The Journal of The DuPage County Bar Association

Back Issues > Vol. 19 (2006-07)

Northern’s Exposure
Small v. United States: Extraterritoriality and Penal Judgments Gone Wrong
By Justin E. Bauer

Imagine you are moving to Illinois. You have the choice of only two houses in which to live. Your first choice is a house located next door to a man who has been convicted in Illinois of three extremely heinous murders. Your second choice is a house located next door to a man who has been convicted in France of three extremely heinous murders. Which house would you choose? Would it really make a difference? After the U.S. Supreme Court’s decision in Small v. United States, you would be better off choosing the first house. 18 U.S.C. § 922(g)(1) prohibits those convicted of a crime punishable by imprisonment for a term exceeding one year from possessing a firearm. But, in Small, the Supreme Court held that foreign convictions do not count as predicate offenses under the statute. Thus, your Illinois neighbor could not possess a gun, but your French neighbor could. Does this distinction make sense, or did the Supreme Court get it wrong?

Section 922(g)(1) of Title 18 of the United States Code, known as the "felon-in-possession" statute, forbids those "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" from possessing, shipping or transporting in interstate or foreign commerce any firearm or ammunition.1  On April 26, 2005, the United States Supreme Court settled a disagreement between the Circuits regarding the scope of the phrase "any court."2  In its decision, the Supreme Court found that the phrase "any court" in § 922(g)(1) does not refer to a conviction rendered by a foreign (non U.S.) court.3  Thus, foreign convictions can not serve as predicate offenses under § 922(g)(1).

This article sets forth three propositions: (1) that the Supreme Court’s emphasis on the "extraterritorial" application of § 922(g)(1) was misplaced, and therefore the Court’s analysis was flawed; (2) that the concept of refusing to execute foreign penal judgments would not prohibit recognizing foreign convictions as predicate offenses; and (3) that the Supreme Court failed to take into consideration numerous public policy arguments that offer overwhelming support for the use of foreign convictions as predicate offenses.

Case Background

In 1992, Gary Small shipped a 19-gallon electric water heater from the United States to Okinawa, Japan.4  Small claimed that the water heater was a present for a friend in Okinawa.5  Japanese customs officials, thinking it odd that someone would ship a water heater as a present, searched the heater and uncovered "two rifles, eight semiautomatic pistols, and 410 rounds of ammunition."6  Small was tried before a three-judge court for violating Japan’s weapons-control and customs laws and was subsequently sentenced to a prison term of five years.7  In 1998, merely a week after completing his parole for the Japanese conviction, Small purchased a nine-millimeter pistol from a firearms dealer in Pennsylvania.8  At some point later on, Small’s residence was searched and the police discovered a .380 caliber Browning pistol and more than 300 rounds of ammunition.9  Small was subsequently prosecuted for being a felon-in-possession in violation of 18 U.S.C. § 922(g)(1).10 

The U.S. District Court for the Western District of Pennsylvania, in attempting to determine whether Small’s conviction in Japan should qualify as a predicate offense, followed the holding of the Sixth Circuit in Winson11  and held that foreign convictions could qualify as predicate offenses.12  The most notable aspect of the trial court’s decision was its insight into what types of foreign convictions could qualify as predicate offenses and what procedures would have to be in place for a foreign conviction to comport with the "concepts of fundamental fairness" required by the Due Process Clause of the U.S. Constitution.13  The court did an evaluation of the trial against Small in Japan and concluded that it sufficiently comported with our concepts of fundamental fairness.14 

In upholding the conviction, the Third Circuit expressly adopted the approach of § 482 of the Restatement (Third) of Foreign Relations Law of the United States, which sets forth two mandatory and six discretionary grounds for non-recognition of foreign judgments.15  This procedural safeguard is one way in which a court can adequately ensure that only those convictions which comport with our notions of fundamental fairness are recognized as predicate offenses. Thus, as will be discussed below, mandatory application of this safeguard would help ease some of the Supreme Court’s concerns regarding improper convictions. The Third Circuit was satisfied with the District Court’s application of these principles and upheld its recognition of the conviction.16 

On appeal, the Supreme Court held that the phrase "any court" does not refer to foreign courts.17  The Court first found that the term "any" was sufficiently ambiguous enough to require examination into the legislative history of the statute to determine its true meaning.18  The Court also noted that Congress "generally legislates with domestic concerns in mind" and "ordinarily intends its statutes to have domestic, not extraterritorial, application."19  Although realizing that a presumption against extraterritorial application did not apply directly to this case,20  the Court applied such a presumption anyway and assumed "a congressional intent that the phrase ‘convicted in any court’ applies domestically, not extraterritorially."21  The majority then proceeded to list a number of "anomalies" in which the use of foreign convictions as predicate offenses would be inconsistent with the use of domestic convictions.22  One such example is that a conviction for an antitrust violation overseas would qualify as a predicate offense, whereas the same conviction domestically would be excepted by 18 U.S.C. § 921(a)(20).23 

The Court also found that even though Congress rejected a Senate bill containing language that would have restricted predicate offenses to domestic violations, the legislature enacted the current bill for reasons of simplicity and to avoid potential difficulties arising from the definition of the term "felony."24  Finally, the Court found that, even though foreign convictions can serve as indicators of the dangerousness of the individual, this argument is weakened because there have only been "ten to a dozen" instances in which a foreign conviction was used as a predicate offense.25  The majority, in a 5-3 vote,26  reversed the decision of the Third Circuit and remanded the case for further proceedings.27 

In his dissenting opinion, Justice Thomas, joined by Justices Scalia and Kennedy, disagreed that the term "any court" was ambiguous.28  The dissent argued that the term "any court" had to be read in the context of the statute.29  Upon examination of that context, the dissent found nothing to suggest that Congress intended the term to mean anything other than what could be termed its "plain meaning."30  The dissent proceeded to criticize the majority for imposing a clear statement rule on Congress: "Absent a clear statement, a statute refers to nothing outside the United States."31  Thus, if Congress wanted the courts to interpret a law to refer to foreign facts, Congress would have to give the courts explicit instructions to do so.32 

Justice Thomas also went to great lengths to point out that the extraterritorial principle restricts federal statutes from "reaching conduct beyond U.S. borders," and that the Court’s previous applications of the extraterritorial canon "lend no support to the Court’s unprecedented rule restricting a federal statute from reaching conduct within U.S. borders."33 

The dissent also criticized the majority’s selection of situations that would bring about anomalies under § 922(g)(1). After accusing the majority of "cherry-pick[ing]" what the dissent termed a "parade of horribles"34  that do not correlate with dangerousness or are not consistent with American institutions of fairness, the dissent argued that the majority neglected countless other foreign convictions that do serve as "excellent proxies for dangerousness and culpability"35  and would serve the true purpose of the statute, which is to keep guns out of the hands of dangerous criminals.36 

Finally, in examining the legislative history of the statute, the dissent placed much emphasis on the fact that Congress considered a bill that would have limited the convictions only to Federal or State crimes, yet refused to enact that language.37  Because Congress refused to pass the limiting provision, the dissent argued, Congress sufficiently set forth its intention that all convictions were to be covered.38 

The "Extraterritoriality" Principle

The crux of the majority’s holding in Small hinges on the idea that "Congress generally legislates with domestic concerns in mind, and intends its statutes to have domestic, not extraterritorial effect."39  However, that concept, as the dissent points out, was not really applicable in Small.40  The fact situation in Small did not involve the application of United States law outside the U.S. borders, but rather involved the application of United States law to conduct that occurred within U.S. borders.41 

The Court has, in all practical effect, used the canon against extraterritorial application of federal statutes to impose a clear statement rule on Congress.42  Although the majority would argue otherwise, it appears now that if Congress wants a statute to have extraterritorial effect, it may have to explicitly state that intention in the statute.43  The acceptance of this type of "clear statement" rule has been emphasized in other cases. In Foley Bros. v. Filardo, the Supreme Court stated that "legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States."44  The Court did, however, note that the assumption might not be appropriate if indicia or circumstances existed that sufficiently put forth the notion that Congress entertained a different intention.45 

One such circumstance arose in United States v. Bowman.46  In attempting to determine whether a criminal statute allowed for extraterritorial application, the Bowman Court noted that if punishment of crimes is to extend outside of the United State’s strict territorial jurisdiction it would be "natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard."47  However, the Court then went on to state that the rule of interpretation should not be applied to "criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction."48  The felon-in-possession statute at issue in Small could very likely fit within that exception.

The overarching motivation behind the felon-in-possession statute is to "keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society." 49  But is it really plausible to infer that a person convicted of murder overseas is less of a threat than a person convicted of murder within the United States? The majority, through its "cherry-pick[ing]"50  of crimes, set forth a number of instances in which non-dangerous crimes committed in foreign countries would trigger

the enforcement of § 922(g)(1).51  For example, a person convicted of an antitrust violation abroad would not be able to possess a weapon, whereas a person convicted domestically of an antitrust violation would be able to possess a weapon.52  Justice Thomas, in his dissenting opinion, noted that the majority’s analysis ignoreds countless other convictions punishable by more than a year that would directly correlate with dangerousness.53  Because Congress was trying to prevent dangerous individuals from possessing firearms, it is likely that Congress would have considered whether foreign convictions in general, not specific types of violations, were accurate at gauging dangerousness.54  Given that foreign convictions as a whole are just as accurate for determining dangerousness as domestic convictions, this is a criminal statute that does not depend on the locality of the crime for its effectiveness. Thus, the "extraterritorial application" of this law would be proper even without a clear statement by Congress to that effect. 

Foreign Penal Judgments

Implicit in the Small Court’s analysis of extraterritoriality and the reach of the term "any court" is the Court’s desire to pay respect to the United States tradition of not executing foreign penal judgments.55  As far back as 1825, the Supreme Court recognized that "The Courts of no country execute the penal laws of another."56  In 1892, the Court confirmed that tradition and clarified that the principle applied to all judgments that are "penal in the international sense."57 

Why have the courts long refused to enforce claims that are based upon the penal laws of another state?58  In his eloquent manner, Judge Learned Hand set out the reasoning as follows:

To pass upon the provisions for the public order of another state is, or at any rate should be, beyond the powers of a court; it involves the relations between the states themselves, with which courts are incompetent to deal, and which are intrusted to other authorities. It may commit the domestic state to a position which would seriously embarrass its neighbor. No court ought to undertake an inquiry which it cannot prosecute without determining whether those laws are consonant with its own notions of what is proper.59 

Consistent with the logic set forth by Judge Hand, the Court in Small appears to have been concerned that, by recognizing foreign convictions, it might end up enforcing a criminal penalty and placing a criminal stigma on a person in the United States without knowing whether the predicate conviction would be "proper" in our courts.60  In cases which are analogous to Small, however, the Court’s concern was misplaced.

First, and foremost, it is not the foreign state’s criminal law which is being enforced. Rather, what is being enforced is the domestic law of the United States in a domestic setting.61  Thus, the notion of "embarrassing" the foreign state has no relevance in the situation the Small Court faced because the foreign court has already rendered its decree and the criminal has received his punishment consonant with the foreign state’s law.62 

Second, even if we assume that the Court would be required to interpret and compare a complex and confusing foreign judgment to determine whether it is "proper" with regard to our domestic concepts of fundamental fairness and due process, this task is by no means impossible to accomplish. In fact, states compare and contrast foreign judgments all the time in an intra-national setting.63  Additionally, it is worth noting that the District Court in Small conducted a very thorough analysis of the Japanese conviction before allowing the conviction as a predicate offense.

As an example of how a state court compares and contrasts a foreign state’s law in an intra-national setting, consider the case of Rhode Island v. Menard. In Menard, 64  the Rhode Island Supreme Court had to determine a question substantially similar to the question that the Small Court had to determine. The Menard court had to determine whether a class 4 felony arson conviction in Arizona, which was deemed to be "not of a dangerous" nature in Arizona,65  qualified as a predicate "crime of violence" to bring the defendant within Rhode Island’s firearm possession law.66  According to the court, "it would be absurd to intimate that the Legislature intended to accord another state’s lawmakers the ability to determine the propriety of firearm prosecutions in Rhode Island."67  In coming to its conclusion that the Arizona conviction qualified as a "crime of violence," the court simply did a comparison of its own arson statute with that of Arizona’s and found the two to be substantially similar.68  There appears to be no good reason why federal courts applying § 922(g)(1) could not follow the same case-by-case analysis, even when that analysis relates to a foreign crime.

Even though enforcement of foreign convictions which do not comport with American concepts of fundamental fairness is a very legitimate concern, an all-out ban on foreign convictions is not the best way to overcome that concern. Rather, the courts should undertake a case-by-case analysis to determine whether the conviction meets the statutory definition and comports with American notions of due process. Although this procedure may be significantly complicated and time consuming due to major differences between our legal system and the legal systems of foreign countries, ease of judicial determination should not outweigh the need to protect the citizens of the United States from dangerous criminals.

If Congress or the Supreme Court is truly concerned with "embarrassing" other nations or enforcing convictions that do not comport with American notions of what is proper, the governing body could simply put into effect some mandatory procedural safeguards to ensure that individuals are not punished pursuant to convictions that do not comport with American notions of fundamental fairness.69  One safeguard would be to require all trial courts to apply the approach recommended in § 482 of the Restatement (Third) of Foreign Relations Law to determine if there is any ground for non-recognition of the foreign judgment. Under that section, a court in the United States shall not recognize a judgment if:

(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 70 

If every court were to follow this procedure, then no foreign conviction would be recognized that was not compatible with due process of law.71  Given the available procedural safeguards, the Small Court’s concerns about fairness and due process could be mitigated substantially.


There is also at least one significant policy rationale that the Small Court didn’t discuss which should tip the balance in support of recognizing foreign convictions. If the purpose of the felon-in-possession statute is to prohibit those who have been adjudged of having dangerous and violent propensities from carrying weapons,72  there appears to be no good reason for not giving effect to foreign convictions that have been determined to be compatible with our notions of justice. In fact, other nations, including Japan, would probably prefer that we recognize their convictions for purposes of our felon-in-possession statutes. If we refuse to recognize the convictions, and dangerous people realize that they will not be punished in the United States for their dangerous behavior, the United States becomes a "safe haven" for these criminals. As long as they do not, for example, participate in a gun trafficking ring in the United States, then even after a conviction they would be free to live here without detriment. This may encourage current gun traffickers in the United States to move their operations abroad, for a conviction there would not be punished long-term in the United States. No state would wish to be the favored locale of gun traffickers.


The Supreme Court’s interpretation of § 922(g)(1) is likely to have a negative impact on our society. Because of the Court’s ruling, violent offenders from overseas who have gained access to our country may be allowed to possess firearms even though United States’ citizens convicted domestically of substantially similar crimes will not have that right.73  As the law currently stands, people convicted of "murder, rape, assault, kidnapping [and] terrorism" will be allowed to possess firearms in the United States merely because their convictions were handed down overseas.74 

Although there may still be certain anomalies if foreign convictions are allowed as predicate offenses, those anomalies are much more consistent with the true meaning behind § 922(g)(1). Recognizing foreign convictions may stop an overseas antitrust offender from possessing a weapon in the United States, but it will stop a serial killer from possessing one as well.75 

At least one member of Congress has realized that something needs to be done to correct the absurd results that are likely to occur as a result of the ruling in Small. Two days after the opinion in Small was handed down, Senator Mike DeWine introduced Senate Bill 954 to amend § 922(g)(1).76  In general, Senate Bill 954 would allow a person convicted outside of the United States of a crime punishable by a term of imprisonment exceeding one year to be convicted under § 922(g)(1) if that person’s predicate offense was one which would be punishable in the United States by a term of imprisonment exceeding one year.77  Thus, this amendment would require the trial court to compare the crime committed abroad to a crime committed domestically, much like the Rhode Island Supreme Court did in Rhode Island v. Menard.78  In this author’s opinion, Senate Bill 954 is a substantial step in the right direction.

In the wrong hands, firearms pose an enormous threat to our society. 66% of the 16,137 murders in the United States in 2004 were committed with firearms.79  Because of the Supreme Court’s holding, however, certain persons who have been tried and convicted of dangerous crimes now have free reign to possess firearms with which to commit more dangerous acts. The Supreme Court’s holding not only brings about absurd results,80  it runs contrary to the rationale behind the felon-in-possession statute.81 

Perhaps there will be 16,138 murders in 2006. What if that one more victim is shot to death by a person convicted overseas of a "crime punishable by imprisonment for a term exceeding one year?"82  Would that victim’s family be consoled by the fact that "anomalies" were averted by disallowing foreign convictions? I imagine not.

 1 18 U.S.C. § 922(g)(1) (2000) (emphasis added).

 2 Compare United States v. Winson, 793 F.2d 754 (6th Cir. 1986) and United States v. Atkins, 872 F.2d 94 (4th Cir. 1989) (holding that the phrase "any court" includes convictions in foreign courts) with United States v. Concha, 233 F.3d 1249 (10th Cir. 2000) and United States v. Gayle, 342 F.3d 89 (2d Cir. 2003) (holding that "any court" does not include foreign courts).

 3 Small v. United States, 125 S. Ct. 1752 (2005).

 4 Id. at 1758.

 5 Id.

 6 Id. at 1759.

 7 Id.

 8 Id.

 9 Small, 125 S. Ct. at 1759.

 10 Id.

 11 See United States v. Winson, 793 F.2d 754 (6th Cir. 1986). The Winson Court, in a nutshell, found that the language of § 922(g)(1) was not ambiguous, see id. at 757, and that the statute was not inequitable on its face or as applied because the purpose of the statute was to "prevent possession of firearms by individuals with serious criminal records" and that those convicted overseas are just as dangerous as those convicted here. Id. at 758.

 12 United States v. Small, 183 F. Supp. 2d 755, 759 (W.D. Penn. 2002), rev’d, 125 S. Ct. 1752 (2005).

 13 Id. at 765.

 14 See id. at 766-70.

 15 See Small v. United States, 333 F.3d 425, 428 (3d Cir. 2003); see also infra part III(B).

 16 Id.

 17 See Small v. United States, 125 S. Ct. 1752 (2005).

18 Id. at 1754-55.

 19 Id. at 1755.

 20 Id. The court apparently realized that this case involved an application of U.S. law within U.S. borders, but failed to ultimately give much respect to that distinction.

 21 Id. at 1756.

 22 Small, 125 S. Ct. at 1756-57.

 23 Id.

 24 Id. at 1757.

 25 Id. at 1758.

 26 The late Chief Justice Rehnquist, although presiding at the time, took no part in the opinion.

 27 Id.

 28 Small, 125 S. Ct. at 1765 (Thomas, J., dissenting).

 29 Id. at 1760. (Thomas, J., dissenting).

 30 See id. (Thomas, J., dissenting) (stating that other parts of the firearms-control law were qualified by jurisdiction (i.e., "Federal or State law"), standing for the proposition that Congress knew how to restrict the statute when it wanted to).

 31 Id. at 1761 (Thomas, J., dissenting).

 32 Id. (Thomas, J., dissenting).

 33 Id. at 1761. (Thomas, J., dissenting) (emphasis in original). In this case, Small was charged with possessing a gun in the United States, not Japan.

 34 Small, 125 S. Ct. at 1762-63 (Thomas, J., dissenting).

 35 Id. at 1763. (Thomas, J., dissenting).

 36 See id. at 1766. (Thomas, J., dissenting).

 37 Id. at 1765. (Thomas, J., dissenting).

 38 Id. (Thomas, J., dissenting).

 39 See Small v. United States, 125 S. Ct 1752, 1755 (2005).

 40 See id. at 1761 (Thomas, J., dissenting).

 41 Id. (Thomas, J., dissenting). It is worth reiterating that the conduct that gave rise to the Japanese conviction began within the United States.

 42 See id. at 1761. (Thomas, J., dissenting).

 43 See id. (Thomas, J., dissenting).

 44 Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949). The question the Court was trying to decide was whether the Federal Eight Hour Law applied to a contract between the United States and a private contractor for construction work overseas. Id. at 282.

45 Id. at 285.

46 United States v. Bowman, 260 U.S. 94, 98 (1922).

47 Id.

48 Id.

49 Lewis v. United States, 445 U.S. 55, 63 (1980).

50 Small v. United States, 125 S. Ct. at 1763 (Thomas, J., dissenting).

51 See id. at 1756-57.

52 Id. at 1756. There is an exception in 18 U.S.C. § 921(a)(20)(A) which states that "Federal or State" antitrust offenses are excepted from the rule. There is no mention of foreign offenses. Therefore, they would not be covered by this exception.

53 Id. at 1763 (Thomas, J., dissenting).

54 Small, 125 S. Ct. at 1763 (Thomas, J., dissenting).

55 See Small v. United States, 125 S. Ct. 1752 (2005).

56 The Antelope, 23 U.S. (10 Wheat) 66, 123 (1825).

57 Huntington v. Attrill, 146 U.S. 657, 673-75 (1892).

58 See Robert A. Leflar, Extrastate Enforcement of Penal and Governmental Claims, 46 Harv. L. Rev. 193, 194 (1932). This applies in the domestic as well as the international sense.

59 Moore v. Mitchell, 30 F.2d 600, 604 (2d Cir. 1929) (Hand, J., concurring).

60 See Small, 125 S. Ct. at 1756, 1758 (noting the difficulty of "weed[ing] out inappropriate foreign convictions" and "the potential unfairness of preventing those with inapt foreign convictions from possessing guns.")

61 Id. at 1761 (Thomas, J., dissenting).

62 Id. at 1754.

63 See Rhode Island v. Menard, 888 A.2d 57 (R.I. 2005).

64 Id.

65 Id. at 59.

66 Id. at 58-59.

67 Id. at 61.

68 Id. at 64.

69 See United States v. Small, 333 F. 3d at 428.

70 Restatement (Third) of Foreign Relations Law § 482 (1987).

71 Another procedural safeguard that is worthy of notation is 18 U.S.C. § 925(c). That section allows a person who is prohibited from possessing a firearm because of § 922(g)(1) to petition the Attorney General for relief from the disqualification based on the notion that he/she will not likely act in a manner that is dangerous to the public.

72 Small v. United States, 125 S. Ct. at 1758.

73 See Lee G. Lester, Note, Small v. United States: Defining "Any" as a Subset of "Any", 40 U. Rich. L. Rev. 631, 649 (2006).

74 Small v. United States, 125 S. Ct. at 1764 (Thomas, J., dissenting).

75 See id. (Thomas, J., dissenting).

76 See 151 Cong. Rec. S4546 (daily ed. Apr. 28, 2005); S. 954, 109th Cong. (2005). Senator DeWine is a Republication from Ohio.

77 See S. 954, 109th Cong. (2005); See also Lester, supra note 79, at 651.

78 Rhode Island v. Menard, 888 A.2d 57 (R.I. 2005).

79 U.S. Dept. of Justice – Office of Justice Programs, Bureau of Justice Statistics: Firearm and Crime Statistics, (last visited April 18, 2006).

80 For example, murderers convicted overseas will be allowed to possess a firearm whereas domestic murderers will not. See Small v. United States, 125 S. Ct. at 1764 (Thomas, J., dissenting).

81 See Lewis v. United States, 445 U.S. 55, 63 (1980) (rationale is to keep guns away from dangerous people).

82 18 U.S.C. § 922(g)(1) (2000).

Justin E. Bauer is a Second-year Law Student, Northern Illinois University College of Law

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