Source: Superior Court Model Criminal Jury Instructions
Publication Date: May 13, 2024
Statute: G.L. c. 269, § 10(h)(1)
G.L. c. 269, § 10(h)(1): "Whoever ... possesses ... ammunition without complying with the provisions of [G.L. c. 140, § 129C (FID card)] shall be punished."
DFT is charged with unlawfully possessing ammunition on [DATE].
The Commonwealth must prove four [five] elements beyond a reasonable doubt:
If evidence of exemption:
5. DFT did not qualify for a statutory exemption from the requirement to have an LTC or FID card to possess ammunition.
Knowledge element (fn. 2): Knowledge that what one possesses is ammunition is an element of the offense. Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 421 (2019), citing Commonwealth v. Johnson, 461 Mass. 44, 53 (2011).
Nonlicensure as element (fn. 3): After Guardado, 491 Mass. 666, 686-690 (2023), the offense of unlawful ammunition possession requires the Commonwealth to prove lack of licensure. Guardado, 491 Mass. at 692-693. A person may lawfully possess ammunition with either an LTC or an FID card. Therefore, the Commonwealth must prove the defendant had neither a license to carry nor an FID card.
Exemptions remain affirmative defenses (fn. 4): Even after Guardado, exemptions under G.L. c. 140, § 129C remain affirmative defenses. Guardado, 491 Mass. at 685-686. See also Commonwealth v. Harris, 481 Mass. 767, 773 (2019) (exemption under § 129C(h) for nonresidents traveling through MA with rifles, shotguns, and ammunition is an affirmative defense).
Same as firearm possession instruction. Direct physical control or constructive possession (knowledge + ability to control + intent to control). Brzezinski, 405 Mass. 401, 409 (1989). Mere presence near an object is not possession. Joint possession is sufficient.
"Ammunition" means cartridges or cartridge cases, primers (igniter), bullets, or propellant powder designed for use in any firearm, rifle, or shotgun. G.L. c. 269, § 10(o).
Commonwealth must prove DFT knew the object was ammunition. May consider DFT's actions, words, surrounding circumstances. Commonwealth does not have to prove DFT knew the object met the legal definition of ammunition.
Commonwealth must prove DFT did not have a valid LTC or a valid FID card at the time of possession. This is now an element (post-Guardado), not an affirmative defense.
Commonwealth does not have to prove DFT knew the law required an LTC or FID card. Evidence of ignorance of licensing requirements is not relevant to deliberations.