FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Ehsa, 24 FSM R. 151 (Pon. 2023)
FEDERATED STATES OF MICRONESIA,
Plaintiff,
vs.
JOHN ANSON EHSA, a/k/a JOHN EHSA, JR.,
MERIU EHSA, and RAYNARD ANSON,
Defendants.
CRIMINAL CASE NO. 2023-500
ORDER RE: PROBABLE CAUSE, BRIEFING
Dennis L. Belcourt
Associate Justice
Hearing: March 29, April 3, 5, 2023
Decided and Corrected: June 27, 2023
APPEARANCES:
For the Plaintiff:
Nixon Alten, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendant:
Enlet Enlet, Esq.
(J. Ehsa)
Law Office of Marstella Jack
P.O. Box 2210
Kolonia, Pohnpei FM 96941
For the Defendant:
Jesse S. Mihkel, Esq.
(M. Ehsa)
Office of the Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941
For the Defendant:
Timoci Romanu, Esq.
(Anson)
Office of the Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941
* * * *
A probable cause hearing is needed when the defendants were brought to the court without a prior judicial determination of probable cause and the court imposes significant restraints on their liberty. FSM v. Ehsa, 24 FSM R. 151, 158 (Pon. 2023).
Probable cause exists when there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. Probable cause is not proof of guilt, but shows that a reasonable ground for suspicion, sufficiently strong to warrant a cautions man to believe that the accused is guilty of the offense, exists. FSM v. Ehsa, 24 FSM R. 151, 158 (Pon. 2023).
There is a substantial difference between the quantum of proof necessary to constitute sufficient evidence to establish probable cause and that necessary to support a conviction. FSM v. Ehsa, 24 FSM R. 151, 158-59 (Pon. 2023).
The burden of proof of probable cause lies with the prosecution. Proof may consist of evidence and information. FSM v. Ehsa, 24 FSM R. 151, 159 (Pon. 2023).
It is not an element of attempted possession that the person be the addressee on the package, a consignee, or an owner of the package because the crime of possession is knowingly or intentionally to possess a controlled substance, unless such substance was obtained directly from, or pursuant to, a practitioner's valid prescription or order. FSM v. Ehsa, 24 FSM R. 151, 160-61 (Pon. 2023).
A charge of attempted possession of marijuana will succeed or fail depending on whether the defendant's conduct, allegedly having claimed a parcel containing marijuana, constitutes a substantial step intended to culminate in the possession of marijuana, and the defendant's disclaiming ownership or consignment of the parcel is not relevant. FSM v. Ehsa, 24 FSM R. 151, 161 (Pon. 2023).
A Customs officer has the right to examine all goods subject to Customs control. FSM v. Ehsa, 24 FSM R. 151, 161 (Pon. 2023).
Under the border exception, search of goods under Customs control requires neither a warrant nor probable cause. FSM v. Ehsa, 24 FSM R. 151, 161 (Pon. 2023).
Congress has made it explicit that packages mailed from abroad to an FSM address, should not be opened by customs personnel without reasonable cause to suspect that articles in the package are either subject to duty or imported contrary to law. Absent regulations defining the circumstances in which parcels may be opened, "reasonable cause to suspect" that it contained goods subject to duty or that importation was contrary to law means to have a particularized and objective basis, supported by specific and articulable facts, to suspect either basis for opening the package. FSM v. Ehsa, 24 FSM R. 151, 161-62 (Pon. 2023).
A defendant who disclaims ownership or other interest in the package at the point of importation and who was not in possession of it when it was opened, lacks standing to have it suppressed. FSM v. Ehsa, 24 FSM R. 151, 162 (Pon. 2023).
Intent is a key element to the charges of attempted possession. Intent could be shown by evidence in the package itself that he had ordered the contents or otherwise had foreknowledge of those contents. FSM v. Ehsa, 24 FSM R. 151, 162 (Pon. 2023).
When the evidence and information brought forward in the preliminary hearing do not suggest that the defendant had any prior basis for knowing there was marijuana in the packages when he sought to claim them, the evidence and information presented at hearing was not sufficiently persuasive to warrant a cautious person to believe it is more likely than not that the defendant committed the crime of attempted possession of marijuana by requesting the packages or asking why they were withheld. FSM v. Ehsa, 24 FSM R. 151, 162 (Pon. 2023).
The elements of the crime of a threat to a public official are that 1) a person 2) threatens harm 3) to a public official, 4) with purpose 5) to influence him or her 6) to violate his or her known legal duty. FSM v. Ehsa, 24 FSM R. 151, 163 (Pon. 2023).
Although the strict guidelines against the admission of hearsay evidence do not apply in a probable cause hearing, the court may discount unreliable hearsay, and, although hearsay may be used, it is less reliable as the number of levels of hearsay increase. FSM v. Ehsa, 24 FSM R. 151, 163 (Pon. 2023).
Reliance on hearsay at a probable cause hearing must depend on its reliability, and ultimately, hearsay from the police, or other government agencies involved in law enforcement, should not be treated the same as hearsay from an unknown informant or an anonymous tip. Who the declarant is affects how the court weighs credibility behind the allegations supporting probable cause. FSM v. Ehsa, 24 FSM R. 151, 164 (Pon. 2023).
Given the exclusion of probable cause hearings from the FSM Evidence Rules, the touchstone for determining whether evidence or information is usable in a probable cause hearing is reliability, not admissibility. Each piece of information must be considered according to the totality of circumstances in the proper exercise of discretion. If reliable hearsay evidence is offered by the government, and the declarant is available to testify, a court may abuse its discretion if it does not allow the defendant to call the declarant as a witness. FSM v. Ehsa, 24 FSM R. 151, 164 (Pon. 2023).
The quantum of proof at the probable cause stage is much lower than at the guilt stage. FSM v. Ehsa, 24 FSM R. 151, 164 (Pon. 2023).
It is no defense to prosecution for the crime of a threat to a public official that a person to whom the defendant sought to influence was not qualified to act in the desired way, whether because he or she had not yet assumed office, or lacked jurisdiction, or for any other reason. FSM v. Ehsa, 24 FSM R. 151, 164 (Pon. 2023).
The National Criminal Code was primarily drawn from the Model Penal Code modified to suit the particular needs of the area. FSM v. Ehsa, 24 FSM R. 151, 164 n.1 (Pon. 2023).
The lack of the authority to act by the threatened official cannot be maintained as an impossibility defense, but that disposition to influence official conduct in the manner proscribed is an adequate basis for intervention of the criminal law whatever the formal capacities of the person to whom a threat is made or bribery offered. FSM v. Ehsa, 24 FSM R. 151, 164 (Pon. 2023).
The mens rea for weapons possession is know or be aware that he had the (weapon or ammunition) in his possession. FSM v. Ehsa, 24 FSM R. 151, 166 n.2 (Pon. 2023).
A violation occurs when: 1) a person 2) knowingly acquires or possesses 3) any firearm 4) without an identification card issued by the Department of Justice. FSM v. Ehsa, 24 FSM R. 151, 165-66 (Pon. 2023).
A misdemeanor violation occurs when a person 1) carries a firearm without a valid identification card, or 2) carries the firearm a) loaded or b) not in a closed case or other securely wrapped or closed package or container or c) not locked in the trunk of his or her vehicle while en route to or from a target range or area where he or she hunts or takes part in other sports involving firearms, or 3) carries the firearm not in plain sight on his or her person while actively engaged in hunting or sports involving the use of firearms. FSM v. Ehsa, 24 FSM R. 151, 166 (Pon. 2023).
An offense occurs when a person 1) transfers a firearm 2) to another person 3) without first ascertaining that the transferee holds an identification card 4) or without previously submitting to the Department of Justice a form providing information. FSM v. Ehsa, 24 FSM R. 151, 166 (Pon. 2023).
The elements of conspiracy are 1) an agreement 2) with one or more persons 3) to commit one or more crimes (the target crime), and 4) a party to the conspiracy commits an overt act. FSM v. Ehsa, 24 FSM R. 151, 166 (Pon. 2023).
The elements of solicitation of a national crime are a person 1) with intent to promote or facilitate the commission of a national crime, 2) commands, encourages, or requests another to engage in conduct or cause the result specified by the crime's definition, 4) which would be sufficient to establish complicity in the specified conduct or result. FSM v. Ehsa, 24 FSM R. 151, 166 (Pon. 2023).
Section 1003(2) exempts from the Weapons Control Act, firearms which are in unserviceable condition and which are incapable of being fired or discharged and which are kept as curios, ornaments or for their historical significance or value. Controlling FSM authority states that this exemption goes to an essential element of the government's case, meaning the government must negate at least one of the three parts of the exceptions (unserviceability, incapability of being fired, or held as a curio, etc.) in order to prove a prima facie case. FSM v. Ehsa, 24 FSM R. 151, 166 (Pon. 2023).
A photocopy duplicate of a self-authenticating document is admissible unless a genuine question is raised as to the authenticity of the original or, in the circumstances, it would be unfair to admit the duplicate in lieu of the original. FSM v. Ehsa, 24 FSM R. 151, 167 (Pon. 2023).
It is a criminal violation when a person knows or is aware that he possesses any handgun, and, like other firearm offenses, this is subject to the exemption in section 1003(2), for which the government bears the burden. FSM v. Ehsa, 24 FSM R. 151, 168 (Pon. 2023).
An officer's testimony that the defendant admitted that the handgun was in his vehicle and given that the gun was loaded is sufficient to provide probable cause that the defendant possessed it and it was not exempt under 1003(2). FSM v. Ehsa, 24 FSM R. 151, 168 (Pon. 2023).
11 F.S.M.C. 1023(5) does not prohibit ammunition, but sections 1005 and 1006 contain prohibitions that may be applicable to the ammunition, and, since it is the statement of facts in the pleading, rather than the statutory citation, that is controlling, so, if an information properly charges an offense under the laws, it is sufficient although the wrong statute number was cited. FSM v. Ehsa, 24 FSM R. 151, 168 & n.4 (Pon. 2023).
The possession of ammunition without an identification card is prohibited. The crime includes an element of knowledge or awareness of possession. FSM v. Ehsa, 24 FSM R. 151, 168-69 (Pon. 2023).
When the search warrant did not include ammunition, but ammunition was found in the course of the search, visible on the table or shelf, and also in the handgun and the officers executing the search were entitled to be in the residence while they were searing, the ammunition was in plain view and could be seized without a warrant. FSM v. Ehsa, 24 FSM R. 151, 169 (Pon. 2023).
Once a handgun is seized pursuant to a warrant on probable cause, checking the chamber or magazine in the firearm does not require a separate warrant. FSM v. Ehsa, 24 FSM R. 151, 169 (Pon. 2023).
It is a violation when a person 1) possesses (knowingly or with awareness) 2) any automatic weapon or rifle over .22 caliber. Like other firearm offenses, section 1023(5) is subject to the exemption in section 1003(2), for which the government bears the burden. FSM v. Ehsa, 24 FSM R. 151, 170 (Pon. 2023).
It is an element of section 1023(5) crime that the person know or be aware that he or she is in possession of the firearm. FSM v. Ehsa, 24 FSM R. 151, 170 (Pon. 2023).
When "possession" is not defined in FSM statute or yet been defined by FSM caselaw, the court may consult the common law. FSM v. Ehsa, 24 FSM R. 151, 170 (Pon. 2023).
At common law, there are two types of possession: actual and constructive. Actual possession exists when a person has direct physical control over a thing, and constructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object. FSM v. Ehsa, 24 FSM R. 151, 170 (Pon. 2023).
Physically transporting a case, covered on the outside by a towel, to a neighbor's house, for storage is not sufficient proof to warrant a cautious person to believe it is more likely than not that the defendant knew or was aware that he was transporting a firearm to the neighbor's house because, with the case wrapped in the towel, the item in the case was not obviously a firearm. FSM v. Ehsa, 24 FSM R. 151, 170 (Pon. 2023).
The court may take judicial notice of adjudicative facts that are either generally known within the trial court's territorial jurisdiction or that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. FSM v. Ehsa, 24 FSM R. 151, 170-71 (Pon. 2023).
The court may take judicial notice that AK-47s use a 7.62 mm round (.30 caliber), which, since AK-47s are rifles over .22 caliber, AK-47s are therefore illegal firearms. FSM v. Ehsa, 24 FSM R. 151, 170-71 (Pon. 2023).
Encyclopedias as general authorities can be unimpeachable sources from which facts may be taken by judicial notice. FSM v. Ehsa, 24 FSM R. 151, 171 n.5 (Pon. 2023).
Finding 28 rounds of ammunition in the case with an AK-47 is sufficient probable cause to negate the exemption at the probable cause stage. FSM v. Ehsa, 24 FSM R. 151, 171 (Pon. 2023).
11 F.S.M.C. 1023(5) does not include a prohibition of ammunition but section 1005(1) and section 1006(1) prohibit a person from possessing ammunition without an identification card, knowing or with awareness that he possesses ammunition. FSM v. Ehsa, 24 FSM R. 151, 171 (Pon. 2023).
The discovery of the ammunition in the case containing the AK-47 found support probable cause for actual or constructive possession, with the requisite knowledge, in violation of 11 F.S.M.C. 1005 or 1006 for the defendant who initiated the transfer of the case and the defendant from whose house the case was transported, but not the defendant who transported the case. FSM v. Ehsa, 24 FSM R. 151, 172 (Pon. 2023).
The knowing and intentional possession of a controlled substance is prohibited, and marijuana is a controlled substance. FSM v. Ehsa, 24 FSM R. 151, 172 (Pon. 2023).
Closed containers in the open may have a reasonable expectation of privacy in their contents. FSM v. Ehsa, 24 FSM R. 151, 172 (Pon. 2023).
When the search warrant allowed for search of firearms only and when there is no indication that the officers determined that the bag had the weight and heft and otherwise had the feel indicative that it contained a firearm, which determination could be done without opening the bag, the officers were unjustified under the warrant to search the black bag. FSM v. Ehsa, 24 FSM R. 151, 172 (Pon. 2023).
A warrant is not necessary to authorize seizure when marijuana is in plain view of a police officer who has a right to be in the position to have that view, and, as an exception to the warrant requirement, the burden of proof whether the marijuana was in plain view lies with the government. FSM v. Ehsa, 24 FSM R. 151, 173 (Pon. 2023).
When the interpretation of the warrant's scope to exclude a nahs is unreasonable because the nahs was connected to and attached to the rest of the house, items viewable from the nahs would fall within the scope of the plain view exception, and, when a review of police testimony establishes that the officer viewed the marijuana from the nahs, the search was reasonable insofar as the nahs was included within the warrant's scope. FSM v. Ehsa, 24 FSM R. 151, 173 (Pon. 2023).
Lack of subject-matter jurisdiction is a defense that can be raised at any time by any party or by the court. FSM v. Ehsa, 24 FSM R. 151, 174 (Pon. 2023).
Parties may not agree between themselves and stipulate to subject matter jurisdiction, the court has an obligation to independently determine whether it has subject matter jurisdiction. A court, whether trial or appellate, is obliged to notice want of jurisdiction, on its own motion. FSM v. Ehsa, 24 FSM R. 151, 174 (Pon. 2023).
It is a violation for a person 1) with purpose 2) to hinder the apprehension, prosecution, conviction, or punishment of another 3) for a national crime a) by harboring or concealing the other; b) by providing or aiding in providing a weapon, transportation, disguise, or other means of avoiding apprehension or effecting escape, c) by concealing or destroying evidence of the crime, or tampering with a witness, informant, document, or other source of information, regardless of its admissibility in evidence; d) by warning the other of impending discovery or apprehension, if not given in connection with an effort to bring another into compliance with law; or e) by volunteering false information to any law enforcement officer. FSM v. Ehsa, 24 FSM R. 151, 174 (Pon. 2023).
Probable cause for the crime of hindering is established when one person's alleged statement to another person to "take care" of his two rifles, moving the AK-47 would support probable cause that the first person, with the purpose of hindering the second person's apprehension for the national crime of possessing an illegal weapon, was warning the second of impending discovery; and the second person's allegedly covering the case in a towel and giving it to a third person to give to someone else for temporary storage, could constitute concealing evidence with the purpose of hindering her apprehension for the same crime. But, insofar as the third person did not know what was in the case, his moving of the case to another's house cannot be said to have concealed evidence with a requisite intent. FSM v. Ehsa, 24 FSM R. 151, 174-75 (Pon. 2023).
A conspiracy occurs when a person agrees with one or more others to commit any crime and a party to the conspiracy commits an overt act in furtherance of the conspiracy. To be guilty of conspiracy, the person must have specifically intended to violate the law. FSM v. Ehsa, 24 FSM R. 151, 175 (Pon. 2023).
Since the agreement to conspire may be implicit or explicit and need not be oral or in writing but may be shown by the circumstances surrounding the conspirators' conduct, the testimony as to what one defendant said, in conjunction with another defendant's actions thereafter, with respect to moving the firearm in a case, is sufficient to establish probable cause that those two defendants entered into an agreement with specific intent to hinder. FSM v. Ehsa, 24 FSM R. 151, 175 (Pon. 2023).
* * * *
DENNIS L. BELCOURT, Associate Justice:
This matter came before the Court for a probable cause hearing, requested by Defendants, which was held on March 29, 2023, April 3, 2023, and April 5, 2023. The Government was represented by Assistant Attorney General Nixon Alten, Esq., of the FSM Department of Justice. Defendant John Anson Ehsa(Mr. Ehsa) was represented by Enlet Enlet, Esq., of the Law Office of Marstella Jack, Esq. Defendant Meriu Ehsa (Mrs. Ehsa) was represented by Jesse S. Mihkel, Esq., of the FSM Office of the Public Defender. Defendant Raynard Anson (Mr. Anson) was represented by Timoci Romanu, the Acting Chief Public Defender for the FSM Public Defender's Office. The Defendants Meriu Ehsa and Raynard Anson were represented by the FSM Office of the Public Defender.
At the hearing, the Government called as witnesses 1. Investigator Jayson Johna, FSM National Police, 2. Customs Officer Jeffrey Aron, 3. Investigator Raynard Johna, FSM National Police Officer, 4. Captain (Acting Major) Kasner Aldens, 5. Customs Revenue Officer Alexis Clinton Etse, and 6. Police Patrol Officer Jeffrey Panuel.
Defendants are charged with twenty-one counts: three counts of attempted possession of marijuana (Mr. Ehsa only), one count of marijuana possession (Mr. Ehsa, only), threats to a public official (Mr. Ehsa, only), assorted firearms violations (all three defendants), one count of hindering apprehension (all defendants) and one count of conspiring to hinder prosecution (all defendants).
On March 21, 2023, the Defendants filed a joint motion for a probable cause hearing. A probable cause hearing is needed where the defendants were brought to the court without a prior judicial determination of probable cause and the court imposes significant restraints on their liberty. FSM v. Wainit, 10 FSM R. 618, 622 (Chk. 2002) (a preliminary hearing would be required if the defendant were to be detained pending trial or if significant restraints were to be placed on his liberty). Defendants, having been arrested without warrants, and having imposed on them restraints on their liberties, are thus entitled to a probable cause determination.
Probable cause exists when there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. Wainit, 10 FSM R. at 621. "Probable cause is not proof of guilt, but shows that a reasonable ground for suspicion, sufficiently strong to warrant a cautions man to believe that the accused is guilty of the offense, exists." II J. of Micro. Con. Con. 774. There is a substantial difference between the quantum of proof necessary to constitute sufficient evidence to establish probable cause and that necessary to support a conviction. FSM v. Kimura, 19 FSM R. 630, 636 (Pon. 2015).
The burden of proof of probable cause lies with the prosecution. Kimura, 19 FSM R. at 636; FSM v. Yue Yuan Yu No. 708, 7 FSM R. 300, 306 (Kos. 1995) (prosecutor failed to bear burden). As the above definition of probable cause implies, proof may consist of evidence and information. The FSM Rules of Evidence do not apply to preliminary hearings. FSM Evid. R. 1101(d)(3) (miscellaneous proceedings, including preliminary examinations).
1. Attempted Marijuana Possession: Marijuana Cigarettes
Counts I through III allege that, on three separate occasions, Mr. Ehsa attempted to possess marijuana at the post office and the National Police office. In support of these three counts, investigating Officer Jayson John testified, based on a report from Customs and Tax Administration officer Kohler Carl and interviews of Mr. Carl, Customs and Tax Administration ("CTA") employees Jeffrey Aron and Alexes Clinton Etse, and Postal Clerk Jennifer Panuelo, that Mr. Ehsa attempted to possess marijuana cigarettes found in one of two parcels addressed to John Ehsa sent to a post office box (in the name of John Ehsa) from a sender in Oklahoma sought to claim a mailed parcel (addressed to John Ehsa)that contained marijuana "joints" along with other belongings.
On the first occasion, Mr. Ehsa showed up to claim the parcels at the CTA office at the main post office. CTA personnel had already opened up the parcels and found the joints, identifying the marijuana by smell. According to the affidavit of probable cause, Mr. Ehsa was told the parcel would not be released to him, that it contained "contraband."There was no testimony at the hearing that he was told what the contents were. On the second occasion, at the post office, according to Jayson Johna, Mr. Ehsa asked postal clerk Jennifer Panuelo "why are you guys holding these packages?" She told him she did not know. He said he was "Jun Ehsa" and he "has more guns than Pohnpei State." Walking out of the post office, he turned around and said he would be back at noon that day to pick up his packages.
The third occasion, which according to Jayson Johna occurred on February 13, 2023, started with Mrs. Ehsa going to the office of the National Police at Palikir to ask for the packages. Witness Raynard Johna testified that he met with Mrs. Ehsa and asked her if she knew what was in the packages, to which Mrs. Ehsa responded "no." Then Raynard Johna told her Mr. Ehsa needed to come down to the office, because "that's why we are holding the boxes." Mr. Ehsa came down to the office and was arrested and told the marijuana in the box was the reason for his arrest, his charge attempted possession of marijuana.
A. Summary of Arguments re: Attempted Possession
In his closing argument, Mr. Ehsa argues first, that he was not the owner/consignee of the packages, as they were for "John Ehsa," and he goes by "John Ehsa, Jr.," and second, the government did not have probable cause to search the boxes, pointing to 54 F.S.M.C. 235(1)(a) (customs officer may open packages subject to Customs control); 39 F.S.M.C. 205 (designated customs personnel may open mail originating outside the country without a warrant but must have a reasonable suspicion that goods were either subject to duty or imported unlawfully); and the right of privacy in Article IV, section 4 of the FSM Constitution.
The government contends it met its burden of showing probable cause through sufficient evidence. It too points to 54 F.S.M.C. 235(1)(a) and 39 F.S.M.C. 205, contending that there was a disparity between labeled contents and weight, suggesting a failure to accurately declare contents.
I address the arguments as follows:
(i). Mr. Ehsa is not an owner or consignee of the packages.
Mr. Ehsa is alleged to have claimed the two packages, one of which contained marijuana joints, as an attempt to possess marijuana in violation of 11 F.S.M.C. 1145. Aff. of Probable Cause, para. 2. That provision merely establishes the penalty for an attempt, and the crime of attempted possession is described in two other sections, 11 F.S.M.C. 201 (attempt) and 1142 (possession of controlled substances), which read as follows:
Section 201 Attempts.
(1) A person commits the crime of an attempt to commit a crime if, with intent to commit a national crime, he or she does an act which constitutes a substantial step in a course of conduct planned to culminate in the commission of that crime.
(2) It is an affirmative defense to a charge of attempt that the crime was not committed because the defendant desisted voluntarily and in good faith and abandoned his or her intention to commit the crime.
(3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.
Section 1142 Possession.
(1) It is unlawful for any person knowingly or intentionally to possess a controlled substance, unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter.
(2) Any person who violates subsection (1) of this section with respect to any controlled substance except marihuana shall be sentenced to a term of imprisonment for not more than one year, a fine of not more than $1,000, or both.
(3) Any person who violates subsection (1) of this section with respect to marihuana shall be penalized as follows:
(a) any person who possesses one ounce or less shall be fined not more than $50;
(b) any person possessing more than one ounce but less than two and two-tenths pounds shall be sentenced to a term of imprisonment of not more than three months, a fine of not more than $500, or both;
(c) any person possessing two and two-tenths pounds or more of marihuana shall be sentenced to a term of not more than one year, a fine of not more than $1,000, or both. The possession of two and two-tenths pounds or more of marihuana by any person shall constitute a rebuttable presumption of the crime of trafficking under subsection (2)(b) of section 1141 of this chapter.
It is not an element of attempted possession that the person be the addressee on the package, a consignee, or an owner of the package. It would suffice if with "intent to commit" the crime of possession, he "does an act which constitutes a substantial step in a course of conduct planned to culminate in the commission of that crime." The crime of possession is "knowingly or intentionally to possess a controlled substance, unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner . . . ."
The charges of attempted possession of marijuana against Mr. Ehsa will succeed or fail depending on whether his conduct, allegedly having claimed a parcel containing marijuana, constitutes a substantial step intended to culminate in the possession of marijuana, and his disclaiming ownership or consignment of the parcel is not relevant.
(ii). The Customs Officers Lacked Probable Cause to Open the Package
The package addressed to "John Ehsa," in which, on opening by CTA, was found to contain marijuana, was apparently mailed from Oklahoma, USA. It was thus subject to CTA's control under Section 234 of title 54 of the F.S.M. Code. As noted by the parties, section 235 of title 54 confers authority to open packages subject to its control: "A Customs officer shall have the right to examine all goods subject to Customs control. (1) Examination of goods. In carrying out the examination of goods: (a) Any Customs officer may open packages and examine, weigh, mark and seal any goods.
Although section 235 does not address whether, pursuant to Article IV, section 5 of the FSM Constitution, goods within Customs control may only be searched on a showing of probable cause, the trial division has held that, under the border exception, search of goods under Customs control require neither a warrant nor probable cause. In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 461 (Pon. 2020).
However, both Mr. Ehsa and the government also point to section 205 of title 39 of the FSM Code, which provides in pertinent part:
Designated customs personnel of the Federated States of Micronesia Department of Finance, Revenue Division, may, without a search warrant but upon reasonable cause to suspect that mail contains articles that are subject to duty or imported contrary to law, open and inspect the contents of mail which has originated outside the Federated States of Micronesia and is addressed for delivery inside the Federated States of Micronesia . . . .
Id. (emphasis added).
Thus, Congress has made it explicit that packages, such as those sent to Mr. Ehsa, mailed from abroad to an FSM address, should not be opened by customs personnel without reasonable cause to suspect that articles in the package were either subject to duty or imported contrary to law.
The Court understands Mr. Ehsa's contention to be that the marijuana was found in an illegal search and therefore cannot be considered by this Court in its determination of whether probable cause exists for the charges of attempted possession of that marijuana.
The government called the two customs officers who searched the parcels as witnesses. At one point in his testimony, Customs and Revenue Officer III Jeffrey Aron testified it was a requirement that every parcel be inspected. At another point he stated that it was procedure that every package be opened. He also testified that a suspicion, from information CTA received from an informant, that Mr. Ehsa used vape, was a reason for opening the package. He believed it was due to vaping being prohibited by Pohnpei state law.
Customs and Revenue Officer I Alexes Clinton Etse concurred with his colleague that the procedure was that all packages are opened, and he stated that there was nothing suspicious about the two packages of Mr. Ehsa. On further examination, he stated another ground, that there were discrepancies between the customs declaration on the packages and the size and the weight of the packages.
This Court has found nothing in the FSM Customs Regulations adopted effective October 1, 1997, and has not been provided with any other regulations, addressing the opening of incoming mail (outbound mail requires a search warrant, under 39 F.S.M.C. 205(2)). Absent regulations defining the circumstances in which parcels may be opened, I interpret "reasonable cause to suspect" that it contained goods subject to duty or that importation was contrary to law as set forth in 39 F.S.M.C. 205 to mean "to have a particularized and objective basis, supported by specific and articulable facts, to suspect" either basis for opening the package. Cf. FSM v. Isaac, 21 FSM R. 370, 374 & n.5 (Pon. 2017) (probable cause in the criminal context). Absent record-keeping, the opening of a package will be presumed contrary to 39 F.S.M.C. 205.
While both Mr. Aron and Mr. Etse had clear recollections of the search of Mr. Ehsa's boxes, their justifications were inconsistent. As previously noted, Mr. Etse first indicated he had no suspicion, and then, on further examination seemed to have been arrived at an after-the-fact justification. Mr. Aron's reference to alleged vape usage, absent some proof that Mr. Ehsa was a prior importer (not just a user) provides a scant basis for opening a package.
However, even if the search is noncompliant with 39 F.S.M.C. 205, that would not warrant suppression of the marijuana as evidence in this case. Mr. Ehsa disclaims ownership or other interest in the package at the point of importation and it was not in his possession at the time it was opened. He therefore lacks standing to have it suppressed. FSM v. Skico, Ltd. (I), 7 FSM R. 550, 553 (Chk. 1996).
(iii). Government's Case for Probable Cause on Attempted Possession of Marijuana
The government simply contends that the opening of the parcels was compliant with 39 F.S.M.C. 205 and recites what Mr. Ehsa did in seeking release of the parcels to him as proof of probable cause on the charge of attempted possession of marijuana.
B. Analysis
Breaking down the elements of the crime of attempted possession of marijuana, briefly stated, I view the task at hand to determine whether the evidence and information established probable cause that Mr. Ehsa intended to possess the marijuana, that he took substantial steps to do so, steps that were highly corroborative of that intent.
Intent is a key element to the charges of attempted possession. Intent could be shown by evidence in the package itself that he had ordered the contents or otherwise had foreknowledge of those contents. The evidence and information brought forward in the hearing do not suggest that Mr. Ehsa had any prior basis for knowing there was marijuana in the packages when he sought to claim them.
According to the affidavit of probable cause filed with the complaint, when Mr. Ehsa first requested the parcels, he was told by Customs personnel that they would not be released to him because they contained contraband. There was no indication in the affidavit that he was told what the contraband was, and no testimony on this point was presented at the hearing. Not until Mr. Ehsa's arrest, after he arrived at the National Police office in Palikir, because his mother told him that officer Raynard Johna said he should come in to the office, was he told of the marijuana in the package.
Based on the foregoing, I do not find the evidence and information presented at hearing sufficiently persuasive to warrant a cautious person to believe it is more likely than not that Mr. Ehsa committed the crime of attempted possession of marijuana by requesting the packages or asking why they were withheld. Counts I through III are therefore dismissed. FSM v. Mudong, 1 FSM R. 135, 140 (Pon. 1982) (After prosecution has been initiated, the court may dismiss litigation if there is no probable cause to believe that a crime has been committed); FSM v. Carl, 1 FSM R. 1 (Pon. 1981).
2. Threat of Harm to Public Official (Count IV)
A. Background
Count IV of the Information in this matter charges that Mr. Ehsa violated 11 F.S.M.C. 517(1)(c) when he made a threat ("he has many [sic] firearms than Pohnpei state") to Pohnpei Postal Clerk Jennifer Panuelo, in order to influence her to release the parcels.
B. Elements to Threat to Public Official
The elements of a violation of 517(1)(c) are that (1) a person (2) threatens harm (3) to a public official (4) with purpose (5) to influence him or her (6) to violate his or her known legal duty.
C. Probable Cause Analysis
The government's proffered evidence of probable cause came primarily through the testimony of National Police officer Jayson Johna, who interviewed Ms. Panuelo after the alleged threat was made. Ms. Panuelo told him that at 8 am on February 7, 2023, a man identifying himself as "Jun Ehsa" came into the Post Office and asked "why are you guys holding these packages?" Ms. Panuelo said her response was that she did not know anything about the packages and that he should speak with CT officers. After stating his name, he said he has "more guns than Pohnpei state," and, walking out of the office, he said he would be back at noon.
Mr. Ehsa contends that this Court cannot base its decision on Officer Johna's hearsay testimony, absent a showing of unavailability of Ms. Panuelo. He cites to dicta in FSM v. Kimura, 19 FSM R. 630 (Pon. 2015), which states "[e]stablishing probable cause on the basis of hearsay alone should only be resorted to when the testimony of a perceiving witness is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge." Id. at 636.
However, the trial division in Kimura reached a conclusion that it could nevertheless rely on hearsay testimony where the declarant was another law enforcement officer:
The court also finds that probable cause must be made from a reasonable person perspective, using the fellow-officer rule, to include all of the information that collectively the Government had in its possession at the time of the arrest, and not merely the actual knowledge of any one particular officer. Additionally, hearsay can be used to support a probable cause finding, if it has the indicia of reliability. Assessments on the reliability of hearsay should include a consideration for the integrity, training, and the experience of police officers, or other law enforcement agents, from whom it comes. If, after a reasonable investigation under the circumstances, which includes the knowledge of the source, this hearsay is corroborated, it should be considered by the court and weighed accordingly.
Id. at 638.
"[A]lthough the strict guidelines against the admission of hearsay evidence do not apply in a probable cause hearing, this Court may discount unreliable hearsay." Yue Yuan Yu No. 708, 7 FSM R. at 304. And, although hearsay may be used, it is "less reliable as the number of levels of hearsay increase." Id. In Yue Yuan Yu No. 708, the trial division found the lone affidavit of an officer, lacking in detail, to be unreliable hearsay, and, unaccompanied by any other testimony, found that the FSM failed to bear its burden to show that it had probable cause. Id. at 304, 306.
Reliance on hearsay at a probable cause hearing must depend on its reliability, and "[u]ltimately, hearsay from the police, or other government agencies involved in law enforcement, should not be treated the same as hearsay from an unknown informant or an anonymous tip. In short, who the declarant is affects how the court weighs credibility behind the allegations supporting probable cause." Kimura, 19 FSM R. at 636.
Turning to the facts at hand, the government presented only hearsay—out-of-court statements by declarant Ms. Panuelo, made to and testified to in court by Officer Jayson Johna—as probative of probable cause of what Mr. Ehsa said to her. According to Officer Johna's testimony in the probable cause hearing, the conversation was "seen" in part by him when he viewed video of it but not heard (there was no audio). The declarant is not a law enforcement officer but is a government employee whose declaration is a recounting of words allegedly said to her by Mr. Ehsa.
As the ultimate holding in Kimura shows and given the exclusion of probable cause hearings from the FSM Rules of Evidence—see Rule 1101(d)(3), the touchstone for determining whether evidence or information is usable in a probable cause hearing is reliability, not admissibility. Each piece of information must be considered according to the totality of circumstances in the proper exercise of discretion. For example, if reliable hearsay evidence is offered by the government, and the declarant is available to testify, a court may abuse its discretion if it does not allow the defendant to call the declarant as a witness. McDonald v. District Ct., 576 P.2d 169, 171 (Colo. 1978) (court ordered to hold new preliminary hearing after denial of opportunity to call witnesses). Mr. Ehsa did not attempt to call Ms. Panuelo to testify.
Mr. Ehsa contends that the alleged statement does not constitute a threat designed to influence Ms. Panuelo to release the parcels, but a mere blurting out in frustration, ineffectual because Ms. Panuelo was not in a position to violate a duty, as she had no authority to release them.
As noted above, the quantum of proof at the probable cause stage is much lower than at the guilt stage. Kimura, 19 FSM R. at 636. I find that a reasonable person could conclude more likely than not the statement was a threat.
Mr. Ehsa's points out that Ms. Panuelo could not do anything any way, the information addresses only influencing action by Ms. Panuelo, causing her to release the goods in violation of her "known legal duty."Proof at hearing was that she had no authority to release the parcels, as she claimed ignorance and told Mr. Ehsa to CTA to address his concern.
However, 11 F.S.M.C. 517(2) states that Ms. Panuelo's lack of legal authority to release the parcels is of no consequence: "It is no defense to prosecution under this section that a person to whom the defendant sought to influence was not qualified to act in the desired way, whether because he or she had not yet assumed office, or lacked jurisdiction, or for any other reason." Id.
Section 517 of title 11 of the FSM Code is drawn from section 240.2 of the American Law Institute's Model Penal Code.1 Commentary from the American Law Institute, publisher of the Model Penal Code explains that the purpose of the latter language is to provide that the lack of authority cannot be maintained as an impossibility defense, but that "disposition to influence official conduct in the manner proscribed by this section is an adequate basis for intervention of the criminal law whatever the formal capacities of the person to whom" a threat is made or bribery offered. MODEL PENAL CODE AND COMMENTARIES § 240.1, at 37 (bribes) and § 240.2, at 58 (threats).
Therefore, the lack of authority on the part of Ms. Panuelo is not per se a defense. It is, however, a requisite element of a section 517(1)(c) violation that Mr. Ehsa have had a purpose of influencing a Ms. Panuelo's known legal duty, and if he did not believe Ms. Panuelo had the authority, it cannot be said that he had that purpose.
From what Mr. Ehsa purportedly said to Ms. Panuelo, including his promise to return at noon, a reasonable person may find it more likely than not that Mr. Ehsa harbored the belief that Ms. Panuelo had the authority to return the parcels. Therefore, probable cause is established.
It is also an element that Mr. Ehsa believed that what he had as his purpose to influence Ms. Panuelo to do was a violation of a known legal duty. According to the affidavit of probable cause by Officer Jayson Johna, on Mr. Ehsa's visit to CTA, CTA personnel informed him that the parcels contained contraband and could not be returned to him, informing him of a known legal duty not to release the goods.
Based on the foregoing, I find that probable cause exists for Count IV.
3. Mr. Ehsa's and Mr. Anson's Possession, Carrying or Transfer of .22 Long Rifle Without Valid Identification Cards (Counts V-XII)
A. Background
After Mr. Ehsa allegedly made the threat to Ms. Panuelo on February 7, 2023, purportedly stating that he had more firearms than Pohnpei state, the government requested and obtained from this Court a search warrant to look for firearms at his residence in Lehnpwus, Madolenihmw, which it executed on February 16, 2023. According to testimony of Officer Jayson Johna, while at Lehnpwus, Mr. Ehsa told him he had a .22 long rifle then with his brother Raynard Anson. According to Mr. Ehsa's testimony, the .22 long rifle was subsequently obtained, that same day from Mrs. Ehsa's residence.
B. Charges Concerning .22 Rifle
Count V charges Mr. Ehsa with possession of a .22 long rifle on or about January 2023 without an identification card in violation of 11 F.S.M.C. 1005(1). Count VI charges Mr. Anson with unlawfully possessing a .22 long rifle when he received it from Mr. Ehsa in violation of 11 F.S.M.C. 1005(1). Count VII charges Mr. Ehsa with possession of a .22 long rifle on or about January, 2023, without a valid identification card, conduct in violation of 11 F.S.M.C. 1005(1) and (2). Count VIII charges Raynard Anson with unlawfully possessing in February 2023 a .22 long rifle without a valid identification card, in violation of 11 F.S.M.C. 1005(1) and (2) when he received the firearm from Mr. Ehsa. Count IX charges Mr. Ehsa with carrying a .22 long rifle in January 2023 without possessing a valid identification card when he took the.22 long rifle and gave it to Raynard Anson, in violation of 11 F.S.M.C. 1007. Count X charges Mr. Ehsa without having an identification card with transferring a .22 long rifle to Mr. Anson in violation of 11 F.S.M.C. 1016. Count XI charges Mr. Ehsa and Mr. Anson, on or about January 2023, without possessing valid identification, with agreeing to transfer the .22 rifle, in violation of 11 F.S.M.C. 203. Count XII charges Mr. Ehsa and Mr. Anson, without valid cards, encouraging or requesting each other to transfer the .22 rifle, in violation of 11 F.S.M.C. 202.
C. Elements of Offenses re: .22 Caliber Rifle
11 F.S.M.C. 1005 (Counts V-VIII)
A section 1005 violation occurs when: (1) a person (2) knowingly2 acquires or possesses (3) any firearm (4) without an identification card issued by the Department of Justice.
11 F.S.M.C. 1007 (Count IX)
A section 1007 violation, a misdemeanor, occurs when: a person (1) carries a firearm without a valid identification card, or (2) carries the firearm (a) loaded or (b) not in a closed case or other securely wrapped or closed package or container or (c) not locked in the trunk of his or her vehicle while en route to or from a target range or area where he or she hunts or takes part in other sports involving firearms, (3) or carries the firearm not in plain sight on his or her person while actively engaged in hunting or sports involving the use of firearms.
11 F.S.M.C. 1016 (Count X)
A section 1016 offense occurs when a person (1) transfers a firearm (2) to another person (3) without first ascertaining that the transferee is the holder of an identification (4) or without previously submitting to the Department of Justice a form providing information.
11 F.S.M.C. 203 (Count XI)
Section 203 relates to conspiracy to commit a crime. The elements are (1) an agreement (2) with one or more persons (3) to commit one or more crimes (the target crime) (4) a party to the conspiracy commits an overt act. Although the section of law of the target crime is not expressly stated in Count XI, it is apparent that the target crime is either section 1005 or 1006, both of which have as elements (5) possession of a firearm (6) without a valid identification card.
11 F.S.M.C. 202 (Count XII)
Section 202 relates to solicitation of a national crime. Its elements are a person (1) with intent to promote or facilitate the commission of a national crime, (2) commands, encourages or requests another to (3) engage in conduct or cause the result specified by the definition of the crime, (4) which would be sufficient to establish complicity in the specified conduct or result.
As with Count XI, the section of the law of the target crime is not set forth in Count XII, but it is apparent that the target crime is either section 1005 or 1006, both of which have as elements (5) possession of a firearm (6) without a valid identification card.
11 F.S.M.C. 1003(2) Exemption
Section 1003(2) exempts from the Weapons Control Act, chapter 10 of title 11 of the Code of the Federated States of Micronesia, "firearms which are in unserviceable condition and which are incapable of being fired or discharged and which are kept as curios, ornaments or for their historical significance or value." Id. Controlling authority in the Federated States of Micronesia states that this exemption goes to an essential element of the government's case, meaning the government must negate at least one of the three parts of the exceptions (unserviceability, incapability of being fired, or held as a curio, etc.) in order to prove a prima facie case. Ludwig v. FSM, 2 FSM R. 27, 37 (App. 1985) (A trial court may not simply presume that a person who possesses a firearm is not keeping it as a curio, ornament or for historical significance. This would be an irrational or arbitrary, hence unconstitutional, presumption or inference because one cannot determine from mere possession of a firearm alone the purpose or nature of that possession); FSM v. Meitou, 18 FSM R. 121, 129 (Chk. 2011) (An information charging firearms possession is sufficient if it or the supporting affidavit contains an allegation that negates any one of the three 11 F.S.M.C. 1003(2) requirements and the prosecution's proof at trial is sufficient if it negates beyond a reasonable doubt any one of the three requirements).
D. Probable Cause Analysis, Counts V through XII
(i) Possession, carrying or transfer of .22 rifle
A requirement common to each count is either possession of, carrying, or transferring the firearm. Officer Jayson Johna testified that Mr. Ehsa even brought the existence of his .22 rifle to the attention of the National Police and that both Mr. Anson and Mr. Ehsa admitted to possessing and transferring the .22 rifle to each other. Thus, I find probable cause for this element is established.
(ii) Identification Card
The information alleges as a basis for the violations in Counts V through XII that Mr. Ehsa and Mr. Anson were without identification cards when they possessed, carried, or transferred the .22 rifle. Officer Jayson Johna testified that on February 14, 2023, before the search warrant was requested, he contacted Captain John Augustine of the Pohnpei State Police to find out whether Mr. Ehsa had an identification card. Mr. Augustine told him that he did not but that he had a pending application. Although, as noted above, Mr. Anson is alleged not to have an identification card, there is no mention in the affidavit of probable cause or testimony at the hearing substantiating the allegation that Mr. Anson lacked an identification card.
At the probable cause hearing, during Jayson Johna's testimony, Mr. Ehsa's counsel, Mr. Enlet, produced a photocopy of what appears to be a Firearms and Ammunition Card, issued January 24, 2023. Def.'s Ex. A. Mr. Johna noted that the identification card, which referred to a serial number that was off on one of the digits from the .22 rifle pictured in the government's exhibit 2. The Court notes that Exhibit A, misspells the manufacturer's name ("Roger" v. "Rueger"). The card shows Mr. Ehsa's name as John Anson Ehsa, same as a photocopy of a driver license, also on Exhibit A, and his U.S. Passport, which he lodged with the Court Clerk's office pursuant to this Court's order. Another discrepancy is Mr. Ehsa's citizenship on the card is FSM, while the driver license, passport, and statements he has made to the Court consistently indicate he is a U.S. citizen.
The FSM Rules of Evidence, although inapplicable to the probable cause hearing, are a guide. Using those rules, the Court looks at whether the photocopy is admissible as a duplicate of a self-authenticating document. The card appears to bear a seal of the State of Pohnpei and its original would thus be self-authenticating. FSM Evid. R. 902(1). As a duplicate, FSM Evid. R. 1001(4), the photocopy "is admissible unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." FSM Evid. R. 1003.
I do not find the discrepancies--typos and entry errors in the card fields--create a genuine question as to authenticity of the duplicate. Nor does it appear there are circumstances that make it unfair for me to consider the photocopy.
I therefore determine that I may consider the photocopy of the card, and, in doing so, I find that it overcomes the evidence and information that Officer Jayson Johna produced and negates probable cause as to Mr. Ehsa lacking an identification card for the .22 rifle. Based on the foregoing and the lack of evidence or information that Mr. Anson lacks an identification card, I dismiss Counts V through XII as to both Mr. Ehsa and Mr. Anson.3
4. Mr. Ehsa's Possession of a Handgun (Count XIV)
A. Background
Pursuant to the search warrant, and as testified to by Officer Jayson Johna, on February 16, 2023, officers searched the flatbed truck owned by Mr. Ehsa. When Mr. Johna was about to open the flatbed, Mr. Ehsa told him about a handgun in the vehicle, which they found. Mr. Ehsa denied the hand gun was "for him." Officer Johna stated the handgun was armed when it was found.
B. Charges Concerning Handgun
Mr. Ehsa is charged with possession of a handgun under 11 F.S.M.C. 1023(5).
C. Elements of Offense re: Handgun
Section 1023(5) is violated, inter alia, when a person (1) knows or is aware that (2) he possesses (3) inter alia, any handgun. Like other firearm offenses, section 1023(5) is subject to the exemption in section 1003(2), for which the government bears the burden. Ludwig, 2 FSM R. at 37.
D. Probable Cause Analysis
Officer Johna's testimony that Mr. Ehsa admitted that the handgun was in his vehicle and given that it was loaded are sufficient to provide probable cause that Mr. Ehsa possessed it and it was not exempt under 1003(2). Meitou, 18 FSM R. at 129.
5. Mr. Ehsa's Possession of Ammunition (Count XV)
A. Background
In executing the search warrant on Mr. Ehsa's residence and vehicle, which was for firearms (but not ammunition), according to Officer Johna's testimony, he found .45 ammunition in the handgun and inside Mr. Ehsa's house on a table.
B. Charge Concerning Ammunition for Handgun
Mr. Ehsa is charged with possession of ammunition under 11 F.S.M.C. 1023(5). However, 11 F.S.M.C. 1023(5) does not prohibit ammunition; on the other hand, sections 1005 and 1006 contain prohibitions that may be applicable to the ammunition in question.4
C. Elements of Offense re: Ammunition for Handgun
Section 1005(1) and section 1006(1) prohibit possessing ammunition without an identification card. It includes an element of knowledge or awareness of possession.
D. Probable Cause Analysis (Count XV)
While the search warrant did not include ammunition, ammunition was found in the course of the search, visible on the table or shelf, and also in the handgun. The officers executing the search were entitled to be in the residence while they were doing so, and items in plain view could be seized without a warrant. FSM v. Mark, 1 FSM R. 284, 294-95 (Pon. 1983) (A warrant is not necessary to authorize seizure when marijuana is in plain view of a police officer who has a right to be in the position to have that view.)
Once the handgun was seized pursuant to a warrant on probable cause, checking the chamber or magazine in the firearm does not require a separate warrant. The constitutional protection of the individual against unreasonable searches and limitation of powers of the police apply wherever an individual may harbor a reasonable expectation of privacy. FSM v. Tipen, 1 FSM R. 79, 86 (Pon. 1982). There is no reasonable expectation of privacy in containers whose"contents can be inferred from their outward appearance." United States v. Meada, 408 F.3d 14, 22 (1st Cir. 2005) (defendant did not have a reasonable expectation of privacy in the contents of gun case labeled "GUN GUARD," which clearly revealed its contents). If not outwardly visible, it is to be inferred that a gun's magazine or chambers will contain ammunition.
Thus, the discovery of the .45 ammunition in the handgun he acknowledged to be in and was found in Mr. Ehsa's flatbed, and ammunition in plain view on the table in his residence support probable cause for a violation of 11 F.S.M.C. 1005 or 1006.
6. Possession of AK-47 by Mr. Ehsa, Mrs. Ehsa, and Mr. Anson (Counts XVI and XVII)
A. Background
According to Officer Jayson Johna, after the search of the residence, Mr. Ehsa was arrested and taken to the police station, where Mrs. Ehsa was there when he arrived. Mr. Ehsa, who had invoked his right to counsel, requested and was allowed to meet privately with Mrs. Ehsa. In a subsequent interview, Mrs. Ehsa told police that in that meeting, Mr. Ehsa asked her to look out for his two long rifles under her bed, to remove the guns from the house. She went to her house, took the gun in the case and gave it to Mr. Anson, who took it to Lorenzo Johnny, a neighbor, to store.
Subsequently, after being provided information by Mrs. Ehsa's housekeeper, Merleen Fredrick, officers learned from Mrs. Ehsa that the gun in the case had been taken to Lorenzo Johnny by Mr. Anson. At that time, Lorenzo Johnny was at the National Police office with Mrs. Anson, and he agreed to go with Officer Raynard Johna to his house to get the gun in the case. Lorenzo said he did not know it was a gun, as the case was covered with a towel when Mr. Anson brought it to him.
Looking in the case, Officer Raynard Johna saw that it contained an AK-47. The janitor, Merleen did not testify but a transcription of her interview, taken by Sergeant Jeffrey Panuel and Shania Eldridge, was submitted for consideration at the hearing. Pl.'s Ex. 6. In the statement she stated that the gun in the case and the .22 rifle were for John Ehsa, Jr., but her statement does not indicate how she knew that.
B. Charges Concerning the AK-47
Mr. Ehsa is charged in Count XVI with possession of the AK-47 under 11 F.S.M.C. 1023(5). Mrs. Ehsa and Mr. Anson are charged with the same in Count XVII.
C. Elements of Offense re: AK-47
On its face, section 1023(5) is violated when a person (1) possesses (knowingly or with awareness) (2) inter alia, any automatic weapon or rifle over .22 caliber. Like other firearm offenses, section 1023(5) is subject to the exemption in section 1003(2), for which the government bears the burden. Ludwig, 2 FSM R. at 37.
An uncertainty in interpreting section 1023(5) is whether the person found to possess must do so "knowingly," and, if so, its meaning That issue was addressed by our appellate division with respect to section 1023(6) violations—section 1023(6), like 1023(5), does not expressly require that possession be "knowing"—and the appellate division determined that section 1023(6) "does not dispense with the mental element that the defendant must know or be aware that he had the shotgun in his possession." Sander v. FSM, 9 FSM R. 442, 447 (App. 2000). I find that it is likewise an element of section 1023(5) that the person "know or be aware" that he or she is in possession of the firearm. FSM v. Pillias, 22 FSM R. 334, 335 n.1 (Chk. 2019) (The only elements needed for a successful 11 F.S.M.C. 1023(5) prosecution is that the firearm is something other than a .22 rifle or a .410 shotgun and the defendant knows that he possesses a firearm).
"Possession" is not defined in FSM statute or yet been defined by FSM caselaw. This Court may consult the common law. FSM v. Marehalau, 16 FSM R. 505, 507 (Pon. 2009). At common law, there are two types of possession: actual and constructive. Actual possession exists when a person has direct physical control over a thing. See BLACK'S LAW DICTIONARY 1047 (5th ed. 1979). Constructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object. Id.
D. Probable Cause Analysis
(i) Possession by the Ehsas
Mrs. Ehsa's statements to Officer Jayson Johna that Mr. Ehsa told her to take care of his two rifles under her bed, one of which she put in a case covered by a towel and gave to her oldest son, Mr. Anson, to take to Lorenzo Johnny, lend support to her actually or constructively, and Mr. Ehsa constructively, possessing the AK-47, with knowledge or awareness that it was a firearm.
(ii) Possession by Mr. Anson
Testimony supported that Mr. Anson physically transported the AK-47, which was inside a case, covered on the outside by a towel, from Mrs. Ehsa's house to the neighbor's house, for him to store. According to Officer Raynard Johna, wrapped in the towel, the item in the case was not obviously a firearm. The neighbor, Mr. Johnny, had reached the same conclusion.
The issue is therefore, at this, the probable cause stage of a criminal matter, whether there is sufficient proof to "warrant a cautious person to believe it is more likely than not that" Mr. Anson knew or was aware that he was transporting a firearm to Mr. Johnny's house. Officers were made suspicious because, although Mr. Anson had been cooperating with them in delivering to the .22 rifle, he had not told them that he had carried a case (which they learned from the janitor had an AK-47 in it) to Mr. Johnny's house earlier in the morning. That suspicion is not a sufficient basis for inferring Mr. Anson's awareness that he was delivering a firearm to Mr. Johnny's house.
(iii) Illegal Firearm
Testimony at hearing was that the case contained an AK-47. No additional testimony or other evidence was presented as to its caliber or whether it was an automatic rifle. Pursuant to FSM Rule of Evidence 201(c), I may take judicial notice of adjudicative facts that are "either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
I take judicial notice that AK-47s use a 7.62 mm round, which translates into .30 caliber. AK-47, ENCYCLOPEDIA BRITANNICA, https://www.britannica.com/technology/AK-47 (last visited Apr. 19, 2023).5 AK-47s are rifles over .22 caliber and therefore illegal firearms under section 1023(5).
(iv) Not Exempt under 11 F.S.M.C. 1003(2)
The only indicator in the evidence that would appear to negate any one of the three requirements for application of 11 F.S.M.C. 1003(2) appears to be that the case in which the AK-47 was found contained ammunition. The evidence that it contained ammunition is somewhat conflicting: Officer Jayson Johna said the case contained ammunition, but Officer Raynard Johna, who accompanied Mr. Johnny to his to retrieve the case, said he did not remember that it contained ammunition and specifically recalled that there was an empty magazine in the case. The affidavit of probable cause, by Officer Jayson Johna, specifically mentioned 28 rounds.
I conclude that the finding of 28 rounds of ammunition in the case with the AK-47 is sufficient probable cause to negate the exemption at this stage. Meitou, 18 FSM R. at 129.
I find that there is probable cause for Count XVI for Mr. Ehsa and for XVII for Mrs. Ehsa. I do not find probable cause for Count XVII as to Mr. Anson, and it is dismissed as to him.
7. Possession of Ammunition for AK-47 by Mr. Ehsa, Mrs. Ehsa, and Mr. Anson (Counts XVIII and XIX)
A. Background
As noted, Officer Jayson Johna testified to finding ammunition in the case that was obtained from Mr. Johnny containing the AK-47. His affidavit of probable cause numbers the rounds found in the case at 28, and the information specifically states the rounds were the caliber for the AK-47. Statements to Officer Johna suggest that the case was transferred to Mr. Johnny by Mr. Anson pursuant to Mr. Ehsa's instructions to Mrs. Ehsa.
B. Charges Concerning Ammunition for AK-47
Mr. Ehsa is charged with possession of ammunition under 11 F.S.M.C. 1023(5). However, 11 F.S.M.C. 1023(5) does not include a prohibition of ammunition; on the other hand, sections 1005 and 1006 contain prohibitions that may be applicable to the ammunition in question.6
C. Elements of Offense re: AK-47 Ammunition
Section 1005(1) and section 1006(1) prohibit a person from possessing ammunition without an identification card, knowing or with awareness that he possesses ammunition.
D. Probable Cause Analysis
The case containing the AK-47 and rounds was delivered from Mrs. Ehsa's house to Mr. Johnny's house at the initiative of Mr. Ehsa. The discovery of the ammunition in the case containing the AK-47 found support probable cause as to the Ehsas for actual or constructive possession, with the requisite knowledge, in violation of 11 F.S.M.C. 1005 or 1006. I find the requisite knowledge lacking with respect to Mr. Anson, however. I find that there is probable cause for Count XVIII for Mr. Ehsa and for XIX for Mrs. Ehsa. I do not find probable cause for Count XIX as to Mr. Anson, and it is dismissed as to him.
8. Possession of Marijuana (Count XX)
A. Background
In the course of executing the search warrant of the residence of Mr. Ehsa at Lehnpwus, Madolenihmw, according to testimony of Acting Major Kasner Aldens and Officer Jayson Johna, the National Police found a black bag on a table in the house. According to Acting Major Aldens, that bag was found to contain marijuana buds of a nonlocal variety. The bag itself was, in Aldens' estimation, too small to contain a firearm, although. Notably, it was found next to the ammunition on the table.
On arriving at the residence for the search, Acting Major Aldens observed Mr. Ehsa coming around the house from the nahs side, and was curious whether firearms were disposed of there. The nahs is attached to and can be entered from the house. Aldens entered the nahs and found young marijuana seedlings and freshly pulled plants there, which were confiscated. The affidavit of probable cause refers to approximately seven plants found, "in plain view."
B. Charges Concerning Possession of Marijuana from Black Bag and Nahs
The information charges Mr. Ehsa with intentionally and unlawfully possessing the bag of marijuana pods and marijuana plants, pursuant to 11 F.S.M.C. 1142.
C. Elements of Offense of Possession of Marijuana
Section 1142 prohibits knowing and intentional possession of a controlled substance. Marijuana is a controlled substance. 11 F.S.M.C. 1119(3).
D. Probable Cause Analysis
Mr. Ehsa contends that both the marijuana pods and plants should be excluded and that Count XX should be dismissed because the searches through which they were found lacked probable cause.
(i) Marijuana pods
This Court has held that closed containers in the open may have a reasonable expectation of privacy in their contents. FSM v. Phillip, 17 FSM R. 413, 421 (Pon. 2011). The government does not in closing argument articulate its basis for opening the black bag and searching therein. The search warrant allowed for search of firearms only. Aldens testified the bag was too small to contain a firearm, while Johna opined that it could hold a firearm. Setting aside the size dispute between the officers, there is no indication that the officers determined that the bag had the weight and heft and otherwise had the feel indicative that it contained a firearm, which determination could be done without opening the bag, the officers were unjustified under the warrant to search the black bag. Therefore, I find that the marijuana pods may not be considered as a basis for the charged violation.
(ii) Marijuana plants
Acting Major Aldens went around the back of the house by the house to the nahs, when he was curious that weapons might have been disposed of in the back, having seen Mr. Ehsa coming from the back on the search team's arrival. Mr. Ehsa contends that a search of the nahs was not reasonable, on the basis that it would be contrary to the function of nahs to store weapons there, and, under the early morning circumstances and surprise element of the search, Aldens did not have a reasonable basis for believing that weapons may have been disposed of there. There being no reason for being in a place where he could see the seedlings and cuttings, his finding them does not come within the plain view exception of the warrant requirement.
A warrant is not necessary to authorize seizure when marijuana is in plain view of a police officer who has a right to be in the position to have that view. FSM v. Mark, 1 FSM R. 284, 294-95 (Pon. 1983). As an exception to the warrant requirement, the burden of proof whether the marijuana was in plain view lies with the government. FSM v. Santa, 8 FSM R. 266, 268 (Chk. 1998); State v. Nieves, 999 A.2d 389, 391 (N.H. 2010).
I find that the interpretation of the scope of the warrant to exclude the nahs is unreasonable in this instance, given the attachment and connection of the nahs to the rest of the house. Insofar as the nahs is included in the scope of the warrant, items viewable from the nahs would fall within the scope of the plain view exception. Reviewing Acting Major Aldens' testimony, I find that it establishes that he viewed the marijuana from the nahs.
Turning to the question whether there is probable cause as to the knowing or intentional possession of marijuana, as a controlled substance, the cutting of the plants on Mr. Ehsa's land, as testified to by Acting Major Aldens, evidences knowledge, if not intent, sufficient to constitute probable cause.
E. Subject-matter Jurisdiction
However, the facts of this case, the charges of marijuana possession based on seven or so locally grown marijuana plants, raise another issue, whether this Court has a jurisdictional basis for hearing this case. Jano v. FSM, 12 FSM R. 569, 576 (App. 2004). In Jano, the appellate division addressed whether the Weapons Control Act had continued vitality in light of the Constitutional amendment revising the FSM Congress's authority to define crimes. Finding that weapons control, at least concerning firearms and ammunition was not rooted in the former major crimes authority, but rather in the powers to regulate interstate and foreign commerce and national defense clauses of the FSM Constitution, the appellate division upheld the Weapons Control Act. Id.
Subsequent to the Jano decision, this Court addressed whether regulation of Philippine slingshots under the Weapons Control Act was within Congress's constitutional authority. This Court gave a negative answer:
Firearms and ammunition are primarily, if not exclusively, manufactured abroad and then imported into the FSM as goods intended for the use as firearms or ammunition. Foreign commerce and customs regulations and inspection are national activities. But the imported materials in a Philippine slingshot are not manufactured abroad with the intent that they be assembled into a Philippine slingshot. They are manufactured abroad as other articles or as parts of other articles and are legitimately imported for other purposes. They are then recycled into Philippine slingshot parts. Elastic from something else is used to make a slingshot that can propel either stones or metal darts. Metal that has been imported as rebars, spikes, nails or other cylindrical pieces of metal are sharpened and fashioned into a Philippine slingshot dart-like projectile. Thus a Philippine slingshot is manufactured locally, out of locally available materials. It does not pass through foreign or interstate commerce. That some of those materials were once imported as something else to be used for some other purpose is not enough to implicate the national government's activity or function to regulate foreign commerce.
FSM v. Masis, 15 FSM R. 172, 176 (Chk. 2007).
Whether this Court can decide this matter is a matter of subject-matter jurisdiction. FSM v. Jano, 6 FSM R. 9, 11 (Pon. 1991) (Where the crimes charged are no longer those expressly delegated to Congress to define, or are not indisputedly of a national character the FSM Supreme Court has no subject matter jurisdiction.) Lack of subject-matter jurisdiction is a defense that can be raised at any time by any party or by the court. Isamu Nakasone Store v. David, 20 FSM R. 53, 57 (Pon. 2015). Because parties may not agree between themselves and stipulate to subject matter jurisdiction, the court has an obligation to independently determine whether it has subject matter jurisdiction. A court, whether trial or appellate, is obliged to notice want of jurisdiction, on its own motion. Suzuki v. Chuuk, 22 FSM R. 491, 493-94 (Chk. 2020).
The Government and Mr. Ehsa are therefore requested to submit briefs within thirty days whether this Court has jurisdiction over the crime of possession of locally grown marijuana of the magnitude present in this case.
9. Hindering Apprehension or Prosecution (Count XXI)
A. Background
As stated above, Officer Jayson Johna testified to a statement made by Mrs. Ehsa that Mr. Ehsa asked her to look out for his two long rifles under her bed, to remove the guns from the house. According to that statement, Mrs. Ehsa went to her house, took the gun in the case and gave it to Mr. Anson, who took it to Lorenzo Johnny, a neighbor, to store.
B. Charge Concerning Hindering
The information charges Mr. Ehsa, Mrs. Ehsa, and Mr. Anson "acted together" to hinder with the apprehension, prosecution, and conviction or punishment of another for (a) national crime, etc., by trying to hide the AK-47 from the investigation.
C. Elements of Charge
Section 503 is violated if a person (1) with purpose (2) to hinder the apprehension, prosecution, conviction, or punishment of another (3) for a national crime (a) harbors or conceals the other; (b) provides or aids in providing a weapon, transportation, disguise, or other means of avoiding apprehension or effecting escape, (c) conceals or destroys evidence of the crime, or tampers with a witness, informant, document, or other source of information, regardless of its admissibility in evidence; (d) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or (e) volunteers false information to any law enforcement officer.
D. Probable Cause Analysis
Mr. Ehsa's alleged statement to Mrs. Ehsa to "take care" of his two rifles, moving the AK-47 would support probable cause that he, with the purpose of hindering her apprehension for the national crime of possessing an illegal weapon, was warning her of impending discovery; her allegedly covering the case in a towel and giving it to Mr. Anson to give it to Mr. Johnny for temporary storage, as borne out in testimony, could constitute concealing evidence with the purpose of hindering her apprehension for the same crime. Insofar as Mr. Anson did not know what was in the case, his moving of the case to Mr. Johnny's house cannot be said to have concealed evidence with a requisite intent.
I therefore find probable cause on Count XXI as to Mr. Ehsa and Mrs. Ehsa, but not as to Mr. Anson. Count XXI is dismissed as to Mr. Anson.
10. Conspiracy to Hinder Apprehension or Prosecution (Count XXII)
A. Background
Count XXII relates to the facts underlying Count XXI.
B. Charge Concerning Conspiracy to Hinder
The information alleges that Mr. Ehsa, Mrs. Ehsa, and Mr. Anson conspired to hinder apprehension, prosecution, conviction, as charged in Count XXI.
C. Elements of Charge
Section 203, conspiracy, is violated when a person (1) agrees with (2) one or more others (3) to commit any crime and (4) a party to the conspiracy commits an overt act in furtherance of the conspiracy. To be guilty of conspiracy, the person must have specifically intended to violate the law. Lee v. Kosrae, 20 FSM R. 160, 166 (App. 2015).
D. Probable Cause Analysis
Mr. Ehsa contends that the conspiracy is insufficiently proven, that the statement he is alleged to have made to Mrs. Ehsa ("take care of his two rifles . . . .") does not prove the conspiracy. However, "[t]he agreement to conspire may be implicit or explicit and need not be oral or in writing but may be shown by the circumstances surrounding the conduct of the conspirators." 11 F.S.M.C. 203(3). The testimony at hearing as to what Mr. Ehsa said, in conjunction with Mrs. Ehsa's actions thereafter, with respect to the firearm in the case, are sufficient probable cause that Mr. Ehsa and Mrs. Ehsa entered into an agreement with specific intent to hinder apprehension in violation 11 F.S.M.C. 503. The showing of intent of Mr. Anson is lacking; therefore Count XXII is dismissed as to him.
Counts I-III and V-XII are dismissed in their entirety as to all defendants charged therein; Counts XVII, XVIII, XIX, XXI and XXII are dismissed as to Mr. Anson only; as to Count XX, the Court finds probable cause as to the seven marijuana plants and excludes the marijuana pods found in the black bag; Mr. Ehsa and the government are requested to submit briefs as to this Court's subject-matter jurisdiction concerning prosecution of Mr. Ehsa for marijuana plants, as discussed above.
As all counts against Mr. Anson are dismissed, he is therefore relieved of all pretrial release conditions.
_______________________________Footnotes:
1 Per FSM v. Edwin, 8 FSM R. 543, 548 (Pon. 1998), the National Criminal Code was primarily drawn from the Model Penal Code modified to suit the particular needs of the area; section 532 of the National Criminal Code, which tracked section 240.2 of the ALI Model Penal Code, has been carried over in section 517.
2 Mens rea for weapons possession: "know or be aware that he had the (weapon or ammunition) in his possession." Sander v. FSM, 9 FSM R. 442, 447 (App. 2000).
3 As I find that probable cause as to Mr. Ehsa's not having an identification card is lacking, I need not address whether the exception in 11 F.S.M.C. 1003(2) applies.
4 Note: FSM v. Sorim, 17 FSM R. 515, 521 (Chk. 2011) (It is the statement of facts in the pleading, rather than the statutory citation, that is controlling, and if an information properly charges an offense under the laws it is sufficient even though the government attorney may have supposed that the offenses charged were covered by a different statute.)
5 Encyclopedias as general authorities can be unimpeachable sources from which facts may be taken judicial notice. Stokes v. Commonwealth, 275 S.W.3d 185, 188 (Ky. 2008).
6 See supra note 4.
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