United States Court of Appeals

For the Eighth Circuit

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No. 17-1558

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Darren Kyle Stepp-Zafft,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court 

for the District of South Dakota - Sioux Falls

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Submitted: April 9, 2018

Filed: May 11, 2018

[Unpublished]

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Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.

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PER CURIAM.

Darren Kyle Stepp-Zafft was convicted at trial on three counts of possession

of unregistered firearms, in violation of 26 U.S.C. §§ 5861(d) and 5871. The district
court sentenced him to a total of thirty-seven months’ imprisonment. Stepp-Zafft

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appeals his convictions, arguing for the first time on appeal that the registration

requirements are unconstitutional. We conclude that there is no plain error

warranting relief, and we therefore affirm.

The prosecution arose from the execution of a search warrant at Stepp-Zafft’s

apartment in Sioux Falls, South Dakota. Law enforcement officers discovered

numerousfirearms, grenade bodies, fuses, black powder, empty carbon dioxide pellet

gun cylinders, and what appeared to be two homemade silencers fashioned out of oil

and fuel filters. A search of the National Firearms Registration and Transfer Record

revealed that some of these items were not registered to Stepp-Zafft, as required by

26 U.S.C. § 5861(d). A grand jury charged Stepp-Zafft with three counts of

possession of unregistered firearms—namely, five short-barreled rifles, nine

destructive devices, and two silencers.

At trial, agents described the items seized from Stepp-Zafft’s apartment. All

five of the unregistered short-barreled rifles had been modified from their original

design. Two had been modified with barrels shorter than sixteen inches. The other

three were originally designed and sold as pistols, but they had been converted into

short-barreled rifles with the addition of a shoulder stock. Stepp-Zafft testified that

the firearms belonged to his mother and thatshe had modified them. He also claimed

that the objects charged as unregistered silencers were merely homemade “solvent

traps” used for cleaning guns. The jury found Stepp-Zafft guilty on all three counts.

On appeal, Stepp-Zafft contends that the registration requirement

unconstitutionally infringes on a Second Amendment right to possess the shortThe Honorable Karen E. Schreier, United States DistrictJudge for the District 1

of South Dakota, imposed sentence. The Honorable Lawrence L. Piersol presided

over Stepp-Zafft’s trial.

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barreled rifles and homemade silencers found in his apartment. He also argues that

Congress lacked authority to enact the registration statute. Stepp-Zafft did not raise

these arguments in a pretrial motion to dismiss the indictment, see Fed. R. Crim. P.

12(b)(3)(B), or at any other time in the district court. We have said that a party must

show “good cause” to raise an alleged defect in the indictment for the first time on

appeal, see United States v. Anderson, 783 F.3d 727, 741 (8th Cir. 2015), but the

government does not raise that point and concedes instead that we should review for

plain error. Under that rubric, Stepp-Zafft must show an error that is “clear or

obvious, rather than subject to reasonable dispute,” Puckett v. United States, 556 U.S.

129, 135 (2009), and must demonstrate that the error affected his substantial rights

and seriously affected the fairness, integrity, orreputation ofthe judicial proceedings. 

See United States v. Olano, 507 U.S. 725, 734-36 (1993).

Stepp-Zafft first argues that 26 U.S.C. § 5861(d) unconstitutionally burdens a

Second Amendment right to possess short-barreled rifles and silencers. In District

of Columbia v. Heller, 554 U.S. 570 (2008), the Court explained that the Second

Amendment right to keep and bear arms extends to weapons that are in “common

use” and “typically possessed by law-abiding citizens for lawful purposes” like selfdefense. Id. at 624-25. Stepp-Zafft claims that short-barreled rifles are in common

use for lawful purposes, but he cites no authority in support of that view. Heller said

that there is no Second Amendment right to possess a short-barreled shotgun, 554

U.S. at 624;see also United States v. Miller, 307 U.S. 174, 178 (1939), and a plurality

of the Court previously observed in a different context that a short-barreled rifle is a

“concealable weapon” that is “likely to be used for criminal purposes.” United States

v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992) (plurality opinion). Other

courts have seen no constitutional distinction between short-barreled shotguns and

rifles in the wake of Heller. See, e.g., United States v. Gilbert, 286 F. App’x 383, 386

(9th Cir. 2008); United States v. Cox, 235 F. Supp. 3d 1221, 1227 (D. Kan. 2017);

United States v. Gonzales, No. 2:10-cr-00967, 2011 WL 5288727, at *6 (D. Utah

Nov. 2, 2011). The question is not presented for de novo review in this case, so we

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need not agree or disagree with these decisions of other courts, but Stepp-Zafft’s

constitutional claimis at least subject to reasonable dispute. The district court did not

make an obvious error by failing to dismiss the charge sua sponte.

Stepp-Zafft also contends that the Second Amendment guarantees a right to

possess unregistered silencers. He cites no supporting authority, however, and some

courts after Heller have rejected his position on the ground that silencers are not

typically possessed by law-abiding citizens for lawful purposes. See United States

v. McCartney, 357 F. App’x 73, 76 (9th Cir. 2009); Cox, 235 F. Supp. 3d at 1227;

United States v. Perkins, No. 4:08CR3064, 2008 WL 4372821, at *4 (D. Neb. Sept.

23, 2008). Stepp-Zafft argues on appeal that silencers are used lawfully for target

practice and for collection as exotic weapons. He reasons that the large number of

registered silencers shows that most people use them for harmless activities. But

because he did not raise this challenge in the district court, the parties did not present

evidence on the purposes and common uses of silencers. Again, the constitutional

question is not presented for de novo review here, but the claim is at least subject to

reasonable dispute in light of existing authorities and the undeveloped record in this

case. The district court did not commit a plain error by declining to dismiss the

charge on its own motion.

Stepp-Zafft next assertsthatCongress lacked authority to enact the registration

statute under either the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, or the Taxing

Clause, U.S. Const. art. I, § 8, cl. 1. We have held, however, that Congress properly

enacted the statute under the taxing power. United States v. Hall, 171 F.3d 1133,

1142 (8th Cir. 1999). Stepp-Zafft complains that the registration statute serves no

legitimate revenue-raising purpose, and isthus beyond the taxing power, because the

statute does not permit a “mere possessor” to register a firearm and pay the requisite

tax. But Hall rejected this precise argument, concluding that the statute is “in aid of

a revenue purpose,” id. (quoting Sonzinsky v. United States, 300 U.S. 506, 513

(1937)), because it helps the government to identify the maker liable for the tax, and

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encourages makers of firearms to register them and to pay the relevant tax so that

potential purchasers can lawfully accept them. Stepp-Zafft also suggests that NFIB

v. Sebelius, 567 U.S. 519 (2012), narrowed Congress’s taxing power and superseded

Hall. But NFIB upheld an Act of Congress based on the taxing power, id. at 574, and

nothing in that decision obviously undermines our relevant precedent. The district

court therefore committed no plain error.

The judgment of the district court is affirmed.

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