Federated States of Micronesia v Kuranaga [2000] FMSC 24; 9 FSM Intrm. 584 (Chk. 2000) (22 November 2000)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Federated States of Micronesia v Kuranaga, [2000] FMSC 24; 9 FSM Intrm 584 (Chk. 2000)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

SHINYA KURANAGA, TOSAYO COMPANY,
LTD., and NATIONAL OFFSHORE TUNA
FISHERIES ASSOCIATION OF JAPAN,
Defendants.

__________________________________________

CRIMINAL CASE NO. 2000-1501

ORDER

Richard H. Benson
Associate Justice

Hearing: November 22, 2000
Decided: November 22, 2000

APPEARANCES:

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

For the Defendant (Kuranaga):
Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant (Tosayo Company):
Fredrick L. Ramp, Esq.
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure - Service
It is not unreasonable and oppressive to serve witness subpoenas one week before trial. FSM v. Kuranaga, [2000] FMSC 24; 9 FSM Intrm. 584, 585 (Chk. 2000).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Service
A subpoena duces tecum is not unreasonable and oppressive when it requires documents that were earlier produced in response to discovery and materials and documents not discoverable under Criminal Rule 16 because it is not a valid objection that documents required by the subpoenas are not discoverable under Rule 16, but any materials already furnished in discovery need not be produced pursuant to the subpoenas. FSM v. Kuranaga, [2000] FMSC 24; 9 FSM Intrm. 584, 585 (Chk. 2000).

Courts; Statutes - Construction; Transition of Authority
Title 6, chapter 10, subchapter 1 of the FSM Code is replete with references to officials who either do not exist now or who no longer carry out the functions with which they are identified in the statute, and when confronted with such language in a section thereof, the FSM Supreme Court has generally ruled that the section applies only to the Trust Territory High Court. FSM v. Kuranaga, [2000] FMSC 24; 9 FSM Intrm. 584, 586 (Chk. 2000).

Courts; Transition of Authority
The witness fees in 6 F.S.M.C. 1011 apply only to the Trust Territory High Court. FSM v. Kuranaga, [2000] FMSC 24; 9 FSM Intrm. 584, 586 (Chk. 2000).

Criminal Law and Procedure - Service
A subpoena will not be quashed for failure to tender a witness's travel costs "allowed by law" when the subpoena was served because, in the absence of a statute or rule setting a figure for the "fee for one day's attendance and the mileage allowed by law," the law does not allow an amount. FSM v. Kuranaga, [2000] FMSC 24; 9 FSM Intrm. 584, 586 (Chk. 2000).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This matter came before the court on 22 November on the plaintiff’s Motion for a Protective Order as to identical subpoenas duces tecum served on a number of national police officers and an officer of Micronesian Fisheries Authority. The contention is that they are unreasonable and oppressive in that they were served one week before trial, required documents and equipment not material to any issue of trial and were earlier produced in response to discovery, and require materials and documents not discoverable under Rule 16.

After considering the written and oral arguments of counsel, I conclude

1. That the service was not too close to the trial date.

2. That any materials already furnished in discovery need not be produced pursuant to the subpoenas.

3. Because there is nothing before me as to the location of the FSS Palikir, whether the equipment on board is the same or in the same condition as in February 2000, what problems are involved in removing the equipment, and whether a site viewing would suffice in place of the production of the equipment in the courtroom, the witnesses need not produce items 12 and 13 in the subpoenas which call for equipment presently installed on the Palikir.

4. It is not a valid objection that documents required by the subpoenas are not discoverable under Rule 16 of the FSM Rules of Criminal Procedure.

The government has moved to quash subpoenas issued by defendant Tosayo Company, Ltd. and has moved for a protective order. The government contends that the subpoenas should be quashed because the defendant has not tendered those witnesses their travel costs. For this proposition he is relying on Criminal Procedure Rule 17(d) which states that "[s]ervice of a subpoena shall be made by delivering a copy thereof to the person named and, by tendering to him the fee for one day's attendance and the mileage allowed by law."

No Rule of Criminal Procedure or General Court Order sets, or allows, such fees. Title 12 of the FSM Code, which concerns criminal procedure also does not contain any fee schedules. Title 6, covering judicial procedure in general, does. Section 1011 sets the mileage allowed at 3 cents a mile for going and returning. Chapter 10, subchapter 1 (of which section 1011 is a part) is "'replete with references to officials who either do not exist now . . . o no longer carry out tout the functions with which they are identified in the statute.'" Semens v. Continental Air Lines, Inc. (II), [1986] FMSC 7; 2 FSM Intrm. 200, 2on. 1986) (quoting Ishizawa v. Pohnpei, 2 FSM Intrm.ntrm. 67, 73 n.5 (Pon. 1985)). When confronted with such language in a section of Title 6, Chapter 10, subchapter 1 the FSM Supreme Court has generally ruled that the section only applies to the Trust Territory High Court. See Mailo v. Twum-Barimah, [1988] FMSC 10; 3 FSM Intrm. 411, 413-14 (Pon. 1988) (6 F.S.M.C. 1017 & 1018 apply only to TT High Court); Semens (II), 2 FSM Intrm. at 204-05 (Pon. 1986) (6 F.S.M.C. 1018 applies only to the TT High Court). Sections 1015 and 1016 concerning court filing fees and transcript fees have never been applied to the FSM Supreme Court - we have never collected $1 for filing a complaint, $2.50 for trial, or $5 for a notice of appeal and the transcript fees charged have not been the $1 a page of 6 F.S.M.C. 1015(2). I do not believe that the FSM Supreme Court has ever considered Title 6, Chapter 10, subchapter 1 to apply to any court except the Trust Territory High Court. There is therefore no "fee for one day's attendance and the mileage allowed by law." In the absence of a statute or rule setting the figure I am to require be tendered, I cannot quash a subpoena for failure to tender an amount "allowed by law" when the law does not allow an amount. The motion to quash on the ground of failure to tender fees with the subpoenas' service is therefore denied. This ruling does not imply that the government must pay the travel costs of those subpoenaed by the defendant.