Federated States of Micronesia v Kansou [2006] FMSC 11; 14 FSM Intrm. 139 (Chk. 2006) (4 March 2006)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Federated States of Micronesia v. Kansou, [2006] FMSC 11; 14 FSM Intrm. 139 (Chk. 2006)

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: January 4, 2006
Decided: March 4, 2006

APPEARANCES:

For the Plaintiff:
Matthew L. Olmsted, Esq. (briefed)
Keith J. Peterson, Esq. (argued)
Assistant Attorneys 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 (Darra):
Joey J. Sapelalut, Esq.
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

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HEADNOTES

[14 FSM Intrm. 143]

Criminal Law and Procedure - Conspiracy; Evidence - Hearsay
Even if the evidence is of events that took place in periods for which prosecution may be time-barred, it is not necessarily inadmissible. Nor is hearsay necessarily inadmissible. FSM v. Kansou, [2006] FMSC 11; 14 FSM Intrm. 139, 140-41 (Chk. 2006).

Evidence - Hearsay
Statements by a party-opponent offered against that party are not hearsay and are admissible. FSM v. Kansou, [2006] FMSC 11; 14 FSM Intrm. 139, 141 (Chk. 2006).

Criminal Law and Procedure - Conspiracy; Evidence - Hearsay
A statement by a party’s co-conspirator made during the course and in furtherance of the conspiracy is not hearsay and is admissible. FSM v. Kansou, [2006] FMSC 11; 14 FSM Intrm. 139, 141 (Chk. 2006).

Criminal Law and Procedure; Evidence
When none of the objections to admission of evidence are of the type that should be addressed in a pretrial motion to suppress, which is generally reserved for evidence allegedly obtained illegally, the motion to suppress should be denied and the issue of whether any of the evidence is admissible is a question that should, and will, come up in an orderly fashion during trial and be ruled upon if offered and objected to. FSM v. Kansou, [2006] FMSC 11; 14 FSM Intrm. 139, 141 (Chk. 2006).

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COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

On November 9, 2005, Defendants John Engichy and Rosemary Engichy ("Engichys") filed their Motion in Limine for Suppression of Evidence, Or, in the Alternative, Motion for Protective Order. Defendant Simeon R. Innocenti (and Market Wholesale) filed his joinder to the motion on November 14, 2005. Frank Darra filed his joinder to the motion on December 19, 2005. On December 9, 2005, the Engichys filed a Supplemental Motion in Limine for Suppression of Evidence, Or, in Alternative, Motion for Protective Order and with an Affidavit in Support filed on December 12, 2005. On January 3, 2006, Innocenti filed a supplement to his joinder motion.

On December 27, 2005, the FSM filed its opposition, and on January 3, 2006, it filed its response to the supplemental motion. The motion was heard on January 4, 2006.

The Engichys (joined by Innocenti and Market Wholesale and Darra) move to suppress evidence against them 1) because the evidence is about events that took place at times which, in their view, are long enough ago that prosecution for those events is barred by the three-year statute of limitations; 2) because the evidence relied upon is hearsay; and 3) because various search warrants and monitoring orders are improper and thus any evidence seized through them should be suppressed.

The statute of limitations issue was dealt with by the court’s order denying the Engichys’ motion to dismiss in part and granting it in part. [FSM v. Kansou, [2006] FMSC 8; 14 FSM Intrm. 132, 135 (Chk. 2006).] Even if the evidence is of events that took place in periods for which prosecution may be time-barred, it is not necessarily inadmissible. See, e.g., FSM Evid. R. 404(b). Nor is hearsay necessarily inadmissible. See FSM Evid. R. 803, 804. Furthermore, statements by a party-opponent offered against that party are not hearsay and are admissible. FSM Evid. R. 801(d)(2)(A)-(D). Also, a statement by a party’s co-conspirator made during the course and in furtherance of the conspiracy is not hearsay and is admissible. FSM Evid. R. 801(d)(2)(E). Whether any of the above evidence is admissible is a question that should, and will, come

[14 FSM Intrm. 144]

up in an orderly fashion during trial and be ruled upon if offered and objected to. None of these objections to admission are of the type that should be addressed in a pretrial motion to suppress, which is generally reserved for evidence allegedly obtained illegally.

The movants also seek to suppress the fruits of various search warrants and monitoring orders. As stated in this court’s order denying Roosevelt Kansou’s Motion to Suppress, the movants have no standing to challenge the search warrants and monitoring orders executed or served on the Bank of Guam and the Bank of the Federated States of Micronesia. [FSM v. Kansou, [2006] FMSC 7; 14 FSM Intrm. 136, 138 (Chk. 2006).] All of the search warrants and monitoring orders listed in the Engichys’ motion were executed or served on the Bank of Guam or the Bank of the Federated States of Micronesia.

Accordingly, the motion the motion to suppress is denied. The alternative motion for a protective order is also denied. No adequate basis for such an order was shown. The defendants may make all proper objections to the admission of evidence, based on the FSM Rules of Evidence, at the proper time, when and if, offered at trial.

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