FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Mumma, 21 FSM R. 387(Kos. 2017)
FEDERATED STATES OF MICRONESIA,
Plaintiff,
vs.
CHRISTOPHER MUMMA and MANNIX CRUZ,
Defendants.
CRIMINAL CASE NO. 2016-2500
GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; DENYING MOTION TO SUPPRESS
STATEMENT; AND SETTING PRE-TRIAL CONFERENCE
Dennis K. Yamase
Chief Justice
Hearing: June 21, 2017
Decided: November 6, 2017
APPEARANCES:
For the Plaintiff:
Robert P. Nakasone, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendant: Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941
* * * *
The court treats a motion, that asks the court to allow the filing of and consideration of certain motions despite being filed well-outside the court-ordered deadline for the filing of pretrial motions, as a motion for an enlargement of time because a thing is what it is regardless of what someone chooses to label his filing. FSM v. Mumma, 21 FSM R. 387, 392 n.1 (Kos. 2017).
When the issues raised by the motion to dismiss may be considered by the court at any time during the pendency of the proceedings in the matter, the motion should be noticed and considered. FSM v. Mumma, 21 FSM R. 387, 393 (Kos. 2017).
When 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. FSM v. Mumma, 21 FSM R. 387, 395, 397 (Kos. 2017).
The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it, and it is considered as being an act of grace, or as the sovereign's surrender of its right to prosecute. It creates a bar to prosecution and is not merely a statute of repose as in civil cases. FSM v. Mumma, 21 FSM R. 387, 395 (Kos. 2017).
The statute of limitations begins to run from the time of the commission of an offense, or when the crime is complete, not from the date the crime is discovered. FSM v. Mumma, 21 FSM R. 387, 395 (Kos. 2017).
Although statutes of limitation on criminal prosecutions must be accorded a rational meaning in harmony with the law's obvious intent and purpose, such statutes must be liberally construed in favor of the accused, and exceptions from the benefits of such statutes must be narrowly or strictly construed. FSM v. Mumma, 21 FSM R. 387, 396 (Kos. 2017).
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. FSM v. Mumma, 21 FSM R. 387, 396 (Kos. 2017).
When a violation of the charged provisions of the Weapons Control Act holds a sentence of up to ten years, the six-year statute of limitations applies. FSM v. Mumma, 21 FSM R. 387, 396 (Kos. 2017).
An information's fundamental purpose is to inform the defendant of the charges so that the defendant may prepare a defense, and to advise the court of the facts alleged so that the court may determine whether those facts, if proven, may support a conviction. An information deficient in these respects may be dismissed without prejudice. FSM v. Mumma, 21 FSM R. 387, 397 (Kos. 2017).
An information is sufficient if it is a plain, concise, and definite written statement of the essential facts constituting the offense charged, and if it sufficiently apprises the defendant of the charges against which the defendant must be prepared to defend and is sufficiently detailed to enable the defendant to plead the case as a bar to future prosecutions for the same offense. It is generally sufficient that an information set forth the offense in the words of the statute itself when those two basic requirements are met. FSM v. Mumma, 21 FSM R. 387, 397-98 (Kos. 2017).
Each count in an information should stand on its own although facts alleged therein may be incorporated by reference, and, the information must state for each count the citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated. FSM v. Mumma, 21 FSM R. 387, 398 (Kos. 2017).
The information must charge all the essential elements of the offense, but such facts need not
be stated in detail. To determine whether an information is deficient, the information and its supporting affidavit must be read together. FSM v. Mumma, 21 FSM R. 387, 398 (Kos. 2017).
Pleading whether the firearms in question were .22 caliber handguns or .22 caliber rifles is essential because importing the former is banned by the statute, while importing the latter is not. FSM v. Mumma, 21 FSM R. 387, 398 (Kos. 2017).
There is no Weapons Control Act provision that bans the importation of an otherwise legal firearm without possessing a valid identification card issued by the FSM Department of Justice. FSM v. Mumma, 21 FSM R. 387, 398, 399 n.6 (Kos. 2017).
A court should construe a statute as the legislature intended. Legislative intent is determined by the statute's wording because what a legislature says in the 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. FSM v. Mumma, 21 FSM R. 387, 398 (Kos. 2017).
A long-standing norm of statutory construction holds that provisions of law must be read to be internally consistent and sensible. FSM v. Mumma, 21 FSM R. 387, 398 (Kos. 2017).
The purchase, possession, or use of a firearm is prohibited without a proper identification card, but this prohibition does not include importation. FSM v. Mumma, 21 FSM R. 387, 398 (Kos. 2017).
The Weapons Control Act does not forbid a person from importing a .22 caliber rifle through the postal service, without holding a license, and applying for a permit before or upon the legal firearm's arrival in the FSM so that he may legally possess and use the imported firearm, with the weapon being seized by FSM Customs Officers until the permit application is granted or denied. FSM v. Mumma, 21 FSM R. 387, 399 (Kos. 2017).
Since the court cannot convict a defendant for actions not constituting a crime under any circumstances, the same actions cannot be the basis for an attempt to commit the alleged underlying offense. FSM v. Mumma, 21 FSM R. 387, 399 (Kos. 2017).
A person commits the offense of conspiracy, if, with intent to promote or facilitate the commission of a national offense, he agrees with one or more person 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 offense's definition; and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy. FSM v. Mumma, 21 FSM R. 387, 399-400 (Kos. 2017).
A conspiracy can only exist when either the agreement or the means contemplated for its achievement are unlawful. A conspiracy to agree to do something that is not a crime cannot be criminal conspiracy. FSM v. Mumma, 21 FSM R. 387, 400 (Kos. 2017).
There cannot be a conspiracy when the achievement of the alleged conspiracy was the importation, without a valid identification card, of two firearms that are permitted to be licensed, which is not a national crime. FSM v. Mumma, 21 FSM R. 387, 400 (Kos. 2017).
An attempt consists of two elements: 1) an intent to engage in conduct that constitutes a crime; and 2) conduct constituting a substantial step towards commission of the crime. FSM v. Mumma, 21 FSM R. 387, 400 (Kos. 2017).
An attempt to commit a crime is an offense which is separate and distinct from the crime that was attempted. A person may be tried and convicted of an attempted crime whether or not he fails or succeeds in committing the attempted crime. FSM v. Mumma, 21 FSM R. 387, 400 (Kos. 2017).
An argument that the defendant never possessed the firearm is not fatal to a charge that the defendant attempted to illegally possess a weapon. FSM v. Mumma, 21 FSM R. 387, 400-01 (Kos. 2017).
Attempt is a specific intent crime. The act constituting the attempt must be done with the intent to commit that particular crime because it is the intent to commit the crime, not the possibility of success, which determines whether the defendant's act or omission constitutes the crime of attempt. FSM v. Mumma, 21 FSM R. 387, 400-01 (Kos. 2017).
Since there can be no attempt to accomplish an unintended result, the defendant must act intentionally to commit the crime of attempt, as neither negligence nor recklessness includes the required specific intent. FSM v. Mumma, 21 FSM R. 387, 401 (Kos. 2017).
A defendant's contention that there was no attempt to commit the crime of possession of a firearm without a valid license because he applied for such license shortly after the firearm arrived in his postal box, may be brought up at trial as evidence in his favor that he made no attempt to possess the firearm without the license, but the ultimate burden of persuasion remains with the government to prove the elements of attempt in spite of these assertions. FSM v. Mumma, 21 FSM R. 387, 401 (Kos. 2017).
Dismissal will be denied when the government has sufficiently alleged attempt in the information, because it must be given the opportunity to prove beyond a reasonable doubt the defendant's: 1) intent to commit the alleged crime; and 2) that he took action which constitutes a substantial step in a course of conduct planned to culminate in the commission of that crime. FSM v. Mumma, 21 FSM R. 387, 401 (Kos. 2017).
When both the defendant's intent and whether he committed an act sufficient to amount to an attempt are questions of fact inappropriate for determination before trial, the defendant's motion to dismiss the charge of attempt to possess a firearm without having a valid identification card will be denied. FSM v. Mumma, 21 FSM R. 387, 401 (Kos. 2017).
When no response is filed to a motion, the non-response is deemed consent to granting the motion, but a basis in law and fact must nevertheless exist to grant the motion. FSM v. Mumma, 21 FSM R. 387, 401 (Kos. 2017).
The questioning of witnesses and suspects is a necessary tool for the effective enforcement of criminal laws. Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. FSM v. Mumma, 21 FSM R. 387, 402 (Kos. 2017).
That an investigation has focused on a suspect does not trigger the need for warnings in a non-custodial setting, and that situation is not comparable to that of a suspect who is physically restrained and painfully aware that he literally cannot escape a persistent custodial interrogator. FSM v. Mumma, 21 FSM R. 387, 402 (Kos. 2017).
The statutory and constitutional rights to be advised of one's rights are owing to "one arrested," and to "any person arrested," and "arrest" is the placing any person under any form of detention by legal authority. FSM v. Mumma, 21 FSM R. 387, 402 (Kos. 2017).
One is be considered "arrested" within the meaning of 12 F.S.M.C. 218 when one's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer's suspicion that the detained person may be, or may have been, involved in commission of a crime. FSM v. Mumma, 21 FSM R. 387, 402 (Kos. 2017).
Government agents' routine questioning does not require a rights warning to be given beforehand since the purpose of this type of procedural questioning is not to compel the person being questioned to incriminate himself. FSM v. Mumma, 21 FSM R. 387, 403 (Kos. 2017).
When the defendant signed a form that, before the signature and date lines, stated in bold: "that the information provided in this statement is true and correct, and that this Statement is freely given and not made under threat, duress, or intimidation"; and when the defendant's freedom of movement was not substantially controlled by the officers exercising official authority when they questioned him; and when he was free to leave after the questioning and did leave, the defendant's statements to the police will not be suppressed. FSM v. Mumma, 21 FSM R. 387, 403 (Kos. 2017).
* * * *
DENNIS K. YAMASE, Chief Justice:
NOW pending before the Court are Defendant Mannix Cruz's Motion to Dismiss due to Expiration of the Statute of Limitations, filed June 9, 2017; Cruz's Motion to Dismiss Information [for failure to allege an offense], filed June 12, 2017; Cruz's Motion to Suppress Statements, filed June 12, 2017;
Cruz's Motion for Enlargement of Time,1 filed June 13, 2017; and the Federated States of Micronesia's ("the Government") opposition, filed June 14, 2017. The Court denies the Motion to Dismiss based on the statute of limitations, grants in part and denies in part the Motion to Dismiss for failure to allege an offense, and denies the Motion to Suppress Statements. The Court's reasoning follows.
On June 20, 2016, the Government filed a criminal information against Christopher Mumma and Mannix Cruz. The Defendant Christopher Mumma has remained out of the FSM and has never appeared. The Information charges the Defendant Cruz with the following counts:
(Violation of FSM's Weapon Control Act)
1. In September 2012, Defendants, Christopher Mumma and Mannix Cruz, imported a firearm ("firearm 1") into the Federated States of Micronesia, by using the United States Postal Service, without having an identification card or license issued by the FSM Department of Justice evidencing the eligibility to import the firearm.
(11 F.S.M.C. § 1023(5))
(Violation of FSM's Weapon Control Act)
1. In September 2012, Defendants, Christopher Mumma and Manix [sic] Cruz, imported a second firearm ("firearm 2") into the Federated States of Micronesia, by using the United States Postal Service, without having an identification card or license issued by the FSM Department of Justice evidencing the eligibility to import the firearm.
(11 F.S.M.C. § 1023(5))
(Attempt to Violate FSM's Weapon Control Act)
1. In September 2012, Defendants, Christopher Mumma and Manix [sic] Cruz, attempted to import firearm 1 into the Federated States of Micronesia, by using the United States Postal Service, without having an identification card or license issued by the FSM Department of Justice evidencing the eligibility to import the firearm.
(11 F.S.M.C. § 201(1) and 11 F.S.M.C. § 1023(5))
(Attempt to Violate the FSM's Weapon Control Act)
1. In September 2012, Defendants, Christopher Mumma and Manix [sic] Cruz, attempted to import firearm 2 into the Federated States of Micronesia, by using the United States Postal Service, without having an identification card or license issued by the FSM Department of Justice evidencing the eligibility to import the firearm.
(11 F.S.M.C. § 201(1) and 11 F.S.M.C. § 1023(5))
. . . .
(Attempt to Violate FSM's Weapon Control Act)
1. Defendant, Mannix Cruz, attempted to posses[s] firearm 2 without having an identification card issued by the FSM Department of Justice evidencing the eligibility to possess the firearm.
(11 F.S.M.C. § 201(1), 11 F.S.M.C. § 1006(1) and 11 F.S.M.C. § 1023(5))
(Conspiracy to Violate FSM's Weapons Control Act)
1. Prior to importing firearms 1 and 2, Defendants, Christopher Mumma and Mannix Cruz, agreed to import the firearms into the Federated States of Micronesia, by using the United States Postal Service, without having an identification card or license issued by the FSM Department of Justice evidencing the eligibility to import the firearms.
(11 F.S.M.C. § 203(1) and 11 F.S.M.C. § 1023(5))
Information at 1-3 (June 20, 2016).
On May 3, 2017, this matter came before the Court to take the Defendant Cruz's plea, and if a not guilty plea was entered, trial was to proceed immediately thereafter. Robert Nakasone, Assistant Attorney General for the FSM Department of Justice, appeared for the Government and Yoslyn Sigrah, Esq. appeared on behalf of the Defendant Mannix Cruz, who was present before the Court. The Government requested leave of Court to dismiss the criminal information, which the Court denied on May 19, 2017 and reset Cruz's plea hearing, and if a not guilty plea is entered, trial for June 21, 2017. Cruz subsequently filed the following motions: (1) Motion to Dismiss due to Expiration of the Statute of Limitations, filed June 9, 2017; (2) Motion to Dismiss Information [for failure to allege an offense], filed June 12, 2017; (3) Motion to Suppress Statements, filed June 12, 2017; (4) Motion for Enlargement of Time within which to file the above pre-trial motions, filed June 13, 2017; (5) Motion to Compel Production of Additional Discovery Under Rule 16, filed June 13, 2017; and (6) Motion to Continue Trial, filed June 13, 2017. The Government filed its opposition on June 14, 2017.
The Court first heard arguments on Cruz's Motion for Enlargement of Time within which to file pre-trial motions. After a short recess, it granted the motion from the bench
because of the extended history of the matter and an abrupt change of attorneys for the prosecution. The court also note[d] that because the issues raised by the motions to
dismiss may be considered by the court at any time during the pendency of the proceedings in this matter, FSM Crim. R. 12(b)(2), they should be noticed and considered.
Order at 1 (June 21, 2017). The Court then heard arguments on the substantive motions.
In the wake of that hearing, the Court ordered the parties to file supplemental papers to further aid the Court in making its decision and instructed the parties that the case would then be taken under advisement. Specifically, the Court ordered the parties to file:(1) a short statement of the employment status of the customs officers who seized the firearms regarding whether they were employed by the FSM National Government or the Kosrae State Government; (2) a copy of the application forms made to the FSM Government by the Defendants for firearms permits or a statement that such applications could not be obtained by any reasonable means, including the specific efforts made to obtain them; and, (3) papers which tend to prove that co-defendant Christopher Mumma was a new resident, temporary resident, or visitor to the State of Kosrae at the time in question for purposes of 11 F.S.M.C. 1008. The Court further ordered the Government to file:(1) a statement regarding the status of the Defendant Cruz's signed statement that he made to the police which was referenced in the affidavit in support of probable cause, and if it had possession of the statement to attach it thereto; and (2) a statement regarding the size and caliber of the firearms in question and whether the FSM Department of Justice has authority to issue an identification card which would allow a qualified person to legally possess them.
On June 23, 2017, Defendant Cruz filed an Affidavit of Movida Mumma, his mother's sister, which averred that she and Christopher Mumma used Defendant Cruz's postal box to send parcels containing personal items, including the firearms, sent for the family and their own personal use during their planned six-week vacation to the State of Kosrae. Aff. of Movida Mumma at ¶¶ 2-4. She further averred that she would normally use her mother's postal box but that she had asked Defendant Cruz if she could borrow his since her mother was ill and unable to travel, who agreed to her request. Id. at ¶¶ 5, 7, 9. Finally, she averred that all the goods were properly declared on the postal mailing forms. Id. at ¶ 6. On the same day, the Government filed its report and attached the signed statements of the Defendant Cruz in addition to its statement of the employment status of the involved custom's officers, which confirmed that they were employees of the Federated States of Micronesia, FSM Customs under the FSM Department of Finance.
On June 28, 2017, the Defendant Cruz filed a report regarding the Court's order to submit the applications for firearms permits in which he avers that he was informed by Kosrae State Police that such applications are not retained in the normal course of business. This fact is confirmed by the attached Affidavit of Rinson Phillip who declared that "upon receipt and review of applications for firearm permits, [their] office transmits same to the FSM National Police Department for processing." Aff. of Riso Phillip at ¶ 5. The affidavit also confirms, however, that the Kosrae State Police Officer recalls receiving applications from the defendants in this matter and forwarding them to the FSM National Police. Id. at ¶ 6. On June 30, 2017, the Government filed its report and attached affidavit of National Police Officer Penias, the same officer who made the affidavit in support of probable cause in this matter, indicating that he "strongly believed that those firearms applications were turned into the National Police for processing[,] but [were] somehow lost or misplace[d] during the time of the investigations." Aff. of Lost Applications at ¶ 8.
Last, on June 29, 2017, the Government filed its report on the size and caliber of the firearms, which confirms both firearms were .22 caliber long rifles.
A. Cruz's Motion to Dismiss Due to Expiration of the Statute of Limitations
i. Statement of Law
11 F.S.M.C. 1023(5) makes it illegal for any person to "import, sell, transfer, give away, purchase, possess or use any handgun, automatic weapon, rifle larger than .22 caliber, shotgun larger than .410 gauge, or any other firearm." 11 F.S.M.C. 1006(1) makes it illegal to "purchase, possess, or use a firearm, dangerous device, or ammunition unless he or she is the holder of an identification card issued pursuant to th[at] chapter evidencing the eligibility of such person to purchase, possess, and use a firearm, dangerous device or ammunition."
11 F.S.M.C. 201 makes it illegal to attempt to commit a crime: "A person commits the crime of attempt to commit a crime if, with intent to commit a national crime, he or she does an act which constitutes a substantial step in a course of conduct planned to culminate in the commission of that crime."
11 F.S.M.C. 203 makes it illegal to conspire to commit a crime: "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." 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 R. 93, 107 (App. 1993).
The statute of limitations for crimes is set forth in 11 F.S.M.C. 105:
(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.
. . . .
(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.
The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. Statutes of limitation[s] in criminal cases are considered as being acts of grace, or as a surrendering by the sovereign of its right to prosecute. They create a bar to prosecution and are therefore not merely statutes of repose as they are in civil cases. The statute of limitations begins to run from the time of the commission of an offense, or when the crime is complete, not from the date the crime is discovered.
Pohnpei v. Weilbacher, 5 FSM R. 431, 454 (Pon. S. Ct. Tr. 1992) (citations omitted).
Although statutes of limitation on criminal prosecutions must be accorded a rational meaning in harmony with the obvious intent and purpose of the law, such statutes must be liberally construed in favor of the accused, and exceptions from the benefits of such statutes must be construed narrowly or strictly against the state.
Wainit, 12 FSM R. at 109 (quoting 21 AM. JUR. 2D Criminal Law § 293 (rev. ed. 1998)).
"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." FSM v. Wainit, 12 FSM R. 105, 108 (Chk. 2003) (citing 1A CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 193, at 353-58 (3d ed. 1999)). The Defendant Cruz, by his motion, has properly raised this defense at this time.
ii. Analysis
In his motion, Cruz contends that the statute of limitations to bring charges against him had lapsed prior to the Government filing the Information. He argues that the Information charges him with violations of the FSM Weapons Control Act, 11 F.S.M.C. 1001 et seq., occurring in September 2012 and thus the Government's prosecution, commenced by the filing of the Information on June 20, 2016, is time-barred. Def.'s Mot. to Dismiss at 1-3. Specifically, he argues that the statute of limitations for his alleged violations of the Weapons Control Act is three years, that the statute of limitations had expired in September 2015, and that the Government's prosecution, commenced on June 20, 2016, is therefore time-barred. In its opposition, the Government contends that because it filed the Information within one year of its discovery of the alleged criminal actions, it was timely under the statute. Opp’n to Def.'s Mot. to Dismiss at 5-6 (June 16, 2017).
The Information charges Cruz with violations of the Weapons Control Act occurring in "September 2012." In the attached Affidavit in Support of Probable Cause, the sworn statement of an FSM National Police officer avers that the first firearm arrived in Kosrae on September 6, 2012 and the second firearm on September 11, 2012. Aff. in Support of Probable Cause at ¶¶ 10-12. He also avers, based on a statement taken from Cruz that, sometime before then, Cruz had called co-defendant Mumma and agreed to receive the firearms to his post office box. Id. at ¶¶ 8-9. Thus, the statute of limitations for Counts One, Three, and Nine would run from September 6, 2012 and the statute of limitations for Counts Two and Four would run from September 11, 2012.
Any person convicted of a violation of the above counts "shall be imprisoned for not more than ten years." 11 F.S.M.C. 1031(2).2 Therefore, because the violation of the charged provisions of the Weapons Control Act hold a sentence of up to ten years, a six-year statute of limitations applies, 11 F.S.M.C. 105(2),3 which will not expire until September 6, 2018 and September 11, 2018,
respectively. FSM v. Narruhn, 15 FSM R. 530, 533 (Chk. 2008) (quoting 11 F.S.M.C. 105(2)) ("Since violations of 11 F.S.M.C. 1023(5) are punishable by ten years imprisonment, the applicable statute of limitations is therefore '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.'"). The same is true for Count Ten, Conspiracy, because where the prosecution of an underlying offense is not time-barred, the 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 R. 93, 107 (App. 1993).
For the foregoing reasons, the Court concludes that the Government commenced this action within the applicable time period and has not surrendered its right to prosecute. Therefore, Cruz's Motion to Dismiss due to Expiration of the Statute of Limitations, filed June 9, 2017, is HEREBY DENIED.
B. Cruz's Motion to Dismiss for Failure to Allege an Offense
Cruz moves to dismiss all six counts against him for failure to allege an offense. The Court grants this motion in part and denies in part for the following reasons.
i. Counts I, II, III, and IV
Count I alleges that "[i]n September 2012, Defendants, Christopher Mumma and Mannix Cruz, imported a firearm ("firearm 1") into the Federated States of Micronesia, by using the United States Postal Service, without having an identification card or license issued by the FSM Department of Justice evidencing the eligibility to import the firearm" in violation of 11 F.S.M.C. 1023(5). Information at ¶ 1. Count II charges Cruz with importing a second firearm ("firearm 2") through the postal service without having an identification card. Id. at ¶ 2.
Cruz contends that the facts, as supported by the affidavit of probable cause, do not allege an offense under 11 F.S.M.C. 1023(5). Specifically, he argues that the weapons in question that he is charged with importing into the FSM are not larger than .22 caliber and are thus within the legal limit set by 11 F.S.M.C. 1023(5). Cruz also asserts that the mailing of the weapons "adhered to mailing and customs laws in place . . . [and u]pon inspection by FSM Custom[s] . . . the firearms were turned into the Kosrae State Police." Mot. to Dismiss Information at 6 (June 12, 2017). Cruz thus asserts that Counts I and II fail to charge an offense because the alleged conduct does not satisfy the elements of the offenses charged. Id. at 5-6.
An information's fundamental purpose is to inform the defendant of the charges so that he may prepare his defense, and to advise the court of the facts alleged so that the court may determine whether those facts, if proven, may support a conviction, and an information deficient in these respects may be dismissed without prejudice.
FSM v. Sato, 16 FSM R. 26, 29 (Chk. 2008) (citing FSM v. Moses, 9 FSM R. 139, 145 (Pon. 1999)).
An information is sufficient if it is a "plain, concise and definite written statement of the essential facts constituting the offense charged," FSM Crim. R. 7(c)(1), and if it "sufficiently apprise[s] the defendant of the charges against which he must be prepared to defend and is sufficiently detailed to enable him to plead this case as a bar to future prosecutions for the same offense."
FSM v. Esefan, 17 FSM R. 389, 393 (Chk. 2011) (quoting Laion v. FSM, 1 FSM R. 503, 516-517 (App.1984)). "It is generally sufficient that an information set forth the offense in the words of the statute itself when those two basic requirements are met." Laion, 1 FSM R. at 517 (citations omitted). "Each count in an information should stand on its own although facts alleged therein may be incorporated by reference . . . ." Esefan, 17 FSM R. at 393 (citing FSM v. Xu Rui Song, 7 FSM R. 187, 189-90 (Chk. 1995)). "And, the information must 'state for each count the citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated.'" Id. (citing FSM Crim. R. 7(c)(1)). The information must charge all the essential elements of the offense . . . ." Id. However, such facts need not be stated in detail. Id. at 394. "To determine whether an information is deficient, the information and its supporting affidavit must be read together." Sato, 16 FSM R. at 29.
Counts I and II charge Cruz with importing two firearms through the United States Postal Service without having a valid identification card evidencing the eligibility to import such firearms. The Affidavit in Support of Probable Cause states that there were two .22 caliber firearms that were mailed to Kosrae on two different dates and seized by FSM customs officer pursuant to 54 F.S.M.C. 239. Aff. in Support of Probable Cause at ¶¶ 4-5, 10-13.
Nowhere in the Information or affidavit of probable cause is there an indication of what types of firearms the Government charges Cruz with importing. The only identifying information is that the firearms were .22 caliber. There is no allegation in the Information or Affidavit of Probable Cause identifying whether they were .22 caliber handguns, long guns, rifles, or shotguns. This unpled fact is an essential element of the offense under 11 F.S.M.C. 1023(5). Whether the firearms in question are .22 caliber handguns or .22 caliber rifles is essential because importing the former is banned by the statute,4 while importing the latter is not.5
Nevertheless, in viewing the record as a whole, it is clear that the imported firearms were .22 caliber long guns. Notwithstanding, there is no provision in the Weapons Control Act that bans the importation of an otherwise legal firearm without possessing a valid identification card issued by the FSM Department of Justice.
11 F.S.M.C. 1006 states "[n]o person shall purchase, possess, or use a firearm, dangerous device, or ammunition unless he or she is the holder of an identification card issued pursuant to this chapter evidencing the eligibility of such person to purchase, possess, and use a firearm, dangerous device or ammunition." A court should construe a statute as the legislature intended. Legislative intent is determined by the wording of the statute. What a legislature says in the text of a statute 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. FSM Social Sec. Admin. v. Kingtex (FSM) Inc., 8 FSM R. 129, 131 (App. 1987). A long-standing norm of statutory construction holds that provisions of law must be read to be internally consistent and sensible. McCaffrey v. FSM Supreme Court, 6 FSM R. 279, 281 (App. 1993). The language of 11 F.S.M.C. 1006 makes clear that the purchase, possession, or use of a firearm is prohibited without a proper identification card. This prohibition does not include importation. Thus, the intention of the FSM Congress is clear: by expressly omitting
importation, as included in other provisions of the same statute, it decided not to ban the importation of an otherwise legal firearm without a permit.
This reasoning is confirmed by a reading of 11 F.S.M.C. 1006 when read in conjunction with 11 F.S.M.C. 1023(5). Even if Cruz did import a .22 caliber rifle through the postal service without holding a license, the Weapons Control Act does not forbid him from doing so, applying for a permit prior to or upon the legal firearm's arrival in the FSM so that he may legally possess and use the imported firearm, and having the weapon seized by FSM Customs Officers until the permit application is granted or denied. The parties concede that this situation is exactly what transpired in this matter. 11 F.S.M.C. 1023(5) prohibits the importation of a rifle larger than .22 caliber. It is clear from the Affidavit in Support of Probable Cause attached to the Government's Information and subsequent filings by both parties that the firearms in question were .22 caliber long rifles, and thus within the legal limit to import without a license pursuant to 11 F.S.M.C. 1006.6
In the affidavit, FSM National Police Officer Brensen Penias declared that firearm 1 was imported to the State of Kosrae on September 6, 2012 and immediately seized by FSM Customs Officer Steve P. George at the Kosrae Postal Office and handed over to Kosrae Public Safety on the same day. Aff. in Support of Probable Cause at ¶¶ 10-11. He further declared that firearm 2 was imported to the State of Kosrae on September 11, 2017 and immediately seized by FSM Customs Officer Memoria M. Sigrah and handed over to Kosrae Public Safety on the same day. Id. at ¶ 12. In its report to the Court regarding the size and caliber of firearms, the Government confirmed that the two rifles were Ruger .22 caliber long rifles. Plaintiff's Report; Size and Caliber of Firearms at unnumbered 2.
Last, Count III alleges that "[i]n September 2012, Defendants, Christopher Mumma and Mannix Cruz, attempted to import firearm 2 into the Federated States of Micronesia, by using the United States Postal Service, without having an identification card or license issued by the FSM Department of Justice evidencing the eligibility to import the firearm" in violation of 11 F.S.M.C. 201(1) and 1023(5). Information at 1. Count IV similarly charges Cruz with attempting to import a second firearm through the postal service. Id.
Since the Court cannot convict Cruz for actions not constituting a crime under any circumstances, it follows that the same actions cannot be the basis for an attempt to commit the alleged underlying offense. Cruz could not have made substantial steps to engage in a crime when there is no action constituting an offense alleged under 11 F.S.M.C. 1006 and 11 F.S.M.C. 1023(5).
The same reasoning must apply to Count X, the conspiracy charge. A person commits the offense of conspiracy, if, with intent to promote or facilitate the commission of a national offense, he agrees with one or more person 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 he or another person
with whom he conspired commits an overt act in pursuance of the conspiracy. FSM v. Kansou, 14 FSM R. 132, 134 (Chk. 2006). A conspiracy can only exist when either the agreement or the means contemplated for its achievement are unlawful. FSM v. Este, 12 FSM R. 476, 483 (Chk. 2004). Here, where the achievement of the alleged crime was the importation of two firearms that are permitted to be licensed, without a valid identification card, which is not a national crime, there cannot be a conspiracy. A conspiracy to agree to do something that is not a crime cannot be criminal conspiracy.
Since it is clear to the Court that the rifles that Cruz imported were not larger than .22 caliber, because 11 F.S.M.C. 1023(5) only prohibits the importation of a rifle larger than .22 caliber, and because 11 F.S.M.C. 1006 does not prohibit importing a firearm without a valid permit, Count I, importation of firearm 1 without a valid license in violation of 11 F.S.M.C. 1023(5); Count II, importation of firearm 2 without a valid license in violation of 11 F.S.M.C. 1023(5); Count III, attempt to import firearm 1 without a valid license in violation of 11 F.S.M.C. 201(1) and 11 F.S.M.C. 1023(5); Count IV, attempt to import firearm 2 without a valid license in violation of 11 F.S.M.C. 201(1) and 11 F.S.M.C. 1023(5); and Count X, conspiracy to import firearms without a valid license in violation of 11 F.S.M.C. 201(1), 11 F.S.M.C. 1006(1) and 11 F.S.M.C. 1023(5) are HEREBY DISMISSED as against the Defendant Cruz.
ii. Count IX
Count IX alleges that "[d]efendant Mannix Cruz[] attempted to possess firearm 2 without having an identification card issued by the FSM Department of Justice evidencing the eligibility to possess the firearm." Information at 3.
11 F.S.M.C. 201 reads:
§201. Attempts.
(1) A person commits the crime of an attempt to commit a crime if, with the intent to commit a national crime, he or she does an act which constitutes a substantial step in a course of conduct planned to culminate in the commission of that crime.
(2) It is an affirmative defense to a charge of attempt that the crime was not committed because the defendant desisted voluntarily and in good faith and abandoned his or her intention to commit the crime.
(3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.
Thus, an attempt consists of two elements: (1) an intent to engage in conduct that constitutes a crime; and (2) conduct constituting a substantial step towards commission of the crime.
Cruz contends that because he submitted an application for a firearm permit, there was no attempt to possess the firearm without a valid permit. The Government does not dispute the fact that after the firearm arrived to Kosrae, Cruz applied for a firearm license. He further contends, and the Government does not dispute, that he never had actual possession of the firearm in question.
An attempt to commit a crime is an offense which is separate and distinct from the crime that was attempted. A person may be tried and convicted of an attempted crime whether or not he fails or succeeds in committing the attempted crime. 21 AM. JUR. 2D Criminal Law § 174, at 250 (2d ed. 1998). Therefore, Cruz's argument that he never had possession of the firearm is not fatal to the
attempt charge.
Attempt is a specific intent crime. The act constituting the attempt must be done with the intent to commit that particular crime. It is the intent to commit the crime, not the possibility of success, which determines whether the defendant's act or omission constitutes the crime of attempt. Consequently, the defendant must act intentionally, and as neither negligence nor recklessness includes specific intent, as required from the crime of attempt, there can be no attempt to accomplish an unintended result.
Id. at § 176.
Here, although Cruz's contention that there was no attempt to commit the crime of possession of a firearm without a valid license because he applied for such license shortly after the firearm's arrival to his postal box,7 which may be brought up at trial as evidence in his favor that he made no attempt to possess the firearm without the license, the ultimate burden of persuasion remains with the Government to prove the elements of attempt in spite of these assertions.
As the Government has sufficiently alleged attempt in the Information, the Government must be given the opportunity to prove beyond a reasonable doubt Cruz's: (1) intent to commit the alleged crime; and (2) that he took action which constitutes a substantial step in a course of conduct planned to culminate in the commission of that crime. Both Cruz's intent and whether he committed an act sufficient to amount to an attempt are questions of fact inappropriate for determination before trial. FSM v. Semwen, 18 FSM R. 222, 225 (Chk. 2012) (motion to dismiss improper way to raise factual defense because if the pretrial claim is substantially founded upon and intertwined with evidence concerning the alleged offense, the motion must be deferred because it falls within the province of the factfinder at trial). Therefore, Cruz's motion to dismiss Count IX, attempt to possess a firearm without having a valid identification card, is HEREBY DENIED.
C. Cruz's Motion to Suppress Statements
On June 12, 2017, Cruz filed a Motion to Suppress Statements. The motion remains unopposed. When no response is filed to a motion, the non-response is deemed consent to granting the motion. But a basis in law and fact must nevertheless exist to grant the motion. RRG (FSM) Ltd. v. Maezoto, 15 FSM R. 243, 244 (Pon. 2007).
Cruz asks that any evidence or statements made to the police be suppressed because they were obtained in violation of his constitutional right against self-incrimination. FSM Const. art. IV, § 7.8 Cruz insists that the FSM National Police Officers who questioned him on June 18, 2016 had obtained his statements through false pretenses because he was under the impression they were questioning him in order to aid in the processing of his application for a firearm permit, not an investigation which would lead to the filing of criminal charges against him. He also contends that he was not read his rights as required by 12 F.S.M.C. 218 and that any statements he made were not voluntary. He contends that such circumstances render his statements inadmissible in court.
"[Q]uestioning of witnesses and suspects is a necessary tool for the effective enforcement of criminal laws. 'Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved.'" FSM v. Jonathan, 2 FSM R. 189, 194 (Kos. 1986) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854, 861 (1973)).
In a similar case to the one at bar, the Defendant Cheida moved to suppress certain affidavits, statements, and testimony the defendant gave at, or prepared in anticipation of, the court's civil contempt hearings. FSM v. Cheida, 7 FSM R. 633, 640 (Chk. 1996). The defendant moved to suppress this evidence, arguing that it should be inadmissible in the pending criminal contempt proceeding
because his constitutional rights were violated during the earlier civil contempt hearings. Specifically, [the d]efendant complain[ed] that although [he was aware of] a possible criminal contempt action against him, at no time during the [civil contempt] hearings was he ever informed of his right to counsel or his right against self-incrimination. His presence was required at the civil contempt hearings, and he was required to answer questions under oath, yet he was never advised of his rights as a criminal defendant.
Id. at 639. The Court reasoned that "the fact that an investigation has focused on a suspect does not trigger the need for warnings in a non-custodial setting, and that . . . situation [is] not comparable to that of a suspect who is physically restrained and ‘painfully aware that he literally cannot escape a persistent custodial interrogator.'"Id. at 640 (quoting Minnesota v. Murphy, 465 U.S. 420, 434, 104 S. Ct. 1136, 1145, 79 L. Ed. 2d 409, 423 (1984)). The Court denied the defendant's motion to suppress and held the following:
[The] defendant's oral testimony at the . . . civil contempt hearings is admissible in this criminal action. Mr. Cheida was not "interrogated" in a custodial setting at the . . . civil contempt hearings; he was free to leave and did following each hearing. There is also no evidence that plaintiffs' civil contempt proceedings were conducted in whole or in part for the purpose of gathering information for the government to use in its subsequent criminal contempt action. Finally, the Court was not required to warn Mr. Cheida of his right to counsel before he gave testimony in the civil contempt proceedings.
Id.
It is well settled that the statutory and constitutional right to be advised of one's rights are owing to "one arrested," 12 F.S.M.C. 218(6) and to "any person arrested." 12 F.S.M.C. 218(7). "Arrest" is defined as "placing any person under any form of detention by legal authority." 12 F.S.M.C. 101(1).
Thus, one should be considered "arrested" within the meaning of 12 F.S.M.C. 218 when one's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer's suspicion that the detained person may be, or may have been, involved in commission of a crime.
FSM v. Edward, 3 FSM R. 224, 232 (Pon. 1987) (citing J. COOK, RIGHTS OF THE ACCUSED: CONSTITUTIONAL PRETRIAL RIGHTS § 6 (1972)). Cruz does not contend that he was arrested when he made the statements sought to be suppressed to the police, only that he "was forced to answer leading questions asked by police officers." Def. Mannix Cruz's Mot. to Suppress Statements at 2. There is also no evidence in the record that Cruz was physically detained or otherwise coerced or "forced" when he made the statements to the investigating police officers. It appears based on the evidence before
the Court that he could have refused to answer the questions posed by the officers, that he was free to leave the interview at any time, and that he did in fact leave at its conclusion.9
Nevertheless, the Court has suppressed statements made in a similarly close case where a potential suspect of a crime was questioned, but had not yet been formally detained. In FSM v. Sippa, 16 FSM R. 247 (Chk. 2009), the Court granted the defendant's motion to suppress statements made to a police officer outside of where he lived. Id. at 249. The Court held that
[a]lthough routine questioning by government agents does not require a rights warning to be given beforehand since the purpose of this type of procedural questioning is not to compel the person being questioned to incriminate himself, see Kosrae v. Sigrah, 11 FSM R. 249, 255 (Kos. S. Ct. Tr. 2002), this was not routine questioning. The state police officer who, on July 31, 2008, questioned Sippa for 30 minutes outside of where he lived, did so because a complainant had named Sippa as the person who had earlier possessed and discharged a firearm in her presence. Sippa was thus already a suspect and the officer's questioning was designed to elicit incriminating statements and to produce incriminating evidence. Although this is a close case, the court finds that Sippa's freedom of movement was substantially restricted or controlled by a police officer exercising official authority when that officer questioned him for 30 minutes about the firearm discharge incident. Sippa therefore should have been informed of his rights before the questioning went very far. He was not.
Id.
As opposed to Sippa, this Court has recently denied a motion to suppress in a case where two national police officers approached the home of a suspect and upon seeing him asked whether he knew why they were there. The suspect answered the police officers and then turned over items that were allegedly taken from a national government office. FSM v. Isaac, 21 FSM R. Xxx, xxx (Pon. 2017). The Court in Isaac recognized that he was not under arrest or any kind of confinement at the time of the inquiry, that he was not forced to answer, that he voluntarily answered, and then turned over alleged stolen property, and therefore denied the defendant's motion to suppress.
Similar to the defendant in Sippa, the Defendant Cruz was questioned by officers Brensen Penias and Johnnyboy Agrippa. But unlike in Sippa, Cruz signed a sworn statement that the information he provided was true and correct. At the bottom of each page of Cruz's three page witness statement, he signed and dated. Right before the signature and date lines, it is stated in bold: "that the information provided in this statement is true and correct, and that this Statement is freely given and not made under threat, duress, or intimidation." The statement was obtained on June 18, 2016. Cruz's freedom of movement was not substantially controlled by the officers exercising official authority when they questioned him. Defendant Cruz's June 18, 2016 statements were signed by him and he was free to leave after the questioning and did leave. Based on an analysis of the holdings of the aforementioned cases, the Court HEREBY DENIES the Defendant's motion to suppress.
NOW THEREFORE IT IS HEREBY ORDERED that Defendant Mannix Cruz's Motion to Dismiss due to Expiration of the Statute of Limitations, filed June 9, 2017, is HEREBY DENIED.
IT IS FURTHER ORDERED that Defendant Mannix Cruz's Motion to Dismiss Information [for failure to allege an offense], filed June 12, 2017, is HEREBY GRANTED IN PART and HEREBY DENIED IN PART. Cruz's motion to dismiss Count I, importation of firearm 1 without a valid license in violation of 11 F.S.M.C. 1023(5); Count II, importation of firearm 2 without a valid license in violation of 11 F.S.M.C. 1023(5); Count III, attempt to import firearm 1 without a valid license in violation of 11 F.S.M.C. 201(1) and 11 F.S.M.C. 1023(5); Count IV, attempt to import firearm 2 without a valid license in violation of 11 F.S.M.C. 201(1) and 11 F.S.M.C. 1023(5); and Count X, conspiracy to import firearms without a valid license in violation of 11 F.S.M.C. 201(1), 11 F.S.M.C. 1006(1) and 11 F.S.M.C. 1023(5) are HEREBY GRANTED and the charges HEREBY DISMISSED as against Defendant Cruz. The Defendant Cruz's motion to dismiss Count IX, attempt to possess firearm without having a valid identification card, is HEREBY DENIED. The Defendant Cruz's Motion to Suppress Statements, filed June 12, 2017, is HEREBY DENIED.
IT IS FURTHER ORDERED that the parties in this matter shall appear on Wednesday, November 29, 2017 at 9:30 a.m. at the FSM Supreme Court in Tofol, Kosrae for a pre-trial conference where the setting of a plea and trial will be discussed, among other matters.
________________________Footnotes:
1 Cruz styles his motion "Defendant Mannix Cruz'[s] Motion to Allow Court Acceptance of Motions filed Prior to Trial," and requests the court allow the filing of and consider the motions despite the fact that they are filed well-outside the court-ordered deadline for the filing of pretrial motions, which expired on February 20, 2017. Scheduling Order (Jan. 23, 2017). Thus, the court treats the motion as one for an enlargement of time because a thing is what it is regardless of what someone chooses to label his filing. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM R. 307, 313 (Yap 2012).
2 11 F.S.M.C. 1031 proscribes a maximum punishment of not more than ten years for any violation of the weapons control act, 11 F.S.M.C. 1031(2), excluding sections 1007 and 1022 which hold a maximum punishment of imprisonment for not more than one year, 11 F.S.M.C. 1031(1). Because Cruz was not charged with a violation of either 11 F.S.M.C. 1007 or 1022, the applicable maximum punishments are not relevant to this matter.
3 "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."
4 "No person shall . . . (5) import, sell, transfer, give away, purchase, possess or use any handgun . . . ." 11 F.S.M.C. 1023(5) (emphasis added); Sato, 16 FSM R. at 29 ("11 F.S.M.C. 1023(5) prohibits the possession of any handgun, regardless of caliber.").
5 11 F.S.M.C. 1023(5) bans the importation of rifles "larger than .22 caliber." 11 F.S.M.C. 1023(5) (emphasis added).
6 Even though the Government does not charge Cruz with violations of 11 F.S.M.C. 1006 in Counts I, II, III, and IV, that section does not prohibit importation of a firearm within the legal limit without a valid license. The Weapons Control Act explicitly requires a valid permit to purchase, possess, or use a firearm, but not to import one:
No person shall purchase, possess, or use a firearm . . . or ammunition unless he or she is the holder of an identification card issued pursuant to this Chapter evidencing the eligibility of such person to purchase, possess, and use a firearm . . . or ammunition . . . .
11 F.S.M.C. 1006(1); FSM v. Talley 21 FSM R. ____,____ n.1 (Kos. 2017), slip. op. at 7, n.1
7 At oral argument, counsel for defendant Cruz represented that he submitted an application for firearm permit "a few weeks after the parcel [containing the firearm] arrived in September 2012."
8 "A person may not be compelled to give evidence that may be used against him in a criminal case, or be twice put in jeopardy for the same offense."
9 The Affidavit in Support of Probable Cause states that National Police Officers Brensen Penias and Johnnyboy Agrippa "met with . . . Mannix Cruz and obtained a statement from him." Aff. In Support of Probable Cause at ¶ 7. After reviewing the extensive record in this matter, there is also nothing to indicate that the initial meetings between the police officers and Cruz were anything but voluntary or that Cruz was being arrested or otherwise detained for questioning.
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