United States v. John Gilbert Ogles, United States of America v. John Gilbert Ogles

1095 law, our case we DeShaney into ception to. of Kennedy’s allegations to response on fewer application approved finds suf molestation, our court have child occasions.”). conduct affirmative The reason for lim- to constitute than five ficient lia to danger Officer Shields doctrine is exposes state-created iting the However, Supreme upon the based bility. deter expansion An will clear: standards, should clear we executing Court’s taking from risks officials criminal ongoing that where have held good. public functions for the their can underway the state investigation is fact, body of retaliation have an entire contacting the by danger simply create juris- every of criminal codes laws DeSha investigation. See subject of danger, inherent recognizing the diction 195-96, ney, 489 U.S. on the actual responsibility imposing liability of scope (declining expand to violence, which the for perpetrator because Process Clause the Due under liability on rights imposes now civil Due that “the reveals analysis historical has the misfortune officer who hapless Amend the Fourteenth of Process Clause and conduct a complaint initial to take the prevent intended ment was follow-up investigation. employing power, abusing [its] (alteration to abide the court fails Because oppression” of anas instrument acted in (internal and has marks and directive quotation Supreme Court’s original) City cir- omitted)); contrary v. our established also Collins manner see citations 115, 125, 112 risk Heights, creating substantial precedent, Harker U.S. cuit (“[T]he (1992) through 117 L.Ed.2d 261 its un- liability public for servants expand always been reluctant Court has of the state-created expansion warranted be process due concept of substantive doctrine, dis- respectfully I must danger decision- responsible guideposts cause rehearing this im- from the denial sent are scarce area this unchartered making in banc. case en portant aptly Bybee As Judge open-ended.”). in his dissent from

observes merely to hold it is absurd

opinion, family prior Burns with the

meeting no more “flipflop Kennedy,

notifying minutes[,] is of constitutional

than fifteen J., Bybee, dissent

magnitude.” n.

2269 8. set framework fundamental

While in Saucier Court Supreme

forth state official scope the narrow

defines danger the state-created liability under America, STATES UNITED doctrine, applicability the limited Plaintiff-Appellant, cir- by our further evidenced doctrine is an offi- willingness find cuit’s usual immunity. by qualified protected cial is OGLES, Defendant- John Gilbert (“In years since the sixteen See id. at Appellee. danger ex- the state-created we introduced might not receive notice subject filed where happen in all cases will It sumed. investigation, filed, requires; that he was charges are Constitution charges are never only event that in the it is America, States of Plaintiff-Appellee, Ogles,

John Gilbert Defendant-

Appellant. 03-10439,

Nos. 04-10069.

United States Court Appeals,

Ninth Circuit.

Argued and Submitted Oct. 2004. Opinion

Panel April Filed 2005. En

Rehearing Banc Granted

Nov. 2005.

Argued and En Submitted

Banc Dec.

Filed March under the dealer a “licensed

Ogles was selling not in violation thus statute” jury con- a license. firearms Ogles appeals Count One. Ogles on victed One; gov- as to Count his conviction acquittal judgment of appeals ernment Two. as Count case en entire took the Although we isus that concerns banc, issue primary govern- to address jurisdiction our 11(A) of Jus- Rotker, of Department section adopt A. appeal. We Michael ment’s D.C., the plaintiff- for tice, Ogles’ Washington, affirms which opinion, panel appellant/appellee. United States One. on conviction Count Cir.), en (9th reh’g 586 406 Ogles, F.3d Fairfax, Virginia, Gardiner, E. Richard Cir.2005). (9th 1221 F.3d 430 granted, banc defendant-appellee/appellant. judg- Two, we hold that to Count As ruling that a represented acquittal ment of “ insufficient ‘legally was the evidence v. Massa- Smith a conviction.’” sustain 1129, 462, 125 chusetts, S.Ct. 543 U.S. (2005) (quoting 914 160 L.Ed.2d SCHROEDER, Judge, Chief Before: Co., Supply Linen Martin States v. REINHARDT, PREGERSON, 1349, 51 GRABER, 97 HAWKINS, KLEINFELD, FISHER, (1977)). FLETCHER, Consequently, McKEOWN, L.Ed.2d W. by the Dou- BERZON, Judges. is barred appeal GOULD, Circuit Jeopardy ble Clause. McKEOWN, Judge: Circuit district consider We BACKGROUND Rule Federal acquittal under of resident, a fed- held a California Ogles, 29(a) was related Procedure Criminal of of place his listed license firearms eral consti- and thus or innocence guilt factual Gunsmithing & business, “Belleau Wood govern- acquittal,” “genuine tutes Firearms,” California. located barred which is of ment’s Arizona, Ogles gun show June Gilbert John Clause. Double Buda, an Arizona to Michael firearm sold a 18 U.S.C. charged Ogles was on two indicted Ogles resident. willfully 924(a)(1)(D)with 922(b)(3) and §§ the indictment of One Count counts. posses- transferring physical selling and sellpng] “willfully ... Ogles charged to a non-resident firearm sion a firearm Buda to Michael delivering] and to deal licensed he was in which state cause having reasonable knowing ... One) engag- willfully (Count firearms at the time Buda Michael to believe dealing firearms business in the in the reside delivery did the sale of 18 U.S.C. in violation a license of busi- place licensee’s which State (Count 924(a)(1)(D) 922(a)(1)(A) and §§ located,” in violation ness Two). conclusion theAt 924(a)(1)(D). Section 922(b)(3) and §§ granted case, district ment’s be unlaw- shall “[i]t provides 29(a) judgment of motion for Rule Ogles’ to sell ... dealer licensed any ... ful for Two, concluding that as to Count any deliver ... firearm to any person adopted the reasoning of United States v. who the licensee knows or has Caldwell, reasonable (6th Cir.1995), F.3d cause to believe does not reside ... 922(a)(l)(A)’s which held that prohibition State in which the place licensee’s of busi- against dealing in firearms without a li ness located.” cense is not violated when the defendant has a federal license, Count firearms if Two of the even indictment he charged sold away firearms “willfully engaging] licensed premises. business of dealing firearms without district court a li- granted the cense, that is outside motion on the State Count in which Two and reserved deci the licensee’s place One, business was sion Count stating: locat- ed,” 922(a)(1)(A) in violation of §§ The Court finds that the defendant is a 924(a)(1)(D) added). (emphasis Curiously, licensed statute, dealer under the and the indictment included a locality require- therefore —and the issue still remains as ment, which the text of the statute does to Count 1 as to whether or not he 922(a)(1)(A) not. Section provides only engaged in his improper transaction. that shall “[i]t be any unlawful—for per- event, But in any he was a licensed except a ... licensed dealer [ ] son— dealer under the statute at the time the engage the business of ... dealing in transaction place. Therefore, took added). (Emphasis firearms.” Section judgment acquittal is appropriate as 924(a)(1)(D)provides that whoever “willful- Count of the indictment. ly violates” provisions these fined, shall be jury Ogles convicted One, Count imprisoned up years, to five or both. after which the district court denied the trial, government At introduced evi- 29(a) Rule motion as to that count as well regarding dence Ogles’ conduct at gun Ogles’ motion for a new Ogles trial. show, including testimony Buda that was sentenced to twenty-four months of he did fill out any paperwork for his supervised probation, three months of purchase and Ogles handed over the confinement, home and a special $100 as- firearm the gun show after seeing sessment. Buda’s Arizona driver’s license. Two wit- nesses, both licensed to sell firearms in ANALYSIS Arizona, they testified that Ogles informed I. CONVICTION ON COUNT ONE that he could not physically transfer fire- Our primary concern is govern- purchasers arms at the gun Arizona ment’s acquittal show. as to Count Two. diverge, We however, At the close of case, from our main inquiry to address certain Ogles moved for a judgment representations by made the government pursuant 29(a). to Rule With respect for the first time during oral argument Two, Count Ogles argued before the en banc panel. Solely on the 922(a)(1)(A) § applies only to an unli basis of those statements the dissent con- censed dealer and he was a licensed cludes Ogles’ conviction on Count One government dealer. The opposed the mo plainly “is and simply ‘wrongful convic- tion, taking position that a federal ” tion.’ p. Dissent 2504 (quoting Berger firearms license specific location States, v. United 78, 88, that a Ogles licensee like who sells fire (1935)). 79 L.Ed. 1314 disagree: We arms outside designated of his area acts in an unlicensed capacity within the meaning During argument, oral government 922(a)(1)(A). of § The district suggested for the time first defen- trap is, effect, dant cannot be convicted under both The other to allow 922(a)(1)(A)-i.e., by govern § § as a ourselves to be "bound ment's statement of the law." Dissent at licensed and unlicensed dealer-with re- p. by party's gard 1107. We are not bound to the same conduct. The meaning law, ment stated that when the case was concession as to the party government charged indicted, even if that is the it believed even in the context of a criminal case. See appropriately charged with both counts. Miller, Although United States v. 822 F.2d claimed that it (9th Cir.1987) ("Even position light if a concession is re-evaluated its government, three-judge panel opinion, made we are not it continued to government's press original position bound erroneous view as late as the (internal quotation filing response petition of the law." omitted)). marks of its to the rehearing en banc. properly The district court understood government's position current is un- Caldwell, the statute. See 49 F.3d at 252 hand, clear. On the one (holding gun that a dealer's license under Ogles' advised that conduct is best under- 922(a)(1)(A) 18 U.S.C. is not location- stood as "unlicensed" and thus falls under specific). respect, agree In this we with 922(a)(1)(A) (Count Two), § on which he Judge Rymer's three-judge dissent in the acquitted, rather than panel opinion concerning meaning the 922(b)(3) (Count One), § on which he was Ogles, § 18 U.S.C. 406 F.3d at 598- time, convicted. At the same (Rymer, J., dissenting). govern If the represented ment it would concede ment believes that additional conduct invalidity 922(b)(3) § conviction penalized, remedy should be then its lies only jeopardy if we conclude that double Congress, not with the courts. government's appeal, does not bar the reasons, For these we decline to enter- agree government's legal if we with the government's newly argu- tain the minted theory 922(a)(1)(A) § as to the merits of ment and the convoluted conditions at- acquitted and remand the Count Two for a it, tached to which were raised for the first Although interprets new trial. the dissent during proceedings. time en bane We also representations these as a "concession"- note that did not his convic- accept-that which we must tion on Count One on the basis of a statu- invalid, § conviction is Dissent at tory adopt 11(A) mismatch. We section p. 1108, position to take that is to fall into panel opinion, Ogles, 406 F.3d at 589- traps. one of two Ogles' and affirm conviction on Count trap One.

One is to read a non-conces party says sion as a concession. When a ACQUITTAL IL ON COUNTTWO point only that it would concede a but if question already agreed party's posi we address as to Count with that government may ap tion, party Two is whether the has made no concession at peal judgment logic may the district court's of ac all. This be more distasteful quittal 29(a).1 applied government counsel, under Rule The answer to when but question logic lies at the intersection of the still remains. judgment 29(a) provides pertinent part that, the defendant's motion must enter a 1. Rule acquittal any "[a]fter offense for which the evi- closes its evidence or evidence, dence is insufficient to sustain a conviction." after the close of all the the court on federal statute governing appeals by the diet. This is so judge’s ruling whether the States, § 18 U.S.C. and the acquittal or, comes in a bench trial Jeopardy Double Clause. Section 3731 here, (citations by jury.” a trial omit- provides that the United may ap- ted)). States peal “judgment a ... of district court The district court’s of ac dismissing an except indictment ... quittal which was entered at the close of no appeal shall lie where jeop- the double prosecution’s case squarely falls within ardy clause of the United States Constitu- the Supreme Court’s directive court- prohibits prosecution.” tion further acquittal reviewed, directed “could not be Jeopardy provides Clause Double that no otherwise,” on error or violating person subject shall “be for the same of- the Double Despite Clause. put to be twice fense jeopardy life clarity of language, the Court’s govern U.S. CONST. limb.” Amend. V. argues ment acquittal here is not clause, In interpreting the the Su “genuine acquittal” because it was based preme explained Court “[pjerhaps district court’s construction of fundamental history most rule 922(a)(1)(A), legal conclusion unrelated jeopardy double jurisprudence has been Ogles’ factual guilt or innocence. Addi verdict of acquittal ‘[a] ... could not tionally, suggests the dis reviewed, otherwise, be on error or with trict court’s failure to recite applicable out putting [a in jeopar defendant] twice legal standard for an is further ”dy.’ Linen, Martin U.S. 97 evidence that it is not a acquittal. true (quoting Ball, S.Ct. 1349 United States v. To why understand 662, 671, 41 L.Ed. arguments squared cannot be Su- (1896)). Thus, the category of direct preme teachings, Court’s it is useful to acquittals ed covered the Double survey a handful key cases, of beginning

Jeopardy quite Clause is limited: 1977, with Martin Linen in that establish cases have single Our made a exception government’s contours of the right to the principle that acquittal by judge appeal a judgment court-directed of ac- precludes guilt reexamination of no less quittal. These cases underscore that the acquittal than by jury: jury aWhen question been, decisive has and continues returns a verdict guilty of and a trial be, whether district court found the (or judge court) appellate an sets aside legally evidence insufficient to sustain a that verdict and judgment enters a of conviction. acquittal, the Jeopardy Double Clause

does not preclude prosecution a Linen, In Martin after a “hopelessly jury to reinstate the guilty. verdict of jury deadlocked” was discharged, the dis- trict court Smith, entered judgments 1134; acquittal 125 of S.Ct. at also id. at see 29(c).2 (“[W]e under Rule that, 1133 have The Court long held noted that the Double if even Jeopardy “acquittal Clause of the upon Fifth Amendment based an prohibits egregiously reexamination of a foundation, erroneous court-decreed ... acquittal to Nevertheless, the same prohibits extent ‘[t]he verdict acquittal reexamination of an acquittal by jury final, ver- was and could not be ... reviewed 2. Although Martin judgments Linen provides involved pertinent part that a motion for acquittal 29(c) under Rule and not under judgment acquittal may be made within 7 29(a), Rule Jeop- discussion of the Double days jury discharged, after the and “the ardy Clause generally and Rule 29 serves as a may judgment enter a acquittal.” helpful backdrop 29(c) to our case. Rule

1101 sanctity finali- and Emphasizing twice defendants] [the putting 29, Court under Rule acquittals ty of Consti- violating the thereby jeopardy, ” Rule 29 under judgments “that Linen, concluded 430 U.S. Martin tution.’ added) and, according- uniformly (quoting treated (emphasis are be 1349 97 S.Ct. ap- States, bars Clause 369 U.S. the Double ly, Foo v. United Fong (1962) Rule 671, L.Ed.2d 629 entered under 7 acquittal an peal S.Ct. from addition, ex- curiam)). the Court no than 29(c) less jury mistrial (per after ‘acquit- an 29(a) (b).” constitutes that “what Id. at or plained Rule under form by the controlled to be is not tal’ S.Ct. 1349. Rather, [be] must [it] action. judge’s Linen, the Su- Martin year after One of the ruling determine^] again on weighed Court preme label, repre- actually judge, whatever States v. issue in jeopardy double not, of some resolution, or correct sents 2187, 57 Scott, S.Ct. offense elements the factual all of or figures (1978), a that case L.Ed.2d omit- (citations footnote Id. charged.” government’s the 2495 prominently added). judgments ted) The (emphasis who defendant concerned Scott brief. 29(c) were, according under Rule acquittal in- of the dismissal successfully obtained “ Court, substance ‘acquittals’ prein- claim of upon a “based dictment District [because] ... form well as not on the delay and dictment evi- the Government’s evaluated ... Court had not the Government conclusion legally it was determined dence to establish evidence sufficient produced Id. conviction.” sustain insufficient 95, 98 Id. at defendant.” of the guilt 571-72, be- for dismissal moved 2187. Scott urged in Martin Linen on the during trial twice fore trial jury after acquittal entry of preju- had been defense his ground distinct was somehow discharged Court deter- delay. The diced 29(a) (b), which is Rule appeal was mined jury. discharge before entered “delib- the defendant because not barred temporal distinction: rejected Court to seek termination erately cho[se] entry of judge orders [I]f unre- on a basis him against proceedings defendant’s or on his own acquittal on innocence of or guilt factual lated to to case of the to submission prior motion 98-99, S.Ct. Id. 98 at offense.” 29(a), or Rule may under jury, as he to right making the In jury’s to the prior but submission after “character” on the contingent appeal by verdict, as authorized of a return termination, Unit- overruled Scott midtrial thereafter 29(b) jury Rule —and 358, S.Ct. Jenkins, 95 420 U.S. ed States argu- Government’s discharged —the (1975). had Jenkins 1006, 250 L.Ed.2d 43 the Dou- concedes necessarily ment charac- “regardless preclude established would Clause ble i.e., the midtrial ter of termination” — retrial. appeal and both or dismiss- “acquittal” an it was Indeed, from far 574, at 97 S.Ct. Id. grounds on other al binding au- —a court’s trial “weakening the require would if reversal be barred would jeopardy,” double thority purposes “ sort, devot- of some proceedings ‘further 29 were in Rule distinctions timing going issues of factual resolution ed to the trial federal “accord[] to designed ” charged.’ offense the elements judg- his timing flexibility in judge greater (quot- 94, 2187 S.Ct. Scott, at 98 573, 97 S.Ct. Id. at acquittal.” ment of 1102 Jenkins, 370, 420 U.S. at 95 S.Ct. appeal will be only barred when plain ‘it is 1006). Jenkins, Overruling the Court ex- that the District Court ... evaluated the

plained that the double jeopardy concern Government’s evidence and determined oppressive tactics an “all-powerful that it was legally insufficient to sustain a ” state,” figured which prominently in its Scott, conviction.’ 97, 437 U.S. at 98 Jenkins, broad holding was a cry” “far Linen, S.Ct. 2187 (quoting Martin 430 “ Scott, the situation in where ‘the 572, 1349).3 U.S. 97 S.Ct. Although the defendant elected to seek termination of government mistakenly cites this passage grounds trial unrelated guilt or support a more restrictive definition of ” Scott, 96, innocence.’ 437 U.S. at 98 “acquittal,” the Court’s subsequent deci- added). S.Ct. (emphasis 2187 Throughout sion v. Pennsylvania, Smalis 476 U.S. Scott, the Court contrasts the situation of a 140, 1745, 106 S.Ct. 90 (1986), L.Ed.2d 116 midtrial grounds dismissal “on unrelated reinforces application limited guilt innocence,” id., or “acquit- -i.e.,to situations where a defendant Scott— tal” resolving guilt or innocence: seeks dismissal for reasons unrelated to A judgment acquittal, whether based guilt factual or Thus, innocence. Scott jury on a verdict of not or on a guilty should be as creating read a narrow excep- ruling the court that the evidence is tion to the most fundamental rule in dou- convict, insufficient to may ap- not be ble jeopardy jurisprudence. pealed and terminates prosecution Smalis, filed a defendants demur- when a second trial would be necessitat- pursuant rer Pennsylvania Rule of ed by a reversal. 1124(a)(1), Criminal which, Procedure like Id. at 98 S.Ct. 2187. Leaving no doubt 29(a), Rule permits a defendant to “chal- of its position, the emphasized Court lenge the sufficiency of the evidence to “the particular law attaches significance to sustain a conviction ... at the close of the an acquittal ... however mistaken the ac- [prosecution’s] case-in-chief.” Id. at quittal may have been.” Id. 106 S.Ct. n. 2. Relying “heavily” on clarify To the distinction acquit between the same language in gov- Scott that the tals and other dismissals, midtrial Scott ernment here, invokes id. at invoked of acquittal definition estab “ 1745, the Supreme Court Pennsylvania lished in Martin Linen: ‘the ... ruling held that jeopardy double not did bar the actually represents a resolution ... of prosecution’s appeal of the trial some all or of the factual elements of the ” decision to sustain the demurrer: charged.’ Scott, offense 437 U.S. at “In deciding S.Ct. 2187 (quoting Linen, Martin whether to grant a demur- 1349). U.S. rer, Thus, court does not determine wheth- “[wjhere court, before the jury er returns the defendant guilty on such verdict, judgment enters a evidence, of acquittal but determines whether the pursuant to Fed. 29, Rule Crim. Proc. evidence, if by credited jury, the legal- is Interestingly, States, in Sanabria v. 54, a 66, trial court.” 2170, 437 U.S. 98 S.Ct. companion case day decided the same (1978) (citations as 57 L.Ed.2d omitted). 43 Scott, appears place the Court at least some Sanabria significant also is because even weight on the form the trial though order: court’s the trial court’s dismissal of the indict- “While form is not to be exalted over sub- ment rested an on evidentiary erroneous rul- stance determining the jeopardy double legal judgment Court held that —a —the consequences ruling of a terminating prose- a "the Double absolutely Clause bars cution, neither appropriate is it entirely to a second trial in such circumstances.” Id. at ignore the 78, form of an order entered the 98 S.Ct. 2170.

1103 it legal- that was evidence and determined the conclusion to warrant ly sufficient ” conviction,’ a beyond id. guilty ly is insufficient to sustain a defendant that the be- question (alteration [T]he doubt.... original) (quoting reasonable at 1135 a ruling on demur- trial judge fore the Linen, 572, at 97 S.Ct. Martin 430 U.S. one law.’’ purely rer remains 1349). 143,

Smalis, 106 S.Ct. at 476 U.S. Here, similarly contends the added) (quoting Commonwealth (emphasis purely a ruling that is the district Zoller, A.2d Pa. v. to factual legal determination unrelated (1985)). not, therefore, is a guilt or innocence and con- Supreme Court’s Pennsylvania gov- the genuine acquittal. Specifically, clusion, the trial court namely that that the district court’s argues ernment a rather than legal a determination making resolution of a solely decision rested its innocence, has guilt determination the statutory construction issue—that it the ring as echoes familiar 922(a)(1)(A) §in is term dealer” “licensed Supreme here. But Court position location-specific. not be- position rejected that rationale demurring defendant “[w]hat cause Supreme As Court’s unbroken law as a matter of ruling that seeks is clear, abundantly makes line of decisions is insufficient estab- evidence State’s is question determinative at 106 S.Ct. guilt.” Id. his factual lish firmly legally the evidence past decisions found Noting that district court acquit- an ruling that such a conviction. With established to sustain insufficient purposes, jeopardy tal for double doubt, court did so. out a the district does not over- clarified that “Scott Court 29(a) motion, the district deciding Rule indeed, plainly precedents; these turn interpre adopted the Sixth Circuit’s acquittals category indicates 922(a)(1)(A) in Caldwell and tation ... the court ‘judgment[s] includes term “licensed dealer” concluded that ” to convict.’ is insufficient the evidence component. geographic does not have Scott, (alteration original) (quoting Id. the dis interpretation, adopting After this 2187). last Just ele that a trict court determined factual Massachusetts, term, Su- Smith namely, ment offense— of what question revisited preme Court a license at firearms dealing jeopar- for double constitutes conduct—had challenged the time of the successfully The defendant dy purposes. district Notably, proven. not been finding of entering “a for an order moved ... finds “The Court court stated: prose- at the guilty” conclusion licensed was a dealer the defendant Massachusetts Rule cution’s case under transaction time the the statute 25(a), which analo- Procedure Criminal Therefore, judgment place. took Smith, 125 29 motion. to a Rule gous [Two] appropriate as Count acquittal is (noting that “Massachusetts at 1135 here of the indictment.” Rule 25 on Federal its Rule patterned as well as in substance was an acquittal 29”). Although the Commonwealth char- evidence form—a determination “a a motion grant of such acterized to convict. Whether was insufficient determination,” id. at purely legal or ultimately correct determination rejected argu- this again once the Court in relevant is not “egregiously erroneous” is ment, that “what matters concluding Lin jeopardy. Martin evaluating double authorize, rules that, as the Massachusetts en, 571, 97 S.Ct. 1349. U.S. at the [Commonwealth’s] ‘evaluated judge government suggests that because government indicted Ogles, gun Ogles status, did not contest licensed his federally California, dealer licensed for ruling district court’s did not meet the selling a firearm to an Arizona resident at Supreme acquittal— Court’s definition of gun show Arizona. It indicted him on label, actually “whatever its repre- [it] counts, two each based on a different pro- resolution, sents a not, correct or of some statute, vision of the same but each relat- or all of factual elements of the offense act; to the same each count charged charged.” Id. The Court’s jeopar- double him with selling the same firearm at the dy not, however, decisions do condition an gun same show. Remarkably, in one 29(a) acquittal under Rule on the district count, government charged Ogles with court’s examination of contested facts. being a licensed dealer alleged that he Here, the district court determined provision violated the of the statute gov- factual element of the offense had not been erning the dealers, conduct of licensed proved by government. "Whatis this if 922(b)(3). § count, In the other charged not a “resolution”? him with being an unlicensed dealer and Nor do credit government’s argu- alleged that he provision violated acquittal ment that the is somehow flawed the governing statute the conduct of unli- by the absence of recitation of the legal dealers, 922(a)(1)(A). § censed As should standard. That the district court did not obvious, have been even 29(a) recite the text of Rule employ a ment, Ogles could not have been guilty of specific such phrase, as “evidentiary insuf- both offenses.

ficiency,” is determinative. As Smith At the conclusion of government’s clear,

makes “what that, matters is case-in-chief, Ogles moved for authorized], [Rule 29] judge evaluated acquittal as to both [government’s] counts. The district evidence and deter- granted the motion legally mined that as to the insufficient to 922(a)(1)(A) count, § sustain a conviction.” 125 count applicable S.Ct. at (internal omitted). quotations dealers, to unlicensed We con- but reserved deci- clude the district court did sion as exactly that to the other count. The jury ulti- and, therefore, the Double Jeopardy mately Ogles § convicted 922(b)(3), Clause government’s bars the appeal. the count that covered licensed dealers. Both parties appeals: filed Ogles appealed

AFFIRMED as to Count One. AP- his conviction for violating PEAL DISMISSED as to Count Two. appealed acquittal his

REINHARDT, Circuit Judge, respect 922(a)(1)(A). §to latter, As to the concurring part dissenting part: my colleagues have correctly concluded that the appeal the district judg-

This is a court’s peculiar case, most the outcome ment of acquittal which I barred truly find disturbing. Double Although I agree Clause. I join fully in that part of Judge the district McKeown’s opinion court’s the court. on Count Given Two must be the extraordinary' dismissed on behavior double jeopardy grounds, I disagree case, strongly however, I dis- the decision to affirm Ogles’s agree conviction with the court’s affirmance of Count One. To understand why, Ogles’s it is neces- conviction One, on Count sary to review the history of the proceed- therefore dissent as to portion ings. opinion. judi- The legal foundation. without to be two direct- on convictions sought

Having played has government game the shell cial district charges the ly inconsistent view, is, my case this the court with argument time for oral court, it came when unac- entirely and wholly inappropriate court, government the this en banc before ceptable. absurdity of its legal the recognized finally to convict effort its and may abandoned

position First, government the I believe that the Contrary to counts. both Ogles on that concession condition its properly not characterization, the opinion’s majority he of a crime of which convicted was Ogles “unclear.” not is government’s position willingness to on guilty not the was Belatedly, but Majority at the merits theory on its agree “legal with embarrassment, govern- the un- (a)(1)(A).” has an any government evident of re- it had that unequivocally of its stated the court duty ment to inform equivocal acknowledged and position meaning of a crimi- its the evaluated as to position legal as both “be convicted not a Ogles could and as to whether conviction that statute nal re- with person may It not ask and unlicensed lawful. licensed is it has obtained at the A and transaction the same for concessions return. to the court gard it Also, that recognized lawyer, as an officer time.” government same Ogles was with the court, and candid decide must be truthful have to would gov- the the Conditioning sold when he all times. unlicensed court at or licensed mean- as to the far, representations good. so So ernment’s firearm. the or was “best statute as Ogles that of a criminal us then told ment will- upon unli- a court’s an having acted in conviction legality understood view, any or on that, the in its to concur regarding and ingness capacity” censed one, matter, this case for improper § is “[i]t’s other provisions applicable —in One, such is proper conduct both, two reasons. we believe at least not but and obli- (b)(3).” fundamental plain- Put (a)(1)(A) not inconsistent one is —it’s inform lawyers acknowledged that government gation government ly, of its un- of the law and of its view been convicted court not have should is a conviction 922(b)(3) on as to whether that his conviction conclusion § and der Two, government in the oral unlawful. Later lawful count was unlawful. that an issue to decide express- require a may stated not argument, part of the stat- not decide—as it need construction under its ly that other- bargain or (b)(3) invalid.”2 Faustian unprincipled ute, [wa]s conviction “the however, not consider Here, court need Then, los- Still, good. wise. all to the 922(a)(1)(A), § because meaning ethical legal and of fundamental ing sight by double is barred that count attempted appeal principles, need not consider jeopardy, we agreeing on our its condition concession because, 922(b)(3) following §of meaning law interpretation concession, no there possibility the preserve thereby sought further to consider that it reason believed sustaining conviction gov- tion,” actuality, the Majority at charges, the inconsistent regard 1. With one, but not "it’s ernment’s conclusion [we extent "to government admitted both, proper one believe re- would here that charging theories were] (b)(3) unlicensed, (b)(3),” (a)(1)(A) and that "the of licensed and quire a conclusion —it's invalid,” an un- constituted conviction cannot be correct.” Ogles’s conviction equivocal admission con- erroneous majority opinion characterizes Although the trary to law. "sugges- admission as government's Certainly, all. should we not consider af- Id. at quoted S.Ct. 629. The last firming government a conviction that the line should make it clear that in this case Moreover, wrongful. has told us is government obligation an has to admit question meaning of the simply that it made a mistake. It believes not raised before ap- this court while the that the defendant has been convicted of peal panel was before the and thus it not is wrong wrong offense and under the appropriate for resolution now.3 provision of the statute. Such a conviction plainly simply a “wrongful convic-

Second, government is not free to tion.” It question is without seek an' affirmance of a conviction that it therefore, duty, ment’s not to seek an affir- contrary believes to be to duty law. The conviction, mance but instead to government justice to ensure that it, ask us to regardless vacate of what the done, and not that a conviction is secured says respect does with to its regardless of government what be appeal on the other count.4 right, lieves to be has been made eminent ly Supreme clear Berger Court in legal position The government States, 79 took before this en banc court—that (1935). L.Ed. 1314 often-quoted an but did not commit the offense of which he was (and still compelling apparently still neces convicted—was not simply one that was sary) counsel, government lesson for Jus minted,” “newly Majority at by the tice Sutherland wrote: attorney assigned to argue the en banc

The Attorney United States rep- appeal. is the Counsel for government ad- resentative not of an ordinary party to a vised us at oral argument that he had controversy, but of a sovereignty whose conferred with his supervisors within the obligation govern impartially Appellate is as Section of the Criminal Division compelling as its obligation govern Department Justice, who agreed all; interest, therefore, and whose in a with the view of presented the statute he prosecution criminal is not that it shall at oral argument, as did the Bureau of shall, case, win a justice Alcohol, but Tobacco, be Explo- Firearms and done.... It is duty was, as much his indeed, to re- sives. It fully well and con- frain from improper methods calculated sidered government. the United States produce a wrongful conviction as it is To disregard government’s representa- every legitimate to use bring means to tion as to the meaning of the statute be- just about a one. cause position “newly minted,” is to analysis 3. The majority of the statute open that the admit in court that it believes convic- opinion presents attempt justify in blatant tion to be unlawful pur- and then continue to conviction, Majori- its refusal to vacate the see sue the affirmance of that conviction. As ty at wholly improper. is therefore We infra, suggesting discussed I am not that we need not and should not statutory reach the adopt must or government’s should inter- interpretation issue in this case. Instead, pretation suggest of the law. I duty adopt any we have a position not to majority opinion characterizing errs in respect meaning to the of the statute but government’s merely admission as a "dis- simply to order vacatur of the conviction. I tasteful” Majority "non-concession.” believe recognize that what we must do is to Although agree may I that we not concessions, duty well-established entertain conditional what the improper "refrain from methods calculated to just has done in this case is not conviction,” produce id., wrongful matter of bad "taste.” pre- see is not ordinary litigator. an duty prosecuting Because its in a vents it appeal any fur- justice, criminal may case is to seek duty ther and judicial that it is our officers offense, must honor constitute mandate Sutherland’s Justice repudiate representation.5 cause of to the do a disservice and to obligated to is government The

justice. undoubtedly pres- will government accurately re- fairly and the law present or in future under one cases the ent other meaning: its it discovers ivhen gardless with which the two sections the other of error, gov- the as it discovers soon may and indeed be charged, Ogles was the court. inform duty to has ernment mo- very this in other doing so courts otherwise, argue to particularly To do to properly it seek Surely, cannot ment. position, “oldly minted” erroneous its in this of a conviction an affirmance obtain improper. clearly have been the would one section of theory that court on the simultaneously seek- while controls statute should here that we suggesting I am not theory on the that ing convictions others appeal quite this on the statute construe — is wholly inconsistent section the other suggesting am I that Nor opposite. the Rather, must government applicable. any way it we are we do construe when meaning position as to the take the same statement of government’s bound urges. in all the cases it of the statute 1098-1099, Majority at law, compare reason, the if other consistency, for no For the full to with though it comes us even us that required to government was advise behind Department weight of Justice 922(b)(3). § not violate did Ogles’s conduct interpreta- statutory it. we decide When short, required government was In to construe obligated are question, tion we did, not us, Ogles was as it that to tell appears manner that statute con- of which he was of the offense guilty correct, manner not to be us not, however, entitled It was victed. I not state here will urges. mak- concession attempt qualify that construe court should I this how believe a deci- our issuance of dependent it on that is- question because provision in Nor, its law. accepting sion view purposes us. For not before is sue itwas representation, having made the Ogles’s conviction evaluating whether convic- to affirm a it to ask us proper for stand, accept gov- only need should we “wrongful.” be tion it believed to that convic- representation ernment’s may prop- not my opinion, it. When the vacate invalid and tion light Ogles’s conviction erly affirm that the conviction tells us concession.6 Once does not conduct that obtained is has Berzon, sympathy expressing Judge while part with proceed no further “not she does my position, writes appeal. the conviction could reverse see how She reaching merits].” [the Count without I held, has on several Supreme Court 5. The does she say that is because whether does not occasions, General when the Solicitor the Solicitor General that when not believe invalid, it is conviction is that a concedes error, we Attorney confesses States See, vacate conviction. appropriate to accept that confession free to are not 163, 165-66, Chater, 516 e.g., U.S. Lawrence v. conviction, errone- would which be vacate a (1996); Alva 133 L.Ed.2d or, law, suspect is Ias a matter of ous as 543, 544-45, States, 497 U.S. v. United rado likely, she believes more (1990); Mar 111 L.Ed.2d 439 110 S.Ct. "qualified” con- is free to make United States 405-06, States, 449 U.S. v. United iscal upon a court’s error conditioned fessions (1981). Of 66 L.Ed.2d tactical maneuver agreement course, ours and it obtaining the option is different than its role preserve the thus to certiorari, to be vacates it believes ordinarily grants a writ of a conviction affirmance difficult, question is more illegal. latter lower courts for case to the returns the ex- one wishes if be avoided but cannot requisite action. government has Ogles’s majority conceded that con- opinion notes. While the in Unit- encompassed duct within Caldwell, (6th ed States v. 49 F.3d 251 922(b)(3), it is our obligation to vacate Cir.1995), it, has much to recommend the conviction on the relevant count. To competing there are also considerations— “wrongful affirm a conviction” because the among oddity them the that the construc- government failed to obtain a favorable adopted tion in Caldwell would a gap leave verdict on the charge of which it believes precludes a criminal conviction for a guilty the defendant was is to reward it licensed dealer who sells outside his home unconstitutional prize consolation state but does so to a resident of his own incompetence. To do so is also to state. See 18 (provid- U.S.C. government’s condone the unethical efforts ing that a licensed dealer commits an of- manipulate this court’s exercise of its fense selling person to a “who the decisionmaking authority. That hardly licensee knows or has reasonable cause to proper conduct on the part of a federal believe does not reside in ... the State in reason, court. For that I regretfully must which place the licensee’s of business is dissent. located”). words, In other majori- on the

BERZON, Circuit Judge, with whom ty’s statute, view of the had Buda been a Circuit . Judges PREGERSON and California, resident of Ogles could not have join, FISHER concurring in majority been selling gun convicted for to him in I) opinion (except in Part and in the Arizona. judgment: difficulty Given the of the statutory in- I concur in majority opinion except terpretation here, issue I would not resolve for Part I. sympathize While I with much it in an en opinion banc in which only Judge of what dissent, Reinhardt writes impetus for addressing it comes from the I do not see how we could reverse the government’s last minute legal switch of conviction on I Count without reaching our position. And, any absent resolution of own regarding conclusion the reach of the statutory question, I do not believe we statutory provision underlying that convic- can tion; vacate the conviction on Count I. I position on that question join therefore controlling. is not do not in Part I of the majority opinion join but in the rest of the Indeed, I am not at all sure Judge opinion and in the result. Reinhardt is in supposing correct pursue, could not in separate cases, contrary legal positions. When

faced, here, complicated statuto-

ry scheme and ambiguous provisions that

have not been construed in binding prece-

dent, may be able to test application provisions by going

forward on arguable one of two statutory

theories in each case.

Here, the defendant has' never chal-

lenged applicability un- statute

derlying I, the conviction on Count as the

press a question serious view on the before us.

Case Details

Case Name: United States v. John Gilbert Ogles, United States of America v. John Gilbert Ogles

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 10, 2006

Citation: 440 F.3d 1095

Docket Number: 03-10439, 04-10069

Court Abbreviation: 9th Cir.