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High Court Hears Gun-Carrying Case

March 23, 1998

WASHINGTON (AP) _ Is someone carrying a gun if he locks it in his car? How about in a briefcase?

The Supreme Court debated such questions Monday in hearing the appeal of drug dealers from Boston and rural Louisiana who each had five years tacked onto their sentences for ``using or carrying″ guns during their crimes.

Robert H. Klonoff argued his client, Frank J. Muscarello, a former police chief of Tickfaw, La., wasn’t carrying a gun even though a loaded revolver was locked in his truck’s glove compartment when he sold eight pounds of marijuana to an undercover federal agent in 1994. Muscarello didn’t mention the weapon during the sale.

The word ``carry″ implies that a person has contact with an object, such as by holding it in a bag or towing it in luggage, Klonoff said.

If the gun was locked in a car trunk, and one criminal asked another whether he was carrying a gun, Klonoff said, ``No one would say, `Yes, I’m carrying a gun.′ He would say, ’No, it’s in the trunk.‴

James A. Feldman, representing the federal government, said ``carry″ has a broader connotation in the federal law, which imposes a five-year prison term on anyone carrying a weapon during any drug-trafficking crime.

``Whether they got it there in a car or got it there in a bag is not of great significance,″ Feldman said.

The case prompted some lively, linguistic questions from the justices.

Justice Stephen Breyer suggested he would be carrying flowers for his wife if he put them in a car trunk _ so why not guns?

``If I’m carrying the plant, why am I not carrying a case of rifles?″ he asked Norman S. Zalkind, the lawyer for Donald E. Cleveland and Enrique Gray-Santana, who were arrested for conducting a drug transaction from their car in Boston in 1994.

Lower courts are split over the scope of the federal law.

Five federal appeals courts have said possession or transporting a firearm in a motor vehicle constitutes ``carrying.″ But three others have said the firearm must be ``immediately accessible″ before someone can get slapped with the extra five years’ prison time.

In the Louisiana case, Muscarello pleaded guilty in May 1995 to distributing marijuana and to ``using or carrying″ a gun in relation to the marijuana crimes.

The gun charge was thrown out after the Supreme Court, in a separate case, narrowed the scope of the federal law. But Muscarello’s extra five years was later reinstated by the 5th U.S. Circuit Court of Appeals, which found that the high court’s decision didn’t apply to drug trafficking involving the use of motor vehicles containing guns.

In the Boston case, Cleveland and Gray-Santana pleaded guilty in July 1995 to possession of cocaine with intent to distribute and to violating the gun law. Each got 15 years in prison. During the crime, firearms were kept in a locked gym bag in the car’s trunk, which could only be opened with the ignition key.

After the high court’s 1995 ruling, both men sought to have the gun convictions thrown out and five years shaved off their sentences.

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