Cite as Truk v. Hartman, 1 FSM Intrm. 174 (Truk 1982)

[1 FSM Intrm. 174]




Dist. Court No. 112-82


Before Richard H. Benson
Associate Justice
August 6, 1982
Truk, Caroline Islands 96942

     For the Government:     Jeanne H. Rayphand, Esq.
                                             Office of the State's Attorney
                                             Truk, Caroline Islands 96942

     For the Defendant:        Charles Aspinwall
                                             Office of the Public Defender
                                             Truk, Caroline Islands 96942

[1 FSM Intrm. 175]

     The defendants are accused of escaping from the municipal jail of Fefan, an island within the Truk lagoon of Truk State 1 in violation of 11 TTC 601.2  At the time of the alleged escape the defendants were under arrest by the municipal police for a municipal offense.3

[1 FSM Intrm. 176]

     The issue of this court's jurisdiction arose because the punishment for violating 11 TTC 601, "not more than three years," is within the definition of major crimes found in the National Criminal Code.4

     The Honorable Sebastian Frank, Associate Judge of the Truk District Court, by order dated May 25, 1982, stayed proceedings in his court pending a determination of Supreme Court jurisdiction by this court.

     The Federated States of Micronesia and the Trust Territory of the Pacific Islands each declined an invitation to submit a memorandum as amicus curiae.

     The court concludes that it does not have jurisdiction to try this case.

     The Constitution of the Federated States of Micronesia is the supreme law5 and the decisions of this court must be

[1 FSM Intrm. 177]

consistent with it.6  Other provisions of the Constitution that furnish guidance in the resolution of the issue presented are: the description of the separation of State and National powers;7 the power of the Congress of the Federated States of Micronesia to define major crimes and prescribed penalties;8 the jurisdiction of National courts over cases arising under national law;9 and the provision for the transition of

[1 FSM Intrm. 178]

Trust Territory statutes.10   

     This court has jurisdiction try 11 TTC 601 cases if they arise under a national law.  Title 11 is not a national law:  it was not adopted by Congress as a national law;11 and it did not become a national law by virtue of the transition article.  This latter point was the holding in Truk State vs. Michael Otokichy, Case No. 18-81 [Truk v. Otokichy (I), 1 FSM Intrm. 127 (Truk 1981)].  See also the opinion in the consolidated cases of State of Truk vs. Otokichy et al.,  Case No. 13-81 and State of Truk vs. Suzuki et al., Case No. 16-81 [Truk v. Otokichy (II), 1 FSM Intrm. 133 (Truk 1981)].

     The analysis of the question of whether or not Title 11 is a national law is clarified by assuming for the sake of the analysis that Congress has never acted to define major crimes nor passed a National Criminal Code.  The prosecution of criminals is not a power having an indisputably national character.  Thus Title 11 did not become national law under, the transition article.

     The National Criminal Code was enacted: its enactment  did not cause Title 11 to become a national law.

[1 FSM Intrm. 179]

     When Congress framed section 505 of the National Criminal Code defining the offense of escape,12 Title 11 of the Trust Territory Code was available to it. Congress decided to define escape as relating only to matters involving a national interest.  Eliminated from the offense of escape found in the National Criminal Code are acts of escape as those alleged in this case.13

     An analogous delineation exists insofar as larceny is concerned.14  In defining theft Congress made the lower limit $1,000.15 Before it as it framed its definition was Title 11 in which grand larceny, with a penalty of five

[1 FSM Intrm. 180]

years, has a lower limit of $10.16  Thus the National Criminal Code offenses of escape and larceny have obvious omissions, but which are covered within the offense set forth in the Trust Territory Code.  The particular limits which Congress adopted for the offense of escape and of larceny compels the conclusion that Congress intended to leave theft of property with a value of less than $1,000 and acts of escape not having a national interest in courts other than national.

     The government invites the court to declare the National Criminal Code's definition of the exclusive jurisdiction of the National Government over major crimes to be an unconstitutional infringement on the rights of the States.  While courts will not refuse to pass on the constitutionality of statutes in a proceeding in which such a determinationis involved, needless consideration of attacks on their validity and unnecessary decisions striking down statutes

[1 FSM Intrm. 181]

will be avoided.17  Legislative acts are presumed to be constitutional; where fairly possible a construction of a statute will be made that avoids constitutional questions.18

     The power that Congress exercised was to define major crimes and to fix penalties.  It was Congress, when it enacted a National Criminal Code, that made the jurisdiction exclusive in the National Government.  Such exclusiveness was not mandated by the Constitution, and it would have been exclusive in any event only if criminal jurisdiction was a power of indisputably national character.  The term "exclusive jurisdiction" employed in Section 901 of the National Criminal Code must be read in a way that harmonizes with the obvious intent of Congress that courts other than the national courts have jurisdiction in areas of escape and larceny not reached by the offenses found in the National Criminal Code.  That reconciliation of meaning is readily achieved.  The National Government has exclusive jurisdiction over major crimes arising under national law.  This conclusion is consistent with Section 2 of the National Criminal Code which repeals Title 11 only to the extent of national

[1 FSM Intrm. 182]

government jurisdiction.  Thus escape not covered by Section 505 and larceny of a value less than a $1,000 remain unrepealed.

     It may be that an opinion existed that Title 11 was a national law in effect after the formation of the Federated States of Micronesia.  That this may have existed is basedon wording of Section 102(2) of the National Criminal Code which states in part "... the prior law, which is continued in effect ... " and of Section 2 of the same code which repealsTitle 11.  Assuming that such an opinion existed, but without deciding that such was the case, the court has carefully weighed such a possibility to analyze the issue beforethis court, to determine any effect such an opinion would have on the interpretation of the National Criminal Code, and to ascertain Congressional intent in the writing of Sections 505 and 901.  That weighing has not caused the court to alter its conclusion.

     For the reasons stated the court concludes it does not have jurisdiction to try the case presented in the information, and intends on August 23, 1982 to order the case back to the District Court for further proceedings.

August 6, 1980
 /s/ Richard H. Benson
Associate Justice

Filed 8/6/82 /s/


1.  An unofficial translation of the information reads: It was on or about May 20, 1982, on Fefan island at the municipal jail, these five persons were committing the crime of escape, to wit; escaped from the arrest house, without obtaining permission from the one who is in charge of the place.  This is in violation of 11 TTC 601.

2.  Sec. 601.  Escape.  Every person who, being a law enforcement officer, or having lawful custody of a prisoner, shall unlawfully, wilfully or negligently allow said prisoner to depart from such custody, except by due process of law; or whosoever being a prisoner, shall unlawfully and wilfully depart from such custody, shall be guilty of escape, and upon conviction thereof shall be imprisoned for not more than three years.  11 TTC 601.

3.  Memorandum of Truk State at 9 (dated June 11, 1982).

4.  Section 901.  Jurisdiction of National Government Over Major Crimes.  The National Government of the Federated States of Micronesia has exclusive jurisdiction over all major crimes, as defined in 902 of this Chapter, pursuant to Article IX, Section 2(p) of the Constitution of the Federated States of Micronesia.

     Section 902.  Major Crimes Defined. (1) "Major crimes" are defined as follows: (a) all crimes which are punishable by imprisonment for a period of 3 years or more; and (b) all crimes resulting in loss or theft of property or services in the value of $1,000 or more, as well as any attempt to commit such crimes.  Pub. L. No. 1-134 (lst Cong., 2nd Sess. 1979), 11 F.S.M.C. 901, 902.

5.  "This Constitution is the expression of the sovereignty of the people and is the supreme law of the Federated States of Micronesia.  An act of the Government in conflict with this Constitution is invalid to the extent of conflict."   FSM Const. art. II, 1 .

6.  "Court decisions shall be consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia."   FSM Const. art. XI, 11 .

7.  "A power expressly delegated to the national government, or a power of such an indisputably national character as to be beyond the power of a state to control, is a national power."   FSM Const. art. VIII, 1 .

     "A power not expressly delegated to the national government or prohibited to the states is a state power."   FSM Const. art. VIII, 2 .

8.  "The following powers are expressly delegated to Congress:
     . . . (p)   to define major crimes and prescribe penalties, having due regard to local custom and tradition; . . ." FSM Const. art. IX, 2 .

9.  (a) The trial division of the Supreme Court has original and exclusive jurisdiction in cases affecting officials of foreign governments, disputes between states, admiralty or maritime cases, and in cases in which the National Government is a party except where an interest in land is at issue.

     (b)  The national courts including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under this Constitution; national law or treaties; and in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizen or subject.

FSM Const. art. XI, 6 .

10.  "A statute of the Trust Territory of the Pacific Islands continues in effect except to the extent it is inconsistent with this Constitution or is amended or repealed ..."   FSM Const. art. XV, 1 .

11.  "Sec. 2. Trust Territory Law Repealed.  Title 11 of the Trust Territory Code is hereby repealed to the full extent of National Government jurisdiction in all matters covered by the provisions of law contained therein."  Pub. L. No. 1-134 (lst. Cong., 2d Sess. 1979)

12.  "Section 505.  Escape. (1) A person commits the offense of escape if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.  "Official detention" means arrest and detention in any facility for custody of persons under charge or conviction of a National offense, under detention for extradition or deportation, or any other detention for law enforcement purposes.  The term "official detention" shall apply only to detention by a public servant of the Federated States of Micronesia, or by any other person legally authorized or empowered to arrest or detain on behalf of the Federated States of Micronesia.  "Official detention" does not include supervision of probation or parole, or constraint incidental to release on bail."  Pub. L. No. 1-134 (1st Cong., 2d Sess. 1979); 11 F.S.M.C. 505.

13.  Neither party contended that the facts of this case bring it within the provisions of Section 505.

14. FSM v. Hartman, 1 FSM Intrm. 43 (Truk 1981).

15.  "Section 931 (1) Theft.  A person commits the offense of theft if he     commits theft of property or services in the value of $1,000 or more."  Pub. L. No. 1-134 (lst Cong., 2d Sess. 1979); 11 F.S.M.C. 931(1).

16.  "Grand Larceny. ) Every person who shall unlawfully steal, take and carry away personal property of another, of the value of fifty dollars or more, without the owner'sknowledge or consent, and with the intent to permanently convert it to his own use, shall be guilty of grand larceny, and upon conviction thereof shall be imprisoned for a period of not more than five years, or fined not more than one thousand dollars, or both."  11 TTC 852.

17.  Communist Party v. Catherwood, 367 U.S. 389, 392, 81 S. Ct. 1465, 1467-68, 6 L. Ed. 2d 919, 922 (1961); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 355, 56 S. Ct. 466, 487, 80 L. Ed. 688, 711 (1936).
18.  United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S. Ct. 1400, 1404, 28 L. Ed. 2d 822, 830 (1971); Johnson v. Robison, 415 U.S. 361, 366-67, 94 S. Ct. 1160, 1165, 39 L. Ed. 2d 389, 398 (1974).