THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Chuuk v. Mijares ,
7 FSM Intrm. 149 (Chuuk S. Ct. Tr. 1995)

[7 FSM Intrm. 149]

CHUUK STATE,
Plaintiff,

vs.

ANNA WENGU MIJARES, ERNIE MIJURES,
KAIOS WENGU, STIK WENGU, LINDA (Chief Accountant)
ASA WHOLESALE ENTERPRISES,
Defendants.

CR. No. 27-95

ORDER

Wanis R. Simina
Associate Justice

Decided:  May 4, 1995

APPEARANCES:
For the Plaintiff:          Eriano Eram
                                     Assistant Attorney General
                                     Office of the Chuuk Attorney General
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

For the Defendant:     John Hollinrake, Esq.
                                     Law Offices of R. Barrie Michelsen
                                     P.O. Box 1450
                                     Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Search and Seizure
     For a court to order property seized pursuant to a search warrant to be returned, the defendants' burden is to show both that there has been an illegal seizure by the state and that they have a claim of lawful possession to the property.  Chuuk v. Mijares, 7 FSM Intrm. 149, 150 (Chk. S. Ct. Tr. 1995).

Constitutional Law ) Case or Dispute ) Standing; Search and Seizure
     A party who denies ownership of the seized items has no standing to ask for return of the property.  Chuuk v. Mijares, 7 FSM Intrm. 149, 150 (Chk. S. Ct. Tr. 1995).

Search and Seizure
     For a party to have a valid claim of lawful possession of alcohol seized by the state that party must have paid the possession tax on the seized items.  Chuuk v. Mijares, 7 FSM Intrm. 149, 150 (Chk.

[7 FSM Intrm. 150]

S. Ct. Tr. 1995).

Search and Seizure
     Where a defendant's motion is one for the return of seized property and he has failed to meet his burden to show a right to lawful possession, a court need not reach the issue of the illegal seizure and suppression of the evidence.  Chuuk v. Mijares, 7 FSM Intrm. 149, 151 (Chk. S. Ct. Tr. 1995).

*    *    *    *

COURT'S OPINION
WANIS R. SIMINA, Associate Justice:
     This matter came before the court on defendants' Motion for Return of Property. The defendants are charged with 4 counts of violating Chk. S.L. 5-119, 17(6) (Refusal to Cooperate with Revenue Officers) and one count of violating Chk. S.L. 6-66 [Penal Code], 909 (Obstruction of Justice).

     The defendants are seeking the return of 89 cases of wine and 112.5 cases of liquor seized on February 28, 1995 by agents of the State pursuant to a search warrant issued by this court.  Nothing else was seized during the execution of the search warrant.  For the court to order the property seized pursuant to a search warrant to be returned, the defendants have the burden to show both that there has been an illegal seizure by the State and that they have a claim of lawful possession to the property. Chk. Crim. R. 41(e) ["person aggrieved by an unlawful search . . . may move the court for return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized."]; see also United States v. Marshall, 526 F.2d 1349, 1355 (9th Cir.), cert. denied, 426 U.S. 923 (1976).

     In first dealing with the claim of lawful possession and ownership of the items seized, the evidence is not at all clear.  Neither of the parties have claimed ownership of the any of the specific items seized.  The defendant ASA Store (ASA) claims to have stopped selling liquor sometime before July of last year and to have transferred its liquor inventory to HLB which is partially owned by defendant Stik Wingu (Stik) along with Assistant Attorney General Kachuo Eko.  Mr. Eko is not a party to this action.  Thus ASA denies ownership of the seized items.  In denying ownership it therefore denies that it has standing to ask for return of the property.

     That leaves defendant Stik as asserting ownership on behalf of HLB.  For HLB through Stik to have a valid claim of lawful possession, they must have paid the possession tax on the seized items.

     The defendants have tendered purported tax receipts allegedly showing that the possession tax on part of the seized items has been paid.  One receipt is from March of last year in the name of ASA who has alleged it transferred its inventory to HLB.1  That document shows the taxes were paid on 50 cases of beer, 20 cases of 151 rum and 10 cases of wine.  Of these tax paid items, no beer or 151 rum was seized.  Therefore if believed this document only covers 10 cases of wine.  Yet there were 89 cases of wine seized.  The court notes that HLB has offered no documents that show any possessory tax having been paid on the 79 additional cases of wine if they are the owners.  Additionally the court notes that the March tax receipt is referenced to a particular B/L which the court takes to represent a

[7 FSM Intrm. 151]

bill of lading.  Yet no attempt was made by the defendants to show specific items of the seized property came from this shipment and are thus tax paid items they are entitled to possess.  Therefore if HLB is asserting ownership it does not have a claim of lawful possession of the seized wine.

     As for the HBL and Stik's ownership of the 112.5 cases of liquor (which does not include any 151 Rum), the defendant Stik introduced two purported tax receipts allegedly issued to HBL on November 16th and 17th of last year that cover a combined total of 100 cases of liquor.  Yet there are 112.5 cases of various liquors.

     Initially then HLB through Stik has not shown any claim for lawful possession of 12.5 cases of liquor.  For the court to believe that all of the remaining 100 case of the 112.5 cases represented by the November the tax receipts are the same 100 cases reported in the inventory of the seized items the court would have to infer that HLB sold no liquor from the middle of November until the seizure the last day of February.  The court cannot make this inference based on the evidence and common sense.  While some of the 112.5 cases seized maybe tax paid, the court based upon the defendants' evidence has no method of distinguishing which are tax paid and which are not.  It is the defendants' burden to prove this claim.  The court again notes that the November 16 tax receipt is referenced to a particular shipment and bill of lading, yet no evidence to link this information to any of the items seized was presented.

     If defendant Stik and HLB are claiming ownership and the right to lawful possession of all the seized items then it must now deal with the Department of Revenue and demonstrate to them that the possession tax has been paid on the items now in the Department's custody.2

     Since defendant's motion is primarily one for the return of property and they have failed to meet their burden to show a right to lawful possession, the court need not reach the issue of the illegal seizure and suppression of the evidence.  The court notes that the defendants are not charged with any crime relating to possession of untaxed alcohol but with a refusal to cooperate.  Thus it does not appear to the court that the seized items have any relevance to those charges.  If the Government attempts to use these items at trial and any objections to relevancy are overruled the court will then consider the issue of the illegality of the seizure for suppression purposes.

     Based upon the foregoing, it is therefore ordered that the defendants' Motion for Return of Property is hereby denied.

*    *    *    *
 
Footnotes:
 
1.  No evidence was submitted that showed the amount or kind of inventory that was transferred (receipt or agreement) between ASA and HBL.  Yet the court is asked to believe that the items represented in the March tax receipt are the same as some of the seized items.
 
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