FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2017-503

FEDERATED STATES OF MICRONESIA,	)				
)
Plaintiff,			)
)
vs.					)
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ANOIHNA TIHPEN,				)
)
Defendant.			)
__________________________________________	)

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

	Dennis K. Yamase
	Chief Justice

	Hearings:  October 17, and December 4, 2017
	Decided:  March 19, 2018

APPEARANCES:

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

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

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	HEADNOTES

Criminal Law and Procedure  National Crimes
Under article IX, section 2(p) of the Constitution, the FSM national government has exclusive jurisdiction over all national crimes, as defined in 11 F.S.M.C. 104(7), and the FSM Supreme Court has exclusive jurisdiction over allegations of violations of the National Criminal Code.  FSM v. Tihpen, 21 FSM R. 463, 465-66 (Pon. 2018).

Federalism  National/State Power
A national power is one which is expressly delegated to the national government, or a power of such an indisputably national character as to be beyond the power of the state to control.  FSM v. Tihpen, 21 FSM R. 463, 466 (Pon. 2018).

Criminal Law and Procedure  National Crimes
A national crime is one which is 1) inherently national in character and defined anywhere in Title 11; or 2) otherwise a crime against the FSM.  FSM v. Tihpen, 21 FSM R. 463, 466 (Pon. 2018).

Criminal Law and Procedure  National Crimes
A crime is inherently national in character when it involves either real or personal property belonging to the national government.  FSM v. Tihpen, 21 FSM R. 463, 466 (Pon. 2018).

Criminal Law and Procedure  National Crimes
The FSM Supreme Court properly has jurisdiction over a crime committed in a building entirely leased (except for one office space retained by the landlord) by the FSM Department of Health and Social Affairs to provide necessary office space to the World Health Organization.  FSM v. Tihpen, 21 FSM R. 463, 466 (Pon. 2018).

Property  Lease
A lease is a contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration, usually rent.  A leasehold is a tenant’s possessory estate in land or premises or an estate in realty held under a lease.  FSM v. Tihpen, 21 FSM R. 463, 466 n.2 (Pon. 2018).

Property  Lease
A leasehold is the right to use property on which a lease is held for the purposes of the lease.  FSM v. Tihpen, 21 FSM R. 463, 466 n.2 (Pon. 2018).

Criminal Law and Procedure  National Crimes
Theft and unauthorized possession or removal of property from office space leased by the FSM national government and provided to, and occupied by, the World Health Organization is a national crime because it was committed in a place where the national government has jurisdiction, or that involves an instrumentality of the national government, or involves an activity that the national government has the power to regulate.  FSM v. Tihpen, 21 FSM R. 463, 467 (Pon. 2018).

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	COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

Now before the Court is Defendant Anorihna Tihpen’s Motion to Dismiss.  FSM Assistant Attorney General Abigail J. Avoryie and FSM Assistant Attorney General Craig D. Reffner, Esq. appeared on behalf of the Plaintiff FSM.  FSM Assistant Public Defender Timoci Romanu, Esq. appeared on behalf of the Defendant Tihpen.  The Defendant Tihpen was present at the hearings on this motion.

	I.  Background

On June 23, 2017, the Defendant Tihpen filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, and the Plaintiff FSM filed an Opposition to the Defendant’s Motion to Dismiss on July 11, 2017.  On October 17, 2017, a hearing was held on the Defendant’s Motion to Dismiss wherein the Court ordered the FSM to file supplemental briefing on the relationship of the World Health Organization (WHO) and the FSM National Government, and the employment of Dr. Eunyoung Ko in relation to the FSM National Government.

The FSM was also directed to provide a copy of the relevant lease agreement in this matter.  Additionally, the parties were instructed to exchange any witness lists before a second hearing on the Motion to Dismiss.1

On November 1, 2017, the FSM filed its supplemental briefing and the Defendant filed a response thereto on November 13, 2017.  The FSM did not file a copy of the lease agreement.  On November 14, 2017, the FSM submitted a witness list for the December 4, 2017 hearing.  Then, on November 24, 2017, the FSM amended its witness list, because two of the originally selected witnesses would be off-island during the scheduled hearing.

On December 4, 2017, a second hearing was held on the Defendant’s Motion to Dismiss.  In this hearing, the Court began by addressing preliminary matters raised by the parties, then heard arguments and received witness testimony from FSM Assistant Secretary of the Department of Health and Social Affairs, Mr. Marcus Samo, and Mr. Semenson O. Ehpel.  The FSM also submitted into evidence the Basic Agreement between the World Health Organization and the Federated States of Micronesia (Basic Agreement), labeled as Plaintiff’s Exhibit "1," and Amendment One (1) to the Original Lease Agreement, labeled as Plaintiff’s Exhibit "2."

	II.  Respective Arguments

The Defendant Tihpen claims that the subject matter of the allegation[s] against him does not fall within the definition of a "national crime" as set forth in 11 F.S.M.C. 104(7).  Def.’s Mot. Dis. at 2.  Citing FSM v. Anson, 11 FSM R. 69, 74 (Pon. 2002), the Defendant argues that the alleged crimes are not "inherently national in character" because they do not fall within the descriptions set forth in 11 F.S.M.C. 104(7), specifically that Congress defined crimes against persons as inherently national in character when committed against a national public servant.  Anson, 11 FSM R. at 74.  It is the Defendant’s contention that the alleged victim, Dr. Eunyoung Ko, is not a national public servant; therefore, this Court lacks subject matter jurisdiction in this case.  Def.’s Mot. Dis. at 4.

In opposition, the FSM argues that the charges filed in this case are national crimes, because they occurred in an office space leased and controlled by the FSM National Government.  Pl’s. Opp’n to Mot. Dis. at 4.  The FSM asserts that the FSM National Government provided the office space to the World Health Organization (WHO) "in furtherance of the FSM’s international obligations as a member of the United Nations", but that the FSM National Government maintains "full control over the facility in question, including maintaining keys to access the facility at any time as well as having FSM national police officers routinely patrol the area in question to ensure that it is safe".  Pl.’s Opp’n to Mot. Dis. at 3-4.

Furthermore, the FSM contends that the Defendant’s reliance on the definition of a "national crime" pursuant to 11 F.S.M.C. 104(7) is limiting, because whether the alleged victim is a "national public servant" or not is irrelevant, as there are nine other instances in which a crime may be inherently national in character.  Therefore, the FSM maintains that this Court has jurisdiction, because the alleged criminal act(s) are "national crimes" as they occurred in an office space within a building almost totally leased by the FSM National Government.

	III.  Analysis

"The National Government of the Federated States of Micronesia has exclusive jurisdiction over all national crimes, as defined in section 104(7) of this chapter, pursuant to article IX, section 2(p) of the Constitution of the Federated States of Micronesia."  11 F.S.M.C. 103.  "The National Criminal Code places in this Court exclusive jurisdiction over allegations of violations of the Code."  FSM v. Albert, 1 FSM Intrm. 14, 15 (Pon. 1981).  Additionally, FSM Constitution, article VIII, § 1 declares that a national power is one which is expressly delegated to the national government, or a power of such an indisputably national character as to be beyond the power of the state to control.

11 F.S.M.C. 104(7)(a) provides that [a] "national crime" is one which is: (1) inherently national in character and defined anywhere in the title; or (2) otherwise a crime against the Federated States of Micronesia.  11 F.S.M.C. 104(7)(b) provides that a crime is "inherently national in character" when any of the following ten incidents are found to be true.  11 F.S.M.C. 104(7)(b)(ix) provides that a crime is inherently national in character when it "involves property belonging to the National Government".  11 F.S.M.C. 104(11) defines "Property" as both real and personal property.

In this matter, the Court holds that jurisdiction is proper for the following reasons.  The building in question, Capital Suites, is leased2 by the FSM Department of Health [and Social Affairs], with the exception of one office space retained by the landlord.

The FSM Department of Health [and Social Affairs], as tenant of most of the Capital Suites building, provides necessary office space to the WHO.3  The WHO and the FSM National Government entered into a Basic Agreement Between the World Health Organization and the Federated States of Micronesia, for among other things, the WHO to establish technical advisory cooperation with the FSM National Government.  Article I on Establishment of Technical Advisory Cooperation, states in pertinent part, as follows:

. . .

(3)  Such technical advisory cooperation may consist of:

(a)  making available the services of advisers in order to render advice and cooperate with the Government or with other parties;

(b)  organizing and conducting seminars, training programmes, demonstration projects, expert working groups and related activities in such places as may be mutually agreed;

. . .

(d)  preparing and executing pilot projects, tests, experiments or research in such places as may be mutually agreed upon;

. . .

(4) . . .
(b)  in the performance of their duties, the advisers shall act in close consultation with the Government and with persons or bodies so authorized by the Government, and shall comply with instructions from the Government as may be appropriated to the nature of their duties and the cooperation in view and as may be mutually agree upon between the Organization and the Government; . . .

The Defendant Tihpen is accused of committing theft and unauthorized possession or removal of property in violation of the national criminal code in the office space leased by the FSM National Government and provided to, and occupied by, the World Health Organization.

Furthermore, "[a] national crime is one that is committed in some place where the national government has jurisdiction, or that involves an instrumentality of the national government, or involves an activity that the national government has the power to regulate."  FSM v. Fal, 8 FSM R. 151, 154 (Yap 1997); FSM v. Ezra, 19 FSM R. 486, 495 (Pon. 2014).

The Defendant Tihpen is accused of committing theft and unauthorized possession or removal of property in an office space within the Capital Suites.  That office is leased by, and serves, as the location that the FSM Department of Health [and Social Affairs]4 provides to the WHO to conduct technical advisory cooperation and thereby, official FSM National Government health and social affairs business is conducted therein.  The technical advisory cooperation that is provided by WHO involves activities that the FSM National Government has the power to regulate pursuant to the Basic Agreement between them.

	IV.  Conclusion

Accordingly and in light of the above, the Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction is hereby denied.

The parties shall confer and submit to the Court three different dates for trial of this matter.  The recommended trial dates shall be submitted to the Court prior to Wednesday, March 28, 2018.

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