United States v. Cox

• Citation: 906 F.3d 1170
• Decision Date: 16 October 2018
• Docket Number: No. 17-3034, No. 17-3035,17-3034
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Shane COX, Defendant - Appellant. State of Kansas, Intervenor - Appellant. United States of America, Plaintiff - Appellee, v. Jeremy Kettler, Defendant - Appellant. State of Kansas, Intervenor - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

906 F.3d 1170

UNITED STATES of America, Plaintiff - Appellee,
v.
Shane COX, Defendant - Appellant.

State of Kansas, Intervenor - Appellant.

United States of America, Plaintiff - Appellee,
v.
Jeremy Kettler, Defendant - Appellant.

State of Kansas, Intervenor - Appellant.

No. 17-3034
No. 17-3035

United States Court of Appeals, Tenth Circuit.

FILED October 16, 2018

Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with her on the briefs), Topeka, Kansas, for Defendant–Appellant Shane Cox.

Joseph W. Miller of Law Offices of Joseph Miller, LLC, Fairbanks, Alaska (Robert J. Olson, William J. Olson, Jeremiah L. Morgan, Herbert W. Titus of William J. Olson, P.C., Vienna, Virginia, with him on the briefs) for Defendant–Appellant Jeremy Kettler.

Derek Schmidt, Attorney General of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Toby Crouse, Solicitor General of Kansas, Dwight R. Carswell and Bryan C. Clark, Assistant Solicitors General, Topeka, Kansas, for Intervenor–Appellant.

Elizabeth H. Danello, Attorney, Appellate Section, Criminal Division, Department of Justice, Washington, D.C. (Stephen R. McAllister, United States Attorney, District of Kansas, Jared S. Maag, Assistant United States Attorney, District of Kansas, Kenneth A. Blanco, Acting Assistant Attorney General, and Trevor N. McFadden, Deputy Assistant Attorney General, Department of Justice, Washington, D.C., with her on the brief) for Plaintiff–Appellee.

Before HARTZ, SEYMOUR, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

This is a tale of two laws: the National Firearms Act (NFA), 26 U.S.C. §§ 5801 – 5872, which requires the registration of statutorily defined firearms, and Kansas’s Second Amendment Protection Act (SAPA), ch. 100, 2013 Kan. Sess. Laws vol. 1 500–03 (codified at Kan. Stat. Ann. §§ 50-1201 to -1211 (2014) ), which purports to exempt any personal firearm, firearm accessory, or ammunition manufactured, owned, and remaining within Kansas’s borders from "any federal law, ... including any federal firearm or ammunition registration program, under the authority of congress to regulate interstate commerce." Kan. Stat. Ann. § 50-1204(a). In 2014, these two laws intersected when the government prosecuted two Kansas men, Shane Cox and Jeremy Kettler, for violating the NFA by manufacturing (in Kansas), transferring (in Kansas), and possessing (in Kansas) several unregistered firearms. A jury found them guilty of most (though not all) of the charges.

Now, Cox and Kettler appeal their convictions, though they don’t dispute that their actions ran afoul of the NFA.¹ First, they challenge the NFA’s constitutionality,

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alleging that the statute is an invalid exercise of congressional power and an invasion of the Second Amendment right to bear arms. Second, they challenge the district court’s ruling that their reliance on the SAPA, which they understood to shield Kansas-made and -owned firearms from federal regulation, provided no defense to charges that they violated the NFA. Kettler further asks us to see his prosecution as the product of a dispute between Kansas and the federal government over the SAPA, a dispute that unjustly swept him up (along with Cox, though Cox hasn’t joined this argument). We also granted Kansas’s request to participate in these appeals as needed to defend the SAPA from a Supremacy Clause challenge.

We reject Cox’s and Kettler’s challenges to their convictions (without addressing the SAPA’s constitutionality). Exercising jurisdiction under 28 U.S.C. § 1291, we therefore affirm the district court’s judgments.

BACKGROUND

In 2014, Shane Cox ran Tough Guys, an army-surplus store in Chanute, Kansas. Inside the store, near a glass display case filled with homemade silencers, Cox had posted a copy of the SAPA (which the Kansas legislature passed a year earlier) for his customers to read. See Kan. Stat. Ann. §§ 50-1201 to -1211. Drawing on the Second, Ninth, and Tenth Amendments to the U.S. Constitution, as well as the Kansas Constitution’s bill of rights, the SAPA purports to protect from federal interference the availability of all firearms, firearm accessories (including silencers² ), and ammunition made, sold, and kept "within the borders of Kansas." Kan. Stat. Ann. §§ 50-1202, 50-1203(b), 50-1204(a), 50-1206 to -1208; see also Kan. Const. Bill of Rights § 4 (guaranteeing an individual right to bear arms).

The display caught the attention of Jeremy Kettler, an army veteran from neighboring Humboldt who’d walked into Tough Guys to look around. Cox was in the store, so Kettler asked him about the law and the silencers. Neither Cox nor Tough Guys held a federal firearms license, but Cox believed that as a result of the SAPA, he could avoid the "red tape" of federal firearms regulations as long as the silencers never left Kansas. Cox R. vol. 3 at 292:9–11. Kettler bought one of Cox’s silencers and later praised it (and Tough Guys) in a Facebook post.

In December 2014, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) learned that Tough Guys was selling unregistered silencers and started an investigation. Within a year, federal prosecutors secured a grand jury indictment against Cox and Kettler, charging them with thirteen crimes linked to Cox’s firearms-manufacturing venture, Kettler’s patronage of it, and the ensuing investigation. Count 1 alleged that Kettler had knowingly and willfully made false statements "[d]uring a [f]ederal [i]nvestigation," in violation of 18 U.S.C. § 1001. Cox R.

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vol. 1 at 28. Counts 2, 3, and 4 each charged Cox with possessing an unregistered firearm—a destructive device, a short-barreled rifle, and another destructive device,³ respectively—in violation of 26 U.S.C. § 5861(d). Count 5 accused both Cox and Kettler of conspiring, under 18 U.S.C. § 371, to violate the NFA by building and selling an unregistered silencer. Counts 6, 7, 8, 9, and 11 charged Cox with five violations of 26 U.S.C. § 5861(e) for transferring five silencers—four to recipients identified by their initials plus a fifth to "an undercover law enforcement officer." Cox R. vol. 1 at 34. Count 10 accused Cox of making a silencer in violation of 26 U.S.C. § 5861(f). Count 12 alleged that between June 20, 2014, and February 4, 2015, Cox had "engaged in the business of manufacturing and dealing in" silencers in violation of 26 U.S.C. § 5861(a). Cox R. vol. 1 at 34. And count 13 charged Kettler with possessing a silencer in violation of 26 U.S.C. § 5861(d).

Cox and Kettler each pleaded not guilty and moved to dismiss the NFA-based charges,⁴ claiming—for slightly different reasons—that the SAPA shielded them from criminal liability for running afoul of federal firearms regulations.⁵ Cox argued that because of the SAPA, enforcing the NFA against him would exceed the federal government’s constitutional authority and usurp "powers reserved to the States" in violation of the Tenth Amendment. Cox R. vol. 1 at 39. Kettler, in turn, asserted entrapment by estoppel. By enacting the SAPA, argued Kettler, the Kansas legislature had "specifically" told him that federal laws didn’t apply to his Kansas-made and -owned suppressor, and his reasonable reliance on Kansas’s promise rendered the federal prosecution unjust. Id. at 69.

The district court rejected both arguments in one written order. See United States v. Cox (Cox I ), 187 F.Supp.3d 1282, 1285–88 (D. Kan. 2016). First it ruled, based on Supreme Court and circuit precedent, that the NFA was a valid exercise of Congress’s taxing power. Id. at 1285–87. Next the court threw out Kettler’s entrapment-by-estoppel defense, reasoning that because state officials lack the power to construe or enforce federal law, it wasn’t reasonable for Kettler to rely on the Kansas legislature’s representations about the reach of federal law. Id. at 1287–88. The court therefore denied the motions to dismiss the indictment. Id. at 1288.

A few months later, the government submitted a pre-trial motion asking the court to "find that any defense based on Kansas’ enactment of the [SAPA] is not a valid legal defense." Cox R. vol. 1 at 106. And to keep the Kansas statute from confusing matters for the jury, the government sought "a prohibition on any mention" of the SAPA. Id. vol. 3 at 16:21–22. The court initially granted the government’s request, but then tempered that ruling in response to Kettler’s offer of proof, which convinced the court that "references to [the] SAPA [we]re interwoven with the evidence of the alleged offenses."⁶

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Id. vol. 1 at 194. The court maintained that the SAPA "provide[d] no defense" to the charged offenses, id. at 193, but it declined to "excise" the SAPA from the evidence and predicted that some mention of the law would be admissible to contextualize the charged offenses, id. at 194. And if (as the court assumed) the SAPA surfaced at trial, the court promised to instruct jurors on how to consider the law.

The state of Kansas, meanwhile, moved to intervene. Federal law gives a state the right to intervene "[i]n any action, suit, or proceeding in a court of the United States ... wherein the constitutionality of any statute of that State affecting the public interest is drawn in...