FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2006-1507

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

PATRICK JACOB, ROMMY SIPENUK,
and KERLYN ERWIN,
Defendants.
__________________________________________

ORDER DENYING DEFENDANT JACOB'S MOTIONS WITHOUT PREJUDICE

Dennis K. Yamase
Associate Justice

Decided: December 27, 2007

APPEARANCES:

For the Plaintiff: Joses Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant: Harry A. Seymour, Esq. (Jacob)
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

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HEADNOTES

Criminal Law and Procedure  Fugitives

When the facts are sufficient to show an accused's knowledge of the charges against him and for the court to infer that he intended to avoid further prosecution by leaving the jurisdiction, the accused is therefore a fugitive. FSM v. Jacob, 15 FSM Intrm. 439, 441-42 (Chk. 2007).

Criminal Law and Procedure  Public Trial

Criminal Procedure Rules 43(b) only applies when a criminal defendant has appeared for trial and trial has started and then the defendant voluntarily absents himself or herself although the defendant has been informed of the obligation to remain during trial. In such cases, the defendant is considered to have waived the right to be present and the trial may progress to a conclusion in his or her absence. FSM v. Jacob, 15 FSM Intrm. 439, 442 (Chk. 2007).

Criminal Law and Procedure  Public Trial

Rule 43(c)(3) provides that defendant is not required to be present at a conference or argument upon a question of law. But an evidentiary hearing is one that involves more than just a question of law. It involves findings of fact. An evidentiary hearing is thus one where the defendant must appear in court. FSM v. Jacob, 15 FSM Intrm. 439, 442 (Chk. 2007).

Criminal Law and Procedure  Fugitives; Criminal Law and Procedure  Motions

The fugitive disentitlement doctrine is not limited only to appellate review of a criminal conviction or of a related civil forfeiture. It may also apply in trial court proceedings, such as pretrial motions made by fugitives in the trial courts. FSM v. Jacob, 15 FSM Intrm. 439, 442 (Chk. 2007).

Criminal Law and Procedure  Fugitives

The fugitive disentitlement doctrine has come to signify the unwillingness of courts to waste time and resources exercising jurisdiction over litigants who will only comply with favorable court rulings. Simply stated, a fugitive's absence does not entitle him to an advantage. FSM v. Jacob, 15 FSM Intrm. 439, 442 (Chk. 2007).

Criminal Law and Procedure  Fugitives

The doctrine of fugitive disentitlement rests on the principle of mutuality. The rationale is that a court should not afford a fugitive who is unwilling to submit to its jurisdiction and stand trial for an alleged crime, the opportunity to improve his position by challenging the jurisdiction of the court. FSM v. Jacob, 15 FSM Intrm. 439, 442 (Chk. 2007).

Criminal Law and Procedure  Fugitives; Criminal Law and Procedure  Motions

A fugitive, in bringing motions, is trying to obtain favorable rulings from the court without risking any burden that may flow from an adverse ruling. If the rulings are unfavorable to him, he will remain a fugitive. Then, if the government wishes to pursue prosecuting him, it must go to the effort and expense of extraditing him assuming he has not fled to a jurisdiction with which the FSM does not have an extradition agreement. That bestows a benefit on the fugitive and violates the principle of mutuality and reaching the merits of a fugitive's pretrial motions may encourage others in the same position to take flight from justice. Thus his motions will be denied without prejudice. FSM v. Jacob, 15 FSM Intrm. 439, 443 (Chk. 2007).

Criminal Law and Procedure  Fugitives; Criminal Law and Procedure  Motions

A fugitive's pending motions will all be denied without prejudice. Once he has submitted to the court's jurisdiction by returning, he may reurge any motion not previously denied on the merits. The fugitive will be afforded due process and his right to a fair trial once he has returned. FSM v. Jacob, 15 FSM Intrm. 439, 443 (Chk. 2007).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

Based on the fugitive disentitlement doctrine, all of defendant Patrick Jacob's pending motions are hereby denied without prejudice. The court's reasoning follows.

I.

On October 10, 2007, the court heard argument on various motions made by defendant Patrick Jacob. Patrick Jacob was not present. At this hearing and at previous motion hearings, starting with the June 26, 2007 hearing, at which Jacob failed to appear, Jacob's counsel acknowledged that Jacob was absent from the FSM and believed to be in Hawaii. At the October 10, 2007 argument, the government objected to hearing any of Jacob's motions and questioned his right to bring motions when, in its view, Jacob was a fugitive.

The court continued the motion hearing to November 13, 2007, at which time the government would present its report on the status of its attempts to return Jacob to the jurisdiction and further ordered that Jacob file and serve his memorandum on whether a defendant who appears to be a fugitive has standing to bring his present motions or whether they should be denied without prejudice and subject to renewal once he had returned to the jurisdiction and is subject to prosecution. The government was permitted to respond by November 9, 2007.

II.

On November 5, 2007, Jacob filed his memorandum about his ability to raise pretrial motions. The government did not respond.

Jacob contends that he has the ability to raise and the court must consider pretrial motions at this time because 1) the court has not made a finding that he is a fugitive; 2) his presence is not required at pretrial motion hearings; and 3) the equitable doctrine of fugitive disentitlement is limited to appellate review of a criminal conviction or of a related civil forfeiture proceeding when the appellant has become a fugitive. Jacob contends that the government is not prejudiced by his absence since a decision in his favor on the motions may result in the case's dismissal, and that, if the case is not dismissed "the government may resort to the extradition agreement under the Compact of Free Association to return him to stand trial . . . ." Memorandum at 4 (Nov. 5, 2007). At argument on November 13, 2007, Jacob added that the Constitution requires that he be afforded due process and be given a fair trial and that denying his motions would contravene those rights.

III.

At Patrick Jacob's initial appearance on October 5, 2006, the court informed him of the charges against him, which he indicated that he understood, and released him with conditions that included restriction to the State of Chuuk with the proviso that he must apply to (by filing a motion), and obtain permission from, the court before he could travel outside of the State of Chuuk; the restriction that if he changed his residence he must immediately inform the State Justice Ombudsman of the change; and that he must appear in court when ordered to do so.

By his own counsel's acknowledgment, Jacob has not been in Chuuk for some time and has left the FSM for Hawaii. The court record is clear that Jacob never moved for permission to leave Chuuk and that the court never granted him any such permission. Nor did Jacob notify the State Justice Ombudsman of any change of residence.

The facts are thus sufficient to show Jacob's knowledge of the charges against him and for the court to infer that he intended to avoid further prosecution by leaving the jurisdiction. Jacob is therefore a fugitive.

IV.

Jacob, relying on Criminal Procedure Rules 43(b) and 43(c), contends that he is not required to appear at hearing on his pending motions. Rule 43(b) does not apply. That rule only applies when a criminal defendant has appeared for trial and trial has started and then the defendant voluntarily absents himself or herself although the defendant has been informed of the obligation to remain during trial. In such cases, the defendant is "considered to have waived the right to be present" and the trial may progress to a conclusion in his or her absence. FSM Crim. R. 43(b).

Rule 43(c)(3) provides that defendant is not required to be present "[a]t a conference or argument upon a question of law." Jacob contends that the motions can be made and heard because they are on questions of law. His counsel concedes that at least one motion, that to suppress evidence, requires an evidentiary hearing at which Jacob must be present to assist counsel.

An evidentiary hearing is one that involves more than just a question of law. It involves findings of fact. The evidentiary hearing is thus one where Jacob must appear in court. He failed to do so the times when hearings on all his pending motions were scheduled.

V.

The fugitive disentitlement doctrine was adopted in the FSM when the FSM Supreme Court appellate division dismissed the appeal of a criminal defendant who, after his conviction, had left the FSM in violation of three court orders. Walter v. FSM, 15 FSM Intrm. 130, 132 (App. 2007). Jacob is incorrect that the fugitive disentitlement doctrine is limited only to appellate review of a criminal conviction or of a related civil forfeiture. It may also apply in trial court proceedings.

"Although the fugitive disentitlement doctrine is often invoked during the appellate process, it also applies to pretrial motions made by fugitives in the [trial] courts." United States v. Oliveri, 190 F. Supp. 933, 936 (S.D. Tex. 2001). In Oliveri, the court denied without prejudice the defendant's motion to dismiss because the defendant had purposely absented himself from the United States and it appeared he was attempting to obtain a favorable ruling from the court without risking the burdens that might flow from an adverse ruling. Id. And in United States v. Nabepanha, 200 F.R.D. 480, 483 (S.D. Fla. 2001), the trial court denied the defendant's Rule 16 pretrial discovery request because he was unwilling to return to the United States from Israel to submit to the court's jurisdiction and face the charges against him. Thus, the fugitive disentitlement doctrine may be applied to deny without prejudice a fugitive defendant's pretrial motions.

"[T]he fugitive disentitlement doctrine has come to signify the unwillingness of courts to waste time and resources exercising jurisdiction over litigants who will only comply with favorable rulings of the court." Oliveri, 190 F. Supp. at 935. "Simply stated, a fugitive's absence does not entitle him to an advantage." Nabepanha, 200 F.R.D. at 483. Furthermore, "[t]he doctrine of fugitive disentitlement rests on the principle of mutuality. The rationale is that a court should not afford a fugitive who is unwilling to submit to its jurisdiction and stand trial for an alleged crime, the opportunity to improve his position by challenging the jurisdiction of the court." United States v. Eagleson, 874 F. Supp. 27, 29 (D. Mass. 1994).

In bringing his motions, Jacob is trying to obtain favorable rulings from the court without risking any burden that may flow from an adverse ruling. If the rulings are unfavorable to Jacob, he will remain in Hawaii. Then, if the government wishes to pursue prosecuting Jacob, it must go to the effort and expense of extraditing him. That bestows a benefit on Jacob and violates the principle of mutuality. Moreover, "reaching the merits of a fugitive's pretrial motions may encourage others in the same position to take flight from justice." Oliveri, 190 F. Supp. at 936; see also Nabepanha, 200 F.R.D. at 483. Some future defendant may even flee to a jurisdiction with which the FSM does not have an extradition agreement and from which the FSM therefore could not extradite him or her. The court cannot consent to be put in a position where its procedure and rulings would encourage flight from justice.

VI.

Accordingly, Jacob's pending motions are all denied without prejudice. Once Jacob has submitted to the court's jurisdiction by returning to Chuuk, he may reurge any motion not previously denied on the merits. Oliveri, 190 F. Supp. at 936. Jacob's concerns about due process and his right to a fair trial are misplaced. He will be afforded those rights once he has returned to Chuuk.

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