FSM v Pelep [2019] FMSC 37; 22 FSM R. 400 (Pon. 2019) (12 December 2019)

FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2019-500

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

GUADENSIO PELEP,
Defendant.
__________________________________________

ORDER

Beauleen Carl-Worswick
Associate Justice

Hearing: December 6, 2019
Decided: December 12, 2019

APPEARANCES:

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

For the Defendant: Nixon Alten
Timoci Romanu, Esq. (supervising attorney)
Office of the Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure - Dismissal; Weapons - Importation
The court will dismiss charges for illegal possession of ammunition when the factual basis for the charges is entirely insufficient since no one in the FSM ever actually possessed the ammunition because customs officers seized it after postal officials notified them of an incoming package’s contents. FSM v. Pelep, 22 FSM R. 400, 403 (Pon. 2019).

Criminal Law and Procedure - Pleas
The court may reject a plea agreement due to the failure to establish the factual basis for the counts to which the defendant is pleading guilty. FSM v. Pelep, 22 FSM R. 400, 403 (Pon. 2019).

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COURT’S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

This matter came before the court for a plea hearing on December 6, 2019. Appearing on behalf of the Plaintiff the Federated States of Micronesia was FSM Assistant Attorney General Steve George. Defendant Mr. Pelep appeared personally and was accompanied by FSM Assistant Public Defender Timoci Romanu and Staff Attorney Nixon Alten, also of the FSM Public Defender’s Office. The court verbally granted Mr. Alten’s motion to appear pro hac vice, which the court inadvertently had not ruled upon before the hearing. The court inquired whether the defendant required translation and the defense answered that he did. The court provided translation through its State Justice Ombudsman.

The parties submitted a written plea agreement on November 14, 2019. In that agreement, the defendant agreed to plead guilty to counts three and four of the criminal information. The FSM agreed to dismiss counts one and two and recommended a sentence for defendant to a term of two years, suspended, on certain conditions. At the hearing, Mr. George went through the plea agreement in detail and set forth all of the conditions the defendant had agreed to for a sentence of probation.

The court notes that the defendant was charged as follows:

Count One- Possession of Ammunition, in or about September 2018, in violation of 11 F.S.M.C. 1005(1):

No person shall acquire or possess any firearm, dangerous device, or ammunition unless he or she holds an identification card issued pursuant to this chapter. The identification card is evidence of the holder’s eligibility to possess and use or carry firearms, dangerous devices, or ammunition. A person need not own or possess any firearm, dangerous device, or ammunition to apply for and have issued to him an identification card.

Count Two- Possession of Ammunition, in or about September 2018, in violation of 11 F.S.M.C. 1006(1):

No person shall purchase, possess, or use a firearm, dangerous device, or ammunition unless he or she is the holder of an identification card issued pursuant to this chapter evidencing the eligibility of such person to purchase, possess, and use a firearm, dangerous device or ammunition. Such person shall be at least 21 years of age.

Count Three- Shipment and delivery of ammunition, in or about September 2018, in violation of 11 F.S.M.C. 1021(1): "No person shall ship, transport or deliver any firearm, dangerous device, or ammunition to anyone other than a licensed manufacturer, wholesaler, dealer, or person who possesses a valid identification card."

Count Four- Shipment and delivery of ammunition, in or about September 2018, in violation of 11 F.S.M.C. 1021(3):

Any person who ships, transports or delivers ammunition to a manufacturer, wholesaler, dealer or person possessing an identification card in the Federated States of Micronesia shall, before delivery, furnish to the Department of Justice an invoice listing his or her name and address, the name and address of the manufacturer, wholesaler, dealer, or person possessing an identification card to whom the ammunition is to be delivered, the place of origin of the shipment, and the quantity of ammunition of each type in the shipment.

The court also notes that the penalty for violation of these laws is:

§ 1031. Penalties for violation of chapter.

(1) Any person convicted of a violation of section 1007 or section 1022 of this Act shall be imprisoned for not more than one year.

(2) Any person convicted of a violation of any other provision of this chapter or any regulations issued pursuant thereto shall be imprisoned for not more than ten years, and shall be subject to confiscation of any firearm, dangerous device, or ammunition, without compensation, involved in a violation of this act. The holder of any dealer’s license, or the manager or supervisor of employees of any establishment so licensed, or both, shall be liable for any violation of this act by his or her employee or agent committed in the course of the dealer’s business, to the same extent as such employee or agent.

and, "§ 1201. Fines. A person who has been convicted of a national crime, in addition to any other punishment authorized by law, may be ordered to pay a fine not exceeding: (1) $100,000, when the conviction is for a crime punishable by a maximum of ten years imprisonment;"

The court proceeded to advise defendant of his rights, including the following:

(1) the nature of the charges against him, and the maximum possible penalty provided by law; and

(2) that the defendant has the right to be represented by counsel at every stage of the proceeding and, if necessary, counsel will be appointed; and

(3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, and the right to a trial and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses, and the right against compelled self-incrimination; and

(4) that if the defendant pleads guilty or nolo contendere there will not be a further trial of any kind, so that pleading guilty or nolo contendere will be a waiver of the right to a trial; and

(5) that upon a plea of guilty or nolo contendere, the court may ask questions about the offense, and if the defendant answers these questions under oath, on record, and in the presence of counsel, the answers may later be used against the defendant in a prosecution for perjury or false statement.

The defendant indicated that he understood each of these rights. The court confirmed with the defendant that his plea was voluntary and not the result of force or threats or of promises apart from the plea agreement. The court also warned the defendant that the court was not bound by the plea agreement and that it could sentence the defendant to the maximum penalty provided under the relevant statutes for each count.
The court then proceeded to inquire as to the factual basis for the plea pursuant to FSM Rule of Criminal Procedure 11(e)(5). The court was not satisfied with the prosecutor’s presentation of the facts that led to Mr. Pelep being charged with the counts set forth in the information and took a recess to allow the prosecutor the opportunity to examine his files so that he could present a recitation of the facts that the FSM intended to prove at trial to convict the defendant of the crimes for which he was charged.

In particular, the court noted that counts one and two of the information, which the FSM agreed to dismiss in exchange for a plea to counts three and four, were entirely unsupported. The affidavit accompanying the information established that the ammunition at issue (1,000 rounds of .22 caliber ammunition) was seized by FSM customs officials after they were notified of the contents of a package by postal employees. Mr. George stated that he could not give a clear reason why Mr. Pelep was charged with possession, given that no one ever picked up the package. Mr. George argued that Mr. Pelep possessed the ammunition in Hawaii, and that he probably attempted to possess it in Pohnpei, and also that he likely had some ownership interest in the package since his name was on it. This factual basis was entirely insufficient. The court found that no one in the FSM actually ever possessed the ammunition in violation of 11 F.S.M.C. 1005 or 1006 and dismissed these charges against the defendant.

The court then rejected the parties’ plea agreement due to the prosecutor’s failure to establish the factual basis for the remaining counts in the information. See In re Main, 4 FSM R. 255 (App. 1990). The parties stipulated that the defendant did not possess a valid government issued identification card; however the court notes that this is not an element of either of the remaining counts in the information. The court ordered the parties to meet and confer about whether they wanted to enter into a new plea agreement or proceed to trial. The FSM asked that the case be set on the calendar in March, 2020. The court gave the parties until March 6, 2020 to file a new plea agreement or to file a stipulation setting forth three proposed trial dates.

Accordingly, it is HEREBY ORDERED that Counts One and Two of the Criminal Information filed against defendant Guadensio Pelep are HEREBY DISMISSED. The parties are HEREBY ORDERED to meet and confer and file any amended plea agreement by March 6, 2020, or in the alternative, to file a stipulation proposing three dates for trial in this matter.

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