U.S. v. Ogles

• Decision Date: 10 March 2006
• Docket Number: No. 03-10439.,No. 04-10069.,03-10439.,04-10069.
• Citation: 440 F.3d 1095
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John Gilbert OGLES, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. John Gilbert Ogles, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

440 F.3d 1095

UNITED STATES of America, Plaintiff-Appellant, v. John Gilbert OGLES, Defendant-Appellee.

United States of America, Plaintiff-Appellee, v. John Gilbert Ogles, Defendant-Appellant.

No. 03-10439.

No. 04-10069.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2004.

Panel Opinion Filed April 28, 2005.

Rehearing En Banc Granted November 16, 2005.

Argued and Submitted En Banc December 14, 2005.

Filed March 10, 2006.

Michael A. Rotker, Department of Justice, Washington, D.C., for the plaintiff-appellant/appellee.

Richard E. Gardiner, Fairfax, Virginia, for the defendant-appellee/appellant.

Appeals from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. CR-02-01805-CKJ.

Before: SCHROEDER, Chief Judge, PREGERSON, REINHARDT, KLEINFELD, HAWKINS, GRABER, McKEOWN, W. FLETCHER, FISHER, GOULD, BERZON, Circuit Judges.

McKEOWN, Circuit Judge:

We consider whether the district court's judgment of acquittal under Federal Rule of Criminal Procedure 29(a) was related to factual guilt or innocence and thus constitutes a "genuine acquittal," the government's appeal of which is barred by the Double Jeopardy Clause. John Gilbert Ogles was charged under 18 U.S.C. §§ 922(b)(3) and 924(a)(1)(D) with willfully selling and transferring physical possession of a firearm to a non-resident of the state in which he was licensed to deal firearms (Count One) and willfully engaging in the business of dealing firearms without a license in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (Count Two). At the conclusion of the government's case, the district court granted Ogles' Rule 29(a) motion for a judgment of acquittal as to Count Two, concluding that Ogles was a "licensed dealer under the statute" and thus not in violation of selling firearms without a license. The jury convicted Ogles on Count One. Ogles appeals his conviction as to Count One; the government appeals the judgment of acquittal as to Count Two.

Although we took the entire case en banc, the primary issue that concerns us is our jurisdiction to address the government's appeal. We adopt section II(A) of the panel opinion, which affirms Ogles' conviction on Count One. United States v. Ogles, 406 F.3d 586 (9th Cir.), reh'g en banc granted, 430 F.3d 1221 (9th Cir.2005). As to Count Two, we hold that the judgment of acquittal represented a ruling that the evidence was "`legally insufficient to sustain a conviction.'" Smith v. Massachusetts, 543 U.S. 462, 125 S.Ct. 1129, 1135, 160 L.Ed.2d 914 (2005) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)). Consequently, the government's appeal is barred by the Double Jeopardy Clause.

BACKGROUND

Ogles, a California resident, held a federal firearms license that listed his place of business, "Belleau Wood Gunsmithing & Firearms," as located in California. In June 2002, at a gun show in Arizona, Ogles sold a firearm to Michael Buda, an Arizona resident. Ogles was indicted on two counts. Count One of the indictment charged Ogles with "willfully . . . sell[ing] and deliver[ing] to Michael Buda a firearm. . . knowing and having reasonable cause to believe that Michael Buda at the time of the sale and delivery did not reside in the State in which the licensee's place of business was located," in violation of §§ 922(b)(3) and 924(a)(1)(D). Section 922(b)(3) provides that "[i]t shall be unlawful for any . . . licensed dealer . . . to sell or deliver . . . any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in . . . the State in which the licensee's place of business is located."

Count Two of the indictment charged Ogles with "willfully engag[ing] in the business of dealing firearms without a license, that is outside the State in which the licensee's place of business was located," in violation of §§ 922(a)(1)(A) and 924(a)(1)(D) (emphasis added). Curiously, the indictment included a locality requirement, which the text of the statute does not. Section 922(a)(1)(A) provides only that "[i]t shall be unlawful — for any person — except a . . . licensed dealer [] to engage in the business of . . . dealing in firearms." (Emphasis added). Section 924(a)(1)(D) provides that whoever "willfully violates" these provisions shall be fined, imprisoned up to five years, or both.

At trial, the government introduced evidence regarding Ogles' conduct at the gun show, including testimony from Buda that he did not fill out any paperwork for his purchase and that Ogles handed over the firearm at the gun show after seeing Buda's Arizona driver's license. Two witnesses, both licensed to sell firearms in Arizona, testified that they informed Ogles that he could not physically transfer firearms to purchasers at the Arizona gun show.

At the close of the government's case, Ogles moved for a judgment of acquittal pursuant to Rule 29(a). With respect to Count Two, Ogles argued that § 922(a)(1)(A) applies only to an unlicensed dealer and that he was a licensed dealer. The government opposed the motion, taking the position that a federal firearms license is location specific and that a licensee like Ogles who sells firearms outside of his designated area acts in an unlicensed capacity within the meaning of § 922(a)(1)(A). The district court adopted the reasoning of United States v. Caldwell, 49 F.3d 251, 252 (6th Cir.1995), which held that § 922(a)(1)(A)'s prohibition against dealing in firearms without a license is not violated when the defendant has a federal firearms license, even if he sold firearms away from the licensed premises. The district court granted the motion on Count Two and reserved decision on Count One, stating:

The Court finds that the defendant is a licensed dealer under the statute, and therefore — and the issue still remains as to Count 1 as to whether or not he engaged in his improper transaction. But in any event, he was a licensed dealer under the statute at the time the transaction took place. Therefore, the judgment of acquittal is appropriate as to Count 2 of the indictment.

The jury convicted Ogles on Count One, after which the district court denied the Rule 29(a) motion as to that count as well as Ogles' motion for a new trial. Ogles was sentenced to twenty-four months of supervised probation, three months of home confinement, and a $100 special assessment.

ANALYSIS

I. CONVICTION ON COUNT ONE

Our primary concern is the government's appeal of the judgment of acquittal as to Count Two. We diverge, however, from our main inquiry to address certain representations made by the government for the first time during oral argument before the en banc panel. Solely on the basis of those statements the dissent concludes that Ogles' conviction on Count One "is plainly and simply a `wrongful conviction.'" Dissent at p. 2504 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). We disagree.

During oral argument, the government suggested for the first time that a defendant cannot be convicted under both § 922(b)(3) and § 922(a)(1)(A) — i.e., as a licensed and unlicensed dealer — with regard to the same conduct. The government stated that when the case was charged and indicted, it believed Ogles was appropriately charged with both counts. Although the government claimed that it re-evaluated its position in light of the three-judge panel opinion, it continued to press its original position as late as the filing of its response to the petition for rehearing en banc.

The government's current position is unclear. On the one hand, the government advised that Ogles' conduct is best understood as "unlicensed" and thus falls under § 922(a)(1)(A) (Count Two), on which he was acquitted, rather than under § 922(b)(3) (Count One), on which he was convicted. At the same time, the government represented that it would concede the invalidity of the § 922(b)(3) conviction only if we conclude that double jeopardy does not bar the government's appeal, and if we agree with the government's legal theory as to the merits of § 922(a)(1)(A) and remand the acquitted Count Two for a new trial. Although the dissent interprets these representations as a "concession" — which we must accept — that the § 922(b)(3) conviction is invalid, Dissent at p. 1108, to take that position is to fall into one of two traps.

One trap is to read a non-concession as a concession. When a party says that it would concede a point but only if we already agreed with that party's position, the party has made no concession at all. This logic may be more distasteful when applied to government counsel, but the logic still remains.

The other trap is, in effect, to allow ourselves to be "bound by the government's statement of the law." Dissent at p. 1107. We are not bound by a party's concession as to the meaning of the law, even if that party is the government and even in the context of a criminal case. See United States v. Miller, 822 F.2d 828, 832 (9th Cir.1987) ("Even if a concession is made by the government, we are not bound by the government's erroneous view of the law." (internal quotation marks omitted)).

The district court properly understood the statute. See Caldwell, 49 F.3d at 252 (holding that a gun dealer's license under 18 U.S.C. § 922(a)(1)(A) is not location-specific). In this respect, we agree with Judge Rymer's dissent in the three-judge panel opinion concerning the meaning of 18 U.S.C. § 922. Ogles, 406 F.3d at 598-600 (Rymer, J., dissenting). If the government believes that additional conduct should be penalized, then its remedy lies with Congress, not with the courts.

For these reasons, we decline to entertain the government's newly minted argument and the convoluted conditions attached to it, which were raised for the first time during en banc proceedings. We also note that Ogles did not appeal his conviction on Count One...