FSM SUPREME COURT TRIAL DIVISION
SEARCH WARRANT APPLICATION NO. 2019-700

In the Matter of the Search and Seizure of:

WRECKED/DAMAGED HELICOPTER, shipping container holding the helicopter, and documents concerning said helicopter’s usage and ownership which are located at the Pacific Transfer and Storage facility in Pohnpei.

DAVE’S HELICOPTER SERVICE, INC.,
Real Party in Interest.
_____________________________________________

	ORDER DENYING INJUNCTION OR STAY

Larry Wentworth
Associate Justice

Hearing:  March 30, 2020
Submitted:  June 5, 2020
Decided:  June 15, 2020

APEARANCES:

For the Applicant:		Josephine Leben James, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Real Party in Interest:	Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES

Appellate Review - Stay - Civil Cases
A court usually weighs four factors when considering whether to grant a stay pending appeal:  1) whether the appellant has made a strong showing that it is likely to prevail on the appeal’s merits; 2) whether the appellant has shown that it will be irreparably harmed without the stay; 3) whether the stay’s issuance would substantially harm other parties interested in the proceedings; and 4) whether the public interest would be served by granting a stay, and ordinarily, the first factor is the most important, but a stay may be granted upon a lesser showing of a substantial case on the merits if the balance of the equities in factors 2, 3, and 4 weighs heavily in the stay’s favor.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 583-84 (Pon. 2020).

Civil Procedure - Injunctions
In exercising its broad discretion in considering whether to grant an injunction, a court considers four factors:  1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the movant, 3) the balance of possible injuries or inconvenience to the parties that would flow from granting or denying the relief, and 4) any impact on the public interest.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 584 (Pon. 2020).

Appellate Review - Stay - Civil Cases
The court, whether considering the matter before it to be a request to continue or reinstate an earlier injunction pending appeal or a request for a stay pending appeal, the court must consider the same basic four factors.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 584 (Pon. 2020).

Appellate Review - Stay - Civil Cases
When the appellant contends that there are important legal issues that must be resolved before its helicopter can be sent abroad, but those legal issues are all matters of United States federal law that can only be resolved in a United States federal court, not in an FSM court, the appellant’s claim that the issues must be heard and resolved by an FSM appellate court before the helicopter can be sent to Guam, a U.S. jurisdiction where those claims can actually be definitively resolved, is frivolous.  An FSM court is not the final arbiter of U.S. federal law, and the appellant should not try to make it so.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 584-85 (Pon. 2020).

Appellate Review - Stay - Civil Cases; Constitutional Law - Case or Dispute - Mootness

Although the appellant contends that if its helicopter is sent to Guam, its appeal is in danger of becoming moot, mootness is not even a consideration for all of the issues turning on U.S. federal law because those issues, if raised, will then be properly before the court where they should be determined, and, if there are any remaining issues restricted solely to FSM law, the appellant, if it chooses, can rely on the capable-of-repetition-yet-evading-review doctrine to avoid a dismissal based on mootness.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 585 (Pon. 2020).

Appellate Review - Stay - Civil Cases
The balance of harms weigh substantially, if not overwhelmingly, in the U.S.’s (as represented through the FSM) favor and not in true real party in interest’s (as represented through the appellant’s) favor when, without the helicopter, the U.S. loses the ability to use its "key" evidence against the true real party in interest in his upcoming criminal prosecution, but, once the appellant’s helicopter reaches Guam, the true real party in interest will still have every opportunity to raise his legal claims and seek suppression of that "key" evidence before trial in the only court where those issues are legally cognizable and can actually be raised and resolved - the U.S. district court on Guam.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 585 (Pon. 2020).

Search and Seizure - Probable Cause
FSM law provides that a statement contained in the foreign request to the effect that a serious offense has been or may have been committed against the foreign state’s laws is prima facie evidence of that fact.  When the appellant has presented nothing that overcomes that prima facie evidence, the true real party in interest, will, of course, be able to contest whether a serious offense was committed against the laws of a foreign state - the U.S. - in the courts of that foreign state and argue there about whether the evidence seized by the FSM for shipment to Guam is evidence of the commission of that alleged serious offense.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 585 (Pon. 2020).

Appellate Review - Stay - Civil Cases
An appellant’s purported concerns about its helicopter’s fate on Guam and whether it will ever get its helicopter back are misplaced, and cannot show any irreparable harm when the U.S., through the Assistant U.S. Attorney’s written undertaking, has agreed to comply with the terms of an FSM Supreme Court order about the helicopter’s return to the FSM.  There is thus no irreparable harm to the appellant since it will get its helicopter back, and the appellant will not suffer irreparable harm if its injunction is not reinstated.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 585-86 (Pon. 2020).

Appellate Review - Stay - Civil Cases
The public interest does not favor a stay when the public interest lies with assisting judicial inquiries into the truth and that those inquiries, and the legal issues around them, be resolved in a court that has the jurisdiction to resolve those legal issues and to make those truth-seeking inquiries - a U.S. federal court - and not needlessly consume FSM judicial resources to consider legal questions that can only be resolved elsewhere.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 586 (Pon. 2020).

Appellate Review - Stay - Civil Cases
A stay or an injunction pending appeal will not be granted when the irreparable harm, the balance of injuries, and the public interest factors all do not favor granting a stay or injunction pending appeal.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 586 (Pon. 2020).

Appellate Review - Stay - Civil Cases
When delay is the major reason, if not the sole reason, for an appellant to seek a stay or injunction pending appeal, the delay is for an improper purpose.  In re Wrecked/Damaged Helicopter, 22 FSM R. 580, 586 (Pon. 2020).

*    *    *    *

COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On January 27, 2020, the court issued its Order Denying Return of Property,  In re Wrecked/Damaged Helicopter, 22 FSM R. 447, 452 (Pon. 2020), in which the court denied the motion of the real party in interest, Dave’s Helicopter Service, Inc. ("Dave’s"), for the release of a wrecked or damaged helicopter that the FSM had seized pursuant to a search warrant that the FSM had sought and obtained on the United States government’s behalf as a matter of mutual legal assistance under 12 F.S.M.C. 1709.  That court order also dissolved an earlier injunction or order delaying the export of the seized helicopter.  Id. at 464.  On February 4, 2020, Dave’s filed its appeal from that order.

Dave’s then sought to reinstate that dissolved injunction.  This order hereby denies reinstatement of that injunction or a stay of the helicopter’s "export" pending appeal.

I.

On February 11, 2020, Dave’s filed its Motion to Maintain Injunction Pending Appeal, in which asked the court to maintain the injunction (previously dissolved) against the removal from Pohnpei of its wrecked-damaged helicopter that was the subject of the court’s order and enter a stay because Dave’s had appealed the January 27, 2020 order.  On March 2, 2020, the court, since no opposition to the motion had been filed, granted Dave’s motion and stayed the part of its January 27, 2020 order that dissolved the injunction against the wrecked or damaged helicopter’s removal from the FSM.

Shortly thereafter, the FSM moved for an enlargement of time to respond to Dave’s motion because it had just received the motion in the mail and intended to oppose it.  Dave’s did not oppose the enlargement.  The court then deemed the FSM’s March 17, 2020 Opposition to Maintain Injunction During Appeal timely filed.  The court, considering the FSM’s opposition to also be, in the alternative, a motion to lift the court’s March 2, 2020 stay, as well as an opposition to Dave’s motion to maintain injunction, set a telephonic hearing for March 30, 2020.  During that hearing, the FSM informed Dave’s and the court of assurances it had just received from the U.S. attorney for the District of Guam that, in the FSM’s view, addressed at least some of Dave’s arguments and stated concerns that if the helicopter was shipped to Guam, Dave’s was being dispossessed of its property and there was no guarantee that it would ever be returned.

The court thus asked for supplemental submissions about these assurances.  The FSM was given until May 22, 2020, to file a supplemental submission and Dave’s was given until May 29, 2020, to respond.  The FSM filed and served its supplemental submission on May 5, 2020.  Dave’s then asked that it be given until June 16, 2020, to respond.  The court, noting that Dave’s had received the FSM’s supplement seventeen days earlier than it expected, gave Dave’s an enlargement until June 5, 2020 to respond.  Dave’s did not file a response.  This matter was therefore considered submitted for decision.  The court therefore turns to the issue of whether the wrecked/damaged helicopter’s shipment to Guam should be stayed or enjoined.

II.

A court usually weighs four factors when considering whether to grant a stay pending appeal:  1) whether the appellant has made a strong showing that it is likely to prevail on the appeal’s merits; 2) whether the appellant has shown that it will be irreparably harmed without the stay; 3) whether the stay’s issuance would substantially harm other parties interested in the proceedings; and 4) whether the public interest would be served by granting a stay, and ordinarily, the first factor is the most important, but a stay may be granted upon a lesser showing of a substantial case on the merits if the balance of the equities in factors 2, 3, and 4 weighs heavily in the stay’s favor.  Mori v. Hasiguchi, 17 FSM R. 602, 604 (Chk. 2011); FSM Dev. Bank v. Helgenberger, 17 FSM R. 266, 269 (Pon. 2010); Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 176, 178-79 (Pon. 2010); Ponape Enterprises Co. v. Luzama, 6 FSM R. 274, 277-78 (Pon. 1993).  And, in exercising its broad discretion in considering whether to grant an injunction, a court considers four factors:  1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the movant, 3) the balance of possible injuries or inconvenience to the parties that would flow from granting or denying the relief, and 4) any impact on the public interest.  Luen Thai Fishing Venture, Ltd. v. Pohnpei, 18 FSM R. 563, 567 (Pon. 2013); Perman v. Ehsa, 18 FSM R. 432, 438 (Pon. 2012); FSM v. GMP Hawaii, Inc., 17 FSM R. 555, 593 (Pon. 2011).

Thus, whether the court considers the matter before it to be a request to continue or reinstate the court’s earlier injunction against sending the helicopter to Guam or a stay of the trial court’s order denying return of the helicopter, the court must consider the same basic four factors.  In this instance, a trial court injunction pending appeal and a trial court stay pending appeal are essentially the same thing.

III.
Dave’s contends that these four factors favor granting it a stay or an injunction pending appeal.  It claims that it will suffer irreparable harm if its helicopter is shipped to Guam because once the helicopter is gone to Guam it is gone and because, in Dave’s view, the U.S. government has never explained what the U.S. wants to do with the helicopter, where it will eventually end up, or why the helicopter’s removal from the FSM is necessary, and suggests that the U.S. must be required to do so.  Dave’s speculates that the helicopter might not remain on Guam or that it could be destroyed there.  It argues that irreparable injury is probable because, since the helicopter will be outside of the FSM, Dave’s will be harmed in a way that money damages could not fully compensate.

Dave’s argues that, if the balance of possible injuries were weighed, Dave’s would be found to suffer the greater harm.  Dave’s asserts that the public interest weighs in his favor because an orderly judicial process is in the public interest.  Dave’s, relying on the principle that a party may be granted a stay pending appeal even when the appeal’s likelihood of success is less than 50%, argues that the appellate court must first set guidelines, beyond the statutory provisions, for this and all future foreign mutual legal assistance requests before its helicopter can be sent outside the FSM.  Dave’s asserts that the other party will not be harmed if its helicopter has to remain in the FSM for the "few months" after Dave’s filed its appeal that it would take the appellate court to decide and finally conclude its proceedings.

The FSM submits the Assistant U.S. Attorney’s written statement that the U.S. criminal case against John D. Walker and four other persons is set to start September 29, 2020, and that the helicopter is a key piece of evidence in the case against those defendants, and a written undertaking that "[i]n the event the FSM Supreme Court orders the helicopter to be returned prior to the trial date, we agree to make the necessary coordination to and will cover expenses to have it shipped back to the FSM."  Letter from Assistant U.S. Attorney Stephen F. Leon Guerrero to FSM Assistant Attorney General Josephine Leben James (Apr. 30, 2020).

IV.

Dave’s contends that there are important legal issues that must be resolved before its helicopter can be sent abroad.  It contends that, whether the helicopter’s "water landing" was an incident reportable to U.S. authorities, whether the failure to report it was a crime, whether the U.S. had jurisdiction over that helicopter since it was illegally registered in the U.S., and thus whether there was probable cause to believe a crime may have been committed against the U.S., are all legal issues that must be resolved before Dave’s helicopter can leave the FSM.  Those legal issues are all matters of United States federal law that can only be resolved in a United States federal court, not in an FSM court.  Dave’s claim that they must be heard and resolved by an FSM appellate court before the helicopter can be sent to Guam, a U.S. jurisdiction where those claims can actually be definitively resolved is frivolous.  An FSM court is not the final arbiter of U.S. federal law.  Dave’s should not try to make it so.

Dave’s also contends that if its helicopter is sent to Guam, its appeal is in danger of becoming moot.  For all of the issues turning on U.S. federal law, mootness is not even a consideration because those issues, if raised, will then be properly before the court where they should be determined.  If there are any remaining issues restricted solely to FSM law, Dave’s, if it chooses, can rely on the capable-of-repetition-yet-evading-review doctrine to avoid a dismissal based on mootness.  See FSM v. Udot Municipality, 12 FSM R. 29, 49 (App. 2003).

Dave’s complains that its helicopter is to be sent to Guam for the benefit of a non-party - the U.S.  This is not exactly accurate.  The FSM appears in this case on the U.S.’s behalf and to represent the U.S.’s interests, as provided for by statute.  See 12 F.S.M.C. 1708-1709.  The U.S.’s interest is to use the helicopter as evidence in a criminal prosecution against John D. Walker and four others.  Also, since it is undisputed that Walker wholly owns and controls Dave’s, Walker is the true (and actual) real party in interest in this matter and Dave’s is merely representing his interest.1  Thus, the balance of harms weighs substantially, if not overwhelmingly, in the U.S.’s (as represented through the FSM) favor and not in Walker’s (as represented through Dave’s) favor.  Without the helicopter, the U.S. loses the ability to use its "key" evidence against Walker in his upcoming criminal prosecution.2  But Walker, once Dave’s helicopter reaches Guam, will still have every opportunity to raise his legal claims (that the helicopter’s mishap and the failure to report it to U.S. authorities was not a violation of U.S. federal law or that the U.S. had no jurisdiction over Dave’s helicopter) and seek suppression of that "key" evidence before trial in the only court where those issues are legally cognizable and can actually be raised and resolved - the U.S. district court on Guam.

FSM law provides that "a statement contained in the foreign request to the effect that a serious offense has been or may have been committed against the laws of a foreign state is prima facie evidence of that fact."  12 F.S.M.C. 1709(3).  Dave’s has presented nothing that overcomes that prima facie evidence.  Walker, the true real party in interest, will, of course, be able to contest whether a serious offense was committed against the laws of a foreign state - the U.S. - in the courts of that foreign state and argue there about whether the helicopter is evidence of the commission of that alleged serious offense.

Dave’s purported concerns about its helicopter’s fate on Guam and whether it will ever get its helicopter back are misplaced.  Dave’s cannot show any irreparable harm.  The U.S., through the Assistant U.S. Attorney’s written undertaking, has agreed to comply with the terms of an FSM Supreme Court order about the helicopter’s return to the FSM.  This should satisfy 12 F.S.M.C. 1709(10) ("No . . . thing seized and ordered sent to a foreign state shall be sent until the Secretary is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the . . . thing.").  The court will therefore set a date by which the helicopter must be returned to the FSM (unless Dave’s changes its mind about its return to the FSM).  The court has no reason to believe that the U.S. would not honor its undertaking to comply with an FSM court order and thereby jeopardize FSM cooperation on future mutual legal assistance requests.  There is thus no irreparable harm to Dave’s.  It will get its helicopter back.  Nor does Dave’s inability to use the helicopter while it is in Guam carry any weight.  It was in unusable condition and had been sitting on Pohnpei for about a year awaiting shipment to the Philippines when the FSM seized it pursuant to a search warrant.

Thus, Dave’s will not suffer irreparable harm if its injunction is not reinstated.  The balance of possible injuries do not weigh in Dave’s (or its principal’s) favor.  The public interest lies with assisting judicial inquiries into the truth and that those inquiries, and the legal issues around them, be resolved in a court that has the jurisdiction to resolve those legal issues and to make those truth-seeking inquiries - a U.S. federal court - and not needlessly consume FSM judicial resources to consider legal questions that can only be resolved elsewhere.  Thus, the irreparable harm, the balance of injuries, and the public interest factors all do not favor granting a stay or injunction pending appeal.

V.

At best, Dave’s assertion, that it would take the FSM appellate court only "a few months" from the start of the appeal to conclude its proceedings in the matter, is overly, if not exceedingly, optimistic or outright misleading.  Those "few months" are already almost gone.  The court can only note that the major reason, if not the sole reason, for Dave’s to seek a stay or injunction appears to be delay - which is an improper purpose.  Dave’s has delayed matters at every opportunity.  It sought and obtained a three-and-a-half month delay so that its Kansas co-counsel could appear and help argue its motion to release the helicopter and then, other than participating with local counsel in oral argument, the Kansas co-counsel never appeared again and never filed any written submissions.  Dave’s appealed the court’s decision promptly within eight days, but, in its own words, did so only because it was unsure whether the appeal was subject to the ten-day jurisdictional criminal appeal time limit, or the forty-two-day jurisdictional civil appeal time limit, and wanted to be sure the appellate court would have jurisdiction.  The only inference that can possibly be drawn from this is that Dave’s knew it wanted to appeal but wanted to take as long as legally possible to do so in the interest of further delay, possibly until its principal’s trial in the U.S. district court is over.  Although delay may not be particularly in Dave’s interest, it is definitely in the best interest of Dave’s principal - Walker, the true real party in interest - to delay the helicopter’s shipment to Guam until after Walker’s criminal trial is over.

Dave’s counsel is no doubt aware of a reason to expect further delay - that the other two article XI, section 3 FSM Supreme Court justices are likely disqualified from sitting on its appeal - the Chief Justice because he was the justice that made the initial determination and issued the search warrant that Dave’s challenges, and the senior associate justice because she was the justice who granted the injunction delaying the helicopter’s removal from the FSM, which Dave’s now seeks to have reinstated until all appellate proceedings have been concluded in some distant future.

VI.

For all the foregoing reasons, the court, to the extent that its March 2, 2020 stay or injunction is in place, hereby dissolves that stay or injunction, and to the extent that Dave’s has a motion for a stay pending before the court and that the FSM has a motion to lift that stay pending before the court, the court denies Dave’s motion to stay and grants the FSM’s motion to lift that stay.  The court will further order that Dave’s helicopter must be returned to the FSM no later February 1, 2021, or 30 days after the end of Walker’s trial, whichever comes first.

*    *    *    *