FSM SUPREME COURT APPELLATE DIVISION
Cite as Shiro v. FSM, 24 FSM R. 127 (App. 2023)
LUCKY SHIRO, ONSORI SINO, TAISIRO LOVES,
and KACHURA ANGKEN,
Appellants,
vs.
FEDERATED STATES OF MICRONESIA,
Appellee.
APPEAL CASE NO. C2-2018
(Criminal Case No. 2016-1503)
OPINION
Argued: October 20, 2021
Submitted with Added Briefing: October 25, 2022
Decided: May 22, 2023
BEFORE:
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Dennis L. Belcourt, Associate Justice, FSM Supreme Court
APPEARANCES:
For the Appellants:
Bethwell O'Sonis, Esq. (Lucky Shiro)
Charleston Bravo (Onsori Sino)
Office of the Public Defender
P.O. Box 814
Weno, Chuuk FM 96942
For the Appellee:
Abigail J. Avoryie, Esq. (briefed)
Josephine Leben-James, Esq. (argued)
Assistant Attorneys General
P.O. Box PS-105
Palikir, Pohnpei FM 96941
* * * *
Since, to be a judgment of conviction, a document must set forth the plea, the findings, and the adjudication and sentence, a document labeled "judgment of conviction" before the defendants were sentenced is not one, and a second "judgment of conviction" entered after sentencing in open court was the actual judgment of conviction. Shiro v. FSM, 24 FSM R. 127, 131 n.1 (App. 2023).
The court's responsibility in a criminal appeal is not to determine whether it is convinced beyond a reasonable doubt, but whether it can conclude that the trier of fact, acting reasonably, could be convinced beyond a reasonable doubt by the evidence which it had the right to believe and accept as true. Shiro v. FSM, 24 FSM R. 127, 132 (App. 2023).
The appellate court's review of sufficiency-of-the-evidence challenges in a criminal case is whether, in reviewing the evidence in the light most favorable to the trial court's factual determinations, there is sufficient evidence to convince a reasonable trier of fact, relying on evidence which it had the right to believe and accept as true, that the defendant is guilty beyond a reasonable doubt. The review of the sufficiency of the evidence is very limited – only findings that are clearly erroneous can be set aside. Shiro v. FSM, 24 FSM R. 127, 132 (App. 2023).
The appellate court will uphold the trial court's factual findings so long as they rationally reflect evidence that is reasonable and combines with other evidence to present a coherent, believable, overall picture. It will not set aside a factual finding where there is credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. Shiro v. FSM, 24 FSM R. 127, 132 (App. 2023).
On appeal, the court review issues of law de novo. Shiro v. FSM, 24 FSM R. 127, 132 (App. 2023).
When the defendants were all convicted of trafficking in children in violation of 11 F.S.M.C. 616 and 612(3)(a), the appellate court's task is to determine whether the trial court could reasonably have been convinced beyond a reasonable doubt by the evidence presented that the defendants committed child trafficking in violation of 11 F.S.M.C. 616. Shiro v. FSM, 24 FSM R. 127, 132-33 (App. 2023).
A variance is a discrepancy or disagreement between the allegations of the charging instrument and the proof adduced at trial. Allegations in the information alleging a criminal violation must be proven in order to obtain a conviction. It is not enough that the evidence shows a violation of the statute specified in the Information if the actual violation is different from the one alleged. Shiro v. FSM, 24 FSM R. 127, 134 (App. 2023).
When considering whether a variance warrants relief, a court must examine whether the variance was material or prejudicial, that is, whether it affected the substantial rights of the accused. Any error, defect, irregularity or variance which does not affect substantial rights must be disregarded because the issue is whether the accused is given sufficient notice of the charges against him so as to be able to present his defense and not be taken by surprise by the evidence offered at the trial and also to be protected against another prosecution for the same crime. Shiro v. FSM, 24 FSM R. 127, 134 (App. 2023).
Words and phrases, as used in the FSM Code or in any act of the Congress or in any regulation issued pursuant thereto, must be read with their context and construed according to the common and approved usage of the English language. Shiro v. FSM, 24 FSM R. 127, 135 (App. 2023).
Basing legal analysis on dictionary definitions can be an uncertain proposition. This is because a comprehensive dictionary aims at setting out all meanings of a word, while a court must determine the precise intended meaning of a word or phrase in a specified context. Thus, the choice among meanings must have a footing more solid than a dictionary, which is a museum of words, an historical catalog rather than a means to decode a legislature's work. Shiro v. FSM, 24 FSM R. 127, 135 (App. 2023).
Dictionaries must be used as sources of statutory meaning only with great caution. Shiro v. FSM, 24 FSM R. 127, 135 (App. 2023).
One of the surest indexes of a mature and developed jurisprudence is not to make a fortress out of the dictionary; but to remember that statutes always have some purpose to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning because dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understanding. Shiro v. FSM, 24 FSM R. 127, 135 (App. 2023).
The word "recruit" cannot be substituted in every instance for the word "hire" because they are not synonyms and the court must take all possible definitions in their context, as statutorily required, according to the common and approved usage of the English language. Shiro v. FSM, 24 FSM R. 127, 136 (App. 2023).
A single act of prostitution is not equivalent to or synonymous with recruiting a victim for the purpose of human-trafficking exploitation. Shiro v. FSM, 24 FSM R. 127, 136 (App. 2023).
For a defendant to be convicted of the crime of obtaining of financial or other material benefit from the prostitution of another person, there must be (at least) three people involved. One is the victim who is prostituted – the "seller" of sexual services. The second is the real or potential person who receives, or who is intended or expected to receive, the prostitute-victim's sexual services in exchange for providing a monetary or material benefit for those sexual services – the "customer" or the purchaser of sexual services. And the third is the person obtaining of financial or other material benefit from the prostitution of another – that is, from the victim's prostitution. It is this third person on whom Subsection 612(3)(a) imposes criminal liability as a trafficker, not the prostitute's cash "customers." Thus, someone other than the prostitute and the prostitute's customer must be the recipient, or intended recipient, of the financial or other material benefit, and it is this person 11 F.S.M.C. 612(3)(a) punishes as a human trafficker. Shiro v. FSM, 24 FSM R. 127, 136 (App. 2023).
The financial or material benefit in Subsection 612(3)(a) is not the financial or material benefit that was received by the victim-prostitute for her services, which is referred to in Subsection 612(4) because the "benefit" received by the victim-prostitute can only prove prostitution under either the FSM Code (where it is not made a crime) or under state law. That "benefit" does not constitute the financial or material benefit required by Subsection 612(3)(a) unless the victim-prostitute were proven to have turned the money or material benefit over to her trafficker (pimp). Shiro v. FSM, 24 FSM R. 127, 137 (App. 2023).
A victim's sexual services do not qualify as the financial or material benefit under the human trafficking statute. If it did, then every act of prostitution or sexual abuse would violate the national human tracking statute, and there would be no difference between the crime of human trafficking and the crime of prostitution. That would be an absurd result, and a statutory construction that ends in an absurd result must be rejected. Shiro v. FSM, 24 FSM R. 127, 137 (App. 2023).
Not every act of prostitution is human trafficking. Shiro v. FSM, 24 FSM R. 127, 137 (App. 2023).
The FSM human trafficking statute defines prostitution, but does not make it a crime. That would criminalize the victim's conduct, not the trafficker's, and make the trafficking victims criminals, which is not a human trafficking statute's intent or purpose. Shiro v. FSM, 24 FSM R. 127, 137 n.4 (App. 2023).
Criminal statutes and criminal codes are all penal in nature, and it is an ancient rule of statutory construction that penal statutes should be strictly construed against the government and in favor of the persons on whom penalties are sought to be imposed. Shiro v. FSM, 24 FSM R. 127, 137 (App. 2023).
If a defendant had received, directly or indirectly, a financial or material benefit from someone other than himself for directing someone else (a co-defendant) to the minor so that the other could have sex with her in return for money or other material benefit, he would have been a human trafficker, and he might then have recruited the victim by first engaging in prostitution with her and then passing her along to another person for the same purpose. Shiro v. FSM, 24 FSM R. 127, 138 (App. 2023).
When all the prosecutor could offer was that there was evidence that three of the defendants were pastors and it was a small island so they must have communicated, that inference was not enough for a conspiracy charge to survive all four defendants' motions for acquittal. Shiro v. FSM, 24 FSM R. 127, 138 (App. 2023).
Human trafficking cases are still in their infancy in the FSM, and thus clarifications as to the required elements of the crime must be established. Shiro v. FSM, 24 FSM R. 127, 138 (App. 2023).
A person is guilty of trafficking in children under 11 F.S.M.C. 616 in conjunction with 11 F.S.M.C. 612(3)(a)'s definition of "exploitation," when he or she recruits, transports, transfers, harbors, or receives a child by any means for the purpose of exploitation. That person exploits the child when he or she obtains financial or material benefit from the prostitution of the child; prostitution being defined as sexual services performed for financial or material benefit. Shiro v. FSM, 24 FSM R. 127, 138 (App. 2023).
* * * *
LARRY WENTWORTH, Associate Justice:
This appeal arises from the August 9, 2018 convictions of Lucky Shiro, Onsori Sino, Taisiro Loves, and Kachura Angken on trafficking in children charges. We reverse. Our reasons follow.
On February 17, 2016, the Chuuk Attorney General acting on the FSM's behalf, filed in the FSM Supreme Court trial division, a criminal information, alleging that Shiro, Sino, Loves, and Angken violated the FSM Trafficking in Persons Act of 2012 when they
knowingly shared information about the vulnerability of [a certain female] minor to submit to sexual advances in exchange for payment of money or goods and then each and all of them acted on their own in pursuing sexual intercourse with the said minor in exchange of money or material goods, some of them on repeated occasions with the same or similar pattern of payments.
Information at 7 (Count IX). The FSM alleged that Sino committed three acts of trafficking in children, each punishable under 11 F.S.M.C. 616 and 612(3)(a) [Counts I, II, and III]; that Angken committed one act of trafficking in children, punishable under 11 F.S.M.C. 616 and 612(3)(a) [Count IV]; that Loves committed one act of trafficking in children, punishable under 11 F.S.M.C. 616 and 612(3)(a) [Count V]; that Shiro committed three acts of trafficking in children, each punishable under 11 F.S.M.C. 616 and 612(3)(a) [Counts VI, VII, and VIII]; and that all four defendants conspired together to traffic in children, violating 11 F.S.M.C. 203 and 616 [Count IX]. The one victim in this case was an unrelated fifteen-year-old female (the "minor" or the "victim").
On July 15, 2016, Shiro filed a motion to dismiss. Sino filed a motion to dismiss on November 10, 2016. The trial court denied these motions on March 29, 2017. FSM v. Shiro, 21 FSM R. 195 (Chk. 2017). Loves filed a motion to dismiss for lack of subject matter jurisdiction on April 21, 2017, and, on June 23, 2017, Shiro and Sino filed a supplemental brief to address issues regarding article IV, section 10 of the Constitution. The trial court denied all motions to dismiss on August 2, 2017. FSM v. Shiro, 21 FSM R. 331 (Chk. 2017).
The case went to trial on June 6, 2018. The prosecution presented only one witness (the victim) and then rested. Each defendant then moved for Criminal Procedure Rule 29(a) judgments of acquittal on the counts against them because the prosecution had not proved its case. The trial court denied the Rule 29(a) motion as to Counts I, IV, V, and VIII, and granted judgments of acquittal for Counts II, III, VI, VII, and IX. The defendants rested. Closing arguments followed. No special findings having been requested, the trial court, on June 7, 2018, rendered its general findings, and found Shiro guilty on Count VIII; Sino guilty on Count I; Loves guilty on Count V; and Angken guilty on Count IV.
On June 14, 2018, the defendants filed a renewed motion for acquittal after a finding of guilt, as permitted by Criminal Procedure Rule 29(c). The trial court denied that motion on July 5, 2018. FSM v. Shiro, 21 FSM R. 627 (Chk. 2018). Viewing the evidence in the light most favorable to the prosecution, the trial court concluded that there was substantial evidence that the child victim was forced against her will to involuntarily provide sexual services to each defendant, by means of force, or by means of a material misrepresentation; or by slavery or practices similar to slavery and that the victim's engaging in sex with the defendants were sexual services that provided each defendant with a material benefit from the child victim's prostitution. Id. at 632-33.
On August 8, 2018, all of the defendants were convicted in open court of trafficking in children1 in violation of 11 F.S.M.C. 612 and 616 and each was sentenced to fifteen years of imprisonment, all suspended except for nine years. The defendants were also ordered to each pay a total of $1,000 in restitution to the victim. Shiro, Loves, and Angken filed their notice of appeal on August 17, 2018, and Sino filed his on August 20, 2018.
The appellants contend that the trial court erred when it found the defendants guilty beyond reasonable doubt; when it denied their motions to dismiss, including the one for lack of subject matter jurisdiction; when it denied their motions for judgments of acquittal; because their sentences constituted cruel and unusual (unconstitutional) punishment and because the restitution amount constituted an unconstitutionally excessive fine.
Our responsibility in a criminal appeal is to determine whether the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence presented. Tosie v. FSM, 5 FSM R. 175, 178 (App. 1991). The standard of review is not whether we are convinced beyond a reasonable doubt, but whether we can conclude that the trier of fact, acting reasonably, could be convinced beyond a reasonable doubt by the evidence which it had the right to believe and accept as true. Engichy v. FSM, 1 FSM R. 532, 546 (App. 1984).
Our review of sufficiency-of-the-evidence challenges in a criminal case is whether, in reviewing the evidence in the light most favorable to the trial court's factual determinations, there is sufficient evidence to convince a reasonable trier of fact, relying on evidence which it had the right to believe and accept as true, that the defendant is guilty beyond a reasonable doubt. Tulensru v. Kosrae, 15 FSM R. 122, 125 (App. 2007); Moses v. FSM, 14 FSM R. 341, 344 (App. 2006); Engichy, 1 FSM R. at 545. Our review of the sufficiency of the evidence is very limited – only findings that are clearly erroneous can be set aside. Moses, 14 FSM R. at 344.
We will uphold the trial court's factual findings so long as they rationally reflect evidence that is reasonable and combines with other evidence to present a coherent, believable, overall picture. Moses, 14 FSM R. at 344; Engichy, 1 FSM R. at 557. We will not set aside a factual finding where there is credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. Palik v. Kosrae, 8 FSM R. 509, 516 (App. 1998).
On appeal, we review issues of law de novo. Wainit v. FSM, 15 FSM R. 43 (App. 2007) (citing George v. Nena, 12 FSM R. 310, 313 (App. 2004); Tulensru v. Wakuk, 10 FSM R. 128, 132 (App. 2001)).
A. Our Task
The defendants were all convicted of trafficking in children in violation of 11 F.S.M.C. 616 and 612(3)(a). Section 616 provides that a person is guilty of trafficking in children when that person "knowingly recruits, transports, transfers, harbors, or receives a child by any means for the purpose of exploitation." "Child" is defined as "any person below the age of 18 at the time of the commission of an offense under this chapter." 11 F.S.M.C. 612(1). "Exploitation" is "the obtaining of financial or other material benefit from the prostitution of another person." 11 F.S.M.C. 612 (3)(a).2 And "prostitution" is the "illicit sexual services performed for financial or material benefit." 11 F.S.M.C. 612(6).
Thus, our task is to determine whether the trial court could reasonably have been convinced beyond a reasonable doubt by the evidence presented that the defendants committed child trafficking in violation of 11 F.S.M.C. 616. More specifically, the question before us is whether the trial court had been convinced beyond a reasonable doubt by the evidence presented that the defendants knowingly recruited, transported, transferred, harbored, or received a person below the age of 18 by any means for the purpose of the defendants' obtaining of financial or other material benefit from the illicit sexual services performed by a person below the age of 18.
B. Taisiro Loves
Loves was found guilty of Count V when the minor was on her way to church and Loves "lured" her to join him in a house and "induced" her to have sexual intercourse with him for $2, which he paid after having intercourse with her. Loves argues that he cannot be a person who "knowingly recruits, transports, transfers, harbors, or receives" the instant minor. Appellant's Br. Shiro & Sino at 13. Loves claims that the minor was not recruited. Loves argues that she was not forced into the house, nor was she coerced to engage in illicit sex, as Loves made no demands against her will. In addition, Loves contends that, while the minor had been taught that it was wrong to disobey an older man, nothing would have happened to her if she had refused to obey him. Appellants' Br. Loves & Angken at 11. Finally, Loves maintains that the minor could not have been "lured" by him because she was promised one dollar after, not before having sex with him. Id. at 12.
Loves further argues that sexual services do not fall within the meaning of material benefit for proof of exploitation, Appellants' Br. Loves & Angken at 11, and instead "submits that material benefit should be something tangible or something that is perceptible by touch. At all relevant time [sic], appellant Taisiro Loves did not obtain anything of material benefit from victim . . . . What had transpired between Appellant Taisiro Loves and [the minor] was a simple case of sexual abuse . . . ." Id.
Like Shiro, Loves also argues that the minor did not engage in "prostitution", as she did not perform illicit sexual services for her financial or material benefit. 11 F.S.M.C. 612(6). According to Loves, the minor did not engage in prostitution, and Loves did not "exploit" her, as he did not receive a financial or material benefit from the prostitution of "another person," as required by 11 F.S.M.C. 612(3)(a).
C. Onsori Sino
Sino was convicted of Count I when the minor, on her way to buy pampers, was followed and urged by Sino to let his daughter buy the pampers for her while Sino lured the minor to go with him to his house to have sex with him in exchange for marijuana, which he did. Appellant Br. Shiro & Sino at 21. The analysis is the same as that set forth above with respect to Shiro and Loves. The legally operative language is identical; although, the factual circumstances are distinct. The trial court determined that the term "lured" is consistent with the plain meaning of the statutory term "recruits." Shiro, 21 FSM at 203. Here, the trial court found that Sino recruited the minor to enter his premises for the illicit purposes specified in Count I.
Sino argues that the minor did not engage in "prostitution," as she did not perform illicit sexual services for her financial or material benefit. 11 F.S.M.C. 612(6). He further argues that because the minor did not engage in prostitution, Sino did not "exploit" her, as he did not receive a financial or material benefit from the prostitution of "another person," as required by 11 F.S.M.C. 612(3)(a).
Sino also claims there are numerous prejudicial variances between the violations of statute alleged in the Information and the evidence of statutory violations proven at trial. Appellants' Br. Shiro & Sino at 23-24. A variance is a discrepancy or disagreement between the allegations of the charging instrument and the proof adduced at trial. Kasmiro v. FSM, 16 FSM R. 243, 246 (App. 2009). Allegations in the information alleging a criminal violation must be proven in order to obtain a conviction. It is not enough that the evidence shows a violation of the statute specified in the Information if the actual violation is different from the one alleged. Id. at 247.
When considering whether a variance warrants relief, the court must examine whether the variance was material or prejudicial, that is, whether it affected the substantial rights of the accused. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. The issue is whether the accused is given sufficient notice of the charges against him so as to be able to present his defense and not be taken by surprise by the evidence offered at the trial and also to be protected against another prosecution for the same offense.
Id. at 245 (citing Otto v. Kosrae, 5 FSM R. 218, 221-22 (App. 1991)).
Sino argued that he could not have been the father of the minor's child considering the time frame within which the minor became pregnant and the alleged time the incident in question occurred. We agree with the trial court that this variance was not significant. Whether the minor was pregnant is not an element of the crime. In addition, an allegation that Sino is the father would be virtually impossible to prove without DNA evidence, which was not obtained. We concur with the trial court that this variance did not prejudice Sino.
D. Kachura Angken
Angken was found guilty of Count IV when he "solicited" the minor to have sexual intercourse with him at his taro patch with the promise to pay her $15. Appellants' App. Shiro & Sino at 3. Angken argues that the minor's testimony did not establish that he was a person who "knowingly recruits, . . . harbors, or receives" the instant minor for the purposes of "exploitation." Appellant Br. Loves & Angken at 14. The Information alleged that Angken "solicited" the minor to have sexual intercourse with him at his taro patch with the promise of $15, which he paid to her after he had sexual intercourse with her. The minor testified that, "he call [sic] me." Tr. at 16 (June 6, 2018). However, according to her testimony, he did not offer anything in exchange for sex. Id. at 14, 18. The minor testified that she went with him, "[b]ecause he hold [sic] my hand and pull me and draw uh take me with him." (Even though she told him she did not want to go.) Id. at 17.
On cross-examination, the minor testified that Angken did recruit her "for the purpose of obtaining benefits." Id. at 47. She also conceded that she had told the police that when Angken had offered her $15 for sex, she said, "Yes." Id. at 52. Nevertheless, the minor maintained that she was not a prostitute. Id. at 47-48. The trial court found that Angken recruited the minor, in that he "called" her and "pulled" her by the hand to go with him. Shiro, 21 FSM at 632.
E. Lucky Shiro
Shiro was charged and convicted of Count VIII when, about six days after a night in 2015 when he first flashed his flashlight at the minor and invited her to have sex with him in his house for $2,3 invited the minor, into his house and "lured her to have sex with him again on the promise of payment of another $2.00." Appellants' App. Shiro & Sino at 6. However, on that day, the defendant had sex with the minor but did not pay her as he promised her but, instead, urged her to leave his house after he had sexual intercourse with her. Id. Shiro argues that he is not a person who "knowingly recruits, transports, transfers, harbors, or receives" the instant minor. Id. at 13.
The trial court, in its pretrial ruling on the initial motions to dismiss where all the facts alleged in the information were presumed to be true, concluded that, while the statute does not define "recruits," the word's plain meaning leads to the conclusion that it includes the actions alleged in the Information. Shiro, 21 FSM R. at 203 (citing FSM Social Sec. Admin. v. Kingtex (FSM) Inc., 8 FSM R. 129, 131 (App. 1997) (court must give effect to the plain meaning of a statutory provision whenever possible)). The trial court determined that the allegations in Counts VI (for which Shiro was later acquitted at trial), VII (also acquitted at trial), and VIII (convicted), alleging that Shiro "flashed his flashlight," "lured," "called," and "invited" the minor victim into his house were consistent with the plain meaning of the statutory term "recruits," and that these acts of recruitment were intended to, and resulted in Shiro gaining access to the minor victim for illicit sexual purposes. Shiro, 21 FSM at 203. Here, the trial court concluded that Shiro recruited the minor to enter his premises for the illicit purposes specified in Count VIII.
F. Meaning of "Recruit"
We do not agree. "Words and phrases, as used in this code or in any act of the Congress or in any regulation issued pursuant thereto shall be read with their context and shall be construed according to the common and approved usage of the English language." 1 F.S.M.C. 208. The plain meaning of "recruit," when not used in the military sense, means "[t]o provide with new members or employees," or '[t]o enroll or seek to enroll," or "[t]o obtain replacements for . . . something [someone?] lost, wanted, or needed." WEBSTER'S NEW COLLEGE DICTIONARY 949 (3d ed. 2008).
But, as we have previously recognized, basing legal analysis on dictionary definitions can be an uncertain proposition. FSM Social Sec. Admin. v. Kingtex (FSM) Inc., 8 FSM R. 129, 132 n.2 (App. 1997); Nena v. Kosrae (II), 6 FSM R. 437, 439 (App. 1994). This is because "a comprehensive dictionary aims at setting out all meanings of a word, while a court must determine the precise intended meaning of a word or phrase in a specified context." AHPW, Inc. v. FSM, 12 FSM R. 164, 166 (Pon. 2003) (citation omitted). Thus, "the choice among meanings must have a footing more solid than a dictionary–which is a museum of words, an historical catalog rather than a means to decode the work of legislatures." Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 67 (1994).
Judges have been cautioned against the use of such expansive dictionary definitions. Circuit Judge Posner warned "that dictionaries must be used as sources of statutory meaning only with great caution." United States v. Costello, 666 F.3d 1040, 1043 (7th Cir. 2012). Judge Posner, quoting Circuit Judge Learned Hand, stated that "'it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.'" Id. (quoting Cabell v. Markham, 145 F.2d 737, 739 (2d Cir. 1945) (L. Hand, J.)). And he noted that "[d]ictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understanding." Id. at 1044.
The dissent, looking at all the possible meanings of the word "recruits," chooses to rely on a broad definition of the word "recruit" in the context of trafficking found in Webster's Third International Dictionary 1899 (1993) and Commonwealth v. Dabney, 90 N.E.3d 750, 764 (Mass. 2018). From this definition, it concludes that "recruit" is synonymous with the word "hire" or with the term "obtain to perform services."
But that reliance is completely acontextual – not read with its context. "Recruit" can mean "hire" when used for an organization or a business. For, instance, in the phrase "the national government needs to recruit more lawyers" the word "hire" could be substituted for "recruit" without altering the meaning. Or, in "Microsoft is recruiting more engineers" the word "hiring" would convey the same meaning. In Dabney, the defendant was found guilty of recruiting a woman to work for him as a prostitute providing sexual services to others (and to turn all her earnings over to him). Id. at 753-54. In Dabney, substituting "hiring" or "obtaining to perform services" or "secure the services of" for "recruiting" would not alter the meaning of "recruiting."
But, the word "recruit" cannot be substituted in every instance for the word "hire." They are not synonyms. For example, no homeowner would "recruit" a plumber to fix a leaky pipe. But a homeowner most certainly would "hire" the plumber to fix the leak. Likewise, Shiro (and the other defendants) might have each hired the victim to provide sexual services to themselves, but there was no evidence that any of them recruited her to provide sexual services to another. (Although this was what the Information may have alleged; but no evidence of it was introduced at trial. See infra part IV.H.) Such a construction would not be "according to the common and approved usage of the English language" as required by 1 F.S.M.C. 208. Nor would it be an idiomatic usage of the English word "recruit."
The dissent argues that we have selected one meaning for "recruit" from among numerous dictionary definitions. We have not. We have taken all definitions of 'recruit" into consideration. And we have taken all possible definitions in their context, as statutorily required, "according to the common and approved usage of the English language." 1 F.S.M.C. 208. That required us to eliminate the definition claimed by the dissent – "hire" or "obtain to perform services" or "secure the services."
Under the facts as proven and as found by the trial court (as opposed to as pled or alleged, see infra part IV.H.), Shiro luring the victim into his home was not to get the victim to join a prostitution ring or, as in Dabney, to provide sexual services to other persons. Thus, Shiro was not recruiting the victim when he lured her into his house. Shiro was engaging in an act of prostitution. A single act of prostitution is not equivalent to or synonymous with recruiting a victim for the purpose of human-trafficking exploitation. This conclusion applies to the other defendants as well.
G. Construction of Subsection 612(3)(a)
We do not doubt that the trial court had sufficient evidence before it to find that the child victim provided the defendants with sexual favors under the circumstances found by the trial court. See Shiro, 21 FSM R. at 632-33. The trial court erred in its conclusions of law that it applied to these facts. These facts do not satisfy the elements of the statute charged and of which the defendants were convicted.
The key is that, for the crimes charged, the exploitation that must be proven for a defendant to be convicted of the crimes charged is the defendant's "obtaining of financial or other material benefit from the prostitution of another person." 11 F.S.M.C. 612 (3)(a). In other words, for this trafficking crime, there must be (at least) three people involved. One is the victim who is prostituted – the "seller" of sexual services. The second is the real or potential person who receives, or who is intended or expected to receive, the prostitute-victim's sexual services in exchange for providing a monetary or material benefit for those sexual services – the "customer" or the purchaser of sexual services. And the third is the person obtaining of financial or other material benefit from the prostitution of another – that is, from the victim's prostitution. In common parlance, this third person may be called the pimp, the procurer, or the trafficker (or sometimes, euphemistically called the prostitute's business or appointment agent). It is this third person on whom Subsection 612(3)(a) imposes criminal liability as a trafficker, not the prostitute's cash "customers." Thus, someone other than the prostitute and the prostitute's customer must be the recipient, or intended recipient, of the financial or other material benefit. It is this person 11 F.S.M.C. 612(3)(a) seeks to punish as a human trafficker.
This is the exact situation that occurred in Dabney, the case the dissent approvingly cites to support its definition of, and application of, the word "recruit" in 11 F.S.M.C. 612(3)(a). In Dabney, the defendant recruited the victim to prostitute herself to others and he used the money she obtained from that prostitution to buy himself (and her) drugs and alcohol. Dabney, 90 N.E.3d at 753-54. The Dabney defendant would thus fall squarely within Section 612(3)(a)'s ambit because that defendant obtained a financial benefit from the prostitution of another person. Dabney was thus the pimp, the procurer, or the trafficker of the victim-prostitute, not the "customer."
There was no evidence that this is what happened here or that the victim was recruited for another real or potential "customer." Each act that a defendant was convicted of was a defendant obtaining, by various means, sex for himself from the victim, with no other person, not even another defendant, involved or obtaining any benefit. Nor was any defendant convicted of sharing any benefit with another defendant or any evidence offered of any such benefit. There is nothing in Dabney that would lead us to believe that that court would conclude that "recruit" would include a fact pattern such as the one in this case.
The financial or material benefit in Subsection 612(3)(a) is not the financial or material benefit that was received by the victim-prostitute for her services, which is referred to in Subsection 612(4). The "benefit" received by the victim-prostitute can only prove prostitution under either the FSM Code (where it is not made a crime) or under Chuuk state law. Under Chuuk state law, "'[p]rostitution' means the act of performing, or offering or agreeing to perform, a sexual act for hire, either as a prostitute or as a customer of a prostitute." Truk D.L. No. 2-94-21, § 1(f). Thus, that "benefit" does not constitute the financial or material benefit required by Subsection 612(3)(a) unless the victim-prostitute were proven to have turned the money or material benefit over to her trafficker (her pimp), as in Dabney. But there was no allegation or any evidence of that in this case. Subsection 612(3)(a) was not violated by any of the acts that the trial court found proven. To hold otherwise is to bend the statutes' meaning completely out of shape.
We also cannot agree with the dissent's conclusion that a victim's sexual services qualify as the financial or material benefit under the human trafficking statute. If it did, then every act of prostitution or sexual abuse would violate the national human tracking statute or, at least when the victim is a minor, if the dissent is read to only extend that far. There would be no difference between the crime of human trafficking and the crime of prostitution. That would be an absurd result. A statutory construction that ends in an absurd result must be rejected. FSM v. Aliven, 16 FSM R. 520, 533 (Chk. 2009). As should be obvious, not every act of prostitution is human trafficking.
Using a hypothetical example where a minor engages in illicit sex on an FSM-flagged vessel on the high seas where there is no state-defined crime of prostitution4 or sexual abuse, the dissent contends, in its third footnote, that this is not accurate. That example is misleading. Nothing like the events in this case would occur in that scenario. A minor victim would not be casually passing by an FSM vessel on the high seas and be lured or enticed into having sex for money there. In this hypothetical, her sexual "customers" would not be prosecuted for "recruiting," but whoever induced her to come to the vessel for that purpose, whoever arranged her transportation to the vessel, whoever transported her to the vessel, and whoever permitted her to board for the purpose of illicit sex, could be prosecuted as a trafficker, and possibly also as a trafficking smuggler.
Lastly, criminal statutes and criminal codes are all penal in nature. "It is an ancient rule of statutory construction that penal statutes should be strictly construed against the government . . . and in favor of the persons on whom penalties are sought to be imposed." 3 NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 59.03, at 102 (5th ed. 1992) (footnote omitted) ("It has been held that judicial construction not construing statutes in favor of the offender violate due process."). Despite this, the dissent goes to great lengths to try to construe every statutory word and phrase in the government's favor. It would stand this principle on its head. This cannot be.
We therefore must reverse the four convictions, which were all based on violating Subsection 612(3)(a).
H. Original Pleading
The information, as originally pled, may have had the requisite three persons for the alleged recruiting and requisite trafficking. Count IX charged conspiracy. It charged that the defendants shared information about minors likely to be willing to submit to sexual advances for financial or material gain. If a defendant had received, directly or indirectly, a financial or material benefit from someone other than himself for directing someone else (a co-defendant) to the minor so that the other could have sex with her in return for money or other material benefit, he would have been a human trafficker, and he might then have recruited the victim by first engaging in prostitution with her and then passing her along to another person for the same purpose.
The information's allegations were vague. No evidence along those lines was produced during trial. A careful review of the transcript does not reveal any evidence of a conspiracy. When this point came up during argument on the defendants' Rule 29(a) motions for acquittal, all the prosecutor could offer was that there was evidence that three of the defendants were pastors and it was a small island so they must have communicated. Tr. at 83. That inference was not enough. The trial court therefore acquitted all four defendants of the conspiracy charge.
The information's conspiracy count, as pled, alleged the existence of an informal organization of the four defendants for which the minor was recruited. But, as just noted, no evidence of that conspiracy or informal organization, was introduced at trial, and since the conspiracy count ended in early acquittals, no recruitment was possible.
We are mindful that human trafficking cases are still in their infancy in the FSM and thus clarifications as to the required elements of the crime must be established. It will be useful if we lay down the required elements of 11 F.S.M.C. 616 in conjunction with the definition of "exploitation" under 11 F.S.M.C. 612(3)(a) and (4). A person is guilty of trafficking in children when he or she recruits, transports, transfers, harbors, or receives a child by any means5 for the purpose of exploitation. That person exploits the child when he or she obtains financial or material benefit from the prostitution of the child; prostitution being defined as sexual services performed for financial or material benefit.
We do not take this case lightly. We do not doubt that crimes were committed. Sexual abuse, solicitation, and prostitution come to mind. Counsel for at least three of the four appellants conceded as much, arguing that their clients were guilty of sexual abuse, not trafficking in children. Tr. at 78-79, 93, 95, 97. But such crimes were not charged.
ACCORDINGLY, we hereby reverse the trafficking-in-children convictions for all defendants. Because we reverse the appellants' convictions on the prosecution's failure to prove all the statutory elements of the crimes charged, we do not reach the appellants' other issues. We remand this case to the trial court and direct it to enter a judgment of acquittal for each defendant.
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DENNIS L. BELCOURT, Associate Justice:
I respectfully concur in part and dissent in part. I would affirm the convictions of Defendants Shiro, Sino and Loves. I concur in the reversal of the conviction of Angken. My reasons are as follows:
1. Appellants were convicted of trafficking in minors, for recruiting the minor for exploitation by prostituting her. The majority reverses the convictions, relying on selective dictionary definitions, construes "recruit" in an unduly narrow fashion, inconsistent with the statutory context, as a basis for its reversal.
This Court has recognized that basing legal analysis on dictionary definitions can be an uncertain proposition; given that a comprehensive dictionary aims at setting out all meanings of a word, "while a court must determine the precise intended meaning of a word or phrase in a specified context." AHPW, Inc. v. FSM, 12 FSM R. 164, 166 (Pon. 2003). The majority's analysis further demonstrates the very uncertainty of that proposition, exemplifying the risk that one may tend to select from among numerous dictionary definitions a definition that suits an end or purpose, without regard to whether the definition fits the context in which it is used.
The definitions of "recruit" selected by the majority focus on membership in organizations: "provide with new members or employees," "enroll," or "obtain replacements for something needed." Majority opinion, supra, part IV.F. This meaning of "recruit," is not its sole meaning, as "recruit" can be to obtain to perform services. It has elsewhere been defined as "'hire or otherwise obtain to perform services,' to 'secure the services of' another, to 'muster,' "raise,' or 'enlist.' Webster's THIRD NEW INTERNATIONAL DICTIONARY 1899 (1993)." Commonwealth v. Dabney, 478 Mass. 839, 856, 90 N.E.3d 750, 750, 764 (2018) (emphasis added) (defining "recruit" in a human trafficking statute).1
In the context of the FSM Trafficking in Persons Act of 2012, one recruits "for the purpose of exploitation." Recruitment is a completed act if it is done with that purpose. It is not an essential element that appellants have recruited the minor for a prostitution ring or some other enterprise. The majority offers a strained interpretation, effectively inserting terms to the statute, which is not a requirement of the rule of narrow construction of penal statutes, which requires that words be "given their ordinary meaning and that any reasonable doubt . . . [be] decided in favor of" the accused. State v. D.A., 191 N.J. 158, 164, 923 A.2d 217, 220 (2007) (citation omitted).
I conclude that the trial division could properly find knowing recruitment in the three appellants' luring the minor to perform sexual services.
2. I also disagree with the majority's contention, its second basis for reversal, that there is a requirement in statute for a third person (a "pimp" or procurer) in prostitution-related trafficking. Reading section 616 according to the definitions of section 612, the plain meaning of "prostitution of another person" contemplates at least two persons: a person recruited (or received, etc.) to perform the illicit sexual services for financial or material benefit and a person receiving those sexual services (i.e., the customer or "john"), who prostitutes the minor. There may be another person or persons whose intent it is to receive financial or other material benefits from the prostitution, such as a procurer or, in the terms of the majority opinion, a "pimp." The majority concludes that appellants did not receive a financial or other material benefit from the prostitution of the minor, and thus cannot be guilty of violating section 616.
Again, I disagree. Appellants received sexual services, which may constitute a material benefit. "Financial or other material benefit" is not defined in the FSM Trafficking in Persons Act of 2012. However, the phrase "financial or material benefit" has been defined in the related UN protocol on human smuggling as "any type of financial or non-financial inducement, payment, bribe, reward, advantage, privilege or service (including of a sexual nature). While benefits may be non-economic in nature, they should not include emotional fulfilment resulting from assisting illegal entry or stay of a relative or acting for humanitarian motives."23
The question before us is whether the trial division could reasonably have been convinced beyond a reasonable doubt by the evidence presented that the defendants knowingly recruited, transported, transferred, harbored, or received a person below the age of 18 by any means for the purpose of obtaining of financial or other material benefit from the illicit sexual services performed for financial or material benefit of the person below the age of 18. My review of the record leads me to the conclusion that the trial division's findings of guilt as to Shiro, Loves and Sino are sufficiently supported.
3. On the other hand, I concur with the reversal of Appellant Angken's conviction. Angken was found guilty of Count IV of the Information based on his having "solicited" the minor to have sexual intercourse with him at his taro patch with the promise to pay her $15.00. Appellants' App. Shiro & Sino at 3. Angken argues that the testimony of the minor did not establish that he is a person who "knowingly recruits, . . . harbors, or receives" the instant minor for the purposes of "exploitation." Appellant Br. Loves & Angken at 14. The Information alleged that Angken "solicited" the minor to have sexual intercourse with him at his taro patch with the promise of $15.00, which he paid to her after he had sexual intercourse with her. The minor testified that, "he call [sic] me". Appellants' App. Loves & Angken Ex. Q at 142. However, according to her testimony, he did not offer anything in exchange for sex. Id. at 142, 149. The minor testified that she went with him, "[b]ecause he hold [sic] my hand and pull me and draw uh take me with him." (Even though she told him she did not want to go.) Id. at 148.
On cross-examination, the minor testified that Angken did recruit her "for the purpose of obtaining benefits." Id. at 178. She also conceded that she had told the police that when Angken had offered her $15.00 for sex, she said, "yes." Id. at 183. Nevertheless, the minor maintained that she was not a prostitute. Id. at 178-79. The court found that Angken recruited the minor, in that he "called" her and "pulled" her by the hand to go with him. Shiro, 21 FSM at 203.
For Angken, unlike the other three defendants, the testimony at trial from the minor victim was that he forced her to have sex, rather than that he induced her to do so by the prospect of the payment of money for sex. This testimony, which could support an alternative basis for "exploitation," e.g., exaction of forced labor pursuant to 11 F.S.M.C. 612(3)(b), was at material variance from the allegations in Count IV of the Information. A variance is a discrepancy or disagreement between the allegations of the charging instrument and the proof adduced at trial. Kasmiro v. FSM, 16 FSM R. 243, 245 (App. 2009) (basis for trial division's conviction of Defendant––Defendant's possession of rifle––was not alleged in information nor presented in prosecution's theory of the case was a prejudicial variance). Compare Otto v. Kosrae, 5 FSM R. at 221-22 (manner in which Defendant damaged vehicle not material to mischief charge). Although the minor victim acknowledged on cross-examination to having told a police officer of having accepted an offer by Angken of payment for sex, the minor victim did not reaffirm the truth of that statement, instead providing evidence of an altogether different basis of guilt. The information therefore failed to put Angken on notice of the only basis for his conviction supported by evidence on the record—that he used force to exact sex. Therefore, the evidence cannot sustain the trial division's finding of Angken's guilt beyond a reasonable doubt.
Here, having examined the facts presented, I would find that there is sufficient evidence on the record that Appellants Sino, Loves and Shiro recruited the victim who was a child when the criminal conduct was committed, thus meeting the "recruit" requirement, and that each recruited the minor in order to gain a material benefit, in the form of sexual services, from her prostitution. Therefore, I would find that the evidence before us cannot sustain the trial division's finding of Appellants Sino, Loves, and Shiro's guilt beyond a reasonable doubt. I concur in the reversal of the conviction Appellant Angken as proof adduced at trial was at variance with the charges against him in the information, which variance was prejudicial or material.
_______________________________Footnotes:
1 Although the trial court entered its general findings in writing on June 11, 2018, in a document labeled "Judgment of Conviction," that document could not have been a judgment of conviction because, to be a judgment of conviction, a document must "set forth the plea, the findings, and the adjudication and sentence," FSM Crim. R. 32(b), and the defendants were not sentenced until August. The August 9, 2018 "Judgment of Conviction" was the actual judgment of conviction.
2 Subsection 612(3) also defines "Exploitation" as "the exaction of forced labor or services, or the obtaining of labor or services through deceit, fraud, or by means of material misrepresentation;" 11 F.S.M.C. 612(3)(b), or "slavery or practices similar to slavery,"11 F.S.M.C. 612(3)(c). However, our analysis is limited to subsection (a), which was the charge alleged in the Information and found in the Judgment of Conviction.
3 Per the factual allegation in Count VI for which a Rule 29 judgment of acquittal was entered.
4 The FSM human trafficking statute, while defining prostitution, 11 F.S.M.C. 612(6), does not make prostitution a crime. That would criminalize the victim's conduct, not the trafficker's, and make the trafficking victims criminals, which is not a human trafficking statute's intent or purpose.
5 As opposed to section 615 which requires the means to be "by threat, force, abduction, fraud, deception, abuse of power or the giving or receiving of payments or benefit to achieve the consent of a person having control over another person . . . ."
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1 While I find the definition of "recruit" in Dabney to be apt, the majority points out factual distinctions between that case and the case before this Court. These distinctions are largely beside the point. The relevant point is that the definition of "recruit" in Dabney also fits the crimes proven in this matter.
2 Trafficking in Persons & Smuggling of Migrants Module 1 Key Issues: Financial or other Material Benefit, https://www.unodc.org/e4j/zh/tip-and-som/module-1/key-issues/financial-or-other-material-benefit.html (emphasis added). This definition has relevance as the FSM Congress enacted its trafficking and smuggling chapter as part of Public Law No. 17-38 to implement the FSM's accession to the "Palermo Protocol." See FSM Congress Standing Committee Report No. 17-90. The UN Convention Against Transnational Organized Crime and its three protocols on human trafficking, smuggling, and firearms, are intended to be interpreted together. See Article 1 of the Palermo trafficking protocol, known as the "Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime." The FSM acceded to this protocol on November 3, 2011. See https://www.fsmgov.org/cgi-bin/treaties.cgi.
3 One of the concerns of the majority is that to find trafficking under these sets of facts, every act of prostitution or sexual abuse of a minor becomes an offense of trafficking. That is not accurate, and it unduly downplays a crime whose purpose is sexual exploitation of minors. Section 616 criminalizes recruiting, etc. of minors for purposes of slavery, prostitution, or other "exploitation." Thus, in matters involving underage prostitution, it does not duplicate state-defined crimes that punish the acts of prostitution or sexual abuse. To the extent that the proof of human trafficking involving exploitation for purposes of prostitution under section 616 overlaps with the crimes of sexual abuse of a minor and prostitution, it is as a combination of the two crimes. Moreover, to the extent that overlap is a concern, it would not be a concern in cases where no state-defined crime of prostitution or sexual abuse can be made applicable, e.g., where the act occurs on FSM-flagged vessels on the high-seas. 11 F.S.M.C. 104(7)(b)(v).
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