                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                   No. 07-3325
                                   ___________

United States of America,              *
                                       *
            Plaintiff – Appellee,      *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Western District of Missouri.
Robert Hullette,                       *
                                       * [PUBLISHED]
            Defendant – Appellant.     *
                                  ___________

                             Submitted: April 17, 2008
                                Filed: May 1, 2008
                                 ___________

Before MURPHY, COLLOTON, and SHEPHERD Circuit Judges.
                          ___________

PER CURIAM.

       Appellant Robert Hullette pled guilty to possession of firearms by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced to
eighteen months in prison. He appeals, arguing that the district court1 erred by
granting the government's motion in limine to preclude the defense of entrapment by
estoppel. We review de novo a denial of the entrapment by estoppel defense. United
States v. Benning, 248 F.3d 772, 775 (8th Cir. 2001).



      1
       The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
       The defense of entrapment by estoppel applies only "when an official assures
a defendant that certain conduct is legal, and the defendant reasonably relies on that
advice and continues or initiates the conduct." United States v. Achter, 52 F.3d 753,
755 (8th Cir. 1995) (citations omitted). The government official must have committed
affirmative misconduct before the defense is available. Benning, 248 F.3d at 775.
The argument that a federally licensed firearms dealer is a government official whose
representations give rise to an entrapment by estoppel defense has been foreclosed by
prior judicial decisions. United States v. Austin, 915 F.2d 363, 366–67 (8th Cir.
1990) ("Despite the affirmative duty Congress has imposed upon federally licensed
firearms dealers to enforce federal firearms laws at the point of sale, we cannot agree
that this role, or their federal license to sell firearms, is sufficient to transform them
into government officials, at least for purposes of the entrapment by estoppel
defense.") (internal citations omitted), cert. denied 499 U.S. 977 (1991); see also
United States v. Hardridge, 379 F.3d 1188, 1194 (10th Cir. 2004) ("To allow
representations by firearms dealers to estop the government from prosecuting
violations of the firearms law would be to give private individuals what amounts to
a veto over enforcement of the criminal law.").

       Moreover, even if Hullette were correct that a federally licensed firearms dealer
was a government agent conveying a governmental statement, a report generated from
the National Instant Criminal Background Check System (NICS) permitting the dealer
to "proceed" with a firearms sale is not the type of statement giving rise to the
entrapment by estoppel defense. The NICS signal to proceed would at most indicate
that Hullette's felony conviction was not listed in the federal database.

       Accordingly, the district court did not err in granting the government's motion
in limine. We affirm the judgment.

                        _______________________________



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