FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Louis, 15 FSM Intrm. 206 (Pon. 2007)

[15 FSM Intrm. 206]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

WAYNER LOUIS, AND PERSUS ANDREW,

Defendants.

CRIMINAL CASE NO. 2007-500

ORDER REGARDING DEFENDANT PERSUS ANDREW’S

PENDING MOTIONS; MEMORANDUM

Andon L. Amaraich

Chief Justice

Hearing:  July 17, 2007

Decided:  August 21, 2007

APPEARANCES:

For the Plaintiff:         Pole Atanraoi, Esq.

                                  FSM Assistant Attorney General

                                  P.O. Box PS-105

                                  Palikir, Pohnpei   FM   96941
 

For the Defendant:    Harry A. Seymour, Esq.

      (Andrew)             Office of the Public Defender

                                  P.O. Box 245

                                  Tofol, Kosrae   FM   96944

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HEADNOTES

Criminal Law and Procedure ) Discovery

      While neither discovery requests nor responses under Criminal Rule 16 should be filed with the court except to the extent necessary to enable the court to perform its regulatory role under Rule 16(d), the mere filing of discovery disclosures does not result in the admission as evidence of the documents filed. In order to be admitted as evidence, the plaintiff will have to introduce each document during trial in conformance with the Rules of Evidence. Thus, the plaintiff’s filing of its disclosures does not result in any prejudice to the defendant and his motion to strike the discovery filings will be denied. FSM v. Louis, 15 FSM Intrm. 206, 208 (Pon. 2007).

Criminal Law and Procedure ) Interrogation and Confession

      Evidence obtained as a result of the defendant being detained for more than 24 hours without being charged or released or obtained when the defendant was not properly informed of his rights must be excluded. FSM v. Louis, 15 FSM Intrm. 206, 210 (Pon. 2007).

[15 FSM Intrm 207]

Criminal Law and Procedure ) Interrogation and Confession

      When none of the evidence the defendant seeks to suppress was obtained as a result of his being detained for more than 24 hours without being charged or released since his interview by a state police officer took place approximately 7 hours after he was arrested and therefore before the expiration of the 24 hour period and since his interview with a national police officer took place two days after he was charged in the Pohnpei Supreme Court and while he was in state police custody pursuant to a Pohnpei Supreme Court order, the motion to suppress those statements will be denied. FSM v. Louis, 15 FSM Intrm. 206, 210 (Pon. 2007).

Criminal Law and Procedure ) Interrogation and Confession

      A defendant’s contention that the state and national police failed to properly inform him of his rights is without merit where he was properly informed in Pohnpeian of his rights, including the right to remain silent and the right to counsel, three times when a state officer read him his rights in Pohnpeian as the officer arrested him in the morning, when the state officer read him his rights in Pohnpeian before his interview that afternoon, and when a national officer read him his rights in English and explained each right in Pohnpeian before his later interview, and thus his motion to suppress will be denied. FSM v. Louis, 15 FSM Intrm. 206, 210 (Pon. 2007).

Federalism ) National/State Power; Weapons

      It has long been recognized that both the national and state governments may enact legislation regulating the possession of firearms. There is nothing particularly absurd about a weapons control scheme that recognizes that both the national and the state governments have an interest in controlling the possession, use and sale of weapons. FSM v. Louis, 15 FSM Intrm. 206, 211 (Pon. 2007).

Federalism ) National/State Power; Weapons

     Congress has an independent jurisdictional basis for the Weapons Control Act under FSM Constitution Article IX, Section 2(g) on foreign and interstate commerce and Article IX, Section 2(a) on national defense. FSM v. Louis, 15 FSM Intrm. 206, 212 (Pon. 2007).

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

     Congress has always had the power to define national crimes. The power to define national crimes is inherent in the national government and existed before the 1991 amendment made the power express. FSM v. Louis, 15 FSM Intrm. 206, 212 (Pon. 2007).

Federalism ) National/State Power; Weapons

     The 1991 constitutional amendment did not proscribe Congress’s authority to enact legislation pursuant to its independent authority under the national defense and foreign and interstate commerce clauses. Thus, the 1991 amendment did nothing to curtail Congress’s authority to regulate the possession of firearms. FSM v. Louis, 15 FSM Intrm. 206, 212 (Pon. 2007).

Federalism ) National/State Power; Weapons

     Congress does not lack the authority to regulate possession of firearms because it was the framers’ clear intent that commerce within a particular state should be regulated locally since there is an international commerce aspect to the regulation of possession of firearms and ammunition that is related to its manufacture outside of the FSM and to its movement through the nation’s customs and immigration borders. FSM v. Louis, 15 FSM Intrm. 206, 212 (Pon. 2007).

Federalism ) National/State Power; Weapons

     In concluding that Congress has the authority to regulate the possession of firearms as part of its power to provide for the national defense, the court does not focus on the defendant’s intended use of the firearm at issue, but instead focuses on the potential uses of firearms in general. FSM v. Louis,

[15 FSM Intrm 208]

15 FSM Intrm. 206, 212 (Pon. 2007).

Federalism ) National/State Power; Weapons

     Congress’s authority to regulate firearms is not dependent on the defendant’s subjective intent because the national government interest in regulating the possession of firearms and ammunition in order to provide for the national security in combination with the international commerce aspects provides a jurisdictional basis for the national government’s regulation of the possession of firearms and ammunition. Congress’s jurisdiction over the possession of firearms is not tied to the intent of a particular defendant. FSM v. Louis, 15 FSM Intrm. 206, 212 (Pon. 2007).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

       On July 17, 2007, the Court conducted an evidentiary hearing and received oral argument on three motions filed by defendant Persus Andrew:  (1)  motion to strike plaintiff’s discovery answers from the Court’s file; (2)  motion to suppress certain evidence; and (3)  motion to dismiss all charges against him. Harry Seymour, of the Public Defender’s Office, appeared on behalf of Persus Andrew.  Pole Atanraoi, of the FSM Attorney General’s Office, appeared on behalf of plaintiff. Beauleen Carl-Worswick, FSM Chief Public Defender, appeared on behalf of defendant Wayner Louis.  For the reasons that follow, the Court denies each of defendant Andrew’s motions.

I.   Motion to Strike Plaintiff’s Discovery Answers

     On May 7, 2007, Andrew served on plaintiff his discovery request.  On May 14, 2007, plaintiff filed with the Court its disclosure of evidence in response to Andrew’s discovery requests.  Andrew has moved the Court to strike from the Court’s file plaintiff’s disclosure of evidence. Andrew bases his motion on his view that the filing of plaintiff’s disclosure of evidence violated FSM Crim. R. 16 and that the disclosures "must be stricken from the court file until each piece of evidence is qualified and properly admitted at trial."  Andrew’s motion misconstrues the effect of filing discovery disclosures.  While the commentary to FSM Crim. R. 16 indicates that "neither discovery requests nor responses under Rule 16 should be filed with the court except to the extent necessary to enable the court to perform its regulatory role under Rule 16(d)", the mere filing of discovery disclosures does not result in the admission as evidence of the documents filed.  In order to be admitted as evidence, plaintiff will have to introduce each document during trial in conformance with the Rules of Evidence.  Thus, plaintiff’s filing of its disclosures did not result in any prejudice to defendant Andrew.  The Court denies Andrew’s motion to strike.

II.   Motion to Suppress Evidence

     Defendant Andrew has also moved the Court to suppress evidence obtained by the state and national police.  The Court denies Andrew’s motion for the reasons that follow.

     Based on the proceedings during the evidentiary hearing, including testimony by Pohnpei State police officers Jimmy Peter and Yosimy Carl and national police officer Takasy Reim, as well as the parties’ moving and opposition papers, the Court makes the following findings of fact.

     Defendant Andrew was arrested by Pohnpei State police officer Jimmy Peter on December 4, 2006 at approximately 9:00 a.m. at the Pohnpei State police station.  Upon arresting Andrew, officer

[15 FSM Intrm 209]

Peter read to Andrew his rights from a standardized form, which was written in Pohnpeian and included, among other rights, the right to remain silent and the right to counsel.  Later that day, at approximately 4:00 p.m., Andrew was interviewed by Pohnpei State police officer Yosimy Carl. Prior to conducting the interview, officer Carl read to Andrew his rights in Pohnpeian.  The interview by officer Carl took place approximately 7 hours after Andrew was arrested.  Officer Carl took notes during the interview.

     Charges were not filed in Pohnpei Supreme Court against Andrew until the afternoon of the following day, December 5, 2006, which was more than 24 hours after Andrew was arrested. Around 4:00 p.m. on December 5, 2006, the Pohnpei Supreme Court, Trial Division, conducted an initial appearance at which the court ordered that defendant Andrew be placed in custody until surety of $200 was posted for him.

      On December 7, 2006 Andrew was still in the custody of the Pohnpei State police pursuant to the Pohnpei Supreme Court’s December 5, 2006 order.  Sometime on December 7, 2006, FSM police officer Kelly Samuel interviewed defendant Andrew. FSM police officer Takasy Reim accompanied officer Samuel on December 7th and was present during officer Samuel’s interview with defendant Andrew.  Before conducting the interview, officer Samuel read an advice of rights form to defendant Andrew.  The advice of rights form was written in English.  On December 7, 2006, officer Samuel signed the advice of rights form, which indicated that he read and explained to Andrew his rights in English.  Although the advice of rights form indicates that officer Samuel read and explained the form in English, officer Reim, who was present during the interview, testified that officer Samuel read the advice of rights form in English and explained it in Pohnpeian.  The Court does not have any reason to doubt the veracity of officer Reim’s testimony and therefore finds that officer Samuel explained the advice of rights form to defendant Andrew in Pohnpeian.  Officer Samuel took notes during his interview with defendant Andrew.

      In defendant Andrew’s motion, he requests that the Court suppress any oral statements Andrew made to the state and national police officers, a written statement signed by Andrew, notes taken by state and national police officers, and any evidence later obtained as a result of the foregoing.  Andrew bases his motion on the grounds that  (1)  he was detained for more than 24 hours without being charged or released in violation of 12 F.M.S.C. 218 subsections (4) and (5) and the evidence obtained as a result of this violation must be excluded under 12 F.M.S.C. 220; and (2)  he was not properly informed of his rights.

12 F.S.M.C. 218(4) states:

     In any case of arrest, or arrest for examination, as provided in subsection (4) of section 211 of this chapter, it shall be unlawful to . . . fail either to release or charge such arrested person with a criminal offense within a reasonable time, which under no circumstances shall exceed 24 hours.

12 F.M.S.C. 218(5) states:

     In any case of arrest, or arrest for examination, as provided in subsection (4) of section 211 of this chapter, it shall be unlawful to . . . fail to either release the accused or to bring him before a court, judge, or judicial officer for a bail hearing within a reasonable time, which under no circumstances shall exceed 24 hours after his arrest, unless the location of the nearest court makes such appearance impossible.  When the location of the court makes such appearance impossible, the municipal or community

[15 FSM Intrm 210]

     court judge for the area where the person was arrested shall be immediately notified by the arresting person or officer and shall set any conditions for the release of the person that the judge believes will protect the public and will insure the presence of the person when transportation to the nearest court becomes possible.  The person arrested shall be transported to the nearest court without unnecessary delay.

12 F.S.M.C. 220 provides for the exclusion of evidence obtained as a result of a violation of the provisions of Title 12:

     No violation of the provisions of this title shall in and of itself entitle an accused to an acquittal, but no evidence obtained as a result of such violation shall be admissible against the accused; provided, that any person detained in custody in violation of any provision of this title may, upon motion by any person in his behalf, and after such notice as the court may order, be released from custody by the court named in the warrant, or before which he has been held to answer.  The release shall be upon such terms as the court may deem law and justice require.  The relief authorized by this section shall be in addition to, and shall not bar, all forms of relief to which the arrested person may be entitled by law.

      Thus, the evidence defendant Andrew seeks to suppress must be excluded only if it was obtained as a result of his being detained for more than 24 hours without being charged or released in violation of Sections 218(4) and (5).

      None of the evidence Andrew seeks to suppress was obtained as a result of his being detained for more than 24 hours without being charged or released.  Andrew’s interview by state police officer Carl took place in the afternoon of December 4, 2006, approximately 7 hours after Andrew was arrested.  Andrew’s interview with national police officer Samuel took place on December 7, 2006, two days after Andrew was charged in the Pohnpei Supreme Court and while Andrew was in the custody of the state police pursuant to the December 5, 2006 order of the Pohnpei Supreme Court.

     The statements made by Andrew to the state police on the afternoon of December 4, 2006 were not obtained as a result of Andrew being detained for more than 24 hours without being charged or released because the statements were made prior to the expiration of the 24 hour period.  Andrew’s statements to the national police on December 7, 2006 were also not obtained as a result of Andrew being detained for more than 24 hours without being charged or released because Andrew was charged in Pohnpei Supreme Court on December 5, 2006 – two days before his interview with FSM officer Samuel.

     Andrew’s contention that the state and national police failed to properly inform him of his rights is also without merit.  Andrew was properly informed in Pohnpeian of his rights – including the right to remain silent and the right to counsel – three times.  State officer Peter read to Andrew his rights in Pohnpeian when officer Peter arrested Andrew on the morning of December 4, 2006. State officer Carl read to Andrew his rights in Pohnpeian prior to his interview with Andrew on the afternoon of December 4, 2006.  Finally, national officer Samuel read to Andrew his rights in English and explained each right in Pohnpeian prior to his interview with Andrew on December 7, 2006.

     For the foregoing reasons, the Court denies defendant Andrew’s motion to suppress.

[15 FSM Intrm 211]

III.   Defendant Andrew’s Motion to Dismiss

     The final motion addressed during the July 17, 2007 hearing was defendant Andrew’s motion to dismiss both charges against him.  Andrew bases his motion on the ground that the FSM Congress lacks jurisdiction to regulate the possession of firearms on the facts presented in this case and that this Court, therefore, lacks jurisdiction.  The information contains two counts against defendant Andrew:  Count One for possession of firearms without an identification card, 11 F.S.M.C. 1005, and Count Two for illegally carrying firearms, 11 F.S.M.C. 1007.

     In support of his motion, Andrew points to the 1991 amendment of Article IX, Section 2(p) of the FSM Constitution which used to say Congress had the power "to define major crimes and prescribe penalties" and was amended to say Congress has the power "to define national crimes and prescribe penalties."  Andrew argues that by removing from Congress the power to define "major crimes," the 1991 amendment took away Congress’s jurisdiction to regulate the possession of firearms where possession by a particular defendant does not have a nexus to a legitimate national interest.

     Andrew acknowledges that in Jano v. FSM, 12 FSM Intrm. 569 (App. 2004) the appellate division of this Court concluded Congress has the authority to regulate possession of firearms pursuant to its powers to regulate international and interstate commerce and to provide for that national defense.  Andrew contends, however, that Jano "failed to take into account the ‘controversial and problematic’ concerns that the 1991 constitutional amendment sought to remove," namely "the lack of a clear-cut distinction between the authority of the national government and that of the state governments over serious criminal matters."  Motion at 4; Reply at 4.

     Andrew maintains that while Congress may have authority to regulate the possession of firearms, "jurisdiction must be determined on a case-by-case basis."  According to Andrew, jurisdiction in any particular case will depend on "the defendants’ intent when possessing firearms" and whether "the alleged possession of a firearm by the defendant [has] a nexus to the national government’s interest to insure uniformity and to control any restriction on the free flow of goos among the states, and to coordinate and control national defense."  Reply at 2 and 5.

      Andrew argues that jurisdiction does not exist in this case because there is no "evidence that the defendant intended to commit a crime on the jurisdiction or instrumentality of the national government or to stage a war or an uprising against the nation.  There is also no evidence that the defendant intended to cause terror on a national scale." Reply at 5.  Andrew further argues that although firearm may be imported into the FSM, Congress does not have power to regulate their possession because it was "the clear intent of the framers that commerce within a particular state should be regulated locally."  Reply at 6 (emphasis in original).  Andrew also contends that his alleged possession of a firearm "is a matter that properly lies within the province of Pohnpei State to regulate" and that prosecution of the charges against him in this case "would constitute an improper ‘backdoor’ encroachment on the state’s power to define and regulate ‘major crimes.’" Reply at 2.

    Andrew is mistaken for many reasons.  To begin with, it has long been recognized that both the national and state governments may enact legislation regulating the possession of firearms.  As this Court stated, "We see nothing particularly absurd about a weapons control scheme that recognizes that both the national and the state governments have an interest in controlling the possession, use and sale of weapons."  Joker v. FSM, 2 FSM Intrm. 38, 44 (App. 1985).  Thus, Andrew’s argument that this Court is without jurisdiction to hear the charges against him solely because Pohnpei State may also have jurisdiction over his alleged possession of firearms is without merit.

     Andrew is also mistaken in his argument that the 1991 constitutional amendment took away

[15 FSM Intrm 212]

Congress’s power to regulate the possession of firearms.  According to Andrew, because the 1991 amendment gave the states the power to define "major crimes" and restricted Congress’s power to that of defining "national crimes," Congress can only regulate the possession of firearms if the possession is "inherently national in character" as defined in 11 F.S.M.C. 104(7)(b).

     Andrew’s argument runs afoul of this Court’s decision in Jano v. FSM, 12 FSM Intrm. 569 (App. 2004).  In Jano this Court concluded Congress "had an independent jurisdictional basis for the Weapons Control Act under Article IX, Section 2(g) on foreign and interstate commerce and Article IX, Section 2(a) on national defense."  Jano, 12 FSM Intrm. at 574.  The Jano decision continued, "Congress has always had the power to define national crimes.  This power to define national crimes is inherent in the national government and existed before the 1991 amendment made the power express."  Id.

     What Andrew’s argument fails to comprehend is that the 1991 amendment did not proscribe Congress’s authority to enact legislation pursuant to its independent authority under the national defense and foreign and interstate commerce clauses.  Thus, the 1991 amendment did nothing to curtail Congress’s authority to regulate the possession of firearms.  See Jano, 12 FSM Intrm. at 574 ("national government jurisdiction over possession of firearms and ammunition under the subject Weapons Control Act was not removed by the 1991 constitutional amendment that removed national government jurisdiction over major crimes").  Accordingly, Congress has the authority to regulate the possession of firearms and this Court has jurisdiction to hear alleged violations of such legislation.

      Andrew is further mistaken in his argument that Congress lacks authority to regulate possession of firearms because "it was the clear intent of the framers that commerce within a particular state should be regulated locally."  Reply at 6 (emphasis in original).  The Jano Court stated, "there is an international commerce aspect to the regulation of possession of firearms and ammunition that is related to its manufacture outside of the FSM and to its movement through the customs and immigration borders of the Nation."  Jano, 12 FSM Intrm. at 576.  Andrew does not argue the firearm at issue in this case was manufactured in Pohnpei or that it did not pass through international commerce.  Thus, Andrew’s argument is inconsistent with the holding of the Jano case, which also involved a firearm located within the political boundaries of Pohnpei State.

     Finally, Andrew is mistaken in his contention that Congress’s authority to regulate the possession of firearms, and this Court’s jurisdiction, depends on the intentions of a given defendant on a case-by-case basis.  In addition to the evidentiary challenges Andrew’s position would present, Andrew’s position is contrary to settled case law.  In concluding that Congress had the authority to regulate the possession of firearms as part of its power to provide for the national defense, the Court in Jano did not focus on the defendant’s intended use of the firearm at issue. Instead, the Court in Jano focused on the potential uses of firearms in general.  As stated in Jano, "firearms and ammunition would very likely be used by those meaning to threaten or destroy the national security by coercing conduct and carrying out activities that would be detrimental to the national defense. . . . [T]hese items would likely be the agents to coerce conduct in possible terrorist or other activities threatening national security or defense."  Jano, 12 FSM Intrm. at 576. The Court in Jano focused on the general nature of firearms and their likely use, not a specific defendant’s professed intended use.  The Court in Jano did not conclude that Congress’s authority was dependent on the subjective intent of the defendant.  Rather, the Court held "there is a national government interest in regulating the possession of firearms and ammunition in order to provide for the national security, which furthers the Nation’s interest in its defense, and that this, in combination with the international commerce aspects discussed earlier, provides a jurisdictional basis for the national government’s regulation of the possession of firearms and ammunition." Jano, 12 FSM Intrm. at 576.  It is clear from the holding in Jano that Congress’s jurisdiction over the possession of firearms is not tied to the intent of a particular defendant.

[15 FSM Intrm 213]

      For the same reasons the Court in Jano concluded Congress had authority to regulate the possession of firearms in that case, the Court concludes Congress has authority to regulate Andrew’s alleged possession of firearms and that this Court has jurisdiction over the charges brought by the government against Andrew.  For the foregoing reasons, the Court denies Andrew’s motion to dismiss.

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