FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Nifon, 14 FSM Intrm. 309 (Chk. 2006)

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FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

FREDDIE NIFON,

Defendant.

CRIMINAL CASE NO. 2005-1501

ORDER DENYING MOTION TO DISMISS

Dennis Yamase

Associate Justice

Hearing: June 30, 2006

Decided: July 24, 2006

APPEARANCES:

For the Plaintiff:   Matthew L. Olmsted, Esq.

                              Assistant Attorney General

                              FSM Department of Justice

                              P.O. Box PS-105

                              Palikir, Pohnpei   FM   96941

For the Defendant:   Harry A. Seymour, Esq.

                                   Office of the Public Defender

                                   P.O. Box 245

                                   Tofol, Kosrae   FM   96944

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HEADNOTES

Criminal Law and Procedure

    On December 15, 2000, the national criminal code enacted in 1982 (as amended) applied to criminal offenses. On January 25, 2001, a new national criminal code came into effect. It provided that 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 this act were not in force. FSM v. Nifon, 14 FSM Intrm. 309, 312 (Chk. 2006).

Statutes of Limitation ) Criminal Offenses

    When, under the 1982 national criminal code, the statute of limitations for an offense which is punishable by imprisonment for more than ten years was six years after it is committed and for any other felony was three years, and when the penalty for a person convicted under section 601, if the value of the property or service was $5,000 or more, was s "imprisonment for not more than ten years," the applicable limitations period was three years except as otherwise provided in Title 11,

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section 105. FSM v. Nifon, 14 FSM Intrm. 309, 312 (Chk. 2006).

Statutes of Limitation ) Criminal Offenses

    The limitations period 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 can be extended by no more than three years. FSM v. Nifon, 14 FSM Intrm. 309, 312 (Chk. 2006).

Statutes of Limitation ) Criminal Offenses

    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. But the rule of strict construction does not justify an unreasonable interpretation ) one contrary to the law’s intent. The strict construction rule simply means that ordinary words are to be given their ordinary meaning. FSM v. Nifon, 14 FSM Intrm. 309, 313 (Chk. 2006).

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 must have intended that the meaning be different, and, by not defining it, that the term’s meaning should be its common, ordinary English language meaning because words and phrases as used in the FSM Code must be read with their context and be construed according to the common and approved usage of the English language. FSM v. Nifon, 14 FSM Intrm. 309, 313 (Chk. 2006).

Statutes ) Construction; Statutes of Limitation ) Criminal Offenses

    The common and approved English language usage of the term "public officer" is a person holding a post to which he has been legally elected or appointed and exercising governmental functions. 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 tolling provision to the criminal statute of limitations, since 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. FSM v. Nifon, 14 FSM Intrm. 309, 313 (Chk. 2006).

Statutes ) Construction

    Words and phrases, as used in the FSM Code or in any act of the Congress or in any regulation issued pursuant thereto must be read with their context and must be construed according to the common and approved usage of the English language. FSM v. Nifon, 14 FSM Intrm. 309, 313 (Chk. 2006).

Statutes ) Construction

    Under the English language’s common and approved usage, words and phrases that modify other words or phrases are positioned as closely as possible to the word or phrase they modify because referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. FSM v. Nifon, 14 FSM Intrm. 309, 313 (Chk. 2006).

Statutes of Limitation ) Criminal Offenses

    Under the 2001 criminal code, the applicable limitations periods for murder or treason is any time; for a crime which is punishable by imprisonment for ten years or more is six years or within two years after it is discovered or with reasonable diligence could have been discovered, whichever is longer; and for any other felony is three years or within one year after it is discovered or with

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reasonable diligence could have been discovered, whichever is longer. FSM v. Nifon, 14 FSM Intrm. 309, 314 (Chk. 2006).

Statutes ) Construction; Statutes of Limitation ) Criminal Offenses

    When the maximum possible penalty for an alleged offense is ten years and the limitations period for offenses "punishable by imprisonment for ten years or more" is six years, the applicable limitations period is six years. The phrase, "ten years or more" does not mean that the maximum possible sentence must be more than ten years. The disjunctive "or" clearly means that, for subsection 105(2) to apply, a maximum possible sentence of only ten years is enough. FSM v. Nifon, 14 FSM Intrm. 309, 314 (Chk. 2006).

Public Officers and Employees

    While the defendant’s position as Weno mayor would not satisfy the FSM officer or employee element in sections 55 F.S.M.C. 221(3) and 223, the defendant’s service as the project manager on a project for which the national government supplied all the funding, for the purpose of that project, would because he was subject to the national government’s control and supervision concerning the project he was manager of, and in that capacity, he performed a national government function ) expending national government funds. Spending national government funds is an exercise of the national government’s sovereign power. FSM v. Nifon, 14 FSM Intrm. 309, 314-15 (Chk. 2006).

Public Officers and Employees

    For the purpose of that project, a project manager of a national government project funded by national government funds, is an officer of the national government since he was exercising powers on the national government’s behalf. FSM v. Nifon, 14 FSM Intrm. 309, 315 (Chk. 2006).

Criminal Law and Procedure ) Information

    When the information cites 11 F.S.M.C. 313(2)(c), but quotes the language of 313(2)(b) as the offense charged, the "(c)" in the information is considered a minor typographical error that does not prejudice the accused. FSM v. Nifon, 14 FSM Intrm. 309, 315 n.1 (Chk. 2006).

Public Officers and Employees

    As a project manager for the Compact funds, a defendant was a national government officer (for that purpose only) because he was exercising powers on the national government’s behalf over national government money in a national government project. FSM v. Nifon, 14 FSM Intrm. 309, 315 (Chk. 2006).

Public Officers and Employees

    The term "officer or employee of any government of the FSM" in 55 F.S.M.C. 313(2) includes municipal mayors. FSM v. Nifon, 14 FSM Intrm. 309, 315 (Chk. 2006).

Federalism ) National/State Power

    A municipality is not a separate sovereign. A municipality is a creature of a state’s sovereignty. Unlike states, municipalities are not sovereigns, but exercise that portion of a state’s sovereignty that the state authorizes it to. FSM v. Nifon, 14 FSM Intrm. 309, 315 (Chk. 2006).

Public Officers and Employees

    The term "officer or employee of any State" in 55 F.S.M.C. 338 includes municipal officers and employees. FSM v. Nifon, 14 FSM Intrm. 309, 316 (Chk. 2006).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

     On June 30, 2006, this came before the court for hearing on the defendant’s Motion for Dismissal, filed March 2, 2006, and on the Government’s Opposition to Defendant’s Motion for Dismissal, filed March 23, 2006. The information, filed May 30, 2005, contains four counts. Nifon raises different grounds for the dismissal of each count. The motion to dismiss is denied. The court’s reasons follow.

I.   Count One

     Count One (read together with the affidavit attached to the information supporting probable cause) alleges that on or about December 15, 2000, Freddie Nifon, while Mayor of Weno Municipality, committed theft of FSM government movable property (cash) valued at $5,000 or more in violation of 11 F.S.M.C. 601(1). On that date, the national criminal code enacted in 1982 (as amended) applied to criminal offenses. On January 25, 2001, a new national criminal code came into effect. FSM Pub. L. No. 11-72, § 211. It provided that "[p]rosecutions for offenses committed before the effective date [of the new national criminal code] 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. 102(2)). Thus, the earlier criminal code provisions apply to Count One.

     Nifon contends that under the applicable provisions of the 1982 national criminal code, the statute of limitations had expired for Count One before the information’s May 30, 2005 filing. The relevant provisions read:

Except as otherwise provided in this section, prosecution for offenses are subject to the following time limitations:

(a)   A prosecution for an offense which is punishable by imprisonment for more than ten years must be commenced within six years after it is committed.

(b)   A prosecution for any other felony must be commenced within three years after it is committed.

11 F.S.M.C. 105(2). The penalty for a person convicted under section 601, if the value of the property or service was $5,000 or more, is "imprisonment for not more than ten years." 11 F.S.M.C. 601(3)(a). Therefore, except as otherwise provided in Title 11, section 105, the applicable limitations period for Count One is three years. The government contends that since Nifon was the Weno mayor at the time of this offense and since it is alleged that he used that office to commit the offense charged in Count One, the public officer tolling provision of subsection 105(3)(b) applies. That subsection provides that:

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 limitation otherwise applicable by more than three years.

11 F.S.M.C. 105(3)(b).  Nifon contends that this "public officer" tolling provision does not apply to him because he was never an employee or officer of the Federated States of Micronesia national government. He contends that since "public officer" is not defined in the criminal code, but "public servant" is and that since "public servant" is defined to mean "any officer or employee of, or any

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person acting on behalf of, the Federated States of Micronesia," 11 F.S.M.C. 104(11), the court should adopt the definition of public servant as the definition of public officer and rule that a mayor is neither a public servant nor a public officer, as defined.

     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. But the rule of strict construction does not justify an unreasonable interpretation ) one contrary to the law’s intent. The strict construction rule simply means that ordinary words are to be given their ordinary meaning. FSM v. Wainit, 12 FSM Intrm. 105, 109-10 (Chk. 2003). 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 must have intended that the meaning be different, and, by not defining it, that the term’s meaning should be its common, ordinary English language meaning because words and phrases as used in the FSM Code must be read with their context and be construed according to the common and approved usage of the English language. Wainit, 12 FSM Intrm. at 110.

     The common and approved English language usage of the term "public officer" is a person holding a post to which he has been legally elected or appointed and exercising governmental functions. Id. at 110-11. 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, id. at 111, since 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. Id. Mayor Nifon was therefore a public officer within the meaning of the 11 F.S.M.C. 105(3)(b) tolling provision, and his motion to dismiss Count One must therefore be denied.

     The government also contends that Nifon was a "government" officer under 11 F.S.M.C. 932. That section provides that the word government is defined as "the Federated States of Micronesia, and any department, agency, or subdivision thereof, or any corporation or other association carrying out the functions of Government." 11 F.S.M.C. 932(3). The government contends that the phrase "or subdivision thereof" applies to the Weno municipal government since Weno Municipality is a subdivision of the Federated States of Micronesia.

     The court will not adopt this strained reasoning. Congress has mandated that: "Words and phrases, as used in this code or in any act of the Congress or in any regulation issued pursuant thereto 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. Under the English language’s common and approved usage, words and phrases that modify other words or phrases are positioned as closely as possible to the word or phrase they modify. Therefore, the phrase "or subdivision thereof" should modify the immediately preceding words: "any department, agency." That is, the "thereof" of "or subdivision thereof" refers to only those words that come after the conjunctive "and." In other words, that phrase in the statute refers to any department, or agency, or any subdivision of a department or of an agency. This reading is in keeping with general rules of statutory construction. "Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent." 2A Norman J. Singer, Sutherland Statutory Construction § 47.33 (5th ed. 1992).

II.   Count Two

     Count Two (read together with the affidavit attached to the information supporting probable cause) alleges that on or about November 22, 2001, Nifon committed theft of FSM government

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movable property (cash) valued at $5,000 or more in violation of 11 F.S.M.C. 602 (FSM Pub. L. No. 11-72, § 67). The penalty for violation of section 602 is imprisonment "for not more than ten years" if the property’s value is $5,000 or more. Nifon contends that the statute of limitations has expired on this offense. The applicable limitations statute reads:

(1)  A prosecution for murder or treason may be commenced at any time.

(2)  A prosecution for a crime which is punishable by imprisonment for ten years or more must be commenced within six years after it is committed or within two years after it is discovered or with reasonable diligence could have been discovered, whichever is longer.

(3)  A prosecution for any other felony must be commenced within three years after it is committed or within one year after it is discovered or with reasonable diligence could have been discovered, whichever is longer.

FSM Pub. L. No. 11-72, § 7 (to be codified at 11 F.S.M.C. 105).  Nifon contends that subsection 105(3) provides the applicable limitations period ) three years. He contends that since Count Two carries a penalty of imprisonment "for not more than ten years" that subsection 105(2) cannot apply because that subsection applies only to crimes "punishable by imprisonment for ten years or more." The government contends that subsection 105(2) is the applicable statute.

     The maximum possible penalty for the offense alleged in Count II is ten years. Subsection 105(2) provides the limitations period for offenses "punishable by imprisonment for ten years or more." Subsection 105(2) therefore applies to any crime, except murder or treason, for which the maximum sentence is ten years’ imprisonment or for which the maximum sentence is higher than ten years. "[T]en years or more" does not mean that the maximum possible sentence must be more than ten years. The disjunctive "or" clearly means that, for subsection 105(2) to apply, a maximum possible sentence of only ten years is enough. Since the penalty for Count Two is ten years, subsection 105(2) applies and the applicable limitations period is six years. The prosecution was started on May 30, 2005, when the information was filed. FSM Pub. L. No. 11-72, § 7(6) (to be codified at 11 F.S.M.C. 105(6)). This was within six years of November 22, 2001, the date of the alleged offense. The motion to dismiss Count Two is therefore denied.

III.  Count Three

     Count Three (read together with the affidavit attached to the information supporting probable cause) alleges that on or about December 15, 2000, Nifon, while project manager of an FSM national government compact funds project (FSM project control document CD18399), without legal authorization, knowingly and willfully, made or authorized an expenditure from, or created or authorized an obligation pursuant to an allotment of funds of the FSM or U.S. government for purposes other than those for which the allotment had been made in violation of 55 F.S.M.C. §§ 221(3) and 223.

     Since a common element in both subsection 221(3) and section 223 is that the person charged must be an officer or employee of the Federated States of Micronesia or an allottee of national government funds, Nifon contends that this count must be dismissed because as Weno mayor he was never an FSM national government employee or officer and because Chuuk Governor Ansito Walter, not he, was the allottee for the project funds. The government contends, and the information alleges, that Nifon was a national government officer for the purpose of this count because he accepted and exercised the position as project manager on a national government project.

     Nifon is correct that his position as Weno mayor would not satisfy the FSM officer or employee

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element in sections 221(3) and 223. However, Nifon was the project manager on a project for which the national government supplied all the funding. As such, Nifon was subject to the national government’s control and supervision concerning the project he was manager of, and in that capacity, Nifon performed a national government function ) expending national government funds. Spending national government funds is an exercise of the national government’s sovereign power. Thus, for the purpose of Count Three, Nifon, as project manager of national government project funded by national government funds, was an officer of the national government since he was exercising powers on the national government’s behalf. The motion to dismiss Count Three is accordingly denied.

IV.  Count Four

     Count Four (read together with the affidavit attached to the information supporting probable cause) alleges that on or about November 22, 2001, Nifon, in violation of 55 F.S.M.C. 313(2)(b), knowingly and willfully, made or authorized an expenditure from, or created or authorized an obligation pursuant to an allotment of Compact funds for purposes other than those for which the allotment had been made.

(2)  No officer or employee of any government of the FSM, or allottee of funds shall make or otherwise authorize an expenditure from, or create or authorize an obligation pursuant to, any allotment of Compact funds:

(a)  in advance of availability of funds by allotment;

(b)  for purposes other than those for which an allotment has been made; or

(c)  in excess of the sum made available by Compact fund allotment.

55 F.S.M.C. 313(2).  Nifon contends that Count Four must be dismissed because, as Weno mayor, he was not an officer or employee of a government of the Federated States of Micronesia. Nifon further contends that since 55 F.S.M.C. 338 imposes punishment (for violation of 55 F.S.M.C. 313(2) or (3)) only on "[a]ny officer or employee of any State or the National Government," he, as a municipal government officer and employee, is not a national or state government officer or employee and is not subject to, and cannot be punished for 55 F.S.M.C. 313(2)(b) violations.

     Since Nifon was also the project manager for the Compact funds involved in this count, Nifon was (as noted under Count Three above) a national government officer (for that purpose only) because he was exercising powers on the national government’s behalf over national government money in a national government project. Furthermore, 55 F.S.M.C. 313(2) applies to an officer or employee "of any government of the FSM," and Nifon, as Weno mayor, was an officer or employee of a government of the FSM. The statute’s imposition of punishment on only national and state officers and employees does not absolve Nifon of criminal liability. Contrary to Nifon’s contention, a municipality is not a separate sovereign. A municipality is a creature of a state’s sovereignty. The office of municipal mayor is created by the Chuuk state constitution. "The chief executive of a municipality is the Mayor." Chk. Const. art. XIII, § 1. Municipal governments are created by and subordinate to state governments. See generally Chk. Const. art. XIII (naming Chuuk municipalities; delineating their powers, and authorizing

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them to adopt municipal constitutions). See also FSM Const. art. VII, § 1 which recognizes three levels of government in the FSM ) national, state, and local ) but which also recognizes that where no local government exists, a state is not required to establish one. Thus, unlike states, municipalities are not sovereigns, but only exercise that portion of a state’s sovereignty that the state authorizes it to.

     The term "officer or employee of any State" thus includes municipal officers and employees. The motion to dismiss Count Four is therefore denied.

V.  Conclusion

     Accordingly, Freddie Nifon’s motion to dismiss is denied. The court will take Nifon’s plea at 9:30 a.m., September 19, 2006, and, if a not guilty plea is entered, trial will start at 10:00 a.m.

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Footnotes:

1.  Although the information cites 313(2)(c), it quotes the language of 313(2)(b) as the offense charged. The "(c)" in the information is therefore considered a minor typographical error that does not prejudice the accused. Laion v. FSM, 1 FSM Intrm. 503, 518 (App. 1984) (convictions should not be reversed, nor the information thrown out, because of minor, technical objections which do not prejudice the accused).

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