FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Shiro, 21 FSM R. 195 (Chk. 2017)
FEDERATED STATES OF MICRONESIA
Plaintiff,
vs.
LUCKY SHIRO, ONSORI SINO, TAISIRO
LOVES, and KACHURA ANGKEN,
Defendants.
CRIMINAL CASE NO. 2016-1503
ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS AND SETTING PLEA HEARING
Dennis K. Yamase
Chief Justice
Hearing: December 15, 2016
Decided: March 29, 2017
APPEARANCES:
For the Plaintiff: Robert Nakasone, Esq. (argued)
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendant Bethwell O'Sonis, Esq.
(Shiro) Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942
For the Defendant: Charleston Bravo
(Sino) Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942
For the Defendant: Lorrie Johnson-Asher, Esq.
(Loves) Chief Public Defender
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941
For the Defendant: Derensio S. Konman, Esq.
(Angken) Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942
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Any defendant in a criminal case has the right to be informed of the nature of the accusation against him. This constitutional protection is implemented through Criminal Rule 7(c)(1), which requires that the information be a plain, concise and definite written statement of the essential facts constituting the offense charged. FSM v. Shiro, 21 FSM R. 195, 199 (Chk. 2017).
An information is required to: 1) contain a plain, concise and definite written statement of the essential elements of the offense charged; 2) fairly inform the defendant of the charge against which he must defend; and 3) enable the defendant to plead an acquittal or conviction in bar of future prosecutions of the same offense. FSM v. Shiro, 21 FSM R. 195, 199 (Chk. 2017).
The information's fundamental purpose is to inform the defendant of the charge so that he may prepare his defense, and the test for sufficiency is whether it is fair to the defendant to require him to defend on the basis of the charge as stated in the particular information. FSM v. Shiro, 21 FSM R. 195, 199 (Chk. 2017).
An information should be sufficiently definite, certain, and unambiguous as to permit the accused to prepare his defense. Common sense will be a better guide than arbitrary and artificial rules, and the sufficiency of the information will be determined on the basis of practical, rather than technical, considerations. FSM v. Shiro, 21 FSM R. 195, 199 (Chk. 2017).
An information is sufficient if it contains a plain, definite, and concise statement of the essential facts constituting the offense charged so that the defendant can prepare his defense and so that the defendant can avail himself of his conviction or acquittal as a bar to subsequent prosecutions. The true test of an information's sufficiency is not whether it could have been made more definite and certain, but whether it contains the elements of the offenses intended to be charged. FSM v. Shiro, 21 FSM R. 195, 199 (Chk. 2017).
At common law, an allegation of the date of the crime was required, and a good pleading will still state that the crime was committed on a particular day, month, and year. However, the modern view is that a defect in the allegation of the date is a defect in form only. Indeed, great generality in the date allegation is acceptable. FSM v. Shiro, 21 FSM R. 195, 201 (Chk. 2017).
When time is not an essential element in trafficking in children cases; when the pertinent statute does not require proof of an exact date; and when each count of the information alleges the offenses occurred in the latter months of 2015, including September and October, the criminal information alleges with sufficient specificity the time period the offenses were allegedly committed so as to satisfy the defendants' right to due process. FSM v. Shiro, 21 FSM R. 195, 202 (Chk. 2017).
Although it is desirable for the information to allege the place where the alleged crime was
committed, it is sufficient to state that the crime took place within the court's jurisdiction. FSM v. Shiro, 21 FSM R. 195, 202 (Chk. 2017).
Since location is not an essential element in trafficking in children cases and since the pertinent statute does not require proof of an exact location, when each count alleges the general areas on Patta Island of Chuuk where the offenses were allegedly committed, the criminal information alleges with sufficient specificity the locations that the offenses were allegedly committed so as to satisfy the defendants' right to due process. FSM v. Shiro, 21 FSM R. 195, 202 (Chk. 2017).
Since the human trafficking statute does not define recruiting, transporting, harboring, transferring, or receiving, these words' plain meaning will be used to determine whether the actions alleged in each count of the criminal information are included within the statute. FSM v. Shiro, 21 FSM R. 195, 203 (Chk. 2017).
When, without getting into a lesson in semantics, the statutory words' plain meanings lead to the conclusion that the human trafficking statute intended to include the actions allegedly taken by the defendants to secure access to the minor victim because the various methods by which they gained access to her were a form of recruitment and in each allegation the minor was received by the respective defendant. FSM v. Shiro, 21 FSM R. 195, 203 (Chk. 2017).
There are two essential elements a criminal information charging conspiracy must contain to satisfy due process standards – 1) an agreement with one or more persons that they, or one or more of them, will commit a crime and 2) an overt act in furtherance of the conspiracy by a party to the conspiracy. FSM v. Shiro, 21 FSM R. 195, 204 (Chk. 2017).
A conspiracy agreement need not be explicit, and the ultimate commission of the underlying offense need not be proved. FSM v. Shiro, 21 FSM R. 195, 204 (Chk. 2017).
Conspiracy to commit a crime is an offense separate and distinct from the crime that is the object of the conspiracy. FSM v. Shiro, 21 FSM R. 195, 204 (Chk. 2017).
A conspiracy count is sufficient if it alleges an agreement, identifies the object towards which the agreement is directed, and an overt act. It is not necessary that the information state the object of the agreement with the detail required of an information charging the substantive offense or that it allege with precision all the elements essential to the offense which is the conspiracy's object; allegations clearly identifying the offense the defendants conspired to commit are sufficient. FSM v. Shiro, 21 FSM R. 195, 204 (Chk. 2017).
For conspiracy, the agreement does not have to be explicit. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement. FSM v. Shiro, 21 FSM R. 195, 204 (Chk. 2017).
Merely because each defendant acted individually after the implicit agreement does not mean a conspiracy was not committed because any party to the conspiracy who then commits an overt act in furtherance of the conspiracy satisfies the statute's second essential element. FSM v. Shiro, 21 FSM R. 195, 205 (Chk. 2017).
Although the criminal information could have been drafted with greater care, the defendants are not misled to their prejudice based on the information's language charging them with conspiracy to commit trafficking in children when, from Counts I through VIII and the supporting affidavit, it should be clear that they are charged with conspiring to commit the offense of trafficking in children and when the conspiracy count (IX) describes the substantive underlying offense with enough specificity to sufficiently apprise the defendants of the charges which they must be prepared to defend and when it is detailed enough so that they may plead this case as a bar to future prosecutions for the same crime alleged. FSM v. Shiro, 21 FSM R. 195, 205 (Chk. 2017).
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DENNIS K. YAMASE, Chief Justice:
On February 17, 2016, the Federated States of Micronesia ("Government") filed a Criminal Information. The Criminal Information charges defendant Onsori Sino (Sino) with three counts of trafficking in children, 11 F.S.M.C. 612 and 616; defendant Kachura Angken (Angken) with one count of trafficking in children, 11 F.S.M.C. 612 and 616; defendant Taisiro Loves (Loves) with one count of trafficking in children, 11 F.S.M.C. 612 and 616; defendant Luck Shiro (Shiro) with one count of trafficking in children, 11 F.S.M.C. 612 and 616; and all above defendants with one count of conspiracy to commit trafficking in children, 11 F.S.M.C. 203 and 616.
On July 15, 2016, defendant Shiro filed his Motion to Dismiss requesting that the court dismiss the charges against him. On November 10, 2016, defendant Siro filed his omnibus motion which moves the court to dismiss the Criminal Information as against him. The Government filed its opposition thereto on December 6, 2016.
On December 15, 2016, the court heard counsel's arguments on the pending motions to dismiss. Appearing on behalf of Sino was Charleston Bravo, on behalf of Angken was Derensio Konman, on behalf of Loves was Lorrie Johnson-Asher, and on behalf of Shiro was Bethwell O'Sonis of the FSM Public Defenders Office. Counsel for Sino, Loves, and Shiro appeared telephonically from the FSM Supreme Court in Palikir, Pohnpei. Robert Nakasone appeared for the Government. All defendants were present before the court with the exception of defendant Loves, whose counsel assured the court there were no problems under Rule 43 of the FSM Rules of Criminal Procedure and encouraged the hearing to move forward.
Each defendant joined in the pending motions to dismiss and the court heard arguments from counsel. Because each defendant joined in the pending motions, and because the motions are substantively identical, the court will address them together.
The authority presented by the defendants for their dismissal request is Rule 12(b) of the FSM Rules of Criminal Procedure which allows for, in the form of a pretrial motion, defenses and objections based on defects in the institution of the prosecution and defects in the information. The asserted grounds for the defendants' motions are: (1) The Criminal Information fails to state the dates and places of the alleged crimes with sufficient specificity; and (2) The Information fails to allege factual allegations of recruiting, transporting, transferring, harboring, or receiving for the trafficking in children counts (Counts I through VIII) and of conspiracy (Count IX).
"Any defendant in a criminal case has the right 'to be informed of the nature of the accusation' against him." FSM v. Xu Rui Songaa, 7 FSM R. 187, 189 (Chk. 1995) (quoting FSM Const. art. IV, § 6). "This constitutional protection is implemented through our Criminal Rule 7(c)(1), which requires that an information must 'be a plain, concise and definite written statement of the essential facts constituting the offense charged.' " Id.; FSM v. Moses 9 FSM R. 139, 145 (Pon. 1999).
An information complies with all of these requirements if it: (1) contains a plain, concise and definite written statement of the essential elements of the offense charged; (2) fairly informs a defendant of the charge against which he must defend; and (3) enables him to plead an acquittal or conviction in bar of future prosecutions of the same offense. FSM v. Sorim, 17 FSM R. 515, 519 (Chk. 2011); Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 2907, 41 L. Ed. 2d 590, 620 (1974).
The fundamental purpose of the information is to inform the defendant of the charge so that he may prepare his defense, and the test for sufficiency is whether it is fair to the defendant to require him to defend on the basis of the charge as stated in the particular information. FSM v. Xu Rui Song, 7 FSM R. 187, 189 (Chk. 1995). "[T]he 'information should be sufficiently definite, certain, and unambiguous as to permit the accused to prepare his defense. Common sense will be a better guide than arbitrary and artificial rules, and the sufficiency of the information will be determined on the basis of practical, rather than technical, considerations.' " Id. (quoting 1 CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 125, at 384-85 (1982)).
An information is sufficient if it contains a plain, definite, and concise statement of the essential facts constituting the offense charged so that the defendant can prepare his defense and so that the defendant can avail himself of his conviction or acquittal as a bar to subsequent prosecutions. FSM v. Sam, 14 FSM R. 328, 333 (Chk. 2006); Laion v. FSM, 1 FSM R. 503, 516-17 (App. 1984) (generally sufficient for information to set forth offense in words of the statute itself where it apprises defendant of the charges against which he must be prepared to defend and detailed enough to enable him to plead his case as a bar to future prosecutions for the same offense). "The true test of the sufficiency of an [information] is not whether it could have been made more definite and certain, but whether it contains the elements of the offenses intended to be charged." United States v. Debrow, 346 U.S. 374, 376, 74 S. Ct. 113, 114, 98 L. Ed. 92, 96 (1953) (citing Cochran v. United States, 157 U.S. 286, 290, 15 S. Ct. 628, 630, 39 L. Ed. 704, 705 (1895); see Rosen v. United States, 161 U.S. 29, 34, 16 S. Ct. 434, 480, 40 L. Ed. 606, 607 (1896); Hagner v. United States, 285 U.S. 427, 431, 52 S. Ct. 417, 419, 76 L. Ed. 861, 865 (1932)).
Count I of the Criminal Information charges defendant Sino of committing the offense of trafficking in children in violation of 11 F.S.M.C. 612 and 616 when, sometime in September 2015, on Patta Island, Chuuk State,
he lured a fifteen-year old minor . . . who was on her way to buy pampers for her aunt
. . . and the said defendant followed said minor and urged the minor to let [his] own daughter . . . buy the pampers for the said minor while the defendant lured the said minor to go with him to his house to have sex with him in exchange for marijuana.
Criminal Information at 1. Count II charges Sino of committing the offense of trafficking in children in violation of 11 F.S.M.C. 612 and 616, when, "a few days after" the first incident described in Count I, he
sent his own daughter . . . to call the said minor who was at her house and told her that her father, said defendant Onsori Sino, wanted to see the minor [at his house]. When the minor went to see the said defendant Onsori at the latter's house, Onsori again urged her to have sex with him in exchange for $2.00 which he paid her after having sex with her.
Id. at 2-3. Count III charges Sino of committing the offense of trafficking in children in violation of 11 F.S.M.C. 612 and 616 when,
[a]gain, a few days after the said defendant sent his own daughter to bring the minor victim to have sex with him at his house for $2.00 . . . the said defendant again sent his own daughter . . . to call the said minor to come to her father's house where the said defendant father again lured the minor to have sex with him again for another $2.00 which he paid her after having intercourse with her.
Id. at 3.
Count IV charges defendant Angken of committing the offense of trafficking in children in violation of 11 F.S.M.C. 612 and 616 when
[i]n October, 2015, around 5 pm in Epin Village, Patta Island, Chuuk State, . . . he solicited a fifteen-years old minor [sic] . . . to have sexual intercourse with him at his taro patch with the promise of payment of $15.00 which he paid to the said minor after he had sexual intercourse with her.
Id.
Count V charges defendant Taisiro Loves of committing the offense of trafficking in children in violation of 11 F.S.M.C. 612 and 616 when
[i]n 2015, on a Sunday at about 9 am, also on Patta Island, . . . [he] lured the same fifteen-years old minor [sic] . . . who was on her way to church, to join said defendant in the house belonging to one Katarino, also of Patta Island, an induced the minor to have sexual intercourse with her in the house for $2.00 which he paid to her after having intercourse with her.
Id. at 4.
Count VI charges defendant Lucky Shiro of committing the offense of trafficking in children in violation of 11 F.S.M.C. 612 and 616 when
[a]lso, at about 7 pm one night in 2015, on the same Patta Island, . . . [he] flashed his flashlight at the same minor . . . who walked on the road, and lured said minor into his house to have sexual intercourse with him in his house in exchange for the payment of
$2.00 which he paid her after having sexual intercourse with her.
Id. at 5. Count VII charges Shiro of committing the offense of trafficking in children in violation of 11 F.S.M.C. 612 and 616 when, "about three nights after" the incident described in Count VI, "the same minor again passed by on the road by [his] house and [he] again called her into his house and had sexual intercourse with her in exchange for the payment of another $2.00." Id. at 6. Count VII similarly charges Shiro of committing the offense of trafficking in children in violation of 11 F.S.M.C. 612 and 616 when, "[a]bout six days after" the incident described in Count VI,
he again invited the same minor into his same house and lured her to have sex with him again on the promise of payment of another $2.00 . . . [but] did not pay the minor as he promised her and, instead, urged the minor to leave his house after he had sexual intercourse with her.
Id.
Count IX of the Criminal Information charges all the defendants of conspiracy to commit trafficking in children in violation of 11 F.S.M.C. 203 and 616 when,
[d]uring the latter months of 2015 including September and October, . . . the said defendants who work together as leaders of the same church parish, knowingly shared information about the vulnerability of the said minor to submit to sexual advances in exchange for the payment of money or goods and then each and all of them acted on their own in pursuing sexual intercourse with the said minor in exchange [for] money or material goods, some of them on repeated occasions with the same or similar pattern of payments.
A. Failure to State the Exact Date the Defendants Committed the Alleged Crime
The defendants argue that the Criminal Information does not state the date of the alleged offense with sufficient particularity so as to make it fair for them to prepare a defense. They argue that it is patently unreasonable for the Government to expect them to prepare a defense to the charges because the dates of the alleged incidences are indefinite and make it virtually impossible to prepare an alibi defense for such a broad time range. The defendants also argue that the time alleged should have been more specific because the age of the victim herein as an early adolescent should not have been a hindering factor in the Government's investigation because she was, in all senses, a young adult and should have been able to fully recall more specific dates.
The court must be mindful of cases involving a child victim, even those on the cusp of adulthood. Trafficking in children for the purposes of prostitution cases often encompass a period of time and a pattern of conduct and, as a result, a singular event or date is not likely to stand out in a child's mind. Therefore, a more relaxed application of notice requirements is appropriate. See State v. Fawcett, 426 N.W.2d 91, 96 (Wis. Ct. App. 1988) ("In a case involving a child victim, we conclude a more flexible application of notice requirements is required and permitted. The vagaries of a child's memory more properly go to the credibility of the witness and the weight of the testimony, rather than to the legality of the prosecution in the first instance.").
At common law, an allegation of the date of the crime was required, and a good pleading will still state that the crime was committed on a particular day, month, and year. 1 CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD, FEDERAL PRACTICE AND PROCEDURE§ 125, at 566 (4th ed. 2008); Ledbetter v. United States, 170 U.S. 606, 613, 18 S. Ct. 774, 776, 42 L. Ed. 1162, 1164 (1898). However, the modern view is that a defect in the allegation of the date is a defect in form only. Arnold v. United States, 336 F.2d 347, 353 (9th Cir. 1964) ("It cannot be said that the indictment was insufficient because where time is not an essential ingredient of the offense, it is sufficient to charge facts which show that the offense was committed within the statutory period of limitation."), cert. denied, 380 U.S. 982 (1965); People v. Vitug, No. Crim. 90-00081A, 1991 WL 336914, at *2 (D. Guam App. Div. June 13, 1991), aff'd, 974 F.2d 1343 (9th Cir. 1992).
Indeed, great generality in the date allegation is acceptable. 1 CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD, FEDERAL PRACTICE AND PROCEDURE § 125, at 566-67 (4th ed. 2008); United States v. Titterington, 374 F.3d 453, 454 (6th Cir. 2004) ("[I]t suffices that the indictment alleges facts establishing that the offense occurred within the limitations period."); see e.g., State v. Fawcett, 426 N.W.2d 91, 96 (Wis. Ct. App. 1988) (where defendant was alleged to have committed two sexual assaults sometime over a six-month period against a ten-year-old victim, court held defendant was adequately informed of the charges against him).
In the FSM, time is not an essential element in trafficking in children cases and the pertinent statute, 11 F.S.M.C. 616, does not require proof of an exact date. Nevertheless, each count of the information alleges the offenses occurred in the latter months of 2015, including September and October. Therefore, the court believes the Criminal Information alleges with sufficient specificity the time period the offenses were allegedly committed so as to satisfy the defendants' right to due process. 1
B. Failure to State the Exact Places the Defendants Committed the Alleged Crimes
The defendants also argued that the Criminal Information does not allege with specificity the locations that the alleged offenses took place.
Although it is desirable for the information to allege the place where the alleged crime was committed, it is sufficient to state that the crime took place within the jurisdiction of the court. 1 CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD, FEDERAL PRACTICE AND PROCEDURE ٥ 125, at 564 (4th ed. 2008); see e.g., Flores v. United States, 338 F.2d 966, 967 (10th Cir. 1964) ("An indictment alleging the commission of the offense within the jurisdiction of the trial court meets the required certainty of place of commission.") (citing Butler v. United States, 197 F.2d 561, 563 (10th Cir. 1952)); Burk v. United States, 179 F.2d 305, 306 (4th Cir. 1950) (federal indictment which merely charged crime as having been committed within federal district without specifying county or division within which it was committed sufficiently charged commission within district of court's jurisdiction).
Moreover, in line with the court's reasoning above regarding the date of the alleged offenses, location is not an essential element in trafficking in children cases and the pertinent statute, 11 F.S.M.C. 616, does not require proof of an exact location. Nevertheless, each count alleges the general areas on Patta Island of Chuuk the offenses were allegedly committed. Therefore, the court believes the Criminal Information alleges with sufficient specificity the locations that the offenses were allegedly committed so as to satisfy their right to due process.
C. Failure to Allege the Factual Allegations of Recruiting, Transporting, Transferring, Harboring, or Receiving
11 F.S.M.C. 616 states that "[a] person who knowingly recruits, transports, transfers, harbors, or receives a child by an means for the purposes of exploitation shall be guilty of child trafficking."
The defendants move to dismiss their respective trafficking in children charges because they argue that the Criminal Information and attached affidavit of probable cause fail to allege the factual allegations of recruiting, transporting, harboring, transferring or receiving of a child by any means, required as an essential element to the offense under 11 F.S.M.C. 616. They argue that the allegations, if true, would prove only that they were the "end user," not the trafficker or recruiter.
The statute does not define recruiting, transporting, harboring, transferring, or receiving. However, while there is no statutory definitions, these words' plain meaning leads to the conclusion that it includes the actions alleged in each count of the Government's Criminal Information. FSM Social Sec. Admin. v. Kingtex (FSM) Inc., 8 FSM R. 129, 131 (App. 1997) (court must give effect to the plain meaning of a statutory provision whenever possible). Count I alleges that Sino "lured" and "urged" the minor victim to follow him to his house, Counts II and III allege that Sino sent his own daughter to call upon the minor victim to come to his house, Count IV alleges that Angken "solicited" the minor victim, Count V alleges that Loves "lured" and "induced" the minor victim into his house, Counts VI, VII, and VII allege that Shiro "flashed his flashlight," "lured," "called," and "invited" the minor victim into his house.
Without getting into a lesson in semantics, the statutory words' plain meanings lead to the conclusion that they intend to include the alleged actions taken by the defendants to secure access to the minor victim here because the various methods by which they gained access to her were a form of recruitment and in each allegation the minor was received by the respective defendant.
D. Failure to Allege the Factual Allegations of Conspiracy
The defendants move to dismiss Count IX because they allege that nowhere in the information and affidavit of probable cause are there facts that any of them conspired, confederated, or agreed with any of the others to commit trafficking of children under 11 F.S.M.C. 203 and 616 and that the allegations were allegedly performed individually by defendants.
The relevant provisions of 11 F.S.M.C. 203 provide:
(1) A person commits the crime of conspiracy if he or she agrees with one or more persons to:
(a) Commit any crime; and
(b) Any party to the conspiracy commits an overt act in furtherance of the conspiracy.
. . .
(2) The agreement to conspire may be implicit or explicit and need not be oral or in writing but may be shown by the circumstances surrounding the conduct of the conspirators.
(3) The crime underlying the conspiracy need not have been accomplished for the crime
of conspiracy to occur.
(4) A defendant is responsible for all actions of a co-conspirator that are taken in furtherance of the conspiracy, whether or not those actions were part of any plan and whether or not the defendant was privy to them.
Thus, there are two essential elements the criminal information must contain to satisfy due process standards.
A person commits the offense of conspiracy, if, with intent to promote or facilitate the commission of a National offense:
(a) he agrees with one or more persons that they, or one or more of them, will engage in or solicit the conduct or will cause or solicit the result specified by the definition of the offense; and
(b) he or another person with whom he conspired commits an overt act in pursuance of the conspiracy.
FSM v. Este, 12 FSM R. 476, 483 (Chk. 2004); Engichy v. FSM, 15 FSM R. 546, 558 (App. 2008). The agreement need not be explicit and ultimate commission of the underlying offense need not be proved. Este, 12 FSM R. at 483; FSM v. Kansou, 14 FSM R. 132, 134 (Chk. 2006).
Conspiracy to commit a crime is an offense separate and distinct from the crime that is the object of the conspiracy. Este, 12 FSM R. at 483.
A conspiracy count is sufficient if it alleges an agreement, and identifies the object towards which the agreement is directed and an overt act. But it is not necessary that the information state the object of the agreement with the detail required of an information charging the substantive offense. It is not necessary in a conspiracy charge to allege with precision all the elements essential to the offense which is the object of a conspiracy; allegations clearly identifying the offense the defendants conspired to commit are sufficient.
FSM v. Sorim, 17 FSM R. 515, 523 (Chk. 2011) (citations omitted).
Count IX charges the defendants with conspiracy to commit trafficking in children in violation of 11 F.S.M.C. 203 and 616
when said defendants who work together as leaders of the same church parish, knowingly shared information about the vulnerability of the said minor to submit to sexual advances in exchange for the payment of money or goods and then each and all of them acted on their own in pursuing sexual intercourse with the said minor in exchange of money or material goods, some of them on repeated occasions with the same or similar pattern of payments.
Criminal Information at 7. Presumably, the factual allegation of the alleged agreement occurred when the defendants "knowingly shared information." Although it is a close case in this instance, the court emphasizes that "[t]he agreement does not have to be explicit. 'A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement.' " Este, 12 FSM R. at 483 (quoting 2 WAYNE R. LAFAVE & AUSTIN W.
SCOTT, SUBSTANTIVE CRIMINAL LAW § 6.4(d), at 71 (1986)). In light of this, the language used in the criminal information is sufficient to infer an understanding or agreement to commit the underlying offense of trafficking in children.
Last, merely because each defendant then acted individually after the implicit agreement does not mean a conspiracy was not committed because "any party to the conspiracy" who then commits an overt act in furtherance of the conspiracy satisfies the second essential element set forth by the statute. 11 F.S.M.C. 203; see Cholymay v. FSM, 17 FSM R. 11, 24 (App. 2010) (when it is shown that the defendants by their acts pursued the same object, one performing an act and another performing a separate act, trier of fact will be justified in concluding that they were engaged in a conspiracy to effect the object to which they viewed to attain).
Again, although the Criminal Information could have been drafted with greater care, the defendants are not misled to their prejudice based on the language charging them with conspiracy to commit trafficking in children. Between Counts I through VIII and the supporting affidavit, it should be clear that they are charged with conspiring to commit the offense of trafficking in children. Count IX describes the substantive underlying offense with enough specificity to sufficiently apprise the defendants of the charges which they must be prepared to defend and it is detailed enough so that they may plead this case as a bar to future prosecutions for the same crime alleged.
For the reasons set forth above, the court HEREBY DENIES the pending motions to dismiss.
NOW THEREFORE IT IS HEREBY ORDERED that the court will take the pleas of defendants Lucky Shiro, Onsori Sino, Taisiro Loves, and Kachura Angken on Wednesday, April 26, 2017 at 1:30 p.m., to be followed by trial at 2:00 p.m. if any not guilty pleas are entered.
___________________________Footnotes:
1 The court notes that the defendants herein could have made a motion for a bill of particulars pursuant to Rule 7(f) of the FSM Rules of Criminal Procedure that requested the Government provide a more definite date for each offense.
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