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High Court Hears Gun-Carrying Case

March 24, 1998

WASHINGTON (AP) _ The Supreme Court is considering whether drug criminals can receive five additional years in jail for carrying guns if the firearms weren’t readily accessible during their crimes.

Lawyers for three drug traffickers from rural Louisiana and Boston, all of whom are in prison, argued that carrying a gun means having contact with it such as by holding it in handbag or a paper sack.

``We’re asking for the ordinary and plain meaning of carry,″ said Norman Zalkind, a lawyer for Donald E. Cleveland and Enrique Gray-Santana, who were arrested for conducting a drug transaction from their car in Boston in 1994.

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.

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.

``If the gun is being moved from one place to another so it can be used in a drug crime, it is being carried,″ Feldman said.

The arguments prompted a debate over language among the justices.

``You can carry a tune, you can carry a grudge,″ said Justice Antonin Scalia, who said words are usually used to convey specific meanings, not every possible meaning.

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.

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, Frank J. Muscarello, a former police chief of Tickfaw, La., had a loaded revolver 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.

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 were 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.

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

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