[24 FSM R. 27]

Counts One through Four charge defendant Mini Edgar, not with principal crimes, but with the attempt to commit crimes. The criminal code imposes criminal liability for the attempt to commit a criminal act. The prosecution must prove beyond a reasonable doubt 1) the defendant's intent to commit the alleged crime; and 2) that she took action which constitutes a substantial step in a course of conduct planned to culminate in that crime's commission. FSM v. Mumma, 21 FSM R. 387, 401 (Kos. 2017).

Count One charges that Edgar attempted to possess 6,000 rounds of .22 ammunition in violation of 11 F.S.M.C. 1002. Count Two charges that Edgar attempted to possess 6,000 rounds of .22 ammunition without a valid identification card in violation of 11 F.S.M.C. 1005(1). Count Three charges that Edgar attempted to possess 6,000 rounds of .22 ammunition without a valid identification card in violation of 11 F.S.M.C. 1006(1). And Count Four charges that Edgar attempted to sell at retail 6,000 rounds of .22 ammunition without a valid dealer's license in violation of 11 F.S.M.C. 1010(2). Edgar contends that these four counts all charge the same crime and therefore all but one should be dismissed and an acquittal entered on the remaining count because the prosecution did not prove its case beyond a reasonable doubt.

A. Double Jeopardy through Multiple Punishments

In essence, Edgar contends that she is being subjected to double jeopardy through multiple punishments for the same crime. The Constitution's double jeopardy clause protects a person against multiple punishments for the same crime. Laion v. FSM, 1 FSM R. 503, 523 (App. 1984). But "[t]he government is not denied the right to charge separate offenses to guard against the risk that a conviction may not be obtained on one of the offenses." Id. at 530. The appellate division, in Laion v. FSM, 1 FSM R. 503, 530 (App. 1984) held that:

A 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 appeal, if any, has been completed, the lesser charge may be dismissed. Of course, 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.

Following this guidance, it has been the court's general practice in such situations where the criminal act has been proven to enter guilty findings on the separate charges but enter a judgment of conviction only on the more major of the crimes, as the Laion court instructed. A judgment of conviction must include not only a guilty finding but also contain the sentence. FSM Crim. R. 32(b); See also Ned v. Kosrae, 20 FSM R. 147, 153 (App. 2015) (for a document to be a judgment of conviction, it must set forth the plea, the findings, and the adjudication and sentence).

B. Counts One through Three

A review of the charges and of the evidence shows that the exact same facts and the exact same elements must be proven to reach a guilty finding on Counts Two and Three – an attempt to possess .22 ammunition without a valid identification card. The court has previously held that, if a defendant is charged with violating both 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1), and if the court finds the defendant guilty of either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1), the court must then dismiss the other count because 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1) charge the same crime. FSM v. Buchun, 22 FSM R. 529, 536 (Yap 2020). Edgar is charged with attempting to violate both 11 F.S.M.C. 1005(1), in Count Two, and 11 F.S.M.C. 1006(1), in Count Three. Count Two is therefore dismissed.

Count One is a lesser included offense of (both) Counts Two and Three because it alleges only the attempt to possess ammunition in violation of the Weapons Control Act.

There was sufficient evidence for the court to find Edgar guilty beyond a reasonable doubt of attempting to possess .22 ammunition without a valid identification card. Edgar further contends that an acquittal on this count is necessary because attempt is a specific intent crime and because she did not know that an identification card was needed in order to lawfully possess .22 ammunition.

But unlawful possession under the Weapons Control Act is almost a strict liability crime because the defendant only has to know that he or she possesses a firearm (or in this case, ammunition), and in the case of prosecutions under 11 F.S.M.C. 1005 or 1006, and that he or she does not possess a firearms identification card. FSM v. Pillias, 22 FSM R. 334, 338 (Chk. 2019); See also Sander v. FSM, 9 FSM R. 442, 447 (App. 2 000) (statute does not dispense with the mental element that the defendant must know or be aware that he or she had the shotgun in his or her possession, but the statute does dispense with the specific intent to board the aircraft knowing that it was illegal to do so with a shotgun).

Accordingly, the court finds Edgar guilty of Count Three and of the lesser included offense in Count One, but a sentence will be imposed and a judgment of conviction will be entered only for Count Three.

C. Count Four

Count Four charges that Edgar attempted to sell at retail 6,000 rounds of .22 ammunition without a valid dealer's license in violation of 11 F.S.M.C. 1010(2). The prosecution therefore had to prove the statutory element of intended sale at retail.

While there was evidence that Edgar intended to dispose of the ammunition that her brother sent her by sale, there was no evidence that she intended to sell it, as charged, at retail, as opposed to at wholesale. Sale at retail is one of the elements of a crime under Section 1010(2). (The prosecution could have pled in the alternative sale either by retail in violation of 11 F.S.M.C. 1010(2) or sale without a valid license as a wholesaler in violation of 11 F.S.M.C. 1010(1), but it did not.)

Since the sale-at-retail element is not proven beyond a reasonable doubt, Edgar is acquitted on Count Four.

II. THE CONSPIRACY COUNTS

Counts Five and Six charge that Mini Edgar conspired with her brother, the severed co-defendant Salle Luhk, to sell the 6,000 rounds of .22 ammunition at retail without a valid dealer's license, violating 11 F.S.M.C. 1010(2) [Count Five], and that she conspired with Luhk to transfer the 6,000 rounds of .22 ammunition to herself without her having a valid identification card in violation of 11 F.S.M.C. 1015 [Count Six].

The court cannot follow its usual Laion practice here because the conspiracy statute provides that "[i]f a person conspires to commit a number of crimes, he or she is guilty of only one conspiracy if the multiple crimes are the object of the same agreement or continuous conspiratorial relationship," 11 F.S.M.C. 203(2). The court can therefore enter a guilty finding on only one of the two conspiracy counts even if there is proof of guilt of both counts.

A conspiracy exists when either the agreement or the means contemplated for its achievement are unlawful. Lee v. Kosrae, 20 FSM R. 160, 166 (App. 2015); Mumma, 21 FSM R. at 400; FSM v. Este, 12 FSM R. 476, 483 (Chk. 2004). The conspiratorial agreement does not have to be explicit; a mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement. Cholymay v. FSM, 17 FSM R. 11, 23 (App. 2010). It is not necessary to prove the specific terms or the specific scope of the conspiratorial agreement or to prove that the conspiracy's substantive object was actually accomplished. Id. The existence of, and participation in, a criminal conspiracy may be proven by circumstantial as well as by direct evidence, if it affords a reasonable inference about the ultimate facts sought to be proved. Id. A person commits the crime of conspiracy, if, with intent to promote or facilitate the commission of a national crime, he or she agrees with one or more persons that they, or one or more of them will engage in or solicit the conduct or will cause or solicit the result specified by the crime's definition; and he or she or another person with whom he or she conspired commits an overt act in pursuance of the conspiracy. Engichy v. FSM, 15 FSM R. 546, 558 (App. 2008).

There was sufficient evidence to prove that Edgar and her brother agreed to transfer possession of the .22 ammunition to Edgar and that Salle Luhk committed an overt act in the furtherance of the conspiracy. The agreement was proven by Edgar's statements to the investigating officers and by the circumstance of ammunition being shipped in a container to Edgar's workplace on Pohnpei. The overt act was the shipping of the ammunition from Hawaii to Pohnpei. Therefore, the court's general finding on Count Six is guilty.

Count Five is dismissed because only one guilty finding for the same conspiratorial agreement is permissible, 11 F.S.M.C. 203(2), and because, as already noted, there was insufficient evidence that "sale at retail" was an object of the conspiratorial agreement.

III. CONCLUSION

Accordingly, defendant Mini Edgar is acquitted on Count Four. Counts Two and Five are dismissed. Mini Edgar is found guilty on Counts One, Three, and Six. No judgment of conviction will be entered on Count One as it is a lesser included offense of Count Three, for which a judgment of conviction will be entered after the sentence is imposed. A judgment of conviction will also be entered on Count Six.