THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as FSM v. Fal ,
8 FSM Intrm. 151 (Yap 1997)

[8 FSM Intrm. 151]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

FRANCIS FAL,
Defendant.

CRIMINAL CASE NO. 1996-3500

MEMORANDUM

Richard H. Benson
Associate Justice

Hearing and Trial:  November 29, 1996
Decided:  November 29, 1996
Memorandum Entered:  August 13, 1997

[8 FSM Intrm. 152]

APPEARANCES:
For the Plaintiff:          Kathleen M. Burch, Esq.
      (FSM)             Chief of Litigation
                       Office of the Yap Attorney General
                       P.O. Box 435
                       Colonia, Yap FM 96943

For the Defendant:     Beauleen Carl-Worswick, Esq.
                       Office of the Public Defender
                       P.O. Box 425
                       Colonia, Yap FM 96943

*    *    *    *

HEADNOTES
Criminal Law and Procedure; Criminal Law and Procedure ) Major Crimes
     Congress has the express power to define national crimes, and until the Constitution was amended in 1991, Congress also had the express power to define major crimes.  FSM v. Fal, 8 FSM Intrm. 151, 153 (Yap 1997).

Statutes ) Repeal
     The test to determine whether the 1991 constitutional amendment repealed a statute by implication is:  Does Congress, under the current constitutional provision, have the present right to enact a statute substantially like the statute in question?  FSM v. Fal, 8 FSM Intrm. 151, 154 (Yap 1997).

Criminal Law and Procedure
     A national crime is one that is committed in some place where the national government has jurisdiction, or that involves an instrumentality of the national government, or involves an activity that the national government has the power to regulate.  This power to define national crimes was inherent in the national government and existed before the 1991 constitutional amendment made the power express.  FSM v. Fal, 8 FSM Intrm. 151, 154 (Yap 1997).

Constitutional Law ) Interstate and Foreign Commerce
     The national government has the express authority to regulate international commerce.  International commerce is also a power of such an indisputably national character as to be beyond them power of a state to control because the customs and immigration borders of the country are controlled by agencies of the national government.  FSM v. Fal, 8 FSM Intrm. 151, 154 (Yap 1997).

Constitutional Law ) Interstate and Foreign Commerce; Weapons
     Congress may legislate regulation of firearms and ammunition under the foreign and interstate commerce clause of article IX, section 2(g).  FSM v. Fal, 8 FSM Intrm. 151, 154 (Yap 1997).

Weapons
     Because Congress has the present authority to enact firearms and ammunition statutes, such previously enacted statutes have continuing vitality.  FSM v. Fal, 8 FSM Intrm. 151, 154 (Yap 1997).

Criminal Law and Procedure ) Interrogation and Confession
     A defendant's constitutional right against self-incrimination is an important right, and, although

[8 FSM Intrm. 153]

an implied waiver of the right might be valid, there is a presumption against such waivers.  FSM v. Fal, 8 FSM Intrm. 151, 154 (Yap 1997).

Criminal Law and Procedure ) Right to Silence; Evidence
     The issue of the court's jurisdiction to try a case is a preliminary matter that the accused, by testifying upon, does not subject himself to cross-examination as to other issues in the case.  FSM v. Fal, 8 FSM Intrm. 151, 154 (Yap 1997).

Statutes ) Construction; Weapons
     Because of the verbs in the statute, only "carry" is defined in the Weapons Control Act, "possess" is given its usual meaning of taking into one's possession, and possession means to have in one's control.  FSM v. Fal, 8 FSM Intrm. 151, 155 (Yap 1997).

Weapons
     Because the defendant was affirmatively prevented from taking possession of the cooler which contained the bullets he never had present control or possession of the bullets and therefore was acquitted of the charge of possession of ammunition.  FSM v. Fal, 8 FSM Intrm. 151, 155 (Yap 1997).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     By information filed September 16, 1996, the defendant, Francis Fal, was charged with one count of possession of ammunition in violation of 11 F.S.M.C. 1202 and one count of threatening a public official, an FSM Customs officer, in violation of 11 F.S.M.C. 532(1)(a), (b), or (c).  I invited memorandums on whether this court had jurisdiction to try a possession of ammunition offense as charged in Count I of the information.  The FSM, appearing through the Yap Attorney General's office pursuant to the Joint Law Enforcement Agreement, submitted a memorandum in support of the court's jurisdiction and defense counsel responded.

     After oral argument on November 29, 1996, I concluded that the court did have jurisdiction, gave my ruling orally, addressed other pretrial motions, and the case proceeded to trial.  At the close of the prosecution's case-in-chief, Fal moved for acquittal on both counts.  I granted the motion as to Count I, and trial continued on Count II, which resulted in a judgment of conviction and sentencing order entered December 2, 1996.  I write now to set forth more fully my reasons for determining that the court had jurisdiction to try Count I and to memorialize my other rulings.

I.  Jurisdiction Over Count I
     Fal contends that the power to regulate possession of firearms and ammunition is not a national power.  He contends that it is neither a power that the Constitution expressly delegated to the national government or prohibited to the states, nor a power of such an indisputably national character as to be beyond the power of a state to control, and therefore it is a state power outside the jurisdiction of the national government.  Fal further contends that the charge ought to be dismissed because he is charged with mere possession of ammunition, not with the importation of ammunition into the Federated States of Micronesia.

     Congress has the express power to define national crimes.  FSM Const. art. IX, 2(p).  Until the Constitution was amended in 1991, Congress also had the express power to define major crimes.  See

[8 FSM Intrm. 154]

In re Ress, 5 FSM Intrm. 273, 275-76 (Chk. 1992).  The test to determine whether the 1991 constitutional amendment repealed a statute by implication is:  Does Congress, under the current constitutional provision, have the present right to enact a statute substantially like the statute in question?  FSM v. Jano, 6 FSM Intrm. 9, 11 (Pon. 1993).  A national crime is one that is committed in some place where the national government has jurisdiction, or that involves an instrumentality of the national government, or involves an activity that the national government has the power to regulate.  This power to define national crimes was inherent in the national government and existed before the 1991 amendment made the power express.  See SCREP No. 20-90, J. of FSM Con. Con. 38, 39 (legislative history of 1991 constitutional amendment).

     Because firearms and ammunition are not manufactured anywhere in the Federated States of Micronesia, all such items must necessarily be imported.  As such, they must move in international commerce.  The national government has the express authority to regulate international commerce.  FSM Const. art. IX, 2(g).  International commerce is also a power of such an indisputably national character as to be beyond them power of a state to control because the customs and immigration borders of the country are controlled by agencies of the national government.  Regulation of firearms and ammunition is therefore a subject upon which Congress may legislate.  See, e.g., SCREP No. 5-128, J. of 5th Cong., 2d Reg. Sess. 436, 438 (1987) ("As most weapons are imported, Congress can regulate them under the foreign and interstate commerce clause of article IX, section 2(g).") (legislative history of national criminal code revision of 1987). Because Congress has the present authority to enact firearms and ammunition statutes, such previously enacted statutes have continuing vitality.

     I therefore concluded that the offense charged in Count I was within the jurisdiction of the court to try because 11 F.S.M.C. 1202 was not unconstitutional as a matter of law.  I did not rule on whether it might be unconstitutional as applied.  My ruling should not be construed as holding that the states may not also legislate on the subject.
 
II.  Motion in Limine
     On November 28, 1996, the FSM filed a Motion in Limine for a Determination That the Defendant Has Waived His Right Not to Be Compelled to Give Evidence That May Be Used Against Him.  The FSM contended that Fal had waived his right to self-incrimination when he submitted an affidavit about the circumstances of his arrest attached to his memorandum on the issue of the court's jurisdiction over Count I.  A ruling in the FSM's favor would have allowed the FSM to call Fal as a witness in its case against him.

     A defendant's constitutional right against self-incrimination is an important right, and, although an implied waiver of the right might be valid, there is a presumption against such waivers.  Moses v. FSM, 5 FSM Intrm. 156, 161 (App. 1991).  Furthermore, FSM Evidence Rule 104(d) states that "[t]he accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case."  The issue of the court's jurisdiction to try Count I was a preliminary matter within the meaning of the rule.  I therefore denied the motion in open court and proceeded to trial.

III.  Acquittal on Count I
     At the close of the government's case on November 29, 1996, Fal moved for a judgment of acquittal of Count I, unlawful possession of ammunition in violation of 11 F.S.M.C. 1202, on the ground that there was no evidence of possession by Fal.  I granted the motion, gave reasons in open court, and now set them forth in this memorandum.

     FSM custom officers found three boxes of .22 caliber bullets in a cooler during a routine

[8 FSM Intrm. 155]

inspection of the air freight arriving on Yap on July 31, 1996.  Fal was the cooler's consignee.  He came to the freight office to claim his shipment while the custom inspectors were present.  They informed him that there was a "hold" on the shipment, and that he could not take it.

     Shortly thereafter the Yap State Police arrived.  The customs officers showed them the bullets that had been found in the cooler, and placed the bullets in the hands of the police.  Fal as thereupon arrested.

     On September 16, 1996 an information was filed against Fal charging him with unlawful possession of ammunition in violation of 11 F.S.M.C. 1202.  This statute reads, "No person shall manufacture, purchase, sell, possess, or carry any firearm, dangerous device, or ammunition other than as hereinafter provided."  Of the verbs in the statute, only "carry" is defined in the Weapons Control Act. "Possess" is thus given its usual meaning of taking into one's possession.  And possession means to have in one's control.  Webster's Ninth New Collegiate Dictionary 918 (1985); accord Black's Law Dictionary 1046-47 (5th ed. 1979).
 
     The facts presented in the government's case in chief reveal that Fal never had possession of the bullets and was affirmatively prevented from taking possession of the cooler which contained the bullets.

     The government contended that possession was established by Fal's seeking delivery of the cooler which was consigned to him.  Fal's action did not amount to present control.  The government's argument was therefore rejected.

     Fal did not control the cooler, and so did not control (possess) the bullets.  By granting this motion for acquittal I did not need to reach the question of whether Fal knew that bullets were in the cooler.
                                                                                                                                                                                                                                                                                                           
k+|f֤3e4@A Z;n;rqK-♋"/ե8- h[tοٝ;f67Ͼ"3!3> oNեΌM6KA3Z܌[Nao%mHN;ӏUmoR0o.EhD 5v{@'08 /z[<p!ٮœK'tDyeH洲8W%?lG&`gܗs곤ؿ7zs @+HюFޙ1y%94kilsz7(qt}?QV\t9 *cMqv8"^A /~Pt`uae_P wz'p?Ȕ'O՞hj /{Ȍ"c[W+ GByR"3Y |7UmЮxT?USR &^5Q&4'Km=F0KA- qRVT, &\t#tJWXIɆJEGtrwrQ8!qJC? 4pQm=y}v!ѥ_ Ύ(Tb*"KU (voTthȏX@#^40KfцzD1ݫܞ5PQ~@[QB{X֪܀RˋFwIG Tf,%/!K{* z0 KHR_ S>Bg޻TаOT7 |Dho[J@ :{J׮8U rW{L {~ỹj-%Cd6/ kI%g^|>),=3SZr:S0bTH]b +[@ A "4B SZ-xrAYaįA\"cs Q %rl$YlQ"uVó^5} _$!! ;x7\ }qcc:f#RZ77Fg4Fىof. [f똠 ޼!C&XT=!· O4H۰\+xKnSܦx`*pI2*]qyU1jM#{]IK\BL}*? j[V 5lO4sPViUJRfw`zK)Y헥yJdp!A҂"ʩe\`V-|21e1 b)mΜfI=jvbsgzZNAѫxKm# M!Tr*cfq5t\*wH# ZYy?m" F'enYC5:o,j|3b+X rFyQ*&߫33-9>Fdu4ܗWȦf3&x]>0,^Dw^4nc̆bo{V( Zl;)@|W%pl>tO-W{%]|/AY^~ew>Np9y'2uvÙg\#v =4L6&:QqI#"mMiM%+{6gX+Nj/?NEVj^JZ-YM㇘ބK,u^w_?Bl"Q`aq{$\q~Hg`?!%0"$v |pYJ(R8d\r$cTEh+1 L諽?-o;$pXLm߼pӭgEʹ>=D%GIf3>F,?o0mɽJ1|GN>H!|Ĥ;2*'pTi q}? {" o~d ^Aq?bQF62?\3ޏi # gev13<& YtYoEf%37dq f.4ףlc&']\3Q4ǖDE>Ae%v