ATF border area "demand letters" upheld
Story here. I tended to think the challenge was very much a long shot. The statute allows ATF to demand that dealers report sales when so requested in writing. That's what was done. The only counterarguments that I can see would be Congress separately provided for reporting of multiple handgun sales, so by inference it did not intend a different power to be used to require reporting of multiple long arms sales. Absent a very favorable judge, that's unlikely to fly.
Brady Background checks and false positives
John Lott runs the numbers and concludes that the background checks "deny" responses are false between 94% and 99% of the time. Which argues that criticism of the few prosecutions following failed background checks is misplaced, and that when supporters of the system claim they don't prosecute mere "paperwork cases," they claim that because the truth is too embarrassing to reveal.
Case on use of machine gun in crime
Story here. Federal law provides a 30 year mandatory minimum for use of a full auto in a violent crime. The question is -- does it require that the defendant knew it was full auto? (In this case, a real AK).
Challenge to GCA definition of felony
Story here. The underlying problem is well-known. Maryland has (or had?) "common law misdemeanors," for which (I think) the judge could impose an unlimited term of imprisonment. GCA 68 defines as a felony any offense punishable by more than a year's imprisonment, or if the offense is expressly termed a misdemeanor, punishable by more than two year's imprisonment. So the Maryland misdemeanors are GCA felonies.
Veterans and gun rights
The Daily Caller reports that over a hundred thousand veterans are barred from gun purchase by the Brady Act background checks. The core problem is really GCA 68. That prohibits firearm possession or purchase by anyone found "mentally defective." What Congress meant by the phrase is anyone's guess. Its use had long faded out even by 1968. My speculation is that when Sen. Dodd was drafting the act, he copied it from some State statutes which themselves were ancient. Or maybe he copied it from a different statute.
Replica "Antique" cartridge-using firearms and the internet
Chuck Michel has a memo on the issue. A cartridge-firing modern replica of a pre-1899 firearm can still be an antique, and thus not a "firearm" for GCA purposes, if it is chambered for cartridges which are no longer manufactured in the US and which are not available in the "ordinary channels of commercial trade." The question is whether the internet has made rare cartridge sufficiently available to where antique status may be lost for some replicas.
Not sure how much of a problem this might be, as the replicas I can think of use cartridges that are available thru ordinary channels. Maybe .50-90 and .50-110? If "ordinary channels" means via local gun shops, those would qualify, but be at risk since there are some companies offering loaded cartridges.
Revised Firearm Owners Protection Act webpage
I've got it up here. The latest additions and improvements took about ten hours of work, so blogging has been slow. The page outlines the convoluted legislative history of the Firearm Owners Protection Act of 1986 (without this, it's almost impossible to understand how the bill came to be), has the leg history in keyword-searchable form, and has pdfs of the critical documents.
Whew! Just changing the House floor debates from daily edition pagination (which isn't quite official Blue Book format) to permanent bound edition pagination took hours.
Webpage I'm building
Right here. It's devoted to the legislative history of the Firearm Owners Protection Act of 1986, which extensively rewrote the Gun Control Act. A big problem is that researching the history of FOPA is almost impossible. Almost all of it is pre-digital. The standard first resource, US Code, Congressional, and Admin News, is hopeless -- it tells you there was no Senate committee report, and gives you, without explanation, a House committee report that doesn't describe what was enacted.
My aim is to present a reasonably complete legislative history, both in key word searchable text and in pdf scans (in case they are needed as exhibits in court). I've got the committee reports, a background report, and the House floor debates, plus some on S.2414, which modified the interstate travel section of the legislation. I've still got to scan and edit the Senate floor debates.
18 USC 924 mandatory sentence in the Supreme Court
Abbott v US, to be argued Monday. Preview here.
18 USC 924(c) provides a mandatory, consecutive five year sentence for use of a gun in a drug offense, "Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law..." Defendant was subject to (and got) a ten year mandatory minimum for the drug offense, and the trial court also stacked on the 924(c) mandatory sentence. The question is whether the "except" clause covers any mandatory minimum sentence applicable to the defendant's convictions, or whether it only covers a mandatory minimum for firearm possession during crime. If the first, then the trial court erred by adding the five year sentence onto the ten year one; if the latter, since the ten year sentence was for drug selling, not for possessing a gun, the trial court acted properly
I suspect there is no useful legislative history, since Congress enacts things like this was little thought beyond the fact it will look good in the press. A pragmatic construction -- try to construe it so as to make the system Congress created work the way it would have wanted -- hits the same problem, that it's hard to tell what Congress wanted to do.
Supreme Court to hear case on mandatory minimum sentence
Abbott v. US is set for argument on October 4. Here are the briefs, which include some interesting amici.
Sup. Ct. reaffirms that use of machinegun is an element, not a sentencing factor
U.S. v. O'Brien, handed down today. 18 USC §924(c) provides for 5 extra years' sentence for use of a firearm in certain federal crimes, and 30 years' extra for use of a machinegun. So does that mean (1) use of the described firearms is a sentencing factor, making for a stiffer sentence for the underlying federal offense, or (2) this describes an independent crime, with elements of committing the underlying offense and of being armed while so doing? If the first, the fact of being armed can be decided by the judge during sentencing; if the second, it must be decided by the jury, since it is part of the crime.
Years back, the Supreme Court had ruled that 924(c) described a separate offense, and an element that must be proven to the jury. But Congress amended the section in 1998. Now, per Justice Kennedy, the Supreme Court rules that the 1998 amendment and restructuring does not change things; it remains a new offense with element that must go to the jury for determination.
Guide to interstate transport of firearms
NRA has just released the latest edition of its comprehensive Guide to the Interstate Transportation of Firearms.
It includes a section on the suit brought against the NY Port Authority, which is in the habit of violating the protections given by the Firearm Owners Protection Act. Here are links to the opening brief and here's the reply.
Bill aims to reverse US v. Small
Snowflakes in Hell discovers Diane Feinstein's latest, S.1526. It would overturn the Supreme Court determination, in Small v. US, that foreign law convictions do not count as convictions that bar gun possession under the Gun Control Act.
It does have two exemptions:
1) If the defendant can show the conviction "resulted from a denial of fundamental fairness that would violate due process if committed in the United States." Uh ... what does that mean? Due process PLUS fundamental fairness? Is denial of a jury trial within this, nor not, since after all a judge can be fundamentally fair? And how do you prove that a conviction "resulted from" any such violation? How do you prove a jury wouldn't have convicted, etc.?
2) conduct that would be legal if committed in the US As Snowflakes in Hell points out, that wouldn't cover Francis Gary Powers, convicted by the Soviets of espionage (which is an offense here), nor others who were similarly charged. And how about our POWs, often charged with "war crimes"?
ATF issues guidelines on receiver sales
Pdf here. Gist appears to be that a bare receiver is a firearm, but not a rifle, shotgun or handgun since it can be made into any of them (which I think may be true in some cases, but not in most). Ergo, (1) a bare receiver must be logged in by an FFL and cannot be sold to a nonresident, (2) since it is not a rifle or shotgun it cannot be sold to a person under 21, but (3) since it is not a handgun, either, multiple sales need not be reported.
Report on Brady Act and prosecutions
Here, in pdf.
Gist of it: during 2006 there were
8,000,000 plus checks
117,000 denials (125,000 denials, offset by 8,000 reversals on appeal)
77,000 of these were referred to Field Offices for investigation (80% not involving felony records)
273 persons charged, and a whopping
US Attorneys declining to take cases appears a major factor in the drop from 77,000 to 273. Historically, they were skeptical of felon in possession cases, viewing them as street crimes that didn't merit Federal attention. If 80% of cases referred involve non-felons, I'd imagine they were even more skeptical of taking a case where the defendant had a domestic violence misdemeanor conviction, was an illegal alien, had been committed to an institution, etc..
Misuse of background check databases in DE?
Story here. The background check system is supposed to be limited to licensed dealers checking out a potential sale, but the newspaper found that 10% of requests are from state troopers, not dealers.
Lautenburg Amendment going to Supreme Court
Summary here. It's a question of statutory construction. Defendant was convicted of ordinary misdemeanor battery in 1994. The victim was his then-wife. Since it was ordinary battery, fact she was his wife was not an element of the offense. Ten years later he's busted for being a prohibited person in possession of a firearm.
Question: given its rather ambiguous wording, does Lautenburg require (1) that the person be convicted of an offense whose elements are threat or use of force, and against a domestic partner, or (2) that the person just be convicted of an offense whose element is threat or use of force, but in the federal case we'll prove it was in fact against a domestic partner.
Oral argument is Nov. 10.
UPDATE: the only question is the meaning of the statute -- constitutionality wasn't challenged. The petitioner's brief doesn't mention the Second Amendment (possibly it was written before Heller), but it might come up at argument. since statutes affecting constitutionally-protected conduct are often narrowly construed.
FFL found innocent of straw man charges
Story here. The story, at least, doesn't suggest there was reason to suspect the dealer, but when ATF caught a felon in possession (and with drugs) they let him walk in exchange for trying to set the dealer up. The jury didn't buy it.
NY case against traveller dismissed
Story here. It doesn't name the person, but I know of several arrests at NYC area airport where someone, for example, missed a connection or had a flight cancelled, had firearms in properly checked baggage, but had to retrieve them and check them in again, and were arrested under the NY gun laws. That's clearly covered under the Firearm Owners' Protection Act, 18 USC 926A. That section essentially immunizes a legit traveller from state gun laws provided his possession was legal where he began and where he ended his trip, and the firearm on the trip is stowed in a certain manner.
Chuckle--as I remember, I drafted that section. The first part deals with firearms being transported while stashed outside the passenger compartment. The second provides for vehicles lacking a passenger compartment. That got in because a good friend was a motorcyclist and when I showed him the draft he said "what about us motorcyclists?" because those vehicles don't have a passenger compartment.
10th Circuit rules against Wyoming
Reduced to a nutshell: federal law says a conviction does not count if it has been "expunged," or firearm rights have been restored. Under Wyoming law (and that of a lot of other States), a misdemeanor domestic violence conviction can be "expunged," with a ruling say that it is so, even tho the record is not physically destroyed and can be used, if the person offends again, to enhance the sentence.
Is that "expunged" or not? Wyoming argues it is -- the purpose was to let state law control the question of whether a person is convicted, and here's a state court order saying the record is "expunged," using the very word of the statute. ATF argued, and the 10th Circuit agreed, that something isn't "expunged" if it's still sitting in court or government files and has future legal effect.
I wasn't involved in the case, but thought the key would be to look at what expungement schemes looked like in 1986, when the Firearm Owners' Protection Act, which inserted the expungement language, was adopted. My memory is foggy, but as I recall there was the federal Youth Corrections Act, which I think did destroy records, and some early State laws. Congress was acting against the background of that legislation ... what did it provide?
Hat tips to Jim Kindred and Dan Gifford...
ATF's expansive definition of "manufacturer"
pdf here. How they reconcile with the GCA 68 definition of firearm as the receiver (so that manufacture = making the receiver) is beyond me. By their definition, a person who assembles receivers to other components is also a manufacturer, as is a gunsmith who regularly sporterizes military guns into hunting rifles.
How to deal with REAL straw man cases
As in twelve years in prison.
How many home FFLs?
Back in the 90s, Congress passed legislation meant to kill "home FFLs," guys who didn't have a storefront, etc.. The main hit was a requirement that an FFL comply with zoning and other local non-gun regulations: more home FFLs were of course in areas zoned for residental and not for business.
But I know at least a few survive (I assume because their zoning allowed it). What's the general experience with this in your area?
Supreme Court case on Lautenburg Amendment
An attorney in US v. Hayes has a website on pleadings in the appeal. Hayes won in the 4th Circuit, the government sought cert., and it was granted; briefings have not yet begun.
The issue is one of statutory interpretation. Lautenberg forbids a person to possess a firearm if they have been convicted of a domestic violence misdemeanor. That in turn is defined as a misdemeanor that "has, as an element, the use or attempted use of physical force, ... committed by a current or former spouse, parent, or guardian of the victim..."
The defendant had been convicted of ordinary battery, not of an offense against a specific domestic violence statute. The battery was against a spouse, but that was not an element of the offense. That is, while the offense involved a spouse, the State could have gotten a conviction whether that was true or not. It had no duty to prove it.
So the question is whether the words of the statute mean "an element of which is force against a spouse" or mean "an element of which is force, and which happens to be committed against a spouse." That is, does "an element" refer only to use of force, or to use of force against a spouse. This is course the sort of fine point that we attorneys love -- but in this case it determines whether Hayes is to be a federal felon for having a firearm ten years after a misdemeanor plea.
Supreme Court ruling on restoration of rights
Right here. I flew back east for some Parker matters, and am too tired to say a lot more. Basically, both GCA and a federal sentencing enhancement law say that "felony" includes violations that states expressly classify as "misdemeanors," but which are punishable by more than two years imprisonment, and that "felony" does not include a conviction that has been set aside or for which civil rights have been restored.
Defendant here got caught as a felon in possession, had several of those 3 year "misdemeanors," and got maxed out. He argued that since you don't lose civil rights for a "misdemeanor," that shouldn't count as a prior. Interesting argument, but it lost 9-0.
On the side, the Court agrees that, as to what restoration of civil rights means, "courts have held, and petitioner agrees, that the civil rights relevant under the above-quoted provision are the rights to vote, hold office, and serve on a jury. "
Over at the NPR blog, they're discussing Richard Feldman's new book, Ricochet, which criticizes NRA. Since the NPR blogger begins with the statement she first learned about NRA from Michael Moore's Bowling for Columbine, you can figure where it's going.
But I found one comment quite fascinating:
"My father quit the NRA despite being president of Savage Arms, a respected firearms manufacturers. He and industry peers founded SAAMI, the Sporting Arms and Ammunition Institute, so they could help write the 1968 gun control act in spite of the NRA's hysterical oppositon."
Upcoming Supreme Court case on GCA
Nice, obscure, facts. A component of GCA as it now stands is the Armed Career Criminal Act, which imposes an enhanced penalty (15 years in this case) for a felon in possession who has three prior violent felony convictions. It incorporates the GCA's definition of felony (offense punishable by a year or more, unless designated a misdemeanor and punishable by no more than two years; exception generally if civil rights have been restored).
Defendant was a felon in possession due to a drug conviction. He had three conviction for misdemeanor battery BUT because of his prior those were punishable by three years' imprisonment.
The trial court gave him the 15 years, reasoning (1) the three batteries count -- they were misdemeanors, but punishable by up to three years. And they were "violent," so they count. (2) The exception for having rights restored doesn't apply. (He couldn't have gotten civil rights restoration, simply because those are misdemeanors and those don't lose any civil rights). "Restored" implies losing something and getting it back, not a situation where you never lost anything.
Apparently there's a circuit split: the 1st Circuit went the other way on this. More thoughts in extended remarks, below.
Evolution of the 4473 form
Thoughts here on how it went from a one page to a three page form, from "the yellow form" to white paper, etc., etc.
Now, THAT's a recordkeeping error!
While the government is out to revoke the licenses of Red's Trading Post and others for recordkeeping errors, it's lost track of 190,000 AKs and handguns issued to Iraqi forces.
NICS improvement compromise
Word is the bill will be introduced as HR 2640. It's not online at Thomas yet, but I managed to get hold of the relevant language. Most of the bill is 20+ pages of verbiage about grants to states to improve input of mental health records. For me, the critical language is a couple of sections that essentially let a person who was committed at some point in their lives escape the lifetime bar that now exists. The wording is a trifle awkward at times, but as I read it, if the court that committed them makes a finding that they are not a danger any more, or the state creates an entity that can make a similar finding, they're not a prohibited person and their name comes off the NICS list. The relevant text is in extended remarks below.
[Update in light of comments: I can't find anything in it about relief from disabilities for minor infractions. Those would be handled under state law now, and I don't see the bill as changing it. But I do note that its definitions of the mental situation clarify that a vet who got a pension based on mental disability is not a prohibited person. I recall the VA turned over tens of thousands of records of that, and I suppose there was some controversy over whether that qualified as a disabling factor to own a gun.]
NICS Improvement bill
I've glanced at HR 297, the "NICS Improvement Act." I must say it's mostly evidence of how lazy Congress has grown. It redefines domestic violence misdemeanors, with the biggest change being the statement that if a person is acquitted, it doesn't count as a conviction. Now, that's a surprise! It keeps in the rather strange language that a conviction doesn't count if a person wasn't represented by an attorney and didn't waive that right, or if a person was entitled to a jury under state law, didn't get a jury, and didn't waive the jury. In other words, if the state trial judge completely fouled up. (I knew a city court judge who did things like that 20+ years ago, until a prosecutor sat him down with photocopies of the case law, but hopefully this is rare. I suspected the drafters of the original meant to guarantee jury trial, which is often not applicable to misdemeanors, and got sidetracked.
Probably the best evidence of the drafters' laziness here is the definition of "adjudicated a mental defective." As I noted earlier, this term was an antique when the 1968 Gun Control Act was drafted, and is even more of a legal/psychiatric dinosaur today. It really could use a more modern and precise definition. HR 297 provides a definition: "The terms `adjudicated as a mental defective', `committed to a mental institution', and related terms have the meanings given those terms in regulations implementing section 922(g)(4) of title 18, United States Code, as in effect on the date of the enactment of this Act."
The ATF regulations are pretty reasonable, essentially taking the Black's Law Dictionary approach: found a danger to self or others, or found incompetent to manage one's own affairs, or found not guilty by reason of insanity or guilty but insane or not competent to stand trial. But simply saying, in statute, that the definition is whatever a given regulation says on the date of enactment is quite sloppy, to my mind. How do the folks codifying the US Code handle that? As I recall, 18 US Code has been enacted into law (see extended remarks below for what this means), so they can't rewrite the bill if it passed. I suppose they could drop a big footnote to say what the regulations provided on the effective date.
I do wish that, if they were revisiting the definition, they'd put in a provision for when it ends. E.g., the court finds that the person no longer requires court ordered treatment, or ATF can find that the person is no danger, or something like that. As it is, it's a lifetime bar. A person can be convicted of a felony and get firearm rights restored by the court, but a person briefly committed to an institution 20 years ago cannot. I've had people come to me with exactly that problem.
[Update in light of comments: a temporary committment for observation doesn't count as a committment, nor does a voluntary hospitalization].
SCOTUS review of 18 USC 924(c)(1)
18 US Code §924(c)(1)(A) provides for an additional, consecutive, five year mandatory minimum if the defendant "uses or carries a firearm" in "any crime of violence or drug trafficking crime." (The punishment escalates if the defendant actually brandishes or fires it).
I just received an amicus brief from Gun Owners' Foundation, in the pending Supreme Court case of Watson v. United States. (Order granting cert. here. It appears that Watson was the recipient of the firearm in the exchange; he talked to an informant about buying a gun, and the informant helpfully suggested that he knew someone willing to sell one in exchange for drugs. The core question is whether a defendant who swaps drugs for a gun has "used" the gun in a drug trafficing crime, and the amicus argues that using it as payment is not "using" it within the meaning of the statute. It notes that the Circuits have split 2-2 on the issue.
"Dangerous Terrorists Act"
As I read it, the bill would allow the Att'y General (in practice, some of his underlings) to find that persons are "appropriately suspected" of aiding terror, and reasonably believed to be likely to use guns in that.
If a person is put on that list, they are not forbidden to own guns, but they are put on the instant check list, so they can't buy from a dealer.
If that sounds pretty strange ... if a dealer is put on the list his license can be revoked. Or if a person responsible for a licensee's policies is on the list, it can be revoked.
In any appeal from any of the above, the government may furnish the court with summaries of its evidence, or redacted versions of it. The court may review the originals only to ensure that the summary is appropriate, but may not rely on the original. (My guess: so the court reads the original, and whether you say it can't rely on it or not, the judge is human and will do so. But the individual challenging only sees the summary).
The questionable nature of giving a person legal status because they are "appropriately suspected" of something (the term is undefined -- presumably it's less than probable cause, since if they have that they could arrest him anyway) is clear to me. But the rest is just plain wierd. A terrorist snapping his fingers in frustration because he can't clear the instant check, and protesting that he has a clean record and something must be wrong here, he's gonna write the FBI....
I wonder if the real target isn't dealers and manufacturers. A gun gets into a terrorist's hands ... or is suspected of the same. The mfr knows nothing of it, but you can "appropriately suspect" that they do. Note also that the list would cover anyone "appropriately suspected" of aiding domestic terrorism, too.
[UPDATE: .416 Rigby's comment is dead on. As I recall, part of the escalation in the Randy Weaver case involved the local US Atty (whom I knew from Interior days) sending Mrs. Weaver's letters to the FBI for a threat assessment. They came back with a completely unjustified assessment of her as extremely dangerous, etc.. I recall reading FBI's psychologists' assessments of David Koresh's letters, sent out during the siege ... the evaluation was positively wacky. Only made sense if you assumed they were writing so as to please their bosses. Among other things they called him a "virulent paranoid" -- meaning they weren't quite in command of English. And leaving me wondering how you could assess paranoid traits in a fellow whose *reality* was that he was surrounded by government tanks, had the government playing music and wierd noises all night to disrupt his sleep, sending in listening devices to spy on him, testing a device to shut down all radio and TV reception, and testing three battlefield robots in his front yard, etc. His reality at that point was far wilder than fifty paranoid schitzs could cook up with a team effort. And the letters focused upon his prediction that, as part of the end times, there was going to be an earthquake, and he was warning FBI not to let their agents camp below the dam nearby, because he figured the dam would breach. Paranoids do not normally show concern for the safety of their supposed persecutors.].
9th Cir. upholds "dealer letters"
The 9th Circuit has upheld ATF's requirement that certain dealers (those with 10 more trace requests and some other details) to report used firearms sales directly to it. Text of the decision is in extended remarks below.
History of GCA 68
Just came across a legal history of the Gun Control Act of 1968, by Franklin Zimring. Zimring generally supports more gun laws, but his preface has an interesting note: "The study will be of little use to the most fervent friends and foes of gun control legislation. It provides data they do not need. Each group has already decided that the 1968 Act has failed, and each group uses the Act’s presumed failure to confirm views already strongly held. Enthusiasts for strict federal controls see the failure of the law as proof that stricter laws are needed, while opponents see it as evidence that no controls will work."
A modest proposal to end the straw man issue
I suppose I'm dating myself here, but I once obtained, via FOIA, ATFE records showing that back in the early 70s an agent had recommended adding a box to the 4473 asking "are you buying this gun for someone else?" The proposal was turned down because it might impede making cases! They loved straw man cases, and this might just end a lot of them. Then in the 1990s, I think, the agency did add a box to the 4473 along those lines.
Here's my proposal. It's simple. The straw man problem is logically insoluable. As the 4473 notes, you can buy a gun as a gift for someone else, but can't buy it "for" someone else. How do you draw the line between the two?
Simple solution: the problem arises because the 4473 only has one blank for the buyer. You can title a car or a house to two, three, however many people, but you can't title a gun, as it were, to anything but one person.
Create, oh, a 4473A form that has *two* blanks for the buyer. If a person tells the dealer that they want to buy a gun for someone else, then both people fill in the blanks, and both get a background check run. You can fine tune the procedure in a couple of areas. First, buying for an underage person -- it's allowed, even tho the underaged person cannot buy from a dealer directly -- so tune the form for that. Second, might want to make provision for a situation where the other person isn't physically at the dealer's premises at the time.
Markup of GCA reform bills
Via Subguns.com comes a summary of GCA/ATF reforms that were recently marked up (committee session where you actually vote on amendments to and content of the bill) -- click on the extended remarks below for full text.
Ruling allowing discovery in challenge to FFL revocation
From John Harris of Nashville, attorney for FFL Top Brass Sports, comes this ruling (small pdf) allowing the dealer to take discovery in a District Court challenge to revocation of its FFL.
Normally, discovery is nonexistant in a challenge to a regulatory adjudication, since the only question is whether the agency ruling is supported by the evidence given in the regulatory proceeding. But in an appeal from an FFL revocation, the court can consider evidence outside the record, and thus the court reasons that discovery (depositions, written questions, requests for production of documents) should be allowed, too.
Ninth Circuit on duties of a dealer
The 9th Cir. just ruled en banc in US v. Ogles, an appeal (pdf file)from district court here (I know both the judge and the defense atty, Richard Gardiner of Virginia).
Defendant was a California FFL who sold at an Arizona gunshow. He was charged with (1) being an FFL who improperly sold to a nonresident (note the charge was under the second of law restricting FFL transactions, not the bar on non-FFLs selling to nonresidents) and with (2) doing business without a license (on the theory that by selling away from premises and out of state he was acting outside his license). Note the inconsistency, tho. The trial court convicted him on the first but dismissed the second at the end of the government's case.
The CIrcuit upholds the conviction, and refuses to consider the gov't's appeal of the dismissal, since it was based on insufficient evidence, and a retrial would be barred by the double jeopardy clause. (Wonder why the gov't bothered appealing? Sounds like a slam-dunk to me).
It looks as if the gov't attorney managed to torque off the court rather seriously -- the majority, the concurrence, and the dissent all comment on it. It sounds as if he tried to get out of the inconsistent charges by offering to concede the second but only if the court gave him a win on the first -- and made it sound as if he was dickering with the court about how it would rule. Not a good move.