FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2015-1512
CRIMINAL CASE NO. 2015-1513

FEDERATED STATES OF MICRONESIA,	)					
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Plaintiff,			)
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vs.					)
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HERCULES JONATAN SIEGA and		)
JOHNONE MANAKY,				)
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Defendants.			)
	)
FEDERATED STATES OF MICRONESIA,	)					
)
Plaintiff,			)
)
vs.					)
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CORTEZ BENEDICTO, RIETA ERAM, and	)
TATAICHY PUNAN,				)
)
Defendant.			)
__________________________________________	)

	ORDER DENYING DISMISSAL

	Larry Wentworth
	Associate Justice

	Hearing:  June 8, 2017
	Submitted:  June 16, 2017
	Decided:  June 26, 2017

APPEARANCES:

For the Plaintiff:	Craig D. Reffner, Esq.
Robert P. Nakasone, Esq.
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendants:	Lorrie Johnson-Asher, Esq.
(Siega & Benedicto)	Chief Public Defender
Office of the Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941

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	HEADNOTES

Criminal Law and Procedure  Human Trafficking
There is no bright-line division between human trafficking cases such that some can only be prosecuted under state statutes and the others cannot be prosecuted under a state statute but must be prosecuted by the national government.  This is analogous to governmental criminalization of firearms possession in the FSM where both the national government and (most) states have weapons control statutes that criminalize many types of firearms possession.  FSM v. Siega, 21 FSM R. 291, 295 (Chk. 2017).

Criminal Law and Procedure  Human Trafficking
None of the national human-trafficking statutes require interstate movement of either the victim or the accused as an element of the offense.  This is in contrast to the human smuggling statutes, in which Congress made the intent to cross an international border an element of the offense.  FSM v. Siega, 21 FSM R. 291, 295-96 (Chk. 2017).

Criminal Law and Procedure  Human Trafficking
The emphasis in the human trafficking statutes, as opposed to human smuggling statutes, is on the victim’s exploitation, not on the movement of persons.  FSM v. Siega, 21 FSM R. 291, 296 (Chk. 2017).

Criminal Law and Procedure  Human Trafficking
In human trafficking cases, the protection of the victims’ fundamental rights is involved.  FSM v. Siega, 21 FSM R. 291, 296 (Chk. 2017).

Constitutional Law  Involuntary Servitude; Criminal Law and Procedure  Human Trafficking
"Practices similar to slavery" include forced marriage, and a victim’s repeated sexual exploitation by the same person is something akin to a "forced marriage" without the status of being a spouse.  FSM v. Siega, 21 FSM R. 291, 296 (Chk. 2017).

Statutes  Construction
Generally statements made by others [that is, by persons other than congressmen or the bill’s draftsman] at the committee hearings concerning the nature and effect of a bill are not accorded much or any weight.  FSM v. Siega, 21 FSM R. 291, 296 (Chk. 2017).

Jurisdiction  Personal
There must be personal jurisdiction over a party before a court may enter an order against it, whether in a civil or criminal case.  FSM v. Siega, 21 FSM R. 291, 297 (Chk. 2017).

Jurisdiction  Personal

Personal jurisdiction refers to the court’s authority to adjudicate the claim as to the person.  That a court has "jurisdiction of a party" means either that a party has appeared generally and submitted to the jurisdiction, has otherwise waived service of process, or that process has properly issued and been served on such party.  FSM v. Siega, 21 FSM R. 291, 297 (Chk. 2017).

Criminal Law and Procedure  Process
In a criminal case, "process" is the arrest warrant or penal summons that issues to compel a person to answer for a crime.  FSM v. Siega, 21 FSM R. 291, 297 (Chk. 2017).

Criminal Law and Procedure  Process; Jurisdiction  Personal
Physical presence in the country usually supplies the only necessary prerequisite for personal jurisdiction in a national criminal prosecution.  FSM v. Siega, 21 FSM R. 291, 297 (Chk. 2017).

Extradition; Jurisdiction  Personal
In extradition cases, the receiving court, under the rules of speciality and double criminality, lacks personal jurisdiction over the defendant for crimes other than the crimes for which the defendant was extradited.  FSM v. Siega, 21 FSM R. 291, 297 n.4 (Chk. 2017).

Criminal Law and Procedure  Process; Jurisdiction  Personal
When criminal defendants do not claim that they were not served process or that the process was not properly served on them or that they are not, or were not, physically present in the FSM, the court has personal jurisdiction over them.  FSM v. Siega, 21 FSM R. 291, 297 (Chk. 2017).

Statutes  Construction
When a statute sets forth a list in the disjunctive (using the word "or"), the existence of any one of the listed conditions makes the statute applicable.  FSM v. Siega, 21 FSM R. 291, 298 (Chk. 2017).

Criminal Law and Procedure  Human Trafficking
Persons may be charged with the human trafficking offenses in the FSM Supreme Court when the alleged exploitation occurred herein (with "herein" meaning within the FSM), and they may also be prosecuted when the alleged offenses were committed against a victim who is an FSM national.  FSM v. Siega, 21 FSM R. 291, 298 (Chk. 2017).

Citizenship; Criminal Law and Procedure  Human Trafficking
All FSM citizens are FSM nationals, but not all FSM nationals are FSM citizens.  FSM v. Siega, 21 FSM R. 291, 298 & n.5 (Chk. 2017).

Criminal Law and Procedure; Jurisdiction
A person may be convicted and sentenced under the laws of the FSM if he or she commits, or attempts to commit a crime, in whole or in part within the FSM.  FSM v. Siega, 21 FSM R. 291, 298 (Chk. 2017).

Criminal Law and Procedure  Human Trafficking
Section 621 of the FSM human trafficking statute does not restrict the court’s jurisdiction; instead, it expands the court’s human-trafficking jurisdiction by giving it extraterritorial reach.  Section 621 expands (and was clearly intended to expand) the court’s possible jurisdiction to include conduct constituting an offense that took place outside the FSM’s jurisdiction  § 621 was intended to provide a means to prosecute persons in the FSM Supreme Court for acts they may have committed in places other than the FSM, and thus over which the court might otherwise not have had jurisdiction, but which have some connection to the FSM.  FSM v. Siega, 21 FSM R. 291, 298 (Chk. 2017).

Crminal Law and Procedure  Double Jeopardy
Jeopardy only attaches once the first witness is sworn in to testify at trial.  FSM v. Siega, 21 FSM R. 291, 299 (Chk. 2017).

Criminal Law and Procedure  Double Jeopardy
When jeopardy has not yet attached in either of two prosecutions against an accused, it may be premature to address whether a double jeopardy claim exists for the contemporaneous cases.  FSM v. Siega, 21 FSM R. 291, 299 (Chk. 2017).

Courts
"Forum-shopping" is the practice of choosing the most favorable jurisdiction or court in which a claim might be heard.  Forum shopping thus presupposes that more than one court could have jurisdiction over the "claim" being "forum-shopped."  FSM v. Siega, 21 FSM R. 291, 299 (Chk. 2017).

Criminal Law and Procedure  Defenses; Jurisdiction  Exclusive FSM Supreme Court
In an FSM Supreme Court criminal case, a "forum shopping" claim must be rejected because only the FSM Supreme Court has jurisdiction over a national crime  its jurisdiction over the prosecution of national crimes is exclusive.  There is no alternative forum in which to prosecute a national crime.  FSM v. Siega, 21 FSM R. 291, 299 (Chk. 2017).

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	COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On June 8, 2017, this came before the court to hear defendant Hercules Jonatan Siega’s motion to dismiss the criminal information in Criminal Case No. 2015-1512 and Cortez Benedicto’s motion to dismiss the criminal information in Criminal Case No. 2015-1513.  The motions were heard together since they raised identical grounds for dismissal.

Because the government’s opposition to defendant Cortez Benedicto’s motion to dismiss was filed late, and since the court declined to strike that opposition, Benedicto was given time to file a written reply to the government’s opposition.  That reply was filed June 16, 2017.  The court then considered the matter submitted to it for a decision on the merits.

Based on the following reasoning, the two motions to dismiss are denied.

	I.  Background

Hercules Jonatan Siega, a contract worker from the Philippines, is accused of trafficking in persons in violation of 11 F.S.M.C. 615, and trafficking in children in violation of 11 F.S.M.C. 616 by repeatedly, between March 19, and September 16, 2015, sexually exploiting, at his employer’s construction camp on Weno, Chuuk, a fourteen-year-old girl for whose services he paid her parents cash and other material benefits, and who he often picked up at her parents’ house and transported to the construction camp.

Cortez Benedicto, also a contract worker from the Philippines, is accused of trafficking in persons in violation of 11 F.S.M.C. 615, trafficking in children in violation of 11 F.S.M.C. 616, and aggravated human trafficking of children in violation of 11 F.S.M.C. 617 by repeatedly, between May 10, 2015 and September 11, 2015, sexually exploiting, at his employer’s construction camp on Weno, Chuuk, a fourteen-year-old Weno girl1 for whose services he often gave her parents cash and other material benefits, and who he picked up at either her parents’ house or at a co-defendants’ house and transported to the construction camp.

Siega and Benedicto move, on three separate grounds, to dismiss the cases against them.  They contend that dismissal with prejudice is warranted:  1) because the court lacks subject-matter jurisdiction over the case; 2) because the court lacks personal jurisdiction over the defendants; and 3) because the prosecution is "forum shopping" by filing the case in the FSM Supreme Court.  Although neither Benedicto’s nor Siega’s co-defendants joined their motions, Benedicto and Siega contend that if the cases against them are dismissed, then the cases against their co-defendants cannot stand either.  The court will address these contentions in order.

	II.  Analysis

A.  Subject-Matter Jurisdiction

Siega and Benedicto contend that the court lacks subject-matter jurisdiction over their cases.  By this, they mean either that the statute makes criminal acts that are beyond Congress’s power to make criminal or that the prosecution is seeking to extend the statute’s application to include acts the statute does not make criminal  that is, that the acts alleged in the informations fail to state a national crime.

For this proposition, Benedicto and Siega rely on one sentence included in the standing committee report that accompanied the bill that was enacted as the Trafficking in Persons Act of 2012 [now codified at 11 F.S.M.C. 611 through 11 F.S.M.C. 623].  That one sentence reads:  "Representatives of the Department of Justice opined that the national government would have jurisdiction over crimes involving interstate commerce or the movement of persons across interstate borders, but that states would probably have jurisdiction otherwise."  SCREP No. 17-78 at 1, 17th Cong., 3rd Reg. Sess. (2012).  Benedicto and Siega take this to mean that if all the acts alleged to constitute a human trafficking offense take place in one state, then the national government is powerless to enforce its anti-human-trafficking laws, with the further logical implication that if any conduct is involved that might be outside of a state’s border, then that state cannot pursue a human-trafficking prosecution.

The court must reject that view and its implications.  The court is of the view that there is no bright-line division between human trafficking cases such that some can only be prosecuted under state statutes and the others cannot be prosecuted under a state statute but must be prosecuted by the national government.  This is analogous to governmental criminalization of firearms possession in the FSM.  Both the national government and (most) states have weapons control statutes that criminalize many types of firearms possession.  The appellate division acknowledged this in Joker v. FSM, 2 FSM R. 38, 44 (App. 1985) (nothing absurd about a weapons control scheme that recognized that both the national and the state governments have an interest in controlling the possession, use, and sale of weapons).  Even after a constitutional amendment transferred major crimes jurisdiction form the national government to the states, the appellate division continued to acknowledge that national and state criminal jurisdiction overlapped when it came to firearms control.  See Jano v. FSM, 12 FSM R. 569, reh’g denied, 12 FSM R. 633 (App. 2004); Sander v. FSM, 9 FSM R. 442 (App. 2000).  The court thus concludes that there is nothing absurd about an anti-human trafficking scheme that assigns both the states and the national government interests in combating the scourge of human trafficking.

First, none of the statutes that Benedicto and Siega are accused of violating [11 F.S.M.C. 615, 616, and 617] require interstate movement of either the victim or the accused as an element of the offense.  Congress could easily have chosen to make it an element of those offenses.  It did not.  This is in contrast to the human smuggling statutes, 11 F.S.M.C. 613 and 614, in which Congress made the intent to cross an international border as an element of the offense.  The emphasis in the human trafficking statutes, as opposed to human smuggling statutes, is on the victim’s exploitation, not on the movement of persons.

Also, while neither of the fourteen-year-old girls were trafficked interstate or internationally, international movement was involved since the movants would not have been in the FSM allegedly engaging in sexual exploitation if they had not come from abroad and if their labor had not been recruited internationally.  "Interstate commerce"2 was thus involved.

Furthermore, the protection of the victims’ fundamental rights is involved.  The FSM has previously prosecuted sexual exploitation cases as violations of the victims’ civil rights to liberty.  See FSM v. Tipingeni, 19 FSM R. 439 (Chk. 2014).  Such cases can also be seen as a violation of the civil right that the equal protection of the law cannot be denied on the basis of sex.  FSM Const. art. IV, § 4.

"’Exploitation’ means: (a) the obtaining of financial or other material benefit from the prostitution of another person; . . . [or] (c) slavery or practices similar to slavery."  11 F.S.M.C. 612(3).  "’Practices similar to slavery’ include . . . forced marriage."  11 F.S.M.C. 612(5).  The victims’ repeated sexual exploitation by the same person is something akin to a "forced marriage" without the status of being a spouse.  A person’s freedom from slavery and involuntary servitude is an important FSM fundamental right, FSM Const. art. IV, § 10, a right which Congress may unquestionably enact legislation to protect.3

"Generally statements made by others [that is, by persons other than congressmen or the bill’s draftsman] at the committee hearings concerning the nature and effect of a bill are not accorded any weight."  2A Norman J. Singer, Sutherland Statutory Construction § 48.10, at 343 (5th ed. 1992); see also Seward Marine Servs., Inc. v. Anderson, 643 P.2d 493, 496 n.8 (Alaska 1982) ("testimony before a committee is of little value in ascertaining legislative intent"); Henthorn v. Grand Prairie Sch. Dist., 601 P.2d 1243, 1247 n.5 (Or. 1979) ("statements before legislative committees of the legislature by persons not members of the legislature may have little or no significance").  The court therefore gives little weight to unnamed Department of Justice persons opining that "states would probably have jurisdiction otherwise," and further notes the word "probably" denotes some uncertainty.

Accordingly, the court cannot conclude that the statutes, under which the movants are charged, make acts criminal that are beyond what Congress has the power to make criminal or that the prosecution is seeking to extend the statutes’ application to include acts that the statutes do not make criminal.  The court thus rejects the movants’ "subject matter jurisdiction" challenge.

B.  "Personal Jurisdiction"

Benedicto and Siega also assert that the court does not have "personal jurisdiction" over them because, based on the facts as alleged, the statute, 11 F.S.M.C. 621, does not include them in the class of persons who can be charged with, or convicted of, human trafficking.

It is true that "[t]here must be personal jurisdiction over a party before a court may enter an order against it, whether in a civil or criminal case."  Hooper v. State, 248 P.3d 748, 751 (Idaho 2011).  But the movants’ use of the term "personal jurisdiction" is misplaced.

Personal jurisdiction refers to the court’s authority to adjudicate the claim as to the person.  That a court has "jurisdiction of a party" means either that a party has appeared generally and submitted to the jurisdiction, has otherwise waived service of process, or that process has properly issued and been served on such party.

State v. Rogers, 91 P.3d 1127, 1131 (Idaho 2004) (quoting 20 Am. Jur. 2d Courts § 70 (1995)).  "In a criminal case, ’process’ is the arrest warrant or penal summons ’that issues to compel a person to answer for a crime.’"  FSM v. Itimai, 20 FSM R. 232, 233 n.1 (Pon. 2015).  "Physical presence in the [country] usually supplies the only necessary prerequisite for personal jurisdiction in a [national] criminal prosecution."  United States v. White, 480 F. App’x 193, 194 (4th Cir. 2012) (citing United States v. Wilson, 721 F.2d 967, 972 (4th Cir. 1983)).4  Siega and Benedicto do not claim that they were not served process or that the process was not properly served on them or that they are not, or were not, physically present in the FSM.  The court therefore has personal jurisdiction over Benedicto and Siega.

What the movants actually claim, when they argue lack of personal jurisdiction, is either that the acts they are accused of committing do not constitute a national crime, or that, if those acts are a crime, the movants are not, by the statute’s express terms, persons who the FSM can prosecute for those acts.  For this proposition, the movants rely on Section 621 of the FSM Revised Criminal Code, which reads:

The offenses defined in this chapter shall apply regardless of whether the conduct constituting an offense took place inside or outside the jurisdiction of the Federated States of Micronesia if:

(1) the Federated States of Micronesia is the receiving country, or if the exploitation occurs herein; or

(2) the acts or conduct constituting an offense under this chapter started, ended or occurred in part in the jurisdiction of the Federated States of Micronesia; or

(3) the offense is committed by a national of the Federated States of Micronesia or by a person who is not a citizen of any country but has his or her habitual residence in the Federated States of Micronesia at the time of the commission of the offense; or

(4) the offense is committed against a victim who is a national of the Federated States of Micronesia.

11 F.S.M.C. 621.  Siega and Benedicto contend that they cannot be charged with committing any of the offenses defined in the Trafficking in Persons [sub]chapter of the FSM Revised Criminal Code because Section 621 restricts the application of the FSM Trafficking in Persons Act.  They point to 11 F.S.M.C. 621(1), and assert that that provision cannot apply because the FSM is not the "receiving country" since all of the acts took place here.  A similar argument is made to assert that 11 F.S.M.C. 621(2) is inapplicable.  And, referring to 11 F.S.M.C. 621(3), Benedicto and Siega note that, as Philippine citizens, they are neither FSM nationals nor stateless persons so that subsection cannot apply to them.

Benedicto and Siega overlook that the statute, when setting out possible criminal liability, uses the disjunctive "or" between the subsections, and even within subsections.  When a statute sets forth a list in the disjunctive (using the word "or"), the existence of any one of the listed conditions makes the statute applicable.  See FSM v. Ting Hong Oceanic Enterprises, 8 FSM R. 79, 90 (Pon. 1997) (when the fishing statute sets forth a list of prohibited acts in the disjunctive, commission of any one of the listed acts is unlawful, and each is a separate claim by the FSM); see also FSM v. Nifon, 14 FSM R. 309, 314 (Chk. 2006); 1A Norman J. Singer, Sutherland Statutory Construction § 21.14, at 129 (5th ed. 1992).

Benedicto and Siega can clearly be charged with the human trafficking offenses under either Subsection 621(1) or 621(4).  They may be prosecuted under § 621(1) because "the [alleged] exploitation occurs herein"; "herein" meaning within the Federated States of Micronesia.  And they may be prosecuted under § 621(4) because "the [alleged] offense[s] [were] committed against a victim who is a national of the Federated States of Micronesia."  Both alleged victims, as FSM citizens, are FSM nationals.5

Furthermore, Benedicto and Siega also overlook the general jurisdictional provision found in Section 103.  "A person may be convicted and sentenced under the laws of the Federated States of Micronesia if: (a) he or she commits, or attempts to commit a crime, in whole or in part within the Federated States of Micronesia . . . ."  11 F.S.M.C. 103.  Benedicto and Siega are accused of committing crimes "in whole . . . within the Federated States of Micronesia."

Section 621 does not restrict the court’s jurisdiction under Section 103.  Instead, Section 621 expands it by giving it extraterritorial reach.  It clearly expands (and was clearly intended to expand) the court’s possible jurisdiction to include "conduct constituting an offense [that] took place . . . outside the jurisdiction of the Federated States of Micronesia."  11 F.S.M.C. 621.  Put another way, § 621 was intended to provide a means to prosecute persons in the FSM Supreme Court for acts they may have committed in places other than the FSM, and thus over which the court might otherwise not have had jurisdiction, but which have some connection to the FSM.

Accordingly, the court must reject the movants’ contention that 11 F.S.M.C. 621 bars prosecuting them or that the court lacks personal jurisdiction over them.

C.  "Forum Shopping"

Siega and Benedicto also assert "forum shopping" as a ground for dismissal.  By "forum shopping," Benedicto and Siega claim that it is unfair to prosecute them for the same acts and charge them with the same offenses in both the FSM Supreme Court and in the Chuuk State Supreme Court at the same time.6  Siega has since withdrawn this claim since the state court case against him has been dismissed.

The court, foreseeing a possible double jeopardy claim here, invited the parties to brief any double jeopardy issue.  Both sides declined, asserting that since no witness had yet been sworn in either the FSM or state court case, jeopardy had not yet attached.

The parties are correct about that.  Jeopardy only attaches once the first witness is sworn in to testify at trial.  FSM v. Meitou, 18 FSM R. 121, 126 (Chk. 2011).  It may thus be premature to address whether a double jeopardy claim of this nature exists in the contemporaneous cases.

"Forum-shopping" is "[t]he practice of choosing the most favorable jurisdiction or court in which a claim might be heard."  Black’s Law Dictionary 726 (9th ed. 2009).  Forum shopping thus presupposes that more than one court could have jurisdiction over the "claim" being "forum-shopped."

However, only the FSM Supreme Court has jurisdiction over a national crime committed in Chuuk.  The FSM Supreme Court’s jurisdiction over the prosecution of national crimes is exclusive.  FSM Const. art. XI, § 6(a) (FSM Supreme Court has exclusive jurisdiction if national government is a party); 11 F.S.M.C. 103(1) (national government has exclusive jurisdiction of national crimes).  There is no alternative forum in which to prosecute a national crime.  The court must therefore reject Benedicto’s "forum shopping" claim.

	III.  Conclusion

Accordingly, the motions to dismiss are denied.  A status conference will be held for these cases on August 1, 2017, at 1:30 p.m., at which time a schedule for further proceedings will be set.

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