Federated States of Micronesia v Kansou [2005] FMSC 21; 13 FSM Intrm. 167 (Chk. 2005) (2 March 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Federated States of Micronesia v Kansou, [2005] FMSC 21; 13 FSM Intrm. 167 (Chk. 2005)

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

PROTECTIVE ORDER REDACTING DISCOVERY

Richard H. Benson
Specially Assigned Justice

Hearing: February 16, 2005
Decided: March 2, 2005

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 Defendant (R. Kansou):
Scott Garvey, Esq.
P.O. Box 114
Kolonia, Pohnpei FM 96941

For the Defendant (Innocenti):
Canney L. Palsis, Esq.
P.O. Box 38
Lelu, Kosrae FM 96944

For the Defendant (Fritz):
Ready Johnny, Esq.
P.O. Box 754
Weno, Chuuk FM 96941

For the Defendant (M. Kansou):
Joseph Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

[13 FSM Intrm.183]

For the Defendants (J.&R. Engichy):
Harry A. Seymour, Esq.
Office of the Public Defender
P.O. Box 245
Lelu, Kosrae FM 96944

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HEADNOTES

Criminal Law and Procedure - Motions
Service is incomplete when a defendant’s response to a government motion is served only on the government and not on the other defendants because all filings are to be served on all other parties, including other co-defendants. FSM v. Kansou, [2005] FMSC 21; 13 FSM Intrm. 167, 168 n.1 (Chk. 2005).

Criminal Law and Procedure - Motions
Failure to respond in writing to a written motion is deemed a consent to the granting of the motion, and oral argument will not be heard from that party. FSM v. Kansou, [2005] FMSC 21; 13 FSM Intrm. 167, 169 n.2 (Chk. 2005).

Criminal Law and Procedure - Discovery
The government may file under seal an ex parte document, for the court to view in camera, explaining which discovery entries should be redacted and for what reasons. FSM v. Kansou, [2005] FMSC 21; 13 FSM Intrm. 167, 169 (Chk. 2005).

Criminal Law and Procedure - Discovery
If the government feels that disclosing certain material to the defendants would jeopardize other pending investigations before they were completed it can comply with Rule 16(c)’s prompt disclosure requirement and address its legitimate concerns over the confidentiality of pending investigation(s) by notifying the court. Such a notification can be by a written ex parte motion for a protective order to be viewed by the judge alone in camera. FSM v. Kansou, [2005] FMSC 21; 13 FSM Intrm. 167, 169 (Chk. 2005).

Criminal Law and Procedure - Discovery
Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. FSM v. Kansou, [2005] FMSC 21; 13 FSM Intrm. 167, 169 (Chk. 2005).

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COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

[13 FSM Intrm.184]

This comes before the court on the Government’s Motion for a Protective Order, filed January 19, 2005, and on Defendants John Engichy and Rosemary Engichy’s Opposition to Plaintiff’s Motion for Protective Order, filed January 28, 2005; Defendant James Fritz Responses and Opposition to Plaintiff [sic] Motion for a Protective Order,^[1] filed January 31, 2005; and Defendant Roosevelt Kansou’s Opposition to Government’s Motion for a Protective Order, filed February 2, 2005. On February 16, 2005, the government filed Government’s Specification of Portions of the Record Sought to Be Redacted. Oral argument was heard on February 16, 2005 from the government and from those defendants responding to the government’s motion.^[2] The court also inquired of counsel who had not yet been appointed when the government served its motion whether they were satisfied with the other defendants’ opposition or wanted to submit their own. Counsel for Memorina Kansou’s counsel joined the opposition already presented. Simeon Innocenti’s counsel, who had been appointed the week before, asked for some time to review the matter. He was given ten days. On February 28, 2005, Innocenti’s counsel faxed his opposition to the protective order in which he joined the other defendants’ written and oral arguments in opposition. The government was also given leave to file under seal an ex parte document, for the court to view in camera, explaining which entries should be redacted and for what reasons. FSM Crim. R. 16(d). That document was filed under seal on February 17, 2005.

The items the government seeks to protect are contained in case file No. 2003-700. In general, that file contains the applications for, and the returns from, monitoring orders and search warrants (and the orders and warrants themselves) directed towards the defendants in this case and on which the criminal allegations in this case are based. The government concedes that, in general, these are papers that it must provide to the defendants in discovery. The government seeks a protective order to redact from Case No. 2003-700 the name(s) of person(s) and entit(ies) (and certain allegations involving them) who are not defendants in this case and against whom there is an ongoing investigation.

If the government feels that disclosing certain material to the defendants would jeopardize other pending investigations before they were completed it can comply with Rule 16(c)’s prompt disclosure requirement and address its legitimate concerns over the confidentiality of pending investigation(s) by notifying the court. Such a notification can be by a written ex parte motion for a protective order to be viewed by the judge alone in camera. FSM v. Wainit, [2002] FMSC 34; 11 FSM Intrm. 186, 190 (Chk. 2002). In this case, the motion was brought with notice to the defendants and only a two-page written supplement submitted ex parte for the judge’s viewing in camera.

"Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate." FSM Crim. R. 16(d)(1). The court has carefully reviewed the parties’ written submissions and oral arguments, the government’s sealed ex parte submission, and the parts of the file the government seeks to redact. The entire 665-page record in case No. 2003-700 has been certified by the clerk with each document given a number (e.g., D45) and each page a separate cumulative consecutive number prefixed with the letter R. The court concludes that the government has made a sufficient showing and that its motion has merit and should be granted for the most part as follows:

Now therefore it is hereby ordered that

1) paragraphs 10(i) and 10(j) on page R570 (in D45) is redacted;

2) paragraph 8 on page R580 (in D44) is redacted;

3) paragraph 36 on page R577 and paragraph 37 on page R577 continuing on to page R578 (in D45) are redacted;

4) paragraph (h) on page R582 (in D46) is redacted;

[13 FSM Intrm.185]

5) all references on pages R583 and R584 (in D46) to the person or entity listed in paragraph (h) on page R582 are redacted;

6) paragraphs 11-12 on page R639 and paragraphs 20-24 on page R640 (in D63) are redacted;

7) paragraphs 10(k) and 10(l) on page R645 and paragraphs 10(s), 10(t), 10(u), 10(v), and 10(w) on page R646 (in D64) are redacted;

paragraph 10(m) on page R645 and paragraphs 10(m),^[3] 10(n), 10(o), 10(p), 10(q) and 10(r) on page R646 are not redacted as they name persons and entities who are defendants in this case or entities in which they have an interest and the motion as to these seven paragraphs is denied;

8) paragraph 36 on page R653 (in D64) is redacted;

9) paragraphs 11-12 on page R655, paragraphs 20-23 on page R656, and paragraph a,^[4] which immediately follows paragraph 23 on page R656 (all in D65) are redacted; and

10) all references on page R657 (in D65) to person(s) or entit(ies) listed in paragraphs 11-12 on page R655 and paragraphs 20-23 and paragraph a on page R656 are redacted.

It is further ordered that the government provide defendants, in discovery and under seal, for inspection and copying the rest of Case No. 2003-700 and that any defendant may move that those portions of Case No. 2003-700 that refer to him, her, or it be unsealed, the government having indicated that it would not oppose such a motion.

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^[1] This response was served only on the government and not on the other defendants. Service was thus incomplete. Counsel are reminded that all filings are to be served on all other parties, including other co-defendants. FSM Crim. R. 49(a).

^[2] Failure to respond in writing to a written motion is deemed a consent to the granting of the motion, FSM Crim. R. 45(d), and oral argument will not be heard from that party.
^[3] There is a paragraph 10(m) at the bottom of page R645 and a different paragraph 10(m) at the top of page R646. This repetition in numbering appears inadvertent.

^[4] The government asked that paragraph 24 on page R656 be redacted, but there is no paragraph numbered as such. It appears that paragraph "a" was intended to be numbered as 24.