Two criminal law rulings
on Apr 26, 2005 at 10:01 am
The Supreme Court ruled 5-3 on Tuesday that conviction in a foreign court — in this case, in Japan — is not the kind of conviction which U.S. law treats as a basis for denying an individual a right to possess a gun.
The law at issue in Small v. U.S. (03-750) makes it a crime to possess a gun if that individual has been convicted in “any court.” “We hold that the phrase encompasses only domestic, not foreign, convictions,” Justice Stephen G. Breyer wrote for the Court.
Breyer said it was likely “that Congress, at best, paid no attention to the matter.” Congress, he added, generalLy legislates with domestic concerns in mind. He also said there could be enforcement problems in including foreign court convictions, because foreign convictions are different in significant ways and courts might have to find ways to “weed out inappropriate foreign convictions.”
In addition, Breyer said the Court’s conclusion was reinforced by data showing that, since 1968, “there have probably been no more than 10 to a dozen instances in which a foreign conviction has served as a predicate for a felon-in-possession prosecution.”
The case involved Gary Sherwood Small, a Pennsylvanian who had been convicted in Okinawa, Japan, of violating Japan’s gun control law and its customs law. Later, he bought a handgun in a gun shop in Pennsylvania, and he was pleaded guilty on condition that he could appeal the foreign conviction issue. He lost in the Third Circuit, and thus faced the prospect of eight months in prison.
In the only other decision issued Tuesday, the Court decided by a 5-4 vote that a plot to defraud a foreign government of tax revenue violates the U.S. federal wire fraud law.
“Because the plain terms [of the statute] criminalize such a scheme, and because the construction of the wire fraud statute does not derogate from the common-law revenue rule, we hold that” a conspiracy to defraud a foreign government of taxes is covered, Justice Clarence Thomas wrote for the majority in Pasquantino v. U.S.<(03-725). (The "revenue rule," under common law principles, generally bars courts from enforcing the tax laws of other nations.) Three men were convicted of wire fraud for their role in large-scale liquor smuggling that evaded stiff Canadian import taxes on U.S. liquor. Their appeal relied heavily upon the "revenue rule." Justice Thomas said that this prosecution "creates little risk of causing international friction through judicial evaluation of the policies of foreign sovereigns" -- the problem on which the revenue rule was based. The Executive Branch brought this case, according to the opinion, and it thus could be assumed that "the Executive has assessed this prosecution's impact on this nation's relationship with Canada, and concluded that it poses little danger of causing international friction." Further decisions in pending cases are expected on Wednesday.
