FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Masis, 15 FSM Intrm. 172 (Chk. 2007)

[15 FSM Intern. 172]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

MATTSON MASIS,

Defendant.

CRIMINAL CASE NO. 2007-1501

ORDER OF DISMISSAL

Dennis K. Yamase

Associate Justice

Hearing:  June 26, 2007

Decided:  July 3, 2007

APPEARANCES:

For the Plaintiff:         Julius J. Sapelalut, Esq.

                                  Chief of Litigation

                                  Office of the Chuuk Attorney General

                                  P.O. Box 189

                                  Weno, Chuuk   FM   96942
 

For the Defendant:    Harry A. Seymour, Esq.

                                  Office of the Public Defender

                                  P.O. Box 245

                                  Tofol, Kosrae   FM   96944
 

[15 FSM Intrm 173]

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HEADNOTES

Weapons

       A Philippine slingshot consists of a forked piece of wood to which is attached an elastic that is used to propel a piece of sharpened metal that has been crafted into a dart-like object, often feathered at one end for aerial stability. It is this metal dart-like object that transforms a regular (not particularly dangerous) slingshot, which uses stones, into a dangerous Philippine slingshot. FSM v. Masis, 15 FSM Intrm. 172, 174 (Chk. 2007).

Weapons

      A Philippine slingshot is a dangerous device within the statutory definition. FSM v. Masis, 15 FSM Intrm. 172, 175 (Chk. 2007).

Statutes ) Construction

      Statutes are presumed to be constitutional. FSM v. Masis, 15 FSM Intrm. 172, 175 (Chk. 2007).

Federalism ) National/State Power; Weapons

      The national government has the power to ban the possession and use of Philippine slingshots in those places under its jurisdiction and in those circumstances that make the offense "inherently national in character" such as when the offense is committed in the FSM Exclusive Economic Zone or in FSM airspace, or on FSM-flagged vessels, or is committed against an FSM public servant in connection with that servantís service. FSM v. Masis, 15 FSM Intrm. 172, 175-76 (Chk. 2007).

Federalism ) National/State Power; Weapons

      The regulation of possession of firearms and ammunition involved a national activity or function because of the international commerce aspects of their manufacture and movement together with the national government interest in protecting the national security under the national defense clause, and that these, in combination, provided the national governmentís jurisdictional basis to regulate the possession of firearms and ammunition. FSM v. Masis, 15 FSM Intrm. 172, 176 (Chk. 2007).

Criminal Law and Procedure ) National Crimes; Federalism ) National/State Power

      In an examination to determine whether it is a national crime, the focus is: Does the regulation involve a national activity or function, or is it one of an indisputably national character? FSM v. Masis, 15 FSM Intrm. 172, 176 (Chk. 2007).

Constitutional Law ) Interstate and Foreign Commerce; Weapons

      When the imported materials in a Philippine slingshot are not manufactured abroad with the intent that they be assembled into a Philippine slingshot but are manufactured abroad as other articles or as parts of other articles and are legitimately imported for other purposes but are then recycled into Philippine slingshot parts, a Philippine slingshot is manufactured locally, out of locally available materials. It does not pass through foreign or interstate commerce. That some of those materials were once imported as something else to be used for some other purpose is not enough to implicate the national governmentís activity or function to regulate foreign commerce. FSM v. Masis, 15 FSM Intrm. 172, 176 (Chk. 2007).

Federalism ) National/State Power; Weapons

      The possession or use of a Philippine slingshot does not implicate the national governmentís functions and activities in the sphere of national defense or security and the connection, if there is one,

[15 FSM Intrm 174]

is too tenuous to give the national government authority to regulate Philippine slingshots. FSM v. Masis, 15 FSM Intrm. 172, 176 (Chk. 2007).

Federalism ) National/State Power; Weapons

      The national government certainly has the power to criminalize possession or use of explosive, incendiary or poison gas bomb, grenade, mine or similar devices on the same basis that it has the power to regulate the possession and use of firearms and ammunition because these items definitely implicate both national defense and security and foreign commerce interests on which the Jano court concluded that the national government had the authority to regulate firearms and ammunition. But Philippine slingshots do not. FSM v. Masis, 15 FSM Intrm. 172, 176 (Chk. 2007).

Federalism ) National/State Power; Weapons

      Weapons control has long been recognized as a subject on which both the national and state governments may legislate. It is thus within the power of the State of Chuuk to regulate the possession and use of Philippine slingshots. If it has not done so, that does not mean that it cannot. FSM v. Masis, 15 FSM Intrm. 172, 177 (Chk. 2007).

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COURTíS OPINION

DENNIS YAMASE, Associate Justice:

      On June 1, 2007, defendant Mattson Masis served, and on June 12, 2007, filed his motion to dismiss.  The government filed and served its opposition on June 12, 2007.  Masis supplemented his motion on June 25, 2007, and the motion was heard on June 26, 2007.  The motion is granted. The courtís reasons follow.

I.

      Masis is charged with the offenses of possession of a dangerous device in violation of 11 F.S.M.C. 1002 and the use of a dangerous device in violation of 11 F.S.M.C. 1023(7).  The information alleges that the dangerous device was a contraption known in Chuuk as a "Philippine slingshot."

      A Philippine slingshot consists of a forked piece of wood to which is attached an elastic that is used to propel a piece of sharpened metal that has been crafted into a dart-like object, often feathered at one end for aerial stability.  According to the government, it is this metal dart-like object that transforms a regular (not particularly dangerous) slingshot, which uses stones, into a dangerous Philippine slingshot.  The government also asserts that Philippine slingshots are the deadly weapon of first choice in Chuuk and are a growing problem.  From July 1999 to July 2005, a total of 353 people, some of whom died, were treated at Chuuk Hospital for impalement injuries caused by Philippine slingshot darts.

II.

      Masis moves to dismiss the charges against him on the ground that, since the 1991 constitutional amendment deprived the national government of jurisdiction over major crimes, the national governmentís remaining jurisdiction over national crimes does not give it the power to criminalize the possession or use of Philippine slingshots, even though the national government does have the power to criminalize the possession and use of firearms.

[15 FSM Intrm 175]

      The government contends that it has the constitutional power to regulate and criminalize possession and use of Philippine slingshots on the same basis that it has the power to regulate firearms ) under the national governmentís power to regulate foreign and interstate commerce and its power to provide for the national defense.  The government contends that Congress did not exceed its authority by creating a definition of "dangerous device" that includes Philippine slingshots and that Congress intended to ban items such as the Philippine slingshot.  The government further contends that Philippine slingshots are beyond the power of the State of Chuuk to regulate because the Chuuk criminal code does not contain any weapons control provisions.

III.

      The Revised Criminal Code Act defines a dangerous device as

any explosive, incendiary or poison gas bomb, grenade, mine or similar device, switch or gravity blade knife, blackjack, sandbag, metal, wooden or sharkís tooth knuckles, dagger, any instrument designed or redesigned for use as a weapon, or any other instrument which can be used for the purpose of inflicting bodily harm and which under the circumstances of its possession serves no lawful purpose.

FSM Pub. L. No. 11-72, ß 117(3), 11th Cong., 3rd Spec. Sess. (2000) (to be codified at 11 F.S.M.C. 1004(3)).  This definition is unchanged from the previous Criminal Code.  See 11 F.S.M.C. 1204(3) (1987 Supp.).

      A Philippine slingshot is a dangerous device within the statutory definition.  See Joker v. FSM, 2 FSM Intrm. 38, 47-48 (App. 1985).  The Joker court concluded that Congress had the power to regulate dangerous devices under its then power to define major crimes, id. at 42-44, and remanded the matter to the trial court for it to determine whether a Philippine slingshot qualified as a dangerous device because it was designed as a weapon, or because it had the potential of inflicting bodily harm and under the circumstances its possession served no lawful purpose, or both, id. at 47-48.  The trial court then found that "the dart used was an instrument which can be used for the purpose of inflicting bodily harm and which under the circumstances of its possession served no lawful purpose."  Special Finding at 1 (Crim. No. 1983-1501 Oct. 18, 1985).

      The court concludes that a Philippine slingshot is a dangerous device.  The question before the court is thus whether Congress has the constitutional power to enact a statute to criminalize the possession or use of Philippine slingshot, that is, this particular type of dangerous device, now that it no longer has the power to define major crimes.  Statutes are presumed to be constitutional.  Urusemal v. Capelle, 12 FSM Intrm. 577, 586 (App. 2004); Jano v. FSM, 12 FSM Intrm. 569, 572-73 (App. 2004) (fundamental principle of statutory interpretation is that when a statute can be read in two ways, one raising constitutional issues and the other interpreting the language as affecting matters clearly within Congressís constitutional reach, the latter interpretation should prevail so that the constitutional issue is avoided).

      Certainly, the national government has the power to ban the possession and use of Philippine slingshots in those places under its jurisdiction and in those circumstances that make the offense "inherently national in character" such as when the offense is committed in the FSM Exclusive Economic Zone or in FSM airspace, or on FSM-flagged vessels, or is committed against an FSM public

[15 FSM Intrm 176]

servant in connection with that servantís service.  See FSM Pub. L. No. 11-72, ß 6(7)(b) (to be codified at 11 F.S.M.C. 104(7)(b)).  None of these situations apply in this case.  The question before the court is thus whether the national government can ban the possession and use of Philippine slingshots any place in the nation and under any circumstances whatsoever.

      The prosecution urges the court to hold that it does.  For this proposition, it relies primarily on the appellate courtís reasoning of Jano v. FSM, 12 FSM Intrm. 569 (App. 2004).  In Jano, the accused contended that the national government had lost the power to regulate firearms and ammunition when the national government lost its power to define, prosecute, and punish major crimes.  The Jano court rejected that argument.  It held that the regulation of possession of firearms and ammunition involved a national activity or function because of the international commerce aspects of their manufacture and movement together with the national government interest in protecting the national security under the national defense clause, and that these, in combination, provided the national governmentís jurisdictional basis to regulate the possession of firearms and ammunition.  Jano v. FSM, 12 FSM Intrm. 569, 576 (App. 2004).

      The prosecution contends that the same reasoning applies to Philippine slingshots ) that because the elastic used to propel the dart and the metal that is crafted into the dart-like object are both entirely imported materials and national security is involved, the national government has the power to regulate Philippine slingshots.  The court cannot agree.  In an examination to determine whether it is a national crime, the focus is:  Does the regulation involve a national activity or function, or is it one of an indisputably national character?  Id. at 575.

      Firearms and ammunition are primarily, if not exclusively, manufactured abroad and then imported into the FSM as goods intended for the use as firearms or ammunition.  Foreign commerce and customs regulations and inspection are national activities.  But the imported materials in a Philippine slingshot are not manufactured abroad with the intent that they be assembled into a Philippine slingshot.  They are manufactured abroad as other articles or as parts of other articles and are legitimately imported for other purposes.  They are then recycled into Philippine slingshot parts.  Elastic from something else is used to make a slingshot that can propel either stones or metal darts.  Metal that has been imported as rebars, spikes, nails or other cylindrical pieces of metal are sharpened and fashioned into a Philippine slingshot dart-like projectile.  Thus a Philippine slingshot is manufactured locally, out of locally available materials.  It does not pass through foreign or interstate commerce.  That some of those materials were once imported as something else to be used for some other purpose is not enough to implicate the national governmentís activity or function to regulate foreign commerce.

      The government also contends that national defense concerns are implicated.  It asserts that Philippine slingshots are a convenient weapon for terrorists because, unlike firearms, they are silent when fired, cheap to design and obtain, and easily concealed in pants pockets or baskets.  This connection, if there is one, is too tenuous to give the national government authority to regulate Philippine slingshots.  The possession or use of a Philippine slingshot does not implicate the national governmentís functions and activities in the sphere of national defense or security.

      However, the national government certainly has the power to criminalize possession or use of "explosive, incendiary or poison gas bomb, grenade, mine or similar device(s)" on the same basis that it has the power to regulate the possession and use of firearms and ammunition.  These items definitely implicate both national defense and security and foreign commerce interests on which the Jano court concluded that the national government had the authority to regulate firearms and ammunition.  Philippine slingshots do not.

      Lastly, the government contends that the national government may regulate Philippine slingshots

[15 FSM Intrm 177]

because it is a power beyond the power of the State of Chuuk to regulate since the Chuuk criminal code does not contain any weapons control provisions.  Weapons control has long been recognized as a subject on which both the national and state governments may legislate.  See Joker, 2 FSM Intrm. at 44.  It is thus within the power of the State of Chuuk to regulate the possession and use of Philippine slingshots.  If it has not done so, that does not mean that it cannot.

IV.

      Accordingly, defendant Mattson Masisís motion to dismiss the charges against him is granted.

______________________________

Footnotes:

1.  Whether any of the Trust Territory weapons control statute, 63 TTC 551 et seq., could have become Chuuk state law under the Chuuk Constitutionís Transition Clause, Chk. Const. art. XV, ß 9, is not discussed.

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