FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v. Anson, 11 FSM Intrm. 69 (Pon. 2002)

[11 FSM Intrm. 69]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

JACKLEEN ANSON,
Defendant.

CRIMINAL CASE NO. 2001-500

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

Andon L. Amaraich
Chief Justice

Hearing: December 18, 2001
Decided: July 31, 2002

APPEARANCES:

For the Plaintiff:
Catherine Leilani Wiehe, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendants:
Michael A. Rowland, Esq.
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure - Major Crimes
Since the FSM Constitution was amended in 1991, the national courts no longer have jurisdiction over major crimes. FSM v. Anson, 11 FSM Intrm. 69, 73 (Pon. 2002).

Constitutional Law - Due Process - Vagueness; Criminal Law and Procedure - National Crimes
Congress did not exceed its constitutional authority when it defined a national crime as one committed "against a national public servant in the course of, in connection with, or as a result of that person’s employment or service;" nor was this definition so vague that it does not give reasonable notice of what conduct is prohibited, or encourages arbitrary and discriminatory enforcement. FSM v. Anson, 11 FSM Intrm. 69, 73 (Pon. 2002).

Constitutional Law - Interpretation; Statutes - Construction
The court must begin with the presumption that acts of Congress are constitutional. FSM v. 

[11 FSM Intrm. 70]

Anson, 11 FSM Intrm. 69, 74 (Pon. 2002).

Criminal Law and Procedure - Major Crimes; Statutes - Repeal
When the constitutional amendment to article IX, § 2(p) was ratified, it eliminated Congress’s power to define major crimes and repealed by implication Title 11’s major crimes provisions. FSM v. Anson, 11 FSM Intrm. 69, 74 (Pon. 2002).

Criminal Law and Procedure - National Crimes
The Constitution, as amended, expressly delegates to Congress the power to define national crimes and prescribe penalties. Congress enacted the Revised Criminal Code Act, as amended, pursuant to this constitutional power. FSM v. Anson, 11 FSM Intrm. 69, 74 (Pon. 2002).

Criminal Law and Procedure - National Crimes
Congress defined crimes against persons as inherently national when they are committed against national public servants, if the crime is sufficiently connected with national public servants’ performance of their duties. FSM v. Anson, 11 FSM Intrm. 69, 74 (Pon. 2002).

Criminal Law and Procedure - Assault and Battery; Criminal Law and Procedure - National Crimes
An assault against a national public servant at the national government capitol complex in Palikir, in the middle of a workday, in the National Public Auditor’s Office demonstrates precisely the national government’s interests that Congress sought to protect by defining a crime against a national public servant in the course of the public servant’s employment as a national crime. FSM v. Anson, 11 FSM Intrm. 69, 74 (Pon. 2002).

Criminal Law and Procedure - National Crimes
Congress acted constitutionally and within its power to define national crimes when it defined a crime against a national public servant in the course of employment as a national crime. FSM v. Anson, 11 FSM Intrm. 69, 74 (Pon. 2002).

Constitutional Law - Due Process
The personal nature of constitutional rights, and prudential limitations on adjudicating constitutional questions, preclude a criminal defendant from challenging a law on the basis that it may be unconstitutionally applied to others in situations not before the court. FSM v. Anson, 11 FSM Intrm. 69, 75 (Pon. 2002).

Constitutional Law - Due Process - Notice and Heearing; Constitutional Law - Due Process - Vagueness
Due process generally requires that the government provide an individual with notice and an opportunity to be heard before taking away that person’s liberty. A person has a liberty interest in not being criminally prosecuted without notice of what conduct is prohibited. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law, as it fails to give people notice of what conduct is prohibited. FSM v. Anson, 11 FSM Intrm. 69, 75 (Pon. 2002).

Constitutional Law - Due Process - Vagueness
The right to be informed of the nature of the accusation requires that a statute be sufficiently explicit to prescribe the offense with reasonable certainty and not be so vague that persons of common intelligence must necessarily guess at its meaning. Some generality may be inescapable in proscribing conduct, but the standard of precision required under the right to be informed of the nature of the accusation is greater in criminal statutes than in civil statutes. FSM v. Anson, 11 FSM Intrm. 69, 75 (Pon. 2002).

[11 FSM Intrm. 71]

Constitutional Law - Due Process - Vagueness
Certain types of criminal prohibitions are subject to greater scrutiny on grounds of vagueness. Courts are far more inclined to set aside as unconstitutionally vague statutes or ordinances reaching into marginal areas of human conduct such as prohibitions against loitering or vagrancy aimed at conduct often thought of as offensive or undesirable, but not directly dangerous to others, but prohibitions against assaults with dangerous weapons, for example, fall within the more traditional realm of criminal law and are therefore entitled to greater deference by courts in determining whether they are unconstitutionally vague. FSM v. Anson, 11 FSM Intrm. 69, 75 (Pon. 2002).

Constitutional Law - Due Process - Vagueness
There are two aspects to consider in determining whether a criminal statute is unconstitutionally vague. First, the statute must ensure fair notice to the citizenry, and second it must provide standards for enforcement by the police, judges and juries. FSM v. Anson, 11 FSM Intrm. 69, 75 (Pon. 2002).

Constitutional Law - Due Process - Vagueness
Because it is assumed that people are free to steer between lawful and unlawful conduct, it is necessary that laws give the people of ordinary intelligence a reasonable opportunity to know what is prohibited, so that they may act accordingly. Vague laws may trap the innocent by not providing fair warning. FSM v. Anson, 11 FSM Intrm. 69, 75-76 (Pon. 2002).

Constitutional Law - Due Process - Vagueness
If arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. FSM v. Anson, 11 FSM Intrm. 69, 76 (Pon. 2002).

Constitutional Law - Due Process - Vagueness
A statute that provides clear notice and fair warning that an assault on a national public servant while she is working in her national government office is conduct prohibited by national law. FSM v. Anson, 11 FSM Intrm. 69, 76 (Pon. 2002).

Constitutional Law - Due Process - Vagueness
Laws cannot define the boundaries of impermissible conduct with mathematical certainty. Whenever the law draws a line there will be cases very near to each other on the opposite side. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so. FSM v. Anson, 11 FSM Intrm. 69, 76 (Pon. 2002).

Constitutional Law - Due Process - Vagueness
When the purpose, intent and meaning of the Act can be ascertained by reading the disjunctive provisions of the statute together, and it is clear that Congress intended that conduct like that charged in this case be prohibited under national law the law is not unconstitutionally vague. FSM v. Anson, 11 FSM Intrm. 69, 76 (Pon. 2002).

Criminal Law and Procedure - National Crimes
When a very strong nexus exists in this case between the defendant’s alleged criminal conduct and the victim’s employment as a national public servant because it was a crime of violence perpetrated on government property, against a government employee who was conducting official government business, it should be the national government that determines the penalty for that conduct and punishes that conduct. FSM v. Anson, 11 FSM Intrm. 69, 76 (Pon. 2002).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On December 18, 2001, this matter came before the court for a hearing on defendant’s motion to dismiss, filed on December 3, 2001. The Federated States of Micronesia (the "FSM") was represented by Catherine Wiehe, Esq., Assistant Attorney General for the Federated States of Micronesia. Defendant was represented by Michael Rowland, Esq., Staff Attorney of the Office of the Public Defender of the Federated States of Micronesia.

1. Defendant’s Motion And Plaintiff s Opposition

In her motion to dismiss, defendant states that she has been charged with assault, an offense which carries a possible punishment of a sentence of imprisonment of not more than one year, and conspiracy to commit assault, which carries a possible punishment of not more than one-half of the maximum sentence of the crime which was the object of the conspiracy (which in this case would be six months).

Citing FSM v. Boaz, 1 FSM Intrm. 22, 24 (Pon. 1987), defendant argues that a simple assault is punishable by only six months imprisonment and therefore is neither a major crime under the National Criminal Code (NCC) nor a felony (which by definition is a crime which has a potential penalty of three years imprisonment or more). Defendant further argues that, although the FSM Constitution was amended in 1990 to reflect a change in the limitation on National jurisdiction from major crimes to national crimes, the national government has no general criminal jurisdiction: that jurisdiction now lies with the states. In re Extradition of Jano, 6 FSM Intrm. 93, 102 (App. 1993). Defendant concludes by stating that the exercise of National Court jurisdiction in this case, charging an offense punishable by imprisonment for not more than one year, is contrary to the intent of the FSM Constitution.

In opposition, plaintiff FSM argues that the crimes alleged against defendant in the information are in fact national crimes. The Revised Criminal Code Act, Pub. L. No. 11-72, as amended by Pub. L. No. 11-76 (the "Act"), gives the national courts subject matter jurisdiction over national crimes. Section 104(7) of the Act defines a national crime as "any crime which is inherently national in character and defined in this title; or . . . otherwise a crime against the Federated States of Micronesia." 11 F.S.M.C. 104(7)(a). In part, the Act defines a crime as inherently national in character if the crime is committed against a national public servant in the course of, in connection with, or as a result of that person’s employment or service. 11 F.S.M.C. 104(7)(b)(vi). A public servant is defined as any person employed to perform a governmental function on behalf of the Federated States of Micronesia, or any department, agency or branch thereof. 11 F.S.M.C. 104(11).

Plaintiff states that at the time of the alleged crimes, the victim, Julinida Weital, was a national public servant: she is a junior auditor at the Office of the Public Auditor, employed by the National Government to perform the governmental functions of auditing departments, agencies and branches of the National Government. The crimes charged against the defendant in this action are defined in sections 609 and 203 of the Act as assault and conspiracy. Plaintiff argues that the actions of defendant were committed against the victim in the course of the victim’s employment with the Public Auditor’s office, since the alleged crimes occurred at the Office of the FSM Public Auditor, while the victim was at work.

Additionally, plaintiff argues that defendant’s actions disrupted the victim’s employment and the operations of the Public Auditor’s office, as other public servants had to intervene and stop the alleged assault, and the victim’s injuries required that she use four days and thirty five hours of combined sick 

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leave and annual leave to recover from her injuries. Thus, the FSM was deprived of the victim’s services as a result of the alleged actions of the defendant. Plaintiff asserts that this court indeed has jurisdiction over the defendant for the crimes alleged in the Information.

2. Arguments Made at Hearing

During oral argument at the hearing on defendant’s motion to dismiss, defendant argued that the FSM Supreme Court lacks jurisdiction over this case since, even if defendant’s alleged actions were criminal, they certainly were not national in character.

The FSM argued that the definition of a national crime includes a crime committed against a national public servant during his or her employment. The FSM stated that in connection with a person’s employment means as a result of that person’s employment with the FSM National government, which would include circumstances not necessarily in connection with national employment.

The defendant then argued that the use of in the course of and in connection with (a person’s employment) language is too vague for persons to understand, and therefore unconstitutionally vague. Defendant argued that the alleged acts must bear some connection with the duties of national employment to trigger national jurisdiction. Defendant further argued that this court should recognize Pohnpei State’s sovereignty over acts that have nothing to do with national employment and are not "inherently national" in character.

The FSM responded that the FSM Constitution gave the FSM Congress the power to define national crimes. The FSM argued that the statute is not unconstitutionally vague: the FSM Congress chose language limiting what crimes are national in character and which are not. Further, the FSM argued that the crime impacted the victim’s employment with the FSM government, resulting in the national government’s loss of the victim’s ability to perform her job as she needed to stay at home to recover from her injuries.

The defendant argued that if the term "in the course of employment" means any time a national public employee is at work, the statute must be unconstitutionally vague.

Analysis

It is clear that the national courts no longer have jurisdiction over major crimes, since the FSM Constitution was amended in 1991. Thus, the issue in this case is (1) whether the Congress exceeded its constitutional authority when it defined a national crime under the Act as one committed "against a national public servant in the course of, in connection with, or as a result of that person’s employment or service;" (2) whether the criminal information filed in this case charges the defendant with a "national crime," as that is defined in the Act; and (3) whether the definition of a national crime chosen by Congress is so vague that it does not give reasonable notice of what conduct is prohibited, or that it encourages arbitrary and discriminatory enforcement.

For the reasons set forth below, the Court concludes that the Congress did not exceed its authority in defining the crime charged as a national crime, that the information does charge the defendant with a national crime, and that the statute is not unconstitutionally vague as applied to this defendant.

[11 FSM Intrm. 74]

1. Congress’s Authority under the FSM Constitution

The Court must begin with the presumption that acts of Congress are constitutional. Chuuk v. Secretary of Finance, 8 FSM Intrm. 353, 374, 387 (Pon. 1998), aff’d, 9 FSM Intrm. 424 (App. 2000). Under the FSM Constitution, "[a] power expressly delegated to the national government, or a power of such an indisputably national character as to be beyond the power of a state to control, is a national power." FSM Const. art. VIII, § 1.

On July 2, 1991, the constitutional amendment to article IX, § 2(p) was ratified, thereby eliminating the power of Congress to define major crimes and repealing by implication the major crimes provisions of Title 11. FSM Const. art. VII, § 2(p); see FSM v. Jano, 6 FSM Intrm. 9, 11 (Pon. 1993). The Constitution, as amended, expressly delegates to Congress the power to define national crimes and prescribe penalties. FSM Const. art. IX, § 2(p). On January 25, 2001, Congress enacted the Revised Criminal Code Act, Pub. L. No. 1-72, as amended by Pub. L. No. 11-76, pursuant to its constitutional power to define national crimes and prescribe penalties therefor.

Public Law 11-72 amended title 11 of the Code of the FSM by repealing chapters 1 through 10 and 12 through 14 in their entirety and enacting new chapters 1 through 10, to eliminate all references to major crimes and to define national crimes. The Act defines the jurisdiction of the FSM as follows: "the National Government of the FSM has exclusive jurisdiction over all national crimes, as defined in section 104(7) of this title, pursuant to article IX, section 2(p) of the Constitution of the FSM." 11 F.S.M.C. 101.

In section 104(7) of the Act, Congress chose to define crimes against persons as "inherently national" when they are committed against national public servants, if the crime is sufficiently connected with national public servants’ performance of their duties. The intent of the Act is that a crime that should be punished under national law when it "is committed against a national public servant in the course of, in connection with, or as a result of that person’s employment or (National government) service." 11 F.S.M.C. 104(7)(b)(vi). Accordingly, the national government seeks to prosecute the defendant in this case under national law for assault, which otherwise would be a crime chargeable under Pohnpei state law, because the defendant allegedly committed the assault against a national public servant "in the course of" or "in connection with" the national public servant’s employment or service.

It is clear that the national government has a very strong interest in protecting its employees while they are engaging in their official duties on behalf of the national government, and that the national government has a strong interest in maintaining order and security on its property. Congress recognized these strong national interests when it chose to define as inherently national a crime that is committed against a national public servant in the course of, in connection with, or as a result of that public servant’s employment. In the present case, the defendant allegedly committed an assault against a national public servant, at the national government capitol complex in Palikir, in the middle of a workday, in the National Public Auditor’s Office. This case demonstrates precisely the national government’s interests that Congress sought to protect by defining a crime against a national public servant in the course of the public servant’s employment.

The Court finds that Congress acted constitutionally and within its power to define national crimes when it enacted the Act and chose to define a crime against a national public servant in the course of employment as a national crime.

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2. Conduct Charged in the Criminal Information in this Case

The court must also determine whether the conduct alleged in this case falls within this definition established by Congress in the Act. The criminal information pleads that the victim was a national public servant, and that all acts alleged were committed against her in the course of her employment as a national public servant. The affidavit filed in support of the criminal information also supports this: the victim avers that she was at work at the Public Auditor’s office in Palikir when the assault allegedly occurred, that the assault allegedly occurred during regular working hours, and that the alleged assault took place inside of the Public Auditor’s office.

The court believes that defendant’s conduct as described in the criminal information would be a crime against "a national public servant in the course of" her employment with the FSM.

3. Vagueness

The Court also must determine whether the definition set forth by Congress in the Act is unconstitutionally vague. Again, the Court must begin with the presumption that acts of Congress are constitutional. Chuuk v. Secretary of Finance, 8 FSM Intrm. 353, 374, 387 (Pon. 1998), aff’d, 9 FSM Intrm. 424 (App. 2000). Also, the Court finds that the personal nature of constitutional rights, and prudential limitations on adjudicating constitutional questions, preclude the defendant in this case from challenging the Act on the basis that it may be unconstitutionally applied to others in situations not before the Court. In order to successfully challenge the statute, defendant must demonstrate that it is unconstitutional in its application to her under the limited facts of this case.

The FSM Constitution provides that "[a] person may not be deprived of life, liberty, or property without due process of law . . . ." FSM Const. art. IV, § 3. Due process generally requires that the government provide an individual with notice and an opportunity to be heard before taking away that person’s liberty. A person has a liberty interest in not being criminally prosecuted without notice of what conduct is prohibited. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law, as it fails to give people notice of what conduct is prohibited. FSM v. Nota, 1 FSM Intrm. 299, 304 (Truk 1983). The right to be informed of the nature of the accusation requires that a statute be sufficiently explicit to prescribe the offense with reasonable certainty and not be so vague that persons of common intelligence must necessarily guess at its meaning. Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984). Some generality may be inescapable in proscribing conduct, but the standard of precision required under the right to be informed of the nature of the accusation is greater in criminal statutes than in civil statutes. Id. at 508.

Certain types of criminal prohibitions are subject to greater scrutiny on grounds of vagueness. "Courts are far more inclined to set aside as unconstitutionally vague statutes or ordinances reaching into marginal areas of human conduct such as prohibitions against loitering or vagrancy aimed at conduct often thought of as offensive or undesirable, but not directly dangerous to others." Laion, 1 FSM Intrm. at 509. However, for example, prohibitions against assaults with dangerous weapons fall within the more traditional realm of criminal law and therefore are entitled to greater deference by courts in determining whether they are unconstitutionally vague. Id.

There are two aspects to consider in determining whether a criminal statute is unconstitutionally vague. First, the statute must ensure fair notice to the citizenry, and second it must provide standards for enforcement by the police, judges and juries. See, e.g., Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995). As to the first aspect, because it is assumed that people are free to steer between lawful and unlawful conduct, it is necessary that laws give the people of ordinary 

[11 FSM Intrm. 76]

intelligence a reasonable opportunity to know what is prohibited, so that they may act accordingly. Vague laws may trap the innocent by not providing fair warning. As to the second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Cases in the FSM have addressed the first aspect of vagueness, that of providing notice to the community of what conduct is prohibited. It is clear to the Court that the statute at issue here provides clear notice and fair warning that an assault on a national public servant while she is working in her national government office is conduct prohibited by national law. The closer question in this case is whether the statute provides explicit standards for enforcement to those who must enforce it.

Laws cannot define the boundaries of impermissible conduct with mathematical certainty. Whenever the law draws a line there will be cases very near to each other on the opposite side. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, and if he does so it is familiar to the criminal law to make him take the risk.

In the statute at issue here, the Congress chose to provide a series of disjunctive phrases to define what criminal conduct is inherently national in character. The Act defines a crime as inherently national in character if the crime is committed against a national public servant in the course of, in connection with, or as a result of that person’s employment or service. Some of these disjunctive terms, standing alone, might have an unacceptably broad meaning, and cover conduct that might fall on either side of the line. For example, it is possible to imagine circumstances in which a tenuous connection exists between the alleged criminal conduct and the victim’s employment as a national public servant. In such a case, the statute, as applied, might be found to be unconstitutional.

However, the purpose, intent and meaning of the Act can be ascertained by reading the disjunctive provisions of the statute together, and it is clear that Congress intended that conduct like that charged in this case be prohibited under national law. While it may be difficult to define when a crime is committed against a national public servant "in the course of" that person’s employment, that provision should not be read in isolation. When the statute is read as a whole, it evidences a clear intention that, when there is a strong nexus between criminal conduct against a national public servant and the national public servant’s employment, national interests will be affected, and the alleged perpetrator should be charged under national law.

A very strong nexus exists in this case between the criminal conduct allegedly perpetrated by the defendant and the victim’s employment as a national public servant. The victim allegedly was in her office, during working hours, at the national government capital building complex in Palikir. Like any other employer, the national government has an obligation to insure that its employees’ work environment is safe. The national government also must insure that its government and its offices continue to function in an orderly fashion and without interruption. Accordingly, when a crime of violence allegedly is perpetrated on government property, against a government employee who is in the process of conducting official government business, it should be the national government that determines the penalty for that conduct and punishes that conduct.

So long as words are used to govern human conduct, there will be gray areas in the law. While there may be some conduct that is very close, and falls on one side of the line (national crime) or the other (state crime), this is not that case. The charged offense in this case clearly falls within the purview of a national crime prohibited by 11 F.S.M.C. 104(7)(b)(vi). The defendant in this case cannot demonstrate that the Act is unconstitutionally vague in its application to her under the facts as alleged 

[11 FSM Intrm. 77]

in the Complaint in this case.

Accordingly, for the reasons set forth in detail above, the Court hereby denies defendant’s motion to dismiss.

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