                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2003

USA v. Small
Precedential or Non-Precedential: Precedential

Docket No. 02-2785




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. Small" (2003). 2003 Decisions. Paper 402.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/402


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                 PRECEDENTIAL

                                            Filed June 23, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 02-2785


                UNITED STATES OF AMERICA
                                 v.
                  GARY SHERWOOD SMALL,
                                          Appellant.

     On Appeal from the United States District Court
        for the Western District of Pennsylvania
                 (D.C. No. 00-cr-00160)
           District Judge: Robert J. Cindrich

                   Argued: March 11, 2003
        BEFORE: RENDELL, AMBRO and MAGILL,*
                   Circuit Judges

                (Opinion Filed: June 23, 2003)

                         Paul D. Boas, Esq. (Argued)
                         5th Floor, Law & Finance Building
                         429 Fourth Avenue
                         Pittsburgh, PA 15219
                         Counsel for Appellant




* Honorable Frank Magill, Senior United States Circuit Judge for the
Eighth Circuit Court of Appeals, sitting by designation.
                                 2


                         Bonnie R. Schlueter, Esq. (Argued)
                         Mary Beth Buchanan, Esq.
                         Brendan T. Conway, Esq.
                          United States Attorney
                         633 U.S. Post Office and Courthouse
                         Pittsburgh, PA 15219
                         Counsel for Appellee


                  OPINION OF THE COURT

MAGILL, Senior Circuit Judge.
   On March 14, 2002, defendant-appellant Gary Sherwood
Small entered a conditional guilty plea to possessing a
firearm in violation of 18 U.S.C. § 922(g)(1) (2000). The
district court sentenced Small to eight months’
imprisonment followed by three years’ supervised release,
but allowed Small to remain on bail pending this appeal
from the denial of Small’s motion to dismiss. For the
following reasons, we affirm.

                                 I.
  On April 14, 1994, the Naha District Court, in Naha,
Japan, convicted Small for 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.1 On August 30, 2000, a federal grand
jury in the Western District of Pennsylvania returned an
indictment against Small, charging him with, inter alia,
possessing a firearm in violation of 18 U.S.C. § 922(g)(1).
Small filed a motion to dismiss the indictment, which the
district court denied. Subsequently, Small conditionally
pled guilty to the § 922(g)(1) violation, pending the outcome
of this appeal.

1. The government maintains that Small was sentenced to five years’
imprisonment and paroled on November 22, 1996. His parole term ended
on May 26, 1998.
                                   3


                                   II.
   Section 922(g)(1) generally provides that “[i]t shall be
unlawful for any person who has been convicted in any
court of, a crime punishable by imprisonment for a term
exceeding one year” to ship or transport or possess or
receive a firearm or ammunition in interstate or foreign
commerce or affecting interstate commerce. 18 U.S.C.
§ 922(g)(1). Small was convicted of crimes punishable by
imprisonment for a term exceeding one year in Japan.
Subsequently, he possessed a firearm in the United States.
The dispositive question on appeal is whether the district
court correctly recognized the judgment of the Japanese
court for the purpose of Small’s § 922(g)(1) conviction.2
  This is an issue of first impression in this court. Small
makes two main arguments with regard to this issue: (1)
the district court incorrectly held that the Japanese
conviction was fundamentally fair by failing to look at the
totality of the circumstances, and (2) the district court
should have held an evidentiary hearing to determine
whether the Japanese conviction was fundamentally fair.
We disagree.

                                   A.
  First, our review of questions of law is plenary. United
States v. Singletary, 268 F.3d 196, 198 (3d Cir. 2001). The
district court correctly held that, prior to using the foreign
conviction as a § 922 predicate offense, the court must
satisfy itself that the foreign conviction comports with our

2. The parties spent a great deal of their briefs arguing about the
definition of § 922’s “any court.” We view this, however, as a tempest in
a teapot, and for the reasons set forth in United States v. Atkins, 872
F.2d 94 (4th Cir. 1989) (recognizing an English conviction for a crime
punishable by imprisonment for a term exceeding one year as a proper
predicate for conviction under § 922), and United States v. Winson, 793
F.2d 754 (6th Cir. 1986) (recognizing Swiss and Argentine convictions for
crimes punishable for terms exceeding one year as proper predicates for
a conviction under § 922), foreign convictions, generally, can count as
predicate offenses for the purposes of § 922. But see United States v.
Concha, 233 F.3d 1249 (10th Cir. 2000) (holding that foreign convictions
may not be used as predicate offenses under § 922 and 18 U.S.C. § 924).
                               4


notions of fundamental fairness as required by the Due
Process Clause. See Duncan v. Louisiana, 391 U.S. 145,
148 (1968); Restatement (Third) of Foreign Relations Law of
the United States § 482 cmt. b (1987) (providing, in part,
that “[a] court asked to recognize or enforce the judgment
of a foreign court must satisfy itself of the essential fairness
of the judicial system under which the judgment was
rendered”). In other words, the district court correctly
rejected the government’s argument that any conviction, no
matter how unfair, offensive, or absurd, can be a predicate
offense for a § 922 conviction.
   The government contends that Lewis v. United States,
445 U.S. 55 (1980) (holding that a state court felony
conviction could be used as a predicate offense under 18
U.S.C. § 1202, even though it could be challenged in a
collateral attack because the defendant was without
counsel), and Custis v. United States, 511 U.S. 485 (1994)
(holding that prior convictions are not subject to collateral
attack at sentencing proceedings, except convictions
obtained in violation of the right to counsel), control the
issue. The distinctions between the case at bar and Lewis
and Custis are clear; they include (1) that Lewis involved 18
U.S.C. § 1202, not § 922; (2) that Custis involved an
attempted collateral attack on a prior conviction to avoid a
sentencing enhancement, not an evaluation of a prior
conviction as an element of a criminal offense; and (3) most
importantly, Lewis and Custis involved U.S. convictions
governed by the U.S. Constitution as the predicate offenses,
not foreign convictions, which raise specific due process
concerns.
  In order to ensure that the use of foreign convictions as
predicate offenses for § 922(g)(1) convictions comports with
our notions of fundamental fairness required by the U.S.
Constitution, some procedural safeguards are necessary.
We adopt the approach of the Restatement (Third) of
Foreign Relations Law of the United States § 482, which
provides two mandatory and six discretionary grounds for
non-recognition of foreign judgments:
    (1) A court in the United States may not recognize a
    judgment of the court of a foreign state if:
                              5


      (a) the judgment was rendered under a judicial
    system that does not provide impartial tribunals or
    procedures compatible with due process of law; or
      (b) the court that rendered the judgment did not
    have jurisdiction over the defendant in accordance with
    the law of the rendering state and with the rules set
    forth in § 421.
    (2) A court in the United States need not recognize a
    judgment of the court of a foreign state if:
      (a) the court that rendered the judgment did not
    have jurisdiction of the subject matter of the action;
      (b) the defendant did not receive notice of the
    proceedings in sufficient time to enable him to defend;
      (c)   the judgment was obtained by fraud;
      (d) the cause of action on which the judgment was
    based, or the judgment itself, is repugnant to the
    public policy of the United States or of the State where
    recognition is sought;
      (e) the judgment conflicts with another            final
    judgment that is entitled to recognition; or
      (f) the proceeding in the foreign court was contrary
    to an agreement between the parties to submit the
    controversy on which the judgment is based to another
    forum.
Restatement (Third) of Foreign Relations Law of the United
States § 482.
  In this case, the district court explicitly determined that
the Japanese conviction comported with our concepts of
fundamental fairness by examining the Japanese trial
record and transcript. The district court’s analysis satisfies
us that, applying the standards adopted above, there were
no grounds for non-recognition of the Japanese conviction
as the predicate offense to Small’s § 922(g)(1) conviction.

                             B.
  Second, we review a district court’s refusal to hold an
evidentiary hearing to determine whether a foreign
                               6


conviction meets one of the grounds for non-recognition for
abuse of discretion. See Restatement (Third) of Foreign
Relations Law of the United States § 482 cmt. b (stating
that “[t]he recognizing court may make [a] determination [of
fundamental fairness of the foreign judicial system] without
formal proof or argument, on the basis of general
knowledge and judicial notice. A court may make an
explicit finding that the judicial system meets the essential
requirements of fairness, but such a finding may be
inferred from a decision to recognize or enforce the foreign
judgment, or to deny recognition on some other specific
ground.”); see also, e.g., United States v. Davis, 174 F.3d
941, 947 (8th Cir. 1999); United States v. Grant, 114 F.3d
323, 326 (1st Cir. 1997). Here, the district court did not
abuse its discretion by refusing to hold an evidentiary
hearing.

                              III.
  Accordingly, we AFFIRM the judgment of the district
court.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
