Small v. United States
Small was charged with illegal possession of a firearm in violation of 18 U.S.C. § 922(g)(i), a federal statute that prohibits a person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” from possessing a firearm. Small filed a motion to dismiss the indictment, claiming that because his prior conviction was in a Japanese court the conviction could not be a predicate felony as required by the firearm statute. The district court denied the motion and Small conditionally pled guilty pending the outcome of his appeal. The Third Circuit Court of Appeals affirmed. Initially, the court rejected the government’s assertion that any prior conviction in a foreign court would qualify as a predicate offense, holding that the conviction must meet with standards of “fundamental fairness” to qualify. Because the district court had reviewed the transcripts and records of the Japanese court and found that the proceedings were fundamentally fair, the Third Circuit affirmed the conviction.
The circuits are inconsistent on this point of law. The Third Circuit’s ruling was consistent with rulings of the Fourth and Sixth Circuits, but the Second and Tenth Circuit have held that previous convictions in foreign courts cannot be predicate felonies under this statute.
Question Presented:
The statute in question, § 922(g)(1) of Title 18, United States Code, makes it unlawful: “(g) . . . 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.
In the instant matter, Petitioner's only conviction occurred in Okinawa, Japan, and it was this Japanese conviction that served as the predicate felony in this § 922(g)(1) prosecution. The Petitioner filed a motion to dismiss the indictment arguing that foreign felonies were not intended to count as the term "in any court" means any court in the United States. The motion was denied. While the Third Circuit's affirmance of the lower court is consistent with a 1989 decision of the Fourth Circuit and a 1986 decision of the Sixth Circuit, the Tenth Circuit in 2000 and the Second Circuit, on August 27, 2003, held that foreign convictions do not count. Consequently, a clear conflict exists among the five Circuit Courts which have addressed the issue.
The question presented, therefore, is whether the term "convicted in any court" contained in 18 U.S.C. § 922(g)(i) includes convictions entered in foreign courts.
