*    *    *    *

HEADNOTES

*    *    *    *

COURT'S OPINION

READY E. JOHNNY, Associate Justice:

On December 7, 2011, the court heard the defendant's Motion to Dismiss Additional or Different Charge and Motion to Dismiss the Superseding Information, filed November 14, 2011, and the prosecution's opposition, filed November 25, 2011. The motion is denied. The court's reasons follow.

I. PROCEDURAL HISTORY

On July 12, 2011, the government filed an information, docketed as Criminal Case No. 2011-1502. It alleged that the defendant, Ron a/k/a "Rolly" Meitou, was, on July 9, 2011, intoxicated and that he openly displayed a handgun and it charged him with unlawful possession of a handgun in violation of 11 F.S.M.C. 1023(5). On September 29, 2011, the government filed a superseding information, docketed as Criminal Case No. 2011-1503, with essentially the same factual allegations but charging Meitou with carrying a gun while under the influence of alcohol in violation of 11 F.S.M.C. 1023(4) [Count II] in addition to possession of a handgun in violation of 11 F.S.M.C. 1023(5) [Count I]. On October 20, 2011, on motion (filed on September 29, 2011, in Criminal Case No. 2011-1502) and after hearing, the Criminal Case No. 2011-1502 information was dismissed without prejudice and an initial appearance held on the charges in this case.

Meitou now moves to dismiss this case. He contends that the additional charge of carrying a gun while under the influence of alcohol must be dismissed because the filing of this new charge constitutes a Rule 7(a) amendment of the original information and Rule 7(e) prohibits amendment to charge an additional or different offense. Meitou also contends that the government's "refiling" of the criminal information with the same charge is harassment and not in good faith because the dismissal of Criminal Case No. 2011-1502 with the intent to refile was not in the public interest and results in unnecessary delay in bringing him to trial in violation of Criminal Rule 48(b).

Meitou further contends that the refiled original charge must also be dismissed because the information does not give him proper notice of the conduct or acts underlying the alleged offense since it does not show what type of handgun he was alleged to have possessed, whether it was a pistol or revolver, its color and the length of its barrel, and because the information failed to show that his possession of the firearm did not come within any of the exemptions from penal liability specified in the statute, in particular, it did not allege whether it was in serviceable condition capable of being discharged or that he did not keep or maintain the gun as a curio, ornament, or historical piece.

II. COUNT II

Criminal Procedure Rule 7(e) bars amending an information to charge an "additional or different offense." Meitou asserts that the 2011-1503 superseding information constitutes an amendment of the 2011-1502 information to charge an additional offense in violation of Rule 7(e). The court must

[18 FSM R. 126]

reject this contention. While Rule 7(e) bars amending an information to charge an additional offense, the prosecution may file a superseding information with additional charges. See, e.g., United States v. Personal Fin. Co., 13 F.R.D. 306, 311 (S.D.N.Y. 1952) (since Rule 7(e) would bar amending the information, prosecution was given 20 days to file a superseding information to add new offenses); cf. United States v. Brewer, 681 F.2d 973, 974 (5th Cir. 1982) (superseding information added two new counts and changed the date of an offense).¹ The Rule 7(e) bar does not apply to a superseding information. Personal Fin. Co., 13 F.R.D. at 311. An information is considered superseding "when the subsequent information charges a different offense or alleges facts different from the original charges." People v. Porter, 931 N.Y.S.2d 453, 455 (Geneva City Ct. 2011).

Generally, the prosecution will file a superseding information when new facts or evidence have come to light and it seeks to prosecute new or additional charges stemming from the same course of conduct or when the prosecution seeks to correct defects² in the charges already filed. In this case, no new evidence or facts have come to light, but the government seeks to prosecute an additional charge, carrying a gun while under the influence of alcohol, the factual allegations for which had been set forth in the Criminal Case No. 2011-1502 information but which was not charged.

A superseding information may not be filed once jeopardy has attached, FSM v. Esefan, 17 FSM Intrm. 389, 398 n.6 (Chk. 2011), or once the defendant has pled guilty, People v. Cibro Oceana Terminal Corp., 559 N.Y.S.2d 782, 784 (N.Y. Crim. Ct. 1990). But if neither of these events has occurred, the government may, if the circumstances warrant, file a superseding information. In this case, jeopardy has not yet attached since jeopardy attaches only when the first witness is sworn in to testify at trial, Kosrae v. George, 17 FSM Intrm. 5, 7 n.1 (App. 2010); FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 128 (Pon. 1995), and Meitou has not yet gone to trial.³ Further, Meitou has pled not guilty.

The superseding information was therefore proper unless it and the dismissal of the original information were done for the purpose of harassment. "The principal object of the [Rule 48(a)] 'leave of court' requirement [for a dismissal without prejudice by the prosecution] is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the [prosecution] moves to dismiss an indictment over the defendant's objection." Rinaldi v. United States, 434 U.S. 22, 29 n.15, 98 S. Ct. 81, 85 n.15, 54 L. Ed 2d 207, 214 n.15 (1977). There is no support for Meitou's claim that the superseding information was filed to harass him and Meitou did not object to the dismissal of 2011-1502. The dismissal of a prosecution without prejudice is proper when the charging document (in the FSM, an information) has been superseded. FSM v. Tomiya Suisan Co., 11 FSM Intrm. 15, 17 (Yap 2002). The request for a dismissal without prejudice of the original information

[18 FSM R. 127]

in No. 2011-1502 when the superseding information was filed as Criminal Case No. 2011-1503 was therefore not in bad faith. It is in the public interest that the prosecution accurately charges the offenses that may have been committed.

The superseding information was prompt enough that Meitou's trial has not been unnecessarily delayed. Trial for Meitou's alleged July 9, 2011 offenses will, even with the delays due to discovery, to motion practice (attributable to the movant), and to delays incident to holidays, occur within seven months of the date of the offenses' alleged commission. Seven months from alleged offense to trial is not an undue delay entitling an accused to a Rule 48(b) dismissal.

Meitou does not contend that because of the superseding information's additional charge he has inadequate time to prepare his defense. If more time to prepare a defense is needed, the proper remedy to cure that prejudice would be a continuance, not a dismissal. See FSM v. Wainit, 13 FSM Intrm. 433, 443-44 (Chk. 2005); FSM v. Wainit, 11 FSM Intrm. 186, 190-91 (Chk. 2002).

Since a superseding information is the proper vehicle to add and prosecute an additional charge, Meitou's motion to dismiss Count II is denied.

III. ESSENTIAL ELEMENTS OF FIREARMS POSSESSION AND COUNTS I AND II

A. Type or Description of Handgun

Meitou contends that both Counts I and II must be dismissed because the information does not give him proper notice of the conduct or acts underlying the alleged offenses since the information does not show what type of handgun Meitou was alleged to have possessed, whether it was a pistol or revolver, its color, and the length of its barrel.

Since an information's fundamental purpose is to inform the accused of the charges so that he may prepare his defense, the test for sufficiency is whether it is fair to the accused to require him to defend on the basis of the charge as stated in the information. FSM v. Xu Rui Song, 7 FSM Intrm. 187, 189 (Chk. 1995). Generally, an information is sufficient if it adequately apprises the accused of the charges against which the accused must be prepared to defend and if it is detailed enough to enable the accused to plead the case as a bar to future prosecutions for the same offenses. Laion v. FSM, 1 FSM Intrm. 503, 516-17 (App. 1984).

In FSM v. Sato, 16 FSM Intrm. 26, 28 (Chk. 2008), the court held that a criminal information would not be dismissed when it failed to allege that the handgun in question was .22 caliber or greater since the handgun's caliber was irrelevant because 11 F.S.M.C. 1023(5) prohibited the possession of any handgun, regardless of caliber. Similarly, since the possession of any handgun⁴ is banned, an information charging the illegal possession of a handgun is not deficient when the information does not allege the handgun's exact barrel length, color, caliber,⁵ or whether the handgun was a pistol or a revolver. The allegation that an accused possessed a handgun is an allegation that the firearm had a barrel length under twenty-six inches because that is the statutory definition of a handgun. 11 F.S.M.C. 1004(7).

[18 FSM R. 128]

B. Statutory Exemptions

Meitou also contends that the information must be dismissed because there was no showing that his alleged handgun possession did not come within any of the statutory exemptions to criminal liability for firearms possession. The prosecution contends that its allegation that the possession of the handgun was unlawful is sufficient to put Meitou on notice that the prosecution alleges that none of the statutory exemptions apply and, if necessary, will prove so at trial.

In Esefan, the court held that an information that charged a defendant's shotgun possession was "unlawful" omitted the essential element of a factual allegation that made that possession unlawful when it cited a statute that provided that no person shall possess any firearm other than as hereinafter provided and several different following provisions created different ways a shotgun's possession could be unlawful and carried varying penalties. Esefan, 17 FSM Intrm. at 394. In this case, since all handgun possession is unlawful unless one of the exemptions applies, the Esefan ruling is not directly applicable.

The exemptions are found in 11 F.S.M.C. 1003. The appellate court, when it considered the virtually identical predecessor statute⁶ held that three of the four statutory exemptions were defenses within 11 F.S.M.C. 107 for which the accused had the "the burden of going forward with sufficient evidence to raise these exemptions as issues" although the ultimate burden of persuasion still remained with the government. Ludwig v. FSM, 2 FSM Intrm. 27, 36 (App. 1985). Meitou therefore has the burden of providing enough evidence to raise as an issue any of the three exemptions that may be applicable but he has not done so. The prosecution does not have to make the initial showing but "'ultimately bears the burden of disproving the applicability of the exception when it is properly presented.'" Id. at 35 (quoting United States v. Mayo, 705 F.2d 62, 74-75 (2d Cir. 1983)).

The Ludwig court, however, viewed the other exemption differently. Ludwig, 2 FSM Intrm. at 36. That exemption, still in effect, provides that: "This chapter shall not apply to: . . . firearms which are in unserviceable condition and which are incapable of being fired or discharged and which are kept as curios, ornaments or for their historical significance or value." 11 F.S.M.C. 1003(2). But, since "'[f]irearm' means any device, by whatever name known, which is designed or may be converted to expel or hurl a projectile or projectiles by the action of an explosion, a release, or an expansion of gas, including but not limited to guns . . . ." 11 F.S.M.C. 1004(5), the Ludwig court reasoned that

This carefully written language precludes evasion of the statute's purpose by such simple expedients as dismantling the weapon, maintaining weapons and ammunition in separate places, removing one easily replaceable part, or other similar ploys. Under the statute, current operability is not an essential element of the crime of possession of a firearm.

Ludwig, 2 FSM Intrm. at 34. Since current operability is not an essential element, the superseding information is not insufficient because it fails to plead that the handgun Meitou allegedly possessed was currently operable. The (superseding) information will not be dismissed on this ground.

The prosecution acknowledges that it will have the burden at trial to show that the 1003(2) exemption does not apply in this case but contends that the 11 F.S.M.C. 1003(2) exemption, like the other 11 F.S.M.C. 1003 exemptions, is a matter of proof, not of pleading. However, the Ludwig court held that "inapplicability of the 11 F.S.M.C. [1003(2)] exemption is an essential element of the

[18 FSM R. 129]

governments case in a prosecution for unlawful possession of a firearm . . . ." Ludwig, 2 FSM Intrm. at 37. Since it is an essential element the inapplicability of 11 F.S.M.C. 1003(2) must be pled. An information must charge all the essential elements of the offense, when it does not include all the essential elements constituting the offense that the prosecution has charged, it must be dismissed. Esefan, 17 FSM Intrm. at 394-95; see also FSM v. Aiken, 16 FSM Intrm. 178, 183 (Chk. 2008); FSM v. Sam, 14 FSM Intrm. 328, 334 (Chk. 2006).

Under 11 F.S.M.C. 1003(2), in order to be exempt from criminal liability for possession of a firearm, the court must be persuaded beyond a reasonable doubt that "the firearm is: (1) unserviceable; (2) incapable of being fired or discharged; and (3) being kept as a curio, ornament or for its historical value." Ludwig, 2 FSM Intrm. at 37-38. All three of these requirements must be satisfied for this exemption to apply. "Current operability absolutely negates application of the Section [1003(2)] exemption." Ludwig, 2 FSM Intrm. at 37. For the exemption to apply, a firearm's current inoperability is not enough; it must also be proven that the firearm was not being kept as either a curio, or an ornament, or for its historical value or significance. Thus, an information is sufficient if it or the supporting affidavit contains an allegation that negates any one of the three 11 F.S.M.C. 1003(2) requirements and the prosecution's proof at trial is sufficient if it negates beyond a reasonable doubt any one of the three requirements.

Liberality is the guide in testing an information's sufficiency in charging all the essential elements of the offense, although this applies to matters of form and not of substance. Esefan, 17 FSM Intrm. at 394. To determine whether an information is deficient, the information and its supporting affidavit must be read together. Id. at 395; Sato, 16 FSM Intrm. at 29. If the information contains allegations from which it may be inferred that the 1003(2) exemption is inapplicable, it is sufficient. In neither the superseding information nor the supporting affidavit is there a factual allegation that the handgun is serviceable or is capable of being fired or discharged (or actually was fired or discharged). Either allegation, if true, would negate an 11 F.S.M.C. 1003(2) exemption and thus be sufficient in charging a firearms possession offense.

In Ludwig, the appellate court ruled that "[t]he evidence . . . that the weapon was loaded and being carried at 1:30 a.m. in strange rigging at the hand of one who had been drinking, at a time when gunshots had been heard in the area, was inconsistent with each of those [three] requirements" for the exemption to apply. Ludwig, 2 FSM Intrm. at 38. The only evidence the Ludwig court cited that would be inconsistent with the 11 F.S.M.C. 1003(2) exemption requirement that the firearm was being kept as a curio, or an ornament, or for its historical value or significance was "that the weapon was loaded and being carried at 1:30 a.m. in strange rigging at the hand of one who had been drinking." Ludwig, 2 FSM Intrm. at 38. (That the weapon was loaded could also apply to the unserviceable and inoperable requirements.)

In this case, the supporting affidavit avers that Meitou had been drinking and was openly displaying the handgun at the public market in Nepukos, Weno, at 3:40 p.m. on July 9, 2011. Since, in the Ludwig court's view, an intoxicated defendant displaying a firearm in public is inconsistent with the 1003(2) exemption, Meitou's intoxication and open display of a handgun in the public market can be seen as inconsistent with a claim that he was keeping the handgun as a curio, ornament, or a piece with historical value. The court views this averment as just barely enough to give Meitou notice of the essential element of the charges against him that Meitou asserts is lacking – that the 11 F.S.M.C. 1003(2) exemption does not apply.

IV. CONCLUSION

Accordingly, the information adequately apprises Meitou of the charges he must be prepared to

[18 FSM R. 130]

defend and is detailed enough to be used as a bar to a future prosecution for the same offenses. Meitou's motion to dismiss is therefore denied. Nonetheless, if the prosecution wishes to lessen any uncertainty on a possible appeal, the court hereby gives it leave to amend, no later than January 24, 2012, the current information to clarify its factual allegations about the 11 F.S.M.C. 1003(2) exemption. Since the defendant has entered not guilty pleas to the charges in this case, trial is HEREBY SET for January 30, 2012, at 9:30 a.m.

Footnotes:

¹ Although the court must first look to FSM sources of law to establish legal requirements in criminal cases rather than begin with a review of other courts' cases, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when an FSM court has not previously construed an FSM criminal procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule. See, e.g., Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167 n.3 (App. 2007); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984). Whether Rule 7(e) is applicable to a superseding information has not been considered before.

² It "is proper to file a superseding information in response to a defense motion to dismiss the original instrument for insufficiency." People v. Cibro Oceana Terminal Corp., 559 N.Y.S.2d 782, 784 (N.Y. Crim. Ct. 1990).

³ The trial court allowed the prosecution to file a superseding information on the day of trial in United States v. Doe, 627 F.2d 181, 183, 58 A.L.R. Fed. 224, 228 (9th Cir. 1980) (juvenile delinquency finding vacated because defendant had made a timely request to be tried as an adult).

⁴ "'Handgun' means a pistol or revolver with an overall length of less than twenty-six inches." 11 F.S.M.C. 1004(7).

⁵ The information does allege that the handgun was a .22.

⁶ The exemptions were then codified at 11 F.S.M.C. 1203.