US v. Ogles, No. 03-10439 (3-10-06)(en banc). In yet another en banc decision (three in the past two days), the 9th upholds a judgment of acquittal on a Fed. R. Crim. P. 29 motion. That's the easy p[art. Lets deal with it first. The defendant was charged in Count One under 922(b)(3) and 924(a)(1)(D) with selling firearms to a non-state resident as a licensed firearm dealer. He was charged in Count Two under 922(a)(1)(A) and 924(a)(1)(D) as dealing in firearms without a license. The defendant, a California licensed dealer, had sold and given a firearm to an Arizona resident at an Arizona gun show. At trial, the court granted a Rule 29 acquittal on Count Two, and the jury convicted don Count One. The gov't argued on appeal the acquittal was on technical terms because of the confusion with Count One (the defendant could be either/or). The 9th held that the double jeopardy clause protects the defendant in an acquittal, and here the defendant had asked for one. he did not ask for another remedy. like a dismissal for delay or for another reason. The acquittal was clear and that's the end of the story.It is not the end of the opinion. There is a question whether the licensed dealer's behavior is non-location specific.

That is, a licensed dealer is held to actions even if he is outside the state he has the license from.

It seems that the gov't, at oral argument, had said that it was mistaken to prosecute on both counts. The gov't apparently argued that the defendant's conduct was properly understood as being "unlicensed". The gov't argued further that if the acquittal was reversed and remanded, then it would dismiss the conviction under Count One. The ambiguity is that the dealer's conduct, out of state, should be considered as unlicensed, since the license was for the state that the dealer was not in. The 9th notes the strangeness of the gov't's argument, but deems the concession a non-concession because of contingencies placed on it (if....then). The defendant also didn't raise the statutory mismatch on appeal. The gov't's position was only announced at argument. The 9th adopted the Sixth Circuit's interpretation that a licensed dealer is not location specific for bad transfer. Any remedy for an ambiguity seen by the gov't should be addressed to Congress. In dissent, Reinhardt is aghast at the government's position, taking it to task for the inconsistent positions, and for acknowledging, tacitly or implicitly, that the convicted behavior should be construed as behavior under count two. Reinhardt doesn't feel the court has to take a position on the interpretation, but could take the gov't had its word that it goofed, and vacate. Other judges concurred (Berson, Pregerson and Fisher). They also share Reinhardt's befuddlement at the gov't's position. These dissenters though feel that the gov't could test the ambiguity of a complicated statute by having two interpretations (what's a liberty interest when faced with statutory sloppiness). The concurrence would not joining Part One (discussing the ambiguities) because the issue was not raised. The concurrence recognizes a gap with such an interpretation (a licensed dealer selling outside his home state but to a resident of his home state). They join in the rest of the opinion and the judgment.