A Small Step Backwards: Foreign Convictions as Predicate Offenses After the Supreme Court"s Decision in Small v. United States

• Author: John N. Pantazis
• Position: J.D. Candidate, The University of Iowa College of Law, 2007; B.A., University of Northern Iowa, 2003
• Pages: 274-295

J.D. Candidate, The University of Iowa College of Law, 2007; B.A., University of Northern Iowa, 2003. I would like to thank the Pantazis, Lukas, and Spencer families for their guidance, laughter, and support during law school. I would also like to thank my wife, Helen Pantazis, for making our life together an enjoyable adventure. Finally, many thanks to the past and present members of the Iowa Law Review for all their hard work and suggestions.

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I Introduction

Suppose two foreign citizens, Irene and Charlie, relocate to the United States. Irene is from Iran, and Charlie is from Canada. Once, many years ago, Irene was erroneously convicted in an Iranian court of stealing and sentenced to three years in prison. She was never given the assistance of counsel, and her conviction was based on a confession she signed under duress. In fact, Irene was innocent. After being freed from prison, she moved to Illinois and purchased a handgun for protection after being mugged.

Charlie also had prior legal troubles. Most recently, a Canadian court convicted Charlie of armed robbery for the fourth time. Throughout his arrest and trial, Charlie was afforded the full due-process rights guaranteed to him under Canadian law. After serving a five-year prison sentence, Charlie also decided to move to Illinois. Days after moving, Charlie went to a gun show to purchase firearms for an upcoming armed robbery spree. At the show he was spotted by Dudley, a former Canadian mountie, who is now an FBI agent. Recognizing Charlie as a career criminal, Dudley quickly arrested Charlie and charged him under 18 U.S.C. § 922(g), a federal statute intended to keep firearms out of the hands of dangerous criminals like Charlie.

Elsewhere in Illinois, Irene called the police to her apartment after noticing some suspicious people lurking in her neighborhood. After taking Irene's personal history, the police noticed her firearm. She was charged under § 922(g) as well.

Should § 922(g), which enjoins people who have been "convicted in any court of a crime punishable by imprisonment for a term exceeding one year"¹ from possessing firearms, apply to Irene and Charlie? In April 2005, the Supreme Court decided that it does not.² In Small v. United States, the Court held that foreign convictions cannot serve as predicate offenses under § 922(g).³ As a result, § 922(g) no longer bars career criminals like Charlie from possessing firearms.

This Note explores the history behind § 922(g)⁴ and the various interpretations of its "in any court" language that led to a federal circuit split.⁵ Next, the Note analyzes the Small decision in detail, from its origins in the Third Circuit⁶ to the Supreme Court's eventual resolution of the circuit split.⁷ Finally, the Note critiques the holding in Small⁸ and advocates aPage 275 "lenient restatement" interpretation of § 922(g) to best reflect the purpose and language of the statute.⁹

II Background

A The Evolution of the Federal Felon in Possession of Firearm Statute

Congress drafted § 922(g)(1) of the Gun Control Act of 1968 ("Gun Control Act") to keep firearms and ammunition out of the hands of dangerous convicted felons.¹⁰ The pertinent text reads: "It shall be unlawful for any person - (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition."¹¹

The Act included two sections that are relevant to the current statutory construction dilemma, § 922 and § 1202.¹² Section 922 prohibited the possession of a firearm by a felon but required interstate commercial activity, not just possession, for the provision to apply.¹³ Section 1202, drafted after § 922, prohibited the mere possession of a firearm by a felon.¹⁴ Thus, § 1202 had the practical effect of "enlarging the class of persons who could not lawfully possess firearms."¹⁵ However, § 1202, unlike § 922, only applied to domestic offenses.¹⁶

In 1986, Congress incorporated the Gun Control Act into the Firearms Owners' Protection Act ("FOPA").¹⁷ FOPA repealed § 1202, but kept itsPage 276 prohibition on mere possession of a firearm.¹⁸ However, unlike § 1202, FOPA did not explicitly limit its application to only domestic state and federal convictions.¹⁹ This series of statutory revisions set the stage for the current controversy surrounding § 922(g)(1).

Part of this controversy is the inability of courts and commentators to agree on the legislative intent behind § 922(g)(1). As a result, the legislative history of the Gun Control Act has been subjected to two very different interpretations. One interpretation asserts that since § 1202 was intended to broaden the scope of § 922, the sections were "linked," and § 1202's limitation to domestic crimes must therefore apply to § 922 as well.²⁰ Another interpretation focuses on the fact that FOPA repealed § 1202 without incorporating the § 1202 domestic-crime limitation into § 922(g)(1).²¹ This indicates that the "evolution of the federal firearms legislation has consistently broadened the scope of the felon in possession statute."²² As a result of this broadening, Congress arguably intended the Gun Control Act to apply to criminals convicted in foreign courts in addition to domestic courts.²³

As demonstrated above, divining congressional intent from legislative history depends in large part upon what portion of the history is focused upon. Should the focus be on the initial drafting of § 922 and § 1202 or on the later amendment that repealed section § 1202? In which action was Congress speaking loudest? Because the history behind the Gun Control Act is ambiguous, it cannot be used to support any particular interpretation of the Act.²⁴ This ambiguity fueled the circuit split regarding the interpretation of § 922(g), which will be discussed next.

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B The "Any Court" Language of § 922(G) Creates a Circuit Split

This section discusses the different approaches courts have taken when attempting to interpret the language of § 922(g). While most courts previously allowed foreign convictions to serve as predicate offenses under § 922(g), a substantial minority did not.

1. The Majority of Courts Allowed Foreign Convictions to Serve as Predicate Offenses Under § 922(g)

Prior to the Supreme Court's April 2005 decision in Small v. United States,²⁵ a majority of circuits interpreted "any court" to include foreign convictions.²⁶ These jurisdictions are referred to as "foreign use" courts.²⁷

a The Sixth Circuit Is the First to Allow Foreign Convictions to Serve as Predicate Offenses in United States v. Winson

In United States v. Winson,²⁸ the District Court for the Middle District of Tennessee dismissed an indictment against the defendant after deciding that foreign convictions could not serve as predicate offenses under § 922(g).²⁹ The district court found that § 922(g) was rendered ambiguous by the coexistence of § 1202.³⁰ After finding § 922(g) ambiguous, the district court applied the rule of lenity,³¹ which compels courts to resolve any statutory ambiguity in favor of the defendant,³² and found that the defendant's prior convictions in Argentina and Switzerland could not serve as predicate offenses under § 922(g).³³

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The Sixth Circuit disagreed, finding the language of § 922(g) to be "patently unambiguous."³⁴ The court went on to state that its decision comported with the congressional intent behind § 922(g), since it could "perceive [of] no reason why the commission of serious...