FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2016-1503

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

LUCKY SHIRO, ONSORI SINO, TASIRO
LOVES, and KACHURA ANGKEN,
Defendants.
__________________________________________

ORDER DENYING STAY AND RELEASE FROM CUSTODY

Dennis K. Yamase
Chief Justice

Decided:  November 26, 2018

APPEARANCES:

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

For the Defendant (Shiro):	Bethwell O’Sonis, Esq.
       		Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

For the Defendant (Sino):	Charleston Bravo
       		Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review - Stay - Criminal Cases
Stays in criminal cases are granted in accordance with the provisions of Criminal Procedure Rule 38(a), which provides that a defendant who has been sentenced to imprisonment and who has appealed will be released pursuant to Appellate Rule 9(b), and Appellate Rule 9(c) sets out the criteria for release under Appellate Rule 9(b).  FSM v. Shiro, 22 FSM R. 120, 122 (Chk. 2018).

Appellate Review - Stay - Criminal Cases
A person who has been convicted of a crime and has filed an appeal will be released only if the court believes that one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.  Defendants have the burden of establishing the requisite criteria under Appellate Rule 9(c) to qualify for a stay of imposition of sentence pending appeal.  A stay of sentence pending appeal is not automatic upon the filing of a notice of appeal and a motion to stay, but rests on the court’s discretion.  FSM v. Shiro, 22 FSM R. 120, 123 (Chk. 2018).

Appellate Review - Stay - Criminal Cases
Defendants must provide the court with facts upon which to assess whether they pose a flight risk, since this determination is a prerequisite to a consideration of the merits of their stay on appeal.  FSM v. Shiro, 22 FSM R. 120, 123 (Chk. 2018).

Appellate Review - Stay - Criminal Cases
The length of the sentence imposed may provide a defendant with substantial motivation to avoid the court’s jurisdiction and make him a flight risk.  FSM v. Shiro, 22 FSM R. 120, 123 (Chk. 2018).

Appellate Review - Stay - Criminal Cases
Defendants must provide the court with facts upon which to assess whether they pose a danger to the community.  The nature of the crime itself may indicate that the defendant is a danger to the community.  FSM v. Shiro, 22 FSM R. 120, 123 (Chk. 2018).

Appellate Review - Stay - Criminal Cases
When the court is unable to analyze the merits of the motion to stay and release from custody without further information and evidence being submitted by the defendants, the defendants have failed to establish eligibility for relief as set forth in Appellate Rule 9(b) and (c), and their motion to stay and for release from custody will be denied.  FSM v. Shiro, 22 FSM R. 120, 123 (Chk. 2018).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

I.  Background

On August 8, 2018, the Defendant, Lucky Shiro, was sentenced to fifteen (15) years of imprisonment, of which the first nine (9) years shall be served under the custody of the Department of Public Safety for Count VIII, Trafficking in Children.  In addition, on August 8, 2018, the Defendant, Onsori Sino, was sentenced to fifteen (15) years of imprisonment, of which the first nine (9) years shall be served under the custody of the Department of Public Safety for Count I, Trafficking in Children.  Lucky Shiro and Onsori Sino (herein, "Defendants") were ordered to report to the Chuuk State jail on August 16, 2018 to serve part of their sentences in jail.

On September 10, 2018, the Defendants Lucky Shiro and Onsori Sino filed a Notice of Appeal with all Defendants in this action.  On September 10, Defendants Lucky Shiro and Onsori Sino filed a Motion to Stay and Release from Custody of the Department of Public Safety during the pendency of defendants’ Lucky Shiro and Onsori Sino Appeal (herein, "Motion to Stay and Release from Custody").  The Motion to Stay and Release from Custody is submitted pursuant to FSM Criminal Rule 38(a)(2).1  The Plaintiff Federated States of Micronesia has not filed any oppositions.

II.  Analysis

Stays in criminal cases shall be granted in accordance with the provisions of FSM Criminal Procedure Rule 38(a).  Rule 38(a)(2) provides that a Defendant who has been sentenced to imprisonment and who has appealed shall be released pursuant to FSM Appellate Procedure Rule 9(b).  Appellate Rule 9(c) sets out the criteria for release under Appellate Rule 9(b).  FSM v. Petewon, 14 FSM R. 463, 467 (Chk. 2006).

The Appellate Rule 9(c) criteria for release pending appeal are as follows:

CRITERIA FOR RELEASE.  A person who has been convicted of an offense and has filed an appeal shall be released in accordance with the below‑stated provisions only if the court believes that one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.  If the court concludes that no such a risk of flight or danger exists and it appears that the appeal is not for purpose of delay, and raises a substantial question of law or fact likely to result in:  (1) reversal; (2) an order for a new trial; (3) a sentence that does not include a term of imprisonment; or (4) a reduced sentence to a term of imprisonment less than the total of the time already served, plus the expected duration of the appeal process, the person shall be released.  The burden of establishing the requisite criteria rests with the defendant.

(emphasis added).

The Defendants have the burden of establishing the requisite criteria under FSM Appellate Rule 9(c) to qualify for a stay of imposition of sentence pending appeal.  FSM v. Wainit, 14 FSM R. 164, 167 (Chk. 2006).  A stay of sentence pending appeal is not automatic upon the filing of a notice of appeal and a motion to stay, but rests on the court’s discretion.  FSM v. Moses, 12 FSM R. 509, 511 (Chk. 2004).

III.  Flight Risk

The Defendants have not provided the Court with facts upon which to assess whether they pose a flight risk.  This determination is a pre-requisite to a consideration of the merits of the Defendants’ stay on appeal.  FSM v. Wainit, 14 FSM R. at 167.

Here, the length of the sentence imposed (15 years) provides Defendants with substantial motivation to avoid the Court’s jurisdiction.  United States v. Castiello, 878 F.2d 554, 555 (1989) (possible sentence of 97 to 121 months of incarceration a factor in denying release pending sentencing).

IV.  Danger to the Community

The Defendants have also not provided the Court with facts upon which to assess whether or not they pose a danger to the community.  FSM v. Wainit, 14 FSM R. at 167.

Here, the nature of the crime itself indicates that these Defendants are a danger to the community.  United States v. Patterson, 576 F.3d 431, 439 (7th Cir. 2009) (transporting minor in interstate commerce with intent that minor engage in prostitution was a crime of violence); United States v. Devinna, 5 F. Supp. 2d 872, 873 (E.D. Cal. 1998) (defendant not released pending sentencing as charges related to child pornography by definition entailed danger to the community, regardless of lack of flight risk).

V.  Purpose and Basis of Appeal

The Court is unable to further analyze the merits of the Motion to Stay and Release from Custody without further information and evidence being submitted by the Defendants.  The Defendants have failed to establish eligibility for relief as set forth above in FSM Appellate Rule 9(b) and (c).

Therefore, the Motion to Stay and Release from Custody of the Defendants Lucky Shiro and Onsori Sino is hereby denied.

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