*2 October 1978 he was convicted in the TANG, Before ALARCON Superior and County Court for of Los An- KOZINSKI, Judges. geles Circuit in the State of California of the crime illegal possession machinegun of a ALARCON, Judge: Circuit violation of 12220of the California Penal § Walter Code, David (Tallmadge) punishable by crime a term of indicted on January imprisonment 1986 for knowingly exceeding year. one Cal. Pe- receiving being six rifles after (West convicted in nal Supp. 1987). Code 12220 § the State of California of a punisha- stipulation crime alleges further that Tallmadge ble a term imprisonment exceeding was told the state trial year one violation U.S.C. date of sentencing, February 1979, that 922(h)(1) (1982), for knowingly § and re- had been felony. convicted ceiving possessing a rifle having stipulation after provides January also that on been 26, 1982, convicted of a in the State of court “expunged state California in U.S.C.App. violation reduced to a misdemeanor” the 1978 con- 1202(a)(1)(1982). Tallmadge was also ac- viction. parties stipulated further cused, counts, in separate of making false in the same court proceeding state Tall- statements likely federally madge to deceive a li- was informed the court “that the censed acquisition dealer in the expunction of each order did release dangerous deadly weapons.” (Emphasis prior disclose the conviction obligation to added). application to a direct response any state or licensure public office 4,1982, Tallmadge January requested On agency.”

or local Angeles that the Probation Officer of Los County recommend the state trial court attorney his trial testified pending that it should dismiss the criminal contention support of the defendant’s *3 against pursuant proceedings to Cal. process of due he could that as a matter (West Supp.1987) 1203.4 Penal Code section charges of these federal not be convicted complied because he had with all the condi- federally by he was told licensed because probation. of The tions Probation Office purchase a rifle gun dealer that he could Tallmadge advised the state trial court that charges reduced to his state were because complied proba- had all conditions of with purposes. for The dis- a misdemeanor all “deserving having tion and was his of- testimony that their trict court found was proba- fense fixed as a misdemeanor.” A Thus, stipulated light in of the credible. hearing on tion termination was held Janu- facts, by and the evidence offered the de- ary the same state trial before fendant, the issue before the trial originally suspended pro- judge who had the effect of the reduction court was ceedings years in the matter three earlier. Tallmadge’s state conviction to a misde- prosecutor argued probation The that federally light meanor in licensed objected should be terminated but to the gun dealer’s statement that he could law- reduction of the offense to a misdemeanor. fully purchase long gun because the state judge The trial observed that because Tall- judge had reduced the convic- trial madge’s probation conduct while on In order to review tion to a misdemeanor. “exemplary” “apply the court would question, must examine ful- this narrow we forgive maxim ‘to err is human and to is surrounding ly the state court the facts ” divine’ and reduce the offense to a misde- representa- expunction proceedings and the (West under Penal Code 17 meanor Cal. § federally licensed tions made Supp.1987). dealer. prosecutor

The state then made the fol- lowing comments: PERTINENT I. FACTS thing, May I your One other Honor. Relating A. Evidence to the State address the Court? There is one other Proceedings Court regulation thing. According in to sentencing Tallmadge appeared for 1203.4, reduction says it that the order of February following his conviction probationer shall be shall state and the gun. possession machine for that the order does not relieve informed stayed imposition judge obligation state trial the con-' him of the to disclose pro- placed the defendant on response any sentence and in direct viction hearing, years. questionnaire applica- three At this in or any bation for contained following state- prosecutor public made the for office or for licensure tion Tallmadge’s presence any agency. in ment to the court state local discussing probation: in terms of or infor- “Dismissal of an accusation section does pursuant mation to this explicitly

I made known to would like own, possess, or permit person fire- the defendant at this time as to the any fire- custody or control any kind of fire- arms that it refers to upon being concealed capable arm rifles, arms, shotguns, they whether be his conviction person prevent ammunition, handguns, incendiary de- under Section 12021.” explosives. vices and Tallmadge if judge judge acquiesced. trial Later The trial then asked state "Yes, Tallmadge replied, proceedings judge trial told he understood. the state Thereafter, judge state trial proba- of his sir.” that as a condition to a reducing offense own, signed order possess any an tion he could “not use or Cal. Penal pursuant inquired, Code The trial then misdemeanor “You are pursuant terminating probation satisfied that his state of mind you 17§ addition, defense, 1203.4. described it would be a is that Cal. Penal Code § saying.” Tallmadge’s you ordered that what are court state trial aside, plea of not conviction set that be replied Mr. Weedman as follows: entered, guilty case was dis- be Well, seeking I am offer evidence pursuant missed to Cal. Penal Code whatever constitutional attack 1203.4. appropriate this case. reporter’s transcript from the It is clear I think form Transac- [Firearms proceedings that Tall- state court these misleading. tion I think it is Record] madge ordered the court not to constitutionally respect. defective probation. carry firearm while on Ignorance excuse, no law is years discloses that three later record also testimony such purpose, offered for that court, was told at the imagine your permit. Honor would not *4 prosecutor, the suggestion of that he could But I his of reading think it in that not firearm under carry a concealable Cali- lays fashion at least the foundation for a law, notwithstanding the fornia termination process due constitutional attack. probation of his and the dismissal of the requested district court then the charges. state No statement was made to government position. to state pros- its concerning right carry the defendant his to replied Tallmadge’s ecutor that state of a weapon nonconcealable under federal mind not a defense. noteworthy law. It that is also the state After foregoing colloquy the concerning judge explain Tallmadge trial not did to the Mr. proof, govern- Weedman’s offer of the of the charge effect reduction ment without calling witnesses, rested possession gun of a machine to a misde- relying stipula- on the facts set forth the purposes” meanor “for all under Cal. Penal tion. 17(b)(3). Code § Tallmadge then prior testified that probation terminated, After his Tall- any of purchasing the firearms described in madge’s attorney told there was no the he indictment had a conversation with problem owning gun. a nonconcealable Ferguson. Ferguson Lewis presi- was the dent (Cole’s). of Cole’s Manchester Arms Relating B. Evidence the Due Pro- The firearms referred to in the indictment cess Defense purchased were at Cole’s. records of At the the commencement of bench trial Alcohol, the Bureau of & Tobacco Firearms court, before the district judge the trial (hereinafter ATF) show at all that relevant advised counsel that he stipulated read the times in matter was a federally Cole’s facts and containing the attached exhibits Ferguson licensed dealer firearms. proceedings relevant before the state signed application each for Cole’s license to judge regarding Tallmadge’s trial convic- engage in business as a firearms dealer. illegal possession tion for gun aof machine Tallmadge Ferguson testified “Mr. that under California law. The district court said he had read and understood that I was inquired counsel, then of defense Charles problem, some kind of and there Weedman, your “What is defense?” Mr. felony have been a conviction. And I said Weedman advised court that his client changed that was to a misdemeanor convic- testify would tion, problem.” was no and there felony— he believed that when Tallmadge Ferguson testified underlying felony was reduced to a agreed owning problem that there was no a misdemeanor that thereafter gun felony because the had been conviction longer impose could no great- a sentence reduced to a misdemeanor. year, and, therefore, er than one for him purchase long Following Tallmadge’s testimony, least a would be permissible suggested under Mr. federal law. district court that Weedman agreed requisite specific so “there to do wasn’t intent as testify. Mr. Weedman attorney-client 922(a)(6).” regards his waived was found after court conducted privilege. guilty The district charging of each count him with of Mr. Weedman. examination possession firearm, direct of a how- ever, because the court concluded that his testified that advised Mr. Weedman “subjective belief” that he had not been purchase that he could his client felony punishable convicted or a crime period probation be- during the firearm by imprisonment year for more than one felony.” “he convicted of cause stood was not relevant because these crimes are also testified while Mr. Weedman complete upon proof knowing receipt charge “was a gun possession machine possession of a firearm. largely it was orchestrat- proceeding state agents by agents the ATF.” ATF ed During sentencing hearing, the dis- machinegun at the trial of the also testified given trict court commented that the advice charges. possession Tallmadge by experienced criminal testified that it is his view lawyer Mr. Weedman after his conviction was reduced to applicable California statutes a misdemeanor could “disarm him.” It fur- upon felony reduction of a conviction fact, coupled ther noted that this with his longer no a misdemeanor it was “open purchase weapons notorious conviction. from a that he dealer knew Santa Moni- ca,” was “all consistent with a mens rea to testimony, During Mr. Weedman’s effect, at, look doing anything am not to com- district court asked wrong.” explaining its conclusion that on the Fire- ment on whether 8.b. *5 Tallmadge’s of mind was not a de- addresses the ef- state arms Transaction Record charges receipt posses- fense to the of or felony fect of the reduction of a to a misde- firearms, sion of the district court did not government replied meanor. The that Tall- import discuss the of the evidence madge required concern- to answer ing federally gun in the affirmative because CaLPenal licensed dealer’s 8.b. requires person Code 1203.4 a whose fel- statement that it would not § ony expunged prior is “problem” possess record to disclose his weap- be a to receive or felony any application li- conviction for a judge ons after state trial has reduced a government again argued censure. The felony conviction to a misdemeanor. the court that a de- state of mind is not receipt possession

fense to the II. DISCUSSION charges. The court was told: government’s position would be Applicability [T]he A. the Federal Stat- of belief that defendant’s Felony utes to Persons Whose State Con- felony posses- not a is irrelevant to the viction To a Have Been Reduced Misde- charges. guilty sion He is meanor despite possessing gun state of mind of a Tallmadge claims that the federal stat- prior receiving guns as a felon and of as (1) prohibiting wrongful receipt utes of a prior a felon. by person firearm a who has been convict- exchange, After this Mr. Weedman testi- punishable by ed of a crime a term of Tallmadge following fied he advised imprisonment exceeding year one under 18 probation proceedings termination 922(h)(1) (2) possession U.S.C. § legally possess “long guns” he could but by person firearm a who has been convict- weapons not concealable because the felony U.S.C.App. of ed a under charge possession gun of of a machine had 1202(a)(1), apply to him because do not § been reduced to a misdemeanor. prior possession his conviction for of a ma- chinegun in violation of Cal.Penal Code The district court found guilty to a misdemeanor charging of each count was reduced with § complet- making concerning pri- purposes successfully false after he statements all probationary or conviction. The court concluded that ed his term. 922(h)(1)applies anyone prisonment “un- year. Pruner, for one Section for, or of F.2d at 872-73. We ... convicted ... held in der indictment Pruner that in applying 922(h)(1), by imprisonment for a section punishable “‘we look a crime solely state year law to determine exceeding one U.S.C. whether the term — ” permissible prison maximum term 922(h)(1). Possession of a machine exceeds § ” year.’ (quoting one Id. at 873 punishable by “im- law is United under California Houston, States v. prison, in the state a fine prisonment Cir.1976)). Thus, permissible the maximum ($10,- thousand dollars ten not to exceed punishment possession in California for of 000), imprison- such fine and by both machinegun clearly a is (West covered Cal.Penal Code ment.” § 922(h)(1). language of 18 U.S.C. Cal.Pe- felony § In order to Supp.1987). avoid nal Code 12220. conviction, § Tallmadge requested at the time sentencing the state court trial before Tallmadge asserts that the reduction of impose a sentence of judge that the court charge possession state of a ma- county jail, and then sus- year one in the chinegun precludes his for a vio- conviction of sentence. That re- pend imposition applies lation of section 1202. Section 1202 Instead, quest the state was denied. any person who “has been convicted ... suspended imposition of sentence and felony____” App. 18 U.S.C. period placed Tallmadge probation for a 1202(a)(1). 1202(c)(2) Section defines a § years. of three “felony” “any punishable by offense imprisonment for exceeding a term one Tallmadge argues that the reduc year, (oth- but does not include offense upon tion a misdemeanor of the crime to involving er than one explo- a firearm or completion the term the successful misdemeanor____” sive) classified as a Id. probation precludes prosecution under sec 1202(c)(2). § 922(h). tion Under California law punishable Although is defined as “a crime is which the definition contains an by imprisonment exception with death or in the state for offenses classified as misde 17(a). prison.” state, Cal.Penal Code We re meanors exception inappli jected a similar contention United States cable to the instant matter because Tall *6 Pruner, Cir.1979). madge’s v. In predicate 606 F.2d 871 conviction involved a Pruner, charged involving defendant was also firearm. Offenses a firearm are 922(h)(1). with a 18 expressly violation of U.S.C. excluded from the misdemeanor § alleged Id.; Houston, Id. at 872. exception. The indictment that he 547 F.2d at 106 1202); had (construing been convicted in California of receiv section see also Dicker ing property, punishable by Inst., Inc., stolen a crime son v. New Banner 460 U.S. imprisonment 103, exceeding 113-14, 986, 992, for a term one 103 S.Ct. 74 L.Ed.2d year. provided Id. In 1968 California law 845 punishment receiving that for stolen argues Tallmadge also the statutes that property “imprisonment pris in a state under which he was convicted are void for on for not in years, more than 10 vagueness they give because fail to suffi- county jail year.” for not more than one potential cient notice to violators. In addi- CaLPenal Code 496.1. The state trial tion, he claims that the district court erred days in sentenced Pruner to 60 concluding proof of intent was not county jail, placed probation him for 922(b) required under section and section years, three and fined him Id. at $250. summarily rejected vague- 1202. We 872. Under California law the crime be argument ness as to section 1202 Hous- came a misdemeanor on the basis ton. 547 F.2d at 107. In we held Pruner imposed. sentence Id. 922(h) regulatory section was a mea- argued

Pruner before this require court that at sure that did not scienter. 606 firearms, purchased time he language after- F.2d at As the in the 873-74. imposition identical, nearly sentence in the state two sections is these hold- court, his crime punishable by ings apply equally was not im- to both. Estoppel against self-incrimination Entrapment by they after were

B. informed the CommissionChairman that expressly court Although the district they right I, had a to do so under article that he believed found that section 10 of the Ohio Constitution. Id. at possess rifles without could receive 425, 79 at S.Ct. 1259. The Commission’s of the reduc- violating federal law because advice contrary to Ohio law. at Id. conviction to a misdemean- tion of his state 438-39, 79 S.Ct. at 1266-67. An Ohio im- purposes, rejected his state or for all ground munity deprived protec- statute them of the process mind-due defense to those of- privilege against scienter is not a defense tion of the self-incrimina- conclusion, reaching In fenses. Supreme tion. Id. Court reversed the applica- district court did not consider expressed convictions. The Court its hold- entrap- process defense of bility of the due ing following in the language: fairness, by estoppel. In it should be ment We hold that in the circumstances of defense counsel advised noted that while cases, judgments these of the Ohio charges that his defense to the the court Supreme affirming Court the convictions grounds, he process due was based on violated the Due Process Clause of the authority concerning failed to cite Fourteenth Amendment and must be re- consequences of official mis- constitutional versed, except conviction, as to one as to entrapment by estop- leading. The issue of equally which we are divided. After the pel was not before us Pruner Hous- Commission, State, speaking for the act- ton. did, ed as it to sustain Supreme the Ohio Hsieh Hui Mei United States v. judgment Court’s would tobe sanction cert, (9th Cir.), Chen, denied, 754 F.2d 817 entrapment an indefensible sort of 1139, 2684, 471 U.S. 105 S.Ct. 86 L.Ed.2d convicting exercising a citizen for State — (1985), we described the defense of privilege clearly which the State had entrapment estoppel “En- as follows: told was available to him. by estoppel applies trapment when an offi- 425-26, Raley, 360 U.S. at 79 S.Ct. at 1260. cial tells the defendant certain conduct Louisiana, In Cox v. U.S. the defendant offi- believes the (1965), S.Ct. L.Ed.2d 487 the Su- Louisiana, (citing cial.” at 825 Id. Cox preme applied Raley reversing Court 13 L.Ed.2d 487 persons conviction of who were arrested (1965)). Chen, ap- In Hsieh Hui Mei one picketing across the street from a pellant contended that the trial court erred courthouse. Id. at 85 S.Ct. at 484. in failing jury to instruct the on the de- given permission The defendants were entrapment by estoppel. fense of at 825. affirmed the evidence hold their demonstration on the west side We because showed the official “told of the street the Chief of Police. Id. [the defendant] *7 illegal, 569-70, ... that the conduct was and 85 S.Ct. at 483. Some time there- [the stated that she knew her ... after the demonstrators were to defendant] ordered actions were unlawful.” Id. 570, disperse by the Sheriff. at 85 Id. refusing They at 483. were arrested for to concept entrapment of unintentional obey dispersal the order. The court con- mistakenly an official who misleads a arrest, cluded that at the time of his Cox person into a violation of the law was first in his continued belief that “justified applied by Supreme Raley the Court in v. original grant permission of because 1257, Ohio, 423, 79 S.Ct. 3 L.Ed.2d right stay for the he had a to where was appellants Raley, In the were required additional to conclude few minutes contempt refusing convicted of to an- 572, meeting.” the at 85 S.Ct. at 485. Id. questions swer about Communist or sub- Raley in held that Due The Court “[t]he versive activities at of the Unam- sessions permit convictions Process Clause does not erican of Activities Commission the State 424, circumstances.” to be obtained under such of Ohio. Id. at 79 S.Ct. at 1259. The appellants privilege had their at 85 S.Ct. at 484. claimed Id. v. for, United States Penn- in recently, indictment has been in convicted

More Cory., Chem. Indus. U.S. sylvania of, punishable a crime by imprison- court (1973), 36 L.Ed.2d 567 655, 93 S.Ct. a term exceeding ment for one year____” Court, relying Raley and Supreme on 922(d)(1)(1982). 18 U.S.C. § deny corpo- Cox, held that it was error to a Department Treasury re- present right evi- defendant to rate quires a licensed firearms dealer and a affirmatively had misled that it been dence buyer prospective to fill out a form entitled agency responsible administrative by the Firearms Transaction permit Record to believing apply not in law did into to may lawfully licensee determine if he Id. at 670-75, 93 S.Ct. at situation. person. sell a firearm to such The form 1814-17. requires also the firearms “to dealer alert applied of offi- we the defense In [buyer] the transferee of restric- certain misleading to the conduct of a local cial possession tions on and of Timmins, board United States draft arms.” The form provides further Cir.1972). (9th 386-87 464 F.2d We transferor of the firearm is held in Timmins that the must “[t]he defendant [seller] informa- responsible that he relied on the false for determining show the lawfulness transaction____” that his reliance was reasonable. tion and of duty To fulfill this v. Lan- 387; see also Id. United States provides the form that the firearms dealer Cir.1970) (to sing, “should be familiar with the Gun Control misleading, the defense of official establish (18 44) Act Chapter of 1968 U.S.C. and Title must “that his re- the defendant establish VII, Receipt Unlawful Possession or of misleading liance on the information was (82 Firearms, 197), Stat. and 27 CFR Part person sin- reasonable—in sense that (Commerce Ammuni- Firearms and cerely obeying desirous of the law would tion).” true, accepted have the information Thus, Congress only granted has not cer- put would not have been on notice make inquiries”). persons right engage further tain the exclusive firearms, selling in the it business has us, In the matter before the uncontra- given duty also them the affirmative evidence dicted established that inquiring prospective of a whether buyer possessed received and firearms reliance representation he has criminal record make upon federally of a li- that would censed dealer person that a convicted purchase for him unlawful a firearm. felony purchase of a in a state court could addition, 922(d)(1). U.S.C. § if subsequently firearms the offense had Department Treasury requires licensees been reduced to a We misdemeanor. buyers concerning inform the restrictions entrap- no doubt under the doctrine of by Congress imposed purchase by estoppel person ment could Clearly, firearms. States United prosecuted 922(h)(1) under 18 U.S.C. §§ Government has made licensed firearms 1202(a)(1)if repre- an ATF had official agents federal dealers connection with person sented that a convicted gathering dispensing informa- purchase charge can firearms after the has purchase tion on the Under firearms. Here, been reduced to a misdemeanor. circumstances, buy- these we believe that misleading regarding statement the lawful- right rely er representa- has the Tallmadge's proposed ness of conduct was dealer, tions of a licensed firearms who has govern- made a licensee of the federal *8 been made aware of all the relevant histori- ment. We noted in Pruner that Congress facts, person that may cal a receive and placed duty has a on firearms dealers to possess weapon if his a conviction possi- their regarding customers a to a misdemeanor. See reduced has been ble criminal record. A 606 F.2d 874. States, 369, Sherman United may licensed dealer firearm not sell a 373-75, 821-22, 848 any person if 2 L.Ed.2d 78 he knows or reasonable has (1958) (entrapment unpaid cause person believe that such “is under activities of an

775 KOZINSKI, Judge,, by dissenting. disowned Circuit cannot informer government).1 reversing In the conviction of a defend- may ant who have stumbled into criminal rely solely on the Tallmadge did activity inadvertently, today court representations of the licensed misleading just reaches a result. But it does so at too sought He also and ob firearms dealer. high price, “jus- a for this is a case where experienced criminal advice from an tained rightly outweighed tice to the individual is right possess a lawyer regarding his by larger interests on the other side of light of the state firearm nonconcealable The Common Holmes, the scales.” O.W. against possessing judge’s admonition trial Law 48 concealable weapon. by He told his a was “long possess a attorney that he could Introduction evidence estab

gun.” The uncontradicted fire Tallmadge’s reliance on the lishes that 1978, Tallmadge In was convicted in Cali misleading was dealer’s information arm Superior felony: posses fornia Court of a legal light attorney’s reasonable sion of a machine in violation of Cali rifle, purchase a and opinion that he could poten fornia law. The conviction carried a judge and comments of the state trial penalty in year. tial excess of one Cal.Pe deputy attorney proba at the district id. (Deering Supp.1987); nal 12220 Code § proceedings. prosecu tion termination 1985). (Deering In the Califor Tallmadge conviction of for the tion and Superior nia Court issued an order under firearms, possession of after 17(b)(3) California Penal Code section de agent government misled who claring the offense a misdemeanor “for all believing weapons him the into that sold purposes.” year, Tallmadge Later that contrary his conduct would not be to feder purchased separate four rifles on four oc law, process. violated due al consequence, casions. As a he was indict convicted REVERSED. ed and of four counts of unlawful upon preme applied relied the Tenth Circuit’s Court or this circuit that 1. The dissent has have entrapment by estoppel required Browning, defense of have F.2d decision in United States v. cert, showing denied, deception. (10th Cir.1980), a of fraud or intentional In U.S. Smith we stated: (1981) support 101 S.Ct. 68 L.Ed.2d 846 law, entrapment To establish as a matter of interpreta- of the conclusion that an erroneous point undisputed the defendant must evi- government agent tion of the law is not making patently it dence clear that an other- binding government. Dissent at 7. The person wise innocent was induced to commit language Browning quoted by from the decision illegal by trickery, persuasion, act Furthermore, Browning the dissent is dictum. government agent. fraud of matter, factually is dissimilar. In the instant Chen, (citing 802 F.2d at 1124 Hsieh Hui Mei undisputed is that was misled. 821). F.2d at Our decision in Smith was limited Browning, ap- the Tenth Circuit stated that the requirements to the of fraudulent or intentional pellant “was not shown been misled entrapment. We did not discuss the defense of having to have acted on the basis been mis- entrapment by estoppel in Smith. entrap- led.” F.2d at 702. The defense Chen, distinguished Hui Mei In Hsieh we be- by estoppel inapplicable is ment if the defend- entrapment entrapment tween intentional ant is not misled. The Tenth Circuit also noted estoppel. entrapment We stated that is Browning guilty that viola- "deliberate proved as a matter of law when there is evi- escape liability tion of one statute in order to "trickery, persuasion, dence of or fraud of a under another statute." Id. at 704. There is government agent.” 754 F.2d at 821. Later in nothing in the record in instant matter that discussing entrapment by estoppel, we said finding support would of deliberate violation this defense is established "when an official tells expressly of the law. Instead the district court defendant that certain conduct he was found that did not believe the defendant believes the official.” Id. at 825. Thus, violating the law. Chen, person under Hsieh Hui Mei who Smith, The dissent also cites United States v. govern- been misled has statements (9th Cir.1986) 802 F.2d 1119 Chen, and Hsieh Hui Mei agent into the that certain conduct ment belief proposition committing for the not be convicted of is lawful act, entrapment by estoppel requires proof notwithstanding of trick- the fact ery, persuasion, government agent. agent to deceive or or fraud of a did not intend entrap cases from the Su- the defendant. Dissent at 8. None *9 776 firearms, 922(h)(1) “entrapment” 18 “estoppel” U.S.C. or do § not find

(1982), posses way count of unlawful their any and one into of the briefs or tran- 1202(a)(1) sion, (1982 below; app. scripts & single 18 U.S.C. not a one the cases § 1986). III on which the Supp. majority relies respect with by this issue is cited party. either Tallmadge contends that these statutes apply majority’s because his state con- do not reliance on the doctrine of entrapment by reduced to a estoppel viction was misdemeanor. misguided 922(h) applies anyone very But section “con- could have consequences, serious un- punisha- settling many important court of ... a crime victed and heretofore un- imprisonment exceeding for a term by questioned principles. ble I have four applies year,” any major First, one while section concerns. panel believe the felony,” allowing ... of a errs in person “convicted defined rely on state- punishable “any by imprison- purportedly ments by gun dealer, offense made exceeding who is not even year.” ment for a term one employee, federal much 1202(a)(1), (c)(2). less an official U.S.C. Because Tall- authorized to bind the § government. Second, madge punish- important practical was convicted an offense policy imprisonment against able for more than one considerations counsel applying entrapment year, clearly apply. federal statutes defense to this type Third, of situation. Pruner, the record simply 606 F.2d United States does support estoppel. not (9th Cir.1979); Finally, Bergeman, United States v. estoppel (9th entirely defense is Cir.1979); inapposite 592 F.2d United where the crime does Houston, require not scienter. States v. Cir.1976). Tallmadge also contends that Discussion vague the statutes are so as to violate due process and that scienter should be a re- I. quired element of those crimes. These ar- estoppel defense has heretofore been guments are likewise foreclosed this cir- very construed narrowly “per- because it Pruner, 874; Houston, cuit. 606 F.2d at the individual official to alter or sus- mitís] 547 F.2d at 107. pend statutory penal simply by law appellant recognizes Even that “all of misinterpreting Note, it.” Applying Es- presented Appeal issues appear to toppel Principles Cases, in Criminal already carefully been considered 1046,1052 (1969). Yale L.J. qualify, To others”; nonetheless, circuit and defense must very clearly establish three urges us to reconsider Ap- those (1) decisions. elements: that the official involved was pellant’s Brief at 9. majority quite interpret authorized to enforce or the stat- rightly rejects ute; this invitation (2) since an that the official’s statements af- en panel may banc prece- reconsider firmatively defendant; (3) circuit misled the Nevertheless, dent. the majority reverses reasonably defendant relied on conviction, Tallmadge’s creating a new them. Model See Penal Code motion, criminal defense on its 2.04(3)(b)(iv) (1985).1 own without Although Tall- § argument the benefit of parties madge difficulty would have establishing appropriate an factual elements, record. The words any of my principal these con- provides: 1. The Model Penal Code administration or the law de- enforcement of (3) fining legally A belief that conduct does the offense. con- (4) prosecution stitute an offense is a prove defense to a The defendant must a defense aris- upon for that offense based such ing (3) conduct under Subsection of this Section when: preponderance of evidence. (1985) (emphasis Model ed). Penal Code 2.04 add- (b) acts in [a defendant] reasonable re- emphasize The comments that this defense law, upon an official liance statement of the exception principle is "a limited to the ... afterward determined to be invalid or errone- culpability generally required is not as to the ous, (iv) interpre- contained in ... an Id., official body charged by illegality explan- of the actor’s conduct.” public tation officer atory note at 268. responsibility interpretation, law with

777 majority apparent willing- is with the s speak cern thorized to for government. the only ness to allow individuals with the most This seems to run squarely contrary to the relationship government tenuous to the to principle that minor federal may officials respect interpretation bind it with to the government not bind the to erroneous in- and enforcement of the criminal laws. terpretations of the example, law. For Crop Federal Corp. Merrill, Ins. v. 332 A. “The case on law mistake of law 380, 1, U.S. (1947), 68 S.Ct. 92 L.Ed. 10 the supports proposition the that the reliance Court held that Crop Wheat misinterpretation on an official of the Insurance law Regulations binding were may defense be invoked when farmers who appropriate they official relied on is the offi- claimed were misled represen- par- cial—the one authorized to render the tations County Agricultural of the Conser- opinion ticular advice or later found to be vation Committee. The committee had mis- Note, erroneous.” United States v. Bark- interpreted the applicable regulations and Misapplication er: the Reliance on an told the farmers that their crop reseeded Interpretation the Law De- regulations, was Official insurable. The the Court 809, fense, (1978) 66 Calif.L.Rev. 825-26 held, binding regardless were of what the Interpretation [hereinafter ]. Official may farmers have been told or the “hard- Thus, Ohio, 423, in Raley v. 360 U.S. 79 ship resulting from ignorance.” innocent 1257, (1959), S.Ct. 3 L.Ed.2d 1344 defend- 383-85, Id. at 68 S.Ct. at 2-3. ants relied on assurances the chairman later, Almost four decades in Heckler v. legislative of a state they commission that Servs., Community 51, Health 467 U.S. privilege against were entitled to assert the 2218, 104 (1984), S.Ct. 81 L.Ed.2d 42 Despite self-incrimination. impli- clear Court vitality reaffirmed the of Merrill. cation that subject defendants would not be In Community Services, Health defendant contempt asserting for privilege, payments CHS received CETA through an they charged were contempt with and con- intermediary, Travelers Compa- Insurance Supreme victed. The Court reversed. Its ny. gave Travelers an CHS erroneous in- however, ruling, very one, was a narrow terpretation of a certain reimbursement emphasizing advising official and, result, rule as a approxi- CHS received “clearly appeared agent to be the of the $71,000 mately in overpayments from the position State in a give such assur- government. The Third Circuit held that 437, ances.” Id. at 79 S.Ct. at 1266. Like- government estopped from de- wise, Louisiana, 559, Cox v. 379 U.S. 85 manding repayment because of the “af- 476, (1965), S.Ct. 13 L.Ed.2d 487 defendant firmative agent misconduct” of its Travel- was misled “the highest police officials Supreme ers. The Court reversed. Al- city,” including police. the chief of though majority open possibili- left 571, Id. at 85 Similarly, S.Ct. at 484. ty estoppel apply could in certain cir- United States v. Pennsylvania Indus. cumstances, the Court reaffirmed the nar- 655, Corp., Chem. 411 U.S. 93 S.Ct. row Merrill standard agent for when an (1973), 36 L.Ed.2d 567 the defendant ar- may government. bind the general As a gued longstanding regulations of the rule, noted, the Court “those who deal with agency responsible enforcing the stat- expected the Government are to know the ute denied it warning fair of what conduct law and rely conduct intended to treat as crimi- agents contrary Government to law.” Id. nal.2 at at 2225. Here, the statements on major- which the ity relies as the basis estoppel principle applied were This in a criminal uttered closely someone who is not even context resembling our case in employee, federal much less an official au- Browning, United 630 F.2d 694 States Scott, universally agree 5.1, 2. Commentators almost A. Substantive Criminal Law authority (1986); impor- Boyce, official is of crucial R. Perkins & R. Criminal Law estoppel (3d 1982); Hall, Interpre- tance to the Ignorance defense. ed. and Mistake Official tation, 828; Law, (1957). 66 Calif.L.Rev. at see W. & LaFave in Criminal 33 Ind.L.J. cert, denied, (10th Cir.1980), Services, it. Community involving Health private entity administering L.Ed.2d 846 a federal 101 S.Ct. program, preclude an arms would seem to re- Browning, president former sult. attempting to *11 convicted of company, was of the customs administration obstruct the only gun B. Not did the dealer lack estoppel ground claimed laws. He authority to government, rep- bind the by misled an official of had been

that he resentations do not amount to the “affirma- The Tenth Cir- the U.S. Customs Service. required tive misconduct” estop- to invoke estoppel is that the doctrine cuit noted pel against government. estoppel government applied against with requires resembling defense conduct en- “great reluctance”: trapment by affirmative act an offi- —some the United It is fundamental cial that misleads the defendant. See San- representations estopped by States is not INS, 488, (9th tiago v. 526 F.2d 491-92 cert, by agent authority without made an Cir.1975), denied, 971, 425 U.S. 96 transaction____ government bind the 2167, (1976). S.Ct. 48 L.Ed.2d 794 This is something who relies on inter- more than “a mere ... failure to [0]ne by governmental Marsh, pretation official as- inform or assist.” Lavin v. 644 error____ 1378, 1981); it F.2d sumes the risk that is It 1384 Cir. see also 438, held or said that “the Raley, has also been 360 U.S. at 79 at 1266 S.Ct. government scarcely (noting misleading”). could function if it “active by employees’ its unautho- were bound Nothing gun alleged dealer is to have representations.” Goldberg rized remotely entrapment, said even resembles 477, (2nd Weinberger, 546 F.2d 480 Cir. at least as that term has heretofore been cert, 1976), denied, 937, 97 S.Ct. See, interpreted. e.g., United States v. (1977). 53 L.Ed.2d 255 Smith, (9th Cir.1986) (“[t]o entrapment establish as a matter of bar, govern- In the case at at least one law, point undisput- defendant must agent, Regan official], ment Customs [a making patently ed evidence clear that Browning regarding did misinform person an innocent otherwise was induced requirements complied to be with when illegal by trickery, per- to commit the act filling out the Customs forms. The suasion, government agent”); or fraud of a by Regan statements made were incor- Chen, United States v. Hsieh Hui Mei cert, law, however, rect. Under the settled (9th Cir.), denied, F.2d incorrect govern- statements made U.S. 86 L.Ed.2d 701 may ment official not serve as a basis for majority’s contrary conclusion holding government estopped from reasonably interpreted relaxing could be enforcing regulations its even if the mis- entrapment. the standard for information Browning’s had led to sub- Moreover, regardless C. of what sequent conduct. said, gun may dealer have would find Id. 702-03. The defendant’s conviction Tallmadge’s reliance on such advice inher- upheld. ently gunA unreasonable. dealer is not a

Tallmadge’s estoppel government official; private claim is far weaker he is a individ- than Browning’s. Browning was misled ual whose economicinterest lies in consum- transaction, someone employed by mating scotching who at least was it. government, an very agency officer of the Had an authoritative in- wanted charged law, administering applicable terpretation applicable with he could laws. Here the Department statements are attributed well have written to the private Alcohol, to a party Treasury, whose connection to Bureau of Tobacco government Firearms, in- is his federal to sell name and address is license whose wholly unprecedented firearms. It Transaction scribed on the Firearms Or, bind the he interpretations required to fill out. Record he was the law office of tenuously might inquired someone so related to have of his local Attorney obliged get opinion as to its en- an lawyer the United States from a Alcohol, or the Bureau of policy in area. Had he re- Tobacco and forcement Firearms before each sale? respon- from information ceived erroneous agencies, might he may hundreds, officials in those A sible dealer make perhaps thousands, estoppel. claim legality entitled to of sales. The well have been however, Instead, may chose the one of those transactions litigat- chain, years ed after the enforcement event. dealer link weakest may gone out of business or sold vague description of his situation gave a died; the store to someone else or the response, an off-the-cuff and received transaction have been consummated just happened to be what wanted which or, employee; a former likely most pp. to hear. See 780-81 infra. all, *12 just hap- no one will remember what Holding Tallmadge’s reliance on this pened. government will seldom if does much to under- advice was reasonable ever be able to contradict a defendant’s orderly enforcement of the crimi- mine the self-serving account of who said what to nal laws. In words that have lost none of imagine I every illegal whom. can time, vitality passage their Oli- with purchase suddenly “ap- will have been century Holmes noted over a ver Wendell proved” by the dealer. ago: “It is no doubt true that there are How does one deal awith convict de- many cases in which the criminal could not buy gun? example, termined to For if law, breaking he have known that was Tallmadge had been turned down to admit the excuse at all would be to but dealer, prevented first what would have encourage ignorance where law-maker going yet him from to another dealer and has determined to make men know and gullible another until he found one Al- obey____” The Law at 48. Common enough to tell what he wanted to lowing gun Tallmadge rely deal- Indeed, ineligible buyers might hear? be acquiescence indeed er’s half-hearted purchases by able to launder their find- “to thwarts law-maker’s determination ing unscrupulous willing give dealers obey.” men make know and “right” “right” ques- answer to the tion. II. government The idea that the holder of a Strong policies against also militate estop government’s license can enforce- majority’s expansion estoppel de- penal explosive poten- ment of its has laws Authorizing gun legiti- fense. dealers to majority’s tial.3 The not limit- rationale is illegal gun mize otherwise transactions will dealers; gun many ed to holders of other nightmare. create an If administrative government neatly licenses could fit into dealers, gun possibly govern- and other opinion’s example, rationale. For li- licensees, ment can bind the United States quor prohibited by store clerks are law legal underly- as to the and factual issues selling age from alcohol to those under the ing the difficult of whether an check, forgets of 21. If a clerk applicant buy gun, is entitled to own mistake, makes a does that exonerate a they investigators, must become fact-find- buys liquor illegally? minor who Will the legal experts prob- ers and to boot. illegal stamps use of food be excused be- countless, lems this would raise are but grocery mistakenly cause the store clerk here are a few: purchase? allows the There are countless gun How can parties dealer be sure he is private other who hold licenses interpreting federal, correctly? govern- the law Most from the state and local gun scarcely equipped cases, dealers requires are to ments. In most the law they reasonably make determinations. Will sure that the licensees make See, majority’s theory against grain e.g., Lodge, equal protection 3. The runs clause. Moose Irvis, standing proposition decisions for the that the Inc. v. (1972); Day holder of a Island Yacht license does act L.Ed.2d 627 Dezell 1986). Club, purposes under color of state law for F.2d Cir. legal. today problem. But before no there agreed transaction was no He and they could issue “Get gun question. one assumed sold me the with no Free” cards. Licensees can of Jail Out R.T., 11, 1986, March (emphasis at 10-12 many illegal certainly help prevent transac- added). tions, they ought given not be but testimony This if taken at face —even suspend or alter the power to law.4 value as it came from defendant’s own portray Tallmadge mouth—does not as ear- III. nestly seeking legality advice to the event, provides the record scant Instead, the transaction. it shows that estoppel factual basis for an defense. Ferguson, dealer, gun expressed following testimony is the I evidence doubts about buy whether could point: able to find on this have been gun convinced the dealer Ferguson A Mr. [the [TALLMADGE]: anyway to sell him one everything because gun that he had said read dealer] right.” Indeed, “all was had the deal- that was in some kind of a understood er asking not taken the initiative of Tall- a felo- problem, there been madge whether he had been convicted of a ny conviction. felony, the issue would never have come changed to a And I said up. Tallmadge certainly everything did conviction, and there misdemeanor could to conceal the relevant facts. While *13 problem. no he was well aware that he had been con- punishable victed of a crime by imprison- A: He that it said—he said was—if it year, ment for over a separate on four misdemeanor, was a then there is no Question occasions he answered “No” to problem. 8(b) on the Firearms Transaction Record I explained judge that it was—the (FTR). question This asked if he had ever conviction, made it a misdemeanor specifi- been convicted of such a crime and that it. cally “yes” warned answer was re-

quired even if “a has conviction been dis- Q: Well, aside, charged, pursuant Tallmadge, Fergu- Mr. did Mr. set or dismissed expungement son to an you understand that had con- or rehabilitation been stat- victed of a felony gun it was reduced ute.” We have no idea what the before deal- to a beyond misdemeanor? er knew this false statement Tallmadge’s FTR and assurance asking That you is for what was > problem” “there was no because “the mind. judge made it a misdemeanor.”5 A. Yes.

Moreover, Tallmadge’s if even account of A: ...I can’t remember exactly gun what the conversation with the dealer were said, sufficient, we but it was his understanding legally judge the district need that it could felony, have been a Tallmadge’s and he not have believed it all. testi- asked about it. judge equivocal And I said the mony is as to what he told the misdemeanor, so, therefore, conviction, made it a admitting dealer about his Attorneys 4. Tallmadge’s lawyer. Majority opinion hold licenses from the state autho- at 775. rizing interpret they them to the law. Yet do thereby agents government, not become Actually, 5. what said about whether capable binding it to erroneous advice. We or a his conviction was misdemeanor consistently have held that criminals cannot legality purchase. no relevance to the has faulty private claim reliance on the advice of only information relevant under federal Indeed, specifically rejected counsel. we this punishable by the offense law was whether defense to a conviction under section year. imprisonment for more than a 18 U.S.C. 1202(a)(1). Locke, United States v. 542 F.2d 922(h), 1202(c)(2). gun §§ dealer's (9th Cir.1976); see also United States v. concerning crucial information fact was (8th Hayes, Cir.1976). 535 F.2d I am Tallmadge's negative answer on the FTR. particularly therefore majority's troubled allegedly reliance misleading advice exactly by negating remember what was a defendant the existence he does not 11, 1986, R.T., at 12. Al- March state charged. said. mental essential to the crime findings of fact were though specific Thus, Tallmadge might escaped have con- defendant, there are indica- by the waived 922(a)(6) (which pro- viction under section simply did not the trial tions that knowingly making representa- hibits false self-serving Tallmadge’s story.6 believe FTR) tions in the because his state of mind specific was a element of that crime. But parties neither the problem is that Tallmadge’s develop belief that he sought to this was entitled to nor the court below evidence, estoppel was probably purchase because firearms is not an element of the defense at trial. Had it not raised as a possession. crimes of These been, might well “uniformly interpreted crimes have been greater detail cross-examined requiring only that the defendant inwas his conversation with dealer about felon, fact a convicted and not that he testify. dealer to Be- even called actually knew he was a felon.” Newton v. reliance cause the of reasonable Court, Superior (9th 803 F.2d essentially misleading information Cir.1986) (Alarcon, J.) (citing authority factual, answering it at we should circuits). Thus, from six in United States level, certainly not on thin Quiroz, v. 1971), 449 F.2d Cir. presented in this case. record required we held that scienter was not 1202(a)(1). a conviction under section Ap- IV. Quiroz, Locke, in United plying States Finally, majority’s analysis I fear the (9th Cir.1976), we held it con- reads scienter into statutes we have irrelevant that Locke had been advised so, If sistently require held none. that is public defender that was not a convicted opinion ignores teachings of our felon. cases and conflicts with the Eleventh Cir- Pruner, in United States v. Similarly, cuit’s decision United States v. Brus- *14 cert, (9th Cir.1979), 606 F.2d 871 defendant ar- (11th Cir.), cantini, gued that his conviction for unlawful re- denied, ceipt of a firearm should be reversed be- L.Ed.2d 233 cause he did not know his earlier crime con- nolo plea Bruscantini entered a imprisonment carried a maximum term of tendere burglary charge to a state and was exceeding year. Although recog- one we by prosecutor judge told a state and a state may control statutes nized disposition that this of his case a cases, work harsh results some we held conviction. Later he obtained two firearms knowledge that the defendant’s of his sta- charged and with unlawful tus was not a defense: Cox Citing firearms a convicted felon. Raley, argued and the defendant that the purchase may It be true that the of hand- estopped should be because guns in is itself an innocent act and that state assured him he authoritative officials of the innocence of the act there because was not a convicted felon. The Eleventh possibility injustice exists the to one defense, rejected partly Circuit this be- purchases gun, who unaware that “knowledge cause of one’s status as a con- punisha- had committed a crime that was victed felon is not an element of the of- exceeding imprisonment a term of ble fense.” Id. at 641-42.7 However, year. one we that the believe recognized, potential injustice outweighed for such Bruscantini being As misled danger guns by government officials can exonerate created if are al- in, Raley example, in- 6. For after the evidence was 7. The court also noted that Cox and law, interpreting state volved state officials suspicion district articulated his that “Mr. pur- involved state officials R.T., while Bruscantini porting April knew it was a crime.” interpret federal law. 761 F.2d at 1986, at 10. 641-42. dangerous into the hands of slate, to fall defendant a yet lowed clean federal law as felons. persons such makes the Again record indelible. again we see defendants who have been The court also noted that 606 F.2d at 874. given solemn assurances those they put have Pruner on notice the FTR should justifiably trust —state judges, prosecutors, himself “he must either determine for defense carry possible they may enjoy did not counsel—that past that his crime now rights exceeding year citizenship, one all imprisonment including term of that of violating owning gun, yet Id. they or risk find that [the law].” committed a federal they crime when exer- Therefore, Tallmadge erroneously if even supposed right. cise that By large, redesignation of his con- that the believed cases, these tend to be hard evoking far purchase guns, him to viction allowed Yet, more anger. sadness than they when reality a convicted felon fact that he was prosecuted, are they inevitably when of mind controls. Because his state has no convictions, result in we relevance, have the uncom- not whether he came it matters duty affirming. fortable normally to that as a result of erroneous ad- We belief discharge recognized duty, though vice or on his own. Pruner distasteful may may that this rule work harsh results in be. cases; may some this well be one. I re- and, But the discomfort is there as the however, spectfully suggest, that we are demonstrates, result in this case must be result, temper

not free to this no matter good reckoned with. A might start well be unpalatable how we find it. judicious with more prosecutori- exercise of al discretion. This is not the first case of Epilogue this kind where I had to wonder whether It they is the nature of dissents that prosecution any purpose served other prophecies; bristle with Cassandran pad prosecutor’s than to batting aver- certainly exception. one is Fortunately, no Also, age. intergovern- because of the however, most of us lack Cassandra’s clair- offense, mental nature of the wisdom and voyance and few of the pre- calamities we prudence would seem to counsel an effort pass. hope this, too, dict come to by the federal authorities to educate state my prove dissent unexceptional. will If the officials as to the applica- intricacies of the majority opinion is narrowly read a—as law, thereby stemming ble federal the flow judicial response perceived to a injustice of misinformation given to individuals and not as a wholesale reassessment of clemency by state authorities. While important legal principles case will —the government counsel assure us from time to ripple law, on the waters of the not the *15 works,” time that such an effort is “in the my predicts. tidal wave dissent yet consequences. we have to see its However, it would be unfortunate if one fundamentally, Congress More may wish aspect majority opinion went unno- to consider whether individuals whose state ticed my and unheeded. That distin- sealed, expunged, pardoned convictions are guished thoughtful colleagues are will- retroactively reduced under state law ing give Tallmadge sug- freedom not, ought comity as a matter of and le- gests deep-seated judicial to me a discom- niency, given grace the same under fed- fort with this case and others like it. It is Finally, judicial eral law. may discomfort share, although a discomfort I I would not eventually become so severe that assuage my it as have colleagues. The appropriate through become revisit— is, however, fact of the matter that we see process, en banc of course—our decisions much this area of pricks the law that 922(a) (h), 1202(a) giving sections & 924 and conscience. The offenses of which Tall- interpretation. a strict madge was convicted gap straddle the be- tween Frequently, thoughts day state and federal these law. leave to another policies governments hope only two are loggerheads: give The state something wishes to one who has learned about workings of the law as a result of this case. INTERNATIONAL,

KAMAR

Plaintiff-Appellee, COMPANY, INC., BERRIE & et

RUSS

al., Defendant-Appellant.

No. 86-6362. Appeals,

United States Court

Ninth Circuit.

Argued and June Submitted 1987.

Decided Oct. 1987.