i would like to begin with the issues pertinent to the government's appeal and with six reserve five minutes for a vote on your arse the landmark gun control act of one nine hundred sixty eight was an act it out of concern for the widespread traffic in firearms and with their general availability to the public at large the congressional findings accompanying the legislation reflect congress's determination that the ease with which this does the weapons could be obtained contributed significantly to the prevalence of lawlessness and violent crime in this country the statute does represent fundamental to the operation and effective enforcement of this comprehensive regulatory approach the location specific nature of federal licenses ensures that regulators can adequately track and monitor the flow of these weapons if they can conduct meaningful inspections an oversight of licensees from a fixed defined location and if they can otherwise control the dissemination of these weapons to persons whose position would otherwise be contrary to the public interest and licensees we disregard this well established an industry glad i'm here i appreciate the question your honor and the government's position is that you cannot be convicted of both the a one f n c and of the three offense i realize that may seem like a contradiction and i'd like to just take a moment to explain where the government's present position comes from at the time this case was charged indicted the government believed that it was appropriate to charge an individual such as mr almost with both being a licensed dealer and with exceeding the scope of his license significantly at the time this case was prosecuted in the district court there was never any objection to the supposed tension or inconsistency that was ultimately later identified by judge reimer i think most directly in her dissenting opinion and the case proceeded of course the case with an argument appeal and as the government was charging theories here that would require a conclusion of license that unlicensed that cannot be correct now what we contend the next question then becomes what's the proper characterization  unlicensed person with regard to the same transaction at the same time so ok that's that's exactly where i'm going now so the question then becomes is a property of humans licensed in which case the b three charge is the one that's correct or the property was unlicensed in which case what i'm asking for is for the court to if you drop your construction and they want to say that he was unlicensed we would ask for a remand for a new trial we would be willing to vacate the conviction on the b three ten on the theory that he cannot be both so the question is which one is proper at section twenty one a lot of people who are not licensed dealers are allowed to go to gun shows and sell guns and it seems like the easiest way to read these sections about what a licensed dealer can do and what somebody not a li business well i certainly agree that a the a one side of things would apply to people who have no license at all and that the p c game would apply to somebody who's license but the question we still have to ultimately grapple with which is ultimately a question of congressional intent is what does it have gone from one state to another on the other hand can't go into another state and compete with its licensed dealers if i understand your honest question because it's still a question of i think what what we seem to be taking a bit as a given and the point that i'm itself to two readings you know you have to grant the defendant freedom to read it in a way that's more permissive that's correct although i think i agree with the general state of the law but in this case i don't believe you get to let it be because that's what made the end of the process of interpretation the provisions of this chapter of the provisions of this chapter in turn including section one twenty three which is the licensing provision well let me if i may say that i think that if i think there's a three step process here the first question is the ruling appealable on a want to hear and that's what i'm going to address in a moment if you conclude that it's not appealable then we don't get to the merits of the interpretive issues and the only question of these three conviction to be three convictions is a perfectly valid because you haven't said you haven't had occasion to reach the merits of what it means to be licensed and therefore we say that the big three convictions it's only if you agree with our position on the merits of the a want it and i know i don't say that our position is that if the if it's a question of whether the ruling is unrelated to factual guilt or innocence and let me quote if i may from the scott case this is what the supreme court seven scott despite respond to scott's contentions  good because a ruling in favor of the of the defendant is based upon facts outside the indictment or because it is granted on the grounds that the defendant simply cannot be convicted of the offense charged that is the statement that we understand to mean it's a legal interpretation of what the statute means that is not a classic well it's only dealt with all due respect it's only double jeopardy the constitutes an acquittal and that's what the critical interpretive question is and what i just tried to straight from scott is that there just are courts ruling here that the statute is not location specific if you will that is in the legal interpretation of the statute it's not a determination know it's not it's not a question of attachment it's a question of the up with the jeopardy attached but the question is whether the proceedings were terminated on the grounds of an acquittal or whether it was terminated on the grounds that was not i determine a chain of evidence perhaps is not the test the test is evidence or insufficiency is rather pointed out if you look at the ruling in small if you look at the ruling and if you look at the ruling in martin lynn and all those cases are quintessential acquittals because the judge is making a determination government you had your bite of the principles with regard to the acquittal issue if the judge renders an erroneous legal ruling and that legal ruling contributes to an acquittal the government is barred from appealing but if the judge issued an erroneous legal ruling that contributes to something other than an acquittal such as the dismissal the indictment the government is not part let me just say to that there's two points i don't know if that really is it as i understood it before scott came down yes the defendant had something of an option where the indictment alleges something that was not a crime he could move to dismiss the indictment and if he won the indictment would be dismissed right by the government might prosecute him again right and with the new information or invite me or write me out or he could wait until the jury was can't be convicted of the offense but but putting that to one side if i can just go back to george graves question which i think will address your question as well just kleinfeld if let's take the following hypothetical which i hope will illustrate the point let's assume a federal statute makes it a crime to knowingly possess marijuana and that at the end of the government's case in chief the district court says i find that the word knowingly requires proof of willfulness or specific intent a very high mens rea i find the government failed to present adequate evidence of that and therefore i'm entering a judgment  erroneous rule of law may affect the accuracy of the acquittal but it doesn't affect the ultimate character of that ruling as an acquittal now let's take a different situation same statute at the close of the government's case the district court says you know what i find the defendant did this test marijuana but i c or innocence and that's what i think scott is driving at scotus trying that there's an outer limit here we're not just going to say that everything that is called an acquittal is truly an acqui i don't know if it was her duty but let me just say if you look at the transcript of the discussion of the rule twenty nine motion i don't think i think it was clear beyond a shadow of any doubt that this was a legal ruling let me just explain if i may why in i'm sorry chief judge jury looks like you had a question well i don't know that you would get to the second half that you wouldn't get to the question of the government's wrong about the other one because if it's not appealable you don't get there look if the consequent me say this if the consequence is that we lose both conviction i don't agree it with all due respect i don't agree that it's improper it's only improper if you if you agree with mark look the court has to determine what the statute means and wherever the chips fall where they do we accept that ok the correct thing here the proper thing for the court to do if you conclude that if i may just answer if you conclude that there's no jurisdiction you wouldn't reach the merits of the statutory interpretation you could certainly expressed in indic to our however if the court chooses to address it you can note what the government's position is only going forward basis that we don't agree with caldwell we think the  are location specific but i don't think you have occasion to address it because arc it would be before you in the defense appeal certainly doesn't present the question short i  don't license whether it's inside the state or outside the state that charges an offense and lets you bring in the additional fact that he was licensed i don't think count two is just miscible on its face standing alone and i don't think you can bring in count even a rule twenty nine cases it was a there was a motion made trial dismissed over an indictment for three indictments away i don't really see why it matters whether it was rule twenty nine the old rule before scott was the question is whether it didn't matter anymore whether the jury had been sworn and what mattered was the basis for the well so i don't really see why it matters whether rule twenty ninth or whether it's and after is rule twenty nine motions but the rashly rationale of sky is not that the rationale it's got is and if there was no resolution of factual elements and start writing and i think that that's think that that's what that's what happened here i mean what the government is really asking in this case is they say well it's because the judge made what she did what made what the government requires that there be some dispute or does it mean simply that you take note of them whether they're in the indictment or in the evidence well i think they kept the cases where they the for example martin linen which was that which was a rather this language came from the case had gone to the jury and the judge after the case went to the jury made the determination that looking at all the evidence both the government and the i think that that's what it means and when you've got a case that's going to the jury were both sides are put on their evidence indicate in this kind of case in this case and in the smallest case you look at the the honor if you if you get if you look at it from what i think the perspective i think that correctly that the trial judge looked at it the government's position was that one of the elements the offense was that he was not a licensed dealer are the government trying to prove that fact by showing that he wasn't licensed in the state of arizona when they put out their evidence was that he was licensed in the state of california and therefore he wasn't licensed in the state of arizona so there was a legal sufficien is whether the evidence was legally sufficient to show that he was not licensed in the state of arizona at the court the trial court to term interpret the statute instead now the question is is he lete is the license anywhere in the united states that's how what the statute means then we then the judge looked at the evidence and said looking at the government's evidence i find it insufficient to show that he was not licensed anywhere in the united states and and and then the statute to figure out whether the evidence was legally sufficient or not and the and the the court interpreted statute instead what would be legally sufficient is to show that he doesn't have a license anywhere in the united states put on so there can't be any disputed evidence that starts at that stage in the proceedings it's only it's only the government's evidence and this is like in the smallest demurrer were you you look at that evidence and you say is that maybe appropriate in the context that it was mentioned there is an in the martin live in case where you had two sets of evidence you had the government's evidence and you have the defendants ev because of all the evidence but that isn't the situation here and i that's why i don't think i don't i don't believe that this is a crock martin when in kind of case it's the smallest case where you have where you have a  and guy comes across the border and the judges will look a little variance means you're going to come for us you know without surveillance and based on what the government has presented i find it is a matter of law he didn't need it came up on  argument is that they prove that he was not a licensed dealer by proving that he was not a licensed dealer in the state of arizona and really what the states it was a sufficiency the evidence as to whether he was a latent stealer you boil it right down is that the judge the trial judge made a wrong interpretation of the statute but they but the case was absolutely clear that no matter how egregious lee in error i think that's the word the court used the trial judges interpretation of the you well this is the first i've heard of the government now believes that that that may be the wrong that the statute to it brought to the charge under i think that  the resolution here is that the the court find that the double jeopardy applies to count two and take the government its word is to count one that that was the that that was really an incorrect statute intended to sell something like ninety three i have firearms and i and possibly for sentencing purposes that ninety five firearms could be incorporated as as you're looking at the at the still have an issue on count one aside from this issue but not that issue that's right although i think i think when the government comes up to the court and say is that it basically green is that that was the incorrect interpretation of the statute is he correct application that's actually yes i mean they opposed the rule twenty nine motion and said and said that he could be convicted i mean did did the trial judge ask him to be convicted of both counts and i don't think those specific words were uttered by the government argued against the rule twenty nine motion as to both counts because a motion was made as to both counts of the trial judge granted the motion as to count two and then and reserve judgment with regard to count one and that's the end of the that's right the only thing you don't but if you do that their convictions stand then then with regard to that count i think then you do have to deal with the evidentiary issues i think we may be creating confusion for ourselves by sometimes talking about se who are engaged in the business to get a license i don't think that either of those statutes has anything is locations pacifica's congress wanted to make it location specific it easily could have put in the words at his premises in that's right and without a license to the arizona that's right if you're in alaska you can sell a gun to a resident of alaska under the federal laws no problem but once you started gauging the business that was doing it for livelihood and profit through the repetitive to arizona back to california resident that's why they want to use the net is we believe consistent with what congress intended but that's why it matters that you not just say well you can use b three because it doesn't cover the hypothetical just early on just discuss i have discussed this with my supervisors in my section i'm going to i mean the part section of the criminal division we have discussed this internally we discussed it with a t f they are in agreement in terms of what the government's position is as i've stated it here today my time has expired i would like to  aside to the government appeal the answer is yes because it does require further proceedings the question is if the district court renders the same ruling in the middle of trial should we have a different result to the case is mandated different result and the answer is no and that's where scott fills in the gap and let me just say that if you reach a contrary result what you do as a policy matter is you create an incentive for defendants to let go of the rule twelve to do in the middle of trial to secure the acquittal and the problem is that only the double jeopardy clause from its purposes which is to shield the defend the government being oppressive what you're doing is you're arming the sort that you can use to kind of gain a tactical advantage i think is a policy matter that's what scott is driving at know because it's i think it's rather pointed out the justice certainly was ruling and then do it post verdict in which case the government could then appeal