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U.S. v. SMALL

January 16, 2002

UNITED STATES OF AMERICA,
V.
GARY SHERWOOD SMALL.



The opinion of the court was delivered by: Cindrich, District Judge.

MEMORANDUM ORDER

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).

I. Background

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.

II. Analysis

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.

In short, we agree with the findings of the Fourth and Sixth Circuit Courts of Appeals that the phrase "any court" in Section 922 is not ambiguous and includes foreign courts.*fn6 Accordingly, the rule of lenity is not applicable. See Atkins, 872 F.2d at 96 ("If statutory language is unambiguous, the principle of lenity is inapplicable." (citing United States v. Turkette, 452 U.S. 576, 587-88 n. 10, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981))). "Any" court means any court and there is nothing in the plain and unambiguous language of Section 922 indicating that Congress intended to exclude foreign convictions from such a broad term.

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 ...

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