9 FSM Intrm.442-450

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

APPELLATE DIVISION

Cite as Sander v. FSM,

9 FSM Intrm. 442 (App. 2000)

[9 FSM Intrm. 442]

FEDERATED STATES OF MICRONESIA,

APPEAL CASE NO. P5-1999

Argued: April 11, 2000

Decided: July 6, 2000

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Aliksa B. Aliksa, Temporary Justice, FSM Supreme Court*

*Associate Justice, Kosrae State Court, Lelu, Kosrae

For the Appellant: Thomas G. Soucia, Esq.

FSM Public Defender's Office

Palikir, Pohnpei FM 96941

For the Appellee: Amy J. Fitzpatrick, Esq.

FSM Department of Justice

Palikir, Pohnpei FM 96941

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Criminal Law and Procedure ) Strict Liability Crime; Weapons

The absence of an intent element in 11 F.S.M.C. 1223(6) (which prohibits any person from boarding or attempting to board a commercial airliner while carrying a firearm either on his person or in his luggage) evinces a legislative intent to dispense with the mens rea element and make the proscribed conduct a strict liability crime. The court can properly infer from Congress's silence in subsection (6) and lack of silence in subsections (1) and (2) that Congress intended that subsection (6) constitute a strict liability offense, whereas subsections (1) and (2) do not. Sander v. FSM, 9 FSM Intrm. 442, 447 (App. 2000).

Criminal Law and Procedure ) Strict Liability Crime; Weapons

Although 11 F.S.M.C. 1223(6) does not dispense with the mental element that the defendant must know or be aware that he had the shotgun in his possession, the statute does dispense with the specific intent to board the aircraft knowing that it was illegal to do so with a shotgun. Sander v. FSM, 9 FSM Intrm. 442, 447 (App. 2000).

Criminal Law and Procedure ) Strict Liability Crime

A heavy maximum penalty of a $2000 fine and five years imprisonment is not dispositive in determining whether a crime is a strict liability offense. Sander v. FSM, 9 FSM Intrm. 442, 448 (App. 2000).

Criminal Law and Procedure ) Strict Liability Crime; Weapons

Because violation of 11 F.S.M.C. 1223(6) is not a case of an attempt to commit a crime but a case where "attempt to board" is an element of the offense, 11 F.S.M.C. 201 (the attempt statute) does not apply to the crime of attempting to board a commercial aircraft with a firearm. Sander v. FSM, 9 FSM Intrm. 442, 448 (App. 2000).

Appeal and Certiorari ) Standard of Review; Criminal Law and Procedure

The standard to be applied in reviewing a criminal conviction against an insufficiency of the evidence challenge is whether the appellate court can conclude that the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. The appellate court must review the evidence in the light most favorable to the trial court's factual determination. A trial court's factual findings challenged for insufficiency are reviewed on a clearly erroneous standard, while the appellate court may disagree with and overrule the trial court's conclusions of law. Sander v. FSM, 9 FSM Intrm. 442, 449 (App. 2000).

Appeal and Certiorari ) Standard of Review; Weapons

When sufficient evidence was before the trial court such that it could reasonably have been persuaded beyond a reasonable doubt that the defendant did not attempt to turn in the shotgun to an appropriate official because the trial court could reasonably have concluded that the defendant's actions at the security screening area were consistent with the way any passenger might have dealt with any piece of carry on luggage, and that it did not constitute turning in the shotgun to an "appropriate official" under 11 F.S.M.C. 1223(6), its findings were not clearly erroneous and will not be disturbed. Sander v. FSM, 9 FSM Intrm. 442, 449 (App. 2000).

Constitutional Law ) Due Process; Criminal Law and Procedure ) Strict Liability Crime

Because conduct alone without regard to the doer's intent is often sufficient to convict someone of a crime, because there is wide latitude to declare an offense and to exclude elements of knowledge and diligence from its definition, and because the defendant knew, by his own admission, that he was not permitted to take a weapon on board the plane, the strict criminal liability imposed by 11 F.S.M.C.

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1223(6) for boarding or attempting to board a commercial aircraft while carrying a firearm or dangerous device does not violate due process. Sander v. FSM, 9 FSM Intrm. 442, 449-50 (App. 2000).

MARTIN G. YINUG, Associate Justice:

This appeal arises from Julius Sander's conviction on a charge of attempting to board a commercial aircraft while carrying a firearm either on his person or in his luggage in violation of 11 F.S.M.C. 1223(6).

I. Factual Background

On August 19, 1998, appellant Julius Sander ("Sander") was ticketed for a flight from Pohnpei to Chuuk on Continental Micronesia. He checked some luggage in at the ticket counter, got his boarding pass, and proceeded to the security screening area, where he placed on the security table a long object wrapped in brown paper. Sander passed through the metal detector. Airline personnel at the security checkpoint informed Sander that the object could not be taken on the plane because it was too long to fit in the overhead rack or underneath the seat and asked what was in the package. Sander falsely identified it as a speargun. Security personnel took the object and tagged it as a speargun but became suspicious because it was too heavy to be a speargun. Sander was escorted back from the "sterile" secured waiting area and again asked what it was. He repeated that it was a speargun, then admitted that it was a firearm. Airport staff opened the package, and discovered that it contained a double-barrelled .410 shotgun.

Sander was arrested and the next day, August 20, 1998, charged by information under 11 F.S.M.C. 1223(6), which prohibits any person from boarding or attempting to board a commercial airliner while carrying a firearm either on his person or in his luggage. Upon posting a cash bail, Sander was released. On December 2, 1998, Sander's sister carried a note from Sander to the Pohnpei State Police authorizing her on Sander's behalf to pick up the shotgun. Because they had no pending prosecution against Sander, the Pohnpei State Police released the shotgun. Its whereabouts remain unknown.

Sander was convicted after trial on January 25, 1999, and a written judgment of conviction was entered on May 7, 1999. The sentencing hearing was held on May 26, 1999. The Sentencing Order, entered May 31, 1999, ordered the shotgun confiscated and sentenced Sander to one year in jail, which would be vacated and the sentence commuted to a $100 fine and 100 hours of community service and ten days in jail, or time served whichever is greater, if the shotgun was turned in after the jail sentence started on July 1, 1999, or the sentence commuted to a $100 fine and 100 hours community service if the shotgun was turned in before the jail sentence started.

On May 31, 1999, Sander filed a Notice of Appeal, Designation of Record, Motion for Stay of Execution of Sentence Pending Appeal, and Motion to Proceed on Appeal in Forma Pauperis. Both motions were granted on June 17, 1999.

II. Issues on Appeal

Sander frames three issues on appeal:

[9 FSM Intrm. 445]

1) Whether the trial court erred by ruling that 11 F.S.M.C. 1223(6), which prohibits any person from boarding or attempting to board a commercial airliner while carrying a firearm either on his person or in his luggage, is a strict liability crime.

2) Whether the trial court erred in ruling that he had not complied with 11 F.S.M.C. 1223(6) when he turned the shotgun over to Ms. Roshy Jim.

3) Whether the trial court's use of a strict lability standard violated his due process rights.

A. Whether 11 F.S.M.C. 1223(6) Is a Strict Liability Crime

Asserting that the trial court erred in ruling that the statute that he was convicted of violating was a strict liability offense, Sander contends that in order for 11 F.S.M.C. 1223(6) to impose strict liability there must be some clear guidance from the statute or its legislative history indicating that Congress intended it to be a strict liability crime. He also points out that violation of 11 F.S.M.C. 1223(6) is a felony for which the maximum penalty is a $2,000 fine and five years' imprisonment with the firearm forfeited without compensation, and emphasizes that this indicates that it was not intended to be a strict liability offense because most such offenses are minor and have low penalties. Sander also questions the contention of appellee, the Federated States of Micronesia ("FSM"), that 11 F.S.M.C. 1223(6) is a public welfare offense, because the national government's authority to legislate on firearms1 comes from the national government's power to regulate interstate and foreign commerce. The FSM's position is that in light of the strict regulation of firearms in the FSM and the great potential for harm in boarding an aircraft with a firearm this must be a public welfare offense with liability regardless of the passenger's intent when attempting to board the aircraft. The FSM contends that the only intent that it must prove is Sander's general intent to board the aircraft with the shotgun, not a specific intent to board, knowing it was illegal.

Sander testified that he knew he was supposed to turn in his gun before he could board the airplane, and that other Chuukese had told him that the proper way to do this was to turn the gun in at the security screening. He claims he had his wallet out to show the screening personnel his firearms identification card, proving that he had a legal right to own the shotgun. According to Sander, the reason he told airport security personnel that it was a speargun, and not a shotgun, was that his senator was behind his wife and children in the security line and that he did not want them to know he had bought a gun because, he says, in Chuuk, even though he wanted the gun for hunting and game, the mentality is that you buy a gun to kill people. Consequently when asked, he claimed it was a speargun.

Sander further urges that because there is a specific statute2 that deals with an attempt to

[9 FSM Intrm. 446]

commit a crime it should apply and that under that statute Sander should be found not guilty because he did not take a substantial step in a course of conduct planned to culminate in the commission of carrying a firearm aboard an aircraft, and since there was not evidence beyond a reasonable doubt that was strongly corroborative of a criminal intent to board the aircraft with a firearm. The FSM notes that Sander was not charged with the attempt to commit a crime under 11 F.S.M.C. 201, but was charged with violating 11 F.S.M.C. 1223(6) which provides that no one shall "board or attempt to board a commercial aircraft while carrying any firearm . . . either on his person or in his luggage."

While 11 F.S.M.C. 1223(6) is silent about the mental element that must be proven to sustain a conviction under that subsection, two other subsections do contain an explicit mental element, and provide guidance. Subsections (1) and (2) contain the mental element "knowingly." The remaining subsections in 1223, subsections (3) through (6), do not mention a mental element. This led the trial court to conclude "that Congress intended to dispense with the element of intent thereby providing liability for any person who boards or attempt to board a commercial aircraft with a firearm, without regard to that person's malicious or wrongful mental attitude." Judgment of Conviction, slip op. at 18 (May 7, 1999). The trial court recognized "that the potential for harm from such activity is so great that the interests of the public override the interests of the individual." Id.

Sander claims there must be some clear direction from the statute or its legislative history indicating that Congress intended it to be a strict liability crime. The legislative history cited by Sander merely says, "A third major change was to bring the act into conformity with international and United States regulations concerning shipment and carriage of weapons aboard commercial aircraft." SCREP No. 11, Senate J. of 4th Cong., 4th Spec. Sess. 127 (1971). The United States statute, 49 U.S.C. Appx. § 1471(l [i.e.,lower case "L"])(1) (now codified at 49 U.S.C. § 46505(b)), is strict liability in the sense that the only mental element that may be required is that the defendant knows or should have known he has a dangerous weapon in his possession or in his luggage. United States v. Garrett,3 984

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F.2d 1402, 1413-15 (5th Cir. 1993) (defendant claimed she forgot gun was in her purse; court concluded that the mental element was satisfied if the defendant either knew or should have known the concealed weapon was on or about her person or property while aboard or attempting to board an aircraft ) "should have known" standard rather than actual knowledge standard applies).

The FSM provides context for the notion of strict liability in a criminal case by quoting a portion of the United States Supreme Court's decision in Staples v. United States, 511 U.S. 600, 607 n.3, 114 S. Ct. 1793, 1798 n.3, 128 L. Ed. 2d 608, 617 n.3 (1994), which is as follows:

By interpreting such public welfare offenses to require at least that the defendant know that he is dealing with some dangerous or deleterious substance, we have avoided construing statutes to impose a rigorous form of strict liability. See, e.g., United States v. International Minerals & Chemical Corp., 402 U.S. 558, 563-564, 91 S.Ct. 1697, 1700-1701, 29 L.Ed.2d 178 (1971) (suggesting that if a person shipping acid mistakenly thought he was shipping distilled water, he would not violate a statute criminalizing undocumented shipping of acids). True strict liability might suggest that the defendant need not know even that he was dealing with a dangerous item. Nevertheless, we have referred to public welfare offenses as "dispensing with" or "eliminating" a mens rea requirement or "mental element," see e.g., Morissette, 342 U.S. at 250, 263, 72 S.Ct. at 249-250; United States v. Dotterweich [cit. omitted], and have described them as strict liability crimes. United States v. United States Gypsum Co. [cit. omitted]. While use of the term "strict liability" is really a misnomer, we have interpreted statutes defining public welfare offenses to eliminate the requirement of mens rea; that is, the requirement of a "guilty mind" with respect to an element of a crime. Under such statutes we have not required that the defendant know the facts that make his conduct fit the definition of the offense. Generally speaking, such knowledge is necessary to establish mens rea, as is reflected in the maxim ignorantia facti excusat [ignorance of fact excuses].

We agree with the trial court that the absence of an intent element in 11 F.S.M.C. 1223(6) evinces a legislative intent to dispense with the mens rea element and make the proscribed conduct a strict liability crime. The court can properly infer from Congress's silence in subsection (6) and lack of silence in subsections (1) and (2) that Congress intended that subsection (6) constitute a strict liability offense, whereas subsections (1) and (2) do not. Although subsection (6) does not dispense with the mental element that the defendant must know or be aware4 that he had the shotgun in his possession, see Garrett, 984 F.2d at 1413-15, the statute does dispense with the specific intent to board the aircraft knowing that it was illegal to do so. There was evidence ) Sander's own testimony ) that he knew that the package was a shotgun, and the trial court found as a fact that he knew. Judgment of Conviction, slip op. at 11, 19 (May 7, 1999). We therefore affirm the trial court's finding that 11 F.S.M.C. 1223(6) is a strict liability offense in that it dispenses with specific intent, and that the FSM

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sustained its burden of showing that Sander knew that he was in possession of the shotgun when he attempted to board the aircraft.

Sander's contention that 11 F.S.M.C. 1223(6) is not a strict liability offense because of its heavy maximum penalty of a $2000 fine and five years imprisonment is not dispositive. The maximum penalty under the analogous United States statute, 49 U.S.C. § 46505(b) (formerly 49 U.S.C. Appx. § 1472(l)(1)), is now a fine under Title 18 and ten year's imprisonment, although prior to 1996 it was a $10,000 fine and one year's imprisonment. Additionally, we agree with the FSM that this is not a case of an attempt to commit a crime but a case where "attempt to board" is an element of the offense. In this respect, 11 F.S.M.C. 201 does not apply. Sander was not convicted of attempting the crime of boarding a commercial aircraft with a firearm, but was convicted of the crime of attempting to board a commercial aircraft with a firearm.

Accordingly, we hold that on the facts before the court, in order for a conviction to be sustained under 11 F.S.M.C. 1223(6), there must be a showing that defendant knew or was aware that he possessed any of the proscribed devices when "board[ing] or attempt[ing] to board any commercial aircraft."

B. Whether Sander Complied with 11 F.S.M.C. 1223(6)

Sander argues that he complied with the statute when he handed the package containing the shotgun over to Ms. Roshy Jim, a Continental employee, at the security screening area. The statute requires that a firearm "be turned in prior to departure to an appropriate official or to the pilot of the airline or aircraft concerned." 11 F.S.M.C. 1223(6). Sander asserts that Ms. Jim was such an appropriate official. Sander further urges that since he declared the item to be a speargun, which is also a restricted item, it was impossible that he would be allowed to board with it, so therefore he did turn a restricted item in to an appropriate official. He also argues that he was under no duty to be truthful about the package's contents, but that his only duty was to turn it in to an appropriate official, such as Ms. Jim.

The FSM characterizes these events differently, pointing out that Sander did not declare and turn the shotgun over to airline personnel at the check-in counter, but that the shotgun was instead confiscated at security clearance, where Sander lied about what the package contained.

Ms. Jim testified on cross-examination that firearms and dangerous objects must be declared to an airline employee at the ticket check-in counter before a passenger enters the security clearance point. Transcript at 18. To the question, "Are you an appropriate official?" she answered, "Yes." Id. She also responded, "Yes." to the next question whether Sander turned in a dangerous device to her. Id. On redirect, she testified that Sander didn't turn in the gun to her, she confiscated it from him. Id. at 19. She also previously testified that her responsibilities included reservations, ticketing and security screening of passengers. Id. at 9. During argument on Sander's motion for a judgment of acquittal, the FSM argued that Ms. Jim specifically said that the appropriate officials to declare and turn in a firearm to are at the check-in counter and that Ms. Jim is an appropriate official when she is working there, id. at 68, and that there is no turning in at security clearance, only presentation for security inspection before boarding, id. at 66-67, 68. Another airline employee at the security screening area, Apellong Jim, testified on cross-examination that if a passenger came to the security screening area and declared a dangerous weapon before they asked him, they would direct the passenger to the ticket counter to turn it in, because it is not possible to turn in the item at the security screening area. Id. at 45.

The trial court did not agree with Sander's contention that he turned the gun in to an appropriate

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official, Judgment of Conviction, slip op. at 14-15 (May 7, 1999). The court found that "[t]he government has . . . shown beyond a reasonable doubt that the defendant did not declare or otherwise turn his firearm over to an airline employee before departure." Id. at 19. The standard to be applied in reviewing a criminal conviction against an insufficiency of the evidence challenge is whether the appellate court can conclude that the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. Palik v. Kosrae, 8 FSM Intrm. 509, 512 (App. 1998); Nelson v. Kosrae, 8 FSM Intrm. 397, 401 (App. 1998); Runmar v. FSM, 3 FSM Intrm. 308, 315 (App. 1988). The appellate court must review the evidence in the light most favorable to the trial court's factual determination. A trial court's factual findings challenged for insufficiency are reviewed on a clearly erroneous standard, Palik, 8 FSM Intrm. at 512, while the appellate court may disagree with and overrule the trial court's conclusions of law. Tammed v. FSM, 4 FSM Intrm. 266, 274 (App. 1990).

Sufficient evidence was before the trial court such that it could reasonably have been persuaded beyond a reasonably doubt that Sander did not attempt to turn in the shotgun to the appropriate official. Apellong Jim testified that a passenger who declared a weapon at the security screening area would be directed to the ticket counter for purposes of turning in the weapon. Sander initiated no discussion about the wrapped shotgun with the security counter personnel, and falsely identified it as a speargun when asked about it. The trial court could reasonably have concluded that Sander's actions at the security screening area were consistent with the way any passenger might have dealt with any piece of carry on luggage, and did not constitute turning in the shotgun to an "appropriate official" under 11 F.S.M.C. 1223(6). As such the trial court's finding was not clearly erroneous. This court will not disturb it.

C. Whether a Strict Liability Standard Violates Due Process

Sander's last contention is that a strict liability standard for the offense charged would be a denial of due process because it would invite abusive and discriminatory application of the statute. The FSM counters that Sander was not deprived of due process because he was aware, by his own admission, that he could not bring a firearm aboard an aircraft, and that if he was not aware he should have been when it became apparent he would be required to go through a security checkpoint before boarding. The FSM also points out that the one case Sander cites for this proposition, Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), involved a defendant's failure to comply with a municipal ordinance that felons residing in Los Angeles had five days to register with the police where the defendant had no way of knowing that the ordinance existed.

While practically any law can be discriminatorily and abusively applied if law enforcement personnel choose to do so, there is no evidence in this case that 11 F.S.M.C. 1223(6) has been subjected to this sort of enforcement. Sander's speculation or amorphous fear about the potential for abuse does not make the trial court's construction of the statute unconstitutional. In Lambert, the court noted that "conduct alone without regard to the intent of the doer is often sufficient" to convict someone of a crime, and stated that "[t]here is wide latitude to declare an offense and to exclude elements of knowledge and diligence from its definition." Lambert, 355 U.S. at 228, 78 S. Ct. at 242, 2 L. Ed. 2d at 231. The Lambert court emphasized that it was the defendant's "mere presence in the city" which the statute in that case rendered culpable, and this was "unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed." Lambert, 355 U.S. at 229, 228, 78 S. Ct. at 243, 2 L. Ed. 2d at 232, 231.

Section 1223(6) of 11 F.S.M.C. imposes criminal penalties for "board[ing] or attempt[ing] to board any commercial aircraft while carrying any firearm [or] dangerous device." Sander knew, by his own admission, that he was not permitted to take a weapon on board the plane. Hence, both the

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statute proscribing the conduct, and Sander's actions toward the end proscribed, were of a different order from that which ran afoul of constitutional limitations in Lambert. Accordingly, we hold that the strict liability imposed by 11 F.S.M.C. 1223(6) does not violate article IV, section 3, of the FSM Constitution, the due process clause.

For these reasons, we affirm the Judgment of Conviction entered by the trial court on May 7, 1999.

1. Although Sander does not say as much, his argument would run, presumably, that the FSM's authority to regulate commercial aircraft also stems from the national government's power to regulate interstate and foreign commerce.

2. (1) A person commits the offense of an attempt to commit a crime if, with intent to commit a National offense, he does an act which constitutes a substantial step in a course of conduct planned to culminate in the commission of that offense.

(2) It is an affirmative defense to a charge of attempt that the offense was not committed because the defendant desisted voluntarily and in good faith and abandoned his intention to commit the offense.

(3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.

3. This case contains a good discussion of all the previous cases concerning intent or the mental element needed for a conviction for boarding or attempting to board an aircraft with a concealed weapon in violation of then 49 U.S.C. Appx. § 1472(l)(1): United States v. Wallace, 800 F.2d 1509, 1513 (9th Cir. 1986) (passenger's good faith belief that it wasn't illegal to carry stun gun aboard aircraft not ground for reversal of conviction of carrying concealed deadly weapon aboard aircraft); United States v. Flum, 518 F.2d 39, 44-45 (8th Cir. 1975) cert. denied, 423 U.S. 1018, 96 S. Ct. 454, 46 L. Ed. 2d 390 (1975) (intent to conceal not an essential element of attempting to board aircraft with concealed weapon, but fact of concealment is); United States v. Dishman, 486 F.2d 727, 730, 732 (9th Cir. 1973) ("Any necessary element of present or later developed intent to make use of the `deadly and dangerous' weapon in the commission of a crime aboard the aircraft is conspicuous by its utter absence."; "[s]ubsection (l) is a non-intent statute"); United States v. Pou, 484 F. Supp. 972, 974 (S.D. Fla. 1979) (knowledge of weapon's presence is necessary element of offense of attempting to board aircraft with concealed weapon); United State v. Brown, 376 F. Supp. 451, 457 (W.D. Mo. 1974) (government must prove defendant knew he possessed teargas handgun in carry-on luggage at time he attempted to board aircraft; "All that is required . . . is that the defendant knowingly committed an act which a court may determine was a violation of the statute."; statute doesn't impose liability without knowledge) (emphasis in the original); but see United State v. Margraf, 483 F.2d 708, 712 (3d Cir. 1973) (statute covers unknowing act), vacated and remanded on other grounds, 414 U.S. 1106, 94 S. Ct. 833, 38 L. Ed. 2d 7834 (1973); United States v. Harris, 381 F. Supp. 1095, 1101 (E.D. Pa. 1974) ("knowledge plainly is not a requisite for a conviction" for carrying handgun in carry-on bag (citing Margraf but dicta because magistrate found defendant did have knowledge)). See also William G. Phelps, Annotation, Air Piracy and Related Offenses, 109 A.L.R. Fed. 488, 526-35 (1992).

4. In Garrett, the defendant claimed that she had forgotten that the she was carrying a loaded Browning .25 caliber semi-automatic pistol in her purse when she attempted to go through airport security. The appellate court, relying on a knew or should have known standard, affirmed the conviction. 984 F.2d at 1413.

Since Sander knew he was carrying the shotgun, we do not decide whether a should have known standard is sufficient to sustain a conviction under 11 F.S.M.C. 1223(6).