The opinion of the court was delivered by: Cindrich, District Judge.
Pending before the court is defendant's Motion To Dismiss
Indictment (Doc. No. 14) and the government's Motion For A
Preliminary Determination As To The Scope Of The Proceedings On
The Defendant's Motion To Dismiss And For The Denial Of The
Motion Without An Evidentiary Hearing (Doc. No. 38).
On August 30, 2000, a federal grand jury in the Western
District of Pennsylvania returned a four-count indictment
against defendant Gary Sherwood Small ("Small") charging him at
Count One with Making a False Statement to a Federally Licensed
Firearms Dealer in violation of
18 U.S.C. § 922(a)(6);*fn1 at Counts Two and Three with Possession of a
Firearm by a convicted Felon in violation 18 U.S.C.
Section 922(g)(1);*fn2 and at Count Four with Possession of
Ammunition by a Convicted Felon in violation of
18 U.S.C. § 922(g)(1). The indictment indicates that Small had been
previously convicted on April 12, 1994 in Naha, Japan District
Court for certain violations of the Japanese Act Controlling the
Possession of Firearms and Swords, the Gunpowder Control Act,
and the Customs Act, all of which were offenses punishable by a
term of imprisonment exceeding one year.*fn3 The government
contends that Small violated Section 922(a)(6) in June 1998 when
he purchased a firearm from a licensed firearms dealer and
falsely represented to the dealer that he had never been
convicted of an offense punishable by a term of imprisonment
exceeding one year. The government further contends that Small
violated Section 922(g)(1) in June 1998 and April 1999 when he
knowingly possessed certain firearms and ammunition subsequent
to his Japanese conviction.
Small filed the instant motion to dismiss arguing that the
Japanese conviction should not be considered as a qualifying
prior conviction under Section 922 because foreign convictions
are not covered by the statute. More specifically, Small
contends that Section 922's language "any court" refers to
courts in the United States only. Small argues in the
alternative that even if foreign convictions are deemed to be
covered by Section 922, the Japanese conviction should not
qualify as a predicate offense because it failed to meet certain
fundamental protections guaranteed by the United States
Constitution. He maintains that an evidentiary hearing should be
scheduled to give him an opportunity to present testimony and
other evidence on the fairness of the Japanese conviction.
The government filed its motion for a preliminary
determination as to the scope of the proceedings arguing that
the indictment is valid regardless of the fairness of the
underlying Japanese conviction because Section 922 focuses not
on the reliability of a prior conviction, but on the fact of a
prior conviction. The government argues in the alternative that
the record of the Japanese criminal trial demonstrates the
fairness of Small's criminal trial and obviates the need for an
evidentiary hearing.
A. Foreign Convictions Under Section 922
We address first Small's argument that no foreign conviction
should qualify as a predicate offense under Section 922. Only
three Courts of Appeals, not including our own, have addressed
the issue of whether Section 922's language "any court" includes
foreign convictions. The Courts of Appeals for both the Fourth
and Sixth Circuits have held that under a plain reading of the
term "any court," foreign convictions are covered by the
statute. See United States v. Atkins, 872 F.2d 94 (4th Cir.
1989) (English conviction was proper predicate conviction under
Section 922); United States v. Winson, 793 F.2d 754
(6th Cir. 1986) (Argentine and Swiss convictions were proper
predicate convictions under Section 922).
In Winson, the Sixth Circuit Court of Appeals reversed a
district court ruling that Section 922's language was ambiguous
because the language in 18 U.S.C. § 1202,*fn4 a statute
similar to Section 922, expressly applied only to convictions by
a court of the United States or of a State or any political
subdivision thereof. 793 F.2d at 756. In light of the perceived
ambiguity, the district court applied the rule of lenity*fn5
and found that the phrase "any court" did not include foreign
courts.
The Court of Appeals reversed, explaining that "[i]n essence,
the trial judge urges that we view the patently unambiguous
language in section 922 as rendered latently so by the
co-existence of the expressly different and more limiting
language in section 1202." Id. at 757. The Court noted that
the Supreme Court had "found a congressional intent to give each
statute an independent construction and application, especially
where, as here, the express language of the two [statutes]
indicates different meanings." Id. The Court further noted
that "[t]he power of Congress to legislate in this area is
unquestioned. Therefore, `resolution of the pros and cons of
whether a statute should sweep broadly or narrowly is for
Congress.'" Id. (citing United States v. Rodgers,
466 U.S. 475, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984)). Indeed, the use of
more limiting language in Section 1202 versus Section 922's
broader language evinces Congress's attention to each statute's
reach. The Court held, therefore, that the language "any court"
in Section 922 was unambiguous and included foreign courts.
Id.
The Court also found that Section 922 was neither inequitable
on its face nor in its application to the case before it, if
foreign convictions were treated as predicate offenses under the
statute. Id. The Court explained:
Since the object of the statute is to prevent the
possession of firearms by individuals with serious
criminal records, we can 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 this country.
Id. at 758. As to the particular foreign convictions at issue
before it, the Court recognized that the defendant had not
identified how such convictions were the result of violations of
his civil rights or contrary to any cherished principal of
American constitutional law. Id.
Contrary to the views of the Sixth and Fourth Circuits, the
Court of Appeals for the Tenth Circuit recently held in United
States v. Concha, 233 F.3d 1249 (10th Cir. 2000) that foreign
convictions were not covered by Section 922. In that case the
defendant, Concha, had been convicted of being a felon in
possession of a firearm in violation of Section 922(g)(1). The
government sought to enhance Concha's sentence under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), which
provides that a person who violates Section 922(g) shall have
his sentence enhanced if he "has three previous convictions by
any court referred to in section 922(g)(1). . . ."
18 U.S.C. § 924(e)(1). The government introduced four previous
violent felony convictions, three of which took place in
England.
Applying reasoning similar to that which was rejected by the
Sixth Circuit Court of Appeals in Winson, the Tenth Circuit
concluded that the patently unambiguous language in Section 922
was rendered latently ambiguous by the co-existence of the
definition of the term "crime punishable by imprisonment for a
term exceeding one year" appearing at 18 U.S.C. § 921(20).
Section 921 is the general statutory definitions section that
applies to Section 922. Section 921(20) provides in pertinent
part:
The term "crime punishable by imprisonment for a term
exceeding one year" does not include —
(A) any Federal or State offenses pertaining to
antitrust violations, unfair trade practices,
restraints of trade, or other similar offenses
relating to the regulation of business practices,
or
(B) any State offense classified by the laws of
the State as a misdemeanor and punishable by a term
of imprisonment of two years or less.
18 U.S.C. § 921(20). The Court noted that the definition
at Section 921(20) excludes certain federal and state crimes
from Section 922(g)(1), but makes no comparable mention of
foreign crimes. Concha, 233 F.3d at 1254. The Court observed,
therefore, that "[i]f Section 922(g)(1) were meant to cover
foreign crimes, we would be left with the anomalous situation
that fewer domestic crimes would be covered than would be
foreign crimes." Id. Based on this peculiar result and certain
public policy reasons, the Court found that "contrary to the
Fourth and Sixth Circuits, we believe that the statute is
ambiguous." Id. at 1256. Faced with what it deemed an
ambiguity, the Court applied the rule of lenity and held that
foreign convictions could not be used as predicate offenses for
sentencing enhancement under Section 924(e). Id.
B. Qualifying Foreign Convictions
Having found that foreign convictions can qualify as predicate
offenses under Section 922, we next address the government's
argument concerning which foreign convictions qualify. Citing
Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128
L.Ed.2d 517 (1994), the government argues that all foreign
convictions punishable by a term of imprisonment exceeding one
year qualify regardless of the fairness of such convictions
because Section 922 focuses not on the reliability of a prior
conviction, but on the fact of a prior conviction.
In Custis, the defendant was convicted of violating Section
922(g)(1). Because he had three prior state felony convictions,
the district court enhanced his sentence pursuant to Section
924(e)(1). The defendant appealed, arguing that the enhancement
was not proper because two of the three prior convictions were
constitutionally invalid. More specifically, the defendant
maintained that he was denied effective assistance of counsel in
connection with those convictions; that his guilty plea was not
knowing and intelligent; and that he was not adequately advised
of his rights to opt for a "stipulated facts" trial. 511 U.S. at
496, 114 S.Ct. 1732.
The Supreme Court observed that Section 924(e)(1) "focuses on
the fact of the conviction and nothing suggests that the prior
final conviction may be subject to collateral attack for
potential constitutional errors before it may be counted." 511
U.S. at 490-91, 114 S.Ct. 1732 (emphasis in original). The Court
concluded, therefore, that a defendant in a federal sentencing
proceeding had no right to collaterally attack the validity of
previous state convictions used to enhance his sentence under
Section 924(e)(1). The Court recognized one exception, however,
convictions where there was a failure to appoint counsel at all.
The Court referred to its prior decision in Johnson v. Zerbst,
304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), wherein
the Court held:
Since the Sixth Amendment constitutionally entitles
one charged with crime to the assistance of counsel,
compliance with this constitutional mandate is an
essential jurisdictional prerequisite to a federal
court's authority to deprive an accused of his life
or liberty. When this right is properly waived, the
assistance of counsel is no longer a necessary
element of the court's jurisdiction to proceed to
conviction and sentence. If the accused, however, is
not represented by counsel and has not competently
and intelligently waived his constitutional right,
the Sixth Amendment stands as a jurisdictional bar to
a valid conviction and sentence depriving him of his
life or his liberty.
The Court concluded, therefore, that there was "a historical
basis in [its] jurisprudence of collateral attacks for treating
the right to have counsel appointed as unique, perhaps because
of [its] oft-stated view that `[t]he right to be heard would be,
in many cases, of little avail if it did not comprehend the
right to be heard by counsel.'" Custis, 511 U.S. at 494-95,
114 S.Ct. 1732 (quoting Powell v. Alabama, 287 U.S. 45, 68-69,
53 S.Ct. 55, 77 L.Ed. 158 (1932)).
The Court also found that the ease of administration and the
interest in promoting the finality of judgments provided
additional support for its holding. As to the ease of
administration, the Court commented:
[F]ailure to appoint counsel at all will generally
appear from the judgment roll itself, or from an
accompanying minute order. But determination of
claims of ineffective assistance of counsel, and
failure to assure that a guilty plea was voluntary,
would require sentencing courts to rummage through
frequently nonexistent or difficult to obtain
state-court ...