Cite as FSM v. Fritz, 14 FSM Intrm. 548 (Chk. 2007)

CRIMINAL CASE NO. 2004-1516

Hearing: January 19, 2007

Decided: February 9, 2007

     A prosecutor has wide discretion in determining who and whether to prosecute, and a prosecutor’s decision whether to prosecute must be overruled only in the most extraordinary circumstances, e.g., vindictiveness, impermissible discrimination, or an attempt to prevent the exercise of constitutional rights. FSM v. Fritz, 14 FSM Intrm. 548, 552 (Chk. 2007).

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     A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. FSM v. Fritz, 14 FSM Intrm. 548, 552 (Chk. 2007).

     U.S. authority may be consulted to understand the meaning of a Declaration of Rights provision patterned after a U.S. Bill of Rights provision since the provisions in the Constitution’s Declaration of Rights are traceable to the U.S. Constitution’s Bill of Rights. Where the Constitution’s framers drew upon the U.S. Constitution, it may be presumed that phrases so borrowed were intended to have the same meaning given to them by the U.S. Supreme Court. FSM v. Fritz, 14 FSM Intrm. 548, 552 n.1 (Chk. 2007).

     The elements of an equal protection claim of discriminatory or selective enforcement are: other similarly situated persons who generally have not been prosecuted; the defendant was intentionally or purposefully singled out for prosecution; and the prosecution was based on an arbitrary or invidious classification. FSM v. Fritz, 14 FSM Intrm. 548, 552 (Chk. 2007).

     To make out a selective prosecution equal protection claim, an accused must identify any persons similarly situated to him that the government could have prosecuted, but has failed to, and he must show that his prosecution is based on an invidious classification of either sex, race, ancestry, national origin, language, or social status. FSM v. Fritz, 14 FSM Intrm. 548, 552 (Chk. 2007).

     An accused must raise the selective-prosecution claim at the pretrial motion stage. Defects in the institution of a prosecution, which is what a selective (or vindictive) prosecution would be, must be raised by motion before trial. FSM v. Fritz, 14 FSM Intrm. 548, 552 (Chk. 2007).

     The court must look first to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than start with a review of other courts’ cases, but when the court has not previously construed an FSM criminal procedure rule which is identical or similar to a U.S. counterpart, it may look to U.S. sources for guidance in interpreting the rule. FSM v. Fritz, 14 FSM Intrm. 548, 552 n.2 (Chk. 2007).

     When the defendants do not claim that they were singled out for prosecution based upon their sex, race, ancestry, national origin, or language, but assert that they are being arbitrarily prosecuted based upon their "social status," and when they do not clearly state what their social status is that is the basis of the prosecution’s alleged invidious classification and discrimination, it cannot be their status as high government officials (congressmen or former congressmen) because that is the same status as one (ex-president) who was not prosecuted and who the defendants claim was similarly situated so they cannot have been prosecuted based on the membership in that "classification." Furthermore, the choice to prosecute someone because of his or her status as a high government official is not an invidious classification because of the deterrent effect of such prosecutions and because of such prosecutions’ effect to maintain the public confidence that public officials are not above the law. FSM v. Fritz, 14 FSM Intrm. 548, 553 (Chk. 2007).

     A person’s position in government does not constitute "social status." The term "social status" refers to a person’s rank or place in society. In traditional Micronesian societies, this could include a person’s place or rank within his or her lineage, what caste he or she is a part of, whether and what traditional title the person might hold, or whether the person has chiefly [social] status. FSM v. Fritz, 14 FSM Intrm. 548, 553 (Chk. 2007).

     When the defendants cannot identify an invidious classification (which they assert is their "social status"), they cannot make out that element of a selective prosecution claim, especially when the court has doubts whether the purported examples of persons similarly situated are actually that. FSM v. Fritz, 14 FSM Intrm. 548, 553 (Chk. 2007).

     To establish a claim of vindictive prosecution, the defendant must make an initial showing that charges of increased severity were filed because the accused exercised a statutory, procedural or constitutional right in circumstances that gave rise to an appearance of vindictiveness. FSM v. Fritz, 14 FSM Intrm. 548, 554 (Chk. 2007).

     When the court cannot say that the charges were of increased severity and were filed because a defendant exercised a statutory, procedural or constitutional right in circumstances that gave rise to an appearance of vindictiveness since probation revocation merits were never considered and since the charges the defendant was convicted of and for which revocation of probation was sought carried a higher maximum penalty than the conspiracy charge in this case, and since the other defendant was not faced with charges of increased severity since he was not previously accused of any offense for his conduct in September, 2004, the defendants’ motions to dismiss based on selective or vindictive prosecution will be denied. FSM v. Fritz, 14 FSM Intrm. 548, 554 (Chk. 2007).

     The agreement in a conspiracy does not have to be explicit. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement and a conspiracy exists when either the agreement or the means contemplated for its achievement are unlawful. FSM v. Fritz, 14 FSM Intrm. 548, 554-55 (Chk. 2007).

     The existence of, and participation in, a criminal conspiracy may be proved by circumstantial as well as by direct evidence, if it affords a reasonable inference as to the ultimate facts sought to be proved. FSM v. Fritz, 14 FSM Intrm. 548, 555 (Chk. 2007).

     The court may infer the existence of an agreement from circumstantial evidence and from the defendants’ position and conduct. FSM v. Fritz, 14 FSM Intrm. 548, 555 (Chk. 2007).

     When there is sufficient evidence present from which the court may infer probable cause that an agreement existed and sufficient evidence of the requisite mens rea, there is sufficient evidence to establish probable cause that a conspiracy existed. FSM v. Fritz, 14 FSM Intrm. 548, 555 (Chk. 2007).

the objective. FSM v. Fritz, 14 FSM Intrm. 548, 555 (Chk. 2007).

     Just as the intent to agree can be shown by circumstantial evidence that there was an agreement, the intent to achieve the objective can also be shown by a person’s actions. FSM v. Fritz, 14 FSM Intrm. 548, 555 (Chk. 2007).

     When the defendants’ motions to dismiss based on selective or vindictive prosecution have been denied for failure to establish a prima facie case, the government’s motion in limine that the defendants be precluded from introducing at trial any testimony on or evidence of, or asserting, the defense of selective or discriminatory prosecution and of vindictive prosecution must be granted. FSM v. Fritz, 14 FSM Intrm. 548, 555 (Chk. 2007).

* * * *

     This came before the court on January 19, 2007 for hearing on (1)  Government’s Motion to Compel Discovery and Motion in Limine to Preclude Evidence of Selective Prosecution, filed October 3, 2005; (2)  Defendant’s Response to Government’s Motion in Limine to Preclude Evidence of Selective Prosecution, filed October 21, 2005 by Jack Fritz; (3)  Government’s Motion for Leave to File Reply to Defendant Fritz’s Response to Government’s Discovery Motion and Motion in Limine along with Government’s Reply Brief, filed October 21, 2005; (4)   Defendant Kansou’s Motion to Dismiss Matter Due to Selective Prosecution, Impermissible Discrimination, and Denial of the Due Process of Law to the Defendant, filed September 18, 2006; and (5)  Motion to Dismiss Charge, filed October 13, 2006 by Jack Fritz. The government has stated that its motion in limine stands as its opposition to the defendants’ motions to dismiss.

      The defendants’ response on the discovery issue was that, once known, further discovery responses would be forthcoming and complete. Since that response was quite some time ago and since the government did not mention the discovery issue during the hearing, the court presumes that the government is now content with the defendants’ later discovery responses and that this part of the motion has become moot or has been abandoned.

      Defendant Jack Fritz moves to dismiss the case against him on the ground that the government has failed to establish probable cause. Both defendant Jack Fritz and defendant Roosevelt Kansou move to dismiss this case on the ground that the government is impermissibly discriminating against them by selectively prosecuting them. They contend that this case is an impermissible selective

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prosecution because other persons similarly situated were not prosecuted but that the defendants were prosecuted based on theirsocial status and that the prosecution was vindictive because it was instituted after the original prosecutor became disappointed that Fritz had not been sent to jail when he was convicted in another case.

      A prosecutor has wide discretion in determining who and whether to prosecute, Nix v. Ehmes, 1 FSM Intrm. 114, 126 (Pon. 1982); see also FSM v. Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon. 1987); FSM v. Mudong, 1 FSM Intrm. 135, 140 (Pon. 1982), and a prosecutor’s decision whether to prosecute must be overruled only in the most extraordinary circumstances, e.g., vindictiveness, impermissible discrimination, or an attempt to prevent the exercise of constitutional rights. FSM v. Wainit, 11 FSM Intrm. 1, 8 (Chk. 2002); Nix, 1 FSM Intrm. at 125-26.

A.  Selective Prosecution

      "A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." United States v. Armstrong, 517 U.S. 465, 463, 116 S. Ct. 1480, 1486, 134 L. Ed. 2d 687, 698 (1996).1 The elements of an equal protection claim of discriminatory or selective enforcement are: other similarly situated persons who generally have not been prosecuted; the defendant was intentionally or purposefully singled out for prosecution; and the prosecution was based on an arbitrary or invidious classification. Wainit, 11 FSM Intrm. at 7. To make out a selective prosecution equal protection claim, an accused must identify any persons similarly situated to him that the government could have prosecuted, but has failed to, and he must show that his prosecution is based on an invidious classification of either sex, race, ancestry, national origin, language, or social status. Id. at 8.

      An accused must raise the selective-prosecution claim at the pretrial motion stage. Defects in the institution of a prosecution, which is what a selective (or vindictive) prosecution would be, must be raised by motion before trial. FSM Crim. R. 12(b)(1); see also United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 434 U.S. 853 (1977).2 The defendants have therefore brought their motions to dismiss at the proper time.

      The defendants have identified a small number of persons who they assert were similarly situated to them but who were not prosecuted. They are a presidential widow, an ex-president, and the Conservation Society of Pohnpei who were each given or kept a vehicle and the family of a deceased

[14 FSM Intrm. 553]

former staff employee of the Public Defenders’ Office in Chuuk who kept a boat. The government asserts that those persons are not similarly situated to these defendants. It asserts that defendant Fritz, as a convicted felon sentenced to probation, cannot be considered to be similarly situated with those other persons.

       The defendants do not claim that they were singled out for prosecution based upon their sex, race, ancestry, national origin, or language. They assert they are being arbitrarily prosecuted based upon their "social status." They do not clearly state what their social status is that is the basis of the prosecution’s alleged invidious classification and discrimination. It cannot be their status as high government officials (congressmen or former congressmen) because that is the same status as one (ex-president) who was not prosecuted and who the defendants claim was similarly situated so they cannot have been prosecuted based on the membership in that "classification." (Defendant Kansou hints that it is because he is a "political foe.") Furthermore, the choice to prosecute someone because of his or her status as a high government official is not an invidious classification because of the deterrent effect of such prosecutions and because of such prosecutions’ effect to maintain the public confidence that public officials are not above the law. See, e.g., United States v. Saade, 652 F.2d 1126, 1136 n.14 (1st Cir. 1981); United States v. Ojala, 544 F.2d 940, 944-45 (8th Cir. 1978); United States v. Peskin, 527 F.2d 71, 86 (7th Cir. 1975), cert. denied, 429 U.S. 818 (1976); see also United States v. Hastings, 126 F.3d 310, 314-15 (4th Cir. 1997).

      Moreover, a person’s position in government does not constitute "social status." The court concludes that the term "social status" refers to a person’s rank or place in society. In traditional Micronesian societies, this could include a person’s place or rank within his or her lineage, what caste he or she is a part of, whether and what traditional title the person might hold, or whether the person has chiefly [social] status. See Norman Meller, Constitutionalism in Micronesia 274 (1985) (special constitutional assurance that traditional leaders would not be disenfranchised dropped as unnecessary in light of prohibition of discrimination on the basis of ancestry or social status). Whatever status it is that the defendants claim has caused their prosecution, it is not a "social status."

      Accordingly, since the defendants cannot identify an invidious classification (which they assert is their "social status"), they cannot make out that element of a selective prosecution claim. Furthermore, the court has doubts whether the purported examples of persons similarly situated are actually that.

      To overcome the presumption that a decision to prosecute a particular person is motivated solely by proper considerations, a criminal defendant has a heavy burden to establish prima facie the elements of an impermissible selective prosecution so as to shift the burden to the government to demonstrate that the prosecution was not premised on an invidious objective. Wainit, 11 FSM Intrm. at 8. "[A] decision to prosecute a particular person is presumed to be motivated solely by proper considerations. In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present 'clear evidence to the contrary.’" Id. (citations omitted). The defendants have failed to do that. Therefore the court must deny the defendants’ motion to dismiss on the ground of selective prosecution.

      The defendants appear to contend that since the FSM has never before prosecuted anyone for keeping a vehicle or a boat after leaving government office or employment, no one can ever be. It is certainly within the government’s prosecutorial discretion to conclude that something that earlier did not seem worthy of expending scarce prosecutorial resources on pursuing has become a bigger or growing problem on which it is now advisable to spend its time and energy.

B.   Vindictive Prosecution

       The defendants also assert that this prosecution should be dismissed on the ground that the prosecution was arbitrary or vindictive. They base this assertion on the original prosecutor’s expressed desire that defendant Fritz should have received jail time for earlier convictions, see FSM v. Fritz, 12 FSM Intrm. 602 (Chk. 2004), for which he was placed on probation instead. Initially, that prosecutor moved to revoke Fritz’s probation. The Fritz court denied the motion to revoke without reaching its merits because, due to an oversight, Fritz’s term of probation had not yet started and therefore the acts alleged to have occurred in September, 2004 did not occur while Fritz was on probation. FSM v. Fritz, 13 FSM Intrm. 88, 92 (Chk. 2004). The government then filed the present case. The defendants assert that this is a vindictive prosecution and it should therefore be dismissed.

      "[To establish a claim of vindictive prosecution, the defendant must make an initial showing that charges of increased severity were filed because the accused exercised a statutory, procedural or constitutional right in circumstances that gave rise to an appearance of vindictiveness." United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982) (citing United States v. Burt, 619 F.2d 831, 836 (9th Cir. 1980); United States v. Griffin, 617 F.2d 1342, 1346 (9th Cir. 1980)).

      In seeking to revoke Fritz’s probation, the original prosecutor choose a simpler method (than filing a new case and proceeding to trial) with a lower standard of proof. See FSM v. Phillip, 5 FSM Intrm. 298, 302-03 (Kos. 1992) (revocation hearing is significantly different than a trial; probation may be revoked if court is reasonably satisfied that the terms of the probation were violated; there is no need to establish beyond a reasonable doubt that the terms of the probation have been violated). When this method turned out to be unavailable, the prosecutor’s choice was to either file [this] case or drop the matter. The prosecution cannot be faulted or penalized for first trying a less burdensome method that might procure the same result. And, even if Fritz’s probation had been revoked for the acts alleged in this information, the government may still have been able to prosecute him for the substantive offense, see, e.g., State v. Chambers, 700 S.W.2d 597, 598-99 (Tex. Crim. App. 1985), a question the court does not decide today.

      The court thus cannot say that the charges in this case were of increased severity and were filed because Fritz exercised a statutory, procedural or constitutional right in circumstances that gave rise to an appearance of vindictiveness. The merits of probation revocation were never considered. The charges Fritz was convicted of and for which revocation of probation was sought carried a higher maximum penalty (twenty years each for four counts) than the conspiracy charge in this case (five years or less depending on the vehicle’s value). And Kansou was not faced with charges of increased severity since he was not previously accused of any offense for his conduct in September, 2004.

      Accordingly, the defendants’ motions to dismiss based on selective or vindictive prosecution are denied.

       Fritz also claims that the government has failed to show probable cause because, in his view, there is no evidence of an agreement between the two defendants. He also contends that there is no evidence that defendant Kansou had the proper mens rea. Fritz moves for dismissal of the conspiracy charge against him on this ground, noting that, if the charge against him is dismissed on this ground, then the charge against Kansou must also be dismissed since at least two co-conspirators are needed to commit the offense of conspiracy.

      The agreement in a conspiracy does not have to be explicit. A mere tacit understanding will

suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement and a conspiracy exists when either the agreement or the means contemplated for its achievement are unlawful. FSM v. Kansou, 14 FSM Intrm. 132, 134 (Chk. 2006); Moses v. FSM, 14 FSM Intrm. 341, 346 (App. 2006), aff’g FSM v. Este, 12 FSM Intrm. 476, 483 (Chk. 2004). "The existence of, and participation in, a criminal conspiracy may be proved by circumstantial as well as by direct evidence, if it affords a reasonable inference as to the ultimate facts sought to be proved." Kansou, 14 FSM Intrm. at 134 (citing Este, 12 FSM Intrm. at 483).

      The court may infer the existence of an agreement from circumstantial evidence and from the defendants’ position and conduct. See, e.g., Moses, 14 FSM Intrm. at 346 (although no evidence was introduced which showed an explicit agreement, given the appellant’s position as the Uman Social Project project manager, the responsibilities that position entailed, the relationship he had with the Southern Namoneas Development Authority executive director, the misuse of national funds under appellant’s and the director’s direction and management, and by appellant himself, and the fact that no new community halls were built by appellant’s and the director’s project, there is sufficient evidence in the record for a reasonable trier of fact to find beyond a reasonable doubt that the appellant agreed with the director to commit theft); United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir. 1997) (agreement may be inferred from concert of action); United States v. Crooks, 83 F.3d 103, 106 (5th Cir. 1996); United States v. Morris, 836 F.2d 1371, 1373 (D.C. Cir. 1988); United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir. 1983); United States v. Welch, 656 F.2d 1039, 1056 (5th Cir. Unit A Sept. 1981) (person’s acts can create an inference concerning what he has agreed to do); Clairborne v. Cahalen, 636 F. Supp. 1271, 1276-77 (D. Md. 1986) (probable cause for the existence of an agreement to commit crime shown by a defendant’s actions); Doyle v. State, 921 P.2d 901. 911 (Nev. 1996) (conspiracy may be established by inference from the parties’ conduct; may be supported by coordinated series of acts); People v. Larson, 572 P.2d 815, 817 (Colo. 1977) (existence of agreement or assent necessary to establish a conspiracy may be inferred from circumstantial evidence).

      The government moves that the defendants be precluded from introducing at trial any testimony on or evidence of, or asserting, the defense of selective or discriminatory prosecution and of vindictive prosecution because the defendants have not made out a prima facie case for either defense. Since the defendants’ motions to dismiss based on selective or vindictive prosecution have been denied for failure to establish a prima facie case, the government’s motion in limine must be granted. The defendants are therefore precluded from introducing evidence or arguing at trial that this case is the result of selective or vindictive prosecution. The defendants, however, are not precluded from introducing evidence that their actions were other than what the government alleges them to be.

    Accordingly, the defendants’ motions to dismiss are denied and the government’s motion in limine is granted.