Commonwealth v. Derek Mancevice.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-909

COMMONWEALTH

vs.

DEREK MANCEVICE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Derek Mancevice, appeals from his conviction

of possession of ammunition without a license, pursuant to G. L.

c. 269, § 10 (h) (1). His principal argument is that he was

convicted in violation of the Second Amendment to the United

States Constitution, because he had a lawfully issued license to

carry firearms and ammunition that he claims was wrongfully

suspended by the licensing officer, the chief of police of

Barre, six days before the defendant was found to be still in

possession of ammunition. Relying on New York State Rifle &

Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) (Bruen), the defendant

argues that the suspension violated the Second Amendment because

the "suitability" requirement of G. L. c. 140, §§ 131 (d) and
(f), and related provisions (as in effect in 2018), granted too

much discretion to the licensing authorities to suspend firearm

licenses, and thus were unconstitutional either on their face or

as applied.1

For the reasons that follow, we affirm the defendant's

conviction. As to the defendant's facial challenge, to be

unconstitutional on their face, G. L. c. 140, §§ 131 (d) and

(f), would have had to violate the Second Amendment in all of

their applications. See United States v. Rahimi, 602 U.S. 680,

693 (2024). The statutes did not fail under this test, because

they provided for suspension of licenses for many valid reasons,

such as when a person has been convicted of a felony or

determined to be a threat to another person pursuant to G. L.

c. 209A. See G. L. c. 140, §§ 131 (d), (f), as amended through

St. 2018, c. 123, §§ 11-12. Licenses to carry may certainly be

suspended for those reasons, or any time the license holder has

been "found by a court to pose a credible threat to the physical

1 As discussed in more detail infra, the defendant's
arguments focus in particular on the "may issue" language of
§§ 131 (d) and (f), as those sections existed in 2018 and were
applicable to his case. The "may issue" language has since been
removed from the statute by amendment, although the
"suitability" requirement remains. See St. 2022, c. 175, §§ 7,
9, 10, 12. This memorandum and order addresses the statutes as
they existed at the time of the defendant's license suspension
and criminal acts in 2018.

2
safety of another," as the United States Supreme Court recently

held in Rahimi, supra at 702.

Nor has the defendant mounted a meritorious as-applied

challenge, because as framed his as-applied challenge is not

materially different from his facial challenge. Put

differently, the defendant has not raised a specific challenge

to the reason for the suspension. And in any event, here the

defendant's license to carry was suspended under G. L. c. 140,

§ 131 because he was charged with the crime of witness

intimidation, G. L. c. 268, § 13B, and also, apparently, because

a few weeks after he was charged with witness intimidation, he

was involved in an altercation at a local market, at which he

brandished a firearm. Suspending a license to carry under those

circumstances fits comfortably within the Supreme Court's

approval of "firearm laws [that] . . . prevent[] individuals who

threaten physical harm to others from misusing firearms,"

Rahimi, 602 U.S. at 690. Accordingly, the defendant has shown

no constitutional infirmity in his conviction. As we discern no

merit in the other arguments the defendant raises, we affirm.

Background. In 2018, the defendant Mancevice had a license

to carry firearms issued by the police chief of Barre. On July

3, 2018, Mancevice was charged with intimidation of a witness

under G. L. c. 268, § 13B. A separate incident occurred a few

weeks later, on August 25, 2018, when witnesses claimed

3
Mancevice was involved in an altercation in which he brandished

a firearm.

The Barre chief of police suspended Mancevice's license to

carry two days after the second incident, on August 27, 2018.

The chief of police did so through a notification sent by

certified mail, which Mancevice received on September 6. The

notification stated that the reason for the suspension was that

Mancevice was "deemed to be an unsuitable person" because

"[l]icensee has been charged with a felony under [G. L. c. 268,

§ 13B]." Mancevice was informed that he was required to turn

over to the Barre police department "without delay, your

firearms license(s) and all firearms, rifles, shotguns, machine

guns, large capacity feeding devices, and ammunition which you

have in your possession or which are owned by you" (emphasis

added). The notification further informed Mancevice that his

failure to do so would be a crime.

On September 10, four days after receiving the notice,

Mancevice went to the Barre police station and turned over

various firearms. He did not at that time turn over his license

to carry, nor any ammunition. On September 11, Mancevice

returned to the police station, where a Barre police officer,

William Recos, informed Mancevice that he still needed to turn

over his license to carry. Mancevice then tendered his license

to carry, stating he was doing so "under protest." After

4
Mancevice left, Recos printed a list of all firearms registered

to Mancevice and determined that there were six firearms still

outstanding. Recos thereafter received a report that Mancevice

was attempting to transfer certain firearms and ammunition to

others. Based on this information, Recos obtained a search

warrant for Mancevice's residence.

The Barre police executed the search warrant on September

12. The police found alleged ammunition strewn throughout

Mancevice's apartment, as well as pieces of firearms including

barrels, stocks, and receivers. During the search, Mancevice

arrived and was advised of his Miranda rights. Mancevice was

asked why he had not turned over his ammunition, and he

responded that he was not able to turn over "every little piece

that he owned." Mancevice was also asked what "without delay"

meant to him, and he stated "as soon as humanly possible."

Mancevice was charged with multiple counts of (1) failure

to surrender firearms and failure to surrender a license to

carry or possess firearms, G. L. c. 269, § 10 (i), as amended

through St. 2014, c. 284, § 90, and (2) possession of ammunition

without a firearm identification (FID) card, G. L. c. 269,

§ 10 (h) (1), as amended through St. 2014, c. 284, § 90.2

2These included twenty-one counts of failure to surrender a
license to carry firearms or failure to surrender firearms,
twenty of which were later dismissed, and two counts of

5
Mancevice filed two separate motions to dismiss the charges,

each of which raised arguments based on the Second Amendment,

and each of which was denied. In April of 2019 -- prior to the

Supreme Court's decision in Bruen -- Mancevice raised two

principal arguments: first, that G. L. c. 269, § 10 (i), which

criminalizes the knowing failure to surrender a suspended

license, is unconstitutional on its face, because it "violates

the Second Amendment's right to possess arms in the home for

self-defense." The focus of this argument was that the police

had not provided Mancevice with adequate time to comply with the

suspension order, because they had executed a search warrant, in

his home, within days of the suspension decision.3 Second,

Mancevice argued that § 10 (i) was unconstitutional as applied

to him, because the statute's requirement of surrender "without

delay" was too vague under the circumstances, and given the

Second Amendment rights at stake.

Subsequently, in 2022, after Bruen was decided, the

defendant filed a "renewed" motion to dismiss under the Second

possession of ammunition without an FID card, one of which was
later dismissed.

3 Mancevice also argued that under G. L. c. 140, § 129D, as
amended through St. 2014, c. 284, §§ 42-44, and G. L. c. 140,
§ 131 (f), as amended through St. 2018, c. 123, §§ 11-12, he was
entitled to a ninety-day period to surrender his firearms, and
therefore he could not have violated the surrender requirement
as a matter of law.

6
Amendment. That motion focused on Bruen's holding that a

firearm regulation must be "consistent with the Nation's

historical tradition" of such regulation, Bruen, 597 U.S. at 24,

and argued that the prohibition on the unlicensed possession of

ammunition was not supported by historical analogs. That

argument was rejected by the motion judge, and is not pressed on

appeal. While the renewed motion also made a passing reference

challenging the "process" by which the license was suspended,

the renewed motion did not directly raise the argument the

defendant now presses -- the defendant did not argue below that

the "suitability" provisions of G. L. c. 140, §§ 131 (d) and

(f), granted unconstitutional discretion to the licensing

authority to suspend or to deny firearm licenses.

The case was tried to a jury on February 17, 2023. Prior

to trial, Mancevice filed a motion in limine "to exclude

purported opinion testimony, whether lay or expert, . . . that

the items seized . . . meet the definition of 'ammunition.'"

The Commonwealth did not object and this motion was allowed. At

trial, Officer Recos, who conducted the search of the

defendant's home, testified several times that he had found

"ammunition" in the home. The last of these references drew an

7
objection from defense counsel, although the resolution of that

objection is unclear on the record.4

After the Commonwealth rested, Mancevice filed a motion for

a required finding of not guilty on several grounds, including

that the Commonwealth had failed to adduce evidence that the

alleged ammunition was in fact ammunition. This motion was

denied. At the conclusion of trial, the jury returned a verdict

of guilty on the charge of possession of ammunition without an

FID card, and not guilty on the charge of failure to surrender a

license to carry. Mancevice appeals.

Discussion. The defendant raises four arguments on appeal:

(1) that the defendant's license was "suspended under a

discretionary 'unsuitability' statute that Bruen held

unconstitutional," (2) that under G. L. c. 140, § 129D, as

amended through St. 2014, c. 284, §§ 42-44, the defendant should

have been allowed ninety days to surrender his firearms and

4 During his direct examination, Recos testified without
objection that he found "numerous amounts of ammunition" at
Mancevice's residence. The prosecutor asked if Recos recalled
"where the ammunition you found was," and Recos testified that
it was strewn throughout the apartment. The prosecutor then
placed a bag in front of the witness and asked: "How are you
familiar with the contents of that bag?" Recos answered, "This
is all ammunition that was seized the --" at which point he was
cut off by defense counsel's objection. The attorneys conferred
with the judge at sidebar; however, the bulk of their
discussion, including the judge's ruling on the issue, was not
included in the record. The physical evidence in the bag was
admitted.

8
ammunition, (3) that it was error to allow Officer Recos's

testimony that he found "ammunition" during the search of the

defendant's home, and (4) that there was insufficient evidence

that the items seized met the legal definition of "ammunition."

We address each argument in turn.

1. Second Amendment arguments. The defendant argues that

§§ 131 (d) and (f) (as in effect in 2018) were unconstitutional

under Bruen, because they vested discretion in the licensing

authority to deny a license based upon "unsuitability," and thus

impinged on his right to bear arms.5 The defendant had

previously applied for, and received, a "license to carry"

firearms, as authorized by G. L. c. 140, § 131 (d), as amended

through St. 2018, c. 123, §§ 11-12. In 2018, § 131 (d) provided

that the "licensing authority"6 "may issue" a license to carry if

5 The defendant does not claim on appeal that the statute
under which he was convicted, G. L. c. 269, § 10 (h) (1)
(possession of ammunition without an FID card), is
unconstitutional. Mancevice instead challenges §§ 131 (d) and
(f), arguing that because the suspension of his license was
unconstitutional, he could not be convicted of possessing
ammunition unlawfully. On appeal the Commonwealth argues that
because Mancevice never challenged the suspension of his license
through the statutory appeal procedure, he cannot challenge the
constitutionality of his conviction. Put differently, the
Commonwealth's view is that Mancevice could be guilty of
unlicensed possession even if the suspension of the license was
unconstitutional. As we decide today that Mancevice's
constitutional challenges to the suspension of his license fail,
we need not address the Commonwealth's argument.

6 The licensing authority was "the chief of police or the
board or officer having control of the police in a city or town,

9
certain conditions were met, including that "the applicant is

not a prohibited person as set forth in this section."7,8

Section 131 (d) went on to state, however, that the licensing

authority "may" deny or suspend a license to carry,

"if, in a reasonable exercise of discretion, the licensing
authority determines that the applicant or licensee is
unsuitable to be issued or to continue to hold a license to
carry. A determination of unsuitability shall be based on:
(i) reliable and credible information that the applicant or
licensee has exhibited or engaged in behavior that suggests
that, if issued a license, the applicant or licensee may
create a risk to public safety; or (ii) existing factors
that suggest that, if issued a license, the applicant or
licensee may create a risk to public safety."

or persons authorized by them." G. L. c. 140, § 121, as amended
through St. 2018, c. 123, §§ 1-7.

7 A "prohibited person" was one who falls into a number of
categories, including persons convicted of a felony or various
other offenses, persons committed for mental illness or alcohol
or substance abuse, persons under twenty-one, aliens who were
not permanent residents, persons subject to protection orders
under G. L. c. 209A, persons who were the subject of an
outstanding arrest warrant, persons dishonorably discharged from
the military, fugitives from justice, and persons who renounced
their U.S. citizenship. G. L. c. 140, § 131 (d), as amended
through St. 2018, c. 123, §§ 11-12.

8 The Supreme Court's decision in Bruen rendered invalid the
language in § 131 (d) that required that the applicant show
"good reason" for the license to issue. See Bruen, 597 U.S. at
15 n.2, 71. Section 131 (d) was subsequently amended by
St. 2022, c. 175, §§ 4-17A, and St. 2024, c. 135, § 49, and now
does not impose a "good reason" requirement. See G. L. c. 140,
§ 131 (d).

10
G. L. c. 140, § 131 (d), as amended through St. 2018, c. 123,

§§ 11-12.9

Section 131 (d) thus granted explicit authority to suspend

the license to carry of an "unsuitable" person.10 And, § 131 (f)

addressed the question as well:

"A license issued under this section shall be revoked or
suspended by the licensing authority, or his designee, upon
the occurrence of any event that would have disqualified
the holder from being issued such license or from having
such license renewed. A license may be revoked or
suspended by the licensing authority if it appears that the
holder is no longer a suitable person to possess such
license" (emphasis added).

G. L. c. 140, § 131 (f), as amended through St. 2018, c. 123,

§§ 11-12.

As indicated, the defendant argues that these two sections

of the Massachusetts statutes violated the Second Amendment,

both on their face and as applied to his circumstances. The

9 This section was also materially amended in 2022 by
removing the "may issue" and "reasonable exercise of discretion"
language, St. 2022, c. 175, §§ 7, 9, 10, such that § 131 (d) now
states (in relevant part, after further amendments in 2024) that
a licensing authority "shall issue" a license to carry "only if
it appears that the applicant is neither a prohibited person nor
determined to be unsuitable to be issued a license as set forth
in . . . section 121F."

10Following the 2024 updates to the statutory scheme, the
definition of unsuitability now states: "A determination of
unsuitability shall be based on reliable, articulable and
credible information that the applicant has exhibited or engaged
in behavior that suggests that . . . the applicant may create a
risk to public safety or a risk of danger to themselves or
others." G. L. c. 140, § 121F (k).

11
thrust of his argument is that Bruen declared that all such "may

issue" statutory schemes are unconstitutional, because they

provide too much discretion to licensing authorities to deny

persons the ability to carry a firearm.11 As indicated, the

argument the defendant advances in this court is not the same

Second Amendment argument that he pressed below -- at most, the

argument he now presses was referenced so vaguely that it cannot

fairly be said to have been raised.12 Although not raised below,

we have in the past reviewed unpreserved claims that a charge

should have been dismissed for vagueness for a substantial risk

of a miscarriage of justice, see Commonwealth v. St. Louis, 473

Mass. 350, 355 (2015); Commonwealth v. Mienkowski, 91 Mass. App.

Ct. 668, 674 (2017), and we assume without deciding that the

same review applies to claims under the Second Amendment. "A

11The Massachusetts firearm licensing scheme in effect in
2018 also authorized the granting of FID cards, which allowed a
person to possess a firearm but granted fewer privileges than a
license to carry. G. L. c. 140, § 129B, as amended through
St. 2018, c. 123, §§ 9, 10; G. L. c. 140, § 129C, as amended
through St. 2014, c. 284, §§ 40, 41. Mancevice did not have an
FID card, as his license to carry provided all the privileges of
an FID card. See G. L. c. 140, § 131 (a), as amended through
St. 2018, c. 123, §§ 11-12.

12In particular, the defendant never argued below, and did
not argue to this court, that his actions did not meet the
definition of "unsuitability" in § 131 (d). Nor did he or does
he argue constitutional infirmity in the statute's definition of
unsuitability; in particular, the defendant does not
specifically argue that the statute is or was unconstitutional
because the actions the statute defines as unsuitable are
overbroad.

12
substantial risk of a miscarriage of justice exists when we have

a serious doubt whether the result of the trial might have been

different had the error not been made" (quotation omitted).

Commonwealth v. Curran, 488 Mass. 792, 794 (2021), quoting

Commonwealth v. Valentin, 470 Mass. 186, 189 (2014). We

conclude that there was no error and no substantial risk of a

miscarriage of justice here.

The defendant posits that the Massachusetts licensing

scheme (as of 2018) was "flatly unconstitutional under Bruen,

because the Bruen Court already found no historical analog for

. . . 'may issue' statutes" such as § 131 (d). This argument

challenges the Massachusetts statute on its face. The

defendant's reading of Bruen is incorrect.

Bruen struck down a New York license to carry statute under

which a firearm license applicant had to show, among other

things, that there was "proper cause" to obtain the license.

Bruen, 597 U.S. at 12, 71. The New York courts had equated the

term "proper cause" with a "special need for self-protection

distinguishable from that of the general community" (citation

omitted). Id. at 12. The Bruen Court held that such "proper

cause" restrictions on firearm licensing are unconstitutional,

because such regulations had no historical precedent from the

periods when the Bill of Rights and the Fourteenth Amendment to

the United States Constitution were adopted. See id. at 34-35,

13
38-39. In so holding, however, the Court was focused on New

York's "proper cause" requirement, and not on "may issue"

language in general. See id. at 71 ("New York's proper-cause

requirement violates the Fourteenth Amendment" [emphasis

added]). The Bruen court made it clear that firearm licensing

schemes generally are constitutional, as two of the six-person

majority emphasized in a separate concurrence. See id. at 79

(Kavanaugh, J., concurring) ("the Court's decision does not

prohibit States from imposing licensing requirements for

carrying a handgun for self-defense"). And footnote 1 of the

majority opinion itself canvassed existing State laws, and

indicated that the licensing schemes in at least three States

(Connecticut, Delaware, and Rhode Island) that contained

discretionary language, including a "suitability" requirement,

nevertheless were constitutional -- because those States did not

require applicants to show "proper cause," or some analogous

showing, before obtaining a license to carry. See, e.g., id. at

13 n.1, quoting Dwyer v. Farrell, 193 Conn. 7, 12 (1984) ("Three

States -- Connecticut, Delaware, and Rhode Island -- have

discretionary criteria but appear to operate like 'shall issue'

jurisdictions. . . . Although Connecticut officials have

discretion to deny a concealed-carry permit to anyone who is not

a 'suitable person,' . . . the 'suitable person' standard

precludes permits only to those 'individuals whose conduct has

14
shown them to be lacking the essential character of temperament

necessary to be entrusted with a weapon'").

Bruen thus simply does not hold that any licensing statute

that employs the language "may issue" is unconstitutional. It

is true that the Massachusetts statute, § 131 (d), had a "good

reason" requirement prior to the decision in Bruen. But that

provision has since been removed from the statute by amendment,

and that (former) provision is irrelevant to the issues the

defendant raises here. The defendant's license was not

suspended because he had not shown good cause to obtain or to

maintain a license; rather, the defendant's license was

suspended because of his actions, by which the chief of police

had deemed the defendant to be a risk to public safety.

Whereas the Supreme Court's Bruen decision does not aid the

defendant's facial challenge, the Supreme Court's recent

decision in Rahimi dooms it. As part of his facial challenge,

the defendant suggests that §§ 131 (d) and (f) must be struck

down because they were overbroad -- that is, that they were

unconstitutional in some of their applications, even if not

unconstitutional as applied to the defendant. But the Supreme

Court made clear in Rahimi that overbreadth doctrine does not

apply in this context; rather, to be unconstitutional on its

face "a defendant [must] 'establish that no set of circumstances

exists under which the Act would be valid.'" Rahimi, 602 U.S.

15
at 693, quoting United States v. Salerno, 481 U.S. 739, 745

(1987). This the defendant plainly cannot do. For example,

Rahimi itself validates a firearm regulation that "bars an

individual from possessing a firearm if [he is subject to a]

restraining order [that] includes a finding that he poses 'a

credible threat to the physical safety' of a protected person."

Rahimi, supra, quoting 18 U.S.C. § 922(g)(8)(C)(i). Consistent

with Rahimi, pursuant to the unsuitability provisions of

§§ 131 (d) and (f), a licensing authority could suspend or

revoke a license to carry where a license holder has recently

been determined to be a dangerous person in a restraining order

proceeding under G. L. c. 209A. As another example, the

statutes explicitly prohibit convicted felons from obtaining

licenses; again, such provisions have been approved by the

Supreme Court. See Rahimi, supra at 699, quoting District of

Columbia v. Heller, 554 U.S. 570, 626, 627, n.26 (2008) ("many

such prohibitions, like those on the possession of firearms by

'felons and the mentally ill,' are 'presumptively lawful'").

Sections 131 (d) and (f) are not unconstitutional on their face.

The defendant also purports to raise an "as applied"

challenge, but the argument he presents is no more than a

reprise of his facial challenge. He states that the defendant's

"unsuitability determination was made under a highly

discretionary standard that does not pass constitutional

16
muster." The defendant cites no additional case law, and no

additional facts, in support of this argument, and for the

reasons stated above it is incorrect. We note as well that it

is incorrect to say that the statute's unsuitability standard

(as of 2018) was "highly discretionary." To the contrary, the

statute specifically defined unsuitability, requiring, for

example, "reliable and credible information that the . . .

licensee has exhibited or engaged in behavior that suggests that

. . . the . . . licensee may create a risk to public safety."

G. L. c. 140, § 131 (d), as amended through St. 2018, c. 123,

§§ 11-12. This definition is narrow, specific, and dovetails

with the Supreme Court's approval, in Rahimi, of "firearm laws

[that] . . . prevent[] individuals who threaten physical harm to

others from misusing firearms." Rahimi, 602 U.S. at 690.13

Finally, the defendant does not argue that the facts of his case

do not meet the unsuitability standard or cannot be a

constitutional basis for suspension of his license. Indeed, the

13 Prior to Bruen, the Supreme Judicial Court, in Chief of
Police of Worcester v. Holden, 470 Mass. 845 (2015), considered
a challenge to a prior version of § 131 (d), which contained a
less specific unsuitability standard. The defendant in Holden
had his license to carry suspended on the grounds of
unsuitability, based on an incident where the defendant engaged
in domestic violence. Id. at 847-848. The Holden court ruled
that § 131 (d) did not violate the Second Amendment, either on
its face or as applied. Id. at 847. In so ruling the court
rejected the argument that the prior version of § 131 (d)
conferred excessive discretion on the licensing authority. See
id. at 859-861.

17
briefs barely mention the facts that led to the license

suspension, and our record is incomplete on that issue. The

defendant has not carried his burden to show a Second Amendment

violation, let alone a substantial risk of a miscarriage of

justice.

2. Lawfulness of possession of ammunition. The defendant

next urges us to overturn his conviction on the grounds that it

was not unlawful for him to possess ammunition at the time when

the Barre police searched his residence, which was six days

after he received the license suspension notice by certified

mail. He raises two grounds for this claim: (1) that a "safe-

harbor" provision in G. L. c. 140, § 129D, as amended through

St. 2014, c. 284, §§ 42-44 (§ 129D),14 made it lawful for him to

possess ammunition during the ninety-day appeal period by G. L.

c. 140, § 131 (f), as amended through St. 2018, c. 123, §§ 11-12

(§ 131 [f]),15 and (2) that the requirement under § 129D to

surrender ammunition "without delay" was unconstitutionally

vague. We take each issue in turn.

a. Applicability of safe-harbor provision. To begin, the

defendant is incorrect that he was entitled to a ninety-day

14This safe-harbor provision also has been removed from the
statute. See G. L. c. 140, § 129D.

15The appeal procedure is now contained within G. L.
c. 140, § 121F (v) (2).

18
grace period before turning in his licenses and firearms. It is

true that as of 2018 there was a discrepancy in the statutes,

between §§ 129D and 131 (f). The Supreme Judicial Court

resolved that discrepancy, however, in Commonwealth v. Adams,

482 Mass. 514, 533-534 (2019). There the court harmonized

§§ 131 (f) and 129D by ruling that the licensing scheme gives a

licensing authority two options when suspending or revoking a

firearms license. Id. at 533. Under the first option, a

licensing authority can suspend a license and order immediate

surrender of firearms, in which case the licensee cannot obtain

a stay of the suspension and the surrender obligations even if

the licensee appeals the suspension under § 131 (f). Id. at

533-534. Alternatively, a licensing authority could suspend a

license without seeking immediate surrender of the licensee's

firearms, in which case a licensee could stay the obligation to

surrender firearms if the licensee appealed the suspension

order. Id. at 534.

The defendant argues that his obligation to turn over his

firearms "without delay" should have been stayed under the

circumstances, because (he claims) the licensing authority sent

his notice of the suspension only by certified mail, and thus

did not order "immediate surrender" per Adams. See Adams, 482

Mass. at 533. This argument fails for two reasons. First, the

defendant never appealed the suspension. Thus, regardless of

19
which method of revocation the licensing authority used, the

defendant had no basis for a stay under Adams. Second, the

Barre police in fact used the first Adams method and required

immediate surrender, as the certified letter sent to the

defendant required the defendant "to turn in . . . without

delay, your firearms license(s) and all firearms . . . and

ammunition." Thus, under no circumstance was the defendant

entitled to a stay of his obligation to turn over his ammunition

without delay.

b. Vagueness of § 129D. The defendant also argues that

"without delay," as used in § 129D, is unconstitutionally vague.

A statute is unconstitutionally vague if it does not provide

"(1) a reasonable opportunity for a person of ordinary

intelligence to ascertain what the statute prohibits; and

(2) comprehensible standards that limit prosecutorial and

judicial discretion and thus avoid discriminatory or arbitrary

enforcement." Commonwealth v. Brown, 481 Mass. 77, 84 (2018).

There is no such vagueness here, where "without delay" has a

common meaning that provides a person of ordinary intelligence a

reasonable opportunity to understand what is prohibited. See

id. "Without delay" means "immediately," or as near thereto as

can reasonably be accomplished. The defendant admitted as much

at the scene of the search, when he stated that "without delay"

20
meant "as soon as humanly possible." The term "without delay"

is not unconstitutionally vague.

3. Alleged improper testimony. The defendant also argues

that his conviction must be reversed because Officer Recos

testified that certain items seized during the search of the

defendant's residence were "ammunition." The defendant alleges

that this testimony was improper lay opinion, and that it

asserted his guilt as to the ultimate issue in the case. We

disagree.

First, the defendant is incorrect that his assented-to

motion in limine that was allowed prior to trial excluded

Recos's testimony. The defendant's motion in limine sought to

exclude opinion testimony only as to the ultimate issue in the

case -- that is, "purported opinion testimony, whether lay or

expert . . . that the items seized . . . meet the definition of

'ammunition.'" Leaving aside the question whether such a motion

in limine has merit, Recos's testimony that he was familiar with

the evidence before him, because it was "ammunition" seized from

the defendant, did not constitute "testimony . . . that the

items seized from Derek Mancevice meet the definition of

ammunition," and thus did not fall within the ambit of the

motion in limine.

Furthermore, although defense counsel did object on one

occasion to Recos's use of the term "ammunition," prior to that

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objection Recos had testified at least two other times that he

found "ammunition" when searching Mancevice's apartment, without

objection. Thus, the additional reference to "ammunition" was

merely cumulative of evidence admitted without objection and was

not prejudicial. See Commonwealth v. Barnoski, 418 Mass. 523,

539 n.12 (1994).

4. Sufficiency of the evidence of ammunition. Finally,

the defendant argues that his conviction must be overturned

because the evidence was insufficient to prove that the items

seized from him met the legal definition of ammunition. In

reviewing the sufficiency of the evidence, we take the evidence

in the light most favorable to the Commonwealth, and determine

whether a rational jury could have found the requisite elements

of the crime beyond a reasonable doubt. Commonwealth v.

Latimore, 378 Mass. 671, 677-678 (1979).

Here, the evidence was sufficient to allow a rational jury

to find that the items seized were ammunition as defined by

G. L. c. 269, § 10 (o), as amended through St. 2014, c. 284,

§ 90. The Commonwealth had to show only that the items were

"cartridges or cartridge cases, primers (igniter), bullets or

propellant powder designed for use in any firearm, rifle or

shotgun," id., and the Commonwealth could do so by relying upon

"percipient evidence and the fact finder's common sense and life

experience." Commonwealth v. Velez, 82 Mass. App. Ct. 12, 18

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(2012). Expert testimony was not required. See id. Here, the

items themselves were entered into evidence, without objection.

They included bags with manufactured labels stating "black rifle

powder," as well as a box of one hundred metal objects that

appear to be bullets. The items were placed in evidence bags,

and several were identified as ammunition by attached police

evidence labels, including labels describing "green box w/ 22

assort. rounds of ammo" and ".22 caliber rounds," among others.

Furthermore, the defendant essentially admitted at the scene of

the search that what was seized from his apartment was

ammunition by stating, in response to Officer Recos's question

why the defendant had not turned over his ammunition, that "he

wasn't able to get every little piece that he owned and turn it

in." Taking the evidence in the light most favorable to the

Commonwealth, a rational jury could find that the items met the

statutory definition of ammunition.

Judgment affirmed.

By the Court (Sacks,
Englander & Grant, JJ.16),

Clerk

Entered: January 21, 2025.

16 The panelists are listed in order of seniority.

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