FSM SUPREME COURT TRIAL DIVISION
Cite as In re Wrecked/Damaged Helicopter, 22 FSM R. 447 (Pon. 2020)
In the Matter of the Search and Seizure of:
WRECKED/DAMAGED HELICOPTER, shipping
container holding the helicopter, and documents
concerning said helicopter's usage and
ownership which are located at the Pacific
Transfer and Storage facility in Pohnpei.
___________________________
DAVE'S HELICOPTER SERVICE, INC.,
Real Party in Interest.
SEARCH WARRANT NO. 2019-700
ORDER DENYING RETURN OF PROPERTY
Larry Wentworth
Associate Justice
Hearing: September 13, 2019
Submitted: October 28, 2019
Decided: January 27, 2020
APPEARANCES:
For the Applicant:
Jonathan D. Buckner, Esq. (briefs)
Carolyn Crump, Esq. (argued)
Josephine Leben James, Esq. (supplemental briefs)
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Real Party in Interest: Stephen V. Finnen, Esq. (briefs and argued)
P.O. Box 1450
Kolonia, Pohnpei FM 96941
Edward A. McConwell, Esq. (argued)
5201 Johnson Dr. Ste. 300
Mission, Kansas 66205
* * * *
When the FSM has applied for a search warrant after granting a foreign request for mutual assistance, the warrant application must satisfy the court that there is probable cause to believe that a serious offense has been or may have been committed against the laws of the foreign state. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 455 (Pon. 2020).
It is well-established that hearsay may be used to establish probable cause. The finding of probable cause may be based upon hearsay evidence in whole or in part. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 456 (Pon. 2020).
For the purpose of establishing probable cause that a serious offense has been or may have been committed against the laws of a foreign state, a statement contained in the foreign request to the effect that a serious offense has been or may have been committed against the laws of a foreign state is prima facie evidence of that fact. The statute does not require that the foreign request's statement be under oath. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 456 (Pon. 2020).
An affidavit supporting probable cause is not deficient when the signature line says "notary public" below it, but the signature is that of an FSM Supreme Court court clerk and her signature is sealed by the court's seal. Nor is the inadvertent omission of the date on the line is provided for entry of the date above the clerk's signature, which the court clerk apparently neglected to fill it in before she signed, fatal to the warrant application or the warrant itself. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 456 (Pon. 2020).
Aircraft have the nationality of the State in which they are registered. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 457 (Pon. 2020).
The FSM adhered to the Chicago Convention on International Civil Aviation on September 27, 1988. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 457 n.5 (Pon. 2020).
A helicopter that was registered, at all times, in the United States had U.S. nationality at all times, and as such, would be subject to U.S. regulations wherever in the world it flew. A U.S. certificate of aircraft registration is conclusive evidence of the U.S. nationality of an aircraft for international purposes, and, because it is a civil aircraft of the United States and has U.S. nationality, and the U.S. may exercise extraterritorial jurisdiction over it. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 457 (Pon. 2020).
An aircraft's FSM certificate of registration is conclusive evidence of FSM nationality for international purposes. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 457 n.6 (Pon. 2020).
A foreign corporation is permitted to register an aircraft in the FSM so long as such aircraft is based and primarily used in the FSM. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 457 n.7 (Pon. 2020).
As a matter of international law, an aircraft can only be registered in one country at a time. An aircraft cannot be validly registered in more than one State, but its registration may be changed from one State to another. Implicit in this principle is the concept that civil aircraft must be registered in some country. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 458 (Pon. 2020).
While a U.S. court should, and probably will at some point, have the final say whether a helicopter's supposedly invalid U.S. registration conferred extraterritorial jurisdiction on the U.S., for the purpose of establishing probable cause that U.S. laws were violated, the helicopter's U.S. registration is sufficient. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 458 (Pon. 2020).
The registration or transfer of registration of aircraft in any State contracting to the Chicago Convention on International Civil Aviation must be made in accordance with its laws and regulations. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 458 n.9 (Pon. 2020).
Every aircraft engaged in international air navigation must bear its appropriate nationality and registration marks. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 458 n.10 (Pon. 2020).
An aircraft is engaged in international air navigation when it is navigating in airspace outside its country of registration. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 458 n.10 (Pon. 2020).
Foreign aircraft benefit from the privileges that 20 F.S.M.C. 1104 afforded to aircraft registered in other nations. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 458 (Pon. 2020).
A helicopter owner will be estopped from asserting that the U.S. lacked jurisdiction or authority over the helicopter that it had registered with the U.S., and from asserting that it did not have to comply with the U.S.'s applicable regulations or U.S. aviation law. It should not now be able to assert that the U.S. has no jurisdiction over its helicopter when it registered that helicopter with the U.S. and maintained its U.S. registration thereafter and derived whatever benefits that the U.S. registration afforded. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 459 (Pon. 2020).
While it is true that parties cannot confer or divest a court of jurisdiction by stipulation or by assumption, a helicopter buyer who had to register that helicopter somewhere (some country) and chose to register it in the U.S., will be estopped from denying the U.S.'s regulatory authority over its helicopter. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 459 (Pon. 2020).
An FSM search warrant application established that there was probable cause to believe that a serious offense had been committed against the laws of a foreign state (the U.S.) when it showed that a U.S. registered helicopter was no longer in a flyable condition – no longer airworthy – because the helicopter had had either an "aircraft accident" as there was substantial damage to it, or because there had been a "serious incident" caused by "ground damage," to the helicopter's tail and U.S. law required that U.S. registered aircraft immediately report such events and the helicopter owner did not. In re Wrecked/Damaged Helicopter, 22 FSM R. . 447, 460 (Pon. 2020).
If there is information received from a known independent source, that information may be used to establish probable cause even if the same information was also obtained through an illegal search. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 461 (Pon. 2020).
A Customs officer has the right to examine all goods subject to Customs control, and among the goods subject to Customs control are all goods for export, from the time such goods are brought to any port, airport, or other place for export until their exportation to any country outside of the FSM. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 461 (Pon. 2020).
A facility that is not itself a port or airport, but is in close proximity to both the port and airport, can be considered an "other place for export" to the extent that it is a container yard – it stores packed containers ready for shipment abroad. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 461 (Pon. 2020).
A CY-CY container is a container in which all goods packed in it are for the one consignee and the container is consigned from one container yard to another container yard and will not normally be unpacked at the wharf. CY-CY containers are typically subjected to customs inspection, not on the wharf, but at a container yard. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 461 (Pon. 2020).
That an examination was not done by a customs officer, but by the national police, a different FSM law enforcement agency, but one that is tasked with the general enforcement of all FSM national law, instead of the narrow specialized area that customs officers are restricted to, should not invalidate the examination when it was one that was permissible for Customs officers to do. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 461 (Pon. 2020).
Ports, airports, and other places for export such as a container yard are functional equivalents of a border. Border searches and searches at the functional equivalent of a border are an exception to the warrant requirement of section 5 of the FSM Declaration of Rights. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 461 (Pon. 2020).
The border search exception to the constitutional search warrant requirement applies equally to persons and goods leaving the country as it does to persons and goods entering the country. A border search, or a search at the functional equivalent of a border, of outgoing passengers or goods requires neither a warrant nor probable cause. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 461 (Pon. 2020).
Since Section Five of the Declaration of Rights is patterned after the U.S. Constitution's Fourth Amendment, U.S. authority may be consulted to understand its meaning. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 462 n.16 (Pon. 2020).
A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized. The search warrant application must particularly identify the specific property to be seized and name or describe the place to be searched. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 462 (Pon. 2020).
Courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather
than a commonsense, manner. A technical error in description is not automatically fatal to a search warrant's validity. Absolute precision is not required in identifying the things to be seized. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 462 (Pon. 2020).
A search warrant application's misidentification of a helicopter's corporate owner is not fatal to the search warrant application or to the issued warrant because that a person owned the helicopter through one corporation and not through the another corporation, is a technical defect when it was that person being investigated and the helicopter was described with sufficient particularity that the officers conducting the search had no trouble identifying it as the thing sought when they found it. That the application misstated how that person controlled the helicopter is a mere technical defect which cannot invalidate the search warrant. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 463 (Pon. 2020).
When the Secretary of Justice has granted a foreign state's request to obtain evidence, the FSM may apply to the Supreme Court for a search warrant; or an evidence-gathering order. The statute is disjunctive. The FSM may apply for, and the court may issue, one or the other – either a search warrant or an evidence-gathering order. Or, the FSM could apply for, and be granted, both. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 463 (Pon. 2020).
A search warrant specifies the property to be searched for, and after the search warrant's execution, a receipt is left for the property taken and a return is made with the inventory of the property taken. A search warrant, by its nature, always anticipates the seizure, if found, of the property sought in the warrant. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 463 (Pon. 2020).
Evidence-gathering orders, under 12 F.S.M.C. 1709(1)(b), involve the gathering of evidence by methods other than by a search warrant, under 12 F.S.M.C. 1709(1)(a), commanding the search for, and seizure of, particular things. An evidence-gathering order may involve taking testimony, the collecting or recording of data, or producing things, documents, or copies. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 463 (Pon. 2020).
An FSM search warrant issued in response to a foreign mutual assistance request, is not a confiscation order, foreign or otherwise. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 464 (Pon. 2020).
No bond is required in order to seize property pursuant to a search warrant, but when property has been seized pursuant to a foreign state's request for mutual assistance, the Secretary of Justice, not the real party in interest, has the power to assure the foreign state's compliance with any terms or conditions that are imposed in respect of the sending abroad of the thing. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 464 (Pon. 2020).
A party generally cannot assert the rights of a third party as its own when challenging a search warrant. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 464 (Pon. 2020).
* * * *
LARRY WENTWORTH, Associate Justice:
On September 13, 2019, the court heard: 1) the Motion for Return of Seized Property, filed on May 16, 2019, by Dave's Helicopter Service, Inc.; 2) Response in Opposition to Motion for Return of Property, filed on June 3, 2019, by the FSM national government; 3) Reply Supporting Motion for Return of Seized Property, filed on June 11, 2019; 4) FSM's Sur-Reply to Dave's Reply to the FSM's Response in Opposition to Dave's Motion for Return of Property, filed on August 7, 2019; and 5) Supplemental Response Supporting Motion for Return of Seized Property, filed on September 6, 2019. The court heard testimony from Gene M. Bland and Joseph Vitt, as well as argument from counsel.
During that hearing, the court asked the parties to brief two further questions:
1) For an incident which occurred in or over international waters or in the FSM's Exclusive Economic Zone, which nation would have jurisdiction over an aircraft, specifically a helicopter, that was not validly registered in any country, but which was invalidly registered in the United States? Or put another way: Why wouldn't the country it was registered in – the United States – have jurisdiction since its owner voluntarily submitted it to the jurisdiction of the United States when it (invalidly) registered the helicopter in the United States?
2) What effect does the Compact of Free Association's subsidiary agreement concerning aviation in the Federated States of Micronesia have on the Federal Aviation Agency's authority to investigate incidents involving aircraft in the FSM, or in the FSM's Exclusive Economic Zone?
Order for Further Briefing at 1 (Sept. 13, 2019). Dave's filed its Supplemental Briefing on October 10, 2019. The FSM filed its Brief on FSM's Jurisdiction on October 15, 2019, and on October 28, 2019, filed its Response to Real Party in Interest's Supplemental Briefing. Also on October 28, 2019, Dave's filed its Supplemental Briefing Response. The court then considered this matter submitted to it for its decision.
For the reasons set out below, the court denies the real party in interest's motion to return its property.
On April 22, 2019, the U.S. Embassy sent to the FSM Department of Foreign Affairs a diplomatic note (No. 19-0090) containing a judicial assistance request, which, on May 23, 2019, was forwarded to the FSM Department of Justice. The request was from the United States Department of Justice, and was made pursuant to FSM Code Title 12, chapter 17 and the Compact of Free Association § 175 and Title Three, Judicial Assistance, of the Agreement Concluded Pursuant to Section 175. On April 25, 2019, the FSM Department of Justice filed its Application for Warrant. The application was made to assist the U.S. criminal investigation of John D. Walker (a/k/a Jon Walker) and Hansen Helicopters, Inc.
The application sought the issuance of a warrant to search for and seize a helicopter (U.S.
registration number N501SU) that, on May 24, 2018,1 had allegedly lost power and crashed into the Pacific Ocean at 2° 12.669' N, 156° 24.255' E,2 while performing fish-spotting duties for the Pacific Ranger, but that accident had not been reported, as required, to the U.S. Federal Aviation Administration ("FAA"). The application was supported by the affidavit of National Police Investigator Kasner Aldens, a copy of the judicial assistance agreement, and a seven-page letter or memorandum from Associate Director Jeffrey M. Olson of the Office of International Affairs in the U.S. Department of Justice, Criminal Division, detailing their investigation and the possible violations of U.S. law that might involve the N501SU helicopter, and asking the FSM authorities to follow certain procedures to preserve the chain of custody.
The next day, the FSM Chief Justice issued a warrant that ordered the FSM national police to search the Pacific Transfer and Storage ("PT&S") facility (where the helicopter was stored awaiting shipment to the Philippines for repair) for the N501SU helicopter and, if found, seize it and then deliver it to U.S. Federal Bureau of Investigation ("FBI") agents who would arrange for its shipment to Guam. The FSM national police executed the warrant on May 1, 2019. They found the N501SU helicopter, covered by a blue tarp, and seized it and the blue Kyowa shipping container, ID # KYWU 2060941, it was stored in.
On May 16, 2019, Dave's Helicopter Service, Inc. ("Dave's"), through local counsel, filed its Motion for Return of Seized Property or Motion to Delay Export of Property; Request for Expedited Hearing. Dave's claimed the right to lawfully possess the helicopter; contended that the search warrant was improperly issued; and demanded the helicopter's return. Believing that the helicopter was to be shipped off-island on a ship due in Pohnpei on May 20, 2019, Dave's also asked that the court prohibit the helicopter's removal from the FSM until a proper post-seizure hearing was held and Dave's claims decided.
On May 20, 2019, another FSM Supreme Court justice, after hearing, ordered that the helicopter remain where it was and set a June 7, 2019 hearing date. Since its regular off-island counsel was unavailable for that date, Dave's moved that the hearing be continued to late August or early September. The FSM opposed any delay, arguing it would be prejudiced because the issues were already fully briefed and the assistant attorney general assigned to the case would be leaving the FSM in July. On June 4, 2019, the court granted the enlargement, but did not set a hearing date. The FSM sought reconsideration of the continuance but was denied. On June 11, 2019, Dave's filed a reply to the FSM's opposition to its motion to return its helicopter. On July 3, 2019, the FSM filed a motion asking for leave to file a surreply along with a copy of its proposed surreply.
The current justice was assigned this case on July 29, 2019. On August 1, 2019, the court set a September 13, 2019 hearing date; granted the FSM leave to file its surreply; and allowed Dave's to file, if it thought it advisable, a rejoinder to the FSM's surreply. Dave's filed its rejoinder on September 6, 2019. As noted above, during the September 13, 2019 hearing, the court asked for further briefing on two issues. That briefing was finished on October 28, 2019. The matter was then considered submitted to the court for decision.
A. Dave's Position
Dave's moves for the seized helicopter's return because, in its view, the seizure was unlawful, and Dave's is therefore entitled, under 12 F.S.M.C. 312, to its return. Dave's contends that the FSM has not shown probable cause for the search warrant's issuance because (1) the helicopter's owner was misidentified as Hansen Helicopters, Inc., but it was owned by Dave's Helicopter Service, Inc.; (2) the warrant's supporting affidavit did not show probable cause; (3) the information supplied by the U.S. in the Jeffrey Olson letter did not mention Dave's or accuse it of any wrongdoing and that letter could not establish probable cause because it was not under oath; (4) the helicopter had not been involved in a reportable incident or accident but in an occurrence that did not need to be reported since the helicopter, as a precaution, landed on the ocean's surface undamaged, but it was later damaged by the rough seas while waiting for the Pacific Ranger to recover it, and it was further damaged during the process of loading it back onto that fishing vessel; (5) the U.S. had no jurisdiction over Dave's helicopter outside of U.S. territory because the helicopter's U.S. registration was invalid; and (6) that therefore the FAA requirement that U.S. aircraft be flown by persons with an FAA pilot certificate is irrelevant, as is the U.S.'s claim that the May 24, 2018 event had to be reported to the FAA.
Dave's also argues that its helicopter's seizure and its future shipment to Guam amounts to a de facto civil forfeiture that cannot be remedied by any bond posted by either the FSM or the U.S. Dave's asserts that a 12 F.S.M.C. 1709(1)(a) search warrant does not allow the FSM to take possession of property, and that the FSM should have instead sought an evidence-gathering order under 12 F.S.M.C. 1709(1)(b) and complied with 12 F.S.M.C. 1714's provisions about the enforcement of foreign confiscation orders in order to be able to validly seize the N501SU helicopter and allow the FBI to ship it to Guam.
B. The FSM's Position
The FSM contends that the relevant statute, 12 F.S.M.C. 1709, does not require the court to determine whether the foreign government requesting assistance actually has jurisdiction over the alleged offenses, only that there is probable cause to be believe that a serious offense may have been committed against the foreign state's laws and that evidence of that crime may be found in the FSM. The FSM asserts that a bond is not needed because the seized helicopter will, at all times, remain Dave's property.
The FSM points to 12 F.S.M.C. 1709(3) as permitting it to use the Olson letter to help establish probable cause, and it further notes that it promptly corrected its earlier factual error that it never claimed that Hansen Helicopters, Inc. ("Hansen") owned the N501SU helicopter, when it filed, on June 25, 2019, the FSM's Notice of Correction of Representation to the Court, acknowledging that a statement to that effect was made in the Request for Mutual Assistance.
A. Further Undisputed Facts
Dave's Helicopter Service, Inc. is a Vanuatu corporation. It owns the helicopter with the U.S. FAA registration number N501SU. John Walker, a U.S. citizen, signed the April 18, 2011 FAA application form for Dave's to register as the new owner of helicopter N501SU. Dave's was still the N501SU helicopter's registered owner when the May 24, 2018 event occurred, and when the helicopter was seized on May 1, 2019 pursuant to the search warrant. The FAA still lists the N501SU
helicopter as validly registered in the U.S. and owned by Dave's.3 There is no indication or claim that Dave's ever registered the helicopter, validly or otherwise, in any country other than the U.S. or that Dave's ever represented to anyone that the helicopter was registered somewhere else.
Hansen is a U.S. corporation from Guam. It does not own helicopter N501SU. It is, however, a corporation that Walker is involved in and that uses some of the same Guam office personnel and equipment as Hansen. Walker signed Dave's application to register the N501SU helicopter with the FAA.
On May 24, 2018, the N501SU helicopter, after taking off from the Pacific Ranger and flying some 23 nautical miles away, set down on the ocean, and ended up floating on the ocean's surface for over two hours until the Pacific Ranger came alongside and hoisted it aboard, rescuing the pilot and the fish-spotter passenger. The N501SU helicopter never flew again. On May 28, 2018, the helicopter pilot sent an incident report about this event. The report stated that, after safely touching down on the water and shutting down the engine, the two to three meter swells caused the floating helicopter to lift upwards and the decelerating main rotor blades to droop downward resulting in a tailboom strike and damaging the main rotor blades and the upper canopy windshield. The pilot also further reported that, after calling a mayday, he and his passenger were rescued and retrieved and were all well and healthy. This report was sent to several people including Phillip Turner Kapp, Hansen's maintenance director, who later provided it to the FSM national police.
On June 10, 2018, the Pacific Ranger arrived at Pohnpei and off-loaded the N501SU helicopter. It was stored in Hansen's container at the PT&S facility for future shipment to Subic Bay, Philippines for inspection and repair. On June 29, 2018, the FSM national police and an FBI agent viewed the helicopter at PT&S. Its data plate was missing and its registration markings were no longer visible. On July 11, 2018, Kapp sent an e-mail, with a Hansen return address, in which he said, "Helicopter N501SU . . . we have owned it since 2011" and also stated that he intended "to send it to the Philippines for further inspection."
B. Probable Cause
Dave's contends that the Olson letter, the Aldens affidavit, and the June 2018 viewing of the helicopter at PT&S cannot be used to support a probable cause finding. Dave's further contends that probable cause was not shown because the U.S. has no jurisdiction over Dave's and its helicopter so it could not have committed a crime against U.S. law, and because even if the U.S. did have jurisdiction over the helicopter, the FSM cannot establish probable cause that U.S. laws were violated since Dave's did not have to report the May 24, 2018 event to the FAA. Dave's also asserts that the initial misidentification of Hansen as helicopter N501SU's owner invalidates the search warrant.
For the FSM Supreme Court to issue a search warrant when the FSM has applied for one after granting a foreign request for judicial assistance, the warrant application must satisfy the court "that there is probable cause to believe that: (a) a serious offense has been or may have been committed against the laws of the foreign state." 12 F.S.M.C. 1709(2).
1. Warrant Application's Supporting Documents and Finding of Probable Cause
a. The Olson Memorandum or Letter
Dave's contends that the seven-page Olson memorandum or letter cannot be used to establish probable cause as it was not sworn, and it is therefore hearsay and inadmissible.
Dave's is mistaken. It is well-established that hearsay may be used to establish probable cause. "The finding of probable cause may be based upon hearsay evidence in whole or in part." FSM Crim. R. 4(b); see also FSM v. Kimura, 19 FSM R. 630, 638 (Pon. 2015) ("hearsay can be used to support a probable cause finding, if it has the indicia of reliability"); id. at 636 (hearsay from the police, or other government law enforcement agencies is often reliable without requiring any additional showing); FSM v. Ezra, 19 FSM R. 497, 515 (Pon. 2014); In re Anzures, 18 FSM R. 316, 324 n.12 (Kos. 2012); FSM v. Sorim, 17 FSM R. 515, 524 n.2 (Chk. 2011); FSM v. Esefan, 17 FSM R. 389, 395 (Chk. 2011); FSM v. Wainit, 10 FSM R. 618, 621 (Chk. 2002); FSM v. Yue Yuan Yu No. 708, 7 FSM R. 300, 303 (Kos. 1995) (court may rely on hearsay evidence for the purpose of finding probable cause at a post-seizure hearing); FSM v. Zhong Yuan Yu No. 621, 6 FSM R. 584, 589 (Pon. 1994).
The Olson letter or memorandum is hearsay that, by FSM statute, has been accorded the indica of reliability. FSM statute law authorizes the use of a memorandum such as the Olson letter to establish probable cause. For the purpose of establishing probable cause that a serious offense has been or may have been committed against the laws of a foreign state, "a statement contained in the foreign request to the effect that a serious offense has been or may have been committed against the laws of a foreign state is prima facie evidence of that fact." 12 F.S.M.C. 1709(3). The statute does not require that the foreign request's statement be under oath. Furthermore, Dave's does not dispute that the Olson letter complies with the statutory requirements for a foreign request for mutual assistance found in 12 F.S.M.C. 1708(1). That statute also does not require that the information be provided under oath. Thus, the Olson letter may be used to support a probable cause finding.
b. The Aldens Affidavit
Dave's contends that the Aldens supporting affidavit is deficient because it was sworn before a notary public and not "an FSM Supreme Court clerk or judicial officer" as required by Criminal Procedure Rule 41(c)(1), and because it is undated. The court must reject this contention because, while the signature line says "notary public" below it, the signature is that of an FSM Supreme Court court clerk and her signature is sealed by the court's seal. Under the circumstance, the court has no reason to believe that the Aldens affidavit was executed on any date other than that of the warrant application it is attached to, especially since it mentions an event that occurred April 9, 2019. Moreover, the court cannot see why the inadvertent omission of the date on the Aldens affidavit (a line is provided for entry of the date above the clerk's signature and, apparently the court clerk neglected to fill it in before she signed) would be fatal to the warrant application or the warrant itself.
Dave's also asserts that the Aldens affidavit states no independent facts to show probable cause, but does not develop this argument further, so the court will not pursue it.
2. Whether the United States Can Exercise Jurisdiction over Helicopter N501SU
Dave's asserts that, regardless of whether the U.S.'s characterization of the May 24, 2018 event is correct, the U.S. had no jurisdiction over its helicopter and so it could not have committed a crime against U.S. laws.
a. Jurisdiction Based on Registration
Dave's contends that the FSM has not shown probable cause that a crime had been committed against United States laws because the U.S. did not have any jurisdiction where the alleged crimes occurred4 and because it did not have any other jurisdiction over the N501SU helicopter. Dave's argues that the U.S. lacked jurisdiction over its helicopter because the helicopter's FAA registration was invalid and therefore Dave's helicopter did not have the U.S. nationality needed for the U.S. to exercise extraterritorial jurisdiction.
"Aircraft have the nationality of the State in which they are registered." Chicago Convention on International Civil Aviation art. 17 (Dec. 7, 1944).5 The "State" in which the N501SU helicopter was registered was, at all times, the United States. The N501SU helicopter therefore had U.S. nationality at all times, and as such, would be subject to FAA regulations wherever in the world it flew. Under U.S. law, an FAA certificate of aircraft registration is "conclusive evidence of the nationality of an aircraft for international purposes, but not conclusive evidence in a proceeding under the laws of the United States." 49 U.S.C. § 44103(c)(1).6 So for international (FSM) purposes, this U.S. registration is conclusive. A "civil aircraft of the United States" is an aircraft registered with the FAA under U.S. Code, Title 49, chapter 441. 49 U.S.C. § 40102(17). The N501SU helicopter is thus a "civil aircraft of the United States." It therefore has U.S. nationality, and the U.S. may exercise extraterritorial jurisdiction over it.
b. Jurisdiction if Registration found Invalid
Dave's argues that the FAA should not have accepted Dave's registration application for the N501SU helicopter because, as a Vanuatu corporation, it was not eligible to register aircraft in the U.S. since it was not organized or doing business in the U.S. under U.S. laws. See 49 U.S.C. § 44102(a)(1) (listing eligible applicants).7 If it is true that the FAA should not have accepted Dave's application to register the helicopter, then it is also true that Dave's should not have applied to register its helicopter in the U.S. Yet Dave's chose to.
The court can give no credence to Dave's suggestion during the hearing that a helicopter invalidly
registered in the U.S. and not registered anywhere else in the world, such as it now describes its helicopter, would be beyond any nation's power or authority to regulate it when it was in international waters.8 As a matter of international law, an aircraft can only be registered in one country at a time. "An aircraft cannot be validly registered in more than one State, but its registration may be changed from one State to another." Chicago Convention on International Civil Aviation art. 18 (Dec. 7, 1944). Implicit in this principle is the concept that civil aircraft must be registered in some country. And Dave's helicopter was registered in the U.S. A U.S. court should, and probably will at some point, have the final say whether Dave's registration conferred extraterritorial jurisdiction on the U.S.,9 but for the purpose of establishing probable cause that U.S. laws were violated, the U.S. registration of the N501SU helicopter is sufficient.
Dave's cites two U.S. appellate cases, Air One Helicopters, Inc. v. Federal Aviation Admin., 86 F.3d 880 (9th Cir. 1996) (O'Scannlain, J., dissenting) and IAL Aircraft Holding, Inc. v. Federal Aviation Admin., 206 F.3d 1042 (Cox, J., dissenting), mandate recalled and decision vacated as moot by 216 F.3d 1304 (11th Cir. 2000), to support its proposition that the FAA strictly enforces its registration criteria and should have refused to register Dave's helicopter. Neither can offer Dave's much support. In both cases, the FAA refused to register an aircraft because it was not satisfied with the evidence produced that the aircraft in question was no longer validly registered in another country. In both cases, the court overruled the FAA when it determined that the foreign registrations were no longer valid, although in IAL Aircraft Holdings that court recalled its mandate and vacated its earlier decision as moot because it learned that before it had issued its decision, the aircraft had been sold and validly registered in another country.
In this case, the N501SU helicopter was already registered in the U.S. On March 3, 2011, Dave's bought the helicopter from Eastern Shore Helicopters, Inc. Dave's then applied to transfer the N501SU registration from the seller to it, the buyer. Dave's became the registered owner on April 18, 2011.
After Dave's supposed improper registration of helicopter N501SU, it represented that its helicopter as registered in the U.S., and the helicopter was, in fact, registered there. Dave's thus enjoyed the benefits and privileges of its helicopter's U.S. registration. The vessel(s) Dave's helicopter spotted fish for would have been aware of this registration because the U.S. registration number would have been displayed on its fuselage.10 Dave's would also have benefitted from the privileges that 20 F.S.M.C. 1104 afforded to aircraft registered in other nations. Dave's asserts that without a valid U.S. registration, "there can be no claim to worldwide jurisdiction by the U.S." Yet, Dave's derived "worldwide" benefits and privileges from the helicopter's U.S. registration and U.S. worldwide
jurisdiction over it, but now claims that the U.S. cannot exercise any jurisdiction over it.
Dave's should be estopped from asserting that the U.S. lacked jurisdiction or authority over the helicopter that Dave's had registered with the FAA, and from asserting that Dave's did not have to comply with the FAA's applicable regulations or U.S. aviation law. See Etpison v. Perman, 1 FSM R. 405, 417 (Pon. 1984) (persons may be precluded from their act, or conduct, or silence when they had a duty to speak, from asserting a right they otherwise might have had). Dave's should not now be able to assert that the U.S. or the FAA has no jurisdiction over the N501SU helicopter after it registered that helicopter with the FAA and maintained its U.S. registration thereafter and derived whatever benefits that the U.S. registration afforded.
Dave's asserts that estoppel cannot apply to the N501SU helicopter's registration, because parties cannot stipulate or consent to a court's subject-matter jurisdiction, and that the N501SU helicopter's 2011 registration was void from the start. Dave's argues that since a court decision rendered without the court having the requisite subject-matter jurisdiction is void from the start, then the U.S. (or any other country since the helicopter was never registered anywhere else) never had any jurisdiction over its helicopter from the start.
The court cannot agree. It is true that parties cannot confer or divest a court of jurisdiction by stipulation or by assumption. Luzama v. Ponape Enterprises Co., 7 FSM R. 40, 45 (App. 1995). But Dave's and the FAA were not lawsuit parties trying to confer, by stipulation, subject-matter jurisdiction on some court. Dave's was the buyer of a helicopter who had to register that helicopter somewhere (some country) and chose to register it in the U.S. Maybe Dave's was under the impression in 2011 that it was eligible to register the helicopter in the U.S. It might even have been eligible at that time, if it had provided the proper paperwork. (Nothing is before the court about where the N501SU helicopter was based and primarily used in 2011.) But the fact remains that Dave's had to register the helicopter somewhere, and be under some nation's regulatory authority. Dave's registered the helicopter in the U.S., with the FAA. Dave's is therefore now estopped from denying the U.S.'s regulatory authority over the N501SU helicopter.
3. Whether the May 24, 2018 Event is a Reportable Accident or Incident
Dave's argues that, even if its helicopter was subject to U.S. jurisdiction, probable cause cannot be found because the May 24, 2018 event did not need to be reported since it was merely a non-reportable occurrence and not an accident or incident.11 It is undisputed that Dave's did not report this event. U.S. regulatory law requires the "[i]nitial notification and later reporting of aircraft incidents and accidents and certain other occurrences in the operation of aircraft, wherever they occur, when they involve civil aircraft of the United States." 49 C.F.R. § 830.1. As shown in the section above, the N501SU helicopter is a civil aircraft of the U.S. Dave's maintains that the N501SU helicopter did not lose power and crash land on the ocean, but that the helicopter merely set down on the ocean's surface as a precaution so that the Pacific Ranger could recover it, and that it was damaged by rough seas (4 meter waves) and by the vessel's recovery effort. In Dave's view, this does not constitute an aircraft accident as defined by U.S. law or an incident that U.S. law says must be reported.
Under U.S. law, an aircraft accident is defined as an incident in which a person suffers "death or serious injury" or the aircraft receives "substantial damage" anytime after a person has boarded an
aircraft intended for flight and before all persons have disembarked. 49 C.F.R. § 830.2. An aircraft operator must immediately report all aircraft accidents to the U.S. National Transportation Safety Board ("NTSB"). 49 C.F.R. § 830.5. In addition, an aircraft operator must also immediately report to the NTSB certain incidents if they occur. Among these incidents are "[f]light control system malfunction or failure;" 49 C.F.R. § 830.5(a)(1), and "[d]amage to helicopter tail or main rotor that requires major repair or replacement of the blade(s)," 49 C.F.R. § 830.5(a)(11).
Dave's contends that none of these provisions describe the May 24, 2018 event. The court cannot agree. On May 24, 2018, the N501SU helicopter took off from the deck of the Pacific Ranger, to spot fish for it to catch. By the time the N501SU helicopter was returned to the Pacific Ranger's deck and the pilot and fish-spotter passenger disembarked, it was no longer in a flyable condition – no longer airworthy.
This fact alone establishes probable cause that a reportable event had occurred – either an "aircraft accident" because there was substantial damage to the helicopter, or because there had been a "serious incident." 49 C.F.R. § 830.5(a). "Substantial damage means damage or failure which adversely affects the structural strength, performance, or flight characteristics of the aircraft, and would normally require major repair or replacement of the component." 49 C.F.R. § 830.2. A helicopter that was no longer flyable or airworthy, and that was being sent to the Philippines for repair, is an aircraft that has suffered substantial damage.
Even if Dave's version were accepted, a serious incident still occurred. Dave's asserts that the helicopter's tail was damaged by ocean swells or by the Pacific Ranger while it was loaded back onto that vessel. That qualifies as "ground damage," to the helicopter's tail "that requires major repair," which is a listed serious incident. 49 C.F.R. § 830.5(a)(11). Dave's also asserts that the N501SU helicopter landed safely on the ocean's surface (in rough seas) as a "precaution." The only likely reason for that would appear to be a possible flight control system malfunction, also a reportable serious incident. 49 C.F.R. § 830.5(a)(1).
Accordingly, the FSM's search warrant application established that there was probable cause to believe that a serious offense had been committed against the laws of a foreign state – the United States. The court's issuance of a search warrant was therefore proper.
3. Effect of Earlier Viewing at PT&S on Later Search Warrant
Dave's contends that the June 29, 2018 warrantless viewing at PT&S of its helicopter by an FSM national police officer and an FBI agent is problematic because, in its view, if the June 29, 2018 search were valid there would have been no need to conduct the May 1, 2019 search, or if the June 29, 2018 search was invalid, probable cause for the April 26, 2019 search warrant could not be based on the June 29, 2018 search. Dave's emphasizes that the helicopter was in a storage container on PT&S private property, not in plain view. It contends that the statutes cited by the FSM, 54 F.S.M.C. 211 et seq., cannot salvage the unlawful nature of the June 29, 2018 viewing of the N501SU helicopter by the FSM (and FBI) in the PT&S storage container because that search was not in a port area and was not done by a customs officer. In Dave's view, all the information in the Olson letter and the search warrant application was based on the illegal June 29, 2018 viewing or search, and the search warrant is thus the fruit of the poisonous tree and it, and the seizure of property pursuant to it, must therefore also be unlawful.12
First, most of the information that the FSM used to establish probable cause came from sources other than the June 29, 2018 viewing at PT&S. The only new information obtained from that viewing appears to be that the helicopter's data plate had been removed and that its registration markings were no longer visible. The actual extent of the visible damage may either have confirmed what was already known from other sources or been new information of its own. If there is information received from a known independent source, that information may be used to establish probable cause even if the same information was also obtained through an illegal search. FSM v. Inek, 10 FSM R. 263, 266 (Chk. 2001). But the June 29, 2018 viewing does not appear to be an illegal search.
Even if the June 29, 2018 viewing was a warrantless search, it is not as problematic as Dave's suggests. This is because "[a] Customs officer shall have the right to examine all goods subject to Customs control," 54 F.S.M.C. 235, and among the goods subject to Customs control are "[a]ll goods for export, from the time such goods are brought to any port, airport or other place for export until their exportation to any country outside of the FSM," 54 F.S.M.C. 234(1)(b).
Although the PT&S facility is not itself a port or airport, it is in close proximity to both the Pohnpei port and airport and could be considered an "other place for export" to the extent that it is a container yard – it stores packed containers ready for shipment abroad. In particular, PT&S stored a shipping container that it thought was owned by Hansen13 and in which Dave's helicopter was put for shipment to a consignee at Subic Bay, Philippines,14 in other words, in a CY-CY container. "'CY-CY' means all goods packed in the container are for the one consignee and the container is consigned from container yard to another container yard and will not normally be unpacked at the wharf." 54 F.S.M.C. 212(10)(d). CY-CY containers are typically subjected to customs inspection, not on the wharf, but at a container yard. See 54 F.S.M.C. 234(3)(c) ("Customs officers shall be given access to any CY-CY container or similar shipment at the owner's premises for the purpose of any section of this chapter.").
Dave's helicopter, and the container it was in, were thus goods15 under Customs control from the time the N501SU helicopter was brought to PT&S ("other place for export") to be sent to Subic Bay, Philippines, and were goods the FSM had a right to examine before export. 54 F.S.M.C. 234(1)(b). That the examination was not done by a customs officer, but by a different FSM law enforcement agency – one that is tasked with the general enforcement of all FSM national law, instead of the narrow specialized area that customs officers are restricted to – should not invalidate the examination. See, e.g., 54 F.S.M.C. 236.
Ports, airports, and other places for export such as a container yard are functional equivalents of a border. Border searches and searches at the functional equivalent of a border are an exception to the warrant requirement of section 5 of the FSM Declaration of Rights. FSM v. Joseph, 9 FSM R. 66, 70 (Chk. 1999). The border search exception to the constitutional search warrant requirement applies equally to persons and goods leaving the country as it does to persons and goods entering the country.
The statute, 54 F.S.M.C. 234(1)(b), clearly provides for warrantless search for goods for export. The warrant requirement of section 5 of the FSM Declaration of Rights is similar to that in the U.S. Constitution's fourth amendment and the U.S. also has a statute that authorizes warrantless searches for departing goods. U.S. courts reach the same result.16 A border search, or a search at the functional equivalent of a border, of outgoing passengers or goods requires neither a warrant nor probable cause. See, e.g., United States v. Boumelhem, 339 F.3d 414, 419-24 (6th Cir. 2003) (warrantless customs search in railroad yard of shipping container destined abroad not tainted by FBI participation in customs search); United States v. Oriakhi,, 57 F.3d 1290, 1296-97 (4th Cir. 1995); United States v. Beras, 183 F.3d 22, 26 (1st Cir. 1999) (neither probable cause nor reasonable suspicion required); United States v. Ezeiruaku,, 936 F.2d 136, 140-43 (3d Cir. 1991); United States v. Berisha,, 925 F.2d 791, 794-96 (5th Cir. 1991); United States v. Cardona,, 769 F.2d 625, 628-29 (9th Cir. 1985) (functional equivalent of border was FedEx package destined overseas, once it was dispatched into the Federal Express system); see also 5 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 10.5(a), at 189 & n.10 (4th ed. 2004).
C. Other Issues Raised by Dave's
1. Whether Initial Misidentification of Helicopter's Owner Invalidates Warrant
The FSM (relying on the U.S. request) initially identified the N501SU's owner as Hansen. It later corrected this misstatement or misidentification. Its June 25, 2019 Notice of Correction of Representation to the Court corrected the representation in its June 3, 2019 opposition to Dave's May 16, 2019 motion, that the FSM never claimed that Hansen was the helicopter's owner.
The U.S. sought the FSM's mutual assistance in a criminal "Investigation of John D. Walker and others (Hansen Helicopters)." Dave's does not dispute that Walker is intimately connected with Dave's, but argues that, while it is not unusual in today's business world for a person to incorporate or own multiple corporations and do business through more than one company with similar directors or ownership, the U.S. should have named the correct Walker corporation because it could be easily ascertained through the FAA website.
The FSM Constitution provides that "[a] warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized." FSM Const. art. IV. § 5. The search warrant application "must particularly identify the specific 'property . . . to be seized and nam[e] or describ[e] the . . . place to be searched.'" In re Search Warrant Application, 19 FSM R. 399, 400 (Pon. 2014) (quoting FSM Crim. R. 41(c)(1)). The April 25, 2019 search warrant application particularly described the place to be searched – PT&S – and it particularly described the thing to be seized – the N501SU helicopter. The application's description of the helicopter's owner as Hansen was incorrect.
"[C]ourts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner." United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684, 689 (1965). A technical error in description is not automatically fatal to a search warrant's validity. United States v. Rytman, 475 F.2d 192, 192 (5th Cir. 1973) (warrant's listed serial
number's slight difference from stolen part's actual serial number did not invalidate warrant or conviction); Stevens v. State, 383 So. 2d 1156, 1157 (Fla. Dist. Ct. App. 1980) (warrant's description of item to be seized as a .38 Smith & Wesson revolver not fatal to seizure of .38 Dan Wesson revolver). "Absolute precision is not required in identifying . . . the things to be seized." 3A CHARLES ALAN WRIGHT & SARAH N. WELLING, FEDERAL PRACTICE AND PROCEDURE § 668, at 95 (4th ed. 2000).
The court therefore concludes that the search warrant application's misidentification of Hansen, instead of Dave's, as the N501SU helicopter's corporate owner is not fatal to the search warrant application or to the issued warrant. That Walker owned the helicopter through Dave's, and not through Hansen, is a technical defect. The U.S. is investigating Walker. The N501SU helicopter was described with sufficient particularity that the officers conducting the search had no trouble identifying it as the thing sought when they found it. That the U.S. misstated how Walker controlled the N501SU helicopter (and was likely misled by the e-mail communication with a Hansen return address and Dave's shared office personnel and equipment that they had owned the N501SU helicopter since 2011) is a mere technical defect which cannot invalidate the search warrant.
2. Search Warrants and Evidence-Gathering Orders
Dave's also argues that the helicopter's seizure is improper because the court did not issue an evidence-gathering order under 12 F.S.M.C. 1709(1)(b), and therefore the FSM could not seize (that is, gather) the evidence of the helicopter. When the Secretary of Justice has granted a foreign state's request to obtain evidence, the FSM "may apply to the Supreme Court for: (a) a search warrant; or (b) an evidence-gathering order." 12 F.S.M.C. 1709(1); see also 12 F.S.M.C. 1709(2) (court "may issue an evidence-gathering order or a search warrant"). The statute is disjunctive. The FSM may apply for, and the court may issue, one or the other – either a search warrant or an evidence-gathering order. (Or, the FSM could apply for, and be granted, both.)
In this case, the FSM applied for, and was granted, a search warrant. The term "search warrant" in 12 F.S.M.C. 1709(1)(a) has the same meaning in as it does in the rest of Title 12, and in its common and approved usage. See 12 F.S.M.C. 1709(9) ("A search warrant shall be in the usual form in which a search warrant is issued in the Federated States of Micronesia, varied to the extent necessary to suit the case."). A search warrant specifies the property to be searched for, 12 F.S.M.C. 306(1), and after the search warrant's execution, a receipt is left for the property taken and a return is made with the inventory of the property taken. 12 F.S.M.C. 307. A search warrant, by its nature, always anticipates the seizure, if found, of the property sought in the warrant. Even the constitutional provision indicates that a search warrant includes the seizure of the property sought in the search. FSM Const. art. IV, § 5 ("[a] warrant . . . [will] particularly describ[e] the place to be searched and the . . . things to be seized"). The property sought in the April 26, 2019 search warrant included the N501SU helicopter. It was found and seized.
This contention is groundless because evidence-gathering orders, under 12 F.S.M.C. 1709(1)(b), involve the gathering of evidence by methods other than by a search warrant, under 12 F.S.M.C. 1709(1)(a), commanding the search for, and seizure of, particular things. See 12 F.S.M.C. 1709(4). An evidence-gathering order may involve taking testimony, the collecting or recording of data, or producing things, documents, or copies. Id. The FSM did not seek such an evidence-gathering order. It sought, and obtained, a search warrant.
3. Seizure as a "Confiscation Order"
Dave's contends that, because the seized helicopter is to be sent to Guam, the FSM's seizure of its helicopter is a confiscation, and, since 12 F.S.M.C. 1714 applies to confiscation orders, that
statute's procedures must be followed but were not. Dave's contends that this makes the seizure of its helicopter invalid and that therefore the FSM must return it.
Section 1714 provides procedures by which the FSM can ask the court to enforce a foreign restraining order or a foreign confiscation order that a foreign state has asked the FSM Secretary of Justice to enforce. It is inapplicable in this situation. There is no foreign confiscation order. No U.S. order to confiscate the N501SU helicopter was issued. Neither the FSM nor the U.S. seek to confiscate the N501SU helicopter or ask for its forfeiture. Dave's mischaracterizes an FSM search warrant as a foreign confiscation order. It is not a confiscation order, foreign or otherwise. Dave's can obtain no relief on this ground.
Furthermore, the statute contemplates that things seized by a search warrant will be sent to the foreign state requesting the assistance. See 12 F.S.M.C. 1709(10) ("No document or thing seized and ordered sent to a foreign state shall be sent until the Secretary [of Justice] is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the document or thing.").
4. Dave's Miscellaneous Issues
Dave's, during the hearing, asserted that this search warrant was part of a U.S. government vendetta against Hansen and its operations and wanted it out of business. This assertion is beyond the scope of what is before this court. It is a matter that should properly be raised and resolved in a U.S. court before which Hansen (or Walker or Dave's) would be able to marshal all of their evidence to support such a claim.
Dave's complains that neither the U.S. nor the FSM has posted a bond for the seized helicopter or made provision for its return to the FSM. Dave's has not directed the court to any authority whereby a bond is required in order to seize property pursuant to a search warrant. Nor is the court aware of any. Dave's suggests that it can somehow negotiate or require a bond based on 12 F.S.M.C. 1709(10) ("No . . . thing seized and ordered sent to a foreign state shall be sent until the Secretary [of Justice] is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the . . . thing."). Subsection 1709(10) concerns the Secretary of Justice's power to assure the foreign state's compliance with any terms or conditions that are imposed, not the real party in interest's right to demand a bond for its seized property.
Dave's also asserts that the FSM's seizure and probable removal of the container that PT&S had stored the helicopter in (and presumably would be used to ship the helicopter to the Philippines for repair) somehow violates PT&S's rights and is a ground for Dave's claim for relief. A party generally cannot assert the rights of a third party as its own. See Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 200-01 (Pon. 2019); Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 154 (Chk. 2019); FSM v. Kana Maru No. 1, 14 FSM R. 368, 373 (Chk. 2006); Sipos v. Crabtree, 13 FSM R. 355, 363 (Pon. 2005); Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM R. 111, 115 (Chk. 1997). Thus, Dave's cannot assert any rights that PT&S might have.
Accordingly, the real party in interest's motion for the return of the seized N501SU helicopter is denied. Therefore the court's May 20, 2019 Order Delaying Export of Seized Property is hereby dissolved.
_____________________________________Footnotes:
1 Sometimes this date is given as May 25, 2018. Neither party has attached any importance to this. For the purpose of deciding this motion this discrepancy may be ignored.
2 The parties seem to now agree that this position is located within the FSM's Exclusive Economic Zone.
3 The U.S. remedy for an invalidly registered aircraft is that the owner must return the aircraft's Certificate of Aircraft Registry "as soon as possible to the Registry." 14 C.F.R. § 47.43(b). Dave's has not yet done so, although it expresses a willingness to do so whenever it is asked.
4 It is undisputed that the U.S. has no jurisdiction over the location where the alleged offenses involving helicopter N501SU occurred. That location is in the FSM Exclusive Economic Zone.
5 The FSM adhered to the Chicago Convention on International Civil Aviation on September 27, 1988. The U.S. ratified the Chicago Convention on August 9, 1946, and Vanuatu adhered to it on August 17, 1983.
6 The FSM has a similar statute providing that an aircraft's FSM certificate of registration "shall be conclusive evidence of [FSM] nationality for international purposes." 20 F.S.M.C. 501(6).
7 Apparently, a non-U.S. corporation can register an aircraft with the FAA "when the corporation is organized and doing business under the laws of the United States or a State, and the aircraft is based and primarily used in the United States." 49 U.S.C. § 44102(a)(1)(C); see also 14 C.F.R. § 47.9 (aircraft registration in U.S. by corporations not U.S. citizens). Dave's now contends that it does not qualify for registration under this statute, presumably because its helicopter is not based and primarily used in the U.S. This is not unusual. The FSM has a similar statute permitting foreign corporations to register aircraft in the FSM "so long as such aircraft is based and primarily used in the Federated States of Micronesia." 20 F.S.M.C. 501(2)(a)(i)(B).
8 The court notes that this is not the only case it heard in 2019 involving fish-spotting helicopters operating in the FSM's EEZ that may not have been validly registered in any jurisdiction and seem to be owned by some Vanuatu business entity. This is unsettling. While it is not the court's province to inquire further into this trend or coincidence, this may be a proper line of inquiry for those FSM national government agencies with regulatory authority over such activities.
9 "The registration or transfer of registration of aircraft in any contracting State shall be made in accordance with its laws and regulations." Chicago Convention on International Civil Aviation art. 19 (Dec. 7, 1944).
10 "Every aircraft engaged in international air navigation shall bear its appropriate nationality and registration marks." Chicago Convention on International Civil Aviation art. 18 (Dec. 7, 1944). The N501SU helicopter was engaged in international air navigation because it was navigating in airspace outside its country of registration.
11 Dave's does not dispute that a violation of 49 C.F.R. § 830.5 would be a serious offense against the laws of the U.S. It just disputes that that is what happened, and that, if it did happen, that the U.S. had jurisdiction over Dave's helicopter.
12 Dave's does not challenge the lawfulness of the second pre-warrant viewing of the helicopter on April 9, 2019, when the FSM police, with an inspection sheet, viewed the container's contents to verify that the helicopter was still here.
13 PT&S general manager testified that he assumed that the container and the helicopter in it were both owned by Hansen, but he never asked.
14 Vitt also testified that the problem with shipping the container out quickly was that there was no direct route to Subic Bay, Philippines, only to Manila.
15 Goods are "any type of merchandise, product, commodity, vehicle, moveable personal property, or commercial wares." 54 F.S.M.C. 212(18).
16 When a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, United States authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM R. 407, 412 n.2 (App. 2000). Section Five of the Declaration of Rights is patterned after the U.S. Constitution's Fourth Amendment so U.S. authority may be consulted to understand its meaning. Alexander v. Pohnpei, 18 FSM R. 392, 398 n.4 (Pon. 2012).
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