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      On September 30, 2005, the defendant, Tadashi Wainit, filed his Motion for Dismissal. On October 4, 2005, Wainit served, and on October 17, 2005, filed his Notice of Errata, making certain corrections in his motion. The government filed its opposition on October 13, 2005. On October 11, 2005, the court issued an order noting that Count II may charge a misdemeanor, not a felony, and that since a misdemeanor has a shorter statute of limitations period, that period might have run. The court

asked the parties to be prepared to address this point at the scheduled motion hearing and invited the submission of written briefs before then. Only the government submitted a memorandum.

      Wainit’s motion was heard on October 17, 2005. The court denied it from the bench and gave a short explanation of its reasons for doing so. This memorandum memorializes and further explains those reasons.

      The government accuses defendant Tadashi Wainit, who was then Mayor of Udot Municipality (and who remained in that office through at least 2002), of February 19, 1999 violations of 11 F.S.M.C. 701 (deprivation of another’s FSM constitutional rights) and 11 F.S.M.C. 532(1)(a) (threats in election matters) in relation to the March 2, 1999 national election while he was in his official capacity. These charges carry maximum jail sentences of three years and one year respectively. 11 F.S.M.C. 701(2); 11 F.S.M.C. 532(3)(b).

      On January 25, 2001, a new national criminal code came into effect. FSM Pub. L. No. 11-72, § 211. That enactment provides that "[p]rosecutions for offenses committed before the effective date are governed by the prior law, which is continued as if this act were not in force." Id. § 4(2) (to be codified at 11 F.S.M.C. 102(2)). Thus the earlier criminal code provisions apply to these offenses alleged to have occurred before January 25, 2001.

      On November 7, 2002, the government filed an information, docketed as Criminal Case No. 2002-1504, charging Wainit for the alleged February 19, 1999 offenses. A motion to dismiss that case, substantially similar to the present motion in this case, was considered and denied by the court on September 24, 2003. FSM v. Wainit, 12 FSM Intrm. 105 (Chk. 2003). On February 19, 2004, Criminal Case No. 2002-1504 was dismissed without prejudice because the information in that case had been signed and filed by persons who were disqualified from doing so. FSM v. Wainit, 12 FSM Intrm. 360 (Chk. 2004).

      A new information, signed by a different prosecutor, based on the same allegations and charging the same two counts, was filed on August 3, 2004 and docketed as Criminal Case No. 2004-1513. Wainit moved to dismiss this information.

      Wainit contended that "[t]his case must be dismissed because it was filed after the applicable statute of limitations had lapsed." Motion at 3. The statute of limitations is an affirmative defense which the defendant must raise either by motion under Criminal Procedure Rule 12(b) or later at trial by a plea of not guilty. 1A Charles Alan Wright, Federal Practice and Procedure § 193, at 353-58 (3d ed. 1999). Wainit, by his motion, raised this defense at the proper time.

A.  The Applicable FSM Statute of Limitations

      Under the earlier criminal code, prosecutions for felonies punishable by ten years or less in jail had to start within three years after the offense was committed, 11 F.S.M.C. 105(2)(b), and misdemeanor prosecutions within two years after the offense was committed, 11 F.S.M.C. 105(2)(c), except as otherwise provided in Section 105. The government contended that 11 F.S.M.C. 105(3)(b) extended the statute of limitations period in this case. That section provides that even if the time limitation to prosecute had expired,

11 F.S.M.C. 105(3).

      Wainit contended that this exception did not apply to him because he was not a "public officer" within the meaning of the national criminal code since he was not an FSM employee.

1.  Construction of Criminal Statutes of Limitation

      The court concluded, and the parties did not contend otherwise, that the following framework was the appropriate tool to use in approaching the task:

21 Am. Jur. 2d Criminal Law § 293 (rev. ed. 1998) (footnotes omitted); see also State v. Palmer, 810 P.2d 734, 737 (Kan. 1991); State v. Brown, 126 A.2d 161, 166 (N.J. 1956). "The rule of strict construction will not justify an ‘unreasonable’ interpretation;" ) one contrary to the law’s intent. Brown, 126 A.2d at 166. "The rule of strict construction simply means that ordinary words are to be given their ordinary meaning." Palmer, 810 P.2d at 741. This conforms to Congress’s instruction that when interpreting the FSM Code, "[w]ords and phrases . . . shall be read with their context and shall be construed according to the common and approved usage of the English language." 1 F.S.M.C. 208.

2.  Construction of 11 F.S.M.C. 105(3)(b)

              a.  Wainit’s Contentions

      Wainit contended that he is not a "public officer" within the meaning of the national criminal code. For this contention he relied on 11 F.S.M.C. 104(11) which defined a "public servant" as "any officer or employee of, or any person acting on behalf of, the Federated States of Micronesia, including legislators and judges, and any person acting as an advisor, consultant, or otherwise, in performing a

governmental function; but the term does not include witnesses." Wainit asserted that, as an elected municipal official, he was not a public officer because he was not an officer or employee of, or acting on behalf of, the national government of the Federated States of Micronesia.

      Wainit also contended that Congress does not have the power to include municipal or state officers or employees within the term "public officer" because, under the FSM’s federal system of government, it does not have the power to define state or municipal offices or to determine who holds them. He further contended that the purpose of subsection 105(3)(b) was not present so as to trigger its application.

             b.  Court’s Conclusions

      The court concluded that the term "public officer" as used in 11 F.S.M.C. 105(3)(b) could not be accorded the same meaning as the term "public servant" was defined in 11 F.S.M.C. 104(11). A review of the criminal code, as it was in 1999, revealed that the defined term "public servant" was used in the following sections of Title 11 (the criminal code) as it was then: §§ 502(1); 505(1); 505(2); 522(1); 531(1)(a); 531(1)(b); 531(1)(c); 531(3); 532(1)(a); 532(1)(b); 532(1)(c); 532(1)(d); 533(1); 534; 535; 536(2); 542(1)(a)(ii); 543(1); 548(1)(a); 549(1); 919(1)(f); 919(2). Another term, "public official" was defined in that criminal code to include "a Member of Congress of the Federated States of Micronesia, either before or after he has qualified," in addition to those persons included in the definition of public servant. 11 F.S.M.C. 1301(2) (emphasis added). The term "public official" was used extensively in Title 11, chapter 13, which imposed criminal liability for conflicts of interest involving public officials. See 11 F.S.M.C. 1301-1307. The term "public officer" appeared only in 11 F.S.M.C. 105(3)(b).

      By deliberately using a different term in 11 F.S.M.C. 105(3)(b) from the ones defined in 11 F.S.M.C. 104(11) and in 11 F.S.M.C. 1301(2), the drafters can only have intended that the meaning be different, and, by not defining it, that the term’s meaning should be its common, ordinary English language meaning. Words and phrases used in the FSM Code "shall be read with their context and shall be construed according to the common and approved usage of the English language." 1 F.S.M.C. 208. See also Setik v. FSM, 5 FSM Intrm. 407, 410 (App. 1992) (a statutory provision’s plain meaning must be given effect whenever possible). The English language’s common and approved usage of the term "public officer" is "a person holding a post to which he has been legally elected or appointed and exercising governmental functions." Webster’s Third New International Dictionary 1836 (1961). See also Black’s Law Dictionary 978 (5th ed. 1979) (public officer is "one holding office under the government of a municipality, state, or nation").

      Wainit was legally elected to a municipal post exercising governmental functions ) he was, until 2004, the elected mayor of Udot Municipality. Thus, strictly construing the term "public officer" by using only its plain, ordinary, and unambiguous meaning (or in the code’s terms "its common and approved usage"), Wainit fell within the section 105(3)(b) exception to the section 105(2)(b) and (c)

limitations to this prosecution. This followed the drafters’ intent. A statute’s policy "is to be found in the legislative intent. And it is the cardinal rule in the construction of statutes that such intent is, itself, to be found solely in the words of the statute, if they are free from ambiguity and express a sensible meaning." State v. Patriarca, 43 A.2d 54, 56 (R.I. 1945) (construing criminal statutes of limitation). A court should construe a statute as the legislature intended. Legislative intent is determined by the statute’s wording. What a legislature says in a statute’s text is considered the best evidence of the legislative intent or will. Thus a court must give effect to the plain meaning of a statutory provision whenever possible. Rodriguez v. Bank of the FSM, 11 FSM Intrm. 367, 379 (App. 2003); FSM Social Sec. Admin. v. Kingtex (FSM) Inc., 8 FSM Intrm. 129, 131 (App. 1997). In other words, "where the language of the statute is plain and unambiguous, it declares its own meaning and there is no room for construction." Patriarca, 43 A.2d at 56.

      Section 105(3)(b)’s object was to apply this exception to all public officers, not just to those defined as "public servants" in section 104(11) or as "public officials" in section 1301(2). This was section 105(3)(b)’s plain and unambiguous meaning. If the drafters had intended to restrict the section 105(3)(b) exception to just those persons that had been defined as "public servants," or as "public officials" they could easily have inserted either term into section 105(3)(b) as they so easily inserted "public servants" in so many other criminal code sections or as they so easily used "public officials" in chapter 13. Instead, the drafters deliberately chose the term "public officer" for section 105(3)(b). This construction conforms with 1 F.S.M.C. 211 ("The provisions of this code shall be construed according to the fair construction of their terms, with a view to effect its object and to promote justice."). The plain, unambiguous, and ordinary meaning of "public officer," an ordinary term for which no construction is required, is that the term includes any "person holding a post to which he has been legally elected or appointed and exercising governmental functions." Webster’s Third New International Dictionary 1836 (1961).

      Furthermore, the argument that "public officer" cannot possibly refer to state and municipal public officials because the national government lacks the constitutional power to define those offices and to determine or install those officials is frivolous and misplaced. National laws are often applied to persons based on their status, even when that status is defined solely by another government. For instance, the Federated Development Authority Policy Board is by statute composed of the President and the four state governors. 55 F.S.M.C. 326. The national government has no power to define or determine who the four governors are, but yet can apply a statute to them based on their status as defined by state law or constitution. Governors are also made allottees of funds based on their status as governors. 55 F.S.M.C. 217(5). The same is true with the national law making the Port Authority of each state the piloting authority for that state, 19 F.S.M.C. 701, even though national law does not create or define state port authorities. The Constitution requires that traditional leaders be given the respect due them based on their status as traditional leaders, FSM Const. art. V, § 1, but the national government has no authority to define who is a traditional leader. State judicial officers are permitted, under certain circumstances and based on their status as state court judges, to conduct initial appearances of defendants charged with national crimes, FSM Crim. R. 5(d), despite the national government being unable define their status. More examples can be found, if one had to look. The

statute was thus construed as Congress mandated that it be construed. See 1 F.S.M.C. 208 (words and phrases in the FSM Code to be construed according to the common and approved English language usage).

      Wainit also contended that since the section 104(11) definition of a public servant as an "officer or employee . . ." of the FSM, the term "public servant" included public officer. That reasoning misreads section 104(11). That section did not include within its definition of "public servant" all public officers. It only included those that were officers of the FSM national government.

      Wainit also asserted that the new criminal code made the terms "public official" and "public servant" interchangeable, and that this indicates that the Eleventh Congress was "smoothing the wrinkles" out of the criminal code that the First Congress enacted and that "public officer" was therefore also meant to be interchangeable with "public servant." This argument is meritless. First, the new criminal code enacted by the Eleventh Congress does not define "public officer." Second, although in the new criminal code the definition of "public official" is identical to that of "public servant," FSM Pub. L. No. 11-72, § 6(11) (to be codified at 11 F.S.M.C. 104(11)), "public official" was defined differently from "public servant" in the criminal code in effect in 1999. Compare 11 F.S.M.C. 104(11) with 11 F.S.M.C. 1301(2). Third, the views of a later Congress about what an earlier Congress intended (even if Congress had expressly adopted what Wainit contended, which it did not), carry little or no weight. As a matter of law, such evidence can only be given little or no weight. Etscheit v. Adams, 6 FSM Intrm. 365, 381 (Pon. 1994) (a later legislature’s pronouncements concerning the meaning of actions taken by an earlier legislature are generally unreliable); cf. FSM v. Fritz, 12 FSM Intrm. 602, 604 (Chk. 2004) (former Secretary of Finance’s testimony as to his current understanding of the legal effect and meaning of certain regulations can only be given little or no weight since it does not qualify as satisfactory "legislative history"; the regulations speak for themselves); Lonno v. Trust Territory (I), 1 FSM Intrm. 53, 61-62 (Kos. 1982) (legal memo prepared by an agency officer three years after the Secretarial Order it purported to explain or interpret and prepared for a specific lawsuit, does not qualify as satisfactory "legislative history" of the Order).

      Wainit also contended that the purposes of 11 F.S.M.C. 105(3)(b) were not present to trigger its application. Wainit reasoned that a statute’s meaning and application are as interpreted by the courts of the statute’s source and the statute in question was derived from the American Law Institute’s Model Penal Code, which has been adopted and interpreted in various U.S. jurisdictions. Wainit asserted that "the purpose of the exception in 11 F.S.M.C. 105(3)(b) was to address "’a concern that a defendant who remains in public service might retain effective means of concealing his derelictions.’" Motion at 10 (quoting Model Penal Code and Commentaries § 1.06, at 92).

      Wainit relied on authority from Ohio which held that a similar Ohio statute derived from the Model Penal Code did not toll the statute of limitations every time any public official committed a statutory crime, but by using the term "misconduct in office," the statute’s intent was that the statute of limitations would be tolled when the offense either involved a palpable nexus with the accused’s office and the wrongdoing or it, as codified, constituted an offense against justice and public administration or the accused misused his office to conceal the wrongdoing and thwart prosecution. Id. at 11 (citing State v. Sakr, 655 N.E.2d 760, 762 (Ohio Ct. App. 1995)). The Sakr court limited the application of the "public officer" tolling exception to those crimes included in the same chapter of the Ohio code that the tolling provision appeared in, concluding that the legislature intended that it only apply to those offenses. Since that chapter did not include the offenses of kidnapping and attempted rape which Sakr was charged with, that court concluded that the public officer tolling provision did not

apply to Sakr.

      The court concluded that Wainit’s description of section 105(3)(b)’s purpose appeared accurate, in part, but that a further purpose of section 105(3)(b) would appear to be a concern that an accused public officer might also retain an effective means to thwart, block, hinder, or delay a prosecution. In the applicable FSM criminal code, the public officer tolling exception was part of a provision [section 105] of general application to the whole criminal code, not to just one portion. Furthermore, the information alleges that Wainit used his office to commit the charged offenses. Section 105(3)(b) did not require that an accused additionally actually use the office to conceal the wrongful act(s). The tolling of a statute of limitations because of fraud and concealment was provided for in section 105(3)(a), separately from the public officer exception. The court also concluded that the statute’s application was triggered by Wainit’s alleged use of his office to commit allegedly national offenses ) violations of 11 F.S.M.C. 701 (deprivation of another’s FSM constitutional rights) and 11 F.S.M.C. 532(1)(a) (threats in national election matters). (It remains, of course, the government’s burden to prove beyond a reasonable doubt that Wainit committed these offenses in regard to the national, not state, election held on March 2, 1999.)

      Lastly, Wainit also contended that applying section 105(3)(b) to him would raise equal protection issues. This contention was unsupported and without merit.

      The section 105(3)(b) exception to the criminal statute of limitations thus applied to any public officer in any level of government in the FSM who, based on the public officer’s misconduct in office, was charged with the commission of a national criminal offense. It therefore applied to Wainit.

B.  Misdemeanor Statute of Limitations

      The court was uncertain whether Wainit’s motion to dismiss on statute of limitations grounds included the issue that Count II appeared to be a misdemeanor with a two-year statute of limitations (instead of three), so that the statute of limitation might have run even including the three-year "public officer" extension. The court therefore asked the parties to address this point orally at the hearing on Wainit’s motion and invited both parties to submit a brief on the issue. The government submitted a memorandum.

       At the scheduled hearing, the parties agreed that Count II charged a misdemeanor and Wainit took the position that the filing of the misdemeanor charge was untimely since the alleged offense took place in February, 1999 and the current information was on August 13, 2004 ) five years and five months after the alleged offense’s commission. Wainit contended that even if 11 F.S.M.C. 105(3)(b) could extend the two-year misdemeanor statute of limitations for three years, the misdemeanor charge was still filed five months too late and therefore the information should be dismissed in its entirety. For this point, Wainit relied on the section 105(3)(b) language that stated that "in no case shall this provision extend the period of limitations otherwise applicable by more than three years."

      "Except as otherwise provided in this section [105], prosecution for . . . offenses [other than murder] are subject to the following time limitations . . . ." 11 F.S.M.C. 105(2). Subsection 105(4) provides in pertinent part that "[t]he time limitation does not run . . . (b) During any time when a prosecution against the accused for the same conduct is pending in this jurisdiction." It is undisputed that the charges against Wainit in Criminal Case No. 2002-1504 were for the same conduct as is charged against him in this case and that Criminal Case No. 2002-1504 was pending from November 7, 2002 to February 19, 2004.

      The court concluded that, as a general principle, subsection 105(4) operated independently of

subsection 105(3) and was applicable to all limitations on criminal prosecutions. Thus, the time tolled by the operation of subsection (4)(b) cannot be included in the subsection (3)(b) three-year limit to the public officer extension of the statute of limitations. Therefore, the statute of limitations had not run out on the misdemeanor offense charged in Count II and that count was not dismissed.

      To illustrate how these statutory provisions operated on the charges in this case, the following chronological account is helpful. The basic statute of limitations found in 11 F.S.M.C. 105(2) started running in February 1999 when the acts alleged to constitute the offenses charged occurred. For misdemeanor Count II, the "public officer" extension found in 11 F.S.M.C. 105(3)(b) started running in February, 2001 (and for felony Count I, it started running in February, 2002). On November 7, 2002, the continued running of the statute of limitations was tolled (suspended) by 11 F.S.M.C. 105(4) when the information in Criminal Case No. 2002-1504 was filed. When that case was dismissed without prejudice on February 19, 2004, the statute of limitations resumed running where it had left off. Thus, it had not yet run out for either the felony or misdemeanor count when, on August 3, 2004, the government filed the present case charging Wainit with the same conduct as he was charged with in Criminal Case No. 2002-1504.

      Accordingly, the court denied Wainit’s motion to dismiss. Neither count of this prosecution is barred by the applicable statute of limitation. The term "public officer" in 11 F.S.M.C. 105(3)(b) extending, for a maximum of three years, the statute of limitations for a national offense based on misconduct in office committed by a public officer included municipal mayors. The running of the statute of limitations for the charges in this case was tolled by the earlier filing and pendency of Criminal Case No. 2002-1504 until that case was dismissed without prejudice on February 19, 2004.

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