FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2003-1502

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

HILAR NARRUHN,
Defendant.
__________________________________________

ORDER DENYING DISMISSAL

Dennis K. Yamase
Associate Justice

Hearing: January 21, 2008
Decided: March 4, 2008

APPEARANCES:

For the Plaintiff: Joses Gallen, Esq.
Chuuk Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

For the Defendant: Julius J. Sapelalut, Esq.
Chief Public Defender
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure  Fugitives

To be considered a fugitive, a person must have some knowledge of the charges against him or her and have then left or remained outside the court's jurisdiction. From that, the court may infer that the accused's intention is to avoid prosecution. He or she is then a fugitive. FSM v. Narruhn, 15 FSM Intrm. 530, 532 (Chk. 2008).

Criminal Law and Procedure  Fugitives

When the court cannot find that an accused has any knowledge that he has been charged with an offense, or that he left the FSM in anticipation that he was about to be charged, or that he has even communicated with the counsel that now appears on his behalf, it is doubtful that the fugitive disentitlement doctrine could be applied to his counsel's motion. FSM v. Narruhn, 15 FSM Intrm. 530, 532 (Chk. 2008).

Criminal Law and Procedure  Statutes of Limitation

Prosecution for felonies other than murder, treason, or those punishable by imprisonment for ten years or more, must be commenced within three years after it is committed, or within one year after it is discovered or with reasonable diligence could have been discovered, whichever is longer. FSM v. Narruhn, 15 FSM Intrm. 530, 532 (Chk. 2008).

Criminal Law and Procedure  Statutes of Limitation

When the maximum possible penalty for an alleged offense is ten years and the limitations period for offenses "punishable by imprisonment for ten years or more" is six years, the applicable limitations period is six years because the phrase, "ten years or more" does not mean that the maximum possible sentence must be more than ten years since the disjunctive "or" clearly means that, for subsection 105(2) to apply, a maximum possible sentence of only ten years is enough. FSM v. Narruhn, 15 FSM Intrm. 530, 533 (Chk. 2008).

Criminal Law and Procedure  Statutes of Limitation; Statutes  Construction

The time periods running from "discovery" of the offense and the date the offense was committed are subject to the qualifier, "whichever is longer." The court will not read into the statute a qualifier of "whichever is shorter" because this would be directly contrary to the statute's plain meaning. The longer of the two possible calculations of the statutory limitations period applies. FSM v. Narruhn, 15 FSM Intrm. 530, 533 (Chk. 2008).

Criminal Law and Procedure  Statutes of Limitation

A prosecution has been properly "commenced" when the information was filed within the applicable time period. FSM v. Narruhn, 15 FSM Intrm. 530, 533 (Chk. 2008).

Criminal Law and Procedure  Statutes of Limitation

The filing of an information or complaint is one point in time where the statute stops, or tolls, the limitations period from running. The other event that may commence a prosecution and thus toll the statute of limitations is when an arrest warrant, summons or other process is issued, provided that reasonable attempts are made at service. The limitations period is also tolled during any time when the accused is continuously absent from the complaining jurisdiction or has no reasonably determinable place of abode or work within the jurisdiction. FSM v. Narruhn, 15 FSM Intrm. 530, 533 (Chk. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on Hilar Narruhn's Motion to Dismiss, filed February 6, 2008, and the government's Opposition to the Motion to Dismiss, filed February 13, 2008.

I.

On June 30, 2003, the government filed a criminal information, with supporting affidavit, alleging that Hilar Narruhn had, on March 8, 2002, possessed a handgun while under the influence of alcohol in violation of 11 F.S.M.C. 1023(5). On July 16, 2003, a penal summons was issued for Narruhn to appear on July 22, 2003. On July 23, 2003, another summons was issued for Narruhn to appear on August 4, 2003. On July 27, 2007, yet another summons was issued for Narruhn to appear on August 10, 2007, and, on December 10, 2007, a further summons was issued for Narruhn to appear on January 21, 2008. None of these summonses were ever served on Narruhn, as the state police were unable to locate him. Narruhn never made an initial appearance in this case.

On January 21, 2008, at the time set for Narruhn's initial appearance, the Chief Public Defender appeared and moved orally to dismiss this case on statute of limitations grounds. The prosecutor stated that Narruhn is believed to be in Hawaii and that the government would be seeking an arrest warrant so that it may begin extradition proceedings. The court asked both counsel to make their submissions in writing.

II.

The government, relying on the court's decision in FSM v. Jacob, 15 FSM Intrm. 439 (Chk. 2007), initially contends that the Chief Public Defender, acting on Narruhn's behalf (although apparently without Narruhn's knowledge), cannot seek relief from the court while Narruhn is absent from the jurisdiction.

In Jacob, the court applied the fugitive disentitlement doctrine to deny without prejudice the pretrial motions of an accused, who after having made his initial appearance and having been released on conditions, had left the FSM without the court's permission. Id. at 441. To be considered a fugitive, a person must have some knowledge of the charges against him or her and have then left or remained outside the court's jurisdiction. Id. at 441-42. From that, the court may infer that the accused's intention is to avoid prosecution. Id. at 442. He or she is then a fugitive.

From what little there is before the court, the court cannot find that Narruhn has any knowledge that he has been charged with an offense, or that he left the FSM in anticipation that he was about to be charged, or that he has even communicated with the counsel that now appears on his behalf. It is thus doubtful that the fugitive disentitlement doctrine could be applied to this motion.

III.

The court therefore turns to the motion's merits. Narruhn contends that his prosecution is barred by the statute of limitations. The criminal code provision to which both sides have directed the court's attention, requires that prosecution for felonies other than murder, treason, or those punishable by imprisonment for ten years or more, must be "commenced within three years after it is committed, or within one year after it is discovered or with reasonable diligence could have been discovered, whichever is longer." 11 F.S.M.C. 105(3). Narruhn contends, based on the information's supporting affidavit, that the offense was "discovered" on March 8, 2002, so that the June 30, 2003 filing of the information is too late since it was over one year after the offense was "discovered."

Narruhn further contends, presumably in the alternative, that the prosecution has not officially started and it is therefore now too late to commence the prosecution. This contention is based on 11 F.S.M.C. 105(6), which provides that "[a] prosecution is commenced either when an information or complaint is filed or when an arrest warrant, summons or other process is issued, provided that reasonable attempts are made at service." Narruhn contends that no reasonable attempts have been made at service so therefore the prosecution has not commenced and the three-year statute of limitations has expired.

IV.

Narruhn's contentions are in error. The applicable statute of limitations is not three years, but six, and the statute is written in the disjunctive with the time periods running either from "discovery" of the offense or from the date of the offense subject to the qualifier, "whichever is longer." The court cannot say that the prosecution has failed to make reasonable attempts at service.

Narruhn is charged with violating 11 F.S.M.C. 1023(5). The maximum penalty for violation of 11 F.S.M.C. 1023(5) is ten years. 11 F.S.M.C. 1031(2). When the maximum possible penalty for an alleged offense is ten years and the limitations period for offenses "punishable by imprisonment for ten years or more" is six years, the applicable limitations period is six years. FSM v. Nifon, 14 FSM Intrm. 309, 314 (Chk. 2006). The phrase, "ten years or more" does not mean that the maximum possible sentence must be more than ten years because the disjunctive "or" clearly means that, for subsection 105(2) to apply, a maximum possible sentence of only ten years is enough. Nifon, 14 FSM Intrm. at 314. Since violations of 11 F.S.M.C. 1023(5) are punishable by ten years imprisonment, the applicable statute of limitations is therefore "six years after it is committed or within two years after it is discovered or with reasonable diligence could have been discovered, whichever is longer." 11 F.S.M.C. 105(2).

Since the time periods running from "discovery" of the offense and the date the offense was committed are subject to the qualifier, "whichever is longer," even if the 11 F.S.M.C. 105(3) periods (three years after an offense's commission or one year after its discovery) applied instead of the 11 F.S.M.C. 105(2) periods, the criminal information would still have been timely filed. Narruhn would have the court read into the statute a qualifier of "whichever is shorter." This would be directly contrary to the statute's plain meaning. The longer of the two possible calculations of the statutory limitations period applies, in this case, within six years of the offense's commission or within two years of its discovery.

Narruhn's prosecution has been properly "commenced." It was "commenced" on June 30, 2003, when the information was filed, which was within the applicable time period. The filing of an information or complaint is one point in time where the statute stops, or tolls, the limitations period from running. See 11 F.S.M.C. 105(5)(b) (the time limitation does not run "during any time when a prosecution against the accused for the same conduct is pending in this jurisdiction"). The other event that may commence a prosecution and thus toll the statute of limitations is "when an arrest warrant, summons or other process is issued, provided that reasonable attempts are made at service." 11 F.S.M.C. 105(6). The proviso "provided that reasonable attempts are made at service," since it is placed after the second of the two alternatives instead of before both, may apply only to the second alternative  considering the time the case commenced as when process was issued. This case was commenced when the information was filed.

But even if the proviso also applies to the filing of an information, the court cannot say that reasonable efforts were not made at service. There have been four penal summonses issued for Narruhn. When the first one was not served and Narruhn did not appear at the scheduled initial appearance, a second one was issued the next day for another initial appearance set for two weeks later. Lastly, the prosecution asserts that Narruhn has not been in the FSM, the complaining jurisdiction, for some time. The court notes that the limitations period is also tolled "during any time when the accused is continuously absent from the complaining jurisdiction or has no reasonably determinable place of abode or work within the jurisdiction." 11 F.S.M.C. 105(5)(a). The court, however, has no evidence before it on whether Narruhn has been, or was, continuously absent from the FSM.

V.

Accordingly, the motion to dismiss this case is denied. The prosecution may apply for an arrest warrant.

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