IN THE SUPREME COURT OF THE
REPUBLIC OF THE MARSHALL ISLANDS

Supreme Court Case No. 2001-003
High Court Civil Action No. 2000-074

REPUBLIC OF THE MARSHALL ISLANDS
Respondent-Appellee

v

MIRAM DE BRUM
Defendant-Appellant

BEFORE: FIELDS, Chief Justice; GOODWIN* and KURREN** Acting Associate Justices.1

Submitted, June 20, 2002

OPINION

KURREN, Acting Associate Justice:

BACKGROUND AND PROCEDURAL HISTORY

Defendant-Appellant, Miram de Brum ("Appellant" or "Ms. de Brum"), is a citizen of the Republic of the Marshall Islands (the "Republic" or "Appellee"). Following a two day trial in the High Court, Ms. de Brum was convicted of four counts of Failure to Report Gross Income in violation of §110(1) of the Marshall Islands Revised Code, 48 MIRC §110(1), ("the Income Tax Act of 1989"). By order dated June 15, 2001, Ms. de Brum was sentenced to a one year term of imprisonment and a fine of $4,000.00. However, the entire term of imprisonment, and $2,000.00 of the fine was stayed for two years subject to certain specific conditions.2

On March 25, 2002, Ms. de Brum filed the instant appeal challenging her conviction and sentence on four separate grounds. First, Ms. de Brum argues that a violation of §110(1) is not expressly defined as a criminal offense, and thus, her conviction violates her constitutional right to due process (the "due process claim"). Secondly, Ms. de Brum argues, the inclusion of the element "knowingly" in the charges against her violates her constitutional right to be informed in detail of the nature and cause of the accusation against her, and prejudiced her ability to form a defense at trial. Third, Ms. de Brum argues that the probation sentence imposed by the trial court is unlawful and/or that the two year probation period is unlawful. Finally, Ms. de Brum argues, the sentence imposed by the trial court is too severe.

On June 10, 2002, the Republic filed a brief in response to Ms. de Brum's appeal. By stipulation dated June 20, 2002, the parties agreed, with the approval of the Court, that the instant appeal would be decided on the briefs submitted and filed by the parties. In addition, Appellant waived the filing of a reply brief. For the reasons set forth below, the Court AFFIRMS Appellant's conviction and sentence.

DISCUSSION

1. Due Process Claim

As a threshold matter, the Court must determine whether Ms. de Brum is precluded from raising her due process claim in this appeal. According to the Republic, Ms. de Brum waived the right to raise her due process claim on appeal by failing to first present the issue to the trial court. Ms. de Brum acknowledges that the due process claim was not presented to the trial court. Nonetheless, she argues, this Court should reach the merits of the claim, because several exceptions to the general rule barring review of issues first raised on appeal apply to this case.

In crafting her first argument, Ms. de Brum starts with the proposition that a violation of §110(1) is not a crime, because that section does not include "precise" language stating that a violation is a criminal offence. Thus, Ms. de Brum contends, the information charging her with four felony violations of §110(1) is invalid and the trial court lacked jurisdiction over her trial. Based on these propositions, Ms. de Brum concludes that her due process claim is premised on an assertion that the trial court lacked jurisdiction, and thus, she argues, the claim may be reviewed by this Court even though it was never presented to the trial court.3

Alternatively, Ms. de Brum argues, the due process claim may be addressed on the merits by this Court, because the issue presented is of sufficient public concern.4 Ms. de Brum also argues that, when as here, an issue is strictly a matter of law, an appellate court may take up the issue even if it was not raised at trial.5 Finally, Ms. de Brum asserts, appellate courts may address constitutional issues such as her due process claim even if the issue was not presented to the trial court.6

As a general rule, an appellate court will not consider any matter that was not raised by way of an objection in the trial court. See, e.g., Republic of the Marshall Islands v. Digno, S. Ct. Crim. No. 83-01 (1984); see also Grey Poplars, Inc. v. One Million Three Hundred Seventy-One Thousand One Hundred (1,371,100) Assorted Brands of Cigarettes, 282 F.3d 1175 (9th Cir. 2002). The decision of whether to reach the merits of an issue not raised below is a decision within the discretion of the court. See, e.g., Singleton v. Wulff, 428 U.S. 106 (1976) (determination of when to consider issues for the first time on appeal is within the discretion of the courts of appeals); See also City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001) (same). Under Marshall Islands law, an appellate court may take up a question of law, on its own motion, if there is a basis for it in the record. See Digno. For example, if the record on appeal reveals a fatal defect in the jurisdiction of the trial court, the appellate court may take up the matter even though there was no objection to the trial court's jurisdiction in the court below. Id.

In the Ninth Circuit, appellate review of a claim raised for the first time on appeal, is permitted if: (1) there are "exceptional circumstances" why the issue was not raised at trial; (2) the new issue arises while the appeal is pending because of a change in the law; (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue at trial; or (4) plain error has occurred and injustice might otherwise result. See United States v. Echavarria-Escobar, 270 F.3d 1265 (9th Cir. 2001); see also United States v. Antonakoas, 255 F.3d 714 (9th Cir. 2001). Most federal circuit courts of appeal have adopted similar exceptions.7

The Court finds the Ninth Circuit's articulation of the four general exception categories helpful and consistent with current Marshall Islands law. Accordingly, the Court adopts these exceptions as the law of the Marshall Islands.

Applying the exceptions, the Court concludes that Ms. de Brum's due process claim falls squarely within the third exception. The claim is unquestionably a pure issue of law because it does not depend on the factual record developed below. See Wallis v. Princess Cruises, Inc., 306 F.3d 827 (9th Cir. 2002). Further, nothing in the record before the Court indicates that the Republic suffers any prejudice from Ms. de Brum's failure to raise the issue at trial. Accordingly, the Court will proceed to the merits of Ms. de Brum's due process claim.

Pursuant to §110(1) each business shall make a full, true and correct return showing all gross revenue received, accrued or earned, and the amounts deducted, and set aside on account thereof during the preceding quarter by the deadlines provided.8 Section 110(3) clearly and unequivocally states that a violation of §110(1) - i.e., a failure to make the required return in accord with the law - subjects the violator to the penalties outlined in §§140 and 141.9 While §110(1) does not expressly state that a violation is a criminal offense, such "precise" language is not necessary given the plain language of §§110(3), 140 and 141. In other words, when all of these provisions are read together, as they must be, there is little doubt that the legislature explicitly provided that a violation of §110(1) may be defined and prosecuted as a criminal offense. Accordingly, the criminal information charging Ms. de Brum was not defective, and the trial court had jurisdiction over the trial. It thus follows that because a violation of §110(1) may be prosecuted as a criminal offense, Ms. de Brum's constitutional due process rights are not violated by her conviction and sentence.

2. Inclusion of "Knowingly" in the Charges

Ms. de Brum contends that her constitutional right to be informed in detail of the nature and cause of the accusations against her was violated, because the element "knowingly" was included in the charges in the criminal information, but it is not actually an element of the offenses charged.10 Further, Ms. De Brum argues, the inclusion of "knowingly" impeded her ability to form a defense at trial. The Republic responds arguing that under Marshall Islands law, this claim is untimely because objections to the content of the criminal information should have been raised, but were not, before trial. In other words, according to the Republic, Ms. de Brum waived her right to raise this issue on appeal by failing to timely raise the issue below. Alternatively, the Republic argues, the criminal information charging Ms. de Brum contained, as required, all of the elements of the offenses charged and sufficiently apprised her of the charges against her. Finally, the Republic argues, "knowingly" is mere surplusage, and thus, it does not vitiate an information that otherwise conforms with the law.

The Republic correctly asserts that under Rule 10 of the Marshall Islands Rules of Criminal Procedure, objections based on alleged defects in a criminal information must be raised before trial.11 Neither of the exceptions incorporated into Rule 10(a)(2) is applicable hero. From the record of the proceedings below, it is clear that the issue that "knowingly" was erroneously included as an element of the charges against Ms. de Brum was not raised, as required, before Ms. de Brum's trial. Consequently, the failure to timely raise this issue below results in a waiver of the issue on appeal, and the Court will not reach the merits of the claim.

3. Lawfulness of Two Year Term of Probation

In her third assignment of error, Ms. de Brum argues that the trial court did not have authority to impose a sentence of probation. Specifically, according to Ms. de Brum, the trial court lacked authority to impose a sentence of probation because such an option is not authorized by §140, the criminal penalty provision of the Income Tax Act of 1989. Alternatively, Ms. de Brum contends that the two year probation period is unlawful because a period of probation cannot exceed the maximum term of imprisonment authorized by the law which, in this case, according to Ms. de Brum, is one year.

Ms. de Brum's arguments are without merit. First, the trial court is plainly authorized pursuant to 31 MIRC §190(1) to impose a sentence of probation rather than a term of imprisonment for a criminal violation of §110(1).12 Further, Ms. de Brum's argument that the two year probation period exceeds the permissible maximum term of imprisonment is based on a fundamental misunderstanding of the permissible maximum sentence authorized in this case. Ms. de Brum was convicted on four (4) separate counts of violating §110(1). The maximum term of imprisonment authorized by §140 is one year for each of the four violations/counts which results in a total permissible maximum sentence of four(4) years, not one(1) year as claimed by Appellant. The two year probation period imposed by the trial court is clearly less than the permissible four year maximum term of imprisonment, and thus, it is lawful.

4. Severity of the Sentence Imposed

Ms. de Brum argues that the actual sentence imposed by the trial court is too severe because it is the maximum sentence permitted under the law. According to Ms. de Brum, the trial court should not have imposed the maximum sentence because mitigating factors supported a lesser sentence. Specifically, Ms. de Brum argues, the Court should have taken into account that: (1) she had no prior convictions; (2) she is of good character; and (3) she cooperated with the Tax Department. The basic premise underlying Ms. de Brum's argument is faulty.

As explained above, the maximum term of imprisonment that the trial court could have imposed on Ms. de Brum was four years, not one year. Given the permissible maximum term of imprisonment, as also noted above, the maximum probationary period that the trial court was permitted to impose pursuant to §190(1) was also four years. Accordingly, the two year probationary period Ms. de Brum actually received from the trial court is not a maximum sentence. In light of the fact that Ms. de Brum was not sentenced to the maximum, the argument that her sentence is too severe because it is the maximum is completely devoid of merit.

AFFIRMED.

Dec 27 2002

ENDNOTES:

1. *Honorable Alfred T. Goodwin, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation of the Cabinet.

**Honorable Barry M. Kurren, Magistrate Judge, District of Hawaii, sitting by designation of the Cabinet

2. The conditions provide that Ms. de Brum shall: (1) obey all laws of the Republic of the Marshall Islands; (2) perform two hundred and forty (240) hours of community service with the National Police on Majuro Atoll at the rate of ten (10) hours per month for the period of her probation, with proof of the required hours of service provided to the Clerk of the Court by the last day of each month starting on July 31, 2001; (3) pay a $2,000.00 fine on or before January 15, 2002; (4) make: restitution to the RMI government by signing four Form 090's prepared by the tax authority and file them in the court within thirty (30) days and pay $3,105.13 within ninety (90) days, on or before October 15, 2001.

3. Ms. de Brum cites McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963), The Court questions the authority of this case for the proposition stated. Nonetheless, Appellant's assertion that a claim of a lack of jurisdiction in the trial court gives rise to an exception to the general rule barring review of issues not raised at trial is squarely supported by Republic of the Marshall Islands v Digno, S. Ct. Crim. No. 83-01 (1984).

4. The case cited for this proposition is United States v. Western Pac. R. Co., 352 U.S. 59 (1956). However, the issue: before the Supreme Court in that case was not the ability of an appellate court to review a matter not raised at trial, but rather, whether the Supreme Court could address a matter decided by the lower court that neither party had questioned on appeal. Accordingly, the case does not support the proposition for which it is cited.

5. Appellant cites Koch v. Rodlin Enter., Inc., 223 Cal. App.3d 1591 (Cal. Ct. App. 1990) (matter may be raised for first. time on appeal if facts are not disputed and the issue merely raises a question of law); Nutt v. Knutson, 795 P.2d 30 (Kan. 1989); and Crittenden_v. Chrysler Corp., 443 N.W.2d 412 (Mich. Ct. App. 1989) (appellate court will address an issue not decided below if it is an issue of law for which all the necessary facts were presented).

6. Citing Fardig v. Municipality of Anchorage, 803 P.2d 879 (Alaska Ct. App. 1990); Gosewisch v. American Honda Motor Co., Inc., 737 P.2d 376 (Ariz. 1987); Conservatorship of Delay, 199 Cal. App.3d 1031 (Cal. Ct. App. 1988); Sharp v. Sharp, 422 N.W.2d 443 (S. D. 1988).

7.  See, e.g., Amcel Corp. v. International Executive Sales, Inc., 170 F. 3d 32 (1st Cir. 1999) (Issue not raised below considered on appeal if the failure to review would result in gross miscarriage of justice, or if it is constitutional, or of continuing public importance, or a matter of law and there is no risk of prejudice to the other party); Booking v. General Star Mgmt. Co., 254 F.3d 414 (2d Cir. 2001) (court will consider an issue raised for the first time on appeal if it is a purely legal issue or a failure to would lead to a substantial injustice); Brown v. Philip Morris Inc., 250 F.3d 789 (3d Cir. 2001) (issue raised for the first time on appeal is waived unless there: are exceptional circumstances - e.g., public interest requires the issue to be heard, or manifest injustice would result from failure to consider); Williams v. Prof'l Transp. Inc., 294 F.3d 607 (4th Cir. 2002) (issue not raised below considered if a failure to do so would result in plain error or a miscarriage of justice); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870 (5th Cir. 2002) (issue not raised below considered if it is a purely legal question and a failure to address it would result in a grave injustice); Pfennig v. Household Credit Servs., Inc., 295 F.3d 522 (6th Cir. 2002) (issue not raised below reached if it is a question of law or where proper resolution is beyond any doubt) ; U.S. Dep't of Labor v. Rapid Robert's Inc., 130 F.3d 345 (8th Cir. 1997) (appellate court may resolve an issue not raised below if proper resolution is beyond any doubt or where, an injustice might otherwise result); First Bank Investors' Trust v. Tarkio Coll., 129 F.3d 471 (8th Cir. 1997) (issue not raised below considered if purely legal issue or if manifest justice might otherwise result); Creative Gifts, Inc. v. UFO, 235 F. 3d 540 (10th Cir. 2000) (issue not raised below considered under exceptional circumstances or to prevent manifest injustice); Wright v. Hanna Steel Corp., 270 F.3d 1336 (11th Cir. 2001) (issue not raised below considered on appeal if: (1) it is a pure question of law; (2) there was no opportunity to raise it below; (3) substantial justice is at stake: (4) proper resolution is beyond doubt; or (5) it presents significant questions of general impact or of great public concern).

8. Specifically, §110(1) states that:"[e]very business, on or before the last day of the month following the close of each quarter (on or before April 30, July 31, October 31, and January 31) shall pay, based on its gross revenue of the preceding quarter, the amount of tax imposed by this Chapter to the Secretary of Finance. Each business shall, on or before the date provided for payment of the tax under this Subsection, make a full, true and correct return showing all such gross revenue received, accrued or earned, and the amounts deducted, and set aside on account thereof during the preceding quarter, and which shall be required by the Secretary of Finance. The Secretary of Finance, for good cause, may extend the time for making payments and returns, but not beyond the last day of the first month succeeding the regular due date thereof."

9. Section 110(3) states that: "[f]ailure to comply with the provisions of this Section shall be punishable by the penalties prescribed by this Chapter." Section 140 is titled "Criminal Penalties" and provides that: "[e]very person or business committing an offense under the provisions of this Chapter shall, upon conviction, in addition to the penalties imposed under Section 141 of this Chapter, be liable to a fine not exceeding one thousand dollars (US$1,000) or, if a natural person, to a term of imprisonment not exceeding one year, or both." Section 141 is titled "Civil Penalties" and provides in pertinent part that: "[t]he criminal penalties imposed by Section 140 of this Chapter for violation of provision of this Chapter shall be separate from, and in addition to, all other penalties or interest provided for in the Section."

10. Pursuant to Article II, section 4(4) of the Marshall Islands Constitution, "in all criminal prosecutions, the accused shall enjoy the right to be informed promptly and in detail of the nature and cause of the accusation against him."

11. Rule 10(a)(2) of the Marshall Islands Rules of Criminal Procedure provides in relevant part that: "(t)he following must be raised prior to trial …. (2) Defenses and objections based on defects in the complaint or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceeding)."

12. Section 190(1) provides in relevant part that: "[u]pon entering a judgment of conviction of any offense not punishable by life imprisonment, the court, when satisfied that the ends of justice and the best interests of the public as well as the defendant will be served, may suspend the imposition of sentence and may direct that the suspension continue for a period of time, not exceeding the maximum term of sentence which may be imposed, and upon terms and conditions which the court determines, and shall place the person on probation, under the charge and supervision of a probation officer or any other person designated by the court, during the suspension." (Emphasis added).