Wolphagen v FSM [2018] FMSC 42; 22 FSM R. 96 (App. 2018) (26 October 2018)

FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. P7-2017
Criminal Case No. 2016-536

DAVID WOLPHAGEN,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.
__________________________________________

OPINION

Argued: August 27, 2018
Decided: October 26, 2018

BEFORE:

Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian J. Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Chang B. William, Specially Assigned Justice, FSM Supreme Court**

*Chief Justice, State Court of Yap, Colonia, Yap
**Chief Justice, Kosrae State Court, Tofol, Kosrae

APPEARANCES:

For the Appellant: David C. Angyal, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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

* * * *

HEADNOTES

Appellate Review - Standard - Criminal Cases - Plain Error
Under the plain error doctrine, when a criminal defendant has failed to raise an issue in the trial court and preserve it for appeal, he has generally waived his right to object; but if a plain error that affects the defendant’s constitutional rights has occurred, the appellate court may notice that error on its own. Wolphagen v. FSM, 22 FSM R. 96, 101 (App. 2018).

Appellate Review - Standard - Criminal Cases - Plain Error
If an appellant’s assignment of error is indeed a plain error, the appellate court should not be precluded from considering it merely because the appellant directed it to the appellate court’s attention before the appellate court itself noticed it. Wolphagen v. FSM, 22 FSM R. 96, 101 (App. 2018).

Criminal Law and Procedure - Prosecutors
A prosecutor is held to a higher standard than defense counsel. A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. Wolphagen v. FSM, 22 FSM R. 96, 101 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
One prosecutorial duty is the constitutional obligation to provide criminal defendants with any and all exculpatory evidence they have regardless of whether the defendant has made a discovery request, and this is a continuing obligation that does not end at any deadline. Wolphagen v. FSM, 22 FSM R. 96, 101 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
Regardless of whether an accused has requested discovery, a prosecutor must disclose to the defense evidence that is favorable to the accused, either because it is exculpatory, or because it is impeaching. Wolphagen v. FSM, 22 FSM R. 96, 101 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
A prosecutor is obligated to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the pros-ecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. Wolphagen v. FSM, 22 FSM R. 96, 101 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
The prosecutor’s obligation to produce exculpatory or impeaching evidence involves three types of situations. Wolphagen v. FSM, 22 FSM R. 96, 102 (App. 2018).

Constitutional Law - Due Process; Constitutional Law - Interpretation
The FSM Constitution’s due process clause is derived from the U.S. Constitution and thus U.S. cases may be consulted for guidance in interpretation, emphasizing those cases in effect at the times of the FSM Constitution’s framing (1975) and the ratification (1978). Wolphagen v. FSM, 22 FSM R. 96, 102 n.1 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
A prosecutor has an obligation to produce exculpatory or impeaching evidence when the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury. Wolphagen v. FSM, 22 FSM R. 96, 102 (App. 2018).

Constitutional Law - Due Process; Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
Since the knowing use of perjured testimony is fundamentally unfair, such a conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the fact-finder’s judgment. Wolphagen v. FSM, 22 FSM R. 96, 102 (App. 2018).

Constitutional Law - Due Process; Criminal Law and Procedure - Prosecutors
The prosecution, as an entity, has a constitutional obligation not to deceive the fact-finder or to allow the fact-finder to be deceived by the prosecution’s witnesses; thus, the prosecution cannot let false testimony by any of its witnesses stand uncorrected. Wolphagen v. FSM, 22 FSM R. 96, 102 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
When there was a pretrial request for specific evidence, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable for the prosecution to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable. Wolphagen v. FSM, 22 FSM R. 96, 102 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
When there was a pretrial request for specific evidence or when there was no defense request at all or there was merely a generalized request for exculpatory material, the constitutional obligation is not measured by the prosecutor’s moral culpability or willfulness. If evidence highly probative of innocence is in the prosecutor’s file, the prosecutor is presumed to recognize its significance even if the prosecutor has actually overlooked it. Wolphagen v. FSM, 22 FSM R. 96, 102 (App. 2018).

Constitutional Law - Due Process; Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
If the evidence sought actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed the prosecution was suppressing a fact that would be vital to the defense. Wolphagen v. FSM, 22 FSM R. 96, 102-103 (App. 2018).

Constitutional Law - Due Process; Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
If the prosecution’s suppression of evidence results in constitutional error, it is because of the evidence’s character, not the prosecutor’s. Wolphagen v. FSM, 22 FSM R. 96, 103 (App. 2018).

Criminal Law and Procedure - Right to Compel Witnesses
The defendant in a criminal case has a right to compel attendance of witnesses on his behalf, and defendants can exercise this right through the use of subpoenas, which the clerk of the court will issue under the FSM Supreme Court’s seal and which will command each person to whom it is directed to attend and give testimony at the time and place specified therein, and the subpoena may also command the person to whom it is directed to produce the books, papers, documents, or other objects designated. Wolphagen v. FSM, 22 FSM R. 96, 103 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Right to Compel Witnesses
A primary limitation on a subpoena asking a witness to produce something is that it must be for "evidence," that is, information that will be admissible at trial. Such a subpoena may be challenged when the circumstances indicate that the defense’s use is directed at a purpose other than a "good faith" effort to obtain evidence, but where the subpoena seeks a specific document that clearly is relevant, courts invariably conclude that the subpoena is proper. Wolphagen v. FSM, 22 FSM R. 96, 103 (App. 2018).

Criminal Law and Procedure - Right to Compel Witnesses
The court clerk is even authorized to issue a subpoena, signed and with the seal of the FSM Supreme Court, but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served, so that once the defendant learned the identity of the person(s) with the evidence he sought, he could fill in a blank subpoena and have it served. Wolphagen v. FSM, 22 FSM R. 96, 104 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
A defendant may request that the prosecution produce for his inspection, and any needed copying, a document material to the preparation of his case. Wolphagen v. FSM, 22 FSM R. 96, 104 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Right to Compel Witnesses
A defendant may, at any time during the course of the proceedings, bring to the trial court’s attention that he believes that the prosecution had not complied with his discovery request and seek appropriate relief, which could be a court order to permit the discovery, or inspection of the documents, or the grant of a continuance, or such other order as the court deems just under the circumstances. Wolphagen v. FSM, 22 FSM R. 96, 104 (App. 2018).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
If the prosecution should find that it has exculpatory evidence, it must provide it, even though the defendant has already been convicted, because there is no deadline for the production of exculpatory evidence and the duty applies irrespective of the prosecution’s prior good faith or bad faith. Wolphagen v. FSM, 22 FSM R. 96, 104 (App. 2018).

* * * *

COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

David Wolphagen appeals his August 14, 2017 convictions for obstructing the administration of law and other governmental functions (11 F.S.M.C. 501) and for tampering with public records or information (11 F.S.M.C. 529(1) and 2(a)). We dismiss his appeal without prejudice to any future proceeding on a firmer factual basis. Our reasons follow.

I. BACKGROUND

The FSM national government employed David Wolphagen as an information technician in the Division of Immigration and Labor. He was the project manager on the machine readable passport ("MRP") system. That system printed the passports for FSM citizens. The personnel assigned to work on the MRP system needed usernames and passwords to access the system. Periodically, each password would expire and whoever had that password would be locked out of the MRP system. Wolphagen would then do a reset and unlock that person’s account and give out a new password.

Wolphagen’s government employment was terminated some time in 2016 for reasons not apparent in the record. As part of his termination, Wolphagen was required to surrender to the FSM Department of Justice all departmental equipment and anything else belonging to the Department. He returned the equipment he had in his possession, but he did not provide the Department with his MRP access codes. One by one, as their passwords expired, the passport personnel were locked out of the MRP system. Once they had all expired, the FSM was unable to access its sole passport machine to issue or renew passports for people who needed or wanted to travel. Wolphagen refused to provide the access codes when asked.

On December 21, 2016, the government filed an information charging Wolphagen with three violations of the FSM criminal code: (1) obstructing the administration of law and other governmental functions, 11 F.S.M.C. 501; (2) retaliation for past official action, 11 F.S.M.C. 518; and (3) tampering with public records or information, 11 F.S.M.C. 529.

On December 22, 2016, Wolphagen was brought to Palikir to where the MRP system’s server was located. He was asked or told to provide his username and password to unlock the system. The username and password he provided was entered but the system did not unlock. Wolphagen said they should contact the service provider, 3M Company, for more help. Sometime in January, 2017, the Division of Immigration and Labor was able to access the system and resumed issuing and renewing passports.

Wolphagen’s counsel, in pretrial discovery, asked the prosecution to provide all "material favorable to the defendant," including "any material or information which tends to negate the guilt of the defendant as to the offense[s] charged or would tend to reduce his punishment therefor." Later, Wolphagen’s counsel, in e-mails, asked specifically about the communications between the Department of Justice and 3M, the software provider. In particular, counsel sought information that Wolphagen had provided what had been a correct username and password, but that the system remained locked for some other reason. The prosecution never disclosed the contents of the communications between the government and 3M, although Wolphagen believed that the prosecution, in an e-mail from the Attorney General, had agreed to provide that.

The case was tried on June 28 and 29, 2017. The trial court found Wolphagen guilty on Counts 1 and 3, but acquitted him on Count 2. On August 14, 2017, he was sentenced to three years imprisonment, suspended except for 50 days, with various probation conditions for the rest of the three-year sentence. Wolphagen filed an appeal and a motion to stay that same day. On September 1, 2017, the trial court granted the stay of sentence.

II. ISSUE PRESENTED

Wolphagen contends that he was denied his constitutional right to due process and a fair trial because the prosecution failed to disclose potentially exculpatory evidence to the defense, in particular: 1) the government’s communications with 3M, and 2) the system manual for the machine readable passport computer system.

III. ANALYSIS

A. Parties’ Contentions

Wolphagen contends that we should vacate his conviction, order the evidence produced, and order a new trial because the prosecution did not provide him with discovery material that his counsel had asked for and which the prosecution was required to produce. Wolphagen asserts that it was apparent to the prosecution that the evidence he sought - the government’s communications with 3M and the system manual for the machine readable passport computer system - was material to his defense and potentially exculpatory.

The government objects to any consideration of Wolphagen’s arguments and contentions because this issue was neither raised in the trial court nor decided by the trial court, and the rule is that an appellate court will not consider issues that were not first raised in the trial court. Wolphagen concedes that the government correctly states the general rule, but asserts that we can consider the issue he raises and grant him the relief he seeks under the plain error doctrine, which is an exception to the general rule.

B. Plain Error Doctrine

Under the plain error doctrine, when a criminal defendant has failed to raise an issue in the trial court and preserve it for appeal, he has generally waived his right to object; but if a plain error that affects the defendant’s constitutional rights has occurred, an appellate court may notice that error on its own. E.g., Benjamin v. Kosrae, 19 FSM R. 201, 206-07 & n.2 (App. 2013) (right of allocution); Neth v. Kosrae, 14 FSM R. 228, 232-34 (App. 2006) (right to public trial at all stages); Nena v. Kosrae, 14 FSM R. 73, 77-81 (App. 2006) (rights to public trial and to effective assistance of counsel without client conflicts); Ting Hong Oceanic Enterprises v. FSM, 7 FSM R. 471, 477 (App. 1996) (right to be present at trial); Moses v. FSM, 5 FSM R. 156, 161 (App. 1991) (right to remain silent); In re Juvenile, 4 FSM R. 161, 164 (App. 1989) (right to be advised of rights before confessing); see also Kinere v. Kosrae, 14 FSM R. 375, 387 (App. 2006) (could notice trial judge’s involvement in plea negotiations as plain error).

If Wolphagen’s assignment of error is indeed a plain error, we should not be precluded from considering it merely because Wolphagen directed our attention to it before we noticed it ourselves. See Kinere, 14 FSM R. at 387 (issue raised by appellant was not forfeited, but "if it had been [the appellate court] could still consider it under the plain error doctrine").

The plain error that Wolphagen contends occurred was that the prosecution violated his constitutional right to due process by failing to disclose potentially exculpatory evidence. We will therefore consider whether the failure to provide Wolphagen the discovery matter he sought was indeed plain error, and, if so, what relief Wolphagen should be afforded.

C. Prosecutors’ Duties

First, we note that prosecutors have duties and obligations that defense counsel and civil litigators do not have.

[A] prosecutor is held to a higher standard than defense counsel. "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." A prosecutor must have no interest in the case’s outcome other than that justice be done since the government’s interest in a criminal case is not that it should win the case, but that justice be done.

FSM v. Kansou, 14 FSM R. 171, 174-75 (Chk. 2006) (quoting FSM MRPC R. 3.8 cmt.). One prosecutorial duty is their constitutional obligation to provide criminal defendants with any and all exculpatory evidence they have regardless of whether the defendant has made a discovery request, and this is a continuing obligation that does not end at any deadline. FSM v. Kool, 18 FSM R. 291, 293-94 (Chk. 2012). "[R]egardless of whether an accused has requested discovery, a prosecutor must disclose to the defense evidence that is favorable to the accused, ’either because it is exculpatory, or because it is impeaching.’" Id. at 294 (quoting Strickler v. Greene, [1999] USSC 53; 527 U.S. 263, 281-82[1999] USSC 53; , 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286, 302 (1999)). A prosecutor is obligated to

make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the pros-ecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

FSM MRPC R. 3.8(d). The trial court never relieved the prosecution in this case of that responsibility. No protective order was sought or issued. Nor is any reason apparent why there would have been one. The prosecution was thus obligated to provide Wolphagen evidence that was favorable to him, either because it was exculpatory, or because it was impeaching.

D. Potentially Exculpatory Evidence

1. Obligation to Produce Evidence

This obligation to produce exculpatory or impeaching evidence involves three types of situations. United States v. Agurs, [1976] USSC 137; 427 U.S. 97, 103[1976] USSC 137; , 96 S. Ct. 2392, 2397[1976] USSC 137; , 49 L. Ed. 2d 342, 349 (1976).^[1] The first situation is where "the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury." Id. (citing Mooney v. Holohan, [1935] USSC 22; 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791, 98 A.L.R. 406 (1935)). Since the "knowing use of perjured testimony is fundamentally unfair," such a conviction "must be set aside if there is any reasonable likelihood that the false testimony could have affected the [fact-finder’s] judgment." Agurs, 427 U.S. at 103, 96 S. Ct. at 2397, 49 L. Ed. 2d at 349-50.

The prosecution, as an entity, has a constitutional obligation not to deceive the fact-finder or to allow the fact-finder to be deceived by the prosecution’s witnesses; thus, the prosecution cannot let false testimony by any of its witnesses stand uncorrected. Giglio v. United States. [1972] USSC 41; 405 U.S. 150, 153[1972] USSC 41; , 92 S. Ct. 763, 766[1972] USSC 41; , 31 L. Ed. 2d 104, 108 (1972). Wolphagen does not claim that there was any uncorrected false or perjured testimony so that is not this situation.

The second situation is where there was "a pretrial request for specific evidence." Agurs, 427 U.S. at 104, 96 S. Ct. at 2398, 49 L. Ed. 2d at 350.

[I]f the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable [for the prosecution] to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.

Id. at 106, 96 S. Ct. at 2399, 49 L. Ed. 2d at 351.

And the third situation is when there was no defense request at all or there was merely a generalized request for exculpatory material. Id. at 107, 96 S. Ct. at 2399, 49 L. Ed. 2d at 351-52.

In the second and third situations, the constitutional obligation is not measured by the prosecutor’s moral culpability or willfulness. Id. at 110, 96 S. Ct. at 2400, 49 L. Ed. 2d at 353. If evidence highly probative of innocence is in the prosecutor’s file, the prosecutor is presumed to recognize its significance even if the prosecutor has actually overlooked it. Id. "Conversely, if evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed [the prosecution] was suppressing a fact that would be vital to the defense." Id. at 110, 96 S. Ct. at 2401, 49 L. Ed. 2d at 353. "If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor." Id.

2. Wolphagen’s Situation

At oral argument, Wolphagen stated that he had not made a specific request, but had made only a general request for all material favorable him, including any exculpatory evidence. Nonetheless, Wolphagen directs our attention to various e-mails his counsel sent the prosecution asking it to consult 3M, the service provider, and the systems manual to see if he had been truthful when he provided his username and password on December 22, 2016.

There is nothing before us to indicate that the FSM Department of Justice ever actually asked 3M whether what Wolphagen had provided was a correct access code or if it ever received an answer.^[2] Even if there had been such a query, we cannot conclude that a favorable response would negate Wolphagen’s guilt for his refusals to provide the access code before December 22, 2016. If one exists, a favorable response would, however, be exculpatory in that it would tend to mitigate the offense - potentially lessen the sentence’s severity - in which case, only the sentencing phase (but not the guilty finding) of the trial court proceeding would be vacated, and a re-sentencing ordered.

We are also unsure of the significance of the systems manual. Presumably, the implication is either that it shows that the access code that Wolphagen supplied was a possible access code or that it shows that the system could be accessed in some manner without Wolphagen’s access code. Wolphagen implies that the manual is in the Department of Justice’s possession as that is the department that the passport office answered to.

We are puzzled by Wolphagen’s apparent inability to obtain the production of the evidence he sought. "The defendant in a criminal case has a right . . . to compel attendance of witnesses in his behalf." FSM Const. art. IV, § 6. Defendann exercise this this right through the use of subpoenas. "A subpoena shall be isby thrk of the court under the seal of the FSM Supremepreme Cour Court . .&#160d shall command each each person to whom it is directed to attend and give testimony at the time and place specified therein." FSM Crim. R. 17(a). "A subpoena may also command the person to it is directed to produce tuce the books, papers, documents or other objects designated." FSM Crim. R. 17(c). "A primary limitation on a subpoena [of this type] is that it must be for ’evidence,’ that is, information that will be admissible at trial." 6 WAYNE R. LAFAVE, JEROLD ISRAEL, NANCY KING & ORIN S. KERR, CRIMINAL PROCEDURE § 24.3(f), at 390 (3d ed. 20 7). Such a subpoena may "be challenged where the circumstances indicate that the defense’s use is directed at a purpose than a ’good faith’ effort to obtain evidence," but "[w]here the subpoena seek seeks a specific document that clearly is relevant, courts invariably conclude that the subpoena is proper." Id. at 391.

Wolphagen is fairly specific about the two documents he considers potentially exculpatory. A Department of Justice query to 3M about Wolphagen’s access codes and 3M’s response certainly would be relevant, if it ever occurred. The MRP systems manual, at least the portions of it related to accessing the system, would also be relevant. Once Wolphagen learned the identity of whoever communicated with 3M and whoever was the custodian of the MRP systems manual, Wolphagen could have subpoenaed those person(s) requiring them to produce the documents sought.
The court clerk is even authorized to "issue a subpoena, signed and with the seal of the FSM Supreme Court, but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served," FSM Crim. R. 17(a), so that once Wolphagen learned the identity of the person(s) communicating with 3M, he could fill in a blank subpoena and have it served. Wolphagen could also have done that for the custodian of the MRP systems manual.

We are also puzzled by Wolphagen’s failure to make further use of Criminal Procedure Rule 16, which governs discovery. He did make a Rule 16(a)(1)(F) request for material favorable to the defendant. He could have also made a Rule 16(a)(1)(C) request that the prosecution produce for his inspection, and any needed copying, the MRP systems manual as a document material to the preparation of his case, but he did not. And, most puzzling of all, Wolphagen never tried to make use of Criminal Procedure Rule 16(d)(2). Under that rule, he could have, at "any time during the course of the proceedings," brought to the trial court’s attention that he believed that the prosecution had not complied with his discovery request and sought appropriate relief. FSM Crim. R. 16(d)(2). Such relief could have been a court order "to permit the discovery or inspection" of the MRP systems manual and communications with 3M or to "grant a continuance" or to "enter such other order as [the court] deem[ed] just under the circumstances." Id.

We understand that Wolphagen’s current position is that, because of the exculpatory nature of the material he sought, it was not necessary that he ask for it. Nevertheless, a motion made under Rule 16(d)(2) would have brought to the trial court’s attention Wolphagen’s prior discovery request and his belief that the prosecution was withholding evidence favorable to him, which he had requested, but which the prosecution had not produced.

3. Disposition of this Appeal

Accordingly, we dismiss this appeal. However, this dismissal is without prejudice to any future action Wolphagen may take concerning any potentially exculpatory evidence. We note that if the prosecution should now find that it has exculpatory evidence, it must provide it, even though Wolphagen has already been convicted, because there is no deadline for the production of exculpatory evidence and the duty applies irrespective of the prosecution’s prior good faith or bad faith. See Kool, 18 FSM R. at 294 (duty to provide exculpatory evidence "is a continuing obligation which does not cease at any deadline"); see also Monroe v. Butler, 690 F. Supp. 521, 525 (E.D. La. 1988) ("nondisclosure is as unfair where it prevents a defendant from taking full advantage of post-conviction relief as it is when it results in the forfeiture of the defendant’s right to a fair trial").

IV. CONCLUSION

Accordingly, we dismiss this appeal without prejudice. The government asks that we not only dismiss the appeal but that we also instruct the trial court to lift its stay so that Wolphagen can begin serving his sentence. Not knowing what Wolphagen might put before the trial court, we decline to instruct the trial court on how to proceed from here.

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^[1] The FSM Constitution’s due process clause is derived from the U.S. Constitution and thus U.S. cases may be consulted for guidance in interpretation, emphasizing those cases in effect at the times of the FSM Constitution’s framing (1975) and the ratification (1978). FSM v. Skico, Ltd. (II), 7 FSM R. 555, 556-57 (Chk. 1996); Aisek v. Foreign Inv. Bd., 2 FSM R. 95, 98 (Pon. 1985); Lonno v. Trust Territory (I), 1 FSM R. 53, 69-70 (Kos. 1982).

^[2] Wolphagen has not directed our attention to any authority that could lead us to conclude that the prosecution had a constitutional obligation to obtain potentially exculpatory evidence for him from a third party over which it had no control.