U.S. v. Laboy-Torres, 08-1220.

Decision Date29 January 2009
Docket NumberNo. 08-1220.,08-1220.
Citation553 F.3d 715
PartiesUNITED STATES of America v. Marco LABOY-TORRES, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Frederick W. Ulrich, Esquire (Argued), Office of Federal Public Defender, Harrisburg, PA, Attorney for Appellant.

Theodore B. Smith III, Esquire (Argued), Office of United States Attorney, Harrisburg, PA, Attorney for Appellee.

Before SCIRICA, Chief Judge, RENDELL, Circuit Judge, and O'CONNOR,* Associate Justice (Ret.).


O'CONNOR, Associate Justice (Retired).

Under federal law, it is a crime 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, receive or possess a firearm or ammunition. 18 U.S.C. § 922(g)(1). In Small v. United States, 544 U.S. 385, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005), the Supreme Court construed the phrase "convict[ions] in any court" in that statute to "encompas[s] only domestic, not foreign, convictions." Id. at 387, 125 S.Ct. 1752. The question presented is whether appellant's conviction in a Puerto Rican court for the possession of marijuana is a "foreign" or "domestic" conviction under § 922(g)(1), a question of first impression in the Courts of Appeals. The District Court concluded that it was a domestic conviction within the ambit of the statute's prohibition. We agree, and accordingly affirm the court's denial of appellant's motion to dismiss his indictment.


The material facts are not in dispute. In July 1999, appellant Marco Laboy-Torres was convicted in the Superior Court of Mayaguez, Puerto Rico, for possessing marijuana, and was sentenced to 36 months' probation. Two years later, he moved to the United States in violation of the terms of his sentence. When he returned to Puerto Rico in 2005, he was rearrested, his probation was revoked, and he was sentenced to serve a three year term of incarceration, with two years' credit for the probation he had previously served. He ultimately served seven months' imprisonment. After he was released, he returned to the United States.

In June 2006, appellant attempted to purchase from a licensed firearms dealer in York, Pennsylvania, two semiautomatic pistols and one standard pistol. On the form required by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to complete a firearms purchase, appellant certified that he had never been convicted in any court of a crime punishable by imprisonment for a term exceeding one year. Supplemental Appendix for Appellee 1.1 When the dealer performed an instant criminal background check, appellant's Puerto Rican conviction turned up, and the dealer consequently refused to sell appellant the three handguns. Six days later, appellant endeavored to purchase two handguns from a different dealer, with the same result. Again he certified that he had no disqualifying convictions, Supplemental Appendix for Appellee 5, again a criminal background check uncovered his Puerto Rican conviction, and again the transaction was refused.

Three months later, agents of the ATF interviewed appellant, and he confirmed that he had been convicted for possession of marijuana in Puerto Rico and admitted his two subsequent attempts to purchase firearms in Pennsylvania. He was later indicted by a grand jury for two counts of making false or fictitious statements to deceive a licensed firearms dealer in the sale or acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6). In relevant part, that statute makes it unlawful "knowingly to make any false or fictitious oral or written statement ... with respect to any fact material to the lawfulness of [a] sale [of firearms]." Ibid. The Government asserted that appellant knew that each of his denials of disqualifying convictions was false. It further asserted that each was material because his Puerto Rican conviction made it unlawful for him to purchase firearms under § 922(g)(1), which provides that it is "unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to receive any firearm or ammunition."

Appellant pleaded not guilty and moved to dismiss his indictment on the ground that the Government failed adequately to allege the materiality element of the charged offense. United States v. Laboy-Torres, 2007 WL 2155550, *1 (M.D.Pa. 2007). He asserted that pursuant to the reasoning of Small v. United States, 544 U.S. 385, 125 S.Ct. 1752, 161 L.Ed.2d 651, the firearms purchases he attempted would have been lawful under § 922(g)(1) because his Puerto Rican conviction was entered by a "foreign" court excluded from the statute's reference to "any court." Id. at *2; see Small, 544 U.S. at 387, 125 S.Ct. 1752 (construing § 922(g)(1) to "encompas[s] only domestic, not foreign, convictions"). As his attempted purchases would have been lawful notwithstanding his Puerto Rican conviction, he argued that conviction was not a fact material to the lawfulness of each attempted purchase. 2007 WL 2155550, at *2. In the absence of materiality—an element necessary for conviction under § 922(a)(6)appellant contended that his indictment was legally deficient and had to be dismissed. Ibid.

The District Court denied his motion, rejecting the premise upon which it was based. The court concluded that appellant's Puerto Rican conviction was a "domestic" conviction under Small, and that appellant's attempted purchases thus were prohibited by § 922(g)(1). Id. at *2-*3. In light of this conclusion, appellant's contention that his omissions were immaterial—and that his indictment under § 922(a)(6) thus was legally insufficient— could not succeed.

Appellant then pleaded guilty to one count of the indictment, on the condition that he could appeal the District Court's denial of his dismissal motion. After sentencing,2 he filed the instant appeal which presents a single issue. Specifically, appellant challenges only the District Court's conclusion that his Puerto Rican conviction was a "domestic" conviction under § 922(g)(1) and Small. We have jurisdiction to consider his timely appeal under 28 U.S.C. § 1291, and we review the District Court's legal conclusion de novo. United States v. Myers, 308 F.3d 251, 255 (3d Cir.2002).


A review of the principles that animated the Supreme Court's decision in Small demonstrates that decision's inapplicability to Puerto Rican convictions. Put simply, Puerto Rican convictions lack the characteristics central to the Court's treatment of foreign convictions. In the absence of these characteristics, there is no basis to extend the reasoning of Small to the courts of Puerto Rico. Moreover, precedent and principle counsel in favor of treating Puerto Rican courts as "domestic" courts for purposes of § 922(g)(1). We thus conclude that the District Court properly included Puerto Rican convictions among the predicates that trigger § 922(g)(1)'s prohibitions.


In Small, the Supreme Court considered whether a Japanese conviction qualified as a predicate conviction under § 922(g)(1). The Court began its analysis with "the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application." Id. at 388-389, 125 S.Ct. 1752. "[A]lthough the presumption against extraterritorial application d[id] not apply directly" because Small did not concern the applicability of a United States law to foreign conduct, the Court nonetheless reasoned that "a similar assumption [was] appropriate," id. at 389, 125 S.Ct. 1752, when construing the statute's use of the phrase "any court." The fact that the statute would be presumed not to prohibit conduct that occurs in Japan predisposed the Court similarly to presume that Congress did not intend Japanese convictions to serve as predicates for the criminalization of conduct that occurs in the United States. Ibid.

The Court found the propriety of this presumption reinforced by three "important ways" in which "foreign convictions differ from domestic convictions." Ibid. First, foreign laws may prohibit "conduct that domestic laws would permit, for example, ... engaging in economic conduct that our society might encourage." Ibid. (citing Russian laws criminalizing "Private Entrepreneurial Activity" and "Speculation," and Cuban laws forbidding propaganda that incites against the social order, international solidarity, or the communist state). Second, a foreign legal system may lack the safeguards necessary to ensure that the convictions it produces are consistent with American notions of fairness, most notably, the guarantee of due process. Id. at 389-90, 125 S.Ct. 1752 (citing a legal regime that additionally fails to guarantee equal protection under the law by providing that "the testimony of one man equals that of two women"). Third, foreign convictions may criminalize "conduct that domestic law punishes far less severely." Id. at 390, 125 S.Ct. 1752 (citing a provision of Singapore's law that authorizes imprisonment for up to three years for an act of vandalism). In light of these differences, the Court concluded that convictions in foreign courts of crimes punishable by imprisonment for a year or more "less reliably identif[y] dangerous individuals for the purposes of U.S. law." Ibid.

The Court "consequently assume[d] a congressional intent that the phrase `convicted in any court' applie[d] domestically not extraterritorially." Id. at 390-91, 125 S.Ct. 1752. It found no reason in the statutory language, context, history, or purpose of § 922(g)(1) to depart from this assumption. Id. at 391-94, 125 S.Ct. 1752.

Appellant's attempt to extend the reasoning of Small to Puerto Rican convictions fails where it must begin. As explained, the Small Court's analysis firmly was rooted in the presumption against the extraterritorial application of federal laws. However, the opposite presumption applies to Puerto Rico;...

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