In Burkett v. State, 518 So.2d 1363 (Fla. 1st DCA 1988) footnote 12 the court stated:
United States v. Tallmadge, 829 F.2d 767 (9th Cir.1987) (under the doctrine of entrapment by estoppel, a defendant who was told by a federally licensed firearms dealer that he could purchase firearms despite his prior conviction of felonious possession of a machine gun after the charge had been reduced to a misdemeanor could not be prosecuted for the federal firearms offense).
United States v. Tallmadge, 829 F.2d 767 (9th Cir.1987)
The concept of unintentional entrapment by an official who mistakenly misleads a person into a violation of the law was first applied by the Supreme Court in Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). In Raley, the appellants were convicted of contempt for refusing to answer questions about Communist or subversive activities at sessions of the Unamerican Activities Commission of the State of Ohio. Id. at 424, 79 S.Ct. at 1259. The appellants had claimed their privilege against self-incrimination after they were informed by the Commission Chairman that they had a right to do so under article I, section 10 of the Ohio Constitution. Id. at 425, 79 S.Ct. at 1259. The Commission's advice was contrary to Ohio law. Id. at 438-39, 79 S.Ct. at 1266-67. An Ohio immunity statute deprived them of the protection of the privilege against self-incrimination. Id. The Supreme Court reversed the convictions. The Court expressed its holding in the following language:
We hold that in the circumstances of these cases, the judgments of the Ohio Supreme Court affirming the convictions violated the Due Process Clause of the Fourteenth Amendment and must be reversed, except as to one conviction, as to which we are equally divided. After the Commission, speaking for the State, acted as it did, to sustain the Ohio Supreme Court's judgment would be to sanction an indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State had clearly told him was available to him.
Raley, 360 U.S. at 425-26, 79 S.Ct. at 1260.
In Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the Supreme Court applied Raley in reversing the conviction of persons who were arrested for picketing across the street from a courthouse. Id. at 571, 85 S.Ct. at 484. The defendants were given permission to hold their demonstration on the west side of the street by the Chief of Police. Id. at 569-70, 85 S.Ct. at 483. Some time thereafter the demonstrators were ordered to disperse by the Sheriff. Id. at 570, 85 S.Ct. at 483. They were arrested for refusing to obey the dispersal order. The court concluded that at the time of his arrest, Cox was "justified in his continued belief that because of the original grant of permission he had a right to stay where he was for the few additional minutes required to conclude the meeting." Id. at 572, 85 S.Ct. at 485. The Court in Raley held that "[t]he Due Process Clause does not permit convictions to be obtained under such circumstances." Id. at 571, 85 S.Ct. at 484.
More recently, in United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973), the Supreme Court, relying on Raley and Cox, held that it was error to deny a corporate defendant the right to present evidence that it had been affirmatively misled by the responsible administrative agency into believing that the law did not apply in this situation. Id. at 670-75, 93 S.Ct. at 1814-17.
In 1972, we applied the defense of official misleading to the conduct of a local draft board in United States v. Timmins, 464 F.2d 385, 386-87 (9th Cir.1972). We held in Timmins that the defendant must show that he relied on the false information and that his reliance was reasonable. Id. at 387; see also United States v. Lansing, 424 F.2d 225, 227 (9th Cir.1970) (to establish the defense of official misleading, the defendant must establish "that his reliance on the misleading information was reasonable — in the sense that a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries")…
The Department of the Treasury requires a licensed firearms dealer and a prospective buyer to fill out a form entitled Firearms Transaction Record to permit the licensee to determine if he may lawfully sell a firearm to such person. The form also requires the firearms dealer "to alert the transferee [buyer] of certain restrictions on the receipt and possession of arms." The form further provides that "[t]he transferor [seller] of the firearm is responsible for determining the lawfulness of the transaction...." To fulfill this duty the form provides that the firearms dealer "should be familiar with the Gun Control Act of 1968 (18 U.S.C. Chapter 44) and Title VII, Unlawful Possession or Receipt of Firearms, (82 Stat. 197), and 27 CFR Part 178 (Commerce in Firearms and Ammunition)."
Thus, Congress has not only granted certain persons the exclusive right to engage in the business of selling firearms, it has also given them the affirmative duty of inquiring of a prospective buyer whether he has a criminal record that would make it unlawful for him to purchase a firearm. 18 U.S.C. § 922(d)(1). In addition, the Treasury Department requires licensees to inform buyers concerning the restrictions imposed by Congress on the purchase of firearms. Clearly, the United States Government has made licensed firearms dealers federal agents in connection with the gathering and dispensing of information on the purchase of firearms. Under these circumstances, we believe that a buyer has the right to rely on the representations of a licensed firearms dealer, who has been made aware of all the relevant historical facts, that a person may receive and possess a weapon if his felony conviction has been reduced to a misdemeanor. See Sherman v. United States, 356 U.S. 369, 373-75, 78 S.Ct. 819, 821-22, 2 L.Ed.2d 848 (1958) (entrapment activities of an unpaid informer cannot be disowned by the government).
