concurring in part and dissenting in part:
This is a most peculiar case, the outcome of which I find truly disturbing. Although I agree that the government’s 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 conviction 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 resident 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 district court granted the motion as to the § 922(a)(1)(A) count, the count applicable to unlicensed dealers, but reserved decision 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 acquittal with respect to § 922(a)(1)(A). As to the latter, my colleagues have correctly concluded that the appeal of the district court’s judgment of acquittal is barred by the Double Jeopardy 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.
*1105Having sought convictions on two directly inconsistent charges in the district court, when it came time for oral argument before this en banc court, the government finally recognized the legal absurdity of its position and abandoned its effort to convict Ogles on both counts. Contrary to the majority opinion’s characterization, the government’s position is not “unclear.” Majority at 1099. 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 unlicensed 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, however, 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 is, in my view, wholly inappropriate and entirely unacceptable.
First, I believe that the government may not properly condition 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 government 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 representations as to the meaning of a criminal statute or as to the legality 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 government 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 *1106all. Certainly, 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 appropriate for resolution now.3
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, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). In an often-quoted but still compelling (and apparently 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 sovereignty 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, 55 S.Ct. 629. 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 convicted of the wrong offense and under the wrong provision of the statute. Such a conviction is plainly and simply a “wrongful conviction.” It is without question the government’s duty, therefore, not to seek an affir-mance 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
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 1099, 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 statute he presented at oral argument, as did the Bureau of Alcohol, Tobacco, Firearms and Explosives. It was, indeed, well and fully considered by the United States government. To disregard the government’s representation as to the meaning of the statute because its position was “newly minted,” is to *1107repudiate 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 ivhen it discovers its meaning: as soon as it discovers an error, the government has a duty to inform the court. To do otherwise, and particularly 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 government’s statement of the law, compare Majority at 1098-1099, even though it comes to us with the full weight of the Justice Department behind it. When we decide a statutory interpretation question, we are obligated to construe the statute in the 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 government’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 theory that one section of the statute controls while simultaneously 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 convicted. It was not, however, entitled to attempt to qualify that concession by making it dependent on our issuance of a decision accepting its view of the law. Nor, having made the representation, was it proper for it to ask us to affirm a conviction that it believed to be “wrongful.”
In my opinion, this court may not properly affirm Ogles’s conviction in light of the government’s concession.6 Once the *1108government has conceded that Ogles’s conduct is not encompassed within § 922(b)(3), it is our obligation to vacate the conviction on the relevant count. To affirm a “wrongful conviction” 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.
. With regard to the inconsistent charges, the government admitted that "to the extent [we were] charging theories here that would require a conclusion of licensed and unlicensed, that cannot be correct.”
. Although the majority opinion characterizes the government's admission as a "suggestion,” Majority at 1099, 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.
. The analysis of the statute that the majority opinion presents in a blatant attempt to justify its refusal to vacate the conviction, see Majority at 1099, is therefore wholly improper. We need not and should not reach the statutory interpretation issue in this case.
. The majority opinion errs in characterizing the government’s admission merely as a "distasteful” "non-concession.” Majority at 1099. 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 conviction to be unlawful and then continue to pursue the affirmance of that 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 conviction,” see id., prevents it from prosecuting this appeal any further and that it is our duty as judicial officers *1107to proceed no further with that part of the appeal.
. 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, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996); Alvarado v. United States, 497 U.S. 543, 544-45, 110 S.Ct. 2995, 111 L.Ed.2d 439 (1990); Mariscal v. United States, 449 U.S. 405, 405-06, 101 S.Ct. 909, 66 L.Ed.2d 616 (1981). Of course, its role is different than ours and it ordinarily grants a writ of certiorari, vacates and returns the case to the lower courts for the requisite action.
. 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 conviction, 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 ex*1108press a serious view on the question before us.