FSM v Wolphagen [2017] FMSC 30; 21 FSM R. 315 (Pon. 2017) (7 July 2017)

FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2016-536

FEDERATED STATES OF MICRONESIA, )
)
Plaintiff, )
)
vs. )
)
DAVID WOLPHAGEN, )
)
Defendant. )
__________________________________________ )

GENERAL FINDINGS, VERDICT, AND SENTENCING HEARING

Dennis K. Yamase
Chief Justice

Trial: June 28-29, 2017
Decided: July 7, 2017

APPEARANCES:

For the Plaintiff: Robert P. Nakasone, Esq. (trial)
Craig D. Reffner, Esq. (verdict)
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Kasio "Kembo" Mida, Jr., Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure Obstructing Justice
A person is guilty of obstructing administration of law and other government functions when the government has proven beyond a reasonable doubt that the defendant willfully interfered with, delayed, and obstructed certain public officials in the discharge or attempted discharge of their duties to process and prepare FSM passports by not providing the information necessary to gain access to the machine readable passport system after he left his government employment, thereby interfering with, and delaying or obstructing the processing and production of FSM passports. FSM v. Wolphagen, 21 FSM R. 315, 317 (Pon. 2017).

Criminal Law and Procedure Tampering with Public Records
A person is guilty of tampering with public records or information in violation of 11 F.S.M.C. 529(1) when the government has proven beyond a reasonable doubt that the defendant did make, present, or use a record, document, or thing knowing it to be false, and with the purpose that it be taken as a genuine part of information or records, including the information necessary to access the machine readable passport system that allows for the processing and issuance of FSM passports. FSM v. Wolphagen, 21 FSM R. 315, 317 (Pon. 2017).

Criminal Law and Procedure Tampering with Public Records; Criminal Law and Procedure Sentencing
A defendant is subject to possible imprisonment for not more than five years for the defendant’s tampering with public records conviction when the court finds beyond a reasonable doubt that the defendant’s purpose was to defraud or injure the government in its processing and production of FSM passports and to injure those FSM citizens who applied for and needed to obtain passports at the time the machine readable passport system was inoperable. FSM v. Wolphagen, 21 FSM R. 315, 317 (Pon. 2017).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

On Friday, July 7, 2017, the Court in open court rendered the verdict in this matter. The Government was represented by Assistant Attorney General Craig Reffner and the Defendant was represented by Kembo Mida, Esq. The Defendant David Wolphagen was present.

A trial was held on parts of June 28 and 29, 2017, with the testimony of five (5) witnesses for the Government and the entry into evidence of six (6) Government exhibits. After the close of the Government’s case on June 28, 2017, the Defendant David Wolphagen moved for a Rule 29 judgment of acquittal. Upon resuming trial on the morning of June 29, 2017, the Court granted the Rule 29 motion as to Count II and denied the motion as to Counts I and III. Without further submissions, the Defendant rested his case.

The Court then heard oral closing arguments from the Defendant and allowed the Government, at its request, to submit written closing arguments. The Court also allowed the Defendant an opportunity to reply to the Government’s closing arguments in writing. Closing arguments were then submitted.

Based on the testimony of the witnesses, all of the evidence presented at trial, and the arguments of counsel, the following are the Court’s general findings, no special findings having been requested:

As to Count I which is the charge of Obstructing Administration of Law and Other Government Functions in violation of 11 F.S.M.C. 501 the Court finds that based upon the testimony of the witnesses, (with the Court being able to judge the demeanor and credibility of the witnesses), all of the evidence submitted, and the arguments of counsel, the Court hereby finds that the Government has met its burden of proving beyond a reasonable doubt that the Defendant David Wolphagen did willfully interfere with, delay, and obstruct certain public officials in the discharge or attempted discharge of their duties to process and prepare FSM passports by not providing the information necessary to gain access to the machine readable passport system after he left his Government employment, thereby interfering with, and delaying or obstructing the processing and production of FSM passports.

As to Count III which is the charge of Tampering with Public Records or Information in violation of 11 F.S.M.C. 529(1) the Court finds that based upon the testimony of the witnesses, (with the Court being able to judge the demeanor and credibility of the witnesses), all the evidence submitted at trial, and the arguments of counsel, the Court hereby finds that the Government has met its burden of proving beyond a reasonable doubt that the Defendant David Wolphagen did make, present, or use any record, document, or thing knowing it to be false, and with the purpose that it be taken as a genuine part of information or records referred to in 11 F.S.M.C. 529(1)(a), including the information necessary to access the machine readable passport system that allows for the processing and issuance of FSM passports.

Based upon the conviction of the Defendant under Count I for Obstructing Administration of Law or Other Governmental Function, the Defendant is subject to possible imprisonment for not more than one year pursuant to 11 F.S.M.C. 501.

Based upon the conviction of the Defendant under Count III for Tampering with Public Records or Information, the Defendant is subject to possible imprisonment for not more than five (5) years pursuant to 11 F.S.M.C. 529(2)(a), as the Court finds beyond a reasonable doubt that the defendant’s purpose was to defraud or injure the Government in its processing and production of FSM passports and to injure those FSM citizens who applied for, and were in need of obtaining passports at the time the machine readable passport system was inoperable at the end of 2016.

The parties recommended that sentencing in this matter be held on Tuesday, August 15, 2017, however, there appears to be a scheduling conflict on the Court’s calendar on that day. Therefore, the Court hereby sets sentencing for the Defendant on Monday, August 14, 2017 at 9:30 a.m. at the FSM Supreme Court in Palikir, Pohnpei. The Defendant shall personally appear.

The State Justice Ombudsman shall prepare a presentence report and shall serve the report on the parties prior to seventy-two (72) hours of the sentencing hearing scheduled for August 14, 2017.

The Defendant will remain subject to the pretrial release conditions that were issued in this matter by earlier order of the Court until the time of his sentencing.

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