NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

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.