united states versus mar twenty two excludes foreign convictions and applies most appropriately to convictions in domestic courts we believe domestic courts language should be construed as compazine federal courts st but i believe in the heart of the issue is that when you're dealing with puerto rico as congress has in the past in other places they're pretty specific if it's puerto rico the canal zone the district of columbia some other territory they say hey if we're going to have interstate commerce that includes puerto rico we're going to treat him like a state for this thing but they didn't say anything about this and that routinely there put a rico is left out specifically and we've had to decide are they how how does a certain statute apply does seem to be an ambiguity in terms of extending a statute there where congress hasn't told us to they do it specifically when they want to and it seems a little little unfair to somebody i'm still a boy towards the situation to say well the courts can sort of figure it out as they go for this particular provision but not like one for jurisdictional prefer benefits that are accorded people in united states may not apply to puerto rico for certain economic things it's just sort of done haphazardly almost and without any reason through how are we to decide if you were to write the opinion surprise me to find that you didn't think so well i must admit that i first got the case of low surprise myself when i read small i said it is thing doesn't seem to fit you know so and to take a little closer look at the at the facts of it and we couldn't we couldn't find a way to make fit one way or the other but then again if you're looking at the rule of lenity and you're arguing that that that should apply still you look at the language and the language says any court so your default position over or local courts and and not something in and some of the aspects of the puerto rican justice system aren't similar to ours for instance the fact that mr boyd torres went to jail down there without a lawyer without being present that's a little bit different than what happens here in the united was on the panel and we analyzed the system and the other country and we went to great pains and small basically says you don't do that more we're going to say domestic and so isn't the job to decide whether p says it's got its own judicial so they come up with their own local laws they don't have a lot of say by the way in the statutes that are being applied in this particular case they don't get to vote for president they don't have anybody in congress sitting there legislating whether something should be extended to puerto and a lot of this is reflected in the very forms that are appended to the government's brief if you take a look at those forms where mr boyd torres is asked to fill out they were were you born he doesn't put city puerto rico state puerto rico puerto rico over the foreign country thing and he gets to the bottom of the form he starts taking a look at that he starts to check the box it says i'm not a u s citizen i'm a citizen of puerto rico and somebody or maybe does it himself correct them and so we've got to check this other box on the other side and then the next time he goes into get a farm he puts puerto and states so even the department of justice for those don't actually make make provision for puerto rico you know it's our position that given it's a relative autonomy status in a wad of local matter and given the lack of clarity surrounding the scope of the statute th good morning that please the court my name is ted smith on assistant united states attorney for the middle district of pennsylvania stationed in harrisburg i represent the united states who is the  this case my colleagues back in harrisburg jokingly suggested i begin the oral argument by asking the court to remember the maine but remembering the maine historians tell us was a  contrivance to get us into the war that made puerto rico part of the united states when in fact puerto rico now is very much a part of the united states and no contrivances needed to make it so  it is not a state but neither is the district of columbia yet convictions in the district of columbia are considered domestic convict opus as of nine twenty two g b my opponent by the way is also my friend but i'll refer to him as my opponent points out that the commonwealth of puerto rico is a separate sovereign from the united states for purposes of double jeopardy analysis but so is the commonwealth of pennsylvania a separate sovereign for purposes of double jeopardy analysis yet pennsylvania convictions are considered qualifying or disqualifying convictions under nine twenty two g my opponent cites united states versus small for the proposition that the phrase convicted in any court as used in nine twenty two g one refers only to domestic convictions and of course we accept that but small is addressing the question of whether a japanese prior conviction qualified puerto rico is a part of the united states in a way that japan is not in a way that mexico cuba coast or rick of the dominican republic or for that matter canada or great britain are not after all  as much due process as there is in canada or great britain a canadian citizen cannot go to the united states district court for the district of canada to challenge  whether he was afforded due process by the canadian courts and he can appeal the decision of the united states district court for the district of canada or the district of great britain to the united states court of appeals for the first circuit or the third circuit or the ninth circuit or the thirteenth circuit because those are truly sovereign nations and the difference is that it's the united states constitution that guarantees due process says citizens and for court systems of the states and also the court system in puerto rico many countries what we call the the enlightened liberal democracies offer similar due process protections but the united states constitution doesn't guarantee those rights which means the citizens of those countries can't come into a united states court and insist that the rights  enforced puerto ricans can people from other countries who are convicted in a puerto rican court can challenge that conviction directly to the first circuit they can do so after the conviction is otherwise final puerto ricans are american citizens just try telling a puerto rican she's not an american i did it once when i was young i was working with a court interpreter as an assistant d a and in doffing county she was helping me prepare a spanish speaking crime victim to testify at trial and i asked the interpreter where she was from and she said puerto rico and i said oh i thought you were an american and she responded very forcefully i am just try telling a puerto rican that they're not an american puerto ricans unlike most foreigners don't need passports to travel between puerto rico and the mainland and when they do need a passport for instant to instance to travel to canada or great britain it's a u s passport that they carry puerto rico has consented have its foreign policy conducted by the united states and that certainly i think is a very very real distinguishing factor between a truly sovereign nation and and a nation  possession of the united states if its foreign policy is conducted on its behalf by the united states it's part of the united states i think the decisions of the united states court of appeals for the first circuit should carry great weight because all that's the circuit you know they're the experts on puerto rico just as a circuit would be the experts on the virgin islands so i think the fact that a puerto rican conviction counts as a predicate conviction for the career offender guideline under the guidelines which has much much of more restrictive language than what we're dealing with here should certainly count for a lot in this case the fact that puerto rican  judgments civil war criminal are entitled to full faith and credit not just fed in the in the united states district court for puerto rico but the judgments of the puerto rican territorial courts are entitled to full faith and credit  any by the courts the courts of the states of the united states and also the united states courts themselves puerto ricans and this is perhaps the most important thing  enjoy the same federal constitutional protections in puerto rican courts not just in federal courts in puerto rico that defendants in the courts of the states enjoy and that really is one of the concerns that was articulated by the supreme court in small when it held that foreign convictions did not count certainly japan even offers due process protections very similar to ours but many countries courts do not as the court in small pointed out there are legal codes where the testimony of one man is equal to that of two women there are substantive criminal codes ambiguity here i mean when you look at the small decision the dissent says any court means any court majority says not so fast we look at the application domestically not extra territorially and therefore we read i language of the statute and so certainly he was not goaded into thinking that a conviction in puerto rico by the language of the statute didn't count and he was entitled to give a no answer to that question so to the extent therefore that there is an ambiguity it is an ambiguity created by the court's decision in some small line of thought he's got this form in the united states and it says any court you might think oh well clearly i'm in the united states and  in my days as an assistant d a and often county i might a wondered because there are many people on the mainland who don't think of puerto rico as part of the united states and think of as a foreign country as i did working with an interpreter but this defendant is puerto rican and puerto ricans know that puerto rico is part of the united states they know they don't have to have a passport to travel foreign passport to travel between puerto rico and the united states they know that they carry an american passport when they do use a passport so i certainly don't think this defendant was fooled by the statute you know i you know a footnote i guess shared some of the dissenters criticism of the supreme court's decision in small but when i look at small i realizing among the people may have differences in the way to apply the constitution which i think was the problem with the dissenters there  but the fact is small was all about drawing lines and where do you draw the line and the only place you can draw it as a cordon small for the purposes this of this statute as the court pointed out in small was where it did drop because if you drew it anywhere else it was going to create all kinds of anomalies under the statute and i think that's perhaps the most important part of the court the majority's reasoning in in small is the anomalies that would be created  by interpret ing any court to mean absolutely any court from any country and the and the court in small looked at tried to look at congressional intent intent suggests that by using the words any court they were trying to resolve the problem created by the second circuit's interpretation of the predecessor statute that said in a court of the united states or any state or political subdivision ok and they said any court but then if you look at the legislative history the court and the supreme court in small was satisfied that congress just had not really thought about the question of whether foreign convictions were and so they they decided the way they did there was a sharp dissent but small as the law but the law as articulated by small is that domestic convictions count and a puerto rican conviction is as rico is not part of the united states or that he or she is not an american i'm inclined to invite the court to ask any questions that might have if there are none on and i certainly know that if there are none i would ask permission to sit down briefly i don't know that i would characterize a domestic conviction in puerto rico as like apple pie i mean it looks a lot different to me in fact it took quite a few of us a long time to figure the thing out it was all in spanish and we got around to like sentencing and we thought we thought the guy had been convicted of possession with intent to deliver a large amount of drugs and only after we got a couple of interpreters to look at it that we figure out hey it was a small amount of marijuana here just a possession offense so that there are a lot of distinct differences between a puerto rican conviction and it certainly doesn't look like