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The Tempest in a Teapot: Foreign Convictions as Predicate Offenses Under the Federal Felon in Possession of a Firearm Statute [United States v. Gayle, 342 F.3d 89 (2d Cir. 2003)]
Dionna K. Taylor* I. INTRODUCTION In 2001, United States special agents, concerned for their own safety, donned bulletproof vests as they prepared to raid Rohan Ingram’s hotel room in New York.1 They decided to wear protective gear after running a criminal history check on Ingram through the Treasury Enforcement Computer System (TECS).2 The TECS record revealed Ingram’s shockingly extensive criminal background.3 With at least eighteen convictions, ranging from assault to use of a firearm during the commission of a crime, Ingram’s criminal background merited a warning of “armed and dangerous” on the TECS printout.4 The
* B.A. 1999, Washburn University; J.D. Candidate 2005, Washburn University School of Law. To my family, friends, and mentors, thank you for the endless support and patience you have provided during this project. I specifically wish to thank Abigail Robinson and Professor Alex Glashausser for their legal and technical insights between drafts. I dedicate this work to my husband, Mark Taylor, who keeps my sanity intact with his love and laughter, and to the memory of my grandmother, Genevieve Dion, whose unwavering faith in me taught me to believe in myself. 1. United States v. Ingram, 164 F. Supp. 2d 310, 314-15 (N.D.N.Y. 2001), aff’d in part sub nom. United States v. Gayle, 342 F.3d 89 (2d Cir. 2003); Appendix for Appellant Rohan Ingram at A48, Gayle (No. 02-1095). The agents worked as United States Border Patrol Agents. Brief for Appellant at 2-3, Gayle (No. 02-1095). The agents went to the hotel room based on information gathered from a border inspection of Kirk Gayle, who was stopped while entering the United States from Canada. Id. The Second Circuit decided Gayle, 342 F.3d 89, the case that reversed Ingram, on August 27, 2003. On January 7, 2004, in response to the United States’ Petition for Rehearing, the Second Circuit amended the original decision by adding footnote seven. United States v. Gayle, No. 02-1095, 2003 U.S. App. LEXIS 26673, at *18 n.7 (2d Cir. Jan. 7, 2004). In this hastily added footnote, the court addressed a compelling argument that the Government included in its Petition for Rehearing. Id. The Government’s argument revealed the Gayle court’s reliance on subsequent legislative history to interpret the phrase “in any court,” which actually had its roots in a previously enacted statute. Id. However, the court refused to ignore the reports it originally relied on, noting that “it would be unreasonable to disregard the authoritative legislative history surrounding [the Gun Control Act’s] enactment.” Id. As of the date of this writing, the original decision can be found on Lexis using the citation 2003 U.S. App. LEXIS 17900. The amended decision can be found on Westlaw using the original citation, 342 F.3d 89, and on Lexis using a new citation, 2003 U.S. App. LEXIS 26673. See infra notes 164-78 and accompanying text. In this comment, citations to Gayle use the pagination of the unamended opinion, 342 F.3d 89. 2. Ingram, 164 F. Supp. 2d at 313; see also Appendix for Appellant Rohan Ingram at A183-208, Gayle (No. 02-1095). 3. Appendix for Appellant Rohan Ingram at A44, A183-208, Gayle (No. 02-1095). 4. Id. at A191, A199. The Treasury Enforcement Computer System (TECS) record showed convictions as far back as 1991, including two convictions for assault, eight convictions for various weapons violations (i.e., possession and concealed carry), two convictions for obstructing a peace officer, three convictions for failing to comply with either a probation order or recognizance, one conviction for pointing a firearm, one conviction for use of a firearm during the commission of an offense, and one conviction for possession of 395 grams of hash and twoto-twenty-six kilograms of marijuana. Id. at A183-208.

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agents’ concerns were well-founded; in a search of Ingram’s hotel room incident to his arrest, they discovered thirteen handguns.5 Later that year, Ingram was convicted and sentenced to prison for two federal offenses, conspiracy to acquire firearms and conspiracy to export firearms.6 Due to his criminal background, Ingram should have been convicted of a third charge, being a felon in possession of a firearm.7 He was not.8 The federal felon in possession of a firearm statute, 18 U.S.C. § 922(g)(1),9 prohibits persons with certain criminal convictions from any court from possessing firearms.10 Congress enacted the statute to fulfill a broad purpose: “to keep firearms away from the persons [it] classified as potentially irresponsible and dangerous.”11 In United States v. Gayle,12 the United States Court of Appeals for the Second Circuit, ignoring the general purpose of the felon in possession statute, held that the statute did not apply to Ingram simply because a Canadian court issued the predicate conviction.13 The few courts that have addressed whether prior foreign convictions may serve as predicate offenses under the felon in possession
5. Ingram, 164 F. Supp. 2d at 313. The court’s conclusions that the agents had probable cause to arrest, that the protective sweep of the hotel room was incident to a lawful arrest, and that the agents lawfully seized items in plain view were affirmed by the Second Circuit in a separate proceeding. United States v. Gayle, No. 02-1095, 2003 WL 22019111, at *3-4 (2d Cir. Aug. 27, 2003), cert. denied, 2004 WL 1373324 (U.S. June 2004) (No. 03-10327). 6. Gayle, 342 F.3d at 90. A jury also found Ingram guilty of being a felon in possession of a firearm. Id. at 91. The United States District Court for the Northern District of New York agreed with the jury’s verdict, but the Second Circuit reversed that portion of Ingram’s conviction. Id. at 90-91; Ingram, 164 F. Supp. 2d at 317. 7. Firearms Owners’ Protection Act, 18 U.S.C. § 922(g)(1) (2000) [hereinafter FOPA]. States have similar statutes. See Martha Kimes, Note, The Effect of Foreign Criminal Convictions Under American Repeat Offender Statutes: A Case Against the Use of Foreign Crimes in Determining Habitual Criminal Status, 35 COLUM. J. TRANSNAT’L L. 503, 503 (1997) (“Every state in the nation currently has some variety of recidivist statute . . . .”); see also Alex Glashausser, Note, The Treatment of Foreign Country Convictions as Predicates for Sentence Enhancement Under Recidivist Statutes, 44 DUKE L.J. 134, 134-35 (1994). 8. Gayle, 342 F.3d at 90. 9. Hereinafter referred to as the felon in possession statute. 10. FOPA, 18 U.S.C. § 922(g)(1) (2000) (emphasis added). The prior conviction is commonly referred to as the “predicate” conviction or offense. See, e.g., Gayle, 342 F.3d at 90. 11. United States v. Barrett, 423 U.S. 212, 218 (1976); see also Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 1968 U.S.C.C.A.N. (82 Stat. 197) 270-71 [hereinafter OCCSSA]. Barrett dealt with the Gun Control Act of 1968, the predecessor of FOPA, which includes § 922. 423 U.S. at 212-13; see FOPA, 18 U.S.C. §§ 921-930 (2000); Gun Control Act of 1968, §§ 101-105, 301-302, 1968 U.S.C.C.A.N. (82 Stat. 1213) 1397-1412, 1424 (current version at 18 U.S.C. §§ 921-930 (2000)). Although FOPA does not have explicit legislative findings, courts have generally accepted the previous congressional findings that were included in prior firearms legislation. See Navegar, Inc. v. United States, 192 F.3d 1050, 1062-65 (D.C. Cir. 1999); United States v. Franklyn, 157 F.3d 90, 95 (2d Cir. 1998); United States v. Rybar, 103 F.3d 273, 281 (3d Cir. 1996). 12. 342 F.3d 89 (2d Cir. 2003). 13. Id. at 90. The Government argued that Ingram’s 1996 Canadian conviction satisfied the prior offense element of the felon in possession statute. Id. The conviction violated section 85(1)(a) of the Canadian Criminal Code. Id. (citing Criminal Code, R.S.C., ch. C-46, § 85(1)(a) (1985) (Can.)). The “indictable offense” referenced in section 85(1)(a) appears to be related to a charge of possession of 395 grams of hash and two-to-twenty-six kilograms of marijuana. See Appendix for Appellant Rohan Ingram at A183, Gayle (No. 02-1095).

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statute have focused on two main considerations: statutory construction and due process concerns.14 Likewise, the Second Circuit based its conclusions on the supposed ambiguity of the statutory text, the “evidence” of congressional intent to exclude foreign convictions, and its reluctance to use a prior conviction that may not adhere to fundamental notions of due process rights under the United States Constitution.15 This comment will explain why the Second Circuit’s conclusions are erroneous, address issues raised by other courts in this area, and suggest a test that courts can apply to ensure prior foreign convictions are properly used as predicate offenses without denying defendants their constitutional rights. II. CASE DESCRIPTION Only five years after Rohan Ingram received a Canadian conviction for using a firearm while committing an indictable offense, New York Border Patrol Agents discovered Ingram had illegally entered the United States from Canada.16 In a search incident to Ingram’s arrest at a New York hotel, the agents found thirteen handguns.17 The Government charged Ingram with “being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).”18 In order to convict Ingram, the United States District Court for the Northern District of New York had to determine whether Ingram’s prior Canadian conviction qualified as a predicate offense for purposes of the felon in possession statute.19 The district court followed the reasoning of the Fourth and Sixth Circuits in holding “that Ingram’s prior Canadian conviction qualified as a proper predicate offense.”20 The court emphasized that
14. See, e.g., United States v. Small, 333 F.3d 425, 427-28 (3d Cir. 2003), cert. granted, 72 U.S.L.W. 3614 (U.S. Mar. 29, 2004) (No. 03-750); United States v. Atkins, 872 F.2d 94, 95-96 (4th Cir. 1989); United States v. Winson, 793 F.2d 754, 756-59 (6th Cir. 1986); United States v. Jalbert, 242 F. Supp. 2d 44, 46-47 (D. Me. 2003); United States v. Chant, Nos. CR 94-1149 & CR 94-0185, 1997 WL 231105, at **1-3 (N.D. Cal. 1997). 15. Gayle, 342 F.3d at 95-96. 16. Id. at 90; see also United States v. Ingram, 164 F. Supp. 2d 310, 312 (N.D.N.Y. 2001), aff’d in part sub nom. United States v. Gayle, 342 F.3d 89 (2d Cir. 2003). The district court noted that Ingram had “multiple convictions for firearms offenses” in Canada. Ingram, 164 F. Supp. 2d at 313. The TECS also “cautioned ‘that [Ingram] was possibly armed and dangerous, [and] had a history of violence.’ ” Id. (citation omitted in original). 17. Ingram, 164 F. Supp. 2d at 313. 18. Gayle, 342 F.3d at 90. The Government also charged Ingram with “conspiracy to export defense articles designated on the United States Munitions List in violation of 18 U.S.C. § 371, 22 U.S.C. § 2778 [and] conspiracy to travel with intent to engage in the illegal acquisition of firearms, in violation of 18 U.S.C. §§ 371, 922(a)(1)(A), 924(n).” Id. Ingram did not appeal those convictions in this case. Id. at 91. The court remanded the case for resentencing on those other counts. Id. at 90. 19. Ingram, 164 F. Supp. 2d at 313. 20. Gayle, 342 F.3d at 91; Ingram, 164 F. Supp. 2d at 316-17. The district court based its conclusion on the reasoning adopted in United States v. Winson, 793 F.2d 754 (6th Cir. 1986), and United States v. Atkins, 872 F.2d 94 (4th Cir. 1989). Ingram, 164 F. Supp. 2d at 316-17. Ingram also argued to the district court that his foreign conviction did not amount to a felony for pur-

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“since the object of the statute is to prevent the possession of firearms by individuals with serious criminal records, we perceive no reason why the commission of serious crimes elsewhere in the world is likely to make the person so convicted less dangerous than he whose crimes were committed within the United States. Moreover, we do not perceive any congressional intent to exclude from the Act’s coverage a class of felon whose unlawful conduct occurred outside of this country.”21

A jury found Ingram guilty, and the court sentenced him to seventyeight months in prison, followed by three years of supervised release and a fine of $300.22 Ingram appealed to the United States Court of Appeals for the Second Circuit.23 The Second Circuit reversed Ingram’s conviction under the felon in possession statute, holding that his prior Canadian conviction could not serve as a predicate offense for purposes of the statute.24 III. BACKGROUND

The felon in possession statute, 18 U.S.C. § 922(g)(1), criminalizes the shipment, transportation, receipt, or possession of firearms, in interstate or foreign commerce, by persons “who ha[ve] been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”25 Over the past several decades, the statute has traveled a convoluted road in Congress’ historical drive to strike a balance between defending the right to bear arms, while protecting the public from those who are bearing those arms.26 Section 922 is
poses of § 922(g)(1) because he received a sentence of less than one year. Gayle, 342 F.3d at 91 n.2 (citing Ingram, 164 F. Supp. 2d at 316-17). However, because “the maximum possible sentence for Ingram’s Canadian offense” can be imprisonment for fourteen years, the district court held that Ingram’s conviction was a crime within the meaning of the statute. Id. (citing Ingram, 164 F. Supp. 2d at 317); see FOPA, 18 U.S.C. § 922(g)(1) (2000). Ingram did not appeal that ruling. Gayle, 342 F.3d at 91 n.2. 21. Ingram, 164 F. Supp. 2d at 316 (quoting Winson, 793 F.2d at 758) (internal citations omitted in original). 22. Gayle, 342 F.3d at 91. 23. Id. at 90. 24. Id. 25. FOPA, 18 U.S.C. § 922(g)(1) (2000) (emphasis added). The statute prohibits more than just criminals from possessing firearms. Id. § 922(g)(2)-(9). The statute also prohibits the following groups of people from possessing firearms: fugitives; controlled substance users; mentally ill persons; certain aliens; dishonorably discharged military personnel; former U.S. citizens who chose to renounce their citizenship; certain persons who are subject to court orders for specified acts; and those convicted for a domestic violence crime. Id. 26. See United States’ Pet. for Reh’g En Banc or Alternatively Pet. for Panel Reh’g at 6-13, Gayle (No. 02-1095) [hereinafter Pet. for Reh’g] (providing a concise history of the evolution of § 922(g)(1)). See generally David T. Hardy, The Firearms Owners’ Protection Act: A Historical and Legal Perspective, 17 CUMB. L. REV. 585 (1986/1987) (providing an extensive history of FOPA); infra notes 28-42 and accompanying text. The United States Constitution grants the right to bear arms. U.S. CONST. amend. II.

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currently codified in the Firearms Owners’ Protection Act of 1986 (FOPA), but its conception came long before.27 A. Congressional Expansion of the Scope of the Felon in Possession Statute The history of the felon in possession statute began in the Federal Firearms Act of 1938 (FFA).28 The FFA prohibited persons “convicted of a crime of violence” from shipping, transporting, or receiving firearms “in interstate or foreign commerce.”29 The statute also forbade any person from shipping or transporting a firearm to an individual who was known to have a conviction of a “crime of violence” from “any court of the United States, the several States, Territories, possessions . . . or the District of Columbia.”30 In 1961, Congress expanded the reach of the FFA by deleting the term “crime of violence” and substituting “crime punishable by imprisonment for a term exceeding one year.”31 In June of 1968, Congress replaced the FFA with the Omnibus Crime Control and Safe Streets Act of 1968 (OCCSSA), which contained Titles IV and VII.32 Title VII prohibited persons with federal or state felony convictions from possessing firearms.33 Title IV prohibited persons with convictions from any court of crimes punishable by prison sentences exceeding one year from shipping or transporting firearms.34 The OCCSSA was, therefore, the first firearms legislation
27. FOPA, Pub. L. No. 99-308, 100 Stat. 449 (codified as amended at 18 U.S.C. §§ 921-929 (Supp. IV 1982) (current version at 18 U.S.C. §§ 921-930 (2000))). 28. Federal Firearms Act, Pub. L. No. 75-785, 52 Stat. 1250 (codified at 15 U.S.C. §§ 901909 (1940), repealed by OCCSSA, § 906, 1968 U.S.C.C.A.N. (82 Stat. 197) 234 [hereinafter FFA]; Pet. for Reh’g at 6, Gayle (No. 02-1095). 29. FFA, 15 U.S.C. § 902(e)-(f) (1940). The statute also applied to fugitives from justice or those under indictment for crimes of violence. Id. § 902(e). A “crime of violence” was defined as “murder, manslaughter, rape, mayhem, kidnap[p]ing, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year.” Id. § 901(6). 30. Id. § 902(d). 31. Pub. L. No. 87-342, 1961 U.S.C.C.A.N. (75 Stat. 757) 848. Congress called this expansion “An Act To Strengthen the Federal Firearms Act.” Id. 32. OCCSSA, Pub. L. No. 90-351, 1968 U.S.C.C.A.N. (82 Stat. 197) tit. IV, 270-81 (repealing 15 U.S.C. §§ 901-910 (1938), amended by Gun Control Act of 1968, ch. 119, § 102, 1968 U.S.C.C.A.N. (82 Stat. 1213) 1397); tit. VII, 283-85, repealed by FOPA, § 104(b), 1986 U.S.C.C.A.N. (100 Stat. 449) 459 (current version as amended at 18 U.S.C. §§ 921-930 (2000)); see also Hardy, supra note 26, at 595, 682 n.54. 33. OCCSSA, Pub. L. No. 90-351, § 1202(a)(1), 1968 U.S.C.C.A.N. (82 Stat. 197) 283. Specifically, the statute forbade possession by persons with a felony conviction “by a court of the United States or of a State or any political subdivision thereof.” Id. Title VII also restricted felons from receiving or transporting firearms in or affecting commerce. Id. § 1202(b), 1968 U.S.S.C.A.N. (82 Stat. 197) 284. While the FFA did not specifically prohibit possession of a firearm, it did indicate that possession was “presumptive evidence that such firearm . . . was shipped or transported or received.” FFA, 15 U.S.C. § 902(f) (1940). 34. OCCSSA, Pub. L. No. 90-351, § 922(e), 1968 U.S.C.C.A.N. (82 Stat. 197) 276. Title IV also used the “any court” language in another provision that restricted authorized dealers from transferring firearms to prohibited classes of persons. Id. § 922(c); see also Pet. for Reh’g at 811, United States v. Gayle, 342 F.3d 89 (No. 02-1095).

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to use the broad “in any court” language.35 In October of the same year, Congress amended the OCCSSA and incorporated it into the new Gun Control Act of 1968.36 Almost two decades later, Congress incorporated the Gun Control Act into FOPA.37 In FOPA, Congress moved the Gun Control Act’s prohibition against the possession of firearms by felons into § 922(g)(1) and repealed the former possession provision.38 This change expanded the scope of the possession prohibition. Before FOPA, only certain federal and state convictions triggered the statutory prohibition.39 After the FOPA amendments, the prohibition expanded to cover convictions from any court.40 As the preceding history illustrates, the evolution of federal firearms legislation has consistently broadened the scope of the felon in possession statute.41 Consequently, courts have found that Congress, in order to curb crime, broadly structured the felon in possession statute by taking ownership and control of firearms away from dangerous criminals, regardless of what court adjudged them to be dangerous.42
35. OCCSSA, Pub. L. No. 90-351, § 922(e), 1968 U.S.C.C.A.N. (82 Stat. 197) 276; see also Pet. for Reh’g at 8-11, Gayle (No. 02-1095). 36. Gun Control Act of 1968, Pub. L. No. 90-618, 18 U.S.C. §§ 921-928, app. §§ 1201-1203 (Supp. IV 1964), §§ 101-105, 301-302, 1968 U.S.C.C.A.N. (82 Stat. 1213) 1397-1412, 1424 (current version at FOPA, 18 U.S.C. §§ 921-930 (2000)). The Gun Control Act’s amendments are largely unrelated to the issue of foreign convictions as predicate offenses. The main change was the redesignation of OCCSSA’s § 922(e), the provision with the “any court” language, to § 922(g) of the Gun Control Act. 18 U.S.C. § 922(g) (Supp. IV at 1077, 1964). Additionally, the “any court” language, which was originally located in Title IV of the OCCSSA, and the felon in possession statute, which was originally located in Title VII of the OCCSSA, were then moved into Titles I and III respectively when Congress amended the OCCSSA and placed it in the Gun Control Act. Gun Control Act of 1968, Pub. L. No. 90-618, 1968 U.S.C.C.A.N. (82 Stat. 1213) tit. I, 1213-26; tit. III, 1236. Currently, the felon in possession statute as amended is in section 102 of FOPA. Pub. L. No. 99-308, § 102, 1986 U.S.C.C.A.N. (100 Stat. 449) 451-52. For purposes of this comment, the pertinent provisions will continue to be referred to as Titles IV and VII as they were originally enacted in the OCCSSA. Although the relevant provisions of the two Titles appear similar, they conflicted in three ways: the classes of prohibited persons differed; Title IV’s prohibitions applied to persons with convictions of a crime punishable by over one year, while Title VII’s prohibitions extended to “felons”; and, the two provisions excepted different persons from their prohibitions. Gun Control Act of 1968, 18 U.S.C. §§ 921-928, app. §§ 1201-1203 (Supp. IV 1964); Hardy, supra note 26, at 600-03. 37. FOPA, Pub. L. No. 99-308, 100 Stat. 449 (amending the Gun Control Act of 1968, 18 U.S.C. §§ 921-928, repealing 18 U.S.C. app. §§ 1201-1203 (Supp. IV 1964) (codified as amended at 18 U.S.C. §§ 921-929 (Supp. IV 1982))). 38. FOPA, 18 U.S.C. § 922(g)(1) (2000); see also Pub. L. No. 99-308, § 102(6)(D), 1986 U.S.C.C.A.N. (100 Stat. 449) 452 (adding possession to § 922(g)(1)), § 104(b), 459 (repealing Title VII); Pet. for Reh’g at 13, Gayle (No. 02-1095). Additionally, Congress moved § 1202(a)’s “armed career criminal” provision to § 924(e). See Pub. L. No. 99-308, § 104(a)(4), 1986 U.S.C.C.A.N. (100 Stat. 449) 458-59; Pet. for Reh’g at 10, Gayle (No. 02-1095). 39. Gun Control Act of 1968, 18 U.S.C. app. § 1202(a)(1) (Supp. IV 1964). 40. FOPA, 18 U.S.C. § 922(g)(1) (Supp. IV 1982). 41. See supra notes 26-42 and accompanying text. 42. See Barrett v. United States, 423 U.S. 212, 218 (1976) (“The very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.”); Huddleston v. United States, 415 U.S. 814, 824 (1974) (“The principal purpose of the federal gun control legislation . . . was to [curb] crime by keeping” firearms away from persons with a criminal background.).

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B. Circuit Split Despite the broad structure of the felon in possession statute, the Tenth Circuit created a circuit split when it held that foreign convictions could not be used for purposes of a related provision of FOPA, the Armed Career Criminal Act (ACCA).43 The ACCA is a sentence enhancement provision that increases prison sentences for certain persons convicted of being felons in possession of a firearm.44 Normally, a person convicted of being a felon in possession receives a prison sentence of “not more than ten years” as directed by FOPA’s penalties provision.45 However, if a felon in possession also has at least three prior convictions by any court for violent felonies or serious drug offenses, the ACCA increases the prison sentence to at least fifteen years.46 In United States v. Concha,47 a jury convicted the defendant under the felon in possession statute, and because he had four previous convictions for violent felonies, the Government sought enhancement of the defendant’s sentence under the ACCA.48 Despite Concha’s violent past, the Tenth Circuit declined to enhance his sentence because three of his prior convictions were foreign.49 The court based its decision on statutory construction and due process arguments, as well as on its interpretation of the United States Sentencing Guidelines (Guidelines).50
43. United States v. Concha, 233 F.3d 1249, 1250-51 (10th Cir. 2000); see also FOPA, 18 U.S.C. § 924(e)(1) (2000). The ACCA directs courts to several other federal statutes to define the terms “violent felony” and “serious drug offense.” FOPA, 18 U.S.C. § 924(e)(2) (2000). Interestingly, the definition of “serious drug offense” includes “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances.” Controlled Substances Act, 21 U.S.C. § 802(44) (2000) (emphasis added); see also infra notes 229-41 and accompanying text. 44. FOPA, 18 U.S.C. § 924(e)(1) (2000). A substantive offense is the crime itself: the prosecution must prove each element of the crime. Jill C. Rafaloff, The Armed Career Criminal Act: Sentence Enhancement Statute or New Offense?, 56 FORDHAM L. REV. 1085, 1087-88 (1988). A sentence enhancement does not create a new crime, it simply heightens the penalty for certain types of behavior. United States v. Rush, 840 F.2d 574, 578 (8th Cir. 1988); Rafaloff, supra, at 1087. For example, the fact that a person has a prior conviction of a crime punishable by prison for a term exceeding one year can be used in two ways under FOPA. 18 U.S.C. §§ 922(g)(1), 924(e)(1). Under § 922(g)(1), the prior conviction is an element of the substantive offense of being a felon in possession of a firearm. Id. § 922(g)(1). If the conviction and other elements of § 922(g)(1) are proven, the defendant is guilty of a distinct criminal offense for which the court will impose a sentence. See id.; id. § 924(a)(2). However, under § 924(e)(1), a prior conviction is not an element of the ACCA’s sentence enhancement; rather, it is a justification for a stiffer penalty. Id. § 924(e)(1); Rush, 840 F.2d at 576, 578; cf. Jason White, Once, Twice, Four Times a Felon: North Carolina’s Unconstitutional Recidivist Statutes, 24 CAMPBELL L. REV. 115, 129 (2001) (emphasizing the importance of distinguishing between a substantive offense and a sentence enhancement). 45. FOPA, 18 U.S.C. § 924(a)(2) (2000) (emphasis added). 46. Id. § 924(e)(1). 47. 233 F.3d 1249 (10th Cir. 2000). 48. Id. at 1250-51. 49. Id. 50. Id. at 1253-56. See generally U.S. SENTENCING GUIDELINES MANUAL (2003) [hereinafter GUIDELINES]. The Tenth Circuit decided that the phrase “in any court” gives courts no gui-

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The Guidelines apply only to the sentencing stage of a trial; the Guidelines do not affect the hearing stage or the elements of the underlying crime.51 While FOPA’s penalties provision and the ACCA provide general parameters for prison terms, sentencing judges must also consult the Guidelines.52 The Guidelines direct the sentencing judge to calculate the “defendant’s offense level and criminal history category”; this calculation will yield a more specific term of imprisonment within the general parameters of FOPA.53 Part of a defendant’s criminal history score includes previous convictions, but judges are not allowed to use foreign convictions in calculating the score.54 Consequently, a defendant convicted under the felon in possession statute who had two previous foreign convictions may receive a lesser sentence than another defendant with two previous federal or state convictions, even though the convictions punished similar behavior.55 To remedy this disparity, the Guidelines provide that if the criminal history score “under-represents the seriousness of the defendant’s criminal history,” the judge may use foreign convictions to impose an upward departure from the recommended sentencing range.56 The Concha court applied the Guidelines’ requirements to the ACCA and held that because the Guidelines preclude the application of foreign convictions to a defendant’s criminal history score, foreign convictions should not count as predicate offenses under the ACCA.57
dance with respect to the issue of foreign convictions. Concha, 233 F.3d at 1253. The court then noted that since the definitions section of FOPA excludes certain federal and state crimes from § 922(g)(1)’s reach, it would be anomalous to use similar foreign crimes. Id. at 1254 (citing FOPA, 18 U.S.C. § 921(a)(20)(A)). Finally, the court expressed concern about the use of foreign convictions as predicate offenses because foreign tribunals do not necessarily give the same protections to criminal defendants as the Constitution requires; a problem, which may not always, the court pointed out, be resolved by the use of federal habeas corpus review. Id. at 1254-55. In 1984, Congress appointed the United States Sentencing Commission, the purpose of which was to “establish sentencing policies and practices for the Federal criminal justice system.” Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 28 U.S.C. § 991(b)(1), 98 Stat. 1837 (Supp. II 1982) (current version at 28 U.S.C. §§ 991-998 (2000)); see also Joseph W. Luby, Reining in the “Junior Varsity Congress”: A Call for Meaningful Judicial Review of the Federal Sentencing Guidelines, 77 WASH. U. L.Q. 1199, 1204-08 (1999). Thus, because Congress delegated powers to the Commission, the judiciary “should afford the Commission no greater deference than they give to other administrative agencies.” Luby, supra at 1229. 51. Cf. GUIDELINES, supra note 50, § 1.A.1 editorial note (2003) (explaining that the purpose of the Guidelines is to create policies and practices for sentencing). 52. See FOPA, 18 U.S.C. § 924(a)(2), (e)(1) (2000); United States v. Davern, 970 F.2d 1490, 1492 (6th Cir. 1992) (finding that “the Guidelines are a sentencing imperative”); 21A AM. JUR. 2D Criminal Law § 872 (1998) (noting that “the sentencing guidelines are mandatory”). 53. GUIDELINES, supra note 50, § 1B1.1(g). 54. See id. §§ 1B1.1(f), 4A1.1, 4A1.2(h). 55. See Concha, 233 F.3d at 1254; GUIDELINES, supra note 50, § 2K2.1. The Guidelines direct courts to section 4B1.2 for the definitions of “crime of violence” and “controlled substance offense.” GUIDELINES, supra note 50, § 2K2.1 application n.5. Section 4B1.2(a) limits the definition of both “crime of violence” and “controlled substance offense” to offenses under federal or state law. Id. § 4B1.2(a)-(b). 56. GUIDELINES, supra note 50, § 4A1.3(a)(1)-(2)(A). 57. Concha, 233 F.3d at 1251, 1254.

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Prior to Concha, both the Fourth and the Sixth Circuits had already decided that foreign convictions could serve as predicate offenses for purposes of the felon in possession statute.58 In both United States v. Winson 59 and United States v. Atkins,60 the defendants argued that the phrase “in any court” is ambiguous.61 In Atkins, the Fourth Circuit briefly stated that the word “any” was all-inclusive and, therefore, included convictions from foreign courts.62 The Sixth Circuit in Winson, however, presented a more thorough analysis of the issue.63 In Winson, the Government charged the defendant, who had previous convictions from both Switzerland and Argentina, with receipt of firearms in violation of Title IV of the Gun Control Act of 1968.64 Title IV placed certain restrictions on persons with previous convictions from “any court.”65 The trial judge concluded that because this provision conflicted with Title VII, which placed restrictions on persons with previous convictions from federal and state courts, the phrase “in any court” was ambiguous.66 The Sixth Circuit disagreed.67 In determining that the phrase “in any court” was unambiguous, the Sixth Circuit relied primarily68 on the United States Supreme Court’s decision in United States v. Batchelder.69 The Batchelder Court understood congressional intent as applying Titles IV and VII independently.70 Because Title VII specifically limited predicate convictions to courts of the United States,71 whereas Title IV used the expansive “in any court” language,72 the Sixth Circuit held that Congress intended to sweep broadly, allowing foreign convictions for purposes of Title IV.73
58. United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989); United States v. Winson, 793 F.2d 754, 759 (6th Cir. 1986). 59. 793 F.2d 754 (6th Cir. 1986). 60. 872 F.2d 94 (4th Cir. 1989). 61. Atkins, 872 F.2d at 95-96; Winson, 793 F.2d at 756. 62. Atkins, 872 F.2d at 96. The Fourth Circuit noted that the defendant should have attacked the statute based on the word “court.” Id. However, because the defendant received the conviction at issue from England, the country from which American jurisprudence originated, this argument would have failed as well. Id. 63. Winson, 793 F.2d at 757-59. 64. Id. at 755; see also Gun Control Act of 1968, 18 U.S.C. § 922(h)(1) (Supp. IV 1964) (current version as amended at 18 U.S.C. § 922(g)(1) (2000)). Section 922(h)(1) was an amendment of the OCCSSA’s Title IV. Winson, 793 F.2d at 757; see also supra note 36. The government also charged the defendant with a violation of § 922(a)(6), knowingly making a false statement to a dealer. Id. at 755-56 (citing Gun Control Act of 1968, 18 U.S.C. § 922(a)(6)). 65. Gun Control Act of 1968, 18 U.S.C. § 922(g)(1), (h)(1) (Supp. IV 1964); see also supra notes 34-40 and accompanying text. 66. Winson, 793 F.2d at 756. 67. Id. at 757. 68. Id. at 757, 759 (citing United States v. Batchelder, 442 U.S. 114, 119-21 (1978) (holding that a defendant convicted of an offense under Title IV of the OCCSSA may be sentenced to the maximum term authorized, even though another provision provided a more lenient sentence)). 69. 442 U.S. 114 (1978). 70. Id. at 118. 71. Gun Control Act of 1968, 18 U.S.C. app. § 1202(a)(1) (Supp. IV 1964). 72. Id. § 922(h)(1). 73. Winson, 793 F.2d at 757.

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The Third Circuit, finding a lack of ambiguity in the phrase “in any court,” accepted the analysis of the Fourth and Sixth Circuits without hesitation in United States v. Small.74 The importance of Small stems not from the court’s analysis of statutory construction but rather from its analysis of due process implications.75 The Third Circuit held that in order to use a foreign conviction as a predicate offense under the statute, a court must first find that the predicate conviction satisfies American principles of fundamental fairness as required by the Due Process Clause.76 To ensure that the use of foreign convictions fell within the Due Process Clause, the Small court adopted the standard set forth in the Third Restatement of Foreign Relations Law of the United States (Restatement).77 The Restatement provides guidelines for determining whether courts are forbidden from or whether courts have discretion to recognize judgments of foreign tribunals.78 Applying the Restatement to Small’s prior Japanese conviction, the Third Circuit held that the conviction satisfied traditional notions of fundamental fairness and used it as a predicate offense under the felon in possession statute.79 Thus, the Third, Fourth, and Sixth Circuits have each allowed foreign convictions to be used as predicate offenses under the felon in possession statute.80 The Tenth Circuit created a circuit split by holding that foreign convictions may not be used as predicate offenses.81
74. 333 F.3d 425, 427 n.2 (3d Cir. 2003), cert. granted, 72 U.S.L.W. 3614 (U.S. Mar. 29, 2004) (No. 03-750). 75. Id. at 428. 76. Id. at 427. The Fifth Amendment to the United States Constitution provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V. 77. Small, 333 F.3d at 428; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. § 482 (1987) [hereinafter RESTATEMENT]. 78. Small, 333 F.3d at 428 (citing RESTATEMENT, supra note 77, § 482(1)-(2)). The mandatory grounds for nonrecognition are “(a) the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with due process of law; or (b) the court that rendered the judgment did not have jurisdiction over the defendant.” RESTATEMENT, supra note 77, § 482(1)(a)-(b). The discretionary grounds for nonrecognition are (a) the court . . . did not have [subject matter jurisdiction]; (b) the defendant did not receive notice . . . in sufficient time . . . ; (c) the judgment was obtained by fraud; (d) the cause of action . . . is repugnant to the public policy of the United States or of the State where recognition is sought; (e) the judgment conflicts with another final judgment that is entitled to recognition; or (f) the proceeding in the foreign court was contrary to an agreement between the parties to submit the controversy . . . to another forum. Id. § 482(2)(a)-(f). The drafters of the Restatement do not require courts to deny recognition on the discretionary grounds, “but may do so in the interests of justice.” Id. § 482 cmt. a. 79. Small, 333 F.3d at 428. The court found that the Japanese tribunal was impartial and had jurisdiction over the defendant. Id. 80. Id.; United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989); United States v. Winson, 793 F.2d 754, 759 (6th Cir. 1986). 81. United States v. Concha, 233 F.3d 1249, 1256-57 (10th Cir. 2000).

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IV.

ANALYSIS

In United States v. Gayle, the Second Circuit decided whether the element of the felon in possession statute, which requires a conviction “in any court,” could be satisfied by the defendant’s Canadian conviction.82 The court focused mainly on statutory construction and due process issues.83 A. Parties’ Arguments 1. Rohan Ingram Ingram argued that his prior Canadian conviction did not qualify as a predicate offense under the felon in possession statute.84 Ingram based his argument on statutory construction and public policy and urged the court to follow the reasoning of the Tenth Circuit in Concha.85 Calling attention to the language of FOPA’s definitions section, which specifically excludes certain federal and state business crimes from the reach of the felon in possession statute,86 Ingram argued that the exclusion of similar foreign crimes indicated a lack of congressional intent to include any foreign convictions.87 Additionally, Ingram pointed out that foreign countries may punish behavior that is constitutionally protected in the United States.88 He also relied on the Concha court’s discussion of the Guidelines.89 Because the Guidelines limit “crimes of violence” and “controlled substance offenses” to those under federal and state law, Ingram suggested it would be anomalous to use foreign convictions for purposes of the felon in possession statute.90 Ingram further compared the felon in possession statute to the Guidelines in his reliance91 on the Second Circuit’s decision in United States v. Azeem.92 In Azeem, the court “held that a defendant’s drug activities in Egypt should not have been considered in calculating his base offense level” under the Guidelines.93 The policy reasons for excluding foreign convictions included the requirement for “courts to ‘distinguish[ ] between activities that violate both domestic and for82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 16). United States v. Gayle, 342 F.3d 89, 91 (2d Cir. 2003). Id. at 92-96. Brief for Appellant Rohan Ingram at 13, 27, Gayle (No. 02-1095). Id. at 13, 27-29 (citing Concha, 233 F.3d at 1253-54). FOPA, 18 U.S.C. § 921(a)(20)(A) (2000). See Brief for Appellant Rohan Ingram at 28, Gayle (No. 02-1095). Id. Id. at 28-29 (citing Concha, 233 F.3d at 1254). Id. (citing GUIDELINES, supra note 50, §§ 2K2.1, 4B1.2). Id. at 29-30 (citing United States v. Azeem, 946 F.2d 13 (2d Cir. 1991)). 946 F.2d 13 (2d Cir. 1991). Brief for Appellant Rohan Ingram at 29, Gayle (No. 02-1095) (citing Azeem, 946 F.2d at

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eign law and those’ that violate only domestic ‘or only foreign law.’”94 Furthermore, courts would have to decide whether the procedures used by foreign tribunals would withstand constitutional scrutiny.95 Finally, Ingram argued that he would not have an opportunity to attack his prior Canadian offense.96 Ingram referenced the decisions of Daniels v. United States 97 and Custis v. United States,98 both of which restrict when defendants may attack predicate offenses.99 Defendants must attack “[t]he constitutionality of the predicate offense” in the court that gave the sentence and “not in the court imposing an enhanced sentence.”100 Thus, if the foreign tribunal will not allow a collateral attack, the defendant is left with no viable option to attack the foreign conviction in United States courts.101 For the preceding reasons, Ingram asked the court to invoke the rule of lenity.102 Ingram opined that “‘a reasonable doubt persist[ed] about [the felon in possession statute’s] intended scope,’” and, therefore, his Canadian conviction should not be used under the felon in possession statute.103 2. The United States The prosecution advocated for the court to allow Ingram’s previous Canadian conviction to qualify as a predicate offense under the felon in possession statute.104 The Government pointed to language from the recent District of Maine decision, in United States v. Jalbert,105 in support of its position.106 The Government advised against invoking the rule of lenity, which is applied to ambiguous statutes.107 It argued that the phrase “in any court” “‘is reasonably clear . . . [and] [a]bsent contrary indications of congressional intent, [the court should] not attribute latent ambiguity to a provision with an obvious interpretation.’”108 Because most of the courts faced with this issue have held that the felon in possession statute is unambiguous and includes foreign convictions as
94. Id. at 29-30 (quoting Azeem, 946 F.2d at 17) (quotations omitted in original). 95. Id. (citing Azeem, 946 F.2d at 17). 96. Id. at 30. 97. 532 U.S. 374 (2001). 98. 511 U.S. 485 (1994). 99. Brief for Appellant Rohan Ingram at 30-31, Gayle (No. 02-1095) (citing Daniels, 532 U.S. at 376; Custis, 511 U.S. at 487). 100. Id. (citing Daniels, 532 U.S. at 376). 101. Id. 102. Id. at 31. 103. Id. (quoting Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000)) (internal quotations omitted in original). 104. Brief for Appellee United States of America at 10-12, Gayle (No. 02-1095). 105. 242 F. Supp. 2d 44 (D. Me. 2003). 106. Brief for Appellee United States of America at 10-11, Gayle (No. 02-1095) (citing Jalbert, 242 F. Supp. 2d at 46-47). 107. Id. at 12. 108. Id. at 11 (quoting Jalbert, 242 F. Supp. 2d at 47) (internal citations omitted).

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predicate offenses, the Government asked the Second Circuit to affirm Ingram’s felon in possession conviction.109 B. Court’s Opinion Circuit Judge Robert A. Katzmann, writing for the three-judge panel, held that the defendant’s Canadian conviction did not qualify as a predicate offense under the felon in possession statute.110 The court, however, did not limit its holding to the facts in Gayle; it specifically asserted that due to statutory construction, foreign convictions in general may not qualify as predicate offenses under the statute.111 In reaching this decision, the court first decided that the phrase “in any court” is ambiguous.112 The court declined to end its interpretation of the language with the phrase’s plain meaning.113 Instead, the court turned to the entire statutory scheme for help in placing the phrase in context.114 In the definitions section of FOPA, Congress excluded several offenses from the scope of § 922(g)(1); for example, federal and state antitrust violations may not qualify as predicate offenses.115 The court commented that it would not make sense to prohibit a person from possessing a firearm if he had an antitrust conviction from a foreign country, while allowing possession if a federal or state court gave the conviction.116 The Second Circuit observed that this section “injects doubt as to whether Congress intended foreign convictions to serve as predicate offenses.”117 The court next examined the statute’s legislative history in an attempt to discern whether Congress intended to include foreign convictions.118 In particular, the court relied on two committee reports from the Gun Control Act of 1968, the predecessor of FOPA.119 In the Senate Judiciary Committee Report, the definition of the term “fel109. Id. at 11-12 (citing United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989); United States v. Winson, 793 F.2d 754, 757 (6th Cir. 1986); Jalbert, 242 F. Supp. 2d at 47; United States v. Small, 183 F. Supp. 2d 755, 759-60 (W.D. Penn. 2002), aff’d, 333 F.3d 425 (3d Cir. 2003), cert. granted, 72 U.S.L.W. 3614 (U.S. Mar. 29, 2004) (No. 03-750)). 110. Gayle, 342 F.3d at 90. 111. Id. 112. Id. at 93. 113. Id. at 92-93. “Our textual analysis of what constitutes a predicate offense under § 922(g)(1) . . . does not end with the words ‘in any court.’ ” Id. 114. Id. at 93 (citing Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003)). 115. FOPA, 18 U.S.C. § 921(a)(20)(A)-(B) (2000). 116. Gayle, 342 F.3d at 93 (citing United States v. Concha, 233 F.3d 1249, 1254 (10th Cir. 2000) (observing that it would be anomalous if § 922(g)(1) covered fewer domestic than foreign crimes)). 117. Id. The court added that even without the tension between § 921(a)(20) and § 922(g)(1), the wording of § 922(g)(1) is ambiguous standing alone. Id. For example, “a state statute authorizing ‘a police officer’ to make an arrest probably means a police officer of that state and does not include police officers from foreign nations . . . .” Id. Similarly, § 922(g)(1)’s reference to convictions by “any court” likely means only courts of the United States. Id. 118. Id. at 93-95. 119. Id. at 94 (citing S. REP. NO. 90-1501, at 31 (1968); H.R. CONF. REP. NO. 90-1956, at 2829 (1968), reprinted in 1968 U.S.C.C.A.N. 4426, 4428).

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ony” was specifically limited to federal and state offenses.120 The court noted that the language provided in the subsequent Conference Report did not contradict that definition.121 The court interpreted these reports as evidence of congressional intent to preclude the use of foreign convictions under the felon in possession statute.122 Finally, the court expressed reservations in using convictions from foreign countries that do not apply the procedures and protections required by the Due Process Clause or that forbid behavior that is constitutionally protected in the United States.123 Because the statute is silent on this issue, the court found that if Congress had intended to include foreign convictions, it would need to revise the statute to more clearly express that intent.124 Rather than import a meaning the court found contrary to the legislative history, the court chose to exclude all foreign convictions from the reach of the felon in possession statute.125 C. Commentary The purpose of FOPA is strikingly clear: Congress desired a comprehensive piece of legislation that would keep firearms out of the hands of all dangerous criminals.126 In Gayle, the Second Circuit failed to appreciate this broad purpose and construed the statute so strictly that it defeated Congress’ ostensible intention.127 Essentially, the Second Circuit read “any court” to mean “only certain courts.”128 The Gayle court not only presented questionable arguments in support of its decision, but the consequences of Gayle also seem to compel the opposite conclusion. If a person with a foreign conviction cannot be found in violation of the felon in possession statute, the logical implication is that Congress intended to allow dangerous foreign convicts to possess firearms. Congress could not have intended for such a result to occur. The court should have used appropriate statutory construction in order to give credence to the purpose behind the statute. Furthermore, the court should have applied the Restate120. Gayle, 342 F.3d at 94 (quoting S. REP. NO. 90-1501, at 31 (1968)). 121. Id. at 95 (citing H.R. CONF. REP. NO. 90-1956, at 28-29 (1968), reprinted in 1968 U.S.C.C.A.N. 4426, 4428). 122. Id. 123. Id. at 95-96. 124. Id. at 96. 125. Id. 126. United States v. Barrett, 423 U.S. 212, 218 (1976); see also OCCSSA, Pub. L. No. 90351, 1968 U.S.C.C.A.N. (82 Stat. 197) 270-71. Congress removed the “congressional findings and declarations” when it enacted the Gun Control Act of 1968. H. REP. NO. 90-1577 (1968), reprinted in 1968 U.S.C.C.A.N. 4410. But see supra note 11. 127. See Barrett, 423 U.S. at 218. 128. Gayle, 342 F.3d at 90.

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ment approach to assure the constitutionality of Ingram’s foreign predicate offense.129 1. Statutory Interpretation The Second Circuit first erred in looking beyond the plain meaning of the statute.130 There are only three reasons a court should look beyond the plain language of a statute: when the language is unclear or ambiguous;131 when Congress has clearly expressed a contrary intent to that suggested by the plain language;132 or when adopting the meaning of the plain language would lead to absurd results.133 a. The Phrase “In Any Court” Is Unambiguous In Gayle, the court incorrectly concluded that the language of the felon in possession statute is ambiguous. Because the starting point of statutory construction is the language itself,134 every court to decide whether a foreign conviction may be used as a predicate offense has first examined the phrase “in any court.”135 The word “any” is not ambiguous. The United States Supreme Court has prescribed that the judiciary has an imperative duty to give effect to the obvious meaning of a statute’s language.136 The American Heritage Dictionary defines “any” as “[o]ne or some, regardless of kind . . . [o]ne or another without restriction or exception . . . [or] all.”137 As the Fourth Circuit remarked in Atkins, “‘[a]ny’ is hardly an ambiguous term, being all-inclusive in nature.”138
129. See infra notes 279-94 and accompanying text. 130. Gayle, 342 F.3d at 92-93. 131. Ex parte Collett, 337 U.S. 55, 61 (1949). 132. Reves v. Ernst & Young, 507 U.S. 170, 177 (1993). 133. Consol. Bank, N.A. v. United States Dep’t of Treasury, 118 F.3d 1461, 1463-64 (11th Cir. 1997). 134. Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). “Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Id. 135. See, e.g., United States v. Small, 333 F.3d 425, 427 (3d Cir. 2003), cert. granted, 72 U.S.L.W 3614 (U.S. Mar. 29, 2004) (No. 03-750) (agreeing with Winson and Atkins that foreign convictions may generally be used as predicate offenses under § 922(g)(1)); United States v. Concha, 233 F.3d 1249, 1253-54 (10th Cir. 2000) (finding the phrase “any court” to be ambiguous); United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989) (“ ‘Any’ is hardly an ambiguous term, being all-inclusive in nature.”); United States v. Winson, 793 F.2d 754, 757 (6th Cir. 1986) (reviewing the Act’s legislative history to find a meaning for the phrase “in any court”); United States v. Jalbert, 242 F. Supp. 2d 44, 46-47 (D. Me. 2003) (finding that “any court” includes foreign and domestic courts); United States v. Chant, Nos. CR 94-1149 & CR 94-0185, 1997 WL 231105, at *1-2 (N.D. Cal. 1997) (following the interpretation of “any court” given in Winson and Atkins). 136. Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 33 (1895) (“It is not only the safer course to adhere to the words of a statute, construed in their ordinary import, instead of entering into any inquiry as to the supposed intention of Congress, but it is the imperative duty of the court to do so.”). 137. THE AMERICAN HERITAGE DICTIONARY 117 (2d Coll. ed. 1985). 138. Atkins, 872 F.2d at 96.

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The United States Supreme Court disagreed with the Tenth Circuit’s interpretation of “any” under similar circumstances in United States v. Gonzales.139 In Gonzales, the Court examined the import of the word “any” in another section of FOPA, 18 U.S.C. § 924(c).140 Persons who use or carry a firearm in the course of committing a drug crime receive, in addition to any other state or federal sentences, a sixty-month sentence of imprisonment under § 924(c).141 The statute mandates that the additional sentence run consecutively, as opposed to concurrently, “‘with any other term of imprisonment including that imposed for the . . . drug trafficking crime in which the firearm was used or carried.’”142 Put simply, the statute tacks on an additional five years to a person’s prison sentence and divests courts of the authority they normally have to determine whether to make federal prison sentences run simultaneously or consecutively to other terms of imprisonment.143 Ignoring the phrase “any other term of imprisonment,” the Tenth Circuit decided that the statute did not apply to state sentences and held that the defendant’s mandatory five-year sentence could run concurrently with any state sentence.144 On writ of certiorari, the Court looked at whether the phrase “any other term of imprisonment” should be given its plain meaning or should be construed to include only federal prison sentences.145 The Court held that the statute’s application should reflect its plain language.146 The statute unequivocally barred a court from ordering that the mandatory sixty-month sentence be served at the same time as other federal or state sentences given for the same crime.147 Therefore, the Court vacated the decision of the Tenth Circuit and remanded the case for resentencing.148 To reach this conclusion, the Court began by looking at the text of the provision and found that the phrase “any other term of imprisonment” should be read expansively for several reasons.149 First, “any” has a naturally broad meaning.150 Next, Congress did not include any language in the statute that would limit its application to
139. 520 U.S. 1 (1997). 140. Id. at 2-3. 141. FOPA, 18 U.S.C. § 924(c)(1)(A)(i) (2000). 142. Gonzales, 520 U.S. at 4 (quoting § 924(c)(1)(D)(ii)). 143. Id. at 6-7 (noting that 18 U.S.C. § 3584(a) “vest[s] power in district court[s] to run most prison terms either concurrently or consecutively” and that GUIDELINES § 5G1.3 (1995) “guid[es] court’s discretion under § 3584(a)”). 144. Id. at 3 (citing United States v. Gonzales, 65 F.3d 814 (10th Cir. 1995), rev’d, 520 U.S. 1 (1997)). 145. Id. at 5. 146. Id. at 11. 147. Id. (citing FOPA, 18 U.S.C. § 924(c)(1)(D)(ii)). 148. Id. at 4. 149. Id. at 4-6. 150. Id. at 5 (citing WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 97 (1976)).

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merely federal sentences.151 Finally, § 924(c)’s first sentence “explicitly limited the scope of the phrase ‘any crime of violence or drug trafficking crime’ to” only federal crimes.152 As such, the Court presumed that Congress intended to broaden the scope of the phrase “any term of imprisonment” by excluding this explicit limitation.153 Because the statute’s meaning was obvious, there was no need to consider legislative history.154 So, although the Tenth Circuit gave credence to a single sentence buried in a Senate Report, the Court saw no reason to “mudd[y] the waters” with this legislative history.155 The Court simply held that based on the facts of Gonzales, a sentence imposed under § 924(c) must run consecutively with both state and federal sentences.156 The Court’s reasoning in Gonzales can also be applied to the felon in possession statute. Congress purposely broadened the reach of the statute when it removed the language that limited predicate offenses to federal and state courts.157 The felon in possession statute now expressly provides that a conviction from any court may serve as a predicate offense.158 Furthermore, because Congress, in FOPA’s definitions section, expressly excluded certain enumerated federal and state offenses from the reach of the statute, one can presume that Congress intended to give effect to the more generic and all-encompassing language of the phrase “in any court.”159 Coincidentally, the Tenth Circuit created two circuit splits with its narrow construction of
151. Id. 152. Id. (quoting FOPA, 18 U.S.C. § 924(c)(1)(A)). 153. Id. (quoting FOPA, 18 U.S.C. § 924(c)(1)(D)(ii)). “ ‘Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Id. (quoting Russello v. United States, 464 U.S. 16, 23 (1983) (citation omitted in original)). 154. Id. at 6. 155. The Tenth Circuit relied on a statement “accompanying the 1984 amendment to § 924(c),” which stated a congressional intent to have sentences pursuant to § 924(c) be served before any other sentence. Id. (quoting S. REP. NO. 98-225, at 313-14 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3492); see also United States v. Gonzales, 65 F.3d 814, 820-21 (10th Cir. 1995), rev’d, 520 U.S. 1 (1997). Although this “snippet” is not “ ‘anchored in the text of the statute,’ ” the court gave weight to it and said its application would lead to “irrational results.” Gonzales, 520 U.S. at 6 (quoting Shannon v. United States, 512 U.S. 573, 583 (1994)). The United States Supreme Court found this application flawed for practical reasons. Id. at 7-9. 156. Gonzales, 520 U.S. at 11. In his dissent, Justice Stevens expressed apprehension about the decision’s application to situations where the federal trial follows the state trial “and the state judge imposes a concurrent sentence” that did not necessarily follow the text of § 924(c). Id. at 12 (Stevens, J., dissenting). However, the Court expressly limited its holding to the facts of the case. Id. 157. See OCCSSA, Pub. L. No. 90-351, 1968 U.S.C.C.A.N. (82 Stat. 197) 270-71, amended by Gun Control Act of 1968, ch. 119, § 102, 1968 U.S.C.C.A.N. (82 Stat. 1213) 1397, tit. VII, repealed by FOPA, § 104(b), 1986 U.S.C.C.A.N. (100 Stat. 449) 459 (current version as amended at 18 U.S.C. §§ 921-930 (2000)). 158. FOPA, 18 U.S.C. § 922(g)(1) (2000). 159. Id. §§ 921(a)(20), 922(g)(1).

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both § 924(c) and § 922(g)(1).160 In both cases, the court said that a literal application of the language would lead to absurd results.161 The United States Supreme Court disagreed with the Tenth Circuit’s narrow interpretation of § 924(c)’s phrase, “any other term of imprisonment.”162 Similarly, the Court will likely disagree with the narrow construction given to the phrase “in any court” by both the Second and the Tenth Circuits.163 Adhering to the statute’s plain language, the government should be allowed to prosecute persons with predicate convictions from any court. b. Congressional Intent The Second Circuit found “evidence” of a congressional intent to exclude foreign convictions from the felon in possession statute.164 However, the court relied on the wrong committee reports in its analysis.165 In addition, the Second Circuit failed to address several persuasive arguments concerning the scope and interpretation of the statute’s language.166 Both of the reports cited by the Gayle court related to the Gun Control Act of 1968.167 In one report, the definition of the term “felony” was specifically limited to federal and state offenses.168 The court found that this limitation suggested a congressional intent to exclude foreign convictions.169 The court failed to appreciate, though, that Congress passed the Gun Control Act of 1968 after it had already adopted the “any court” language in the OCCSSA.170 Congress intentionally replaced more restrictive language from previous firearms legislation with the phrase “in any court” in June of 1968 when it enacted the OCCSSA.171 The reports cited in Gayle refer to the Gun
160. United States v. Concha, 233 F.3d 1249, 1256-57 (10th Cir. 2000); Gonzales, 65 F.3d at 819. 161. Concha, 233 F.3d at 1254; Gonzales, 65 F.3d at 819. 162. United States v. Gonzales, 520 U.S. 1, 4 (1997). 163. United States v. Gayle, 342 F.3d 89, 95 (2d Cir. 2003); Concha, 233 F.3d at 1256-57. 164. Gayle, 342 F.3d at 94-95. 165. See Pet. for Reh’g at 13-14, Gayle (No. 02-1095). 166. See infra text accompanying notes 179-222. 167. Gayle, 342 F.3d at 94-95 (citing S. REP. NO. 90-1501, at 31 (1968); H.R. CONF. REP. NO. 90-1956 (1968), reprinted in 1968 U.S.C.C.A.N. 4426, 4428; Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (amending OCCSSA, 18 U.S.C. §§ 921-928, app. §§ 1201-1203 (1968), §§ 1201-1203, repealed by FOPA, § 104(b), 1986 U.S.C.C.A.N. (100 Stat. 449) 459 (current version as amended at 18 U.S.C. §§ 921-930 (2000)))); see also Pet. for Reh’g at 14, Gayle (No. 021095); supra text accompanying notes 118-22. 168. S. REP. NO. 90-1501, at 31 (1968). 169. Gayle, 342 F.3d at 94. 170. Id. at 94-95; see also Pet. for Reh’g at 10, Gayle (No. 02-1095); supra text accompanying notes 118-22, 111, and 126. 171. OCCSSA, Pub. L. No. 90-351, 1968 U.S.C.C.A.N. (82 Stat. 197) 276-77. Section 922(e)(f) stated, (e) It shall be unlawful for any person who is under indictment or who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year, or who is a fugitive from justice, to ship or transport any firearm or ammunition in

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Control Act, which Congress passed in October of 1968.172 Thus, “[i]n resolving what [the court] perceived as an ambiguity in the phrase ‘in any court,’ the panel mistakenly assumed that the [pertinent language] ‘was enacted as part of the Gun Control Act of [October] 1968.’”173 On the contrary, the October Act did not alter the meaning of the pertinent phrase.174 Because the “views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one,” the reports relied on by the Second Circuit are not entitled to the weight given them.175 In an amendment to Gayle, the court recognized the fact that it used subsequent legislative history in its interpretation of the phrase “in any court.”176 The amendment came in response to the United States’ Petition for Rehearing, which revealed the court’s misplaced reliance on the later reports.177 The Second Circuit acknowledged the argument raised by the Government but noted that “it would be unreasonable to disregard the authoritative legislative history surrounding [the Gun Control Act’s] enactment.”178 Employing similar logic, a recent bill introduced in the United States Senate may also shed light on congressional intent regarding the felon in possession statute.179 In a proposed amendment to the statute, the authors of the bill directly address the issue of whether courts should allow foreign convictions to serve as predicate offenses under the statute.180 In full, the amendment reads that persons convicted
interstate or foreign commerce[;] (f) It shall be unlawful for any person who is under indictment or who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year, or is a fugitive from justice, to receive any firearm or ammunition which ha[ve] been shipped or transported in interstate or foreign commerce. Id. § 922(e)-(f). This replaced language from the FFA, which forbade anyone from shipping or transporting firearms or ammunition to someone whom he knew or believed to have been “convicted in any court of the United States, the several States, Territories, possessions (including the Philippine Islands), or the District of Columbia of a crime of violence or [wa]s a fugitive from justice.” FFA, 15 U.S.C. § 922(d) (1940). The Act then went on to prohibit those “under indictment[,] . . . convicted of a crime of violence[,] . . . or . . . fugitive[s] from justice” from shipping, transporting, or receiving firearms. Id. § 922(e)-(f). 172. Gayle, 342 F.3d at 94-95 (citing S. REP. NO. 90-1501, at 31 (1968); H.R. CONF. REP. NO. 90-1956 (1968), reprinted in 1968 U.S.C.C.A.N. 4426, 4428). 173. Pet. for Reh’g at 13, Gayle (No. 02-1095) (quoting Gayle, 342 F.3d at 91). 174. Id. at 14. 175. United States v. Price, 361 U.S. 304, 313 (1960) (citing United States v. United Mine Workers, 330 U.S. 258, 282 (1947)); see also Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980) (“[E]ven when it would otherwise be useful, subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment.”). 176. Gayle, 342 F.3d at 95. 177. See Pet. for Reh’g at 13-14, Gayle (No. 02-1095). 178. Gayle, 342 F.3d at 95. 179. Firearms Fairness and Security Act, S. 2102, 108th Cong. § 2(2)‘(1)(B) (2004), LEXIS 2004 S. 2102. 180. Id.

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in any court outside the United States, of a crime punishable by a term of imprisonment exceeding 1 year (except for any crime involving the violation of an antitrust law), if the conduct giving rise to the conviction would be punishable in any court within the United States by a term of imprisonment exceeding 1 year had such conduct occurred within the United States.181

The sponsors of the amendment clearly intend for courts to consider foreign convictions under the statute. Apparently, some members of the Senate view foreign criminal activity as an equally good measure of dangerousness as a domestic criminal record.182 The court also mistakenly reasoned that the more specific language of FOPA’s definitions section, which excludes certain federal and state offenses from the crimes that can serve as predicates for the felon in possession statute, should serve to limit the phrase “in any court.”183 Because Congress declined to insert such limiting language in the statute, one can argue that it did not intend such a restriction. Where Congress includes specific language in one statutory provision but leaves it out of another, Congress is presumed to have acted intentionally.184 The United States Supreme Court employed similar reasoning in Barrett v. United States.185 In Barrett, the Court analyzed a related provision of the Gun Control Act of 1968, which made it unlawful for a person “‘who ha[d] been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to receive any firearm or ammunition which ha[d] been shipped or transported in interstate or foreign commerce.’”186 The defendant in Barrett, who bought a firearm from a licensed dealer in Kentucky, argued that her conviction was improper under the statute because the gun had been “transported in interstate commerce” before the defendant obtained the weapon.187 Consequently, the Court had to interpret the scope of the phrase “has been transported.”188 The defendant in Barrett contended that Congress did not intend for an individual to be convicted under the statute where the purchase
181. Id. 182. Senators Dewine and Schumer introduced the Firearms Fairness and Security Act on February 23, 2004. S. 2102. After being read twice, the bill was referred to the Senate Committee on the Judiciary. Id. 183. Gayle, 342 F.3d at 93 (citing FOPA, 18 U.S.C. § 921(a)(20) (2000)). 184. Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (citing Russello v. United States, 464 U.S. 16, 23 (1983)). 185. 423 U.S. 212 (1976). 186. Id. at 213 (quoting Gun Control Act of 1968, 18 U.S.C. § 922(h)). Barrett received his previous conviction from a Kentucky court for housebreaking. Id. Barrett later bought a firearm from a Western Auto Store; the owner of the store was a licensed dealer and had obtained the firearm from a distributor in North Carolina. Id. at 213-14. 187. Id. at 213. 188. Id. at 216.

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of a firearm had no connection with interstate commerce.189 The Court disagreed, finding that if “Congress intended to confine [the provision] to direct interstate receipt, it would have so provided, just as it did in other sections of the Gun Control Act.”190 A similar line of reasoning aptly applies in Gayle. If Congress had wanted to limit the phrase “in any court” to domestic courts, it was quite capable of doing so, as evidenced by the more restrictive language found in FOPA’s definitions section.191 In fact, Congress purposefully inserted the phrase “in any court” into the OCCSSA and removed the FFA’s more restrictive language, which limited previous convictions to courts of the United States and its possessions.192 Replacing that restrictive language further indicates that Congress intended to include foreign convictions as predicate offenses. The felon in possession statute specifically encompasses foreign commerce,193 providing further evidence that foreign convictions are proper predicate offenses. The statute not only prohibits possession of firearms, but also criminalizes the shipment, transportation, or receipt of firearms in interstate or foreign commerce.194 Hence, it is rational to conclude that Congress intended the statute to reach persons with foreign convictions because, logically, such persons will often be involved in the transport of firearms across international lines. It is unlikely that Congress would be worried about foreign commerce but not worried about persons with foreign convictions. The Third Circuit used a similar analysis in United States v. Kole.195 In Kole, the defendant pled guilty to importing heroin from Thailand into the United States.196 The Government sought to enhance Kole’s sentence because she had a previous felony drug conviction
189. Id. 190. Id. at 217. See [§] 922(a)(3) (declaring it unlawful for a nonlicensee to receive in the State where he resides a firearm purchased or obtained ‘by such person outside that State’); [§] 922(j) (prohibiting the receipt of a stolen firearm ‘moving as . . . interstate . . . commerce’); and [§] 922(k) (prohibiting the receipt ‘in interstate . . . commerce’ of a firearm the serial number of which has been removed). Id. The Court also disagreed because the language was unambiguous and because the language of the provision was in the present perfect tense, which means it applied to a completed act. Id. at 216-17. The Court did not invoke the rule of lenity, stressing that [t]he very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means. Id. at 218. 191. FOPA, 18 U.S.C. § 921(a)(20) (2000). 192. Compare OCCSSA, Pub. L. No. 90-351, 1968 U.S.C.C.A.N. (82 Stat. 225) 276-77 (1968), with FFA, Pub. L. No. 75-785, 1938 U.S.C.C.A.N. (52 Stat. 1250) 1251, 15 U.S.C. § 922(d) (1940). 193. FOPA, 18 U.S.C. § 922(g) (2000). 194. Id.; see also supra note 25 and accompanying text. 195. 164 F.3d 164 (3d Cir. 1998). 196. Id. at 165.

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from the Philippines.197 The sentence-enhancement statute provided in part that “‘[i]f any person commits any of the prohibited acts set forth [in this provision] after a prior conviction for a felony drug offense . . . [,] such person shall be sentenced to a [specified term].’”198 A defendant could fight the enhancement by arguing that the predicate offense “was obtained in violation of the Constitution of the United States.”199 Kole argued that because the statute specifically bars a conviction that was “obtained in violation of the Constitution of the United States,” her foreign conviction could not qualify as the predicate offense.200 The Third Circuit, noting Congress’ obvious intention to “significantly increase sentences for” repeat drug offenders, rejected the defendant’s argument.201 The fact that the statute punishes anyone “who . . . knowingly or intentionally imports or exports a controlled substance” reinforces this congressional intent to include foreign convictions.202 With such intent, it would be illogical to restrict the sentence enhancement to individuals with drug convictions only in the United States.203 The court did not believe Congress would enact a law that reaches criminals engaged in the international market of drug trafficking and then limit higher penalties to those with only domestic convictions.204 Such a discrepancy would be inconsistent with the goal of reaching those who traffic controlled substances in and out of the United States.205 Gayle calls for an identical rationale. The felon in possession statute prohibits persons convicted “in any court” from shipping or transporting “in interstate or foreign commerce” any firearm or from receiving a “firearm which has been shipped or transported in interstate or foreign commerce.”206 As the Third Circuit pointed out in Kole, it would be illogical for Congress to have extended the reach of the felon in possession statute to encompass foreign commerce, yet not apply the statute to individuals who may in fact be more likely to transport firearms in foreign commerce—criminals with foreign convictions.207
197. Id. (citing 21 U.S.C. § 960(b)(1)(A)); Brief for Defendant-Appellant Agnes Kole at 4, Kole (No. 96-5457) (describing Kole’s 1993 felony drug conviction from a Philippine court for possession of heroin). 198. Kole, 164 F.3d at 167 (quoting 21 U.S.C. § 960(b)(1)(A)). 199. Id. (quoting 21 U.S.C. § 851(c)(2)) (emphasis added). 200. Id. at 166 (quoting 21 U.S.C. § 851(c)(2)) (emphasis added). 201. Id. at 175 (citing 21 U.S.C. § 960(b)(1)(A)). “Repeat drug offenders are clearly more culpable than first time offenders . . . .” Id. 202. Id. (quoting 21 U.S.C. § 960(a)(1)). 203. Id. 204. Id. 205. Id. 206. FOPA, 18 U.S.C. § 922(g)(1) (2000) (emphasis added). 207. Kole, 164 F.3d at 175.

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An agency regulation provides further indication of congressional intent to use foreign convictions as predicate offenses under the felon in possession statute.208 The Gayle court briefly mentioned this regulation but gave it no weight.209 The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the agency delegated the authority to enforce FOPA, interpreted the felon in possession statute in 27 C.F.R. § 478.11.210 The regulation defines a “crime punishable by imprisonment for a term exceeding one year”211 as “[a]ny Federal, State, or foreign offense for which the maximum penalty [is] . . . in excess of one year.”212 The Second Circuit summarily dismissed this interpretation because it seemed to be based only on previous court decisions.213 However, the ATF considered its position before any of the circuit courts had ever addressed whether a foreign conviction qualified as a predicate offense under the statute.214 In 1986, the Sixth Circuit was the first Court of Appeals to contend with this issue in Winson.215 In Winson, the court noted that the ATF unofficially reinterpreted the provision to include foreign offenses as early as 1984 in an internal memorandum.216 This means that the ATF issued the memorandum before the 1985 trial court decision that Winson vacated.217 Notwithstanding the evidence of the ATF’s intent to include foreign convictions before any court had considered the issue, the agency regulation, if not “arbitrary . . . [or] contrary to the statute,” is entitled
208. See generally 27 C.F.R. § 478.11 (2003). 209. United States v. Gayle, 342 F.3d 89, 94 n.4 (2d Cir. 2003) (citing 27 C.F.R. § 478.11 (2003)). 210. See Hardy, supra note 26, at 604. “Enforcement of the [1968] Gun Control Act was initially delegated to the Alcohol and Tobacco Tax Division of the Internal Revenue Service . . . . In 1969, this agency became the Alcohol, Tobacco, and Firearms Division; three years later it achieved full bureau status as the Bureau of Alcohol, Tobacco and Firearms . . . .” Id. 211. FOPA, 18 U.S.C. § 922(g)(1) (2000). 212. 27 C.F.R. § 478.11 (emphasis added). 213. Gayle, 342 F.3d at 94 n.4 (citing Commerce in Firearms and Ammunition, 53 Fed. Reg. 10,480, 10,481 (Mar. 31, 1988)). The final rule of the ATF amended § 922(g)(1) over an objection “to the inclusion of foreign offenses . . . . The final rule retain[ed] the reference . . . because the Act imposes Federal firearms disabilities on persons convicted of a crime punishable by imprisonment for a term exceeding 1 year ‘in any court,’ which term has been held by the courts to include foreign . . . courts.” Commerce in Firearms and Ammunition, 53 Fed. Reg. at 10,481. 214. United States v. Winson, 793 F.2d 754, 758-59 nn.4-5 (6th Cir. 1986) (citing a Memorandum from Steven Higgens, Director of Enforcement and Operations, to the Assistant Secretary of the Treasury for Enforcement and Operations (July 30, 1984)). 215. See id. 216. Id. at 758. “[T]he ATF changed its position on July 30, 1984. Steven Higgens, the Director of Enforcement and Operations, concluded that ‘the ATF should . . . acknowledge the Federal firearms . . . disabilities of persons who have been convicted in foreign courts of a crime punishable by imprisonment for a term exceeding 1 year.’ ” Id. (quoting a Memorandum from Steven Higgens, Director of Enforcement and Operations, to the Assistant Secretary of the Treasury for Enforcement and Operations (July 30, 1984)). 217. Id. at 756 (citing United States v. Winson, No. 3-84-00060, slip op. at 2-3 (M.D. Tenn. Mar. 6, 1985)). This seems to logically lead to the conclusion that Mr. Higgens desired to include foreign convictions before any case had been tried on that issue.

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to weight by the judiciary if it is a reasonable interpretation.218 In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,219 the United States Supreme Court reiterated the long-standing principle of judicial deference to administrative agencies’ interpretations of statutes.220 Where Congress has entrusted the administration of a statutory scheme to an agency, the agency’s construction of a “silent or ambiguous . . . issue” may not be disturbed by a different judicial construction if “the agency’s [explanation] is based on a permissible construction of the statute.”221 Because the ATF has the authority to “prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter,” the agency’s reasonable interpretation of the felon in possession statute, whether or not based on prior court decisions, is entitled to deference.222 The ATF’s interpretation of the statute complements the broad purpose behind FOPA, whereas the Second Circuit’s strict construction ignored that purpose. As the United States Supreme Court stated in United States v. Bass,223 the canon of strict construction of penal statutes does “‘not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.’”224 In Bass, the Court declined to give Title VII of the OCCSSA the narrowest meaning possible.225 The Court gave Title VII a more liberal reading because Congress’ purpose in enacting the statute was to restrict “the firearm-related activity of convicted felons.”226 Similarly, the question of whether a foreign conviction may serve as a predicate offense under the felon in possession statute should not be resolved in favor of lenity toward the defendant.227 The statute should encompass foreign convictions in order to uphold the expansive legislative purpose of disarming dangerous criminals.228
218. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). 219. 467 U.S. 837 (1984). 220. Id. at 844. 221. Id. at 843-44; see also Luby, supra note 50, at 1224-25. 222. FOPA, 18 U.S.C. § 926(a) (2000); Chevron, 467 U.S. at 844. 223. 404 U.S. 336 (1971). 224. Id. at 351 (quoting United States v. Bramblett, 348 U.S. 503, 510 (1955), overruled on other grounds by Hubbard v. United States, 514 U.S. 695 (1995)). 225. Id. at 350-51; see supra note 36. The statute at issue prohibited certain people from receiving, possessing, or transporting a firearm “in commerce or affecting commerce.” Gun Control Act of 1968, 18 U.S.C. app. § 1202(a) (Supp. IV 1964). The United States Supreme Court held “that the commerce requirement in [§] 1202(a) must be read as part of the ‘possesses’ and ‘receives’ offenses” language. Bass, 404 U.S. at 350. This holding adopted the more narrow reading of the pertinent language. Id. at 351. However, the Court also held that for “the offense of ‘receiv(ing) . . . in commerce or affecting commerce,” the government would meet its burden “if it demonstrate[d] that the firearm received ha[d] previously traveled in interstate commerce.” Id. at 350. That conclusion was “[s]ignificantly broader.” Id. 226. Id. at 351; see also supra note 126. 227. Cf. Bass, 404 U.S. at 347 (explaining that the rule of lenity should be employed when a criminal statute is ambiguous). 228. OCCSSA, Pub. L. No. 90-351, § 901, 1968 U.S.C.C.A.N. (82 Stat. 225) 270-71.

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c. The Use of Foreign Convictions Does Not Lead to Absurd Results The exclusion of foreign convictions from the felon in possession statute will lead to absurd results. In relying primarily on the Tenth Circuit’s decision in Concha, the Second Circuit failed to adequately consider these consequences.229 In Concha, the Tenth Circuit concluded that foreign convictions could not be considered for purposes of the Armed Career Criminal Act (ACCA).230 Under the ACCA, if a defendant violates the felon in possession statute and has at least three previous convictions for violent felonies or serious drug offenses, the court enhances the defendant’s sentence to at least a fifteen-year imprisonment.231 The ACCA directs courts to several other statutes to define the phrase “serious drug offense.”232 One such definition, which is found in the Controlled Substances Act, is an offense “punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to [illegal drugs].”233 The court neglected to recognize this unequivocal indication of Congress’ intent to include foreign convictions when enhancing a sentence under the ACCA. In direct contravention of the ACCA’s instruction to include foreign convictions, the Tenth Circuit instead imposed certain restrictions it found in the Guidelines.234 The Guidelines instruct courts on how to sentence a person convicted under the felon in possession statute, regardless of whether the government seeks enhancement under the ACCA.235 To find the recommended sentencing range in the Guidelines, the sentencing judge must calculate the defendant’s criminal history score.236 The Guidelines disregard foreign convictions in the criminal history score, specifically limiting “crimes of violence” and
229. United States v. Gayle, 342 F.3d 89, 93 (2d Cir. 2003) (citing United States v. Concha, 233 F.3d 1249, 1254 (10th Cir. 2000)). For example, because § 921(a)(20)(A) excludes domestic but not foreign antitrust offenses, the court assumed more foreign crimes would be covered than domestic crimes. Id. However, this can be resolved by abiding by the statutory language in § 921(a)(20)(A), which excludes “other similar offenses relating to the regulation of business practices.” FOPA, 18 U.S.C. § 921(a)(20) (2000). 230. Concha, 233 F.3d at 1251; see also supra notes 43-57 and accompanying text. 231. FOPA, 18 U.S.C. § 924(e)(1) (2000). 232. Section 924(e)(2)(A)(i) defines the term “serious drug offense” as “an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), for which a maximum term of imprisonment of ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(i). 233. Controlled Substances Act, 21 U.S.C. § 802(44) (2000) (emphasis added). 234. Concha, 233 F.3d at 1254. 235. GUIDELINES, supra note 50, § 2K2.1, cmt. 6 (providing guidelines for a person convicted under 18 U.S.C. § 922(g) and who has one or two prior felony convictions), § 4B1.4, cmt. 1 (providing guidelines for a person convicted under 18 U.S.C. § 922(g) and who is subject to the ACCA’s sentence enhancement). 236. Id. §§ 1B1.1, 4A1.1, 4B1.2(a).

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“controlled substance offenses” to federal or state crimes.237 However, although the Guidelines do not add foreign convictions into a person’s criminal history score, the Guidelines do not preclude the use of foreign convictions in the initial determination to convict under the felon in possession statute or to enhance a sentence under the ACCA. Moreover, if the Guidelines conflict with an underlying statute, the statute trumps the Guidelines.238 Accordingly, the language of both the felon in possession statute and the ACCA, which allow predicate convictions from any court, and the plain directive of the ACCA that authorizes courts to consider serious drug offenses from foreign courts, lead to the logical conclusion that foreign convictions should be used for purposes of the felon in possession statute and the ACCA.239 The Tenth Circuit failed to appreciate these distinctions. In holding that foreign convictions could not serve as predicate offenses under the ACCA, the Tenth Circuit blatantly ignored both the plain language of the statute and the definition of “serious drug offense,” which unmistakably encompassed foreign convictions.240 The Tenth Circuit’s holding was incorrect. Because Congress directed courts to consider foreign convictions for purposes of sentence enhancement under the ACCA,241 it would be “anomalous” not to use foreign convictions as predicate offenses under the felon in possession statute. In summary, the Second Circuit’s detailed statutory interpretation of the felon in possession statute may have been unnecessary. The language of the statute that refers to “any court” is clear and should be given its plain meaning. Even if it were not, the legislative history relied on by the court in Gayle did not limit the meaning of the pertinent language. Rather, the evolution of the statute has increasingly broadened its reach.242 Finally, while there are strong arguments on either side of this issue, Congress’ purpose in enacting federal firearms legislation, to keep firearms out of the hands of dangerous
237. Id. §§ 4A1.1, 4A.1.2(h), 4B1.2(a). 238. Cf. United States v. Donly, 878 F.2d 735, 741 (3d Cir. 1989) (noting that the guidelines “do not supercede the underlying statute for any offense”); GUIDELINES, supra note 50, § 5G1.1(a) (“Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.”); 21A AM. JUR. 2D Criminal Law § 847 (1998) (noting that “[t]he Sentencing Guidelines [do] not supersede underlying federal statutes with regard to any particular federal criminal offense”). 239. FOPA, 18 U.S.C. §§ 922(g)(1), 924(e)(1), (2)(A)(i) (2000); Controlled Substances Act, 21 U.S.C. § 802(44) (2000). 240. FOPA, 18 U.S.C. § 924(e)(2)(A)(i) (2000) (directing courts to 21 U.S.C. § 802(44) for one of the definitions of the term “serious drug offense”). 241. Id. 242. See Pet. for Reh’g at 6-13, United States v. Gayle, 342 F.3d 89 (2d Cir. 2003) (No. 021095).

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criminals,243 should lead courts to accept foreign convictions as predicate offenses under the statute.244 As the next section will demonstrate, recognition of foreign convictions can be harmonized with a defendant’s right to due process. 2. The Due Process Dilemma In reversing Ingram’s felon in possession conviction, the Second Circuit reasoned that defendants with foreign convictions would not receive the same due process protections as defendants with domestic convictions.245 However, the court failed to recognize the effective methods available to ensure that the use of a foreign conviction will not offend traditional notions of fundamental due process rights.246 Instead of examining Ingram’s Canadian conviction itself, the court contemplated an imaginary defendant with a foreign conviction for speaking out against a government or declining to follow a mandatory state religion.247 Obviously, these crimes would not be entitled to recognition under the guarantees of our country’s First Amendment.248 However, rather than order a blanket ban on the consideration of all foreign convictions, the court should have decided the question based only on the facts of Ingram’s case249 and investigated existing solutions to the due process dilemma. a. The Constitutionality of Foreign Convictions Should Be Attacked at Trial In determining whether a foreign conviction qualifies as a predicate offense, courts should address whether the prior conviction meets constitutional standards at the trial level. In a line of cases relevant to the felon in possession statute, however, the United States Supreme Court has all but foreclosed the possibility of a collateral attack at the
243. OCCSSA, Pub. L. No. 90-351, § 901, 1968 U.S.C.C.A.N. (82 Stat. 225) 270-71; United States v. Barrett, 423 U.S. 212, 218 (1976). 244. Another potential anomaly created by the exclusion of foreign convictions would be presented when a defendant convicted under § 922(g)(1) has a prior conviction from a tribal court. While this issue falls outside the scope of this comment, its resolution may be similar to that in cases involving courts-martial as predicate offenses. See, e.g., United States v. Martinez, 122 F.3d 421, 424 (7th Cir. 1997) (interpreting the phrase “in any court” as allowing a courtmartial to be used for purposes of 18 U.S.C. § 924(e)); United States v. MacDonald, 992 F.2d 967, 970 (9th Cir. 1993) (holding that a court-martial is a sufficient basis for a conviction under 18 U.S.C. § 922(g)(1)); United States v. Lee, 428 F.2d 917, 920 (6th Cir. 1970) (deciding that a court-martial falls within the court-restrictive language of the FFA, 15 U.S.C. § 902). 245. United States v. Gayle, 342 F.3d 89, 95-96 (2d Cir. 2003). 246. See United States v. Moskovits, 784 F. Supp. 183 (E.D. Pa. 1991); RESTATEMENT, supra note 77, § 482. 247. Gayle, 342 F.3d at 95. 248. See U.S. CONST. amend. I. 249. Cf. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-02 (1985) (applying “the rule that a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it”).

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trial level.250 Nevertheless, the reasoning behind these decisions does not apply to foreign predicate offenses.251 In Lewis v. United States,252 the United States Supreme Court held that a defendant may not collaterally attack the predicate offense during a trial for possession of a firearm by a felon.253 The Court expressed two main grounds for its decision.254 First, the statute prohibited both felons and persons under indictment for felonies from possessing firearms, even if they were later acquitted of those charges.255 Second, in contrast to other criminal statutes that expressly permitted defendants to challenge the validity of predicate offenses, Congress did not attach such a modifier to the felon in possession statute.256 The Court interpreted these stringent restrictions as representative of congressional intent for a defendant to “clear his status before obtaining a firearm.”257 The defendant can do this by attacking the prior domestic conviction in the original court, obtaining a qualifying pardon, or having the firearm disability removed by following the relief requirements found in the statute itself.258 Yet, the methods of relief mentioned by the Court do not apply to offenders with foreign convictions. First, a foreign court system may not allow persons to attack and overturn their convictions. Even if it were possible, the time and expense to seek such relief would surely be an impossible obstacle to overcome for the criminal who is serving time in a United States prison. Second, there appears to be no authority that would allow an executive branch official to grant a pardon or an expungement of a foreign conviction.259 Finally, individuals who are restricted from possessing firearms have lost the ability to
250. See Daniels v. United States, 532 U.S. 374 (2001); Custis v. United States, 511 U.S. 485 (1994); Lewis v. United States, 445 U.S. 55 (1980). 251. See generally Daniels, 532 U.S. 374; Custis, 511 U.S. 485; Lewis, 445 U.S. 55. 252. 445 U.S. 55 (1980). 253. Id. at 65. The defendant challenged a 1961 felony conviction issued by a Florida state court. Id. at 56-58. While Lewis dealt specifically with Title VII of the Gun Control Act of 1968, the Court, in dicta, also appeared to apply its decision to offenses under Title IV. Id. at 63-64. Title IV contained the broad “in any court” language. See supra notes 32-36 and accompanying text. 254. Lewis, 445 U.S. at 60-64. 255. Gun Control Act of 1968, 18 U.S.C. app. § 1202(a)(1) (Supp. IV 1964); Lewis, 445 U.S. at 64. 256. Lewis, 445 U.S. at 61-62 (citing 18 U.S.C. § 3575(e); 21 U.S.C. § 851(c)(2)). 257. Id. at 64. 258. Id. Section 925(c) allows certain persons who are prohibited from possessing firearms to apply to the Attorney General for relief from their firearms disabilities. FOPA, 18 U.S.C. § 925(c) (2000). The Attorney General has discretion to “grant such relief if” he is satisfied “that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” Id. 259. See Daniel Levy, Exclusion Grounds Under the Immigration Act of 1990, 91-08 IMMIGR. BRIEFINGS 1, 20 (Aug. 1991). As far as immigration law is concerned, “[f]oreign expungements are not effective to cure the immigration consequences of any crime . . . [and] foreign executive pardons are ineffective to cure immigration consequences in the case of crimes of moral turpi-

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obtain the statutory relief granted to them under 18 U.S.C. § 925.260 For these reasons, it appears that the Lewis decision applies only to domestic convictions. The United States Supreme Court has also precluded most collateral attacks of predicate offenses at the sentencing stage and after the trial and sentencing stages are complete.261 In Custis v. United States,262 the Court held that during the sentencing stage of trial a defendant may only attack prior convictions used for purposes of the ACCA if they were “obtained in violation of the right to counsel.”263 In Daniels v. United States,264 the Court held that after a defendant has been sentenced under the ACCA, he may not set aside the sentence when he has failed to directly or collaterally attack the predicate convictions when “those remedies . . . were available.”265 Like Custis, the only exception is if the predicate conviction was received without the benefit of counsel.266 In both cases, the Court based its decisions on three factors: first, only a violation of the constitutional right to counsel justifies collateral attack;267 second, the ease of administration would be inhibited by allowing defendants to bring every collateral attack, as courts would be required to “rummage through frequently nonexistent or difficult to obtain state-court transcripts”;268 and third, the judiciary’s “interest in promoting the finality of judgments” discourages impairment of the “orderly administration of justice.”269 These three factors do not apply in the context of foreign convictions.270 First, a defendant with a foreign conviction may have suffered the violation of a constitutional right equally as important as the right to counsel. For example, the defendant may have been torturously cotude.” Id.; see also Marino v. INS, 537 F.2d 686, 691 (2d Cir. 1976); Zgodda v. Holland, 184 F. Supp. 847, 851 (E.D. Pa. 1960). 260. Appropriations Act, Pub. L. No. 102-393, 106 Stat. 1729, 1732 (1992). In the Appropriations Act, Congress pulled all funding from the ATF to “ ‘investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. [§] 925(c).’ ” Bean v. Bureau of Alcohol, Tobacco, & Firearms, 253 F.3d 234, 236 (5th Cir. 2001), rev’d sub nom. United States v. Bean, 537 U.S. 71 (2002) (quoting Appropriations Act, Pub. L. No. 102-393, (106 Stat. 1729) 1732 (1992)). 261. Daniels v. United States, 532 U.S. 374 (2001); Custis v. United States, 511 U.S. 485 (1994). 262. 511 U.S. 485 (1994). 263. Id. at 487. 264. 532 U.S. 374 (2001). 265. Id. at 382. Daniels brought an action under 28 U.S.C. § 2255 to set aside a sentence received under the ACCA. Id. at 377. “Section 2255, a postconviction remedy for federal prisoners, permits” a prisoner to request the sentencing court “to ‘vacate, set aside or correct [a] sentence’ upon the ground that ‘the sentence was imposed in violation of the Constitution or laws of the United States.’ ” Id. (quoting 28 U.S.C. § 2255 (2000)). 266. Id. at 378 (citing Custis, 511 U.S. at 488, 490-97). 267. Id. at 382; Custis, 511 U.S. at 495. 268. Daniels, 532 U.S. at 378; Custis, 511 U.S. at 496. 269. Custis, 511 U.S. at 496-97 (citing United States v. Addonizio, 442 U.S. 178, 184 n.11 (1979)); see also Daniels, 532 U.S. at 378-80. 270. See infra notes 271-78 and accompanying text.

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erced to confess to a crime she didn’t commit: if such a practice were permitted in that country, direct attack in the original jurisdiction would be nearly impossible.271 Second, the ease of administration would not be significantly hampered by allowing a defendant to collaterally attack the foreign conviction at trial or at sentencing. By shifting the burden of proof to the defendant to show that the conviction was unconstitutionally obtained, the parties, and not the court, would have to find and sift through the relevant documents.272 Furthermore, both Custis and Daniels dealt with predicate offenses in the context of the ACCA’s sentence enhancement; the defendants had already been found guilty of the underlying crime.273 In the context of foreign convictions as predicates for the felon in possession statute, though, the defendant’s guilt or innocence “hinges upon the prior conviction,” and the defendant’s need to raise constitutional challenges at the trial stage is much more vital.274 Therefore, a court’s interest in giving judgments finality is trumped by the constitutional rights of the defendant before it.275 Accordingly, the reasoning behind Custis and Daniels is not applicable to foreign convictions.276 Although the United States Supreme Court has essentially prohibited all forms of collateral attack of predicate offenses used under the felon in possession statute and the ACCA, those decisions are based on a foundation that is irrelevant when applied to foreign convictions.277 To fulfill Congress’ purpose in preventing dangerous criminals from access to firearms,278 courts should address whether foreign predicate offenses are constitutional at the trial level. Courts currently employ at least two accepted methods to decide whether to recognize foreign judgments.279 The more thorough method stems
271. See, e.g., Rosado v. Civiletti, 621 F.2d 1179, 1198 (2d Cir. 1980) (holding “that a petitioner incarcerated under federal authority pursuant to a foreign conviction cannot be denied all access to [domestic courts] when he presents a persuasive showing that his conviction was obtained without” any due process). 272. See United States v. Small, 183 F. Supp. 2d 755, 763 (W.D. Pa. 2002), aff’d, 333 F.3d 425 (3d Cir. 2003), cert. granted, 72 U.S.L.W. 3614 (U.S. Mar. 29, 2004) (No. 03-750). 273. Daniels, 532 U.S. at 376; Custis, 511 U.S. at 487; see also Small, 183 F. Supp. 2d at 762. 274. Small, 183 F. Supp. 2d at 762 n.8. 275. Moreover, recognition of judgments as final is not as imperative when those judgments hail from foreign courts. Cf. Hilton v. Guyot, 159 U.S. 113, 166 (1895) (emphasizing that United States courts are not bound to recognize judgments of foreign tribunals). 276. The Daniels Court realized that in rare cases defendants would have no avenue of review available. Daniels, 532 U.S. at 383. However, the Court did not set out the procedures defendants in these rare cases will have available to challenge the validity of their prior convictions. Id. at 383-84. The Court reserved the question of whether such rare cases would allow a defendant to bring an action under 28 U.S.C. § 2255 to attack a sentence based on an unconstitutional conviction. Id. 277. See id. at 378-82; Custis, 511 U.S. at 496-97; Lewis, 445 U.S. at 60-64. 278. See supra note 126. 279. See United States v. Small, 333 F.3d 425, 428 (3d Cir. 2003), cert. granted, 72 U.S.L.W. 3614 (U.S. Mar. 29, 2004) (No. 03-750); United States v. Moskovits, 784 F. Supp. 183, 191-92 (E.D. Pa. 1991). Alex Glashausser advocated a third method courts should use to test prior foreign convictions, which he dubbed the “reliability of conviction standard.” Glashausser, supra note 7, at 161. Under a “reliability of conviction standard,” the inquiry would focus on

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from the Restatement (Third) of Foreign Relations Law of the United States;280 however, other courts have used a less systematic method that is attributed to the 1991 decision of United States v. Moskovits.281 The Restatement (Third) of Foreign Relations Law details a comprehensive method that courts may apply to determine the constitutionality of foreign judgments.282 The Third Circuit adopted this approach in United States v. Small.283 In Small, the Government charged the defendant, who had a previous Japanese conviction, with a violation of the felon in possession statute.284 In order to determine whether the prior conviction met the requirements of the Due Process Clause, the court evaluated the conviction using the grounds set forth in the Restatement.285 Section 482 of the Restatement instructs courts not to recognize a foreign judgment if the foreign judicial system did not have jurisdiction over the defendant or if it did not afford the defendant with impartial procedures or tribunals harmonious with due process standards.286 If these two grounds for recognition are met, the Restatement goes on to list six additional grounds a court may use to decline to recognize a foreign judgment.287 The discretionary grounds for non-recognition are
(a) the court . . . did not have [subject matter jurisdiction]; (b) the defendant did not receive notice . . . in sufficient time . . . ; (c) the judgment was obtained by fraud; (d) the cause of action . . . is repugnant to the public policy of the United States or of the State where recognition is sought; (e) the judgment conflicts with another final judgment that is entitled to recognition; or (f) the proceeding in the foreign court was contrary to an agreement between the parties to submit the controversy . . . to another forum.288

The Third Circuit deferred to the Western District of Pennsylvania’s thorough analysis of the Japanese transcript and trial re“whether a foreign conviction is reliable evidence that . . . a crime [actually] occur[red] and whether the underlying conduct could be proscribed by an American state legislature and withstand a federal constitutional challenge.” Id. at 161-62. The difference between the fundamental fairness standard and the proposed “reliability of conviction standard” is that under the former, courts look at both the potential unconstitutional injustices suffered by the defendant and also scrutinize any misconduct by the foreign tribunal. Id. at 162. Under the latter, courts need only examine the defendant’s conduct that led to the foreign conviction. Id. 280. RESTATEMENT, supra note 77, § 482. 281. 784 F. Supp. 183 (E.D. Pa. 1991); see Kimes, supra note 7, at 515-18; see, e.g., State v. Williams, 663 A.2d 1378, 1387 (N.J. Super. Ct. Law Div. 1995). 282. RESTATEMENT, supra note 77, § 482. 283. 333 F.3d at 428. 284. Id. at 426. In 1994, the Naha District Court convicted the defendant “for violations of the Japanese Act Controlling the Possession of Firearms and Swords, the Gunpowder Control Act, and the Customs Act.” Id. 285. Id. at 428. 286. RESTATEMENT, supra note 77, § 482(1)(a)-(b). 287. Id. § 482(2)(a)-(f). 288. Id.

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cord.289 The district court compared the rights guaranteed in both the Japanese and the United States Constitutions.290 It found that both countries guaranteed almost all of the same basic rights.291 In fact, of the eleven infirmities Small used to argue that the conviction was unconstitutional, only one, the right to a jury trial, is guaranteed by the United States and not by the Japanese Constitution; the other ten infirmities were merely “specifics of [Small’s] prosecution.”292 Even though Small did not enjoy a jury trial, the court declined to render the conviction unconstitutional.293 The Third Circuit agreed that the Japanese conviction met the standards of the Restatement and therefore qualified as a predicate offense.294 In Moskovits, the Eastern District Court of Pennsylvania held that the validity of a foreign conviction should be determined by looking at its “constitutional integrity” in terms of American fundamental fairness.295 Fundamental fairness in criminal procedure originates from the very same purposes for which constitutional guarantees were created.296 For example, the United States Supreme Court has held that crucial stages of criminal proceedings require the presence of counsel because the majority of citizens would be unable to defend criminal charges without an attorney.297 Conversely, although the Constitution guarantees criminal defendants the right to a jury trial,298 the Fourth Circuit has found that an American court may recognize a German conviction made without a jury.299 This is because the con289. Small, 333 F.3d at 428. 290. United States v. Small, 183 F. Supp. 2d 755, 765-70 (W.D. Pa. 2002), aff’d, 333 F.3d 425 (3d Cir. 2003), cert. granted, 72 U.S.L.W. 3614 (U.S. Mar. 29, 2004) (No. 03-750). 291. Id. at 767. 292. Id. at 765-70. Small pointed out eleven aspects of his Japanese conviction that he felt did not comport with fundamental fairness notions: • he was denied the right to bail; • he was interrogated for 25 consecutive days; • he was denied the right to a speedy trial; • one of the three judges who decided his case was substituted with a new judge during the trial; • the trial transcript contains prejudicial hearsay; • he was denied any appeal or appellate rights; • the testimony by the prosecution’s handwriting expert would not be admissible in an American court; • he was denied the right to a jury trial; • he was denied the right to remain silent; • he was denied the right to confront his accusers; and • he was denied the right to counsel or effective counsel at various crucial stages of the proceedings. Id. at 765-66. 293. Id. at 768 (citing United States v. Kole, 164 F.3d 164, 172 (3d Cir. 1998)); see also infra notes 296-300 and accompanying text. 294. Small, 333 F.3d at 428. 295. United States v. Moskovits, 784 F. Supp. 183, 192 (E.D. Pa. 1991). 296. Id. at 190. 297. Id.; see also Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963). 298. U.S. CONST. amend. VI. 299. Moskovits, 784 F. Supp. at 190 (citing United States v. Wilson, 556 F.2d 1177 (4th Cir. 1977)).

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cept of a jury is a product of our unique legal culture and is not a necessary “ingredient” to accomplish a fair verdict.300 Therefore, because Moskovits received his prior conviction from a Mexican court without the benefit of counsel at crucial stages of the proceedings, the court held that the predicate offense was constitutionally infirm.301 As the Supreme Court noted in Lewis, “‘[n]othing [in the felon in possession] statute suggests a congressional intent to limit its coverage to persons whose convictions are not subject to collateral attack.’”302 This language suggests that courts should consider foreign convictions as predicate offenses. Accordingly, courts need some standard to ensure that the use of foreign convictions does not deny defendants precious constitutional guarantees.303 The grounds for nonrecognition of foreign judgments laid out in the Restatement seem to be more exhaustive than the vague “fundamental fairness” test used in Moskovits.304 Applying the Restatement test to foreign convictions will further Congress’ purpose in enacting the felon in possession statute.305 b. Notice Critics may oppose using foreign convictions as predicate offenses because persons with such convictions may not have notice of the felon in possession law. Consequently, convicting these persons under the statute based on foreign predicate offenses would violate their right to due process. This is similar to arguments advanced by those who resist using foreign convictions in the context of sentence enhancements such as the ACCA.306 The primary purpose of recidivist statutes is to give notice to first-time offenders in order to deter their criminal behavior.307 The argument, therefore, is that offenders with foreign convictions are not put on notice that specific behavior in the United States will be punished more harshly if the offender has
300. Id. 301. Id. at 184. The court further distinguished the two situations in which a judge would need to look at prior convictions. Id. at 191-92. If a judge takes a prior conviction into account simply as evidence of a pattern of criminal behavior, the constitutionality of the prior conviction is not in issue. Id. at 192. If, however, a statute requires a judge to account for prior convictions to enhance a current sentence, the past conviction must be valid. Id. at 191-92. Consequently, because the Mexican court convicted Moskovits without giving the defendant the aid of counsel and the sentencing judge used that conviction to enhance the defendant’s current sentence under a statutory directive, the enhancement was unconstitutional. Id. at 192-93. 302. United States v. Lewis, 445 U.S. 55, 60 (1980) (quoting United States v. Culbert, 435 U.S. 371, 373 (1978)) (internal brackets omitted). 303. See generally Glashausser, supra note 7, at 161. 304. Moskovits, 784 F. Supp. at 191-92; see also RESTATEMENT, supra note 77, § 482(1)-(2). 305. See supra note 126. 306. See, e.g., Kimes, supra note 7, at 518-20. 307. Id. at 519; see also 39 AM. JUR. 2D Habitual Criminals and Subsequent Offenders § 3 (1999).

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previous convictions, and thus the offenders will not be deterred by the various statutes.308 This argument fails for three reasons. First, the purpose behind recidivist statutes is irrelevant in the context of the felon in possession statute. The felon in possession statute is not a recidivist statute enacted to warn first-time offenders; rather, it restricts offenders from gaining access to firearms.309 In order to properly restrict all criminals from obtaining firearms, the felon in possession statute must be broadly construed to encompass foreign convictions. Such a construction would only add to a manifest legislative receptiveness to the recognition of foreign judgments under the criminal code.310 Next, in the framework of the American judicial system, the maxim that “ignorance of the law is no excuse” has been accepted time and again.311 This maxim particularly rings true when the defendant fighting the import of a foreign conviction is actually an American citizen. In fact, such was the case in the recent United States Supreme Court decision of United States v. Bean.312 While the Bean Court was not called upon to determine whether the defendant’s Mexican felony conviction properly qualified as a predicate offense under the felon in possession statute, the Court nevertheless decided that the restrictions imposed on Bean because of his criminal status could not be removed.313 Although the Court did not specifically address the implications of using a foreign conviction under the statute, it is interesting to note that the Court did not seem to have a problem with denying the American defendant his livelihood based on a Mexican conviction.314
308. Kimes, supra note 7, at 519. 309. See supra note 126. 310. See United States v. Chant, Nos. CR 94-1149 & CR 94-0185, 1997 WL 231105, at *3 (N.D. Cal. 1997) (citing 21 U.S.C. § 841(a)-(b); 21 U.S.C. § 802(43)). 311. See, e.g., Bryan v. United States, 524 U.S. 184, 193-95 (1998) (refusing to create an exception to the rule “that ignorance of the law is no excuse” in regard to 18 U.S.C. § 924(a)). 312. 537 U.S. 71 (2002). Bean, a licensed firearms dealer, received a felony conviction from a Mexican court and was subsequently prevented from selling firearms because of the prohibition set out in 18 U.S.C. § 922(g)(1). Id. at 72-73. “Relying on § 925(c), [Bean] applied to ATF for relief from his firearms disabilities.” Id. at 73. 313. Id. at 78. The ATF replied to Bean without processing his application, explaining that the law prohibited the agency from acting on such applications. Id. at 73; see also supra note 258 and accompanying text. Frustrated, Bean filed an action in the United States District Court for the Eastern District of Texas. Bean, 537 U.S. at 73. The district court granted Bean’s request for relief, and the Court of Appeals for the Fifth Circuit affirmed. Id. 314. Transcript of Oral Argument, United States v. Bean, 537 U.S. 71 (2002) (No. 01-704), available in 2002 WL 31414616, at *4 (Oct. 16, 2002) (argument on behalf of Petitioner). The only reference in the oral arguments to the issue was the following: QUESTION: Mr. Kneedler, there was an alternate argument that a foreign conviction shouldn’t count for this purpose. Has the United States ever taken a position on that? MR. KNEEDLER: Yes. Yes, we have. It is the position of the United States that foreign convictions are covered by the act. Now, that is not before the Court. The—in fact, below respondent conceded that a foreign conviction is a proper predicate under 922(g)(1), and the Eleventh Circuit expressly declined to reach that question. It wasn’t presented in the petition and it’s not before this Court.

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Finally, the fact that many countries have laws similar to our felon in possession statute renders the argument regarding notice moot.315 In 1997, the United Nations International Study of Regulation of Firearms reported data gathered from forty-six countries around the world on firearms regulation.316 Of those countries, all but two “place some prohibitions or restrictions on firearm ownership by civilians with a criminal background.”317 It logically follows that citizens from those countries have some awareness that the possession of firearms by people with criminal histories can result in a violation of the law. The Second Circuit’s summary dismissal of Gayle, without more thoroughly examining the due process issue, was premature. Not only is there evidence to suggest that Congress intended to extend the statute’s “‘coverage to persons whose convictions are . . . subject to collateral attack,’”318 but there are also methods currently available to ensure that use of foreign predicate convictions does not deny defendants constitutional protection.319 The due process dilemma has already been resolved. V. CONCLUSION The phrase “in any court” is unambiguous. The Second Circuit erred in looking beyond the plain meaning of the statute. There are only three reasons the Gayle court should have looked beyond the plain language: if the language was unclear or ambiguous, if Congress had clearly expressed a contrary intent, or if adopting the meaning of the plain language would lead to absurd results.320 The United States Supreme Court previously held that the word “any” as used in a different provision of FOPA is plain and has a naturally broad meaning.321 Seeing no reason to “mudd[y] the waters” with the statute’s legislative history, the Court simply presumed that Congress intended an expansive reading of the word.322 As the felon in possession statute’s legislative history confirms, Congress did indeed intend for the word “any” to have a liberal application.323
Id. 315. See UNITED NATIONS OFFICE FOR DRUG CONTROL & CRIME PREVENTION, GLOBAL REPORT ON CRIME AND JUSTICE 158-59 (Graeme Newman ed., 1999). 316. Id. at 151-70. 317. Id. at 158. 318. United States v. Lewis, 445 U.S. 55, 60 (1980) (quoting United States v. Culbert, 435 U.S. 371, 373 (1978)) (internal brackets omitted). 319. See United States v. Small, 333 F.3d 425, 427-28 (3d Cir. 2003), cert. granted, 72 U.S.L.W. 3614 (U.S. Mar. 29, 2004) (No. 03-750); United States v. Moskovits, 784 F. Supp. 183, 191-92 (E.D. Pa. 1991). 320. See supra notes 130-33 and accompanying text. 321. See supra notes 134-63 and accompanying text. 322. See supra notes 134-63 and accompanying text. 323. See supra notes 28-42 and accompanying text.

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Washburn Law Journal

[Vol. 43

Congress has consistently broadened the scope of the felon in possession statute.324 Most notably, Congress removed restrictive language from the original statute that limited predicate convictions to those issued by federal and state courts.325 In its place, Congress expanded the statute to include predicate convictions from any court.326 The Gayle court presumed that Congress had expressed intent to exclude foreign convictions.327 However, the court made three erroneous conclusions in its interpretation of the statute. First, the court relied on the wrong legislative history.328 Second, the court assumed that specific language in the definitions section of FOPA serves to bar foreign convictions.329 Finally, the Second Circuit neglected to appreciate the fact that because the felon in possession statute specifically encompasses foreign commerce, it is only rational to discern congressional intent to employ foreign convictions.330 The ACCA provides further evidence that courts should give the phrase “in any court” its plain meaning. In addition to encompassing the “in any court” language, the ACCA directs courts to another criminal statute for a definition that explicitly includes foreign convictions as predicate offenses.331 Clearly, it would be absurd not to apply foreign convictions to the felon in possession statute as well. Courts are rightfully concerned about a defendant’s ability to attack the constitutionality of foreign convictions. The appropriate solution is to allow the defendant to put this issue before the trial court.332 The trial judge can then decide, using the standards set out in the Restatement (Third) of Foreign Relations Law, whether the foreign conviction meets the requirements of the Due Process Clause.333 In United States v. Gayle, the Second Circuit’s conclusion that the felon in possession statute does not encompass foreign convictions was more cautious than was required. Courts should be wary of attributing congressional intent where none has been explicitly stated and should take steps to safeguard the due process rights of criminal defendants. However, the broad purpose behind federal firearms legislation, coupled with the solutions in place that protect defendants’ due process rights, merit a more expansive reading of the felon in possession statute than that taken by the Second Circuit. By limiting the
324. 325. 326. 327. 328. 329. 330. 331. 332. 333. See See See See See See See See See See supra supra supra supra supra supra supra supra supra supra notes 28-42 and accompanying text. notes 28-35 and accompanying text. notes 28-35 and accompanying text. note 164. notes 164-78 and accompanying text and note 1. notes 183-92 and accompanying text. notes 193-207 and accompanying text. notes 229-44 and accompanying text. notes 250-76 and accompanying text. notes 277-94 and accompanying text.

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application of the statute’s phrase “in any court,” the Gayle court merely added to the tempest in a teapot.334

334. The Third Circuit dismissed arguments about the meaning of the phrase “in any court” as merely “a tempest in a teapot” and held that foreign convictions may generally be used as predicate offenses under 18 U.S.C. § 922(g)(1). United States v. Small, 333 F.3d 425, 427 n.2 (3d Cir. 2003), cert. granted, 72 U.S.L.W. 3614 (U.S. Mar. 29, 2004) (No. 03-750).

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