FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Wainit
12 FSM Intrm. 105 (Chk. 2003)

[12 FSM Intrm. 105]

FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
TADASHI WAINIT,
Defendant.
 
CRIMINAL CASE NO. 2002-1504
 
ORDER DENYING MOTION TO DISMISS
 
Richard H. Benson
Specially Assigned Justice
 
Hearing: September 22, 2003
 
Decided: September 24, 2003

APPEARANCES:

For the Plaintiff:                          Robert M. Weinberg, Esq.
                                                    Assistant Attorney General
                                                    FSM Department of Justice
                                                    P.O. Box PS-105
                                                    Palikir, Pohnpei FM 96941
 
For the Defendant:                    Stephen V. Finnen, Esq.
                                                   Law Offices of Saimon & Associates
                                                   P.O. Box 1450
                                                   Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure
     Prosecutions for offenses committed before the effective date of the new national criminal code are governed by the prior law, which is continued as if the new code were not in force. FSM v. Wainit, 12 FSM Intrm. 105, 108 (Chk. 2003).
 
Search and Seizure ) Probable Cause; Statute of Limitations ) Criminal Offenses
     The statute of limitations is no part of any definition of probable cause. Probable cause is present when there is evidence and information sufficiently persuasive to warrant a cautious person to

[12 FSM Intrm. 106]

believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. That the violation of law occurred within the statute of limitations is not an element that must be shown for probable cause to exist. FSM v. Wainit, 12 FSM Intrm. 105, 108 (Chk. 2003).
 
Statute of Limitations ) Criminal Offenses
     The statute of limitations is an affirmative defense which the defendant must raise either by motion under Criminal Procedure Rule 12(b) or later at trial by a plea of not guilty. FSM v. Wainit, 12 FSM Intrm. 105, 108 (Chk. 2003).
 
Criminal Law and Procedure
     Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of cases decided by other courts, when an FSM court has not previously construed an FSM procedural rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. FSM v. Wainit, 12 FSM Intrm. 105, 109 n.1 (Chk. 2003).
 
Criminal Law and Procedure
     A felony is an offense punishable by more than one year in prison and a misdemeanor is an offense punishable by more than 30 days imprisonment and up to one year. FSM v. Wainit, 12 FSM Intrm. 105, 109 n.2 (Chk. 2003).
 
Statute of Limitations ) Criminal Offenses
     Under 11 F.S.M.C. 105(3)(b) even if the three-year time limitation to prosecute a felony or the two-year time limit to prosecute a misdemeanor has expired, a prosecution may nevertheless be commenced for any offense based on misconduct in office by a public officer or employee at any time when the defendant is in public office or employment or within two years thereafter, but in no case will this provision extend the period of limitations otherwise applicable by more than three years. FSM v. Wainit, 12 FSM Intrm. 105, 109 (Chk. 2003).
 
Statute of Limitations ) Criminal Offenses; Statutes ) Construction
     Although statutes of limitation on criminal prosecutions must be accorded a rational meaning in harmony with the obvious intent and purpose of the law, such statutes must be liberally construed in favor of the accused, and exceptions from the benefits of such statutes must be construed narrowly or strictly against the government. The rule of strict construction will not justify an unreasonable interpretation ) one contrary to the law’s intent. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. FSM v. Wainit, 12 FSM Intrm. 105, 109-10 (Chk. 2003).
 
Public Officers and Employees
     Under the FSM criminal code a "public servant" is any officer or employee of, or any person acting on behalf of, the FSM, including legislators and judges, and any person acting as an advisor, consultant, or otherwise, in performing a governmental function; but the term does not include witnesses. FSM v. Wainit, 12 FSM Intrm. 105, 110 (Chk. 2003).
 
Criminal Law and Procedure ; Statutes ) Construction
     By deliberately using a different term in 11 F.S.M.C. 105(3)(b) from the one defined in 11 F.S.M.C. 104(11), the drafters can only have intended that the meaning be different, and, by not defining it, that the term’s meaning should be the common, ordinary English language meaning of the term because words and phrases as used in the code must be read with their context and be construed according to the common and approved usage of the English language. FSM v. Wainit, 12 FSM

[12 FSM Intrm. 107]

Intrm. 105, 110 (Chk. 2003).
 
Public Officers and Employees ; Statutes ) Construction
     The common and approved usage in the English language of the term "public officer" is a person holding a post to which he has been legally elected or appointed and exercising governmental functions. "Public officer" is not a legal term of art but carries only its common, ordinary, and unambiguous English language meaning as found in the dictionary. FSM v. Wainit, 12 FSM Intrm. 105, 110-11 (Chk. 2003).
 
Public Officers and Employees ; Statutes ) Construction
     Strictly construing the term "public officer" by using only its plain, ordinary, and unambiguous meaning (or in the code’s terms "its common and approved usage"), a mayor falls within the public officer exception to the criminal statute of limitations. FSM v. Wainit, 12 FSM Intrm. 105, 111 (Chk. 2003).
 
Statutes ) Construction
     A statute’s policy is to be found in the legislative intent, and it is the cardinal rule in the construction of statutes that such intent is, itself, to be found solely in the statute’s words if they are free from ambiguity and express a sensible meaning. FSM v. Wainit, 12 FSM Intrm. 105, 111 (Chk. 2003).
 
Statutes ) Construction
     A court should construe a statute as the legislature intended. Legislative intent is determined by the statute’s wording. What a legislature says in a statute’s text is considered the best evidence of the legislative intent or will. Thus a court must give effect to the plain meaning of a statutory provision whenever possible. FSM v. Wainit, 12 FSM Intrm. 105, 111 (Chk. 2003).
 
Statutes ) Construction
     When the statute’s language is plain and unambiguous, it declares its own meaning and there is no room for construction. FSM v. Wainit, 12 FSM Intrm. 105, 111 (Chk. 2003).
 
Criminal Law and Procedure ; Statutes ) Construction
     When the statute’s drafters deliberately chose the term "public officer" in an exception to the criminal statute of limitations instead of using the term "public servant," as they did in so many other criminal code sections, the statute’s object and the drafters’ intent was to apply this exception to all public officers, not just to those the criminal code defined as "public servants." This is the statute’s plain and unambiguous meaning. If the drafters had intended to restrict the exception to just those persons that had been defined as "public servants," they could easily have inserted that term instead. FSM v. Wainit, 12 FSM Intrm. 105, 111 (Chk. 2003).
 
Statutes ) Construction
     FSM Code provisions are to be construed according to the fair construction of their terms, with a view to effect its object and to promote justice. FSM v. Wainit, 12 FSM Intrm. 105, 111 (Chk. 2003).
 
Public Officers and Employees
     The plain, unambiguous, and ordinary meaning of "public officer," an ordinary term for which no construction is required, is that the term includes any person holding a post to which he has been legallDy elected or appointed and exercising governmental functions. FSM v. Wainit, 12 FSM Intrm. 105, 111 (Chk. 2003).

[12 FSM Intrm. 108]

Federalism ) National/State Power; Statutes ) Construction
     A national statute whose term "public officer" refers to state and municipal public officials as well as national officials does not raise a constitutional issue involving the allocation of powers between the two sovereigns ) state and national ) and the three levels of government ) national, state, and local because it applies to persons based upon their status as public officers ) persons holding posts and exercising governmental functions. It does not matter whether that status is defined and bestowed upon a person by the national government or by another level of government in the FSM. It only matters that the person holds that status. FSM v. Wainit, 12 FSM Intrm. 105, 111 (Chk. 2003).

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COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

     This came before the court on the defendant’s motion to dismiss the information. The information accuses defendant Tadashi Wainit, Mayor of Udot Municipality, of February 1999 violations of 11 F.S.M.C. 701 (deprivation of another’s FSM constitutional rights) and 11 F.S.M.C. 532(1)(a) (threats in election matters) in relation to the March 2, 1999 national election while in his official capacity. These charges carry a maximum jail sentences of three years and one year respectively. 11 F.S.M.C. 701(2); 11 F.S.M.C. 532(3)(b).

I. Applicable Law

     On January 25, 2001, a new national criminal code came into effect. FSM Pub. L. No. 11-72, § 211. The one pertinent provision of that enactment states that "[p]rosecutions for offenses committed before the effective date are governed by the prior law, which is continued as if this act were not in force." Id. § 4(2) (to be codified at 11 F.S.M.C. 105(2)). The earlier criminal code provisions therefore apply.

II. The Motion

     The motion’s ground is that the statute of limitations for these offenses had already run when the information was filed on November 7, 2002 because the information was filed over three years after the alleged offenses occurred. The government relies upon a statutory exception to extend the limitations period beyond three years. Wainit contends that this exception does not apply to him. His motion adds that there is no probable cause to charge him because the information must be filed within the statute of limitations for there to be probable cause.

A. Probable Cause and Statute of Limitations

     The statute of limitations is no part of any definition of probable cause. Probable cause is present when there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588-89 (Pon. 1994). That the violation of law occurred within the statute of limitations is not an element that must be shown for probable cause to exist. The statute of limitations is an affirmative defense which the defendant must raise either by motion under Criminal Procedure Rule 12(b) or later at trial by a plea of not guilty.

[12 FSM Intrm. 109]

1A Charles Alan Wright, Federal Practice and Procedure § 193, at 353-58 (3d ed. 1999).1 Wainit, by his motion, has properly raised this defense at this time.

B. Statute of Limitations

     Under the earlier criminal code, except as otherwise provided for in section 105, prosecutions for felonies2 punishable by ten years or less in jail are limited to three years after the offense is committed, 11 F.S.M.C. 105(2)(b), and prosecutions for misdemeanors are limited to two years after the offense is committed, 11 F.S.M.C. 105(2)(c). The government contends that 11 F.S.M.C. 105(3)(b) extends the statute of limitations period in this case. That section provides that even if the time limitation to prosecute has expired,

a prosecution may nevertheless be commenced for: . . .

(b) Any offense based on misconduct in office by a public officer or employee at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this provision extend the period of limitations otherwise applicable by more than three years.

11 F.S.M.C. 105(3). It is conceded that if this exception applies then the prosecution has been timely brought.

     Wainit contends that this exception does not apply to him because he is not a "public officer" within the meaning of the national criminal code because he is not an FSM employee.

1. Construction of Criminal Statutes of Limitation

     No FSM court has previously had the occasion to construe statutes of limitation as they apply to criminal cases. The court concludes that the following framework is the appropriate tool to use in approaching the task:

      Although statutes of limitation on criminal prosecutions must be accorded a rational meaning in harmony with the obvious intent and purpose of the law, such statutes must be liberally construed in favor of the accused, and exceptions from the benefits of such statutes must be construed narrowly or strictly against the state.

21 Am. Jur. 2d Criminal Law § 293 (rev. ed. 1998) (footnotes omitted); see also State v. Palmer, 810 P.2d 734, 737 (Kan. 1991); State v. Brown, 126 AA.2d 161, 166 (N.J. 1956). At oral argument,

[12 FSM Intrm. 110]

when asked to comment on the above passage, the parties agreed that this was a fair recitation of the analysis the court must use. "The rule of strict construction will not justify an ’unreasonable’ interpretation;" ) one contrary to the law’s intent. Brown, 126 A.2d at 166. "The rule of strict construction simply means that ordinary words are to be given their ordinary meaning." Palmer, 810 P.2d at 741.

2. Construction of 11 F.S.M.C. 105(3)(b)

     Wainit contends that he is not a "public officer" within the meaning of the national criminal code because he is not an FSM employee. For this contention he relies on 11 F.S.M.C. 104(11) which defines a "public servant" as "any officer or employee of, or any person acting on behalf of, the Federated States of Micronesia, including legislators and judges, and any person acting as an advisor, consultant, or otherwise, in performing a governmental function; but the term does not include witnesses."3 Wainit asserts that, as an elected municipal official, he is not a public officer because he is not an officer or employee of, or acting on behalf of, the national government of the Federated States of Micronesia.

      Wainit contends that since "public officer" is not defined in the criminal code, the court should use the term or person defined ) public servant ) as synonymous. He contends that one must be a national government employee to fall within the definition of "public officer." Wainit contends that that is the only result possible, strictly construing the limitation exception against the government.

     Wainit further contends that Congress does not have the power to include municipal or state officers or employees within the term "public officer" because, under the FSM’s federal system of government, it does not have the power to define state or municipal offices or to determine who holds them.

     The court cannot conclude that the term "public officer" as used in 11 F.S.M.C. 105(3)(b) can be accorded the same meaning as the term "public servant" is defined in 11 F.S.M.C. 104(11). A quick review of the criminal code, as it was in 1999, reveals that the defined term "public servant" can be found in the following sections of Title 11 (the criminal code) as it was then: §§ 522(1); 531(1)(a); 531(1)(b); 531(1)(c); 531(3); 532(1)(a); 532(1)(b); 532(1)(c); 532(1)(d); 533(1); 534; 535; 536(2); 542(1)(a)(ii); 543(1); 548(1)(a); 549(1); 1301(2). The term "public officer" appears only in 11 F.S.M.C. 105(3)(b).

     By deliberately using a different term in 11 F.S.M.C. 105(3)(b) from the one defined in 11 F.S.M.C. 104(11), the drafters can only have intended that the meaning be different, and, by not defining it, that the term’s meaning should be the common, ordinary English language meaning of the term. "Words and phrases as used in this code . . . shall be read with their context and shall be construed according to the common and approved usage of the English language." 1 F.S.M.C. 208. See also Setik v. FSM, 5 FSM Intrm. 407, 410 (App. 1992) (plain meaning of a statutory provision must be given effect whenever possible). The common and approved usage in the English language of the term "public officer" is "a person holding a post to which he has been legally elected or appointed and exercising governmental functions." Webster’s Third New International Dictionary 1836 (1961). The term "public officer" is not defined in either of the two editions (5th and 7th) of Black’s Law Dictionary available to the court. The court can only conclude that "public officer" is not

[12 FSM Intrm. 111]

a legal term of art but carries only its common, ordinary, and unambiguous English language meaning as found in Webster’s.

     Wainit was legally elected to a post exercising governmental functions ) he is, and has been, the elected mayor of Udot Municipality at all relevant to 11 F.S.M.C. 105(3)(b). Thus, strictly construing the term "public officer" by using only its plain, ordinary, and unambiguous meaning (or in the code’s terms "its common and approved usage"), Wainit falls within the section 105(3)(b) exception to the section 105(2)(b) and (c) limitations to this prosecution. This follows the drafters’ intent. A statute’s policy "is to be found in the legislative intent. And it is the cardinal rule in the construction of statutes that such intent is, itself, to be found solely in the words of the statute, if they are free from ambiguity and express a sensible meaning." State v. Patriarca, 43 A.2d 54, 56 (R.I. 1945) (construing criminal statutes of limitation). A court should construe a statute as the legislature intended. Legislative intent is determined by the statute’s wording. What a legislature says in a statute’s text is considered the best evidence of the legislative intent or will. Thus a court must give effect to the plain meaning of a statutory provision whenever possible. Rodriguez v. Bank of the FSM, 11 FSM Intrm. 367, 379 (App. 2003); FSM Social Sec. Admin. v. Kingtex (FSM) Inc., 8 FSM Intrm. 129, 131 (App. 1997). In other words, "where the language of the statute is plain and unambiguous, it declares its own meaning and there is no room for construction." Patriarca, 43 A.2d at 56.

     The object of section 105(3)(b) was to apply this exception to all public officers, not just to those defined as "public servants" in section 104(11). This is the statute’s plain and unambiguous meaning. If the drafters had intended to restrict the section 105(3)(b) exception to just those persons that had been defined as "public servants," they could easily have inserted that term into section 105(3)(b) instead as they so easily inserted it in so many other sections of the criminal code. Instead, the drafters deliberately chose the term "public officer." This construction of section 105(3)(b) conforms with 1 F.S.M.C. 211 ("The provisions of this code shall be construed according to the fair construction of their terms, with a view to effect its object and to promote justice."). The plain, unambiguous, and ordinary meaning of "public officer," an ordinary term for which no construction is required, is that the term includes any "person holding a post to which he has been legally elected or appointed and exercising governmental functions." Webster’s Third New International Dictionary 1836 (1961).

     Wainit further contends that "public officer" in section 105(3)(b) cannot possibly refer to state and municipal public officials because the national government because the national government lacks the constitutional power to define those offices and to determine or install those officials. He sees this as a constitutional issue involving the allocation of powers between the two sovereigns ) state and national ) and the three levels of government ) national, state, and local. It is not. Section 105(3)(b) applies to persons based upon their status as public officers ) persons holding posts and exercising governmental functions. It does not matter whether that status is defined and bestowed upon a person by the national government or by another level of government in the Federated States of Micronesia. It only matters that the person holds that status.

     The section 105(3)(b) exception to the criminal statute of limitations therefore applies to any public officer in any level of government in the FSM who is charged with the commission of a national criminal offense. It thus applies to defendant Tadashi Wainit.

III. Conclusion

     Accordingly, the defendant’s motion to dismiss is denied. Neither count of this prosecution is barred by the applicable statute of limitation.

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___________________________________________

Footnotes:

1. Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of cases decided by other courts, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when an FSM court has not previously construed an FSM procedural rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule, Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984) (criminal rules).

2. A felony is an offense punishable by more than one year in prison and a misdemeanor is an offense punishable by more than 30 days imprisonment and up to one year. 11 F.S.M.C. 104(1). Count I of the information (violation of 11 F.S.M.C. 701) is therefore a felony, and Count II (violation of 11 F.S.M.C. 532), since it is not alleged that the purpose was to influence a judicial or administrative proceeding (five year sentence), is a misdemeanor (one year sentence).

3.Section 104(11) also included within the definition of public servant those Trust Territory government officials functioning in the Federated States of Micronesia. This portion of the statute no longer has any meaning.