Federated States of Micronesia v Kansou [2004] FMSC 34; 13 FSM Intrm. 48 (Chk. 2004) (15 November 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as, Federated States of Micronesia v Kansou, [2004] FMSC 34; 13 FSM Intrm. 48 (Chk. 2004)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

ROOSEVELT D. KANSOU, SIMEON R. INNOCENTI,
JOHN PETEWON, JAMES FRITZ, MEMORINA
KANSOU, JOHN ENGICHY a/k/a AISER JOHN
ENGICHY, ROSEMARY ENGICHY a/k/a ROSEMARY
NAKAYAMA, FRANK DARRA, FRANK CHOLYMAY,
EM-R, RIBC AGGREGATES INC., MARKET
WHOLESALE, K & I ENTERPRISES, INC., and SOLID
BUILDERS AND TRADING SERVICES,
Defendants.

__________________________________________________

CRIMINAL CASE NO. 2003-1508

ORDER

Richard H. Benson
Specially Assigned Justice

Hearing: November 9, 2004
Decided: November 9, 2004
Order Entered: November 15, 2004

APPEARANCES:

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

For the Defendants (R.&M. Kansou; EM-R):
Michael J. Sipos, Esq. (on motions)
P.O. Box 2069
Kolonia, Pohnpei FM 96941

For the Defendant (Darra):
Joey Sapelalut, Esq.
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

* * * *

[2004] FMSC 34; [13 FSM Intrm. 48]

HEADNOTES

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Information
When a criminal information is not supported by written statement(s) under oath showing probable cause to the court’s satisfaction before a penal summons (or an arrest warrant) is issued, there is no ground stated that would warrant dismissal of the information if there is nothing before the court that indicates that the information is not a "plain, concise and definite statement of the essential facts constituting the offense." But the summonses issued pursuant to such an information are improperly issued and the resulting initial appearances are as a consequence defective. FSM v. Kansou, [2004] FMSC 34; 13 FSM Intrm. 48, 50 (Chk. 2004).

Criminal Law and Procedure - Information
Under 12 F.S.M.C. 210, the lack of sworn, written statements showing probable cause makes the issuance of the summonses defective. It does not make the information defective. FSM v. Kansou, [2004] FMSC 34; 13 FSM Intrm. 48, 50 (Chk. 2004).

Criminal Law and Procedure
As a general principle, a court must impose the least severe sanction that will accomplish the desired result of prompt and full compliance with applicable criminal procedure. FSM v. Kansou, [2004] FMSC 34; 13 FSM Intrm. 48, 50 (Chk. 2004).

* * * *

COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

On September 6, 2004, defendants Roosevelt D. Kansou, Memorina Kansou, and EM-R ("the movants") filed their Motion to Disqualify the FSM Department of Justice and Matthew Crabtree; Motion to Dismiss the Criminal Information. The government filed its response on September 28, 2004. Although given an opportunity to file a reply to the government’s opposition to this motion, the movants did not do so. Also pending before the court was the movants’ Request for Hearing Under FSM Crim. R. 44(c) to Examine Conflicts in Attorney Representation & Requesting Appointment of Counsel If Conflict Exists, filed on February 20, 2004. These matters were scheduled to be heard on November 9, 2004.

On November 8, 2004, the movants’ retained counsel filed a Notice of Discharge, stating that he had been discharged as counsel of record for defendants Roosevelt D. Kansou, Memorina Kansou, and EM-R. Roosevelt D. Kansou and Memorina Kansou, the only two partners of EM-R, confirmed the discharge at the November 9, 2004 hearing and appeared without counsel. The request for a Rule 44(c) hearing therefore became moot.

The court announced that since the motion to disqualify was pertinent only to the discharged counsel’s circumstances, no action would be taken on that motion at that time and it would await appointment of counsel and his or her decision on the matter. On reflection, the motion is now denied without prejudice. New counsel may renew it if he or she believes the circumstances warrant.

I.

The motion to dismiss is grounded in Title 12, section 210, which requires that the information be supported by written statement(s) under oath showing probable cause to the court’s satisfaction before a penal summons (or an arrest warrant) can be issued. The penal summonses issued on December 12, 2003 (and one issued May 31, 2004 for Rosemary Engichy a/k/a Rosemary Nakayama)

[13 FSM Intrm. 49]

were not so supported. The relief sought was dismissal of the information.

The movants requested a continuance of the motion until new counsel was appointed for them. The court denied the request on the grounds that the motion and the opposition fully informed the court of the issues presented. The Federated States of Micronesia consented to the motion’s submission without oral argument.

II.

There was no ground stated that would warrant dismissal of the information, as requested. Nothing before the court indicates that the information is not a "plain, concise and definite statement of the essential facts constituting the offense." FSM Crim. R. 7(c)(1).

The summonses, however, were improperly issued and the resulting January 13, 2004 initial appearances (and for Rosemary Engichy, her June 1, 2004 initial appearance) and the release orders announced that and memorialized January 15, 2004 (June 2, 2004 for Rosemary Engichy) were as a consequence defective.

III.

The necessary and proper relief for all defendants because of the defect in issuing the penal summonses is to vacate the December 12, 2003 summonses (and the May 31, 2004 summons for Rosemary Engichy) and to vacate the orders based on the hearings held pursuant to those summonses.

The movants, relying on FSM v. Wainit, [2004] FMSC 15; 12 FSM Intrm. 376 (Chk. 2004), sought dismissal of the information. In that case, the information was dismissed because there were no written statements under oath showing probable cause, as required by 12 F.S.M.C. 210, in order to obtain an arrest warrant. Id. at 384. However, in that case, neither the parties in their arguments nor the court in its decision considered the distinction between the information and the warrant sought and obtained pursuant to that information. The distinction is crucial. The lack of sworn, written statements showing probable cause makes, under 12 F.S.M.C. 210, the issuance of the summonses defective. It does not make the information defective.

As a general principle, a court must impose the least severe sanction that will accomplish the desired result of prompt and full compliance with applicable criminal procedure. FSM v. Wainit, [2002] FMSC 34; 11 FSM Intrm. 186, 190-91 (Chk. 2002).^[1] In this case, that sanction is vacating the penal summonses and the orders issued at the initial appearances held as a result of those summonses.

IV.

It was accordingly ordered that the summonses issued December 12, 2003 and May 31, 2004 and the orders issued from the bench on January 13, 2004 and on June 1, 2004 and memorialized in the Order Setting Release Conditions filed January 15, 2004 and the Order Setting Release Conditions filed June 2, 2004, respectively, were vacated. The information was not dismissed and the government was free to seek new penal summonses with proper supporting documents.

[13 FSM Intrm.59]

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^[1] This Wainit case is not the same case as the one cited by the movants.