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

440 F.3d 1095 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. Panel Opinion Filed April 28, 2005. Rehearing En Banc Granted November 16, 2005. Argued and Submitted En Banc December 14, 2005. Filed March 10, 2006. Michael A. Rotker, Department of Justice, Washington, D.C., for the plaintiff-appellant/appellee. Richard E. Gardiner, Fairfax, Virginia, for the defendant-appellee/appellant. Appeals from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. CR-02-01805-CKJ. Before: SCHROEDER, Chief Judge, PREGERSON, REINHARDT, KLEINFELD, HAWKINS, GRABER, McKEOWN, W. FLETCHER, FISHER, GOULD, BERZON, Circuit Judges. McKEOWN, Circuit Judge: 1 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 "genuine acquittal," the government's appeal of which is barred by the…

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 “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…

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 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…

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.

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…