FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. C3-2006

JOHN ENGICHY a/k/a AISER JOHN ENGICHY, JOHN PETEWON, JAMES FRITZ, FRANK DARRA, and ROSEMARY ENGICHY a/k/a ROSEMARY NAKAYAMA,
Appellants,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.
______________________________________________

ORDER

Martin Yinug
Associate Justice

Decided: December 5, 2007

APPEARANCES:

For the Appellants:	Harry A. Seymour, Esq. (J. & R. Engichy)	
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

For the Appellee: Pole Antanraoi, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Appellate Review  Briefs, Record, and Oral Argument

There are four factors to consider when the government files an untimely motion for enlargement of time to respond to appellant's brief in a criminal appeal: 1) the length of the delay in seeking an enlargement; 2) whether the appellant will be prejudiced; 3) whether the appellant objects to the motion; and 4) whether there is substantial public interest in allowing the government to submit its argument. Engichy v. FSM, 15 FSM Intrm. 432, 434 (App. 2007).

Appellate Review  Briefs, Record, and Oral Argument

When the FSM's request for an enlargement of time to file its response brief was over seven months late and the appellants opposed the enlargement; when allowing the FSM to file a brief would necessitate the postponement of the scheduled oral argument, severely prejudicing the appellants due to restrictions placed on their civil liberties as a result of the underlying convictions; when allowing the FSM to participate in oral argument (with or without filing a brief) would severely prejudice the appellants since it would deny them both adequate notice of the FSM's arguments and adequate time to prepare for responding to those arguments; when there is the public interest in allowing the government to participate in the appeal of a criminal matter and at least an equal public interest in requiring the government to diligently, competently and promptly prosecute its cases; when the FSM Department of Justice's unpersuasive excuses point to internal strife within their own ranks; when the public most certainly has an interest in holding the government to a standard that demands resolution of such strife and efficient administration of its duties, good cause does not exist to enlarge time for the FSM to file a brief and to be heard at oral argument. Engichy v. FSM, 15 FSM Intrm. 432, 434 (App. 2007).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

On November 15, 2007, Appellee FSM filed a Motion for Admission to Appear Pro Hac Vice for Pole Antanraoi and a Motion for Enlargement to File Appellate Brief and Request for Permission to Be Heard at Oral Argument. On November 29, 2007, Appellants John and Rosemary Engichy filed an Opposition to Appellee's Motion for Enlargement and a Request to Fie by Facsimile. Because oral argument is scheduled for December 10, 2007, Appellants' Request to File by Facsimile is granted.

FSM requests an enlargement of time to respond to Appellant John Engichy's appeal brief that was filed on March 5, 2007. FSM did not file a response brief nor did it request an enlargement of time within 30 days of Appellant filing his brief. On October 31, 2007, the Court entered a Notice of Oral Argument setting the case for argument on December 10, 2007. FSM Appellate Procedure Rule 31 provides, in pertinent part: "An appellee who fails to file a brief will not be heard at oral argument except by permission of the court."

The FSM, some seven months after Appellant filed his brief and some two weeks after notice of oral argument was entered, requests the Court to allow it to respond to Appellant's brief and to allow it to be heard at oral argument on December 10, 2007. FSM argues that good cause exists for this relief, as required by FSM Appellate Rule 26(b), due to understaffing in the FSM Department of Justice and confusion within the FSM Department of Justice as to who was handing this appeal, including the misplacing of file materials. The FSM argues that it is in the public's interest for it to be allowed to file an appellate brief and to participate in oral argument due to the complexity of the case. Appellants maintain that these circumstances do not support a finding of good cause for granting the enlargement of time to file a brief and argue that they will suffer substantial prejudice if the FSM is allowed to participate in oral arguments.

Both Appellee and Appellants cite to the case of Kimoul v. FSM, 4 FSM Intrm. 344 (App, 1990) to support their respective positions. The Kimoul decision involves a situation factually similar to the one at hand, in which the FSM submitted an untimely motion for enlargement of time to respond to appellant's brief in a criminal appeal. Kimoul points to four factors to consider when addressing this situation:

(a)	the length of the delay in seeking an enlargement;
(b)	whether the appellant will be prejudiced;
(c)	whether the appellant objects to the motion; and
(d)	whether there is substantial public interest in allowing the government to submit its argument.

In Kimoul, the government was only six days late in initially seeking its enlargement of time and the appellant had no objection to the enlargement and did not claim to suffer any prejudice due to the enlargement. Under these circumstances, the court in Kimoul decided that public interest favored allowing the government to file its brief.

In the present mater, the FSM's request for an enlargement of time is over seven months late, unequivocally a substantial delay in the context of the Kimoul case. Moreover, the Appellants have filed their opposition to the enlargement. Allowing the FSM to file a brief at this juncture would necessitate the continuance and postponement of the December 10, 2007 oral argument, which would severely prejudice the Appellants due to restrictions currently placed on their civil liberties as a result of the underlying convictions. Allowing the FSM to participate in oral argument on December 10, 2007 (with or without filing a brief) would severely prejudice the Appellants in that it would deny them both adequate notice of the FSM's arguments and adequate time to prepare for responding to those arguments. While the Court is cognizant of the public interest in allowing the government to participate in the appeal of a criminal matter, the Court agrees with the Appellants that there is at the very least an equal public interest in requiring the government to diligently, competently and promptly prosecute its cases. The unpersuasive excuses offered by the FSM Department of Justice point to internal strife within their own ranks, and the public most certainly has an interest in holding the government to a standard that demands resolution of such strife and efficient administration of its duties. Accordingly, the Court finds that good cause does not exist for granting the relief requested by the FSM and the Motion for Enlargement to File Appellate Brief and Request for Permission to Be Heard at Oral Argument is denied.

Furthermore, because the FSM will not be allowed to file a brief in this appeal and will not be allowed to participate in oral argument, its Motion to Appear Pro Hac Vice is moot and is likewise denied.

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