Whether the Double Jeopardy Clause permits a retrial when the record from a first trial is insufficient to support a conviction based on a legal development that occurred after the initial trial was complete

in this case is whether there is an exception to this Court’s holding in Burks when there was a change in the law as to the elements of the offense after the first proceeding was complete. a. Under Massachusetts law, it is a crime to “own[], possess] or transfer[] a firearm, rifle, shotgun or ammunition without complying with” specified licensing requirements. Mass. G.L. ch. 269 s. 10(h)(1). For many years, the SJC held that licensure was an affirmative defense under this statute, such that the Commonwealth could obtain a conviction solely by proving possession of a firearm. E.g., Commonwealth v. Allen, 48 N.E.3d 427 (Mass. 2016). Applicant Carlos Guardado was convicted of unlawful possession of a firearm and ammunition under this regime: The jury that convicted him was “not instructed that, to find him guilty of unlawful possession of a firearm, the Commonwealth had to prove that he did not have a firearms license.” Ex. A at 10. Moreover, the Commonwealth conceded that “it did not present evidence at trial to indicate that the defendant lacked a firearms license.” Ex. C at 4. Mr. Guardado appealed his conviction, arguing (as relevant here) that, in light of this Court’s decision in New York State Rifle & Pistol Ass'n v. Bruen, 142 8. Ct. 2111 (2022), the SJC was required to treat lack of licensure as an element, not an affirmative defense. Ex. Aat 10. The SJC agreed: It reversed its prior precedent and held “that the defendant’s rights under the Second Amendment and his rights to due process were violated when he was convicted of unlawfully possessing [a firearm and] ammunition although the jury were not instructed that licensure is an essential element of the crime.” Ex. A at 14. Moreover, the SJC concluded that the proper remedy was that the case be remanded “for entry of judgments of not guilty on those indictments.” Ex. A at 14. That remedy was consistent with the SJC’s prior decision in Commonwealth v. Beal, 52 N.E.3d 998, 1010 & n.12 (2016), which held that, when the trial evidence was insufficient to support a conviction under the correct legal standard, Double Jeopardy barred a retrial even though the trial evidence was sufficient to support a conviction under the legally erroneous instructions given to the jury. b. The Commonwealth moved for reconsideration on the Double Jeopardy issue, arguing that it is entitled to try Mr. Guardado for a second time even though the record in the first trial contains no evidence that could support a finding that Mr. Guardado did not have a license to possess a firearm or ammunition. The SJC granted the Commonwealth’s motion for reconsideration and held that its prior decision in Beal is “no longer valid precedent.” Ex. C at 6, 8n.3. Specifically, the SJC held that the Double Jeopardy Clause does not bar a retrial when “the evidence against the defendant was insufficient only when viewed through the lens of a legal development that occurred after trial.” Ex. C at 5. It therefore “remand|[ed] to the Superior Court for a new trial.”! Ex. C at 8. c. The courts of appeals and state supreme courts are divided concerning whether the Double Jeopardy Clause permits a retrial when the record in the first trial is insufficient to support a conviction based on a legal development that occurred after that first trial was complete. Multiple courts of appeals have held that a retrial is not permitted in that circumstance. E.g., United States v. Hightower, 96 F.3d 211, 215 (7th Cir. 1996) (“where the evidence in the record will not sustain a conviction under the law ... as the Supreme Court has now authoritatively interpreted it,” the “only step to be taken ... is to vacate the conviction ... and to remand for dismissal of those charges” even though the evidence was sufficient to sustain a conviction based on the law at the time of trial); United States v. Miller, 84 F.3d 1244, 1258 (10th Cir. 1996) (“we will remand for a new trial only if the jury could have returned a guilty verdict if properly