FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v. Sam, 14 FSM Intrm. 328 (Chk. 2006)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

PUNUN (DAS) SAM, SAMUEL WISUN, CHESNEY

MILLER, and RAKOFICH KASMIRO,
Defendants.

CRIMINAL CASE NO. 2006-1501

ORDER DISPOSING OF PRETRIAL MOTIONS

Dennis K. Yamase
Associate Justice

Hearing: July 20, 2006
Decided: August 8, 2006

APPEARANCES:

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

For the Defendant (Sam):
Harry A. Seymour, Esq.
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

For the Defendant (Wisun):
Joey J. Sapelalut, Esq.
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

For the Defendant (Miller):
Wahlberg Hadley, Esq.
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

For the Defendant (Kasmiro):
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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[14 FSM Intrm. 336]

HEADNOTES

Criminal Law and Procedure - Information
The court may permit an information to be amended at any time before making its finding of guilty or not guilty if no additional or different offense is charged and if the defendant’s substantial rights are not prejudiced. FSM v. Sam, 14 FSM Intrm. 328, 332 (Chk. 2006).

Criminal Law and Procedure - Information
If the government adds a completely new or different offense of which the defendant had no notice, Rule 7(e) would be violated. But since the original information contained the factual elements necessary to charge the defendants as aiding or abetting another, the defendants had notice of the offense and their substantial rights are not prejudiced. FSM v. Sam, 14 FSM Intrm. 328, 332 (Chk. 2006).

Criminal Law and Procedure
Although the court must first look to FSM sources of law to establish legal requirements in criminal cases rather than begin with a review of other courts’ cases, an FSM court may consult U.S. sources for guidance in interpreting a criminal procedure rule, which is identical or similar to a U.S. counterpart, when it has not previously construed that FSM rule. FSM v. Sam, 14 FSM Intrm. 328, 332 n.1 (Chk. 2006).

Criminal Law and Procedure - Information
Amending an information to include a crime that is not a lesser included offense of the original charge does not necessarily violate Rule 7(e). FSM v. Sam, 14 FSM Intrm. 328, 332 (Chk. 2006).

Criminal Law and Procedure - Aiding and Abetting
A person is criminally liable under 11 F.S.M.C. 301(1)(d) if he, whether or not being present during the commission of the crime, intentionally aids, abets, advises, solicits, counsels, encourages, commands, threatens, menaces or coerces another to commit a crime, or conspires with or otherwise procures another to commit a crime. FSM v. Sam, 14 FSM Intrm. 328, 332 (Chk. 2006).

Criminal Law and Procedure - Aiding and Abetting
The terms "aid" and "abet" are frequently used interchangeably, although they are not synonymous. To "aid" is to assist or help another. To "abet" means, in its legal sense, to encourage, advise, or instigate the commission of a crime. FSM v. Sam, 14 FSM Intrm. 328, 332 (Chk. 2006).

Criminal Law and Procedure - Aiding and Abetting
Mere presence at the scene of a crime is not enough to hold someone criminally liable under an aiding or abetting theory. FSM v. Sam, 14 FSM Intrm. 328, 332 (Chk. 2006).

Criminal Law and Procedure - Aiding and Abetting
In order to convict any defendant of either aiding or abetting another, the government will have to prove beyond a reasonable doubt that that defendant did something to, or was prepared to do something to, assist or help the other or to encourage, advise, or instigate the other in the commission of an offense charged. The government will have to do this for each count for each defendant or that defendant will be acquitted on that count. FSM v. Sam, 14 FSM Intrm. 328, 332 (Chk. 2006).

Criminal Law and Procedure - Aiding and Abetting; Criminal Law and Procedure - Information
Although the prior criminal code provided that no person could be convicted of aiding and abetting unless the information specifically alleged that the defendant aided and abetted and the information provided specific acts constituting the means of aiding and abetting so as to afford the defendant adequate notice to prepare his defense, that provision was eliminated when the current criminal code was enacted. It is thus no longer necessary for the information to recite each specific act each alleged aider and abetter allegedly 

[14 FSM Intrm. 337]

 committed. FSM v. Sam, 14 FSM Intrm. 328, 333 (Chk. 2006).

Criminal Law and Procedure - Information
An information is sufficient if it contains a plain, definite, and concise statement of the essential facts constituting the offense charged so that the defendant can prepare his defense and so that the defendant can avail himself of his conviction or acquittal as a bar to subsequent prosecutions. FSM v. Sam, 14 FSM Intrm. 328, 333 (Chk. 2006).

Criminal Law and Procedure - Aiding and Abetting; Weapons
Since there is no language in the aid or abet statute, 11 F.S.M.C. 301(1)(d), or in the firearms possession or use statutes, 11 F.S.M.C. 1023(5) and (7), that limits the application of one statute to the other, a defendant may be charged with aiding or abetting firearms possession or use. FSM v. Sam, 14 FSM Intrm. 328, 333 (Chk. 2006).

Weapons
Subsection 1023(7) does not restrict liability to use of a firearm to commit crimes defined by Title 11 (the national criminal code) of the FSM Code or to the FSM Code in general. It prohibits use in connection with or in aid of the commission of "any crime against the laws of the Federated States of Micronesia," a term which must refer to any or all criminal laws in the Federated States of Micronesia, national, state, or local because if it were otherwise, it would not be possible for the statute to have its obviously intended purpose and effect - to discourage the use of, and to punish the use of, firearms during the commission of other crimes. FSM v. Sam, 14 FSM Intrm. 328, 333-34 (Chk. 2006).

Statutes - Construction
Words and phrases, as used in the FSM Code or in any act of the Congress must be read with their context and shall be construed according to the common and approved usage of the English language. FSM v. Sam, 14 FSM Intrm. 328, 334 n.2 (Chk. 2006).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Information; Weapons
Since, under 11 F.S.M.C. 1023(7), the government must prove beyond a reasonable doubt that the firearm was used to commit a crime, when the amended information does not allege what crime or crimes, the firearm was used to commit, or even that it was used to commit any crime, it therefore fails to allege an essential element of 11 F.S.M.C. 1023(7), and that count of the amended information will be dismissed for failure to state an offense. FSM v. Sam, 14 FSM Intrm. 328, 334 (Chk. 2006).

Criminal Law and Procedure - Defenses
Under the FSM statute, duress occurs when A causes B to believe that B would suffer immediate, life-threatening injury unless B acts as ordered by A, and B acts and a crime is committed against C. The duress defense is similar to self-defense except that with self-defense the defendant’s response is an attack on the threatening party, while the duress defense applies when the defendant saves himself by doing the threatener’s bidding by harming another. FSM v. Sam, 14 FSM Intrm. 328, 334 (Chk. 2006).

Criminal Law and Procedure - Defenses; Criminal Law and Procedure - Dismissal
Asserting a duress defense at a pretrial stage in the proceedings and on the basis of the showing that another was armed and the defendants were assumed not to be armed does not entitle the movants to a dismissal at this point. FSM v. Sam, 14 FSM Intrm. 328, 334 (Chk. 2006).

Criminal Law and Procedure - Interrogation and Confession
For a defendant to voluntarily waive his right to silence or to counsel he must do so knowingly and intelligently. There exists a presumption against such waivers. The government has overcome that presumption when it has produced signed advice of rights forms showing waivers and the defendants do not 

[14 FSM Intrm. 338]

 controvert that evidence. FSM v. Sam, 14 FSM Intrm. 328, 335 (Chk. 2006).

Criminal Law and Procedure - Interrogation and Confession; Criminal Law and Procedure - Right to Confront Witnesses
Our constitution provides a criminal defendant with the right to be confronted by his accusers, which means that a defendant may cross-examine the witness against him. Consequently, the court is forbidden to consider as evidence against a defendant any part of a non-testifying codefendant’s statement which inculpates another defendant since a statement cannot be cross-examined. FSM v. Sam, 14 FSM Intrm. 328, 335 (Chk. 2006).

Criminal Law and Procedure - Interrogation and Confession
A "weapons lineup" conducted without any advice of rights or waiver beforehand, will be suppressed to the extent that the "weapons lineup" constituted statements by the defendants. FSM v. Sam, 14 FSM Intrm. 328, 335 (Chk. 2006).

Criminal Law and Procedure - Interrogation and Confession
If codefendants are tried together, a defendant’s out-of-court statement ought to be redacted to eliminate references to other codefendants. Failure to do so may result in reversal of convictions in the interests of justice. After redaction, no prejudice will occur if the statements then give no reference to any codefendant. Redaction can normally be accomplished by the parties. Thus the court will not view the statement until after redaction. FSM v. Sam, 14 FSM Intrm. 328, 335 (Chk. 2006).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On January 19, 2006, the government filed its information in this case. It charged four named defendants with criminal liability for the commission of the offenses of possession of a prohibited firearm (Count I), possession of prohibited ammunition (Count II), and the use of a prohibited firearm (Count III) by another (Masory Karen) not charged in the information. (A separate case was filed against Masory Karen.) The information based the defendants’ criminal liability upon the defendants’ having a legal duty, 11 F.S.M.C. 301(1)(c), to prevent Karen from committing the alleged offenses and failing to make a proper effort to do so.

On July 4, 2006, Rakofich Kasmiro filed his motion to dismiss and to suppress evidence. On July 5, 2006, Chesney Miller filed his joinder to that motion. Samuel Wisun filed his joinder on July 6, 2006. On July 10, 2006, Punun (Das) Sam filed his motions to dismiss and to suppress evidence. The government filed its response to the dismissal and suppression motions on July 17, 2006. Argument on the motions was heard on July 20, 2006.

I. Motions to Dismiss

Kasmiro’s written motion contends that the case against him must be dismissed because 1) the government cannot show that he had a legal duty to prevent Karen from possessing an illegal firearm or ammunition or to prevent him from using the firearm; and 2) because he was legally incapable of committing the crime on the ground of duress. Miller and Wisun join in those contentions. Sam adds that the information is defective because it fails to set forth facts establishing that the defendants had a legal duty to prevent Karen from possessing and using an illegal firearm and ammunition.

[14 FSM Intrm. 339]

A. Lack of Basis of Criminal Liability

The government concedes that the defendants should not have been charged with having a legal duty to prevent Karen from committing his alleged offenses, and contends that the information must be amended. On July 20, 2006, before the hearing, the government filed an amended information which alleges that the defendants are criminally liable because they aided or abetted, 11 F.S.M.C. 301(1)(d), Karen in the alleged commission of the offenses of possession of a prohibited firearm, possession of prohibited ammunition, and the use of a prohibited firearm. The government asked for leave to amend the information. The defendants did not oppose the amendment but contended that, even if amended, the information still had to be dismissed.

The court may permit an information to be amended at any time before making its finding of guilty or not guilty "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." FSM Crim. R. 7(e). If the government adds a completely new or different offense of which the defendant had no notice, Rule 7(e) would be violated. Virgin Islands v. Bedford, 671 F.2d 758, 765 (3d Cir. 1982). But since the original information contained the factual elements necessary to charge the defendants as aiding or abetting Karen, the defendants had notice of the offense and their substantial rights are not prejudiced. Id.; United States v. Seagraves, 100 F. Supp. 424, 428 (D. Guam 1951). Amending an information to include a crime that is not a lesser included offense of the original charge does not necessarily violate Rule 7(e). Bedford, 671 F.2d at 765. The government is therefore permitted to amend the information.

A person is criminally liable under 11 F.S.M.C. 301(1)(d) if he, "whether or not being present during the commission of the crime, intentionally aids, abets, advises, solicits, counsels, encourages, commands, threatens, menaces or coerces another to commit a crime, or conspires with or otherwise procures another to commit a crime." The amended information charges that the defendants either aided or abetted Masory Karen in the commission of the offenses of possession of a prohibited firearm, possession of prohibited ammunition, and the use of a prohibited firearm. "[T]he terms ‘aid’ and ‘abet’ are frequently used interchangeably, although they are not synonymous. To ‘aid’ is to assist or help another. To ‘abet’ means, . . . [i]n its legal sense . . . to encourage, advise, or instigate the commission of a crime." 1 Charles E. Torchia, Wharton’s Criminal Law § 29, at 157-58 (14th ed. 1978). Mere presence at the scene of a crime is not enough to hold someone criminally liable under an aiding or abetting theory. Id. § 31, at 165-66.

In order to convict any of the four defendants of either aiding or abetting Karen, the government will have to prove beyond a reasonable doubt that that defendant did something to, or were prepared to do something to, assist or help Karen or to encourage, advise, or instigate Karen in the commission of an offense charged. The government will have to do this for each count for each defendant or that defendant will be acquitted on that count.

Kasmiro contends that, unlike his co-defendants, the information does not allege that he did anything specific to aid or abet other than that he was present and that he aided or abetted. The prior criminal code provided that: "No person may be convicted under this section unless the information specifically alleges that the defendant aided and abetted and that said information provides specific acts constituting the means of aiding and abetting so as to afford the defendant adequate notice to prepare his defense." 11 F.S.M.C. 301(4) (FSM Pub. L. 4-83, § 1(4), 4th Cong. 1st Reg. Sess. 1985). That provision was eliminated when the 

[14 FSM Intrm. 340]

 current criminal code was enacted. It is thus no longer necessary for the information to recite each specific act each alleged aider and abetter allegedly committed.

It is sufficient if the information contains a plain, definite, and concise statement of the essential facts constituting the offense charged so that the defendant can prepare his defense, FSM v. Xu Rui Song, 7 FSM Intrm. 187, 189-90 (Chk. 1995), and so that the defendant can avail himself of his conviction or acquittal as a bar to subsequent prosecutions, see, e.g., Russell v. United States, 369 U.S. 749, 764, 82 S. Ct. 1038, 1047, 8 L. Ed. 2d 240, 251 (1962). The amended information sufficiently apprises the defendants of the offenses charged so as to enable them to adequately prepare their defenses and to avail themselves of the bar of double jeopardy. None of the defendants have sought a bill of particulars.

The movants also contend that it is legally impossible for them to aid or abet a crime of possession. They cite no authority for this proposition. They assert that it would place an affirmative duty on persons on the boat with Karen. The court disagrees. There is no language in the aid or abet statute, 11 F.S.M.C. 301(1)(d), or in the firearms possession or use statutes, 11 F.S.M.C. 1023(5) and (7), that limits the application of one statute to the other. The court cannot understand why, when the state police officer allegedly demanded that Karen surrender his firearms to him that anything done by a defendant in this case to help, assist, encourage, advise, or instigate Karen’s refusal to do so and to retain possession of the firearms and ammunition or to help, assist, encourage, advice, or instigate Karen’s use of the firearms would not incur criminal liability.

Other jurisdictions with similar aid or abet statutes reach similar results. See, e.g., United States v. Xavier, 2 F.3d 1281, 1286 (3d Cir. 1993); United States v. Lawson, 872 F.2d 179, 181 (6th Cir. 1989); United States v. Falletta, 523 F.2d 1198, 1198-99 (5th Cir. 1975); People v. Schafer, 13 Cal. Rptr. 3d 442, 448-49 (Cal. Ct. App. 2004); Busch v. State, 355 So.2d 488, 488 (Fla. Dist. Ct. App. 1978), vacated on other grounds, 392 So. 2d (Fla. 1980); People v. Moore, 679 N.W.2d 41, 46-52 (Mich. 2004) (expanding aiding and abetting possession of firearm beyond aiding or abetting obtaining or retaining firearm possession in People v. Johnson, 303 N.W.2d 442, 444 (Mich. 1981) (must aid or abet in obtaining or retaining firearm)).

Lastly, the movants contend that Count III does not state a crime. In that count, the defendants are charged with aiding or abetting Karen in his use of a prohibited firearm in violation of 11 F.S.M.C. 1023(7). Subsection 1023(7) prohibits the "use or attempt to use any firearm, dangerous device, or ammunition in connection with or in aid of the commission of any crime against the laws of the Federated States of Micronesia, except those set forth under other provisions of this chapter." Id. The defendants contend that they cannot be held liable for the Count III aiding or abetting charge because the principal, Karen, cannot be held liable for, or convicted of, using the prohibited firearm to commit a "crime against the laws of the Federated States of Micronesia" because, in their view, any offense Karen might have used a firearm to commit is a crime against state law, not national law, and Karen cannot be prosecuted, or convicted, in a national court of using a firearm prohibited by national law to commit a state crime.

The court rejects this argument. Subsection 1023(7) does not restrict liability to use of a firearm to commit crimes defined by Title 11 (the national criminal code) of the FSM Code or to the FSM Code in general. It prohibits use "in connection with or in aid of the commission of any crime against the laws of the Federated States of Micronesia." The term "laws of the Federated States of Micronesia" is not defined in the national criminal code or the FSM Code. The court concludes that, reading it with the context of 11 F.S.M.C. 1023(7), the term refers to any or all criminal laws in the Federated States of Micronesia, national, state, or local. If it were otherwise, it would not be possible for the statute to have its obviously intended 

[14 FSM Intrm. 341]

 purpose and effect - to discourage the use of, and to punish the use of, firearms during the commission of other crimes.

This seems to be the general and common meaning of the term in other contexts or similar terms elsewhere. In a somewhat analogous situation, an extraditee asserted that he could not be extradited to the United States because the extradition agreement required that the offense he was charged with there had to be an offense under the laws of both the requesting and the requested country and that the offense he was charged with in the United States was not an offense against the laws of the Federated States of Micronesia because in the FSM it was a crime under Pohnpei state law, not FSM national law. The court, relying on both the extradition agreement’s plain language and general international usage, rejected that contention. In re Extradition of Jano, 6 FSM Intrm. 93, 102-03 (App. 1993).

Thus, absent Congressional intent to the contrary, the court must conclude that Karen is legally capable of violating 11 F.S.M.C. 1023(7) by using a firearm to commit a crime under state law. The defendants are therefore capable of aiding or abetting Karen in violating 11 F.S.M.C. 1023(7).

However, under 11 F.S.M.C. 1023(7), the government must prove beyond a reasonable doubt that the firearm was used to commit a crime. The amended information, however, does not allege what crime or crimes, the firearm was used to commit, or even that it was used to commit any crime. It therefore fails to allege an essential element of 11 F.S.M.C. 1023(7). Count III of the amended information is therefore dismissed for failure to state an offense.

B. Incapacity Due to Duress

Kasmiro, joined by the other defendants, also asserts that the case against him must be dismissed because he was incapable of committing the crimes alleged because he was under duress from Karen since Karen was armed and he was not. For this proposition the movants rely on 11 F.S.M.C. 301A(5), which provides that "[a]ll persons are capable of committing crimes except the following: . . . (5) Persons whose actions are a result of duress such that they had reasonable cause to and did believe that they would suffer immediate, life threatening injury if they refused to act." 11 F.S.M.C. 301A. Subsection 301A(5) codifies the common law defense of duress. Under the FSM statute, duress occurs when A causes B to believe that B would suffer immediate, life-threatening injury unless B acts as ordered by A, and B acts and a crime is committed against C.

The duress defense is similar to self-defense except that with self-defense the defendant’s response is an attack on the threatening party, while the duress defense applies when the defendant saves himself by doing the threatener’s bidding by harming another. FSM v. Wainit, 13 FSM Intrm. 433, 447 (Chk. 2005) (citing Feliciano v. State, 332 A.2d 148, 149 (Del. 1975)). Duress is a defense which any of the defendants may raise at trial if he believes the evidence so warrants. Asserting it at this stage in the proceedings and on the basis of the showing made (Karen was armed and the defendants were assumed not to be armed) does not entitle the movants to a dismissal at this point.

C. Summary

Accordingly, the defendants’ motions to dismiss Counts I and II are denied. Count III is dismissed. If, because of the information’s amendment, any party needs additional time for further discovery or motions, the parties shall have until September 4, 2006 to file and serve them.

II. Motions to Suppress

Kasmiro contends that his statement, given on or about January 18, 2006, should be suppressed 

[14 FSM Intrm. 342]

 because there was no showing that he had been given his "Miranda" rights before the statement was given. Kasmiro also seeks the suppression of any similar statements by his co-defendants. Kasmiro also seeks the suppression of a "weapons lineup" on the ground that it constituted a similar incriminatory statements by the defendants without "Miranda" warnings. Lastly, Kasmiro seeks the suppression of any mention of the death or injuries suffered by state police officer Iachy Weia. Both Chesney Miller and Samuel Wisun joined Kasmiro’s motion. Punun (Das) Sam moves to suppress any statements made without the assistance of counsel, statements of his co-defendants, statements made by anyone who will not testify at trial, and any evidence regarding Weia’s death or injuries.

In response, the government provided advice of rights forms executed on January 15, 2006, by Wisun, Miller, Kasmiro, and by two other persons. It did not provide one executed by Sam. Wisun, Miller, and Kasmiro do not controvert their advice of rights forms. For a defendant to voluntarily waive his right to silence or to counsel he must do so knowingly and intelligently. There exists a presumption against such waivers. Moses v. FSM, 5 FSM Intrm. 156, 159 (App. 1991). The government has overcome that presumption for Wisun, Miller, and Kasmiro. Their motions to suppress their statements are denied. Sam’s motion to suppress his statement (although it is unclear whether there is one) is granted.

The "weapons lineup" was conducted on January 18, 2006. There are no advice of rights forms executed prior to its being conducted. To the extent that the "weapons lineup" constituted statements by the defendants, it is suppressed.

Sam also seeks suppression of his co-defendants’ statements. Illegally obtained evidence is inadmissible and subject to suppression. 12 F.S.M.C. 220. The statements of Sam’s co-defendants, as stated above, were not shown to be illegal and are not suppressed. However, the court notes that our constitution provides a criminal defendant with the right to be confronted by his accusers, FSM Const. art. IV, § 6, which means that a defendant may cross-examine the witness against him. Consequently, the court is forbidden to consider as evidence against a defendant any part of a non-testifying codefendant’s statement which inculpates another defendant since a statement cannot be cross-examined. Hartman v. FSM, 5 FSM Intrm. 224, 229 (App. 1991).

Thus, if the defendants are tried together, as currently seems likely, a defendant’s out-of-court statement ought to be redacted to eliminate references to other codefendants. Failure to do so may result in reversal of convictions in the interests of justice. After redaction, no prejudice will occur if the statements then give no reference to any codefendant. Redaction can normally be accomplished by the parties. Thus the court will not view the statement until after redaction. Hartman v. FSM, 6 FSM Intrm. 293, 301-02 & n.12 (App. 1993).

Sam also seeks the suppression of any statements made by anyone who will not testify at trial. It is unknown whether the government will offer any such statements. If the government attempts to offer any at trial, the defendants may then make an appropriate, timely objection.

Lastly, the defendants have moved to suppress any mention of the death or injuries suffered by state police officer Iachy Weia. Since Count III, use of the firearm to commit a crime, has been dismissed, this part of the defendants’ motion is presently moot.

III. Conclusion

The government is given leave to amend the information. Count III of the information is dismissed because it does not state an offense since it does not allege what crime or crimes the firearm was used to commit. The motions to dismiss Counts I and II are denied. The motions to suppress the statements of Rakofich Kasmiro, Chesney Miller, and Samuel Wisun are denied. Counsel are urged to redact these out-of-

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 court statements before their use at trial. Any statement given by Punun (Das) Sam is suppressed. The motion to suppress the weapons lineup "statement" is granted. The parties have until September 4, 2006 to file and serve any further motions.

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