Mass. 1501 (2004). As we explain in greater detail below,
a different District Court judge (trial judge) entered a
required finding of not guilty on a complaint charging the
defendant with carrying a loaded firearm in violation of G.
L. c. 269, § 10 (n); the defendant was later charged in
a second complaint alleging a violation of G. L. c. 269,
§ 10 (a.), carrying a firearm without a license. The
second complaint was dismissed on double jeopardy grounds,
the Commonwealth moved for reconsideration. After a hearing,
the motion judge took the matter under advisement. She
subsequently issued the rule 34 report, which included the
procedural history of the two complaints and rulings of law
outlining the judge's revised legal conclusion that the
Commonwealth could proceed with its prosecution on the second
April 4, 2017, the defendant was arraigned on a single count
of carrying a loaded firearm in violation of G. L. c. 269,
§ 10 (n) (first complaint) .'
trial on the first complaint was held on December 14, 2017.
At the close of the Commonwealth's evidence, the
defendant moved for a required finding of not guilty, arguing
that without an accompanying charge of one of the predicate
offenses to § 10 (n), either G. L. c. 269, § 10
(a.) (carrying a firearm without a license), or G. L. c. 269,
§ 10 (c0 (possession of a machine gun or sawed-off
shotgun), "it would be impossible" for the
Commonwealth to prove a violation of § 10 (n). In
response, the Commonwealth asked the trial judge to
"conform to the evidence" by instructing the jury
on a charge of violation of G. L. c. 269, § 10 (a.)
After that request was denied, the Commonwealth moved to
amend the complaint. Defense counsel objected to any
amendment on the ground that § 10 (a.) is not a lesser
included offense of § 10 (n), and argued that the
"only proper avenue" was for the trial judge to
enter a required finding of not guilty. Defense counsel
noted that if the Commonwealth later wished to bring a new
complaint including a § 10 (a.) charge, it was
"certainly free to do so, but [the defendant's]
argument would be that there are double jeopardy implications
because we have now tried the matter." The trial judge
allowed the defendant's motion for a required finding of
not guilty on the charge of violating G. L. c. 269, § 10
There is no dispute that the judge allowed the motion for a
required finding of not guilty based on the
Commonwealth's charging error, and not because the
evidence was insufficient to prove a violation of either
§ 10 (n) or § 10 (a.) .
a few weeks of the conclusion of the defendant's trial,
the Commonwealth obtained a second complaint, which charged
the defendant with one count of violating G. L. c. 269,
§ 10 (a.), carrying a firearm without a license, based
on the same conduct underlying the first complaint. In lieu
of bail, the defendant was released subject to pretrial
electronic monitoring and a curfew. Initially, the motion
judge allowed the defendant's motion to dismiss the
second complaint on the basis that double jeopardy precluded
the Commonwealth from charging the defendant with violating
§ 10 (a.) in light of the not guilty finding that had
entered on the violation of § 10 (n) charged in the
first complaint. The Commonwealth moved for reconsideration.
Taking the motion under advisement, the judge prepared a
revised legal analysis concluding that in the circumstances
of this case, the doctrine of judicial estoppel applied,
defeating the defendant's protection against double
jeopardy. The judge thereupon reported the following
four questions to us:
"1. Is G. L. c. 269, § 10 (n)[, ] a freestanding
"2. Is G. L. c. 269, § 10 (a.) [, ] a lesser
included offense of G. L. c. 269, § 10 (n) under
Morey v. Commonwealth, 108 Mass. 433
"3. In the context of double jeopardy, is the doctrine
of judicial estoppel applicable as ...