Dangerous criminals or dangerous courts: foreign felonies as predicate offenses under section 922(g) (1) of the Gun Control Act of 1968.

• Author: Estaver, Aron J.

ABSTRACT

There is currently a split among U.S. Circuit Courts regarding 18 U.S.C. [section] 922(g)(1), a provision of the Gun Control Act of 1968 that makes it a crime for any individual "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess or receive a firearm in interstate or foreign commerce or affecting interstate commerce." The U.S. Supreme Court will examine the split later this year when it hears the case of United States v. Small. The Author argues that the Supreme Court should determine that Section 922(g)(1) of the Gun Control Act of 1968 is ambiguous in its application to foreign felony convictions because of the legislative history of the Gun Control Act and the potential constitutional problems that may arise from recognition by U.S. courts of foreign convictions. More specifically, the Author proposes that the U.S. Supreme Court either affirm the Restatement test adopted by the Third Circuit Court of Appeals and allow for discretionary inclusion of foreign felony convictions or hold Section 922(g)(1)'s scope to cover only domestic felony convictions, which would help pave the way for Congress to speak more clearly to the issue and conclusively prohibit dangerous felons, both domestic and foreign, from owning handguns.

TABLE OF CONTENTS I. LOCKED AND LOADED: INTRODUCTION AND THESIS II. THE MOTTLED LANDSCAPE: THE DECISIONS OF THE U.S. COURTS OF APPEALS A. The Sixth Circuit Court of Appeals B. The Fourth Circuit Court of Appeals C. The Tenth Circuit Court of Appeals D. The Third Circuit Court of Appeals E. The Second Circuit Court of Appeals III. WHY THE GUN WON'T FIRE: REASONS FOR THE SPLIT A. Natural Meaning and Plain Language Evaluation B. Canons of Construction 1. Inclusion of One Equals the Exclusion of Others 2. Rule of Lenity for Criminal Cases C. Congressional Intent 1. Policy Goals and the Purpose of the Gun Control Act 2. Exclusion of Certain State and Federal Business Crimes 3. Legislative History 4. Pending Legislation IV. MAKING A RUN FOR THE BORDER: FOREIGN JUDICIAL PROCEEDINGS A. Procedural Fairness and Due Process Concerns 1. Foreign Convictions in U.S. Courts 2. Religious Tribunals B. Differing Definitions of Crime and Length of Punishment V. MADE IN THE U.S.A.: SIMILAR STATUTORY SCHEMES IN STATE LAW VI. CORRECTING THE PROBLEM A. Removing the Power of Judicial Review of Foreign Convictions B. Restatement Approach C. Additional Legislation to Clarify Congressional Intent VII. SETTING THE SIGHTS A BIT "SMALLER": APPLYING THE SOLUTION TO THE SMALL CASE VIII. CONCLUSION I. LOCKED AND LOADED: INTRODUCTION AND THESIS

A comparison of the judicial systems of the United States to other countries reveals that there are major discrepancies in the methods and procedures used to ensure the protection of constitutional rights and the adherence to the due process of law. (1) Rather than debate which, if any, of these systems best protects basic individual liberties, this Note uses U.S. constitutional rights as the baseline. Because of the incongruity between different nations' judicial systems, any efforts to enforce the disabilities accompanying foreign convictions in the United States should be carefully scrutinized to ensure that these convictions comport with our own system of jurisprudence. One federal statute in particular embodies the problems raised by foreign convictions: section 922(g)(1) of the Gun Control Act of 1968 (hereinafter, "Gun Control Act"). There is currently a circuit split regarding section 922(g)(1), which makes it a crime for any individual who has been convicted in any court of a crime punishable by imprisonment for more than one year to possess or receive a gun either through interstate commerce or in a manner that affects interstate commerce. (2)

This circuit split has arisen due to several conflicting sections within the Gun Control Act, one of which provides for sentence enhancement for career criminals. (3) Two of these sections apply to persons with prior convictions "in any court"; however, one section makes exceptions for certain state and federal offenses. (4) In addition, a previous section of the Gun Control Act limited its application to "a court of the United States or a State or any political subdivision thereof." (5) Understanding the interpretations of the previous provision of the Gun Control Act, which expanded the category of persons covered, is important because both sections 922 and 924 (often cited along with section 922) affect who may own a handgun (6) and what sentence would be imposed on an individual with a prior felony conviction found to be in possession of a handgun. (7) The split specifically arose when courts attempted to decide whether Congress intended "any court" to include foreign courts or whether Congress intended these provisions to apply solely to prior domestic convictions. (8) Courts interpreting this statute have debated whether this statute truly is ambiguous. (9) A case interpreting section 922(g)(1), Small v. United States, is currently on appeal to the U.S. Supreme Court. (10)

This Note analyzes the circuit split surrounding the Gun Control Act by reviewing related Court of Appeals, the decisions of the courts, the legislative history of the Gun Control Act and its subsequent amendments, and the problems raised by using foreign felony convictions as a basis for further criminal charges or as sentence enhancers. This Note sides with the decision of the Second Circuit in United States v. Gayle and argues that the application of section 922(g)(1) of the Gun Control Act to foreign felony convictions is ambiguous and problematic. After examining the legal and political issues that surround the split, the methods used by the courts in interpreting these provisions of the Gun Control Act, the problems inherent in foreign judicial systems and criminal statutes, and possible alternative solutions, this Note proposes a solution to the circuit court split. Specifically, this Note proposes that the U.S. Supreme Court construe section 922(g)(1) of the Gun Control Act narrowly, and apply it only to prior domestic felony convictions when it hears United States v. Small.

2. THE MOTTLED LANDSCAPE: THE DECISIONS OF THE U.S. COURTS OF APPEALS

   The split among the circuits regarding the interpretation of section 922(g)(1) of the Gun Control Act emerged recently. Most of the cases regarding this provision of the Gun Control Act presented issues of first impression. The U.S. Supreme Court only recently granted certiorari to review the U.S. Court of Appeals for the Third Circuit's decision in United States v. Small. (11) This presents a unique opportunity for the U.S. Supreme Court to clarify the law as it currently stands and for Congress to review the Court's interpretation to avoid establishing bad precedent and the potential miscarriage of justice. The issue pits the important constitutional right of an individual to bear arms against the importance of public safety, a particularly compelling interest in the present context of heightened security and the threat of terrorism.

   1. The Sixth Circuit Court of Appeals

      The U.S. Court of Appeals for the Sixth Circuit first addressed the application of section 922(g)(1) of the Gun Control Act to foreign felony convictions in the 1986 decision United States v. Winson. The defendant in Winson, charged with violating section 922(g)(1), had prior convictions in Argentina and Switzerland for the respective crimes of possessing counterfeit U.S. currency and committing fraud. (12) In order to determine whether the defendant fell into the scope of persons covered by [section] 922(g)(1), the Sixth Circuit examined both the legislative history of the subsequently repealed section 922 of the Gun Control Act as well as case law regarding a parallel provision, 18 U.S.C. App. [section] 1202, to ascertain whether the statute should apply because of the defendant's foreign felony convictions. (13)

      Before the appeal, the U.S. District Court reasoned in dicta that allowing foreign convictions to be used under section 922(h) of the Gun Control Act (the provision prohibiting persons falling under section 922(g)(1)'s scope from participating in gun trafficking through interstate commerce), "would require judicial recognition of military tribunal adjudications in Nicaragua, as well as condemnations of political prisoners in Poland. Congress could not have intended such an inequitable application of the statute." (14)

      On appeal, however, the Sixth Circuit found that a parallel provision, 18 U.S.C. App. [section] 1202, had a narrower scope than the corresponding language of section 922(g), therefore, section 1202 rightfully included only domestic convictions. (15) Referring to prior Supreme Court decisions, (16) the Sixth Circuit found that section 1202 was not meant to replace or limit section 922, but rather that each statute was meant to stand independent from the other. (17) Consequently, the Sixth Circuit held that section 922 should apply to foreign convictions because the court did not perceive "any congressional intent to exclude from the Act's coverage a class of felon whose unlawful conduct occurred outside of this country," (18)despite section 1202's express exclusion of foreign convictions. (19) While the decision in Winson is arguably no longer valid, because section 1202 was repealed shortly after the Sixth Circuit's decision, (20) the court's analysis of the language and congressional intent behind section 922 is helpful in comparing its reasoning with the decisions of other circuits.

   2. The Fourth Circuit Court of Appeals

      In United States v. Atkins, the defendant was charged with violating section 922(g)(1) of the Gun Control Act because of a prior conviction in England for unlawful possession of a firearm with intent to endanger life. (21) Responding to the defendant's claim that Congress did not intend foreign felonies to be included...