FSM SUPREME COURT
APPELLATE DIVISION (Pon.)
Cite as Fred v. FSM,
3 FSM Intrm. 141 (App. 1987)

[3 FSM Intrm. 141]
AHM FRED,
Appellant,

v.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. P2/3-1984
Affirming in part
and reversing in part:
FSM v. Jonas, FSM Cr. 1982-525)
Argued:  January 29, 1986
Decided:  January 30, 1987

OPINION

Before:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
     Hon. Mamoru Nakamura, Temporary Justice, FSM Supreme Court*;
     Hon. Edwel H. Santos, Temporary Justice, FSM Supreme Court**;

      *Chief Justice, Republic of Palau Supreme Court
      **Chief Justice, Pohnpei Supreme Court

APPEARANCES:
          For the Appellant:     Phillip A. Okney
                                             P.O. Box 1467
                                             Majuro, Marshall Islands  96960

          For the Appellee:     David R. Nevitt
                                             Attorney General
                                             Federated States of Micronesia
                                             Kolonia, Pohnpei 96941

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HEADNOTES
Criminal Law and Procedure  -  theft
     When the government fails to notify defendant of its intention to rely

[3 FSM Intrm. 142]

upon 11 F.S.M.C. 931(3), allowing aggregation of amounts involved in the thefts, as its source of jurisdiction, such aggregation will not be allowed.  Fred v. FSM, 3 FSM Intrm. 141, 144 (App. 1987).

Criminal Law and Procedure
     Article IV Section 6 of the FSM Constitution, as implemented by Rule 7(c) of the Rules of Criminal Procedure, requires that the government's reliance upon aggregation to bring an alleged crime within the jurisdictional boundaries of the court be plainly disclosed to the defendant in the information.  Fred v. FSM, 3 FSM Intrm. 141, 144 (App. 1987).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The defendant appeals his convictions of one count each of theft, forgery, conspiracy to commit theft, and of conspiracy to commit forgery.  The issue presented is whether the amount in embezzlement counts which had been dismissed at the close of the government's case for lack of jurisdiction can be added to the amount in the theft count for which the defendant was found guilty in order to reach the court's jurisdictional requirement of $1,000.

     We hold that the aggregation is improper and reverse the conviction of theft.

FACTS
     The amended information accused four defendants of a total of 15 Offenses occurring after the effective date of the National Criminal Code, codified as Title 11 of the Code of the Federated States of Micronesia.  The effective date was July 12, 1981.  These are referred to as the "FSM counts."  The amended information also accused the defendants of 59 offenses occurring prior to the effective date of the National Criminal Code, and are referred to as the "TT counts."  These accusations are made in accordance with the Trust Territory Code.  Ahm Fred was accused only of the four FSM counts of which he was convicted, and of nine of the TT counts which were dismissed.

     The defendants were employees of Mobil Oil, and the allegations all related to activities arising out of that employment with Mobil Oil, the victim.

     Aggregation is permitted under the National Criminal Code: "Amounts involved in thefts committed pursuant to one scheme or cause [sic] of conduct, whether from the same person or several persons, may be aggregated in determining whether an offense has been committed and the grade of the

[3 FSM Intrm. 143]

offense."  11 F.S.M.C. 931(3).

     In order to be theft under the National Criminal Code, the value must  be $1,000 or more. 11 F.S.M.C. 931(1).  The theft count of which the  defendant was convicted alleges the taking of $720.97.

     Neither the amended information or the bill of particulars alleges that the government will rely upon the provision permitting aggregation.  That does not seem to be an oversight because at a number of stages of the trial no mention is made of aggregation, when, if it were intended to rely upon it, it would have been expected to have been mentioned.  The remainder of this recitation of facts will trace the trial in regard to this aspect.

     The amended information named the four defendants, but did not state which defendants were being accused of which counts.  An ordinary reading would lead one to believe that all four were accused of all 74 counts.  This was clarified by a "Supplement to Amended Information" which constituted a bill of particulars, and, for each count stated the defendant or defendants accused together with the invoice number of the transaction at issue.  After the conclusion of the government's case, the government was permitted to amend the bill of particulars by accusing the defendant of two additional TT counts.

     It its opening statement the government asked that the court aggregate the amounts allegedly taken in FSM counts 3 and 5. Defendant Billy Jonas was accused of both of these counts; defendant Ahm Fred only of count 5.

     After the government rested, all TT counts were dismissed.  The defendant then moved the court for an order striking all testimony in regard to those counts. This motion was written and supported by memorandum.  The government, relying on Rule of Evidence 404(b), stated that the testimony related to other crimes in order to show motive, opportunity, intent, preparation, plan, identity, etc. No mention was made by the government that the testimony was to be used for aggregation with FSM count 5. The motion to strike was denied in a written order which contained no mention of aggregation.

     In closing argument the defendant asked that the court find the defendant not guilty and dismiss FSM count 5 on ground that the government had not proved an essential element of the charge - that the amount was sufficient to bring the case within the jurisdiction of the court.  The government responded by asking that the amount involved in its proof of count 5 be aggregated with the FSM counts 3 and 6. When the court indicated its unwillingness to do this because this defendant had never been named as a defendant in those counts by way of the bill of particulars, the government then asked that the amount in the FSM count 5 be aggregated with the TT counts in which the defendant was named.  The court accepted this position, convicted the defendant, and this appeal followed.

HOLDING AND REASONING
     The aggregation is not permitted because the government failed to give

[3 FSM Intrm. 144]

notice of its intention to rely upon that means of bringing the defendant within the jurisdiction of the court in FSM count 5. This failure is not because of a plan or intent of the government.  The record conclusion is justified from an examination of the entire record that there was no intent on the part of the government to surprise the defendant.

     We do not imply that had notice been given the aggregation would have been permitted with amount of the two embezzlements in the TT counts which had been dismissed.  That point need not be reached in the posture of this case. Since the government did not allege it would be relying on aggregation with the TT counts in order to establish theft of more than $1,000 under the FSM count 5, we find that aggregation was improper.  The finding of guilt must therefore be reversed because the amount proved to have been taken, $720.97, is not within the amount required in the definition of theft.  "A person commits the offense of theft if he commits theft of property or services in the value of $1,000 or more." 11 F.S.M.C. 931(1).

     Counsel have not provided to the court, and the court has not found, cases on the question of whether it is necessary to allege that the court's jurisdiction will be invoked through aggregation of the amounts involved in a series of thefts pursuant to one scheme.  In an annotation of cases on the subject, the need for such an allegation is clearly implied.  Annot., 53 A.L.R.3d 423 (1973).

     Other authorities are in accord that aggregation must be alleged:  "And at the present time, the rule is that where the grade of larceny, and consequently, the jurisdiction of the court or the punishment, depends on the value of the property, it is essential that the value be alleged."  50 Am. Jur. 2d Larceny 130 (1970).  "A series of related thefts may frequently be aggregated, so that the defendant may be charged with a single count of grand theft rather than several counts of petty theft."  P. Johnson, Criminal Law 918 n.2 (2d ed. 1981).

     Additional authority is contained in the Constitution and the rules of this court. The FSM Constitution provides, "The defendant in a criminal case has a right ... to be informed of the nature of the accusation ... "  FSM Const. art. IV, 6.  This protection is implemented by Rule 7(c) of the Rules of Criminal Procedure which states, "The information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

     The conviction as it stands is for an offense not charged.  At the time the case was submitted to the trial court for decision the information had one count accusing the defendant of theft.  That is count 5, accusing him of theft of $720.97. In our view the conviction cannot stand for a crime not charged.

     In his appeal the defendant raises a question of the sufficiency of the evidence and whether the guilty plea of one defendant as a conspirator would require that the trial judge declare a mistrial.  We have examined the record in considering these grounds, and find them without merit.

[3 FSM Intrm. 145]

     The conviction of the defendant of count 5 of the amended information is reversed and that count is dismissed.

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