FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2016-2506

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

ALIK TALLEY,
Defendant.
__________________________________________

DISPOSING OF PENDING MOTIONS; SETTING PLEA HEARING/TRIAL

Dennis K. Yamase
Chief Justice

Decided:  September 27, 2018

APPEARANCES:

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

For the Defendant:	Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure - Information - Amendment
Amendments to the information are permitted when the original Information contained the factual elements necessary to charge the defendant thereby providing notice to the defendant of the offense and his substantial rights are not prejudiced by this amendment, but not if the government adds a completely new or different offense of which the defendant had no notice.  FSM v. Talley, 22 FSM R. 56, 59 (Kos. 2018).

Criminal Law and Procedure - Information - Amendment
An amendment to the information is permitted when it seeks only to clarify the application of relevant statutes, and no further factual allegations and no different or additional charges are made against the accused.  FSM v. Talley, 22 FSM R. 56, 59 (Kos. 2018).

Criminal Law and Procedure - Information - Amendment
An amendment to the information will be allowed, and the defendant’s substantial rights are not prejudiced, when no new, additional, or different offense is charged since the amendment seeks only to change the date from "May of 2014" to "Sometime between May of 2014 and July of 2014," and since the crime’s essential elements were provided in the information and that remains unchanged.  FSM v. Talley, 22 FSM R. 56, 59-60 (Kos. 2018).

Criminal Law and Procedure - Dismissal
The government may be granted leave to dismiss counts in an information when it does not have sufficient evidence to obtain or sustain a conviction on them.  FSM v. Talley, 22 FSM R. 56, 60 (Kos. 2018).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Speedy Trial
If there is unnecessary delay in filing an information against a defendant who has been held to answer, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the information or complaint.  Rule 48(b) is the mechanism by which a defendant may assert his constitutional right to a speedy trial, although it also embraces the court’s inherent power to dismiss for want of prosecution.  FSM v. Talley, 22 FSM R. 56, 60 (Kos. 2018).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Speedy Trial
The court’s power to dismiss under Rule 48(b) is not limited to those situations in which the defendant’s constitutional speedy trial right has been violated.  The Rule is a restatement of the court’s inherent power to dismiss a case for want of prosecution and imposes a stricter standard of tolerable delay than does the Constitution.  FSM v. Talley, 22 FSM R. 56, 60 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial
The four-factor balancing test for determining speedy trial violations - 1) length of delay; 2) reason for the delay; 3) defendant’s assertion of his right, and 4) prejudice to the defendant - is used to analyze the Constitution’s right to speedy trial and to determine speedy trial violations under a Rule 48(b) dismissal for unnecessary delay.  FSM v. Talley, 22 FSM R. 56, 60-61 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial
The four-factor balancing test is used to determine whether a court may exercise its discretionary power to dismiss under Rule 48(b) and whether a dismissal is appropriate under 12 F.S.M.C. 802 since that statutory right is embodied in Rule 48(b).  FSM v. Talley, 22 FSM R. 56, 61 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial - Length of Delay
A lengthy delay (the first factor) is a triggering mechanism to determine if further analysis is required.  A two-year delay is presumptively prejudicial, therefore triggering the three remaining balancing factors.  FSM v. Talley, 22 FSM R. 56, 61 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial - Reason for Delay
An accused is not denied a speedy trial when the delay is clearly attributable to the accused himself or his counsel.  Such delay includes the defendant’s excused absences and the time to rule on his pretrial motions.  FSM v. Talley, 22 FSM R. 56, 61 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial - Reason for Delay
Delay caused or requested by a defendant suspends his speedy trial right, or is considered his waiver of that right, until that delay is over.  A defendant cannot, for the purposes of speedy trial or unnecessary delay, take advantage of delays that he has caused, even if those delays were justified.  FSM v. Talley, 22 FSM R. 56, 61 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial - Reason for Delay
When most of the delay is attributable to the defendant’s motions that were filed beyond the set deadline for pre-trial motions and when certain actions by the defendant throughout the case’s procedural course also resulted in continuance of trial, the defendant, even if those delays were justified, cannot take advantage of the delay that stemmed from his own actions for the purposes of a speedy trial or unnecessary delay objection.  FSM v. Talley, 22 FSM R. 56, 61 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial
A defendant may waive his right to a speedy trial.  He effects a waiver when he requests it, consents to it, enters a plea of guilty, or when the delay is otherwise attributable to him.  FSM v. Talley, 22 FSM R. 56, 61 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial - Assertion of Right
Although non-assertion of the speedy trial right does not constitute waiver of the right, a court can consider whether the right was asserted, and how vigorously, in determining the reasonableness of any delay.  FSM v. Talley, 22 FSM R. 56, 61-62 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial - Assertion of Right
A defendant may waive his right to a speedy trial when he requests a continuance; when he does not oppose the government’s request for continuance; when he makes certain representations that result in continuance of trial; and when he files pre-trial motions beyond the set deadline.  FSM v. Talley, 22 FSM R. 56, 62 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial - Prejudice to Accused
Prejudice to an accused may consist of:  1) oppressive pretrial incarceration; 2) the accused’s pretrial anxiety; and 3) impairment of the defense.  Of these, the most serious is the last because the possibility that an accused may not be able to adequately prepare his defense skews the fairness of the system, and the least significant is "pretrial anxiety" because it is natural for an accused to experience some anxiety.  Therefore, the defendant must demonstrate "extraordinary or unusual" pretrial anxiety.  FSM v. Talley, 22 FSM R. 56, 62 (Kos. 2018).

Criminal Law and Procedure - Speedy Trial - Prejudice to Accused
A defendant is not prejudiced by the delay when, although his pre-trial conditions restricted travel outside of the FSM, there was no oppressive pre-trial incarceration; when he was recently permitted to travel to Japan for official business purposes; when, although some pretrial anxiety is natural or even expected, he did not establish extraordinary or unusual pretrial anxiety; and when there is no impairment to his defense since he is fully aware of the charges against him and there is no new, different, or additional charge against him.  FSM v. Talley, 22 FSM R. 56, 62 (Kos. 2018).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

I.  Background

On March 29, 2018, the Plaintiff Federated States of Micronesia ("Plaintiff FSM") filed a Consolidated Motion to Amend Count I of the Criminal Information and Motion to Dismiss the Remaining Counts.  On April 13, 2018, the Defendant Alik Talley ("Defendant Talley") filed a Memorandum in Opposition to the Government’s Motion to Amend Count I; Motion to Dismiss for Violation of Speedy Trial Rule.  On April 26, 2018, Plaintiff FSM filed a Response to Defendant Talley’s Motion to Dismiss for Violation for Speedy Trial Rule.

The Court has reviewed the pending motions and based upon the reasons to follow, the Court hereby grants the Consolidated Motion to Amend Count I and Motion to Dismiss Remaining Counts and hereby denies the Motion to Dismiss for Violation of Speedy Trial Rule.

II.  Consolidated Motion to Amend Count I and Motion to Dismiss Remaining Counts

A.  Motion to Amend Count I of the Information

Following the Court’s order issued on March 20, 2018, the Plaintiff FSM filed its Consolidated Motion to Amend Count I and Motion to Dismiss the Remaining Counts.  The Plaintiff FSM seeks to amend Count I of its Information by changing the date from "May of 2014" to "Sometime between May and July of 2014" with some stylistic changes.  The Plaintiff FSM reasoned that while preparing for trial their counsel realized that the witnesses were not sure of the exact date that Defendant Talley obtained and relinquished the firearm.  Consequently, the Plaintiff FSM represented that their counsel reviewed the Information and found that all of the counts in the Information alleged that Defendant Talley’s criminal activity occurred in May of 2014.  The Plaintiff FSM further claimed that their counsel then recalled movement records he had obtained from the FSM Division of Immigration last November, 2017, and confirmed that those records showed that Defendant Talley did not arrive in Kosrae until June, 2014.  Thus, the Plaintiff FSM seeks the Court’s permission to amend the Information to accurately reflect this discovery.

In his opposition, filed on April 13, 2018, the Defendant Talley argued that the Government’s request should not be granted because they had ample time, since 2016, to make this finding and request for amendments accordingly.  The Defendant Talley further argued that he is severely prejudiced by the long delay and overly burdened by this request as it will continue to delay trial in this case, and that he should not be penalized for the Government’s neglect to prosecute this case.  The Defendant Talley contended that allowing the amendments at this late stage is not in the interest of the public or for judicial economy.  The Defendant Talley claimed that dates and facts are critical, and such amendment to the Information promotes conjecture that the offenses occurred over three months: May, June, and July, 2014.

FSM Criminal Rule 7(e) provides the following: "Amendment.  The court may permit an information to be amended at any time before finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."

In certain matters, amendments to the Information were permitted when the original Information contained the factual elements necessary to charge the defendants thereby providing notice to the defendants of the offense and their substantial rights are not prejudiced by this amendment.  FSM v. Sam, 14 FSM Intrm. 328, 332 (Chk. 2006).  On the other hand, "[i]f the government adds a completely new or different offense of which the defendant had no notice, Rule 7(e) would be violated."  Id.  Furthermore, pursuant to FSM Criminal Rule 7(e), amendments to the Information were permitted when it sought only to clarify the application of relevant statutes, and no further factual allegations and no different or additional charges were made against the accused.  FSM v. Suzuki, 17 FSM Intrm. 70, 76 (Chk. 2010).

In the instant matter, there is no new, additional or different offense for which to charge Defendant Talley since the amendment seeks only to change the date from "May of 2014" to "Sometime between May of 2014 and July of 2014."  Although the Court understands Defendant Talley’s contentions, the essential elements of the crime for which Defendant Talley is charged has been provided in the Information and that remains unchanged except for the inclusion of the months of June and July to the date of the allegation.  Thus, Defendant Talley’s substantial rights are not prejudiced by the requested amendment to the Information.

In accordance with FSM Criminal Rule 7(e) and based upon the reasons above, now, therefore, it is hereby ordered that Plaintiff FSM’s Motion to Amend Count I is hereby granted.  It is further ordered that the amendments to the Information are made accordingly.

B.  Motion to Dismiss Remaining Counts in the Information

The Plaintiff FSM seeks leave to dismiss the remaining Counts II, III, IV, V, and VI.  The Plaintiff FSM asserted that due to the Court’s rationale in its Order of Dismissal issued on October 25, 2017 concerning these other Counts and because the Government does not have sufficient evidence to obtain or sustain a conviction on them, the Plaintiff FSM is requesting that the abovementioned Counts in the Information filed in June, 2016 be dismissed.  On April 13, 2018, Defendant Talley responded that he does not oppose the dismissal of these remaining counts.

Accordingly, the remaining Counts II, III, IV, V, and VI are hereby dismissed.

III.  Conclusion

For the reasons mentioned above, it is hereby ordered that the Plaintiff’s Motion to Amend Count I of the Information is granted.  It is further ordered that Counts II, III, IV, V, and VI are hereby dismissed.

IV.  Speedy Trial Violations

In addition to its Opposition to Plaintiff FSM’s Motion to Amend Count I of the Information, the Defendant Talley requested that the Court dismiss the Information for violation of his right to speedy trial.  The Defendant Talley contended that there is no just cause for the length of time, nearly two years, in bringing this matter to trial.  Furthermore, the Defendant Talley claimed that he is prejudiced by this unjustified delay which has caused him severe prejudice and financial hardship.

The Plaintiff FSM responded, in pertinent part, that the Defendant Talley caused much of the delay in this matter and that the delay attributable to the Government does not warrant a dismissal.  The Plaintiff FSM also argued that the Defendant Talley did not vigorously assert his right to speedy trial because he explicitly or implicitly consented to the delays.  The Plaintiff FSM further contended that there is no prejudice to the  Defendant Talley as a result of the delay by the Government, and that the Defendant Talley’s false representations to the Court are not sufficient grounds for dismissal of this case.

"If there is unnecessary delay in filing an information against a defendant who has been held to answer, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the information or complaint."  FSM Crim. R. 48(b).  "Rule 48(b) is the mechanism by which a defendant may assert his constitutional right to a speedy trial, although it also embraces the court’s inherent power to dismiss for want of prosecution."  FSM v. Wainit, 12 FSM Intrm. 405, 409 (Chk. 2004) (citations omitted).  "The court’s power to dismiss under Rule 48(b) is not limited to those situations in which the defendant’s [constitutional] speedy trial right has been violated."  Id.  "The Rule is a restatement of the inherent power of the court to dismiss a case for want of prosecution."  Id. (citations omitted).  "The Rule imposes a stricter standard of tolerable delay than does the [constitution]."  Id.

Because FSM Const. art. IV, § 6 is traceable to the U.S. Bill of Rights, the Court in Wainit looked at a leading U.S. Supreme Court case, Barker v. Wingo, which established the following four-factor balancing test in determining speedy trial violations:  (1) Length of delay; (2) Reason for the delay; (3) Defendant’s assertion of his right, and (4) Prejudice to the defendant. 12 FSM Intrm. at 410.

The four-factor balancing test as adopted by this Court is used to analyze the Constitution’s right to speedy trial and to determine speedy trial violations as well as whether a Rule 48(b) dismissal for unnecessary delay is warranted.  FSM v. Kansou, 15 FSM Intrm. 180, 183 (Chk. 2007).  The four-factor balancing test is also used to determine whether a court may exercise its discretionary power to dismiss under Rule 48(b) and whether a dismissal is appropriate under 12 F.S.M.C. 8021 since the statutory right is embodied in FSM Criminal Rule 48(b).  Id.  In light of Defendant Talley’s contentions in this instant matter, the Court employs the four-factor balancing test to determine whether his constitutional right to speedy trial is violated and a dismissal is warranted pursuant to FSM Criminal Rule 48(b) and 12 F.S.M.C. 802.

a.  Length of Delay

"A lengthy delay (the first factor) is a triggering mechanism to determine if further analysis is required."  Wainit, 12 FSM Intrm. at 410.  This matter has been pending since June, 2016.  This two-year delay is presumptively prejudicial; therefore, the three remaining balancing factors are triggered.

b.  Reason for Delay

"An accused is not denied a speedy trial when the delay is clearly attributable to the accused himself or his counsel."  FSM v. Ezra, 19 FSM R. 497, 506 (Pon. 2014) (citations omitted).  "Such delay includes the defendant’s excused absences and the time to rule on his pretrial motions."  Id.  Furthermore, "[d]elay caused or requested by a defendant suspends his speedy trial right, or is considered his waiver of that right, until that delay is over, even when that delay is justified."  Wainit, 12 FSM Intrm. at 411-12 (citations omitted).  Furthermore, a defendant cannot for the purposes of speedy trial or unnecessary delay take advantage of delays that he has caused even if those delays were justified.  Id.

In the case at bar, the Court is persuaded that most of the delay is attributable to Defendant Talley.  The motions that he filed beyond the set deadline for pre-trial motions caused delay since it required time for response from opposing party and ruling by the Court before this case could proceed to trial.  Additionally, those motions required time for scheduling and travel to Kosrae for hearings.  Moreover, certain actions by the Defendant Talley throughout the procedural course of this case also resulted in continuance of trial.  For the most part, delay in getting this matter to trial are attributable to Defendant Talley’s conduct.  Even if those delays were justified he cannot take advantage of the delay that stemmed from his own actions for the purposes of a speedy trial or unnecessary delay objection.

c.  Defendant’s Assertion of His Right

"A defendant may waive his right to a speedy trial.  He effects a waiver . . . when he requests it, consents to it, enters a plea of guilty . . . or when the delay is otherwise attributable to the defendant."  Ezra, 19 FSM R. at 507.  "Although non-assertion of the right does not constitute waiver of the speedy trial right, a court can consider whether the right was asserted, and how vigorously, in determining the reasonableness of any delay."  Id.  See Kansou, 15 FSM Intrm. at 185.

In this instant matter, the Court is not persuaded by Defendant Talley’s contentions.  From his actions, it appears as if the Defendant Talley may have waived his right to speedy trial when he requested for continuance; when he did not oppose the Government’s request for continuance; when he made certain representations that resulted in continuance of trial; and when he filed pre-trial motions beyond the set deadline.  Furthermore, even if he did not assert his right thereby not waiving it, Defendant Talley did not demonstrate to the Court that he vigorously asserted his right to speedy trial.

d.  Prejudice to the Defendant

"Prejudice to an accused may consist of:  (1) oppressive pretrial incarceration; (2) the accused’s pretrial anxiety; and (3) impairment of the defense.  Kansou, 15 FSM Intrm. at 188 (citations omitted).  Of these, the most serious is the last because the possibility that an accused may not be able to adequately prepare his defense ‘skews the fairness of the system’."  Id.  The least significant is "pretrial anxiety" because it is natural for an accused to experience some anxiety; therefore, the defendant must demonstrate to the Court "extraordinary or unusual" pretrial anxiety.  Id.

The Court is not convinced that Defendant Talley is prejudiced by the delay.  Although Defendant Talley’s pre-trial conditions restricted travel outside of the FSM, there was no oppressive pre-trial incarceration.  The Defendant Talley was recently permitted to travel to Japan for official business purposes.  Moreover, although some pretrial anxiety is natural or even expected, the Defendant Talley did not establish "extraordinary or unusual" pretrial anxiety.  Furthermore, there is no impairment to his defense since Defendant Talley is fully aware of the charges against him.  There is no new, different or additional charge against him.

V.  Conclusion

In weighing the four-factor balancing test, the Court concludes pursuant to FSM Const. art. IV, § 6, FSM Crim. R. 48(b) and 12 F.S.M.C. 802 that the Defendant Talley’s constitutional right to a speedy trial has not been violated by the delay in getting this matter to trial.  Now, therefore, it is hereby ordered that Defendant’s Motion to Dismiss for Violation of Speedy Trial Rule is hereby denied.

VI.  Plea Hearing/Trial Date

In light of the above conclusions the Court hereby sets plea hearing and/or trial in this matter on Tuesday, October 23rd, at 9:30 a.m. at the FSM Supreme Court in Tofol, Kosrae.  Upon entering of a not guilty plea, a trial will follow immediately thereafter.

The parties shall also exchange witness and exhibit lists with the opposing party and the court in preparation of trial, if needed.

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