and what i mean by that is the state that a licensee is authorized by the terms of the license to conduct his operations at the specific location of a specific business premises in this case miserables was licensed in california i read the statute as a whole that is nine twenty two twenty three twenty four that's what i was saying pretty much that i mean it seems to me pretty clear from reading the entire package  correct and unless i'm misreading the structure of nine twenty two a one applies to ordinary mortals where as the remaining part of mine twenty two separate sections applies to licensed dealers so why isn't there a plane on the face of nine twenty two a one but it applies t non licensed dealers it does apply to non licensed dealers but i think the fundamental question presented is what does it mean to be a licensed dealer and the government's position is that with respect to nine twenty two a one a when a licensee sells away from his to california right now ninety three j is a specific provision that also allows him to sell at a gun show located in the same state in which is premises are located so he could sell at a gun show in san francisco but other than that any sales that he  what i'm saying is that the statute read is the whole seems to communicate that ideal or it's supposed to sell from his love hate the location that he applies for or pays a fee for wrecked or a gun show within stay correct and what the but but regard to the sale at the arizona gun show was he acting as a licensed dealer and or physician is absolutely not of the scope of his license he was ultra vires as to those transactions and therefore he was subject to prosecution because if you will the statutory exception dealer doesn't apply to him and therefore he was i believe your honour's term was an ordinary mortal he was just selling as though i were selling someone who doesn't have a license he was in same position with respect to those particular disputed transactions now we acknowledge as we did in our brief your honor that the sixth circuit in the caldwell case which the district court relied upon and which the defendant has now embraced but they rejected the government's position weak knowledge that however we have long maintained we continue to maintain that halt well it was wrongly decided that the case fundamentally of the legislature that the plain meaning of the statute makes this location specific licensing regime very clear the only problem i have with your argument is that we're dealing with a five year penal statute yes and you are essentially making a fairly technical regulatory violation which has very serious consequences why wouldn't the normal rules of statutory construction applies of the defendant gets the benefit of the rule of le license dealer there's no dispute that at least as to his business premises in california mr ogles he is and was a license deal absolutely we can see that and and under the regulations he can go to a gun show in arizona and offer weapons for sale correct he cannot under the regulations part with the weapons at that location he's got to go back to his license promise wrecked ship them to an arizona f l who then makes the delivery sort of classic regulatory enforcement but you want to put him in prison for five years on the argument that because he violated the regulations he was not acting as a licensed federal firearms licensee and i have a i have a problem with that because of the hammer that you're using i appreciate your the court's concerns let me say we do think it was a breaking story violation but i also believe that it's a statutory violation it's not just as your honor said i mean it is a technical regula violation but it's also a violation of the plain language of the statute the statute applies to anybody except a licensed dealer and again i don't mean to sound redundant but we can you cite any case other than that doctor which that old supreme court case involving the food and drug government i think arguably presented sufficient evidence alone young willful yeah so i think that that's right your honor again just for purposes of setting the record clear i don't concede the point that this is strictly a regulatory violation it is and has been our position that this is a statutory violation and because as roger just pointed out because there was a knowledge of science a requirement and not just ordinary knowledge we're talking about a willful act we believe that it is sufficient to impose criminal liability had m licensed dealer only somebody in arizona last to be yeah it is you're saying he's not a like rexy he's in the same position that's correct r i would be happy to address any other questions including the jurisdictional issue but i would like to reserve a couple of minutes for a bottle if that's ok created a provision of law which prohibits the transfer of firearms from residents of one state to another state and then in section one twenty two b is where the provisions are dealing with dealers licensed dealers transfer in firearms residents of another state so the government's argument that not this is covered by nine twenty two a one really is contrary to what congress did and in congress congress created three separate provisions here one is nine twenty two a one which is engaging in the business of dealing firearms without a license then there's nine twenty two i think it's a three it might be four which is sales by any person other than a license deal that's a three ok and that would be that the out of state or dealer for the nonresident transfer provision and then one twenty two b three which is the provision dealing with dealing with dealers selling to nonresidents that's again yet another section and indeed mr ogles was convicted of violating that section in the in the other appeal that's the count one of them that's the count want to fence exactly but i'd like to start out by pointing out that the government skipped over what i think is really the more significant issue in this case and that is that this was an acquittal in the court below the district court judge ruled on rule twenty nine and acquitted in this struggle then and she did that by looking at the facts the government had presented he was not a licensed dealer and that's the key element and they are in the indictment said a licensee who was selling outside of the state in which his business was located so you could have made a motion  indictment under holwell well i'm not sure we could have because all because the but ultimately the statute doesn't for the statutory elements is somewhat different we could have made a motion to dismiss i suppose and the government would simply reinvited him under the correct fact with the government did that they did mid jury instructions which were consistent with what the statute requires which were not consistent with what the indictment required but with the indictment stated a plan b finally realized if the indictment was not exactly correctly exacerbates it probably doesn't but i would are i guess we probably waive that issue by not raising it and but once we got to the rule twenty nine motion everybody was for both parties and the court focused on the on the language of the jury instruction which was the proper which was set out the proper elements of the offense and that's what the judge focused on in deciding the rule twenty nine motion was the undisputed jury instruction as to what the elements of the  were and the judge found as this error concluded that the evidence showed because the government produced the mr ogles license that he was a licensed dealer so the district court in fact made a factual look  facts and applied those facts and then yes made some legal decision interpretation following that it is concluded that having having the evidence having shown that mr rove was a licensed dealer then we look at the statute and rule on fact had the opportunity to make that determination that's right whereas if the court simply makes an erroneous ruling and grants a motion for judgment of acquittal because she misunderstood the law that her double jeopardy problem if we reverse the trial court's determination and remain and with all due respect i don't think that's what the supreme court said i think they made clear that even if the judge even if the trial judge makes an erroneous interpretation of the law as long as what they've done first is look at the fact has the statute not been construed in accordance with poll well that's that may be right but the but the point is that that the district court judge interpreted the district court judge looked at that fact that they didn't prove that he wasn't a licensed dealer because we had this rule twenty nine which i made again and using the role of the court and the jury in this case in a jury trial the court terminated the proceedings without giving the jury the opportunity to decide guilt or judge did look at the evidence and she said that if this went to a jury no reasonable jury could find him guilty because the government's evidence looking at the light at the evidence in the light most favorable to the government i there was no factual dispute as to well that's but we were there never is going to be a factual dispute when you make a rule twenty nine motions has run government yet your argument take it was farcical conclusion is that every time the court grants rule twenty nine motion double jeopardy applies and that's not what remaining you think you could take a stab at why the statute should not be read clearly to say you're licensed for a particular location or where you pay a fee or for a gun show in state for those those are all have to be you have to have a license as provided in one twenty three yes but nine twenty three simply sets out in one of the subsection via believe it is the requirements for getting a license yes one of those provisions those other provisions the government is talk take place at a fixed location or if that location moves it must be within the same state in which the licensee has his business friends well that well those provisions are in there but i what i'm saying is that those are not things that you have to twenty two a one and i would argue that even if you go through all the interpretation of the statute by looking at those provisions in fact me when you do all that you may end up with a with an ambiguous view of the statute which means that the rule of lenity would apply in  little extra time since we used to have a lot of extra time with mr carville i want i want to take that much time the one point that i'd like to make your honor says on the question of appeal ability was united states and scott versus united states are two cases that were decided on the same day this case is controlled should not be afforded the traditional finality that would give an acquittal because it was influenced by an erroneous view of the law and the supreme court said it doesn't matter where the district court enters a genuine acquittal under the martin and standard that acquittal is produces and that's the end of the matter the government can't defendant by deliberately choosing to seek terminations of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which you hughes suffers no injury under the double jeopardy clause if the government is permitted to appeal and that's the difference the ruling in scott as in this case here is if you're question of law unrelated to factual guilt or innocence and what the implication of scott is and what scott actually holds is that where there's an erroneous ruling of law that leads to that dismissal on grounds resident but the testimony of both mr morse and mr pachachi was that only that they told mr ogles that that to affect the transfer of a firearm to a nonresident they had to take he had to take the gun back to his place and california and ship it to the dealer in arizona and of course that information is directly contrary to this court's for holding in the douglas case where the where the where the court said that the law is that mention that at all all they testified to was that to affect his daily had to go back to california and the guns to our zone and sell them through an arizona dealer transfer them for arizona if you will at least they told him one element of the law which he was ok you could also just transfer the gun to a resident of arizona and into a dealer in arizona who could then make the transfer to the individual in arizona the information that they gave him was was at  misleading and i think in fact erroneous and therefore the fact that the government the government can't rely on that information that to show that mr ogilvie acted willfully i think it requires more than that they had to be testimony that showed that he knew that it was a violation to make the transfer at the show through without going through a licensed dealer and that their testimony simply didn't address that specific issue well i mean they didn't tell him that that  go quite as far as you want to read it which suggests that it is in means that he could hand it to him well to remove any doubt about that the agent the a t f inspector who the government called was one of their witnesses testified that in fact that that exactly what could happen that the dealer that mr ogles could have just handed it to an arizona licensed dealer and the transfer could have been made at the show through the arizona dealer your position that are put no three in the douglas opinion acknowledged but rejected the government's argument is that how you read that point no i think that's correct but at the ted there was no to remove any doubt th law was is not something that could be looked to to determine if mr ogles acted willfully and for that reason i think he should have been the rule twenty nine motions should have been granted as to that count as well  jury that mr braxton had no motive to come in here and try to fabricate that he saw all these firearms purchases what turns out mr braxton didn't have a motive he was trying to get a job with a very prosecuting agency that was prosecuting mr ogles and the trial court here concluded that that it would not have made the testimony the disclosure of that information would not have made a difference  to the jury's verdict and i think that's the wrong standard under kyle's v whitley kyles specifically stated that the standard is not whether it's not whether there would have been a different verdict but whether the favorable evidence could quote reasonably be taken to the case to completely different light if bronson's has been found to be a credible toadies well i think it's enough that because because the government specifically argued in the closing argument that he had no motive to lie we didn't have that information with which to cross examine mr bracks and then maybe it wouldn't have changed the outcome but i think it certainly had a minimum undermines confidence which is the standard that the court had to look to but what do we do with the trial court determination that it did not well the trial court determination was as i as i understand it was the disclosure wouldn't have made a difference in the jury verdict and i don't think that's the correct legal standard and this  courts can review has reviewed the novo the question of whether the court lower court applied the correct legal standard down in trouble in the united states versus begley when we did just what you're inviting us to do and we got our platform i'm not quite so that now you do have to review do novo the question of whether the trial court applied the correct legal standard to determine whether the court of use its discretion and denying the motion for a new trial is your argument that because judge jorgensen didn't the magic word as undermines confidence in the reliability of the outcome that her finding on the lasts is insufficient i think i think that's right if she didn't apply the correct standard she couldn't have reached the probably she was brief but i think she reached the wrong wrong conclusion because the government made the same argument before her and she apparently had doctored the government's interpretation of the government's view of what the law and we think that with that legal view it was an error and the fact that she in fact didn't use the magic words is indicative of that that she just simply applied the wrong standard i see my time is running out thank you  that as i think the defense counsel acknowledged was at least accurate and consistent with what's now the second question is whether it would have been permissible to give the gun directly to a dealer to either morse of his calculus they had to show and have them effectually to transfer or what you need to return back to california and ship it to an arizona licensee at that point and that gets to the issue about footnote three of the douglas opinion if the court accept the premise from the prior argument that licenses are location specific it's clear that he couldn't transfer the gun he had to go back  premises and respectfully to my opponent here this morning that is exactly what the a t f inspector testified to and her testimony appears on pages nineteen to twenty one and by the way it's also what the two dealers themselves testified to but the f inspector specifically said in response to a question of quote what can a california licensee do if he wants to sell a firearm to a person at an arizona gun show answer he can display and take waters and then return to his licensed premises within the state of california and something about sure we could serve as your transfer agent all you have to do is give us a list of what they buy and then ship the guns to us in arizona that is accurate testimony it's not incorrect because licenses are location specific one other point that i just want to make let's just assume hypothetically that he could transfer it directly to a dealer at the gun show he didn't do that here he made no attempt to do that here if he had tried to do that then perhaps the issue would be squarely presented but he didn't intend to do that he just bypassed it altogether and directly sold the gun to mr bhutto so i'm not even sure that this case necessarily even implicates it because he made no attempt to comply with what he understood that was to stand for in other words there's three options return to california at your your argument would have to be that that he can't do that's right but the point is if  just one other point just to clarify the record there is an exception where in and out of state dealer like a california dealer can make a transfer directly at a gun show to another dealer but that is only where if your real or a relative firearm is involved i believe that's also in a different sense and nine twenty three jane so there is a limited exception for dealer to dealer transfer is an out of state gun show but this was not a curio or relic firearm that exception doesn't apply but i just wanted the record to be clear on that point if the court has no further questions then i'll just turn to the brady issue on the new trial point it is our position at the evidence was not material the district court got the standard correct if you read kyle's and i've read the decision and i've read back in the many times the supreme court has lots of different semantic ways of referring to materiality i think the common denominator is that the ultimate focus is what is the probable impact that this new evidence would have had in light of the verdict can we say that this new evidence was so damaging was so devastating that we can no longer say that the verdict is reliable that it was an accurate determination of guilt or innocence yes the district court said that the virt that the evidence here would not have made a difference it did not use the magic words undermine confidence in the verdict the issue was briefed in the new trial motions as judge thomas suggested i don't think that there was an incorrect assessment and i also think that you know even if hypothetically or assuming argue endo there was an erroneous assessment the court could look at the matter to novo and i think it's clear for the reasons largely pointed out by judge b that the evidence doesn't undermine confidence you had arthur kramer who testified to the same general issues as as mr brash and in addition more simplest helicity testified on the element of willfulness all this testimony was relevant to the claim of the stakes slash you know willful behavior and so even if you want to say that this one witness would have been impeached by the disclosure of this information i still think that the integrity of the verdict remains intact because you have these independent sources how do you think we applied the bagley standard then if the legal issue is  treat the district courts factual determination that well it depends i guess if you view what the district court said i think the district court in fairness i think the district made a conclusion of law i believe actually what i think it is is that the the reasonable probability of a different questions regarding that issue i'll just you would help me