United States v. Ogles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant, No. 03-10439
v.  D.C. No.
JOHN GILBERT OGLES, CR-02-01805-CKJ
Defendant-Appellee.

UNITED STATES OF AMERICA,  No. 04-10069
Plaintiff-Appellee,
v.  D.C. No.
CR-02-01805-CKJ
JOHN GILBERT OGLES,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
October 4, 2004—San Francisco, California
Filed April 28, 2005
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
4711
UNITED STATES v. OGLES 4715
COUNSEL
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.
OPINION
BEA, Circuit Judge:
John Gilbert Ogles appeals his conviction for willfully sell-
ing and transferring physical possession of a firearm in viola-
tion 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
4716 UNITED STATES v. OGLES
motion for a judgment of acquittal pursuant to Federal Rule
of Criminal Procedure 29 and his motion for a new trial pur-
suant to Federal Rule of Criminal Procedure 33. The govern-
ment 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 engag-
ing 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). 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 consis-
tent 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 business in California. Ogles did not apply for nor did he
receive a federal license to deal in firearms in Arizona. Never-
theless, on June 1, 2002, Ogles set up a booth at a gun show
in Arizona and sold a firearm to Michael Buda, an Arizona
resident.
On October 16, 2002, Ogles was indicted on two counts:
“willfully . . . sell[ing] and deliver[ing] to Michael Buda a
firearm . . . knowing and having reasonable cause to believe
that Michael Buda at the time of the sale and delivery did not
reside in the State in which the licensee’s place of business
was located” in violation of 18 U.S.C. §§ 922(b)(3) and
924(a)(1)(D) (Count One); and “willfully engag[ing] in the
business of dealing in firearms without a license, that is out-
side the State in which the licensee’s place of business was
located,” in violation of 18 U.S.C. §§ 922(a)(1)(A) and
924(a)(1)(D) (Count Two).
At Ogles’s trial, the government introduced the following
evidence regarding Ogles’s actions at the Arizona gun show
UNITED STATES v. OGLES 4717
in question. David Morse and Walter Puczkowsky, both
licensed by the federal authorities for sales of firearms at
places of business in Arizona, testified that on the morning of
the gun show they informed Ogles that he could not physi-
cally transfer firearms to purchasers at the Arizona gun show.
Buda testified that he purchased a firearm from Ogles and that
Ogles handed over the gun to Buda after Buda showed Ogles
his Arizona driver license. Buda also testified that he did not
fill out any paperwork with Ogles after he purchased the fire-
arm. Thomas Braxton testified that at the same Arizona gun
show, an African-American man handed Ogles money and
then walked away with a firearm he had picked up from one
of the tables at Ogles’s booth. Braxton also testified that he
saw a man and his son hand Ogles money and then walk away
with a firearm. Finally, Arthur Kramer testified that he pur-
chased a firearm from Ogles.
Before trial, Ogles filed a motion in limine to exclude the
testimony of Braxton and Kramer pursuant to Federal Rules
of Evidence 404(b) and 403; the district court denied the
motion. At the close of the government’s case-in-chief, Ogles
moved for a judgment of acquittal as to both counts. The dis-
trict court reserved decision as to Count One but granted the
motion as to Count Two. Ultimately, the jury convicted Ogles
under Count One, after which the district court denied Ogles’s
earlier-filed motion for a judgment of acquittal as to Count
One and Ogles’s then-filed motion for a new trial. The district
court sentenced Ogles to twenty-four months supervised pro-
bation, three months home confinement, and a $100 special
assessment. Both Ogles and the government filed timely
appeals.
II.
Ogles appeals his conviction under Count One on four sep-
arate grounds. We address each in turn, and thereafter address
the government’s appeal of the district court’s judgment of
acquittal as to Count Two.
4718 UNITED STATES v. OGLES
A.
1.
Ogles first challenges the district court’s denial of his
motion for judgment of acquittal as to Count One on the
grounds that no rational trier of fact could have found that
Ogles wilfully violated 18 U.S.C. § 922(b)(3). We review the
district court’s denial of Ogles’s motion for a judgment of
acquittal de novo and determine if, after viewing the evidence
in the light most favorable to the government, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Carranza,
289 F.3d 634, 641-42 (9th Cir. 2002) (quoting Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979)). We affirm the district
court’s denial of Ogles’s motion for a judgment of acquittal.
[1] Count One charged Ogles with willful violation of 18
U.S.C. § 922(b)(3), which provides in relevant part:
It shall be unlawful for any . . . licensed dealer . . .
to sell or deliver . . . any firearm to any person [other
than a licensed importer, licensed manufacturer,
licensed dealer or licensed collector] who the
licensee knows or has reasonable cause to believe
does not reside in . . . the State in which the licens-
ee’s place of business is located . . . .
18 U.S.C. § 922(b)(3); see also 18 U.S.C. § 924(a)(1)(D)
(providing for a fine or imprisonment in the event of a willful
violation of 18 U.S.C. § 922). We have previously interpreted
18 U.S.C. § 922(b)(3) to mean that a dealer licensed in one
state, who attends a gun show in another state, “may display
and possess guns, negotiate price, and receive money for guns
as long as the transfer of the firearm is through a . . . licensee
[of the state in which the gun show is located] who fills out
the appropriate forms.” United States v. Douglas, 974 F.2d
1046, 1049 (9th Cir. 1992) (emphasis added) (citing 27 C.F.R.
UNITED STATES v. OGLES 4719
§§ 178.29-.30, 178.100 (1991)). “[W]illfully” as used in 18
U.S.C. § 924(a)(1)(D) requires that the defendant act with
knowledge that his conduct is unlawful, but not that the
defendant be aware of the specific provision that he or she is
charged with violating. Bryan v. United States, 524 U.S. 184,
192, 198-99 (1998).
Viewing the evidence in the light most favorable to the
government, a rational trier of fact could have found beyond
a reasonable doubt that when Ogles transferred possession of
the firearm to Buda, he did so with knowledge his conduct
was unlawful. Morse and Puczkowsky, both licensed firearm
dealers, testified that they had told Ogles on the morning of
the gun show that because he was licensed out of state he
would need to ship any firearms he sold at the gun show from
his licensed premises to a dealer licensed in state, who could
then physically transfer the firearms to the purchasers. Fur-
ther, Buda’s testimony indicates that Ogles knew Buda was an
Arizona resident and that Ogles did not require Buda to fill
out the paperwork necessary for a firearms transaction.1
[2] Ogles argues, however, that Morse’s and Puczkowsky’s
statement of the law was inaccurate because Douglas holds
only that an out-of-state licensed dealer must physically trans-
fer firearms through dealers licensed in the sale-point state,
not that an out-of-state licensed dealer must first ship those
1
In affirming the district court’s order denying Ogles’s motion for judg-
ment of acquittal, we need go no further than to hold that the warnings by
Morse and Puczkowsky in combination with Buda’s testimony were suffi-
cient evidence on the basis of which a rational trier of fact could have
found beyond a reasonable doubt that Ogles transferred possession of the
firearm to Buda with knowledge that his conduct was unlawful. We nei-
ther hold nor mean to suggest that prior warnings such as those provided
by Morse and Puczkowsky are necessary to prove that a defendant vio-
lated 18 U.S.C. § 922(b)(3) willfully. Rather, willfulness as used in 18
U.S.C. § 924(a)(1)(D) requires only that the defendant act with knowledge
that his conduct is unlawful, not that the defendant necessarily be warned
in the fashion as was Ogles. See Bryan, 524 U.S. at 191-96.
4720 UNITED STATES v. OGLES
firearms from his or her licensed premises. Ogles also relies
on testimony from an agent from the then United States
Bureau of Alcohol, Tobacco and Firearms (“ATF”) to the
same effect. Even if we were to assume that Ogles’s statement
of the law is correct — something we do not decide here —
Morse’s and Puczkowsky’s statements nevertheless put Ogles
on notice that he could not directly transfer any firearms to
Buda at the Arizona gun show. Thus, after viewing Morse’s
and Puczkowsky’s testimony in the light most favorable to the
government, it is clear that a rational trier of fact could have
found beyond a reasonable doubt that Ogles knew he was act-
ing in violation of the law when he physically transferred the
firearm to Buda.
2.
Ogles next challenges his conviction under Count One on
the grounds that the government failed to disclose impeach-
ment evidence regarding prosecution witness Braxton and,
thus, that the district court should have granted his motion for
a new trial. Specifically, Ogles argues that the government
should have disclosed that Braxton had been interviewed by
the ATF and still had an application pending, which he
expected to be considered in the following year — informa-
tion that Braxton first made known to the Assistant United
States Attorney prosecuting the case while the jury was in the
midst of deliberations. We review de novo the district court’s
denial of a motion for a new trial based on alleged Brady vio-
lations. United States v. Antonakeas, 255 F.3d 714, 725 (9th
Cir. 2001).
[3] To prevail on his Brady claim, Ogles must show that
“(1) the evidence was exculpatory or impeaching; (2) it
should have been, but was not produced; and (3) the sup-
pressed evidence was material to his guilt or punishment.” Id.;
see also United States v. Bagley, 473 U.S. 667, 676 (1985).
Evidence is material “ ‘if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
UNITED STATES v. OGLES 4721
of the proceeding would have been different.’ ” Kyles v. Whit-
ley, 514 U.S. 419, 433-34 (1995) (emphasizing that “[t]he
question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as
a trial resulting in a verdict worthy of confidence”);
Antonakeas, 255 F.3d at 725. Even if we were to assume that
Ogles can show that the undisclosed information about Brax-
ton’s pending application with the ATF was impeachment
evidence that should have been but was not produced, grant-
ing a motion for a new trial on this basis would still not be
appropriate because the evidence was not “material.”
[4] Braxton testified that he had witnessed Ogles make
what the government argued in its closing arguments were
two unlawful firearm sales, which “show[ed] that when the
defendant sold this firearm to Michael Buda, he was acting
willfully.” The government concedes in its briefs that this tes-
timony “provided a powerful rebuttal to defendant’s claim of
mistake . . . .” Nevertheless, the nondisclosure of the
impeachment evidence here does not “undermine confidence
in the outcome,” Bagley, 473 U.S. at 682, nor warrant a con-
clusion that Ogles received anything but a “fair trial, under-
stood as a trial resulting in a verdict worthy of confidence.”
Kyles, 514 U.S. at 434. Braxton’s testimony was corroborated
by Kramer. Further, even if the jury had discounted or even
disregarded Braxton’s testimony, Morse’s and Puczkowsky’s
testimony regarding Ogles’s awareness of the law prohibiting
him from transferring firearms at the Arizona gun show in
combination with Buda’s testimony regarding the circum-
stances surrounding Ogles’s transfer of a firearm to him was
alone sufficient evidence to support Ogles’s conviction under
Count One. Consequently, nondisclosure of the information
Ogles charges the government failed to divulge does not
undermine confidence in the verdict.
4722 UNITED STATES v. OGLES
3.
Ogles next argues that the district court erroneously admit-
ted Braxton’s and Kramer’s testimony concerning Ogles’s
alleged sales of firearms to three people other than Buda on
the grounds that such evidence was not admissible under Fed-
eral Rules of Evidence 404(b) and 403. We review the district
court’s decision to admit evidence pursuant to Rules 404(b)
and 403 for abuse of discretion. United States v. Plancarte-
Alvarez, 366 F.3d 1058, 1062 (9th Cir. 2004); United States
v. Gonzalez-Torres, 309 F.3d 594, 601 (9th Cir. 2001)).2 We
find that the district court did not abuse its discretion and,
thus, affirm the district court’s denial of Ogles’s motion for
a new trial on this ground.
[5] Evidence of prior bad acts is admissible under Rule
404(b) if (1) the evidence tends to prove a material element
of the offense charged, (2) the prior act is not too remote in
time, (3) the evidence is sufficient to support a finding that the
defendant committed the other act, and (4) (in cases where
knowledge and intent are at issue) the act is similar to the
offense charged. Plancarte-Alvarez, 366 F.3d at 1062 (citing
United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994)).
[6] Braxton’s and Kramer’s testimony showed that Ogles
directly transferred firearms to buyers at the Arizona gun
2
Relying on Federal Rules of Evidence 103(a) and (d), the government
argues that the district court’s order denying Ogles’s motion in limine to
exclude the Rule 404(b) evidence was not “a definitive ruling” and that,
accordingly, Ogles’s failure to renew his objection when the evidence was
introduced at trial requires plain error review. The Advisory Committee’s
Notes to Rule 103 clearly contemplate that rulings on motions in limine
can be definitive for purposes of Rule 103 even though they may later be
revisited. Fed. R. Evid. 103 advisory committee’s notes (“Even where the
court’s ruling is definitive, nothing in the amendment prohibits the court
from revisiting its decision [on a motion in limine] when the evidence is
to be offered.”) (emphasis added). As nothing in the record suggests that
the district court’s ruling on the motion in limine was not definitive, plain
error review is not proper here. See id.
UNITED STATES v. OGLES 4723
show without having them fill out appropriate paperwork and
without using a licensed Arizona firearms dealer as a middle-
man. This evidence tends to diminish the likelihood that
Ogles’s sale to Buda was a mistake or through inadvertence
given the repetition of similar acts within a short period of
time and, thus, tends to prove a material element of the
offense charged — specifically the willfulness element set
forth in 18 U.S.C. § 924(a)(1)(D). See Plancarte-Alvarez, 366
F.3d at 1062. Furthermore, the evidence was not too remote
in time from Ogles’s sale to Buda, as the acts about which
Braxton and Kramer testified occurred immediately before
and after Ogles sold and directly transferred a firearm to
Buda. Id.
[7] While Ogles argues that Braxton’s testimony does not
conclusively establish that Ogles actually sold any guns and
that Kramer’s testimony does not conclusively establish that
Ogles knew he was selling to someone other than a licensed
dealer, conclusiveness is not the relevant standard. Rather, the
district court need only have concluded that “there is suffi-
cient evidence to support a finding by the jury that the defen-
dant committed the similar act.” Id. (citing Huddleston v.
United States, 485 U.S. 681, 685 (1988)). We cannot say that
the district court erred in deciding that Kramer’s and Brax-
ton’s testimony was sufficient to support a finding that Ogles
committed similar acts. Finally, the prior acts testified to by
Kramer and Braxton were quite similar to Ogles’s sale to
Buda, involving cash transactions without receipts, the direct
transfer of a firearm to an individual other than a licensed
dealer, and no completion of paperwork documenting the
transaction. Thus, we conclude that the district court did not
abuse its discretion in concluding that Braxton’s and
Kramer’s testimony regarding Ogles’s sales of firearms to
individuals other than Buda was admissible pursuant to Rule
404(b).
Nor did the district court abuse its discretion when it deter-
mined that Braxton’s and Kramer’s testimony should not be
4724 UNITED STATES v. OGLES
excluded pursuant to Rule 403. The evidence was probative
and not particularly inflammatory. Consequently, we affirm
the district court’s denial of Ogles’s motion for new trial on
these grounds.
4.
During the government’s case-in-chief, the government had
admitted into evidence and put before the jury ninety-six fire-
arms and two lots of ammunition seized from Ogles. Ogles
argues that he is entitled to a new trial because the district
court erroneously admitted into evidence these items and per-
mitted the government to show them to the jury during the
course of the trial, maintaining that the display was unfairly
prejudicial. We review the district court’s evidentiary rulings
for abuse of discretion. Plancarte-Alvarez, 366 F.3d at 1062.3
The district court did not abuse its discretion when it
allowed the government to show the jury the seized weapons
and ammunition, even after the district court acquitted Ogles
as to Count Two. These exhibits were relevant as to Count
One because the presence of price tags on the firearms tended
to prove that Ogles came to the gun show with the intent to
sell firearms and, thus, that Ogles physically transferred the
firearm to Buda after the sale. Nor were the exhibits unfairly
prejudicial to Ogles. It may be true that “many people view
weapons, especially guns, with fear and distrust.” United
States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). But Ogles,
as were other merchants at the gun show, was a firearms
3
The government contends that Ogles did not preserve this issue for
appeal because he “first raised these concerns about the jury’s exposure
to the firearms in his new trial motion,” and that we should review for
plain error only. But Ogles objected to the admission of the firearms and
ammunition when they were first introduced. Further, although it is not
clear whether Ogles renewed his objection to the firearms and ammunition
when the district court dismissed Count Two, the parties and the district
court nevertheless were considering the question of the evidence’s contin-
ued relevance.
UNITED STATES v. OGLES 4725
dealer, and the jury was well aware of that fact. Any prejudice
he may have suffered as a result of the display of firearms and
ammunition he likely suffered simply by virtue of his profes-
sion. Cf. United States v. Cruz-Garcia, 344 F.3d 951, 956-57
(9th Cir. 2003).
[8] Having rejected each of Ogles’s arguments, we affirm
his conviction under Count One.
B.
1.
The government separately appeals the district court’s
judgment of acquittal as to Count Two, which charged Ogles
with 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). Ogles argues that we do not have jurisdic-
tion over the government’s appeal because appeal of the dis-
trict court’s judgment of acquittal is barred by the double
jeopardy clause. We hold that the double jeopardy clause is
not implicated here as the district court’s judgment of acquit-
tal involved a legal determination only and, thus, was unre-
lated to Ogles’s factual guilt or innocence.
Count Two charged Ogles with having violated 18 U.S.C.
§ 922(a)(1)(A), which states in relevant part: “It shall be
unlawful . . . for any person . . . except a . . . licensed dealer[ ]
to engage in the business of . . . dealing in firearms . . . .” 18
U.S.C. § 922(a)(1)(A) (emphasis added). In ruling on Ogles’s
motion for judgment of acquittal as to Count Two, the district
court interpreted the phrase “licensed dealer” to mean a dealer
licensed in any state and not necessarily in the state in which
the dealer does business, and then continued:
The Court finds that the defendant is a licensed
dealer under the statute, and therefore — and the
issue still remains as to Count 1 as to whether or not
4726 UNITED STATES v. OGLES
he engaged in this improper transaction. But in any
event, he was a licensed dealer under the statute at
the time the transaction took place. Therefore, the
judgment of acquittal is appropriate as to Count 2 of
the indictment.
[9] If we have jurisdiction to hear the government’s appeal
of the district court’s judgment of acquittal, it is pursuant to
18 U.S.C. § 3731:
In a criminal case an appeal by the United States
shall lie to a court of appeals from a decision, judg-
ment, or order of a district court dismissing an
indictment or information or granting a new trial
after verdict or judgment, as to any one or more
counts, or any part thereof, except that no appeal
shall lie where the double jeopardy clause of the
United States Constitution prohibits further prosecu-
tion.
18 U.S.C. § 3731 (emphasis added). In United States v. Scott,
437 U.S. 82 (1978), the Supreme Court held that “where the
defendant himself seeks to have the trial terminated without
any submission to either judge or jury as to his guilt or inno-
cence, an appeal by the government from his successful effort
to do so is not barred by [the double jeopardy exception in]
18 U.S.C. § 3731 (1976 ed.).” Id. at 101.
[10] Thus, the question here is whether Ogles’s acquittal on
Count Two constitutes a “submission to either judge or jury
as to his guilt or innocence.” Id. The mere fact that it was
styled an acquittal or that the district court purported to have
made a “find[ing]” is irrelevant:
[A] defendant is acquitted only when “the ruling of
the judge, whatever its label, actually represents a
resolution [in the defendant’s favor], correct or not,
of some or all of the factual elements of the offense
UNITED STATES v. OGLES 4727
charged[.]” Where the court, before the jury returns
a verdict, enters a judgment of acquittal pursuant to
Fed. Rule Crim. Proc. 29, appeal will be barred only
when “it is plain that the District Court . . . evaluated
the Government’s evidence and determined that it
was legally insufficient to sustain a conviction.”
Id. at 97 (quoting United States v. Martin Linen Supply Co.,
430 U.S. 564, 571-72 (1977)); accord Smith v. Massachu-
setts, 125 S. Ct. 1129, 1134 (2005) (defining an “acquittal”
for double-jeopardy purposes as a judgment that “ ‘actually
represents a resolution, correct or not, of some or all of the
factual elements of the offense charged’ ”) (quoting Martin
Linen Supply Co., 430 U.S. at 571).
[11] Here, Ogles concedes that it was uncontested that he
was a licensed dealer in California rather than Arizona. Fur-
ther, it is clear that the district court granted the judgment of
acquittal on the basis of a legal construction of 18 U.S.C.
§ 922(a)(1)(A) as applied to this uncontested fact and not
because the government had failed to proffer sufficient evi-
dence as to this or any other element of the charged crime.
Thus, there was no “resolution” or adjudication “of some or
all of the factual elements of the offense charged,” Scott, 437
U.S. at 97 (emphasis added), nor even an “evaluat[ion] [of]
the Government’s evidence.” Id. Rather, the district court
made only a legal determination unrelated to factual guilt or
innocence in granting Ogles’s judgment of acquittal. Thus, the
government’s appeal is not barred by double jeopardy and,
therefore, we have jurisdiction to hear it and render a deci-
sion.
2.
[12] Having determined that we have jurisdiction to hear
the government’s appeal, we must now interpret 18 U.S.C.
§ 922(a)(1)(A). The district court held and Ogles argues on
appeal that “licensed dealer” as used in 18 U.S.C.
4728 UNITED STATES v. OGLES
§ 922(a)(1)(A) means that a dealer need only be licensed
somewhere rather than in the state in which he or she con-
ducted business. We “review the construction, interpretation,
or the applicability of a statute de novo.” United States v.
Ventre, 338 F.3d 1047, 1052 (9th Cir. 2003). For the reasons
discussed below, we conclude that to the extent an otherwise
federally licensed firearms dealer conducts business at loca-
tions not specified on his or her license and in a manner not
otherwise authorized by federal law, he or she exceeds the
scope of his or her license and acts as an unlicensed dealer in
violation of 18 U.S.C. § 922(a)(1)(A).
[13] We begin with the statutory definition of “[t]he term
‘licensed dealer’ ” as “any dealer who is licensed under the
provisions of this chapter.” 18 U.S.C. § 921(a)(11). These
licensing provisions are set forth in 18 U.S.C. § 923 and
include the following provisions:
• “Each [license] applicant shall pay a fee for
obtaining such a license, a separate fee being
required for each place in which the applicant is
to do business . . . .” 18 U.S.C. § 923(a).
• “Any application submitted under subsection (a)
or (b) of this section shall be approved if . . . the
applicant has in a State . . . premises from which
he conducts business subject to license under this
chapter or from which he intends to conduct such
business within a reasonable period of time . . . .”
18 U.S.C. § 923(d)(1)(E)(i).
• “Any application submitted under subsection (a)
or (b) of this section shall be approved if . . . the
applicant certifies that . . . (i) the business to be
conducted under the license is not prohibited by
State or local law in the place where the licensed
premises is located; (ii)(I) within 30 days after
the application is approved the business will
UNITED STATES v. OGLES 4729
comply with the requirements of State and local
law applicable to the conduct of the business; and
(II) the business will not be conducted under the
license until the requirements of State and local
law applicable to the business have been met
. . . .” 18 U.S.C. § 923(d)(1)(F)(i)-(ii).
• “A . . . licensed dealer may, under rules or regu-
lations prescribed by the Attorney General, con-
duct business temporarily at a location other than
the location specified on the license if such tem-
porary location is the location for a gun show or
event . . . and such location is in the State which
is specified on the license.” 18 U.S.C. § 923(j).
As these provisions make clear, a license provided to a dealer
pursuant to 18 U.S.C. § 923 is location specific save for tem-
porary sales locations, such as gun shows, which temporary
locations must still be found within the state of the licensed
premises.
Further, as the government correctly notes, Ogles’s pro-
posed definition of “licensed dealer” would render 18 U.S.C.
§ 923(j) surplusage. If a licensed dealer was not limited to
conducting business to his or her licensed premises, then it
would be unnecessary expressly to permit a licensed dealer to
“conduct business temporarily at a location other than the
location specified on the license.” 18 U.S.C. § 923(j) (empha-
sis added). That 18 U.S.C. § 923(j) permits licensed dealers
to conduct business temporarily at a location other than that
specified on the license but only if that location is in the state
specified on the license further evinces that the statute does
not contemplate that a dealer licensed in one state necessarily
is licensed in others.4
4
Although the government argues additionally that the ATF’s interpreta-
tion of the relevant statutes and Congressional intent in enacting the rele-
vant statutes comport with the government’s textual analysis, it is
4730 UNITED STATES v. OGLES
In light of this, we find no significance in the juxtaposition
of, on the one hand, 18 U.S.C. § 922(a)(1)(A), which applies
to “any person” other than, among others, “licensed deal-
er[s],” thus criminalizing conduct by non-licensed dealers,
and, on the other hand, other paragraphs in the statute that
criminalize conduct specifically by, among others, “licensed
dealer[s].” In this regard, the statute simply creates a scheme
in which licensed dealers are regulated while conducting busi-
ness within their lawful geographic scope and, simulta-
neously, are treated as non-licensed dealers when they exceed
that scope. This is no different than licensing schemes that
regulate other licensed professions such as the law. Lawyers
licensed to practice in one state must comply with the regula-
tions established by the Bar in that state, but, despite being
licensed in one state, may nevertheless be prosecuted for the
unauthorized — that is, unlicensed — practice of law should
they practice in another state.
Ogles makes four arguments in response, none of which we
find persuasive. First, Ogles argues that the licensing provi-
sions in 18 U.S.C. § 923 are not “clear and definite” and inter-
pretation on the basis of these licensing provisions “permits
‘criminal outlawry’ to be derived by implication.” Ogles’s
parsing of the statute is unpersuasive. For example, Ogles
argues that 18 U.S.C. § 923(a), which requires that licensees
pay a fee for their license and that “a separate fee [is] required
for each place in which the applicant is to do business,” “im-
plicitly recogniz[es] that businesses may be conducted at
more than one location.” We agree — so long as the licensees
pay a separate fee and procure a separate license for each
location. More significantly, Ogles argues that his interpreta-
tion of “licensed dealer” would not render 18 U.S.C. § 923(j)
unnecessary to review these materials because the text of the statute ren-
ders the meaning of “licensed dealer” clear. Ventre, 338 F.3d at 1052
(“Under traditional principles of statutory interpretation, if a statute’s plain
meaning is clear, resort to legislative history is unnecessary.”).
UNITED STATES v. OGLES 4731
surplusage because 18 U.S.C. § 923(j) establishes a special
record keeping requirement, bars licensed dealers from con-
ducting business in or from motorized or towed vehicles, and
eliminates the separate location fee required by 18 U.S.C.
§ 923(a). Although Ogles is correct that 18 U.S.C. § 923(j)
includes these provisions, these provisions all follow and
modify the first-stated and central provision of 18 U.S.C.
§ 923(j): that a licensed dealer may, under certain circum-
stances, “conduct business temporarily at a location other than
the location specified on the license.” 18 U.S.C. § 923(j).
Even if the others would not, this provision would be ren-
dered surplusage if Ogles’s interpretation were adopted, vio-
lating a “ ‘cardinal principle of statutory construction’ that ‘a
statute ought, upon the whole, to be so construed that, if it can
be prevented, no clause, sentence, or word shall be superflu-
ous, void, or insignificant.’ ” TRW Inc. v. Andrews, 534 U.S.
19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174
(2001)).
Second, Ogles argues that 18 U.S.C. § 922(a)(1)(A) is a
penal statute and, thus, the rule of lenity requires that it be
strictly construed. But courts “have always reserved lenity for
those situations in which a reasonable doubt persists about a
statute’s intended scope even after resort to ‘the language and
structure, legislative history, and motivating policies’ of the
statute.” Moskal v. United States, 498 U.S. 103, 108 (1990)
(quoting Bifulco v. United States, 447 U.S. 381, 387 (1980);
citing United States v. Bass, 404 U.S. 336, 347 (1971)). Here,
for the reasons noted above, there is no “reasonable doubt” as
to the statute’s meaning.
Third, Ogles argues that Douglas and the corresponding
ATF interpretations of 18 U.S.C. § 922(b)(3) require a finding
that a license is not location specific because both permit out-
of-state licensees to “display and possess guns, negotiate
price, and receive money for firearms as long as the transfer
of the firearm is through an [in-state] licensee,” Douglas, 974
F.2d at 1049 (citing 27 C.F.R. §§ 178.29-.30, 178.100
4732 UNITED STATES v. OGLES
(1991)), and, thus, implicitly recognize that licenses may be
given effect for at least some purposes beyond the licensed
premises. Both Douglas and the ATF interpretations pertain
to 18 U.S.C. § 922(b)(3), and their limited expansion of the
scope of a valid firearms license need not be imported to the
remainder of 18 U.S.C. § 922; indeed, there is good reason
not to do so. To begin, as noted above, importing Douglas and
the corresponding ATF interpretations would render 18
U.S.C. § 923(j) surplusage. Further, although Douglas and the
corresponding ATF interpretations indisputably permit some
freedom to deal by out-of-state licensees, they nonetheless
require out-of-state licensees to transfer the firearm through
an in-state licensee “who fills out the appropriate forms.”
Douglas, 974 F.2d at 1049 (citing 27 C.F.R. §§ 178.29-.30,
178.100 (1991)). In so doing, they give effect to a significant
if not the principle reason for making licenses location spe-
cific: that in “fill[ing] out the appropriate forms,” id., and thus
keeping record of who bought what firearms, in-state licens-
ees can make available to local law enforcement the informa-
tion necessary to investigate misuse of firearms.
Fourth, Ogles relies on United States v. Caldwell, 49 F.3d
251 (6th Cir. 1995), wherein the Sixth Circuit rejected the
government’s contention that “a dealer’s license is location
specific” for purposes of 18 U.S.C. § 922(a)(1)(A). Id. at 252.
There, the defendant was a licensed dealer of firearms but
sold firearms away from the licensed premises, and pleaded
guilty to dealing firearms without a license in violation of 18
U.S.C. § 922(a)(1)(A). Id. The Sixth Circuit vacated the con-
viction, holding that “the statute contains no language strip-
ping the dealer’s licensed status for selling firearms away
from the licensed premises.” Id. at 252.
For the reasons already discussed, we disagree with Cald-
well. Indeed, although the Sixth Circuit acknowledged the
government’s argument there that the court’s reading of the
statute would render 18 U.S.C. § 923(j) surplusage, the court
did not address the argument, let alone rebut it. Id. Further,
UNITED STATES v. OGLES 4733
although acknowledging that “a thorough reading of the stat-
ute indicates that [selling firearms away from the licensed
premises] is improper,” the Sixth Circuit nonetheless ignored
these provisions because it did not “equate an improper trans-
action with an unlicensed transaction.” Id. But, as noted
above, “[t]he term ‘licensed dealer’ means any dealer who is
licensed under the provisions of this chapter.” 18 U.S.C.
§ 921(a)(11). Thus, an “improper transaction” cannot be dis-
associated from an “unlicensed transaction.”
Finally, we note that we have found no case citing Caldwell
for the proposition that a firearm dealer’s license is not loca-
tion specific for purposes of 18 U.S.C. § 922(a)(1)(A).5
Rather, albeit in dicta, the Eleventh Circuit has evinced its
disagreement with Caldwell’s interpretation. In United States
v. Bailey, 123 F.3d 1381 (11th Cir. 1997), the Eleventh Cir-
cuit affirmed a federally licensed firearm dealer’s conviction
for operation of his firearm business without a license in vio-
lation of 18 U.S.C. § 922(a)(1)(A) when he conducted his
firearm business at a location other than those on his licenses.
Id. at 1392. On appeal, the defendant “dispute[d] neither that
he was ‘engage[d] in the business of importing . . . or dealing
in firearms,’ 18 U.S.C. § 922(a)(1)(A), nor that it was illegal
for him to engage in that business at his home, where he was
not licensed, see 18 U.S.C. § 923(a),” id., but the Eleventh
Circuit nonetheless noted that “[f]ederal firearms licenses are
valid only for the location specified on the license.” Id. at
1388.
5
We are aware that one of our colleagues has cited Caldwell with
approval, but in a dissent and in a distinguishable context. United States
v. Ladum, 141 F.3d 1328, 1350 (9th Cir. 1998) (Tashima, J., dissenting).
There, the majority affirmed the district court’s imposition of a two-level
increase in the defendants’ respective base offense levels due to the defen-
dants’ failure to report income exceeding $10,000 from criminal activity,
holding that operating a firearms business, the license for which was
fraudulently obtained, constitutes criminal activity. Id. at 1342-44. Judge
Tashima dissented, arguing that a fraudulently obtained license is facially
valid, even if voidable, and, thus, that the defendants’ firearm sales under
that license did not constitute criminal activity. Id. at 1350.
4734 UNITED STATES v. OGLES
III.
[14] Accordingly, Ogles’s conviction as to Count One is
affirmed, and the district court’s judgment of acquittal as to
Count Two is reversed and remanded for proceedings consis-
tent with this opinion.
AFFIRMED in part and REVERSED and
REMANDED in part.
RYMER, Circuit Judge, 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 firearms outside their licensed premises. Nor
does § 922(a)(1) say what the indictment charges — that
Ogles “willfully engaged in the business of dealing in fire-
arms without a license, that is outside the State in which the
licensee’s place of business was located . . . .” (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 was 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 license” means, the indictment imports a definition
that is nowhere present on the face of the statute.
UNITED STATES v. OGLES 4735
We are not concerned here with whether a dealer licensed
for premises in California who deals firearms in Arizona is
engaging in improper activity, or whether a licensed Califor-
nia dealer who wants to engage in the business of dealing fire-
arms in Arizona must have a license for a place of business
in Arizona. The question is whether Ogles’s Arizona activities
violated § 922(a)(1)(A). I do not disagree with the majority
that the statutes, the Regulations, and the ATF guidelines all
suggest that a firearms license is location-specific. For exam-
ple, license applications and fees are issued and assessed for,
and record-keeping requirements apply to, each place of busi-
ness, see, e.g., 18 U.S.C. §§ 923(a), (d)(1)(E), and (d)(1)(F),
and a dealer who violates § 923 may have his license revoked,
see 18 U.S.C. § 923(e), or be subject to criminal prosecution
for willful violations, see 18 U.S.C. § 924(a)(1)(D). But these
provisions do not change the plain meaning of § 922(a)(1)(A).
Nothing in § 922(a)(1)(A), read alone or in conjunction with
§§ 921 and 923, states that a licensed dealer who engages in
off-premises, out-of-state business is not a “licensed dealer.”
The structure of § 922 indicates that subsection (a)(1)(A)
does not criminalize the conduct of a licensed dealer. Subsec-
tion (a)(1) makes it a crime for “any person” to engage in the
business of dealing in firearms — except a licensed dealer.1
By contrast, the language of subsection (b) makes it “unlawful
for any licensed . . . dealer” to sell or deliver firearms under
the conditions specified.2 Thus, § 922(a)(1)(A) clearly applies
to all people but licensed dealers; by the same token, its words
do not apply to licensed dealers who improperly engage in the
business of dealing firearms. Other sections, in particular
§ 922(b), plainly do apply to, and criminalize, such conduct
by licensed dealers. Indeed, § 922(b)(3) specifically makes it
unlawful for a licensed dealer to sell firearms to a person who
does not reside in the state of the dealer’s place of business.
1
Subsections (a)(3), (a)(4), (a)(5), (a)(6), (a)(7) and (a)(9) apply to “any
person” as well.
2
Subsection (a)(2) also applies to “any . . . dealer.”
4736 UNITED STATES v. OGLES
Given this, I would not construe § 922(a)(1)(A) as applying
to a licensed dealer who makes off-premises sales to out-of-
state residents.
To hold otherwise has the odd effect of making the same
dealer at once licensed and unlicensed with respect to the
same conduct. This is manifest by the indictment in this case.
Based solely on what Ogles did at the Arizona gun show, the
government chose to charge him with violating both
§ 922(b)(3), which makes it unlawful for licensed dealers to
sell firearms to any person who the dealer knows does not
reside in the state where the dealer’s place of business is
located, and § 922(a)(1)(A), which makes it unlawful for any
person except a licensed dealer to deal firearms. As there is
no dispute that Ogles was licensed for purposes of
§ 922(b)(3), I believe he cannot be unlicensed for purposes of
§ 922(a)(1)(A).
The Sixth Circuit so held in United States v. Caldwell, 49
F.3d 251 (6th Cir. 1995). There is merit to avoiding a circuit
conflict with respect to a federal licensing scheme. Caldwell
has been on the books for some time now, without Congres-
sional action to amend the statute. This, too, influences me.
For these reasons, I would affirm across the board.