TO: MARTY WEINBERG FROM: KIM HOMAN RE: EPSTEIN/EXTRATERRITORIAL APPLICATION OF §922(g) DATE: SEPTEMBER 24, 2010 I see no indication that 18 U.S.C. §922(g) has ever been applied extraterritorially to possession of a firearm by a felon in a foreign country, and there is every reason to believe that it would not be so applied. In Small v. United States, 544 U.S. 385 (2005), the Supreme Court considered the extraterritorial applicability of the "convicted in any court" language of §922(g)( I ) and held that foreign felony convictions do not subject defendants to prosecution under the felon-in-possession statute. In reaching that conclusion, the Court discussed the presumption that Congress ordinarily intends the statutes it enacts to have only domestic application: In determining the scope of the statutory phrase we find help in the "commonsense notion that Congress generally legislates with domestic concerns in mind." Smith v. United States, 507 U.S. 197, 204, n. 5, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993). This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application. See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949); see also Palmer, supra, at 631 ("The words `any person or persons,' are broad enough to comprehend every human being" but are "limited to cases within the jurisdiction of the state"); EEOC v. Arabian American Oil Co., 499 U.S. 244, 249-251, Ill S.Ct. 1227, 113 L.Ed.2d 274 (1991). That presumption would apply, for example, were we to consider whether this statute prohibits unlawful gun possession abroad as well as domestically. And, although the presumption against extraterritorial application does not apply directly to this case, we believe a similar assumption is appropriate when we consider the scope of the phrase "convicted in any court" here. Id. at 388-89 (emphasis added). Thus, there is a