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MARTIN G. YINUG, Associate Justice:
On December 12, 2003, defendant Tadashi Wainit filed his Motion to Reconsider Motion to Disqualify the FSM Department of Justice, and on January 15, 2004, he filed a supplement to this motion. On February 23, 2004, the court received by facsimile transmission from the government, a motion to file by facsimile and a reply to the motion to reconsider. The government faxed a Notice of Errata the next day. On March 5, 2004, Wainit filed (transmitted by facsimile on March 2) a Motion to File by Facsimile and a Motion to Strike Filing by FSM, a Motion to Dismiss, and Reply in Support of the Motion to Reconsider. On March 19, 2004, the government filed its opposition to the motions to strike and to dismiss.
I. Motion to Strike
Wainitís motion to strike asks the court to strike the governmentís reply (faxed and served on February 23, 2004) to his motion to reconsider as untimely filed and because the government did not ask for an enlargement of time within which to file its response. Wainitís motion presupposes that the court either has or will grant the governmentís motion to file by fax, or that the papers were filed as a matter of course after the clerk received the originals.
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No originals have been received and filed. Since it usually takes two days for mail sent from Kolonia, Pohnpei to arrive at the courthouse in Chuuk and may take a day or two longer for items mailed from the Palikir post office1 (once someone actually takes them to the post office), the likelihood exists that the originals were never mailed. There is thus no government filing to strike unless the court first grants the motion to file by fax.
In considering whether to authorize fax filing, the general court order rejected indiscriminate filing by fax because it "concluded that an effort to accommodate counsel by accepting filing through the use of fax would impose an undue burden upon the clerks and could also result in additional paperwork, expense, duplication efforts, and confusion." FSM GCO 1990-1. Therefore, filing by fax is permitted only by order of a justice "given for special cause." Id. ß 2. Even when special cause has been given and fax filing permitted, it has been the general practice (in order not to unduly burden the clerks) to require that an original and a copy be promptly) on the same day ) mailed (or sent by courier) to the court. See, e.g., OíSullivan v. Panuelo, 9 FSM Intrm. 229, 232 (Pon. 1999). Furthermore, the general court order authorizing fax filing for special cause is not an excuse to wait for the filing deadline and then fax the papers to the court because waiting to the last minute so that it can then be faxed does not constitute "special cause." In re Engichy, 11 FSM Intrm. 450, 451 (Chk. 2003). The general court order rejected such indiscriminate fax filing. But even absent special cause and an order allowing fax filing, prior transmission by fax can be helpful as it serves to apprise the court that the documents are in transit and should arrive shortly, and allows the court to consider their contents and be prepared to act once the papers actually arrive and are filed.
The only reason the government gave for asking to file by fax was that "filing by mail may further delay timely receipt of the documents by the Court." By rule, timely receipt by the court would have been ten days from date of service of the papers the government was responding to, if served personally, FSM Crim. R. 45(d), and sixteen days if served by mail, FSM Crim. R. 45(e). That would have been December 18, 2004 to respond to the motion to reconsider (hand delivered on December 8, 2003) or January 26, 2004 (the 25th was a Sunday) for the supplement (personal service on January 15, 2004). No reason was given why a response, or even a request for an enlargement of time, was not timely received.
Since special cause was not given, the February 23rd request to file by fax is denied. That leaves Wainitís motion to reconsider unopposed. When no opposition has been filed, it is generally deemed a consent to the motion, FSM Crim. R. 45(d), but even without an opposition, a court still needs good grounds before it can grant the motion, cf. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).
II. Reconsideration of Motion to Disqualify
Wainitís motion to reconsider asks the court to reconsider its denial of his motion to disqualify the entire FSM Department of Justice, FSM v. Wainit, 12 FSM Intrm. 172, 179-80 (Chk. 2003). The ground for the motion is that Assistant Attorney General Robert M. Weinberg, who had been assigned this matter, has resigned his office and left the FSM.
The motion is denied. Wainit has not shown sufficient grounds to disqualify either prosecutor (R. Anthony Welch or Marstella Jack) who has recently appeared in this case. As noted in prosecutor
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Weinbergís instance, the disqualified attorneys had and have no supervisory powers over Mr. Welch; this case was filed long before the events that ultimately led to prosecutors Catherine L. Wieheís and Matthew W. Crabtreeís disqualification occurred, so those events had no bearing on the decision to file and prosecute this case; Welch was on vacation when the disqualifying events occurred and has no first-hand knowledge or immediate second-hand knowledge of them; Jack was not an FSM Department of Justice employee then;2 no member of the FSM Department of Justice is either a witness or an alleged victim in this case; and no showing has been made sufficient to disqualify either Welch or Jack.
III. Motion to Dismiss
Wainit asks that the court dismiss the criminal information on the ground that his right to a speedy trial under FSM Constitution article IV, section 6 and Criminal Procedure Rule 48(b) has been violated. Rule 48(b) is the mechanism by which a defendant may assert his constitutional right to a speedy trial, although it also embraces the courtís inherent power to dismiss for want of prosecution. 3A Charles Alan Wright, Federal Practice and Procedure ß 814, at 2098-11 (2d ed. 1982).3 "The courtís power to dismiss under Rule 48(b) is not limited to those situations in which the defendantís [constitutional] speedy trial right has been violated. The Rule is a restatement of the inherent power of the court to dismiss a case for want of prosecution." United States v. Rowbotham, 430 F. Supp. 1254, 1257 (D. Mass. 1977) (citations omitted). "The Rule imposes a stricter standard of tolerable delay than does the [constitution]." Id.
The ground for the motion is that in response to the courtís October 13, 2003 order asking the parties for suggested trial dates, FSM v. Wainit, 12 FSM Intrm. 172, 181 (Chk. 2003), Wainit suggested a January trial date and the government made no suggestion, and no trial was held in January. Wainit thus asserts that his constitutional right to a speedy trial has been violated.
It is appropriate to look to U.S. constitutional law and its courtsí interpretations, especially those interpretations existing at the time of the Micronesian Constitutional Convention, as a guide to the intended meaning and scope of the FSM Constitutionís words, see, e.g., Rodriguez v. Bank of the FSM, 11 FSM Intrm. 367, 385 (App. 2003); Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984), such as the speedy trial right, since the provisions in the FSM Constitutionís Declaration of Rights are traceable to the U.S. Constitutionís Bill of Rights, Engichy v. FSM, 1 FSM Intrm. 532, 541 (App. 1984). When an FSM Declaration of Rights provision is patterned after a U.S. Bill of Rights provision, U.S. authority may be consulted to understand its meaning, Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000), and where the FSM Constitutionís framers borrowed phrases from the U.S. Constitution, it may be presumed that those phrases were intended to have the same meaning given them by the U.S. Supreme Court, Tammow v. FSM, 2 FSM Intrm. 53, 56-57 (App. 1985); Jonas v. FSM, 1 FSM Intrm. 322, 327 n.1 (App. 1983).
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This FSM constitutional right) "[t]he defendant in a criminal case has a right to a speedy public trial," FSM Const. art. IV, ß 6, is traceable to the U.S. Bill of Rights, U.S. Const. amend. VI ("the accused shall enjoy the right to a speedy and public trial"). See SCREP No. 23, II J. of Micro. Con. Con. 793, 801-02. The leading U.S. Supreme Court case concerning this right, Barker v. Wingo, 407 U.S. 512, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), established a four-factor balancing test4 for determining speedy trial violations: "Length of delay, the reason for the delay, the defendantís assertion of his right, and prejudice to the defendant." The Barker test is an appropriate tool to analyze the meaning of the FSM Constitutionís identical speedy trial right. It is also an appropriate tool to use in analyzing a Rule 48(b) dismissal. "In determining whether to exercise its discretionary power to dismiss under Rule 48(b), the court may consider the same factors relevant to a constitutional decision regarding denial of a speedy trial." Rowbotham, 430 F. Supp. at 1257.
Wainit made his initial appearance on January 15, 2002, and was released without restrictions. At first, the case proceeded expeditiously. On March 4, 2002, Wainit filed a motion to suppress. On April 19, 2002, the parties agreed to a discovery schedule, which was modified and made a court order on April 22, 2002. The court ruled on Wainitís suppression motions on April 29, 2002. FSM v. Wainit, 10 FSM Intrm. 618, 623 (Chk. 2002). The government obtained a search warrant for Wainitís business premises for certain evidence in this case. The search took place on May 14, 2002. On June 6, 2002, the court ruled on the various motions arising from that search. FSM v. Wainit, 11 FSM Intrm. 1 (Chk. 2002). By order, entered June 27, 2002, trial was set, as agreed by the parties, for September 9, 2002.
Shortly before the scheduled trial date, the government disclosed further evidence it intended to use at trial, and sought to execute further search warrants in other matters. The attempted execution on September 6, 2002, of one of the warrants lead to an incident that prompted the government to file another criminal information charging Wainit with 39 counts. See FSM v. Wainit, 11 FSM Intrm. 424 (Chk. 2003).
Wainit moved to suppress the newly-disclosed evidence, and to assert his speedy trial right. Hearings were held on September 6, and 10, 2002. The courtís October 4, 2002 ruling held that, although a continuance may normally be the most desirable remedy for late-disclosed evidence, suppression was still proper for prophylactic purposes, and the late-disclosed statements were suppressed for use in the governmentís case-in-chief, but allowed for use in rebuttal. FSM v. Wainit, 11 FSM Intrm. 186, 190 (Chk. 2002). The court also ruled that since only about 8Ĺ months had passed since the defendantís initial appearance on a twelve-count information, not enough time had elapsed for speedy trial concerns to be implicated in a complex case, especially when trial still seemed imminent. Id. at 191 (time that elapses between the alleged offenses and the filing of charges is not to be considered when determining whether a defendant has been denied a speedy trial).
On October 8, 2002, venue for trial was transferred to Pohnpei pursuant to 11 F.S.M.C. 106(4) (due to concerns over the prosecutorsí safety in Chuuk as a result of the September 6th incident) and the case assigned a Pohnpei docket number. The delay since then has been considerable. A lengthy delay (the first factor) is a triggering mechanism to determine if further analysis is required. E.g., Ivory
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v. State, 564 P.2d 1039, 1043 & n.3 (Or. 1977). In October, 2002, Wainit filed both a notice of appeal from the change of venue and a petition for a writ of prohibition barring trial on Pohnpei. On October 14, 2002, he moved to stay all trial division proceedings. This was denied on March 11, 2003, and the court ordered a final pretrial hearing to set a trial date once Wainit returned from an off-island trip for medical treatment. FSM v. Wainit, 11 FSM Intrm. 411, 413 (Pon. 2003). On April 4, 2003, the appellate division stayed only the trial.5 Wainit v. FSM, 11 FSM Intrm. 568, 569 (App. 2003), although Wainit had sought a stay of all trial court proceedings.
On May 30, 2003, Wainit filed his Motion to Disqualify Matthew Crabtree, Catherine Wiehe, and to Disqualify the FSM Department of Justice; Motion to Dismiss Criminal Information. Due to the motionsí elongated briefing schedule, agreed to by the parties, Wainitís reply was not filed until August 27, 2003. The court ruled on Wainitís motions on October 13, 2003, and largely, but not entirely, denied them, and sought a trial date. FSM v. Wainit, 12 FSM Intrm. 172, 181 (Chk. 2003). On November 5, 2003, Wainit filed a request for a late January or early February, 2004 trial because he was expected in Hawaii for medical treatment from December, 2003 until mid-January, 2004. The government did not suggest any trial dates. Wainit filed the motion to reconsider on December 12, 2003, and a supplement to it on January 15, 2004, both of which are subjects of this order.
As can be seen from the above brief summary, virtually all of the delay after the originally-scheduled September 2002 trial date can be attributed to the defendant, either because of his excused absences for medical treatment, or the stay he obtained, or his pretrial motions that had to be decided before any trial could start. Trial still seemed imminent in early October, 2002, Wainit, 11 FSM Intrm. at 191, when venue was transferred to Pohnpei. Wainit then asked the trial division to stay proceedings so that he could obtain an interlocutory appellate ruling on whether the venue transfer was proper. No trial could be held until Wainitís motion to stay was decided. When that was denied, Wainit, 11 FSM Intrm. at 413, Wainit applied for, and obtained, a stay from the appellate division, Wainit, 11 FSM Intrm. at 569. No trial could be held while the stay was in effect. That Wainit-requested stay remained in effect until the appeal cases were dismissed and venue returned to Chuuk. By then, Wainitís motions to disqualify the entire FSM Department of Justice and to dismiss the case were pending. Obviously, no trial could be held until after those motions were decided. After that decision, Wainit asked that trial not be held until January or February, 2004 because he would be in Hawaii for medical treatment. But trial could not be held then either, since Wainit had filed another motion to disqualify the FSM Department of Justice, which had to be decided before any trial could be held.
Delay caused or requested by a defendant suspends his speedy trial right, or is considered his waiver of that right, until that delay is over, even when that delay is justified. See Harrison v. United States, 392 U.S. 219, 221 n.4, 88 S. Ct. 2008, 2009 n.4, 20 L. Ed. 2d 1047, 1051 n.4 (1968) (virtually all delays caused by appellate proceedings, and resulted from either defendantís actions or need to make careful review of complex case). An accused is not denied a speedy trial when the delay is clearly attributable to the accused himself or to his counsel. Powell v. United States, 352 F.2d 705, 709 (D.D.C. Cir. 1965); see also Harlow v. United States, 301 F.2d 361, 367 (5th Cir. 1962) (when delay resulted from defendantís actions, he cannot now complain that delay was unnecessary and unreasonable); United States v. Lustman, 258 F.2d 475, 477 (2d Cir. 1958) (delays attributable primarily to defendantís own acts or to which he consented cannot be considered in determining speedy trial right; included 1Ĺ year delay due to defendantís motions), cert. denied, 358 U.S. 880 (1958);
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Taggard v. State, 500 P.2d 238, 240-41 (Alaska 1972) (period of time attributable to defendant must be excluded from calculation of pretrial delay); State v. Lewis, 537 P.2d 25, 27 (Ariz. 1975) (delay occasioned by or on behalf of defendant is excludable from speedy trial computation). Such delay includes the defendantís excused absences and the time to rule on his pretrial motions. See, e.g., United States v. Fuller, 942 F.2d 454, 457 (8th Cir. 1991) (delay caused by co-defendantsí pretrial motions does not violate defendantís speedy trial right), cert. denied, 502 U.S. 1039 (1992); United States v. Kaylor, 877 F.2d 658, 663 (8th Cir.) (sixth amendment speedy trial right not violated when delay caused by time to hear and rule on defendantís pretrial motions), cert. denied, 493 U.S. 871 (1989); United States v. Cook, 463 F.2d 123, 126 (5th Cir. 1972) (speedy trial right not violated when delay caused by defendantís appeals, by his absence with court permission, and by his numerous motions); State v. Clouatre, 516 P.2d 1189, 1190-91 (Alaska 1973) (period between defendant filing pretrial motions and denial of those motions should be excluded from computing speedy trial right); Tarnef v. State, 512 P.2d 923, 932-33 (Alaska 1973) (speedy trial right not violated when much of delay caused by defendantís motion proceedings as well as other proceedings against defendant); State ex rel. Berger v. Superior Court, 531 P.2d 1136, 1138 (Ariz. 1975) (delay occasioned by ruling on defendantís motions is excludable from speedy trial computation); State v. Smith, 583 P.2d 337, 345 (Haw. 1978) (a defendant will not be heard to complain of delays which were the result of benefit granted him).
That the delay between October 2002 and the present is attributable to Wainit weighs so heavily against him that the other factors do not need to be further considered other than to note that he has not shown that this delay caused him any actual prejudice. "The defendant cannot [for speedy trial or unnecessary delay purposes] take advantage of delays caused by his own conduct whether or not those delays were justified." State v. Jenkins, 565 P.2d 758, 761 (Or. Ct. App. 1977). The motion to dismiss on constitutional speedy trial grounds, as well as on the Rule 48(b) ground of unnecessary delay, is accordingly denied.
The parties, jointly if possible, separately if not, shall therefore submit, no later than April 30, 2004, suggested trial dates. If the parties fail to suggest dates, the court will set a date that the parties will be expected to abide by without excuse or continuance.
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1. For example, the government was permitted to file its opposition to the motions to strike and to dismiss by fax on Friday, March 19, 2004. The originals, mailed the same day and postmarked Palikir, March 19, 2004, were received by mail at the Chuuk courthouse on Monday, March 22, 2004.
2. Even if the court cannot consult the contents of the governmentís February 23rd fax, it may take judicial notice that until quite recently Jack had been appearing before it as a Pohnpei assistant attorney general, and so could only have joined the FSM Department of Justice either very late in 2003 or early in 2004.
3. Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of cases decided by other courts, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when the court has not previously construed an FSM criminal procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance, see Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984). The FSM Supreme Court has never interpreted Criminal Rule 48(b).
4. As noted in Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 447-48 (Pon. S. Ct. Tr. 1992), the Trust Territory High Court appellate division in Trust Territory v. Waayan, 7 TTR 560 (App. 1977) and Trust Territory v. Este, 7 TTR 568 (App. 1977) adopted the Barker test to interpret the Trust Territory Bill of Rights speedy trial right, 1 TTC 4. The Barker test was thus not only the interpretation of the identical U.S. constitutional speedy trial right current at the time of the Micronesian Constitutional Convention, but it was also in use by the Trust Territory courts.
5. On June 30, 2003, the parties filed a joint motion stipulating to the transfer of venue back to Chuuk once the appellate cases were dismissed. They were dismissed in July, and venue was transferred by order entered July 24, 2003.