FSM SUPREME COURT APPELLATE DIVISION

Cite as Wainit v. FSM, 15 FSM Intrm. 43 (App. 2007)

[15 FSM Intrm. 043]

TADASHI WAINIT,

Appellant,

vs.

FEDERATED STATES OF MICRONESIA,

Appellee.

APPEAL CASE NO. C2-2006

OPINION

Argued: March 19, 2007

Decided: May 30, 2007

BEFORE:

Hon. Alfred T. Goodwin, Temporary Justice, Presiding, FSM Supreme Court*

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

Hon. Benjamin Rodriguez, Temporary Justice, FSM Supreme Court***
 

*Senior Judge, United States Court of Appeals for the Ninth Circuit

**Chief Justice, Kosrae State Court, Tofol, Kosrae

***Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
 

APPEARANCES:

For the Appellant:   Steven V. Finnen, Esq.

                                Law Office of Steven V. Finnen

                                P.O. Box 1450

                                Kolonia, Pohnpei   FM   96941

[15 FSM Intrm. 44]

For the Appellee:   Matthew Olmsted, Esq.

                               Assistant Attorney General

                               FSM Department of Justice

                               P.O. Box PS-105

                               Palikir, Pohnpei   FM   96941

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HEADNOTES

Criminal Law and Procedure; Criminal Law and Procedure ) Civil Rights Offenses

      A person commits a crime if he or she willfully, whether or not acting under the color of law, deprives another of, or injures, oppresses, threatens, or intimidates another in the free exercise or enjoyment of, or because of his or her having so exercised any right, privilege, or immunity secured to him by the FSM Constitution or laws. Wainit v. FSM, 15 FSM Intrm. 43, 45 n.1 (App. 2007).

Civil Rights

      A person who deprives another of any right or privilege protected under 11 F.S.M.C. 701 shall be civilly liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, without regard to whether a criminal case has been brought or conviction obtained. In an action brought 11 F.S.M.C. 701, the court may award costs and reasonable attorney's fees to the prevailing party. Wainit v. FSM, 15 FSM Intrm. 43, 46 n.1 (App. 2007).

Appellate Review ) Standard of Review ) Criminal Cases; Criminal Law and Procedure

      When the trial court issued findings of guilt for the defendantís violation of both 11 F.S.M.C. 532 and 11 F.S.M.C. 701, but only entered a conviction for his violation of 11 F.S.M.C. 701 and thereafter, the defendant was sentenced to a term of one year in jail, again, only for his conviction of 11 F.S.M.C. 701, the trial courtís finding of guilt for the defendantís violation of 11 F.S.M.C. 532 is not at issue in the appeal. Wainit v. FSM, 15 FSM Intrm. 43, 46 n.2 (App. 2007).

Criminal Law and Procedure ) Civil Rights Offenses; Criminal Law and Procedure ) Sentencing

      The maximum sentence for violating 11 F.S.M.C. 701 was raised in the 2001 criminal code from three years to ten years. Wainit v. FSM, 15 FSM Intrm. 43, 46 n.2 (App. 2007).

Appellate Review ) Standard of Review ) Criminal Cases

      On appeal, issues of law are reviewed de novo. Wainit v. FSM, 15 FSM Intrm. 43, 48 (App. 2007).

Criminal Law and Procedure ) Statutes of Limitation

       Nothing in Title 11 suggests that the Congress intended the tolling provision set forth at Section 105(3) to apply only to "public officers" acting at the national level. Indeed, when the context of the sections of the statutes relating to crimes against "public servants" and offenses committed by "public officials," clearly shows a congressional intent to limit those sections to federal officers and employees, the trial court correctly rejected efforts to limit the tolling provision for offenses committed by public officers at the national level, as Congress clearly has the power to define crimes and criminals in all states, including the statesí political subdivisions. Wainit v. FSM, 15 FSM Intrm. 43, 48 (App. 2007).

Criminal Law and Procedure ) Statutes of Limitation

      There is no authority to limit the power of Congress to define those persons affected by application of a statute of limitation, including any applicable tolling provisions. The Constitution vests in Congress the plenary power to enact laws of general application throughout the entire nation. The

[15 FSM Intrm. 45]

statute of limitations, including tolling provision for public officers, is one such law. Wainit v. FSM, 15 FSM Intrm. 43, 48 (App. 2007).

Criminal Law and Procedure ) Standard of Proof

      When the plain meaning of the defendantís letters clearly refers to both the state and national candidates in the March 2, 1999 election, that is sufficient evidence that there was a national election on March 2, 1999. Wainit v. FSM, 15 FSM Intrm. 43, 48-49 (App. 2007).

Criminal Law and Procedure ) Standard of Proof

      There was clearly sufficient evidence to support the trial courtís findings that the defendant sent his February 19 and 27, 1999 letters in his capacity as a public officer, specifically as the mayor of Udot Municipality, when the letters were signed: "T.C. Wainit, Mayor, Udot Fonuweisom." Wainit v. FSM, 15 FSM Intrm. 43, 49 (App. 2007).

Criminal Law and Procedure ) Standard of Proof

      When there is nothing present in the defendantís letters to suggest that either letter was sent by accident, by an unauthorized person, or was in any way unintentional on the defendantís part, the trial court was correct in its finding that the defendant acted willfully. Wainit v. FSM, 15 FSM Intrm. 43, 49 (App. 2007).

Criminal Law and Procedure ) Civil Rights Offenses; Criminal Law and Procedure ) Sentencing

      The trial courtís imposition of a one year sentence of imprisonment for a violation of 11 F.S.M.C. 701 was not an abuse of discretion when there is nothing in the record which suggests that the sentence was anything but reasonable in light of the evidence presented to the court at the time of sentencing, and when, at the time of the defendantís conduct giving rise to his conviction, a violation of 11 F.S.M.C. 701 could result in a period of incarceration of up to 3 years. Wainit v. FSM, 15 FSM Intrm. 43, 49 (App. 2007).

Criminal Law and Procedure ) Sentencing

      The trial court did not abuse its discretion when its consideration of the pre-sentence reportís inclusion of information concerning another criminal matter against the defendant obviously had no negative effect on the sentence imposed, nor did the trial courtís consideration of it prior to the imposition of the defendantís sentence reveal an abuse of discretion by the trial court. Wainit v. FSM, 15 FSM Intrm. 43, 49 (App. 2007).

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COURTíS OPINION

ALFRED T. GOODWIN, Temporary Justice, Presiding:

      Tadashi Wainit appeals his conviction and one year prison sentence for a violation of 11 F.S.M.C. 701.  He assigns error primarily to the trial courtís rejection of his defenses that his prosecution was

[15 FSM Intrm. 46]

barred by the relevant statute of limitations, and that the statute of limitations was itself an unconstitutional enactment by Congress.  He also challenges the sufficiency of the evidence that culminated in his conviction as well as the sentence imposed by the trial court.  For the reasons set forth below, we affirm the trial courtís judgment in all respects.

I.  Background

      On February 19, 1999, Wainit, who was then serving as the elected mayor of Udot Municipality, disseminated a letter to a numerous people, including John Fritz, a constituent, and part-time municipal judge.  Wainitís letter, which was on Udot Municipality stationery, not only instructed the recipient how to vote in the upcoming March 2, 1999 election, but also threatened the withholding of governmental assistance if the recipient failed to comply with the instructions.  The March 2, 1999 election included both state and national candidates.

      Wainitís February 19, 1999 letter was followed by another letter on February 27, 1999.  This letter was addressed specifically to John Fritz, who had written to Wainit to advise him that not only would he not comply with Wainitís February 19, 1999 letter, but that as a result of Wainitís letter he was resigning from his position as a municipal judge for Udot Municipality.  Wainitís February 27, 1999 letter accepted Mr. Fritzís resignation.

      The trial court found that Wainitís two letters, read together, clearly threatened negative economic and employment consequences if his instructions were not followed.  The court found, as a fact, that Wainit willfully intended to, and did, threaten harmful consequences if the recipient did not follow the instructions set forth in his letters.  The trial court also found that the letters were issued in connection with the national election held on March 2, 1999.  From there, the trial court concluded that Wainitís conduct violated Section 701 of Title 11 of the FSM Code. In turn, the trial court sentenced Wainit to a term of one year imprisonment.2

[15 FSM Intrm. 47]

      The applicable statute of limitations to Wainitís prosecution, as set forth in the 1981 version of the FSM Code, at 11 F.S.M.C. 105, requires that a prosecution commence within three years of the alleged offense. However, significant to this case, this provision of the FSM Code goes on to provide that the statute of limitations is tolled for "[a]ny 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. . . ." 3

      The government filed its first criminal information against Wainit on November 5, 2002. This was within the time prescribed by the statute of limitations. That prosecution, however, was dismissed without prejudice when the trial court granted a defense motion seeking to disqualify the two prosecutors who signed the criminal information from further involvement in the case. See FSM v. Wainit, 12 FSM Intrm. 360 (Chk. 2004).

      The second criminal information filed against Wainit, which alleged the exact same violations of law as the first criminal information ) Sections 532 and 701 of Title 11 of the FSM Code ) was filed on August 3, 2004, five and one half years after Wainit sent the letters on which the charges were based. Wainit moved for a dismissal of the second criminal information, contending that his prosecution was barred by the statute of limitations, and also that it was brought without probable cause.  Both motions were denied. [FSM v. Wainit, 13 FSM Intrm. 532 (Chk. 2005).]  Thereafter, the case was tried for three days, ending in findings of guilt on both charges. See supra note 2, at page 46.

II.   Statute of Limitation for Public Officers

      The prosecution of Wainit for the above-described conduct would have been time barred, and his motion to dismiss favorably granted, but for the provision of 11 F.S.M.C. 105(3), which tolls the running of the statute of limitations for any offense committed by a "public officer" during his term of office and for two years thereafter.  Accordingly, Wainitís principal line of attack on his conviction is directed at the trial courtís finding that Wainit was a "public officer" within the meaning of this tolling provision set forth in the applicable statute of limitations.

[15 FSM Intrm. 48]

      Although the terms "public servant" and "public official" are defined in the FSM Code to apply only to national officials and employees, see 11 F.S.M.C. 104(11), the term "public officer" is not defined in the FSM Code.  The appeal nonetheless argues that the term "public officer" should not include state and local officers, such as the mayor of Udot Municipality.  The trial judge rejected this argument, noting that the term in question was unambiguous and had been intentionally chosen by the legislature to include a wide range of persons who, because of their public office, could use the power of the office to conceal misconduct and to frustrate the prosecution of criminal offenses committed while the officer held the office.  In concluding that the term "public officer" included local officials, such as the mayor of Udot Municipality, the trial judge relied upon the common understanding of the term, including the dictionary definition set forth in Websterís Third New International Dictionary 1836 (2002), and Blackís Law Dictionary 978 (5th Ed. 1979).

      On appeal, we review issues of law de novo. George v. Nena, 12 FSM Intrm. 310, 313 (App. 2004); Tulensru v. Wakuk, 10 FSM Intrm. 128, 132 (App. 2001).  Nothing in Title 11 of the FSM Code suggests that the Congress intended the tolling provision set forth at Section 105(3) to apply only to "public officers" acting at the national level. Indeed, in the sections of the statutes relating to crimes against "public servants" and offenses committed by "public officials," the context clearly shows a congressional intent to limit those sections to federal officers and employees.  The trial court correctly rejected the appellantís efforts to limit the tolling provision for offenses committed by public officers at the national level, as Congress clearly has the power to define crimes and criminals in all states, including the statesí political subdivisions. In doing so, Congress has the power to enact and amend statutes of limitation relating to all prosecutions, local and nationwide.

      In conclusion, we find no error in the trial courtís holding that Wainit was a "public officer" within the meaning of the tolling provision set forth in the statute of limitations at 11 F.S.M.C. 105(3), and that his prosecution, at issue in this appeal, was timely filed.

III.   Constitutional Question

      The appellant also argued that Congress had no constitutional power to enact the relevant tolling provision in the statute of limitations that would apply to local public officials, as such an enactment would violate the Constitutionís principle of federalism.  This argument was to the effect that a special tolling provision applying to all "public officers," both state and national, would somehow violate the statesí right to define and control the officers of its political subdivisions.

      This argument is without merit.  The appellant cited no authority, and we have found none, limiting the power of Congress to define those persons affected by application of a statute of limitation, including any applicable tolling provisions.  The Constitution vests in Congress the plenary power to enact laws of general application throughout the entire nation.  The statute of limitations at issue here, including the tolling provision found at Section 105(3) of Title 11 of the FSM Code, is one such law.

      Thus, we find that the trial court committed no constitutional error in applying the tolling provision found at 11 F.S.M.C. 105(3) to the facts of this case.

IV.  Sufficiency of the Evidence

      The appeal further asserts a number of claims that the government did not prove by sufficient evidence the various elements of the crimes with which Wainit was charged with violating.  First, the appeal asserts that the government failed to prove that the March 2, 1999 election was a national election, a necessary element towards establishing a violation of both Sections 532 and 701 of Title 11 of the FSM Code.

[15 FSM Intrm. 49]

      The appeal, however, ignores the plain meaning of Wainitís letters, which clearly reference both the state and national candidates in the March 2, 1999 election. Tulensru, 10 FSM Intrm. at 132 (test as to adequacy of the findings is whether they are sufficiently comprehensive and pertinent to the issue to form a basis for the decision); Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 462 (App. 2000) (trial courtís factual findings adequately supported by substantial evidence in the record cannot be set aside on appeal).

      Second, the appeal challenges the trial courtís findings that Wainit sent his February 19 and 27, 1999 letters in his capacity as a public officer, specifically as the mayor of Udot Municipality. This challenge, however, ignores entirely the fact that the letters were signed: "T.C. Wainit, Mayor, Udot Fonuweisom."  This evidence was clearly sufficient to support a finding of guilt. Worswick, 9 FSM Intrm. at 462 (finding is clearly erroneous when the reviewing court, upon reviewing the entire record, is of the definite conviction that a mistake has been made).

      Lastly, the appeal argues that there was no evidence that Wainit acted willfully, a requirement need to establish a violation of both Sections 532 and 701 of Title 11 of the FSM Code.  There is nothing present in Wainitís letters, however, to suggest that either letter was sent by accident, by an unauthorized person, or was in any way unintentional on the part of Wainit.  Thus, the trial court was correct in its finding that Wainit acted willfully.  Johnny v. FSM, 8 FSM Intrm. 203, 207 (App. 1997) (appellate courts will not reweigh evidence presented at trial).

      Thus, we conclude that the trial court did not commit any error with respect to the weight and sufficiency of the evidence presented at trial in the underlying case at issue in this appeal.

V.   Sentencing

      Lastly, the appeal argues that the trial courtís imposition of a one year sentence of imprisonment for a violation of 11 F.S.M.C. 701 was an abuse of discretion.  There is nothing in the record of this case, however, which suggests that this sentence was anything but reasonable in light of the evidence presented to the court at the time of sentencing.  Indeed, at the time of Wainitís conduct giving rise to his conviction, a violation of 11 F.S.M.C. 701 could result in a period of incarceration of up to 3 years.  See supra note 2 at 46.

      Although the appeal objects to the pre-sentence reportís inclusion of information concerning another criminal matter against Wainit that was commenced after the prosecution in this case, see FSM v. Wainit, Crim. No. 2004-1512, that matter was a matter of public record that involved numerous counts of criminal conduct which culminated in a criminal conviction and imposition of a 2 year jail sentence, suspended, except for time served.  The trial courtís consideration of this matter obviously had no negative effect on the sentence imposed, nor did the trial courtís consideration of it prior to the imposition of Wainitís sentence in this case reveal an abuse of discretion by the trial court. Kosrae Island Credit Union v. Palik, 10 FSM Intrm. 134, 138 (App. 2001) (an abuse of discretion occurs when the courtís decision is clearly unreasonable, arbitrary or fanciful).

VI.  Conclusion

      In conclusion, and for the reasons set forth above, the judgment of the trial court is affirmed in all respects.

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Footnotes:

1.  Under 11 F.S.M.C. 701(1), a person commits a crime if he or she willfully, whether or not acting under the color of law, deprives another of, or injures, oppresses, threatens, or intimidates another in the free exercise or enjoyment of, or because of his or her having so exercised any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia, the laws of the Trust Territory of the Pacific Islands, or the Constitution or laws of the United States of America which are applicable to the Federated States of Micronesia. A person convicted under this section shall be imprisoned for not more than ten years. 11 F.S.M.C. 701(2). A person who deprives another of any right or privilege protected under this section shall be civilly liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, without regard to whether a criminal case has been brought or conviction obtained. In an action brought under this section, the court may award costs and reasonable attorney's fees to the prevailing party. 11 F.S.M.C. 701(3).

2.  The trial court also concluded that Wainitís conduct violated Section 532 of Title 11 of the FSM Code, which prohibits threatening unlawful harm to a person to influence his or her decision, opinion, recommendation, vote, or other exercise of discretion as a public official, or a voter in any election. Although the trial court issued findings of guilt for Wainitís violation of both 11 F.S.M.C. 532 and 11 F.S.M.C. 701, the trial court only entered a conviction for Wainitís violation of 11 F.S.M.C. 701. Thereafter, Wainit was sentenced to a term of one year in jail, again, only for his conviction of 11 F.S.M.C. 701. Thus, the trial courtís finding of guilt for Wainitís violation of 11 F.S.M.C. 532 is not at issue in this appeal. See Laion v. FSM, 1 FSM Intrm. 503,529 (App. 1984) (trial court may in its discretion permit a case involving separate charges based upon the same act to proceed to trial; however, the court should render a decision and enter a conviction only on the more major of the crimes proven beyond a reasonable doubt. After an appeal of the more major charge is complete, the lesser charge may be dismissed. If conviction on the greater charge is reversed on appeal, the trial court may then find it necessary to enter a judgment on the alternative charge).

With regard to Wainitís sentence, the maximum term of imprisonment he faced for his violation of 11 F.S.M.C. 701(1) was three (3) years.  It should be further noted that on January 25, 2001, Section 701(2) of Title 11 of the FSM Code was amended to provide that a person convicted of violating Section 701 shall be punished by imprisonment for not more than ten (10) years.  FSM Pub. L. No. 11-72, ß 211.  Section 4(2) of Public Law 11-72, however, provides that prosecutions for offenses committed before the effective date are governed by the prior law, which is continued as if this act were not in force.  Because the acts that are at issue in the underlying case in this appeal occurred in February 1999, the 2001 amendment to 11 F.S.M.C. 701 does not apply, nor was it applied by the trial court.

3.  On January 25, 2001, Section 105(3)(b) of Title 11 of the FSM Code was repealed in its entirety. In its place, Congress provided the following tolling provision:

                               (5)   The time limitation set by the statute does not run:

                               (a)   during any time when the accused is continuously absent from the

                               complaining jurisdiction or has no reasonably determinable place of abode or

                                work within the jurisdiction; or

(b)   during any time when a prosecution against the accused for the same conduct is pending in this jurisdiction.

FSM Pub. L. No. 11-72, ß 7(5) (to be codified at 11 F.S.M.C. 105(5)) of Public Law 11-72, however, provides that prosecutions for offenses committed before the effective date are governed by the prior law, which is continued as if this act were not in force.   Because the acts that are at issue in the underlying case in this appeal occurred in February 1999, the 2001 version of 11 F.S.M.C. 701 does not apply, nor was it applied by the trial court.

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