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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.
The concurrence, for example, says the government's postiion was " 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 ..."
IANAL, but...
Sounds to me like he thought he was running a plea bargain with a defendant, and forgot that he couldn't threaten the 9th Circus with longer jail terms.