United States v. John Gilbert Ogles, United States of America v. John Gilbert Ogles

concurring in part and dissenting in part.

I agree with the majority’s disposition of Ogles’s appeal of his conviction under § 922(b)(3), and with its conclusion that we have jurisdiction to hear the government’s appeal of the motion for acquittal as to Count 2. However, I disagree, that the location-specific nature of federal gun licenses resolves the issue of whether § 922(a)(1) criminalizes Ogles’s conduct.

Section 922(a)(1) does not say that it applies to licensed dealers who deal fire *599 arms outside their licensed premises. Nor does § 922(a)(1) .say what the indictment charges — that Ogles “willfully engaged in the business of dealing in firearms without a license, that is outside the State in which the licensee’s place of business was locat ed.(Emphasis added.) What the statute actually says is: “It shall be unlawful for any person except a licensed ... dealer, to engage in the business of ... dealing in firearms ...”

Ogles teas a “licensed dealer.” Section 922(a)(1) does not state that a licensed dealer becomes an unlicensed dealer when he sells outside the state where his place of business is located. In' charging that this is what “dealing in firearms without a…

Opinion by Judge BEA; Partial Concurrence and Partial Dissent by Judge RYMER.

John Gilbert Ogles appeals his conviction for willfully selling and transferring physical possession of a firearm in violation of 18 U.S.C. §§ 922 (b)(3) and 924(a)(1)(D) (Count One), on grounds that the district court erred in denying both his motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. The government appeals the district court’s order granting Ogles’s motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 as to the charge of willfully engaging in the business of dealing firearms without a license in *589 violation of 18 U.S.C. §§ 922 (a)(1)(A) and 924(a)(1)(D) (Count Two). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3731 , and affirm Ogles’s conviction under Count One but reverse the district court’s judgment of acquittal as to Count Two and remand for proceedings consistent with this opinion.

I.

At all relevant times, Ogles was a resident of California. He applied for and received a federal firearms license for a place of…

406 F.3d 586 UNITED STATES of America, Plaintiff-Appellant, v. John Gilbert OGLES, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. John Gilbert Ogles, Defendant-Appellant. No. 03-10439. No. 04-10069. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 4, 2004. Filed April 28, 2005. COPYRIGHT MATERIAL OMITTED Paul K. Charlton, United States Attorney for the District of Arizona, Maria Davila, Assistant United States Attorney for the District of Arizona, and Michael A. Rotker, United States Department of Justice, Washington, D.C., for the government. Richard E. Gardiner, Fairfax, Virginia, for defendant John Gilbert Ogles. Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. Before: PAMELA ANN RYMER, RICHARD C. TALLMAN, and CARLOS T. BEA, Circuit Judges. Opinion by Judge BEA; Partial Concurrence and Partial Dissent by Judge RYMER. BEA, Circuit Judge. 1 John Gilbert Ogles appeals his conviction for willfully selling and transferring physical possession of a firearm in violation of 18 U.S.C. §§ 922 (b)(3) and 924(a)(1)(D) (Count One), on grounds that the district…