United States v. Ogles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, No. 03-10439
v.  D.C. No.
JOHN GILBERT OGLES, CR-02-01805-CKJ
Defendant-Appellee.


UNITED STATES OF AMERICA,  No. 04-10069
Plaintiff-Appellee,
v.  D.C. No.
CR-02-01805-CKJ
JOHN GILBERT OGLES,
OPINION
Defendant-Appellant.

Appeals from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted
October 4, 2004—San Francisco, California
Panel Opinion Filed April 28, 2005

Rehearing En Banc Granted November 16, 2005

Argued and Submitted En Banc
December 14, 2005—Portland, Oregon

Filed March 10, 2006

2483
2484 UNITED STATES v. OGLES
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Andrew J. Kleinfeld,
Michael Daly Hawkins, Susan P. Graber,
M. Margaret McKeown, William A. Fletcher,
Raymond C. Fisher, Ronald M. Gould, Marsha S. Berzon,
Circuit Judges.

Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Judge Reinhardt;
Concurrence by Judge Berzon
 UNITED STATES v. OGLES 2487

COUNSEL

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

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

OPINION

McKEOWN, Circuit Judge:

We consider whether the district court’s judgment of
acquittal under Federal Rule of Criminal Procedure 29(a) was
related to factual guilt or innocence and thus constitutes a
2488 UNITED STATES v. OGLES
“genuine acquittal,” the government’s appeal of which is
barred by the Double Jeopardy Clause. John Gilbert Ogles
was charged under 18 U.S.C. §§ 922(b)(3) and 924(a)(1)(D)
with willfully selling and transferring physical possession of
a firearm to a non-resident of the state in which he was
licensed to deal firearms (Count One) and willfully engaging
in the business of dealing firearms without a license in viola-
tion of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (Count
Two). At the conclusion of the government’s case, the district
court granted Ogles’ Rule 29(a) motion for a judgment of
acquittal as to Count Two, concluding that Ogles was a “li-
censed dealer under the statute” and thus not in violation of
selling firearms without a license. The jury convicted Ogles
on Count One. Ogles appeals his conviction as to Count One;
the government appeals the judgment of acquittal as to Count
Two.

Although we took the entire case en banc, the primary issue
that concerns us is our jurisdiction to address the govern-
ment’s appeal. We adopt section II(A) of the panel opinion,
which affirms Ogles’ conviction on Count One. United States
v. Ogles, 406 F.3d 586 (9th Cir.), reh’g en banc granted, 430
F.3d 1221 (9th Cir. 2005). As to Count Two, we hold that the
judgment of acquittal represented a ruling that the evidence
was “ ‘legally insufficient to sustain a conviction.’ ” Smith v.
Massachusetts, 125 S.Ct. 1129, 1135 (2005) (quoting United
States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977)).
Consequently, the government’s appeal is barred by the Dou-
ble Jeopardy Clause.

BACKGROUND

Ogles, a California resident, held a federal firearms license
that listed his place of business, “Belleau Wood Gunsmithing
& Firearms,” as located in California. In June 2002, at a gun
show in Arizona, Ogles sold a firearm to Michael Buda, an
Arizona resident.
 UNITED STATES v. OGLES 2489
Ogles was indicted on two counts. Count One of the indict-
ment charged Ogles with “willfully . . . sell[ing] and deliver-
[ing] to Michael Buda a firearm . . . knowing and having
reasonable cause to believe that Michael Buda at the time of
the sale and delivery did not reside in the State in which the
licensee’s place of business was located,” in violation of
§§ 922(b)(3) and 924(a)(1)(D). Section 922(b)(3) provides
that “[i]t shall be unlawful for any . . . licensed dealer . . . to
sell or deliver . . . any firearm to any person who the licensee
knows or has reasonable cause to believe does not reside in
. . . the State in which the licensee’s place of business is locat-
ed.”

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

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

At the close of the government’s case, Ogles moved for a
judgment of acquittal pursuant to Rule 29(a). With respect to
Count Two, Ogles argued that § 922(a)(1)(A) applies only to
2490 UNITED STATES v. OGLES
an unlicensed dealer and that he was a licensed dealer. The
government opposed the motion, taking the position that a
federal firearms license is location specific and that a licensee
like Ogles who sells firearms outside of his designated area
acts in an unlicensed capacity within the meaning of
§ 922(a)(1)(A). The district court adopted the reasoning of
United States v. Caldwell, 49 F.3d 251, 252 (6th Cir. 1995),
which held that § 922(a)(1)(A)’s prohibition against dealing
in firearms without a license is not violated when the defen-
dant has a federal firearms license, even if he sold firearms
away from the licensed premises. The district court granted
the motion on Count Two and reserved decision on Count
One, stating:

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

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

ANALYSIS

I. CONVICTION ON COUNT ONE

Our primary concern is the government’s appeal of the
judgment of acquittal as to Count Two. We diverge, however,
from our main inquiry to address certain representations made
by the government for the first time during oral argument
before the en banc panel. Solely on the basis of those state-
 UNITED STATES v. OGLES 2491
ments the dissent concludes that Ogles’ conviction on Count
One “is plainly and simply a ‘wrongful conviction.’ ” Dissent
at p. 2504 (quoting Berger v. United States, 295 U.S. 78, 88
(1935)). We disagree.
During oral argument, the government suggested for the
first time that a defendant cannot be convicted under both
§ 922(b)(3) and § 922(a)(1)(A)—i.e., as a licensed and unli-
censed dealer—with regard to the same conduct. The govern-
ment stated that when the case was charged and indicted, it
believed Ogles was appropriately charged with both counts.
Although the government claimed that it re-evaluated its posi-
tion in light of the three-judge panel opinion, it continued to
press its original position as late as the filing of its response
to the petition for rehearing en banc.
The government’s current position is unclear. On the one
hand, the government advised that Ogles’ conduct is best
understood as “unlicensed” and thus falls under
§ 922(a)(1)(A) (Count Two), on which he was acquitted,
rather than under § 922(b)(3) (Count One), on which he was
convicted. At the same time, the government represented that
it would concede the invalidity of the § 922(b)(3) conviction
only if we conclude that double jeopardy does not bar the gov-
ernment’s appeal, and if we agree with the government’s legal
theory as to the merits of § 922(a)(1)(A) and remand the
acquitted Count Two for a new trial. Although the dissent
interprets these representations as a “concession”—which we
must accept—that the § 922(b)(3) conviction is invalid, Dis-
sent at p. 2507, to take that position is to fall into one of two
traps.
One trap is to read a non-concession as a concession. When
a party says that it would concede a point but only if we
already agreed with that party’s position, the party has made
no concession at all. This logic may be more distasteful when
applied to government counsel, but the logic still remains.
[1] The other trap is, in effect, to allow ourselves to be
“bound by the government’s statement of the law.” Dissent at
2492 UNITED STATES v. OGLES
p. 2505. We are not bound by a party’s concession as to the
meaning of the law, even if that party is the government and
even in the context of a criminal case. See United States v.
Miller, 822 F.2d 828, 832 (9th Cir. 1987) (“Even if a conces-
sion is made by the government, we are not bound by the gov-
ernment’s erroneous view of the law.” (internal quotation
marks omitted)).

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

[2] For these reasons, we decline to entertain the govern-
ment’s newly minted argument and the convoluted conditions
attached to it, which were raised for the first time during en
banc proceedings. We also note that Ogles did not appeal his
conviction on Count One on the basis of a statutory mismatch.
We adopt section II(A) of the panel opinion, Ogles, 406 F.3d
at 589-93, and affirm Ogles’ conviction on Count One.

II. ACQUITTAL ON COUNT TWO

[3] The question we address as to Count Two is whether
the government may appeal the district court’s judgment of
acquittal under Rule 29(a).1 The answer to this question lies
at the intersection of the federal statute governing appeals by
the United States, 18 U.S.C. § 3731, and the Double Jeopardy
1
Rule 29(a) provides in pertinent part that, “[a]fter the government
closes its evidence or after the close of all the evidence, the court on the
defendant’s motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction.”
 UNITED STATES v. OGLES 2493
Clause. Section 3731 provides that the United States may
appeal a “judgment . . . of a district court dismissing an indict-
ment . . . except that no appeal shall lie where the double
jeopardy clause of the United States Constitution prohibits
further prosecution.” The Double Jeopardy Clause provides
that no person shall “be subject for the same offense to be
twice put in jeopardy of life or limb.” U.S. CONST. amend. V.

[4] In interpreting the clause, the Supreme Court explained
that “[p]erhaps the most fundamental rule in the history of
double jeopardy jurisprudence has been that ‘[a] verdict of
acquittal . . . could not be reviewed, on error or otherwise,
without putting [a defendant] twice in jeopardy.’ ” Martin
Linen, 430 U.S. at 571 (quoting United States v. Ball, 163
U.S. 662, 671 (1896)). Thus, the category of directed acquit-
tals not covered by the Double Jeopardy Clause is quite lim-
ited:

Our cases have made a single exception to the
principle that acquittal by judge precludes reexami-
nation of guilt no less than acquittal by jury: When
a jury returns a verdict of guilty and a trial judge (or
an appellate court) sets aside that verdict and enters
a judgment of acquittal, the Double Jeopardy Clause
does not preclude a prosecution appeal to reinstate
the jury verdict of guilty.

Smith, 125 S. Ct. at 1134; see also id. at 1133 (“[W]e have
long held that the Double Jeopardy Clause of the Fifth
Amendment prohibits reexamination of a court-decreed
acquittal to the same extent it prohibits reexamination of an
acquittal by jury verdict. This is so whether the judge’s ruling
of acquittal comes in a bench trial or, as here, in a trial by
jury.” (citations omitted)).

The district court’s judgment of acquittal which was
entered at the close of the prosecution’s case falls squarely
within the Supreme Court’s directive that a court-directed
2494 UNITED STATES v. OGLES
acquittal “could not be reviewed, on error or otherwise,” with-
out violating the Double Jeopardy Clause. Despite the clarity
of the Court’s language, the government argues that the
acquittal here is not a “genuine acquittal” because it was
based on the district court’s construction of § 922(a)(1)(A), a
legal conclusion unrelated to Ogles’ factual guilt or inno-
cence. Additionally, the government suggests the district
court’s failure to recite the applicable legal standard for an
acquittal is further evidence that it is not a true acquittal.

[5] To understand why the government’s arguments cannot
be squared with the Supreme Court’s teachings, it is useful to
survey a handful of key cases, beginning with Martin Linen
in 1977, that establish the contours of the government’s right
to appeal a court-directed judgment of acquittal. These cases
underscore that the decisive question has been, and continues
to be, whether the district court found the evidence legally
insufficient to sustain a conviction.

In Martin Linen, after a “hopelessly deadlocked” jury was
discharged, the district court entered judgments of acquittal
under Rule 29(c).2 The Court noted that, even if the “acquittal
was based upon an egregiously erroneous foundation, . . .
[n]evertheless, ‘[t]he verdict of acquittal was final, and could
not be reviewed . . . without putting [the defendants] twice in
jeopardy, and thereby violating the Constitution.’ ” Martin
Linen, 430 U.S. at 571 (emphasis added) (quoting Fong Foo
v. United States, 369 U.S. 141, 143 (1962) (per curiam)). In
addition, the Court explained that “what constitutes an
‘acquittal’ is not to be controlled by the form of the judge’s
action. Rather, [it] must [be] determine[d] whether the ruling
2
Although Martin Linen involved judgments of acquittal under Rule
29(c) and not under Rule 29(a), the discussion of the Double Jeopardy
Clause and Rule 29 generally serves as a helpful backdrop to our case.
Rule 29(c) provides in pertinent part that a motion for judgment of acquit-
tal may be made within 7 days after the jury is discharged, and “the court
may enter a judgment of acquittal.”
 UNITED STATES v. OGLES 2495
of the judge, whatever its label, actually represents a resolu-
tion, correct or not, of some or all of the factual elements of
the offense charged.” Id. (citations and footnote omitted)
(emphasis added). The judgments of acquittal under Rule
29(c) were, according to the Court, “ ‘acquittals’ in substance
as well as form . . . [because] the District Court . . . evaluated
the Government’s evidence and determined that it was legally
insufficient to sustain a conviction.” Id. at 571-72.

The government in Martin Linen urged that entry of acquit-
tal after the jury was discharged was somehow distinct from
an acquittal under Rule 29(a) or (b), which is entered before
discharge of the jury. The Court rejected this temporal distinc-
tion:

[I]f the judge orders entry of judgment of acquittal
on his own or on defendant’s motion prior to sub-
mission of the case to the jury, as he may under Rule
29(a), or after submission but prior to the jury’s
return of a verdict, as authorized by Rule 29(b)—and
the jury thereafter is discharged—the Government’s
argument necessarily concedes that the Double Jeop-
ardy Clause would preclude both appeal and retrial.

Id. at 574. Indeed, far from “weakening the trial court’s bind-
ing authority for purposes of double jeopardy,” the timing dis-
tinctions in Rule 29 were designed to “accord[ ] the federal
trial judge greater flexibility in timing his judgment of acquit-
tal.” Id. at 573. Emphasizing the sanctity and finality of
acquittals under Rule 29, the Court concluded “that judgments
under Rule 29 are to be treated uniformly and, accordingly,
the Double Jeopardy Clause bars appeal from an acquittal
entered under Rule 29(c) after a jury mistrial no less than
under Rule 29(a) or (b).” Id. at 575.

One year after Martin Linen, the Supreme Court weighed
in again on the double jeopardy issue in United States v. Scott,
437 U.S. 82 (1978), a case that figures prominently in the
2496 UNITED STATES v. OGLES
government’s brief. Scott concerned a defendant who success-
fully obtained dismissal of the indictment “based upon a
claim of preindictment delay and not on the court’s conclu-
sion that the Government had not produced sufficient evi-
dence to establish the guilt of the defendant.” Id. at 95. Scott
moved for dismissal before trial and twice during trial on the
ground that his defense had been prejudiced by the delay. The
Court determined that the government’s appeal was not barred
because the defendant “deliberately cho[se] to seek termina-
tion of the proceedings against him on a basis unrelated to
factual guilt or innocence of the offense.” Id. at 98-99.

In making the government’s right to appeal contingent on
the “character” of the midtrial termination, Scott overruled
United States v. Jenkins, 420 U.S. 358 (1975). Jenkins had
established that “regardless of the character of the midtrial
termination”—i.e., whether it was an “acquittal” or a dis-
missal on other grounds— a government appeal would be
barred if reversal would require “ ‘further proceedings of
some sort, devoted to the resolution of factual issues going to
the elements of the offense charged.’ ” Scott, 437 U.S. at 94
(quoting Jenkins, 420 U.S. at 370). Overruling Jenkins, the
Court explained that the double jeopardy concern of oppres-
sive tactics by an “all-powerful state,” which figured promi-
nently in its broad holding in Jenkins, was a “far cry” from
the situation in Scott, where “ ‘the defendant elected to seek
termination of the trial on grounds unrelated to guilt or inno-
cence.’ ” Scott, 437 U.S. at 96 (emphasis added).

[6] Throughout Scott, the Court contrasts the situation of a
midtrial dismissal “on grounds unrelated to guilt or inno-
cence,” id., with an “acquittal” resolving guilt or innocence:

A judgment of acquittal, whether based on a jury
verdict of not guilty or on a ruling by the court that
the evidence is insufficient to convict, may not be
appealed and terminates the prosecution when a sec-
ond trial would be necessitated by a reversal.
 UNITED STATES v. OGLES 2497
Id. at 91. Leaving no doubt of its position, the Court empha-
sized that “the law attaches particular significance to an
acquittal . . . however mistaken the acquittal may have been.”
Id.

[7] To clarify the distinction between acquittals and other
midtrial dismissals, Scott invoked the definition of acquittal
established in Martin Linen: “ ‘the ruling . . . actually repre-
sents a resolution . . . of some or all of the factual elements
of the offense charged.’ ” Scott, 437 U.S. at 97 (quoting Mar-
tin Linen, 430 U.S. at 571). Thus, “[w]here the court, before
the jury returns a verdict, enters a judgment of acquittal pur-
suant to Fed. Rule Crim. Proc. 29, appeal will be barred only
when ‘it is plain that the District Court . . . evaluated the Gov-
ernment’s evidence and determined that it was legally insuffi-
cient to sustain a conviction.’ ” Scott, 437 U.S. at 97 (quoting
Martin Linen, 430 U.S. at 572).3 Although the government
mistakenly cites this passage to support a more restrictive def-
inition of “acquittal,” the Court’s subsequent decision in
Smalis v. Pennsylvania, 476 U.S. 140 (1986), reinforces the
limited application of Scott—i.e., to situations where a defen-
dant seeks dismissal for reasons unrelated to factual guilt or
innocence. Thus, Scott should be read as creating a narrow
exception to the most fundamental rule in double jeopardy
jurisprudence.

In Smalis, the defendants filed a demurrer pursuant to
Pennsylvania Rule of Criminal Procedure 1124(a)(1), which,
3
Interestingly, in Sanabria v. United States, a companion case decided
the same day as Scott, the Court appears to place at least some weight on
the form of the trial court’s order: “While form is not to be exalted over
substance in determining the double jeopardy consequences of a ruling ter-
minating a prosecution, neither is it appropriate entirely to ignore the form
of an order entered by the trial court.” 437 U.S. 54, 66 (1978) (citations
omitted). Sanabria also is significant because even though the trial court’s
dismissal of the indictment rested on an erroneous evidentiary ruling—a
legal judgment—the Court held that “the Double Jeopardy Clause abso-
lutely bars a second trial in such circumstances.” Id. at 78.
2498 UNITED STATES v. OGLES
like Rule 29(a), permits a defendant to “challenge the suffi-
ciency of the evidence to sustain a conviction . . . at the close
of the [prosecution’s] case-in-chief.” Id. at 141 n.2. Relying
“heavily” on the same language in Scott that the government
invokes here, id. at 142, the Supreme Court of Pennsylvania
held that double jeopardy did not bar the prosecution’s appeal
of the trial court’s decision to sustain the demurrer:

“In deciding whether to grant a demurrer, the
court does not determine whether or not the defen-
dant is guilty on such evidence, but determines
whether the evidence, if credited by the jury, is
legally sufficient to warrant the conclusion that the
defendant is guilty beyond a reasonable doubt . . . .
[T]he question before the trial judge in ruling on a
demurrer remains purely one of law.

Smalis, 476 U.S. at 143 (emphasis added) (quoting Common-
wealth v. Zoller, 490 A.2d 394, 401 (Pa. 1985)).

The Pennsylvania Supreme Court’s conclusion, namely that
the trial court was making a legal determination rather than a
determination of guilt or innocence, has a familiar ring as it
echoes the government’s position here. But the Supreme
Court rejected that rationale and position because “[w]hat the
demurring defendant seeks is a ruling that as a matter of law
the State’s evidence is insufficient to establish his factual
guilt.” Id. at 144. Noting that its past decisions firmly estab-
lished that such a ruling is an acquittal for double jeopardy
purposes, the Court clarified that “Scott does not overturn
these precedents; indeed, it plainly indicates that the category
of acquittals includes ‘judgment[s] . . . by the court that the
evidence is insufficient to convict.’ ” Id. (alteration in origi-
nal) (quoting Scott, 437 U.S. at 91).

Just last term, in Smith v. Massachusetts, the Supreme
Court revisited the question of what constitutes an acquittal
for double jeopardy purposes. The defendant successfully
 UNITED STATES v. OGLES 2499
moved for an order entering “a finding of not guilty” at the
conclusion of the prosecution’s case under Massachusetts
Rule of Criminal Procedure 25(a), which is analogous to a
Rule 29 motion. Smith, 125 S.Ct. at 1135 (noting that “Massa-
chusetts patterned its Rule 25 on Federal Rule 29”). Although
the Commonwealth characterized the grant of such a motion
as “a purely legal determination,” id. at 1134, the Court once
again rejected this argument, concluding that “what matters is
that, as the Massachusetts rules authorize, the judge ‘evalu-
ated the [Commonwealth’s] evidence and determined that it
was legally insufficient to sustain a conviction,’ ” id. at 1135
(alteration in original) (quoting Martin Linen, 430 U.S. at
572).

Here, the government similarly contends that the district
court’s ruling is a purely legal determination unrelated to fac-
tual guilt or innocence and is not, therefore, a genuine acquit-
tal. Specifically, the government argues that the district
court’s decision rested solely on its resolution of a statutory
construction issue—that the term “licensed dealer” in
§ 922(a)(1)(A) is not location-specific.

[8] As the Supreme Court’s unbroken line of decisions
makes abundantly clear, the determinative question is whether
the district court found the evidence legally insufficient to
sustain a conviction. Without a doubt, the district court did so.
In deciding the Rule 29(a) motion, the district court adopted
the Sixth Circuit’s interpretation of § 922(a)(1)(A) in Cald-
well and concluded that the term “licensed dealer” does not
have a geographic component. After adopting this interpreta-
tion, the district court determined that a factual element of the
offense—namely, that Ogles was dealing firearms without a
license at the time of the challenged conduct—had not been
proven. Notably, the district court stated: “The Court finds . . .
that the defendant was a licensed dealer under the statute at
the time the transaction took place. Therefore, the judgment
of acquittal is appropriate as to Count [Two] of the indict-
ment.” The judgment here was an acquittal in substance as
2500 UNITED STATES v. OGLES
well as form—a determination that the evidence was insuffi-
cient to convict. Whether this determination was ultimately
correct or “egregiously erroneous” is not relevant in evaluat-
ing double jeopardy. Martin Linen, 430 U.S. at 571.

The government suggests that because Ogles did not con-
test his licensed status, the district court’s ruling did not meet
the Supreme Court’s definition of acquittal—that “whatever
its label, [it] actually represents a resolution, correct or not, of
some or all of the factual elements of the offense charged.” Id.
The Court’s double jeopardy decisions do not, however, con-
dition an acquittal under Rule 29(a) on the district court’s
examination of contested facts. Here, the district court deter-
mined that a factual element of the offense had not been
proved by the government. What is this if not a “resolution”?

[9] Nor do we credit the government’s argument that the
acquittal is somehow flawed by the absence of recitation of
the legal standard. That the district court did not recite the text
of Rule 29(a) or employ a specific phrase, such as “evidenti-
ary insufficiency,” is not determinative. As Smith makes
clear, “what matters is that, as [Rule 29] authorize[s], the
judge evaluated the [government’s] evidence and determined
that is was legally insufficient to sustain a conviction.” 125
S.Ct. at 1135 (internal quotations omitted). We conclude the
district court did exactly that and, therefore, the Double Jeop-
ardy Clause bars the government’s appeal.

AFFIRMED as to Count One. APPEAL DISMISSED as
to Count Two.

REINHARDT, Circuit Judge, concurring in part and dissent-
ing in part:

This is a most peculiar case, the outcome of which I find
truly disturbing. Although I agree that the government’s
 UNITED STATES v. OGLES 2501
appeal from the district court’s acquittal of Ogles on Count
Two must be dismissed on double jeopardy grounds, I
strongly disagree with the decision to affirm Ogles’s convic-
tion on Count One. To understand why, it is necessary to
review the history of the proceedings.

The government indicted Ogles, a gun dealer federally
licensed in California, for selling a firearm to an Arizona resi-
dent at a gun show in Arizona. It indicted him on two counts,
each based on a different provision of the same statute, but
each relating to the same act; each count charged him with
selling the same firearm at the same gun show. Remarkably,
in one count, the government charged Ogles with being a
licensed dealer and alleged that he violated the provision of
the statute governing the conduct of licensed dealers,
§ 922(b)(3). In the other count, it charged him with being an
unlicensed dealer and alleged that he violated the provision of
the statute governing the conduct of unlicensed dealers,
§ 922(a)(1)(A). As should have been obvious, even to the
government, Ogles could not have been guilty of both
offenses.

At the conclusion of the government’s case-in-chief, Ogles
moved for a judgment of acquittal as to both counts. The dis-
trict court granted the motion as to the § 922(a)(1)(A) count,
the count applicable to unlicensed dealers, but reserved deci-
sion as to the other count. The jury ultimately convicted Ogles
under § 922(b)(3), the count that covered licensed dealers.
Both parties filed appeals: Ogles appealed his conviction for
violating § 922(b)(3) and the government appealed his acquit-
tal with respect to § 922(a)(1)(A). As to the latter, my col-
leagues have correctly concluded that the appeal of the district
court’s judgment of acquittal is barred by the Double Jeop-
ardy Clause. I fully join in that part of Judge McKeown’s
opinion for the court. Given the extraordinary behavior of the
government in this case, however, I disagree with the court’s
affirmance of Ogles’s conviction on Count One, and therefore
dissent as to that portion of the court’s opinion.
2502 UNITED STATES v. OGLES
Having sought convictions on two directly inconsistent
charges in the district court, when it came time for oral argu-
ment before this en banc court, the government finally recog-
nized the legal absurdity of its position and abandoned its
effort to convict Ogles on both counts. Contrary to the major-
ity opinion’s characterization, the government’s position is
not “unclear.” Majority at 2491. Belatedly, but without any
evident embarrassment, the government stated unequivocally
that it had reevaluated its position and acknowledged that
Ogles could not “be convicted as both a licensed and unli-
censed person with regard to the same transaction and at the
same time.”1 Also, it recognized that it would have to decide
whether Ogles was licensed or unlicensed when he sold the
firearm. So far, so good. The government then told us that
Ogles was “best understood as having acted in an unlicensed
capacity” and that, regarding the applicable provisions of
§ 922, “[i]t’s one, but not both, and we believe the proper one
is (a)(1)(A) — it’s not (b)(3).” Put plainly, the government
acknowledged that Ogles should not have been convicted
under § 922(b)(3) and that his conviction on that count was
unlawful. Later in the oral argument, the government stated
expressly that under its construction of the statute, “the (b)(3)
conviction [wa]s invalid.”2 Still, all to the good. Then, how-
ever, losing sight of fundamental legal and ethical principles,
the government attempted to condition its concession on our
agreeing with its interpretation of the law and thereby sought
to preserve the possibility of sustaining a conviction that it
believed to be without legal foundation. The judicial shell
game the government has played with the court in this case
1
With regard to the inconsistent charges, the government admitted that
“to the extent [we were] charging theories here that would require a con-
clusion of licensed and unlicensed, that cannot be correct.”
2
Although the majority opinion characterizes the government’s admis-
sion as a “suggestion,” Majority at 2491, in actuality, the government’s
conclusion that “it’s one, but not both, and we believe the proper one is
(a)(1)(A) — it’s not (b)(3),” and that “the (b)(3) conviction was invalid,”
constituted an unequivocal admission that Ogles’s conviction under
§ 922(b)(3) was erroneous and contrary to law.
 UNITED STATES v. OGLES 2503
is, in my view, wholly inappropriate and entirely unaccept-
able.

First, I believe that the government may not properly condi-
tion its concession that Ogles was convicted of a crime of
which he was not guilty on the court’s willingness to agree
with its “legal theory on the merits of (a)(1)(A).” The govern-
ment has an unequivocal duty to inform the court of its legal
position as to the meaning of a criminal statute and as to
whether a conviction it has obtained is lawful. It may not ask
the court for concessions in return. A government lawyer, as
an officer of the court, must be truthful and candid with the
court at all times. Conditioning the government’s representa-
tions as to the meaning of a criminal statute or as to the legal-
ity of a conviction upon a court’s willingness to concur in its
view, or on any other matter, is improper — in this case for
at least two reasons. One, such conduct is inconsistent with
the fundamental obligation of government lawyers to inform
the court of its view of the law and of its conclusion as to
whether a conviction is lawful or unlawful. Two, the govern-
ment may not require a court to decide an issue that it need
not decide — as part of an unprincipled Faustian bargain or
otherwise. Here, this court need not consider the meaning of
§ 922(a)(1)(A), because the appeal on that count is barred by
double jeopardy, and we need not consider the meaning of
§ 922(b)(3) because, following the government’s concession,
there is no reason to consider the appeal further at all. Cer-
tainly, we should not consider affirming a conviction that the
government has told us is wrongful. Moreover, the question
of the meaning of § 922(b)(3) was not raised before this court
while the appeal was before the panel and thus it is not appro-
priate for resolution now.3
3
The analysis of the statute that the majority opinion presents in a bla-
tant attempt to justify its refusal to vacate the conviction, see Majority at
2492, is therefore wholly improper. We need not and should not reach the
statutory interpretation issue in this case.
2504 UNITED STATES v. OGLES
Second, the government is not free to seek an affirmance
of a conviction that it believes to be contrary to law. The duty
of the government to ensure that justice is done, and not that
a conviction is secured regardless of what the government
believes to be right, has been made eminently clear by the
Supreme Court in Berger v. United States, 295 U.S. 78
(1935). In an often-quoted but still compelling (and appar-
ently still necessary) lesson for government counsel, Justice
Sutherland wrote:

The United States Attorney is the representative not
of an ordinary party to a controversy, but of a sover-
eignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be
done. . . . It is as much his duty to refrain from
improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to
bring about a just one.

Id. at 88. The last quoted line should make it clear that in this
case the government has an obligation to admit that it simply
made a mistake. It believes that the defendant has been con-
victed of the wrong offense and under the wrong provision of
the statute. Such a conviction is plainly and simply a “wrong-
ful conviction.” It is without question the government’s duty,
therefore, not to seek an affirmance of that conviction, but
instead to ask us to vacate it, regardless of what the court says
or does with respect to its appeal on the other count.4
4
The majority opinion errs in characterizing the government’s admis-
sion merely as a “distasteful” “non-concession.” Majority at 2491.
Although I agree that we may not entertain conditional concessions, what
the government has done in this case is not just a matter of bad “taste.”
The government is not an ordinary litigator. Because its duty in a criminal
case is to seek justice, it may not admit in open court that it believes a con-
viction to be unlawful and then continue to pursue the affirmance of that
 UNITED STATES v. OGLES 2505
The legal position that the government took before this en
banc court — that Ogles did not commit the offense of which
he was convicted — was not one that was simply “newly
minted,” Majority at 2492, by the attorney assigned to argue
the en banc appeal. Counsel for the government advised us at
oral argument that he had conferred with his supervisors
within the Appellate Section of the Criminal Division of the
Department of Justice, who agreed with the view of the stat-
ute he presented at oral argument, as did the Bureau of Alco-
hol, Tobacco, Firearms and Explosives. It was, indeed, well
and fully considered by the United States government. To dis-
regard the government’s representation as to the meaning of
the statute because its position was “newly minted,” is to
repudiate Justice Sutherland’s mandate and to do a disservice
to the cause of justice. The government is obligated to present
the law fairly and accurately regardless of when it discovers
its meaning: as soon as it discovers an error, the government
has a duty to inform the court. To do otherwise, and particu-
larly to argue its erroneous “oldly minted” position, would
clearly have been improper.

I am not suggesting here that we should construe the statute
on this appeal — quite the opposite. Nor am I suggesting that
when we do construe it we are in any way bound by the gov-
ernment’s statement of the law, compare Majority at 2491-92,
even though it comes to us with the full weight of the Justice
Department behind it. When we decide a statutory interpreta-
tion question, we are obligated to construe the statute in the

conviction. As discussed infra, I am not suggesting that we must or should
adopt the government’s interpretation of the law. Instead, I suggest that we
have a duty not to adopt any position with respect to the meaning of the
statute but simply to order vacatur of the conviction. I believe that what
we must do is to recognize that the government’s well-established duty to
“refrain from improper methods calculated to produce a wrongful convic-
tion,” see id., prevents it from prosecuting this appeal any further and that
it is our duty as judicial officers to proceed no further with that part of the
appeal.
2506 UNITED STATES v. OGLES
manner that appears to us to be correct, not in the manner the
government urges. I will not state here how I believe this
court should construe the provision in question because that
issue is not before us. For purposes of evaluating whether
Ogles’s conviction should stand, we need only accept the gov-
ernment’s representation that the conviction is invalid and
vacate it. When the government tells us that the conviction it
has obtained is for conduct that does not constitute an offense,
we must honor that representation.5

The government will undoubtedly present other cases in the
future under one or the other of the two sections with which
Ogles was charged, and may indeed be doing so in other
courts at this very moment. Surely, it cannot properly seek to
obtain an affirmance of a conviction in this court on the the-
ory that one section of the statute controls while simulta-
neously seeking convictions in others on the theory that the
other wholly inconsistent section is applicable. Rather, the
government must take the same position as to the meaning of
the statute in all the cases it urges. For consistency, if for no
other reason, the government was required to advise us that
Ogles’s conduct did not violate § 922(b)(3).

In short, the government was required to tell us, as it did,
that Ogles was not guilty of the offense of which he was con-
victed. It was not, however, entitled to attempt to qualify that
concession by making it dependent on our issuance of a deci-
sion accepting its view of the law. Nor, having made the rep-
resentation, was it proper for it to ask us to affirm a
conviction that it believed to be “wrongful.”
5
The Supreme Court has held, on several occasions, that when the
Solicitor General concedes that a conviction is invalid, it is appropriate to
vacate the conviction. See, e.g., Lawrence v. Chater, 516 U.S. 163, 165-66
(1996); Alvarado v. United States, 497 U.S. 543, 544-45 (1990); Mariscal
v. United States, 449 U.S. 405, 405-06 (1981). Of course, its role is differ-
ent than ours and it ordinarily grants a writ of certiorari, vacates and
returns the case to the lower courts for the requisite action.
 UNITED STATES v. OGLES 2507
In my opinion, this court may not properly affirm Ogles’s
conviction in light of the government’s concession.6 Once the
government has conceded that Ogles’s conduct is not encom-
passed within § 922(b)(3), it is our obligation to vacate the
conviction on the relevant count. To affirm a “wrongful con-
viction” because the government failed to obtain a favorable
verdict on the charge of which it believes the defendant was
guilty is to reward it with an unconstitutional consolation
prize for its incompetence. To do so is also to condone the
government’s unethical efforts to manipulate this court’s
exercise of its decisionmaking authority. That is hardly proper
conduct on the part of a federal court. For that reason, I must
regretfully dissent.

BERZON, Circuit Judge, with whom Circuit Judges PRE-
GERSON and FISHER join, concurring in the majority opin-
ion (except in Part I) and in the judgment:

I concur in the majority opinion except for Part I. While I
sympathize with much of what Judge Reinhardt writes in dis-
sent, I do not see how we could reverse the conviction on
Count I without reaching our own conclusion regarding the
reach of the statutory provision underlying that conviction;
the government’s position on that question is not controlling.
6
Judge Berzon, while expressing sympathy with my position, writes that
she does “not see how we could reverse the conviction on Count I without
reaching [the merits].” She does not say whether that is because she does
not believe that when the Solicitor General or the United States Attorney
confesses error, we are not free to accept that confession and vacate a con-
viction, which would be erroneous as a matter of law, or, as I suspect is
more likely, whether she believes that the United States is free to make
“qualified” confessions of error conditioned upon a court’s agreement
with its tactical maneuver and thus to preserve the option of obtaining the
affirmance of a conviction it believes to be illegal. The latter question is
more difficult, but cannot be avoided if one wishes to express a serious
view on the question before us.
2508 UNITED STATES v. OGLES
Indeed, I am not at all sure that Judge Reinhardt is correct in
supposing that the government could not pursue, in separate
cases, contrary legal positions. When faced, as here, with a
complicated statutory scheme and ambiguous provisions that
have not been construed in binding precedent, the government
may be able to test the application of the provisions by going
forward on one of two arguable statutory theories in each
case.

Here, the defendant has never challenged the applicability
of the statute underlying the conviction on Count I, as the
majority notes. While the opinion in United States v. Cald-
well, 49 F.3d 251 (6th Cir. 1995), has much to recommend it,
there are also competing considerations—among them the
oddity that the construction adopted in Caldwell would leave
a gap that precludes a criminal conviction for a licensed
dealer who sells outside his home state but does so to a resi-
dent of his own state. See 18 U.S.C. § 922(b)(3) (providing
that a licensed dealer commits an offense by selling to a per-
son “who the licensee knows or has reasonable cause to
believe does not reside in . . . the State in which the licensee’s
place of business is located”). In other words, on the majori-
ty’s view of the statute, had Buda been a resident of Califor-
nia, Ogles could not have been convicted for selling a gun to
him in Arizona.

Given the difficulty of the statutory interpretation issue
here, I would not resolve it in an en banc opinion in which the
only impetus for addressing it comes from the government’s
last minute switch of legal position. And, absent any resolu-
tion of the statutory question, I do not believe we can vacate
the conviction on Count I. I therefore do not join in Part I of
the majority opinion but join in the rest of the opinion and in
the result.