CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Chuuk v. Kasmiro, 16 FSM Intrm. 404 (Chk. S. Ct. Tr. 2009)

[16 FSM Intrm 404]

CHUUK STATE,CSSC

Plaintiff,

vs.

RAKOFICH KASMIRO, SAMUEL WISUN,

CHESNEY MILLER, and PUNUN (DAS) SAM,

Defendants.

CRIMINAL CASE NO. 04-2006

ORDER

Camillo Noket

Chief Justice

Hearing: April 21, 2009

Decided: April 29, 2009

APPEARANCES:

For the Plaintiff:         Charleston Bravo

                                   Assistant Attorney General

                                  Office of the Chuuk Attorney General

                                  P.O. Box 1050

                                  Weno, Chuuk FM 96942
 

For the Defendant:    Michael Marco

  (Kasmiro)                Office of the Public Defender

                                  P.O. Box 754

                                  Weno, Chuuk FM 96942
 

For the Defendant:    Kent Cheipot

  (Wisun)                   Office of the Public Defender

                                  P.O. Box 754

                                  Weno, Chuuk FM 96942

[16 FSM Intrm 405]

For the Defendants:  Fredrick A. Hartman

  (Miller & Sam)         P.O. Box 453

                                  Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure – Double Jeopardy

    The rule against double jeopardy provides three types of protection for criminal defendants: it protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. Chuuk v. Kasmiro, 16 FSM Intrm. 404, 406 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure – Double Jeopardy; Federalism – National/State Power

    The dual sovereignty doctrine provides an important limitation on the application of double jeopardy to related state and national prosecutions. Under the dual sovereignty doctrine, a state prosecution does not bar a subsequent national prosecution of the same person for the same acts, and a national prosecution does not bar a subsequent state prosecution. The reason is that the national government and its individual states are independent sovereigns, and prosecutions under the laws of those separate sovereigns do not subject a defendant to be twice put in jeopardy. If the constitutional protection against double jeopardy did apply to prosecutions under the laws of independent sovereigns, then prosecution by one sovereign for a relatively minor offense might bar prosecution by another sovereign for a much graver offense, effectively depriving the latter of the right to enforce its laws, and defendants would always race to stand trial in the court where the charges were less severe in order to bar the second action. Chuuk v. Kasmiro, 16 FSM Intrm. 404, 406 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure – Double Jeopardy

    Double jeopardy only applies against multiple punishments for the same offense. When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Chuuk v. Kasmiro, 16 FSM Intrm. 404, 406 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure – Double Jeopardy

    Double jeopardy generally bars a second action if the defendant is acquitted on the merits, but the vacating of a conviction on the ground of a material variance between pleading and proof is not an acquittal on the merits. Rather, when there is a material variance between the pleadings and a courtís findings that results in vacating a conviction, the defendant will not be in jeopardy against a subsequently filed information with new allegations because the defendant was never called to defend against those allegations. Chuuk v. Kasmiro, 16 FSM Intrm. 404, 407 (Chk. S. Ct. Tr. 2009).

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COURTíS OPINION

CAMILLO NOKET, Chief Justice:

Introduction

    On April 21, 2009 the court heard oral argument from all parties on defendant Rakofich Kasmiroís motion to dismiss. The basis for the motion is that the state has unconstitutionally put

[16 FSM Intrm 406]

Kasmiro in double jeopardy because he was already tried in the FSM Supreme Court on charges arising from the same incident.

Background

    The FSM Supreme Court found Kasmiro guilty on two charges of aiding and abetting for possession of a firearm and possession of ammunition. The Appellate Division of the FSM Supreme Court vacated the resulting conviction because it found that there was a material variance between what was plead to the trial court and the trial courtís findings. Relying on the prohibitions against double jeopardy set forth in the Chuuk State and FSM constitutions, see FSM Const. art. IV, ß 7; Chk. Const. art. III, ß 5, Kasmiro argues that the overturning of his conviction on weapons charges in the FSM Supreme Court bars the state from prosecuting assault and homicide charges that arose from the same incident.

The Law

    The rule against double jeopardy provides three types of protection for criminal defendants: it protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969)). The court finds three reasons why these protections do not bar this action.

    First, the dual sovereignty doctrine provides an important limitation on the application of double jeopardy to related state and national prosecutions. Under the dual sovereignty doctrine, a state prosecution does not bar a subsequent national prosecution of the same person for the same acts, and a national prosecution does not bar a subsequent state prosecution. FSM v. Louis, 15 FSM Intrm. 348, 354-55 (Pon. 2007) (following United States v. Wheeler, 435 U.S. 313, 316-17, 98 S. Ct. 1079, 1083, 55 L. Ed. 2d 303, 308-09 (1978)). The reason is that the national government and its individual states are independent sovereigns, and prosecutions under the laws of those separate sovereigns do not subject a defendant to be twice put in jeopardy. Wheeler, 435 U.S. at 316-17, 98 S. Ct. at 1082-83, 55 L. Ed. 2d at 308-09. If the constitutional protection against double jeopardy did apply to prosecutions under the laws of independent sovereigns, then prosecution by one sovereign for a relatively minor offense might bar prosecution by another sovereign for a much graver offense, effectively depriving the latter of the right to enforce its laws. Id. at 317-18, 98 S. Ct. at 1083, 55 L. Ed. 2d at 309. Thus, if double jeopardy applied to actions brought by separate sovereigns, defendants would always race to stand trial in the court where the charges were less severe in order to bar the second action. Whatever the interest of the latter sovereign in prosecuting its laws would be frustrated, and defendants could avoid conviction on the most serious charges brought against them. Id. at 331, 98 S. Ct. at 1090, 55 L. Ed. 2d at 317.

    In this case, the rationale from Wheeler is especially apt. While the FSM Supreme Court has exclusive jurisdiction over weapons charges, and an important national interest in prosecuting those offenses, the most serious charges were brought in state court. To deprive either that state or the national government of the ability to prosecute charges in their respective courts would undermine their distinct interests to enforce their own laws.

    Second, double jeopardy only applies against multiple punishments for the same offense. Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984). Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Id. at 523-24

[16 FSM Intrm 407]

(adopting rule from Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932)). Here, each of the charges brought before the FSM Supreme Court required proof that Kasmiro aided and abetted in the possession of illegal firearms and ammunition, which charges were necessarily bifurcated from the state charges because of the FSM courtís exclusive jurisdiction over charges involving the possession of illegal firearms and ammunition. None of the state charges require proof that Kasmiro possessed illegal firearms or ammunition. Therefore, the stateís charges are not barred for the additional reason that the offenses are not the same as those brought before the FSM Supreme Court. Laion, 1 FSM Intrm. at 523.

    Finally, double jeopardy generally bars a second action if the defendant is acquitted on the merits. See 22 C.J.S. Criminal Law ß 268 (1971) ("Acquittal"). The vacating of a conviction on the ground of a material variance between pleading and proof is not an acquittal on the merits. Rather, when there is a material variance between the pleadings and a courtís findings that results in vacating a conviction, the defendant will not be in jeopardy against a subsequently filed information with new allegations, because the defendant was never called to defend against those allegations. Id. Therefore, because Kasmiro was never acquitted on the merits, but his conviction was vacated based on a variance, the prosecution in the FSM Supreme Court did not result in jeopardy.

Conclusion

Therefore, Kasmiroís motion to dismiss is denied.

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