FSM v Buchun [2020] FMSC 10; FSM R. 529 (Yap 2020) (26 March 2020)

FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2019-3501

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

FRANCIS CHAOY BUCHUN,
Defendant.
__________________________________________

ORDER CONCERNING MULTIPLE CHARGES

Larry Wentworth
Associate Justice

Decided: March 26, 2020

APPEARANCES:

For the Plaintiff: Mohammed Kutty, Jr., Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box F
Weno, Chuuk FM 96942

For the Defendant: Timoci Romanu, Esq.
Acting Chief Public Defender
Office of the Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Criminal Law and Procedure - Dismissal; Weapons - Exemptions
A 9mm handgun that was not kept as a curio, ornament, or for its historical significance or value is not exempt under 11 F.S.M.C. 1003(2). FSM v. Buchun, 22 FSM R. 529, 533 n.2 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy
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. The assumption underlying this rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. FSM v. Buchun, 22 FSM R. 529, 533 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy
The test for determining whether an offense is the lesser-included of another is whether the greater offense can be committed without committing the lesser. There are two theories about how to determine this - the statutory theory and the pleading theory. FSM v. Buchun, 22 FSM R. 529, 533 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy
Under the statutory theory, a crime may be a lesser included offense if its elements are necessarily included in the greater crime, as the greater crime is defined by statute. Under the pleading theory, a crime may be a lesser included offense if the charging document alleges facts the proof of which necessarily includes proof of the elements of the lesser included offense. FSM v. Buchun, 22 FSM R. 529, 533 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy
Under the pleading theory, an offense is an included offense if it is alleged in the information as a means or element of the commission of the higher offense. The pleading theory is the broader theory. FSM v. Buchun, 22 FSM R. 529, 533 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy; Weapons - Weapons Control Act
Neither 11 F.S.M.C. 1005(1) nor 11 F.S.M.C. 1006(1) is the lesser included offense of the other because both impose liability for possession of a firearm or ammunition without an identification card. Section 1005(1) imposes liability for acquiring a firearm or ammunition in any manner, while Section 1006(1) imposes liability only if the acquisition is by purchase, and Section 1006(1) imposes liability for the use of a firearm or ammunition, while Section 1005(1) does not, but it is difficult to see how someone could use a firearm or ammunition without actually also possessing that firearm or ammunition, and it is also difficult to see how a person could acquire or purchase a firearm or ammunition without also then necessarily actually possessing that firearm or ammunition. FSM v. Buchun, 22 FSM R. 529, 535 & n.4 (Yap 2020).

Criminal Law and Procedure; Statutes - Construction
That one section follows another in the FSM Criminal Code is not particularly relevant because the classification of the titles, chapters, subchapters, and sections in the code, and the headings thereto, are made for the purpose of convenient reference and orderly arrangement, and no implication, inference, or presumption of a legislative construction can be drawn therefrom. FSM v. Buchun, 22 FSM R. 529, 535-36 & n.5 (Yap 2020).

Statutes - Construction; Statutes - Presumptions; Weapons - Weapons Control Act
The 11 F.S.M.C. 1006(2) statutory presumption about who possesses a firearm or ammunition found in a vehicle or a vessel applies generally to any charge based on the possession of firearms or ammunition found in a vehicle or vessel, and would apply to a prosecution under 11 F.S.M.C. 1005(1). FSM v. Buchun, 22 FSM R. 529, 536 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy
When a defendant has been convicted under two different statutes of what is the same crime, the court must vacate one of the two convictions because for the purposes of applying the double jeopardy test, as a means of ascertaining congressional intent, punishment must be the equivalent of a criminal conviction and not simply the imposition of a concurrent sentence. FSM v. Buchun, 22 FSM R. 529, 536 (Yap 2020).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Double Jeopardy; Weapons

If a defendant is charged with violating both 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1) and the court finds the defendant guilty of either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1), the court must then dismiss the other count because 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1) charge the same crime. FSM v. Buchun, 22 FSM R. 529, 536 (Yap 2020).

Criminal Law and Procedure - Felonies; Criminal Law and Procedure - Misdemeanors; Weapons
11 F.S.M.C. 1007 is a misdemeanor because anyone convicted of it cannot be imprisoned for more than one year and because a felony is any crime which is punishable by imprisonment for more than one year. FSM v. Buchun, 22 FSM R. 529, 536 n.7 (Yap 2020).

Criminal Law and Procedure - Misdemeanors
A misdemeanor is any crime which is not a felony. FSM v. Buchun, 22 FSM R. 529, 536 n.7 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy; Criminal Law and Procedure - Misdemeanors
Often a misdemeanor will be a lesser included offense of a felony. But that is not the case when the greater offense can be committed without committing the misdemeanor. FSM v. Buchun, 22 FSM R. 529, 537 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy; Weapons - Weapons Control Act
A person without an identification card can violate either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1) by acquiring or purchasing, or by possessing, or by using a firearm. But if that person, without a valid identification card, does any of those things but does not carry the firearm, that person has not committed the lesser misdemeanor of 11 F.S.M.C. 1007. The misdemeanor’s key element is the carrying of a firearm. FSM v. Buchun, 22 FSM R. 529, 537 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy; Weapons - Weapons Control Act
The prosecution, to secure a 11 F.S.M.C. 1007 conviction, has to prove an element that it does not have to prove to convict under either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1). It must prove that not only did the defendant possess the firearm without holding an identification card, but that the defendant also carried the firearm, which is not an element of either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006. Section 1007 is directed to a different evil - the carrying of a firearm, either unsafely or by someone without a valid identification card (or both), while Sections 1006 and 1005(1) are directed toward the evil of possession of a firearm or ammunition without an identification card. FSM v. Buchun, 22 FSM R. 529, 537 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy; Weapons - Weapons Control Act
The Section 1007 misdemeanor is not a lesser included offense of 11 F.S.M.C. 1023(5) because that felony can easily be committed without violating 11 F.S.M.C. 1007 because, to violate 11 F.S.M.C. 1007, the firearm, whether legal or illegal, must be carried. FSM v. Buchun, 22 FSM R. 529, 537 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy
The Laion test determines whether there are two crimes or only one - it determines whether Congress intended that a defendant be punished under both statutes. When the same act violates two distinct criminal statutes, 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. FSM v. Buchun, 22 FSM R. 529, 538 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy; Weapons - Weapons Control Act
To obtain a conviction under either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1), the prosecution must prove that the person in possession of a firearm does not hold a valid identification card. To obtain a conviction under 11 F.S.M.C. 1023(5), the prosecution must prove that the person possesses an illegal firearm, such as a handgun. Thus, each statutory provision (treating 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1) as one provision) requires the proof of a fact that the other does not. FSM v. Buchun, 22 FSM R. 529, 538 (Yap 2020).

Weapons - Identification Card; Weapons - Weapons Control Act
If a defendant holds a valid identification card, then he cannot be convicted of violating either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1), even though the firearm he possesses is illegal and cannot be registered under 11 F.S.M.C. 1019, but he could be prosecuted under 11 F.S.M.C. 1023(5). FSM v. Buchun, 22 FSM R. 529, 538 (Yap 2020).

Weapons - Identification Card
A person does not need to own or possess any firearm, dangerous device, or ammunition to apply for and to be issued an identification card. FSM v. Buchun, 22 FSM R. 529, 538 (Yap 2020).

Weapons - Identification Card; Weapons - Weapons Control Act
The statutory scheme in FSM Weapons Control Act, chapter 10 of the FSM Code, clearly requires that a person must hold a valid identification card before obtaining possession of a firearm or ammunition. FSM v. Buchun, 22 FSM R. 529, 538 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy; Weapons - Weapons Control Act
Section 1023(5) is directed to the evil of prohibited firearms and 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1) are directed to the evil of persons not obtaining a valid identification card before possessing firearms or ammunition. Thus, Congress clearly intended to address different evils with these different statutory provisions. FSM v. Buchun, 22 FSM R. 529, 538 (Yap 2020).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Double Jeopardy; Weapons
Since 11 F.S.M.C. 1007 requires proof that the weapon was carried, while 11 F.S.M.C. 1023(5) does not, and 11 F.S.M.C. 1023(5) requires proof that the firearm was illegal, while 11 F.S.M.C. 1007 does not, and since the two statutes are directed to different evils - Section 1023(5) is directed to the evil of prohibited firearms and 11 F.S.M.C. 1007 is directed to the evil of improper carrying of a firearm, a defendant can be convicted of both. FSM v. Buchun, 22 FSM R. 529, 538 (Yap 2020).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This comes before the court on the question of whether a person may be convicted of the crime of possessing or carrying a firearm without a permit (a firearms identification card) when the firearm involved was not a firearm for which a permit would or could be issued. Also before the court, is whether some of the crimes charged are lesser included offenses of other charges.

I. PROCEDURAL BACKGROUND

This case went to trial on February 20, 2020. The defendant, Francis Chaoy Buchun, was charged with six counts: (1) unlawful possession of a firearm, a 9mm pistol, without being issued an identification card, 11 F.S.M.C. 1005(1); (2) unlawful possession of a firearm, a 9mm pistol, without being the holder of a identification card, 11 F.S.M.C. 1006; (3) unlawful possession of 50 rounds of hollow point ammunition, without being issued an identification card, 11 F.S.M.C. 1005(1); (4) unlawful possession of 50 rounds of hollow point ammunition, without being the holder of an identification card, 11 F.S.M.C. 1006; (5) carrying a firearm without a valid identification card; and (6) committing the prohibited act of possessing a handgun, the 9mm pistol, 11 F.S.M.C. 1023(5).

At the end of trial, the court found Buchun guilty of Count 6, the possession of a handgun, an act prohibited by 11 F.S.M.C. 1023(5).^[1] The court reserved its general findings for the other five counts until the parties briefed whether Buchun could, as a matter of law, be convicted on any of the other five counts when an element of each of those counts was the lack of a valid firearms identification card and the weapon and ammunition involved in each of those counts (a 9mm handgun and ammunition for that could only be used in that caliber handgun) was the type of firearm and ammunition for which a valid firearms identification card could not legally be issued. The court also asked the parties to indicate in their briefs whether any of the crimes charged in the first five counts were lesser included offenses of any crime charged in any other count.

Buchun filed his brief on March 9, 2020, and the prosecution filed its brief on March 16, 2020.

II. PARTIES’ POSITIONS

Buchun contends that he cannot be convicted of or even charged with the crimes alleged in Counts One through Five because each of those counts charges him with the possession of, or the carrying of, a firearm or ammunition without having been issued, or without holding, an identification card issued by the FSM Department of Justice, and because the 9mm handgun (and the ammunition for it) is not a firearm for which anyone could be issued a firearms identification card, he thus could not have complied with those statutes. Buchun further contends that Counts One and Two ought to be considered the same offense because each of those two counts requires proof only that he had not been issued an identification card for the firearm that the state police found in his vehicle. Likewise, Buchun asserts that Counts Three and Four charge the same offense because each of those two counts requires proof only that he had not been issued an identification card for the ammunition that was found with the handgun. Buchun also contends that Count Five is a lesser included charge to Counts One and Two because in Count Five he is charged with carrying a firearm without a valid identification card and that would require proof only of the same elements as Counts One and Two, the lack of an identification card for the firearm possessed.

The prosecution concedes that Count Five, carrying a firearm, may merge into Counts One and Two, possession of a firearm, but contends that the statute is clear that if one is in possession of a weapon or is carrying it, then that person must have an identification card, and that since Buchun was driving around with a firearm and ammunition and without an identification card, he violated those statutes that require a person to have a valid identification card before acquiring or possessing a firearm or ammunition. The prosecution argues that 11 F.S.M.C. 1005, 1006, and 1007 impose strict liability on any person who possesses or carries a firearm and cannot produce an identification card. The prosecution asserts that since Buchun does not fall into any of the 11 F.S.M.C. 1003 exemptions^[2] to chapter 10 (11 F.S.M.C. 1001 et seq.) of the Criminal Code, he can be held liable for possession of a firearm and ammunition and for carrying a firearm, all without a valid identification card.

III. ANALYTICAL TOOLS

The court will first consider the analytical tools to use to determine whether multiple convictions may be entered for any of the crimes charged or whether any crime charged in Counts One through Five is a lesser included offense of any of the other crimes charged in the information.

A. The Laion Rule for Multiple Counts

"’The applicable rule is that 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.’" Laion v. FSM, 1 FSM R. 503, 523-24 (App. 1984) (quoting 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) and adopting the Blockburger test). "The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes." Ball v. United States, [1985] USSC 72; 470 U.S. 856, 861[1985] USSC 72; , 105 S. Ct. 1668, 1671, 84 L. Ed. 2d 740, 746 (1985).

B. The Benjamin Lesser Included Offenses Test

"The test for determining whether an offense is the lesser-included of another is whether the greater offense can be committed without committing the lesser." Benjamin v. Kosrae, 19 FSM R. 201, 209 (App. 2013). There are two theories about how to determine this - the statutory theory and the pleading theory. Id. (citing State v. Curtis, 944 P.2d 119, 121 (Idaho 1997)).

Under the statutory theory, a crime may be a lesser included offense if its elements are necessarily included in the greater crime, as the greater crime is defined by statute. Under the pleading theory, a crime may be a lesser included offense if the charging document alleges facts the proof of which necessarily includes proof of the elements of the lesser included offense.

Id. (quoting State v. Rae, 84 P.3d 586, 589 (Idaho Ct. App. 2004)). "[U]nder the pleading theory, ’an offense is an included offense if it is alleged in the information as a means or element of the commission of the higher offense.’ The pleading theory is the broader theory." Id. (quoting State v. Anderson, 352 P.2d 972, 977 (Idaho 1960)).

IV. COUNTS FOR WHICH THE COURT HAS NOT YET MADE A FINDING

The court, while it made its general finding of guilty to Count Six after trial, has not yet made its general findings for Counts One through Five. It now considers whether it ought to make such findings, and for which counts.

A. Counts One and Two [11 F.S.M.C. 1005(1) and 1006]

Count One charges that Buchun unlawfully possessed a 9mm pistol "without being issued an identification card," thus violating 11 F.S.M.C. 1005(1). That statute provides that:

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.

11 F.S.M.C. 1005(1).^[3]

Count Two charges that Buchun unlawfully possessed a 9mm pistol "without being a holder of an identification card," thus violating 11 F.S.M.C. 1006. That statute provides that: "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. . . ." 11 F.S.M.C. 1006(1).

Thus, neither 11 F.S.M.C. 1005(1) nor 11 F.S.M.C. 1006(1) appears to be the lesser included offense of the other.re is considerable overlap between the two concerning criminal liability. The "holds olds an idan identification card issued pursuant to this chapter [which] is evidence of the holder’s eligibility" in 11 F.S.M.C. 1005(1) is the exact same requirement as the "the holder of an identification card issued pursuant to this chapter evidencing the eligibility of such person" in 11 F.S.M.C. 1006(1). And, both 11 F.S.M.C. 1005(1) and 1006(1) impose liability for possession of a firearm or ammunition without an identification card.

Section 1005(1) imposes liability for acquiring a firearm or ammunition in any manner, while Subsection 1006(1) imposes liability only if the acquisition is by purchase. And Section 1006(1) imposes liability for the use of a firearm or ammunition, while Section 1005(1) does not, although it is difficult to see how someone could use a firearm or ammunition without actually also possessing that firearm or ammunition.^[4] If looked at that way, Subsection 1006(1), while almost identical to Subsection 1005(1), could be considered included in Subsection 1005(1) because 1005(1) covers a slightly broader scope - acquisition by means other than purchase.

Thus, Counts One and Two both charge only the possession of a firearm without a valid identification card, but under different statutes. They both require the prosecution to prove the exact same facts. Since these two independent but extensively overlapping statutes (11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006) are not directed to separate evils, but are both directed against the exact same evil - the possession of a firearm or ammunition by someone who does not have a valid identification card, Congress must not have intended that a person be punished under both 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1), and therefore a person accused under both statutes cannot be punished (convicted) under both statutes, although that person might be prosecuted under both statutes. Ball, 470 U.S. at 864, 105 S. Ct. at 1673, 84 L. Ed. 2d at 747-48 (when "independent but overlapping statutes simply are not ’directed to separate evils’ under the circumstances" defendant should not be convicted under both statutes).

The prosecution suggests that Count One should be considered merged into Count Two because Section 1006 comes after Section 1005(1), and so was meant to supersede Section 1005(1). That 11 F.S.M.C. 1006 follows 11 F.S.M.C. 1005 in the FSM Criminal Code is not particularly relevant because no implication, inference, or presumption of a legislative construction can be drawn therefrom.^[5] Another (unstated) reason why the prosecution may prefer to proceed on Count Two (11 F.S.M.C. 1006) is that Subsection 1006(2) contains the statutory presumptions about who is deemed to be in possession of a firearm or ammunition when the firearm or ammunition is found in a vehicle or vessel. The firearm and ammunition in this case were found in Buchun’s vehicle.^[6] But the 11 F.S.M.C. 1006(2) statutory presumption about who possesses a firearm or ammunition found in a vehicle or a vessel applies generally to any charge based on the possession of firearms or ammunition found in a vehicle or vessel, and would apply to a prosecution under 11 F.S.M.C. 1005(1). See FSM v. Aliven, 16 FSM R. 520, 532-34 (Chk. 2009).

In Ball v. United States, [1985] USSC 72; 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985), when the U.S. Supreme Court determined that a defendant had been convicted under two different statutes of what was virtually the same crime, it ordered the trial court to, at its discretion, vacate one of the two convictions. Id. at 865, 105 S. Ct. at 1674, 84 L. Ed. 2d at 749 (convictions were for a felon’s receipt of a firearm and for his possession of a firearm). That was because "[f]or the purposes of applying the Blockburger test . . . as a of aainrtaining cong congressional intent, ’punishment’ must be the equivalent of a criminal conviction and not simhe imion of sentence." Id. at 861, 105 S. Ct. at 1671, 84 L. Ed. 2d at 746 (co6 (concurrncurrent sentences are unacceptable when the two statutes charged the same crime).

Since the court has not yet made its general finding (guilty or not guilty) on either Count One or Count Two or imposed sentence (which is when a defendant is convicted, FSM Crim. R. 32(b)), the court, if it finds Buchun guilty of either Count One or Two, will dismiss the other count.

B. Counts Three and Four [11 F.S.M.C. 1005(1) and 1006]

The charges in Counts Three and Four mirror those in Counts One and Two and rely on the same statutes - 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006, except that these two counts concern the 50 rounds of ammunition that were found with the firearm. Accordingly, the analysis and result will be the same - if Buchun is found guilty of either Count Three or Four, the court will dismiss the other count.

C. Count Five [11 F.S.M.C. 1007]

Count Five charges a violation of 11 F.S.M.C. 1007, a misdemeanor.^[7] Section 1007 provides that:

No person shall carry a firearm unless he or she has a valid identification card and is carrying the firearm unloaded in a closed case or other securely wrapped or closed package or container, or locked in the trunk of his or her vehicle while en route to or from a target range or area where he or she hunts or takes part in other sports involving firearms, or carries the firearm in plain sight on his or her person while actively engaged in hunting or sports involving the use of firearms.

Often a misdemeanor will be a lesser included offense of a felony. But that is not the case here because either greater offense - 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1) - can be committed without violating 11 F.S.M.C. 1007. A person without an identification card can violate either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1) by acquiring or purchasing, or by possessing, or by using a firearm. But if that person, without a valid identification card, does any of those things but does not carry the firearm, that person has not committed the lesser misdemeanor of 11 F.S.M.C. 1007.^[8] This misdemeanor’s key element is the carrying of a firearm.

Using the statutory theory, 11 F.S.M.C. 1007 is obviously not a lesser included offense of any of the other statutes that Buchun is charged with violating. Under the pleading theory, that is a closer question since the prosecution did not allege that Buchun was carrying the firearm in an unsafe manner.^[9] It only alleged that he was carrying it without a valid identification card. If it had alleged that Buchun was carrying the firearm in an unsafe manner, it would have been immediately obvious that even under the pleading theory, 11 F.S.M.C. 1007 was not an included offense.

Even so, the prosecution, to secure a 11 F.S.M.C. 1007 conviction, still has to prove an element that it does not have to prove to convict under either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1). It must prove that not only did Buchun possess the firearm without holding an identification card (the 11 F.S.M.C. 1005(1) or 1006 elements), but that it also must prove that he carried the firearm, which is not an element of either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006. Furthermore 11 F.S.M.C. 1007 is directed to a different evil - the carrying of a firearm, either unsafely or by someone without a valid identification card (or both), while Sections 1006 and 1005(1) are directed toward the evil of possession of a firearm or ammunition without an identification card.

Nor is the Section 1007 misdemeanor a lesser included offense of 11 F.S.M.C. 1023(5). That felony^1[0] also can easily be committed without violating 11 F.S.M.C. 1007 because, to violate 11 F.S.M.C. 1007, the firearm, whether legal or illegal, must be carried.

Therefore, 11 F.S.M.C. 1007 is not a lesser included offense of any of the other criminal statutes that the prosecution charges Buchun with violating.

V. CAN BUCHUN BE FOUND GUILTY OF MORE THAN COUNT SIX

The next question the court will address is whether Buchun can be found guilty of any of the charges in Counts One through Five when he has already been found guilty of Count Six - the possession of a handgun, 11 F.S.M.C. 1023(5). This analysis will also apply the Laion test to determine whether there are two crimes or only one - to determine whether Congress intended that a defendant, in Buchun’s situation, be punished under both 11 F.S.M.C. 1023(5) and either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1). When the same act violates two distinct criminal statutes, "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." Laion, 1 FSM R. at 524.

To obtain a conviction under either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1), the prosecution must prove that the person in possession of a firearm does not hold a valid identification card. To obtain a conviction under 11 F.S.M.C. 1023(5), the prosecution must prove that the person possesses an illegal firearm, in this case, a handgun.

Thus, each statutory provision (treating 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1) as one provision) requires the proof of a fact that the other does not. Section 1023(5) requires proof that the firearm is not a .22 rifle or a .410 shotgun^1[1] while 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1) do not. And both 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1) require proof that the accused does not hold a valid identification card, while 11 F.S.M.C. 1023(5) does not. If Buchun had held a valid identification card, then he could not be convicted of violating either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1), even though the firearm he possessed was illegal and could not be registered under 11 F.S.M.C. 1019, but he could be prosecuted under 11 F.S.M.C. 1023(5).

Of particular importance here is the statutory provision that "[a] person need not own or possess any firearm, dangerous device, or ammunition to apply for and have issued to him an identification card." 11 F.S.M.C. 1005(1). The statutory scheme in FSM Weapons Control Act, chapter 10 of the FSM Code, clearly requires that a person must hold a valid identification card before obtaining possession of a firearm or ammunition. See 11 F.S.M.C. 1005(1); 11 F.S.M.C. 1008; 11 F.S.M.C. 1015(1); 11 F.S.M.C. 1016.

Congress clearly intended to address different evils with these different statutory provisions. Section 1023(5) is directed to the evil of prohibited firearms and 11 F.S.M.C. 1005(1) and 11 F.S.M.C. 1006(1) are directed to the evil of persons not obtaining a valid identification card before possessing firearms or ammunition.

Turning to 11 F.S.M.C. 1007, that statute requires proof that the weapon was carried, while 11 F.S.M.C. 1023(5) does not. And 11 F.S.M.C. 1023(5) requires proof that the firearm was illegal, while 11 F.S.M.C. 1007 does not. Also, the two statutes are directed to different evils - Section 1023(5) is directed to the evil of prohibited firearms and 11 F.S.M.C. 1007 is directed to the evil of improper carrying of a firearm.

Therefore, if proof beyond a reasonable doubt of the necessary elements is admitted, the prosecution can, in addition to obtaining a conviction for violating 11 F.S.M.C. 1023(5), obtain convictions for violating either 11 F.S.M.C. 1005(1) or 11 F.S.M.C. 1006(1) (but not for both 1005(1) and 1006(1)) and for violating 11 F.S.M.C. 1007, for the possession of and carrying the same handgun.

VI. CONCLUSION

Accordingly, when the court reconvenes, it will make its general findings for either Count One or Two and dismiss the other, for either Count Three or Four and dismiss the other, and for Count Five.

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^[1] "No person shall: . . . (5) import, sell, transgir, give away, purchase, possess or use any handgun . . .&." 1.M.C. 10C. 1023.

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The court, when it made its findings for Count 6, found that the 9mm h9mm handguandgun’s possession was not exempt u11 F.. 1003(2). The cThe court ourt found that the 9mm handgun was not being kept as a curio, ornament, or for its historical significance or value. See FSM v. Sonis, 18 FSM R. 620, 622 (Chk. 2013) (for section 1003(2) exemption to apply, all three requirements Ä 1) unserviceable; 2) incapable of being fired or discharged; and 3) being kept as a curio, ornament, or for its historical value Ä must be satisfied; if any one is not, the exception cannot apply); FSM v. Meitou, 18 FSM R. 121, 129 (Chk. 2011) (same).

[3] Subsections 1005(2)-(11) deal with who is eligible for an identification card, how to apply for a card, and how they are issued.

^[4] It is also difficult to see how a person could acquire or purchase a firearm or ammunition without also then necessarily actually possessing that firearm or ammunition. Accord Ball v. United States, [1985] USSC 72; 470 U.S. 856, 861[1985] USSC 72; , 105 S. Ct. 1668, 1672, 84 L. Ed. 2d 740, 746 (1985) (person who received a firearm necessarily possessed that firearm); United States v. Martin, [1984] USCA7 319; 732 F.2d 591, 592 (7th Cir. 1984) (same).

^[5] "The classification of the titles, chapters, subchapters, and sections of this code, and the headings thereto, are made for the purpose of convenient reference and orderly arrangement, and no implication, inference, or presumption of a legislative construction shall be drawn therefrom." 1 F.S.M.C. 210.

^[6] Whether Buchun had possession of the firearm and ammunition found in his vehicle was not an issue in this case. Buchun conceded that he had possession.

^[7] Section 1007 is a misdemeanor because anyone convicted of section 1007 "shall be imprisoned for not more than one year," 11 F.S.M.C. 1031(1), and because a felony is "any crime which is punishable by imprisonment for more than one year," 11 F.S.M.C. 104(3), and a misdemeanor is "any crime which is not a felony," 11 F.S.M.C. 104(6).

^[8] Even someone with a valid identification card can be convicted of this misdemeanor, if that person is not carrying the firearm unloaded and in a closed case or other securely wrapped or closed package or container, or locked in the trunk of his or her vehicle.

^[9] That is, either carrying it loaded or, if unloaded, not "in a closed case or other securely wrapped or closed package or container, or locked in the trunk of his or her vehicle while en route to or from a target range." 11 F.S.M.C. 1007.

^1[0] "No person shall . .&#160) import, sell, transtransfer, give away, purchase, possess or use any handgun, automatic weapon, rifle larger than .22 caliber,gun larger than .410 gauge, or any other firearm." 11 F.S.M.C. 1023.

^[1]1 See supra note 10.