Petition for Writ of Certiorari — United States v. Ingram

() SUR ae Ue

031510 may 6 2004

No.

‘eee.

In the Supreme Court of the Gnited States

UNITED STATES OF AMERICA, PETITIONER

Vv.

ROHAN INGRAM

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

JOHN F. DE PUE

—————Atttorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the phrase “convicted in any court” in the

statute that prohibits felons from possessing firearms

or ammunition, 18 U.S.C. 922(g)(1), includes convictions

entered by the courts of foreign countries.

(I)

TABLE OF CONTENTS

Opinions below ......ssseerree

Jurisdiction Sp ielenionndchalembeninadeinguepenienmpyenveieutinotogppeabenin

Statutory and regulatory provisions involved .........++0+

Statement

Reasons for granting the petition ........ssssesseeessseneensees

ESS ERLE DAE CTA M AON OO

Appendix A ....s.ccc.coccccscerososssossorecscnesecesecssessersseossssssnsssssssavsosece

Appendix B

Appendix C ....c.secocsorccescosorsscervsencersosessesessceconsesaneseserenseroncsceooes

Appendix D .

Appendix E

TABLE OF AUTHORITIES

Cases:

Small v. United States, cert. granted, No. 03-750

(2004)

United States v. Concha, 233 F.3d 1249 (10th Cir.

2000)

United States v. Winson, 793 F.2d 754 (6th Cir.

1986)

Statutes and regulation

18 U.S.C. 371

18 U.S.C. 921

18 U.S.C. 921(a)(20) .

18 U.S.C. 922(a)(1)(A)

18 U.S.C. 922(g)

18 U.S.C. 922(g)(1)

18 U.S.C. 924(n) .... s

22 U.S.C. 2278

27 C.F.R. 478.11

(iI)

IV

Miscellaneous—Continued: Page

H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess.

CRD : wicsicicssasissscansccisnnsenbanadestenibscubavessnintitetinehiineadbintaciedawane 5

S. Rep. No. 1501, 90th Cong., 2d Sess. (1968) .......ssessseees 5

Jn the Supreme Court of the Anited States

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

ROHAN INGRAM

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States

of America, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Second Circuit in this case.

OPINIONS BELOW

The amended opinion of the court of appeals on

rehearing (App., infra, la-14a) is reported at 342 F.3d

89. The original opinion of the court of appeals (App.,

infra, 15a-27a) is unreported. The opinion of the dis-

trict court (App., infra, 30a-40a) is reported at 164 F.

Supp. 2d 310.

JURISDICTION

The court of appeals entered its original judgment on

August 27, 2003. The court issued an amended opinion

on rehearing on January 7;-2004. The petition for re-

hearing was denied on February 11, 2004 (App., infra,

(1)

2

4la-42a). The jurisdiction of this Court is invoked

inder 28 U.S.C, 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Section 922(g) of Title 18, United States Code,

provides, in relevant part, that:

It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding

one year;

* * * * *

to ship or transport in interstate or foreign com-

merce, or possess in or affecting commerce, any

firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported

in interstate or foreign commerce.

18 U.S.C. 922(g)(1). The statute further provides that

the phrase “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, re-

straints 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(a\(20).

A regulation issued by the Bureau of Alcohol, To-

bacco, Firearms, and Explosives provides, in relevant

part, that the phrase “crime punishable by imprison-

3

ment for a term exceeding 1 year” embraces “[a]ny

Federal, State or foreign offense for which the maxi-

mum penalty, whether or not imposed, is capital

punishment or imprisonment in excess of 1 year.”

27 C.F.R. 478.11.

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of New York, respon-

dent was convicted of conspiracy to export defense

articles designated on the United States munitions list,

in violation of 18 U.S.C. 371 and 22 U.S.C. 2778; con-

spiracy to engage in interstate travel with the intent to

engage in the illegal acquisition of firearms, in violation

of 18 U.S.C. 371, 922(a)(1)(A) and 924(n); and being a

felon in possession of a firearm, in violation of 18 U.S.C.

922(g)(1). He was sentenced to 78 months’ imprison-

ment, to be followed by a three-year term of supervised

release and a $300 special assessment. App., infra, 2a-

3a. The court of appeals reversed the felon in posses-

sion conviction, but affirmed in all other respects. Jd. at

14a.

1, In February 2001, respondent was arrested in

-Plattsburg, New York, on suspicion of entering the

United States illegally. App., infra, 2a. A search of

respondent’s hotel room uncovered 13 handguns. Jd. at

32a.

Respondent was charged with conspiracy to export

defense articles designated on the United States muni-

tions list, in violation of 18 U.S.C. 371 and 22 U.S.C.

2778; conspiracy to engage in interstate travel with the

intent to engage in the illegal acquisition of firearms, in

violation of 18 U.S.C. 371, 922(a)(1)(A) and 924(n); and

being a felon in possession of a firearm, in violation of 18

U.S.C. 922(g)(1). The latter statute makes it unlawful

4

“for any person * * * who has been convicted in any

court of, a crime punishable by imprisonment for a term

exceeding one year” to ship, transport, possess, or

receive, in interstate or foreign commerce, any firearms

or ammunition. 18 U.S.C. 922(g)(1). The predicate

felony relied upon by the government was respondent’s

1996 conviction in Canada for use of a firearm in the

commission of an indictable offense. App., infra, 2a.

2. Respondent moved to dismiss the felon-in-posses-

sion count on the ground that a conviction in a foreign

court cannot serve as the predicate for a violation of

Section 922(g)(1). The district court denied respon-

dent’s motion to dismiss. The court reasoned that the

phrase “‘in any court’ within the statute was not in-

tended by the Congress to be limited only to convic-

tions by the courts of the United States or of a state or

political subdivision thereof.” App., infra, 38a (quoting

United States v. Winson, 793 F. 2d 754, 757 (6th Cir.

1986)). The court could “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.” Jbid. (quoting Winson, 793 F:2d-at

758).

Following a jury trial, petitioner was convicted on all

counts, including the violation of 18 U.S.C. 922(g)(1).

3. The court of appeals reversed the Section

922(g)(1) conviction, but affirmed in all other respects.

App., infra, la-14a, 15a-27a. The court noted that 18

U.S.C. 921 identifies the types of crimes that constitute

predicate offenses for a Section 922(g)(1) conviction.

That definitional provision expressly excludes from the

phrase “crime punishable by imprisonment for a term

exceeding one year” “any Federal or State offenses

pertaining to antitrust violations, unfair trade practices,

5

restraints of trade, or other similar offenses relating to

the regulation of business practices.” 18 U.S.C.

921(a)(20). Agreeing with the Tenth Circuit’s decision

in United States v. Concha, 233 F.3d 1249, 1254 (2000),

the court of appeals observed that, if “in any court”

were read to include foreign courts, then “we would be

left with the anomalous situation * * * whereby a

person convicted of an antitrust violation in a foreign

country would not be allowed to possess a firearm, yet a

person convicted of the same antitrust violation in the

United States would be allowed to possess a firearm.”

App., infra, 8a.

Turning to the legislative history, the court placed

heavy reliance on a Senate Report that stated: “The

definition of the term ‘felony,’ as added by the com-

mittee * * * means a Federal crime punishable by a

term of imprisonment exceeding 1 year and in the case

cf State law, an offense determined by the laws of the

State to be a felony.” App., infra, 10a (quoting S. Rep.

No. 1501, 90th Cong., 2d Sess. 31 (1968)). The court

read that report as evidencing that Congress “unmis-

takably contemplated felonies, for purposes of the Gun

Control Act, to include only convictions in federal and

state courts.” Jd. at 10a-lla. Because the Senate

version of the legislation was not passed, the court

placed weight on the Conference Report’s silence on

the matter. Jd. at 1la-12a (citing H.R. Conf. Rep. No.

1956, 90th Cong, 2d Sess. 4, 8, 28-29 (1968)).

Finally, the court of appeals reasoned that, had Con-

gress contemplated the coverage of foreign convictions,

it likely would have been troubled by the potential

inclusion of convictions obtained by procedures and

methods that did not conform to minimum standards of

justice. In the court’s view, “(t]he complete silence of

the statute on such questions further contributes to the

6

sense that its meaning is not clear and that it may be

appropriate to look beyond its words alone for guidance

as to its meaning.” App., infra, 13a.

4. After the government filed a petition for rehear-

ing and suggestion for rehearing en banc, the court

amended its decision to add a footnote briefly dis-

agreeing with the government’s reading of the relevant

legislative history. App., infra, 12a-18a n.7.

REASONS FOR GRANTING THE PETITION

On March 29, 2004, this Court granted review in

Small v. United States, No. 03-750, to decide whether

the phrase “convicted in any court” in 18 U.S.C.

922(¢)(1), includes convictions entered by the courts of

foreign countries. The government’s petition in this

case seeks review of the same question presented in

Small. Therefore, this case should be held pending the

Court’s decision in Small v. United States, No. 03-759,

and disposed of in accordance with the Court’s decision

in that case.

CONCLUSION

The petition for a writ of certiorari should be held

pending this Court’s decision in Small v. United States,

No. 03-750, and disposed of in accordance with the

Court’s decision in that case.

_ Respectfully submitted.

THEODORE B. OLSON

Solicitor General

CHRISTOPHER A. WRAY

Assistant Attorney General

JOHN F.. DE PUE

Attorney

MAY 2004

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 02-1095

UNITED STATES OF AMERICA, APPELLEE

VU.

KIRK GAYLE, ANN-MARIE RICHARDSON, DEFENDANTS

ROHAN INGRAM, DEFENDANT-APPELLANT

Decided: Aug. 27, 2003

Amended: Jan. 7, 2004

Before: MCLAUGHLIN, LEVAL, KATZMANN, Circuit

Judges.

KATZMANN, Circuit Judge:

Before us is a discrete issue of first impression for

this Circuit: whether the “convicted in any court” ele-

ment of the federal statute which prohibits the pos-

session of a firearm by a person convicted in any court

of a crime punishable by imprisonment for a term

exceeding one year, 18 U.S.C. § 922(g)(1), includes

convictions entered in foreign courts. Specifically, we

consider whether defendant-appellant Rohan Ingram’s

1996 conviction in Canada constitutes a predicate

offense under § 922(g)(1). As a matter of statutory in-

terpretation, we conclude that foreign convictions

(la)

2a

cannot constitute predicate offenses under § 922(g)(1).

We find the statutory language to be ambiguous and,

upon consulting the statute’s legislative history, con-

clude that Congress did not intend “in any court” to

include foreign courts. We therefore reverse the judg-

ment of conviction with respect to the felon-in-posses-

sion count and remand for resentencing on the sur-

viving counts. |

BACKGROUND

We recite only those facts relevant to whether

Ingram’s prior conviction in Canada qualifies as a

predicate offense for his felon-in-possession conviction.

. On February 16, 2001, Ingram was arrested in a

Plattsburgh, New York, hotel upon suspicion that he

had entered illegally the United States from Canada.

Soon after his arrest, authorities discovered a large

quantity of firearms stored in boxes in his hotel room.’

Ingram subsequently was charged in a superseding

indictment with conspiracy to export defense articles

designated on the United States Munitions List in

violation of 18 U.S.C. § 371, 22 U.S.C. § 2778; conspiracy

to travel with intent to engage in the illegal acquisition

of firearms, in violation of 18 U.S.C. §§ 371,

922(a)(1)(A), 924(n); and being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

The predicate offense underlying the felon-in-pos-

session count was Ingram’s 1996 conviction in Canada

for violating § 85(1)(a) of the Canadian Criminal Code

for use of a firearm in the commission of an indictable

offense. The defense moved to dismiss the felon-in-

possession count, maintaining that, because his prior

1 Per order also filed on this date, we affirm the District

Court’s ruling not to suppress the firearms evidence.

3a

felony conviction did not occur in the United States,

Ingram was not a felon within the meaning of the

statute. Acknowledging a circuit split on the issue, the

Government argued that Ingram’s conviction in Canada

constitutes a conviction “in any court” under the terms

of § 922(g)(1). After receiving briefing from the parties,

the District Court denied Ingram’s motion to dismiss.

United States v. Ingram, 164 F. Supp.2d 310 (N.D. N.Y.

2001). Following the reasoning of the Sixth and Fourth

Circuits, the District Court concluded that § 922(g¢)(1)’s

“in any court” language unambiguously includes foreign

courts. Jd. at 316-17; see United States v. Atkins, 872

F.2d 94, 96 (4th Cir.1989), cert. denied, 493 U.S. 836

(1989); United States v. Winson, 793 F.2d 754, 757-59

(6th Cir. 1986). Accordingly, the court held that In-

gram’s prior Canadian conviction was a proper predi-

cate offense for § 922(g)(1). Id.

On October 5, 2001, a jury found Ingram guilty on all

three counts. Ingram moved for a judgment of acquit-

tal, which was denied on February 5, 2002. On January

30, 2002, Ingram was sentenced to 78 months’ im-

prisonment, to be followed by a three year term of su-

pervised release, and a speciai assessment of $300.

2 Ingram also argued below that his Canadian conviction was

not a felony within the meaning of § 922(g)(1) because he received

a sentence of less than one year. The District Court rejected this

argument because what matters, for purposes of § 922(g), is the

maximum possible sentence for the offense. Ingram, 164 F. Supp.

2d at 317. Because the maximum possible sentence for Ingram’s

Canadian offense “is a term of imprisonment ~f fourteen years,”

the court concluded that this conviction “is, therefore, ‘a crime

punishable by imprisonment for a term exceeding one year.’” Id.

(quoting 18 U.S.C. § 922(g)(1)). Ingram does not challenge this

ruling.

4a

DISCUSSION

The lone issue for us to resolve is whether Ingram’s

1996 conviction in a Canadian court can satisfy the

element of the statute that requires a conviction “in any

court.” The federal felon-in-possession statute was

enacted as part of the Gun Control Act of 1968, Pub. L.

No. 90-618, 82 Stat. 1213 (1968). That statute currently

provides, in relevant part,

(g) It shall be unlawful for any person-

(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding

one year;

to ship or transport in interstate or foreign com-

merce, or possess in or affecting commerce, any

firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported

in interstate or foreign commerce.

18 U.S.C. § 922 (emphasis added). Ir 1996, Ingram was

convicted for violating § 85(1)(a) of the Canadian

Criminal Code, which criminalizes the use of a firearm

in commission of an indictable offense and carries a

maximum imprisonment term of fourteen years. If this

conviction were entered by an American court, it would

qualify as a predicate offense under § 922(g)(1) because

the crime was “punishable by imprisonment for a term

exceeding one year.” The determinative issue there-

fore becomes whether the phrase, “convicted in any

court,” refers solely to convictions by courts in the

United States or includes foreign convictions as well.

Because a question of statutory interpretation is at

issue, we review the District Court’s conclusion de

5a

novo. See United States v. Rood, 281 F.3d 353, 355 (2d

Cir. 2002).

Although we have yet to decide this issue, our sister

Circuits that have addressed the scope oi § 922(g)(1)’s

“in any court” language have differed in their inter-

pretation. The Third, Fourth, and Sixth Circuits, along

with two district courts, have concluded that “in any

court” encompasses foreign courts. See United States

v. Small, 333 F.3d 425, 427-28 (3d Cir. 2003); Atkins,

872 F.2d at 96; Winson, 793 F.2d at 757-59; United

States v. Jalbert, 242 F. Supp. 2d 44, 47 (D. Me. 2003);

United States v. Chant, Nos. CR 94-1149, CR 94-0185,

1997 WL 231105, at *1-*3 (N.D. Cal. Apr. 4, 1997). Con-

versely, the Tenth Circuit has invoked the rule of lenity

to conclude that § 922(g¢)(1)’s “in any court” language is

sufficiently ambiguous that foreign convictions cannot

serve as predicate offenses for sentencing enhance-

ments under 18 U.S.C. § 924(e). See United States v.

Concha, 233 F.3d 1249, 1253-56 (10th Cir. 2000).°

Statutory construction begins with the plain text

and, if that text is unambiguous, it usually ends there as

well. United States v. Velastegui, 199 F.3d 590, 594 (2d

Cir. 1999) (citations omitted), cert. denied, 531 U.S. 823

(2000); see Connecticut Nat'l Bank v. Germain, 503

3 At issue in Concha was a sentencing enhancement pursuant

to 18 U.S.C. § 924(e) (increasing the sentence for a felon-in-posses-

sion conviction if the defendant has three previous convictions for

violent felonies or serious drug offenses). Section 924(e) directs

the sentencing judge to § 922(g)(1) to determine whether the con-

victions trigger the enhancement. The defendant in Concha had

four prior felony convictions, three of which occurred outside the

United States. Therefore, even though Concha did not involve a

challenge to a felon-in-possession conviction, the scope of

§ 922(g)(1)’s “in any court” language was the central issue.

6a

U.S. 249, 254 (1992) (“When the words of a statute are

unambiguous, then, this first canon is also the last: ‘ju-

dicial inquiry is complete.’” (quoting Rubin v. United

States, 449 U.S. 424, 430 (1981))). Most of the courts

that have found “in any court” to include foreign courts

have stressed the unambiguously expansive nature of

the phrase. See, e.g., Atkins, 872 F.2d at 96 (“‘Any’ is

hardly an ambiguous term, being all-inclusive in na-

ture.”); United States v. Small, 183 F. Supp. 2d 755, 760

(W.D. Pa. 2002) (“‘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.”),

aff’d, 333 F.3d 425 (3d Cir. 2003); Jalbert, 242 F. Supp.

2d at 47 (“The phrase ‘any court,’ on its face,

encompasses foreign as well as domestic courts.”). In

addition, several courts have interpreted “in any court”

as including military courts. See United States v. Mar-

tinez, 122 F.3d 421, 424 (7th Cir. 1997); United States v.

MacDonald, 992 F.2d 967, 969-70 (9th Cir. 1993);

United States v. Lee, 428 F.2d 917, 920 (6th Cir. 1970),

cert. denied, 404 U.S. 1017 (1972). In reaching this

holding, the Seventh Circuit likewise emphasized the

broad, all-encompassing nature of the phrase, “in any

court”:

Looking to section 922(g)(1), we find nothing that

defines or limits the term “court,” only a require-

ment that a conviction have been “in any court” in

the course of prohibiting possession of firearms by a

felon. Certainly “any court” includes a military

_ eourt, the adjective “any” expanding the term

“court” to include “one or some indiscriminately of

whatever kind”; “one that is selected without re-

7a

striction or limitation of choice”; or “all.” Webster’s

Third New International Dictionary, 1991.

Martinez, 122 F.3d at 424.

Our textual analysis of what constitutes a predicate

offense under § 922(g)(1), however, does not end with

the words “in any court.” “The text’s plain meaning can

best be understood by looking to the statutory scheme

as a whole and placing the particular provision within

the context of that statute.” Saks v. Franklin Covey

Co., 316 F.3d 337, 345 (2d Cir. 2003); see Auburn Hous.

Auth. v. Martinez, 277 F.3d 138, 144 (2d Cir. 2002)

(“The meaning of a particular section in a statute can be

understood in context with and by reference to the

whole statutory scheme, by appreciating how sections

relate to one another.”). Congress defined at § 921, the

Gun Control Act’s general statutory definition section,

the sort of crimes that constitute predicate offenses for

a § 922(¢)(1) conviction:

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, re-

straints 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) (emphasis added). In finding

§ 922(g¢)(1) ambiguous, the Tenth Circuit relied heavily

on this statutory definition, which it believed would

cause a “peculiar result” if “in any court” included for-

Sa

eign courts. Concha, 233 F.3d at 1254. As the Tenth

Circuit noted, if “in any court” were to include foreign

courts, “we would be left with the anomalous situation

that fewer domestic crimes would be covered than

would be foreign crimes.” /d. Like the Tenth Circuit,

we do not understand the logic whereby a person

convicted of an antitrust violation in a foreign country

would not be allowed to possess a firearm, yet a person

convicted of the same antitrust violation in the United

States would be allowed to possess a firearm. Jd. At

the very least, § 921(a)(20) injects doubt as to whether

Congress intended foreign convictions to serve as

predicate offenses. See Marvel Characters Inc. v.

Simon, 310 F.3d 280, 290 (2d Cir. 2002) (explaining our

reluctance to read a statute in a way that could “lead to

anomalous or unreasonable results” (quotation marks

omitted)).

Even without reference to the problem resulting

from the inclusion of foreign business offenses as pre-

dicate offenses, the phrase “in any court” is ambiguous.

For instance, it is not unreasonable to understand

statutory references to officers, officials, and acts of

government as meaning those of the particular gov-

ernment. Just as a state statute authorizing “a police

officer” to make an arrest probably means a police

officer of that state and does not include police officers—

from foreign nations, so it is reasonable to read

§ 922(g)(1)’s reference to convictions as referring to

convictions by courts in the United States. On the

other hand, there are legitimate reasons why, de-

pending upon the crime, Congress might have wished

to include foreign convictions. For example, Congress

might well have intended that a violent crime com-

9a

mitted abroad such as murder qualify as a predicate

offense under § 922(¢)(1).

To resolve this textual ambiguity, we may consult

legislative history and other tools of statutory con-

struction to discern Congress’s meaning. See United

States v. Nelson, 277 F.3d 164, 186 (2d Cir.), cert.

denied, 5387 U.S. 835 (2002).4 Resort to authoritative

legislative history may be justified where there is an

open question as to the meaning of a word or phrase in

a statute, or where a statute is silent on an issue of

fundamental importance to its correct application. As a

general matter, we may consider reliable legislative his-

tory where, as here, the statute is susceptible to diver-

gent understandings and, equally important, where

there exists authoritative legislative history that as-

sists in discerning what Congress actually meant. Cf.,

e.g., Oklahoma v. New Mexico, 501 U.S. 221, 235 n.5,

(1991); Cheung v. United States, 213 F.3d 82, 92 (2d Cir.

2000). |

4 We recognize that a regulation published by Bureau of

Alcohol, Tobacco, Firearms, and Explosives (“ATF”) defines the

statutory provisions as including “[a]Jny Federal, State or foreign

offense for which the maximum penalty, whether or not imposed, is

capital punishment or imprisonment in excess of 1 year.” 27

C.F.R. § 478.11 (2003). We requested briefing from the parties on

the import of this regulation, and both parties agreed that ATF’s

interpretation of a criminal statute is not entitled to deference

under Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), even if the statute were ambiguous.

Moreover, ATF made clear in its explanation that its inclusion of

foreign convictions was based solely on the fact that courts have so

construed the statute. See Commerce in Firearms and Ammuni-

tion, 53 Fed. Reg. 10,480, 10,481 (Mar. 31, 1988). But ATF’s regu-

lation and the court decisions on which it relied reflected no

awareness of the legislative materials discussed below showing

that Congress did not intend to include foreign convictions.

10a

The most enlightening source of legislative history is

generally a committee report, particularly a conference

committee report, which we have identified as among

“the most authoritative and reliable materials of

legislative history.” Disabled in Action of Metropolitan

New York v. Hammons, 202 F.3d 110, 124 (2d Cir.

2000). In the words of one former legislator and judge,

a committee report is “the most useful document in the

legislative history.” Abner Mikva, quoted in Robert A.

Katzmann, “Summary of Proceedings,” in Judges and

Legislators 171 (R. Katzmann, ed.) (1988). Another

former legislator and United States Circuit Judge has

explained: “[M]y understanding of most of the legis-

lation I voted on was based entirely on my reading of

its language and, where necessary, on explanations

contained in the accompanying [committee] report.”

James L. Buckley, Statutory Interpretation and the

Uses of Legislative History, Hearing before the Sub-

committee on Courts, Intellectual Property, and the

Administration of Justice of the House Committee on

the Judiciary, 101 Cong. 2d Sess., Serial No. 107, at 21

(Apr. 19, 1990).

The Senate Judiciary Committee Report on the Gun

Control Act strongly suggests that Congress did not

intend foreign convictions to serve as predicate offenses

under the felon-in-possession statute. The Senate

Report explained the meaning of the term “felony” as

follows: “The definition of the term ‘felony’, as added

by the committee is a new provision. It means a

Federal crime punishable by a term of imprisonment

exceeding 1 year and in the case of State law, an offense

determined by the laws of the State to be a felony.” S.

Rep. No. 90-1501, at 31 (1968). The Senate Report thus

unmistakably contemplated felonies, for purposes of the

lla

Gun Control Act, to include only convictions in federal

and state courts.

Further evidence of Congress’s intent to exclude

foreign convictions comes from the Conference Report.

Next to the statute itself, the most persuasive evidence

of congressional intent comes from a conference report

“[blecause a conference report represents the final

statement of terms agreed to by both houses.” Dis-

abled in Action of Metropolitan New York, 202 F.3d at

124 (quoting Ry. Labor Executives Ass’n v. ICC, 735

F.2d 691, 701 (2d Cir. 1984)); see Auburn Hous. Auth.,

277 F.3d at 147. The Conference Report adopted the

House version of the bill, which contained the statute’s

current language, “crime punishable by imprisonment

for a term exceeding one year.” H.R. Conf. Rep.

90-1956, at 4, 8, 28-29 (1968), reprinted in 1968

U.S.C.C.A.N. 4426, 4428. Notably, however, the Con-

ference Report voiced no disagreement with the Senate

Report’s explicit limitation of felonies to include only

convictions attained in domestic courts. Rather, the

Conference Report merely chose the phrase, “crime

punishable by imprisonment for a term exceeding 1

year,” over the word, “felony.”” Moreover, nowhere did

5 The Conference Report provides,

Definition of crimes.—Both the House bill and the Senate

amendment prohibited the shipment, transportation, and re-

ceipt of firearms and ammunition by persons under indictment

for, or convicted of, certain crimes. . . . A difference between

the House bill and the Senate amendment which recurs in the

provisions described above is that the crime referred to in the

House bill is one punishable by imprisonment for more than 1

year and the crime referred to in the Senate Amendment is a

crime of violence punishable as a felony.

12a

the Conference Report make any mention of foreign

convictions serving as predicate offenses.°

In sum, two reliable portions of the Gun Control

Act’s legislative history—the Senate Report and the

Conference Report—lead us to conclude that Congress

did not intend foreign convictions to serve as a pre-

dicate offense for § 922(g¢)(1). Accordingly, we interpret

§ 922(¢)(1)’s ambiguous “convicted in any court” lan-

guage as only including convictions attained in domestic

courts and not extending to Ingram’s Canadian

conviction.’

. . . « The conference substitute adopts the crime referred to

in the House bill (one punishable by imprisonment for more

than l year)... .

H.R. Conf. Rep. 90-1956, at 28-29 (1968), reprinted in 1968

U.S.C.C.A.N, 4426, 4428.

6 We note that some federal courts considering this question

have concluded that the legislative history offered no useful insight

into the intended reach of the “in any court” language. See Atkins,

872 F.2d at 96 (“[T)he scant legislative history of 18 U.S.C. § 922

. offer{s] no illumination as to Congress’ intended meaning nor

serve(s] to inject any uncertainty into the subject language.”);

Winson, 793 F.2d at 757 (concluding that $ 922’s legislative history

does not suggest Congress intended to limit the statute to domes-

tic convictions). It appears, however, that these courts were un-

aware of the illuminating reports cited above, which to our knowl-

edge have never been cited in a judicial opinion on the question and

were not cited in the briefs furnished to us.

7 In its petition for rehearing, while acknowledging that

§ 922(g) is part of the Gun Control Act of 1968, Pub. L. 90-618,

section 922(g), 82 Stat. 1213, the Government would have us ignore

the relevant legislative activity and history surrounding the Act

itself and instead focus solely on previous versions of the felon-in-

possession statute. In seeking to understand what Congress

meant by an ambiguous term of § 922(g) of the Gun Control Act,

we think it would be unreasonable to disregard the authoritative

l3a

We recognize that there are good reasons why Con-

gress might have wanted to include at least certain

types of foreign convictions. As this legislation repre-

sents a Congressional response to the danger posed by

firearms in the hands of convicted felons, see Barrett v.

United States, 423 U.S. 212, 218 (1976); S. Rep. No. 90-

1501, at 22 (1968); S. Rep. 90-1097, at 19, Congress

might reasonably have wished to prohibit firearms pos-

session at least by those convicted in foreign countries

of crimes of violence. At the same time, however, had

Congress contemplated extending the prohibition to

persons having foreign convictions, it would in all

likelihood have been troubled by the question whether

the prohibition should apply to those convicted by pro-

cedures and methods that did not conform to minimum

standards of justice and those convicted of crimes that

are anathema to our First Amendment freedoms, such

as convictions for failure to observe the commands of a

mandatory religion or for criticism of government. The

complete silence of the statute on such questions

further contributes to the sense that its meaning is not

clear and that it may be appropriate to look beyond its

words alone for guidance as to its meaning.

In reaching our decision, we note that Congress may

seek to enact gun control legislation that criminalizes

firearm possession by individuals with foreign felony

convictions. If Congress were to do so, however, it

would need to speak more clearly than it has in

§ 922(¢)(1). Today, we only choose not to write into a

legislative history surrounding its enactment. We think (as also

noted in 1968 U.S.C.C.A.N. 4426) that S. Rep. 90-1501 and H.R.

Conf. Rep. 90-1856 are directly part of the legislative history of the

Gun Control Act of 1968.

l4a

statute a meaning that seems contrary to what Con-

gress intended.

CONC'LUSION

We have considered all of the defendant-appellant’s

arguments and, for the reasons stated above, we

REVERSE the judgment of conviction with respect to

the felon-in-possession count and REMAND for re-

sentencing on the remaining counts.

15a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 02-1095

UNITED STATES OF AMERICA, APPELLEE

Vv.

KIRK GAYLE, ANN-MARIE RICHARDSON, DEFENDANTS

ROHAN INGRAM, DEFENDANT-APPELLANT

Decided: Aug. 27, 2003

Before: MCLAUGHLIN, LEVAL, KATZMANN, Circuit

Judges.

KATZMANN, Circuit Judge:

Before us is a discrete issue of first impression for

this Circuit: whether the “convicted in any court” ele-

ment of the federal statute which prohibits the posses-

sion of a firearm by a person convicted in any court of a

crime punishable by imprisonment for a term exceeding

one year, 18 U.S.C. § 922(g¢)(1), includes convictions

entered in foreign courts. Specifically, we consider

whether defendant-appellant Rohan Ingram’s 1996

conviction in Canada constitutes a predicate offense

under § 922(g)(1). As a matter of statutory interpreta-

tion, we conclude that foreign convictions cannot con-

stitute predicate offenses under § 922(g)(1). We find

16a

tne statutory language to be ambiguous and, upon

consulting the statute’s legislative history, conclude

that Congress did not intend “in any court” to include

foreign courts. We therefore reverse the judgment of

conviction with respect to the felon-in-possession count

and remand for resentencing on the surviving counts.

BACKGROUND

We recite only those facts relevant to whether

Ingram’s prior conviction in Canada qualifies as a pre-

dicate offense for his felon-in-possession conviction. On

February 16, 2001, Ingram was arrested in a Platts-

burgh, New York, hotel upon suspicion that he had

entered illegally the United States from Canada. Soon

after his arrest, authorities discovered a large quantity

of firearms stored in boxes in his hotel room.’ Ingram

subsequently wis charged in a superseding indictment

with conspiracy to export defense articles designated

on the United States Munitions List in violation of 18

U.S.C. § 371, 22 U.S.C. § 2778; conspiracy to travel with

intent to engage in the illegal acquisition of firearms, in

violation of 18 U.S.C. §§ 371, 922(a)(1)(A), 924(n); and

being a felon in possession of a firearm, in violation of 18

U.S.C. 88 922(g)(1), 924(a)(2).

The predicate offense underlying the feloi:-in-posses-

sion count was Ingram’s 1996 conviction in Canada for

violating § 85(1)(a) of the Canadian Crimina! Code for

use of a firearm in the commission of an indictable

offense. The defense moved to dismiss the felon-in-

possession count, maintaining that, because his prior

felony conviction did not occur in the United States,

Ingram was not a felon within the meaning of the

1 Per order also filed on this date, we affirm the District

Court’s ruling not to suppress the firearms evidence.

17a

statute. Acknowledging a circuit split on the issue, the

Government argued that Ingram’s conviction in Canada

constitutes a conviction “in any court” under the terms

of § 922(¢)(1). After receiving briefing from the parties,

the District Court denied Ingram’s motion to dismiss.

United States v. Ingram, 164 F. Supp. 2d 310 (N.D.

N.Y. 2001). Following the reasoning of the Sixth and

Fourth Circuits, the District Court concluded that

§ 922(2)(1)’s “in any court” language unambiguously in-

cludes foreign courts. Jd. at 316-17; see United States v.

Atkins, 872 F.2d 94, 96 (4th Cir.), cert. denied, 493 U.S.

836 (1989); United States v. Winson, 793 F.2d 754, 757-

59 (6th Cir. 1986). Accordingly, the court held that

Ingram’s prior Canadian conviction was a proper pre-

dicate offense for § 922(g)(1). Id.”

On October 5, 2001, a jury found Ingram guilty on all

three counts. Ingram moved for a judgment of acquit-

tal, which was denied on February 5, 2002. On January

30, 2002, Ingram was sentenced to 78 months’ imprison-

ment, to be followed by a three year term of supervised

release, and a special assessment of $300.

2 Ingram also argued below that his Canadian conviction was

not a felony within the meaning of § 922(g)(1) because he received

a sentence of less than one year. The District Court rejected this

argument because what matters, for purposes of § 922(g), is the

maximum possible sentence for the offense. Ingram, 164 F. Supp.

2d at 317. Because the maximum possible sentence for Ingram’s

Canadian offense “is a term of imprisonment of fourteen years,”

the court concluded that this conviction “is, therefore, ‘a crime

punishable by imprisonment for a term exceeding one year.’” Id.

(quoting 18 U.S.C. § 922(g)(1)). Ingram does not challenge this

ruling.

18a

DISCUSSION

The lone issue for us to resolve is whether Ingram’s

1996 conviction in a Canadian court can satisfy the

element of the statute that requires a conviction “in any

court.” The federal felon-in-possession statute was

enacted as part of the Gun Control Act of 1968, Pub. L.

No. 90-618, 82 Stat. 1213 (1968). That statute currently

provides, in relevant part,

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding

one year;

to ship or transport in interstate or foreign com-

merce, or possess in or affecting commerce, any

firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported

in interstate or foreign commerce.

18 U.S.C. § 922 (emphasis added). In 1996, Ingram was

convicted for violating § 85(1)(a) ‘of the Canadian Crimi-

nal Code, which criminalizes the use of a firearm in

commission of an indictable offense and carries a maxi-

mum imprisonment term of fourteen years. If this

conviction were entered by an American court, it would

qualify as a predicate offense under § 922(g¢)(1) because

the crime was “punishable by imprisonment for a term

exceeding one year.” The determinative issue there-

fore becomes whether the phrase, “convicted in any

court,” refers solely to convictions by courts in the

United States or includes foreign convictions as well.

Because a question of statutory interpretation is at

issue, we review the District Court’s conclusion de

19a

novo. See United States v. Rood, 281 F.3d 353, 355 (2d

Cir. 2002).

Although we have yet to decide this issue, our sister

Circuits that have addressed the scope of § 922(g)(1)’s

“in any court” language have differed in their inter-

pretation. The Third, Fourth, and Sixth Circuits, along

with two district courts, have concluded that “in any

court” encon:passes foreign courts. See United States

v. Small, 333 F.3d 425, 427-28 (8d Cir. 2003); Atkins,

872 F.2d at 96; Winson, 793 F.2d at 757-59; United

States v. Jalbert, 242 F. Supp. 2d 44, 47 (D. Me. 2003);

United States v. Chant, Nos. CR 94-1149, CR 94-0185,

1997 WL 231105, at *1-*3 (N.D. Cal. Apr. 4, 1997). Con-

versely, the Tenth Circuit has invoked the rule of lenity

to conclude that § 922(g)(1)’s “in any court” language is

sufficiently ambiguous that foreign convictions cannot

serve as predicate offenses for sentencing enhance-

ments under 18 U.S.C. § 924(e). See United States v.

Concha, 233 F.3d 1249, 1253-56 (10th Cir. 2000).°

Statutory construction begins with the plain text

and, if that text is unambiguous, it usually ends there as

well. United States v. Velastegui, 199 F.3d 590, 594 (2d

Cir. 1999) (citations omitted), cert. denied, 531 U.S. 823

(2000); see Connecticut Nat’l Bank v. Germain, 503

3 At issue in Concha was a sentencing enhancement pursuant

to 18 U.S.C. £ 924(e) (increasing the sentence for a felon-in-posses-

sion conviction if the defendant has three previous convictions for

violent felonies or serious drug offenses). Section 924(e) directs

the sentencing judge to § 922(g)(1) to determine whether the con-

victions trigger the enhancement. The defendant in Concha had

four prior feluny convictions, three of which occurred outside the

United States. Therefore, even though Concha did not involve a

challenge to a felon-in-possession conviction, the scope of

§ 922(g)(1)’s “in any court” language was the central issue.

20a

U.S. 249, 254 (1992) (“When the words of a statute are

unambiguous, then, this first canon is also the last:

‘judicial inquiry is complete.’” (quoting Rubin v. United

States, 449 U.S. 424, 430 (1981))). Most of the courts

that have found “in any court” to include foreign courts

have stressed the unambiguously expansive nature of

the phrase. See, e.g., Atkins, 872 F.2d at 96 (“‘Any’ is

hardly an ambiguous term, being all-inclusive in

nature.”); United States v. Small, 185 F’. Supp. 2d 755,

760 (W.D. Pa. 2002) (“‘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.”),

aff'd, 333 F.3d 425 (8d Cir. 2003); Jalbert, 242 F. Supp.

2d at 47 (“The phrase ‘any court,’ on its face,

encompasses foreign as well as domestic courts.”). In

addition, several courts have interpreted “in any court”

as including military courts. See United States v. Mar-

tinez, 122 F.3d 421, 424 (7th Cir. 1997); United States v.

MacDonald, 992 F.2d 967, 969-70 (9th Cir. 1993);

United States v. Lee, 428 F.2d 917, 920 (6th Cir. 1970),

cert. denied, 404 U.S. 1017 (1972). In reaching this

holding, the Seventh Circuit likewise emphasized the

broad, all-encompassing nature of the phrase, “in any

court”:

Looking to section 922(g¢)(1), we find nothing that

defines or limits the term “court,” only a require-

ment that a conviction have been “in any court” in

the course of prohibiting possession of firearms by a

felon. Certainly “any court” includes a military

court, the adjective “any” expanding the term

“couit” to include “one or some indiscriminately of

whatever kind”; “one that is selected without re-

2la

striction or limitation of choice”; or “all.” Webster’s

Third New International Dictionary, 1991.

Martinez, 122 F.3d at 424.

Our textual analysis of what constitutes a predicate

offense under § 922(g)(1), however, does not end with

the words “in any court.” “The text’s plain meaning can

best be understood by looking to the statutory scheme

as a whole and placing the particular provision within

the context of that statute.” Saks v. Franklin Covey

Co., 316 F.3d 387, 345 (2d Cir. 2003); see Auburn Hous.

Auth. v. Martinez, 277 F.3d 188, 144 (2d Cir. 2002)

(“The meaning of a particular section in a statute can be

understood in context with and by reference to the

whole statutory scheme, by appreciating how sections

relate to one another.”). Congress defined at § 921, the

Gun Control Act’s general statutory definition section,

the sort of crimes that constitute predicate offenses for

a § 922(g)(1) conviction:

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, re-

straints 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) (emphasis added). In finding

§ 922(g¢)(1) ambiguous, the Tenth Circuit relied heavily

on this statutory definition, which it believed would

cause a “peculiar result” if “in any court” included for-

22a

eign courts. Concha, 233 F.3d at 1254. As the Tenth

Circuit noted, if “in any court” were to include foreign

courts, “we would be left with the anomalous situation

that fewer domestic crimes would be covered than

would be foreign crimes.” /d. Like the Tenth Circuit,

we do not understand the logic whereby a person

convicted of an antitrust violation in a foreign country

would not be allowed to possess a firearm, yet a person

convicted of the same antitrust violation in the United

States would be allowed to possess a firearm. Jd. At

the very least, § 921(a)(20) injects doubt as to whether

Congress intended foreign convictions to serve as

predicate offenses. See Marvel Characters Inc. v.

Simon, 310 F.3d 280, 290 (2d Cir. 2002) (explaining our

reluctance to read a statute in a way that could “lead to

anomalous or unreasonable results” (quotation marks

omitted)).

Even without reference to the problem resulting

from the inclusion of foreign business offenses as pre-

dicate offenses, the phrase “in any court” is ambiguous.

For instance, it is not unreasonable to understand ~

statutory references to officers, officials, and acts of

government as meaning those of the particular govern-

ment. Just as a state statute authorizing “a police

officer” to make an arrest probably means a police

officer of that state and does not include police officers

from foreign nations, so it is reasonable to read

§ 922(¢)(1)’s reference to convictions as referring to

convictions by courts in the United States. On the

other hand, there are legitimate reasons why, depend-

ing upon the crime, Congress might have wished to

include foreign convictions. For example, Congress

might well have intended that a violent crime com-

23a

mitted abroad such as murder qualify as a predicate

offense under § 922(g)(1).

To resolve this textual ambiguity, we may consult

legislative history and other tools of statutory con-

struction to discern Congress’s meaning. See United

States v. Nelson, 277 F.3d 164, 186 (2d Cir. 2002), cert.

denied, 123 S. Ct. 145 (2002).* Resort to authoritative

legislative history may be justified where there is an

open question as to the meaning of a word or phrase in

a statute, or where a statute is silent on an issue of

fundamental importance to its correct application. As a

general matter, we may consider reliable legislative

history where, as here, the statute is susceptible to

divergent understandings and, equally important,

where there exists authoritative legislative history that

assists in discerning what Congress actually meant.

Cf., e.g., Oklahoma v. New Mexico, 501 U.S. 221, 235

n.5 (1991); Cheung v. United States, 213 F.3d 82, 92 (2d

Cir. 2000).

4 We recognize that a regulation published by Bureau of

Alcohol, Tobacco, Firearms, and Explosives (“ATF”) defines the

statutory provisions as including “[{aJny Federal, State or foreign

offense for which the maximum penalty, whether or not imposed, is

capital punishment or imprisonment in excess of 1 year.” 27

C.F.R. § 478.11 (2003). We requested briefing from the parties on

the import of this regulation, and both parties agreed that ATF’s

interpretation of a criminal statute is not entitled to deference

under Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 887 (1984), even if the statute were ambiguous.

Moreover, ATF made clear in its explanation that its inclusion of

foreign convictions was based solely on the fact that courts have so

construed the statute. See Commerce in Firearms and Ammuni-

tion, 53 Fed. Reg. 10,480, 10,481 (Mar. 31, 1988). But ATF’s regu-

lation and the court decisions on which it relied reflected no

awareness of the legislative materials discussed below showing

that Congress did not intend to include foreign convictions.

24a

The most enlightening source of legislative history is

generally a committee report, particularly a conference

committee report, which we have identified as among

“the most authoritative and reliable materials of

legislative history.” Disabled in Action of Metropolitan

New York v. Hammons, 202 F.3d 110, 124 (2d Cir.

2000). In the words of one former legislator and judge,

a committee report is “the most useful document in the

legislative history.” Abner Mikva, quoted in Robert A.

Katzmann, “Summary of Proceedings,” in Judges and

Legislators 171 (R. Katzmann, ed.) (1988). Another

former legislator and United States Circuit Judge has

explained: “[Ml]y understanding of most of the legis-

lation I voted on was based entirely on my reading of

its language and, where necessary, on explanations con-

tained in the accompanying [committee] report.” James

L. Buckley, Statutory Interpretation and the Uses of

Legislative History, Hearing before the Subcommittee

on Courts, Intellectual Property, and the Admini-

stration of Justice of the House Committee on the

Judiciary, 101 Cong. 2d Sess., Serial No. 107, at 21 (Apr.

19, 1990).

The Senate Judiciary Committee Report on the Gun

Control Act strongly suggests that Congress did not

intend foreign convictions to serve as predicate offenses

under the felon-in-possession statute. The Senate

Report explained the meaning of the term “felony” as

follows: “The definition of the term ‘felony’, as added

by the committee is a new provision. It means a Fed-

eral crime punishable by a term of imprisonment ex-

ceeding 1 year and in the case of State law, an offense

determined by the laws of the State to be a felony.”

S. Rep. No. 90-1501, at 31 (1968). The Senate Report

thus unmistakably contemplated felonies, for purposes

25a

of the Gun Control Act, to include only convictions in

federal and state courts.

Further evidence of Congress’s intent to exclude

foreign convictions comes from the Conference Report.

Next to the statute itself, the most persuasive evidence

of congressional intent comes from a conference report

“(plecause a conference report represents the final

statement of terms agreed to by both houses.” Divs-

abled in Action of Metropolitan New York, 202 F.3d at

124 (quoting Ry. Labor Executives Ass’n v. ICC, 735

F.2d 691, 701 (2d Cir. 1984)); see Auburn Hous. Auth.,

977 F.3d at 147. The Conference Report adopted the

House version of the bill, which contained the statute’s

current language, “crime punishable by imprisonment

for a term exceeding one year.” H.R. Conf. Rep.

90-1956, at 4, 8, 28-29 (1968), reprinted in 1968

U.S.C.C.A.N. 4426, 4428. Notably, however, the Con-

ference Report voiced no disagreement with the Senate

Report’s explicit limitation of felonies to include only

convictions attained in domestic courts. Rather, the

Conference Report merely chose the phrase, “crime

punishable by imprisonment for a term exceeding 1

year,” over the word, “felony.”° Moreover, nowhere did

5 The Conference Report provides,

Definition of crimes.—Both the House bill and the Senate

amendment prohibited the shipment, transportation, and re-

ceipt of firearms and ammunition by persons under indictment

for, or convicted of, certain crimes. . . . A difference between

the House bill and the Senate amendment which recurs in the

provisions described above is that the crime referred to in the

House bill is one punishable by imprisonment for more than 1

year and the crime referred to in the Senate Amendment is a

crime of violence punishable as a felony.

26a

the Conference Report make any mention of foreign

convictions serving as predicate offenses.”

In sum, two reliable portions of the Gun Control

Act’s legislative history—the Senate Report and the

Conference Report—lead us to conclude that Congress

did not intend foreign convictions to serve as a pre-

dicate offense for § 922(¢)(1). Accordingly, we interpret

§ 922(¢)(1)’s ambiguous “convicted in any court” lan-

guage as only including convictions attained in domestic

courts and not extending to Ingram’s Canadian con-

viction.

We recognize that there are good reasons why

Congress might have wanted to include at least certain

types of foreign convictions. As this legislation repre-

sents a Congressional response to the danger posed by

firearms in the hands of convicted felons, see Barrett v.

United States, 423 U.S. 212, 218 (1976); S. Rep. No. 90-

1501, at 22 (1968); S. Rep. 90-1097, at 19, Congress

. The conference substitute adopts the crime referred to

in ‘the House bill (one punishable by imprisonment for more

than 1 year). .

H.R. Conf. Rep 90-1986, at 28-29 (1968), reprinted in 1968

U.S.C.C.A.N., 4425, 4428.

6 We note that some federal courts considering this question

have concluded that the legislative history offered no useful insight

into the intended reach of the “in any court” language. See Atkins,

872 F.2d at 96 (“(T]he scant legislative history of 18 U.S.C. § 922

. offer{s] no illumination as to Congress’ intended meaning nor

serve[s] to inject any uncertainty into the subjec’; language.”);

Winson, 793 F.2d at 757 (concluding that § 922’s .. ative history

does not suggest Congress intended to limit the statute to domes-

tic convictions). It appears, however, that these courts were un-

aware of the illuminating reports cited above, which to our

knowledge have never been cited in a judicial opinion on the

question and were not cited in the briefs furnished to us.

27a

might reasonably have wished to prohibit firearms pos-

session at least by those convicted in foreign countries

of crimes of violence. At the same time, however, had

Congress contemplated extending the prohibition to

persons having foreign convictions, it would in all

likelihood have been troubled by the question whether

the prohibition should apply to those convicted by pro-

cedures and methods that did not conform to minimum

standards of international justice and those convicted of

crimes that are anathema to our First Amendment

freedoms, such as convictions for failure to observe the

commands of a mandatory religion or for criticism of

government. The complete silence of the statute on

such questions further contributes to the sense that its

meaning is not clear and that it may be appropriate to

look beyond its words alone for guidance as to its

meaning.

In reaching our decision, we note that Congress may

seek to enact gun control legislation that criminalizes

firearm possession by individuals with foreign felony

convictions. If Congress were to do so, however, it

would need to speak more clearly than it has in

§ 922(¢)(1). Today, we only choose not to write into a

statute a meaning that seems contrary to what Con-

gress intended.

CONCLUSION

We have considered all of the defendant-appellant’s

arguments and, for the reasons stated above, we

REVERSE the judgment of conviction with respect to

the felon-in-possession count and REMAND for resen-

tencing on the remaining counts.

28a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 02-1095

UNITED STATES OF AMERICA, APPELLEE

Vv.

KIRK GAYLE, ANN-MARIE RICHARDSON, DEFENDANTS

ROHAN INGRAM, DEFENDANT-APPELLANT

[Filed: Aug. 27, 2003]

Appeal from the United States District court for the

Northern District of New York.

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, Foley Square, in

the City of New York, on the 27th day of August, two

thousand and three.

Before: Hon. JOSEPH M. MCLAUGHLIN, Hon. PIERRE

N. LEVAL, Hon. ROBERT A. KATZMANN Circuit Judges

This cause came to be heard on the transcript of

record from the United States District Court for the

Northern District of New York and was argued by

counsel.

29a

On consideration whereof, it is hereby ORDERED,

ADJUDGED and DECREED that the judgment of said

district court be and it hereby is REVERSED AND RE-

MANDED for resentencing in accordance with the

opinion of this Court.

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk

/s/ ARTHUR M. HELLER

ARTHUR M. HELLER

Motions Staff Attorney

30a

APPENDIX D

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK

No. 01-CR-090 (LEK)

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

ROHAN INGRAM, DEFENDANT

Aug. 24, 2001

MEMORANDUM—DECISION

AND ORDER

KAHN, District Judge.

Presently before the Court are Defendant’s Motions

to Suppress Evidence and Dismiss Count Three of the

Superseding Indictment. For the reasons stated

herein, these motions are DENIED.

I. BACKGROUND

On February 16, 2001, co-defendant Kirk Gayle

attempted to enter the United States at Champlain,

New York. Gayle was stopped and questioned by

agents of the United States Border Patrol. The agents

found a piece of paper that Gayle was carrying con-

taining a telephone number and another three-digit

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number. Border Patrol Agent Peter Dunbar called the

telephone number and discovered that it belonged to

the Smithfield Inn located in Plattsburgh, New York.

The other number on the piece of paper contained three

digits “132”, presumably that of a room at the hotel.

The clerk at the hotel refused to divulge the name of

that room’s occupant. Agent Dunbar then drove to the

hotel.

When Agent Dunbar arrived at the hotel, the desk

clerk told him that the room was registered to Rohan

Ingram. Agent Dunbar ran a criminal record check on

ingram through the Treasury Enforcement Computer

System (TECS) located in Swanton, Vermont. The

check revealed that Ingram was noi a citizen of the

United States and had a criminal record in Canada,

including multiple convictions for firearms offenses.

Ingram was therefore, illegally present in the United

States. The information from the background check

cautioned “that [Ingram] was possibly armed and dan-

gerous, had a history of violence.”

Border Patrol Agent Labounty soon joined agent

Dunbar at the hotel. As the two agents approached

Ingram’s room they saw a male walking down the hall.

The agents approached the rman, identified themselves,

and asked him for identification. The man stated that

he was Rohan Ingram and told the agents that he was

from Canada. After producing a Canadian driver's

license for identification, Ingram was placed under

arrest.

The Agents then asked Ingram who else was in the

hotel room since they heard voices coming from his

room. Ingram did not answer so the Agents knocked on

the room’s door. Ann-Marie Richardson answered.

Agent Dunbar asked her for identification. Richardson

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turned and walked across the hotel room toward a bag

to recrieve her identification. Agent Dunbar followed

her inside the room. As he walked past the bathroom

he saw a box labeled “Firearms” inside an open duffle

bag. The bag contained approximately 13 handguns.

Agent Dunbar placed Richardson in custody. Subse-

quently, Ingram provided a signed, written statement

to federal law enforcement officials.

Defendant Ingram now seeks to suppress all evi-

dence seized from the hotel room on February 16, 2001

and his written statement to federal law enforcement

officials. Defendant argues that the Agents’ actions

constituted an unlawful search and seizure in violation

of his Fourth Amendment rights. An evidentiary hear-

ing was held before the Court on July 3, 2001 and July

9, 2001, and the parties submitted memorandums of law

in support of their positions. Defendant Ingram also

moves to dismiss Count Three of the Indictment be-

cause his predicate conviction is from a foreign juris-

diction.

There are three questions the Court must answer if

the Government is to be allowed to use the evidence

discovered in Defendant’s hotel room. The preliminary

question is whether Agents Dunbar and Labounty had

probable cause to arrest Defendant. Second, did the

agents have the right to enter Defendant’s hotel room?

Third, did the agents have the right to seize the evi-

dence once inside the hotel room? Whether DVefen-

dant’s written statement is admissible turns on

whether Defendant was properly Mirandized. Lastly,

the issue of Count Three depends on whether a con-

viction from a foreign jurisdiction may serve as a pre-

dicate offense for a violation of 18 U.S.C. § 922(g).

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Il. ANALYSIS

A. Fourth Amendment

1. Probable Cause to Arrest

Law enforcement officers may lawfully arrest per-

sons without an arrest warrant under certain circum-

stances. A warrantless arrest is permitted when an

officer has probable cause to believe the arrestee has

committed a felony. See United States v. Watson, 423

U.S. 411, 418 (1976). Probable cause to make a warrant-

less arrest exists when at the time of the arrest “the

facts and circumstances within the [officer’s] know edge

and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in

believing that the [Defendant] had committed or was

committing an offense.” Beck v. Ohio, 379 U.S. 89, 91

(1964); Wong Sun v. United States, 371 US. 471, 479

(1963).

Defendant argues that the evidence found in his hotel

room is the inadmissible fruit of an unconstitutional

arrest. In the case at hand the Agents had probable

cause to arrest Ingram based on the criminal back-

ground check run through TECS. The background

check revealed that Ingram was not a citizen of the

United States and had a criminal record in Canada,

including multiple convictions for firearms offenses.

Ingram was therefore, illegally present in the United

States. This information gave the Agents probable

cause to arrest him. When the Agents approached Mr.

Ingram outside his hotel room and he identified himself

as Rohan Ingram, they properly placed him in custody.

2. Search Incident to Lawful Arrest

Police may conduct a warrantless search of a suspect

incident to an arrest where a full custodial arrest is

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allowed. See New York v. Belton, 453 U.S. 454, 461

(1981); United States v. Robinson, 414 U.S. 218, 234

(1973). The scope of the search is not limited to the

suspect’s person, but extends to the suspect’s “wing-

span,” or “the area from within which [the arrestee]

might gain possession of a weapon or destructible evi-

dence.” Chimel v. California, 395 U.S. 752, 763 (1969).

The police may also make a “protective sweep” of the

area beyond the suspect’s wingspan in order to protect

the safety of the officers if they believe accomplices

may be present. See Maryland v. Buie, 494 U.S. 825,

331. In order for officers to perform this protective

sweep they must be able to articulate facts that would

warrant a reasonably prudent officer to believe that the

area to be swept harbors an individual that poses a

danger to those on the scene. Buie, 494 U.S. at 334; see

also United States v. Biggs, 70 F.3d 913, 916 (6th Cir.

1995) (finding a protective sweep of a motel room valid

when the suspect was arrested outside the motel room

and officers had a reasonable belief, based on knowl-

edge that defendant had previously been arrested with

armed companions, that individuals posing harm to the

officers might be in the motel room). Evidence in plain

view may be seized during a protective sweep. Buie,

494 US. at 330, 110 S. Ct. 1093.

In order to find the protective sweep at issue here

constitutional under the Buie standard, the Agents

must articulate why the search of the hotel room was

reasonably necessary once ‘ngram was placed in

custody in the hallway of the 'otel. In this case, the

Agents have articulated factors that would lead a

reasonably prudent officer to believe that they might

be in danger from someone else in the hotel room.

First, Agent Dunbar testified that he heard more than

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one voice coming from Ingram’s hotel room. Second,

from the background check, the Agents knew that the

registered occupant, Rohan Ingram, was possibly

armed and dangerous, had a history of violence and had

a criminal history in Canada for weapons violation. In

fact, before approaching Ingram’s room, the Agents put

on bulletproof vests to protect themselves. Agent

Dunbar also testified that he followed Richardson in the

hotel room because he was concerned that there might

be weapons in the room. He also stated that he wanted

to make sure there was no one else in the room. The

Court concludes that the Agent’s testimony supports a

reasonable suspicion that they might be in danger from

someone else in the hotel room. Therefore, the Agents

were justified in performing a protective sweep of

Ingram’s hotel room.

3. Seizure of Items in Plain View

Under certain circumstances, the police may seize

evidence found in plain view even though they do not

have a warrant. As a preliminary matter, the govern-

ment must show that the Fourth Amendment was not

violated when the officers arrived at the place where

they viewed the evidence. Horton v. California, 496

U.S. 128, 136 (1990). Second, the officer must have a

right of access to the object. Jd. Lastly, the incriminat-

ing character of the evidence must be immediately

apparent. Id.

As previously discussed, the Agents did not violate

Defendant’s Fourth Amendment rights and were justi-

fied in making the protective sweep of the hotel room.

This puts them lawfully in a location from which to view

and access the evidence. Once lawfully in the room,

Agent Dunbar testified that he observed an open duffle

bag with a box inside labeled “firearms.” The incri-

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minating character of the evidence was readily appar-

ent given its labeling. The eviience seized at the hotel,

consisting of approximatel: 13 handguns, is therefore

admitted into evidence.

B. Defendant’s Written Statement

Defendant also claims that his post-arrest statement

was illegally obtained in violation of his Fifth Amend-

ment rights.’ The Fifth Amendment grants a suspect a

right to counsel in order to protect the individual’s right

against self-incrimination prior to the initiation of

formal jucicial proceedings against him. The right to

counsel applies to all statements an individual makes

when subject to custodial interrogation. Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966) requires that before questioning an individual in

custody, the suspect be informed of his/her rights.

The record is clear that multiple Miranda warnings

were given to Ingram and that he knowingly waived his

rights. Agents Dunbar and Labounty testified that

1 Defendant also claims that the written statement was given in

violation of his Sixth Amendment, though he does not address his

Sixth Amendment claims in his Motion papers. The Sixth Amend-

ment right to counsel attaches at the initiation of adversarial judi

cial proceedings “whether by way of formal charge, preliminary

hearing, indictment, information or arraignment.” Kirby v.

Illinois, 406 U.S. 682, 689 (1972). Since Defendant’s Sixth Amend-

ment right had not attached at the time the written statement was

given, Defendant’s argument is misplaced. Defendant’s argument

for dismissal rests upon his Fifth Amendment Rights. See United

States v. Guido, 704 F.2d 675, 676 (2d Cir. 1983) (“Since the Sixth

Amendment right to counsel attaches only after the filing of formal

charges, appellant’s incriminating statement, if protected at all, is

protected by the Fifth Amendment rather than the Sixth.”) See

also United States v. Duvall, 587 F.2d 15, 20-22 (2d Cir.), cert.

denied, 426 U.S. 950 (1976).

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Dunbar read Ingram his Miranda warnings in the hotel

room after arresting him. Supervisory Agent Amenus

testified the [sic] he also apprised Ingram of his

Miranda rights in the hotel room and that Ingram

understood them, but indicated that he wished to waive

them” Amentis “Mirandized” Ingram once again at his

office, and obtained another waiver before taking the

statement from Ingram. Additionally, Ingram’s writ-

ten statement declares that “I, Rohan Ingram

have been advised of my rights and waive my right to

have counsel present while being interviewed by De-

tective Thomas Penfield.” In light of this testimony,

the Court finds that Defendant’s statement was prop-

erly obtained and is admissible into evidence. Conse-

quently, Defendant’s motion to suppress the statement

is denied.

C. Defendant’s Motion to Dismiss Count Three of the

Superseding Indictment

Count three of the indictment alleges that Defendant,

having previously been convicted of a crime punishable

by imprisonment for a term exceeding one year, did

knowingly and intentionally possess a firearm in vio-

lation of 18 U.S.C. § 922(g). Section 922(g)(1) prohibits

possession of a firearm by “any person . . . who has

been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year.” 18

U.S.C. § 922(g). The issue presented is whether the “in

any court” provision of § 922(g) applies only to convic-

tions by courts within the United States. Defendant

argues that because Count Three of the indictment is

predicated upon a conviction allegedly obtained in

2 Penfield testified that he observed Amentis Mirandizing

Ingram.

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Canada, a 1996 Canadian conviction for the use of a

firearm while committing an indictable offense, this

conviction does not bring him within the class of

persons prohibited from possessing firearms under

§ 922(¢).

1. A Foreign Conviction May Serve as the

Predicate Offense for a Violation of § 922(g)

In United States v. Winson, 793 F.2d 754, 758 (6th

Cir. 1986) the Sixth Circuit upheld an indictment

charging the defendant with a violation of 18 U.S.C.

§ 922(h). In Winson, the violation of § 922(h) was based

upon Argentinian and Swiss convictions. See id. 793

F.2d at 756. The court in that case found that the use of

the term “in any court” within the statute “was not

intended by the Congress to be limited only to

convictions in the courts of the United States or of a

state or political subdivision thereof.” Jd. at 757. The

court reasoned that

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 dan-

gerous than he whose crimes were committed with-

in 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 of this country.

Id. at 785 (internal citations omitted).

The Fourth Circuit similarly held that an English

conviction was a proper predicate for an 18 U.S.C.

§ 922(g) conviction, reasoning that the plain meaning of

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the term “any court” is unambiguous and includes

courts of foreign jurisdiction.

Defendant also argues that the Canadian convictions

do not rise to the level of a felony because Defendant

received a sentence of less than one year. Defendant’s

prior conviction was for a violation of § 85(1)(a) of the

Canadian Criminal Code (Using firearm in commission

of offence). A violation of § 85(1)(a) carries an impri-

sonment term not exceeding fourteen years and a

minimum punishment of imprisonment for a term of one

year. See R.S.C. § 85(3)(a). What matters when deter-

mining whether an offense comes under 18 U.S.C.

922(g) is not the actual sentence Defendant received.

Rather the Court must examine the maximum possible

sentence for the charged offense. See United States v.

Arnold, 113 F.3d 1146, 1148 (10th Cir. 1997) (rejecting

an attempt by defendant who had been sentenced to

eleven months on underlying conviction “to rewrite 18

U.S.C. § 922(g)(1) by converting the word ‘punishable’

into ‘punished.’”). In this case, the maximum possible

sentence for Defendant’s Canadian offense is a term of

imprisonment of fourteen years. Defendant's Canadian

conviction for a violation of § 85(1)(a) is, therefore, “a

crime punishable by imprisonment for a term exceed-

ing one year.” 18 U.S.C. § 922(g) (emphasis added).

Since this Court agrees with the reasoning of the

Sixth and Fourth Circuits it finds that Ingram’s prior

Canadian conviction serves as a proper predicate under

§ 922. The Court holds that Defendant’s motion to dis-

miss Count Three is denied.

Ill. CONCLUSION

Accordingly, it is hereby

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ORDERED that Defendant’s Motion to Suppress the

physical evidence seized from his hotel room on the

night of February 16, 2001 is DENIED; and it is further

ORDERED that Defendant’s Motion to Suppress the

_ written statement is hereby DENIED; and it is further

ORDERED that Defendant’s Motion to Dismiss

Count Three of the Indictment is hereby DENIED; and

it is further

ORDERED that the Clerk serve copy of this order on

all parties by regular mail.

IT IS SO ORDERED

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APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

THURGOOD MARSHALL UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

Docket No. 02-1095

UNITED STATES OF AMERICA

Vv.

GAYLE

(Filed: Feb. 11, 2004]

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse, Foley Square, in the City of New

York, on the 11th day of February two thousand four.

A petition for panel rehearing and a petition for

rehearing en banc having been filed herein by the

appellee USA.

Upon consideration by the panel that decided the

appeal, it is Ordered that said petition for rehearing is

DENIED.

It is further noted that the petition for rehearing en

banc has been transmitted to the judges for the court in

regular active service and to any other judge that heard

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the appeal and that no such judge has requested that a

vote be <aken thereon.

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk

By: ARTHUR M. HELLER

ARTHUR M. HELLER

Administrative Attorney