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Wallpapers have been used for at least 300 years to decorate various interiors. They form a significant part of a larger unity, an interior. According to modern conservation principles, historic wallpaper should be preserved in its original location, in situ. However, this may not always be possible. Changes in the surrounding environment and aging of wallpaper might lead to its destruction and removal from the original location. To enable the wallpaper’s existence as an integral part of a historic interior, other solutions should be sought after. The aim of this article is to propose and discuss a set of methodological preservation guidelines that may help to maintain a larger amount of historic wallpapers, both intact and fragmentary, as a part of an interior. So far, no similar guidelines or a comparative study of various preservation options have been suggested. The guidelines here proposed are based on case studies of objects restored in Estonia although they can be put into use elsewhere.
In Estonia, an alarming trend has emerged where the main focus of conservation of historic interiors has been the search and uncovering of wall paintings, disregarding wallpapers and other wall finishes. Without systematic research and proper documentation, wall covers are simply stripped from the walls in hope of uncovering wall paintings. As a result, fewer and fewer historic wallpapers are preserved in their original location. Despite numerous finds, they are seldom included in research reports. Walls that have always been covered with wallpapers are puttied and coloured instead. Such solution creates a completely faulty perception of our historic interiors.
Since no comparative study of various wallpaper preservation options and guidelines alike have been proposed so far, it was felt necessary to develop a set of methodological guidelines that would help to preserve a larger amount of historic wallpapers in their original location or elsewhere in another proper environment. The guidelines are described and discussed below.
According to the Burra Charter, “contents, fixtures and objects which contribute to the cultural significance of a place should be retained at that place. Their removal is unacceptable unless it is: the sole means of ensuring their security and preservation; on a temporary basis for treatment or exhibition; […] for health and safety; or to protect the place. Such contents, fixtures and objects should be returned where circumstances permit and it is culturally appropriate” [1, art. 10]. Therefore, wallpapers could be considered a fixture, contributing to the significance of a place, that should be, where possible, preserved in its original location or returned after treatment.
The primary function of wallpapers is to decorate. Besides its aesthetic properties, wallpapers can provide researchers with additional data about historic patterns, use of materials and different printing methods, as well as information about the function of a certain room, preferences of previous inhabitants, their social status, financial possibilities and prevailing fashion, among others. If wallpaper is removed from its original location, it loses its primary function. Additionally, the amount of information that it could transmit decreases considerably.
Although contemporary conservation theory emphasizes the importance of preserving historic wallpapers in situ, it is not always feasible. Wallpaper might be removed from its original location for different reasons, such as for its poor condition or changes in its surrounding environment. Depending on its condition, wallpaper could be later returned to its original location, exhibited in a new environment or preserved in an archive.
Besides the principles defined by the Burra Charter  and the Venice Charter , preservation of wallpaper depends on a number of values attributed to it. The most significant values in preservation of historic wallpapers are described and discussed below.
Values attributed to an object are to a certain extent always relative since they tend to change over time. The most common values attributed to wallpapers are historical and aesthetic value.
To define a conservation object, Alois Riegl used the term Denkmal (“monument”) [3, p. 37]. A conservation object is an object that conveys a certain meaning for a person or a group of people and which is preserved for that reason. It might have, for example, a social, private or scientific meaning [3, pp. 152-153].
Riegl distinguished between two types of monuments: deliberate and unintentional monuments. The first are meant to commemorate certain events and the latter are relevant because of values attributed to them. Unintentional monuments are usually characterized by historical and/or aesthetic value.
Everything that has been created by human beings or that carries information about human activity could acquire historical value. Aesthetic value could be attributed to any visible artistic work of man. However, aesthetic value cannot be completely defined since the requirements of a visible artistic work are subjective and might change in time. Therefore, since wallpaper is a tangible evidence of human activity, which creation has been initiated by artistic volition, it should be considered both historically and aesthetically valuable.
Other values attributed to wallpaper are not as common as the historical or aesthetic values. Since they depend on certain properties of an object and subjective criteria, they tend to be relative and change over time.
According to Salvador Muñoz-Viñas, value attributed to an object is in direct correlation to its ability to perform certain function [3, p. 180]. If wallpaper is supposed to fulfil a decorative function, then it has aesthetic value, and vice-versa. In this relation, it could be said that the better an object can fulfil its function, the more valuable it is. Besides the aforementioned values, others such as monetary and educational value and value of unity could be attributed to historic wallpaper.
Monetary value may be expressed in various ways, for example, if historic wallpaper is sold at auction or by selling tickets for examining historic wallpapers in a historic interior or an exhibition. Besides that, a valuable historic wallpaper may increase the monetary value of a historical building.
An educational value is expressed the best by the panoramic wallpapers, which offered a cultural programme for people in different ages in the form of a comic strip on a mural scale. They stimulated the imagination, they were instructive, and they were consistent with bourgeois morality . Among others, they depicted stories of morality (e.g. Paul et Virgine), well-known literary works (e.g. Orlando Furioso), views of exotic places and cultures (e.g. Les Sauvages de la Mer Pacifique) and historical events (e.g. The Battle of Austerlitz).
On the other hand, any historic wallpaper could be considered educational. Any historic wallpaper or decorative scheme can inform its observer of the historical means of wall decoration, the quality of materials and printing methods and the history of pattern design.
Value of unity has been best explained by Cesare Brandi, according to whom “an unity is composed of various parts, that are each works of art in themselves, in reality, either those parts are not as individually autonomous as would appear, and the division into parts acts as a rhythmic device, or that, in the context in which they appear, they lose that individual value and are absorbed into the work of which they are part” . Thus, it could be said that wallpaper forms a unity with other decorative details and is an integral part of an interior. After wallpaper has been removed from its original location it cannot function as an autonomous object. It will provide its observer with limited amount of information, which does not give a complete understanding of its original setting.
Most of the mentioned values are best performed if wallpapers could be freely accessed and observed in an appropriate environment. The issue of accessibility leads us to more pragmatic aspects of wall-paper preservation.
Samples of historic wallpapers that have been removed from their original location are often preserved as archival documents. Due to budget and space limitations, museums collecting historic wallpapers face a number of challenges: firstly, wallpaper fragments could use a large amount of space if they are supposed to be stored and exhibited properly; and secondly, it is complicated to get an access to fragile wallpaper samples that are maintained in different locations . If wallpaper is removed from its original location important data about the object will be lost such as its original mounting system and the combination of different applications and details forming one unity, among others. Besides, only a few museums collect and preserve historic wallpapers. This implies that a large amount of wallpapers are lost or preserved in private collections, which are complicated to access. Due to these reasons, it is necessary to seek for a fitting solution to preserve a larger amount of historic wallpapers in their original location.
Since there is no universal recipe for preserving historic wallpapers, a set of methodological preservation guidelines, which could be applied to a wider spectrum of objects, needed to be developed. The guidelines will be discussed in the following sections.
Since aesthetics of a historic object could be perceived differently, several conservation scenarios might be developed. To create the most appropriate concept and to avoid possible mistakes caused by personal preferences, all parties related to wallpaper conservation should be included to the discussion throughout the project. The subjectivity of specialists working with historic wallpapers could be reduced by an interdisciplinary education, which would help them to understand the properties of historic interiors and various decorative mediums.
Conservation of wallpaper has two basic aims: to consolidate the object’s physical condition and to emphasize its decorative appearance. Treating historic wallpaper as a part of an interior contributes not only to its aesthetic appearance, but also to the material and historical integrity of a whole.
For preserving historic wallpaper in an interior, three basic solutions could be considered: preservation in situ; returning the wallpaper to its original location after conservation; and mounting the wallpaper in a new location. The two first options could be applied to both intact and objects preserved in fragments.
The rarest of all cases are historic wallpapers that have been preserved intact in their original location and are not superimposed by other decorative layers. Panoramic and hand-coloured Chinese wallpapers, arabesque panels, settings of décor-complets and other extraordinary wall covers are usually the ones that have been best preserved until today since they have often been appreciated for their aesthetic and monetary value. Several of them have been preserved due to the elaborate mounting systems which have prolonged their life-span and enabled their preservation even after they had gone out of fashion.
If the supporting structure of well-preserved and stable wallpaper is in good condition, it should be preserved in situ. Such objects could be, however, seldom found. A very good example of this kind could be seen in the Estonian Literary Museum in Tartu, where the first historic layer dating back to the end of the 19th century, was preserved uncovered and almost intact (Figure 1).
In addition to the aesthetic value, well-preserved papered rooms are valued for the intact original mounting system. Namely, “the way that the wall-paper seams were butted originally together, wrinkles that were put into the paper when it was first hung, and the type of paste used to hang the wallpaper are considered relevant elements directly related to the historical integrity of the wallpaper. The elements will be changed or destroyed if in situ conservation treatments are deemed impracticable” .
Furthermore, besides destroying the original mounting method, dismounting might cause further mechanical damage to the object and, thus, increase the extent and cost of the whole conservation project.
Preservation of wallpaper fragments in situ usually raises the most questions. According to Cesare Brandi, “fragmentarily preserved object is a ruin and cannot be restored because its unity is impossible to recover”  (Figure 2). However, the extent and character of conservation treatment of a ruin does depend on the amount of original material and evidence of its primary appearance.
To restore a historic wallpaper, the preserved material should include a whole pattern repeat, its original colours, method of printing, additional applications and their location on the wall, type and extent of decorative-scheme and method of mounting. If there is enough information to dwell upon, reconstruction should not be feared, since it would help to restore the legibility and visual integrity of a wall decoration and a whole interior (Figure 3). Since contemporary conservation theory emphasizes the importance of preserving as much original material as possible, existing material should be combined with reconstruction to enable the object’s historic and aesthetic continuity. To avoid falsification of the artistic or historic evidence of wallpaper, “replacements of missing parts must integrate harmoniously with the whole, but at the same time must be distinguishable from the original […]” [2, art. 12].
Figure 1. 19th century wallpaper after its discovery in 2011 at the Estonian Literary Museum in Tartu.
Figure 2. A fragmentarily preserved corner with extensive biological damage in Puurmani Manor in Puurmani, Estonia.
Figure 3. Damaged corner after reconstruction, Puurmani Manor in Puurmani, Estonia.
As mentioned before, the extent of conservation treatment depends on the amount of existing original material. Since preserving large wallpaper fragments in museums could be complicated, an effort should be made to preserve a larger amount of wallpapers in their original location.
Although it is a rarely occurring practice, wallpaper fragments could also be returned to their original location after conservation treatment (Figure 4). In principle, remounting fragmentarily preserved wallpaper to its original location restores the historic unity between an object and its primary environment. The decision should depend on the size of the fragment and the stage of its decay. Otherwise, the unity would be terminally broken if the fragments would be preserved as archival documents. Furthermore, the fragments would not be as informative for the future generations as they are in their original environment (Figure 5). If the fragments have lost their aesthetic appearance, it should be decided if they could be exhibited or not.
Small fragments that cannot provide information about a whole decorative scheme could be either preserved in their original location or removed. Such fragments are usually found underneath other decorative details, such as floor moldings, window- and door-frames, over-doors and else. Their removal and preservation as archival documents is justified if they were going to be covered up by the decorative details again (Figure 6). When accompanied by a thorough documentation, they might be more informative and easier accessible for the wider public than when they are preserved in situ.
Figure 4. Fragments of wallpaper before remounting at Frey Schlösschen in Salzburg, Austria. The wallpaper conservation project was managed by Markus Klasz from the Institut für Papier Restaurierung (IPR) in Schönbrunn Palace, Austria.
Figure 5. Wallpaper fragments after remounting at Frey Schlösschen in Salzburg, Austria.
Figure 6. Consolidated wallpaper fragments in their original location, Frey Schlösschen in Salzburg, Austria.
Wallpapers are dismounted for various reasons: the structure supporting the wallpaper is damaged and it needs to be consolidated; if wallpaper is in a poor state and more thorough conservation treatment would improve its physical condition and aesthetic appearance or it would enable development of an improved mounting method, which could prolong the object’s life-span.
Depending on a case, wallpapers that have preserved their aesthetic appearance and physical unity could be returned to their original location. If they are remounted, they continue to fulfil the primary decorative function and restore the unity with other decorative details in interior.
One of the most complicated tasks conservators may need to face is to choose a certain layer of wallpaper among several superimposed layers. Prior to any large-scale treatment, it is recommended to open only a small area to reveal the underlying layers and their condition. If no further preservation process will follow, the opening could be exhibited to show all the historic layers. On the other hand, if one of the layers proves to be significant, other superimposing layers could be removed completely. According to the Venice Charter, such a process could only “be justified in exceptional circumstances and when what is removed is of little interest and the material which is brought to light is of great historical, archaeological or aesthetic value, and its state of preservation is good enough to justify the action. Evaluation of the importance of the elements involved and the decision as to what may be destroyed cannot rest solely on the individual in charge of the work” [2, art. 11].
A corresponding situation occurred in the dining-room of the Puurmani manor, where two historic layers had preserved more or less intact. The upper decorative layer consisted of a wallpaper, a border with matching corner pieces and a monochrome paper (Figure 7). The older layer consisted of a varnished wallpaper depicting a luxurious composition of hunting trophies (Figure 8). Since the upper layer was relatively intact and well-preserved, it was decided it would be restored and exhibited. However, to exhibit the older wallpaper with an interesting design, it was decided to open a small area showing two repeats of the pattern. The rest of the older wallpaper has survived under the newer layer and may be researched and uncovered later, when necessary.
Wallpaper layers that have been considered less significant can be removed from a more significant layer. Due to the physical properties of wallpaper, the removed layers could be conserved and preserved as separate objects. Although the solution breaks the unity of superimposed layers, they could be observed, researched and, if possible and desired, reused in a new location. However, since loose segments of earlier wallpapers have commonly been stripped from the wall prior to applying a new layer, it is highly possible that many of the older layers have been preserved more or less in fragments.
On the other hand, if possible, all the superimposed historic layers could be preserved intact in their original location and covered by a reconstruction of the most significant historic layer (Figure 9). The significant layer could be revealed by archaeological research in situ and needs to be chosen by a group of experts working with historic interiors. For a reconstruction of the setting, it is necessary to reveal the whole pattern repeat and all additional applications. The historic wallpaper layers will be permanently covered by Japanese paper and acid-free lining-paper, which would provide the original with a protective layer. This solution helps to recreate an appearance of the most significant layer by preserving all historic layers in their original location.
Figure 7. The upper decorative layer consisting of a wallpaper, a border with matching corner pieces and a monochrome paper in the dining-room of Puurmani manor in Estonia.
Figure 8. The older wallpaper in the dining-room of the Puurmani manor depicted a luxurious composition of hunting trophies.
Figure 9. Käsmu Church in Estonia. Four historic layers exposed in their original location. The conservation project was managed by Kristiina Ribelus. Photo credit: Kristiina Ribelus.
A similar conservation conception was chosen in the Käsmu Church, where three layers of historic wallpaper were preserved in situ. The layers dated back to the 1860s, the 1890s and to the early 20th century. Since the second layer had formed a stylistic unity with the rest of the interior, it was decided to reconstruct the original decoration of the room dating back to the 1890s. As the original layer was covered up and had lost its aesthetic appearance, it was decided to preserve all the historic layers by covering them up and creating a reconstruction of the chosen historic setting (Figure 10).
The Burra Charter says that if any historic component of a historic building has to be removed, it should be relocated to an appropriate location and given a fitting use [2, art. 9.3]. The most common reason for reusing historic wallpaper is its significance and values attributed to it. Wallpaper could be considered significant, for example, for its aesthetic appearance, rarity, type, history or origin, which could be emphasized by its reuse (Figure 11).
If significant and well-preserved wallpapers have been removed and cannot be returned to their original location, it could be either preserved in a new appropriate location or in a museum. In case the latter option needs to be chosen, removed wallpaper should be thoroughly documented and preserved accordingly to its properties and importance [2, art. 33].
These so-called reused wallpapers create an unprecedented unity with other decorative details. The result cannot be considered an original historic setting, but rather a historicizing solution which aims to imitate and transmit certain information. Since the new result should not create a stylistic conflict between the existing decorative details and wallpaper, the conception should be based on research of analogue wall covers and their use in interior. The given solution helps to restore the original function of a significant object and emphasize its decorative properties (Figure 12). However, such a solution cannot be considered completely stable. Wallpaper that already has a history of relocation does not have significant links with its present location [2, art. 9.2] and, thus, could be removed again.
Figure 10. Reconstruction of the most significant wallpaper covers rest of the preserved material at Käsmu Church, Estonia. Photo credit: Kristiina Ribelus.
Figure 11. Hand-painted silk wall cover at Esterhazy Palace in Eisenstadt, Austria restored by Hilde Neugebauer, textile conservator in Schönbrunn Palace.
Figure 12. A chinoiserie study with remounted silk wall covers from Esterhazy Palace in Eisenstadt, Austria. The conservation project was managed by Markus Klasz (IPR).
Wallpapers have played a significant role in interior design for several centuries. Today, they could inform us about the prevailing fashion, the materials and methods used for their production, but also about the function of a room, the social background and even the financial state of its inhabitants. According to the contemporary preservation principles, historic fixtures, such as wallpapers should be preserved in their original location. However, due to different reasons it is not always possible.
The article aimed to suggest a set of methodological guidelines, which would help to protect and preserve a larger amount of historic wallpapers in their original location or in another appropriate environment. Similar guidelines and their comparative study have not been suggested so far.
The main motivation to write the article was the disturbing situation in Estonia, where very few wallpapers are researched, documented and preserved in their original location. Instead of that, they are often stripped from the walls in hope of uncovering painted surfaces. Therefore, in order to preserve a larger variety of historic wallpapers, their maintenance in their original location was seen as a good and sustainable alternative to complete destruction.
Since each and every object is different, there is no universal recipe for preserving historic wallpapers. Instead of that, different concepts could be implemented. Wallpaper could be preserved either in situ, returned to its original location after conservation or exhibited in a new context by imitating the ideas of the original historic setting. Moreover, they could be preserved in an interior either in fragments or intact. Each option naturally has its own advantages and disadvantages.
The rarest occurring case is the maintenance of well-preserved historic wallpapers in their original location. If both, a wallpaper and its supporting structure are stable, it is reasonable to preserve the object in situ. Moreover, besides the aesthetic value, a wallpaper should be valued for its intact original mounting method.
In case of the maintenance of wallpaper fragments, the character and extent of the treatment depends largely on the amount of existing material. Wallpaper fragments could be either preserved in situ, returned to their original location after conservation treatment or in a museum.
Wallpapers need to be sometimes removed from their original location. Although it breaks their historic unity with the supporting structure, they could be more thoroughly restored. Treated wallpapers could be either returned to their original location, exhibited in a new room or in a museum. If there are numerous superimposed historic layers, it could be necessary to decide for one. The choice depends on the values attributed to the objects. Due to the physical properties of wallpaper, each and every removed layer could act as a separate object. On the other hand, all historic layers could be preserved intact in situ and covered by a new decorative layer, such as a reconstruction of the most significant layer.
If well-preserved and valuable wallpapers cannot be returned to their original location, they could be as well preserved in a museum or exhibited in a new fitting environment. In cases like that, unprecedented unity with other decorative details is created. Although the result is not authentic, wallpapers continue to fulfil the primary decorative function.
The suggested methodology is not limited to Estonia; it could also be put to use elsewhere. It aims to preserve a larger variety of historic wallpapers, help to make them aesthetically consumable and maintain them for future generations in their original location.
 The Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 1999, http://australia.icomos.org/wp-content/uploads/BURRA_CHARTER.pdf (accessed 12 April 2013).
 The Venice Charter - International Charter for the Conservation and Restoration of Monuments and Sites, 1964, http://www.icomos.org/charters/venice_e.pdf (accessed 23 September 2013).
Kadri Kallaste trained as paper conservator at the Estonian Academy of the Arts. She has also studied in the Restoration Department of the University of Ljubljana and the Institute for Conservation and Restoration of the University of Applied Arts in Vienna. During her studies, she had several internships in various institutions, including the Conservation Center Kanut and Estonian Art Museum in Tallinn, the National Archive of Slovenia in Ljubljana and Cole & Son Ltd., a manufacturer of hand-printed wallpapers in London. Her main area of study is the research and preservation of historic wallpapers in situ. She participated on numerous wallpaper preservation projects in Estonia and abroad, including objects in Austria and at the German Wallpaper Museum in Kassel, Germany.

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art. 10
art. 12
art. 11
art. 9
art. 33
art. 9


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Under the Federal Trade Commission Act (Sept. 26, 1914, c. 311, 38 Stat. 717), an order of the commission requiring parties to desist from a course of business as unfair competition must correspond with the complaint which the commission is required to issue and serve as the basis for the proceedings, and where the complaint, liberally construed, is plainly insufficient to show unfair competition, the order is without foundation and, when challenged, will be annulled by the court. P. 253 U. S. 427.
The commission's complaint alleged that some of the respondents were engaged in selling, in interstate commerce, directly to the trade or through their co respondents, steel ties, manufactured by a certain company, made and used for binding bales of cotton, and jute bagging, manufactured by another company, used to wrap bales of cotton; that the other respondents, as their agents, sold and distributed such ties and bagging, in interstate commerce, principally to jobbers and dealers who resold the same to retailers, cotton-ginners and farmers, and that, with the purpose, intent and effect of discouraging and stifling competition, all of the respondents refused, and for more than a year had refuged, to sell any such ties unless the prospective purchaser would also buy from them the bagging to be used with the number of ties proposed to be bought. Held plainly insufficient to show an unfair method of competition. Id.
By an act approved September 26, 1914, c. 311, 38 Stat. 717, Congress made provision for the Federal Trade Commission and declared its powers.
"commerce among the several states or with foreign nations, or in any territory of the United States or in the District of Columbia, or between any such territory and another, or between any such territory and any state or foreign nation or between the District of Columbia and any state or territory or foreign nation."
by this act, it shall make a report in writing in which it shall state its findings as to the facts, and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method of competition."
enforcement of its order, and the findings of the commission as to the facts, if supported by testimony, shall in like manner be conclusive."
Sections 6 and 7 empower the commission to require reports and compile information concerning corporations; to inquire concerning execution of decrees restraining violations of the antitrust acts; to investigate alleged violations of such acts; to recommend readjustments of corporate business; to publish information and make reports to Congress; to classify corporations and make rules and regulations; to investigate trade conditions; to act, under orders of the court, as a master in chancery in certain designated circumstances, etc.
"their officers and agents, cease and desist from requiring purchasers of cotton ties to also buy or agree to buy, a proportionate amount of American Manufacturing Company's bagging, and further that the respondents cease and desist from refusing to sell cotton ties unless the purchasers buy or agree to buy from them corresponding amounts of American Manufacturing Company's bagging, or any amount of cotton bagging of any kind."
Company's bagging, and that the commission has no jurisdiction to determine the merits of specific individual grievances."
"Federal Trade Commission v. Anderson Gratz and Benjamin Gratz, Copartners Doing Business under the Firm Name and Style of Warren, Jones & Gratz, p. P. Williams, W. H. Fitzhugh, and Alex. Fitzhugh, Copartners Doing Business under the Firm Name and Style of P. P. Williams & Co., and Charles O. Elmer."
"The Federal Trade Commission, having reason to believe, from a preliminary investigation made by it, that Anderson Gratz and Benjamin Gratz, copartners doing business under the firm name and style of Warren, Jones & Gratz, P. P. Williams, W. H. Fitzhugh, and Alex. Fitzhugh, copartners doing business under the firm name and style of P. P. Williams & Co., and Charles O. Elmer, all of whom are hereinafter referred to as respondents, have been and are using unfair methods of competition in interstate commerce in violation of the provisions of section 5 of the act of Congress approved September 26, 1914, entitled 'An act to create a Federal Trade Commission, to define its powers and duties, and for other purposes,' and it appearing that a proceeding by it in respect thereof would be to the interest of the public, issues this complaint, stating its charges in that respect, on information and belief, as follows:"
in the City of St. Louis and State of Missouri, and are engaged in the business of selling, in interstate commerce, either directly to the trade, or through the respondents hereinafter named, steel ties made and used for binding bales of cotton, and which steel ties are manufactured by the Carnegie Steel Company of Pittsburgh, Pennsylvania, and also selling, in the same manner, jute bagging, used to wrap bales of cotton, and which jute bagging is manufactured by the American Manufacturing Company, of St. Louis, Missouri."
"Paragraph 2: That the respondents P. P. Williams, W. H. Fitzhugh, and Alex. Fitzhugh are copartners doing business under the firm name and style of P. P. Williams & Co., having their principal office and place of business in the City of Vicksburg and State of Mississippi, and the said last-named respondents and the said respondent Charles O. Elmer, who is located and doing business at the City of New Orleans and State of Louisiana, are the selling and distributing agents of the said firm of Warren, Jones & Gratz, and sell and distribute the ties and bagging, manufactured as aforesaid, in interstate commerce, principally to jobbers and dealers, who resell the same to retailers, cotton ginners, and farmers."
"Paragraph 3: That, with the purpose, intent, and effect of discouraging and stifling competition in interstate commerce in the sale of such bagging, all of the respondents do now refuse and for more than a year last past have refused, to sell and of such ties unless the prospective purchaser thereof would also buy from them bagging to be used with the number of ties proposed to be bought; that is to say, for each six of such ties proposed to be bought from the respondents, the prospective purchaser is required to buy six yards of such bagging."
judgment below must be affirmed, since, in our opinion, the first count of the complaint is wholly insufficient to charge respondents with practicing "unfair methods of competition in commerce" within the fair intendment of those words. We go no further, and confine this opinion to the point specified.
When proceeding under § 5, it is essential, first, that, having reason to believe a person, partnership, or corporation has used an unfair method of competition in commerce, the commission shall conclude a proceeding "in respect thereof would be to the interest of the public;" next, that it formulate and serve a complaint stating the charges "in that respect," and give opportunity to the accused to show why an order should not issue directing him to "cease and desist from the violation of the law so charged in said complaint." If, after a hearing, the commission shall deem "the method of competition in question is prohibited by this act," it shall issue an order requiring the accused "to cease and desist from using such method of competition."
If, when liberally construed, the complaint is plainly insufficient to show unfair competition within the proper meaning of these words, there is no foundation for an order to desist -- the thing which may be prohibited is the method of competition specified in the complaint. Such an order should follow the complaint; otherwise it is improvident and, when challenged, will be annulled by the court.
certainly not intended to fetter free and fair competition as commonly understood and practiced by honorable opponents in trade.
Count one alleges, in effect, that Warren, Jones & Gratz are engaged in selling, either directly to the trade or through their correspondents, cotton ties produced by the Carnegie Steel Company and also jute bagging manufactured by the American Manufacturing Company. That P. P. Williams & Co., of Vicksburg, and C. O. Elmer, of New Orleans, are the selling and distributing agents of Warren, Jones & Gratz, and as such sell and distribute their ties and bagging to jobbers and dealers, who resell them to retailers, ginners, and farmers. That, with the purpose and effect of discouraging and stifling competition in the sale of such bagging, all the respondents, for more than a year, have refused to sell any of such ties unless the purchaser would buy from them a corresponding amount of bagging -- six yards with as many ties.
The complaint contains no intimation that Warren, Jones & Gratz did not properly obtain their ties and bagging as merchants usually do; the amount controlled by them is not stated, nor is it alleged that they held a monopoly of either ties or bagging, or had ability, purpose, or intent to acquire one. So far as appears, acting independently, they undertook to sell their lawfully acquired property in the ordinary course, without deception, misrepresentation, or oppression, and at fair prices, to purchasers willing to take it upon terms openly announced.
in respect of his own business methods must be preserved. United States v. Colgate, 250 U. S. 300; United States v. A. Schrader's Son, Inc., 252 U. S. 85.
The first count of the complaint fails to show any unfair method of competition practiced by respondents, and the order cased thereon was improvident.
MR. JUSTICE BRANDEIS dissenting, with whom MR. JUSTICE CLARKE concurs.
The pleading held defective is not one in this suit. It is the pleading by which was originated the proceeding before the Federal Trade Commission, an administrative tribunal, whose order this suit was brought to set aside. No suggestion was made in the proceeding before the commission that the complaint was defective. No such objection was raised in this suit in the court below. It was not made here by counsel. The objection is taken now for the first time and by the court.
than sixteen months. The report of them fills 400 pages of the printed record. In my opinion, it is our duty to determine whether the facts found by the commission are sufficient in law to support the order, and also, if it is questioned, whether the evidence was sufficient to support the findings of fact.
U.S. 197, 215; Cincinnati, Hamilton & Dayton Ry. Co. v. Interstate Commerce Commission, 206 U. S. 142, 206 U. S. 149.
In considering whether the complaint is sufficient, it is necessary to bear in mind the nature of the proceeding under review. The proceeding is not punitive. The complaint is not made with a view to subjecting the respondents to any form of punishment. It is not remedial. The complaint is not filed with a view to affording compensation for any injury alleged to have resulted from the matter charged, nor with a view to protecting individuals from any such injury in the future. The proceeding is strictly a preventive measure taken in the interest of the general public. And what it is brought to prevent is not the commission of acts of unfair competition, but the pursuit of unfair methods. Furthermore, the order is not self-executory. Standing alone, it is only informative and advisory. The commission cannot enforce it. If not acquiesced in by the respondents, the commission may apply to the circuit court of appeals to enforce it. But the commission need not take such action, and it did not do so in respect to the order here in question. Respondents may, if they see fit, become the actors and ask to have the order set aside. That is what was done in the case at bar.
The Clayton Act (Oct. 15, 1914, c. 323, 38 Stat. 730) was framed largely with a view to making more effective the remedies given by the Sherman law. The Federal Trade Commission Act (Sept. 26, 1914, c. 311, 38 Stat. 717) created an administrative tribunal largely with a view to regulating competition.
Many of the duties imposed upon the Trade Commission had been theretofore performed by the Bureau of Corporations. That which was, in essence, new legislation was the power conferred by § 5. The belief was widespread that the great trusts had acquired their power, in the main, through destroying or overreaching their weaker rivals by resort to unfair practices. [Footnote 4] As Standard Oil rebates led to the creation of the Interstate Commerce Commission, [Footnote 5] other unfair methods of competition which the investigations of the trusts had laid bare led to the creation of the Federal Trade Commission. It was hoped that, as the former had substantially eliminated rebates, the latter might put an end to all other unfair trade practices, and that it might prove possible thereby to preserve the competitive system. It was a new experiment on old lines, and the machinery employed was substantially similar.
Furthermore, an enumeration, however comprehensive, of existing methods of unfair competition must necessarily soon prove incomplete, as, with new conditions constantly, arising novel unfair methods would be devised and developed. In leaving to the commission the determination of the question whether the method of competition pursued in a particular case was unfair, Congress followed the precedent which it had set a quarter of century earlier, when, by the act to regulate commerce, it conferred upon the Interstate Commerce Commission power to determine whether a preference or advantage given to a shipper or locality fell within the prohibition of an undue or unreasonable preference or advantage. [Footnote 9] See Pennsylvania Co. v. United States, supra, p. 236 U. S. 361; Texas & Pacific Railway v. Interstate Commerce Commission, 162 U. S. 197, 162 U. S. 219-220. Recognizing that the question whether a method of competitive practice was unfair would ordinarily depend upon special facts, Congress imposed upon the commission the duty of finding the facts, and it declared that findings of fact so made (if duly supported by evidence) were to be taken as final. The question whether the method of competition pursued could, on those facts, reasonably be held by the commission to constitute an unfair method of competition, being a question of law, was necessarily left open to review by the court. Compare Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42; Interstate Commerce Commission v. Baltimore & Ohio R. Co., 145 U. S. 263.
"under the circumstances therein set forth, unfair methods of competition in interstate commerce against other manufacturers, dealers, and distributors in the material known as sugar-bag cloth, and against manufacturers, dealers, and distributors of the bagging known as rewoven bagging and second-hand bagging in violation of"
"refusing to sell to any jobber any brand of any tobacco product manufactured by it except upon condition that such jobber shall purchase from the vendor some other brand or product also manufactured and sold by it. . . ."
cotton tie and bagging trade were, in 1918, such that the Federal Trade Commission could reasonably find that the tying clause here in question was an unfair method of competition: cotton, America's chief staple, is marketed in bales. To bale cotton, steel ties and jute bagging are essential. The Carnegie Steel Company, a subsidiary of the United States Steel Corporation, manufactures so large a proportion of all such steel ties that it dominates the cotton tie situation in the United States, and is able to fix and control the price of such ties throughout the country. The American Manufacturing Company manufactures about 45 percent of all bagging used for cotton baling, one other company about 20 percent, and the remaining 35 percent is made up of second hand bagging and a material called sugar-bag cloth. Warren, Jones & Gratz, of St. Louis, are the Carnegie Company's sole agents for selling and distributing steel ties. They are also the American Manufacturing Company's sole agents for selling and distributing jute bagging in the cotton-growing section west of the Mississippi. By virtue of their selling agency for the Carnegie Company, Warren, Jones & Gratz held a dominating and controlling position in the sale and distribution of cotton ties in the entire cotton-growing section of the country, and thereby it was in a position to force would-be purchasers of ties to also buy from them bagging manufactured by the American Manufacturing Company. A great many merchants, jobbers, and dealers in bagging and ties throughout the cotton-growing states were many times unable to procure ties from any other firm than Warren, Jones & Gratz. In many instances, Warren, Jones & Gratz refused to sell ties unless the purchaser would also buy from them a corresponding amount of bagging, and such purchasers were oftentimes compelled to buy from them bagging manufactured by the American Manufacturing Company in order to procure a sufficient supply of steel ties.
"adopted and practiced the policy of refusing to sell steel ties to those merchants and dealers who wished to buy from them unless such merchants and dealers would also buy from them a corresponding amount of jute bagging."
that the apprehended effect of an unfair method in suppressing competition by destroying rivals could be averted. As the circuit court of appeals found that the evidence was sufficient to support the facts set forth above, and since, on those facts, the commission could reasonably hold that the method of competition in question was unfair under the circumstances, it had power under the act to issue the order complained of.
In my opinion, the judgment of the circuit court of appeals should be reversed.
"It is believed that the term 'unfair competition' has a legal significance which can be enforced by the commission and the courts, and that it is no more difficult to determine what is unfair competition than it is to determine what is a reasonable rate or what is an unjust discrimination. The committee was of the opinion that it would be better to put in a general provision condemning unfair competition than to attempt to define the numerous unfair practices, such as local price-cutting, interlocking directorates, and holding companies intended to restrain substantial competition."
See Laws on Trusts and Monopolies, Compiled under direction of the Clerk of the House Committee on the Judiciary, Sixty-Third Congress, by Nathan B. Williams, Revised January 10, 1914; also Trust Laws and Unfair Competition (Federal) Bureau of Corporations, March 15, 1915.
"Some would found such a commission upon the theory that monopolistic industry is the ultimate result of economic evolution, and that it should be so recognized, and declared to be vested with a public interest and as such regulated by a commission. This contemplates even the regulation of prices. Others hold that private monopoly is intolerable, unscientific, and abnormal, but recognize that a commission is a necessary adjunct to the preservation of competition and to the practical enforcement of the law. . . ."
"The commission which is proposed by your committee in the bill submitted is founded upon the latter purpose and idea."
See "Unfair Competition," by William S. Stevens, Political Science Quarterly (1914) p. 283; "The Morals of Monopoly and Competition" (1916) by H.B. Reed.
See Railway Problems, by William Z. Ripley (1907) p. x.
"Unfair competition must usually proceed to great lengths and be destructive of competition before it can be seized and denounced by the antitrust law. In other cases, it must be associated with, coupled with, other vicious and unlawful practices in order to bring the person or the corporation guilty of the practice within the scope of the antitrust law. The purpose of this bill in this section, and in other sections which I hope will be added to it, is to seize the offender before his ravages have gone to the length necessary in order to bring him within the law that we already have."
"We knew little of these things in 1890. The commerce of the United States has largely developed in the last 25 years. The modern methods of carrying on business have been discovered and put into operation in the last quarter of a century, and as we have gone on under the antitrust law under the decisions of the court in their effort to enforce that law, we have observed certain forms of industrial activity which ought to be prohibited whether, in and of themselves, they restrain trade or commerce or not. We have discovered that their tendency is evil; we have discovered that the end which is inevitably reached through these methods is an end which is destructive of fair commerce between the states. It is these considerations which, in my judgment, have made it wise, if not necessary, to supplement the antitrust law by additional legislation not in antagonism to the antitrust law, but in harmony with the antitrust law, to more effectively put into the industrial life to America the principle of the antitrust law, which is fair, reasonable competition, independence to the individual, and disassociation among the corporations. . . ."
"The committee gave careful consideration to the question as to whether it would attempt to define the many and variable unfair practices which prevail in commerce and to forbid their continuance, or whether it would, by a general declaration condemning unfair practices, leave it to the commission to determine what practices were unfair. It concluded that the latter course would be the better. . . ."
See also "Unfair Competition," by W. H. S. Stevens (University of Chicago Press, 1916) pp. 1, 2. For laws prohibiting specific acts of unfair competition, see "Trust Laws and Unfair Competition," (Federal) Bureau of Corporations (March 15, 1915) pp. 184, 199.
"In discussing the competitive methods of the company, it should be recognized that some practices which might be regarded with indifference if there were a number of competitors of substantially equal size and power may become objectionable when one competitor far outranks not only its nearest rival, but practically all rivals combined, as is true of the International Harvester Company so far as several of its most important lines are concerned."
The Australian Industries Preservation Act, 1908-1910, expressly declares that "unfair competition means competition which is unfair in the circumstances." "Trust Laws and Unfair Competition," (Federal) Bureau of Corporations (March 15, 1915) pp. 552, 747.
See "The Morals of Monopoly and Competition," by H.B. Reed (1916) pp. 120-122.
Report of the (Federal) Bureau of Corporations on the International Harvester Company (March 3, 1913), p. 308.
See "Unfair Methods of Competition and their Prevention" by W. H. S. Stevens, Annals, American Academy of Political and Social Science (1916) pp. 42, 43. "Trust Laws and Unfair Competition," (Federal) Bureau of Corporations (March 15, 1915), pp. 484-486, 493.
"Unfair Competition," by W. H. S. Stevens (1916) p. 54.
See "Trust Laws and Unfair Competition," (Federal) Bureau of Corporations (March 15, 1915), pp. 319-323, 328.

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French composer and organist Leon Boellmann's life wasn't long. He got his musical education in Paris school of music and religion. After leaving the school he worked as an organist in St. Vincent de Paul Cathedral in Paris and wrote some symphonies, other orchestral works and a lot of compositions for Organ, among which the most distinguished is Gothic Suite, created in 1895.
Gennady Banshchikov belongs to a number of St. Petersburg eminent composers of middle generation. He wrote three operas, ballet, four symphonies, choral cantatas, chamber compositions for different instruments, among which are three sonatas for bayan. Sonata No. 1 written in 1977 is dedicated to its first performer Oleg Sharov.
The greatest modern composer Sofia Gubaidulina was born in 1931 in the town of Chistopol situated near Kazan. She got her musical education in the Kazan and the Moscow Conservatoires as a pianist and a composer. Among a great number of S. Gubaidulina's works are «Schtimmen... ver schtummen...», «Hallelujah», «Ofertorium» symphonies, «Night in Memphis», «Rubayat» cantatas, works for different ensembles, solo instruments. She wrote «De profundis» (1978), specially for bayan, «The Seven Last Words» partita for bayan, cello and chamber orchestra (1982), Sonata in five parts «Et exspecto» (1986), «Silenzio» for bayan, violin and cello (1991).
«De profundis» is S. Gubaidulina's first work for bayan, dedicated to its first performer Friedrich Lips. The idea of the creation originated from the religious psalm «Out of the depth have I called Thee, O Lord».
Not only in every episode, but in the whole work from the beginning up to the end the listener can follow the musical texture direction from the low register up to the high one. As it is typical of S. Gubaidulina's works, pure lightened choral is opposed to cluster chords.
The depth of the conception and artistic depth have caused the appearance of this work among the most distinguished in chamber-instrumental music.
Piano cycle «Pictures at an Exhibition» was written by the great Russian composer Modest Mussorgsky in 1874 as a response to his closest friend, talented painter V. Hartman's death. At V. Stasov's initiative a posthumorous exhibition of the painter's sketches was organized. The composer was much impressed by them and reflected some in music, considerably enlarging and enriching their content. The ten parts of this cycle follow a small introductory piece «Promenade», which though a little changed also sounds among the separate movements of the cycle, uniting them into an artistic whole.
Friedrich Lips was born in 1948 in the Urals small miner town of Emanzhelinsk of the Chelyabinsk region. In 1967 he left the Magnitogorsk musical college (class of E. Kudinov), in 1972 graduated from the Gnessin Pedagogical Institute of Music in Moscow (prof. S. Kolobkov's class), up to 1974 was an assistant-probationer of the Institute. Friedrich Lips has been working at the Gnessin Pedagogical Institute as a pedagogue of Folk Instruments Department (in 1989 Lips became a professor). He is a laureate of International Competition in Klingenthal (GDR, 1969, the first prize), Merited Artist of RSFSR (1982). The artist toured such countries as France and Spain, Italy and Austria, the USA and Japan, Holland and Germany, Switzerland, Japan, Norway, Denmark and many others.
The artist performed with the best orchestras and famous conductors: G. Rozhdestvensky, O. Agarkov, D. Hoose (USA), Yu. Takakhashi (Japan), L. Plaff (France), V. Spivakov, T. Mynbaev, Yu. Nikolaevsky. He was the first to perform works of such composers as Evgeni Derbenko, Sofia Gubaidulina, V. Zolotarev, K. Volkov, A. Zhurbin, V. Podgorny, V. Belyaev and others, which were dedicated to him.
He is the author of «The Bayan Performance Art» work («Musyka» Publishing House, 1985), which was translated into German and edited in «Intermusik Schmulling». To his pen belong a number of articles on bayan performance art theory, a great deal of organ and piano works transcriptions for bayan. He is an initiator and compiler of Bayan Literature Anthology as well as of a number of series of concert repertoire for this instrument.
Friedrich Lips has educated a whole galaxy of bayanists, winners of All-Russian and International competitions, first class musicians. Among them are V. Muntyan, V. Dolgopolov, S. Naiko, P. Gerter, A. Kovtun, E. Seit-Abdulov, I. Kurtev, Yu. Prokhorov, A. Chernikov, I. Yarosh, Yu. Kalashnikov, V. Dubovik, V. Chugunov, pupils from other countries: M. Bonnay, K. Bonnay, J.L. Manca (France), B. Bjelic, S. Voljavec, S. Cvetic (Yugoslavia) and others.
One can see F. Lips as a member of juries at bayanists competitions, he leads and takes part in international seminars and pedagogical courses in Norway, Denmark, Poland, France.

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Q: What were the facts in New York v. United States?
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Recall that in Heritage then-Justice Gonzalez, joined by then-Justice Abbott, took the majority to task for ignoring the express language of the leases there in question: “[T]here shall be no deductions from the value of Lessor’s royalty by reason of any required processing, cost of dehydration, compression, transportation or other matter to market such gas.” Heritage Res. v. NationsBank, 939 S.W.2d 118, 120-21 (Tex. 1996). The Dissent notes: “What could be more clear?”…. “Under basic rules of contract interpretation, this Court must give effect to the written expression of the parties’ intent.” Heritage, 939 S.W.2d at 132 (explaining that when leases are unambiguous, the Court “errs by ignoring the clear intent of the parties”).
Even if the leases were ambiguous—a possibility raised by the differing interpretations of the same language by the trial court, court of appeals, “majority” and concurrence—the basic rules of contract interpretation construing the lease against the lessee results in the “no deducts” clause prevailing. Finally, the Dissent notes that the Court was for the first time interpreting the phrase “market value at the well,” and doing so by substituting its own interpretation “for the meaning the parties intended.” Id. at 133.
The Amicus Brief is even more direct, and takes on another issue injected by two recently decided Fifth Circuit cases authored by Justice Owen, essentially adopting her concurrence from Heritage. That issue: is Heritage even binding precedent? The Gonzalez Brief describes the point, as made in his dissent on motion for rehearing in Heritage: Justices Cornyn, Spector and Abbott joined him in voting to grant re-hearing in Heritage. Justice Enoch had recused himself, and Justice Phillips as switched his vote to the concurrence, leaving only Justice Baker as the “lone remaining supporter of his original majority opinion.” Heritage Res. v. NationsBank, 690 S.W.2d 619, 620 (Tex. 1997). This left the Court equally divided. “Because we are without a majority agreement on the reasons supporting the judgment…the judgment itself has very limited precedential value and controls only this case.” Id. (citations omitted).
The lessors contend that the district court erred by relying on Heritage, asserting that the case has limited precedential value. They note that after the opinion in Heritage issued, one of the Justices who had joined the majority opinion recused himself. The other members of the Supreme Court of Texas split 4–4 in ruling on a motion for rehearing. An opinion dissenting from the denial of rehearing reflects that two of the Justices who had originally joined the majority opinion had changed position and had expressed their agreement with the original dissenting opinion. The lessors argue that the Texas court was thus without a majority that agreed on the reasons supporting the judgment in Heritage.Because rehearing was denied, the court's opinion in Heritage was not withdrawn. The Texas court's decision in Heritage remains binding law, as the numerous cases from both the Supreme Court of Texas and this court citing that decision demonstrate.
Potts v. Chesapeake Exploration, LLC, 760 F.3d 470, 473 (5th Cir. 2014) (emphasis added, footnote omitted). But even a cursory comparison of Judge Owen’s citations (in footnote 23) for the proposition that Heritage is valid binding precedent, to Justice Gonzales’ citations that it is not, shows his cases are actually on point, while hers are not.
Another striking aspect of the Gonzalez Brief is the marshalling of the numerous examples of the abuses of the “net-back-to get-to-market-value” approach Heritage was seen to license, at least as done by Chesapeake. Several producers now sell gas at the wellhead to affiliate companies. While this might perhaps theoretically be done in a way that doesn’t harm the royalty owner, in practice the lack of arms’ length negotiation of wellhead price has apparently fostered a plethora of abuses on the deduction side. Even then-Justice, now Judge, Owen’s repeated statement that those deductions must be “reasonable” has not slowed down the abuses of the post-production deduction regime.
The focus on the oral argument was the nature of an ORRI. Counsel for Chesapeake argued that, unlike other royalty interests, an ORRI is not free of production costs because it is carved out of the working interest, which must pay for producing the minerals from the land. Counsel for Chesapeake then stated that because the language of the lease stated that the overriding royalty shall be “cost-free,” the parties intended the ORRI to be free of production costs. Counsel stated that the Heritage disclaimer did not apply to the ORRI because the disclaimer was only included in the royalty clause and it modified the list of post-production costs that were excluded from the Hyder’s royalty. See Chesapeake Exploration, L.L.C. v. Hyder, 427 S.W.3d 472, 479 (Tex. App.—San Antonio 2014, pet. granted) (the disclaimer provides that “. . . the holding in the case of Heritage Resources, Inc. v. NationsBank . . . shall have no application to the terms and provisions of [the Hyder lease].”). Therefore, Counsel or Chesapeake argued that the ORRI was free of post-production costs but subject to post-production costs.
This argument is quite strange because a royalty, by definition, is free from post-production costs, but subject to post-production costs. Even Heritage opinion stated that a royalty interest was free of production costs but subject to post-production costs. See Heritage, 939 S.W.2d at 121-22 (“Royalty is commonly defined as the landowner's share of production, free of expenses of production. . . . Although it is not subject to the costs of production, royalty is usually subject to post-production costs . . .”). Pursuant to Texas law, an ORRI is not a carried working interest and is not chargeable with production costs. See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 180 n. 1 (Tex. 2012); see also Alamo Nat'l Bank of San Antonio v. Hurd, 485 S.W.2d 335, 339 (Tex. App.—San Antonio 1972, writ ref'd n.r.e.) (“The term ‘overriding royalty’ as used in an oil and gas lease means a given percentage of the production carved from the working interest, but by agreement, not chargeable with any of the expenses of operation.”).
The parties failed to mention that the ORRI was “cost-free” except for severance taxes. See Hyder, 427 S.W.3d at 478 (“. . . cost-free (except only its portion of production taxes) overriding royalty . . .”). These severance taxes are normally charged to the working interest owner once it produces oil, gas or other minerals from the beneath the surface of the land. The express allowance of severance taxes in the oil and gas lease would seem to negate other post-production deductions from the Hyder’s royalty.

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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.
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 government's appeal. We adopt section II(A) of the panel opinion, which affirms Ogles' conviction on Count One. United States v. Ogles, 406 F.3d 586 (9th Cir.), reh'g en banc granted, 430 F.3d 1221 (9th Cir. 2005). As to Count Two, we hold that the judgment of acquittal represented a ruling that the evidence was "`legally insufficient to sustain a conviction.'" Smith v. Massachusetts, 543 U.S. 462, 125 S. Ct. 1129, 1135, 160 L. Ed. 2d 914 (2005) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977)). Consequently, the government's appeal is barred by the Double Jeopardy Clause.
Ogles, a California resident, held a federal firearms license that listed his place of business, "Belleau Wood Gunsmithing & Firearms," as located in California. In June 2002, at a gun show in Arizona, Ogles sold a firearm to Michael Buda, an Arizona resident. Ogles was indicted on two counts. Count One of the indictment charged Ogles with "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 §§ 922(b) (3) and 924(a) (1) (D). Section 922(b) (3) provides that " [i]t shall be unlawful for any . . . licensed dealer . . . to sell or deliver . . . any firearm to any 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."
Count Two of the indictment charged Ogles with "willfully engag [ing] in the business of dealing firearms without a license, that is outside the State in which the licensee's place of business was located," in violation of §§ 922(a) (1) (A) and 924(a) (1) (D) (emphasis added). Curiously, the indictment included a locality requirement, which the text of the statute does not. Section 922(a) (1) (A) provides only that " [i]t shall be unlawful — for any person — except a . . . licensed dealer  to engage in the business of . . . dealing in firearms." (Emphasis added). Section 924(a) (1) (D) provides that whoever "willfully violates" these provisions shall be fined, imprisoned up to five years, or both.
At trial, the government introduced evidence regarding Ogles' conduct at the gun show, including testimony from Buda that he did not fill out any paperwork for his purchase and that Ogles handed over the firearm at the gun show after seeing Buda's Arizona driver's license. Two witnesses, both licensed to sell firearms in Arizona, testified that they informed Ogles that he could not physically transfer firearms to purchasers at the Arizona gun show.
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 he engaged in his 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.
The jury convicted Ogles on Count One, after which the district court denied the Rule 29(a) motion as to that count as well as Ogles' motion for a new trial. Ogles was sentenced to twenty-four months of supervised probation, three months of home confinement, and a $100 special assessment.
Our primary concern is the government's appeal of the judgment of acquittal as to Count Two. We diverge, however, from our main inquiry to address certain representations made by the government for the first time during oral argument before the en banc panel. Solely on the basis of those statements the dissent concludes that Ogles' conviction on Count One "is plainly and simply a `wrongful conviction.'" Dissent at p. 2504 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935)). We disagree.
During oral argument, the government suggested for the first time that a defendant cannot be convicted under both § 922(b) (3) and § 922(a) (1) (A) — i.e., as a licensed and unlicensed dealer — with regard to the same conduct. The government stated that when the case was charged and indicted, it believed Ogles was appropriately charged with both counts. Although the government claimed that it re-evaluated its position in light of the three-judge panel opinion, it continued to press its original position as late as the filing of its response to the petition for rehearing en banc.
The government's current position is unclear. On the one hand, the government advised that Ogles' conduct is best understood as "unlicensed" and thus falls under § 922(a) (1) (A) (Count Two), on which he was acquitted, rather than under § 922(b) (3) (Count One), on which he was convicted. At the same time, the government represented that it would concede the invalidity of the § 922(b) (3) conviction only if we conclude that double jeopardy does not bar the government's appeal, and if we agree with the government's legal theory as to the merits of § 922(a) (1) (A) and remand the acquitted Count Two for a new trial. Although the dissent interprets these representations as a "concession" — which we must accept — that the § 922(b) (3) conviction is invalid, Dissent at p. 1108, to take that position is to fall into one of two traps.
One trap is to read a non-concession as a concession. When a party says that it would concede a point but only if we already agreed with that party's position, the party has made no concession at all. This logic may be more distasteful when applied to government counsel, but the logic still remains.
The other trap is, in effect, to allow ourselves to be "bound by the government's statement of the law." Dissent at p. 1107. We are not bound by a party's concession as to the meaning of the law, even if that party is the government and even in the context of a criminal case. See United States v. Miller, 822 F.2d 828, 832 (9th Cir. 1987) ("Even if a concession is made by the government, we are not bound by the government's erroneous view of the law." (internal quotation marks omitted)).
The district court properly understood the statute. See Caldwell, 49 F.3d at 252 (holding that a gun dealer's license under 18 U.S.C. § 922(a) (1) (A) is not location-specific). In this respect, we agree with Judge Rymer's dissent in the three-judge panel opinion concerning the meaning of 18 U.S.C. § 922. Ogles, 406 F.3d at 598-600 (Rymer, J., dissenting). If the government believes that additional conduct should be penalized, then its remedy lies with Congress, not with the courts.
For these reasons, we decline to entertain the government's newly minted argument and the convoluted conditions attached to it, which were raised for the first time during en banc proceedings. We also note that Ogles did not appeal his conviction on Count One on the basis of a statutory mismatch. We adopt section II(A) of the panel opinion, Ogles, 406 F.3d at 589-93, and affirm Ogles' conviction on Count One.
The question we address as to Count Two is whether the government may appeal the district court's judgment of acquittal under Rule 29(a).1 The answer to this question lies at the intersection of the federal statute governing appeals by the United States, 18 U.S.C. § 3731, and the Double Jeopardy Clause. Section 3731 provides that the United States may appeal a "judgment . . . of a district court dismissing an indictment . . . except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." The Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. Amend. V.
Our cases have made a single exception to the principle that acquittal by judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty.
Smith, 125 S. Ct. at 1134; see also id. at 1133 (" [W]e have long held that the Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict. This is so whether the judge's ruling of acquittal comes in a bench trial or, as here, in a trial by jury." (citations omitted)).
The district court's judgment of acquittal which was entered at the close of the prosecution's case falls squarely within the Supreme Court's directive that a court-directed acquittal "could not be reviewed, on error or otherwise," without violating the Double Jeopardy Clause. Despite the clarity of the Court's language, the government argues that the acquittal here is not a "genuine acquittal" because it was based on the district court's construction of § 922(a) (1) (A), a legal conclusion unrelated to Ogles' factual guilt or innocence. Additionally, the government suggests the district court's failure to recite the applicable legal standard for an acquittal is further evidence that it is not a true acquittal.
To understand why the government's arguments cannot be squared with the Supreme Court's teachings, it is useful to survey a handful of key cases, beginning with Martin Linen in 1977, that establish the contours of the government's right to appeal a court-directed judgment of acquittal. These cases underscore that the decisive question has been, and continues to be, whether the district court found the evidence legally insufficient to sustain a conviction.
In Martin Linen, after a "hopelessly deadlocked" jury was discharged, the district court entered judgments of acquittal under Rule 29(c).2 The Court noted that, even if the "acquittal was based upon an egregiously erroneous foundation, . . . [n]evertheless, ` [t]he verdict of acquittal was final, and could not be reviewed . . . without putting [the defendants] twice in jeopardy, and thereby violating the Constitution.'" Martin Linen, 430 U.S. at 571, 97 S. Ct. 1349 (emphasis added) (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 7 L. Ed. 2d 629 (1962) (per curiam)). In addition, the Court explained that "what constitutes an 'acquittal' is not to be controlled by the form of the judge's action. Rather, [it] must [be] determine [d] whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." Id. (citations and footnote omitted) (emphasis added). The judgments of acquittal under Rule 29(c) were, according to the Court, "`acquittals' in substance as well as form . . . [because] the District Court . . . evaluated the Government's evidence and determined that it was legally insufficient to sustain a conviction." Id. at 571-72, 97 S. Ct. 1349.
[I]f the judge orders entry of judgment of acquittal on his own or on defendant's motion prior to submission of the case to the jury, as he may under Rule 29(a), or after submission but prior to the jury's return of a verdict, as authorized by Rule 29(b) — and the jury thereafter is discharged — the Government's argument necessarily concedes that the Double Jeopardy Clause would preclude both appeal and retrial.
Id. at 574, 97 S. Ct. 1349. Indeed, far from "weakening the trial court's binding authority for purposes of double jeopardy," the timing distinctions in Rule 29 were designed to "accord  the federal trial judge greater flexibility in timing his judgment of acquittal." Id. at 573, 97 S. Ct. 1349. Emphasizing the sanctity and finality of acquittals under Rule 29, the Court concluded "that judgments under Rule 29 are to be treated uniformly and, accordingly, the Double Jeopardy Clause bars appeal from an acquittal entered under Rule 29(c) after a jury mistrial no less than under Rule 29(a) or (b)." Id. at 575, 97 S. Ct. 1349.
One year after Martin Linen, the Supreme Court weighed in again on the double jeopardy issue in United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978), a case that figures prominently in the 2495 government's brief. Scott concerned a defendant who successfully obtained dismissal of the indictment "based upon a claim of preindictment delay and not on the court's conclusion that the Government had not produced sufficient evidence to establish the guilt of the defendant." Id. at 95, 98 S. Ct. 2187. Scott moved for dismissal before trial and twice during trial on the ground that his defense had been prejudiced by the delay. The Court determined that the government's appeal was not barred because the defendant "deliberately cho [se] to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense." Id. at 98-99, 98 S. Ct. 2187.
A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.
Id. at 91, 98 S. Ct. 2187. Leaving no doubt of its position, the Court emphasized that "the law attaches particular significance to an acquittal . . . however mistaken the acquittal may have been." Id.
To clarify the distinction between acquittals and other midtrial dismissals, Scott invoked the definition of acquittal established in Martin Linen: "`the ruling . . . actually represents a resolution . . . of some or all of the factual elements of the offense charged.'" Scott, 437 U.S. at 97, 98 S. Ct. 2187 (quoting Martin Linen, 430 U.S. at 571, 97 S. Ct. 1349). Thus, " [w]here 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.'" Scott, 437 U.S. at 97, 98 S. Ct. 2187 (quoting Martin Linen, 430 U.S. at 572, 97 S. Ct. 1349).3 Although the government mistakenly cites this passage to support a more restrictive definition of "acquittal," the Court's subsequent decision in Smalis v. Pennsylvania, 476 U.S. 140, 106 S. Ct. 1745, 90 L. Ed. 2d 116 (1986), reinforces the limited application of Scott — i.e., to situations where a defendant seeks dismissal for reasons unrelated to factual guilt or innocence. Thus, Scott should be read as creating a narrow exception to the most fundamental rule in double jeopardy jurisprudence.
"In deciding whether to grant a demurrer, the court does not determine whether or not the defendant is guilty on such evidence, but determines whether the evidence, if credited by the jury, is legally sufficient to warrant the conclusion that the defendant is guilty beyond a reasonable doubt. . . . [T]he question before the trial judge in ruling on a demurrer remains purely one of law."
Smalis, 476 U.S. at 143, 106 S. Ct. 1745 (emphasis added) (quoting Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394, 401 (1985)).
The Pennsylvania Supreme Court's conclusion, namely that the trial court was making a legal determination rather than a determination of guilt or innocence, has a familiar ring as it echoes the government's position here. But the Supreme Court rejected that rationale and position because " [w]hat the demurring defendant seeks is a ruling that as a matter of law the State's evidence is insufficient to establish his factual guilt." Id. at 144, 106 S. Ct. 1745. Noting that its past decisions firmly established that such a ruling is an acquittal for double jeopardy purposes, the Court clarified that "Scott does not overturn these precedents; indeed, it plainly indicates that the category of acquittals includes `judgment [s] . . . by the court that the evidence is insufficient to convict.'" Id. (alteration in original) (quoting Scott, 437 U.S. at 91, 98 S. Ct. 2187). Just last term, in Smith v. Massachusetts, the Supreme Court revisited the question of what constitutes an acquittal for double jeopardy purposes. The defendant successfully moved for an order entering "a finding of not guilty" at the conclusion of the prosecution's case under Massachusetts Rule of Criminal Procedure 25(a), which is analogous to a Rule 29 motion. Smith, 125 S. Ct. at 1135 (noting that "Massachusetts patterned its Rule 25 on Federal Rule 29"). Although the Commonwealth characterized the grant of such a motion as "a purely legal determination," id. at 1134, the Court once again rejected this argument, concluding that "what matters is that, as the Massachusetts rules authorize, the judge `evaluated the [Commonwealth's] evidence and determined that it was legally insufficient to sustain a conviction,'" id. at 1135 (alteration in original) (quoting Martin Linen, 430 U.S. at 572, 97 S. Ct. 1349).
Here, the government similarly contends that the district court's ruling is a purely legal determination unrelated to factual guilt or innocence and is not, therefore, a genuine acquittal. Specifically, the government argues that the district court's decision rested solely on its resolution of a statutory construction issue — that the term "licensed dealer" in § 922(a) (1) (A) is not location-specific.
As the Supreme Court's unbroken line of decisions makes abundantly clear, the determinative question is whether the district court found the evidence legally insufficient to sustain a conviction. Without a doubt, the district court did so. In deciding the Rule 29(a) motion, the district court adopted the Sixth Circuit's interpretation of § 922(a) (1) (A) in Caldwell and concluded that the term "licensed dealer" does not have a geographic component. After adopting this interpretation, the district court determined that a factual element of the offense — namely, that Ogles was dealing firearms without a license at the time of the challenged conduct — had not been proven. Notably, the district court stated: "The Court finds . . . that the defendant was a licensed dealer under the statute at the time the transaction took place. Therefore, the judgment of acquittal is appropriate as to Count [Two] of the indictment." The judgment here was an acquittal in substance as well as form — a determination that the evidence was insufficient to convict. Whether this determination was ultimately correct or "egregiously erroneous" is not relevant in evaluating double jeopardy. Martin Linen, 430 U.S. at 571, 97 S. Ct. 1349.
The government suggests that because Ogles did not contest his licensed status, the district court's ruling did not meet the Supreme Court's definition of acquittal — that "whatever its label, [it] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." Id. The Court's double jeopardy decisions do not, however, condition an acquittal under Rule 29(a) on the district court's examination of contested facts. Here, the district court determined that a factual element of the offense had not been proved by the government. What is this if not a "resolution"?
Nor do we credit the government's argument that the acquittal is somehow flawed by the absence of recitation of the legal standard. That the district court did not recite the text of Rule 29(a) or employ a specific phrase, such as "evidentiary insufficiency," is not determinative. As Smith makes clear, "what matters is that, as [Rule 29] authorize [s], the judge evaluated the [government's] evidence and determined that is was legally insufficient to sustain a conviction." 125 S. Ct. at 1135 (internal quotations omitted). We conclude the district court did exactly that and, therefore, the Double Jeopardy Clause bars the government's appeal.
AFFIRMED as to Count One. APPEAL DISMISSED as to Count Two.
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 the government, Ogles could not have been guilty of both offenses.
At the conclusion of the government's case-in-chief, Ogles moved for a judgment of acquittal as to both counts. The district court granted the motion as to the § 922(a) (1) (A) count, the count applicable to unlicensed dealers, but reserved decision as to the other count. The jury ultimately convicted Ogles under § 922(b) (3), the count that covered licensed dealers. Both parties filed appeals: Ogles appealed his conviction for violating § 922(b) (3) and the government appealed his acquittal with respect to § 922(a) (1) (A). As to the latter, my colleagues have correctly concluded that the appeal of the district court's judgment of acquittal is barred by the Double Jeopardy Clause. I fully join in that part of Judge McKeown's opinion for the court. Given the extraordinary behavior of the government in this case, however, I disagree with the court's affirmance of Ogles's conviction on Count One, and therefore dissent as to that portion of the court's opinion.
Having sought convictions on two directly inconsistent charges in the district court, when it came time for oral argument before this en banc court, the government finally recognized the legal absurdity of its position and abandoned its effort to convict Ogles on both counts. Contrary to the majority opinion's characterization, the government's position is not "unclear." Majority at 1099. Belatedly, but without any evident embarrassment, the government stated unequivocally that it had reevaluated its position and acknowledged that Ogles could not "be convicted as both a licensed and unlicensed person with regard to the same transaction and at the same time."1 Also, it recognized that it would have to decide whether Ogles was licensed or unlicensed when he sold the firearm. So far, so good. The government then told us that Ogles was "best understood as having acted in an unlicensed capacity" and that, regarding the applicable provisions of § 922, " [i]t's one, but not both, and we believe the proper one is (a) (1) (A) — it's not (b) (3)." Put plainly, the government acknowledged that Ogles should not have been convicted under § 922(b) (3) and that his conviction on that count was unlawful. Later in the oral argument, the government stated expressly that under its construction of the statute, "the (b) (3) conviction [wa]s invalid."2 Still, all to the good. Then, however, losing sight of fundamental legal and ethical principles, the government attempted to condition its concession on our agreeing with its interpretation of the law and thereby sought to preserve the possibility of sustaining a conviction that it believed to be without legal foundation. The judicial shell game the government has played with the court in this case is, in my view, wholly inappropriate and entirely unacceptable.
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
The legal position that the government took before this en banc court — that Ogles did not commit the offense of which he was convicted — was not one that was simply "newly minted," Majority at 1099, by the attorney assigned to argue the en banc appeal. Counsel for the government advised us at oral argument that he had conferred with his supervisors within the Appellate Section of the Criminal Division of the Department of Justice, who agreed with the view of the statute he presented at oral argument, as did the Bureau of Alcohol, Tobacco, Firearms and Explosives. It was, indeed, well and fully considered by the United States government. To disregard the government's representation as to the meaning of the statute because its position was "newly minted," is to repudiate Justice Sutherland's mandate and to do a disservice to the cause of justice. The government is obligated to present the law fairly and accurately regardless of when it discovers its meaning: as soon as it discovers an error, the government has a duty to inform the court. To do otherwise, and particularly to argue its erroneous "oldly minted" position, would clearly have been improper.
The government will undoubtedly present other cases in the future under one or the other of the two sections with which Ogles was charged, and may indeed be doing so in other courts at this very moment. Surely, it cannot properly seek to obtain an affirmance of a conviction in this court on the theory that one section of the statute controls while simultaneously seeking convictions in others on the theory that the other wholly inconsistent section is applicable. Rather, the government must take the same position as to the meaning of the statute in all the cases it urges. For consistency, if for no other reason, the government was required to advise us that Ogles's conduct did not violate § 922(b) (3).
In short, the government was required to tell us, as it did, that Ogles was not guilty of the offense of which he was convicted. It was not, however, entitled to attempt to qualify that concession by making it dependent on our issuance of a decision accepting its view of the law. Nor, having made the representation, was it proper for it to ask us to affirm a conviction that it believed to be "wrongful."
In my opinion, this court may not properly affirm Ogles's conviction in light of the government's concession.6 Once the government has conceded that Ogles's conduct is not encompassed within § 922(b) (3), it is our obligation to vacate the conviction on the relevant count. To affirm a "wrongful conviction" because the government failed to obtain a favorable verdict on the charge of which it believes the defendant was guilty is to reward it with an unconstitutional consolation prize for its incompetence. To do so is also to condone the government's unethical efforts to manipulate this court's exercise of its decisionmaking authority. That is hardly proper conduct on the part of a federal court. For that reason, I must regretfully dissent.
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.
Rule 29(a) provides in pertinent part that, " [a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction."
Although Martin Linen involved judgments of acquittal under Rule 29(c) and not under Rule 29(a), the discussion of the Double Jeopardy Clause and Rule 29 generally serves as a helpful backdrop to our case. Rule 29(c) provides in pertinent part that a motion for judgment of acquittal may be made within 7 days after the jury is discharged, and "the court may enter a judgment of acquittal."
Interestingly, in Sanabria v. United States, a companion case decided the same day as Scott, the Court appears to place at least some weight on the form of the trial court's order: "While form is not to be exalted over substance in determining the double jeopardy consequences of a ruling terminating a prosecution, neither is it appropriate entirely to ignore the form of an order entered by the trial court." 437 U.S. 54, 66, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978) (citations omitted). Sanabria also is significant because even though the trial court's dismissal of the indictment rested on an erroneous evidentiary ruling — a legal judgment — the Court held that "the Double Jeopardy Clause absolutely bars a second trial in such circumstances." Id. at 78, 98 S. Ct. 2170.
With regard to the inconsistent charges, the government admitted that "to the extent [we were] charging theories here that would require a conclusion of licensed and unlicensed, that cannot be correct."
The analysis of the statute that the majority opinion presents in a blatant attempt to justify its refusal to vacate the conviction,see Majority at 1099, is therefore wholly improper. We need not and should not reach the statutory interpretation issue in this case.
The majority opinion errs in characterizing the government's admission merely as a "distasteful" "non-concession." Majority at 1099. Although I agree that we may not entertain conditional concessions, what the government has done in this case is not just a matter of bad "taste." The government is not an ordinary litigator. Because its duty in a criminal case is to seek justice, it may not admit in open court that it believes a conviction to be unlawful and then continue to pursue the affirmance of that conviction. As discussed infra, I am not suggesting that we must or should adopt the government's interpretation of the law. Instead, I suggest that we have a duty not to adopt any position with respect to the meaning of the statute but simply to order vacatur of the conviction. I believe that what we must do is to recognize that the government's well-established duty to "refrain from improper methods calculated to produce a wrongful conviction," see id., prevents it from prosecuting this appeal any further and that it is our duty as judicial officers to proceed no further with that part of the appeal.
The Supreme Court has held, on several occasions, that when the Solicitor General concedes that a conviction is invalid, it is appropriate to vacate the conviction See, e.g., Lawrence v. Chater, 516 U.S. 163, 165-66, 116 S. Ct. 604, 133 L. Ed. 2d 545 (1996); Alvarado v. United States, 497 U.S. 543, 544-45, 110 S. Ct. 2995, 111 L. Ed. 2d 439 (1990); Mariscal v. United States, 449 U.S. 405, 405-06, 101 S. Ct. 909, 66 L. Ed. 2d 616 (1981). Of course, its role is different than ours and it ordinarily grants a writ of certiorari, vacates and returns the case to the lower courts for the requisite action.