A darknet firearms vendor recently lost his appeal in the 11th Circuit Court of Appeals. Michael Focia of Montgomery, Alabama was a firearms vendor on Agora and Black Market Reloaded. He was convicted of selling two firearms to Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) agents in 2015. Fingerprints left by Focia inside of the package of firearms he mailed out were one of the things which led to his downfall. In November of 2015 he was sentenced to 51 months in federal prison. The United States Court of Appeals for the 11th Circuit upheld Focia’s conviction and rejected the constitutional challenges his attorney raised.

Focia’s attorney, Spencer J. Hahn, argued that Focia was protected through the 1st amendment’s prohibition on prior restraint of free speech and the 2nd amendment’s right to bear arms. “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,” Judge Robin Rosenbaum wrote in the panel’s opinion. “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,” Judge Rosenbaum continued in her opinion.

Focia did not have a Federal Firearms License (FFL) and had not filed income tax returns since 2010. Records with the Social Security Administration did not show him as being employed. During his five day trial in 2015, Focia fired his public defender and acted as his own attorney, with Spencer Hahn as his standby counsel. Despite being convicted, Hahn said that Focia did a pretty good job acting as his own attorney. Focia was able to convince the jury to acquit him on one count of jamming communications. However, Focia ended up using some “sovereign citizen” style nonsense during his defense. He told the court that he was not a citizen of Alabama or the United States and that he was, “a private peaceful living flesh and blood People of the united States of America (States of the Union), a transient foreigner, domiciled in the Kingdom of Heaven.”

Spencer Hahn handled Focia’s appeal and challenged the judge’s jury instructions, the sentence enhancements, as well as the law requiring a FFL. The jury instructions allowed for a conviction based on conduct that was not prohibited by the statute Focia was being charged with. Hahn argued that the law which required firearms vendors to be licensed was a form of prior restraint against Focia’s 2nd amendment right. Such a legal argument had not previously been considered by the courts. Hahn did not originate this line of thinking on applying prior restraint restrictions to the 2nd amendment, he had discovered it in an article from the 2014 Tennessee law review. The argument goes that because both free speech and the right to bear arms are both individual rights, they should be treated similarly. Unfortunately, the 11th Circuit Court of Appeals did not agree with Hahn and Focia. Hahn hopes this argument will be used in a different district and that a split will occur which would make it more likely that the United States Supreme Court would settle the issue.

In 2008 the United States Supreme Court ruled that the 2nd amendment protected individual rights. Judge Rosenbaum pointed to five other circuit courts which declined to extend prior restraint protections for the 2nd amendment right, including a ruling from last year in the case of Berron v. Ill. Concealed License Carry Review Board. Focia’s attorney, Spencer Hahn, plans to continue appealing the court’s ruling by filing for a writ of certiorari with the United States Supreme Court. The high court could deny the writ, which would end Focia’s appeals on the grounds he has been challenging his conviction and sentence.

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