United States v. Michael Albert Focia
2017 U.S. App. LEXIS 17180
| 11th Cir. | 2017Background
- ATF agents, using undercover purchases on Dark Web marketplaces, traced multiple firearms shipments (domestic and international) to Michael A. Focia; packages were disguised as computer parts and bore Alabama return addresses.
- Undercover buys: Aug 9, 2013 sale to ATF agent Kessler (Nebraska delivery) and Oct 2014 sale to ATF agent Harrell (New Jersey delivery); packaging and latent fingerprint evidence tied shipments to Focia.
- Investigators linked Focia to firearm purchases from Alabama dealers, UPS packaging activity, surveillance of an Eclectic, AL residence, and items seized (safe with firearms, shipping materials, torn box serials) on a warrant search.
- Superseding indictment charged Focia with dealing firearms without a federal firearms license (18 U.S.C. § 922(a)(1)(A)) (Count 1), two counts of transferring firearms to out-of-state unlicensed residents (18 U.S.C. § 922(a)(5)) (Counts 2–3), and an electronic-interference count (acquitted on Count 4).
- Jury convicted on Counts 1–3; district court sentenced Focia to 51 months’ imprisonment. Focia appealed convictions and several legal rulings (sufficiency, jury instructions, Second Amendment challenges, and sentencing enhancements).
Issues
| Issue | Focia's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency — residency (Counts 2–3) | Government failed to prove Focia resided in Alabama at time of transfers | Evidence (AL driver’s license/addressed documents, surveillance, vehicle registration, items in residence) supported residency | Affirmed: circumstantial and direct evidence sufficient for a rational jury to find Alabama residency |
| Sufficiency — transferee FFL status (Count 2) | Record lacked proof transferee (Kessler) was not an FFL at time of transfer | Undercover agent testified he was not an FFL and did not represent himself as one; jury could credit that testimony | Affirmed: testimony was enough to avoid manifest miscarriage of justice review failure-to-preserve standard |
| Jury instruction on "engaged in business" (Count 1) | Pattern instruction omitted phrase "or for a hobby" and allowed conviction of non-primary-income sellers; wording (e.g., "supplementing one’s income") was overbroad | Pattern instruction accurately reflected statutory definitions and congressional intent; evidence showed commercial conduct not hobby | Affirmed: instruction legally correct; omission of "or for a hobby" was harmless given the evidence |
| Second Amendment — § 922(a)(1)(A) prior-restraint challenge | Statute is an impermissible prior restraint requiring narrow, objective standards for licensing analogous to First Amendment law | Prior-restraint First Amendment framework should not be imported; § 922(a)(1)(A) is a longstanding, constitutional regulatory measure | Affirmed: Court declined to extend First Amendment prior-restraint doctrine to Second Amendment challenges; statute upheld |
| Second Amendment — § 922(a)(5) residency transfer restriction | Prohibition on unlicensed interstate transfers burdens core Second Amendment rights and should fail heightened scrutiny | § 922(a)(5) regulates commercial sales minimally, fits within Heller’s "presumptively lawful regulatory measures," and does not substantially burden core home-defense rights | Affirmed: statute does not substantially burden Second Amendment; district court did not err in denying dismissal |
| Sentencing enhancements | District court overstated attributable firearm quantity, improperly applied international-transfer and obstruction enhancements | Even if enhancements were erroneous, district court stated it would impose same 51-month sentence; sentence substantively reasonable under § 3553(a) | Affirmed: any guideline errors harmless because court would have imposed same, and sentence was reasonable |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes individual right to possess firearms for self-defense and lists "presumptively lawful" regulations)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporates Second Amendment against the states)
- United States v. Fries, 725 F.3d 1286 (11th Cir. 2013) (elements and standard for § 922(a)(5) prosecutions)
- United States v. Rozier, 598 F.3d 768 (11th Cir. 2010) (upholding § 922(g)(1) as consistent with Second Amendment)
- GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 (11th Cir. 2012) (framework for evaluating when regulations burden conduct protected by Second Amendment)
- United States v. DeCastro, 682 F.3d 160 (2d Cir. 2012) (upholding regulation that assists state enforcement and does not substantially burden right to bear arms)
- United States v. Bailey, 123 F.3d 1381 (11th Cir. 1997) (fact-intensive inquiry into whether firearm sales amount to "engaged in the business")
- United States v. Schumann, 861 F.2d 1234 (11th Cir. 1988) (discussing congressional amendments narrowing the definition of "engaged in the business")