FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2007-1517

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

ANTONIO AIKEN,
Defendant.

__________________________________________

ORDER

Ready E. Johnny
Associate Justice

Hearing: October 9, 2008
Decided: October 20, 2008

APPEARANCES:

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

For the Defendant: William E. Minkley, Esq.
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure  Motions
 Written motions must be supported by a memorandum of points and authorities and the moving party's failure to file the memorandum of points and authorities is deemed a waiver by the moving party of the motion. FSM v. Aiken, 16 FSM Intrm. 178, 181 (Chk. 2008).

Constitutional Law  Supremacy Clause; Federalism  National/State Power
 A state constitution cannot control or restrict the actions of the national government, whose powers and limitations are derived solely from the national constitution, which is the supreme law of the land. Thus, a state constitution's protections cannot be invoked against the national government. FSM v. Aiken, 16 FSM Intrm. 178, 182 (Chk. 2008).

Criminal Law and Procedure
 A person accused of committing a national crime can rely only on his rights under the national constitution to protect himself from the actions of the national government and its agents. When the state is prosecuting national crimes in the national court, it is acting as the national government's agent pursuant to a joint law enforcement agreement, and the court will therefore only consider whether the accused's rights were violated under the FSM Constitution's due process and equal protection clauses. FSM v. Aiken, 16 FSM Intrm. 178, 182 (Chk. 2008).

Constitutional Law  Due Process  Vagueness
 A criminal statute must not be so vague and indefinite as to fail to give fair notice of what acts will be punished but the right to be informed of the nature of the accusation does not require absolute precision or perfection of criminal statutory language, but the statute must 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. Although some generality may be inescapable in proscribing conduct, 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. Aiken, 16 FSM Intrm. 178, 182 (Chk. 2008).

Constitutional Law  Due Process  Vagueness
 When an information alleges violation of a statute, that statute must be drawn so as to give a person of ordinary intelligence fair notice that the contemplated conduct was forbidden. Laws must also provide explicit standards for those who apply them. When the statute complained of, even though not mathematically precise, gives fair notice of the acts that will be punished, the prosecution will not be dismissed on the ground that the statute was unconstitutionally vague. FSM v. Aiken, 16 FSM Intrm. 178, 182 (Chk. 2008).

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 and judges. FSM v. Aiken, 16 FSM Intrm. 178, 182 (Chk. 2008).

Constitutional Law  Due Process  Vagueness
 A criminal statute's use of the term "under the influence of alcohol" does not render that statute void for vagueness and does not violate the FSM Constitution's Due Process Clause. FSM v. Aiken, 16 FSM Intrm. 178, 182-83 (Chk. 2008).

Constitutional Law  Due Process  Vagueness; Statutes  Construction
 When criminal liability is explicitly imposed for the use of a firearm "in connection with or in aid of the commission of any crime against the laws of the Federated States of Micronesia," the use of the term "laws of the Federated States of Micronesia" does not make the statute unconstitutionally vague. This term refers 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. The plural form of the word "laws" further compels this conclusion. FSM v. Aiken, 16 FSM Intrm. 178, 183 (Chk. 2008).

Criminal Law and Procedure  Information
 Since, under 11 F.S.M.C. 1023(7), the government must prove beyond a reasonable doubt that the firearm was used in connection with or in aid of the commission of a crime, when the information does not allege what crime or crimes, the firearm was used to help commit, it fails to allege an essential element of 11 F.S.M.C. 1023(7), and that count of the information should be dismissed for failure to state an offense. FSM v. Aiken, 16 FSM Intrm. 178, 183 (Chk. 2008).

Criminal Law and Procedure  Interrogation and Confession; Criminal Law and Procedure  Motions
 The government has the burden of proving that an accused's statement is voluntary and thus admissible. Thus, although it may be the defendant's motion to suppress, the government, because it has the burden, presents its side first at a suppression hearing. FSM v. Aiken, 16 FSM Intrm. 178, 184 (Chk. 2008).

Criminal Law and Procedure  Interrogation and Confession
 When the government did not present any evidence that the accused's statement(s) were voluntary, but instead, averred that it did not take any statement from him, if there were any statements by the accused in the prosecution's possession, they could be suppressed. FSM v. Aiken, 16 FSM Intrm. 178, 184 (Chk. 2008).

Search and Seizure
 When a search or seizure is conducted without a warrant the burden is on the government to justify the search or seizure, but when the search or seizure is conducted pursuant to a judicially-issued warrant the burden rests with the defendant to prove the illegality of the search or seizure. FSM v. Aiken, 16 FSM Intrm. 178, 184 (Chk. 2008).

Evidence  Witnesses
 A motion to suppress all witness statements on the ground they were given without the warnings required by law will be denied since the court is not aware of any warnings required to be given a witness before the witness makes a statement and neither the accused's written motion nor oral argument cited any authority that legal warnings are required to be given before a witness's statement may be taken. This does not mean that the FSM Rules of Evidence, especially those concerning hearsay, would not apply at trial. FSM v. Aiken, 16 FSM Intrm. 178, 184 (Chk. 2008).

Criminal Law and Procedure  Motions; Search and Seizure
 A motion to suppress the evidence against an accused on the ground that the evidence was obtained as the result of "an arrest that was not in compliance with the law" is not sufficiently particular since it does not indicate the reason(s) why the accused asserts that the arrest was illegal. A suppression movant must articulate in his motion with sufficient particularity the specific reason on which he bases his claim that the seizure was illegal, and a written motion to suppress evidence must specify with particularity the grounds upon which the motion is based. FSM v. Aiken, 16 FSM Intrm. 178, 184 (Chk. 2008).

Search and Seizure
 Grounds for relief in broad and literal conclusory terms, such as a conclusory statement in an accused's suppression motion that his arrest was not in compliance with the law, are, without more, insufficient to raise a suppression question. FSM v. Aiken, 16 FSM Intrm. 178, 184 (Chk. 2008).

Criminal Law and Procedure  Motions
 The FSM rules have long required that written motions to suppress evidence be filed and decided before trial. FSM v. Aiken, 16 FSM Intrm. 178, 184 (Chk. 2008).

Criminal Law and Procedure  Motions; Search and Seizure
 A motion to suppress is, in effect, a pleading to the extent that it frames the issues to be determined in a pretrial hearing on the motion. The fundamental role of a pleading is to give an opposing party notice of the pleader's position concerning the facts and law so that the opposing party can begin to prepare his defense. A pleading thus both defines and limits the areas of consideration at a trial or other evidentiary hearing. Furthermore, the pleading assists the court in the conduct of the hearing. For example, by enabling the court to determine the relevance of the offered evidence. FSM v. Aiken, 16 FSM Intrm. 178, 184 (Chk. 2008).

Criminal Law and Procedure  Motions; Search and Seizure
 At least as much specificity should be required in a pretrial objection to the admissibility of evidence, i.e., a motion to suppress, as is required in an oral objection made during the course of a trial. In fact, even more specificity could reasonably be required because the pretrial objection can be researched and written under relatively calm circumstances, as distinguished from an extemporaneous objection made in the heat of trial. Broadly worded and vague objections are inappropriate in either context. FSM v. Aiken, 16 FSM Intrm. 178, 185 (Chk. 2008).

Criminal Law and Procedure  Motions
 Since a general objection such as "illegal arrest" or "illegal search" made before trial will ordinarily present no basis for reversing a trial court's ruling, a "shot-gun" motion that contains only conclusory language such as "illegal arrest" and that fails to specify with any particularity why his arrest was illegal could be denied without hearing on that ground alone. FSM v. Aiken, 16 FSM Intrm. 178, 185 (Chk. 2008).

Search and Seizure
 When the defendant's arrest was by warrant, the burden of showing its supposed illegality rested with the defendant. When the defendant failed to meet that burden and when the motion's other ground that witnesses were not given required legal warnings is legally unsound, the government's failure to produce evidence at the hearing was not fatal and the motion to suppress is accordingly denied. FSM v. Aiken, 16 FSM Intrm. 178, 185 (Chk. 2008).

Criminal Law and Procedure  Dismissal; Criminal Law and Procedure  Motions
 An oral motion to dismiss the case because the prosecution, by not putting on any witnesses or evidence, failed to establish a prima facie case against the accused at the hearing will be denied when the hearing was not a preliminary examination or an initial appearance, or some other proceeding at which the government is required to make a prima facie showing of the case against the defendant but was a pretrial hearing on the defendant's Rule 12(b)(2) and (3) motions  motions alleging defects in the information and to suppress evidence. FSM v. Aiken, 16 FSM Intrm. 178, 185 (Chk. 2008).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

 This came before the court on October 9, 2008, for hearing on defendant Antonio Aiken's motion to dismiss and his motion to suppress evidence, both filed September 16, 2008, and on the prosecution's oppositions to each motion, filed September 29, 2008. The court's ruling and reasoning follows.

I. Preliminary Observation

 The court finds each side's level of advocacy somewhat dismaying. Under our criminal procedure rules, written motions must be supported by a memorandum of points and authorities and the "[f]ailure by the moving party to file the memorandum of points and authorities shall be deemed a waiver by the moving party of the motion." FSM Crim. R. 45(d). Aiken's cookie-cutter motions may be minimally adequate in this regard. And on the prosecution side, it failed to introduce any evidence or testimony at the hearing in support of its burden of proof.

II. Motion to Dismiss

 Aiken, in his written motion to dismiss, seeks dismissal of the information under the due process and equal protection clauses of the FSM and Chuuk Constitutions.

A. Constitutional Claims

 A state constitution cannot control or restrict the actions of the national government, whose powers and limitations are derived solely from the national constitution, which is the supreme law of the land. See FSM Const. art. II, § 1. Thus, a state constitution's protections cannot be invoked against the national government. Anyone, including a person accused of committing a national crime, can rely only on his rights under the national constitution to protect himself from the actions of the national government and its agents. The state, in prosecuting national crimes in the national court is acting as the national government's agent pursuant to a joint law enforcement agreement. The court will therefore only consider whether Aiken's rights were violated under the FSM Constitution's due process and equal protection clauses.

 Aiken asserts that the information is defective because it does not set forth the offense charged in plain and intelligible words since, in his view, it fails to specify the nature of the prohibited carrying of a firearm in Count I and fails to state the crime that the firearm was used in connection with or in aid of, as charged in Count II. Aiken also contends that the statutes that he is charged with violating are unconstitutionally vague. These are both due process claims. Nothing is raised that could be considered an equal protection claim. Therefore the court will consider only whether the FSM Constitution's due process clause has been violated. Since this is a question of law for which neither side has the burden of producing evidence, it will be decided based on the legal arguments before the court.

B. Charging Statutes

 A criminal statute must not be so vague and indefinite as to fail to give fair notice of what acts will be punished but the right to be informed of the nature of the accusation does not require absolute precision or perfection of criminal statutory language. Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984). The statute must 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. Id. Although some generality may be inescapable in proscribing conduct, 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.

 When an information alleges violation of a statute, that statute must be drawn so as to give a person of ordinary intelligence fair notice that the contemplated conduct was forbidden. FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999). Laws must also provide explicit standards for those who apply them. Id. When the statute complained of, even though not mathematically precise, gives fair notice of the acts that will be punished, the prosecution will not be dismissed on the ground that the statute was unconstitutionally vague. FSM v. Kansou, 14 FSM Intrm. 128, 130 (Chk. 2006). 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 and judges. FSM v. Anson, 11 FSM Intrm. 69, 75 (Pon. 2002).

 Subsection 1023(4) of Title 11, the violation of which is charged in Count I, explicitly prohibits carrying a gun while under the influence of alcohol or narcotic or other disabling drug. The appellate division has held that a criminal statute's use of the term "under the influence of alcohol" does not render that statute void for vagueness and does not violate the FSM Constitution's Due Process Clause. Phillip v. Kosrae, 15 FSM Intrm. 116, 121 (App. 2007).

 Under Subsection 1023(7), the violation of which is charged in Count II, criminal liability is explicitly imposed for the use of a firearm "in connection with or in aid of the commission of any crime against the laws of the Federated States of Micronesia." The use of the term "laws of the Federated States of Micronesia" does not make the statute unconstitutionally vague. The court has previously held that this term refers 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). The plural form of the word "laws" further compels this conclusion.

 Thus, both statutes which Aiken is charged with violating are sufficiently explicit to prescribe the offenses with reasonable certainty and not so vague that a person of common intelligence must necessarily guess at their meaning. The statutes give fair notice of what acts are prohibited. The information will therefore not be dismissed on the ground that the statues under which Aiken is charged are unconstitutionally vague.

C. Charging Information

 Turning to the information, an information must sufficiently apprise the defendant of the charges against which he must be prepared to defend and must be sufficiently detailed to enable him to plead his case as a bar to future prosecutions for the same offense. Laion, 1 FSM Intrm. at 516-17. Count I clearly specifies that Aiken is accused of carrying a gun on February 8, 2007, while under the influence of alcohol. Count I is not defective.

 Count II, read with the supporting affidavit, charges that Aiken used the gun to threaten his neighbors or other persons. Count II also alleges Aiken used to gun to disturb his neighbors, presumably an allegation of disturbing the peace.

 Since, under 11 F.S.M.C. 1023(7), the government must prove beyond a reasonable doubt that the firearm was used in connection with or in aid of the commission of a crime, when the information does not allege what crime or crimes, the firearm was used to help commit, it fails to allege an essential element of 11 F.S.M.C. 1023(7), and that count of the information should be dismissed for failure to state an offense. Sam, 14 FSM Intrm. at 334. FSM criminal law, whether national or state, is statutory. It would thus seem proper that an information, when charging a violation of 11 F.S.M.C. 1023(7), cite the statute or statutes (state or national) that the firearm was used to help violate in order to give the accused fair notice of the charges (and the elements thereof) that he must be prepared to defend.

 Since the information does not cite any [Chuuk] statute criminalizing the threatening of persons or disturbing the peace, Aiken had no notice of the elements of the crime that the gun allegedly was used in aid of. The court thus concludes that Count II is defective and is therefore dismissed.

III. Motion to Suppress

 Aiken seeks the suppression of any statements he made, his signed advice of rights form, all witness statements, and the firearm and any ammunition on the ground that they were obtained as the result of an illegal arrest and without the warnings required by law and in violation of article IV, sections 4, 5, and 7 of the FSM Constitution. (Aiken also asserts violations of the Chuuk Constitution, which for the reasons stated above in part II.A the court will disregard.)

 The government has the burden of proving that an accused's statement is voluntary and thus admissible. Thus, although it may be the defendant's motion to suppress, the government, because it has the burden, presents its side first at a suppression hearing. FSM v. Sam, 15 FSM Intrm. 491, 492-93 (Chk. 2008). The government did not present any evidence that Aiken's statement(s) were voluntary. Instead, it averred that it did not take any statement from Aiken. Therefore, if there were any statements by Aiken in the prosecution's possession, they could be suppressed.

 Aiken, in his motion to suppress contends that the evidence against him was seized as the result of an illegal arrest. Aiken was arrested pursuant to a warrant issued by the court after the information and its supporting affidavit were filed. When a search or seizure is conducted without a warrant the burden is on the government to justify the search or seizure, but when the search or seizure is conducted pursuant to a judicially-issued warrant the burden rests with the defendant to prove the illegality of the search or seizure. FSM v. Santa, 8 FSM Intrm. 266, 268 (Chk. 1998). The burden, at this hearing, of showing that the arrest was illegal was therefore not the government's but Aiken's. Aiken's motion fails to indicate any specific or particular reason why he asserted that the arrest was illegal.

 Aiken also moved to suppress all witness statements, apparently on the ground they were given without the warnings required by law. The court is not aware of any warnings required to be given a witness before the witness makes a statement; nor has Aiken's written motion, or oral argument, cited any authority that legal warnings are required to be given before a witness's statement may be taken. The court therefore denies the suppression of witness statements. This, however, does not mean that the FSM Rules of Evidence, especially those concerning hearsay, would not apply at trial.

 Aiken asserts, in his written motion, as his ground to suppress the evidence against him that the evidence was obtained "was the result of an arrest that was not in compliance with the law." Motion to Suppress at 1. This ground is not sufficiently particular since it does not indicate the reason(s) why Aiken asserts that the arrest was illegal. A "suppression movant must articulate in his motion with sufficient particularity the specific reason on which he bases his claim that the seizure . . . was illegal." State v. Torrey, 704 A.2d 397, 398 (Me. 1998). "[A] written motion to suppress evidence must specify with particularity the grounds upon which the motion is based." State v. Johnson, 519 P.2d 1053, 1054 (Or. Ct. App. 1974). "[G]rounds for relief in broad and literal conclusory terms," such as Aiken's conclusory statement in his suppression motion that his arrest was not in compliance with the law, are, without more, insufficient to raise a suppression question. State v. Desjardins, 401 A.2d 165, 169 (Me. 1979) (motion to suppress on conclusory ground that property was "illegally seized without warrant" was not sufficiently particular). In Johnson, which involved warrantless arrests and searches where the prosecution bore the burden, the court disapproved of the defense attorneys' "'shot-gun' motions to suppress," which "contained only conclusory language'illegal arrest,' 'violation of constitutional rights' etc. [and] failed to specify with any particularity exactly why the arrests or resulting searches were supposedly invalid." Johnson, 519 P.2d at 1057. The FSM rules have long required that written motions to suppress be filed and decided before trial. FSM Crim. R. 12(b)(3).

 A motion to suppress is, in effect, a pleading to the extent that it frames the issues to be determined in a pretrial hearing on the motion. The fundamental role of a pleading is to give an opposing party notice of the pleader's position concerning the facts and law so that the opposing party can begin to prepare his defense. A pleading thus both defines and limits the areas of consideration at a trial or other evidentiary hearing. Furthermore, the pleading assists the court in the conduct of the [hearing]. For example, by enabling the court to determine the relevance of the offered evidence.

. . . .

 At least as much specificity should be required in a pretrial objection to the admissibility of evidence, i.e., a motion to suppress, as is required in an oral objection made during the course of a trial. In fact, even more specificity could reasonably be required because the pretrial objection can be researched and written under relatively calm circumstances, as distinguished from an extemporaneous objection made in the heat of trial. . . . [B]roadly worded and vague objections are inappropriate in either context.

Johnson, 519 P.2d at 1057-58 (comparing a motion to suppress both to a pleading and to an oral objection to evidence made at trial) (quoted approvingly in State v. Miller, 524 P.2d 1399, 1400 n.2 (Or. 1974)). The Johnson court held that motions to suppress containing only conclusory language neither "effectively put the [prosecution] on notice of the contentions it had to be prepared to meet" at the motion hearing, nor "defined any specific issues to be determined by the court" at the motion hearing. Johnson, 519 P.2d at 1057. It concluded that "a general objection such as 'illegal arrest" or 'illegal search' made before trial will ordinarily present no basis for reversing a trial court's ruling." Id. at 1058.

 Aiken's motion to suppress was also a "shot-gun" motion that contained only conclusory language such as "illegal arrest" and failed to specify with any particularity why his arrest was illegal. It could have been denied without hearing on that ground alone. Moreover, since Aiken's arrest was by warrant, the burden of showing its supposed illegality rested with Aiken, who failed to meet it. Since the burden of showing an arrest by warrant was illegal rests with the defendant, who failed to make such a showing, and since the ground that witnesses were not given required legal warnings is legally unsound, the government's failure to produce evidence at the hearing was not fatal. The motion to suppress is accordingly denied.

IV. Oral Motion to Dismiss

 At the hearing, Aiken, through counsel, orally moved to dismiss the case because the prosecution, by not putting on any witnesses or evidence, failed to establish a prima facie case against him at the hearing. The October 9, 2008 hearing, however, was not a preliminary examination or an initial appearance, or some other proceeding at which the government is required to make a prima facie showing of the case against the defendant. It was a pretrial hearing on Aiken's Rule 12(b)(2) and (3) motions  motions alleging defects in the information and to suppress evidence, as described above. The oral motion to dismiss is therefore denied.

V. Conclusion

 Antonio Aiken's motion to dismiss is denied as to Count I and granted as to Count II. His motion to suppress is denied. His oral motion to dismiss is also denied.

 Now therefore it is hereby ordered that defendant Antonio Aiken shall personally appear on December 4, 2008, at 10:00 to enter his plea to Count I, and, if a not guilty plea is entered, trial will follow immediately thereafter.

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