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United States v. Focia

United States Court of Appeals, Eleventh Circuit

September 6, 2017

MICHAEL ALBERT FOCIA, Defendant-Appellant.

         Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:15-cr-00017-AKK-WC-1

          Before ED CARNES, Chief Judge, and ROSENBAUM and DUBINA, Circuit Judges.

          ROSENBAUM, Circuit Judge.

         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.[1] Indeed, Bureau of Alcohol, Tobacco, Firearms & Explosives ("ATF") Special Agent Tully Kessler described the Dark Web as "another side of the Internet . . . access[ible] through your Internet provider . . . [but only using] special software." He opined that it "allow[s] the sale and trade of all kinds of things that you would never find on a regular website open to the public." 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.

         A jury convicted Focia of dealing in firearms without a federal firearms license, in violation of 18 U.S.C. § 922(a)(1)(A), and selling firearms to unlicensed residents of states other than his own without having a license to do so, in violation of 18 U.S.C. § 922(a)(5). He now challenges the sufficiency of the evidence to convict him, the jury instructions, the constitutionality of the criminal statutes of which he was convicted, and his sentence. After careful consideration, and with the benefit of oral argument, we affirm Focia's conviction and sentence.


         ATF Special Agent Kessler visited Black Market Reloaded on the Dark Web. Acting in an undercover capacity, Kessler agreed to buy a Smith & Wesson M&P Shield .40-caliber pistol, serial number HPP9188, for fifteen bitcoins, or $1, 601.95, from someone who identified as "iWorks." Kessler placed his order on August 7, 2013, directing the gun to be sent to an address in Omaha, Nebraska.

         A message from iWorks arrived in response almost immediately, confirming the purchase and advising that delivery was scheduled for August 9, 2013. At no point did iWorks ask whether Kessler had a federal firearms license.

         As promised, on August 9, 2013, Kessler received through the United States Postal Service a priority-mail box that contained a Smith & Wesson .40-caliber firearm, serial number HPP9188, and two magazines. The package was mailed from an address in Montgomery, Alabama. That same day, iWorks left Kessler a message that read, "Dude, the gun shows delivered. Are you happy or what? Please don't forget about me. I busted my ass to get it to you in two days."

         In an effort to discover the identity of "iWorks, " ATF agents ran a trace on the Smith & Wesson firearm and learned that it had been purchased on July 29, 2013, from a store in Montgomery, by a man named Alan Turner. So ATF agents met with Turner on November 15, 2013. Turner told them that he had sold the Smith & Wesson firearm in question on August 2, 2013, to a man named "Mike." He also provided ATF with the Alabama license-plate number on Mike's vehicle.

         A database search of the license-plate number revealed that it was registered to Presley Focia of Prattville, Alabama, and had previously been registered to Presley's father, Michael Focia, at 204 Seminole Drive, Montgomery, Alabama. Based upon this information, and suspecting that the man Turner referred to as "Mike" was Defendant-Appellant Michael Albert Focia, ATF Special Agent Jennifer Rudden-Conway showed Turner a photographic lineup that included Focia's photograph. From this lineup, Turner identified Focia as the "Mike" who had purchased the Smith & Wesson firearm from him.

         Further investigation led Rudden-Conway to Jessica Busby, an employee at a UPS store located in Montgomery, Alabama. Rudden-Conway presented Busby with the same lineup she showed Turner. Like Turner, Busby also identified Focia. Busby explained that she had helped package a box for him at her store on August 7, 2013. According to Busby, Focia identified the box's contents as a computer mother board. Although Focia packaged the box at Busby's store, Busby noted that he took the box with him to mail himself. Busby's store's mail person had already left for the day, and Focia told Busby that the package was "very important and that he was trying to get it out that day."

         Upon linking Focia to the sale of the firearm to Kessler, Rudden-Conway decided to further investigate Focia. As it turned out, ATF's Intelligence Division had information concerning eighteen packages mailed internationally in the two- month period between September 23 and November 18, 2013, from a return address identified as Computer Doctor, 478 Opelika Road, Auburn, Alabama. The Australian Customs Service intercepted two of these packages-one headed for Melbourne, Australia, in September 2013 and another headed for Taylor Hills, Australia, in November 2013. Authorities were aware that sixteen other packages had been shipped using the Computer Doctor name, but they never intercepted those packages.

         On the Customs declaration form, the sender identified the package shipped to Melbourne as a refurbished computer hard drive. But the package contained no such item. Instead, it held a Kel-Tec PF-9 handgun and magazine wrapped in cardboard, duct tape, and metal sheeting-approximating the size and shape of a computer hard drive-and placed in a Dri-Shield moisture barrier bag. A trace of the serial number on the firearm revealed that it had last been sold to Focia.

         As for the package shipped to Taylor Hills, it contained a Glock Model 26 9mm handgun and two magazines. ATF determined, through a firearms trace, that someone driving a vehicle with an Alabama license plate registered to Focia had purchased this gun. Like the firearm in the Melbourne package, this weapon was also wrapped to appear as though it was a computer hard drive.[3]

         ATF's investigation of Focia continued into 2014. In October of that year, ATF agents completed a second undercover firearms purchase from the seller they believed to be Focia-this time through Agora, another website on the Dark Web.

         ATF Special Agent John Harrell created a fake account and used it to buy a Glock Model 27 .40-caliber pistol and two magazines from seller "RTBArms." Harrell told RTBArms that he was looking to purchase a gun through Agora to evade the firearms restrictions of his home state of New York, so he instructed RTBArms to mail the firearm to an address in Newark, New Jersey.

         The package was mailed using the United States Postal Service and bore a return address in Montgomery, Alabama. Like the weapons intercepted in Australia, the firearm sent to Harrell was wrapped in cardboard, tape, and metal, and it was placed inside a heat-sealed bag. It arrived at a post-office box in Newark, New Jersey, on October 25, 2014. A forensic analysis of the interior packaging identified a latent fingerprint that belonged to Focia.

         Further investigation revealed that Focia neither had nor ever possessed a federal firearms license. Nor were agents able to identify any alternate sources of income for Focia, since Focia had failed to file federal income tax returns for the years 2010 and 2012 through 2014. A search of Focia's Social Security number likewise showed no active employment.

         In light of this information, ATF obtained a warrant to search 55 Boathouse Road in Eclectic, Alabama, a house ATF believed to be Focia's residence.[4] The search yielded the following items: (1) a safe loaded with firearms and ammunition; (2) a stack of empty firearms boxes with their serial numbers torn off; (3) packaging and shipping materials, including heat-sealing materials, a Dri-Shield, bubble-foam mailing envelopes, USPS priority mail boxes, duct tape, and a roll of metal sheeting; (4) Focia's expired driver's license, with an address at 204 Seminole Drive in Alabama and an expiration date of December 22, 2013; (5) an E*Trade Financial document bearing the name "Michael A. Focia" and an address at 204 Seminole Drive in Alabama; and (6) a receipt bearing the name "Michael Albert Focia" and an Alabama address for Focia, for a firearm purchase made on April 19, 2010, from a pawn shop in Alabama. One of the firearms recovered, an H&K USP Tactical .45-caliber handgun with threaded barrel, matched a gun listed for sale on Agora on October 16, 2014, by the vendor RTBArms.


         On March 18, 2015, a grand jury returned a superseding indictment charging Focia with being in the business of dealing firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A), 923(a), and 924(a)(1)(D) (Count 1); transferring firearms to residents of states other than his own without a federal firearms license, in violation of 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(D) (Counts 2 and 3);[5] and interfering with communication systems (Count 4).[6]

         Before trial, Focia, proceeding pro se, moved to dismiss Counts 1, 2, and 3 of the indictment as violative of his rights under the Second Amendment. The magistrate judge issued a report and recommendation ("R&R") recommending that Focia's motions be denied, and the district court adopted the R&R.

         Trial began on June 15, 2015. At the close of the Government's case, Focia moved for a judgment of acquittal on Counts 2 and 3 on the basis that the Government failed to establish Focia's residency in Alabama. The district court denied Focia's motion.

         After resting, Focia renewed his motion for judgment of acquittal on the same grounds, which the district court denied as to all counts. The district court also overruled Focia's objections to the jury instructions as to Count 1, dealing in firearms without a license. The next day, the jury returned its verdict, finding Focia guilty on Counts 1, 2, and 3.

         The United States Probation Office filed its Presentence Investigation Report ("PSR") on November 12, 2015, assigning Focia a total offense level of 22 and criminal history category of I. That corresponded to a guidelines range of 41 to 51 months, with a statutory maximum sentence of 60 months. Both the government and Focia filed objections to the PSR.

         At the sentencing hearing on November 24, 2015, the district court heard testimony from Rudden-Conway. It then sustained the government's objection and overruled Focia's objections. As a result, the district court calculated Focia's offense level to be 24, with a criminal history category of I, resulting in a guidelines range of 51-60 months. The district court then sentenced Focia to 51 months' imprisonment on Counts 1, 2, and 3, to be served concurrently, and noted that it would have sentenced Focia to 51 months, regardless of how the issues raised by the parties had been resolved. Focia now appeals his conviction and sentence.


         Focia challenges his conviction and sentence on multiple grounds. First, he takes issue with the sufficiency of the evidence as to Counts 2 and 3. Second, he argues that the jury instructions as to Count 1 allowed the jury to convict him for conduct not criminalized under the plain language of 18 U.S.C. § 922(a)(1)(A). Third, he contends that § 922(a)(1)(A), the statute under which he was charged in Count 1, is an impermissible prior restraint in violation of the Second Amendment. Fourth, he asserts that any restriction on his right to transfer firearms based solely on residency (the basis for a violation of 18 U.S.C. § 922(a)(5) as charged in Counts 2 and 3) violates the Second Amendment. And finally, he challenges the district court's determination of his guidelines range and sentence. We address each argument in turn.


         Focia makes two separate arguments concerning the sufficiency of the government's evidence to convict him of violating 18 U.S.C. § 922(a)(5), as charged in Counts 2 and 3 of the superseding indictment. To prove that a defendant violated 18 U.S.C. § 922(a)(5), the government must offer evidence of four essential elements:

(1) the defendant was not a licensed firearms importer, manufacturer, dealer, or collector; (2) the defendant transferred, sold, traded, gave, transported, or delivered a firearm to another person; (3) the person to whom the defendant transferred the firearm was not a licensed importer, manufacturer, dealer, or collector; and (4) the defendant knew or had reasonable cause to believe that the person to whom the firearm was transferred did not reside in the defendant's state or residence.

United States v. Fries, 725 F.3d 1286, 1291 (11th Cir. 2013).

         First, Focia posits that his convictions on these counts must be vacated because the government failed to prove that he and each transferee were not residents of the same state at the time of each sale. Second, he asserts, for the first time on appeal, that his conviction as to Count 2 must be vacated because the firearm recipient's federal-firearms-license status at the time of the transfer was not in the record. We are not persuaded by either argument.

         1. Residency

         Focia contends that the government failed to present evidence that, at the time of the sale of the firearms to Kessler in Nebraska and Harrell in New Jersey, Focia was a resident of a different state, namely Alabama. At most, Focia argues, the government established only that Focia used to live in Alabama at some point before the firearm sales and that he was present in Alabama several times over the span of two years. We disagree.

         We review de novo the sufficiency of evidence to support a conviction. United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We will affirm a conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999) (internal quotation marks omitted) (emphasis in original). In making this determination, we view the evidence in the light most favorable to the government and accept all reasonable inferences in favor of the jury's verdict. United States v. Chirinos, 112 F.3d 1089, 1095 (11th Cir. 1997).

         Here, the government introduced sufficient evidence of Focia's residence to sustain Focia's convictions under Counts 2 and 3. First, the government presented evidence directly tying Focia to Alabama, including Focia's driver's license, which bore an address in Montgomery, Alabama, and did not expire until December 22, 2013-three months after Focia completed his transaction with Kessler; and ...

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