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2 Rulings Reveal Views on Effects Of Overseas Law

High Court Debates Whether Foreign Rulings Apply Here

By Charles Lane
Washington Post Staff Writer
Wednesday, April 27, 2005; Page A02

The Supreme Court ruled yesterday that the government may not deny a U.S. citizen gun ownership because of a criminal conviction abroad -- but may prosecute one for plotting to cheat a foreign government out of tax revenue.

The twin rulings shed indirect but revealing light on justices' views of a hot topic: the interaction between U.S. and foreign law.

In Small v. U.S., No. 03-750, a five-justice majority said Gary Sherwood Small was wrongly prosecuted by the Justice Department for buying a pistol after having been found guilty of gun-smuggling in Japan.

Federal law bars gun possession by those convicted of a serious offense "in any court." But the court, in an opinion by Justice Stephen G. Breyer, said the phrase does not include foreign courts.

In Pasquantino v. U.S., No. 03-725, five justices ruled that the Justice Department properly prosecuted three men for wire fraud after they used U.S. phone lines to plan to smuggle liquor into Canada, avoiding hefty Canadian excise taxes.

A common-law rule bars using U.S. courts to enforce a foreign government's tax laws, but in an opinion by Justice Clarence Thomas, the court said the real issue in the case was not collecting Canada's taxes, but preventing Americans from defrauding Canada.

The court is embroiled in internal debate over the applicability of foreign court rulings and other international legal authorities to interpretation of the Constitution.

Several justices, most prominently Breyer and Ruth Bader Ginsburg, favor drawing on such sources for nonbinding input, arguing that it improves the court's decisions and helps foreign courts establish their own legitimacy. Thomas and Justice Antonin Scalia oppose the use of foreign law, arguing that the Supreme Court is competent only to rule on the U.S. Constitution and statutes.

The debate has spilled over into Congress, with conservative Republicans condemning the court's use of international law in its recent ruling abolishing the death penalty for 16- and 17-year-old juvenile offenders.

Yesterday's cases were statutory, not constitutional, turning in large part on the word "any."

In Small v. U.S., Breyer interpreted "any court" to exclude foreign courts, because there is an assumption that Congress intends to legislate with respect to domestic concerns and the rest of "the statute's language does not suggest any intent to reach beyond domestic convictions."

Dissenting in that case, Thomas replied, in essence, that "any" means "any" -- a point he stressed writing for the majority in Pasquantino v. U.S., where he argued that U.S. laws against wire fraud prohibit "any scheme" to cheat someone out of money. That includes a scheme to cheat a government out of revenue, he wrote.

But Breyer's reluctance to ban gun ownership based on foreign convictions also reflected his view that such convictions are less reliable indicators of a gun purchaser's dangerousness.

He noted that dictatorships use their courts to punish dissent and other offenses that would not be recognized as such in the United States. This showed that Breyer's willingness to accept and apply the legal determinations of courts abroad is not unlimited.

It was Thomas, arguing for a strict reading of "any," who insisted that "foreign convictions indicate dangerousness just as reliably as domestic convictions" and should be recognized.

In Pasquantino v. U.S., Ginsburg, joined by Breyer as well as Scalia and Justice David H. Souter, faulted the majority for approving the use of U.S. wire fraud law "essentially to enforce foreign tax law."

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