FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2006-1501

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

PUNUN (DAS) SAM, SAMUEL WISUN,
and CHENESY MILLER,
Defendants.

ORDER DENYING MOTIONS TO DISMISS

Dennis K. Yamase
Associate Justice

Decided: December 28, 2007

APPEARANCES:

For the Plaintiff:
Joses Gallen, Esq., Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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

For the Defendant: (Miller)
Richard R. Hermes, Esq.
Office of the Public Defender
P.O. Box 425
Colonia, Yap FM 96943

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HEADNOTES

Criminal Law and Procedure  National Crimes; Weapons
A contention that the FSM Supreme Court lacks subject matter jurisdiction over a case's firearms charges because there was no nexus between those charges and the national government's powers to regulate interstate and foreign commerce and to provide for the national defense or because national defense and foreign or interstate commerce was not involved or not implicated in the case is without merit. FSM v. Sam, 15 FSM Intrm. 457, 459-60 (Chk. 2007).

Criminal Law and Procedure  Information  Amendment
The court may permit an information to be amended at any time before finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. FSM v. Sam, 15 FSM Intrm. 457, 460 (Chk. 2007).

Criminal Law and Procedure  Information
When the affidavit(s) did not state that the victim was thrown overboard but instead stated that the victim's body was thrown overboard after the victim was shot, the only fair inference that can be drawn from that allegation is that the prosecution alleges that the shooting killed the victim and the defendants are thus on notice that the government alleged that at least one of the offenses the firearm was used for was to commit a homicide. FSM v. Sam, 15 FSM Intrm. 457, 460 n.1 (Chk. 2007).

Criminal Law and Procedure  Information  Amendment
The filing of an amended information does not require a second affidavit if the affidavit filed with the original information established probable cause as to the amended charge. FSM v. Sam, 15 FSM Intrm. 457, 460-61 (Chk. 2007).

Criminal Law and Procedure  Information  Amendment
No additional or different offense was charged in an amended information and the defendants' substantial rights were not prejudiced when the defendants had, by reading the original information and the affidavit together, notice from the start of the factual allegations in the case. FSM v. Sam, 15 FSM Intrm. 457, 461 (Chk. 2007).

Criminal Law and Procedure  Information  Amendment
To the extent that a count is amended to charge aiding and abetting the use of a firearm to commit assault and homicide may subject the defendants, if convicted, to heavier sentences, such an amendment is not barred because no additional or different offense has been charged and the defendants have been on notice from the start (because of the affidavit accompanying the original complaint) that the prosecution alleged that they were criminally liable for another's use of a firearm to commit assault and homicide. FSM v. Sam, 15 FSM Intrm. 457, 461 (Chk. 2007).

Criminal Law and Procedure  Aiding and Abetting; Criminal Law and Procedure  Pleas
A bargained-for dismissal as part of a plea agreement is not tantamount to an acquittal and the dismissal of charges pursuant to a plea agreement is clearly not a finding of the same order as an acquittal and should not have the same implications. Therefore, an accused's bargained-for dismissal of an illegal possession of ammunition charge against him does not warrant the dismissal of the aiding and abetting illegal possession of ammunition charges against other defendants. FSM v. Sam, 15 FSM Intrm. 457, 462 (Chk. 2007).

Criminal Law and Procedure  Aiding and Abetting; Criminal Law and Procedure  Pleas
In order to convict defendants of the aiding and abetting illegal possession of ammunition, the prosecution must first prove that another illegally possessed ammunition. But the dismissal of the illegal possession of ammunition charge against that other as the result of his bargained-for plea agreement in the other's case does not preclude the prosecution from proving, in this case, that the other illegally possessed ammunition, and then proving that the defendants aided and abetted him. FSM v. Sam, 15 FSM Intrm. 457, 462 (Chk. 2007).

Criminal Law and Procedure  Dismissal
When a review of the amended informations and their supporting affidavits reveals no basis for the claim that the information fails to set forth the essential facts constituting the charges against the defendants, their motion to dismiss will be denied. FSM v. Sam, 15 FSM Intrm. 457, 462 (Chk. 2007).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On June 22, 2007, defendant Punun (Das) Sam filed his Motion for Dismissal. Sam asks the court to dismiss the Second Amended Information because, in his view, it 1) is an additional or different charge and therefore impermissible under Criminal Rule 7(e); 2) is defective because it does not set forth the essential facts constituting the underlying offenses in Count III's charge of aiding and abetting the use of a firearm to commit crimes; and 3) only contains a firearms charge over which the FSM Supreme Court lacks subject matter jurisdiction because there is no nexus between the charge and the national government's powers to regulate interstate and foreign commerce and to provide for the national defense. Sam also asks the court to dismiss the [first] Amended Information for lack of subject matter jurisdiction over the offenses charged and to dismiss Count II (aiding and abetting illegal possession of ammunition) because the illegal possession of ammunition count against the principal was dismissed.

The prosecution filed its opposition on July 9, 2007, and on July 26, 2007, filed a Supplemental Affidavit of Probable Cause. On December 11, 2007, defendant Chenesy Miller filed his motion joining Sam's motion to dismiss.

I. Subject Matter Jurisdiction

Sam and Miller contend that the FSM Supreme Court lacks subject matter jurisdiction over the firearms charges in the first and second amended informations because in this case there was no nexus between the charges and the national government's powers to regulate interstate and foreign commerce and to provide for the national defense. They seem to assert that every time the national government charges a violation of its firearms statutes, the government must also show that national defense and foreign or interstate commerce was involved or implicated in that particular case.

This contention is without merit. The court has previously rejected this identical contention when it was raised in other cases. FSM v. Tosy, 15 FSM Intrm. 238, 239 (Chk. 2007); FSM v. Louis, 15 FSM Intrm. 206, 211-13 (Pon. 2007). See also Jano v. FSM, 12 FSM Intrm. 569, 576 (App. 2004); FSM v. Fal, 8 FSM Intrm. 151, 154 (Yap 1997). There is nothing new here that would cause the court to consider departing from previous caselaw. The motion to dismiss for lack of subject matter jurisdiction is accordingly denied.

II. Count III (Second Amended Information)

Sam and Miller contend that the second amended information is a different or additional charge and thus impermissible under Rule 7(e). The second amended information consists solely of Count III (aiding and abetting the use of a firearm in connection with or in aid of the commission of an offense), that replaces Count III in the [first] Amended Information. The [first] Amended Information also includes Count I (aiding and abetting the possession of a prohibited firearm) and Count II (aiding and abetting the possession of prohibited ammunition).

Criminal Procedure Rule 7(e) provides that "[t]he court may permit an information to be amended at any time before finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Sam and Miller contend that Count III, aiding and abetting the use of a firearm in connection with or in aid of the commission of a crime, is an additional or different offense.

When the government asked for leave to amend the original information and file the [first] Amended Information, the defendants did not oppose the amendment but contended that, even if amended, the information still had to be dismissed. FSM v. Sam, 14 FSM Intrm. 328, 332 (Chk. 2006). The defendants' motion to dismiss the first amended information in its entirety on the ground it was legally impossible for them to aid or abet a crime of possession was denied by the court's August 8, 2006 order. Id. at 332-34. The court did, however, dismiss the first amended information's Count III with leave to amend because, as a matter of form, that count failed to specify what crime or crimes the firearm was used to commit. Id. at 334, 336. (It was a matter of form because the underlying crimes could have been inferred from the factual allegations in the supporting affidavit. See infra.)

The court concludes that Count III, as amended by the second amended information, does not include an additional or different offense. Since the essential facts for this charge were included in the original information and affidavit, the defendants' substantial rights are not prejudiced because the defendants are not surprised.

The original information's Count III charged the defendants with failing to prevent Masory Karen from using a firearm on the victim and the attached probable cause affidavit stated that Karen shot the victim and that the victim's body was then thrown overboard. These same facts were included in the [first] Amended Information and its supporting affidavit along with an amended allegation that the defendants aided and abetted the commission of these acts. Additionally, these facts are repeated in the supplemental affidavit, which was filed after the second amended information had been filed. The supplemental affidavit may have been unnecessary because the "filing of an amended information does not require a second affidavit if the affidavit filed with the original information established probable cause as to the amended charge." State v. Ecker, 792 P.2d 1079, 1081 (Mont. 1990). In this case, each of the two earlier affidavits did so.

Thus no additional or different offense is charged in the Second Amended Information, and because the defendants had, by reading the information and the affidavit together, notice from the start of the factual allegations in this case, no substantial rights of the defendants were prejudiced.

This reasoning is in conformity with other jurisdictions that use an information as a charging document and that have rules concerning their amendment similar to FSM Criminal Procedure Rule 7(e). In Tague v. Richards, 3 F.3d 1133, 1141 (7th Cir. 1993), the court held that a defendant's due process rights had not been violated when the information charging him with child molestation was amended on the day of trial to charge sexual intercourse as well as deviant sexual conduct because the defendant had been previously alerted to the claim of intercourse by the affidavit attached to the original information and was thus adequately apprised of what he had to meet. In the present case, Sam and Miller have been adequately apprised that from the start by the probable cause affidavit of the allegation that the firearm was alleged to have been used to commit an assault and a homicide.

Similarly, in Deasis v. State, 200 S.W.3d 911, 916 (Ark. 2005), the amendment of the information 34 days before trial to include a charge of arson was permissible because the probable cause affidavit made numerous references to the fire the defendant had set in his home after killing his child and the amendment did not change the nature or degree of the offense charged or create unfair surprise. Also, in State v. Ansell, 675 P.2d 614, 617 (Wash. Ct. App. 1984), the court held that if the information were deficient it could be amended because the affidavit accompanying the motion for an arrest warrant had put the defendant on notice of the facts upon which the prosecution was relying. In the present case, the affidavit accompanying the original information put the defendants on notice that the prosecution alleged that the firearm involved was used to commit an assault and a homicide so that they cannot claim prejudice or unfair surprise.

Likewise, in Virgin Islands v. Bedford, 671 F.2d 758, 764-66 (3d Cir. 1982), the court concluded it was permissible to amend the information at the close of the government's case at trial to change one charge from an assault with intent to commit robbery to an assault with a dangerous weapon even though the latter charge was not a lesser included offense because all of the necessary allegations for the assault with a dangerous weapon had been included in the information. In the present case, all of the necessary allegations about the firearm's use were included in the information and affidavit.

And in United States v. Nitti, 733 F. Supp. 496, 498-99 (D.P.R. 1990), the court allowed the amendment of the information to correct the quantity of cocaine the defendant was accused of importing and thus increasing his possible sentence because such an amendment was one of form and not substance and did not charge an additional offense or affect the defendant's substantial rights. The same result was reached in People v. Superior Court (Mendella), 661 P.2d 1081, 1088 (Cal. 1983), when it held that an information could be amended to add allegations that enhanced the charge from assault with a deadly weapon by force to assault with a deadly weapon with intent to cause great bodily harm when the defendant had been put on notice of the potential charge. Thus to the extent that Count III in the present case is amended to charge aiding and abetting the use of a firearm to commit assault and homicide may subject the defendants, if convicted, to heavier sentences, such an amendment is not barred because no additional or different offense has been charged and the defendants have been on notice from the start (because of the affidavit accompanying the original complaint) that the prosecution alleged that they were criminally liable for Karen's use of a firearm to commit assault and homicide.

Accordingly, the motion to dismiss Count III (the second amended information) is denied.

III. Count II

Sam and Miller contend that Count II, aiding and abetting the illegal possession of ammunition, must be dismissed because the person allegedly being aided and abetted, Masory Karen, was not convicted of illegal possession of ammunition. In Criminal Case No. 2006-1502, Karen was charged with possession of an illegal firearm, illegal possession of ammunition, and using a firearm to commit a crime. On September 11, 2006, as part of a plea bargain, Karen pled guilty to the illegal possession of a firearm and to the use of a firearm to commit a crime. The charge of illegal possession of ammunition was dismissed on the government's motion as part of the plea agreement.

Sam and Miller contend that the dismissal of the illegal possession of ammunition charge against Karen means that the government cannot prove that Karen illegally possessed ammunition, a necessary element of the aiding and abetting charges against Sam and Miller, and that therefore Count II against them must be dismissed. For this contention, they rely on Hartman v. FSM, 6 FSM Intrm. 293 (App. 1993). In Hartman, the appellate court, because the inconsistent verdicts negated an essential element of the charge, reversed a conviction of aggravated sexual assault since the alleged element of aggravation was that the accused committed the assault while being aided and abetted by another and all three co-defendants (who were tried together) were acquitted of the aiding and abetting charges. Id. at 300-01.

However, in Karen's case, he was not acquitted on the illegal possession of ammunition charge. There was no verdict on that charge at all. Instead there was, as result of a plea agreement, a bargained-for dismissal during the plea hearing. There thus can be no inconsistent verdicts.

A bargained-for dismissal as part of a plea agreement is not tantamount to an acquittal. United States v. Bedoya, 878 F.2d 73, 76 (2d Cir. 1989). "[T]he dismissal of charges pursuant to a plea agreement is clearly not a finding of the same order as an acquittal" and should not have the same implications. Commonwealth v. Lutz, 788 A.2d 993, 1001 (Pa. Super. Ct. 2001); cf. People v. Koontz, 46 P.3d 335, 371 (Cal. 2002); People v. Lewis, 22 P.3d 392, 425 (Cal. 2001) ("an acquittal . . . does not include a bargained-for dismissal"); People v. Heishman, 753 P.2d 629, 659-60 (Cal. 1988); People v. Melton, 750 P.2d 741, 765 (Cal. 1988); Burt v. Cannon, 689 So. 2d 492, 496-98 (La. Ct. App. 1997). Therefore, Karen's bargained-for dismissal of the illegal possession of ammunition charge against him does not warrant the dismissal of the aiding and abetting illegal possession of ammunition charges against Sam and Miller.

Sam and Miller are correct that, in order to convict them on Count II, the prosecution must first prove that Karen illegally possessed ammunition. But the dismissal of the illegal possession of ammunition charge against Karen as the result of his bargained-for plea agreement in that case does not preclude the prosecution from proving, in this case, that Karen illegally possessed ammunition, and then proving that Sam and Miller aided and abetted him. Accordingly, the motion to dismiss Count II is denied.

IV. Essential Facts

Lastly, Sam and Miller also contend that the amended informations must be dismissed because the informations fail to set forth the essential facts constituting the charges against them.

A review of the amended informations and their supporting affidavits reveals no basis for this claim. Furthermore, to the extent that the defendants raised this issue in their earlier motions to dismiss, this claim was earlier denied. Sam, 14 FSM Intrm. at 331-34. Dismissal of the amended informations on this ground is therefore denied.

V. Conclusion

Accordingly, Punun (Das) Sam's motions to dismiss, joined by Chenesy Miller, are denied.