Justices Side With Gun Owner Who Concealed Arrest in Japan
NY Times | DAVID STOUT | April 26, 2005
WASHINGTON, April 26 - When Gary Small walked into a sports store in his hometown of Delmont, Pa., to buy a pistol, he probably did not see himself as the central figure in a Supreme Court case. But that is what he became.
Before walking out of the store with his 9-millimeter pistol on June 2, 1998, he filled out the mandatory federal form. It asked whether he had ever been convicted "in any court" of a crime punishable by a year or more in prison. Fatefully, he answered "no."
In fact, Mr. Small had never been convicted of any crime - in the United States. He had, however, run afoul of the law in Japan. The Customs authorities there became suspicious of him in 1992, when he shipped three electric water heaters from the United States to Japan, supposedly as gifts.
When he picked up the third water heater at the Okinawa airport, the authorities opened it and found two rifles, eight pistols and more than 400 rounds of ammunition, according to court papers. Mr. Small was convicted in Japan in 1994 of smuggling guns and sentenced to five years in prison there.
Paroled in the spring of 1998, he returned to the United States and his rendezvous with legal history.
His conviction in Japan turned up in a routine survey by the federal authorities of purchases at gun dealers. Not long after he bought the 9-millimeter pistol, a search of his southwestern Pennsylvania home, business premises and car turned up another pistol and more than 300 rounds of ammunition.
Indicted in 2000 on charges of making false statements and for possessing guns and ammunition as a convicted felon, Mr. Small moved through his lawyers to have the charges thrown out, arguing that the term "any court" meant any American court.
A federal district court rejected his argument, and Mr. Small entered a conditional plea of guilty, receiving an eight-month sentence but remaining free on bail while he appealed the district's court's refusal to dismiss the charge. The United States Court of Appeals for the Third Circuit, based in Philadelphia, agreed with the district court.
But today, the Supreme Court sided with Mr. Small, ruling 5 to 3 that the phrase "convicted in any court" applies only to convictions in the United States. "Congress ordinarily intends its statutes to have domestic, not extraterritorial, application," Justice Stephen G. Breyer wrote for a majority that also included Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter and Ruth Bader Ginsburg.
To include foreign convictions, the majority reasoned, would raise the possibility of tainting a person who had been caught up in a legal system lacking American standards of fairness. Singapore imprisons people for up to three years for vandalism, the majority noted by way of example.
In dissent, Justices Clarence Thomas, Antonin Scalia and Anthony M. Kennedy said, among other things, that "any" means what it says. "Indisputably, Small was convicted in a Japanese court of crimes punishable by a prison term exceeding one year," Justice Thomas wrote. "The clear terms of the statute prohibit him from possessing a gun in the United States."
As for foreign court procedures, the dissenters said, the majority "constructs a parade of horribles" and "cherry-picks a few egregious examples" like the Singapore vandalism law.
"And it is eminently practical to put foreign convictions to the same use as domestic ones," the dissenters said. "Foreign convictions indicate dangerousness just as reliably as domestic convictions."
Chief Justice William H. Rehnquist did not take part in the case of Small v. United States, No. 03-750, which was argued last fall while he was undergoing treatment for cancer.
The Supreme Court accepted Mr. Small's case because federal circuit courts had come to different conclusions on the relevance of foreign convictions in cases like his. Today, the five justices in the majority resolved those conflicts - while noting that theirs might still not be the last word.
Even though they held that the phrase "convicted in any court" applies to any domestic court, the majority said, "we stand ready to revise this assumption should statutory language, context, history or purpose show the contrary."
"Congress, of course, remains free to change this conclusion through statutory amendment," the majority added pointedly.
