District Court Instruction 7.625: Possession of Ammunition

Source: Criminal Model Jury Instructions for Use in the District Court
Revised: July 2023
Statute: G.L. c. 269, § 10(h)

Scope note: Section 10(h) also punishes "owning" or "transferring" possession and applies to firearms, rifles, shotguns, and ammunition. The model instruction may be adapted for other fact patterns.

Elements (Post-Guardado)

The Commonwealth must prove four (five) things beyond a reasonable doubt:

• The defendant possessed an item;
• The item meets the legal definition of ammunition;
• The defendant knew they possessed ammunition; and
• The defendant did not have a valid license to possess ammunition.

Fifth element (if evidence of exemption):
5. The defendant did not qualify for one of the statutory exemptions. G.L. c. 140, § 129C.

Element 1: Possession

Direct physical control: Standard possession.

Constructive possession: Object in person's possession without physical custody if they have:
- Knowledge of the object;
- The ability to exercise control, directly or through another person; and
- The intent to exercise control.

Costa, 65 Mass. App. Ct. 227, 234 (2005); Sann Than, 442 Mass. 748, 755 (2004).

Guilt by association: Possession not proved by association with person who controlled item.

Mere presence not enough: Must be augmented by additional inculpatory evidence. Romero, 464 Mass. 648, 654 (2013); Brown, 401 Mass. 745, 747 (1988).

Element 2: Legal Definition of Ammunition

Ammunition is defined as cartridges or cartridge cases, primers (igniters), (tear gas cartridges), bullets or propellant powder designed for use in any firearm, rifle or shotgun. G.L. c. 269, § 10(o).

Element 3: Knowledge

Commonwealth must prove defendant knew they possessed ammunition. May examine defendant's actions, words, and surrounding circumstances. Marrero, 484 Mass. 341, 346-347 (2020); Sampson, 383 Mass. 750, 762 (1981); Bacon, 374 Mass. 358, 359 (1978); Jackson, 369 Mass. 904, 916-917 (1976); Boone, 356 Mass. 85, 87 (1969); Papa, 17 Mass. App. Ct. 987, 987-988 (1984).

Element 4: Nonlicensure (Post-Guardado)

Commonwealth must prove defendant had neither a valid license to carry nor a firearm identification card at the time of possession.

Because ammunition may be lawfully possessed with either an LTC or FID, the Commonwealth must prove the defendant had neither. G.L. c. 140, §§ 129B-C, 131. Guardado, 491 Mass. 666, 668 (2023).

Supplemental Instruction: Knowledge of License Requirement

Commonwealth not required to prove defendant knew the law required an LTC or FID to possess ammunition. Evidence of ignorance is not relevant to deliberations.

Notes

Duplicative convictions (Note 2): Conviction for unlawful ammunition possession is duplicative of conviction for unlawful possession of a loaded firearm where all ammunition at issue is loaded in the firearm. Johnson, 461 Mass. 44, 53-54 (2011) (double jeopardy violation). Distinguishable when ammunition is found both in the firearm and elsewhere. Id. at 53.

Nonlicensure as element (Note 3): Post-Guardado, Commonwealth must prove lack of licensure. Guardado, 491 Mass. 666, 668, 690 (2023). Applies prospectively and to cases active on direct review as of June 23, 2022 (date of Bruen).

Proof of absence of license (Note 4): Defendant's statements; certified government records from local PD or Firearms Records Bureau. Confrontation Clause likely prohibits agency certificates without testifying witness. Guardado, 491 Mass. at 695 (Lowy, J., concurring).

Notice of affirmative defenses (Note 1): Mass. R. Crim. P. 14(b)(3) requires advance notice.

Constructive Possession Case Summaries (from endnotes)

Sufficient evidence:
- Santos, 95 Mass. App. Ct. 791, 800 (2019): car controlled by defendant, shotgun partially visible and within reach
- Albano, 373 Mass. 132, 134-136 (1977): gun in plain view, suspicious behavior
- Bailey, 29 Mass. App. Ct. 1007, 1008 (1990): gun near feet, broken-into car, escape attempt
- Montgomery, 23 Mass. App. Ct. 909, 910 (1986): gun on defendant's side, matching ammunition clip
- Lucido, 18 Mass. App. Ct. 941, 943 (1984): gun in glove compartment with personal letters
- Donovan, 17 Mass. App. Ct. 83, 85-86 (1983): gun under seat surrounded by defendant's property

Insufficient evidence:
- Brown, 401 Mass. 745, 747 (1988): stolen car, guns under passenger seat, no admissions
- Almeida, 381 Mass. 420, 422-423 (1980): gun inside covered console of borrowed auto
- Boone, 356 Mass. 85, 87 (1969): defendant was passenger, gun under driver's seat
- Hill, 15 Mass. App. Ct. 93, 94-97 (1983): gun inside woman's purse at male passenger's feet