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13-P-768                                             Appeals Court

             COMMONWEALTH    vs.   CHRISTOPHER GOLDING.


                            No. 13-P-768.

           Middlesex.       May 5, 2014. - July 23, 2014.

             Present: Grasso, Grainger, & Milkey, JJ.

Firearms. Controlled Substances.     Constitutional Law, Vagueness
     of statute.



     Indictments found and returned in the Superior Court
Department on April 30, 2009.

     The case was heard by Thomas P. Billings, J.


     Stephen Neyman for the defendant.
     Hallie White Speight, Assistant District Attorney (David
Solet, Assistant District Attorney, with her) for the
Commonwealth.


     GRAINGER, J.   Following a jury-waived trial in the Superior

Court, the defendant was convicted of possession of a machine

gun while in the commission of a felony (G. L. c. 265, § 18B),

two counts of possession of a machine gun (G. L. c. 269,
                                                                    2


§ 10[c]), and possession of a silencer (G. L. c. 269, § 10A). 1

The judge found that the defendant had participated in an

exchange of drugs for firearms with an undercover special agent

of the Bureau of Alcohol, Tobacco, Firearms and Explosives

(ATF).   We are unpersuaded by the numerous evidentiary,

statutory, and constitutional arguments the defendant raises on

appeal, and affirm the judgments.

     Factual background.   The judge could have found the

following:   On the basis of information received from a

confidential informant, an ATF agent arranged for the controlled

purchase of a hand grenade from the defendant.   The grenade that

the defendant sold to the informant contained no live

explosives; confronted thereafter with the defective nature of

his merchandise, the defendant offered to "make up the grenades"

in a meeting with the informant and an undercover ATF agent at

which the participants discussed the possibility of supplying

machine guns and a silencer to the defendant.    The negotiations

began with a proposed exchange of weapons; thereafter the

defendant offered to provide marijuana for the machine guns.

The participants eventually agreed that the defendant would

provide payment for the firearms in the form of OxyContin pills.


     1
       Prior to trial, the defendant also pleaded guilty to
trafficking in oxycodone over fourteen grams, G. L. c. 94C,
§ 32E(c)(1), and to four counts of distribution of a class B
substance, G. L. c. 94C, § 32A(a).
                                                                     3


After the defendant had taken possession of the firearms, he was

arrested.    We refer to additional facts as they pertain to the

issues raised on appeal.

     Sufficiency of the evidence.    The defendant asserts that

the evidence was insufficient to support his conviction of

possession of a machine gun while in the commission of a felony,

G. L. c. 265, § 18B. 2   The basis of his argument is that the

defendant's receipt of the machine guns from the undercover

officer as payment for drugs followed the defendant's transfer

of drugs to the officer by a second or so. 3   On this sequence of

events the defendant claims that because the felonious transfer

of drugs to the officer was completed an instant before he took

possession of the firearms, he cannot be charged with possession

of the machine guns "while" committing a felony.    Under the

defendant's approach a conviction would require distrustful

participants to a guns-for-drugs exchange to relinquish what

they were trading only when they both also held what they were

receiving.    We consider this approach, which relies on




     2
       The underlying felony was trafficking in oxycodone, to
which he had pleaded guilty. See note 1, supra.
     3
       The officer's report stated that he "placed the pills in
his jacket pockets and began showing Golding the firearms in the
bag."
                                                                    4


incidental timing that is entirely immaterial to the transaction

to which the defendant agreed, to be artificial and strained. 4

     As the Commonwealth has argued, without the guns there

would have been no drug transaction.   See Commonwealth v. Hines,

449 Mass. 183, 190 (2007) (requirement of "[s]ome nexus" between

the firearm and the felony in terms of "proximity and logical

relation").   The defendant's accomplished intention to engage in

a contemporaneous exchange of drugs for firearms satisfies the

statute and provides the required element of "some nexus"

between the possession of the firearm and the underlying felony.

     Nexus required by G. L. c. 265, § 18B.   In a related

argument, the defendant contends that the nexus required by the

statute is lacking because it was the undercover officer, and

not the defendant, who proposed exchanging guns for drugs. 5



     4
       This is not a case in which a significant amount of time
transpired after the delivery of the drugs, and we do not
address such a possibility.
     5
       In fact, the record establishes that it was the defendant
who introduced drugs into a proposed weapons exchange.
Regardless, the defendant does not contend that he was entrapped
into committing a crime that he was not otherwise disposed to
commit. We are not confronted with the potentially troubling
situation where an undercover police officer, an agent of the
Commonwealth, brings a firearm to a drug deal as payment,
transforming the nature of the crime, and thereby enhancing the
punishment for the underlying felony of drug distribution by an
additional five or ten years. The defendant's conduct falls
within the literal sweep of the statute, and the enhanced
punishment is appropriately left to Legislative determination.
                                                                    5


Regardless of the legal basis invoked to support this argument, 6

it is unavailing here.   The evidence indicated that negotiations

progressed from a potential weapons swap to the defendant's

proposal to provide marijuana in exchange for the weapons, and

culminated with an agreement based on his promise to commit a

felony through the delivery of oxycodone.   There is no authority

for the proposition that the mutual agreement to change the form

of compensation for a weapons purchase affects the underlying

mens rea.   The Commonwealth merely needed to demonstrate that

the defendant knew he was possessing a firearm.   See

Commonwealth v. Jackson, 369 Mass. 904, 916 (1976) (conviction

under G. L. c. 269, § 10[a], prohibiting unlicensed possession

of firearms on a "strict liability" basis, upheld where "the

accused knew that he was carrying a firearm").

     The argument that the fleeting opportunity to inspect the

weapons was insufficient to qualify as possession is also

unavailing.   We decline to give serious consideration to the

suggestion that the officer was required to give the defendant a

chance to operate a machine gun during a controlled undercover

exchange of drugs for weapons, and immediately before effecting




     6
       The defendant's brief alternatively refers to principles
of mens rea, and an inability to enjoy any possessory benefit
from the receipt of the machine guns due to his arrest at the
scene.
                                                                     6


an arrest.    See Commonwealth v. Lacend, 33 Mass. App. Ct. 495,

498 (1992).

     Proof of weapons' characteristics.    In a corollary to the

defendant's argument that the inability to inspect the weapons

he received as payment for the drugs defeats the element of

possession necessary for conviction, he also maintains that the

very brief period he handled the machine guns negates the

necessary knowledge on his part that these were firearms.

Absent inspection, he claims, he could not know that he was in

possession of an operable firearm as defined by G. L. c. 140,

§ 121.   He does not dispute that he intended to acquire firearms

as defined by the statute, and he does not challenge the

sufficiency of the evidence with respect to the operability of

the machine guns he received.    His lack of opportunity to verify

the guns' operability at the moment of receipt does not defeat

the element of possession.

     Interpretation of G. L. c. 265, § 18B.    The defendant

asserts that the judge's interpretation of G. L. c. 265, § 18B,

was predicated on a misinterpretation of the analogous Federal

provision, 18 U.S.C. § 924(c) (2006).    The language of the two

statutes differs, however, and we find no error in the judge's

application of G. L. c. 265, § 18B.    Our statute criminalizes

possession at the time a felony is committed, regardless whether

the weapon is employed to commit the felony.    We discern no
                                                                       7


direct relevance in Federal Circuit and United States Supreme

Court decisions interpreting the requirement that a firearm be

possessed "in furtherance" of the underlying crime, or that the

underlying crime "be committed by the use of a deadly or

dangerous weapon," 18 U.S.C. § 924(c)(1)(A) (2006).    Our cases

require only some nexus between the firearm and the underlying

felony.   See Commonwealth v. Hines, supra.   As stated, the

evidence here supports the finding of the necessary nexus.

     Contract law principles.    The defendant asserts that the

judge erroneously imported principles of contract law to

establish the relationship between the drugs and the guns

required for a conviction.   His argument is that the law does

not recognize an illegal contract, hence parties to such an

arrangement have no ability to enforce the terms, hence there is

no element of "consideration" linking firearms to this drug

transaction.   The judge rightly observed that the defendant

agreed to accept guns in payment for drugs; the illegality of

the exchange does not defeat the application of the statute.      To

the contrary, it is an essential element of the crime.

     The issue of vagueness.    The defendant argues that the

statute is defectively vague, both on its face and as applied to

him, under the United States Constitution and the Massachusetts
                                                                   8


Declaration of Rights. 7   He supports his argument by offering

examples of unintended application. 8   This argument ignores

"[s]everal principles applicable to vagueness challenges . . . .

Where, as here, the challenge involves no claim that an

overbroad statute threatens First Amendment interests, a

defendant is entitled to assert only his rights and not those of

others who might be affected by the challenged statute in some

different way."   Commonwealth v. Jasmin, 396 Mass. 653, 655

(1986).   See Commonwealth v. Hendricks, 452 Mass. 97, 98 n.1

(2008).   Consequently, the defendant cannot seek relief on the

basis that the statue is unconstitutional on its face.

     His argument also ignores the nexus requirement adopted by

the case law.   "[T]he Legislature's obvious intention [is] to

'punish the underlying felonies more seriously when a firearm is

involved.'"   Commonwealth v. Hines, supra at 189, quoting from

Commonwealth v. Hawkins, 21 Mass. App. Ct. 766, 769 (1986)

(emphasis supplied).   In this case the close connection between

the underlying felony and the firearm is beyond dispute.

     7
       The defendant did not raise a constitutional challenge to
the statute in the trial court. Consequently, our consideration
is limited to determining whether there was a substantial risk
of a miscarriage of justice. See Commonwealth v. Chou, 433
Mass. 229, 238 (2001).
     8
       For example, he posits that under G. L. c. 265, § 18B, a
licensed gun owner who is convicted of tax evasion could be
convicted of possession of a firearm "while in the commission
. . . of an offense which may be punished by imprisonment in the
state prison."
                      9


Judgments affirmed.
