FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 03-10439

v.  D.C. No.

CR-02-01805-CKJ JOHN GILBERT OGLES,

Defendant-Appellee. 

UNITED STATES OF AMERICA, 

No. 04-10069 Plaintiff-Appellee,

D.C. No.

v.  CR-02-01805-CKJ

JOHN GILBERT OGLES,

OPINION Defendant-Appellant. 

Appeals from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

October 4, 2004—San Francisco, California

Panel Opinion Filed April 28, 2005

Rehearing En Banc Granted November 16, 2005

Argued and Submitted En Banc

December 14, 2005—Portland, Oregon

Filed March 10, 2006

2483
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Andrew J. Kleinfeld,

Michael Daly Hawkins, Susan P. Graber,

M. Margaret McKeown, William A. Fletcher,

Raymond C. Fisher, Ronald M. Gould, Marsha S. Berzon,

Circuit Judges.

Opinion by Judge McKeown;

Partial Concurrence and Partial Dissent by Judge Reinhardt;

Concurrence by Judge Berzon

2484 UNITED STATES v. OGLES
COUNSEL

Michael A. Rotker, Department of Justice, Washington, D.C.,

for the plaintiff-appellant/appellee. 

Richard E. Gardiner, Fairfax, Virginia, for the defendantappellee/appellant. 

OPINION

McKEOWN, Circuit Judge: 

We consider whether the district court’s judgment of

acquittal under Federal Rule of Criminal Procedure 29(a) was

related to factual guilt or innocence and thus constitutes a

UNITED STATES v. OGLES 2487
“genuine acquittal,” the government’s appeal of which is

barred by the Double Jeopardy Clause. John Gilbert Ogles

was charged under 18 U.S.C. §§ 922(b)(3) and 924(a)(1)(D)

with willfully selling and transferring physical possession of

a firearm to a non-resident of the state in which he was

licensed to deal firearms (Count One) and willfully engaging

in the business of dealing firearms without a license in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (Count

Two). At the conclusion of the government’s case, the district

court granted Ogles’ Rule 29(a) motion for a judgment of

acquittal as to Count Two, concluding that Ogles was a “licensed dealer under the statute” and thus not in violation of

selling firearms without a license. The jury convicted Ogles

on Count One. Ogles appeals his conviction as to Count One;

the government appeals the judgment of acquittal as to Count

Two. 

Although we took the entire case en banc, the primary issue

that concerns us is our jurisdiction to address the government’s appeal. We adopt section II(A) of the panel opinion,

which affirms Ogles’ conviction on Count One. United States

v. Ogles, 406 F.3d 586 (9th Cir.), reh’g en banc granted, 430

F.3d 1221 (9th Cir. 2005). As to Count Two, we hold that the

judgment of acquittal represented a ruling that the evidence

was “ ‘legally insufficient to sustain a conviction.’ ” Smith v.

Massachusetts, 125 S.Ct. 1129, 1135 (2005) (quoting United

States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977)).

Consequently, the government’s appeal is barred by the Double Jeopardy Clause.

BACKGROUND

Ogles, a California resident, held a federal firearms license

that listed his place of business, “Belleau Wood Gunsmithing

& Firearms,” as located in California. In June 2002, at a gun

show in Arizona, Ogles sold a firearm to Michael Buda, an

Arizona resident. 

2488 UNITED STATES v. OGLES
Ogles was indicted on two counts. Count One of the indictment charged Ogles with “willfully . . . sell[ing] and deliver-

[ing] to Michael Buda a firearm . . . knowing and having

reasonable cause to believe that Michael Buda at the time of

the sale and delivery did not reside in the State in which the

licensee’s place of business was located,” in violation of

§§ 922(b)(3) and 924(a)(1)(D). Section 922(b)(3) provides

that “[i]t shall be unlawful for any . . . licensed dealer . . . to

sell or deliver . . . any firearm to any person who the licensee

knows or has reasonable cause to believe does not reside in

. . . the State in which the licensee’s place of business is located.” 

Count Two of the indictment charged Ogles with “willfully

engag[ing] in the business of dealing firearms without a

license, that is outside the State in which the licensee’s place

of business was located,” in violation of §§ 922(a)(1)(A) and

924(a)(1)(D) (emphasis added). Curiously, the indictment

included a locality requirement, which the text of the statute

does not. Section 922(a)(1)(A) provides only that “[i]t shall be

unlawful—for any person—except a . . . licensed dealer[ ] to

engage in the business of . . . dealing in firearms.” (Emphasis

added). Section 924(a)(1)(D) provides that whoever “willfully

violates” these provisions shall be fined, imprisoned up to five

years, or both. 

At trial, the government introduced evidence regarding

Ogles’ conduct at the gun show, including testimony from

Buda that he did not fill out any paperwork for his purchase

and that Ogles handed over the firearm at the gun show after

seeing Buda’s Arizona driver’s license. Two witnesses, both

licensed to sell firearms in Arizona, testified that they

informed Ogles that he could not physically transfer firearms

to purchasers at the Arizona gun show. 

At the close of the government’s case, Ogles moved for a

judgment of acquittal pursuant to Rule 29(a). With respect to

Count Two, Ogles argued that § 922(a)(1)(A) applies only to

UNITED STATES v. OGLES 2489
an unlicensed dealer and that he was a licensed dealer. The

government opposed the motion, taking the position that a

federal firearms license is location specific and that a licensee

like Ogles who sells firearms outside of his designated area

acts in an unlicensed capacity within the meaning of

§ 922(a)(1)(A). The district court adopted the reasoning of

United States v. Caldwell, 49 F.3d 251, 252 (6th Cir. 1995),

which held that § 922(a)(1)(A)’s prohibition against dealing

in firearms without a license is not violated when the defendant has a federal firearms license, even if he sold firearms

away from the licensed premises. The district court granted

the motion on Count Two and reserved decision on Count

One, stating: 

The Court finds that the defendant is a licensed

dealer under the statute, and therefore — and the

issue still remains as to Count 1 as to whether or not

he engaged in his improper transaction. But in any

event, he was a licensed dealer under the statute at

the time the transaction took place. Therefore, the

judgment of acquittal is appropriate as to Count 2 of

the indictment. 

The jury convicted Ogles on Count One, after which the

district court denied the Rule 29(a) motion as to that count as

well as Ogles’ motion for a new trial. Ogles was sentenced to

twenty-four months of supervised probation, three months of

home confinement, and a $100 special assessment. 

ANALYSIS

I. CONVICTION ON COUNT ONE

Our primary concern is the government’s appeal of the

judgment of acquittal as to Count Two. We diverge, however,

from our main inquiry to address certain representations made

by the government for the first time during oral argument

before the en banc panel. Solely on the basis of those state2490 UNITED STATES v. OGLES
ments the dissent concludes that Ogles’ conviction on Count

One “is plainly and simply a ‘wrongful conviction.’ ” Dissent

at p. 2504 (quoting Berger v. United States, 295 U.S. 78, 88

(1935)). We disagree. 

During oral argument, the government suggested for the

first time that a defendant cannot be convicted under both

§ 922(b)(3) and § 922(a)(1)(A)—i.e., as a licensed and unlicensed dealer—with regard to the same conduct. The government stated that when the case was charged and indicted, it

believed Ogles was appropriately charged with both counts.

Although the government claimed that it re-evaluated its position in light of the three-judge panel opinion, it continued to

press its original position as late as the filing of its response

to the petition for rehearing en banc. 

The government’s current position is unclear. On the one

hand, the government advised that Ogles’ conduct is best

understood as “unlicensed” and thus falls under

§ 922(a)(1)(A) (Count Two), on which he was acquitted,

rather than under § 922(b)(3) (Count One), on which he was

convicted. At the same time, the government represented that

it would concede the invalidity of the § 922(b)(3) conviction

only if we conclude that double jeopardy does not bar the government’s appeal, and if we agree with the government’s legal

theory as to the merits of § 922(a)(1)(A) and remand the

acquitted Count Two for a new trial. Although the dissent

interprets these representations as a “concession”—which we

must accept—that the § 922(b)(3) conviction is invalid, Dissent at p. 2507, to take that position is to fall into one of two

traps. 

One trap is to read a non-concession as a concession. When

a party says that it would concede a point but only if we

already agreed with that party’s position, the party has made

no concession at all. This logic may be more distasteful when

applied to government counsel, but the logic still remains. 

[1] The other trap is, in effect, to allow ourselves to be

“bound by the government’s statement of the law.” Dissent at

UNITED STATES v. OGLES 2491
p. 2505. We are not bound by a party’s concession as to the

meaning of the law, even if that party is the government and

even in the context of a criminal case. See United States v.

Miller, 822 F.2d 828, 832 (9th Cir. 1987) (“Even if a concession is made by the government, we are not bound by the government’s erroneous view of the law.” (internal quotation

marks omitted)). 

The district court properly understood the statute. See Caldwell, 49 F.3d at 252 (holding that a gun dealer’s license under

18 U.S.C. § 922(a)(1)(A) is not location-specific). In this

respect, we agree with Judge Rymer’s dissent in the threejudge panel opinion concerning the meaning of 18 U.S.C.

§ 922. Ogles, 406 F.3d at 598-600 (Rymer, J., dissenting). If

the government believes that additional conduct should be

penalized, then its remedy lies with Congress, not with the

courts. 

[2] For these reasons, we decline to entertain the government’s newly minted argument and the convoluted conditions

attached to it, which were raised for the first time during en

banc proceedings. We also note that Ogles did not appeal his

conviction on Count One on the basis of a statutory mismatch.

We adopt section II(A) of the panel opinion, Ogles, 406 F.3d

at 589-93, and affirm Ogles’ conviction on Count One. 

II. ACQUITTAL ON COUNT TWO

[3] The question we address as to Count Two is whether

the government may appeal the district court’s judgment of

acquittal under Rule 29(a).1 The answer to this question lies

at the intersection of the federal statute governing appeals by

the United States, 18 U.S.C. § 3731, and the Double Jeopardy

1Rule 29(a) provides in pertinent part that, “[a]fter the government

closes its evidence or after the close of all the evidence, the court on the

defendant’s motion must enter a judgment of acquittal of any offense for

which the evidence is insufficient to sustain a conviction.” 

2492 UNITED STATES v. OGLES
Clause. Section 3731 provides that the United States may

appeal a “judgment . . . of a district court dismissing an indictment . . . except that no appeal shall lie where the double

jeopardy clause of the United States Constitution prohibits

further prosecution.” The Double Jeopardy Clause provides

that no person shall “be subject for the same offense to be

twice put in jeopardy of life or limb.” U.S. CONST. amend. V.

[4] In interpreting the clause, the Supreme Court explained

that “[p]erhaps the most fundamental rule in the history of

double jeopardy jurisprudence has been that ‘[a] verdict of

acquittal . . . could not be reviewed, on error or otherwise,

without putting [a defendant] twice in jeopardy.’ ” Martin

Linen, 430 U.S. at 571 (quoting United States v. Ball, 163

U.S. 662, 671 (1896)). Thus, the category of directed acquittals not covered by the Double Jeopardy Clause is quite limited:

Our cases have made a single exception to the

principle that acquittal by judge precludes reexamination of guilt no less than acquittal by jury: When

a jury returns a verdict of guilty and a trial judge (or

an appellate court) sets aside that verdict and enters

a judgment of acquittal, the Double Jeopardy Clause

does not preclude a prosecution appeal to reinstate

the jury verdict of guilty. 

Smith, 125 S. Ct. at 1134; see also id. at 1133 (“[W]e have

long held that the Double Jeopardy Clause of the Fifth

Amendment prohibits reexamination of a court-decreed

acquittal to the same extent it prohibits reexamination of an

acquittal by jury verdict. This is so whether the judge’s ruling

of acquittal comes in a bench trial or, as here, in a trial by

jury.” (citations omitted)). 

The district court’s judgment of acquittal which was

entered at the close of the prosecution’s case falls squarely

within the Supreme Court’s directive that a court-directed

UNITED STATES v. OGLES 2493
acquittal “could not be reviewed, on error or otherwise,” without violating the Double Jeopardy Clause. Despite the clarity

of the Court’s language, the government argues that the

acquittal here is not a “genuine acquittal” because it was

based on the district court’s construction of § 922(a)(1)(A), a

legal conclusion unrelated to Ogles’ factual guilt or innocence. Additionally, the government suggests the district

court’s failure to recite the applicable legal standard for an

acquittal is further evidence that it is not a true acquittal. 

[5] To understand why the government’s arguments cannot

be squared with the Supreme Court’s teachings, it is useful to

survey a handful of key cases, beginning with Martin Linen

in 1977, that establish the contours of the government’s right

to appeal a court-directed judgment of acquittal. These cases

underscore that the decisive question has been, and continues

to be, whether the district court found the evidence legally

insufficient to sustain a conviction. 

In Martin Linen, after a “hopelessly deadlocked” jury was

discharged, the district court entered judgments of acquittal

under Rule 29(c).2 The Court noted that, even if the “acquittal

was based upon an egregiously erroneous foundation, . . .

[n]evertheless, ‘[t]he verdict of acquittal was final, and could

not be reviewed . . . without putting [the defendants] twice in

jeopardy, and thereby violating the Constitution.’ ” Martin

Linen, 430 U.S. at 571 (emphasis added) (quoting Fong Foo

v. United States, 369 U.S. 141, 143 (1962) (per curiam)). In

addition, the Court explained that “what constitutes an

‘acquittal’ is not to be controlled by the form of the judge’s

action. Rather, [it] must [be] determine[d] whether the ruling

2Although Martin Linen involved judgments of acquittal under Rule

29(c) and not under Rule 29(a), the discussion of the Double Jeopardy

Clause and Rule 29 generally serves as a helpful backdrop to our case.

Rule 29(c) provides in pertinent part that a motion for judgment of acquittal may be made within 7 days after the jury is discharged, and “the court

may enter a judgment of acquittal.” 

2494 UNITED STATES v. OGLES
of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of

the offense charged.” Id. (citations and footnote omitted)

(emphasis added). The judgments of acquittal under Rule

29(c) were, according to the Court, “ ‘acquittals’ in substance

as well as form . . . [because] the District Court . . . evaluated

the Government’s evidence and determined that it was legally

insufficient to sustain a conviction.” Id. at 571-72. 

The government in Martin Linen urged that entry of acquittal after the jury was discharged was somehow distinct from

an acquittal under Rule 29(a) or (b), which is entered before

discharge of the jury. The Court rejected this temporal distinction: 

[I]f the judge orders entry of judgment of acquittal

on his own or on defendant’s motion prior to submission of the case to the jury, as he may under Rule

29(a), or after submission but prior to the jury’s

return of a verdict, as authorized by Rule 29(b)—and

the jury thereafter is discharged—the Government’s

argument necessarily concedes that the Double Jeopardy Clause would preclude both appeal and retrial.

Id. at 574. Indeed, far from “weakening the trial court’s binding authority for purposes of double jeopardy,” the timing distinctions in Rule 29 were designed to “accord[ ] the federal

trial judge greater flexibility in timing his judgment of acquittal.” Id. at 573. Emphasizing the sanctity and finality of

acquittals under Rule 29, the Court concluded “that judgments

under Rule 29 are to be treated uniformly and, accordingly,

the Double Jeopardy Clause bars appeal from an acquittal

entered under Rule 29(c) after a jury mistrial no less than

under Rule 29(a) or (b).” Id. at 575. 

One year after Martin Linen, the Supreme Court weighed

in again on the double jeopardy issue in United States v. Scott,

437 U.S. 82 (1978), a case that figures prominently in the

UNITED STATES v. OGLES 2495
government’s brief. Scott concerned a defendant who successfully obtained dismissal of the indictment “based upon a

claim of preindictment delay and not on the court’s conclusion that the Government had not produced sufficient evidence to establish the guilt of the defendant.” Id. at 95. Scott

moved for dismissal before trial and twice during trial on the

ground that his defense had been prejudiced by the delay. The

Court determined that the government’s appeal was not barred

because the defendant “deliberately cho[se] to seek termination of the proceedings against him on a basis unrelated to

factual guilt or innocence of the offense.” Id. at 98-99. 

In making the government’s right to appeal contingent on

the “character” of the midtrial termination, Scott overruled

United States v. Jenkins, 420 U.S. 358 (1975). Jenkins had

established that “regardless of the character of the midtrial

termination”—i.e., whether it was an “acquittal” or a dismissal on other grounds— a government appeal would be

barred if reversal would require “ ‘further proceedings of

some sort, devoted to the resolution of factual issues going to

the elements of the offense charged.’ ” Scott, 437 U.S. at 94

(quoting Jenkins, 420 U.S. at 370). Overruling Jenkins, the

Court explained that the double jeopardy concern of oppressive tactics by an “all-powerful state,” which figured prominently in its broad holding in Jenkins, was a “far cry” from

the situation in Scott, where “ ‘the defendant elected to seek

termination of the trial on grounds unrelated to guilt or innocence.’ ” Scott, 437 U.S. at 96 (emphasis added). 

[6] Throughout Scott, the Court contrasts the situation of a

midtrial dismissal “on grounds unrelated to guilt or innocence,” id., with an “acquittal” resolving guilt or innocence:

A judgment of acquittal, whether based on a jury

verdict of not guilty or on a ruling by the court that

the evidence is insufficient to convict, may not be

appealed and terminates the prosecution when a second trial would be necessitated by a reversal.

2496 UNITED STATES v. OGLES
Id. at 91. Leaving no doubt of its position, the Court emphasized that “the law attaches particular significance to an

acquittal . . . however mistaken the acquittal may have been.”

Id.

[7] To clarify the distinction between acquittals and other

midtrial dismissals, Scott invoked the definition of acquittal

established in Martin Linen: “ ‘the ruling . . . actually represents a resolution . . . of some or all of the factual elements

of the offense charged.’ ” Scott, 437 U.S. at 97 (quoting Martin Linen, 430 U.S. at 571). Thus, “[w]here the court, before

the jury returns a verdict, enters a judgment of acquittal pursuant to Fed. Rule Crim. Proc. 29, appeal will be barred only

when ‘it is plain that the District Court . . . evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction.’ ” Scott, 437 U.S. at 97 (quoting

Martin Linen, 430 U.S. at 572).3 Although the government

mistakenly cites this passage to support a more restrictive definition of “acquittal,” the Court’s subsequent decision in

Smalis v. Pennsylvania, 476 U.S. 140 (1986), reinforces the

limited application of Scott—i.e., to situations where a defendant seeks dismissal for reasons unrelated to factual guilt or

innocence. Thus, Scott should be read as creating a narrow

exception to the most fundamental rule in double jeopardy

jurisprudence. 

In Smalis, the defendants filed a demurrer pursuant to

Pennsylvania Rule of Criminal Procedure 1124(a)(1), which,

3

Interestingly, in Sanabria v. United States, a companion case decided

the same day as Scott, the Court appears to place at least some weight on

the form of the trial court’s order: “While form is not to be exalted over

substance in determining the double jeopardy consequences of a ruling terminating a prosecution, neither is it appropriate entirely to ignore the form

of an order entered by the trial court.” 437 U.S. 54, 66 (1978) (citations

omitted). Sanabria also is significant because even though the trial court’s

dismissal of the indictment rested on an erroneous evidentiary ruling—a

legal judgment—the Court held that “the Double Jeopardy Clause absolutely bars a second trial in such circumstances.” Id. at 78. 

UNITED STATES v. OGLES 2497
like Rule 29(a), permits a defendant to “challenge the sufficiency of the evidence to sustain a conviction . . . at the close

of the [prosecution’s] case-in-chief.” Id. at 141 n.2. Relying

“heavily” on the same language in Scott that the government

invokes here, id. at 142, the Supreme Court of Pennsylvania

held that double jeopardy did not bar the prosecution’s appeal

of the trial court’s decision to sustain the demurrer:

“In deciding whether to grant a demurrer, the

court does not determine whether or not the defendant is guilty on such evidence, but determines

whether the evidence, if credited by the jury, is

legally sufficient to warrant the conclusion that the

defendant is guilty beyond a reasonable doubt . . . .

[T]he question before the trial judge in ruling on a

demurrer remains purely one of law.

Smalis, 476 U.S. at 143 (emphasis added) (quoting Commonwealth v. Zoller, 490 A.2d 394, 401 (Pa. 1985)). 

The Pennsylvania Supreme Court’s conclusion, namely that

the trial court was making a legal determination rather than a

determination of guilt or innocence, has a familiar ring as it

echoes the government’s position here. But the Supreme

Court rejected that rationale and position because “[w]hat the

demurring defendant seeks is a ruling that as a matter of law

the State’s evidence is insufficient to establish his factual

guilt.” Id. at 144. Noting that its past decisions firmly established that such a ruling is an acquittal for double jeopardy

purposes, the Court clarified that “Scott does not overturn

these precedents; indeed, it plainly indicates that the category

of acquittals includes ‘judgment[s] . . . by the court that the

evidence is insufficient to convict.’ ” Id. (alteration in original) (quoting Scott, 437 U.S. at 91). 

Just last term, in Smith v. Massachusetts, the Supreme

Court revisited the question of what constitutes an acquittal

for double jeopardy purposes. The defendant successfully

2498 UNITED STATES v. OGLES
moved for an order entering “a finding of not guilty” at the

conclusion of the prosecution’s case under Massachusetts

Rule of Criminal Procedure 25(a), which is analogous to a

Rule 29 motion. Smith, 125 S.Ct. at 1135 (noting that “Massachusetts patterned its Rule 25 on Federal Rule 29”). Although

the Commonwealth characterized the grant of such a motion

as “a purely legal determination,” id. at 1134, the Court once

again rejected this argument, concluding that “what matters is

that, as the Massachusetts rules authorize, the judge ‘evaluated the [Commonwealth’s] evidence and determined that it

was legally insufficient to sustain a conviction,’ ” id. at 1135

(alteration in original) (quoting Martin Linen, 430 U.S. at

572). 

Here, the government similarly contends that the district

court’s ruling is a purely legal determination unrelated to factual guilt or innocence and is not, therefore, a genuine acquittal. Specifically, the government argues that the district

court’s decision rested solely on its resolution of a statutory

construction issue—that the term “licensed dealer” in

§ 922(a)(1)(A) is not location-specific. 

[8] As the Supreme Court’s unbroken line of decisions

makes abundantly clear, the determinative question is whether

the district court found the evidence legally insufficient to

sustain a conviction. Without a doubt, the district court did so.

In deciding the Rule 29(a) motion, the district court adopted

the Sixth Circuit’s interpretation of § 922(a)(1)(A) in Caldwell and concluded that the term “licensed dealer” does not

have a geographic component. After adopting this interpretation, the district court determined that a factual element of the

offense—namely, that Ogles was dealing firearms without a

license at the time of the challenged conduct—had not been

proven. Notably, the district court stated: “The Court finds . . .

that the defendant was a licensed dealer under the statute at

the time the transaction took place. Therefore, the judgment

of acquittal is appropriate as to Count [Two] of the indictment.” The judgment here was an acquittal in substance as

UNITED STATES v. OGLES 2499
well as form—a determination that the evidence was insufficient to convict. Whether this determination was ultimately

correct or “egregiously erroneous” is not relevant in evaluating double jeopardy. Martin Linen, 430 U.S. at 571. 

The government suggests that because Ogles did not contest his licensed status, the district court’s ruling did not meet

the Supreme Court’s definition of acquittal—that “whatever

its label, [it] actually represents a resolution, correct or not, of

some or all of the factual elements of the offense charged.” Id.

The Court’s double jeopardy decisions do not, however, condition an acquittal under Rule 29(a) on the district court’s

examination of contested facts. Here, the district court determined that a factual element of the offense had not been

proved by the government. What is this if not a “resolution”?

[9] Nor do we credit the government’s argument that the

acquittal is somehow flawed by the absence of recitation of

the legal standard. That the district court did not recite the text

of Rule 29(a) or employ a specific phrase, such as “evidentiary insufficiency,” is not determinative. As Smith makes

clear, “what matters is that, as [Rule 29] authorize[s], the

judge evaluated the [government’s] evidence and determined

that is was legally insufficient to sustain a conviction.” 125

S.Ct. at 1135 (internal quotations omitted). We conclude the

district court did exactly that and, therefore, the Double Jeopardy Clause bars the government’s appeal. 

AFFIRMED as to Count One. APPEAL DISMISSED as

to Count Two. 

REINHARDT, Circuit Judge, 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

2500 UNITED STATES v. OGLES
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. 

UNITED STATES v. OGLES 2501
Having 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 2491. 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

1With 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.” 

2Although the majority opinion characterizes the government’s admission as a “suggestion,” Majority at 2491, 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. 

2502 UNITED STATES v. OGLES
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 all. 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

3The analysis of the statute that the majority opinion presents in a blatant attempt to justify its refusal to vacate the conviction, see Majority at

2492, is therefore wholly improper. We need not and should not reach the

statutory interpretation issue in this case. 

UNITED STATES v. OGLES 2503
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

(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. 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 affirmance 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

4The majority opinion errs in characterizing the government’s admission merely as a “distasteful” “non-concession.” Majority at 2491.

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

2504 UNITED STATES v. OGLES
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 2492, 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

repudiate 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 when 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 2491-92,

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

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 to proceed no further with that part of the

appeal. 

UNITED STATES v. OGLES 2505
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.” 

5The 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

(1996); Alvarado v. United States, 497 U.S. 543, 544-45 (1990); Mariscal

v. United States, 449 U.S. 405, 405-06 (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. 

2506 UNITED STATES v. OGLES
In my opinion, this court may not properly affirm Ogles’s

conviction in light of the government’s concession.6 Once the

government 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. 

BERZON, Circuit Judge, with whom Circuit Judges PREGERSON and FISHER join, concurring in the majority opinion (except in Part I) and in the judgment: 

I concur in the majority opinion except for Part I. While I

sympathize with much of what Judge Reinhardt writes in dissent, I do not see how we could reverse the conviction on

Count I without reaching our own conclusion regarding the

reach of the statutory provision underlying that conviction;

the government’s position on that question is not controlling.

6

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 express a serious

view on the question before us. 

UNITED STATES v. OGLES 2507
Indeed, I am not at all sure that Judge Reinhardt is correct in

supposing that the government could not pursue, in separate

cases, contrary legal positions. When faced, as here, with a

complicated statutory scheme and ambiguous provisions that

have not been construed in binding precedent, the government

may be able to test the application of the provisions by going

forward on one of two arguable statutory theories in each

case. 

Here, the defendant has never challenged the applicability

of the statute underlying the conviction on Count I, as the

majority notes. While the opinion in United States v. Caldwell, 49 F.3d 251 (6th Cir. 1995), has much to recommend it,

there are also competing considerations—among them the

oddity that the construction adopted in Caldwell would leave

a gap that precludes a criminal conviction for a licensed

dealer who sells outside his home state but does so to a resident of his own state. See 18 U.S.C. § 922(b)(3) (providing

that a licensed dealer commits an offense by selling to a person “who the licensee knows or has reasonable cause to

believe does not reside in . . . the State in which the licensee’s

place of business is located”). In other words, on the majority’s view of the statute, had Buda been a resident of California, Ogles could not have been convicted for selling a gun to

him in Arizona. 

Given the difficulty of the statutory interpretation issue

here, I would not resolve it in an en banc opinion in which the

only impetus for addressing it comes from the government’s

last minute switch of legal position. And, absent any resolution of the statutory question, I do not believe we can vacate

the conviction on Count I. I therefore do not join in Part I of

the majority opinion but join in the rest of the opinion and in

the result. 

2508 UNITED STATES v. OGLES