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Supreme Court to consider whether a felon in Japan is a felon in U.S.
Westmoreland County man appeals conviction for possessing a firearm
Thursday, November 04, 2004
By Michael McGough, Pittsburgh Post-Gazette
WASHINGTON -- A lawyer for a Westmoreland County man told the U.S. Supreme Court yesterday that his client's conviction for unlawful possession of a firearm should be set aside because the felony conviction that disqualified him from buying a gun took place in a Japanese court.
Several justices reacted sympathetically to the claim by Pittsburgh attorney Paul D. Boas that when Congress outlawed possession of a gun by individuals "convicted in any court" of a serious crime, it had in mind only American courts -- an intention Boas said could be gleaned by references elsewhere in the law and in predecessor statutes to federal or state convictions.
In 2002, Boas' client, former Edgewood police officer Gary Sherwood Small, pleaded guilty on a conditional basis to being a felon in possession of a firearm. Small had been indicted because of his 1998 purchase of a 9 mm handgun.
Small had answered "no" on a federal form asking if he had ever been convicted "in any court" of a crime punishable by more than a year in prison. In fact, Small had been convicted in 1994 in Okinawa, Japan, of smuggling guns into that country inside a water heater shipped from Pittsburgh, and was sentenced to five years in prison and 18 months of parole.
In offering a conditional guilty plea to the U.S. charge, Small reserved the right to challenge the federal law under which he was indicted.
In 2003, the Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled against Small, holding that "foreign convictions generally can count as predicate offenses" under the law barring the possession of firearms by felons.
Small got a more sympathetic hearing yesterday from several members of the Supreme Court.
"I think you make a strong argument that Congress didn't think about this problem," Justice John Paul Stevens told Boas.
When Patricia A. Millett, a lawyer in the U.S. solicitor general's office, argued that "any court" included foreign tribunals, Justice Ruth Bader Ginsburg countered that "we learned in law school that one country can't enforce the criminal judgments of another country," a principle Ginsburg said must have been known to the many lawyers who serve in Congress.
Boas conceded that "there was some sloppy drafting here," but said that if the court viewed the statute as a whole it would agree that "it would be almost absurd" to think Congress intended to count convictions abroad.
Justice Antonin Scalia, who believes in interpreting a law by focusing on its text rather than on Congress' intentions, countered that "the text of the provision supports the government." Scalia added that, when it wanted to, Congress explicitly referred to federal and state courts. That wouldn't be necessary, Scalia said, if "any court" meant "any state or federal court."
The debate over the meaning of the words "any court" -- which sometimes recalled former President Bill Clinton's comment during the Monica Lewinsky scandal that "it depends on what the meaning of the word 'is' is" -- dominated yesterday's argument, but it wasn't the only issue.
Boas suggested that if the United States recognized convictions in Japanese courts, which he said didn't follow American standards of due process, then it might have to recognize foreign convictions for offenses like criticizing a totalitarian government or possessing a Bible in Taliban-era Afghanistan. Boas noted that even Nobel Prize winning author Alexander Solzhenitsyn, who was imprisoned by the Soviet Union, might be unable to buy a gun in America.
Scalia replied that Congress might have been more concerned about keeping guns out of the hands of violent foreigners than about allowing former dissidents to own firearms. "It's tough on Solzhenitsyn that he can't buy a gun," Scalia added, "but he'll get over it."
Boas later said he thought the argument went well and that the justices had recognized that "there are serious problems with the way this statute was written."
Although he was absent yesterday, Chief Justice William Rehnquist has reserved the right to participate in cases argued during his treatment for thyroid cancer. Rehnquist's name was affectionately invoked yesterday by his colleagues, with Scalia prefacing one question by saying: "I'm going to ask a question the chief justice would ask if he were here."
Rehnquist hasn't disclosed which form of thyroid cancer he is suffering from, but descriptions of his treatment have prompted specialists to speculate that he might have been diagnosed with a life-threatening form of the disease. That possibility has fueled speculation that Rehnquist, a Republican appointee, may soon resign from the court, a scenario that gained new adherents yesterday with President Bush's re-election victory.
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(Michael McGough can be reached at [email protected] or 1-202-662-7025.)
Posters Questions: For the significant "value given" aren't we entitled to clearly written legislation?? Re comment from Mr. Justice Stevens, did you ever hear about something or someone "being damned by faint praise"?
Westmoreland County man appeals conviction for possessing a firearm
Thursday, November 04, 2004
By Michael McGough, Pittsburgh Post-Gazette
WASHINGTON -- A lawyer for a Westmoreland County man told the U.S. Supreme Court yesterday that his client's conviction for unlawful possession of a firearm should be set aside because the felony conviction that disqualified him from buying a gun took place in a Japanese court.
Several justices reacted sympathetically to the claim by Pittsburgh attorney Paul D. Boas that when Congress outlawed possession of a gun by individuals "convicted in any court" of a serious crime, it had in mind only American courts -- an intention Boas said could be gleaned by references elsewhere in the law and in predecessor statutes to federal or state convictions.
In 2002, Boas' client, former Edgewood police officer Gary Sherwood Small, pleaded guilty on a conditional basis to being a felon in possession of a firearm. Small had been indicted because of his 1998 purchase of a 9 mm handgun.
Small had answered "no" on a federal form asking if he had ever been convicted "in any court" of a crime punishable by more than a year in prison. In fact, Small had been convicted in 1994 in Okinawa, Japan, of smuggling guns into that country inside a water heater shipped from Pittsburgh, and was sentenced to five years in prison and 18 months of parole.
In offering a conditional guilty plea to the U.S. charge, Small reserved the right to challenge the federal law under which he was indicted.
In 2003, the Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled against Small, holding that "foreign convictions generally can count as predicate offenses" under the law barring the possession of firearms by felons.
Small got a more sympathetic hearing yesterday from several members of the Supreme Court.
"I think you make a strong argument that Congress didn't think about this problem," Justice John Paul Stevens told Boas.
When Patricia A. Millett, a lawyer in the U.S. solicitor general's office, argued that "any court" included foreign tribunals, Justice Ruth Bader Ginsburg countered that "we learned in law school that one country can't enforce the criminal judgments of another country," a principle Ginsburg said must have been known to the many lawyers who serve in Congress.
Boas conceded that "there was some sloppy drafting here," but said that if the court viewed the statute as a whole it would agree that "it would be almost absurd" to think Congress intended to count convictions abroad.
Justice Antonin Scalia, who believes in interpreting a law by focusing on its text rather than on Congress' intentions, countered that "the text of the provision supports the government." Scalia added that, when it wanted to, Congress explicitly referred to federal and state courts. That wouldn't be necessary, Scalia said, if "any court" meant "any state or federal court."
The debate over the meaning of the words "any court" -- which sometimes recalled former President Bill Clinton's comment during the Monica Lewinsky scandal that "it depends on what the meaning of the word 'is' is" -- dominated yesterday's argument, but it wasn't the only issue.
Boas suggested that if the United States recognized convictions in Japanese courts, which he said didn't follow American standards of due process, then it might have to recognize foreign convictions for offenses like criticizing a totalitarian government or possessing a Bible in Taliban-era Afghanistan. Boas noted that even Nobel Prize winning author Alexander Solzhenitsyn, who was imprisoned by the Soviet Union, might be unable to buy a gun in America.
Scalia replied that Congress might have been more concerned about keeping guns out of the hands of violent foreigners than about allowing former dissidents to own firearms. "It's tough on Solzhenitsyn that he can't buy a gun," Scalia added, "but he'll get over it."
Boas later said he thought the argument went well and that the justices had recognized that "there are serious problems with the way this statute was written."
Although he was absent yesterday, Chief Justice William Rehnquist has reserved the right to participate in cases argued during his treatment for thyroid cancer. Rehnquist's name was affectionately invoked yesterday by his colleagues, with Scalia prefacing one question by saying: "I'm going to ask a question the chief justice would ask if he were here."
Rehnquist hasn't disclosed which form of thyroid cancer he is suffering from, but descriptions of his treatment have prompted specialists to speculate that he might have been diagnosed with a life-threatening form of the disease. That possibility has fueled speculation that Rehnquist, a Republican appointee, may soon resign from the court, a scenario that gained new adherents yesterday with President Bush's re-election victory.
--------------------------------------------------------------------------------
(Michael McGough can be reached at [email protected] or 1-202-662-7025.)
Posters Questions: For the significant "value given" aren't we entitled to clearly written legislation?? Re comment from Mr. Justice Stevens, did you ever hear about something or someone "being damned by faint praise"?
