Chuuk v Kasmiro [2009] FMCSC 8; 16 FSM Intrm. 404 (Chk. S. Ct. Tr. 2009) (29 April 2009)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CSSC CRIMINAL CASE NO. 04-2006

CHUUK STATE,
Plaintiff,

vs.

RAKOFICH KASMIRO, SAMUEL WISUN, CHESNEY MILLER, and PUNUN (DAS) SAM,
Defendants.

____________________

ORDER

Camillo Noket
Chief Justice

Hearing: April 21, 2009
Decided: April 29, 2009

APPEARANCES:

For the Plaintiff: Charleston Bravo
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant: Michael Marco
(Kasmiro) Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

For the Defendant: Kent Cheipot
(Wisun) Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

For the Defendants: Fredrick A. Hartman
(Miller & Sam) P.O. Box 453
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure  Double Jeopardy
The rule against double jeopardy provides three types of protection for criminal defendants: it protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. Chuuk v. Kasmiro, [2009] FMCSC 8; 16 FSM Intrm. 404, 406 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure  Double Jeopardy; Federalism  National/State Power
The dual sovereignty doctrine provides an important limitation on the application of double jeopardy to related state and national prosecutions. Under the dual sovereignty doctrine, a state prosecution does not bar a subsequent national prosecution of the same person for the same acts, and a national prosecution does not bar a subsequent state prosecution. The reason is that the national government and its individual states are independent sovereigns, and prosecutions under the laws of those separate sovereigns do not subject a defendant to be twice put in jeopardy. If the constitutional protection against double jeopardy did apply to prosecutions under the laws of independent sovereigns, then prosecution by one sovereign for a relatively minor offense might bar prosecution by another sovereign for a much graver offense, effectively depriving the latter of the right to enforce its laws, and defendants would always race to stand trial in the court where the charges were less severe in order to bar the second action. Chuuk v. Kasmiro, [2009] FMCSC 8; 16 FSM Intrm. 404, 406 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure  Double Jeopardy
Double jeopardy only applies against multiple punishments for the same offense. When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Chuuk v. Kasmiro, [2009] FMCSC 8; 16 FSM Intrm. 404, 406 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure  Double Jeopardy
Double jeopardy generally bars a second action if the defendant is acquitted on the merits, but the vacating of a conviction on the ground of a material variance between pleading and proof is not an acquittal on the merits. Rather, when there is a material variance between the pleadings and a court's findings that results in vacating a conviction, the defendant will not be in jeopardy against a subsequently filed information with new allegations because the defendant was never called to defend against those allegations. Chuuk v. Kasmiro, [2009] FMCSC 8; 16 FSM Intrm. 404, 407 (Chk. S. Ct. Tr. 2009).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

INTRODUCTION

On April 21, 2009 the court heard oral argument from all parties on defendant Rakofich Kasmiro's motion to dismiss. The basis for the motion is that the state has unconstitutionally put Kasmiro in double jeopardy because he was already tried in the FSM Supreme Court on charges arising from the same incident.

BACKGROUND

The FSM Supreme Court found Kasmiro guilty on two charges of aiding and abetting for possession of a firearm and possession of ammunition. The Appellate Division of the FSM Supreme Court vacated the resulting conviction because it found that there was a material variance between what was plead to the trial court and the trial court's findings. Relying on the prohibitions against double jeopardy set forth in the Chuuk State and FSM constitutions, see FSM Const. art. IV, § 7; Chk. . art. III, §&167; 5, Kasmigues that the overtoverturning of his conviction on weapons charges in the FSM Supreme Court bars the state from prosecuting assault and homicide charges trose the same incidentident.

THE LAW

The rule against double jeopardy provides three types of protection for criminal defendants: it protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. Laion v. FSM, [1984] FMSC 9; 1 FSM Intrm. 503, 523 (App. 1984) (citing North Carolina v. Pearce, [1969] USSC 161; 395 U.S. 711, 717[1969] USSC 161; , 89 S. Ct. 2072, 2076[1969] USSC 161; , 23 L. Ed. 2d 656, 664-65 (1969)). The court finds three reasons why these protections do not bar this action.

First, the dual sovereignty doctrine provides an important limitation on the application of double jeopardy to related state and national prosecutions. Under the dual sovereignty doctrine, a state prosecution does not bar a subsequent national prosecution of the same person for the same acts, and a national prosecution does not bar a subsequent state prosecution. FSM v. Louis, [2007] FMSC 61; 15 FSM Intrm. 348, 354-55 (Pon. 2007) (following United States v. Wheeler, [1978] USSC 44; 435 U.S. 313, 316-17[1978] USSC 44; , 98 S. Ct. 1079, 1083[1978] USSC 44; , 55 L. Ed. 2d 303, 308-09 (1978)). The reason is that the national government and its individual states are independent sovereigns, and prosecutions under the laws of those separate sovereigns do not subject a defendant to be twice put in jeopardy. Wheeler, 435 U.S. at 316-17, 98 S. Ct. at 1082-83, 55 L. Ed. 2d at 308-09. If the constitutional protection against double jeopardy did apply to prosecutions under the laws of independent sovereigns, then prosecution by one sovereign for a relatively minor offense might bar prosecution by another sovereign for a much graver offense, effectively depriving the latter of the right to enforce its laws. Id. at 317-18, 98 S. Ct. at 1083, 55 L. Ed. 2d at 309. Thus, if double jeopardy applied to actions brought by separate sovereigns, defendants would always race to stand trial in the court where the charges were less severe in order to bar the second action. Whatever the interest of the latter sovereign in prosecuting its laws would be frustrated, and defendants could avoid conviction on the most serious charges brought against them. Id. at 331, 98 S. Ct. at 1090, 55 L. Ed. 2d at 317.

In this case, the rationale from Wheeler is especially apt. While the FSM Supreme Court has exclusive jurisdiction over weapons charges, and an important national interest in prosecuting those offenses, the most serious charges were brought in state court. To deprive either that state or the national government of the ability to prosecute charges in their respective courts would undermine their distinct interests to enforce their own laws.

Second, double jeopardy only applies against multiple punishments for the same offense. Laion v. FSM, [1984] FMSC 9; 1 FSM Intrm. 503, 523 (App. 1984). Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Id. at 523-24 (adopting rule from Blockburger v. United States, [1932] USSC 4; 284 U.S. 299, 304[1932] USSC 4; , 52 S. Ct. 180, 182[1932] USSC 4; , 76 L. Ed. 306, 309 (1932)). Here, each of the charges brought before the FSM Supreme Court required proof that Kasmiro aided and abetted in the possession of illegal firearms and ammunition, which charges were necessarily bifurcated from the state charges because of the FSM court's exclusive jurisdiction over charges involving the possession of illegal firearms and ammunition. None of the state charges require proof that Kasmiro possessed illegal firearms or ammunition. Therefore, the state's charges are not barred for the additional reason that the offenses are not the same as those brought before the FSM Supreme Court. Laion, 1 FSM Intrm. at 523.

Finally, double jeopardy generally bars a second action if the defendant is acquitted on the merits. See 22 C.J.S. Criminal Law § 268 (1971) ("Atal"). The vahe vacating of a conviction on the ground of a material variance between pleading and proof is not an acquittal on the merits. Rather, when there is a material variance between thadings and a court's findinindings that results in vacating a conviction, the defendant will not be in jeopardy against a subsequently filed information with new allegations, because the defendant was never called to defend against those allegations. Id. Therefore, because Kasmiro was never acquitted on the merits, but his conviction was vacated based on a variance, the prosecution in the FSM Supreme Court did not result in jeopardy.

CONCLUSION

Therefore, Kasmiro's motion to dismiss is denied.

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