dissenting.
In reversing the conviction of a defendant who may have stumbled into criminal activity inadvertently, the court today reaches a just result. But it does so at too high a price, for this is a case where “justice to the individual is rightly outweighed by the larger interests on the other side of the scales.” O.W. Holmes, The Common Law 48 (1881).
Introduction
In 1978, Tallmadge was convicted in California Superior Court of a felony: possession of a machine gun in violation of California law. The conviction carried a potential penalty in excess of one year. Cal.Penal Code § 12220 (Deering Supp.1987); id. § 18 (Deering 1985). In 1982, the California Superior Court issued an order under California Penal Code section 17(b)(3) declaring the offense a misdemeanor “for all purposes.” Later that year, Tallmadge purchased four rifles on four separate occasions. As a consequence, he was indicted and convicted of four counts of unlawful *776receipt of firearms, 18 U.S.C. § 922(h)(1) (1982), and one count of unlawful possession, 18 U.S.C. app. § 1202(a)(1) (1982 & Supp. III 1986).
Tallmadge contends that these statutes do not apply to him because his state conviction was reduced to a misdemeanor. But section 922(h) applies to anyone “convicted in any court of ... a crime punishable by imprisonment for a term exceeding one year,” while section 1202 applies to any person “convicted ... of a felony,” defined as “any offense punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 1202(a)(1), (c)(2). Because Tallmadge was convicted of an offense punishable by imprisonment for more than one year, the federal statutes clearly apply. United States v. Pruner, 606 F.2d 871, 873 (9th Cir.1979); United States v. Bergeman, 592 F.2d 533, 537 (9th Cir.1979); United States v. Houston, 547 F.2d 104, 106 (9th Cir.1976). Tallmadge also contends that the statutes are so vague as to violate due process and that scienter should be a required element of those crimes. These arguments are likewise foreclosed in this circuit. Pruner, 606 F.2d at 874; Houston, 547 F.2d at 107.
Even appellant recognizes that “all of the issues presented on Appeal appear to have already been carefully considered by this circuit and others”; nonetheless, he urges us to reconsider those decisions. Appellant’s Brief at 9. The majority quite rightly rejects this invitation since only an en banc panel may reconsider circuit precedent. Nevertheless, the majority reverses Tallmadge’s conviction, creating a new criminal defense on its own motion, without the benefit of argument by the parties or an appropriate factual record. The words “entrapment” or “estoppel” do not find their way into any of the briefs or transcripts below; not a single one of the cases on which the majority relies with respect to this issue is cited by either party.
The majority’s reliance on the doctrine of entrapment by estoppel is misguided and could have very serious consequences, unsettling many important and heretofore unquestioned legal principles. I have four major concerns. First, I believe the panel errs in allowing Tallmadge to rely on statements purportedly made by the gun dealer, who is not even a federal employee, much less an official authorized to bind the government. Second, important practical and policy considerations counsel against applying the entrapment defense to this type of situation. Third, the record simply does not support estoppel. Finally, the estoppel defense is entirely inapposite where the crime does not require scienter.
Discussion
I.
The estoppel defense has heretofore been construed very narrowly because it “permitís] the individual official to alter or suspend the statutory penal law simply by misinterpreting it.” Note, Applying Estoppel Principles in Criminal Cases, 78 Yale L.J. 1046,1052 (1969). To qualify, the defense must establish very clearly three elements: (1) that the official involved was authorized to enforce or interpret the statute; (2) that the official’s statements affirmatively misled the defendant; and (3) that the defendant reasonably relied on them. See Model Penal Code § 2.04(3)(b)(iv) (1985).1 Although Tallmadge would have difficulty establishing any of these elements, my principal con*777cern is with the majority s apparent willingness to allow individuals with only the most tenuous relationship to the government to bind it with respect to the interpretation and enforcement of the criminal laws.
A. “The case law on mistake of law supports the proposition that the reliance on an official misinterpretation of the law defense may be invoked only when the official relied on is the appropriate official — the one authorized to render the particular advice or opinion later found to be erroneous.” Note, United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense, 66 Calif.L.Rev. 809, 825-26 (1978) [hereinafter Official Interpretation ]. Thus, in Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), defendants relied on assurances by the chairman of a state legislative commission that they were entitled to assert the privilege against self-incrimination. Despite the clear implication that defendants would not be subject to contempt for asserting the privilege, they were charged with contempt and convicted. The Supreme Court reversed. Its ruling, however, was a very narrow one, emphasizing that the advising official “clearly appeared to be the agent of the State in a position to give such assurances.” Id. at 437, 79 S.Ct. at 1266. Likewise, in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), defendant was misled by “the highest police officials of the city,” including the chief of police. Id. at 571, 85 S.Ct. at 484. Similarly, in United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973), the defendant argued that longstanding regulations of the agency responsible for enforcing the statute denied it fair warning of what conduct the government intended to treat as criminal.2
Here, the statements on which the majority relies as the basis of the estoppel were uttered by someone who is not even a federal employee, much less an official authorized to speak for the government. This seems to run squarely contrary to the principle that minor federal officials may not bind the government to erroneous interpretations of the law. For example, in Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), the Court held that Wheat Crop Insurance Regulations were binding on farmers who claimed they were misled by the representations of the County Agricultural Conservation Committee. The committee had misinterpreted the applicable regulations and told the farmers that their reseeded crop was insurable. The regulations, the Court held, were binding regardless of what the farmers may have been told or the “hardship resulting from innocent ignorance.” Id. at 383-85, 68 S.Ct. at 2-3.
Almost four decades later, in Heckler v. Community Health Servs., 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984), the Court reaffirmed the vitality of Merrill. In Community Health Services, defendant CHS received CETA payments through an intermediary, Travelers Insurance Company. Travelers gave CHS an erroneous interpretation of a certain reimbursement rule and, as a result, CHS received approximately $71,000 in overpayments from the government. The Third Circuit held that the government was estopped from demanding repayment because of the “affirmative misconduct” of its agent Travelers. The Supreme Court reversed. Although the majority left open the possibility that estoppel could apply in certain circumstances, the Court reaffirmed the narrow Merrill standard for when an agent may bind the government. As a general rule, the Court noted, “those who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law.” Id. at 63, 104 S.Ct. at 2225.
This principle was applied in a criminal context closely resembling our case in United States v. Browning, 630 F.2d 694 *778(10th Cir.1980), cert, denied, 451 U.S. 988, 101 S.Ct. 2324, 68 L.Ed.2d 846 (1981). Browning, the former president of an arms company, was convicted of attempting to obstruct the administration of the customs laws. He claimed estoppel on the ground that he had been misled by an official of the U.S. Customs Service. The Tenth Circuit noted that the doctrine of estoppel is applied against the government with “great reluctance”:
It is fundamental that the United States is not estopped by representations made by an agent without authority to bind the government in a transaction____ ... [0]ne who relies on a legal interpretation by a governmental official assumes the risk that it is in error____ It has also been held or said that “the government could scarcely function if it were bound by its employees’ unauthorized representations.” Goldberg v. Weinberger, 546 F.2d 477, 480 (2nd Cir. 1976), cert, denied, 431 U.S. 937, 97 S.Ct. 2648, 53 L.Ed.2d 255 (1977).
In the case at bar, at least one government agent, Regan [a Customs official], did misinform Browning regarding the requirements to be complied with when filling out the Customs forms. The statements made by Regan were incorrect. Under the settled law, however, incorrect statements made by a government official may not serve as a basis for holding the government estopped from enforcing its regulations even if the misinformation had led to Browning’s subsequent conduct.
Id. at 702-03. The defendant’s conviction was upheld.
Tallmadge’s estoppel claim is far weaker than Browning’s. Browning was misled by someone who at least was employed by the government, an officer of the very agency charged with administering the applicable laws. Here the statements are attributed to a private party whose only connection to the government is his federal license to sell firearms. It is wholly unprecedented to bind the government to interpretations of the law by someone so tenuously related to it. Community Health Services, involving a private entity administering a federal program, would seem to preclude this result.
B. Not only did the gun dealer lack authority to bind the government, his representations do not amount to the “affirmative misconduct” required to invoke estoppel against the government. The estoppel defense requires conduct resembling entrapment — some affirmative act by an official that misleads the defendant. See Santiago v. INS, 526 F.2d 488, 491-92 (9th Cir.1975), cert, denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). This is something more than “a mere failure to inform or assist.” Lavin v. Marsh, 644 F.2d 1378, 1384 (9th Cir. 1981); see also Raley, 360 U.S. at 438, 79 S.Ct. at 1266 (noting “active misleading”).
Nothing the gun dealer is alleged to have said even remotely resembles entrapment, at least as that term has heretofore been interpreted. See, e.g., United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986) (“[t]o establish entrapment as a matter of law, the defendant must point to undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by trickery, persuasion, or fraud of a government agent”); United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 821 (9th Cir.), cert, denied, 471 U.S. 1139, 105 S.Ct. 2684, 86 L.Ed.2d 701 (1985). The majority’s contrary conclusion could reasonably be interpreted as relaxing the standard for entrapment.
C. Moreover, regardless of what the gun dealer may have said, I would find Tallmadge’s reliance on such advice inherently unreasonable. A gun dealer is not a government official; he is a private individual whose economic interest lies in consummating the transaction, not scotching it. Had Tallmadge wanted an authoritative interpretation of the applicable law, he could well have written to the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, whose name and address is inscribed on the Firearms Transaction Record he was required to fill out. Or, he might have inquired of his local office of *779the United States Attorney as to its enforcement policy in this area. Had he received erroneous information from responsible officials in those agencies, he might well have been entitled to claim estoppel. Instead, however, Tallmadge chose the weakest link in the enforcement chain, gave a vague description of his situation and received an off-the-cuff response, which just happened to be what he wanted to hear. See pp. 780-81 infra.
Holding that Tallmadge’s reliance on this advice was reasonable does much to undermine the orderly enforcement of the criminal laws. In words that have lost none of their vitality with the passage of time, Oliver Wendell Holmes noted over a century ago: “It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey____” The Common Law at 48. Allowing Tallmadge to rely on the gun dealer’s half-hearted acquiescence indeed thwarts the law-maker’s determination “to make men know and obey.”
II.
Strong policies also militate against the majority’s expansion of the estoppel defense. Authorizing gun dealers to legitimize otherwise illegal gun transactions will create an administrative nightmare. If gun dealers, and possibly other government licensees, can bind the United States as to the legal and factual issues underlying the difficult question of whether an applicant is entitled to buy or own a gun, they must become investigators, fact-finders and legal experts to boot. The problems this would raise are countless, but here are a few:
How can the gun dealer be sure he is interpreting the law correctly? Most gun dealers are scarcely equipped to make legal determinations. Will they be obliged to get an opinion from a lawyer or the Bureau of Alcohol, Tobacco and Firearms before each sale?
A dealer may make hundreds, perhaps thousands, of sales. The legality of any one of those transactions may be litigated years after the event. The gun dealer may have gone out of business or sold the store to someone else or died; or the transaction may have been consummated by a former employee; or, most likely of all, no one will remember just what happened. The government will seldom if ever be able to contradict a defendant’s self-serving account of who said what to whom. I can imagine that every illegal purchase will suddenly have been “approved” by the dealer.
How does one deal with a convict determined to buy a gun? For example, if Tallmadge had been turned down by the first dealer, what would have prevented him from going to another dealer and yet another until he found one gullible enough to tell him what he wanted to hear? Indeed, ineligible buyers might be able to launder their purchases by finding unscrupulous dealers willing to give the “right” answer to the “right” question.
The idea that the holder of a government license can estop the government’s enforcement of its penal laws has explosive potential.3 The majority’s rationale is not limited to gun dealers; holders of many other government licenses could fit neatly into the opinion’s rationale. For example, liquor store clerks are prohibited by law from selling alcohol to those under the age of 21. If a clerk forgets to check, or makes a mistake, does that exonerate a minor who buys liquor illegally? Will the illegal use of food stamps be excused because the grocery store clerk mistakenly allows the purchase? There are countless other private parties who hold licenses from the federal, state and local governments. In most cases, the law requires licensees to make reasonably sure that the *780transaction is legal. But before today no one assumed that they could issue “Get Out of Jail Free” cards. Licensees can certainly help prevent many illegal transactions, but they ought not be given the power to suspend or alter the law.4
III.
In any event, the record provides scant factual basis for an estoppel defense. The following testimony is the only evidence I have been able to find on this point:
A [TALLMADGE]: Mr. Ferguson [the gun dealer] said that he had read and understood that I was in some kind of a problem, and there may have been a felony conviction.
And I said that was changed to a misdemeanor conviction, and there was no problem.
A: He said — he said that it was — if it was a misdemeanor, then there is no problem.
I explained that it was — the judge made it a misdemeanor conviction, and that was it.
Q: Well, Mr. Tallmadge, did Mr. Ferguson understand that you had been convicted of a felony before it was reduced to a misdemeanor?
That is asking you for what was in his mind.
A. Yes.
A: ...I can’t remember exactly what we said, but it was his understanding that it could have been a felony, and he asked about it. And I said the judge made it a misdemeanor, so, therefore, there was no problem. He agreed and sold me the gun with no question.
R.T., March 11, 1986, at 10-12 (emphasis added).
This testimony — even if taken at face value as it came from defendant’s own mouth — does not portray Tallmadge as earnestly seeking advice as to the legality of the transaction. Instead, it shows that Ferguson, the gun dealer, expressed doubts about whether Tallmadge could buy a gun and Tallmadge convinced the dealer to sell him one anyway because everything was “all right.” Indeed, had the gun dealer not taken the initiative of asking Tallmadge whether he had been convicted of a felony, the issue would never have come up. Tallmadge certainly did everything he could to conceal the relevant facts. While he was well aware that he had been convicted of a crime punishable by imprisonment for over a year, on four separate occasions he answered “No” to Question 8(b) on the Firearms Transaction Record (FTR). This question asked if he had ever been convicted of such a crime and specifically warned that a “yes” answer was required even if “a conviction has been discharged, set aside, or dismissed pursuant to an expungement or rehabilitation statute.” We have no idea what the gun dealer knew beyond this false statement in the FTR and Tallmadge’s assurance that “there was no > problem” because “the judge made it a misdemeanor.”5
Moreover, even if Tallmadge’s account of the conversation with the gun dealer were legally sufficient, the district judge need not have believed it all. Tallmadge’s testimony is equivocal as to what he told the dealer about his conviction, admitting that *781he does not remember exactly what was said. R.T., March 11, 1986, at 12. Although specific findings of fact were waived by the defendant, there are indications that the trial judge simply did not believe Tallmadge’s self-serving story.6
The problem is that neither the parties nor the court below sought to develop this evidence, probably because estoppel was not raised as a defense at trial. Had it been, the government might well have cross-examined Tallmadge in greater detail about his conversation with the dealer or even called the gun dealer to testify. Because the question of reasonable reliance on misleading information is essentially factual, we should not be answering it at this level, and certainly not on the thin record presented in this case.
IV.
Finally, I fear the majority’s analysis reads scienter into statutes we have consistently held require none. If that is so, the opinion ignores the teachings of our cases and conflicts with the Eleventh Circuit’s decision in United States v. Bruscantini, 761 F.2d 640 (11th Cir.), cert, denied, 474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 233 (1985).
Bruscantini entered a plea of nolo contendere to a state burglary charge and was told by a state judge and a state prosecutor that this disposition of his case was not a conviction. Later he obtained two firearms and was charged with unlawful receipt of firearms by a convicted felon. Citing Cox and Raley, the defendant argued that the government should be estopped because authoritative state officials assured him he was not a convicted felon. The Eleventh Circuit rejected this defense, partly because “knowledge of one’s status as a convicted felon is not an element of the offense.” Id. at 641-42.7
As Bruscantini recognized, being misled by government officials can only exonerate a defendant by negating the existence of a mental state essential to the crime charged. Thus, Tallmadge might have escaped conviction under section 922(a)(6) (which prohibits knowingly making false representations in the FTR) because his state of mind was a specific element of that crime. But Tallmadge’s belief that he was entitled to purchase firearms is not an element of the crimes of receipt and possession. These crimes have been “uniformly interpreted as requiring only that the defendant was in fact a convicted felon, and not that he actually knew he was a felon.” Newton v. Superior Court, 803 F.2d 1051, 1059 (9th Cir.1986) (Alarcon, J.) (citing authority from six circuits). Thus, in United States v. Quiroz, 449 F.2d 583, 585 (9th Cir. 1971), we held that scienter was not required for a conviction under section 1202(a)(1). Applying Quiroz, in United States v. Locke, 542 F.2d 800, 801 (9th Cir.1976), we held it irrelevant that Locke had been advised by a public defender that he was not a convicted felon.
Similarly, in United States v. Pruner, 606 F.2d 871 (9th Cir.1979), defendant argued that his conviction for unlawful receipt of a firearm should be reversed because he did not know his earlier crime carried a maximum term of imprisonment exceeding one year. Although we recognized that the gun control statutes may work harsh results in some cases, we held that the defendant’s knowledge of his status was not a defense:
It may be true that the purchase of handguns in itself is an innocent act and that because of the innocence of the act there exists the possibility of injustice to one who purchases a gun, unaware that he had committed a crime that was punishable by a term of imprisonment exceeding one year. However, we believe that the potential for such injustice is outweighed by the danger created if guns are al*782lowed to fall into the hands of dangerous persons such as felons.
606 F.2d at 874. The court also noted that the FTR should have put Pruner on notice that “he must either determine for himself that his past crime did not carry a possible term of imprisonment exceeding one year or risk violating [the law].” Id.
Therefore, even if Tallmadge erroneously believed that the redesignation of his conviction allowed him to purchase guns, the fact that he was in reality a convicted felon controls. Because his state of mind has no relevance, it matters not whether he came to that belief as a result of erroneous advice or on his own. Pruner recognized that this rule may work harsh results in some cases; this may well be one. I respectfully suggest, however, that we are not free to temper this result, no matter how unpalatable we may find it.
Epilogue
It is the nature of dissents that they bristle with Cassandran prophecies; this one is certainly no exception. Fortunately, however, most of us lack Cassandra’s clairvoyance and few of the calamities we predict come to pass. I hope that in this, too, my dissent will prove unexceptional. If the majority opinion is read narrowly — as a judicial response to a perceived injustice and not as a wholesale reassessment of important legal principles — the case will be a ripple on the waters of the law, not the tidal wave my dissent predicts.
However, it would be unfortunate if one aspect of the majority opinion went unnoticed and unheeded. That my distinguished and thoughtful colleagues are willing to give Tallmadge his freedom suggests to me a deep-seated judicial discomfort with this case and others like it. It is a discomfort I share, although I would not assuage it as have my colleagues. The fact of the matter is, however, that we see much in this area of the law that pricks the conscience. The offenses of which Tallmadge was convicted straddle the gap between state and federal law. Frequently, the policies of the two governments are at loggerheads: The state wishes to give the defendant a clean slate, yet federal law makes the record indelible. Again and again we see defendants who have been given solemn assurances by those they justifiably trust — state judges, prosecutors, defense counsel — that they may now enjoy all rights of citizenship, including that of owning a gun, yet find that they have committed a federal crime when they exercise that supposed right. By and large, these tend to be hard cases, evoking far more sadness than anger. Yet, when they are prosecuted, and when they inevitably result in convictions, we have the uncomfortable duty of affirming. We normally discharge that duty, distasteful though it may be.
But the discomfort is there and, as the result in this case demonstrates, must be reckoned with. A good start might well be with more judicious exercise of prosecutorial discretion. This is not the first case of this kind where I had to wonder whether the prosecution served any purpose other than to pad the prosecutor’s batting average. Also, because of the intergovernmental nature of the offense, wisdom and prudence would seem to counsel an effort by the federal authorities to educate state officials as to the intricacies of the applicable federal law, thereby stemming the flow of misinformation to individuals given clemency by state authorities. While government counsel assure us from time to time that such an effort is “in the works,” we have yet to see its consequences.
More fundamentally, Congress may wish to consider whether individuals whose state convictions are expunged, sealed, pardoned or retroactively reduced under state law ought not, as a matter of comity and leniency, be given the same grace under federal law. Finally, judicial discomfort may eventually become so severe that it may become appropriate to revisit — through the en banc process, of course — our decisions giving sections 922(a) & (h), 924 and 1202(a) a strict interpretation.
I leave these thoughts to another day and hope only that Tallmadge is not the only one who has learned something about *783the workings of the law as a result of this case.
. The Model Penal Code provides:
(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
(b) [a defendant] acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in ... (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.
(4) The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence.
Model Penal Code § 2.04 (1985) (emphasis added). The comments emphasize that this defense is "a limited exception to the principle ... that culpability is not generally required as to the illegality of the actor’s conduct.” Id., explanatory note at 268.
. Commentators almost universally agree that the authority of the official is of crucial importance to the estoppel defense. Official Interpretation, 66 Calif.L.Rev. at 828; see W. LaFave & A. Scott, Substantive Criminal Law § 5.1, at 594 (1986); R. Perkins & R. Boyce, Criminal Law 1042 (3d ed. 1982); Hall, Ignorance and Mistake in Criminal Law, 33 Ind.L.J. 1, 24 (1957).
. The majority’s theory runs against the grain of decisions standing for the proposition that the holder of a government license does not act under color of state law for purposes of the equal protection clause. See, e.g., Moose Lodge, Inc. v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Dezell v. Day Island Yacht Club, 796 F.2d 324 (9th Cir. 1986).
. Attorneys hold licenses from the state authorizing them to interpret the law. Yet they do not thereby become agents of the government, capable of binding it to erroneous advice. We have consistently held that criminals cannot claim reliance on the faulty advice of private counsel. Indeed, we specifically rejected this defense to a conviction under section 1202(a)(1). United States v. Locke, 542 F.2d 800, 801 (9th Cir.1976); see also United States v. Hayes, 535 F.2d 479, 481 (8th Cir.1976). I am therefore particularly troubled by the majority's reliance on the allegedly misleading advice of Tallmadge’s lawyer. Majority opinion at 775.
. Actually, what Tallmadge said about whether his conviction was a felony or a misdemeanor has no relevance to the legality of the purchase. The only information relevant under federal law was whether the offense was punishable by imprisonment for more than a year. 18 U.S.C. §§ 922(h), 1202(c)(2). The gun dealer's only information concerning that crucial fact was Tallmadge's negative answer on the FTR.
. For example, after the evidence was in, the district judge articulated his suspicion that “Mr. Tallmadge knew it was a crime.” R.T., April 21, 1986, at 10.
. The court also noted that Cox and Raley involved state officials interpreting state law, while Bruscantini involved state officials purporting to interpret federal law. 761 F.2d at 641-42.