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

> Court of Appeals for the Ninth Circuit · March 10, 2006 · 440 F.3d 1095

URL: https://www.frixlaw.com/law-library/cases/9498752

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. John Gilbert OGLES, Defendant-Appellee; United States of America, Plaintiff-Appellee, v. John Gilbert Ogles, Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 10, 2006
- **Citations:** 440 F.3d 1095; 2006 U.S. App. LEXIS 5974; 2006 WL 571989
- **Precedential status:** Published
- **Opinion:** Concurrence by Berzon
- **Judges:** Schroeder, Pregerson, Reinhardt, Kleinfeld, Hawkins, Graber, McKeown, Fletcher, Fisher, Gould, Berzon
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498752

## How later opinions describe it (automated extraction)

- holding prohibition against double jeopardy precluded government appeal of allegedly flawed judgment of acquittal under Federal Rule of Crimi-. nal Procedure 29(a)

## Opinion text

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.
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498752. Public record. Not legal advice.