Counsel for Appellant ........... Johnson Toribiong, Esq.
Counsel for Appellee Timothy P. Zintak
Appeal from the Trial Division, the Honorable Kathleen Salii, Associate Justice, presiding.
[ 5] Evidence is rev in the the light most favorable to the prosecution. Etpison v. ROP, 2017 Palau 32 [ 2]; ROP v. Chisato, 2 ntrm. 227, 240 (1991). Uchau was Governor of Peleliu State in 2010. In July of that year, Uar, Uchau directed the State Treasurer,
Ms. Rebecca Ngiruos, to issue a check in his name for $9,600 from the Peleliu State General Account based upon his representation
to her that his store, "6 K's Pool & Retail Store", was providing catering services to a state summer camp program. Uchau never
produced an invoice or other supporting documentation relating to the costs his store had allegedly incurred.
[ 6] In December 2010, Uchau again directed the State Treasurer to issue a check in his name from the Peleliu State General Account,
this time in the amount of $1,196.75. This money was meant to reimburse Uchau for catering services provided by his store during
a “Bone Collection Handover Ceremony” held by the Peleliu Government in November 2010. This check was signed by Uchau,
and was supported by an invoice for catering services from “6 K’s Pool & Retail Store.”
[ 7] These two checks came to the attention of the Office of the Public Auditor during an audit of Peleliu State in 2014. The Office
of the Public Auditor gave this information to the Attorney General, who turned this matter over to the OSP. After conducting its
own investigation, the OSP charged Uchau with two counts of criminal violations of the Code of Ethics, namely 33 PNC §§
604(a) and (d).
[ 8] For the most part, Uchd did not dispute the evidence presented by the Special Prosecutor at trial. Instead, Uchau argued that
any violations of the Code of Ethics were de minimis (an argument he does not prere), and stressed that thet there was no evidence that Uchau, acting through his business, had defrauded,
cheated, overbilled, or otherwise failed to render adequate catering services to Peleliu State in relation to the summer camp or
the bone collection ceremony.
[ 9] After t the Court found ound Uchau guilty on two counts (one for each of the checks in question) of criminal violations of
the Code of Ethics, and imposed the aforementioned sentence. This appeal followed.
STANDARD OF REVIEW
[ 10] A lower court&#s concluonclusions of law are reviewed de novo. ROP v. Terekiu Clan, 21 ROP 21, 23 (2014). Findings of fact are red for clear error. Imeong v. Yobech, 17 ROP 210, 215 (2010). Under the clear error sror standard, the trial court will be reversed only if no reasonable trier of fact
could have reached the same conclusion based on the evidence in the record. Id.
DISCUSSION
[ 11]u raises four arguments ents for why his conviction should be overturned, and provides additional objections regarding his
sentence.
I. Ineffective Assistance of Counsel
[ 12]u submits that he receiveceived ineffective assistance of counsel because his public defender allegedly never informed him
of his right to testify on his own behalf, nor advised him about the egic implications of testifestifying versus not testifying at
trial. Uchau argues that this failure was especially egregious in his case because the critical issue for the prosecution to prove
was the necessary intent on Uchau’s part, as the underlying conduct of issuing checks in his name was largely undisputed. For
this reason, Uchau claims that his testimony “was so crucial to any viable defense that counsel was plainly deficient for failing
to call him as a witness.”
[ 13] . ROP, 8 ROP Intrm. 90 (1999), established the guidelines for bringing ineffective-assistance-of-counsel s. “Because many ineffective-assistance-
of -counsel claims rely on facts outside thee the trial record, it’s often difficult to review such claims on direct appeal,
as an appellate court lacks a mechanism for developing a factual record regarding counsel’s decisions and actions.” Id. at 91. Therefore, such claims may be raised on direct appeal “only when the record is sufficiently developed to permit meaningful appellate review of the claims.” Id. at 92 (emphasis added).
[ 14] In Saunders, the appellant claimed that because mens rea was the critical issue at trial, his own testimony was so essential to any viable defense that counsel was plainly deficient for
failing to call hia witness. Id. at 92at 92-93. The Court disagreed, explaining that an ineffective-assistance-of-counsel claim cannot arise solely from the fact
that the defendant did not testify at trial. Instead, such a determination requires an analysis of whether defense counsel competently
fulfilled his duty “to advise defendant of his right to testify or not to testify, the strategic implications of each choice,
and that it is ultimately for the defendant himself to decide.” Id. (quoting from United States v. Teague, [1992] USCA11 236; 953 F.2d 1525, 1533 (11th Cir. 1992)). Because there was no extrinsic evidence regarding defense counsel’s communications with the defendant
or the content of defendant’s possible testimony, the record was not “sufficiently developed to permit meaningful review
of [the appellant’s] claim.” Id. Therefore, the appellant’s claim was not cognizable on direct appeal.
[ 15] Uchau’s argument is identical to the one that failed in Saunders. He presents no evidence to support his ineffective-assistance-of-counsel claim, other than pointing to tct that he did not testify
on his own behalf at trial and cand claiming (through written argument of his current attorney) that his public defender neither
told him that he had the right to testify in his own defense nor explained the trial strategy behind testifying or not testifying.
Therefore, Uchau’s claim fails to meet the “sufficiently developed” standard required by Saunders for such a claim to be cognizable on direct appeal.
II. Malicious Prosecution or Abuse of Process
[ 16]u's next argument is thas that the charges against him constitute malicious prosecution or an abuse of process. Uchau points
to his advanced age and the fact that the prosecution commenced thrars after he left office, ace, although he provides no further
details or explanation to substantiate his claim.
[ 17] is not the appropriate iate venue in which to raise such a claim. There are no Palauan statutes or case law regarding the
commo torts of malicious prosecution or abuse of process, but the important point to note is thas that these are civil torts, not
defenses to a criminal prosecution.
The difference between the two often is explained as a matter of timing and scope: malicious prosecution is the appropriate cause
of action for challenging the whole of a lawsuit − i.e., asserting that the suit has no basis and should not have been brought
− while abuse of process covers the allegedly improper use of individual legal procedures after a suit has been filed properly.
Simon v. Navon[1995] USCA1 591; , 71 F. 3d 9, 15 (1st Cir. 1995) (emphasis in original).
[ 18]bly, "[o]ne element that that must be alleged and proved in a malicious prosecution action is termination of the prior criminal
proceeding in favor of the accused." Heck v. Humphrey, 51. 477, 484 (1994).
[ [ 19] Regarding abuse of process, "the gravamen of that tort is not the wrongfulness of the prosecution, but some extortionate
perversion of lawfully initiated process to illegitimate ends." (citations omitted). Id.87 n.6
[ 20]0;20] Uchargument is fris frivolous.
III. Right to Examine All Witnesses and Evidence
[ 21]au argues that his rightright under Article IV § 7 of the ROP Constitution (which provides, inter alia, that an accused “shall be permitted full opportunity to examine all wies”) was violated whed when the prosecution refused
to give defense counsel an opportunity to examine notes taken by OSP Investigator Dolynn Tell which she may have reviewed before
testifying at trial. The prosecution initially objected to sharing these notes, arguing that they constituted the work product of
the OSP. Furthermore, the prosecution argued that Investigator Tell had later memorialized all the information contained in the notes
by creating the Affidavit of Probable Cause filed in this case.
[ 22] Whether or nose notes ctes constituted work product of the OSP is at this point irrelevant. The record clearly shows that,
despite its objections, the prosecution shared the notes in question with defense counsel.
THE COURT: Thank you. And that is, and so the Republic’s position and arguments [that these notes were outside the disclosure
requirements because they constituted work product] is preserved on the record. And the requested notes have been provided to Defense Counsel who has had a chance to review them. Any other preliminary matters?
MR. HANLEY (defense counsel): No, Your Honor.
THE COURT: Continue with cross examination.
MR. HANLEY: Thank you.
Tr. 96: 19-27 (emphasis added).
[ 23]bjection was made to thio this resolution of the issue at trial. Therefore, this issue is reviewed pursuant to the "plain error"
rule. ROP R. Crim. P. 52(b). Because Defendant's counsel was prd with the requested notes otes at a time when they were still of
use to the defense, the Defendant's substantial rights were not affected.
IV. Sufficiency of the Evidence
[ 24]u submits that the TrialTrial Court erred in finding that the prosecution had proven each element (including the intent element)
of the offenses beyond a reasonable doubt. He cites to 17 PNC § 2301—“Misconduct in Public Office”—and
argues that this offense requires willful neglect of an employee’s duties. Uchau points out that the prosecution provided no
evidence establishing Uchau’s intent to defraud the Palau or Peleliu governments, nor any evidence that Uchau willfully neglected
his duties as governor, both of which Uchau claims is a necessary element to proving guilt.
[ 25] As aiminary matter, Uch, Uchau was not convicted of “Misconduct in Public Office.”[2] He was convicted of violating §§ 604(a) and (d) (the conflict of interest provisions) of the Code of Ethics. Section 611(a)
provides criminal penalties for anyone who “knowingly or willfully” violates any provision of the Code of Ethics. This
phrase in a criminal statute generally means “no more than that the person charged with the duty knows what he is doing,”
not that “he must suppose that he is breaking the law.” An Guiling v. ROP, 11 ROP 132, 137-138 (2004) (internal quotations and citations omitted). Furthermore, Black’s Law Dictionary defines “willful”
to mean “voluntary and intentional, but not necessarily malicious.” Black’s Law Dictionary 1834 (10th ed. 2009). Therefore, it is immaterial whether the prosecution proved intent to defraud or willful neglect of duties,
as neither of these are elements of the offense.
[ 26] Turni the substance of e of Uchau’s insufficiency of evidence claim, an appellate court’s review of the evidence
to support a conviction is limited, and claims are evaluated under the “clear error” st1; standard. See, e.g., Alik v. ROP, 18 ROP 93, 100 (2001); Aichi v. ROP, 14 ROP 68, 69 (2007); Uehara v. ROP, 17 ROP 167, 181 (2010). Essentially, the question to ask is “whether, viewing the evidence in the light most favorable to
the prosecution, and giving due deference to the trial court’s opportunity to hear the witnesses and observe their demeanor,
any reasonable trier of fact could have found the essential elements of the crime were established beyond a reasonable doubt.”
Alik, 18 ROP at 100 (quoting Aichi, 14 ROP at 69). Because it is the trial court’s function as the trier of fact to “determine the factual content of ambiguous
testimony” (Labarda v. ROP, 11 ROP 43, 46 (2004)), an appellate court must uphold a conviction even if that court would have decided the case differently in
the first instance. Alik, 18 ROP at 100.
[ 27] Focusing specificallyhen the intent requirement, mere assertions by a convicted defendant that the prosecution failed to provide
adequate evidence to the required intent, with no further substantiation, “fail[s] to show that the trialtrial court’s
findings so lack evidentiary support in the record that no reasonable trier-of-fact could have reached the same conclusion.”
Pamintuan v. ROP, 16 ROP 32, 55 (2008). In a prior case involving a prosecution brought by the OSP for alleged violations of the Code of Ethics, Remengesau v. ROP, 18 ROP 113 (2011), the defendant contended that the prosecution had failed to introduce evidence sufficient to establish each element
of the offense beyond a reasonable doubt. He had been convicted of violations of the Code of Ethics for incomplete financial disclosure
statements required by 33 PNC § 605(c)(5) for failure to disclose information regarding the transfer of five pieces of land
into his possession. The Appellate Division viewed his appeal as “essentially simply disagreeing with the [trial] court’s
evaluation of the evidence, which is far from reversible error.” Id. at 119. As to the trial court’s finding that the prosecution had proven the intent requirement beyond a reasonable doubt,
the Court held that this was not clear error because the trial court’s decision was based on the bills of sale and deeds of
transfer for the property in question, the defendant’s signature on the disclosure forms, and the testimony of three witnesses.
Id.
[ 28] In the instant case evie evidence upon which the trial court based its decision is more than enough to survive the clear error
standard. The prosecution’s evidence consisted primarily of testimony from fotnesses, documentation rega regarding the two
checks at issue (including supporting documents such as accounts payable vouchers and bank statements), and the business license
for “6 K’s Pool & Retail Store” listing Uchau as the sole owner. Importantly, the two checks (one of which
was personally signed by Uchau) were both drawn from the Peleliu State Government General Account, made payable to Uchau, and mentioned
in the description that they were payment to Uchau for catering services. The most crucial evidence for the prosecution was the testimony
of State Treasurer Ngiruos, who testified that Uchau specifically directed her to issue the two relevant checks in his name so that
he could deposit them, and told her that he would later use the money to buy or prepare food and drinks. Ngiruos further testified
that she only issued these checks (despite the improper documentation and procedure) because Uchau (whom she described as her “superior”)
directed her to do so. As further evidence of his intent, the prosecution pointed to Uchau’s initial attempts to avoid blame
by claiming that his daughters actually owned “6 K’s Pool & Retail Store,” and Uchau’s long tenure as
a public servant (both as Governor and a member of the Peleliu State Legislature), which meant he was charged with knowledge of the
Code of Ethics provisions. When considered cumulatively, this evidence is more than sufficient to uphold Uchau’s conviction.
[ 29] The TCourt’s deci decision in ROP v. Gibbons, 10 ROP 209 (Tr. Div. 2003), is a particularly useful reference when determ what constitutes sufficient evidence for establishing
a criminal violation of 33 PNC §§ 604. In this case, the then-Governor of Koror State was found guilty of violating section
604 by attempting to sublease land to a corporation for a proposed scrap metal salvage operation. The court parsed section 604 into
the following five elements: (1) defendant was an employee (2) who used his government position (3) to take, participate in taking,
or attempt to influence any official action (4) in circumstances where it was reasonably foreseeable that the actions could have
a material financial effect on him (5) that was different from the effect on the public generally. Id. at 211.
[ 30] Using this framewor is t is clear that the Trial Court did not err in finding that the prosecution had proven every element
of the offense beyond a reasonable doubt. Uchau was unqonably an employee. As the Governor, he had the authority tity to disburse
state funds, which he did so by instructing the State Treasurer to issue checks in his name from the State’s General Account.[3] Because this money went directly to Uchau, it was more than merely “reasonably foreseeable” that his direction to issue
the checks in his name would benefit him financially, while having no material effect on the general public.
[ 31] Bottrial and on appeal,peal, Uchau has repeatedly tried to minimize the seriousness of his criminal offenses, characterizing
them aply “minor infractions” or “technical violations.” Although his tras transgressions may seem slight
to him, the Republic has a strong interest in rigorously enforcing the conflict of interest provisions in the Code of Ethics, even
in cases where there is no proof of fraud or undisclosed assets. In Gibbons, the Trial Court provided a compelling justification for such vigorous enforcement, which merits repeating here:
The question in this case is not whether the proposed scrap metal project was in the public interest, nor even whether the defendant
genuinely believed it was. It is entirely possible that a government official’s sincere view of the public interest may coincide
with his private interest. But the Code of Ethics Act was enacted to “ensure that government officials perform their duties
. . . free from bias caused by their own financial interests,” and “embodies a recognition of the fact that an impairment
of impartial judgment can occur in even the most well-meaning men when their personal economic interests are affected by the business
they transact on behalf of the Government.” Conflict of interest statutes, like the provisions of the Ethics Act at issue here,
“are aimed at eliminating temptation, avoiding the appearance of impropriety and assuring the government of the officer’s
undivided and uncompromised allegiance.” By repeatedly using his public position to advance a project in which he had a private
financial interest, defendant violated the Act.
Gibbons, 10 ROP at 213 (citations omitted).
[ 32]u’s final argumentument regarding the sufficiency of evidence relates to the exception included in 33 PNC § 604(a),
which states that “An employee who is unable to disqualify lf on any matter because hese he is the only person authorized by
law to perform the official action will not be in violation of this subsection if he has complied with the disclosure requirements
in section 605.” Uchau argues that, because it was undisputed that he had disclosed his ownership of “6 K’s Pool
& Retail Store,” this exception should apply. However, Uchau would have only been able to take advantage of this exception
if he had shown that he was “unable to disqualify himself [from selecting catering services and authorizing the disbursement
of state funds for such services] because he was the only person authorized by law to perform the official action.” Uchau failed
to produce any evidence that he was the only person authorized by law to select the catering services for the summer camp and bone
collection ceremony. Furthermore, the only evidence introduced at trial on this point suggests that there were at least two other
establishments on Peleliu that could have provided the required catering services. Therefore, Uchau cannot credibly argue that the
Trial Court committed clear error by finding that the exception contained in § 604(a) did not apply.
V. Fines Imposed by Trial Court as Part of Sentence
[ 33]u does not challenge thee the Trial Court’s imposition of one-year supervised probation for each count. However, he appeals
the other two components of his sentence—the $10,800 in fines, and the $1,525 OSP OSP fee.
A. $10,800 in Total Fines
[ 34]u argues that the Appellppellate Division should lower the $10,800 in total fines ($9,600 for Count One and $1,200 for Count
Two) imposed by the Trial Division as part of his sentence because amount is excessive in rela relation to the seriousness of his
offense. Title 17 PNC § 652 authorizes the imposition of fines as part of the sentence, and this section also provides the factors
that the sentencing judge must consider when imposing a fine. Here, Uchau does not argue that the Trial Court failed to comply with
section 652, or improperly weighed the relevant factors. [4] Therefore, there is no basis to reverse the Trial Court’s determination, particularly since these fines merely require him
to return the amount taken in violation of the statute.
[ 35] There both fines are upre upheld.
B. Fee of $1,525 Payable to the OSP
[ 36]entencing the OSP recommecommended that the court sentence Uchau to pay fees to the OSP associated with costs it incurred during
the prosecution. Specifically, the OSP requested that Appellanta $1,525 fee to reimburse trse the OSP for subpoena production charges
from Bank of Hawaii that the OSP had to pay in order to access Appellant’s bank records.
[ 37] In its senng order, the, the Trial Court stated “The Court also sentences defendant to pay fees to the Office of the
Special Prosecutor in the amount of $1,525, as authorized by 17 PNC § 617(8221; However, this sectionction merely lays out the
order in which a defendant’s payments should be made (“When a defendant is ordered to make monetary payments as part
of his or her sentence, payments by the defendant shall be made in the following order of priority: (1) Restitution; (2) Fines; (3)
Other fees”). It does not provide an independent basis for awarding fees to the government upon obtaining a conviction at trial.
[ 38] In the Republi17;s sens sentencing recommendation, the OSP justified its request for fees by pointing out that several sections
in 17 PNC Chapter 6 refer to defendants who coe ordered to pay fees or costs. For example, 17 PNC § 167; 617(f), § 640,
and §§ 655(a)-(f) all refer to criminal defendants who have been ordered to pay “fees” and/or “costs.”
According to the OSP, the logical inference from the repeated appearance of the terms “fees” and “costs”
is that a trial court has the authority to award a fee to the government as part of a convicted defendant’s sentence.
[ 39] Although fees are clecrly contemplated as a possible component in Title 17's sentencing process, currently the only fee expressly
established by stats a "probation service fee." 17 PNC § 659.
[ 40] and costs are expe expe expected to be established by statute, rather than as a matter of discretion by the sentencing court.
"Fees" are generally those amounts paid to a publiccial, such as a clerk of thof the court, by a party for particular charges typically
delineated by statute; in contrast, "costs" are those items of expense incurred in litigation that a prevailing party is allowed
by the rule to tax against the losing party.
U.S. v. Idaho ex rel. Dir., Idaho Dept. of Water Res., [1993] USSC 53; 508 U.S. 1, 8 (1993).
[ 41] e.g., 17 PNC § 635; 635(c); "The Court may require the defendant to contribute to the cost of conducting urinalysis or
similar other testing procedure and cost of substance abuse treatmebr> [ 42] Reimbueimbursemepenses nses of the prosecution, such
as billings from a bank for document retrieval, are neither a "fee" nor a "cost" authorized by statute.
[ 43] Thee, the portion of thof the Trial Court’s sentence which ordered Uchau to pay "fees" to the OSP in the amount of $1,525
is reversed.
CONCLUSION
[ 44] For theons stated hereiherein, we AFFIRM Defendant's conviction. We AFFIRM the sentence of one year supervised probation for each Count (to run concurrenand the sentence of $10,800 in total fines ($9,600
for Coun Count One and $1,200 for Count Two). However, we REVERSE the sentence of a $1,525 fee to the Office of the Special Prosecutor.
SO ORDERED, this 30th day of October, 2017.
[1] Although the Appellant has requested oral argument, we determine pursuant to ROP R. App. P. 34(a) that oral argument is unnecessary
to resolve this matter.
[2] In fact, the section that Uchau cites, 17 PNC § 2301, was expressly repealed in April 2013 by RPPL 9-21 § 3 as part of
the “Penal Code of the Republic of Palau Act” (undertaken by the Palau Legislature to update Title 17 of the PNC along
the lines of the Model Penal Code). The current text of Misconduct in Public Office is located at 17 PNC § 3918.
[3] This action clearly constitutes an “official action” because 33 PNC § 601(k) defines “official act”
to mean “a decision, recommendation, approval, disapproval, or other action . . . which involves the use of discretionary authority.”
[4] Our review is also greatly limited by Appellant’s failure to include a transcript of the sentencing hearing.
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