UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JAKE STANLEY DEWILDE, Plaintiff - Appellant,

v. ATTORNEY GENERAL OF THE UNITED STATES; DIRECTOR OF BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, Defendants - Appellees. No. 23-8054 (D.C. No. 1:23- CV-00003-SWS) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Jake Stanley DeWilde appeals the distri ct court’s dismissal of his pro se Second Amendment challenge to 18 U.S.C. § 922(o), which prohibits the transfer or possession of machineguns. The district court dismissed the action for lack of jurisdiction, concluding that DeWilde lacked standing. Alternatively, the district court concluded that even if DeWilde had standing, the action should be dismissed

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 10, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 12 for failure to state a claim because m achineguns are not protected by the Second Amendment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s dismissal for lack of standing. We express no opinion on the merits of the Second Amendment claim.
I This suit began when DeWilde attempte d to represent a tr ust as a pro se non-attorney. He filed an initial complaint “Individually and as Trustee of the DeWilde Arms Trust.” R. at 5; see id. at 6, para. 3. In that capacity, he alleged that he applied to the Bureau of Alcohol, Tobacc o, Firearms & Explosives (ATF) to make an M16 machinegun, but the ATF denied th e trust’s applicati on, citing § 922(o). See id. at 11, para. 19. Attached to the comp laint is the application form submitted by DeWilde on behalf of the trust and denied by the ATF. It states that the application is filed on behalf of a “T rust or Legal Entity.” Id. at 15. The appli cant on the form is identified as “DeWilde Arms Trust,” id. , and DeWilde signed the application as “Jake DeWilde, Trustee,” id. at 16. According to DeW ilde, § 922(o) violates his Second Amendment rights because he “desir es to own an M16 machinegun for all lawful purposes, including defense of hearth and home and militia functions.” R. at 11, para. 23. He requested a declarator y judgment that § 922(o) is unconstitutional and a mandatory injunction requiring the ATF to approve the trust’s application to manufacture a machinegun. See id. , para. 25. The government moved to dismiss the co mplaint, arguing, among other things, that DeWilde lacked authority to represen t the trust as a pro se non-attorney, even Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 23 though he alleged he is the trustee. See id. at 54-55 (citing United States v. Lain , 773 F. App’x 476, 477 (10th Cir. 2019) (u npublished) (holding that trusts are artificial legal entities exis ting independently of their tr ustees and may appear in court only through licensed counse l, “[s]o if the trustee is not a licensed attorney, he or she cannot represent the trust”)). To remedy the pleading defect, DeWilde amended the complaint. He dropped the trust as a party-plain tiff and instituted the action solely in his individual capacity—not as a trustee. See id. at 73. The rest of his allegations and demands for relief were substantively identical to those in the original complaint. The government then moved to di smiss the amende d complaint. The district court raised standing sua sponte and concluded DeWilde failed to allege an injury in fact. The district court observed that he relied on two factual allegations to establish his standing: 1) he submitted the ATF application to make an M16 machinegun and 2) he desired to own an M16 machinegun. The court rejected his reliance on the first allegation, reasoning that the trust—not DeWilde—applied to the ATF to manufacture a machinegun, an d DeWilde signed the application as a trustee—not in his individual capacity—yet the trust and the trustee were no longer parties to the amended complaint. The court pointed out that DeWilde filed the amended complaint solely in his individual capacity, he never app lied to the ATF to make a machinegun in his individual capacity, nor did the ATF deny him an application. As for DeWilde’s second factual allegation—his desire to own a machinegun—the court ruled that the allegation was “too indefinite to establish a Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 34 particularized injury and insufficient to constitute an in jury-in-fact.” Id. at 286-87. The court explained that DeWilde sought to invalidate a criminal statute prohibiting the possession and transfer of machineguns, but he did not allege that he owns, possesses, or transfers mach ineguns such that he faced a credible threat of prosecution. Instead, he merely alleged a general grievance that was insufficient to confer standing.
II We review questions of standing de novo. Wyoming ex rel. Crank v. United
States , 539 F.3d 1236, 1241 (1 0th Cir. 2008). It is the plaintiff’s burden to establish standing, and a plaintiff must support each element of standing “in the same way as any other matter on which the plain tiff bears the burden of proof, i.e. , with the manner and degree of evidence required at th e successive stages of the litigation.” Colo. Outfitters Ass’ n v. Hickenlooper , 823 F.3d 537, 544 (10t h Cir. 2016) (internal quotation marks omitted). Because the dist rict court resolved the standing issue at the pleading stage, we, like the district c ourt, “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Cressman v. Thompson , 719 F.3d 1139, 1144 (10th Cir. 2013); see Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992) (“At the pleading stage, general factual allegations of injury resulting from the defe ndant’s conduct may suffice, for on a motion to dismiss we pres ume that the general allegations embrace those specific facts that are necessary to support the clai m.” (brackets and internal quotation marks omitted)). Although we afford pr o se pleadings a liberal Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 45 construction, we will not “supply additional factual al legations to round out a plaintiff’s complaint or construct a le gal theory on a plaintiff’s behalf.” Whitney v.
New Mexico , 113 F.3d 1170, 1175 (10th Cir. 1997). “[S]tanding generally has three require ments: (1) an injury in fact; (2) causation; and (3 ) redressability.” Colo. Outfitters , 823 F.3d at 544. The injuryin-fact element requires that a plaintiff “o ffer something more than the hypothetical possibility of injury. The alleged injury must be conc rete, particularized, and actual or imminent.” Id. “[I]mminence is . . . a somewhat elastic concept, [but] it cannot be stretched beyond its purpose, which is to en sure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id. at 544-45 (internal quotation ma rks omitted). In this c ontext—a pre-enforcement challenge to a criminal statute—“a plain tiff must typically demonstrate (1) an intention to engage in a c ourse of conduct arguably affe cted with a constitutional interest, but proscribed by the challenged stat ute,” and (2) that ther e exists a credible threat of prosecution thereunder.” Id. at 545 (brackets and in ternal quotation marks omitted). “[I]t is not necessary that the plaintiff first expo se himself to actual arrest or prosecution to be entitled to challenge the st atute that he claims deters the exercise of his constitutional rights.” Babbit v. United Farm Workers Nat’l Union , 442 U.S. 289, 298 (1979) (brackets and internal quotation marks omitted). But “[w]hen plaintiffs do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a pros ecution is remotely possible, they do not Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 56 allege a dispute susceptible to resolution by a federal court.” Id. at 298-99 (internal quotation marks omitted). DeWilde relies on two factual allegations to establish his sta nding. First, he alleged that he submitted the application to the ATF to make a machinegun. This allegation fails to establish his standing because he did not submit the application on his own behalf. Rather, the application conf irms that he applied to the ATF in his capacity as a trustee on behalf of the trust to enable the trust to manufacture a machinegun. As the distri ct court pointed out, DeWild e himself has not, in his individual capacity, applied for or been denied an application to ma ke a machinegun. DeWilde contends the district c ourt misunderstood “t he fundamental relationship between [him] and his trust, as well as the absolute powers he possesses in the administration of his trus t.” Aplt. Opening Br. at 5. In essence, he asserts the district court mistakenly trea ted the trust as a distinct legal entity, thereby denying him the right to plead and conduct his case . But this argument fails to distinguish between DeWilde’s legal status as an individual, and the tr ust’s separate and distinct legal status as an artificial legal entity. Trusts are artifi cial legal entitie s that exist independently of their trustees. See Conagra Foods, Inc. v. Americold Logistics , LLC , 776 F.3d 1175, 1176 (10th Cir. 2015). If a trustee is not a licensed attorney, the trustee cannot represent the trust. See Knoefler v. United Bank of Bismarck , 20 F.3d 347, 348 (8th Cir. 1994) (“A nonlawyer, such as these purported ‘trustee(s) pro se,’ has no right to represent another entity, i.e., a trust, in a court of the United States.”); see also In re Wilson , 860 F. App’x 147, 149-50 ( 10th Cir. 2021) (unpublished) Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 67 (applying the same analysis); Lain , 773 F. App’x at 477 (same). 1 DeWilde disputes this rule, arguing it denies hi m the right “to plead and c onduct his case personally.” Aplt. Opening Br. at 9 (citing 28 U.S.C. § 1654). But again, he is not the trust, and as a non-licensed pro se party, he cannot prosecute his cas e on behalf of the trust, see Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council , 506 U.S. 194, 202 (1993) (recognizing § 1654 does not allow “artificial entitie s” to appear in federal court without licensed counsel); see also Wilson , 860 F. App’x at 150 (rejecting the same argument). DeWilde’s second allegation also fails to establish his standing. He alleged he “desires to own an M16 machinegun for all lawful purposes, including defense of hearth and home and militia functions.” R. at 79, para. 23. In evaluating this allegation, our decision in Colorado Outfitters , 832 F.3d 537, is instructive. That case involved a Second Amendment pre-enfo rcement challenge to a statute that outlawed the possession, sale, and transfer of large-capacity magazines (LCMs). See id. at 542. The statute contained an excep tion that permitted grandfathered LCMs (those owned prior to the stat ute’s effective date) so l ong as the owner maintained continuous possession of the LCMs. See id. Standing was predicated in part on the testimony of a plaintiff who owned grandf athered LCMs and claimed the statute impacted her “because eventually , her LCMs will wear out and because it would be possible to lose her LCMs (or lose continuous possession of them) in the meantime.”

1 We may cite unpublished decisions for their persuasive value. See 10th Cir. R. 32.1(A). Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 78 Id. at 551 (brackets and internal quotation marks omitted). We concluded this testimony “failed to demonstrate an immi nent injury for purposes of mounting a pre-enforcement challenge to [the] statute” because it “e xpressed no concrete plans to engage in conduct that had any poten tial to violate [the statute].” Id. DeWilde’s allegations are si milarly vague. He alleged that he “desires to own an M16 machinegun for all lawful purposes, ” R. at 79, para. 23, but he alleges no concrete plan to possess or tr ansfer a machinegun in violation of § 922(o). He also gives no indication that he has ever possessed a firearm, nor does he say when or if he plans to acquire or manufacture a machinegun or transfer one. See Lujan , 504 U.S. at 564 (explaining that intenti ons to engage in conduct “without any description of concrete plans, or indeed even any specification of when ” the conduct will occur is insufficien t). He simply “desires” to ow n a machinegun. But a “vague desire” to engage in some conduct is not enough to establish standing; “a plaintiff must describe concrete plans.” Baker v. USD 229 Blue Valley , 979 F.3d 866, 875 (10th Cir. 2020) (interna l quotation marks omitted). “The Supreme Court has instructed that ‘some day’ intentions do not support a finding of the ‘actual or imminent’ injury that our cases require.” Id. at 874-75 (ellipsis omitted) (quoting Lujan , 504 U.S. at 564). DeWilde’s alleged “desire” to own a machinegun is too abstract to constitute a c oncrete, imminent injury. See Spokeo, Inc. v. Robins , 578 U.S. 330, 340 (2016) (“A concrete injury must be de facto ; that is, it must actually exist. . . . “[It mu st be] real, and not abstract .” (internal quotation marks omitted)). And without alleging when or even if he might po ssess or transfer a Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 89 machinegun, there is no sugg estion he faces a credible threat of prosecution or investigation. Still, DeWilde asserts his allegations ar e virtually identical to those other courts have found sufficient to satisfy the injury-in-fact requirement. He adds that, not only did he allege that he desires to own a machinegun, but he also submitted the ATF application, provided hi s fingerprints and photograph, and paid the required tax stamp on the application. These latter ef forts were taken on be half of the trust, however, so they do not bolster his standing argument. To the extent DeWilde cite s decisions from other cour ts, his cases do not help him. The non-binding decisions he cites fr om other circuits have been vacated or abrogated. See Teter v. Lopez , 76 F.4th 938 (9th Cir. 2023), vacated for reh’g en banc , 2024 WL 719051 (Feb. 22, 2024); Jackson v. City & Cnty. of San
Francisco , 746 F.3d 953, 967 (9th Cir. 2014), abrogated on other grounds by N.Y. State Rifle & Pistol Ass’n v. Bruen , __ U.S. __, 142 S. Ct. 2111 (2022); Nat’l Rifle Ass’n of Am. v. Bureau of Alcohol , Tobacco, Firearms & Explosives , 700 F.3d 185, 194-95 (5th Cir. 2012), abrogated by Bruen , __ U.S. __, 142 S. Ct. 2111. 2 Moreover, these extra-circuit cases are distinguishable because sta nding was predicated on more concrete injuries. See Teter , 76 F.4th at 944 (plaintiffs were “forced to dispose of their butterfly knives” and “would purch ase replacements” if the law were

2 For the first time in his reply brief, DeWilde cites two passing statements in Bruen , where the Court noted the petitioners “w anted” handguns. 142 S. Ct. at 2125. But these descriptors are meaningless be cause the Court did not engage in any standing analysis. Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 910 invalidated (internal quotation marks omitted)); Jackson , 746 F.3d at 967 (plaintiff would purchase ammunition if the le gal prohibition were invalidated); Nat’l Rifle
Ass’n , 700 F.3d at 190-91 (plaintiff prevente d from purchasing handguns due to age restriction). And DeWilde’ s remaining cases are all no n-binding district court decisions cited for the proposition that an impairment on his “desire to make and own” a machinegun is enough to establish an in jury in fact. Aplt. Opening Br. at 9. But as we have explained, binding precedent from this court and the Supreme Court requires more than “‘some day’ intentions.” Baker , 979 F.3d at 874 (quoting Lujan , 504 U.S. at 564). A mere desire to po ssess a machinegun, untethered from any allegation that he faces a credib le threat of prosecution, is insufficient to establish an injury in fact. Thus, the district court properly dism issed the action for lack of standing.
III The district court’s judgment is affirmed.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 23-8054 Document: 010111029838 Date Filed: 04/10/2024 Page: 10