JACKSONVILLE, Fla. (CN) — The attorney for a man accused of plotting to shoot up a Florida mosque asked an 11th Circuit panel Friday to throw out a related firearms conviction.
If successful, the appeal brought by Bernandino Bolatete, convicted in 2018 of possessing an unregistered silencer, could upend portions of a gun control law passed more than 80 years ago.
Bolatete, a 72-year-old green card holder from the Philippines, was the focus of a month-long investigation by the Jacksonville Sheriff’s Office and federal authorities in 2017, during which Bolatete told an undercover detective about his plan to attack the Islamic Center of Northeast Florida during worship services.
According to court documents, Bolatete visited gun ranges with the undercover detective where he denigrated Islam and negotiated gun purchases.
Bolatete believed he was terminally ill and planned to attack the mosque and die by “suicide by cop,” court transcripts of the undercover detective’s recordings show.
“We will try a Christian doing terroristic act this time to the Muslims,” Bolatete told the detective. “They doing it all the time, you know?”
“Go up to the tower and start shooting,” he said, laughing. “It will be — it will be great, right?”
After the detective sold an unregistered silencer to Bolatete for $100, FBI agents made an arrest and searched his home and car, uncovering 11 guns and more than 2,000 rounds of ammunition.
After a jury found him guilty of possessing an unregistered silencer in 2018, U.S. District Judge Harvey Schlesinger sentenced him to five years in federal prison. The law allows for up to 10 years.
Passed in 1934, the National Firearms Act mandates certain types of firearms and accessories, such as machine guns, explosives and silencers, must be registered with the federal government. In addition, firearm makers and dealers must pay a $200 tax stamp to the Bureau of Alcohol, Tobacco and Firearms – an amount that has stayed the same since the law’s passage.
Gun stores licensed to sell silencers will typically submit the buyer’s registration application with the $200 fee and release the device after approval by the ATF. Similarly, the ATF provides private sellers with a form to sign and send with payment before the seller hands over the silencer. The process can take up to a year.
During Thursday’s oral arguments before the 11th Circuit, held via teleconference due to the Covid-19 pandemic, public defender Lynn Bailey made her case on why Bolatete’s conviction exceeds Congress’s power to tax and violates the Second Amendment by requiring him to pay for a constitutionally protected right.
Bailey questioned why Bolatete, the buyer of the unregistered silencer, had a duty to register the device and purchase the tax stamp, and not the seller – in this case, the undercover detective.
“It makes more sense to me for the maker or transferor” to pay the tax, Bailey told the three-judge panel of the Atlanta-based appeals court. “They are the ones responsible for paying the tax … But here you are punishing the transferee with 10 years in prison ostensibly for a tax that someone else is required to pay, and he doesn’t know whether it’s paid or not.”
U.S. Circuit Judge Ed Carnes interjected.
“We get taxed all the time by things we don’t know during transactions,” the Ronald Reagan appointee said. “But nobody’s ever suggested that means it’s an invalid exercise of the taxing power.”
He also noted the person receiving the firearm “could determine whether the tax was paid or not by asking the transferor, couldn’t he?”
Bailey argued the responsibility should not lie on the buyer.
“What we’re really arguing here is the punishment of the downstream possessor, this downstream transferee, does not aid with any revenue purpose,” she said. “This is a punitive statute and not a taxing statute … There is something offensive about incentivizing imprisoning the transferee and shifting the burden of knowledge, the burden to inquire about the tax stamp, to the transferee.”
Even if Bolatete knew the silencer was not registered, she said, he cannot pay the tax to legitimize the purchase.
Justice Department attorney Peter Sholl piggy-backed on the judges’ comments about the responsibility of Bolatete to register the silencer and pay the tax.
U.S. Circuit Judge Elizabeth Branch interjected.
“Here you are faced with a defendant who did not have the option of paying the tax to avoid implicating the statute,” the Donald Trump appointee said.
Sholl asserted Bolatete never had the intention of registering the silencer.
“He asked for an unregistered silencer,” Sholl said, referencing undercover recordings. “The concept of an unregistered silencer initially came from Mr. Bolatete.”
U.S. Circuit Judge Robert Luck, another Trump appointee, jumped in.
“In other words, his defense was not that, ‘Oh if you hadn’t arrested me, I was on my way to paying the registration fee and get a stamp on this thing,’” Luck said. “His argument was, ‘I was entrapped into doing exactly what I did.’”
“Correct,” Sholl replied.
Luck suggested the appellate panel might not be able to reverse the conviction based on prior case law. Two years ago, the 10th Circuit ruled in a similar case that the Second Amendment does not apply to silencers. The Supreme Court later declined to take up the case.
“I’m having trouble getting around that we’re bound by our precedent on this,” Luck said. “Maybe we shouldn’t be bound and maybe the en banc court or the Supreme Court should take this issue up. But for a panel member I’m having trouble trying to get around what the law is that governs my decision making.”