Federated States of Micronesia v Wainit [2003] FMSC 69; 12 FSM Intrm. 172 (Chk. 2003) (13 October 2003)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172 (Chk. 2003)

[2003] FMSC 69; [12 FSM Intrm. 172]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

TADASHI WAINIT,
Defendant.

CRIMINAL CASE NO. 2001-1519

MEMORANDUM AND ORDER

Martin G. Yinug
Associate Justice

Decided: October 13, 2003

APPEARANCES:

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

[12 FSM Intrm. 173]

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

* * * *

HEADNOTES

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Prosecutors
A criminal case will not be dismissed if the whole FSM Department of Justice must be disqualified from prosecuting since a special prosecutor can be appointed. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 176 (Chk. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
The question of disqualification of counsel, including prosecutors, is largely within the trial court’s discretion. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 177 (Chk. 2003).

Criminal Law and Procedure - Prosecutors
A prosecutor must communicate to his witnesses so that they appear at hearings when they are needed even if they are attorneys in the same office. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 177 (Chk. 2003).

Criminal Law and Procedure - Prosecutors
Statements to the press generally will not disqualify a prosecutor, especially since there is no jury pool to taint through pretrial publicity as there are no jury trials in the FSM. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 177 (Chk. 2003).

Bail; Criminal Law and Procedure - Prosecutors
Failure to return a .22 rifle to a criminal defendant does not show bias when the defendant’s release conditions do not allow him to possess firearms, since if the government had returned the rifle to him, he would have been put in the position of violating his own bail bond release. That is not a position the government should be permitted to put any defendant into. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 177 (Chk. 2003).

Criminal Law and Procedure - Prosecutors; Criminal Law and Procedure - Venue
Prosecutors’ seeking a change of venue do not necessarily indicate bias so that they could continue to prosecute when the case is ready for immediate trial and, under the then alleged prevailing conditions, any FSM prosecutor might have felt unsafe unless venue were changed. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 177 (Chk. 2003).

Bail
When a person is the subject of more than one criminal prosecution and has different release conditions in each case, that person must obey the most stringent of the release conditions. Likewise, if in one prosecution, the defendant is ordered held without bail, it does not matter whether in another prosecution the defendant has been released on bail or even on his own recognizance, he will be held without bail to answer the case for which he was ordered held. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 178 (Chk. 2003).

[12 FSM Intrm. 174]

Bail; Criminal Law and Procedure - Prosecutors
Having sought the same release conditions for a defendant in two separate prosecutions does not constitute a hopeless intertwining of the two cases. Release conditions in two otherwise unrelated cases are easily separable. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 178 & n.3 (Chk. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
A government lawyer, like any lawyer, cannot represent a client if the representation of that client may be materially limited by the lawyer’s own interests. The lawyer’s own interests may include emotional interests. An emotional interest, in order to be disqualifying, must create a bias or hostility in the government lawyer sufficiently strong to interfere seriously with the lawyer’s exercise of public responsibility. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 178 (Chk. 2003).

Criminal Law and Procedure - Prosection
A government lawyer’s public responsibility involves the exercise of discretion. A prosecutor may be disqualified when the prosecutor suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary function of his office. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 178 (Chk. 2003).

Criminal Law and Procedure - Prosection
Prosecutors’ discretion is limited. They can neither withdraw from representing the plaintiff government, nor dismiss the case, without first seeking and obtaining leave of court. They can, of course, seek such leave. Their other remaining discretion lies in a possible plea bargain should the defendant seek one and in their sentencing recommendation should he be convicted. They also retain discretion in choice of trial tactics to employ. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 178 (Chk. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
The court declines to establish a bright line rule that any prosecutor who has some involvement with another case involving the defendant must always be disqualified. To conclude that prosecutors who are allegedly later victims of offenses committed by someone they are prosecuting must always be disqualified from continuing to prosecute would set an unhealthy precedent. It would provide an unwanted incentive for a criminal defendant who sought to disqualify a certain prosecutor to obtain his disqualification through extralegal means. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 178-79 (Chk. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
When prosecutors have a special emotional stake or interest in a case, their disqualification from any future involvement with the prosecution is warranted. The current prosecutor will therefore make certain that there is no contact with the former prosecutors about the case and that they have no access to the case file. The current prosecutor may be ordered to file and serve a notice detailing all steps taken to implement this precaution. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 179 (Chk. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel
Disqualification of all lawyers in a government office when one of them is disqualified is a question within the trial court’s discretion. Unlike private law firms where the disqualification of one member of the firm requires the disqualification of the firm, the disqualification of all government attorneys in an office is not required when one of them is disqualified. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 179 (Chk. 2003).

[12 FSM Intrm. 175]

Criminal Law and Procedure - Prosecutors
A prosecutor that has no interest in the case’s outcome other than that justice be done has the exact interest that an impartial prosecutor must have because government’s interest in a criminal case is not that it should win the case, but that justice be done. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 180 (Chk. 2003).

Constitutional Law - Judicial Guidance Clause; Criminal Law and Procedure - Prosecutors
Because the court is required to make decisions consistent with the FSM’s social and geographical configuration and because the FSM is a large country in terms of geographical distances, but has a small land base, a small population, and limited resources with a small government legal office and few other lawyers available, the court thus should not order the government to go outside its Department of Justice for a prosecutor unless it is absolutely necessary. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 180 (Chk. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel; Criminal Law and Procedure - Prosecutors
There is no basis to disqualify the current prosecutor and the entire FSM Department of Justice when no member of the department is either an alleged victim or a witness in the case; when the current prosecutor was not a member of the department when the events occurred that ultimately lead to the disqualification of the other assistant attorneys general; when neither of the disqualified attorneys have any supervisory power over the current prosecutor and he is not subordinate to them; and when, if he has not already done so, he can and will be ordered to have no contact with them concerning the case and to keep all case files segregated from all other department files so that no other department employee can obtain access to them. FSM v. Wainit, [2003] FMSC 69; 12 FSM Intrm. 172, 180 (Chk. 2003).

* * * *

COURT’S OPINION

MARTIN G. YINUG, Associate Justice:

On May 30, 2003, defendant Tadashi Wainit filed his Motion to Disqualify Matthew Crabtree, Catherine Wiehe, and to Disqualify the FSM Department of Justice; Motion to Dismiss Criminal Information. Wainit filed a supplement to this motion on June 10, 2003. On June 30, 2003, the parties stipulated to this case’s transfer back from Pohnpei and on July 24, 2003, the court concurred. The government filed its response to the motions on August 4, 2003. Wainit’s reply was filed on August 27, 2003.

I. The Motions

Wainit’s motion to disqualify asks the court to disqualify Assistant Attorneys General Matthew Crabtree and Catherine Wiehe from any further involvement as prosecutors in this case. It further seeks to disqualify the entire FSM Department of Justice, including the Secretary of Justice.

Wainit’s motion to dismiss the information contends that since the whole Department of Justice must be disqualified from prosecuting him, then this criminal prosecution must be dismissed as well.

II. Motion to Dismiss

Wainit contends that this case must be dismissed due to egregious prosecutorial misconduct. The alleged misconduct is that Assistant Attorneys General Matthew Crabtree and Catherine L. Wiehe

[12 FSM Intrm. 176]

continued to act (to Wainit’s detriment) as prosecutors in this case after both should have disqualified themselves. The ground for their disqualification is that they are the alleged victims and complaining witnesses in another criminal prosecution of Tadashi Wainit based on events that took place on September 6, 2002. Since neither Crabtree nor Wiehe voluntarily disqualified his or herself or were ordered to disqualify themselves by their superiors and since the FSM Department of Justice is a small department, Wainit contends that the whole department must thus be disqualified.

Taking this reasoning one step further, Wainit contends that since the whole FSM Department of Justice must be disqualified, then this criminal prosecution and the information it is based upon must be dismissed with prejudice. No alternative remedy is sought.

On at least one occasion, a special prosecutor has represented the FSM in a criminal case. See Johnny v. FSM, [1997] FMSC 39; 8 FSM Intrm. 203, 204 (App. 1997). If the entire FSM Department of Justice were disqualified in this case, the court sees no reason why the proper remedy would not be the appointment of a special prosecutor rather than the drastic remedy of a dismissal with prejudice. The motion to dismiss is therefore denied.

III. Motion to Disqualify

A. Prosecutors Wiehe and Crabtree

The charges against Wainit in this case arise from his alleged conduct in relation to the March, 2001 national election. This case was ready and scheduled for trial on September 9, 2002. The prosecutors were Catherine L. Wiehe and Matthew W. Crabtree. Shortly before the scheduled trial date, the government sought to execute a search warrant for evidence of other crimes not directly related to the offenses charged in this case. Events in relation to the September 6th execution of this search warrant lead to the FSM filing a host of criminal charges against Wainit and two others (Criminal Case No. 2002-1501) and to seeking Wainit’s pretrial detention in a telephonic hearing on September 26, 2002.

Wainit contends that conflicts of interest require Wiehe’s and Crabtree’s disqualification from any further participation in this case. Wainit cites as evidence of their conflict: 1) their links as alleged victims and witnesses to the charges against him arising from the September 6th events; 2) that they were not subsequently removed from this prosecution, but continued to file papers in the case; 3) Wiehe’s September 9th "application" and testimony for an arrest warrant for Wainit in Criminal Case No. 2002-1501; 4) their belief that Wainit committed every one of the 39 charges against him in Criminal Case No. 2002-1501; 5) that Wiehe’s September 26, 2002 testimony concerning the September 6th events was used to set pretrial release conditions in this case, which she was still prosecuting, as well as that case; 6) that there was communication between prosecutor of Criminal Case No. 2002-1501 and Wiehe and Crabtree because they appeared at the September 26th hearing; 7) that Crabtree made "inflammatory" remarks to the Kaselehlie Press; 8) that they sought and obtained a change of venue in this case, but that none was sought in Criminal Case No. 2002-1501 in which they were the alleged victims; their failure to return property (a .22 rifle) taken in the search; 10) that Crabtree was blocking payment for a public project (a dock) on Udot; and 11) that this case and Criminal Case No. 2002-1501 are hopelessly intertwined.

The government contends that the motion to disqualify Wiehe and Crabtree is moot because a newly-hired attorney has been assigned this case (and all other cases involving Wainit) and because Wiehe is no longer employed by the government and has left the country. The possibility that Wiehe might be rehired and assigned this case or have some other future involvement with its prosecution is remote. Crabtree, on the other hand, is still employed by the Department of Justice and could

[12 FSM Intrm. 177]

conceivably be reassigned to this prosecution or asked to assist it in some fashion.

The court notes that when Wiehe and Crabtree did not disqualify themselves and were not reassigned either, Wainit did not seek their disqualification in this case until this motion was filed. The question of disqualification of counsel, including prosecutors, is largely within the trial court’s discretion. See, e.g., Office of the Public Defender v. FSM Supreme Court, [1990] FMSC 12; 4 FSM Intrm. 307, 309 (App. 1990); United States v. Lorenzo, [1993] USCA9 1416; 995 F.2d 1448, 1453 (9th Cir. 1993) (even cases that order disqualification recognize that the question is largely within the trial court’s discretion); People v. Garcia, 698 P.2d 801, 806 (Colo. 1985).

Some of Wainit’s points can be disposed of summarily. It is not surprising Wiehe and Crabtree would believe Wainit committed the offenses charged in Criminal Case No. 2002-1501. Prosecutors must believe in their own cases. So it is not surprising that these prosecutors would believe in another prosecutor’s case, especially one in which they were the alleged victims. It is also not surprising that there was sufficient communication within the Attorney General’s office that Wiehe and Crabtree appeared for the September 26th hearing. A prosecutor must communicate to his witnesses so that they appear at hearings when they are needed. Statements to the press are also generally not disqualifying, United States v. Pasciuti, 803 F. Supp. 563, 568 (D.N.H. 1992) (statements complied with MRPC R. 3.6(c)(2)), especially since there is no jury pool to taint through pretrial publicity. There are no jury trials in the FSM. Nor is a routine request for further documentation to determine if a project meets the legal guidelines so that payment can be made necessarily an indication of bias. It, however, would have been preferable if an attorney other than Crabtree had handled the request.

Nor does the failure to return the .22 rifle show bias. Since Wainit’s release conditions do not allow him to possess firearms,[1] if the government had returned the rifle, Wainit would have been put in the position of violating his own bail bond release. That is not a position the government should be permitted to put any defendant into.

In this case, Wiehe and Crabtree sought (and obtained) a change of venue for the prosecutors’ safety, but one was not sought for Criminal Case No. 2002-1501 in which they were the alleged victims and are witnesses. That this indicates bias so that they could continue to prosecute is purely speculative. This case was ready for immediate trial. Under the then alleged prevailing conditions, any FSM prosecutor might have felt unsafe unless venue were changed. Criminal Case No. 2002-1501 was not ready for trial and would not have been at anytime soon. The court will not hazard a guess whether a venue change would have been sought in Criminal Case No. 2002-1501 had trial been imminent in that case or whether it would have been sought later when trial became imminent.

However, Wiehe’s and Crabtree’s seeking to revoke the unusual pretrial release conditions[2] imposed in this case was, to a large extent, superfluous or unnecessary. The government (through a different prosecutor) was at the same time asking for Wainit’s pretrial detention without bail in a different

[12 FSM Intrm. 178]

criminal prosecution (Crim. No. 2002-1501) that stemmed from the events of September 6, 2002. When a person is the subject of more than one criminal prosecution, and has different release conditions in each case, that person must obey the most stringent of the release conditions. Likewise, if in one prosecution, the defendant is ordered held without bail, it does not matter whether in another prosecution the defendant has been released on bail or even on his own recognizance, he will be held without bail to answer the case for which he was ordered held. It was therefore redundant for Wiehe and Crabtree to seek the same release conditions in this case.[3]

A government lawyer, like any lawyer, cannot "represent a client [the government] if the representation of that client may be materially limited ... by the lawyer’s own interests ...." FSM MRPC R. 1.7(b). The lawyer’s own interests may include emotional interests. "An emotional interest, in order to be disqualifying, must create a bias or hostility in the government lawyer sufficiently strong to interfere seriously with the lawyer’s exercise of public responsibility." Charles W. Wolfram, Modern Legal Ethics § 8.9.3, at 453 (1986). A government lawyer’s public responsibility involves the exercise of discretion. A prosecutor may be disqualified when the prosecutor "suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary function of his office." People v. Superior Court (Greer), 561 P.2d 1164, 1173 (Cal. 1977).

In this case, the prosecutors’ discretion was limited. They could neither withdraw from representing the plaintiff government, Atesom v. Kukkun, [2003] FMSC 29; 11 FSM Intrm. 400, 402 (Chk. 2003) (counsel must seek court’s permission to withdraw); Beal Bank S.S.B. v. Salvador, [2003] FMSC 8; 11 FSM Intrm. 349, 350 (Pon. 2003) (counsel must seek court’s permission to withdraw when case is ready for trial); cf. FSM v. Jano, [2000] FMSC 43; 9 FSM Intrm. 470a, 470b (Pon. 2000) (counsel was not allowed to withdraw during trial), nor dismiss the case, FSM v. Ocean Pearl, [1987] FMSC 6; 3 FSM Intrm. 87, 91 (Pon. 1987) (although the prosecution has broad discretion in determining whether to initiate litigation, once started, criminal litigation can be dismissed only by obtaining leave of court), without first seeking and obtaining leave of court. They could, of course, have sought such leave. Their other remaining discretion lay in a possible plea bargain should Wainit seek one and in their sentencing recommendation should Wainit be convicted. They also retained discretion in choice of trial tactics to employ.

The court declines to establish a bright line rule that any prosecutor who has some involvement with another case involving the defendant must always be disqualified. Cf. United States v. Heldt, [1981] USCADC 508; 668 F.2d 1238, 1275 (D.C. Cir. 1981) (charge of illegal entry into prosecutors’ office not sufficient to disqualify all the prosecutors from case), cert. denied, 456 U.S. 926 (1982); People v. Municipal Court (Byars), 143 Cal. Rptr. 491, 495 (Cal. Ct. App. 1978) (order disqualifying city attorney as prosecutor reversed; abuse of discretion to disqualify city attorney because defendants in misdemeanor prosecution had filed civil suit for damages against city arising out of same incident when there was no evidence of improper use of criminal proceeding); Wolfram, supra, at 453-54 ("the remote possibility of inappropriate motives is not itself disabling, such as when a prosecutor files a criminal charge against a person who has filed a civil action, arising out of the same event, against the prosecutor’s employer-municipality"). To conclude that prosecutors who are allegedly later victims of offenses committed by someone they are prosecuting must always be disqualified from continuing to prosecute would set an unhealthy precedent. Cf. Resnover v. Pearson, 754 F. Supp. 1374, 1388-89 (N.D. Ind. 1991) (prosecutor who believed defendant made threats against his life not required to recuse himself; "a criminal defendant cannot cause the recusal of his prosecutor by threatening the prosecutor or having him threatened"), aff’d[1992] USCA7 1038; , 965 F.2d 1453 (7th Cir. 1992). It would provide an unwanted incentive for

[12 FSM Intrm. 179]

a criminal defendant who sought to disqualify a certain prosecutor to obtain his disqualification through extralegal means. The court does not mean to imply that was the case here.

However, after a careful review of the exhibits, including the transcripts, the court concludes that Assistant Attorneys General Wiehe and Crabtree did appear to have a special emotional stake or interest in this case after the events of September 6, 2002. Their disqualification from any future involvement with this prosecution is thus warranted. Since she has left the FSM, Wiehe’s disqualification does not present any apparent difficulties. Crabtree’s is another matter. The current prosecutor shall therefore make certain that he has no contact with Crabtree or Wiehe about this case and that they have no access to the case file. The current prosecutor shall file and serve a notice detailing all steps taken to implement this precaution.

B. The FSM Department of Justice

Wainit asserts that the whole Department of Justice must be disqualified because it has been tainted by Wiehe and Crabtree. For this proposition, Wainit relies on People v. Connor, 666 P.2d 5 (Cal. 1983) and People v. Gibbons, Crim. No. CF0390-96 (Guam Super. Ct. July 18, 1996). He also asserts that the Secretary of Justice has an actual conflict as well. This asserted conflict is not based on any of the Secretary’s actions, but rather on his inaction - his failure to remove prosecutors Wiehe and Crabtree from this case after September 6, 2002. It seems pointless to delve into the Secretary’s qualifications or omissions since he has never been a prosecutor in this case and since his renomination to the position has been rejected by Congress.

As stated above, the disqualification of all lawyers in a government office when one of them is disqualified is a question within the trial court’s discretion. Office of the Public Defender v. Trial Division, [1990] FMSC 11; 4 FSM Intrm. 252, 254 (App. 1990) (trial court did not abuse its discretion in refusing to disqualify all lawyers in Public Defenders’ Office when one was disqualified).

Unlike private law firms where the disqualification of one member of the firm requires the disqualification of the firm, FSM MRPC R. 1.10(a), the disqualification of all government attorneys in an office is not required when one of them is disqualified, In re Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993) (the rules for vicarious disqualification of attorneys in the same law firm do not apply to government lawyers; the disqualification of one member of a government office is not imputed to the other members).

In the two cases Wainit relies on as most similar, People v. Connor, 666 P.2d 5 (Cal. 1983) and People v. Gibbons, Crim. No. CF0390-96 (Guam Super. Ct. July 18, 1996), one or more attorneys in the public prosecutors’ office were witnesses to and victims of violent crime. In Connor, the defendant apparently shot at his prosecutor and escaped and although he was not charged with a crime against the prosecutor, the prosecution was transferred to another felony prosecutor in the same office although in a different unit. The trial court denied the recusal of the entire District Attorney’s Office for the original charges, but, for the escape charges, did order the entire office recused and, under a California statute, assigned the prosecution to the California Attorney General’s Office. Connor, 666 P.2d at 7. The California Supreme Court affirmed. Id. at 9.

Connor therefore offers no support for disqualifying the entire FSM Department of Justice in this case. In Connor, the entire office was not recused from prosecuting the original case, which was reassigned to another prosecutor in the office. The entire office was disqualified only for the case involving the defendant’s later acts that gave rise to the recusal requests. Like the trial court in Connor, this court sees no reason why an entire office should be disqualified from the original case merely because a member of that office is a witness/victim in a second case. Thus, even following Connor,

[12 FSM Intrm. 180]

Wainit’s strongest case, that case is no ground to disqualify the entire department from this prosecution.

Wainit offers a Guam Superior Court case as an example of what a "similar small island" does when faced with the issue. In People v. Gibbons, Crim. No. CF0390-96 (Guam Super. Ct. July 18, 1996), the Guam Attorney General and four of his assistants, including his Chief Prosecutor, witnessed, and the Chief Prosecutor was a victim in an altercation and brawl. Id. slip op. at 2. The Gibbons court ordered the recusal of the entire Guam Attorney General’s office because the Guam Attorney General was a potential witness and rather than automatically recusing himself had chosen the case’s prosecutor and the prosecutor (as well as the whole office) was in a subordinate relationship and therefore could not impartially prosecute the case and the witnesses were other Assistant Attorneys General. Id. at 8. The matter was referred to the Governor’s office to determine whether to prosecute the case and, if so, to appoint a special prosecutor. Id.

This case is not like Gibbons. No assistant attorney general is a witness or victim in this case. Nor do the disqualified prosecutors, Wiehe and Crabtree, have any supervisory power over the current prosecutor and he is not subordinate to them.

The current prosecutor, Robert M. Weinberg, is newly-hired, having arrived in the FSM in late June, 2003. He states that he has no interest in the case’s outcome other than that justice be done. That is the exact interest that an impartial prosecutor must have. Berger v. United States, [1935] USSC 83; 295 U.S. 78, 88[1935] USSC 83; , 55 S. Ct. 629, 633[1935] USSC 83; , 79 L. Ed. 1314, 1321 (1935) (government’s interest in a criminal case is not that it should win the case, but that justice be done). The court sees no reason to doubt him on this point.

The court is required to make decisions "consistent with ... the [FSM’s] social and geographical configuration." FSM Const. art. XI, § 11. While the FSM is a large country in terms of geographical distances, it has a small land base, a small population, and limited resources. Correspondingly, it has a small government legal office and few other lawyers available. The court, consistent with the FSM’s social and geographical configuration, thus should not order the government to go outside its Department of Justice for a prosecutor unless it is absolutely necessary.

In a case concerning the U.S. Attorney’s Office in Hawaii, United States v. Lorenzo, [1993] USCA9 1416; 995 F.2d 1448 (9th Cir. 1995), the defendants sought to disqualify the entire office because part of the defendants’ criminal conspiracy was directed at some members of the U.S. Attorney’s Office who were thus witnesses. The trial court denied the request and was affirmed on appeal because none of the members of the U.S. Attorney’s Office who testified had participated in the prosecution and because the prosecutor was not a member of the U.S. Attorney’s Office when the crimes were committed. Id. at 1452-53.

In this case, no member of the FSM Department of Justice is either an alleged victim or a witness. The current prosecutor was not a member of the department when the events occurred that ultimately lead to the disqualification of Wiehe and Crabtree. Neither of those two have any supervisory power over him and he is not subordinate to them. He may never even have met Wiehe, she having left the FSM before he arrived. And, if he has not already taken steps to do so, he can and will be ordered to have no contact with Wiehe and Crabtree concerning this case, and to keep all case files segregated from all other Department of Justice files so that no other department employee can obtain access to them.

The court accordingly sees no basis upon which to disqualify Weinberg, the current prosecutor. Since he is not disqualified, the motion to disqualify the entire FSM Department of Justice is denied.

[2003] FMSC 52; [12 FSM Intrm. 181]

IV. Trial

The time for pretrial motions has passed. The parties, no later than October 31, 2003, shall, jointly if possible, singly if not, submit suggested possible trial dates.

V. Conclusion

Wainit’s motion to dismiss is accordingly denied; his motion to disqualify Wiehe and Crabtree is granted; and his motion to disqualify the entire FSM Department of Justice is denied. Prosecutor Weinberg shall isolate himself from any contact with Crabtree and Wiehe about this case, erect such barriers as are needed, and shall secure the case files so that no other prosecutor has access to them. He shall file a notice and report when he has implemented these safeguards.

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^[1] Wainit also complains that the Department of Justice will not renew his expired firearms license. That is a matter that must be pursued administratively. The court will therefore not comment on it.

^[2] Wainit is the only criminal defendant in this court in at least the last decade, if not longer, to have had no pretrial travel restrictions. His only release condition was that if he were absent from the FSM for more than 60 days then he had to inform the court and the government of his whereabouts. No restrictions were placed on Wainit’s movements. See FSM v. Wainit, [2002] FMSC 14; 10 FSM Intrm. 618, 622 (Chk. 2002). Pretrial release normally carries the condition that, at a minimum, the defendant not leave the State of Chuuk without first seeking and obtaining the court’s permission.

^[3] This, however, does not constitute a hopeless intertwining of this case with Crim. No. 2002-1501. Release conditions in two otherwise unrelated cases are easily separable.