Federated States of Micronesia v Kansou [2004] FMSC 54; 12 FSM Intrm. 637 (Chk. 2004) (28 September 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v Kansou, [2004] FMSC 54; 12 FSM Intrm 637 (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

Decided: September 28, 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.
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

* * * *

HEADNOTES

Courts - Judges
A trial justice specially assigned to a case by the Chief Justice has no authority to assign that (or any case) to the Chief Justice even if he were not disqualified. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 640 (Chk. 2004).

Courts - Recusal
Litigants are not entitled to a judge of their own choosing; they are only entitled to an unbiased judge. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 640 (Chk. 2004).

Attorney, Trial Counselor and Client - Fees; Criminal Law and Procedure - Right to Counsel
When no authority has been given for the court to appoint private counsel already retained by a defendant or to require that the Public Defenders’ Office compensate that private counsel at his prevailing hourly rate and when appointed counsel usually serve pro bono, the request will be denied. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 641 (Chk. 2004).

Evidence -Judicial Notice
If it were an adjudicative fact, the court could take judicial notice of another suit’s existence but not of that complaint’s contents when the necessary information has not been supplied. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 641 n.3 (Chk. 2004).

Attorney, Trial Counselor and Client - Fees; Criminal Law and Procedure - Right to Counsel
When the movants have not been convicted of any charges, no assets have been ordered forfeited, no payments to movant’s counsel have been identified as coming from forfeitable assets, and the government has not committed itself to seeking disgorgement of counsel’s fees, and the record shows that the movants have sources of income and assets that the government has not alleged are forfeitable and from which attorney’s fees might be paid, it is too speculative for the court to consider whether the possible forfeiture of attorney’s fees will affect an accused’s right to retain counsel of his choice and to effective assistance of that counsel. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 641 (Chk. 2004).

Constitutional Law - Case or Dispute
When a question is hypothetical, academic, or abstract, the court will not rule, and is generally precluded from ruling, on it. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 641 (Chk. 2004).

Attorney, Trial Counselor and Client - Fees; Criminal Law and Procedure - Right to Counsel
Concerns about the affect of possible forfeiture of defense counsel’s attorney’s fees do not apply to a defendant who is represented by a salaried employee of the Public Defenders’ Office and who is only charged with one offense and forfeiture of assets is not a penalty that the court can impose for the conviction of that offense. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 641-42 (Chk. 2004).

Criminal Law and Procedure - Motions
Movants cannot raise the claims of third parties; they may only raise their own claims. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 642 (Chk. 2004).

Bail; Criminal Law and Procedure - Right to Counsel
The court is obligated to set pretrial release conditions for defendants when they make their initial appearance. At an initial appearance, the court is required to, among other things, inform a defendant of his rights, including his right to retain counsel, or to request the assignment of counsel if the defendant is unable to obtain counsel, and will, if requested, direct the appointment of counsel. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 642 (Chk. 2004).

Bail
Pretrial release orders do not await the assignment of counsel. A defendant is entitled to release after his initial appearance, if at all possible, rather than face the bleak prospect of being jailed until counsel has been appointed and appeared. A defendant may seek modification of his or her pretrial release order at any time. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 642 (Chk. 2004).

Constitutional Law - Declaration of Rights; Criminal Law and Procedure - Right to Silence
The protection offered by the FSM Constitution against compulsory self-incrimination is traceable to the U.S. Constitution’s fifth amendment, and when a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, United States authority may be consulted to understand its meaning. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 643 (Chk. 2004).

Criminal Law and Procedure - Right to Silence
The central standard for application of the privilege against self-incrimination has been whether the claimant is confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination. Prospective acts will ordinarily involve only speculative and insubstantial risks of incrimination. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 643 (Chk. 2004).

Criminal Law and Procedure - Right to Silence
When a pretrial release order’s reporting requirement is prospective only and the movants are not required to report any past transactions, but only ones that had not yet taken place, the reports cannot incriminate any defendant for any of the offenses charged in the pending criminal information. When sending money abroad is not a criminal or regulatory offense, merely reporting it cannot, by itself, incriminate anyone. When the condition to report money sent abroad is prospective only and a defendant may arrange his, her, or its affairs so that there is nothing to report that would be evidence of some act for which criminal charges might be brought, it presents the ordinary case for prospective acts - the movants are not confronted by any substantial and real hazard of self-incrimination and therefore may not rely on the right against self-incrimination for relief from a pretrial release order to report money sent abroad. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 643 (Chk. 2004).

Business Organizations - Partnership
An unincorporated business entity owned by two persons is a partnership. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 643 (Chk. 2004).

Business Organizations - Partnership; Criminal Law and Procedure - Right to Silence
Under the right against self-incrimination, neither a partnership nor the individual partners are shielded from compelled production of partnership records on self-incrimination grounds. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 643 (Chk. 2004).

Bail; Criminal Law and Procedure - Right to Silence
A release condition that the defendants report money sent abroad is not contrary to the purpose of pretrial release conditions to ensure the defendant’s appearance at trial and assure the community’s safety when among the possible penalties, if convicted of the offenses charged, is the forfeiture of certain assets allegedly wrongfully acquired; when the provisions help assure that the res that might be subject to forfeiture is not transferred from its current owners or does not depart the jurisdiction - it helps assure the presence of the res; and when it is a less drastic measure than that sought by the government, which was to freeze the movants’ assets and not permit any remittances abroad without prior court approval. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 643 (Chk. 2004).

Bail
When the rationale behind the reporting requirement is that potentially forfeitable assets not be spirited out of the jurisdiction and one defendant is charged with only one count of conspiracy and forfeiture of assets is not a penalty that may be imposed for conviction of that offense, his pretrial release conditions will be modified to eliminate the provisions concerning reporting funds sent abroad and restricting the sale of property. FSM v. Kansou, [2004] FMSC 54; 12 FSM Intrm. 637, 644 (Chk. 2004).

* * * *

COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

On February 3, 2004, defendants Roosevelt D. Kansou, Memorina Kansou, and EM-R ("the movants") filed their Motion to Modify Order Setting Pretrial Release Conditions; Request for Assignment to Chief Justice Amaraich; Request for Expedited Hearing; Motion Assigning Michael J. Sipos as Court Appointed Defense Counsel, and on February 12, 2004, they filed a Motion for Stay of Reporting Requirements in Pretrial Release Order; Invocation of Right to Remain Silent. Also before the court are the government’s responses to both motions, both filed February 23, 2004 and defendant Frank Darra’s Motion to Join Motion, filed February 24, 2004. Darra’s motion adopts the other motions as his own "because the legal points raised therein apply with equal vigor to Defendant Frank Darra."

I.

The February 3, 2004 motion asks, among other things, that this case be assigned to Chief Justice Amaraich and for him to hold an expedited hearing, that the movants’ private counsel be appointed as counsel to be paid by the Public Defenders’ Office at private counsel’s prevailing rate, that the court take judicial notice of counsel’s civil suit against the prosecutor, that the financial reporting requirements in the court’s January 15, 2004 pretrial release order[1] be eliminated, and assert that the court’s pretrial release order violated multiple defendants’ right to counsel. The February 12, 2004 motion asks that those reporting requirements be stayed until the first motion is ruled upon.

The trial justice specially assigned to this case by the Chief Justice has no authority to assign this (or any case) to the Chief Justice even if he were not disqualified. Furthermore, litigants are not entitled to a judge of their own choosing; they are only entitled to an unbiased judge. See, e.g., Jackson v. Kosrae State Election Comm’n[2002] FMKSC 18; , 11 FSM Intrm. 133, 135-36 (Kos. S. Ct. Tr. 2002); Kosrae v. Sigrah, [2002] FMKSC 10; 10 FSM Intrm. 654, 657 (Kos. S. Ct. Tr. 2002).

The movants’ counsel asks that the court appoint him as counsel with his compensation to be derived from the Public Defenders’ Office at his usual hourly rate. No authority has been given for the court to appoint private counsel already retained by a defendant or to require that the Public Defenders’ Office compensate that private counsel at his prevailing hourly rate. Appointed counsel usually serve pro bono. See, e.g., In re Powell[1991] FMSC 39; , 5 FSM Intrm. 114, 115 (App. 1991); FSM v. Hartman (II), [1992] FMSC 22; 5 FSM Intrm. 368, 371 (Pon. 1992); see also Hartman v. FSM, [1991] FMSC 28; 5 FSM Intrm. 224, 227 (App. 1991).

The reason given for this request, is that the government may, at some future point, seek forfeiture[2] of some or all of the fees paid to counsel. The movants contend that such an eventuality violates an accused’s right to retain counsel of his choice and to effective assistance of that counsel because a counsel who fears that his fee may be subject to forfeiture may not represent his client as effectively as he should, but may instead have an incentive to plead his client guilty if the prosecution will agree not to go after his fee.[3] The government replies that under the similar U.S. constitutional provision, the U.S. Supreme Court has held that forfeiture of an attorney’s fee when paid by a client’s funds subject to forfeiture does not violate an accused’s right to retain counsel of his choice and to effective assistance of that counsel or to due process. Caplin & Drysdale, Chartered v. United States, [1989] USSC 129; 491 U.S. 617, 109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989) (5-4 decision) (Blackmun, J., dissenting). The movants rely on the same case, but urge that this court follow not that court’s holding, but the dissent, which they deem more persuasive.

In Caplin & Drysdale, a criminal defendant had paid his attorneys $25,000 in legal fees despite the existence of a pretrial restraining order not to transfer those funds since they were potentially forfeitable, and after the client pled guilty, his attorneys sought as their fees not only the $25,000 already paid, but also $170,000 from assets that had already been forfeited to the government. Id. at 620-21, 109 S. Ct. at 2650, 105 L. Ed. 2d at 538-39. Caplin & Drysdale is readily distinguishable from this case.

In the present case, the movants have not been convicted of any charges, no assets have been ordered forfeited, no payments to movant’s counsel have been identified as coming from forfeitable assets, and the government has not committed itself to seeking disgorgement of counsel’s fees. And, unlike the client in Caplin & Drysdale, the record shows that the movants have sources of income and assets that the government has not alleged are forfeitable and from which attorney’s fees might be paid. It is thus too speculative at this point for the court to consider adopting either the majority or dissenting view in Caplin & Drysdale. The question is hypothetical, academic, or abstract. The court will not rule, and is generally precluded from ruling, on hypothetical, abstract, or academic questions. Fritz v. National Election Dir., [2003] FMSC 37; 11 FSM Intrm. 442, 444 (App. 2003); FSM Dev. Bank v. Yinug, [2003] FMSC 31; 11 FSM Intrm. 405, 409-10 (App. 2003); FSM v. Louis, [2000] FMSC 39; 9 FSM Intrm. 474, 481 (App. 2000) (FSM Supreme Court’s jurisdiction covers only actual cases and disputes). Insofar as it concerns the movants’ counsel’s attorney fees, the February 3, 2004 motion is denied.

Despite Darra’s assertion in his joinder motion that "the legal points raised [by the movants] appl[ied] with equal vigor" to him, the February 3, 2004 motion’s points concerning attorney’s fees do not apply to him. He is represented by a salaried employee of the Public Defenders’ Office. His attorney will not receive any fees from him. Furthermore, Darra is only charged with one count, conspiracy, and forfeiture of assets is not a penalty that the court can impose for the conviction of that offense.

II.

The February 3, 2004 motion asserts that the court’s pretrial release order violates multiple defendants’ right to counsel. That pretrial release order directed the appointment of counsel for those defendants who, although served with summonses to appear a couple of weeks before, appeared at the January 13, 2004 initial appearance without counsel. The movants (who did appear with counsel on the January 13, 2004) apparently contend that the presence of unrepresented defendants somehow taints or invalidates the pretrial release order the court issued for all defendants who appeared, or that it is illegal or unconstitutional for a court to issue a pretrial release order for unrepresented defendants.

The movants cannot raise the claims of third parties; they may only raise their own claims. See Eighth Kosrae Legislature v. FSM Dev. Bank, [2003] FMSC 27; 11 FSM Intrm. 491, 497, 500 (Kos. 2003) (petitioner generally must assert its own legal rights and interests and cannot rest its claim to relief on the legal rights or interests of third parties); College of Micronesia-FSM v. Rosario, [2001] FMSC 3; 10 FSM Intrm. 175, 188 (Pon. 2001) (a defendant cannot defeat a plaintiff’s summary judgment motion by raising a third party’s potential claim), aff’d[2003] FMSC 10; , 11 FSM Intrm. 355, 360 (App. 2003) (agreeing with trial court); Dorval Tankship Pty, Ltd. v. Department of Finance, [1997] FMSC 24; 8 FSM Intrm. 111, 115 (Chk. 1997) (generally true that parties may not assert the rights of third parties).

Moreover, the court is obligated to set pretrial release conditions for defendants when they make their initial appearance. FSM Crim. R. 5(c); FSM Crim. R. 46(a)(1). At an initial appearance, the court is required to, among other things, inform a defendant of his rights, including his "right to retain counsel, or to request the assignment of counsel if the defendant is unable to obtain counsel," FSM Crim. R. 5(c), and will, if requested, direct the appointment of counsel. Pretrial release orders do not await the assignment of counsel. A defendant is entitled to release after his initial appearance, if at all possible, rather than face the bleak prospect of being jailed until counsel has been appointed and appeared. A defendant may seek modification of his or her pretrial release order at any time. See FSM Crim. R. 46(a)(5).

The movants therefore can obtain no relief on the ground that defendants other than themselves were not represented by counsel at their joint initial appearance.

III.

The heart of the motions is the movants’ contention that the pretrial release order must be modified because, in their view, part of it violates the movants’ constitutional right against self-incrimination (right to remain silent). The movants (and Darra) contend in particular that the following pretrial release provision violates their rights. They must, on or before the tenth of each month, to report to the Secretary of Justice in writing, all funds sent outside of the FSM, showing the payee, amount, date, and purpose; the report due February 10, 2004 shall cover January 13-31, 2004, and all subsequent reports shall cover the previous calendar month.

Pretrial Release Order 1(c) [R. Kansou], 5(b) [M. Kansou], 7(b) [Darra], 8(c) [EM-R] (Jan. 15, 2004). The movants claim that this not only violates their constitutional right against self-incrimination, but is also contrary to the purpose of pretrial release conditions, which is to secure a defendant’s appearance at trial and assure the community’s safety.

The protection offered by the FSM Constitution against compulsory self-incrimination is traceable to the U.S. Constitution’s fifth amendment, FSM v. Edward, [1988] FMKSC 6; 3 FSM Intrm. 224, 230 (Pon. 1987); FSM v. Jonathan, [1986] FMSC 5; 2 FSM Intrm. 189, 194 (Kos. 1986) (interpreting FSM Const. art. IV, § 7), and whenovision of the the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, United States authority may be consulted to understas mea Primo v. Pohnpei Transp. Auth., 9 FSM IntM Intrm. 4rm. 407, 412 n.2 (App. 2000).

"The central standard for the privilege’s [against self-incrimination] application has been whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination." Marchetti v. United States, [1968] USSC 22; 390 U.S. 39, 53[1968] USSC 22; , 88 S. Ct. 697, 705[1968] USSC 22; , 19 L. Ed. 2d 889, 901 (1968). "[P]rospective acts will . . . ordiy invonly only speculpeculative and insubstantial risks of incrimination." Id. at 54, 88 S. Ct. at 705, 19 L. Ed. 2d at 901. In Marchetti, the councludat the situation presented an exception to that ghat generaeneral rule because the petitioner was required by federal statute to register and pay an occupational tax for accepting wagers, which would enhance the likelihood of his prosecution for future acts in violation of state gambling prohibitions since the federal records were available to the state law enforcement.

The pretrial release order’s reporting requirement is prospective only. The movants were not required to report any past transactions, but only ones that had not yet taken place. The reports therefore cannot incriminate any defendant for any of the offenses charged in the pending criminal information. Also, sending money abroad is not a criminal or regulatory offense. Thus merely reporting it cannot, by itself, incriminate any movant. Since this condition is prospective only, a defendant may arrange his, her, or its affairs so that there is nothing to report that would be evidence of some act for which criminal charges might be brought. Unlike the petitioner in Marchetti, the movants here present the ordinary case for prospective acts - they are not confronted by any substantial and real hazard of self-incrimination. They therefore may not rely on the right against self-incrimination for relief they seek.

Additionally, defendant EM-R cannot assert a right against self-incrimination. EM-R, according to the criminal information, is an unincorporated business entity owned by Roosevelt Kansou and Memorina Kansou. That makes EM-R a partnership. Under the right against self-incrimination, "neither a partnership nor the individual partners are shielded from compelled production of partnership records on self-incrimination grounds." Fisher v. United States, [1976] USSC 65; 425 U.S. 391, 408[1976] USSC 65; , 96 S. Ct. 1569, 1580, 48 L. Ed. 2d 39, 54 (1976); see also United States v. Mahady & Mahady, [1975] USCA3 191; 512 F.2d 521, 523-24 (3d Cir. 1975) (law partner could not invoke privilege to refuse subpoena directed to a "small family partnership"). Cf. FSM v. Zhong Yuan Fishery Co., [2000] FMSC 4; 9 FSM Intrm. 351, 352 (Kos. 2000) (no FSM case law holds that a corporation is a person for purposes of the privilege against self-incrimination).

The movants also contend the release condition is contrary to the purpose of pretrial release conditions, which is to ensure the defendant’s appearance at trial and assure the community’s safety. The movants overlook that among the possible penalties, if convicted of the offenses charged, is the forfeiture of certain assets allegedly wrongfully acquired. As such, this prosecution has some in rem aspects. The pretrial release order’s reporting provision (and the property transfer provision) help assure that the res that might be subject to forfeiture is not transferred from its current owners or does not depart the jurisdiction - it helps assure the presence of the res - and it is a less drastic measure than that sought by the government, which was to freeze the movants’ assets and not permit any remittances abroad without prior court approval.

IV.

However, given the rationale behind the reporting requirement - that potentially forfeitable assets not be spirited out of the jurisdiction - the court concludes it may have erred when it imposed the reporting requirement on defendant Frank Darra. Darra, as noted above, is only charged with one count of conspiracy and forfeiture of assets is not a penalty that may be imposed for conviction of that offense. Darra’s pretrial release conditions are therefore modified to eliminate the provisions concerning reporting funds sent abroad and restricting the sale of property. Paragraphs 7(b) and (c) of the January 15, 2004 pretrial release order are therefore stricken. Paragraphs 7(a) and (d) remain in effect.

V.

The motions filed by defendants Roosevelt D. Kansou, Memorina Kansou, and EM-R are denied. Frank Darra’s motion is granted to the extent that his pretrial release conditions are modified as stated in the preceding paragraph. Since movants’ counsel is scheduled to be out of the FSM until October 11, 2004, the movants’ reports due on October 10, 2004 may be filed no later than October 20, 2004. The reports due in later months shall continue to be due on the tenth of the month.

* * * *

---

^[1] The written January 15, 2004 pretrial release order memorialized the order given verbally at the January 13, 2004 initial appearance.

^[2] If the movants are convicted of the offenses charged, one statutory penalty the court may impose is the forfeiture of property wrongfully obtained. 11 F.S.M.C. 929 et seq.

^[3] The movants also ask that judicial notice be taken of their counsel’s complaint in a civil suit against the prosecutor. Both the movants’ and the government’s filings mention this suit. If it were an adjudicative fact, the court could take judicial notice of the suit’s existence but not of the complaint’s contents since the necessary information has not been supplied. "A court shall take judicial notice if requested by a party and supplied with the necessary information." FSM Evid. R. 201(d).