United States v. Hardridge

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 17 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 03-3186
THEDRAL R. HARDRIDGE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 02-CR-20003-CM)

Brice R. Taylor of Taylor & Young, LLC, Kansas City, Missouri, for Defendant -
Appellant.

Brent I. Anderson, Assistant United States Attorney (Eric F. Melgren,
United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff -
Appellee.

Before HARTZ , McWILLIAMS , and McCONNELL , Circuit Judges.

HARTZ , Circuit Judge.

Defendant Thedral Hardridge appeals his convictions on three counts of

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and
924(a)(2), and two counts of knowingly making a false statement (that he had no

prior felony conviction) in connection with the purchase of a firearm, in violation

of 18 U.S.C. § 922(a)(6). He contends that the district court, which tried him

without a jury, erred in rejecting his estoppel defense to the felon-in-possession

charges and in finding that he knowingly made false statements. The prior

felonies forming the basis of all five federal charges are two state convictions for

aggravated battery committed on May 27, 1995, when Defendant was 17.

Defendant testified at his federal trial that he had believed his state convictions to

be juvenile offenses and that he had been misled in that regard by various

statements and actions by a firearms dealer, a state judge, and local law-

enforcement officers. We exercise jurisdiction under 28 U.S.C. § 1291, and

affirm.

I. BACKGROUND

On October 10, 1995, Defendant pleaded guilty to two counts of aggravated

battery in violation of Kansas law. He was prosecuted as an adult and sentenced

to 39 months in Kansas state prison, which he served in an adult facility. He

testified in his federal trial, however, that he had not been present at the state

hearing adjudicating him as an adult and that his attorney had informed him that

his conviction was a juvenile conviction, as he was underage at the time he

committed the offense. As a result, he testified, he had believed that he had only

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a juvenile conviction. At sentencing the state judge informed defendant that he

was “prohibited from carrying a firearm upon your release,” Aplt. App. I at 46,

which Defendant asserts he interpreted to apply only during his two-year post-

release supervision.

For some reason, the 1995 felony conviction was not entered into the

National Crime Information Center (NCIC) database. Defendant discovered this

in July 2000, when he requested a records check from the Kansas City, Kansas,

Police Department to determine whether he had a criminal record. The report the

department gave him of the records check under his name and birth date stated

“no records found.”

In January 2001 a Kansas City police officer found a firearm in an

abandoned vehicle traced back to Mr. Hardridge. After running a criminal

background check, which again came up with nothing, the police returned the

firearm to Defendant. Defendant testified at trial that he believed the gun would

not have been returned to him if his 1995 conviction did, indeed, count as a

felony conviction.

In October and early November 2001, Defendant purchased guns from a

local firearms dealer, the Bullet Hole in Overland Park, Kansas. When he

purchased the guns, he did not declare his 1995 conviction on the Bureau of

Alcohol, Tobacco and Firearms (ATF) forms 4473 required for the gun purchases.

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He testified that the Bullet Hole salesmen told him that he need not declare any

juvenile convictions. According to their records of the transactions, when

employees at the Bullet Hole checked with the NCIC, they were instructed that

the sale could proceed.

Defendant’s luck ran out soon thereafter. On November 11, 2001, a Kansas

City police officer found a firearm and ammunition inside Defendant’s vehicle

after he was stopped on an outstanding warrant. Two days later, responding to a

domestic disturbance call, another Kansas City police officer found Defendant

lying in his home with a self-inflicted gunshot wound to his face and a firearm a

few feet away. Officers executing a search warrant for Defendant’s home on

November 17 found two additional firearms. On January 9, 2002, Defendant was

indicted in the United States District Court for the District of Kansas on three

counts of felon in possession of a firearm and two counts of knowingly making a

false statement in connection with the purchase of firearms. After a bench trial

on December 4, 2002, the court found Defendant guilty on all counts. The district

court rejected Defendant’s proffered defense of entrapment by estoppel to the

felon-in-possession counts.

Defendant appeals, arguing that the district court erred in (1) ruling that his

entrapment-by-estoppel defense would not lie on the facts shown; and (2) finding

that he knowingly made false statements in applying to purchase firearms despite

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his testimony that because of his lawyer’s representations and the background

checks by the local police and the Bullet Hole, he had actually believed when he

filled out the ATF forms that his 1995 conviction had been a juvenile conviction.

We reject these arguments.

II. DISCUSSION

A. Entrapment by Estoppel

Defendant argues that the actions of several actors representing various

government entities misled him into believing that it was legal for him to

purchase and possess firearms, thereby estopping the government from

prosecuting him on the unlawful-possession counts. Determining whether the

government is estopped from a prosecution is generally a mixed issue of law and

fact. “We review mixed questions under the clearly erroneous or de novo

standard, depending on whether the mixed question involves primarily a factual

inquiry or the consideration of legal principles.” United States v. Kinslow, 105

F.3d 555, 557 (10th Cir. 1997) (internal quotation marks omitted). Here, we

assume Defendant’s version of the facts and review the issues de novo as a matter

of law.

A claim of entrapment by estoppel is at heart a due process challenge. In

Raley v. Ohio, 360 U.S. 423, 426 (1959), the Supreme Court held that the

conviction of a defendant “for exercising a privilege which the State had clearly

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told him was available to him” was an “indefensible sort of entrapment by the

State,” violative of due process. Accord Cox v. Louisiana, 379 U.S. 559, 571

(1965). To convict a citizen following such an “active misleading” would be to

dispense with the basic requirement that citizens receive fair warning of what

actions are criminal. Raley, 360 U.S. at 438.

In this circuit,

The defense of entrapment by estoppel is implicated where an
agent of the government affirmatively misleads a party as to the state
of the law and that party proceeds to act on the misrepresentation so
that criminal prosecution of the actor implicates due process
concerns under the Fifth and Fourteenth amendments.

United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994). There must be “an

‘active misleading’ by [a] government agent,” and “actual reliance by the

defendant[,]” which is “reasonable in light of the identity of the agent, the point

of law misrepresented, and the substance of the misrepresentation.” Id.

Moreover, the government agent must be one who is “responsible for interpreting,

administering, or enforcing the law defining the offense.” United States v.

Gutierrez-Gonzalez, 184 F.3d 1160, 1167 (10th Cir. 1999). Defendant bases his

claim of entrapment by estoppel on representations made to him by (1) Bullet

Hole personnel, (2) the state sentencing judge, and (3) local police officers. We

address each in turn.

1. Representations by Licensed Firearms Dealer

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 This circuit has not yet decided whether a licensed firearms dealer is a

government agent for the purposes of establishing an entrapment-by-estoppel

defense. See id at 1168. Defendant relies on United States v. Tallmadge, 829

F.2d 767, 770 (9th Cir. 1987). In that case the defendant’s state felony conviction

had been reduced to a misdemeanor. Allegedly in reliance on advice from the

firearms dealer that the reduction made him eligible to do so, the defendant

purchased a gun. A two-to-one majority of the Ninth Circuit panel allowed the

defense, holding that such reliance could support a claim of entrapment by

estoppel. Id. at 774. It reasoned:

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.

Id.

But the other circuits to address the matter have rejected Tallmadge. In

United States v. Howell, 37 F.3d 1197, 1206 (7th Cir. 1994), the Seventh Circuit

held that a “gun dealer . . . is a private individual [and] his license to sell firearms

does not transform him into a government official.” In United States v. Austin,

915 F.2d 363, 367 (8th Cir. 1990), the Eighth Circuit likewise held that a license

to sell firearms does not “transform [pawn shop owners] into government

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officials, at least for purposes of the entrapment by estoppel defense.” And in

United States v. Billue, 994 F.2d 1562, 1569 (11th Cir. 1993), the Eleventh

Circuit held that “a federal license to sell firearms does not transform private

licensees into government officials, thereby creating a potential entrapment by

estoppel defense.”

We agree with the majority view. Tallmadge stretches the holdings of Cox

and Raley too far. In both cases the Court was concerned with the unique due

process concerns raised when a government official in an unmistakable position

of authority affirmatively misleads a citizen as to the propriety of contemplated

actions. In Raley the chairman of the Ohio Un-American Activities Commission

assured a group of citizens—later prosecuted for invoking the privilege against

self-incrimination and refusing to answer Commission questions—that they could

claim the privilege before the Commission. Raley, 360 U.S. at 437. The Court

described the chairman as someone “who clearly appeared to be the agent of the

State [of Ohio] in a position to give such assurances . . . .” Id. In Cox “the

highest police officials of the city, in the presence of the Sheriff and Mayor, in

effect told the demonstrators that they could meet where they did,” but then tried

to prosecute them for doing so. Cox, 379 U.S. at 571.

Employees of a private business licensed by the government are a far cry

from the high-ranking government officials in Cox and Raley. Such licensees

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cannot provide an authoritative interpretation of what the law requires. The

Model Penal Code would restrict permissible reliance to “an official

interpretation of the public officer or body charged by law with responsibility for

the interpretation, administration or enforcement of the law defining the offense.”

MPC § 2.04(3)(b)(iv) (emphasis added). 1 See Tallmadge, 829 F.2d at 776 n.1

(Kozinski, J., dissenting) (citing Model Penal Code). A licensee is highly

unlikely to hold such status.

In some senses a licensed firearms dealer may be an “agent” of the federal

government. But such a dealer is not “responsible for interpreting, administering,

or enforcing the law defining the offense” within the meaning of that phrase in

Gutierrez-Gonzalez, 184 F.3d at 1167 (emphasis added). To be sure, a licensed

dealer must comply with certain federal requirements that assist in the

1
MPC § 2.04(3) reads in full:

(3) A belief that conduct does not legally constitute an offense is a
defense to a prosecution for that offense based upon such conduct when:
(a) the statute or other enactment defining the offense is not
known to the actor and has not been published or otherwise
reasonably made available prior to the conduct alleged; or
(b) he acts in reasonable reliance upon an official statement of
the law, afterward determined to be invalid or erroneous, contained
in (i) a statute or other enactment; (ii) a judicial decision, opinion or
judgment; (iii) an administrative order or grant of permission; or (iv)
an official interpretation of the public officer or body charged by law
with responsibility for the interpretation, administration or
enforcement of the law defining the offense.

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administration of the firearms law. And compliance with that duty may require

the dealer to interpret the law or to refuse to engage in a transaction (which might

be considered “enforcing” the law against a prospective purchaser). But we

distinguish between a duty to comply with the law and an official responsibility to

interpret the law, to see that the law is being properly administered, or to enforce

the law.

The reason to distinguish between government officials and private persons

is not the reasonableness of reliance. Private citizens may often be reliable

sources of information about the law. One feels a natural sympathy for a person

who is prosecuted for an act after being assured by a licensed firearms dealer that

the act is lawful. But due process requires that sympathy to be weighed against

the needs of society. As we stated in United States v. Browning, 630 F.2d 694,

702 (10th Cir. 1980), “The only circumstances justifying use of the doctrine [of

entrapment by estoppel] are those which add up to the conclusion that it does not

interfere with underlying government policies or unduly undermine the correct

enforcement of a particular law or regulation.” Judge Kozinski began his

Talmadge dissent with an observation we share:

In reversing the conviction of a defendant who may have
stumbled into criminal activity inadvertently, the court today reaches
a just result. But it does so at too high a price, for this is a case
where “justice to the individual is rightly outweighed by the larger
interests on the other side of the scales.”

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Tallmadge, 829 F.2d at 775 (Kozinski, J., dissenting) (quoting Oliver W. Holmes,

The Common Law 48 (1881)). 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. This is a burden society should not bear.

Moreover, where, as here, the alleged unfairness to the defendant arises out

of private conduct and not from government action, it is not the government that

has denied due process. Cf. United States v. Orleans, 425 U.S. 807, 815-17

(1976) (community action agency responsible for complying with federal

regulations in carrying out federal contract not a government agency for purposes

of liability under Federal Torts Claims Act; although “by contract, the

Government may fix specific and precise conditions to implement federal

objectives[, and] such regulations are aimed at assuring compliance with goals,

the regulations do not convert the acts of entrepreneurs . . . into federal

government acts”); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177 (1972)

(liquor license does not render the sale of liquor by a private club a state action

for purposes of the Fourteenth Amendment).

We therefore hold that licensed firearms dealers are not “government

agents” for the purposes of an entrapment-by-estoppel defense.

2. Statement by State Sentencing Judge

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 When Defendant was sentenced in state court in 1995, the trial judge told

him:

Upon your release, it looks like you’ll be on post-release supervision
for a twenty-four month period of time, and that will – that – that
can run concurrent with each other as far as the post-release is
concerned. The court costs and the attorney’s fees are assessed
against you. There is no restitution ordered in this case, because
there has been none requested at this time. There – you will have a
right to accumulate some good time credit, it’s either fifteen or
twenty percent, as far as that jail sentence is concerned. You are
prohibited from carrying a firearm upon your release. I’m sure you
probably already know that.

Aplt. App. I at 46 (emphasis added). Defendant contends that the two emphasized

sentences misled him into believing that he could possess a gun after “he had

completed the twenty-four[th] month of post-release supervision” because “[i]t

was this release that [Defendant] believed the Judge was talking about.” Aplt. Br.

at 23. He claims that this belief was reinforced by the document stating the

conditions of his post-release supervision, which included a prohibition on

possessing dangerous weapons.

Defendant relies on United States v. Brady, 710 F. Supp. 290, 294 (D. Col.

1989), which held that a state judge’s affirmative representations that a defendant

with a felony conviction could possess firearms for limited purposes could estop

the federal government from prosecuting him under the felon-in-possession

statute. Authority in other circuits is to the contrary. See United States v.

Etheridge, 932 F.2d 318 (4th Cir. 1991); United States v. Bruscantini, 761 F.2d

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640 (11th Cir. 1985). But we need not resolve that dispute. Entrapment by

estoppel cannot be predicated on the statement by the state judge in this case

because Defendant could not have reasonably understood that statement as

suggesting anything about the application of federal firearms law after his post-

release supervision. See Nichols, 21 F.3d at 1018 (“The defendant alleges no

affirmative representation or other ‘active misleading’ by any government agent

that defendant was permitted to possess a firearm after his probation ended.

Defendant testified only that his probation officer told him that, as a condition of

his probation, defendant could not possess a weapon or go hunting while on

probation. . . . [T]here is no factual predicate for a valid entrapment by estoppel

defense.”).

3. Police Conduct and Statements

Defendant finally contends that the Kansas City Police Department misled

him twice. First, he argues that when the Kansas City Police Department

provided him with a criminal-history record check that omitted his 1995

conviction, this “supported [his] belief his previous conviction was a juvenile

record.” Aplt. Br. at 25. Second, he argues that he was misled when “the Kansas

City[,] Kansas Police Department recovered [his] firearm from an abandoned

vehicle and returned [it] to [him] after completing a background check.” Id. at

26. The central difficulty with his reliance on either of these incidents is that the

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Kansas City Police Department was not “a government official or agency

responsible for interpreting, administering, or enforcing the law defining the

offense,” as entrapment by estoppel requires. Gutierrez-Gonzalez, 184 F.3d at

1167. The police department did not attain that status simply because it used a

federal database to determine whether Defendant had a felony conviction. See

United States v. Ormsby, 252 F.3d 844, 852 (6th Cir. 2001) (denying entrapment-

by-estoppel defense based on issuance of gun permits by county sheriff’s office,

noting that “the use of information from the federal government in carrying out

their responsibility to interpret state law does not constitute a grant of authority

by the federal government to render advice concerning federal law”).

B. Knowingly Making a False Statement

Under 18 U.S.C. § 922(a)(6), one may not “knowingly . . . make any false

or fictitious oral or written statement” in filling out ATF form 4473. Defendant

asserts that the district court erred in finding him guilty under this section,

because he had shown that due to the representations of his lawyer, as well as the

background checks run by the local police and the owner of the Bullet Hole, he

had actually believed when he filled out the form that his 1995 conviction had

been a juvenile conviction. In essence, he is challenging the sufficiency of the

evidence against him. “We review the sufficiency of the evidence supporting a

guilty verdict de novo. We will not disturb the verdict unless no rational trier of

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fact could have found the defendant guilty [beyond a reasonable doubt].”

United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir. 2002) (internal citation

omitted). “[We] must view the evidence and the reasonable inferences to be

drawn therefrom in the light most favorable to the government.” Id. (internal

citation and quotation marks omitted).

The evidence at trial was sufficient to sustain a finding that Defendant

knew he had been convicted of a felony when he completed the ATF forms. After

all, he had been convicted as an adult and had served time in an adult facility. It

would be remarkable if Defendant had been unaware that he had been prosecuted

and sentenced as an adult. The very fact that Defendant sought a records check

from the Kansas City Police Department suggests a sophistication about the

matter that implies an intent to manipulate rather than a sincere effort to

determine his status, which he could have obtained from a more definitive source

familiar with his particular case.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment below.

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