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Republic of the Marshall Islands v Timothy [1992] MHSC 11; 1 MILR (Rev) 270 (13 August 1992)

1 MILR (Rev.) 270

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CRIMINAL NO. 90-03
(High Ct. Crim. No. 1990-005)

REPUBLIC OF THE MARSHALL ISLANDS,
Plaintiff-Appellee,

-v-

ANIBAR TIMOTHY,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

AUGUST 13, 1992

LIBKUMAN, A.J. pro tem¹
ASHFORD, C.J. and KING, A.J. pro tem²

SUMMARY:

This is an appeal by Defendant-Appellant Timothy from a conviction involving a violation of 31 MIRC Ch. 1, §§ 5 and 38, which statutes involve obtaining money under false pretenses with intent to defraud. The appeal was based primarily on claims that the Criminal Information was insufficient and thus Timothy's due process rights were violated because the statutes in question did not establish a standard of conduct which would constitute a crime; that there was insufficient evidence to support the conviction; that certain exhibits were erroneously admitted at trial; and that the trial court erred in failing to grant Timothy's "Motion for Judgment of Acquittal." Affirmed.

DIGEST:

1. CRIMINAL LAW AND PROCEDURE – Statutes – Construction: 31 MIRC Ch. 1, §§ 5 and 38 are clear in their intent and purpose in describing criminal conduct and thus said statutes, and the Information based on said statutes, met the "due process" test of Article II, § 4(4) of the Marshall Islands Constitution.

2. EVIDENCE – Weight and Sufficiency: Judgment of the trial court will not be reversed for paucity of evidence unless said judgment is "clearly erroneous."

3. CRIMINAL LAW AND PROCEDURE – Statutes – Construction: MIRC Ch. 1, § 70 does not deprive the Supreme Court of jurisdiction in an appeal of a criminal conviction merely because the sentence is vacated pursuant to the terms of the statute prior to the conclusion of the appeal.

OPINION OF THE COURT BY LIBKUMAN, A.J.

This is an appeal from a Judgment and Judgment of Sentence dated August 28th, 1990 and October 26th, 1990, respectively, which found defendant Anibar Timothy (hereafter "Timothy") guilty of violating 31 MIRC Ch. 1, §§ 5 and 38. The Judgment of Sentence imposed a suspended sentence and probation on Timothy for all four counts of the Information. Timothy did not violate his probation, and pursuant to 31 MIRC Ch. 1, §§ 70(4) and (5) Timothy is entitled to be discharged by the Court and to have the Judgment vacated. Also, there is a disciplinary proceeding pending against Timothy (Disciplinary Proceeding 1990-1) in which the discipline imposed was founded mainly upon the criminal conviction. Thus, if the criminal conviction were reversed, the decision in the Disciplinary Proceeding against Timothy would necessarily have to be reconsidered. For these reasons, we have considered this appeal.

Facts: Timothy, a Trial Assistant, received a fee advance of $900.00 from the Lanitulok family to change the names of Mr. and Mrs. Lanitulok and their three children. Timothy's usual fee was $350.00 per person but he charged Mr. and Mrs. Lanitulok $300.00 each and the children $100.00 each with the understanding that he would submit a claim to the government legal aid fund in the amount of $350.00 for each child and if that amount were recovered he would reimburse the Lanitulok's in the amount of $100.00 per child and retain the balance of $250.00 per child. Timothy also represented Lenjo Anchor in a probate case and fees of approximately $1300.00 were advanced by Mr. Anchor's son or stepson [Grant Labuan] with the understanding that Timothy would again apply to the government legal aid fund for reimbursement of the fees and would reimburse Mr. Labuan to the extent of the fees recovered.

Timothy wrote to the Minister of Justice on September 18, 1989, requesting "$350.00 for retainer fee" for each of the cases from the legal aid fund. This request was made pursuant to 37 MIRC Ch. 1, § 1, et seq., which is the legal aid enactment and provides for payment of legal aid funds for Marshallese citizens who cannot afford legal services. By this letter Mr. Timothy impliedly represented that his clients were "unable to afford legal services."

In a trial of this action Judge Philip T. Bird found that Timothy attempted to obtain government funds (i.e., "the ...money of another") by "false pretenses thus violating 31 MIRC Chapter 1, Section 5 and 38" (see Judgment of August 28, 1990). Judgment and Judgment of Sentence were entered and Timothy filed a timely appeal to this Court.

Decision of the Court: The Judgment and Judgment of Sentence of the High Court are affirmed. The arguments raised by the parties are considered below.

[1] 1. Due Process Argument: Timothy claims his due process rights were violated because the Information is insufficient in that the statutes fail to establish a standard of conduct the violation of which would constitute a crime. Timothy was charged under 31 MIRC Ch. 1, §§ 5 and 38. 31 MIRC Ch. 1, § 38 provides that a person who shall unlawfully obtain the property of another by false pretenses, knowing those pretenses to be false, and with the intent to permanently defraud the owner thereof, shall be guilty of cheating. 31 MIRC Ch. 1, § 5 provides that a person who attempts to commit any crime which falls short of actual commission, shall be guilty of attempt to commit said crime. These statutes are sufficiently clear in their intent and purpose to establish the standard of conduct which was violated in this case. Thus the statutes withstand the "due process" tests of the cases cited in Timothy's Opening Brief, including Evans v. U.S., [1894] USSC 165; 153 U.S. 608, 14 S.Ct. 939 (1894) and Russell v. U.S., [1962] USSC 82; 369 U.S. 749, 82 S.Ct. 1038 (1962) and do not violate Article II, § 4(4) of the Marshall Islands Constitution or Rule 6(e) of the Marshall Islands Rules of Criminal Procedure.

Much of Timothy's due process argument relates to 37 MIRC Ch. 1, § 5(a), which is a part of the legal aid provisions and provides in essence that the Republic of the Marshall Islands legal aid office should provide certain legal aid services to citizens who cannot afford such services. Timothy argues that this statute contains no standards or procedures for private practitioners to be reimbursed for legal services from the legal aid fund, and thus he could not be guilty of violating 31 MIRC Ch. 1, §§ 5 and 38 because there were no standards or procedures for him to follow or to violate. However, the essence of the Information is that Timothy violated 31 MIRC Ch. 1, §§ 5 and 38 which are sufficiently clear in their intent. The lack of standards or procedures in 37 MIRC Ch. 1, § 5(a) did not allow Timothy to obtain money from the legal aid fund under false pretenses, of which he was found guilty by the High Court.

[2] 2. Sufficiency of the Evidence: A review of the High Court's "Judgment" and the other records and transcripts in this case indicates that there was ample evidence to support the "Judgment" of the High Court and that the "Judgment" is not "clearly erroneous." The High Court found that Timothy had been admitted to practice before the Courts of the Republic on February 19, 1983 as a Trial Assistant, and that he was familiar with the "legal aid enactment" and process through which legal aid funds were obtained. The High Court also found that Timothy, through his submission of his claim, represented to the Government that each of his clients was unable to afford legal services and that this was a false representation because, in fact, the legal fees had already been paid and the services already performed. The Judgment of the High Court is based on substantial evidence and is not clearly erroneous. Abner, et al. v. Jibke, et al., 1 MILR (Rev.) 3, 5 (Aug 4, 1984); United States v. McCaleb, [1977] USCA6 222; 552 F.2d 717 (6th Cir. 1977); United States v. Lemon, [1977] USCA9 283; 550 F.2d 467 (9th Cir. 1977); United States v. Marzano, [1976] USCA7 343; 537 F.2d 257 (7th Cir. 1976), cert. denied, 429 U.S. 1038 (1977); United States v. Peterson, [1975] USCA4 476; 524 F.2d 167 (4th Cir. 1975), cert. denied 423 U.S. 1088 (1976); United States v. Boston, [1974] USCA2 806; 508 F.2d 1171 (2nd Cir. 1974), cert. denied 421 U.S. 1001(1975).

3. Admissibility of Exhibits: Timothy complains that Exhibits 5, 6, 7 and 7A were improperly admitted. Exhibits 5 and 6 were checks of $500 and $800, respectively, written on G & L Enterprise signed by Grant Labaun payable to Anibar Timothy. Exhibit 7 was the contract between Timothy and Mr. Anchor and Exhibit 7A the translation of the contract. Exhibit 5 is dated with the same date as Exhibit 7. The High Court admitted all of these exhibits and we find no error in this regard. The checks and contract were relevant to the issues and had been authenticated by Mr. Grant Labaun and were thus properly admitted.

4. High Court's denial of Timothy's Motion for Judgment of Acquittal. Timothy argues that the High Court erred in failing to grant his Motion for Acquittal filed at the conclusion of the prosecution's case. For the reasons stated above we find the High Court did not err in failing to grant Timothy's Motion for Acquittal.

[3] 5. Jurisdiction of Supreme Court to hear this appeal. The Republic of the Marshall Islands, in its brief, raises a jurisdictional question. The Republic argues that Timothy was given "straight probation" under 31 MIRC Ch. 1, § 70, that under this section the defendant is placed on probation without a sentence being ordered by the Court and the conviction is vacated and defendant discharged when he does not violate his probation. Thus there is no final decision from which to appeal. We hold that we have jurisdiction to hear this case for two reasons. First, the outcome of the disciplinary proceeding against Timothy (H. Ct. D.P. 1990-1) depended upon this criminal proceeding. Second, the criminal conviction, even though vacated pursuant to 31 MIRC Ch. 1, § 70, could carry other disabilities, such as affecting Timothy's right to practice in other jurisdictions. Therefore, the Supreme Court has jurisdiction to hear this appeal.

Conclusion: The High Court's Judgment of August 28, 1990 and Judgment of Sentence of October 26, 1990 are affirmed.

Douglas F. Cushnie for Defendant-Appellant
Deputy Attorneys General Allen Lolly and Dennis McPhillips for Plaintiff-Appellee

__________

¹Ronald D. Libkuman, Esq. of the Hawaii State Bar, by appointment of the Cabinet.

²Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, by appointment of the Cabinet.