FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2019-3504

FEDERATED STATES OF MICRONESIA,
Plaintiff,
vs.

ANTHONY RUTUN TETEETH,
Defendant.
__________________________________________

ORDER GRANTING LEAVE TO DISMISS WITHOUT PREJUDICE ONCE SUPERSEDING INFORMATION IS FILED

Larry Wentworth
Associate Justice

Decided: January 6, 2020

APPEARANCES:

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

For the Defendant:	Marstella E. Jack, Esq.
P.O. Box 2210
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure - Information
The terms "criminal complaint" and "criminal information" are not interchangeable.  "Criminal complaint" refers to a written statement of the essential facts constituting the offense charged that was made upon oath before a judicial officer or a clerk of court.  A complaint’s principal function is as a basis for an application for an arrest warrant, but no complaint is needed, if a more formal determination of probable cause is made first because if an information has been filed before the arrest, a warrant may be issued on this ground alone.  A "criminal information" is a plain, concise and definite written statement of the essential facts constituting the offense charged, that must be signed by the government’s attorney.  FSM v. Teteeth, 22 FSM R. 438, 441 n.1 (Yap 2020).

Criminal Law and Procedure - Information
The information is the charging document, and it need not be limited to the terms of the complaint.  Thus, a criminal complaint could be signed by the arresting officer, with the accused later prosecuted by an information signed by a government attorney.  FSM v. Teteeth, 22 FSM R. 438, 441 n.1 (Yap 2020).

Criminal Law and Procedure - Motions - Unopposed
Even when a motion is unopposed, the motion must still present good grounds in law and fact before the court can grant it.  FSM v. Teteeth, 22 FSM R. 438, 441 (Yap 2020).

Criminal Law and Procedure - Information
The court has consistently held that when determining whether an information is deficient, the information and its supporting affidavit(s) must be read together.  FSM v. Teteeth, 22 FSM R. 438, 442 (Yap 2020).

Criminal Law and Procedure - Information
The test for a particular information’s sufficiency is whether it is fair to the defendant to require him to defend on the basis of the charge as stated therein.  Liberality is the guide in testing an information’s sufficiency in charging all of the crime’s essential elements, although this applies to matters of form and not of substance.  FSM v. Teteeth, 22 FSM R. 438, 442 (Yap 2020).

Criminal Law and Procedure - Information
An accused’s contention that the information is defective because various factual allegations are missing in the information itself is a matter of form, not substance when the information’s supporting affidavit includes sufficient factual allegations to fairly inform the accused of the essential elements of the charges against him so that he may fashion a defense and to also inform the court of the facts alleged so that it can determine whether those facts, if proven, would support a conviction.  FSM v. Teteeth, 22 FSM R. 438, 442 (Yap 2020).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Prosecutors
At common law, the prosecutor could enter a nolle prosequi [dismissal] without the court’s approval, but Rule 48(a) alters that so that only by leave of court can the prosecution file a dismissal.  But the decision to prosecute is essentially for the government’s executive branch, and the court cannot require the government to file a dismissal.  FSM v. Teteeth, 22 FSM R. 438, 443 n.2 (Yap 2020).

Criminal Law and Procedure - Information - Superseding
When a superseding information was filed along with the motion to dismiss, and the superseding information bears the current case’s docket number and is not accompanied by its own affidavit(s) of probable cause, the court, based on these circumstances, must consider it to be a proposed superseding information.  FSM v. Teteeth, 22 FSM R. 438, 443 n.3 (Yap 2020).

Criminal Law and Procedure - Information; Criminal Law and Procedure - Prosecutors
Since the court’s rules require only that the information be signed by the attorney for the government, when the signer is unquestionably an attorney, is unquestionably employed by the government, and is acting on the government’s behalf, he has apparent authority to sign a criminal information.  If the signer’s actions exceed what he was contracted to do or what any written or oral amendment to that contract authorized him to do, that is a matter for the contracting parties to resolve between themselves.  FSM v. Teteeth, 22 FSM R. 438, 444 (Yap 2020).

Criminal Law and Procedure - Information - Amendment; Criminal Law and Procedure - Information - Superseding

Rule 7(e) does not affect a superseding information.  While Rule 7(e) bars amending an information to charge an additional offense, the prosecution may file a superseding information with additional charges.  An information is considered superseding when the subsequent information charges a different offense or alleges facts different from the original charges.  FSM v. Teteeth, 22 FSM R. 438, 444 (Yap 2020).

Criminal Law and Procedure - Information - Superseding
Generally, the prosecution will file a superseding information when new facts or evidence have come to light and it seeks to prosecute new or additional charges stemming from the same course of conduct or when the prosecution seeks to correct defects in the charges already filed.  FSM v. Teteeth, 22 FSM R. 438, 444 (Yap 2020).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Information - Superseding
The reasons for which a court may, under Rule 48(a), exercise its discretion and grant the government leave to dismiss an information are:  1] a plea agreement; 2] the defendant’s death; 3] the defendant’s incompetency to stand trial; 4] when the government’s security interests might be placed at risk by disclosures at trial; 5] when a defendant has cooperated with a prosecutorial investigation; and 6] when the information has been superseded.  FSM v. Teteeth, 22 FSM R. 438, 444 (Yap 2020).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Information - Superseding
A dismissal properly taken under Rule 48(a) is without prejudice, and within the period of statute of limitations, a second information may be brought on the same charge.  The result will be otherwise, and the dismissal will be with prejudice, if the government sought dismissal for an improper purpose, such as harassment of the defendant.  Besides harassment, the court may also deny a motion to dismiss without prejudice if the motion is clearly contrary to manifest public interest.  FSM v. Teteeth, 22 FSM R. 438, 445 (Yap 2020).

Criminal Law and Procedure
The court must first look to FSM sources of law to establish legal requirements in criminal cases, but, when the court has not construed aspects of an FSM criminal procedure rule that is similar to a U.S. rule, it may look to U.S. sources for guidance.  FSM v. Teteeth, 22 FSM R. 438, 445 n.4 (Yap 2020).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Information - Superseding
Prosecutorial harassment can occur when the prosecutor charges, dismisses, and recharges a defendant and moves to dismiss an information over the defendant’s objection.  But a request for a dismissal of the original information without prejudice once a superseding information has been filed is usually not in bad faith because it is in the public interest that the prosecution accurately charges the offenses that may have been committed.  FSM v. Teteeth, 22 FSM R. 438, 445 (Yap 2020).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Double Jeopardy
Leave to dismiss an information (or charges therein) without prejudice will, unless the accused has consented, be denied if the leave is sought after the accused has been put in jeopardy or has pled guilty.  FSM v. Teteeth, 22 FSM R. 438, 445 (Yap 2020).

Criminal Law and Procedure - Double Jeopardy
Jeopardy does not attach until the first witness is sworn in at trial.  FSM v. Teteeth, 22 FSM R. 438, 445 (Yap 2020).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Double Jeopardy; Criminal Law and Procedure - Information - Superseding
There are serious doubts that a defendant’s not guilty plea would, by itself, ever be an adequate ground to deny a dismissal without prejudice after a superseding information has been filed.  But a guilty plea would be a good reason because a guilty plea’s waiver of trial means that jeopardy has attached.  FSM v. Teteeth, 22 FSM R. 438, 445 n.5 (Yap 2020).

Criminal Law and Procedure - Pleas
While the rules do permit the court to take an accused’s plea during the accused’s initial appearance, it is not this court’s usual practice to do so.  The one time that the FSM Supreme Court might be persuaded to take a plea during the accused’s initial appearance, would be when the accused, while represented by counsel, has already negotiated a plea bargain with the prosecution and the parties are ready to proceed with the Rule 11 plea colloquy.  FSM v. Teteeth, 22 FSM R. 438, 446 & n.7 (Yap 2020).

Criminal Law and Procedure - Pleas
The court will generally not take the accused’s plea until after all pretrial motions have been decided, and the accused and the prosecution have been forewarned that if a not guilty plea is entered at the accused’s scheduled plea hearing, then trial will start immediately thereafter, so both sides should be prepared for that eventuality.  FSM v. Teteeth, 22 FSM R. 438, 446 (Yap 2020).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This comes before the court on 1) the government’s Motion for Leave to Dismiss the Criminal Complaint1 Without Prejudice, filed December 11, 2019; and the defendant’s Opposition to Plaintiff’s Motion to Dismiss Complaint and File New Information, filed December 27, 2019; and on 2) the defendant’s Motion to Dismiss Based on Defects in the Information, filed December 19, 2019.  No opposition was filed to the defendant’s motion.  The court will address these two motions to dismiss in reverse order.

I.  Teteeth’s Motion to Dismiss

The defendant, Anthony Rutun Teteeth, moves, unopposed, for dismissal of the current information against him because, in his view, that information is fatally defective.  Even though the motion is unopposed, the motion must still present good grounds in law and fact before the court can grant it.  Berman v. Pohnpei, 17 FSM R. 360, 374 (App. 2011); Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 442 (App. 1994).

Teteeth contends that the information is defective because it does not plead sufficient facts to inform him of the charges against him so that he may frame a defense, or to inform the court of those alleged facts so that the court may determine whether those facts, if proven, would support a conviction.  As an example of those defects, Teteeth points to the omission of details such as the time and place the charged crimes allegedly occurred.

Teteeth is correct that, although the information does state a date for the crimes charged, it does not specify where in Yap, or exactly when those crimes were allegedly committed, or the victim’s name.  Teteeth, however, overlooks the affidavit supporting the information.  Although it seems that that affidavit was prepared primarily for the purpose of obtaining a search warrant, it does double duty as the affidavit used to establish probable cause for the information and arrest warrant.  It contains detailed statements about the time and place(s), and against whom, the crimes charged were allegedly committed, as well as other details of the government’s investigation.

The court has consistently held that when determining whether an information is deficient, the information and its supporting affidavit(s) must be read together.  FSM v. Chunn, 21 FSM R. 501, 504 (Pon. 2018); FSM v. Mumma, 21 FSM R. 387, 398 (Kos. 2017); FSM v. Ehsa, 20 FSM R. 106, 109 (Pon. 2015); FSM v. Meitou, 18 FSM R. 121, 129 (Chk. 2011); FSM v. Sorim, 17 FSM R. 515, 520 (Chk. 2011); FSM v. Phillip, 17 FSM R. 413, 426 (Pon. 2011); FSM v. Esefan, 17 FSM R. 389, 395 (Chk. 2011); FSM v. Sato, 16 FSM R. 26, 29 (Chk. 2008).  The court has been given no reason why it should depart from this principle in this instance.

The test for a particular information’s sufficiency is whether it is fair to the defendant to require him to defend on the basis of the charge as stated therein, and liberality is the guide in testing an information’s sufficiency in charging all of the crime’s essential elements, although this applies to matters of form and not of substance.  FSM v. Itimai, 20 FSM R. 232, 234 (Pon. 2015); Ehsa, 20 FSM R. at 108-09; Meitou, 18 FSM R. at 129; Sorim, 17 FSM R. at 519; Esefan, 17 FSM R. at 394.  Reading the information and its supporting affidavit together, the court concludes that it would be fair to Teteeth to require him to defend on the basis of the information’s charges.

This is because Teteeth’s contention that the Criminal Case No. 2019-3501 information is defective because various factual allegations are missing in the information itself is a matter of form, not substance.  The information’s supporting affidavit includes sufficient factual allegations to fairly inform Teteeth of the essential elements of the charges against him so that he may fashion a defense and to also inform the court of the facts alleged so that it can determine whether those facts, if proven, would support a conviction.

Accordingly, the court concludes that, when the current information and its supporting affidavit are read together, the information cannot be considered fatally defective.  Sufficient factual allegations are made for Teteeth to be able to prepare his defense.  Since no good grounds have been shown, Teteeth’s motion to dismiss the Criminal Case No. 2019-3501 information against him is therefore denied.

II.  Government’s Motion to Dismiss

A.  The Parties’ Positions

The prosecution moves, under Criminal Procedure Rule 48(a), for leave to dismiss the current information because it intends to file a superseding information against Teteeth.2  The current information charges Teteeth with two counts - [1] illegal possession of a 12 gauge shotgun, violating 11 F.S.M.C. 1023(5); and [2] the use of that firearm in connection with the commission of a crime against the laws of the Federated States of Micronesia, violating 11 F.S.M.C. 1023(7).  The prosecution’s proposed superseding information3 would charge Teteeth with [1] illegal possession of a 12 gauge shotgun, violating 11 F.S.M.C. 1023(5), which prohibits possessing shotguns larger than .410 gauge; [2] the use of that firearm and ammunition to commit a crime, namely the murder of Rachelle Bergeron, violating 11 F.S.M.C. 1023(7); [3] possessing the 12 gauge shotgun without possessing or being a legal holder of a firearms identification card, violating 11 F.S.M.C. 1006; [4] carrying that firearm without a valid firearms identification card and not unloaded and in a locked case, violating 11 F.S.M.C. 1007; and [5] conspiring with Francis Choay Buchun to use that shotgun to murder Rachelle Bergeron, violating 11 F.S.M.C. 203.

The prosecution contends that its superseding information will correct defects in the current information and will not prejudice Teteeth since it is not meant to harass him and is not brought in bad faith.  The prosecution also contends that the superseding information will allow Teteeth to better understand the charges against him and prepare his defense accordingly.  The prosecution argues that the public interest is that it charge Teteeth accurately, and a superseding information is the proper vehicle to do that because it would add and prosecute the additional charges.

Teteeth contends that the prosecution should not be permitted to dismiss the current information without prejudice because, in his view, Rule 48(a), does not allow the filing of a new criminal information under the same set of facts.  Teteeth further contends that Rule 7(e) applies, and that while that rule permits an information to be amended, it only allows amendments if the amended information charges no new or additional crimes, and the prosecution’s superseding information would charge additional crimes.

Teteeth asserts that the prosecution’s attempt to file a superseding information is made in bad faith and is meant to harass him because otherwise, it would not have waited two months after he was first charged, on October 28, 2019.  Teteeth contends that, unless the dismissal is with prejudice, he would be prejudiced because he has already pled to the current charges and he has sat in jail for two months since then, awaiting his day in court, and has incurred considerable expenses by retaining counsel from Pohnpei.

Lastly, Teteeth notes that the current information was signed by Joses R. Gallen, whose position, as listed on the information when he signed it, was "Consultant, Department of Justice."  Teteeth contends that this must mean that Gallen did not have the authority to sign the information, and that therefore it must, on that basis, be dismissed with prejudice.

B.  Analysis

1.  Attorney’s Signature on Current Information

The court can grant Teteeth no relief based on attorney Gallen’s signature on the current information.  The court’s rules require only that the information "be signed by the attorney for the government."  FSM Crim. R. 7(c)(1).  Gallen is unquestionably an attorney, was unquestionably employed by the government, and was acting on the government’s behalf.  He thus had apparent authority to sign a criminal information.

If Gallen’s actions exceeded what he was contracted to do or what any written or oral amendment to that contract authorized, that is a matter for the contracting parties to resolve between themselves.  Nor can the court see how any inquiry into the contract’s terms would aid Teteeth.  His argument, without any authority, appears to be that Gallen’s signature was unauthorized, and, since it was unauthorized, the information must be void or a nullity, and that because it was void, the prosecution is barred from filing another information that would not be void.  Teteeth does not show, or even attempt to show, why the proper remedy in such an instance would not be a superseding information filed by an FSM assistant attorney general.

2.  Rule 7(e) and a Superseding Information

Teteeth is mistaken about Rule 7(e)’s application.  Rule 7(e) does not affect a superseding information.

While Rule 7(e) bars amending an information to charge an additional offense, the prosecution may file a superseding information with additional charges.  The Rule 7(e) bar does not apply to a superseding information.  An information is considered superseding when the subsequent information charges a different offense or alleges facts different from the original charges.

FSM v. Meitou, 18 FSM R. 121, 126 (Chk. 2011) (citations and footnote omitted).  "Generally, the prosecution will file a superseding information when new facts or evidence have come to light and it seeks to prosecute new or additional charges stemming from the same course of conduct or when the prosecution seeks to correct defects in the charges already filed."  Id. (footnote omitted).

As seen above, the proposed superseding information charges three additional crimes, at least one of which, conspiracy, requires facts not needed for the other charges.

3.  Rule 48(a) and Superseding Informations

Rule 48(a) does apply to dismissals by the prosecution.  The reasons for which a court may, under Rule 48(a), exercise its discretion and grant the government leave to dismiss an information are:  [1] a plea agreement; [2] the defendant’s death; [3] the defendant’s incompetency to stand trial; [4] when the government’s security interests might be placed at risk by disclosures at trial; [5] when a defendant has cooperated with a prosecutorial investigation; and [6] when the information has been superseded.  See FSM v. Tomiya Suisan Co., 11 FSM R. 15, 17 (Yap 2002) (citing cases).  The prosecution, by filing in this case, a copy of the superseding information it intends to prosecute, has put the court and Teteeth, on notice that it intends to supersede the current information.

It has not yet done so.  See supra note 3.  But once the prosecution has filed the superseding information (with the appropriate affidavit(s) of probable cause), it will have established a ground on which it would usually be granted leave to dismiss the earlier case without prejudice and proceed to prosecute the new case (superseding information).

A dismissal properly taken under Rule 48(a) is without prejudice, and within the period of statute of limitations, a second . . . information may be brought on the same charge.  The result will be otherwise, and the dismissal will be with prejudice, if the government sought dismissal for an improper purpose, such as harassment of the defendant.

3B Charles Alan Wright & Peter J. Henning, Federal Practice and Procedure § 801, at 327-29 (4th ed. 2013) (footnotes omitted).4  Besides harassment, the court may also deny a motion to dismiss without prejudice if the motion is "’clearly contrary to manifest public interest.’"  Id. § 802, at 338-39.

But nothing before this court indicates that the filing of a superseding information against Teteeth and the subsequent dismissal of this case without prejudice would be clearly contrary to manifest public interest.  Nor is any harassment apparent.  Prosecutorial harassment can occur when the prosecutor charges, dismisses, and recharges a defendant and moves to dismiss an information over the defendant’s objection.  Meitou, 18 FSM R. at 126.  Again, nothing indicates that the prosecution’s desire to proceed on a superseding information and dismiss without prejudice the current information is anything more than desire to prosecute a more accurate set of charges, including new charges.  A request for a dismissal of the original information without prejudice once a superseding information has been filed is usually not in bad faith because "it is in the public interest that the prosecution accurately charges the offenses that may have been committed."  Meitou, 18 FSM R. at 126-27 (citations and footnote omitted) (citing Tomiya Suisan Co., 11 FSM R. at 17).

Leave to dismiss an information (or charges therein) without prejudice will, unless the accused has consented, be denied if the leave is sought after the accused has been put in jeopardy, id. at 126 (citing Esefan, 17 FSM R. at 398 n.6), or has pled guilty.  Id.  Teteeth has not yet been put in jeopardy.  Jeopardy does not attach until the first witness is sworn in at trial.  Kosrae v. George, 17 FSM R. 5, 7 n.1 (App. 2010); FSM v. Cheng Chia-W (I), 7 FSM R. 124, 128 (Pon. 1995).  Since Teteeth has not yet gone to trial and no trial witness has been sworn, Teteeth has not yet been put in jeopardy.

In his December 27, 2019 opposition, Teteeth also asserts that he has already entered a plea (presumably not guilty5) in this case, and that he has been prejudiced by remaining in jail ever since.  Teteeth is mistaken about the plea.  This court has not yet taken his plea on any charge.6  Teteeth’s only court appearance before the December 20, 2019 hearing was his initial appearance.  No plea was taken then.

While the rules do permit this court to take an accused’s plea during the accused’s initial appearance, FSM Crim. R. 5(c) ("When a person . . . appears initially before a judicial officer . . . the person may be required to plead, at the discretion of the judicial officer."), it is not this court’s usual practice to do so.7  The court will generally not take the accused’s plea until after all pretrial motions have been decided, and the accused and the prosecution have been forewarned in the court’s scheduling order, that if a not guilty plea is entered at the accused’s scheduled plea hearing, then trial will start immediately thereafter, so both sides should be prepared for that eventuality.  The court has generally followed, and intends to continue, this practice.

III.  Future Proceedings

The court has been somewhat indulgent here.  The proper and usual way for the prosecution to seek leave to dismiss a criminal information without prejudice because it wishes to charge new or additional crimes or allege newly-found facts, is to first file a superseding information and then move to dismiss the earlier information.  Here, the prosecution, by filing a proposed superseding information, see supra note 3, has only indicated that that is what it intends to do.

Accordingly, the prosecution is granted leave to dismiss the current information only once, and if, it has filed a superseding information against Teteeth.  If the prosecution does file a superseding information, the court clerk will then assign it the next available docket number.  Any superseding information will, of course, be accompanied by whatever supporting affidavit(s) the prosecution believes will establish the requisite probable cause for the crimes charged.  The court will then promptly conduct an initial appearance on the superseding information and grant leave to dismiss this criminal case without prejudice.

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