FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Wainit
10 FSM Intrm. 618 (Chk. 2002)
 
[10 FSM Intrm. 618]
 
FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
TADASHI WAINIT,
Defendant.
 
CRIMINAL CASE NO. 2001-1519
 
ORDER
 
Martin G. Yinug
Associate Justice
 
Decided: April 29, 2002
 
APPEARANCES:
 
For the Plaintiff:                                 Catherine Leilani Wiehe, Esq.
                                                           Assistant Attorney General
                                                           FSM Department of Justice
                                                           P.O. Box PS-105
                                                           Palikir, Pohnpei FM 96941
 
For the Defendant:                          Stephen V. Finnen, Esq.
                                                          Law Offices of Saimon & Associates
                                                          P.O. Box 1450
                                                          Kolonia, Pohnpei FM 96942

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HEADNOTES

Criminal Law and Procedure ) Right to Confront Witnesses
     An accuseds right to confront the witnesses against him provides him with two types of protection: the right physically to face those who testify against him, and the right to conduct cross-examination. FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002).
 
Constitutional Law) Interpretation; Criminal Law and Procedure ) Right to Confront Witnesses
     Because the FSM Declaration of Rights was modeled after the U.S. Bill of Rights, the court may look to U.S. sources for guidance in interpreting similar Declaration of Rights provisions, such as the right to confrontation. FSM v. Wainit, 10 FSM Intrm. 618, 621 n.1 (Chk. 2002).
 
[10 FSM Intrm. 619]
 
Criminal Law and Procedure ) Right to Confront Witnesses
     The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the factfinder to weigh the demeanor of the witness, and it applies when the ability to confront witnesses is most important )when the trier-of-fact determines the ultimate issue of fact. FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002).
 
Criminal Law and Procedure ) Right to Confront Witnesses
     The right to confrontation does not apply before a criminal defendant is accused, and it is doubtful that the right applies even at a pretrial hearing. FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002).
 
Criminal Law and Procedure ) Right to Confront Witnesses; Criminal Law and Procedure ) Information
     The use of affidavits to support the filing of a criminal information does not violate a criminal defendants right to confrontation. The defendant will have the opportunity to confront the affiants if they are called as witnesses at trial by either the government or the defendant. FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002).
 
Criminal Law and Procedure )Standard of Proof
     Proof beyond a reasonable doubt is the constitutionally-mandated standard to sustain a criminal defendants conviction. FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002).
 
Criminal Law and Procedure ) Standard of Proof; Search and Seizure
     In order for a warrant or a criminal summons to issue, the affidavits, or affidavits and exhibits, attached to a criminal information should make a prima facie showing of probable cause, not proof beyond a reasonable doubt. FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002).
 
Search and Seizure ) Probable Cause
     Probable cause exists when there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002).
 
Evidence ) Hearsay; Search and Seizure ) Probable Cause
     The finding of probable cause may be based upon hearsay evidence in whole or in part. FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002).
 
Search and Seizure ) Probable Cause
     A probable cause determination must be made by the deliberate, impartial, judgment of a judicial officer. FSM v. Wainit, 10 FSM Intrm. 618, 622 (Chk. 2002).
 
Criminal Law and Procedure ) Preliminary Hearing
     The statute providing for preliminary hearings for criminal defendants, by its terms, does not apply to a defendant who was never arrested and who appeared before the court competent to try him. FSM v. Wainit, 10 FSM Intrm. 618, 622 (Chk. 2002).
 
Bail; Criminal Law and Procedure ) Preliminary Hearing
     Because a prosecutors assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, a preliminary hearing would be required if the defendant were to be detained pending trial or if significant restraints were to be placed on his liberty. FSM v. Wainit, 10 FSM Intrm. 618, 622 (Chk. 2002).
 
[10 FSM Intrm. 620]
 
Bail; Criminal Law and Procedure ) Preliminary Hearing
     The government is required to make a probable cause showing at a hearing before pretrial restraints on the defendants liberty can be granted. This is because a fair and reliable determination of probable cause is a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest. Affidavits can be used, if properly introduced, as evidence at that hearing to make the probable cause showing. FSM v. Wainit, 10 FSM Intrm. 618, 622 (Chk. 2002).
 
Bail; Criminal Law and Procedure ) Preliminary Hearing
     Because a probable cause determination is not a constitutional prerequisite to the charging decision, it is constitutionally required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial. FSM v. Wainit, 10 FSM Intrm. 618, 622 (Chk. 2002).
 
Criminal Law and Procedure ) Preliminary Hearing
     A preliminary hearing for the government to make a probable cause showing or for the defendant to challenge probable cause is not required either by the statute or by the Constitution when the defendant has not been arrested and has had no restraints placed on his liberty other than the condition that he appear for trial. FSM v. Wainit, 10 FSM Intrm. 618, 622-23 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery; Criminal Law and Procedure ) Preliminary Hearing
     A preliminary hearing is not a defendants discovery tool. The preliminary hearings purpose is to establish probable cause for detaining or requiring bail for an accused, not to create a discovery opportunity for the defendant (although some discovery may usually be a by-product of the hearing). The Criminal Procedure Rules provide other discovery methods for a defendants use. FSM v. Wainit, 10 FSM Intrm. 618, 623 (Chk. 2002).
 
Criminal Law and Procedure) Preliminary Hearing
     A preliminary hearing is not a mini-trial. FSM v. Wainit, 10 FSM Intrm. 618, 623 (Chk. 2002).

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COURTS OPINION

MARTIN G. YINUG, Associate Justice:

     This comes before the court on the defendants Motion to Suppress All Affidavits, filed March 4, 2002. The government filed its opposition April 8, 2002. A reply to the opposition was filed on April 12, 2002.

     On December 4, 2001, the government filed a Criminal Information alleging that the defendant, Tadashi Wainit, committed various criminal acts in relation to the national election held on March 6, 2001. Wainit denies all the criminal allegations in the information and contends that the allegations are an attempt by the government to criminalize free speech. The information is supported by four affidavits attached to it and filed with it. Wainit contends that these affidavits should be suppressed because they violate a criminal defendants right, under Article IV, section 6 of the Constitution, "to be confronted with the witnesses against him." Wainit further contends that the affidavits are insufficient to establish probable cause or proof beyond a reasonable doubt.

[10 FSM Intrm. 621]

I. Right of Confrontation

     An accuseds right to confront the witnesses against him provides him with two types of protection: "the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40, 53 (1987).1 "The right to confrontation is basically a trial right." Barber v. Page, 390 U.S. 719, 725, 88 S. Ct. 1318, 1322, 20 L. Ed. 2d 255, 260 (1968). "It includes both the opportunity to cross-examine and the occasion for the [factfinder] to weigh the demeanor of the witness." Id. It "applies when the ability to confront witnesses is most important )when the trier-of-fact determines the ultimate issue of fact." United States v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985).

     In this case, Wainit asks that the affidavits be stricken because he did not have the opportunity to confront the affiants not at trial, not at a preliminary hearing before trial, but before he was even accused. The right to confrontation does not apply at that point in time. It is doubtful that the right applies even at a pretrial hearing. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 119-20, 95 S. Ct. 854, 866, 43 L. Ed. 2d 54, 68-69 (1975); Andrus, 775 F.2d at 836; United States v. Harris, 458 F.2d 670, 677 (5th Cir. 1972); see also FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 589 (Pon. 1994) (probable cause hearing is an informal, non-adversarial proceeding). The use of the affidavits to support the filing of a criminal information does not violate a criminal defendants right to confrontation. Wainit will have the opportunity to confront the affiants if they are called as witnesses at trial by either the government or Wainit.

II. The Affidavits and Probable Cause

     Wainit also contends that the four affidavits appended to the criminal information should be suppressed because they are incompetent, unreliable, and based on hearsay, speculation, and innuendo. Wainit contends that, considering his free speech rights, the affidavits do not establish proof beyond a reasonable doubt that he took retaliatory actions for the affiants electoral acts.

     Proof beyond a reasonable doubt is the constitutionally-mandated standard to sustain a criminal defendants conviction. See, e.g., Ludwig v. FSM, 2 FSM Intrm. 27, 35 (App. 1985) (in any criminal case, the government is required, as a matter of due process, to prove all elements of the offense beyond a reasonable doubt); Alaphonso v. FSM, 1 FSM Intrm. 209, 217-23 (App. 1982) (as a matter of constitutional due process, proof beyond a reasonable doubt is a condition for criminal conviction in the FSM). However, in order for a warrant or, in this case, a criminal summons to issue, the affidavits, or affidavits and exhibits, attached to a criminal information should make a prima facie showing of probable cause, not proof beyond a reasonable doubt.

     Probable cause exists when there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. Zhong Yuan Yu No. 621, 6 FSM Intrm. at 588. Hearsay evidence may be used to establish probable cause. "The finding of probable cause may be based upon hearsay evidence in whole or in part." FSM Crim. R. 4(b). See also FSM Evid. R. 1101(d)(3); FSM v.

[10 FSM Intrm. 622]

Yue Yuan Yu No. 708 , 7 FSM Intrm. 300, 303 (Kos. 1995) (court may rely on hearsay evidence for the purpose of finding probable cause).

     Accordingly, the attached affidavits, although they contain hearsay information, appear sufficient to establish prima facie probable cause that offenses occurred and that Wainit committed those violations. Hearsay evidence is, as mentioned above, admissible for that purpose. The motion to suppress is therefore denied.

     A probable cause determination must be made by the deliberate, impartial, judgment of a judicial officer. Zhong Yuan Yu No. 621, 6 FSM Intrm. at 589. A prima facie determination of probable cause was initially made when Chief Justice Amaraich authorized the issuance of the summons in this case based on the governments filing of the information and supporting affidavits. After the initial appearance had been held, Wainit filed his motion to challenge probable cause at a preliminary hearing under 12 F.S.M.C. 505, which provides that:

     If it appears it will not be practicable to bring an arrested person promptly before a court as indicated in subsection (2) of section 217 of this chapter, and he has been released on bail or personal recognizance, he may apply to a judge of a district court, if one is available, otherwise to any official authorized to issue a warrant, and request a preliminary examination. Thereupon the judge or official shall set a time and place for preliminary examination, give the complainant and accused reasonable notice thereof, and proceed as outlined in sections 501 through 504 of this title.

Because the statute, by its terms, applied to arrested persons for whom it is not practicable to bring before a court as indicated in 12 F.S.M.C. 217(2), that is, before a court competent to try the arrested person, that motion was denied on the narrow ground that Wainits situation did not fall within that statutes provisions because he was not an arrested person and his only court appearance, an initial appearance and arraignment in response to a summons, was before the court competent to try him ) the FSM Supreme Court trial division sitting in Chuuk. Wainit was never under arrest, and after appearing at his initial appearance was put on his own recognizance with no restraint on his liberty.

     This statutes application to arrested persons conforms with the constitutional protections for the accused. Because a "prosecutors assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial," Pugh, 420 U.S. 103, 118-19, 95 S. Ct. 854, 865, 43 L. Ed. 2d 54, 68, a preliminary hearing would have been required if Wainit were to be detained pending trial or if significant restraints were to be placed on his liberty. Although the government, at Wainits initial appearance and arraignment, asked for cash bail and restraints on Wainits travel outside of Chuuk, the Chief Justice, presiding over that proceeding, denied that request.

      If he had not, the government would then have been required to make a probable cause showing at that hearing before the requested restraint could have been granted. This is because "a fair and reliable determination of probable cause [i]s a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest." Id. at 125, 95 S. Ct. at 868-69, 43 L. Ed. 2d at 71-72 (footnote omitted). The government could have used the affidavits in question, if properly introduced, as evidence at that hearing to make the probable cause showing. See FSM Crim. R. 4(b); FSM Evid. R. 1101(d)(3). But "[b]ecause the probable cause determination is not a constitutional prerequisite to the charging decision, it is [constitutionally] required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial." Pugh, 420 U.S. at 125 n.26, 95 S. Ct. at 869 n.26, 43 L. Ed. 2d at 72 n.26. Since Wainit had not been arrested and had no restraints placed on his liberty other than the condition that he appear for trial, a preliminary hearing for the government to make a probable cause showing or for Wainit to

[10 FSM Intrm. 623]

challenge probable cause was not required, either by the statute, 12 F.S.M.C. 505, or by the Constitution.

     Furthermore, a preliminary hearing is not a defendants discovery tool. The preliminary hearings purpose is to establish probable cause for detaining or requiring bail for an accused, not to create a discovery opportunity for the defendant (although some discovery may usually be a by-product of the hearing). Cf. Sciortino v. Zampano, 385 F.2d 132, 133 (2d Cir. 1967); Martinez v. State, 423 P.2d 700, 711-12 (Alaska 1967). The Criminal Procedure Rules provide other discovery methods for a defendants use. See FSM Crim. R. 7(f); 12(b)(4); 15; 16(a)(1); and 17(f). Also, a preliminary hearing is not a mini-trial. Miller v. District Court, 566 P.2d 1063, 1065 (Colo. 1977) (when preliminary hearing testimony conflicts, the court must draw inference in prosecutions favor because determination of facts is for trial).

III. Affidavits Use at Trial

     The four affidavits have not been offered for any purpose other than to establish prima facie probable cause. Certainly, if they were to be offered as evidence at trial, hearsay objections and right of confrontation issues would have to be resolved before they could be admitted. Therefore, if the government intends to introduce any of the affidavits as evidence at trial, it shall inform Wainit by May 3, 2002 which affidavits it intends to use and for what purpose. Wainit may then, if he is so advised, file and serve by May 9, 2002, a motion in limine to suppress their use at trial, and the government may file and serve its response by May 15, 2002.

IV. Conclusion

     The motion to suppress all affidavits is denied. However, the government shall inform the defendant if it intends to use any of the affidavits at trial, in which case the defendant may move to suppress them for that purpose.

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________________________________________

Footnotes:

1. Because the FSM Declaration of Rights was modeled after the U.S. Bill of Rights, the court may look to U.S. sources for guidance in interpreting similar Declaration of Rights provisions that have not been construed before. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000) (when a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, U.S. authority may be consulted to understand its meaning). The FSM right to confrontation is drawn from the U.S. Bill of Rights.

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