U.S. v. Ogles

• Decision Date: 28 April 2005
• Docket Number: No. 03-10439.,No. 04-10069.,03-10439.,04-10069.
• Citation: 406 F.3d 586
• 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

406 F.3d 586

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.

Filed April 28, 2005.

COPYRIGHT MATERIAL OMITTED

Paul K. Charlton, United States Attorney for the District of Arizona, Maria Davila, Assistant United States Attorney for the District of Arizona, and Michael A. Rotker, United States Department of Justice, Washington, D.C., for the government.

Richard E. Gardiner, Fairfax, Virginia, for defendant John Gilbert Ogles.

Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding.

Before: PAMELA ANN RYMER, RICHARD C. TALLMAN, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge BEA; Partial Concurrence and Partial Dissent by Judge RYMER.

BEA, Circuit Judge.

John Gilbert Ogles appeals his conviction for willfully selling and transferring physical possession of a firearm in violation of 18 U.S.C. §§ 922(b)(3) and 924(a)(1)(D) (Count One), on grounds that the district court erred in denying both his motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. The government appeals the district court's order granting Ogles's motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 as to the charge of 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). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3731, and affirm Ogles's conviction under Count One but reverse the district court's judgment of acquittal as to Count Two and remand for proceedings consistent with this opinion.

I.

At all relevant times, Ogles was a resident of California. He applied for and received a federal firearms license for a place of business in California. Ogles did not apply for nor did he receive a federal license to deal in firearms in Arizona. Nevertheless, on June 1, 2002, Ogles set up a booth at a gun show in Arizona and sold a firearm to Michael Buda, an Arizona resident.

On October 16, 2002, Ogles was indicted on two counts: "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 18 U.S.C. §§ 922(b)(3) and 924(a)(1)(D) (Count One); and "willfully engag[ing] in the business of dealing in firearms without a license, that is outside the State in which the licensee's place of business was located," in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (Count Two).

At Ogles's trial, the government introduced the following evidence regarding Ogles's actions at the Arizona gun show in question. David Morse and Walter Puczkowsky, both licensed by the federal authorities for sales of firearms at places of business in Arizona, testified that on the morning of the gun show they informed Ogles that he could not physically transfer firearms to purchasers at the Arizona gun show. Buda testified that he purchased a firearm from Ogles and that Ogles handed over the gun to Buda after Buda showed Ogles his Arizona driver license. Buda also testified that he did not fill out any paperwork with Ogles after he purchased the firearm. Thomas Braxton testified that at the same Arizona gun show, an African-American man handed Ogles money and then walked away with a firearm he had picked up from one of the tables at Ogles's booth. Braxton also testified that he saw a man and his son hand Ogles money and then walk away with a firearm. Finally, Arthur Kramer testified that he purchased a firearm from Ogles.

Before trial, Ogles filed a motion in limine to exclude the testimony of Braxton and Kramer pursuant to Federal Rules of Evidence 404(b) and 403; the district court denied the motion. At the close of the government's case-in-chief, Ogles moved for a judgment of acquittal as to both counts. The district court reserved decision as to Count One but granted the motion as to Count Two. Ultimately, the jury convicted Ogles under Count One, after which the district court denied Ogles's earlier-filed motion for a judgment of acquittal as to Count One and Ogles's then-filed motion for a new trial. The district court sentenced Ogles to twenty-four months supervised probation, three months home confinement, and a $100 special assessment. Both Ogles and the government filed timely appeals.

II.

Ogles appeals his conviction under Count One on four separate grounds. We address each in turn, and thereafter address the government's appeal of the district court's judgment of acquittal as to Count Two.

A.

1.

Ogles first challenges the district court's denial of his motion for judgment of acquittal as to Count One on the grounds that no rational trier of fact could have found that Ogles wilfully violated 18 U.S.C. § 922(b)(3). We review the district court's denial of Ogles's motion for a judgment of acquittal de novo and determine if, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Carranza, 289 F.3d 634, 641-42 (9th Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We affirm the district court's denial of Ogles's motion for a judgment of acquittal.

Count One charged Ogles with willful violation of 18 U.S.C. § 922(b)(3), which provides in relevant part:

It shall be unlawful for any ... licensed dealer ... to sell or deliver ... any firearm to any person[other than a licensed importer, licensed manufacturer, licensed dealer or licensed collector] 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....

18 U.S.C. § 922(b)(3); see also 18 U.S.C. § 924(a)(1)(D) (providing for a fine or imprisonment in the event of a willful violation of 18 U.S.C. § 922). We have previously interpreted 18 U.S.C. § 922(b)(3) to mean that a dealer licensed in one state, who attends a gun show in another state, "may display and possess guns, negotiate price, and receive money for guns as long as the transfer of the firearm is through a ... licensee [of the state in which the gun show is located] who fills out the appropriate forms." United States v. Douglas, 974 F.2d 1046, 1049 (9th Cir.1992) (emphasis added) (citing 27 C.F.R. §§ 178.29-.30, 178.100 (1991)). "[W]illfully" as used in 18 U.S.C. § 924(a)(1)(D) requires that the defendant act with knowledge that his conduct is unlawful, but not that the defendant be aware of the specific provision that he or she is charged with violating. Bryan v. United States, 524 U.S. 184, 192, 198-99, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998).

Viewing the evidence in the light most favorable to the government, a rational trier of fact could have found beyond a reasonable doubt that when Ogles transferred possession of the firearm to Buda, he did so with knowledge his conduct was unlawful. Morse and Puczkowsky, both licensed firearm dealers, testified that they had told Ogles on the morning of the gun show that because he was licensed out of state he would need to ship any firearms he sold at the gun show from his licensed premises to a dealer licensed in state, who could then physically transfer the firearms to the purchasers. Further, Buda's testimony indicates that Ogles knew Buda was an Arizona resident and that Ogles did not require Buda to fill out the paperwork necessary for a firearms transaction.¹

Ogles argues, however, that Morse's and Puczkowsky's statement of the law was inaccurate because Douglas holds only that an out-of-state licensed dealer must physically transfer firearms through dealers licensed in the sale-point state, not that an out-of-state licensed dealer must first ship those firearms from his or her licensed premises. Ogles also relies on testimony from an agent from the then United States Bureau of Alcohol, Tobacco and Firearms ("ATF") to the same effect. Even if we were to assume that Ogles's statement of the law is correct-something we do not decide here—Morse's and Puczkowsky's statements nevertheless put Ogles on notice that he could not directly transfer any firearms to Buda at the Arizona gun show. Thus, after viewing Morse's and Puczkowsky's testimony in the light most favorable to the government, it is clear that a rational trier of fact could have found beyond a reasonable doubt that Ogles knew he was acting in violation of the law when he physically transferred the firearm to Buda.

2.

Ogles next challenges his conviction under Count One on the grounds that the government failed to disclose impeachment evidence regarding prosecution witness Braxton and, thus, that the district court should have granted his motion for a new trial. Specifically, Ogles argues that the government should have disclosed that Braxton had been interviewed by the ATF and still had an application pending, which he expected to be considered in the following year—information that Braxton first made known to the Assistant United States Attorney prosecuting the case while the jury was in the midst of deliberations. We review de novo the district court's denial of a motion for a new trial based on alleged Brady violations. United States v. Antonakeas, 255 F.3d 714, 725 (9th Cir. 2001).

To prevail on his Brady claim, Ogles must show that "(1) the evidence was exculpatory or impeaching; (2) it should have been, but was not produced; and (3) the suppressed evidence was material to his guilt or...