Foreign criminal convictions and US gun laws?

[Owen Sparks]

If a person was convicted of a crime equivalent to a felony in a foreign country, or is considered a fugitive for fleeing that country to avoid prison, does it have any bearing on his ability to legally own a firearms here?

Edited in:
The reason I ask is that I met a man who had been convicted of smuggling and possessing contraband with the intent to distribute in a foreign country. He was convicted and was looking at a ten year prison sentence. His lawyer arraigned to bribe the guards so that he could escape during transport (another serious criminal offense) then he fled the country illegally. He is still wanted and if he ever goes back he will be subject to at least 20 years of incarceration. His story is much like the 1977 movie Midnight Express.

Can this man legally answer "NO" to questions b, c and d on the 4473 form being that he is a convicted fellon and a fugitive from justice?

 

[Zoogster]

I believe it does make you prohibited.
I know of several examples were people are prohibited for foreign crimes, but I don't know the extent of its application.

Which is a wierd legal area considering even in our own states what is a felony in some states is a misdemeanor in others.
Being held to the standards of another country including those with no right to jury trial and an entirely different court system than our own country to the extent of removing rights seems strange.

I wonder what the extent of being held to foreign laws is.
Some nations have felonies that are not even illegal here.



People accidentally crossing into Mexico with some overlooked ammunition have been found guilty of a felony in Mexico and become prohibited persons in the United States as a result.
It used to be even easier when the border was wide open and passports were not used. Walking or driving across for things as mundane as grabbing a quick bite to eat were common some years ago.



But what foreign crimes count? Do crimes that are not crimes in the USA count? What if you could have recieved 3 years for not wearing your Burka or head scarf as a woman. Is that a felony that strips you of your rights in the USA because it clearly was a crime punishable by over a year (and over 2 years if it was a misdemeanor) and met the definition of felony?
To say nothing of the fact that in many nations you are guilty until proven innocent, so being found guilty can be quite easy even if you are not guilty.
I can certainly see many Americans doing what they could to go through the formalities fast and get back to the USA. Which may include being found guilty instead of trying to fight it out for years in some system worse than our own.
To then be a prohibited person in the US...

 

[Owen Sparks]

Does it really matter what he did? He knowing BROKE THAT NATIONS LAWS and then fled illegally.

 

[Zoogster]

There was a few cases were it was done.



Doing some more research seems to indicate it may no longer be done?
http://www.criminalattorney.com/news/foreign-felony-convictions-applied-in-domestic-courts/

How Are Foreign Felony Convictions Applied in Domestic Courts?

August 22nd, 2006

By: Collin McKibben, Attorney at Law & Helen Kim

Federal Interpretation

In 1825, the United States Supreme Court stated that courts of no country shall execute the penal laws of another. Today, this principle has been extended to penal judgments as well. However, while the principle seems to mean that U.S. courts shall not directly enforce foreign penal laws or judgments, U.S. courts may choose to rely on foreign penal laws or judgments where applicable.

In Small v. United States, 544 U.S. 385 (2005), the Supreme Court evaluated the language of 18 U.S.C.S. 922(d)(1) which states: It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year. Specifically, the Court evaluated whether the statutory reference convicted in any court included a conviction entered in a foreign court. The Court looked to the commonsense notion that Congress generally legislates with domestic concerns in mind, Id., at 388, and the Supreme Court adopted a presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial application. Id. Although Small did not involve an extraterritorial application of U.S. law, the Court used a similar assumption to evaluate the scope of the statutory reference, convicted in any court. The Court noted that foreign penal convictions differed from domestic penal convictions in many ways, thereby creating an inconsistency in the American notion of fairness. Id., at 389. Hence, the Court held that the phrase convicted in any court referred only to domestic courts and not to foreign courts. Id., at 394.

The article continues to give a different California interpretation, and that California may or may not choose to count foreign felonies under state law.

However it seems to state that federally foreign felony convictions don't count.

However some people have in the past been stripped of their rights for foreign convictions.

That article is dated 2006.
A guy named Bean in Texas had some trouble in 2002 after a felony conviction in Mexico for some shotgun shells.
What makes him different is it appealed to a higher district court and was found in his favor.
The ATF would not consider granting his firearm rights because felony conviction appeals were defunded.
The court found in his favor because I believe by refusing to hear his case they were not meeting some requirement to review in the law.
Then it made it to yet a higher Court that decided against him, the Supreme Court of the US:

http://www.gunweek.com/2003/bean0101.html

A federal circuit court had ruled that it had the power to restore Bean’s rights, and a higher court concurred after the government appealed. Bean then appealed his case to the US Supreme Court.

The Supreme Court decision went against him as the article first states:

US Supreme Court ruled that convicted felons must go through a federal agency to have their gun rights restored, even though that agency has been prohibited by Congress from processing such requests since 1992.

But that was a long drawn out process, why did he have to go through the process anyways if the foreign conviction didn't count?
He was not convicted of anything in the US, and his felony was in Mexico.

So perhaps that ruling in 2005 is the most current and changed things yet again (back to 1825 interpretation according to the article), so now foreign convictions generally do not count.

 

[alsaqr]

This Texas gun dealer lost his livelihood when he took ammo into Mexico. He also lost his court case.

http://www.freerepublic.com/focus/f-news/804237/posts

................................................................................................................................

The case involved Texas gun dealer Thomas Bean, who was convicted in a Mexican court of importing ammunition into Mexico. As a result, he was barred from possessing firearms or ammunition, losing his livelihood.

Bean applied to the Bureau of Alcohol, Tobacco and Firearms for relief. The federal agency returned the application unprocessed, saying it was barred from spending any funds to investigate or act on such applications.

..............................................................................................................................

Justice Clarence Thomas (news - web sites) said the appeals court was wrong. Under the law, judicial review was allowed only after an actual denial by the ATF, Thomas said.

He said judicial review cannot occur without a decision by the agency. Thomas rejected Bean's argument that the government's inability to act amounted to a denial of his request.

 

[vaherder]

Interpol

What does the Interpol check show? Since country wasnt named hard to give info. Is there an active extradiction warrant for him in this country?

Did the country ever pursue extradiction? What is the US's relationship with this country?

Dude can always claim I thought you just meant in the US!

 

[Midwest]

Does Interpol contact NICS?

Can NICS access Interpol's database?

If so, does NICS update their database to include Interpol on a regular basis?

 

[bikemutt]

Does Interpol contact NICS?

Can NICS access Interpol's database?

If so, does NICS update their database to include Interpol on a regular basis?

A guy I know has this problem, an Interpol record. He says he's had a mixed bag of being denied and proceeded, lately it's denied. When he asked why on the last one they said it was because of the Interpol record. From what I've been told, it was a for an adolescent drug conviction in North Africa, like 50 years ago.

 

[Zoogster]

Did the other posters read my post?

Bean had that problem before the more recent 2005 court decision I cited.


The 2005 Small v. United States is more recent, so what happened with Bean shouldn't matter. Unless a more recent case has changed things.

The Court looked to the commonsense notion that Congress generally legislates with domestic concerns in mind, Id., at 388, and the Supreme Court adopted a presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial application.

the Court held that the phrase convicted in any court referred only to domestic courts and not to foreign courts. Id., at 394.

They are referencing the phrase "convicted in any court of a crime punishable by....." the federal definition of felony and saying it only applies to those within the United States, not foreign courts.



Likewise Bean should have regained his rights under the Small v. United States ruling and should no longer be a prohibited person because the Mexican felony should no longer count as a felony conviction.


That of course does not necessarily mean NICS will work properly, and when asking the government permission to purchase a gun you could still get denied even though legally you should be able to purchase one.

 

[bikemutt]

Going back to the OP, anyone can answer form 4473 as they believe to be correct. The question I suppose, beyond being denied the transfer, is if they might adopt a new felony conviction for lying on the form. I wonder how many applicants have been charged with, and convicted of lying on the 4473?

 

[drsfmd]

Prohibited. Unquestionably.

The question on the 4473 asks "Are you a fugitive from justice?" It doesn't ask from what state or country.

 

[WardenWolf]

Prohibited. Unquestionably.

The question on the 4473 asks "Are you a fugitive from justice?" It doesn't ask from what state or country.

This.

That said, the US may not honor certain laws that are in conflict with our own. For example, if the "smuggled contraband" was a stack of Bibles to a country where religious freedom did not exist, the US would not honor an extradition request in such cases because it would violate the Constitution. Because of this, there *is* something of a grey area. You may be wanted in one country for something the US does not recognize as a crime, and thus it has no effect on your rights here.

 

[Frank Ettin]

...US would not honor an extradition request in such cases because it would violate the Constitution. Because of this, there *is* something of a grey area. You may be wanted in one country for something the US does not recognize as a crime, and thus it has no effect on your rights here.

In theory there can be a number of reasons why a U. S. court would not honor an alien criminal charge, conviction or judgment. The tricky part is that you really can't know for sure in a particular case without a U. S. judicial determination on the particular question.

 

[Owen Sparks]

So if you did not know for sure how would you answer the questions on the 4473 form?

 

[bikemutt]

Well, is an applicant truly does not know the answer to one or more questions on 4473, I suppose it's reasonable to assume one's innocence unless proven otherwise. Since there's no "I don't Know" box to check, the only other choice is to answer in the negative (other than 11.a). Since answering yes to any of them means the transfer will be denied, what would be the point of submitting the form?

 

[Frank Ettin]

Well, is an applicant truly does not know the answer to one or more questions on 4473, I suppose it's reasonable to assume one's innocence unless proven otherwise...

Of course what would really matter if you were charged with making a false statement on a 4473 is whether or not a judge rules that it's reasonable.

Some questions are complex enough to warrant proper legal advice. This is probably on e of those questions. The OP's acquaintance should engage his own qualified lawyer rather than looking for legal advice from strangers in cyberspace.

 

[BSA1]

Of course the only real way to know the correct is to read all of the BATF regulations, not the little bit that is on the application. Of course good luck getting to see those regs.

If it was me I would answer no especially after the comments about Small. Third world countries are well known for corruption and in some (many?) such as the Middle East you can be arrested for simply being an American. After the State Department intervenes )maybe) and your family pays a large sum for your release (extoriation) after a couple of years in prison you are released after being found guilty of some trumped up charge.

 

[BSA1]

Fugitive From Justice?

What is a Fugitive form Justice?

Lets say I travel NYC, rent a car and get several parking tickets which in New York probably would easily reach $2,000. Since I am only visiting I say screw them on paying the tickets and return to my home state.

Soon a warrant is issued for arrest while the interest on the tickets pile up.

I refuse to pay 'em cause I am never going back

Am I a fugitve?

 

[Frank Ettin]

Of course the only real way to know the correct is to read all of the BATF regulations, not the little bit that is on the application...

No, the only real way to be able to form a reasonably valid opinion is to do a proper job of legal research, including applicable statutes, regulations, treaties and judicial decisions.

...Of course good luck getting to see those regs....

Nonsense. They're public information and readily available from a variety of sources. They're certainly in every public law library. And here they are right on the Internet. While you're at it, perhaps you'd like to peruse some related statutes or ATF Rulings.

...Third world countries are well known for corruption and in some (many?) such as the Middle East you can be arrested for simply being an American. After the State Department intervenes )maybe) and your family pays a large sum for your release (extoriation) after a couple of years in prison you are released after being found guilty of some trumped up charge.

How about some evidence to support your wild and insulting speculations.

In any case, whether you think the legal systems in other countries are properly constituted is irrelevant. They are sovereign nations fully entitled to function under their particular laws in their particular way -- just as we are.

...Lets say I travel NYC, rent a car and get several parking tickets which in New York probably would easily reach $2,000. Since I am only visiting I say screw them on paying the tickets and return to my home state.

Soon a warrant is issued for arrest while the interest on the tickets pile up.

I refuse to pay 'em cause I am never going back

Am I a fugitve?

Of course in your particular hypothetical, the rental car company would have paid the tickets before the warranted issued. It would then have charged your credit card or sued you for reimbursement.

But in general, fleeing to avoid the service of a warrant for your arrest makes you a fugitive.

 

[BSA1]

Nonsense. They're public information and readily available from a variety of sources. They're certainly in every public law library. And here they are right on the Internet. While you're at it, perhaps you'd like to peruse some related statutes or ATF Rulings.

Naw. I am not in that situation and am not a lawyer representing these type of cases so I really don't care. However having worked for a large government law enforcement agency there are policies and procedures that will not be released to the public.

How about some evidence to support your wild and insulting speculations.

Oh come now. Get real. There are articles in the news frequently about American being arrested and detained for months and years without charges ever being filed. I can think of recent incidents in Iran and Eygyt.

The State Department regularly issues travel advisory warnings to Americans traveling abroad.

http://www.jewishexponent.com/article/24422/The_Untold_Story_of_Josh_Fattal/

Sarah Shroud was released after a $500.00 bond was posted.

Josh Fattal and Shane Bauer were convicted and sentenced to 8 years in prison were released on humanitarian grounds on $1 million bail together.

It's not limited to Americans. Here are some more extreme arrests;

2001 – A group of 14 British and Dutch “planespotters” (airplane enthusiasts) were arrested and sentenced to up to 3 years in Greek jail for allegedly committing espionage by photographing military aircraft at an airshow. After a long process, their convictions were finally overturned one year later.

I just love this one. How in the world are you supposed to know the ingredients in another countries food? In 2008 in another recent high-profile case coming out of Dubai, “A Swiss national is serving a four-year jail term after three poppy seeds from a bread roll he ate at Heathrow airport were found on his clothes.”

Further details of the situation are hard to come by, but as this BBC article suggests, while it may be the most “extreme,” it’s not the only occurrence. Even a member of the Pakistani cricket team was held for 19 days and just recently released without charge

 

[Frank Ettin]

...I am not in that situation and am not a lawyer representing these type of cases so I really don't care. However having worked for a large government law enforcement agency there are policies and procedures that will not be released to the public....

Obviously you are not a lawyer. And those internal policies are not regulations. You specifically referred to regulations in your post 18. And internal policies of an agencies will not be used by a court to decide matters.

...There are articles in the news frequently about American being arrested and detained for months and years without charges ever being filed. I can think of recent incidents in Iran and Eygyt....

Nonetheless, those are sovereign nations operating under their laws -- which they are entitle to do. Anyone visiting becomes subject to those laws.

 

[bikemutt]

Of course what would really matter if you were charged with making a false statement on a 4473 is whether or not a judge rules that it's reasonable.

It all comes down to this: "I certify my answers to Section A are true, correct, and complete." I can't see where "I don't know" fits in. Probably best to stick with co2 guns, or lawyer up as Mr. Ettin says

 

[Zoogster]

The Small case where they explain that Congress is not legislating expecting extraterritorial application likely refers to 'fugitive from justice' as well.

If that is the case then you are not really a 'fugitive' as it applies to the law, even if another nation considers you one.
Now if they are planning to extradite you to that nation, then that may change because the US may see you as a fugitive?

That is a sitaution you would likely want a decent lawyer to review it.


However it would seem that the questions on the form refer to US laws per the Small case, and not things from other nations.

 

[BSA1]

Obviously you are not a lawyer. And those internal policies are not regulations. You specifically referred to regulations in your post 18. And internal policies of an agencies will not be used by a court to decide matters.

I'll let you split the hairs. My agency had rules and regulations, internal management policies and procedures, post orders and posted memorandums. All stem from the same source.

Nonetheless, those are sovereign nations operating under their laws -- which they are entitle to do. Anyone visiting becomes subject to those laws.

The issue seems to be are they codified laws or something pulled out of regilious test or political situation to create a crime to fit after an "arrest" has been made.

Lets not overlook third world countries with barely functioning governments that are prone to being overthrown at any moment and warlords in control of large areas and populations.

 

[Frank Ettin]

I'll let you split the hairs. My agency had rules and regulations, internal management policies and procedures, post orders and posted memorandums. All stem from the same source.

But not all of which had served the same function or had the same significance outside the agency.

Any organization has internal rules, policies and procedures. They are binding only on employees.

A regulatory agency like ATF may adopt regulations. When properly adopted, those regulations have the force of law. In order for a governmental agency's regulation to be thus have the force of law, it must be adopted pursuant to specific statutory authority and within the scope of the statutory authority. It must also have been adopted through a formal rule making process that involves publication of the proposed regulation, including citation to the statutory authority for the regulation and purpose to be served. Public comment is allowed for a period of time, and often public hearings are held, before the regulation in final form is adopted.