A four-year wait, a four-day trial
When the case finally came to trial last year, much of the four-day proceeding consisted of Nicolaysen, Roh's defense attorney, grilling ATF officials on arcane gun laws and regulations and the agency's internal decision-making process.
After both sides presented their evidence, the defense filed a motion for acquittal, arguing that the government's case against Roh was "legally flawed" because the charges were based on a violation of an internal ATF "classification" as opposed to federal law.
Nicolaysen argued that the definition of a receiver under the relevant federal code differed in various ways from the AR-15 component Roh was accused of manufacturing.
Under the US Code of Federal Regulations, a firearm frame or receiver is defined as: "That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel."
The lower receiver in Roh's case does not have a bolt or breechblock and is not threaded to receive the barrel, Nicolaysen noted.
He called the decision to classify it as a firearm nonetheless, the result of "secret, in-house decision-making."
Nicolaysen accused the ATF of abusing its authority by pursuing Roh based on his alleged violation of a policy "that masquerades as law."
He asked the judge to consider recommending that then-US Attorney General Jeff Sessions conduct a review to determine whether there were any similar cases pending around the country or past convictions "sustained on the basis of ATF policy, rather than law."
Prosecutors acknowledged there were technical differences between the regulation and the lower receiver in Roh's case, but said the ATF's interpretation of the regulation was consistent with the intent of federal gun laws. The agency's reading of the law "should also receive deference from this court," prosecutors Shawn J. Nelson and Benjamin D. Lichtman argued.
Adopting the defense position, the prosecutors wrote, would be "manifestly incompatible" with the intent of the federal Gun Control Act and would "severely frustrate" enforcement of the law.
The prosecutors' filing said a ruling in favor of the defense could impact the receivers for up to 90% of the firearms in America.
"The necessary result of this would be that the unregulated parts could be manufactured, sold, and combined with other commercially available parts to create completed, un-serialized firearms which would not be subject to background checks, and which would be untraceable," the prosecutors wrote. "Defendant's interpretation would mean that nearly every semi-automatic firearm could be purchased piece by piece with no regulation or background check before a prohibited person would have a firearm."
'There is a disconnect'
Though the trial lasted less than a week, Selna deliberated for more than year. In April, he issued a tentative order in which he determined that the ATF had improperly classified the AR-15 lower receivers in Roh's case as firearms.
He rejected the prosecution's argument that the ATF's interpretation of the regulation describing a receiver could reasonably be applied to the device at issue in Roh's case.
"There is a disconnect," the judge wrote.
Selna added that the combination of the federal law and regulation governing the manufacturing of receivers is "unconstitutionally vague" as applied in the case against Roh.
"No reasonable person would understand that a part constitutes a receiver where it lacks the components specified in the regulation," Selna wrote.
Therefore, the judge determined, "Roh did not violate the law by manufacturing receivers."
The judge's tentative order also found that the ATF's in-house classification process failed to comply with federal rule-making procedures. Changes to substantive federal regulations typically include a notice-and-comment period and eventual publication in the Federal Register.
Selna did find that Roh was guilty of selling completed firearms without a license, subjecting him to a possible prison sentence.
Following Selna's tentative order, the prosecution and defense agreed to a deal in which Roh would plead guilty to the charge against him, but would be allowed to withdraw that plea if he stayed out of trouble for a year. Prosecutors would then dismiss the case. If Roh abides by the deal, he will have no criminal conviction and serve no time behind bars.
Sources familiar with the agreement said prosecutors wanted to strike a deal in order to prevent Selna's order from becoming permanent, drawing publicity, and creating case law that could hamper ATF enforcement efforts.
Roh accepted the deal to avoid a permanent conviction — and possible prison time — for dealing firearms without a license.
Nicolaysen declined to comment on the details of Roh's alleged activities, citing his pending diversion agreement.
But he said his client has left his firearms-related business behind and now deals in industrial vacuums.
Despite Roh's departure from the gun trade, the lawyer said, the issues surrounding his alleged practices remain.
"AR-15s, as we speak today, do not have a receiver by the definition of the existing law and that's a huge issue," he said. "It shows that the laws are obsolete and they're out of sync with the realities of today's firearms market."
Winkler, the UCLA law professor, offered a similar assessment.
When he was first informed of the judge's tentative order by a CNN reporter, Winkler said, "I thought the logic was crazy."
But after reviewing the order and several filings in the case at the request of CNN, he said Selna's rationale appeared legally sound.
"It does seem like there is problem," Winkler said.
