FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2016-1503

FEDERATED STATES OF MICRONESIA,	)				  
)
Plaintiff,			)
)
vs.					)
)
LUCKY SHIRO, ONSORI SINO, TASIRO	)
LOVES, and KACHURA ANGKEN,		)
)
Defendants.			)
__________________________________________	)

	DENIAL OF ALL DEFENDANTS’ MOTIONS TO DISMISS

	Dennis K. Yamase
	Chief Justice

	Hearing:  April 26, 2017
	Decided:  August 2, 2017

APPEARANCES:

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

For the Defendant:	Bethwell O’Sonis, Esq.
       (Shiro)		Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

For the Defendant:	Charleston Bravo
       (Sino)		Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

For the Defendant:	Lorrie Johnson-Asher, Esq.
        (Loves)		Chief Public Defender
Office of the Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941

For the Defendant:	Derensio S. Konman, Esq.
       (Angken)		Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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	HEADNOTES

Criminal Law and Procedure  National Crimes
A national crime is one that is committed in some place where the national government has jurisdiction, or that involves a national government instrumentality, or involves an activity that the national government has the power to regulate.  FSM v. Shiro, 21 FSM R. 331, 333 (Chk. 2017).

Constitutional Law  Involuntary Servitude; Criminal Law and Procedure  Human Trafficking
Under 11 F.S.M.C. 612, "exploitation" includes slavery and practices similar to slavery, and practices similar to slavery include debt bondage, serfdom, and forced marriage.  FSM v. Shiro, 21 FSM R. 331, 333 (Chk. 2017).

Constitutional Law  Involuntary Servitude; Criminal Law and Procedure  Human Trafficking
Since, under the constitutional provision barring slavery, Congress clearly has the authority to legislate in the area of human trafficking, the FSM Supreme Court has subject matter jurisdiction over a criminal case whose charges are all under the Trafficking in Persons Act and allege exploitation.  FSM v. Shiro, 21 FSM R. 331, 333 (Chk. 2017).

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	COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

On April 26, 2017, the Court heard arguments on the Defendants’ Motions to Dismiss.  FSM Assistant Attorney General Robert Nakasone appeared for the Plaintiff Federated States of Micronesia (Government).  FSM Public Defender Lori Johnson-Asher appeared for Defendant Tasiro Loves (Loves).  Assistant Public Defender Bethwel O’Sonis appeared for Defendant Lucky Shiro (Shiro).  Assistant Public Defender Deren Konman appeared for Defendant Kachura Angken (Angken).  Assistant Public Defender Charleston Bravo appeared for Defendant Onsori Siro (Siro).

On April 21, 2017, the Defendant Loves filed a Motion to Dismiss on Lack of Subject Matter Jurisdiction.  On the day of the hearing, the other co-Defendants in this case joined the Defendant Loves’s Motion to Dismiss.  Arguments on the Motions to Dismiss were then heard.

The Government filed an opposition and a Supplemental Brief opposing the Defendant Loves’s Motion to Dismiss.  The Defendants Loves, Sino, and Shiro filed Supplemental Briefs in support of their Motions to Dismiss.

In the Government’s Information filed on February 14, 2016, the Defendant Siro is charged with three counts of Trafficking in Children (Counts I to III), the Defendant Angken is charged with one count of Trafficking in Children (Count IV), the Defendant Tasiro Loves is charged with one count of Trafficking in Children (Count V), and the Defendant Shiro is charged with three counts of Trafficking in Children (Counts VI to VIII).  In the Defendants’ Motions to Dismiss for Lack of Subject Matter Jurisdiction, it is asserted that all of the Counts took place in Pata, Chuuk State and therefore, in the context of the Trafficking in Persons Act of 2012 (herein "Trafficking in Persons Act"), 11 F.S.M.C. §§ 611 et seq., these allegations do not fall within the definition of a national crime.

The Defendants assert that under FSM Const. art. VIII there is a clear distinction between a national and state power and that under FSM Const. art. IX, § 2(p), the FSM Congress has the power to regulate only national crimes.  The Defendants further contend that the Court’s jurisdiction cannot be found under 11 F.S.M.C. 103 on Jurisdiction of the FSM.  Further, the Defendants cite to 17th FSM Congress, Standing Committee Report No. 17-90 of the Committee on Judiciary and Governmental Operations which states the following:  "Representatives of the Department of Justice opined that the national government would have jurisdiction over crimes involving interstate commerce or the movement of persons across interstate borders, but that states would probably have jurisdiction otherwise."

The Defendants assert that the specific element of international or interstate movement is absent in all the allegations made against the Defendants and therefore the Trafficking in Persons Act cannot and must not be applied.  The Defendants cite to three FSM Supreme court cases in support of their argument, FSM v. Fal, 8 FSM R. 151, 154 (Yap 1997); FSM v. Jano, 6 FSM R. 9, 11 (Pon. 1993); and In re Extradition of Jano, 6 FSM R. 93, 102 (App. 1993).  In the Fal case it is stated that: "A national crime is one that is committed in some place where the national government has jurisdiction, or that involves an instrumentality of the national government, or involves an activity that the national government has the power to regulate." (emphasis added).

In all of their arguments, the Defendants ignore a very critical and important part of the Trafficking in Persons Act.  The Government pointed this out in its Supplemental Brief filed on June 21, 2017, when it cited to FSM Const. art. IV (Declaration of Rights), § 10 which states: "Section 10.  Slavery and involuntary servitude are prohibited except to punish crime."

The Human Trafficking Act in 11 F.S.M.C. 612(3)(c) provides a concise definition of the word "exploitation" and states that it includes, "(c) slavery and practices similar to slavery."  11 F.S.M.C. 612(5) provides a definition for "(5) ’Practices similar to slavery’ include debt bondage, serfdom, and forced marriage."  In 11 F.S.M.C. 615, "Offense of human trafficking," the term "exploitation" is repeated twice.  In 11 F.S.M.C. 616, "Offense of trafficking in children," the term "exploitation is included.  In 11 F.S.M.C. 618, "Offense of exploiting a trafficked person," the term "exploiting" or "exploitation" is repeated twice.  In 11 F.S.M.C. 621, "Scope of application," the term "exploitation" is included in its subsection (1).

The information whose charges are all under the Trafficking in Persons Act specifically includes the word "exploitation" in Counts I, IV, V, and VI.  All of the Counts allege a violation of 11 F.S.M.C. §§ 612 and 616, which contain the term "exploitation" within it as set forth above.  Thus all Counts of the information relate to exploitation which may relate to slavery in one form or another.

The Congress clearly had the authority to legislate in the area of human trafficking under FSM Const. art. IV, § 10, thus subject matter jurisdiction in this case is clear.  In addition to this, the trial division of this court has ruled in a similar human trafficking matter in the State of Chuuk that the Court clearly has subject matter jurisdiction for the same reasons.  FSM v. Hercules Jonatan Siega and Johnone Manaky, Crim. Case No. 2015-1512 and FSM v. Cortez Benedicto, Rieta Eram, and Tataichy Punan, Crim. Case No. 2015-1513.  In these two Chuuk human trafficking cases the court also addressed, in further detail, the subject matter jurisdictional arguments related to the FSM Congress Stand. Comm. Rept. 17-90 which related to the statement from the representative of the Department of Justice and the dual human trafficking regulation by both the state and national governments. [FSM v. Siega, 21 FSM R. 291, 295-96 (Chk. 2017).]

for all the aforementioned reasons, the Defendants Shiro, Loves, Sino, and Angken’s Motions to Dismiss on Lack of Subject Matter Jurisdiction are hereby denied.
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