FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2003-1508

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

ROOSEVELT D. KANSOU and FRANK CHOLYMAY,
Defendants.
__________________________________________________

ORDER DISPOSING OF PENDING MOTIONS

Dennis K. Yamase
Associate Justice

Hearing: October 5, 2007
Decided: October 15, 2007

APPEARANCES:

For the Plaintiff: Pole Atanraoi, Esq.
FSM Assistant Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Scott Garvey, Esq. (Kansou)
P.O. Box 114
Kolonia, Pohnpei FM 96941

For the Defendant:Andrea S. Hillyer, Esq. (Cholymay)
P.O. Drawer D
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure  Prosecutors

When a former prosecutor was not disqualified from prosecuting the movant, any communication between the former prosecutor, who for the purpose of the motion must be considered as a part of the prosecution team since he was acting as a consultant attorney, and the Department of Justice concerning the movant cannot be per se misconduct. FSM v. Kansou, 15 FSM Intrm. 373, 376-77 (Chk. 2007).

Criminal Law and Procedure  Prosecutors

A former prosecutor who is helping locate and discuss relevant evidence in the discovery, is considered a part of the prosecution team. FSM v. Kansou, 15 FSM Intrm. 373, 377 n.1 (Chk. 2007).

Criminal Law and Procedure  Discovery

When e-mails between a former prosecutor, an attorney member of the prosecution for the purpose of the motion, and the FSM Department of Justice involved trial preparation, strategy, and locating and discussing relevant evidence among the 20,000 pages produced in discovery, it is all attorney work, and, as such, it constitutes internal workings of the Attorney General's Office, that is, it is attorney work product. Attorney work product, including attorney work product by prosecutors in a criminal case, is privileged and not discoverable. FSM v. Kansou, 15 FSM Intrm. 373, 377 (Chk. 2007).

Criminal Law and Procedure  Discovery

Generally, the government can be required to disclose discovery material held by government agencies other than the prosecutors. The duty to search for discoverable material particularly applies if the defendant has made an explicit request that certain files in be searched. FSM v. Kansou, 15 FSM Intrm. 373, 377 (Chk. 2007).

Criminal Law and Procedure  Discovery

The government's obligation to provide to an accused discoverable material that it would have to disclose if it were in the hands of an FSM government agency does not extend to material not in its possession, but in a foreign government's possession. Unless the material requested is currently in the FSM government's possession, the government is not required to obtain and disclose to the accused any statements made by him to the FBI, U.S. Marshals, and U.S. court personnel during any interview, custodial detention, or meeting. Thus a motion to compel production of the materials in the United States's possession will be denied, but if any such statements are in the FSM's hands, the prosecution must produce them. FSM v. Kansou, 15 FSM Intrm. 373, 377 (Chk. 2007).

Criminal Law and Procedure  Motions

When the government has filed no response to a defendant's motions, it will not be permitted to present argument on the motions. FSM v. Kansou, 15 FSM Intrm. 373, 378 (Chk. 2007).

Criminal Law and Procedure  Motions

Failure to oppose a motion is generally deemed a consent to the motion. But even if there is no opposition, the court still needs good grounds before it can grant the motion. FSM v. Kansou, 15 FSM Intrm. 373, 378 (Chk. 2007).

Criminal Law and Procedure  Speedy Trial

When it was less than three years after the accused was charged that he was arrested in the U.S. on an FSM extradition warrant and during that whole time he was residing, working, and paying taxes in the United States or its territory and he neither resided nor worked in the accusing jurisdiction (the FSM) and had no reasonably determinable place of abode or work within the jurisdiction of the FSM after 1999 at anytime after he was charged in November, 2003 and when the claimed prejudice resulting from his alleged 1999 involvement in the charged conspiracy and his 2006 arrest was the deaths of two mayors of municipalities in Faichuk, who are alleged to be possible witnesses, but how they would have assisted the accused's defense, who was responsible only for the Northern Namoneas, is left unsaid, his motion to dismiss for unnecessary delay based on the FSM's alleged negligence in arresting him will be denied. FSM v. Kansou, 15 FSM Intrm. 373, 378-79 (Chk. 2007).

Criminal Law and Procedure  Statutes of Limitation

The FSM tolling statute for criminal prosecutions does not require that the accused be fleeing justice. It only requires that the accused either be continuously absent from the jurisdiction or that has no reasonably determinable place of abode or work within the jurisdiction. Maintaining a home in Chuuk for his family there, but residing and working abroad and having no reasonably determinable place of abode or work within the FSM, cannot remove the accused from the operation of the statute. FSM v. Kansou, 15 FSM Intrm. 373, 379 & n.4 (Chk. 2007).

Criminal Law and Procedure  Speedy Trial

Co-defendants share the same speedy trial "clock" and any delay attributable to one joined co-defendant is attributable to all joined co-defendants. Thus the delay that the court has already attributed to the other joined co-defendants, is also attributed to a co-defendant. FSM v. Kansou, 15 FSM Intrm. 373, 379 (Chk. 2007).

Criminal Law and Procedure  Conspiracy; Criminal Law and Procedure  Joinder and Severance

Since, absent a strong showing of prejudice, co-conspirators are customarily tried together, when the movant has not made a strong showing and has not identified any defense he would raise but cannot because his case is joined with another, his motion to sever will be denied. FSM v. Kansou, 15 FSM Intrm. 373, 380 (Chk. 2007).

Criminal Law and Procedure  Joinder and Severance

There is no rule requiring severance whenever co-defendants have conflicting defenses. FSM v. Kansou, 15 FSM Intrm. 373, 380 (Chk. 2007).

Criminal Law and Procedure  Joinder and Severance

Properly-joined defendants should be severed under Criminal Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants. FSM v. Kansou, 15 FSM Intrm. 373, 380 (Chk. 2007).

Criminal Law and Procedure  Joinder and Severance

All past delays attributable to any co-defendant are also attributable any other co-defendant. Severance would not change this. All delay attributable to one co-defendant because it was attributable to another co-defendant before severance would still be attributable to the first co-defendant. A severed co-defendant would have a separate speedy trial "clock" only for the time after severance was ordered. So when trial on the merits due in the foreseeable future, severance and the start of a separate speedy trial "clock" for one co-defendant would not help him preserve his speedy trial right or prevail on an unnecessary delay defense. FSM v. Kansou, 15 FSM Intrm. 373, 380 (Chk. 2007).

Criminal Law and Procedure  Joinder and Severance

If a co-defendant were prepared to go to trial soon while his co-defendant was not ready for trial in the foreseeable future, then severance could be appropriate to preserve his speedy trial right and avoid unnecessary delay, but when that is not the case, the movant has not shown a serious risk of, or articulated, any specific instances of prejudice, and his motion to sever will be denied. FSM v. Kansou, 15 FSM Intrm. 373, 380 (Chk. 2007).

Criminal Law and Procedure  Joinder and Severance

With a joint trial, while not immediately imminent, the next step in the case and expected in the foreseeable future, severance would only increase delay for the movant since both he and his co-defendant could not be tried simultaneously, and most likely his trial would not start until some time after his co-defendant's had finished. FSM v. Kansou, 15 FSM Intrm. 373, 380 n.5 (Chk. 2007).

Criminal Law and Procedure  Information

An information should be sufficiently definite, certain, and unambiguous as to permit the accused to prepare his defense, but an information should not be thrown out because of minor, technical objections which do not prejudice the accused. FSM v. Kansou, 15 FSM Intrm. 373, 380 (Chk. 2007).

Criminal Law and Procedure  Information

When the information is sufficiently definite to put the accused on notice that he is charged with, in his capacity as NNDA Executive Director, being a member of a conspiracy to violate 55 F.S.M.C. 221(2), 55 F.S.M.C. 221(3) and 11 F.S.M.C. 529 and when the court has previously stated that nothing before it indicates that the information is not a plain, concise and definite statement of the essential facts constituting the offense, the accused's motion to dismiss on the ground of defective information will be denied. FSM v. Kansou, 15 FSM Intrm. 373, 380-81 (Chk. 2007).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On October 5, 2007, this came before the court for hearing on two pending motions filed by defendant Frank Cholymay: 1) Second Motion to Compel, Limited to Portion of Discovery Not Addressed in Plaintiff's Responses, filed on August 9, 2007, and 2) Pre-Trial Motions, filed August 17, 2007. On August 20, 2007, the government filed its opposition to the second motion to compel, and, on August 28, 2007, Cholymay filed his reply. On September 10, 2007, defendant Roosevelt Kansou filed his Motion to Join, in which he sought to join Cholymay's motions to dismiss for unnecessary delay and to sever, which were part of Cholymay's Pre-Trial Motions.

I. Motion to Compel

In his motion to compel, defendant Frank Cholymay asks the court to compel the government to produce all e-mails on the government's computers between former prosecutor Matthew Crabtree, who was disqualified from prosecuting certain defendants (but not defendant Cholymay) in this case, FSM v. Kansou, 13 FSM Intrm. 344, 350 (Chk. 2005), and the FSM Department of Justice. In his reply, Cholymay contends that his request is not limited to those e-mails, but also includes 1) all records of communications between the government and Interpol, the United States Federal Bureau of Investigation ("FBI"), the U.S. Embassy, and the U.S. Justice Department Office of International Affairs concerning the FSM's request for judicial assistance and Cholymay's extradition, and 2) all statements made by Cholymay to the FBI, U.S. Marshals, and U.S. court personnel during any interview, custodial detention, or meeting.

Cholymay further contends that all these documents are discoverable because they are in the hands of members of the prosecution team, including prosecutorial or investigative agencies aligned with the prosecution itself or in sources readily available to the prosecution. He asserts that they are relevant to his "defenses of undue delay and denial of due process, speedy trial claims, and statute of limitations and the possible defense of outrageous government conduct or prosecutorial misconduct." Reply at 3 (Aug. 28, 2007).

The contention that this material is relevant to a possible defense of prosecutorial misconduct is somewhat puzzling. It seems to refer to communications between the FSM Department of Justice and former prosecutor Crabtree. Crabtree was not disqualified from prosecuting Cholymay. Kansou, 13 FSM Intrm. at 350. So any communication between former prosecutor Crabtree, who for the purpose of this motion must be considered as a part of the prosecution team since he was acting as a consultant attorney, and the Department of Justice concerning Cholymay cannot be per se misconduct.

The record developed in this case indicates that the e-mails between former prosecutor Crabtree, an attorney member of the prosecution for the purpose of this motion, and the FSM Department of Justice involved trial preparation, strategy, and locating and discussing relevant evidence among the 20,000 pages produced in discovery, FSM v. Kansou, 14 FSM Intrm. 273, 276, 278-79 (Chk. 2006); FSM v. Kansou, 14 FSM Intrm. 171, 174 (Chk. 2006). All of that is attorney work. As such, it constitutes internal workings of the Attorney General's Office, that is, it is attorney work product. Attorney work product, including attorney work product by prosecutors in a criminal case, is privileged and not discoverable. See, e.g., United Kingdom v. United States, 238 F.3d 1312, 1321-22 (11th Cir. 2001); United States v. Fernandez, 231 F.3d 1240, 1246-47 (9th Cir. 2000); United States v. Mann, 61 F.3d 326, 331 (5th Cir. 1995); cf. FSM v. Wainit, 13 FSM Intrm. 301, 305 (Chk. 2005) (defendant not allowed to delve into the FSM Department of Justice's internal workings to discover evidence by deposing witness-department employee).

Generally, the government can be required to disclose discovery material held by government agencies other than the prosecutors. The duty to search for discoverable material particularly applies if the defendant has made an explicit request that certain files in be searched. See generally United States v. Brooks, 966 F.2d 1500, 1502-05 (D.C. Cir. 1992). Cholymay has asked that the record of communications between the FSM and various foreign entities be searched and those records provided. Presumably such records would be maintained in the FSM Department of Foreign Affairs. The government shall therefore either provide Cholymay with communications relating to his extradition in the Department of Foreign Affairs or arrange to permit his counsel to inspect those papers (and e-mails, if any) and obtain copies of any he believes are needed for his defense. See, e.g., United States v. Balogun, 971 F. Supp. 1215, 1243 (N.D. Ill. 1997).

The government's obligation to provide to a defendant discoverable material that it would have to disclose if it were in the hands of an FSM government agency does not extend to material not in its possession, but in a foreign government's possession. State v. Fukusaku, 946 P.2d 32, 48, 64 (Haw. 1997) (prosecution not required to obtain and disclose otherwise discoverable material possessed by Japanese government officials, but not by the prosecution). Therefore, unless the material is currently in the FSM government's possession, the government is not required to obtain and disclose to Cholymay any statements made by him to the FBI, U.S. Marshals, and U.S. court personnel during any interview, custodial detention, or meeting. The motion to compel production of the materials in the possession of the United States is thus denied, but if any such statements are in the FSM's hands, the prosecution must produce them.

Accordingly, Cholymay's motion to compel discovery is denied except that the government shall either provide copies or permit inspection and copying of any documents (including e-mails) at the FSM Department of Foreign Affairs regarding Cholymay's extradition, and shall produce any statement made by Cholymay to U.S. government agencies only if that statement is in the possession of an FSM government agency.

II. Cholymay's "Pre-Trial Motions"

Cholymay served his Pre-Trial Motions on his co-defendant's counsel and on the FSM Department of Justice by hand and by mail on August 13, 2007. The government did not file a response. At oral argument, the assistant attorney general stated that these motions had only come to her attention three days earlier and indicated that she wanted to ask for more time to respond. That request was denied, and, since no response had been filed, the government was not permitted to present argument on the motions. FSM v. Kansou, 13 FSM Intrm. 167, 169 n.2 (Chk. 2005) (oral argument will not be heard from a party when that party has not responded to a written motion).

Failure to oppose a motion is generally deemed a consent to the motion. FSM Crim. R. 45(d). But even if there is no opposition, the court still needs good grounds before it can grant the motion. FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004); FSM v. Sipos, 12 FSM Intrm. 385, 386 (Chk. 2004); FSM v. Wainit, 12 FSM Intrm. 376, 379 (Chk. 2004); cf. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

A. Motion to Dismiss for Unnecessary Delay

Cholymay moves to dismiss the information against him on the ground that he has been denied his constitutional right to a speedy trial, FSM Const. art. IV, § 6, or that his prosecution has been subject to unnecessary delay, 12 F.S.M.C. 802; FSM Crim. R. 48(b). Although his two earlier motions to dismiss for unnecessary delay were denied, FSM v. Kansou, 15 FSM Intrm. 180 (Chk. 2007); FSM v. Kansou, 14 FSM Intrm. 497 (Chk. 2006), Kansou joins this motion.

Cholymay contends that the delay has been unnecessary on several grounds. First, he asserts that he has not been resident in the FSM or employed by the Northern Namoneas development Authority ("NNDA") since some time in 1999. On this basis, he claims prejudice. Second, he asserts that he was unaware, until his arrest in Honolulu, Hawaii in September 2006, that he had been charged in this case in November 2003, so that therefore he does not qualify as a fugitive  one fleeing justice  to whom delay would be attributed because of his absence. Third, he asserts that the government has been negligent in failing to apprehend him earlier, and that, combined with his ignorance of any charges against him, entitles him to a dismissal for unnecessary delay. For this last contention, Cholymay relies on Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992) (5-4).

In Doggett, an accused left the United States without learning that he had been charged for a drug offense, was jailed in Panama for awhile and on release moved to Colombia. After two years, he returned to the U.S. and lived and worked openly there for six years before a computer credit check turned up his outstanding warrant. The U.S. Supreme Court held that the 8½ year delay between Doggett's indictment and his arrest violated his right to a speedy trial because the U.S. government was negligent in not seeking Doggett's extradition from Panama and failing to make any effort to track Doggett down after his release from jail there and permitting him to enter the U.S. unhindered and reside there peacefully and lawfully for six years without looking for him and without his knowledge of the indictment.

In Cholymay's case, it was less than three years after he was charged that he was arrested in the U.S. on an extradition warrant from the FSM. During that whole time, according to his own testimony, Cholymay was residing, working, and paying taxes in the United States or its territory  first on Guam, then in Texas, and finally in Honolulu, where he was arrested. This is not an extreme case like Doggett. And, unlike Doggett, Cholymay neither resided nor worked in the accusing jurisdiction (the FSM) at anytime after November, 2003 when he was charged.

Further persuasive support that three years of openly working, and residing in U.S. territory and various passes through U.S. immigration, does not constitute sufficient negligence on the FSM's part to warrant dismissal is lent by the FSM tolling statute for criminal prosecutions, which does not require that the accused be fleeing justice. "The time limitation does not run: (a) During any time when the accused is continuously absent from the jurisdiction or has no reasonably determinable place of abode or work within the jurisdiction." 11 F.S.M.C. 105(4). By his own testimony, Cholymay had no reasonably determinable place of abode or work within the jurisdiction of the FSM after 1999.

In his motion, Cholymay asserts that because he visited the FSM several times between 1999 and 2004 he was never "continuously absent from the jurisdiction" so the tolling statute cannot apply. Cholymay misreads the statute. It is phrased in the disjunctive, not the conjunctive. To apply, Cholymay need only have "no reasonably determinable place of abode or work within the jurisdiction." Thus, for the purposes of the issues Cholymay raises and the tolling statute, Cholymay cannot have it both ways  he cannot maintain that he has lived and worked abroad continuously since 1999 and that he has maintained his abode in Chuuk from 1999 to date.

The court earlier ruled that the conspiracy in Count I was a continuing offense. FSM v. Kansou, 14 FSM Intrm. 132, 134 (Chk. 2006). Cholymay contends that that cannot be so because the FSM conspiracy statute, 11 F.S.M.C. 203, does not explicitly make conspiracy a continuing offense. Regardless of the statute's wording, the conspiracy alleged in Count I is alleged to be a continuing enterprise  the conspiracy was designed to continue indefinitely.

The prejudice resulting from Cholymay's alleged 1999 involvement in the charged conspiracy and his 2006 arrest cited by Cholymay is the deaths of two mayors of municipalities in Faichuk, who are alleged to be possible witnesses. How they would have assisted Cholymay's defense, who was responsible only for the Northern Namoneas, is left unsaid.

Furthermore, as the court has earlier stated, co-defendants share the same speedy trial "clock" and any delay attributable to one joined co-defendant is attributable to all joined co-defendants. Kansou, 15 FSM Intrm. at 187. The court need not repeat its reasoning here. Thus the delay that the court has already attributed to the other joined co-defendants, Kansou, 15 FSM Intrm. at 185-88; Kansou, 14 FSM Intrm. at 499-500, is also attributed to Cholymay.

Accordingly, the motion to dismiss for unnecessary delay is denied.

B. Motion to Sever

Cholymay also asks the court to sever his case from that of the remaining co-defendant, Roosevelt Kansou on the ground that the joinder "necessarily limits the defenses" he can "raise and successfully utilize." Pre-Trial Motions at 15 (Aug. 17, 2007). Kansou joins this motion.

As the court has previously stated, "[a]bsent a strong showing of prejudice, co-conspirators are customarily tried together." FSM v. Kansou, 15 FSM Intrm. 180, 186 (Chk. 2007). Cholymay has not made a strong showing. He has not identified any defense he would raise but cannot because his case is joined with Kansou's. Furthermore, there is no rule requiring severance whenever co-defendants have conflicting defenses. Zafiro v. United States, 506 U.S. 534, 538, 113 S. Ct. 933, 937-38, 122 L. Ed. 2d 317, 325 (1993).

Properly-joined defendants should be severed under Criminal Rule 14 "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants . . . ." Zafiro, 506 U.S. at 539, 113 S. Ct. at 938, 122 L. Ed. 2d at 325. Cholymay has not identified any specific trial right that would be compromised other than his general statement that joinder limits his ability to raise and utilize unnamed defenses.

Cholymay does, however, assert that if his case is not severed, he would be "penalized in terms of his ability to raise objections and defenses that involve unnecessary delay and speedy trial." Pre-Trial Motion at 17 (Aug. 17, 2007). Cholymay's contention here apparently involves the court's earlier ruling that when co-defendants have been charged together and are joined for trial, the speedy trial "clock" runs jointly for all joined co-defendants with any delay attributed to one defendant attributed to all joined co-defendants. Kansou, 15 FSM Intrm. at 187-88 & n.5. Thus all past delays attributable to any co-defendant are also attributable to Cholymay. Severance would not change this. All delay attributable to Cholymay because it was attributable to a co-defendant before severance would still be attributable to Cholymay. Cholymay would have a separate speedy trial "clock" only for the time after severance was ordered. With trial on the merits due in the foreseeable future (January 2008 being likely), severance now and the start of a separate speedy trial "clock" for Cholymay would not help him preserve his speedy trial right or prevail on an unnecessary delay defense. If Cholymay were prepared to go to trial soon while his co-defendant was not ready for trial in the foreseeable future, then severance could be appropriate to preserve his speedy trial right and avoid unnecessary delay. That is not the case here. Thus, Cholymay has not shown a serious risk of, or articulated, any specific instances of prejudice. Therefore the motion to sever is hereby denied.

C. Motion to Dismiss for Defective Information

Cholymay also moves to dismiss the information against him on the ground that it is insufficient to put him on notice of what he is being charged with and what acts were taken and which laws were violated. Kansou did not join this pretrial motion, and Cholymay did not supplement his moving papers with oral argument.

An information should be sufficiently definite, certain, and unambiguous as to permit the accused to prepare his defense, FSM v. Xu Rui Song, 7 FSM Intrm. 187, 189-90 (Chk. 1995), but an information should not be thrown out because of minor, technical objections which do not prejudice the accused, Laion v. FSM, 1 FSM Intrm. 503, 518 (App. 1984).

The information in this case is sufficiently definite to put Cholymay on notice that he is charged with, in his capacity as NNDA Executive Director, being a member of a conspiracy to violate 55 F.S.M.C. 221(2), 55 F.S.M.C. 221(3) and 11 F.S.M.C. 529. The court has previously stated that "[n]othing before the court indicates that the information is not a 'plain, concise and definite statement of the essential facts constituting the offense.'" FSM v. Kansou, 13 FSM Intrm. 48, 50 (Chk. 2004) (quoting FSM Crim. R. 7(c)(1)).

The motion to dismiss on the ground of defective information is therefore denied.

III. Conclusion

Accordingly, Cholymay's motions to dismiss and sever, joined by Kansou, are denied. Cholymay's motion to dismiss based upon defects in the information is also denied. Cholymay's motion to compel discovery is denied except that the government shall either provide copies or permit inspection and copying of any documents (including e-mails) at the FSM Department of Foreign Affairs regarding Cholymay's extradition, and shall produce any statement made by Cholymay to U.S. government agencies only if that statement is in the FSM government's possession.

Trial is hereby set to start at 9:30 a.m., Thursday, January 17, 2008.

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