Judge Robin Rosenbaum, U.S. Courts of Appeals for the Eleventh Circuit. (Melanie Bell)
Upholding the conviction of an Alabama man for unlicensed interstate gun trafficking, the U.S. Court of Appeals for the Eleventh Circuit acknowledged the novelty of his argument that he was shielded by the First Amendment’s prior restraint protection as well as the Second Amendment’s right to bear arms.
That novelty was not enough to sway the judges, but the case—which involved the bitcoin sale of weapons on the dark web, a clandestine access-controlled section of internet—sparked noirish literary leanings in Judge Robin Rosenbaum, who authored the opinion.
“The Dark Web. For many, the name conjures images of a suspect shadow internet world where virtually anything can be bought for the right price,” she wrote.
“And the Dark Web—on, in one case, a site called Black Market Reloaded—is where defendant-appellant Michael Albert Focia chose to sell firearms domestically and internationally,” wrote Rosenbaum for a panel that included Chief Judge Ed Carnes and Judge Joel Dubina.
As detailed in the order and court filings, an undercover ATF agent bought a .40-caliber Smith and Wesson handgun for 15 bitcoins, or $1,601, from someone calling himself “iWorks” on the Black Market Reloaded website, and had it sent to an address in Omaha, Nebraska. The gun arrived in the mail two days later, sent from an address in Montgomery, Alabama.
An ATF investigation led to Focia and turned up 18 packages mailed internationally in September and November 2013 from a return address identified as Computer Doctor in Auburn, Alabama.
Two packages containing handguns were intercepted on their ay to Australia, and another was seized in Australia. An ATF agent bought another gun on a different Dark Web site from a seller called RTBArms, who they believed was Focia.
The package was shipped from a Montgomery address to Newark, New Jersey. It contained a fingerprint identified as Focia’s.
Focia never had a federal firearms license, hadn’t filed tax returns since 2010, and his Social Security records “showed no active employment.”
ATF agents executing a search warrant at Focia’s home found a safe loaded with firearms and ammunition, a stack of empty firearms boxes with their serial numbers torn off, packaging and shipping materials, and a receipt in his name for a gun bought at an Alabama pawn shop.
In 2015, a federal grand jury indicted Focia on one count of dealing firearms without a license, two counts of transferring firearms to residents of other states without a federal firearms license, and one count of interfering with communications system for his alleged use of a signal-jamming device.
Focia dismissed the public defender representing him, and his pleadings were a mix of statutory case law and assertions that, as “a private peaceful living flesh and blood People of the united (sic) States of America (States of the Union), a transient foreigner, domiciled in the Kingdom of Heaven,” he is neither a U.S. nor Alabama citizen.
Focia represented himself during a 4.5-day trial in June 2015, although he did have a “standby” lawyer, Montgomery-based federal defender Spencer Hahn.
“He did a pretty good job,” said Hahn. “He actually won on one count,” getting the jury to acquit on the communications-jamming accusation.
Focia was sentenced to 51 months in prison.
Hahn handled Focia’s Eleventh Circuit appeal, which challenged the jury instructions and sentencing enhancements.
He also challenged the law requiring a federal firearms licensing as “unconstitutional inasmuch as it amounts to an impermissible prior restraint on the exercise of a constitutional right”—namely, the Second Amendment right to bear arms.
“Admittedly, reaching this conclusion will require the court to go where no court has gone before—applying First Amendment prior restraint doctrine to Second Amendment challenges—but, if it does so, the statute cannot survive the challenge,” Hahn wrote in his appellate brief.
Hahn said he could not take credit for the concept. He first found it in a 2014 Tennessee Law Review article by professor David Kopel of Denver University’s Sturm College of Law.
“The idea is that these are both individual rights, and we should treat them the same way,” he said. “It does make some sense.”
Rosenbaum, however, was not persuaded. Focia, she wrote, relied on the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller “in support of his argument that challenges to law regulating rights protected by the Second Amendment should be analyzed similarly to challenges advanced under the First Amendment. He urges us to find this leap logical in light of the Supreme Court’s reliance on First Amendment jurisprudence when deciding the Second Amendment issue raised in Heller.”
“This issue is one of first impression in our court,” she wrote, but five other circuits opted not to extend “First Amendment prior restraint doctrine into Second Amendment arena.”
She cited several of those opinions, including a 2016 Seventh Circuit ruling, Berron v. Ill. Concealed License Carry Review Board, which said such an application would be “flawed because while ‘everyone is entitled to speak and write … not everyone is entitled to carry a concealed firearm in public.’”
Rosenbaum also dismissed Focia’s challenges to the constitutionality of the law prohibiting the transfer of a firearm by one unlicensed person to another in a different state as “only minimally affect[ing] the ability to acquire a firearm.”
She upheld the trial court’s other rulings.
Hahn said he was disappointed but not surprised by the ruling.
“Frankly, with regard to the constitutional issues, they obviously aren’t going to go out on a limb and do something nobody else has done,” he said. “At some point, maybe some circuit will take it up and create a circuit split that can go to the Supreme Court.”
Hahn said he is going to file for cert with the high court, “but we’re not likely to get it.”