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Federated States of Micronesia v Nena [1983] FMSC 10; 1 FSM Intrm. 331 (Kos. 1983) (13 September 1983)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Nena, [1983] FMSC 10; 1 FSM Intrm. 331 (Kos. 1983)

TRIAL DIVISION-STATE OF KOSRAE

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

CALER NENA,
Defendant.

CRIMINAL ACTION NO. 1983-2500

OPINION

Before the Honorable Edward C. King
Chief Justice
September 13, 1983
Kosrae, Caroline Islands 96944

APPEARANCES:

For the Plaintiff: Carl V. Ullman
Assistant Litigator
Office of the Attorney General
Federated States of Micronesia
Ponape, Caroline Islands 96941

For the Defendant: Loretta Faymonville
Public Defender
P.O. Box 238
Ponape, Caroline Islands 96941

[1983] FMSC 10; [1 FSM Intrm. 331]

The motion for modification of sentence under consideration here asks the Court to exercise discretionary paris to assist a person, convicted of unlawful possession of firearms in violation of the Weapons Control Act, in attempts to avoid the Act's directive that a person so convicted be prohibited from possessing firearms for 10 years.

Although the government acquiesces in the motion, the Court concludes that granting of the motion would seriously undermine an important Congressional policy.1 Because counsel advises that Congress is considering revision of the policy, action an the motion is deferred pending any Congressional action.

The Conviction and Sentence

Caler Nena pled guilty and was convicted of unlawful possession of a firearm and ammunition without a firearm identification card in violation of 11 F.S.M.C. 1205.

The charge arose out of a most unfortunate event which occurred on January 10, 1983. Mr. Nena and another member of his family were going hunting for pigeons in the mountains of Kosrae. Mr. Nena had a 22-rifle, borrowed from a cousin. As the men prepared to leave, their wives began to joke about the futility of the hunt and their opinion that the men would return empty-handed.

All agree that Caler Nena then jokingly pointed the rifle at his wife and that, to his surprise, the rifle discharged, wounding her in the neck. Mr. Nena was originally charged with assault with a dangerous

[1 FSM Intrm. 332]

weapon but this was reduced, under the plea agreement, to unlawful possession of a firearm and ammunition.

Mr. Nena had no previous criminal record and has a good reputation in the community. He therefore received a rather light sentence in comparison to the five-year jail sentence and $2,000 fine possible under the Weapons Control Act. A six-month jail sentence was suspended on condition that he pay a $100 fine and perform 208 hours of community service work under the direction of the Justice Ombudsman.

The Motion

Mr. Nena's section 1205 conviction automatically prevents him from possessing a firearm until at least 10 years after termination of his sentence or discharge from probation. See 11 F.S.M.C. §§ 1205(5)(e) and 1205(8).2

It is urged that the defendant frequently engages in hunting and that this is an important aspect of life in his village of Utwe, Kosrae. The motion for modification of sentence asks that the Court set aside Mr. Nena's earlier sentence, instead suspending imposition of sentence, retaining the same fine and community service requirements. Assuming no sentence would be imposed upon completion of the conditions, there would then be no conviction for purposes of 11 F.S.M.C. 1205(5). The 10-year prohibition of 11 F.S.M.C. 1205(8) therefore would be inapplicable.

[1 FSM Intrm. 333]

Section 1205(8) then reinstates the person for consideration 10 years after "his most recent discharge from probation or parole or the termination of his most recent sentence, whichever is later."

Sentencing Policy and Congressional Direction

The Congress of the Federated States of Micronesia has generally provided broad sentencing discretion for this Court. The sentencing provisions of the National Criminal Code, for example, present a wide range of options and specifically direct consideration of custom in sentencing decisions. See 11 F.S.M.C. §§ 1001-1003. See also 11 F.S.M.C. 108.

The Court tries to respond to this Congressional guidance. Claims of applicable and relevant customs are given careful consideration. See FSM v. Mudong, [1982] FMSC 11; 1 FSM Intrm. 135 (1982). We have developed presentence procedures calculated to acquaint the Court with the views of crime victims, defendants, law enforcement officers, community and traditional leaders. The Court then attempts to focus on any special circumstances and tailor sentences appropriately. We have frequently employed fines, restitution of the victim, community service, house arrest, confinement to a particular community and other limited restrictions on the freedom of the defendant instead of jail, or following abbreviated jail confinement.

In a few instances however, because of the nature or gravity of a particular crime, Congress has prescribed a minimum punishment to flow from conviction. For example, murder is punishable "by imprisonment for a minimum term of five years." 11 F.S.M.C. 911(2).

The 10-year prohibition against firearm possession constitutes

[1 FSM Intrm. 334]

specific Congressional direction. The national government certainly has an interest in controlling the proliferation and use of firearms throughout Micronesia and the classifications singled out for special restriction appear reasonable.

One can imagine a situation where the 10-year prohibition might seem unfair, or at least disproportionate, in a conviction for mere possession. For example, a person simply transporting an unloaded weapon and ammunition from one authorized person to another could be convicted. Ibis is not such a case. It seems peculiar even to consider carving out a special exception to protect Mr. Nena from consequences Congress has said it wants always to flow from a conviction for unlawful firearm possession. If ever illegal firearm possession, without conviction for any other crime, would justify prohibition of firearm possession for 10 years, this surely is that case. Mr. Nena had no legal authorization. He was using the rifle almost as a toy, pointing it in jest at another. His foolish actions resulted in serious injury to his wife. This case, then, involves: (1) illegal possession, compounded by, (2) irresponsible conduct, and (3) consequent serious injury.

To avoid possible misunderstanding from emphasis upon the circumstances of this particular case, I reconfirm my general reluctance to save any defendant from the congressionally established consequences of 11 F.S.M.C. 1205(8). As already noted, the question of firearm use is one of deadly import. The government has a serious interest, and Congress deserves the support of this Court, in carrying out policy established to control firearm use. Obviously, many who violate a

[1 FSM Intrm. 335]

regulatory law such as this will not be found out. Open violations, without punitive results, weaken the Congressional policy and thwart efforts to assure that firearms will be available only to responsible people. Courts must assure that the policy is carried out against those convicted.

For these reasons the motion for modification of sentence is not granted.

Future Congressional Action

Counsel for defendant has advised that various members of Congress were unaware of the uniform 10-year prohibition and that Congress is considering an amendment. Because my reluctance to grant the motion is based in major part upon the wish to respond to and uphold Congressional action, I have advised counsel that the motion will be set aside for now. If Congress does alter the policy the defendant may renew his present motion despite the fact that Rule 35's 120-day period may then have expired. The motion will be deemed timely and subsequent Congressional action will be taken into consideration.

Conclusion

The motion is deferred for future consideration in the event of further Congressional action. In the meantime, the imposed sentence remains in effect.

So ordered as of the 13th day of September 1983.

/s/ Edward C. King
Chief Justice
Supreme Court of the Federated
States of Micronesia

Entered this 5th day of October 1983.

/s/ Albert Helgenberger

Asst. Clerk of Court

[1 FSM Intrm. 336]

1. The Weapons Control Act was enacted in 1971 by the Congress of Micronesia as Pub. L. No. 4C-13 (4th Cong., 4th Spec. Sess. 1971). Subsections 5(e) and 8, applicable here, are codified in the FSM Code with the same wording as enacted. 11 F.S.M.C. 1205(5)(e), (8).

2. Persons convicted of any of three categories of crimes are barred from firearm possession by section 1205. The categories: Section 1205(5)(d) - crimes of which injury or death is an element; Section 1205(5)(e) - crimes where firearms were used or in possession of the convicted person; Section 1205(5)(f) - crimes involving possession, use or sale of narcotics