THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as FSM v. Ting Hong Oceanic Enterprises ,
7 FSM Intrm. 578 (Pon. 1996)

[7 FSM Intrm. 578]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

TING HONG OCEANIC ENTERPRISES, CO., LTD.,
Defendant.

CRIMINAL CASE NO. 1994-502

MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Hearing:  July 24, 1996
Decided:  August 6, 1996
Opinion Entered:  September 3, 1996

APPEARANCES:
For the Plaintiff:          Teresa K. Zintgraff, Esq.
                       Assistant Attorney General
                       Office of the FSM Attorney General
                       P.O. Box PS-105
                       Palikir, Pohnpei FM 96941

For the Defendant:     John Hollinrake, Esq.
                       Law Offices of R. Barrie Michelsen
                       P.O. Box 1450
                       Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Criminal Law and Procedure ) Venue
     The venue provision in a criminal case in the FSM is not a constitutional right but rather is provided for under statute and under court rule, which provide for the trial of offenses in the state where committed.  The provisions thus do not apply to occurrences not within any state in the FSM, such as in the EEZ.  FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 578, 580 (Pon. 1996).

Criminal Law and Procedure ) Venue
     The primary purpose of the criminal venue requirement is to prevent government oppression of a defendant by requiring him to defend against a criminal prosecution in a place far from his home, counsel and any witnesses or evidence which may be of help to him in his defense.  FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 578, 580 (Pon. 1996).

[7 FSM Intrm. 579]

Criminal Law and Procedure ) Venue
     Trial of a corporation for a crime committed in the FSM EEZ is appropriate on Pohnpei when the corporation's FSM offices are on Pohnpei and most of its witnesses and its counsel are available on Pohnpei.  FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 578, 580-81 (Pon. 1996).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This matter came before the Court for hearing on July 24, 1996 upon Defendant Ting Hong's previously filed Motion to Dismiss for Lack of Jurisdiction for Improper Venue.  The parties extensively briefed the issue of proper venue for the re-trial of this case.  On August 6, 1996 the Court denied the Defendant Ting Hong's motion to dismiss.  This Memorandum of Decision explains the reasoning of the Court.

     At oral argument it became apparent that neither of the parties contend that the crimes alleged in the information occurred in any state of the FSM.  Therefore the issue for the Court to decide is:  What is the proper venue for crimes wholly committed in the FSM's EEZ?  This issue of proper venue for criminal cases, where no element of the crime is alleged to have occurred within any state of the FSM, appears to be a matter of first impression before this Court.

Facts
     As stipulated to by the parties both in their briefs and in oral argument, on August 24, 1994 the FSS Palikir sighted, boarded and arrested the fishing vessel Horng Yih Fwu #130 at latitude 06E 22.1' N., longitude 149E 08.4' E., a point approximately 60 nautical miles SSW of the island of Pulusuk located in the FSM's EEZ.  At the time of the boarding the maritime surveillance officers observed a number of violations of Title 24 F.S.M.C.  The vessel and crew were brought to Pohnpei where formal charges were brought against the Captain and Fishing Master, the Chief Engineer and Ting Hong.  Those charges are currently before the Court for disposition.

     It is not disputed that the island of Weno, where this Court's Trial Division for Chuuk State sits, is geographically closer to the place of arrest than the island of Pohnpei.  It is also undisputed, and is indeed a matter of public record, that Pohnpei is the location of the corporate office which the Defendant Ting Hong maintains in the FSM and is the location where defendant's legal counsel maintains his law office.  Pohnpei, as stated by the government and not disputed by the defendant, is the location of most of the witnesses needed by the government to maintain the prosecution of this matter.  The defendant has stated to the Court in its oral argument that it intends to call witnesses "from all over."

Discussion
     The island of Pulusuk, the closest island to the locus of the alleged criminal activity, is located in the State of Chuuk.  FSM Const. art. I, 2; 3 TTC 1 (4).  The territorial waters of Chuuk State extend outward from appropriate island baselines for a distance of 12 miles.  FSM Const. art. IX, 2(m); FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 69-70 (Pon. 1993).  As noted above the location of the alleged offense is a point 60 nautical miles SSW of Pulusuk.  The parties stipulate, and this Court finds, that all of the elements of the crimes charged occurred in the FSM's EEZ and not within any state of the FSM.

[7 FSM Intrm. 580]

     The parties have argued diverging views of what is the proper venue in this case given the facts before the Court.  The government urges the Court to find that this is a case in admiralty and the Court should adopt the provisions of 6 F.S.M.C. 302 and find that the defendant can be tried wherever it can be served with process, and that this defendant can be served with process in Pohnpei State because this is the place designated by it for that purpose.  Alternatively, the government would have the Court judicially adopt the U.S. statutory provision having to do with crimes not occurring in any district, 18 U.S.C. 3832.  The defendant, in its brief and argument, urges the Court to adopt the ruling in United States v. Anderson, 328 U.S. 699, 703, 66 S. Ct. 1213, 1216, 90 L. Ed. 1529, 1532 (1946) by looking to the locus delicti of the offense and determining venue therefrom.  All of these approaches have their problems.

     In order for the Court to accept the government's argument for placing venue for the retrial of this case in Pohnpei, it would be necessary for it to extend to criminal cases the admiralty jurisdiction conferred upon it by FSM Const. art. XI, 6(a). The Court is not convinced that this is appropriate in this case.

     It is apparent from the facts as stated above, that this case does not involve an FSM flagged vessel.  The Court has been unable to find any authority for the argument for extension of admiralty to violations of Chapter 5 of Title 24 F.S.M.C. Thus, the grounds urged by the government for this extension do not apply.  The Court also will not, by decisional law, adopt the statutory law of the United States as regards venue for crimes not occurring in any district.  If the Congress wishes to adopt for the FSM the provisions of 18 U.S.C. 3238 or some other venue provision, it may do so by appropriate legislation.

     Defendant's reliance on a theory of venue which requires the determination of locus delicti (place of the offense) has its own problems.  The offenses alleged, since they occurred in the FSM's EEZ, have no logical connection to any particular state within the FSM.  Defendant's citation to Anderson, 328 U.S. 699, 66 S. Ct. 1213, 84 L. Ed. 1529 which requires the finding of the locus delicti for the determination of venue is inappropriate.  Locus delicti is determined from the nature of the crime alleged and the location of the act or acts constituting it.  No criminal acts were here alleged to have occurred within any state.  Defendant concedes that whatever actions occurred, occurred in the EEZ and not in the State of Chuuk, and thus, there is no locus delicti within any state of the FSM.

     The Court notes that the provision for proper venue in a criminal case in the FSM is not a right guaranteed by the Constitution but rather is provided for under statute and under court rule.  11 F.S.M.C. 106; FSM Crim. R. 18.  The provisions of 11 F.S.M.C. 106, and of FSM Criminal Rule 18, which provide for the trial of offenses in the state where committed, are not applicable to the issue of proper venue in this case, because, the place of the alleged occurrence is in the FSM's EEZ and thus not within any state of the FSM.  Without guidance from either statute or rule, the Court then is left to decide where the proper place for the trial of this case is.

     The primary purpose of the criminal venue requirement is to prevent the oppression of a defendant by the government requiring him to defend against a criminal prosecution in a place far from his home, counsel and any witnesses and/or evidence which may be of help to him in his defense.  "The provision for trial in the vicinity of the crime is a safeguard against unfairness and hardship involved when accused is prosecuted in a remote place." Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 84 S. Ct. 769, 772, 11 L. Ed. 2d 674, 679 (1964); 22 C.J.S. Criminal Law 176.

The venue provisions also seek to avoid the prejudice to a defendant's case that might result from facing trial where it would be difficult for him to obtain witnesses in preparation for trial.  Lastly, since most trials take place in the district where the

[7 FSM Intrm. 581]

defendant resides, the venue provisions try to reduce the difficulties to a defendant that would be caused by a trial at a distance from his home and friends.

United States v. DiJames, 731 F.2d 758, 762 (11th Cir. 1984).  Contrary to this, the defendant has argued that the State of Chuuk, a place far from its home (office), any witnesses needed for its defense and far from its legal counsel is the proper venue.
 
     The Court has weighed each of these factors and, when examined in this light, it becomes clear that the venue for the trial of this case should be in the Trial Division located in Pohnpei.  The Court has balanced the potential harm to this defendant from being required to proceed to trial in Pohnpei against the substantial inconvenience and financial burdens to both parties, their counsel, and the majority of witnesses which would be caused by transferring the entire trial of this case to Chuuk, and, has concluded that the defendant will suffer no harm from this ruling and that the equities vastly favor the retention of this case for trial in Pohnpei.

     Finally, Defendant Ting Hong has not made any showing of potential harm to it by being required to proceed with this matter in the Supreme Court's Trial Division in Pohnpei State.  In fact, it would appear that the opposite is true because the majority of the resources useful to Ting Hong in its defense are located in Pohnpei.  If, however, the defendant can demonstrate any potential prejudice to it because of the unavailability of material witnesses or evidence in Pohnpei, and which can only be obtained through hearings in Chuuk, the Court will promptly arrange to hear such testimony or receive such evidence in the State of Chuuk.