FSMC, TITLE 11.  CRIMES
 
 
Chapter 1:  General Provisions

101.     Title.
102.     Applicability to crimes committed before and after effective date.
103.     Jurisdiction of the Federated States of Micronesia.
104.     Definitions.
105.     Statute of Limitations.
106.     Venue.
107 .     Defenses.
108.     Customary law.
109.     Severability.
110.        Effective date.

Editor's note:  Former chapter 1 of this title on General Provisions was repealed in its entirety by PL 11-72 1.  This new chapter 1 was enacted by PL 11-72 2 and is part of the Revised Criminal Code Act.

      101.  Title.
     This act shall be known and cited as the "Revised Criminal Code Act".

Source:  PL 11-72 3.

Case annotations:  Nat'l Criminal Code places in the FSM Supreme Court exclusive jurisdiction over allegations of violations of the Code.  No exception to that jurisdiction is provided for juveniles, so charges  of crimes leveled against juveniles are governed by the Nat'l Criminal Code.  FSM v. Albert, 1 FSM Intrm. 14, 15 (Pon. 1981).
 
To dismiss litigation against juvenile defendants for lack of jurisdiction would be contrary to the Nat'l Criminal Code despite the fact that the Code makes no reference to charges against juveniles or the Juvenile Code.  FSM v. Albert, 1 FSM Intrm. 14, 15 (Pon. 1981).

Fact that Congress repealed many provisions of title 11 of the TTC by implication does not lead to the conclusion that all provisions of title 11 are repealed.  FSM v. Boaz (II), 1 FSM Intrm. 28, 29 (Pon. 1981).

Since nat'l gov't does not have major crimes jurisdiction over Title 11 TTC assaults calling for imprisonment of no more than six months, the repealer clause of the Nat'l Criminal Code would not appear to repeal those sections.  FSM v. Boaz (II), 1 FSM Intrm. 28, 30 (Pon. 1987).

It is doubtful that Congress would have the power to require that all criminal prosecutions be in the name of the Federated States of Micronesia.  FSM v. Boaz (II), 1 FSM Intrm. 28, 31 (Pon. 1981).

Since the Nat'l Criminal Code has defined major crimes as those calling for more than three years. imprisonment, this major crimes provision could not be relied upon as authority for congressional action making the FSM a party to all criminal proceedings. FSM Const. art. IX, 2(p).  FSM v. Boaz (II), 1 FSM Intrm. 28, 32 (Pon. 1981).

All elements of a crime need not themselves be criminal in order for the combination of those elements to be criminal.  FSM v. Boaz (II), 1 FSM Intrm. 28, 33 (Pon. 1981).

Familial relationships are an important segment, perhaps the most important component, of the custom and tradition referred to generally in the Constitution FSM Const. art. V, art. XI, 11, and more specifically in the Nat'l Criminal Code.  11 FSMC 108, 1003. FSM v. Ruben, 1 FSM Intrm. 34, 40 (Truk 1981).

Where FSM Supreme Court has jurisdiction over a violation of the Nat'l Criminal Code, it cannot then take jurisdiction over a non-major crime, which arose out of the same transaction and formed part of the same plan, under a theory of ancillary jurisdiction.FSM v. Hartman, 1 FSM Intrm. 43, 44-46 (Truk 1981).

The repealer clause of the Nat'l Criminal Code repealed those provisions of Title 11 of the Trust Territory Code above the monetary minimum of $1,000 set for major crimes. Where the value is below $1,000, section 2 does not apply because it is not within the national court jurisdiction. FSM v. Hartman, 1 FSM Intrm. 43, 46 (Truk 1981).

Title 11 of the Trust Territory Code is not inconsistent with nor violative of the FSM Constitution; therefore Title 11 of the TTC continued in effect after the effective date of the Constitution and until the effective date of the Nat'l Criminal Code.  Truk v. Otokichy (I), 1 FSM Intrm. 127, 130 (Truk 1982).

FSM Supreme Court is required by Nat'l Criminal Code to recognize generally accepted customs and to determine the applicability and effect of customary law in a criminal case; it is not authorized to develop new customary law.  11 FSMC 108.FSM v. Mudong, 1 FSM Intrm. 135, 140, 146-47 (Pon. 1982).

FSM Supreme Court has jurisdiction to try Title 11 Trust Territory Code cases if they arise under a national law.  Title 11 of TTC is not a national law.  It was not adopted by Congress as a national law and it did not become a national law by virtue of the transition article.  Truk v. Hartman, 1 FSM Intrm. 174, 178 (Truk 1982).

Sections of Title 11 of TT Code covering matters within  jurisdiction of Congress owe their continuing vitality to section 102 of the Nat'l Criminal Code.  Thus, criminal prosecutions thereunder are a national matter and fall within FSM Supreme Court's constitutional jurisdiction.  11 FSMC 102.  In re Otokichy, 1 FSM Intrm. 183, 185 (App. 1982).

Upon inception of constitutional self-government by people of FSM, criminal law provisions in Title 11 of the Trust Territory Code became  law of governments within FSM by virtue of Constitution's transition provisions.  In re Otokichy, 1 FSM Intrm. 183, 187 (App. 1982).

Nat'l Criminal Code is exercise of Congress' power to define and provide penalties for major crimes.  FSM Const. art. IX, 2(p).  In re Otokichy, 1 FSM Intrm. 183, 187 (App. 1982).

A criminal statute must not be so vague and indefinite as to fail to give fair notice of what acts will be punished but the right to be informed of the nature of the accusation does not require absolute precision or perfection of criminal statutory language.  Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1983).

Although the Model Penal Code was the primary source for the Nat'l Criminal Code it was modified to suit the particular needs of the area.  Laion v. FSM, 1 FSM Intrm. 503, 511 (App. 1983).

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.  Laion v. FSM, 1 FSM Intrm. 503, 523-24 (App. 1983).

Statutory construction rule of lenity reflects the reluctance of courts to increase or multiply punishments absent a clear and definite legislative direction. Laion v. FSM, 1 FSM Intrm. 503, 528 (App. 1983).

Where two statutory provisions aimed at similar types of wrongdoing and upholding citizen and public interests of the same nature would apply to a solitary illegal act, which caused only one injury, the statutes will be construed not to authorize cumulative convictions in absence of a clear indication of legislative intent.  However, the government is not denied the right to charge separate offenses to guard against the risk that a conviction may not be obtained on one of the offenses.  Laion v. FSM, 1 FSM Intrm. 503, 529 (App. 1983).

The savings clause, 11 FSMC 102(2), unlike the other sections of the Nat'l Criminal Code, was intended to apply to offenses committed before the Code's effective date. It specifically authorizes prosecutions of Title 11 Trust Territory Code offenses occurring prior to the enactment of the Nat'l Criminal Code.  Therefore, these prosecutions fall within the FSM Supreme Court's constitutional jurisdiction. In re Otokichy, 1 FSM Intrm. 183, 189-90 (App. 1982).

Section 102(2) of the Nat'l Criminal Code preserved all the substantive rights of defendants applicable in a guilt determination proceeding as of the time of the crime's commission.  11 FSMC 102(2).  In re Otokichy, 1 FSM Intrm. 183, 191-92 (App. 1982).

Change of forum for Title 11 Trust Territory Code cases from Trust Territory High Court to FSM Supreme Court is a procedural matter with no effect on the substantive rights of defendants. In re Otokichy, 1 FSM Intrm. 183, 193 (App. 1982).

Presumably, Congress inserted no specific jurisdictional provision in section 102 of Nat'l Criminal Code because Congress recognized that FSM Supreme Court would have jurisdiction over all cases arising under national law by virtue of art. XI, 6(b) of the Constitution.  11 FSMC 102.  In re Otokichy, 1 FSM Intrm. 183, 193 (App. 1982).

The court must first look to sources of law and circumstances here to establish legal requirements in criminal cases rather than begin with a review of cases decided by other courts.  Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982).

Although Model Penal Code was primary source for Nat'l Criminal Code it was modified to suit particular needs of the area. Laion v. FSM, 1 FSM Intrm. 503, 511 (App. 1984).

Where more than one offense or wrongful intent is charged in a single count, the trial court may require the government to select among the charges if failure to do so might result in prejudice to the defendant.  However, this is a matter within the discretion of the trial court.  Laion v. FSM, 1 FSM Intrm. 503, 517 (App. 1984).

A defendant is not unfairly prejudiced or incapable of preparing an intelligent defense, simply because the government insisted on each of 11 FSMC 918 and 919's three adjectives, " intentionally, knowingly and recklessly," as possibly accurate descriptions of a defendant's frame of mind.  Laion v. FSM, 1 FSM Intrm. 503, 518 (App. 1984).

FSM Supreme Court Rules of Criminal Procedure were designed to avoid technicalities and gamesmanship in criminal pleading.  They are to be construed to secure simplicity in procedure.  FSM Criminal Rule 2 convictions should not be reversed, nor information thrown out, because of minor, technical objections which do not prejudice the accused.  Laion v. FSM, 1 FSM Intrm. 503, 518 (App. 1984).

Trial court may in its discretion permit a case involving separate charges based upon the same act to proceed to trial.  However, court should render a decision and enter a conviction only on the more major of the crimes proven beyond a reasonable doubt. After appeal, if any, has been completed, and the greater charge is reversed on appeal, the trial court may then find it necessary to enter a judgment on the lesser charge. Laion v. FSM, 1 FSM Intrm. 503, 529 (App. 1984).

Art. IV, 6 of FSM Constitution, as implemented by Rule 7(c) of the Rules of Criminal Procedure, requires that the government's reliance upon aggregation to bring an alleged crime within the jurisdictional boundaries of the court be plainly disclosed to the defendant in the information. Fred v. FSM, 3 FSM Intrm. 141, 144 (App. 1987).

State courts are not prohibited by art. XI, 6(b) of FSM Constitution from hearing and determining cases where the defendants are from FSM states other than the prosecuting state.  Jurisdiction over criminal matters between the national and state governments is determined by the severity of the crime; not diversity of citizenship. Pohnpei v. Hawk, 3 FSM Intrm. 543, 554 (Pon. S. Ct. App. 1988).

The general rule of criminal procedure is that jurisdiction over a particular crime places in the trial division the necessary authority to find a defendant guilty of any offense necessarily included in the offense charged. Kosrae v. Tosie, 4 FSM Intrm. 61, 63 (Kos. 1989).

The function of the criminal law is to declare what conduct a society considers to be unacceptable and worthy of sanctions at the instigation of government on the society's behalf; the criminal law is thus the principal vehicle for the expression of the people's standards of right and wrong.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 91 (App. 1989).

In course of formation of FSM, allocation of responsibilities between states and nation was such that the impact of the national courts in criminal matters was to be in the area of major crimes and as the ultimate arbiter of human rights issues.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 93 (App. 1989).

Under equal protection clause of Declaration of Rights in FSM Constitution, indigency alone should not disadvantage an accused in our system of criminal justice. Gilmete v. FSM, 4 FSM Intrm. 165, 169 (App. 1989).

In adopting Declaration of Rights as part of FSM Constitution and therefore supreme law of the land, people of Micronesia subscribed to various principles which place upon the judiciary the obligation, among others, to assure that arrests are based upon probable cause, that determinations of guilt are arrived at fairly, and that punishments for wrongdoing are proportionate to the crime and meet prescribed standards.Tammed v. FSM, 4 FSM Intrm. 266, 281-82 (App. 1990).

Where crimes charged are no longer those expressly delegated to Congress to define, or are not indisputedly of a national character FSM Supreme Court has no subject matter jurisdiction.  FSM v. Jano, 6 FSM Intrm. 9, 11 (Pon. 1993).

      102.  Applicability to crimes committed before and after effective date.

     (1)     Except as provided in subsection (2) of this section, this act does not apply to crimes committed before its effective date.  For purposes of this section, a crime is committed before the effective date if any of the elements of the crime occurred before that date.

     (2)     Prosecutions for offenses committed before the effective date are governed by the prior law, which is continued in effect for that purpose, as if this act were not in force.

Source: PL 11-72 4; PL 11-76 2.

Editor's note:  PL 11-72 1 repealed chapters 1 through 10 and 12 through 14 of the National Criminal Code (PL 1-134, as amended) as previously codified herein.  PL 11-72 left untouched the provisions of chapter 11 which is the Trust Territory Controlled Substances Act.

PL 11-72 was signed into law on January 25, 2001.  PL 11-72 had effective date provisions as follows:

     "Section 210.  Notwithstanding this act becoming law pursuant to section 211 hereof chapter 9 of this act shall take effect on July 1, 2001.
 
     Section 211.  This act shall become law upon approval by the President of the Federated States of Micronesia or upon its becoming law without such approval."

Case annotations:   Title 11 of Trust Territory Code, prior to effective date of Nat'l Criminal Code, is not a national law because its criminal jurisdiction was not expressly delegated to the national government, nor is the power it confers of indisputably national character; therefore, it is not within the jurisdiction of the FSM Supreme Court. Truk v. Otokichy (I), 1 FSM Intrm. 127, 130 (Truk 1982).

The delegation of judicial functions to the FSM, pursuant to Secretarial Order 3039, does not by itself give the FSM Supreme Court jurisdiction over title 11 Trust Territory Code crimes occurring before the effective date of the Nat'l Criminal Code.  U.S. Dept. Int. Sec. Order 3039, 2 (1979).  Truk v. Otokichy(I), 1 FSM Intrm. 127, 131 (Truk 1982).

Offenses prior to the effective date of the Nat'l Criminal Code are outside the jurisdiction of the FSM Supreme Court. Truk v. Otokichy (II), 1 FSM Intrm. 133, 134 (Truk 1982).

Nat'l Criminal Code preserves President's parole powers for offenses committed before the Code's effective date; the repeal of parole powers applies only to offenses committed thereafter.  l FSMC 102(1); 11 TTC 1501.  Tosie v. Tosie, l FSM Intrm. 149, 151, 158 (Kos. 1982).

Sections of title 11 of Trust Territory Code covering matters within  jurisdiction of Congress owe their continuing vitality to 102 of the Nat'l Criminal Code.  Thus, criminal prosecutions thereunder are a national matter and fall within FSM Supreme Court's constitutional jurisdiction.  11 FSMC 102.  In re Otokichy, 1 FSM Intrm. 183, 185 (App. 1982).

Upon inception of constitutional self-government by people of FSM, criminal law provisions in Title 11 of Trust Territory Code became the law of governments within FSM by virtue of Constitution's transition provisions.  In re Otokichy, 1 FSM Intrm. 183, 187 (App. 1982).

Prosecutions of title 11 Trust Territory Code offenses occurring before the effective date of the Nat'l Criminal Code are specifically authorized by 102(2) of  the Nat'l Criminal Code. 11 FSMC 102(2).  In re Otokichy, 1 FSM Intrm. 183, 189 (App. 1982).

The savings clause, 11 FSMC 102(2), unlike the other sections of the Nat'l Criminal Code, was intended to apply to offenses committed before the Code's effective date. It specifically authorizes prosecutions of Title 11 Trust Territory Code offenses occurring prior to the enactment of the Nat'l Criminal Code.  Therefore, these prosecutions fall within the FSM Supreme Court's constitutional jurisdiction. In re Otokichy, 1 FSM Intrm. 183, 189-90 (App. 1982).

Section 102(2), the savings clause of the Nat'l Criminal Code, authorizes prosecutions of title 11 Trust Territory Code offenses occurring prior to the enactment of the Nat'l Criminal Code. Therefore, these prosecutions fall within the FSM Supreme Court's constitutional jurisdiction. 11 FSMC 102(2).  In re Otokichy, 1 FSM Intrm. 183, 190 (App. 1982).

Section 102(2) of the Nat'l Criminal Code preserved all the substantive rights of defendants applicable in a guilt determination proceeding as of the time of the crime's commission.  11 FSMC 102(2).  In re Otokichy, 1 FSM Intrm. 183, 191-92 (App. 1982).

Presumably, Congress inserted no specific jurisdictional provision in 102 of the Nat'l Criminal Code because Congress recognized that this Court would have jurisdiction over all cases arising under Nat'l law by virtue of art. XI, 6(b) of the Constitution. 11 FSMC 102.  In re Otokichy, 1 FSM Intrm. 183, 193 (App. 1982).

Change of forum for Title 11 Trust Territory Code cases from the Trust Territory High Court to the FSM Supreme Court is a procedural matter with no effect on the substantive rights of defendants. In re Otokichy, 1 FSM Intrm. 183, 193 (App. 1982).

The case annotations found throughout this title may refer to earlier provisions of the National Criminal Code that was repealed by PL 11-72 (Revised Criminal Code). These annotations are retained for reference purposes as some of the language of the Revised Criminal Code is similar to the language of the former National Criminal Code.

      103.  Jurisdiction of the Federated States of Micronesia.

     (1)     The National Government of the Federated States of Micronesia has exclusive jurisdiction over all national crimes, as defined in section 104(7) of this title, pursuant to article IX, section 2(p) of the Constitution of the Federated States of Micronesia.

     (2)     A person may be convicted and sentenced under the laws of the Federated States of Micronesia if:

     (a)     he or she commits, or attempts to commit a crime, in whole or in part within the Federated States of Micronesia; or

     (b)     being outside the Federated States of Micronesia, he or she conspires with, causes, assists, aids or abets another to commit or attempt to commit a crime within the Federated States of Micronesia; or

     (c)     being outside the Federated States of Micronesia, he or she intentionally causes, or attempts to cause a result within the Federated States of Micronesia prohibited by the criminal laws of this country.

Source:  PL 11-72 5.

Case annotations:  Nat'l Criminal Code places in the FSM Supreme Court exclusive jurisdiction over allegations of violations of the Code.  No exception to that jurisdiction is provided for juveniles, so charges of crimes leveled against juveniles are governed by the Nat'l Criminal Code.  FSM v. Albert, 1 FSM Intrm. 14, 15 (Pon. 1981).

      104.  Definitions.
     The definitions in this section shall apply throughout this title, unless otherwise specified or a different meaning is plainly required.

     (1)     "Crime" means an act committed or omitted in violation of any law forbidding or commanding it, and which, upon conviction, is punishable by either or both of the following:

     (a)     imprisonment; or

     (b)     fine.

     (2)     "Criminal negligence" means to engage in conduct which creates a substantial and unjustifiable risk of bodily injury to another, or to engage in conduct which constitutes gross deviation from the standard of care that a reasonable person would exercise, which conduct causes the criminal result.

     (3)     "Felony" means any crime which is punishable by imprisonment for more than one year.  

     (4)     "Intent" means acting with the conscious purpose to engage in the conduct specified, refrain from the omission specified or cause the specific result.

     (5)     "Knowledge" means being aware of the nature of the conduct or omission or of the existing circumstances, or believing that a fact exists which brings the conduct or omission within the provisions of this code.  It does not require any knowledge of the unlawfulness of such conduct or omission.  

     (6)     "Misdemeanor" means any crime which is not a felony.

     (7)     "National crime" means:

     (a)     any crime which is

     (i)     inherently national in character and defined anywhere in this title; or

     (ii)     otherwise a crime against the Federated States of Micronesia.

     (b)     A crime is "inherently national in character" when any of the following is true:
 
     (i)     the crime is committed in the exclusive economic zone of the Federated States of Micronesia as defined in title 18 of this Code;

     (ii)     the crime is committed in the airspace above the territory comprising the Federated States of Micronesia as defined in article I, section 1 of the FSM Constitution;

     (iii)     the crime is committed on any airborne vehicle of the National Government, regardless of that vehicle's location;

     (iv)     the crime is committed on any watergoing vessel flagged and registered by the Federated States of Micronesia regardless of that watergoing vessel's location;

     (v)     the crime is committed on any watergoing vessel of the National Government regardless of that vessel's location;

     (vi)     the crime is committed against a national public servant in the course of, in connection with, or as a result of that person's employment or service;

     (vii)     the crime is committed against a former national public servant in retaliation for an act undertaken while that person was engaged in public service and within the scope of his or her official duties;

     (viii)     the crime is committed by a national public official or public servant while that person is engaged in his or her official duties or in violation of a fiduciary duty;

     (ix)     the crime involves property belonging to the National Government; or

     (x)     the crime is committed against any person participating in or attempting to participate in a national election.

     (8)     "Official proceedings" means any proceeding conducted by or under the supervision of a judge, magistrate, judicial officer or other public official in relation to any alleged offense or proven offense, and includes an inquiry, investigation, or preliminary or final determination of facts.

     (9)     Person.  The terms "person" , "he" , "she" , "accused" and "defendant" include any natural or legal person, including but not limited to, a government, corporation or unincorporated association, or other organization.
 
     (10)     "Principal" means a person who commits or participates in the commission of a crime and shall include a co-conspirator, accomplice or an aid or abettor.

     (11)     "Property" shall mean both real and personal property.

     (12)     "Public official" and "public servant" means any person elected, appointed or employed to perform a governmental function on behalf of the Federated States of Micronesia, or any department, agency or branch thereof, or any allottee as defined in the Financial Management Act of 1979 or any successor law, in any official function under or by authority of any such agency or branch of government.  The terms include, but are not limited to, the President, Vice President, department heads and other government employees, legislators, judges, law enforcement officers, advisors and consultants, but do not include witnesses.

     (13)     "Reckless" means to engage in conduct with a willful disregard for the safety of others or to engage in conduct in a manner that constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.

     (14)     "Serious bodily injury" means bodily injury which creates a high probability of death or which causes serious permanent disfigurement or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ, or other bodily injury of like severity.

     (15)     "Willfully" means to act with a purpose or willingness to commit an act, or to make an omission.  It does not require any intent to violate the law, or to injure another, or to acquire any advantage.

Source:  PL 11-72 6; PL 11-76 2.

Editor's note:  Subsections rearranged in alphabetical order.

Case annotations:  The case annotations found throughout this title may refer to the earlier provisions of the National Criminal Code that was repealed by PL 11-72, the Revised Criminal Code.  These annotations are retained for reference purposes as some of the language of the Revised Criminal Code is very similar to the language of the former National Criminal Code.

In context of a claim of aggravated assault which calls for "causing serious bodily injury intentionally," the words, "engage in the conduct," in 11 FSMC 104(4) mean engaging in the conduct of causing serious bodily injury.  Section 104(4) requires a conscious purpose either to engage in the conduct of causing bodily injury or to cause a result, which is itself serious bodily injury.  Laion v. FSM, 1 FSM Intrm. 503, 519 (App. 1983).

The requisite intent for aggravated assault cannot be found simply by determining that the defendant purposely engaged in conduct which caused serious bodily injury.  The crime of aggravated assault assumes at the very least disregard by the defendant for the well-being of the victim, and more typically, requires desire on the part of the defendant to injure the victim seriously.  Laion v. FSM, 1 FSM Intrm. 503, 519_20 (App. 1983).
 
Causal connection between an act done purposely and serious bodily injury to another is not sufficient to establish the crime of aggravated assault, even when the act is coupled with an intention to cause bodily injury.  Serious bodily injury, not just any injury, must have been intended in order to commit aggravated assault.  Laion v. FSM, 1 FSM Intrm. 503, 520 (App. 1983).

      105.  Statute of limitations.

     (1)     A prosecution for murder or treason may be commenced at any time.

     (2)     A prosecution for a crime which is punishable by imprisonment for ten years or more must be commenced within six years after it is committed or within two years after it is discovered or with reasonable diligence could have been discovered, whichever is longer.

     (3)     A prosecution for any other felony must be commenced within three years after it is committed, or within one year after it is discovered or with reasonable diligence could have been discovered, whichever is longer.

     (4)     A prosecution for a misdemeanor must be commenced within two years after it is committed.

     (5)     The time limitation set by the statute does not run:

     (a)     during any time when the accused is continuously absent from the complaining jurisdiction or has no reasonably determinable place of abode or work within the jurisdiction; or

     (b)     during any time when a prosecution against the accused for the same conduct is pending in this jurisdiction.

     (6)     A prosecution is commenced either when an information or complaint is filed or when an arrest warrant, summons or other process is issued, provided that reasonable attempts are made at service.

Source: PL 11-72 7.

Case annotations:  The day upon which a crime is committed is to be excluded in the computation of the statute of limitations.  In re Extradition of Jano, 6 FSM Intrm. 93, 106 (App. 1993).

Where the prosecution of an underlying offense is not time-barred, prosecution of conspiracy to commit that offense is not time-barred even if part of the conspiracy extends back in time to a point that would be time-barred.  In re Extradition of Jano, 6 FSM Intrm. 93, 107 (App. 1993).

      106.  Venue.

     (1)     All trials of national crimes shall be held in the State in which the crime was committed.

     (2)     If elements of the crime(s) were committed in different States, the trial may be held in any State in which a material element was committed.

     (3)     If elements of a national crime were committed in the exclusive economic zone, or elsewhere out of the boundaries of any State, the trial shall be held in the State in which the accused is arrested or is first brought or in which the majority of the witnesses are located.

     (4)     Either a defendant or the Government may petition the court for a change of venue for good cause.  The court shall determine the place of trial with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.

Source:  PL 11-72 8.

      107.  Defenses.

     (1)     A defense is a fact or set of facts which  removes or mitigates penal liability.

     (2)     No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented.

     (a)     a defendant is entitled to an acquittal if, in light of all the evidence presented, a reasonable doubt as to the defendant's guilt is found to exist; however,

     (b)     if a defense is designated an affirmative defense by this act or another statute, the defendant is entitled to an acquittal if the defense evidence presented, when considered in the light of any contrary evidence, proves by a preponderance of the evidence the specified fact or facts, which fact(s) remove or mitigate penal liability.

     (3)     It is a complete defense to a criminal charge that at the time of engaging in the wrongful conduct the defendant was legally incapable of committing a crime as defined in chapter 3, section 301A of this title.

Source:  PL 11-72 9.

Case annotations:  The case annotations found throughout this title may refer to earlier provisions of the National Criminal Code that were repealed by PL 11-72 (Revised Criminal Code).  These annotations are retained for reference purposes as some of the language of the Revised Criminal Code is similar to the language of the former National Criminal Code.

As a matter of constitutional due process, a trial court presented with an alibi defense should consider evidence concerning the alibi along with all other evidence and shall not find the defendant guilty if after considering all of that evidence, the judge feels there is a reasonable doubt as to the defendant's guilt.  Alaphonso v. FSM, 1 FSM Intrm. 209, 223-25 (App. 1982).

Statutes which provided a defense in the form of exceptions to a general proscription do not reduce or remove the government's traditional burden of proving beyond a reasonable doubt every fact necessary to constitute the offense.  Ludwig v. FSM, 2 FSM Intrm. 27, 35 (App. 1985).

The government ultimately bears the burden of disproving the applicability of a statutory exception when it is properly presented as a defense.  Ludwig v. FSM, 2 FSM 27, 35 (App. 1985).

The 11 FSMC 1203(1), (4) and (5) exemptions whereunder possession of a firearm is permissible are defenses within the meaning of 11 FSMC 107, although they are not affirmative defenses for they are not so designated.  The ultimate burden of persuasion remains with the government, but the defendant has the burden of going forward with sufficient evidence to raise these exemptions as issues.  Ludwig v. FSM, 2 FSM Intrm. 27, 36 (App. 1985).

Some exceptions under 11 FSMC 1203 whereunder possession of a firearm is permissible relate to considerations separate from the essential elements of the crime and require the defendant to place them in issue.  A defendant claiming exemption as a law enforcement officer or United States military person engaged in official duty, 1203(1), (4), or as a designated crocodile hunter, 1203(5), is not disputing any element of the government's basic case.  Instead, these exemption claims bring into play new facts, uniquely within the knowledge of the defendant, which the government could overlook by focusing on whether the conduct prohibited by the Weapons Control Act has occurred.  The defendant is in a far better position to place these exemptions in issue and it is fair to require that he do so.  Ludwig v. FSM, 2 FSM Intrm. 27, 36 (App. 1985).

The 11 FSMC 1203(2) exemption for curios, ornaments and historical pieces whereunder possession of a firearm is permissible requires findings that the firearm be in "unserviceable condition" and "incapable of being fired or discharged". Ludwig v. FSM, 2 FSM Intrm. 27, 37 (App. 1985).

If there are defenses, proof of which would not negate any essential element of the crime itself, it is constitutionally permissible to place same burden of proof for those defenses upon defendant. Runmar v. FSM, 3 FSM Intrm. 308, 311 (App. 1988).

11 FSMC 107 does not create any presumption as to mental health or lack thereof but merely establishes the standard of proof for a defense based upon mental disease, disorder, or defect, and places the burden of persuasion for that defense upon the defendant.  Runmar v. FSM, 3 FSM Intrm. 308, 314 (App. 1988).

Defendant who fails to request consideration of a lesser offense normally may not successfully appeal from a conviction arrived at without such consideration, but where all elements for murder exist but homicide was caused under extreme mental or emotional disturbance for which there is reasonable explanation or excuse, defendant is entitled to be convicted of manslaughter rather than murder, without regard to whether request for consideration of manslaughter was made by either counsel.Runmar v. FSM, 3 FSM Intrm. 308, 319 (App. 1988).

Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.  FSM Crim. R. 52(a).  Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

Self-Defense

The general rule is that a person can use no more force than is necessary to protect himself, his family, and his home and property from an intruder and to expel the intruder. FSM v. Ruben, 1 FSM Instr. 34, 37 (Truk 1981).

There is no automatic prohibition against use of a dangerous weapon to protect oneself and family against an intruder, even against an intruder without a weapon, so long as the weapon is not used in deadly fashion and the actual force employed is not more than would be reasonably necessary for purposes of protection.  FSM v. Ruben, 1 FSM Intrm. 34, 38 (Truk 1981).

The court is willing to assume that the homeowner whose wife's brother is seeking to enter the house by force late at night in a threatening manner should as a matter of customary law go lightly and use less force than he might to expel some other intruder. FSM v. Ruben, 1 FSM Intrm. 34, 41 (Truk 1981).

Privilege to use reasonable force in defense of family, home and property may under the circumstances extend onto the road adjacent to the home.  Tosie v. FSM, 5 FSM Intrm. 175, 177 (App. 1991).

A person can use no more force than is reasonably necessary to protect himself, his family, home and property from an intruder, and to expel the intruder. Tosie v. FSM, 5 FSM Intrm. 175, 177-78 (App. 1991).

A claim of self-defense is meritless when the only provocation is an insulting gesture and there is no imminent threat of bodily harm. Alik v. Kosrae, 6 FSM Intrm. 469, 472 (App. 1994).

There are two different standards used when reviewing a claim of self-defense.  When one is threatened with imminent serious bodily harm or death by another he may justifiably use deadly force if necessary to protect himself from great bodily harm or death.  When one is threatened with imminent unlawful bodily harm (but not serious bodily harm or death) he may justifiably use nondeadly force if force is necessary to prevent the unlawful bodily harm.  Where there is no threat of deadly force the correct standard is that the unlawful force must at least constitute imminent threat of an assault before one may defend oneself by force.  The force employed must be reasonable in the light of the amount, degree and kind of force being used by the aggressor.  Alik v. Kosrae, 6 FSM Intrm. 469, 473 (App. 1994).

Self-defense is not an affirmative defense.  A defense is an affirmative defense only if it is so designated by the Nat'l Criminal Code or another statute.  Engichy v. FSM, 1 FSM Intrm. 532, 554 (App. 1984).

A police officer is entitled under 12 FSMC 215 to respond to physical resistance or attacks against him as he attempts to make an arrest and he may use whatever force is reasonably necessary to defend himself or others from harm.  However, the police officer may not employ more force than he reasonably believes to be necessary, either to effect arrest or to defend himself.  Loch v. FSM, 1 FSM Intrm. 566, 570 (App. 1984).

      108.  Customary law.

     (1)     Generally accepted customs prevailing within the Federated States of Micronesia relating to crimes and criminal liability shall be recognized and considered by the national courts.  Where conflicting customs are both relevant, the court shall determine the weight to be accorded to each.

     (2)     Unless otherwise made applicable or given legal effect by statute, the applicability and effect of customary law in a criminal case arising under this act shall be determined by the court of jurisdiction in such criminal case.

     (3)     The party asserting applicability of customary law has the burden of proving by a preponderance of the evidence the existence, relevance, applicability, and customary effect of such customary law.

Source: PL 11-72 10.

Cross-reference:  FSM Const., art. V and art. XI, 11.

Case annotations:      CUSTOM AND TRADITION

A customary privilege to enter one's cousin's house cannot be exercised by pounding on the walls of the house at two a.m. until a hole for entry is created and shouting threats at the occupants.  FSM v. Boaz (I), 1 FSM Intrm. 22, 26 (Pon. 1981).

The fact that one may have a general customary privilege to enter property does not necessarily mean that the privilege may be exercised at all times and in every conceivable manner.  FSM v. Ruben, 1 FSM Intrm. 34, 39 (Truk 1981).

Familial relationships are at the core of Micronesian society and are the source of numerous rights and obligations which influence practically every aspect of the lives of individual Micronesians.  FSM v. Ruben, 1 FSM Intrm. 34, 40 (Truk 1981).

Familial relationships are an important segment, perhaps the most important component, of the custom and tradition referred to generally in the Constitution, FSM Const. art. V, art. XI, 11, and more specifically in the Nat'l Criminal Code, 11 FSMC 108, 1003.  FSM v. Ruben, 1 FSM Intrm. 34, 40 (Truk 1981).

While the court may find that a criminal defendant's conduct did not violate the criminal law and the defendant owes no debt to society in general, this does not suggest that the defendant has necessarily fulfilled all customary obligations he may owe to a relative who was the victim of his actions.  FSM v. Ruben, 1 FSM Intrm. 34, 41 (Truk 1981).

The court is willing to assume that the homeowner whose wife's brother is seeking to enter the house by force late at night in a threatening manner should as a matter of customary law go lightly and use less force than he might to expel some other intruder.  FSM v. Ruben, 1 FSM Intrm. 34, 41 (Truk 1981).

Customary law is placed in neither an overriding nor inferior position by the FSM Constitution and statutes.  FSM v. Mudong, 1 FSM Intrm. 135, 139 (Pon. 1982).

Customary settlements do not require court dismissal of court proceedings if no exceptional circumstances are shown.  FSM v. Mudong, 1 FSM Intrm. 135, 140 (Pon. 1982).

The prosecutor does not have authority to dismiss an existing prosecution on the basis of customary law but the court does have power to respond to a prosecutorial suggestion for dismissal because of customary considerations. FSM v. Mudong, 1 FSM Intrm. 135, 141 (Pon. 1982).

The burden of proof is on a defendant to establish effect of customary law; the effect of customary apology ceremony on court proceedings is not self-evident.  11 FSMC 108(3). FSM v. Mudong, 1 FSM Intrm. 135, 141-43.

Under appropriate circumstances customary law may assume importance equal to or greater than particular written provisions in the Nat'l Criminal Code.  11 FSMC 108.FSM v. Mudong, 1 FSM Intrm. 135, 139-40 (Pon. 1982).

FSM Supreme Court is required by Nat'l Criminal Code to recognize generally accepted customs and determine applicability and effect of customary law in a criminal case; it is not authorized to develop new customary law. l FSMC 108.  FSM v. Mudong, 1 FSM Intrm. 135, 140, 146-47 (Pon. 1982).

Customary law and the constitutional legal system perform different roles; they may mutually support each other.  Neither system controls the other.  FSM v. Mudong, 1 FSM Intrm. 135, 145 (Kos. 1982).

Custom is more properly considered during sentencing than at other stages of a criminal prosecution.  FSM v. Mudong, 1 FSM Intrm. 135, 147-48 (Pon. 1982).

The constitutional government seeks not to override custom but to work in cooperation with the traditional system in an atmosphere of mutual respect.  In re Iriarte (II), 1 FSM Intrm. 255, 271 (Pon. 1982).

Where no custom is established by a preponderance of the evidence that the vile phrases used are sufficient provocation for a serious attack on the speaker, that alleged custom will not be considered in determining the criminal culpability of the person who attacks the one who has used vile phrases.  FSM v. Raitoun, 1 FSM Intrm. 589, 591-92 (Truk 1984).

The Major Crimes Clause, with its admonition to Congress to have due regard for local custom and tradition, unmistakably reflects awareness of the framers that Congress would be empowered under this clause to regulate crimes that would require consideration of local custom and tradition.  Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985).

Duty of a nat'l court justice to give full and careful consideration to a request to consider a particular customary practice or value in arriving at a decision requires careful investigation of the nature and customary effect of the specific practice at issue, a serious effort to reconcile the custom and tradition with other constitutional requirements, and an individualized decision as to whether the specific custom or tradition should be given effect in the particular contexts of the case before the court.Tammed v. FSM, 4 FSM Intrm. 266, 279 (App. 1990).

Congress has no power to specify voting requirements for the Constitutional Convention and therefore any attempt to exercise this power so as to uphold tradition is also outside the powers of Congress under art. V, 2 of the Constitution, which is not an independent source of congressional power but which merely confirms the power of Congress, in exercising national legislative powers, to make special provisions for Micronesian tradition.  Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 328 (App. 1990).

6 FSMC 1614 exempts adoptions effected in accordance with local custom from the domestic relations law of the FSM.  Customary adoptions are an alternative to court-ordered adoptions which are established by the Code. In re Marquez, 5 FSM Intrm. 381, 383 (Pon. 1992).

Parties who wish to adopt a child have a choice of method of adoption.  They may adopt according to local custom, or they may adopt according to the laws of the FSM. What a petitioner may not do is seek the court's involvement in a customary adoption.In re Marquez, 5 FSM Intrm. 381, 383 (Pon. 1992).

Determining the relevancy of custom in carrying out the mandate of art. XI, 11 of the FSM Constitution must proceed on a case-by-case basis. Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 132 (App. 1993).

Where entitlement to customary relief has been proven and the means to execute such a remedy are within the trial court's authority and discretion, the trial court should as a matter of equity and constitutional duty grant the relief.  Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 133 (App. 1993).

      109.  Severability.
     If any provision of this title or amendments or additions thereto, or the application thereof to any person, thing or circumstance is held invalid, the invalidity does not affect the provisions, application, amendments or additions that can be given effect without the invalid provisions or application, and to this end the provisions of this title and the amendments or additions thereto are severable.

Source:  PL 11-72 11.

Case annotations:   Since the National Government does not have major crimes jurisdiction over title 11 Trust Territory Code assaults calling for imprisonment of no more than six months, the repealer clause of the Nat'l Criminal Code would not appear to repeal  those sections.  FSM v. Boaz (II), 1 FSM Intrm. 28, 30 (Pon. 1981).

The repealer clause of the Nat'l Criminal Code repealed those provisions of title 11 of the Trust Territory Code above the monetary minimum of $1,000 set for major crimes. Where the value is below $1,000, 2 does not apply because it is not within the national court jurisdiction.  FSM v. Hartman, 1 FSM Intrm. 43, 46 (Truk 1981).

FSM Supreme Court has jurisdiction to try title 11 Trust Territory Code cases if they arise under a nat'l law.  Title 11 of the TTC is not a nat'l law.  It was not adopted by Congress as a nat'l law and it did not become a nat'l law by virtue of the transition article.  Pub. L. No. 1-134, 2 (1st Cong., 4th Reg. & 3rd Spec. Sess. 1980_81); FSM Const., art. XV, 1.  Truk v. Hartman, 1 FSM Intrm. 174, 178 (Truk 1982).

Nat'l Government has exclusive jurisdiction over crimes arising under national law. Pub. L. No. 1-134, 2 (1st Cong., 4th Reg. & 3rd Spec. Sess. 1980-81).  Truk v. Hartman, 1 FSM Intrm. 174, 181 (Truk 1982).

Title 11 of Trust Territory Code is not inconsistent with nor violative of FSM Constitution; therefore 11 TTC continued in effect after the effective date of the Constitution and until the effective date of the Nat'l Criminal Code.  FSM Const. art XV, l; Pub. L. No. 1-134, 2-3 (1st Cong., 4th Reg. Sess. 1980).  Truk v. Otokichy (I), 1 FSM Intrm. 127, 130 (Truk 1982).
 
Editor's note: The effective date provision of the former National Criminal Code that was repealed by PL 11-72 1 read as follows:
 
     110.  Effective date.
        Upon the approval of the President of the Federated States of Micronesia, or upon its becoming law without such approval, the act from which this section derives shall take effect on July 12, 1981.

Source:  PL 1-134 3.

Case annotations:  Title 11 of Trust Territory Code is not inconsistent with nor violative of the FSM Constitution; therefore 11 TTC continued in effect after the effective date of the Constitution and until the effective date of the Nat'l Criminal Code.  FSM Const., art. XV, 1; Pub. L. No. 1_134 2_3 (1st Cong., 4th Reg. Sess. 1980).  Truk v. Otokichy, 1 FSM Intrm. 127, 130 (Truk 1982).
                                                                                                                                                                                                                                                                                                           
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