8 FSM Intrm. 166-182

Proof of guilt may be by either direct evidence, circumstantial evidence or both. Direct evidence is evidence, which if believed, proves the existence of facts in issue without inference or presumption. Circumstantial evidence is evidence of facts and circumstances from which the existence or nonexistence of facts in issue may be inferred. FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 166, 171 (Pon. 1997).

It is unlawful for any person to violate any provision of Title 24, or of any regulation or permit issued under it, or to violate any provision of, or regulation under, an applicable domestic-based or foreign fishing agreement entered into pursuant to 24 F.S.M.C. 401, 404-406. A person is any individual, corporation, partnership, association, or other entity, the FSM or any of the state governments, or any political subdivision thereof, and any foreign government, subdivision of such government, or entity thereof. FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 166, 173-74 & n.2 (Pon. 1997).

While 24 F.S.M.C. 116(1) places a duty to maintain the daily catch log upon the vessel master, the statute does not make the vessel master's liability for failure to maintain that log exclusive. Therefore when a party to a foreign fishing agreement that says that party ensures that its authorized vessels will properly maintain such a log that party may be held liable. FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 166, 174 (Pon. 1997).

The contract law pre-existing duty rule is that a promise to perform an act which is already required supplies no consideration for the return promise or performance. On that basis, a contract may fail for lack of consideration. But a contract provision cannot be examined in isolation to determine the sufficiency of consideration as a whole. Therefore the rule does not apply where there is sufficient other consideration flowing between the parties to support an agreement and all of its provisions. FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 166, 175 (Pon. 1997).

Because a corporate principal may be held criminally liable for its agent's conduct when the agent acts within the scope of its authority for the principal's benefit, a foreign fishing agreement party may be held criminally liable for the conduct of its authorized vessel. FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 166, 176 (Pon. 1997).

In fashioning an appropriate sentence for fishing violations, a court considers the nature, circumstances, extent, and gravity of the prohibited acts committed, the defendant's degree of culpability and history of prior offenses, whether other civil penalties or criminal fines have already been imposed for the specific conduct before the court, and such other matters as justice might require, keeping in mind the statutory purpose behind the provisions violated. FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 166, 181-82 (Pon. 1997).

In May 1995, defendant was found guilty of four violations of Title 24 of the FSM Code. Following defendant's successful appeal of its conviction, on the basis of ineffective assistance of counsel, this matter came before the Court for retrial in January 1997. Following trial, on March 10, 1997, the Court announced that it again found defendant guilty of the offenses charged. This Memorandum of Decision sets forth the basis for the Court's findings.

management and regulation of marine resources within the FSM's Exclusive Economic Zone ("EEZ"). The only parties to the April 1994 Agreement were Defendant Ting Hong and MMA. Under the Agreement, Ting Hong agreed to abide by all applicable laws, rules and regulations of the FSM and its States, including Titles 18 and 24 of the FSM Code. Ting Hong also agreed to abide by the Harmonized Minimum Terms and Conditions for Foreign Fishing Vessel Access (hereinafter "HMTCs") and agreed to "ensure that its Authorized Vessels comply with the terms of [the] Agreement and all applicable laws and regulations." In exchange for these commitments, Ting Hong was allowed to bring up to 270 of its long line fishing vessels into the FSM EEZ to conduct fishing operations.

On August 9, 1994, Ting Hong applied for a Foreign Fishing Permit (the "Permit") for the vessel Horng Yih Fwu #130. Pl.'s Ex. P. MMA issued the vessel a one-month permit, which was valid until September 8, 1994. Pl.'s Ex. L. Among other things, that Permit set the Horng Yih Fwu #130's authorized crew size at eight, required that the vessel's fishing operations "be conducted in accordance with Title 18 & 24 of the FSM Code," and required that the Approved Catch Record be maintained and produced to an authorized inspector of the Federated States of Micronesia when required. Id.

On August 24, 1994, the Horng Yih Fwu #130 was found at a location off the state of Chuuk, approximately 100 miles inside the FSM EEZ. The vessel was boarded, inspected and subsequently seized by marine surveillance officers of the FSM National Police for suspected violations of Title 24. It is undisputed that when the vessel was boarded, FSM Marine Surveillance Officer Wichap asked the vessel master for the vessel's papers, including the English language catch report required under both the Agreement and the Permit. Although the vessel master produced a number of documents, he did not produce a catch report in English for the voyage the vessel had been on when it was seized. From the papers the master did provide, it could be ascertained that the vessel had been operating in FSM waters since August 14, 1994.

During inspection of the vessel, officers of the FSM National Police found that the storage area of the Horng Yih Fwu #130 contained freshly caught fish. Defendant did not dispute that there were fish on board, although there was some dispute as to the exact amount of fish involved. In addition, marine surveillance officers testified at trial that during their inspection of the vessel, they observed that the vessel carried no marine VHF radio capable of monitoring international distress frequencies. Officer Wichap testified that when he boarded the vessel, there were eleven crew members present rather than the eight authorized by the vessel's Permit. Defendant did not dispute this fact. After the vessel was seized, it was taken to Pohnpei, where the fish on board were off-loaded and sold.

Defendant subsequently appealed its convictions, alleging, among other things, that it had received ineffective assistance of counsel due to its counsel's joint representation of other individual defendants who were later severed from the trial. On April 15, 1996 the Appellate Division reversed defendant's convictions, and remanded the case for retrial. On retrial, the case proceeded based on the original criminal information.

On June 6, 1996, defendant moved to dismiss based on lack of jurisdiction, arguing that defendant should be properly tried in Chuuk State. That motion was heard on July 23, 1996 and denied on August 6, 1996. On September 9, 1996, defendant then moved to disqualify Chief Justice Amaraich from presiding over the retrial of the case, based in part on his having presided over the earlier trial, and in part on his having formerly held the position of Chairman of MMA. The Court denied

that motion on November 11, 1996. On November 19, 1996, defendant filed a Petition for Writ of Prohibition and in the Alternative Writ of Mandate in the Appellate Division, again seeking the Chief Justice's disqualification based on his involvement and rulings in the initial trial and his former association with MMA. The Appellate Division granted the writ on November 1, 1996, until such time as the Chief Justice had placed his reasons for denying defendant's motion to disqualify on the record. The Chief Justice did so on November 25, 1996. Defendant then renewed its petition for writ of prohibition on November 26, 1996. The Appellate Division denied that petition on January 3, 1997.

The case proceeded to trial on January 8-10 and January 13, 1997. After the parties had had an opportunity to submit post-trial briefs, on March 10, 1997, the Court announced that it again found defendant guilty of the offenses charged. A sentencing hearing was set for March 25, 1997. After reviewing the evidence and arguments presented by the parties, both in sentencing memoranda and at the March 25, 1997 hearing, the Court sentenced defendant to a fine of $300,000 for each violation, for a total fine of $1.2 million.

Count V alleges that on or about August 24, 1994, defendant failed to maintain and have on board the vessel a radio capable of monitoring radio frequency 2.182 KHz and 156.6 MHz (Channel 16, VHF) for the purpose of facilitating communication between fishing vessels and authorities of the FSM wishing to establish their credentials, in violation of the Agreement and 24 F.S.M.C. 501(1)(a) and (c).

During retrial, the government argued that defendant's criminal liability for the acts of the Horng Yih Fwu #130 arises from three sources: (1) the specific terms of defendant's Foreign Fishing Agreement with MMA, in which defendant agreed to "ensure that its Authorized Vessels comply with the terms of this Agreement and with all applicable laws and regulations"; (2) the language of 24 F.S.M.C. 404(3)(c), which sets forth minimum terms and conditions which must be contained in all foreign fishing agreements; and (3) the principal-agent relationship in existence between Ting Hong and the Horng Yih Fwu #130 at the time the violations occurred.

24 F.S.M.C. 116(1) places an affirmative duty on the vessel master to maintain the catch log in English, rather than on Ting Hong, and paragraph 9(d) of the HMTCs places the duty of monitoring VHF Channel 16 on the "vessel operator," rather than on Ting Hong. Defendant argues that the terms of the Agreement are therefore confusing and vague, and prosecution based on that Agreement violates due process. Second, Ting Hong contended that its prosecution on Count VI is improper because the crew size violation charged is legally de minimis. Third, Ting Hong asserted that any conviction on Count II is barred by the FSM Constitution's prohibition against double jeopardy, because Count II is a lesser included offense of Counts IV, V and VI.

Defendant also raised a series of defenses to its criminal liability based on the terms of the Agreement, including the following: imposition of criminal liability by contract is unenforceable; paragraph 23 of the Agreement is unenforceable because it requires defendant to do something it already has a legal duty to do; and cancellation of the vessel's fishing permit is the exclusive remedy for any violation of the Agreement or statute. Finally, and more broadly, defendant asserted that general principles of agency liability do not apply in criminal cases, and the government failed to prove certain elements of the crimes charged.

The government has the burden of proof in criminal cases, and must prove each element of the crimes charged beyond a reasonable doubt. Ludwig v. FSM, 2 FSM Intrm. 27, 35 (App. 1985); FSM v. Oliver, 3 FSM Intrm. 469, 479 (Pon. 1988). Proof of guilt may be by either direct evidence, circumstantial evidence or both. Direct evidence is evidence, which if believed, proves the existence of facts in issue without inference or presumption. Black's Law Dictionary 413 (5th ed. 1979). Circumstantial evidence is evidence of facts and circumstances from which the existence or nonexistence of facts in issue may be inferred. Id. at 221.

After reviewing the testimony and evidence presented at trial, together with the arguments of the parties, the Court found that the government had proven each element of Counts II, IV, V, and VI beyond a reasonable doubt. The Court further found that defendant had presented no compelling factual or legal defense to its criminal liability for these charges.

Marine Surveillance Officer Wichap testified that when he boarded the vessel on August 24, 1994, he asked the vessel master for the vessel's papers. In response, the vessel master provided him with an expired fishing Permit and a packet of papers, most of which were in what appeared to be Chinese. None of the papers provided could be described as a catch record or log, required to be maintained under the terms of the Agreement, the Permit and the HMTCs. Through the testimony of Eugene Pangelinan, the government then introduced into evidence the information required to be recorded on a properly maintained catch log or record. None of this information had been recorded, in any form, for the period the vessel was operating within the FSM EEZ. Based upon this evidence, the Court found that the government had proved beyond a reasonable doubt that no catch log in English was maintained on board the vessel on or about August 24, 1994. The Court then found Defendant Ting Hong criminally liable for this violation under Title 24, based on the language of the Agreement between the parties, and on the relationship of the defendant to the Horng Yih Fwu #130.

(c) abide by the requirement that no foreign fishing will be permitted in the [EEZ] without a valid and applicable permit, except as provided by foreign fishing agreements concluded pursuant to this chapter, and that all conditions and restrictions of the permit, or any applicable foreign fishing agreement, are complied with.

2. The Company agrees to abide by all applicable laws, rules and regulations of the FSM and its States, including but not limited to, Titles 18 and 24 of the Code of the Federated States of Micronesia. The Company agrees to comply with the Harmonized Minimum Terms and Conditions for Foreign Fishing Vessel Access as set forth in Attachment 1, attached hereto and incorporated herein.

9. Authorized Vessels shall continuously monitor the international distress radio frequency 2.182 KHz and 156.6 MHz (Channel 16, VHF) for the purposes of facilitating communication between such vessels and air and seaborne authorities of the Federated States of Micronesia wishing to establish the credentials of the vessel while in the EEZ.

10. The Company shall complete and transmit to the Authority voyage catch reports in the form set forth in Appendix B in the English language . . . . The Company and each Authorized Vessel Master shall ensure that all the records are accurate for the entire given trip. The catch report shall be dispatched to the Authority within ten (10) days of the

completion of a voyage. Any Authorized Vessel which fails to submit its catch report in compliance with this paragraph shall pay a penalty fine of USD 250 to the Authority for each such failure. The Company shall ensure that the requirements of this paragraph are met. The Authority reserves the right to cancel issued permit(s) for non-compliance.

23. The Company shall ensure that its Authorized Vessels comply with the provisions of this Agreement and all applicable laws and regulations. If an Authorized Vessel engages in activities in contravention of this Agreement, Titles 18 or 24 of the Code of the Federated States of Micronesia or any other applicable law, rule or regulation of the Federated States of Micronesia or any of its States, the Authority may cancel or withdraw the permit . . . .

Pl.'s Ex. F (emphasis added). The Harmonized Minimum Terms and Conditions for Foreign Fishing Vessel Access, referred to in paragraph 2 of the Agreement, are attached to the Agreement and incorporated by reference. Paragraph 4(a) of the HMTCs, pertaining to the maintenance and submission of catch logs, states that "The operator shall: (a) duly complete in the English Language, daily reports on the prescribed forms of all catch in the zone of any licensing country and on the high seas and shall certify that such information is true, complete and accurate." Pl.'s Ex. F. Significantly, under paragraphs 2 and 23 of the Agreement, Ting Hong agreed to abide by all applicable laws, rules and regulations, including Titles 18 and 24 of the FSM Code and the HMTCs, and to ensure that its Authorized Vessels complied with the provisions of the Agreement and all applicable laws and regulations.

The government argued at trial that Ting Hong breached its Agreement with MMA by failing to ensure that the Horng Yih Fwu #130 complied with applicable law. Plaintiff contended that this contractual breach in turn resulted in Ting Hong's direct violation of 24 F.S.M.C. 501(1)(a) and 501(1)(c), and criminal liability under 24 F.S.M.C. 503. 1 Section 501 provides that

24 F.S.M.C. 501 (emphasis added). The government presented testimony at trial that MMA never enters into foreign fishing agreements with individual fishing vessels. It prefers to have a single party responsible for ensuring compliance with the laws and regulations of the FSM, in part because it is difficult for MMA to effectively monitor compliance by the many individual vessels which fish in the FSM EEZ, which extends over two million square miles of ocean.

(1) The master of each foreign fishing vessel issued a permit or which is permitted to fish pursuant to a treaty or any agreement or arrangement referred to in section 106 shall at all times while the vessel is in the fishery waters, cause to be maintained in the English language a fishing log in a form supplied or approved by the Authority, and shall enter the following information relating to the activities of the vessel on a daily basis. . . .

Defendant argued that the more specific language of 24 F.S.M.C. 116(1) should prevail over the language of the Agreement, and it is therefore the master's obligation to maintain the catch log, rather than Ting Hong's. Defendant cited Olter v. National Election Commissioner, 3 FSM Intrm. 123 (App. 1987) and Setik v. FSM, 5 FSM Intrm. 407 (App. 1992). Ting Hong also pointed to 24 F.S.M.C. 404(2), which states: "(2) The foreign party or the owner or operator of any fishing [sic] vessel fishing, as appropriate, pursuant to such agreement shall: (a) comply with the requirements of this title, all regulations issued pursuant to this title and all other applicable laws and regulations . . . ." 24 F.S.M.C. 404(2) (as amended). Ting Hong argued that it is "appropriate" for the master to be responsible for maintaining the log.

Finally, defendant contended that the Agreement itself is ambiguous due to the conflict between paragraph 11 of the Agreement, placing responsibility for maintenance of the log on the Authorized Vessel, paragraph 4(a) of the HMTCs, placing responsibility on the "operator," and Section 116(1) of Title 24, placing responsibility on the vessel master. Defendant urged that this inconsistency denies it proper notice of the actions required of it to avoid criminal liability, and therefore violates its constitutional right to due process. Under the rule of lenity, defendant argues, any ambiguity in a statute imposing criminal liability is to be construed in favor of the accused.

The Court did not find these arguments persuasive. While 24 F.S.M.C. 116(1) places a duty to maintain the log upon the vessel master, the statute does not make the vessel master's liability for failure to maintain that log exclusive. Section 116(1) is also not inconsistent with defendant's obligations under the Agreement. In paragraph 23 of its Agreement with MMA, defendant clearly and unambiguously agreed to "ensure that its Authorized Vessels comply with the terms of this Agreement and with all applicable laws and regulations." When it was apprehended, the Horng Yih Fwu #130 had no catch log maintained in English on board, in violation of 24 F.S.M.C. 116(1), paragraph 11 of the Agreement, and paragraph 4(a) of the HMTCs.

maintained. 3 That log was not properly maintained. Accordingly, Ting Hong breached its Agreement with MMA. As a consequence of that breach, Ting Hong violated 24 F.S.M.C. 501(c), which makes it unlawful for any person "to violate any provision of, or regulation under, an applicable domestic-based or foreign fishing agreement entered into pursuant to [Title 24]." Ting Hong is therefore subject to criminal penalties pursuant to 24 F.S.M.C. 503(1), which provides that "a person is guilty of an offense if he commits any act prohibited by section 501 of this chapter." The terms of paragraphs 11 and 23 of the Agreement, paragraphs 1(e) and 9(d) of the HMTCs, the conditions of the Permit,4 and Sections 501(1)(a) and (c) of Title 24 are not so vague "that men of common intelligence must necessarily guess at [their] meaning." Laion v. FSM, 1 FSM Intrm. 503, 506-07 (App. 1984). Accordingly, due process requirements do not preclude Ting Hong's conviction on this count.

Ting Hong also argued, in its defense, that paragraph 23 of the Agreement, which requires it to ensure compliance, is unenforceable. Ting Hong argued it was already required to comply with applicable law before it signed its Agreement with MMA, and therefore its undertaking to comply with the law fails for lack of consideration. The reason traditionally set forth for the pre-existing duty rule, as the rule of contract law defendant refers to is commonly known, is that a promise to perform an act which is already required supplies no consideration for the return promise or performance. On that basis, a contract may fail for lack of consideration. In this case, however, the Court finds that there is sufficient consideration flowing between the parties to support the Agreement and all of its provisions. Paragraph 23 of the Agreement cannot be examined in isolation to determine sufficiency of consideration for the contract as a whole. Defendant's other undertakings under the Agreement provide ample consideration to support the contract between Ting Hong and MMA.

The government next argued that Defendant Ting Hong is directly liable for the Horng Yih Fwu #130's failure to maintain a catch log in English under 24 F.S.M.C. 404(3)(c). That section states that "(3) Foreign Parties will: . . . (c) abide by the requirement that no foreign fishing will be permitted in the exclusive economic zone without a valid and applicable permit . . . and that all conditions and restrictions of the permit, or any applicable foreign fishing agreement, are complied with." Section 404

sets minimum terms and conditions to be contained in all foreign fishing agreements. Because the April 1994 Agreement between Ting Hong and MMA incorporates these terms and conditions, and because the Court has found defendant to be directly liable under 24 F.S.M.C. 501 and 503 for the violation charged based on breach of that Agreement, the Court need not address whether Section 404 independently places liability for violations of conditions of foreign fishing agreements directly on the foreign parties to those agreements.

From the facts adduced at trial, the Court found that the Horng Yih Fwu #130 acted as defendant's agent in conducting fishing operations in the FSM. The Foreign Fishing Agreement between MMA and Ting Hong established what the parties believed to be "reasonable terms and conditions" for Ting Hong's "utilization of fisheries resources" within the EEZ, and contemplated that Ting Hong would utilize these resources through the efforts of "the Company's longline fishing vessels," defined in the Agreement as Ting Hong's "authorized vessels." Ting Hong paid the requisite fees for issuance of the Horng Yih Fwu #130's Permit, and Ting Hong's corporate representative signed the application for that Permit. Paragraph 11 of the Agreement requires each authorized vessel to maintain a catch log in English on board the vessel, and in paragraph 23, Ting Hong agreed to ensure that its authorized vessels complied with this requirement, and all other applicable legal requirements. The Court finds that maintenance of the daily catch log in English was squarely within the scope of the vessel's duties as Ting Hong's agent under the Agreement. Therefore, the vessel's failure to maintain that log was also an act of Ting Hong's agent.

This Court has held in civil cases that a principal is bound by, and liable for, the acts of its agent, if those acts are done with actual or apparent authority from the principal and are within the scope of the agent's employment. See Bank of the FSM v. O'Sonis, 8 FSM Intrm. 67, 69 (Chk. 1997) (citing Black Micro Corp. v. Santos, 7 FSM Intrm. 311, 315-16 (Pon. 1995)). However, the question of corporate criminal liability, based on agency law principles, has yet to be addressed in this context in the FSM.

Where there are no directly controlling statutes, cases or other authorities within the Federated States of Micronesia, this Court may look to the law of other jurisdictions for use in formulating general principles for use within the FSM. Sohl v. FSM, 4 FSM Intrm. 186, 191 (Pon. 1990) (common law of the United States has been recognized as an appropriate source of guidance for courts within the FSM); Semens v. Continental Airlines, Inc., 2 FSM Intrm. 131, 139-42 (Pon. 1985) (common law decisions of the United States are an appropriate source of guidance for contract and tort issues unresolved by FSM statutes, decisions of constitutional courts, or custom and tradition). The law in the United States is well-settled that a corporate principal may be held criminally liable for the conduct of its agent, when the agent acts within the scope of its authority for the benefit of the principal. See United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 660 (2d Cir. 1989); United States v. Demauro, 581 F.2d 50, 54 (3d Cir. 1978). See generally Note, Developments in the Law ) Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions, 92 Harv. L. Rev. 1227, 1249-50 (1979). This Court finds no persuasive reason not to apply the same agency law principles to corporate defendants in the FSM. Neither party asserted that any Micronesian principle, custom or tradition applied to the issue of corporate liability, and the business activities underlying this prosecution are clearly of an international, rather than traditional, nature. See Semens, 2 FSM Intrm. at 140.

Accordingly, the Court found that the violation charged in Count IV arose from conduct within the scope of the agent's authority, and that defendant was criminally liable for the conduct of its authorized vessel. The Court finds defendant guilty beyond a reasonable doubt as charged in Count IV, of failing to maintain a catch log in English on board the vessel in violation of 24 F.S.M.C. 501(1)(a)

Paragraph 9(d) of the HMTCs, attached to the Agreement, and incorporated by reference, states that "(d) a vessel operator shall ensure the continuous monitoring of the international distress and calling frequency 2182 kHz (HF), and the international safety and calling frequency 156.8 MHz (channel 16, VHF-FM) to facilitate communication with the fisheries management, surveillance and enforcement authorities of a country. . . ." Pl.'s Ex. F.

Marine Surveillance Officer Wichap testified that upon boarding the vessel for inspection he went to the wheelhouse. While there, he had an opportunity to observe the area in which a radio would be located. He testified that he is familiar with what VHF radios look like and that nowhere on board did he observe any radio fitting that description. He did observe what appeared to him to be an old HF radio set in the wheelhouse.

Marine Surveillance Officer Benjamin also testified that after the Horng Yih Fwu #130 arrived in Pohnpei, he boarded it and had an opportunity to go to the bridge/wheelhouse area. He also testified that he is familiar with the appearance of VHF radios. Like Officer Wichap, he also observed an old HF type radio on the bridge of the vessel, but did not observe a VHF radio during his inspection. He also testified that he was on board the vessel when it left the Kolonia harbor to dump its bycatch and spoiled fish outside the reef. When he asked the master of the vessel during that trip if there was a VHF radio on board, by sign language and by indicating on a pad of paper, the vessel master indicated that there was not.

In its defense, Ting Hong made the same argument against liability it did to Count IV. Defendant cited to the difference in language between paragraph 9 of the Agreement and paragraph 9(d) of the HMTCs, and argued that these provisions create uncertainty as to who is actually responsible for monitoring the required frequencies. Paragraph 9 of the Agreement requires that "Authorized Vessels" continuously monitor the international distress frequencies, while paragraph 9(d) of the HMTCs requires that the "vessel operator" ensure the continuous monitoring of these frequencies. On this basis, defendant argued that the charge contained in Count V is ambiguous, and that due process precludes its conviction. 5

For the reasons explained above, in the Court's discussion of Count IV, the Court finds these same arguments unpersuasive with respect to Count V. First, defendant's duty to ensure that international distress frequencies are properly monitored arises under paragraph 9 and 23 of its Agreement with MMA. It was one of the express responsibilities Ting Hong undertook in order to

secure MMA's agreement to permit its vessels to conduct fishing operations in the FSM. That duty exists separate and apart from any duty owed by the vessel operator to monitor these frequencies under the law, whether or not the definition of "operator" includes Ting Hong, as alleged in the information. The terms of paragraphs 9 and 23 of the Agreement, paragraphs 1(e) and 9(d) of the HMTCs, and Sections 501(1)(a) and (c) of Title 24 are not so vague that men of common intelligence must necessarily guess at their meaning. Laion, 1 FSM Intrm. at 506-07. Accordingly, due process requirements do not preclude Ting Hong's conviction on this count.

Second, as explained above, in reference to Count IV, the acts of the vessel are the acts of the defendant under principles of agency law. Paragraph 9 of the Agreement requires each authorized vessel to monitor the international distress frequencies. Monitoring of the proper radio frequencies was squarely within the scope of the vessel's duties as Ting Hong's agent under the Agreement. The vessel's failure to monitor those frequencies was an act of Ting Hong's agent and a violation of the law, for which Ting Hong is criminally liable.

Count VI charges defendant with exceeding the crew size authorized in its August 9, 1994 Permit, in violation of 24 F.S.M.C. 501(1)(a) and (c). In support of these charges, the government offered the testimony of Officer Wichap, Lucio Remoket, and Eugene Pangelinan. Officer Wichap testified that when he boarded the Horng Yih Fwu #130 on August 24, 1994, all of the crew members were assembled, and he counted eleven crew members on board the vessel. Lucio Remoket, Chief of the FSM Division of Immigration, testified to the adverse effects that flow from vessels bringing in larger crews than stated on their fishing permits. Finally, Eugene Pangelinan, Deputy Director of MMA, testified to the effects of increased crew size on fishing efforts and fishing efficiency.

Defendant did not challenge Officer Wichap's testimony, and there is no dispute that the vessel's permitted crew was, in fact, exceeded. The only issue is the legal sufficiency of defendant's asserted defense. Defendant argued that this Court should decline to find defendant guilty, because the wrongful conduct charged is "de minimis" ) it causes little or no harm to the interests sought to be protected by Title 24. 6 Defendant cited Model Penal Code §2.12 in support. That provision would permit a court to dismiss a prosecution for violation of a statutory provision if the defendant's conduct was merely a technical or trivial violation of the statute, or if the defendant's conduct did not cause or threaten the harm the statute was designed to prevent. Defendant argued that the vessel's increase in crew size, from eight to eleven, was insignificant in terms of increased fishing efficiency and fishing efforts ) the harms it contended that the statute seeks to prevent.

The Court found the government's points persuasive. The Model Penal Code is just that ) a proposed model for statutory enactments relating to crimes, defenses to crimes and criminal procedure. The FSM Congress has not adopted the Model Penal Code or any provision comparable to Section 2.12 of that Code. The Court will not expand the law of the FSM to include a de minimis defense, particularly in light of the potential harm to FSM fisheries if numerous other permitted fishing vessels were similarly to violate crew size requirements, based on the availability of a "de minimis" defense.

Based on the testimony of Officer Wichap, the Court found that the government had proven beyond a reasonable doubt that the Horng Yih Fwu #130 had exceeded the crew size authorized by its Permit. The Court further found that defendant's "de minimis" defense was not a lawful defense in the FSM to the crime charged. For these reasons, the Court found defendant guilty beyond a reasonable doubt of a violation of 24 F.S.M.C. 501(a) and 501(c), as charged in Count VI, based on the vessel's crew size violation.

Finally, the government charged defendant in Count II with a violation of 24 F.S.M.C. 501(1)(l), the knowing transportation and possession of fish taken or retained in violation of the law. The evidence to support this charge came from the testimony of Officers Wichap and Benjamin. Both officers provided uncontested testimony that when the Horng Yih Fwu #130 was boarded on August 24, 1994, it had freshly caught fish on board. These fish were subsequently offloaded in Pohnpei.

[i]t is unlawful for any person: (l) to knowingly ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of any fish taken or retained in violation of this Title or any regional fishing treaty, regulation, Permit, foreign or domestic-based fishing agreement or any applicable law.

Ting Hong argued that any such finding would violate the double jeopardy provision of the FSM Constitution, by allowing multiple punishments for what it claimed was, in reality, a single offense. Ting Hong also argued that it did not "knowingly" ship, transport, have custody, control or possession of fish taken or retained in violation of Title 24, because the vessel master's knowledge cannot be imputed to it.

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932). Prosecution for Count II does require proof of a fact that Counts IV, V and VI do not. Count II requires, in addition to proof of any of the other offenses charged, proof that the vessel knowingly shipped, transported or had custody, control or possession of fish taken or retained in while another violation of Title 24 was occurring. For example, a vessel could fail to maintain a catch log, or fail to have a VHF radio, or exceed its authorized crew size, but still not be in violation of 24 F.S.M.C. 501(1)(l) if it did not take or retain fish while that violation was ongoing. Accordingly, defendant's prosecution for Count II does not violate the constitutional prohibition against double jeopardy. It is also evident from a close reading of the relevant statutory provisions that Congress contemplated separate punishments for violations of the various provisions of 24 F.S.M.C. 501.

With respect to the intent requirement of 24 F.S.M.C. 501(1)(l), the government presented uncontradicted testimony at trial that the Horng Yih Fwu #130 had freshly caught fish on board, when marine surveillance officers boarded it on August 24, 1994. On that same date, marine surveillance officers noted violations of catch log, VHF radio and crew size requirements which apparently had been ongoing. Based on this evidence, the Court found that these fish were on board the vessel with the knowledge of the vessel's master and crew, and that they had been taken or retained while violations of Title 24 were occurring.

As previously discussed with respect to Count IV, under agency law principles, the acts of Ting Hong's authorized vessel are the acts of Ting Hong. Similarly, the vessel master's knowledge is attributable to Ting Hong.8 The Court finds this to be a logical extension of the agency law principles discussed with respect to Count IV. Under the law of the United States, which this Court may look to for guidance, knowledge held by an agent or employee of a corporation may be attributed to its principal. See United States v. A & P Trucking Co., 358 U.S. 121, 79 S. Ct. 203, 3 L. Ed. 2d 165 (1958) (corporations are responsible for the acts and omissions of their authorized agents acting in the scope of their employment, and a corporation can be found guilty based on the state of mind of its employees); United States v. Dye Constr. Co., 510 F.2d (10th Cir. 1975) (same); Riss & Co. v. United States, 262 F.2d 245 (8th Cir. 1958) (motor carrier found guilty of knowing and willful violation of maximum hours regulations based on its drivers' violations); Steere Tank Lines, Inc., 330 F.2d 719, 721-22 (5th Cir. 1963) (knowledge of employees and agents is attributable to corporation in prosecution for knowing and willful violation).

For these reasons, the Court found that the government had proved beyond a reasonable doubt that defendant, through the actions of its authorized vessel, knowingly shipped, transported or had custody, control or possession of fish unlawfully taken or retained within the meaning of 24 F.S.M.C. 501(1)(l), as charged in Count II.

In entering into its Agreement with MMA, Ting Hong was on notice that the penalty for violations could extend beyond revocation of the vessel's permit. Paragraph 23 does not use the term "exclusive," "sole" or "only" in relation to the remedies available to the government for violations of the Agreement, and paragraph 23 expressly refers to compliance with Title 24 of the FSM Code. Section 501 of Title 24 makes it unlawful for any person to violate any provision of an applicable foreign fishing agreement and Section 503, in turn, provides for criminal penalties for violations of Section 501. See 24 F.S.M.C. 501(a) and 501(c), 24 F.S.M.C. 503. On this basis, the Court found that revocation was not the exclusive remedy for the violations charged.

After the original trial of this matter, Congress amended Title 24 to reduce the minimum sentence which may be imposed for violations of that title's provisions. After the Court convicted defendant on four counts following retrial, and prior to the sentencing hearing, the parties agreed that defendant should be sentenced under the amended 24 F.S.M.C. 503(2), which provides for a minimum fine of $10,000.00 and a maximum fine of $500,000.00 per violation. Both parties filed written suggestions regarding the proper sentence to be imposed and argued their positions before the Court.

Plaintiff requested that the Court impose the maximum penalty available under law for each count. Defendant requested that the Court impose the minimum allowable fines under the law for each count; impose concurrent sentences for Counts II and IV; and suspend the imposition of any fines and impose a sentence of probation.

Defendant's request for concurrent sentences was based on this Court's appellate findings in Laion v. FSM, 1 FSM Intrm. 503 (App. 1984). Because the Court found a plain legislative intent to impose separate punishments for the violations charged in Counts II and IV, the Court rejected defendant's proposal that the sentences for these counts run concurrently.

The Court also rejected defendant's argument for probation. Although it is indeed within the Court's discretion to impose a sentence of probation under the terms of 11 F.S.M.C. 1002(3), the Court found that probation was inappropriate in this case for two reasons. First, Ting Hong had departed from the FSM. Probation would therefore not permit the FSM to monitor or control defendant's future behavior. As the government noted, sentencing Ting Hong to probation would effectively result in no punishment at all. Second, the Court found that the seriousness of defendant's violations warranted a more serious sanction. Accordingly, the Court found that the imposition of a fine for each count was an appropriate penalty.

In fashioning an appropriate sentence for defendant's violations, the Court considered the factors enumerated in 24 F.S.M.C. 502(3), incorporated by reference in 24 F.S.M.C. 503(8). Specifically, the Court considered the nature, circumstances, extent, and gravity of the prohibited acts committed, and defendant's degree of culpability and history of prior offenses. See 24 F.S.M.C. 502(3). The Court

Each violation alleged and proven in this case was a serious one. At the sentencing hearing on March 25, 1997, the government provided testimony that defendant's failure to maintain a proper catch log obstructed the FSM's efforts to preserve, manage and conserve its fishery resources. It also hindered the efforts of the FSM's Pacific neighbors to do the same, because the information collected through catch reports is shared regionally. Second, there was testimony that having no VHF radio on board capable of monitoring the international distress frequencies jeopardized the safety of the vessel's crew, and impaired the FSM's efforts to monitor the vessel's actions in the FSM. In this case, the lack of an appropriate radio made it difficult for FSM marine surveillance officers to stop the vessel for inspection. Third, defendant was apparently warned more than once that the crew size of the Horng Yih Fwu #130 was in excess of that authorized under its Permit. Nevertheless, defendant failed to correct that violation. Testimony was presented that if crew size limits are ignored, the FSM cannot effectively monitor the number of foreign fishermen in FSM waters. Fourth, by transporting and exerting control over fish retained in violation of FSM law, defendant was attempting to profit from FSM marine resources it had no right to take, because it was ignoring the laws and regulations passed to ensure the sustainability and renewability of these resources.

In addition, defendant's conduct in this case is not an isolated incident in a long record of good corporate citizenship. The government presented evidence that Ting Hong has an extensive record of criminal convictions, civil penalties and settlements resulting from allegations of fishing violations both in the FSM and in the individual FSM states. See Pl.'s Sentencing Mem. at 6-7 (setting forth a list of such cases, many involving the same violations for which Ting Hong has been found guilty in this case). 10 The government also presented evidence that at the time the offenses in this case were committed, Ting Hong was one of the FSM's largest harvesters of FSM fisheries, and reaped a substantial financial benefit from its utilization of the FSM's marine resources.

For the foregoing reasons, on March 25, 1997, the Court imposed a fine of $300,000.00 on each count, for a total fine of $1.2 million. The Court found this sentence to be commensurate with the seriousness of the violations charged, and defendant's culpability for these violations, particularly against the background of defendant's past violations of Title 24.

For the reasons set forth above the Court found defendant guilty as charged on each of the four pending counts: three violations of 24 F.S.M.C. 501(1)(a) and (c), and one violation of 24 F.S.M.C. 501(1)(l). Pursuant to the authority granted in 24 F.S.M.C. 503(2), the Court sentenced defendant to a fine of $300,000.00 on each count, for a total fine of $1,200,000.00.

2. "Person" is further defined at 24 F.S.M.C. 102(34) as "any individual, corporation, partnership, association, or other entity, the Government of the Federated States of Micronesia or any of the States, or any political subdivision thereof, and any foreign government, subdivision of such government, or entity thereof."

3. Ting Hong argued that Article IV, Section 6 of the Niue Treaty, to which the FSM is a signatory, recognizes practical limitations on what governments can require of private parties. Defendant quoted the following language of that Treaty: "The parties shall, as far as possible, ensure that foreign fishing arrangements with foreign parties, including fishing Associations, require the foreign party to take responsibility for the compliance by its vessels with the terms of any such arrangement and all applicable laws." Def.'s Post-Trial Br. at 10. Contrary to defendant's argument, the cited language appears merely to recognize practical limitations on its signatories' bargaining power with foreign fishing associations. The Agreement between MMA and Ting Hong successfully requires Ting Hong to accept responsibility for compliance by its vessels.

7. At trial and in its post-trial brief, the government cited to a previous instance in which a fishing vessel crew member "jumped ship" in the FSM to engage in illegal harvesting of sea cucumbers, in arguing that without an accurate count of vessel crew size, enforcement of the FSM's fisheries and immigration laws becomes far more difficult.

The resources of the sea around Micronesia are being heavily exploited by the citizens of other nations without benefit to the people of Micronesia. Catch statistics indicate that certain reef and highly migratory stocks of fish may be threatened with irreversible diminution by reckless and excessive exploitation, thus threatening the material advancement and ultimately the political viability and stability of Micronesia. The purpose of this title is to promote economic development and to manage and conserve Micronesia's vital seas resources by extension of the fishery jurisdiction of Micronesia out two hundred miles from its shores.

10. The Court notes that the conduct challenged in many of these cited cases occurred after the conduct forming the basis for the government's criminal Information in this case. The Court has taken this factor into consideration in evaluating the weight to be given to Ting Hong's history of violations, and in assessing an appropriate penalty for the violations in this case.