United States v. Kaspereit

994 F.3d 1202

UNITED STATES of America, Plaintiff - Appellee,

v.Chad Wayne KASPEREIT, Defendant - Appellant.

No. 19-6188

United States Court of Appeals, Tenth Circuit.

FILED April 20, 2021

John P. Cannon of Cannon & Associates, PLLC, Edmond, Oklahoma for Defendant-Appellant Chad Wayne Kaspereit.

K. McKenzie Anderson, Assistant United States Attorney, Oklahoma City, Oklahoma (Timothy J. Downing, United States Attorney, with her on the brief), for Plaintiff-Appellee United States of America.

Before PHILLIPS, SEYMOUR, and CARSON, Circuit Judges.

CARSON, Circuit Judge.

After one of Defendant Chad Wayne Kaspereit's many domestic violence incidents, a state court in Oklahoma instituted a protective order against him. While that order remained in effect, Defendant obtained two firearms from a sporting goods store. So a jury convicted Defendant of one count of lying in connection with the purchase of a firearm and one count of possessing a firearm as a prohibited person. The district court imposed concurrent 120-month sentences. Defendant now argues the Supreme Court's holding in Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), along with a lack of evidence against him, mandates a new trial on both counts. He also argues that his sentence is unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court.

I.

In early September 2015, Defendant's then-wife, Brittany McCormick, petitioned an Oklahoma state court for an emergency protective order and initiated divorce proceedings. The court granted an emergency protective order and set a hearing. The parties appeared with counsel and agreed to continue the hearing for three days and consolidate it with a hearing on the divorce. The parties appeared again, and, after the hearing, the state court continued the protective order indefinitely, saying it would "be reviewed before resolution of this case." The court docketed the temporary protective order in the divorce and in the separate protective order action. In fact, no review of the order occurred concurrent with the final divorce decree, and it remained in effect until dissolved by uncontested motion in February 2018.

Meanwhile, in December 2017, Defendant bought two handguns from an Academy sporting goods store. As a part of that transaction, he filled out Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") Form 4473 (Firearms Transaction Record). On the form, Defendant certified he was "not subject to a court order restraining [him] from harassing, stalking, or threatening [his] child or an intimate partner or child of such partner." Several months later, in March 2018, local law enforcement responded to an incident at Defendant's home, which he shared with his new spouse, Stephanie Carson. Carson consented to a search of the home and vehicles, and officers discovered the handguns Defendant had purchased in December. She filed for her own protective order, which an Oklahoma court granted, but that order is not at issue in this appeal.

A federal grand jury indicted Defendant on three counts: (1) making a false statement during the purchase of a firearm in violation of 18 U.S.C. § 922(a)(6), (2) possession of a firearm from December 2017 to February 2018 while subject to McCormick's protective order in violation of 18 U.S.C. § 922(g)(8), and (3) possession of a firearm while subject to Carson's protective order, in violation of the same. After trial in May 2019, the jury returned a guilty verdict on counts one and two but acquitted on count three. The district court sentenced Defendant to 120 months’ imprisonment on each count to run concurrently, varying upward from the guidelines range.

Defendant filed this appeal making, essentially, two arguments. First, that the Supreme Court's recent decision in Rehaif, 139 S. Ct. 2191, and the insufficiency of evidence against him demand an acquittal or a new trial. As to count one, he says the jury lacked evidence showing he knew he was subject to the protective order when he bought the firearms. As to count two, he says the jury lacked evidence of his opportunity to participate in a hearing on the protective order and that the protective order remained in effect while he possessed the firearms. Second, he argues his sentence is substantively unreasonable.

II.

We review legal sufficiency of evidence de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences from the evidence in favor of the verdict. United States v. Wagner, 951 F.3d 1232, 1255 (10th Cir. 2020) (citing United States v. Isabella, 918 F.3d 816, 830 (10th Cir. 2019) ). We consider all the evidence, both direct and circumstantial, but we will not weigh it or make credibility determinations. Id. at 1256 (citing Isabella, 918 F.3d at 830 ). We will reverse and acquit "only when no reasonable jury could find the defendant guilty beyond a reasonable doubt." Id. (quoting Isabella, 918 F.3d at 830 ).

We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (citing United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) ). Thus, we will give substantial deference to the district court's determination and overturn a sentence as substantively unreasonable only if it is arbitrary, capricious, whimsical, or manifestly unjust. Id. (citing Friedman, 554 F.3d at 1307 ).

III.

Before we can address the sufficiency of the evidence, we must resolve the parties’ competing arguments about Rehaif, 139 S. Ct. 2191. In that case, the Supreme Court held that in a prosecution under 18 U.S.C. §§ 922(g) and 924(a)(2) (for a prohibited person's possession of a firearm), the government must prove (1) the defendant knew he possessed a firearm and (2) the defendant knew he belonged to a category of prohibited persons. Rehaif, 139 S. Ct. at 2200. Until that decision, we (along with most other circuits) required only the first showing to establish a culpable state of mind. United States v. Games-Perez, 667 F.3d 1136, 1140–41 (10th Cir. 2012) (citations omitted), abrogation recognized in United States v. Benton, 988 F.3d 1231 (10th Cir. 2021). Defendant argues Rehaif should also apply to his conviction under § 922(a)(6) and that it requires a new trial on both counts. We disagree.

A.

First, the Supreme Court explicitly limited the scope of its holding to prosecutions under 18 U.S.C. § 922(g), and thus Rehaif itself does not apply to prosecutions under § 922(a)(6). See 139 S. Ct. at 2200. Defendant acknowledges that fact but asks us to extend Rehaif’s analysis and reasoning to § 922(a)(6), suggesting we should require the government to prove a defendant knew he belonged to a category of prohibited persons. Rehaif, however, does not question the validity of our long standing mens rea rule for conviction under that statute.

Section 922(a)(6) provides that

it shall be unlawful ... for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter[.]

The statute requires the defendant know "of the facts that constitute the offense," Dixon v. United States, 548 U.S. 1, 5, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (quoting Bryan v. United States, 524 U.S. 184, 193, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) ), but it "does not establish a specific intent element," United States v. Elias, 937 F.2d 1514, 1518 (10th Cir. 1991). In terms of mens rea, then, a conviction under § 922(a)(6) only requires knowledge that the statement is false.

If the false statement is "I am not subject to a protective order," the government must prove the defendant knew he was, indeed, subject to a protective order. Although this may seem like a requirement that the defendant know of his membership in a prohibited class of persons (at least under these facts), § 922(a)(6) does not necessarily require that. We can imagine falsehoods unrelated to a person's § 922(g) status that could lead to prosecution under § 922(a)(6). So we decline to impose Defendant's proposed new requirement and narrow the scope of § 922(a)(6). Rehaif does not map to this provision and we will not apply it.

B.

Second, we agree with the government that Rehaif does not require that Defendant knew his status prohibited his possession of a firearm, just that he knew of his status—in this case that he was subject to a protective order such as the one described in § 922(g)(8). We recently expressed that opinion in a parallel case: United States v. Benton, 988 F.3d 1231 (10th Cir. 2021). We based our conclusion on Rehaif’s specific language and on the meaning of the word "knowingly." Id. at 1236–39. On one hand, "the knowledge requisite" to a "knowing violation of a statute is factual knowledge as distinguished from knowledge of the law." Bryan, 524 U.S. at 192, 118 S.Ct. 1939 (quoting Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 345, 72 S.Ct. 329, 96 L.Ed. 367 (1952) (Jackson, J., dissenting)). On the other hand, "to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’ " Id. at 191–92, 118 S.Ct. 1939 (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) ).

Neither statute nor caselaw shows that a violation of § 922(g) must be willful. We do not read Rehaif to impose that requirement, nor do our sister circuits that have reached the question. Benton, 988 F.3d at...