FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Federated States of Micronesia v Wainit, 13 FSM Intrm. 433 (Chk. 2005)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

TADASHI WAINIT,
Defendant.

__________________________________________

CRIMINAL CASE NO. 2004-1512

ORDER DISPOSING OF PRETRIAL MOTIONS AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: September 21, 2005

APPEARANCES:

For the Plaintiff:
Matthew L. Olmsted, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant:
Peter J. Stelzer, Esq.
Office of the Public Defender
P.O. Box 425
Colonia, Yap FM 96943

* * * *

HEADNOTES

Criminal Law and Procedure - Motions; Criminal Law and Procedure - Prosecutors
A motion to disqualify the Attorney General’s Office is a preliminary motion, which ought to be brought fairly early in the proceedings. Its filing should not wait until the deadline for filing all other pretrial motions. FSM v. Wainit, 13 FSM Intrm. 433, 438 (Chk. 2005).

Criminal Law and Procedure - Motions
When the court has assumed, for the purpose of deciding the motion, that the defendant’s allegations are true, the defendant’s request for an evidentiary hearing to establish those allegations to support his motion will be denied. FSM v. Wainit, 13 FSM Intrm. 433, 439 n.1 (Chk. 2005).

Criminal Law and Procedure - Information
When the differences between two informations are sufficient to show that the prosecutor who signed the new information, had exercised the considered, independent judgment that the court asked to be present in any refiled information, that most of the wording was drawn from the earlier information, presumed invalid for the purpose of the motion, is not a sufficient ground to invalidate the information. That a new information is based on or drawn from an earlier invalid information does not invalidate the new information. FSM v. Wainit, 13 FSM Intrm. 433, 439 (Chk. 2005).

Criminal Law and Procedure - Prosecutors
The question of disqualification of counsel, including prosecutors, is largely within the trial court’s discretion. FSM v. Wainit, 13 FSM Intrm. 433, 440 (Chk. 2005).

Constitutional Law - Judicial Guidance Clause; Criminal Law and Procedure - Prosecutors
The court is required to make decisions consistent with the FSM’s social and geographical configuration. While the FSM is a country of large geographical distances, it has a small land base, a small population, and limited resources. Likewise, it has a small government legal office and few other lawyers available. The court, consistent with the FSM’s social and geographical configuration, thus should not order the government to go outside its Department of Justice for a prosecutor unless it is absolutely necessary. The disqualification of all lawyers in a government office when one of them is disqualified is a question within the trial court’s discretion. FSM v. Wainit, 13 FSM Intrm. 433, 440 (Chk. 2005).

Attorney and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
The court will not establish a principle that the Department of Justice cannot prosecute a defendant accused of committing an offense against Department of Justice personnel. FSM v. Wainit, 13 FSM Intrm. 433, 440 (Chk. 2005).

Criminal Law and Procedure - Motions
Considering that appointments of Acting Secretaries are a matter of public record and that defense counsel’s office has two investigators and other staff on the Public Defenders’ payroll on Pohnpei, the accuracy of the government’s representation ought to be readily verifiable by the defense. To put the Public Defenders’ Office to the expense of flying defense counsel to Chuuk from Yap and of flying witnesses from Pohnpei to Chuuk, to put the court to the expense of flying the judge to Chuuk from Yap, and to put the government to the expense of flying a prosecutor to Chuuk to hold an evidentiary hearing merely to establish when someone was Acting Secretary would be a waste of scarce resources and the defendant’s request for an evidentiary hearing to establish those dates will therefore be denied. FSM v. Wainit, 13 FSM Intrm. 433, 441 n.3 (Chk. 2005).

Attorney and Client - Disqualification of Counsel
Under the Model Rules of Professional Responsibility (adopted by FSM GCO 1983-2), a government lawyer’s disqualification is not imputed to the others in that government office. FSM v. Wainit, 13 FSM Intrm. 433, 442 n.5 (Chk. 2005).

Attorney and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
Individual rather than vicarious disqualification is the general rule but individual disqualification must be complete and any participation or anything less than complete abstention by a disqualified member of a prosecutor’s office in a supervisory capacity would warrant the entire office’s disqualification. FSM v. Wainit, 13 FSM Intrm. 433, 442 (Chk. 2005).

Attorney and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
The entire FSM Department of Justice will not be disqualified (and by implication the information dismissed) because one of its members will be a witness in the case. FSM v. Wainit, 13 FSM Intrm. 433, 443 (Chk. 2005).

Attorney and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by FSM MRPC Rule 1.7 or Rule 1.9. Rules 1.7 and 1.9 deal with conflicts of interest. That members of the prosecutor’s office are witnesses does not disqualify the entire office. FSM v. Wainit, 13 FSM Intrm. 433, 443 (Chk. 2005).

Attorney and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
Although a lawyer’s conflicts are usually imputed to all in the lawyer’s office or firm so that one member’s disqualification requires the entire firm’s disqualification, the disqualification of all government attorneys in an office, unlike private law firms, is not required when one is disqualified. This different treatment for private and government law offices stems, in part, from government attorneys not being bound by a common profit motive as are lawyers in private practice, and in part because a prosecutor’s duty is to seek justice, not merely to convict. FSM v. Wainit, 13 FSM Intrm. 433, 443 & n.6 (Chk. 2005).

Criminal Law and Procedure - Discovery
Criminal Rule 16(b)(1)(C) provides that the defendant, on the government’s request, shall state the nature of any defense which he intends to use at trial and the name and address of any person whom the defendant intends to call in support thereof. When the government has properly made such a request and the defendant has not responded and his failure to comply 16 has been brought to the court’s attention, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. FSM v. Wainit, 13 FSM Intrm. 433, 443-44 (Chk. 2005).

Constitutional Law - Declaration of Rights
The FSM Constitution’s Declaration of Rights search and seizure provision, FSM Const. art. IV, § 5, is similar to and drawn from a provision in the U.S. Constitution’s Bill of Rights, U.S. Const. amend. IV. When an FSM Declaration of Rights provision is patterned after a U.S. Constitution provision, U.S. authority may be consulted to understand its meaning. FSM v. Wainit, 13 FSM Intrm. 433, 444 (Chk. 2005).

Constitutional Law - Interpretation
The similarities of the FSM and the U.S. Constitutions mandate that the court give particular consideration to U.S. constitutional analysis at the time of the Micronesian Constitutional Convention and of the Constitution’s adoption. FSM v. Wainit, 13 FSM Intrm. 433, 444-45 (Chk. 2005).

Civil Rights; Criminal Law and Procedure - Defenses; Search and Seizure
The remedy for a victim of an illegal search is not the self-help of resistance. Resistance to such authority to search and seize by self-help is not recognized in courts of law. Whoever suffers the imposition of an unlawful police search has the assurance that any evidence so acquired is rendered inadmissible in a subsequent criminal trial by the exclusionary rule. And in any event damage remedies are available in the courts for violations of constitutional rights stemming from either an unlawful search or arrest. These remedies are present in the FSM. FSM v. Wainit, 13 FSM Intrm. 433, 446 (Chk. 2005).

Criminal Law and Procedure - Defenses; Search and Seizure
The reasoning behind the principle barring physical resistance to an invalid search warrant is that society has an interest in securing for its members the right to be free from unreasonable searches and seizures. Society also has an interest, however, in the orderly settlement of disputes between citizens and their government; it has an especially strong interest in minimizing the use of violent self-help in the resolution of those disputes. A proper accommodation of those interests requires that a person claiming to be aggrieved by a search conducted by a peace officer pursuant to an allegedly invalid warrant test that claim in a court of law and not forcibly resist the execution of the warrant at the place of search. This reasoning resonates even more strongly in Micronesia, where society has customarily prized peaceful and orderly resolution of disputes much higher than in the United States. FSM v. Wainit, 13 FSM Intrm. 433, 446 (Chk. 2005).

Criminal Law and Procedure - Defenses; Search and Seizure
At the time the FSM Constitution was framed and adopted, the prevailing U.S. constitutional analysis of its constitutional search and seizure provision, which the FSM constitutional provision was modeled after, was that persons had no right to resist a search warrant even if that warrant was invalid. FSM v. Wainit, 13 FSM Intrm. 433, 446 (Chk. 2005).

Criminal Law and Procedure - Defenses; Search and Seizure
In the FSM, a person has no right to resist the execution of a search warrant by police or government agents even if the search warrant is later shown to be invalid. Consequently, a defendant may not assert as a defense that he has no liability and may resist a search warrant if he believes it is, or if it is, an invalid warrant. The law does not permit this. The search warrant’s validity is irrelevant to the case and the court will refuse to hear testimony concerning it. FSM v. Wainit, 13 FSM Intrm. 433, 446 (Chk. 2005).

Criminal Law and Procedure - Defenses; Search and Seizure
As a matter of law, a search warrant’s invalidity is not a defense under 11 F.S.M.C. 107(1) because it is not a fact or set of facts which removes or mitigates penal liability. Even a belief that a search warrant is invalid does not remove or mitigate penal liability. If a person believes that he has a legal right to resist an invalid search warrant that is a mistake or ignorance of law, not a mistake (or ignorance) of fact, and that is not a defense under section 301A(3). FSM v. Wainit, 13 FSM Intrm. 433, 446 (Chk. 2005).

Criminal Law and Procedure - Defenses
Only ignorance or mistake of fact is a defense under 11 F.S.M.C. 301A(3). A mistake of, or ignorance of, law is not a defense under the FSM statute. Nor is it generally a defense to penal liability. FSM v. Wainit, 13 FSM Intrm. 433, 447 (Chk. 2005).

Criminal Law and Procedure - Defenses
A criminal defendant may not use mistake or ignorance of the law as a defense. He therefore may not use as a defense a mistaken belief that he had a legal right to resist a search warrant that he thought was invalid (even if it should later be shown to be invalid). FSM v. Wainit, 13 FSM Intrm. 433, 447 (Chk. 2005).

Criminal Law and Procedure - Defenses
Subsection 301A(5) is a codified version of the common law defense of duress. Duress, under the FSM statute, occurs when A causes B to believe that B would suffer immediate, life-threatening injury unless B acts as ordered by A, and B acts and a crime is committed against C. Duress is a defense similar to self-defense except that with self-defense the defendant’s response is an attack on the threatening party, while the duress defense applies when the defendant saves himself by doing the threatener’s bidding by harming another. FSM v. Wainit, 13 FSM Intrm. 433, 447 (Chk. 2005).

Criminal Law and Procedure - Defenses
Duress is a pertinent theory of defense when a third party, that is, a person other than the victim, is the coercer. FSM v. Wainit, 13 FSM Intrm. 433, 447 (Chk. 2005).

Criminal Law and Procedure - Defenses
Subsection 107(3) makes it a complete defense to a criminal charge that at the time of engaging in the wrongful conduct the defendant was legally incapable of committing a crime as defined in 11 F.S.M.C. 301A. Legal incapacity to commit a crime is often thought to include defenses such as insanity, mental incapacity, infancy, automatism, sometimes intoxication, and crimes where a certain status, not held by the defendant, is a necessary element of the offense. FSM v. Wainit, 13 FSM Intrm. 433, 447 (Chk. 2005).

Criminal Law and Procedure - Defenses
If a statute makes it an offense for a government employee to commit a certain act, a person who did not have the status of a government employee would be legally incapable of violating the statute. Usually this is analyzed as the inability to prove an element of the offense. FSM v. Wainit, 13 FSM Intrm. 433, 447 n.8 (Chk. 2005).

Criminal Law and Procedure - Defenses
Section 301A lists five instances where a person may be legally incapable of committing a crime - infancy; persons under another’s legal conservatorship; persons whose conduct was the result of ignorance or mistake of fact, disproving criminal intent; persons who engaged in the wrongful conduct without being conscious; and persons whose actions were the result of life-threatening duress. FSM v. Wainit, 13 FSM Intrm. 433, 447 (Chk. 2005).

Criminal Law and Procedure - Defenses; Search and Seizure
A search warrant’s invalidity, or a belief it is invalid, is not a defense to charges stemming from resistance to the search warrant’s execution. FSM v. Wainit, 13 FSM Intrm. 433, 447 (Chk. 2005).

Criminal Law and Procedure - Defenses; Search and Seizure
Under FSM constitutional jurisprudence, a person has no right, with some possible narrow exception which the court has not decided whether it is a viable defense, to resist a court-issued search warrant even if that search warrant turns out to be invalid. FSM v. Wainit, 13 FSM Intrm. 433, 448 (Chk. 2005).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

This comes before the court on 1) defendant Tadashi Wainit’s Motion to Dismiss Complaint; Motion to Disqualify the Attorney General’s Office; Request for Evidentiary Hearing with supporting exhibit, filed June 13, 2005; 2) the government’s Counter-Motion to Preclude Defense of Self-help, with supporting exhibits, filed June 21, 2005; 3) the Government’s Opposition to Defendant’s Motion to Dismiss Complaint; Motion to Disqualify the Attorney General’s Office; Request for Evidentiary Hearing, filed June 22, 2005; and 4) Wainit’s Response to Government’s Countermotion to Preclude Defenses, filed July 7, 2005. Wainit’s motion is denied. The government’s motion is granted in part and denied in part. The court’s reasons follow.

I. Wainit’s Motion

A. Preliminaries

Wainit’s motion to disqualify the Attorney General’s Office is a preliminary motion, which ought to have been brought fairly early in the proceedings, see generally T.J. Griffin, Annotation, Disqualification of Prosecuting Attorney on Account of Relationship with Accused, 31 A.L.R.3d 953, 989 (1970) (generally, a motion to disqualify a prosecutor must be made at the earliest possible time, and failure to do so may constitute a waiver of the objection), as was Wainit’s motion to recuse the sitting justice, see, e.g., Tolenoa v. Kosrae, 11 FSM Intrm. 179, 184 (Kos. S. Ct. Tr. 2002). The recusal and disqualification motions should have been filed sooner and should not have waited until the deadline for all other pretrial motions. The motion to recuse was denied by an earlier order. FSM v. Wainit, 13 FSM Intrm. 293 (Chk. 2005).

Wainit asks the court to disqualify the FSM Department of Justice and dismiss the information because, in his view, the information was unduly and improperly influenced by witnesses and alleged victims; the information was signed by an attorney with close personal and professional ties to witnesses and alleged victims; the attorney who signed the information and the attorney who is prosecuting the case have both been overseen professionally by witnesses and alleged victims; an essential witness is an FSM Assistant Attorney General; and the FSM Attorney General’s Office is too closely aligned with victims and witnesses to impartially evaluate and prosecute the case. Wainit asks the court to hold an evidentiary hearing so that these allegations can be supported, to dismiss the information in this case, and to disqualify the FSM Department of Justice from prosecuting this or any later cases stemming from the events alleged in this case.

B. Allegations and Assertions

The information alleges that Wainit committed certain offenses against and resisted national police officers who were attempting to execute a search warrant at his home on Udot in Truk Lagoon on Friday, September 6, 2002. Among those present then were FSM Assistant Attorneys General Catherine L. Wiehe and Matthew W. Crabtree.

On Monday, September 9, 2002 (the next business day), another FSM Assistant Attorney General filed a 94-page, 117-count information against Wainit and two others based on the September 6th incident and named Assistant Attorneys General Wiehe and Crabtree and eleven national police officers as victims. That information was docketed as Criminal Case No. 2002-1501. Wainit asserts that the unmistakable inference to be drawn from the short time span between the incident and the information’s filing and from the information’s physical length is that Wiehe and Crabtree had considerable, and impermissible, sway in determining what facts were alleged, defendants named, and charges brought. Wainit alleges that an evidentiary hearing will show that Wiehe and Crabtree participated as prosecutors in the formulation of the information and the charges prosecuted.

Wainit asserts that this is important because, although Criminal Case No. 2002-1501 was later dismissed without prejudice on procedural grounds, FSM v. Wainit, 12 FSM Intrm. 376, 383-84 (Chk. 2004), it was refiled as this case, Criminal Case No. 2004-1512. He asserts that the information in this case is a "cut and paste" version of the Criminal Case No. 2002-1501 information. Wainit contends that an evidentiary hearing would further demonstrate that Wiehe and Crabtree participated as prosecutors in preparing the Criminal Case No. 2002-1501 information, a function that they could not exercise since they were alleged victims, and that, since Wiehe’s and Crabtree’s participation would make Criminal Case No. 2002-1501's information invalid, it should also make this case’s cut-and-paste information invalid and subject to dismissal.

C. Information’s Imputed Invalidity

Assuming, for the sake of argument, that either Wiehe, or Crabtree, or both, participated in the crafting of the information in Criminal Case No. 2002-1501 and that that information is invalid on that ground, the court concludes that that would not make the information in this case invalid.

The information in this case was signed by R. Anthony Welch, who was not present on Udot on September 6, 2002 and had no involvement with the Criminal Case No. 2002-1501 information. This case’s information names only two defendants instead of the three in Criminal Case No. 2002-1501. There are 22 counts against Wainit in this information. There were 39 counts against him in Criminal Case No. 2002-1501. None of the kidnapping charges are present in this information. Wainit is also not charged with committing any offenses against Wiehe and Crabtree in this information although he was charged with such offenses in Criminal Case No. 2002-1501. Wainit sees some devious motive in this change. He contends that the Department of Justice is trying to gain some advantage or insulate the department from any disqualification by not charging Wainit with any offenses against Wiehe and Crabtree and then claiming that they were not victims.

Wiehe and Crabtree are nonetheless described as victims and witnesses in this information. Although Wainit is not charged with any offenses against Wiehe and Crabtree, the court considers that omission to have no bearing on the analysis of Wainit’s motion. For the purpose of Wainit’s motion, the court will consider Wiehe and Crabtree to be both witnesses and victims.

No inference can be drawn from the virtually identical language in the counts in this information to counts in Criminal Case No. 2002-1501's information. The language in each count merely parrots the statutory language under which the charges are brought. As such, they would be expected to be identical for charges that are the same.

The factual allegations in this information are substantially the same in both informations. In this information, the group of Udot people that gathered when the government tried to execute the search warrant on September 6, 2002 is sometimes referred to as a crowd and at other times as a mob. In the Criminal Case No. 2002-1502 information it was always referred to as a mob. Also in this information, the estimated size of the crowd or mob has been reduced. The present information’s factual allegations were obviously drawn from those in the Criminal Case No. 2002-1501 information. It contains an inadvertent characterization of an actor at the scene on Udot as a defendant, who had been a defendant in the first information, but who was not charged in this information. Assuming that Welch had the same material evidence available to him (from the same witnesses, perhaps minus Wiehe and Crabtree), it is not likely that the recited allegations would vary greatly been the two informations.

The differences between the two informations are sufficient to show that Welch, the prosecutor who signed this information, had exercised the considered, independent judgment that the court asked to be present in any refiled information. That most of the wording was drawn from an information presumed invalid for the purpose of this motion is not a sufficient ground to invalidate this information. That a new information is based on or drawn from an earlier invalid information does not invalidate the new information. Cf. United States ex rel. O’Neill v. Burke, 379 F.2d 656, 659 (7th Cir. 1967) ("It is immaterial that the information was based in part on a concededly invalid complaint.").

D. Departmental Disqualification

Wainit contends that Welch, the prosecutor that signed and filed the information in this case (he did not sign the Criminal Case No. 2002-1501 information), should be disqualified because, in Wainit’s view, Welch had a close personal and professional relationship with alleged victims and witnesses. Disqualification of Welch would then require dismissal of this information. He further contends that Welch and Matthew L. Olmsted, the current prosecutor, and the entire FSM Department of Justice should be disqualified from prosecuting any charges arising from the September 6, 2002 incident because the entire Department has, at one time or another, been under the supervisory or administrative control of an alleged victim or witness (Crabtree), or of Welch. Presumably, although he does not explicitly state it, Wainit is asking for the appointment of an independent prosecutor.

The question of disqualification of counsel, including prosecutors, is largely within the trial court’s discretion. See, e.g., Office of the Public Defender v. FSM Supreme Court, 4 FSM Intrm. 307, 309 (App. 1990); United States v. Lorenzo, 995 F.2d 1448, 1453 (9th Cir. 1993) (even cases that order disqualification recognize that the question is largely within the trial court’s discretion); People v. Garcia, 698 P.2d 801, 806 (Colo. 1985).

Wainit seeks to disqualify Welch on the ground that Wiehe and Crabtree were Welch’s co-workers at the Department of Justice. Wainit contends that since the FSM Attorney General’s Office has only seven or eight attorneys, Welch must have worked side-by-side with Wiehe and Crabtree, and they and Welch must have socialized with each other (and that they certainly would have done so at official functions), that their children must have been close, and that Welch’s co-workers being victims of actions that his co-workers characterized as horrendous would affect Welch so emotionally as to disqualify him, and that since this case was brought by Welch, he must be disqualified and the information dismissed.

Welch, as Chief of Litigation, was Wiehe’s and Crabtree’s immediate supervisor. Neither of them ever supervised him. Olmsted, who had not arrived in the FSM when this information was filed, was assigned to the Law Division in the Attorney General’s Office. Crabtree never supervised or had administrative authority over Olmsted. Wainit’s contention that Welch must have been close to Wiehe and Crabtree and that Welch must have been emotionally affected by any allegation that Wainit committed offenses against Wiehe and Crabtree is an argument that Welch (and by extension the Department of Justice) must be disqualified because the Attorney general’s Office is a small office. That contention will not stand and the allegation is far too speculative to give it support.

The court is required to make decisions "consistent with . . . the [FSM’s] social and geographical configuration." FSM Const. art. XI, § 11. While the FSM is a country of large geographical distances, it has a small land base, a small population, and limited resources. Likewise, it has a small government legal office and few other lawyers available. The court, consistent with the FSM’s social and geographical configuration, thus should not order the government to go outside its Department of Justice for a prosecutor unless it is absolutely necessary. The disqualification of all lawyers in a government office when one of them is disqualified is a question within the trial court’s discretion. Office of the Public Defender v. Trial Division, 4 FSM Intrm. 252, 254 (App. 1990) (trial court did not abuse its discretion in refusing to disqualify all lawyers in Public Defenders’ Office when one was disqualified).

The court will not establish a principle that the Department of Justice cannot prosecute a defendant accused of committing an offense against Department of Justice personnel. Therefore the court will not disqualify Welch because he worked in the same office as Wiehe and Crabtree or disqualify any and all other personnel in the entire Department of Justice, past, present, and future, and order the case dismissed.

Furthermore, when Criminal Case No. 2002-1501 was dismissed without prejudice on March 10, 2004, the court ordered that:

If, as is likely, some charges are refiled for the September 6, 2002 Udot incident, they must be filed by a prosecutor not under the supervision of either disqualified attorney (Wiehe and Crabtree), and the files in both this case and any refiled case must be kept safely segregated from any files which a disqualified attorney may have access to. Furthermore, any prosecutor may have no more contact with Wiehe and Crabtree concerning this matter other than the normal contact between a prosecutor and a victim-witness. A memorandum stating these restrictions shall be inserted in each file, if it has not been done already. The government shall file, no later April 1, 2004, a certificate that it has complied with this order.

Wainit, 12 FSM Intrm. at 384. Although it is unclear whether such a certificate was prepared, Wainit’s stance is that the court must presume that the Department of Justice personnel deliberately disobeyed this order, although by its own terms the order’s effect continued and did not end when Criminal Case No. 2002-1501 was dismissed (which was by the same order). However, the Attorney General’s Office apparently took the order one step further and banned all communication by a prosecutor with Wiehe and Crabtree about the case, instead of allowing the normal contact between a prosecutor and a victim-witness.

Wainit also contends that Welch, Olmsted, and the entire FSM Department of Justice must be disqualified because Crabtree was Acting Secretary of Justice for awhile. Although some may harbor doubts about the wisdom of making Crabtree Acting Secretary of Justice, this was done after the March 10, 2004 order segregating the Wainit files and restricting the prosecutor’s contact with Wiehe and Crabtree about this matter. Crabtree was only briefly Acting Secretary of Justice in August, 2004. Wainit has made no showing that this order was ever violated, either when Crabtree was Acting Secretary or at any other time.

In Fox v. Shapiro, 375 N.Y.S.2d 945, 950-51 (N.Y. Sup. Ct. 1975) when a newly-appointed district attorney, after his appointment to, and before his assumption of, that office, made detailed arrangements with the office staff to isolate himself from the files and staff members with respect to cases he was disqualified from, his assistant attorneys were not disqualified from prosecuting those cases. The order isolating Crabtree from this case was made, in place, and implemented well before Crabtree ever assumed the Acting Secretary’s position, and Crabtree, as well as others in the Department, were aware of the order. This case is thus analogous to Fox v. Shapiro and easily distinguishable from those cases which the court earlier cited and relied upon, see Wainit, 12 FSM Intrm. at 380-83 and the cases cited therein, which favored or required disqualification of an office if the supervisor or administrator of that was disqualified and denied it when the disqualified office member was not the prosecutor’s supervisor. "[I]ndividual rather than vicarious disqualification is the general rule" but "individual disqualification must be complete" and any participation or anything less than complete abstention by a disqualified member of a prosecutor’s office in a supervisory capacity would warrant disqualification of the entire office. Pisa v. Commonwealth, 393 N.E.2d 386, 388-89 (Mass. 1979).

There is no showing that once Crabtree held the supervisory position of Acting Secretary that he did anything but abstain from involvement with this case. The Department of Justice will not be disqualified because Crabtree was briefly Acting Secretary of Justice.

Lastly, Wainit contends that Crabtree’s stint as Acting Secretary of Justice also requires the disqualification of the entire FSM Department of Justice (and by implication dismissal of the information) since Crabtree will be a witness in this case. This contention also fails. Crabtree was subject to the court order isolating him from the case when he was Acting Secretary. There is no indication this order was violated. Crabtree only briefly held the Acting Secretary position.

Furthermore, "[a] lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9." FSM MRPC R. 3.7(b). Rules 1.7 and 1.9 deal with conflicts of interest. Although a lawyer’s conflicts are usually imputed to all in the lawyer’s office or firm, so that one member’s disqualification requires the entire firm’s disqualification, FSM MRPC R. 1.10(a), the disqualification of all government attorneys in an office, unlike private law firms, is not required when one is disqualified. In re Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993) (rules for vicarious disqualification of attorneys in the same law firm do not apply to government lawyers; disqualification of one government office member is not imputed to the other members); FSM MRPC R. 1.11. That members of the prosecutor’s office are witnesses does not disqualify the entire office. United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir. 1986); Goldsmith v. Superior Court, 386 N.E.2d 942, 945 (Ind. 1979). Crabtree’s status as a witness and his time as Acting Secretary do not, under the circumstances, warrant disqualification of the FSM Department of Justice.

E. Summary

Wainit’s motion to disqualify Welch, the FSM Assistant Attorney General who signed the information in this case, to disqualify Olmsted, the current prosecutor in this case, to disqualify the entire FSM Department of Justice, and to dismiss the information is denied. The request for an evidentiary hearing is denied.

III. Government’s Countermotion

The government’s June 21, 2005 countermotion, which is essentially a motion in limine, asks that the court preclude Wainit from asserting as a defense that the search warrant was invalid and that therefore he could engage in self-help by resisting and obstructing the search warrant’s execution. The FSM has two grounds for this motion. One is that Wainit has never responded to the government’s Rule 16(b) discovery request. The second is based on the court’s earlier reasoning and conclusion that "a person has no right, with some possible narrow exception not now alleged to have occurred here, to resist a court-issued search warrant even if that search warrant turns out to be invalid," FSM v. Wainit, 11 FSM Intrm. 424, 436 (Chk. 2003), when this issue about the September 6, 2002 incident arose before.

A. Discovery Procedure

Criminal Procedure Rule 16(b)(1)(C) provides that the defendant, on the government’s request, "shall state the nature of any defense which he intends to use at trial and the name and address of any person whom the defendant intends to call in support thereof." The government properly made such a request. Wainit has not responded. When it has been brought to the court’s attention that a party has failed to comply with Rule 16, "the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances." FSM Crim. R. 16(d)(2).

Since no trial date is set, the court will decline to grant the requested sanction of barring the self-help defense on this procedural ground and instead grant lesser relief. Wainit shall respond to the government’s March 24, 2005 discovery request no later than October 31, 2005.

B. Search Warrant Invalidity as a Defense

1. Parties’ Positions

The government contends that the court should adopt its earlier reasoning in Criminal Case No. 2002-1501, which was based on FSM Constitutional jurisprudence and Micronesian customary preference for peaceful dispute resolution, Wainit, 11 FSM Intrm. at 434-37, and preclude any possible self-help defense by Wainit since no person has a right to resist a court-issued search warrant even if that search warrant later turns out to be invalid.

Wainit asserts that this is a new case; only the information is before the court; that when the issue was before the court in Criminal Case No. 2002-1501 it was in a different posture - it came before the court on a defense motion to rule on the search warrant’s validity; that at that time Wainit only questioned the warrant’s validity on September 6, 2002, and not its validity on September 5, 2002 and that he does not make that concession now in this case.

Wainit relies on four statutory provisions, 11 F.S.M.C. 107(1); 11 F.S.M.C. 107(3); 11 F.S.M.C. 301A(3); 11 F.S.M.C. 301A(5), that, in his view, permit him to pursue the defense that the government wants precluded. 11 F.S.M.C. 107(1) merely states that "[a] defense is a fact or set of facts which removes or mitigates penal liability." 11 F.S.M.C. 107(3) provides that "[i]t is a complete defense to a criminal charge that at the time of engaging in the wrongful conduct the defendant was legally incapable of committing a crime as defined in chapter 3, section 301A of this title." Wainit cites two subsections of section 301A as specifically allowing this type of evidence at his trial. Those two subsections provide that "[a]ll persons are capable of committing crimes except the following: . . . (3) Persons whose conduct was a result of an ignorance or mistake of fact, which disproves criminal intent . . . (5) Persons whose actions are a result of duress such that they had reasonable cause to and did believe that they would suffer immediate, life threatening injury if they refused to act." 11 F.S.M.C. 301A.

2. Analysis

The FSM Constitution’s Declaration of Rights search and seizure provision, FSM Const. art. IV, § 5, is similar to and drawn from a provision in the U.S. Constitution’s Bill of Rights, U.S. Const. amend. IV. FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001); FSM v. Rodriquez, 3 FSM Intrm. 385, 386 (Pon. 1988); Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985). When an FSM Declaration of Rights provision is patterned after a U.S. Constitution provision, U.S. authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000); FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999); Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986); Tosie v. Tosie, 1 FSM Intrm. 149, 154 (Kos. 1982). The similarities of the FSM and the U.S. Constitutions mandate that the FSM Supreme Court will give particular consideration to U.S. constitutional analysis at the time of the Micronesian Constitutional Convention and of the Constitution’s adoption. Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990); Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984); FSM v. Skico, Ltd. (II), 7 FSM Intrm. 555, 556-57 (Chk. 1996); Suldan v. FSM (II), 1 FSM Intrm. 339, 345 (Pon. 1983); see also Aisek v. Foreign Inv. Bd., 2 FSM Intrm. 95, 98 (Pon. 1985).

In United States v. Ferrone, 438 F.2d 381 (3d Cir.), cert. denied, 402 U.S. 1008 (1971), the court held that

The development of legal safeguards in the Fourth, Fifth, Sixth and Fourteenth Amendment fields in recent years has provided the victim of an unlawful search with realistic and orderly legal alternatives to physical resistance. Indeed, since the validity of written process is readily susceptible to judicial review, it is doubtful whether resistance to written process can ever be justified today, absent a showing of transparent invalidity. This argument is particularly forceful when applied to the execution of search warrants, where resistance often leads to violence and physical injury. A public officer supported by written process has a right to expect that citizens will respond peaceably, that neither his life nor those of other parties will be endangered, and that any dispute will be resolved through legal means.

Id. at 390 (footnote omitted). The Ferrone court added that "[w]e do not, however, mean to suggest that the ‘transparent invalidity’ exception applies to the rule we lay down today in connection with the execution of search warrants. It does not." Id. at n.20. The Ferrone court ruled that "a person does not have a right to forcibly resist the execution of a search warrant by a peace officer or government agent, even though that warrant may subsequently be held to be invalid." Id. at 390. The court also noted that it did not decide whether there were "some unlawful searches, with or without warrant, the circumstances of which would be so provocative to a reasonable man that the seriousness of the offense of resistance ought to be mitigated as a result of such provocation." Id. at n.19(c).

The defendant in United States v. Peifer, 474 F. Supp. 498 (E.D. Pa. 1979) was tried for obstructing and resisting a U.S. marshal in his execution of a search warrant which the defendant claimed was invalid. The court refused to hear testimony concerning the validity of the search warrant. Id. at 504. On a motion for judgment notwithstanding the verdict or alternatively for a new trial, the court ruled that the search warrant’s validity was irrelevant and disallowing the testimony was proper. Id. at 505. It held that:

A defective [search] warrant is no defense to a charge of resisting execution thereof. That issue is resolved through a later legal mechanism, the suppression hearing. Once a court with proper jurisdiction over the subject matter and person issues an order, it "must be obeyed by the parties until it is reversed." Absent a showing of bad faith, unreasonable force or provocative conduct, defendant has no right to resist execution of a warrant, even a defective one.

Id. at 504 (citations omitted); see also United States v. Gibbons, 331 F. Supp. 970, 971-72 (D. Del. 1971) (invalidity of search warrant not valid defense to obstruction of justice charge for destroying evidence during search); State v. Hatton, 568 P.2d 1040, 1046 (Ariz. 1977) ("even if there were a right to resist an unlawful arrest . . . there is no similar right to resist a search warrant later found to be illegal"). In Brown v. Anchorage, 680 P.2d 100, 104 (Alaska Ct. App. 1984), the court stated that "a person may be prosecuted for resisting a constitutionally unlawful but peaceful search or seizure unless the officer uses unnecessary force or is not readily identifiable as a police officer." The Brown court also noted that "[a] majority of jurisdictions are in agreement with this rule." Id.

The remedy for a victim of an illegal search was not the self-help of resistance. "Resistance to such authority [to search and seize] by self-help is not recognized in courts of law." United States v. Woodring, 536 F.2d 598, 600 (5th Cir. 1976). Whoever

suffers the imposition of an unlawful police search has the assurance that any evidence so acquired is rendered inadmissible in a subsequent criminal trial by the exclusionary rule. . . . And in any event damage remedies are available in the federal courts for violations of constitutional rights stemming from either an unlawful search or arrest.

United States ex rel. Kilheffer v. Plowfield, 409 F. Supp. 677, 680-81 (E.D. Pa. 1976). These remedies are present in the FSM. For the exclusionary rule in the FSM, see, e.g., 12 F.S.M.C. 312(1); FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001); FSM v. Santa, 8 FSM Intrm. 266, 268 (Chk. 1998); FSM v. Tipen, 1 FSM Intrm. 79, 92 (Pon. 1982); Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985). On the damages remedy in the FSM, see, e.g., Liwi v. Finn, 5 FSM Intrm. 398 (Pon. 1992); Jano v. King, 5 FSM Intrm. 388 (Pon. 1992).

The reasoning behind the principle barring physical resistance to an invalid search warrant has been widely cited:

Society has an interest in securing for its members the right to be free from unreasonable searches and seizures. Society also has an interest, however, in the orderly settlement of disputes between citizens and their government; it has an especially strong interest in minimizing the use of violent self-help in the resolution of those disputes. We think a proper accommodation of those interests requires that a person claiming to be aggrieved by a search conducted by a peace officer pursuant to an allegedly invalid warrant test that claim in a court of law and not forcibly resist the execution of the warrant at the place of search.

Ferrone, 438 F.2d at 390. This court concludes that this reasoning resonates even more strongly in Micronesia, where society has customarily prized peaceful and orderly resolution of disputes much higher than in the United States.

Thus, at the time the FSM Constitution was framed and adopted, the prevailing U.S. constitutional analysis of its constitutional search and seizure provision, which the FSM constitutional provision was modeled after, was that persons had no right to resist a search warrant even if that warrant was invalid. See generally 1 Wayne R. LaFave, Search and Seizure, a Treatise on the Fourth Amendment § 1.13(b) (3d ed. 1996).

The court therefore concludes that in the FSM a person has no right to resist the execution of a search warrant by police or government agents even if the search warrant is later shown to be invalid. Consequently, Wainit may not assert as a defense that he has no liability and may resist a search warrant if he believes it is, or if it is, an invalid warrant. The law does not permit this. The search warrant’s validity is irrelevant to the case and the court will refuse to hear testimony concerning it. See Peifer, 474 F.2d at 504.

Thus, as a matter of law, a search warrant’s invalidity is not a defense under 11 F.S.M.C. 107(1) because it is not "a fact or set of facts which removes or mitigates penal liability." Even a belief that a search warrant is invalid does not remove or mitigate penal liability. If a person believes that he has a legal right to resist an invalid search warrant that is a mistake or ignorance of law, not a mistake (or ignorance) of fact, and that is not a defense under section 301A(3).

C. Statutes Relied on by Wainit

Only ignorance or mistake of fact is a defense under 11 F.S.M.C. 301A(3). A mistake of, or ignorance of, law is not a defense under the FSM statute. Nor is it generally a defense to penal liability. See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.1(d) (1986). Wainit may not use mistake or ignorance of the law as a defense. He therefore may not use as a defense a mistaken belief that he had a legal right to resist a search warrant that he thought was invalid (even if it should later be shown to be invalid).

Subsection 301A(5) is a codified version of the common law defense of duress. Duress, under the FSM statute, occurs when A causes B to believe that B would suffer immediate, life-threatening injury unless B acts as ordered by A, and B acts and a crime is committed against C. Duress is a defense similar to self-defense except that with self-defense the defendant’s response is an attack on the threatening party, while the duress defense applies when the defendant saves himself by doing the threatener’s bidding by harming another. Feliciano v. State, 332 A.2d 148, 149 (Del. 1975). "Duress . . . is a pertinent theory of defense when a third party, that is, a person other than the victim, is the coercer." Id. Wainit is free to put on evidence that some other person made him believe he would suffer life-threatening injury if he did not do that person’s bidding to harm those attempting to execute a search warrant on September 6, 2002.

Subsection 107(3) makes it "a complete defense to a criminal charge that at the time of engaging in the wrongful conduct the defendant was legally incapable of committing a crime as defined in [11 F.S.M.C.] 301A." Legal incapacity to commit a crime is often thought to include defenses such as insanity, mental incapacity, infancy, automatism, sometimes intoxication, and crimes where a certain status, not held by the defendant, is a necessary element of the offense. Section 301A lists five instances where a person may be legally incapable of committing a crime - infancy; persons under another’s legal conservatorship; persons whose conduct was the result of ignorance or mistake of fact, disproving criminal intent; persons who engaged in the wrongful conduct without being conscious; and persons whose actions were the result of life-threatening duress. Wainit apparently only intends to rely on just two of these - mistake of fact and duress. Both have already been discussed above. Neither permit him to raise the purported invalidity of the search warrant or his belief that it was invalid as a defense.

D. "Possible Narrow Exception"

A search warrant’s invalidity, or the belief that it is invalid, is not a defense to charges stemming from resistance to the search warrant’s execution. The statutory provisions cited by Wainit do not encompass or permit an invalid search warrant defense. But Wainit also noted that the sources and authorities the court cited when this issue arose earlier in Criminal Case No. 2002-1501 (and also cited herein) left open the possibility that there was a narrow circumstance where the principle that a search warrant might not lawfully be resisted might not apply.

Those authorities declined to decide whether there were "some unlawful searches, with or without warrant, the circumstances of which would be so provocative to a reasonable man that the seriousness of the offense of resistance ought to be mitigated as a result of such provocation," Ferrone, 438 F.2d at 390 n.19(c), or whether "a showing of bad faith, unreasonable force or provocative conduct," Peifer, 474 F. Supp. at 504, would mitigate the seriousness of the resistance. The court in Criminal Case No. 2002-1501 (this case’s previous incarnation), held that "under FSM constitutional jurisprudence, a person has no right, with some possible narrow exception not now alleged to have occurred here, to resist a court-issued search warrant even if that search warrant turns out to be invalid." FSM v. Wainit, 11 FSM Intrm. 424, 436 (Chk. 2003). Wainit now contends that he will allege facts that will fall within the possible exception not decided by Ferrone. That court did not decide whether that possible exception was a viable defense, Ferrone, 438 F.2d at 390 n.19(c), and neither did this court when it ruled in Criminal Case No. 2002-1501, Wainit, 11 FSM Intrm. at 436 ("possible exception"). Nor does this court do so now.

Wainit will have the opportunity at trial to put on evidence that the September 6, 2002 attempted search warrant execution was so provocative or the force was so unreasonable that the seriousness of the resistance to the search warrant execution ought to be mitigated. Evidence concerning the search warrant’s validity will not be permitted as that defense is precluded. Only if Wainit shows that such provocative conduct or unreasonable force did occur in the course of the attempted September 6, 2002 search warrant execution will the court need to decide whether the serious of the resistance ought to be mitigated.

E. Summary

The government’s countermotion to preclude Wainit from asserting a self-help defense is granted to the extent that no evidence may be introduced challenging the search warrant’s validity nor may Wainit assert that the search warrant was invalid, or that he thought it was invalid, and so he was entitled to resist the search warrant’s execution. The countermotion is denied to the extent that Wainit may introduce evidence and argue that the attempt to execute warrant was so provocative or the force used so unreasonable that a reasonable person could resist it and the seriousness of the resistance would be mitigated. The court’s order also does not preclude Wainit from pursuing any duress or other available defense.

III. Conclusion

Accordingly, Wainit’s motion to dismiss and to disqualify is denied, his request for an evidentiary hearing is denied, and the government’s countermotion is granted in part and denied in part. Wainit shall respond to the government’s March 24, 2005 discovery request no later than October 31, 2005.

[13 FSM Intrm. 442]

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