Conviction for selling firearms on the dark web upheld

Focia’s conviction arose from his sale of firearms on the dark web. He was charged with a violation of 18 USC section 922(a)(1) for transferring firearms to a resident of a state other than his own without a federal firearms license in violation of 18 USC section 922(a)(5). In his appeal he challenged the sufficiency of the evidence arguing that the government failed to prove that he and each transferee were not residents of the same state at the timer of each sale. He claimed that the government failed to prove that Focia was a resident of Alabama, a different state than where the buyers lived in Nebraska and New Jersey. He argued that the government only 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.

The court of appeals rejected this challenge finding that the government introduced sufficient evidence of Focia’s residence at the time of the sale to sustain his conviction. The government presented evidence directly tying Focia to Alabama including his driver’s license showing an address in Alabama that did not expire until three months after Focia completed his transaction with the buyer and documents from E-trade Financial and a pawn shop in Alabama bearing Focia’s name and address in Alabama. Additionally, the government introduced powerful circumstantial evidence from which a jury could reasonably infer that Focia resided in Alabama at the time he shipped firearms to undercover agents located in the two states.

The second claim raised was that the government failed to demonstrate that the undercover agent informed the defendant that he lacked a federal firearms license at the time of the transfer as required by the plain language of 18 USC 922. The court rejected this argument finding that a reasonable jury could have understood the agent’s testimony to mean that he did not have a federal firearms licenses at the time of the purchase that was the subject of the charge.

A third challenge was that the instructions allowed the jury to convict him of conduct not criminalized under the plain language of the statute. Essentially, he argued the instruction allowed the jury to convict him even if the jury believed him to be nothing more than a hobbyist who supplemented his income through the occasional firearm sale, selling guns incidental to a gun-collecting hobby or otherwise as a hobby.

The court of appeals rejected his argument because it found that Congress intended to make selling guns by a person who is not a licensed firearms dealer a federal crime, whether it is the seller’s sole means of income or as the seller’s side business.   There was no evidence from which a jury could conclude that Focia was a mere hobbyist gun collector. Instead the court found the evidence supported the conclusion that Focia was a savvy seller of firearms for profit. The failure to include the language was not error.