Federated States of Micronesia v Xu Rui Song [1995] FMSC 30; 7 FSM Intrm. 187 (Chk. 1995) (4 July 1995)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Federated States of Micronesia v Xu Rui Song, [1995] FMSC 30; 7 FSM Intrm. 187 (Chk. 1995)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

XU RUI SONG, ZHEIJANG OCEAN GOUNG FISHERIES CORP. and TING HONG OCEANIC ENTERPRISES CO., LTD.,
Defendants.

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

ZHONG YUAN YU NO. 907, a Foreign Fishing Vessel,
Defendant.

CRIMINAL CASE NO. 1995-1500

ORDER

Martin Yinug
Associate Justice

Hearing: July 3, 1995
Order Granted: July 3, 1995
Decided: July 4, 1995

APPEARANCES:

For the Plaintiff:
Carole Rafferty, Esq.
Assistant Attorney General
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant:
Kathleen B. Alvarado, Esq.
(Ting Hong) Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendants:
Fredrick L. Ramp, Esq.
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure - Information
Criminal defendants have the constitutional right to be informed of the nature of the accusation against them. This protection is implemented through Criminal Rule 7(c)(1), which requires that an information must "be a plain, concise and definite written statement of the essential facts constituting the offense charged." An information should not be thrown out because of minor, technical objections which do not prejudice the accused. FSM v. Xu Rui Song, [1995] FMSC 30; 7 FSM Intrm. 187, 189 (Chk. 1995).

Criminal Law and Procedure - Information
The fundamental purpose of the information is to inform the defendant of the charge so that he may prepare his defense, and the test for sufficiency is whether it is fair to the defendant to require him to defend on the basis of the charge as stated in the particular information. Another purpose is to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction, if one should be had. FSM v. Xu Rui Song, [1995] FMSC 30; 7 FSM Intrm. 187, 189 (Chk. 1995).

Criminal Law and Procedure - Information
The information should be sufficiently definite, certain, and unambiguous as to permit the accused to prepare his defense. Common sense will be a better guide than arbitrary and artificial rules, and the sufficiency of the information will be determined on the basis of practical rather than technical considerations. In an information each count should stand on its own although facts alleged therein may be incorporated by reference. This is true as to each defendant. FSM v. Xu Rui Song, [1995] FMSC 30; 7 FSM Intrm. 187, 189-90 (Chk. 1995).

Criminal Law and Procedure - Information
An information that is sufficient for one co-defendant may be insufficient and defective as to another. FSM v. Xu Rui Song, [1995] FMSC 30; 7 FSM Intrm. 187, 190 (Chk. 1995).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Information
An information that, as a practical matter, is not sufficiently certain and unambiguous so as to permit the defendant to prepare its defense, or to inform the court of what alleged acts or omissions of this particular defendant result in criminal liability is defective, and may be dismissed without prejudice. FSM v. Xu Rui Song, [1995] FMSC 30; 7 FSM Intrm. 187, 190 (Chk. 1995).

* * * *

COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

At the call of these consolidated cases on the day set for trial and hearing of pending motions the attorneys for the government and for defendants Xu Rui Song and Zheijang Ocean Goung Fisheries Corp. and for defendant vessel Zhong Yuan Yu No. 907 in Civil Action No. 1995-1009 put on the record the fact that they had agreed to a settlement, that all actions against those defendants would be dismissed once the agreed to terms were met, and that defendants Xu Rui Song and Zheijang Ocean Goung Fisheries Corp. were withdrawing their motion to dismiss.

I then heard the attorneys' oral arguments on defendant Ting Hong's motion to dismiss the information in Criminal Case No. 1995-1500 as to defendant Ting Hong. After studying the written briefs submitted by the attorneys and carefully considering their oral arguments I granted defendant Ting Hong's motion to dismiss. This order explains my reasoning.

Any defendant in a criminal case has the right "to be informed of the nature of the accusation" against him. FSM Const. art. IV, § 6. This consional protectioection is implemented through our Criminal Rule 7(c)(1), which requires that an information must "be a plain, concise and definite written statemf the essential facts constituting the offense charged." An." An information should not be thrown out "because of minor, technical objections which do not prejudice the accused." Laion v. FSM, [1984] FMSC 9; 1 FSM Intrm. 503, 518 (App. 1984).

The information contains three counts. Each defendant is alleged to have committed the illegal acts of failing to maintain in the English language a daily catch record on board the Zhong Yuan Yu No. 907; failing to make the required catch log available for inspection by authorized officers aboard the vessel; and knowingly, transporting, shipping, and/or having custody, control, or possession of fish retained in violation of Title 24 of the FSM Code, the Foreign Fishing Agreement, and/or the Permit. The sole mention of defendant Ting Hong in the information is in paragraph 4, which states that Ting Hong is a party to the Foreign Fishing Agreement under which the Permit for the vessel was issued. No acts or omissions are alleged as to defendant Ting Hong.

"The fundamental purpose of the [information] is to inform the defendant of the charge so that he may prepare his defense, and the test for sufficiency [is] whether it is fair to the defendant to require him to defend on the basis of the charge as stated in the particular . . ormat 1 Charlesarles A. Wri. Wright, Federal Practice and Procedure § 125, at 365 (1982). Anothep purpose of the information "is 'to inform the court of the facts alleged so that it may decide whether they are sufficient in o support a conviction, if one should be had.'" Russell v. United States, 369 U.S. 7.S. 749, 768[1962] USSC 82; , 82 S. Ct. 1038, 1049[1962] USSC 82; , 8 L. Ed. 2d 240, 253 (1962) (quoting United Sates v. Cruikshank, [1875] USSC 172; 92 U.S. 542, 558[1875] USSC 172; , 23 L. Ed. 588, 593 (1876)). An information using only the statutory language is "entirely permissible so long as the statute sets forth fully, directly, and expressly all essential elements of the crime to be punished," but where the "statute is couched in general terms, the [information] must particularize the offense sufficiently to inform the defendant of the accusation he must meet." 1 Wright, supra, § 1t 369-70 (1982). Thus the the "information should be sufficiently definite, certain, and unambiguous as to permit the accused tpare his defense. Common sense will be a better guide than arbitrary and artificial rules, les, and the sufficiency of the [information] will be determined on the basis of practical rather than technical considerations." Id. at 384-85 (footnotes omitted). Generally speaking, in an information each count should stand on its own although facts alleged therein may be incorporated by reference. This is true as to each defendant.

In this case, I cannot say that, as a practical matter, this information is sufficiently certain and unambiguous as to permit defendant Ting Hong to prepare its defense, or to inform the court of what alleged acts or omissions of this particular defendant result in criminal liability. This is not to say that the information was insufficient as to other defendants such as, for example, Captain Xu Rui Song. I also note that the government admitted on the record that, although mentioned in paragraphs 3 and 4 respectively of the information, neither the Foreign Fishing Permit nor the Foreign Fishing Agreement were included in the criminal filings. They were mentioned as attached to the complaint for forfeiture filed in the companion civil action, which at that time had not been consolidated with the criminal case, and which there was apparently no intention to, or at least no motion to, consolidate. One indication of the ambiguity of the information as to defendant Ting Hong is that for some time defendant Ting Hong operated under the impression that the government sought to impose liability upon it for the crimes of another, which would mean that the provisions of 11 F.S.M.C. 301 would apply. The government, however, in response asserted that it was proceeding under the theory that Ting Hong is directly liable for its own criminal act(s) or omission(s). I thus found that the criminal information was sufficiently ambiguous as to defendant Ting Hong so as to be defective.

No motion was made to amend the information. I therefore dismissed without prejudice the information in Criminal Case No. 1995-1500 as to defendant Ting Hong. The FSM government may refile its charges against Ting Hong if it so chooses.