FSM v Chunn [2018] FMSC 12; 21 FSM R. 501 (Pon. 2018) (27 April 2018)

FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2017-501

FEDERATED STATES OF MICRONESIA, )
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Plaintiff, )
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0. )

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WILLIAM CHUNN and JOSEPH PARISI, )
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Defendants. )
__________________________________________ )

DENYING DEFENDANT’S MOTION FOR BILL OF PARTICULARS

Dennis K. Yamase
Chief Justice

Hearing: February 15, 2018
Decided: April 27, 2018

APPEARANCES:

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

For the Defendant: Lorrie Johnson-Asher, Esq.
(Chunn) Chief Public Defender
Office of the Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941

For the Defendant: Erick B. Divinigracia, Esq.
(Parisi) Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure Bill of Particulars
The court may direct the filing of a bill of particulars. The purpose of a bill of particulars is to inform the defendant sufficiently about the charge so he can prepare his defense and can avoid surprise. FSM v. Chunn, 21 FSM R. 501, 504 (Pon. 2018).

Criminal Law and Procedure Bill of Particulars
A bill of particulars is typically requested when the defendant is unable to determine from the information what the charges against him are. FSM v. Chunn, 21 FSM R. 501, 504 (Pon. 2018).

Criminal Law and Procedure Bill of Particulars
A bill of particulars is the prosecutor’s formal written statement providing details of the charges against the defendant. Its functions are to give the defendant notice of the essential facts supporting the crimes alleged in the information, and also to avoid prejudicial surprise to the defense at trial. FSM v. Chunn, 21 FSM R. 501, 504 (Pon. 2018).

Criminal Law and Procedure Information
Rule 7(a) requires a criminal information to be a plain, concise, and definite written statement of the essential facts constituting the crime charged. FSM v. Chunn, 21 FSM R. 501, 504 (Pon. 2018).

Criminal Law and Procedure Information
To determine whether an information is deficient, the information and its supporting affidavit(s) must be read together. FSM v. Chunn, 21 FSM R. 501, 504 (Pon. 2018).

Criminal Law and Procedure Bill of Particulars; Criminal Law and Procedure Information

A motion for a bill of particulars will be denied when the facts as alleged in four different, detailed affidavits include dates, locations, and amounts of money exchanged, and in addition to the charges as set forth in the information, give the defendant sufficient knowledge of the charges against him so that there will be no prejudicial surprise to him. FSM v. Chunn, 21 FSM R. 501, 504 (Pon. 2018).

Criminal Law and Procedure Bill of Particulars
A bill of particulars is not a matter of right. It rests within the trial court’s sound discretion. FSM v. Chunn, 21 FSM R. 501, 505 (Pon. 2018).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

I. BACKGROUND

The criminal Information in this matter was filed on February 14, 2017, alleging thirteen (13) different counts against the Defendant, Joseph Parisi (herein "Parisi"). The allegations as set forth in the criminal Information are in violation of the 2012 Violations of Trafficking in Persons Act.

On January 12, 2018, after almost a year after the criminal information was filed, the Defendant Parisi, entered a Motion for Bill of Particulars, requesting the Plaintiff, Federated States of Micronesia (herein the "Government"), to set forth the specific acts for each count alleged to be violated in the criminal Information.

The motion argues that counts 1-5 in the Information are conclusory and do not identify how the Defendant Parisi "knowingly received" or "knowingly transferred" the child victim in this matter, or how the defendant "knowingly engaged in or participated in profits from the exploitation" of the victim. Def.’s Mot. for Bill of Particulars at 2-4.

The pending motion further claims that under counts 6 and 7, the allegations are conclusory and do not identify how Parisi "with the intent to promote or facilitate the commission of trafficking in children . .&#16aused the result of thof the offense of human trafficking." Id. at 4-5. Under count 8, the Defendant alleges that the cis conclusory and does not identify how Parisi "with the intent to promote or facilitate thte the commission of exploiting a trafficked person . . . caused the result of the offense of exploiting a trafficked person." Id. at 6.

The Defendant, in regards to count 9, states that the allegation is conclusory and does not identify how the Defendant was engaged in aggravated human trafficking, and further argues that counts 10 to 13 do not specify how Parisi committed overt acts and conspired with Defendant William Chuun to commit the alleged crimes. Id. at 7-9.

A hearing on the pending motions was held on February 15, 2018. Erick B. Divinigracia, Esq., appeared on behalf of Defendant Parisi, and Lorrie Johnson-Asher, Chief Public Defender, represented the Defendant Chuun. Jonathan D. Buckner, Assistant Attorney General, appeared on behalf of the Government. After consideration of the evidence presented during the hearing, and the filings on record, the court denies the Defendant’s pending motion. The reasons follow.

II. DISCUSSION

The Defendant’s motion is brought pursuant to FSM Criminal Rule 7(f). FSM Criminal Rule 7(f) states:

Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before the initial appearance or within ten days after the initial appearance or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.

The purpose of a bill of particulars "is to inform the defendant sufficiently about the charge so he can prepare his defense and can avoid surprise." Hartman v. FSM, 5 FSM R. 224, 232 (App. 1994).

A bill of particulars, like a motion for a more definite statement in civil cases, is typically requested when the defendant is unable to determine from the information what the charges are against him. FSM v. Kansou, 14 FSM R. 128, 131 (Chk. 2006).

"A bill of particulars is a formal written statement by the prosecutor providing details of the charges against the defendant. Its functions are to give the defendant notice of the essential facts supporting the crimes alleged in the indictment or information, and also to avoid prejudicial surprise to the defense at trial." 1 CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD, FEDERAL PRACTICE AND PROCEDURE § 130, at 656 (4th ed. 2008).

In the present matter, FSM Criminal Rule 7(a) requires a criminal Information to be a plain, concise and definite written statement of the essential facts constituting the offense charged.^[1] Based on a review of the criminal Information filed on February 14, 2017, the Court finds that the facts as provided for each count against Parisi are sufficient for the Defendant to know the charges against him.

Further, the court in FSM v. Phillip, 17 FSM R. 413, 426 (Pon. 2011) held, "To determine whether an information is deficient, the information and its supporting affidavit(s) must be read together." Id. (citing FSM v. Sato, 16 FSM R. 26, 29 (Chk. 2008)).

Here, in support of the Information, four (4) different affidavits of probable cause attested to by Officer Kasner Aldens, were submitted by the Government as part of the record.^[2] The affidavits provides detailed information, including dates, locations, and amounts of money exchanged. Also, both Defendants, Joseph Parisi and William Chuun, are specifically identified and named in the affidavits.

The facts as alleged in the affidavits, in addition to the charges as set forth in the Information, would give the Defendants sufficient knowledge of the charges against him, and the court finds that there will be no prejudicial surprise to the Defendants if the pending motion is denied.

Accordingly, in consideration of both the criminal Information and the affidavits of probable cause, the court will deny the Defendant’s motion. A bill of particulars is not a matter of right. It rests within the trial court’s sound discretion. FSM v. Sam, 14 FSM R. 398, 401 (Chk. 2006).

III. CONCLUSION

The Defendant Joseph Parisi’s Motion for Bill of Particulars is HEREBY DENIED.

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^[1] FSM Criminal Rule 7(a)(1):

In General. The information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The information shall state for each count the citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated.

^[2] Each affidavit is based on different locations were crimes were alleged to have occurred, namely, 7 Stars Inn, Rumors, at the back of JG Store on Kaikangdori Street, and Denpei, Sokehs.