Cite as FSM v. Zhang Xiaohui, 14 FSM Intrm. 602 (Pon. 2007)

CRIMINAL CASE NO. 2006-500

Decided:  April 27, 2007

      A party opposing a motion has ten days after service of the motion to file and serve responsive papers and six days are added to this period when service is done by mail. The court may at its discretion enlarge the time for filing for cause shown, if a request for an enlargement of time is made prior to the expiration of the time period in which the responsive pleading itself is to be filed and if a request for enlargement of time is made after the expiration of the original time period in which the responsive pleading is itself due, then the enlargement of time may only be granted upon a showing of excusable neglect. Where no reason is given for late filing and an enlargement of time is never sought, responsive papers may be stricken from the record as untimely. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 608-09, 612 (Pon. 2007).

      Although a motion to dismiss stands unopposed, and while failure to oppose a motion is

generally deemed a consent to the motion, the court still needs good grounds before it can grant the motion. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 609, 613 (Pon. 2007).

      An argument that the name of the "Secretary of the Department of Transportation, Communication and Infrastructure," rather than the name of the "Federated States of Micronesia" should be in the case’s caption and that this defect deprives the court of subject-matter jurisdiction over the case is utterly lacking in merit. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 609 (Pon. 2007).

      By requiring that an information be "filed in the name of the Secretary," Title 19, section 1307 merely requires that the information filed with the court be signed by the Secretary of the Department of Transportation, Communication and Infrastructure. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 610 (Pon. 2007).

      An "information" is an accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. The information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 610 (Pon. 2007).

      In the case of a violation of Title 19 of the FSM Code, any information filed with the court must be signed by the Secretary of the Department of Transportation, Communication and Infrastructure and the attorney for the government who is authorized to appear before the court. That information’s caption, like all other pleadings filed in criminal matters, will be in the name of the "Federated States of Micronesia." FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 610 (Pon. 2007).

      An error in the citation or description or its omission shall not be ground for the dismissal of the information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant’s prejudice. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 610 (Pon. 2007).

      Regardless of how the information in this case might have otherwise been captioned, the FSM Supreme Court would not be deprived of its subject-matter jurisdiction over the case since the alleged violations are national offenses and the FSM Supreme Court has exclusive jurisdiction over cases in which the national government is a party. Thus, whether the information was filed in the name of the "Federated States of Micronesia" or "the Secretary of the Department of Transportation, Communication and Infrastructure" the national government would be a party. It is this controlling factor which serves as the basis for the court’s subject-matter jurisdiction. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 610 (Pon. 2007).

      The court may permit an information to be amended as any time before finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 610 (Pon. 2007).

      If the government were to file an amended criminal information which contained the signature

of the Secretary of the Department of Transportation, Communication and Infrastructure, i.e., signed by that official, and if the inclusion of this signature reflected the only difference between such an information and the previously-filed amended criminal information, then there would be no additional or different offense that is being charged, nor would any substantial rights of the defendant be prejudiced. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 610-11 (Pon. 2007).

      The legislature’s intention as to whether a statutory provision is mandatory is determined from the language used. Generally, a provision is directory and not mandatory if it requires that certain actions be completed, but does not prescribe the result which should follow if those actions are not completed. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 611 (Pon. 2007).

      Although Section 1306 of Title 19 of the FSM Code authorizes the Secretary of the Department of Transportation, Communication and Infrastructure to investigate violations, there is no provision in Title 19 that prescribes what action shall be taken if an investigation is not undertaken. As such, the requirement that an investigation be undertaken prior to the filing of an information is not mandatory. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 611 (Pon. 2007).

      Although Section 1306(4) of Title 19 of the FSM Code does require notification of the maritime authority in the country where the vessel that the defendant purportedly masters is flagged, that provision of law, like all of section 1306 of Title 19, is not mandatory. The notification requirement imposed by Section 1306(4) is only required if the Secretary has caused an investigation to be undertaken, and only then if the investigation concerns a vessel. But when the only named defendant is an individual, and not a vessel, even if an investigation had been undertaken by the Secretary, there would have been no requirement to notify any foreign maritime authority. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 611 (Pon. 2007).

      When the Secretary of the FSM Department of Justice is an attorney in good standing with the court, there is no legal authority that would serve as a basis to disqualify the Secretary from participating in a court case on the ground that she might have been referred to the disciplinary process in different case. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 613 (Pon. 2007).

      Since the Disciplinary Rules provide for the confidentiality of all pending disciplinary matters, and since the defendant’s various motions concerning possible disciplinary action against the Secretary of Justice have no bearing on the case’s substantive outcome, the court, in its discretion, the various filings that refer in any way to a possible disciplinary matter, whether such a matter is pending or not, will be stricken from the record. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 613 (Pon. 2007).

      A master of a vessel that is within FSM waters must render assistance to any person who is found at sea and in distress or in danger of being lost at sea if this assistance can be rendered without endangering the vessel, crew or passengers. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 614 (Pon. 2007).

      Two or more offenses may be charged in the same information in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or

transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 614 (Pon. 2007).

      Two or more defendants may be charged in the information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 614 n.4 (Pon. 2007).

      If it appears that a defendant or the government is prejudiced by a joinder of offenses or defendants in a single information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 614 (Pon. 2007).

      The principal purpose of the protection against double jeopardy is to prevent the government from making repeated attempts to convict an individual for the same alleged act. Thus, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. If the test is met a dual conviction will not violate the constitutional protection against double jeopardy. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 615 (Pon. 2007).

      Where a trial court orders concurrent sentences of two convictions of different offenses flowing from a single wrongful act, there are no cumulative or multiple punishments that might violate the double jeopardy clause. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 615 (Pon. 2007).

      If, for the same act, both a lesser included and greater offense are proven, the court should then enter a conviction on only the greater offense. A defendant cannot be sentenced on both a higher and lesser included offense arising out of the same criminal transaction. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 615 (Pon. 2007).

      When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. If the test is met, a dual conviction will not violate the constitutional protection against double jeopardy. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 615 (Pon. 2007).

      When the alleged violations are each the same, i.e., violation of 19 F.S.M.C. 425, the merger doctrine which merges higher and lesser offenses arising from a single criminal act, does not apply. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 615 (Pon. 2007).

      When there is only one defendant in the matter, the prejudice that could necessitate a severance of trial, does not exist. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 615 (Pon. 2007).

      When the language in an FSM rule or law is nearly identical to a United States counterpart, the court may look to the courts of the United States for guidance in interpreting the rule or law and may look to court decisions from the United States to assist in the interpretation of the double jeopardy clause set forth in the Declaration of Rights in the FSM Constitution, as that clause was drawn from the Bill of Rights of the United States Constitution. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 615 (Pon. 2007).

      When the unit of prosecution for 19 F.S.M.C. 425, as reflected in the legislative intent, is that there be a punishment for each violation of the law, as it relates to each person who is found at sea and who is in distress or capable of being lost at sea, but is denied assistance, the double jeopardy clause of the FSM Constitution, which parallels the double jeopardy clause of the United States Constitution, is not violated when a defendant, who commits the single act of failing to render assistance to a boat carrying four people – all of whom are purportedly in distress – is charged with four counts of violating the 19 F.S.M.C. 425. FSM v. Zhang Xiaohui, 14 FSM Intrm. 602, 617 (Pon. 2007).

* * * *

      This matter comes before the Court on the various pleadings filed by the parties that concern four (4) motions filed by the Defendant:

      1)   the Defendant’s Motion for an Order of Dismissal filed on February 8, 2007, the Government’s response captioned as an "Answer," filed on February 23, 2007, and the Defendant’s Motion to Strike the Government’s responsive pleading, filed on March 9, 2007;

      2)   the Defendant’s Motion to Prohibit the Secretary of the FSM Department of Justice from supervising the prosecution of this case, filed on February 12, 2007, the Government’s response captioned as an "Answer," filed on February 28, 2007, the Defendant’s reply pleading, filed on March 9, 2007, and the Government’s Motion to Strike the Defendant’s February 12 and March 9, 2007 pleadings, filed on March 22, 2007;

      3)   the Defendant’s "Motion for an Order of Election or Merger of Count for Trial," filed on March 13, 2007, and the Government’s opposition, filed on March 23, 2007; and

      4)   the Defendant’s Opposition to Postponement of Trial Date, filed on April 17, 2007.

A.   Disposition of Pending Motions

      As discussed below, the Defendant’s various motions, with the exception of his March 9, 2007 motion to strike the pleading filed by the Government on February 23, 2007, are all hereby denied. In addition to striking the Government’s February 23, 2007 pleading from the record of this case, the

Court also strikes the Government’s February 28, 2007 pleading, based upon its untimely filing with this Court.

      In addition, the Government’s March 22, 2007 motion to strike certain pleadings filed by the Defendant which concern the disqualification of the Secretary of the FSM Department of Justice is hereby granted. Accordingly, the Defendant’s pleadings regarding the disqualification of the Secretary of the FSM Department of Justice, filed on February 12, 2007, and March 9, 2007, are hereby stricken from the record of this case. As noted above, the Government’s February 28, 2007 pleading concerning this issue has been stricken. The Court hereby also strikes the Government’s March 22, 2007 pleading regarding this matter, thereby leaving the record in this case void of any reference to the Defendant’s request to disqualify the Secretary of the FSM Department of Justice from participating in this case.

      Lastly, based upon the scheduling of trial for June 6, 2007, which was done with the concurrence of the parties, the Defendant’s April 17, 2007 pleading opposing the rescheduling of trial is denied, as moot.

B.   Additional Requirements Imposed on Government and Scheduling of Trial

      As discussed below, the Government shall, within seven (7) days from the date of this Order, file an Amended Criminal Information that is signed by both the Secretary of the FSM Department of Transportation, Communication and Infrastructure and an attorney for the government who is authorized to appear before this Court, as is required by 19 F.S.M.C. 1307(1)(a) and FSM Crim. R. 7.

      In addition, the Government shall, within seven (7) days from the date of this Order, file a copy of the Presidential Order referenced in its pleading filed on February 23, 2007, which purports to show that the Department of justice has been designated as the legal representative for the Executive Branch of Government for the FSM. See infra note 1 at page 608.

      As discussed at the April 26, 2007 status conference, trial in this case shall commence on June 6, 2007, at 10:00 a.m. A translator will be present to provide translation in Mandarin Chinese and English. As set forth below, the Government and/or the Defendant shall notify this Court no later than May 23, 2007, if a translator will also be needed at trial for any of the witnesses appearing on behalf of the parties and, if so, what languages the witnesses will need translated into English.

A.   Motion to Dismiss

      1.   Review of Pleadings

      The Defendant argues that the case against him should be dismissed based upon the FSM’s failure to comply with the statutory requirements set forth at Title 19 of the FSM Code, which governs admiralty and maritime matters in the FSM. According to the Defendant, not only should the caption of the criminal information filed with this Court have been brought in the name of the FSM Secretary for the Department of Transportation, Communication and Infrastructure, but the Secretary of that Department should have taken certain actions, including conducting an "investigation" into the alleged violation at issue here and also notifying the maritime authority in the jurisdiction where the vessel that Defendant purportedly captains is flagged. The Defendant maintains that these efforts should have been undertaken prior to the FSM Department of Justice ever filing a criminal information which resulted in the initiation of this case. The Defendant argues that these defects deprive this Court of its

subject matter jurisdiction over this case.

      In its responsive pleading, the Government acknowledges that Section 1306 of Title 19 of the FSM Code does provide authority for the Secretary of the Department of Transportation, Communication and Infrastructure to undertake investigations into maritime matters within the FSM. However, according to the Government, such investigations are only required for matters which are not punishable by imprisonment. The Government further argues that the investigatory process provided for at Section 1306 of Title 19 of the FSM Code is not the exclusive remedy for the Government to pursue in enforcing the law. As such, matters such as the case at hand, which involve offenses that are subject to imprisonment, can be prosecuted without any investigation being undertaken by the Secretary of the Department of Transportation, Communication and Infrastructure.

      With regard to the Defendant’s assertion that this case should have been brought in the name of the Secretary of the Department of Transportation, Communication and Infrastructure, the Government asserts that pursuant to a Presidential Order, the Department of Justice is the designated legal representative of the executive branch of government in all legal matters and that the violation in question was an offense against the FSM. Thus, according to the Government, "no substantial breach has been committed in the present wording of the Information filed."

      The Defendant, in turn, moved to strike the Government’s February 23, 2007 opposition on the basis that that pleading was untimely filed with the Court. According to the Defendant, the Government’s response pleading should have been filed no more than ten (10) days after the date that the Defendant’s motion to dismiss was filed, or by February 19, 2007. That pleading was instead filed on February 23, 2007. According to the Defendant, the Government’s pleading can only be considered by the Court if the Government had also sought an enlargement of time to file its pleading after February 19, 2007, and only then upon the requisite showing of excusable neglect, as is required by FSM Crim. R. 45.

      No opposition was filed to the Defendant’s motion to strike at issue here.

2.   Defendant’s Motion to Strike Government’s February 23, 2007 Response

      It is undisputed that the Government’s response pleading at issue here was not timely filed. Service of the Defendant’s motion to dismiss was made on February 8, 2007, by hand delivery. As noted above, the Government’s response was due by February 19, 2007. The record shows that the Government’s response was not filed until February 23, 2007. The record also clearly shows that the Government’s motion was filed without any enlargement of time to do so having been granted by this Court, much less requested by the Government.

      A party opposing a motion has ten days after service of the motion to file and serve responsive

papers. FSM Crim. R. 45(d). Six days are added to this period when service is done by mail. FSM Crim. R. 45(e). The Court may at its discretion enlarge the time for filing for cause shown, if a request for an enlargement of time is made prior to the expiration of the time period in which the responsive pleading itself is to be filed. If a request for enlargement of time is made after the expiration of the original time period in which the responsive pleading is itself due, then the enlargement of time may only be granted upon a showing of excusable neglect. FSM Crim. R. 45(b). Where no reason is given for late filing and an enlargement of time is never sought, responsive papers will be stricken from the record as untimely. Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 84 (Chk. 1995).

      Accordingly, the Government’s February 23, 2007 opposition pleading at issue here is stricken from the record of this case.

3.   Defendant’s Motion to Dismiss

      Although the Defendant’s motion to dismiss now stands unopposed, and while failure to oppose a motion is generally deemed a consent to the motion, the court still needs good grounds before it can grant the motion. FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004).

      In his pending motion, the Defendant seeks to have this matter dismissed for three reasons: 1) that the FSM filed an information against him that was brought in the name of the Federated States of Micronesia rather than the name of the Secretary of the Department of Transportation, Communication and Infrastructure; 2) that the FSM Secretary of Transportation, Communication and Infrastructure failed to conduct an investigation into this matter prior to the filing of the criminal information; and 3) that the FSM Secretary of Transportation, Communication and Infrastructure failed to notify the maritime authority in the country where the vessel that the Defendant allegedly captained if flagged.

a.   Caption of Criminal Information

      Section 1307 of Title 19 of the FSM Code, provides that "[a]ll proceedings brought against a person for an offense under this title shall be commenced by filing an information, in writing, in the name of the Secretary with the Supreme Court." The term "Secretary" is defined to mean the Secretary of the Department of Transportation, Communication & Infrastructure. 19 F.S.M.C. 106(33).

      According to the Defendant, this provision of law requires that the caption of this case – as reflected in the pleadings filed with this Court – be in the name of the "Secretary of the Department of Transportation, Communication and Infrastructure," rather than the name of the "Federated States of Micronesia." The Defendant argues that this defect deprives this Court of subject-matter jurisdiction over this case.

       The Court finds the Defendant’s argument on this point utterly lacking in merit. Section 102 of Title 12 of the FSM Code provides that criminal prosecutions for violations of the laws enacted by Congress shall be commenced in the name of the Federated States of Micronesia. Although this provision of law would appear to conflict with 19 F.S.M.C. 1307(1) – requiring all proceedings to

enforce Title 19 to commence by the filing of an information in the name of the Secretary – the Court finds no conflict. Indeed, by requiring that an information be "filed in the name of the Secretary," Section 1307 of Title 19 merely requires that the information filed with the Court be signed by the Secretary of the Department of Transportation, Communication and Infrastructure.

       Black’s Law Dictionary defines "information" as "an accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath." Black’s Law Dictionary 779 (6th ed. 1980). FSM Crim. R. 7(c) provides that the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. Thus, in the case of a violation of Title 19 of the FSM Code, any information filed with this Court shall be signed by the Secretary of the Department of Transportation, Communication and Infrastructure and the attorney for the government who is authorized to appear before this Court. The caption of that information, however, like all other pleadings

filed in criminal matters before this Court, shall be in the name of the "Federated States of Micronesia," as is required by Section 102 of Title 12 of the FSM Code.

      Accordingly, the Defendant’s contention that the caption of the information filed in this case is incorrect is without merit. Moreover, even if the Defendant’s argument had merit, this case would not be dismissed as FSM Crim. R. 7(c)(3) provides that error in the citation or description or its omission shall not be ground for the dismissal of the information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant’s prejudice.

      Likewise, regardless of how the information in this case might have otherwise been captioned, this Court would not be deprived of its subject-matter jurisdiction over this case, as the Defendant so contends. Indeed, the alleged violations in this case are national offenses. Under the FSM Constitution, Article XI, Section 6, this Court has exclusive jurisdiction over cases in which the national government is a party. Thus, whether the information in this case was filed in the name of the "Federated States of Micronesia" or "the Secretary of the Department of Transportation, Communication and Infrastructure" the national government would be a party. It is this controlling factor which serves as the basis for this Court’s subject-matter jurisdiction over this case.

      Accordingly, the Defendant’s motion to dismiss this case on the grounds argued is denied.

      A review of the Amended Criminal Information in this case, however, shows that it was not signed by the Secretary for the Department of Transportation, Communication and Infrastructure. Although there were sufficient affidavits from various law enforcement officers accompanying the information, including an assistant attorney general in the FSM Department of Justice, that evidenced probable cause, the Information lacks this necessary requirement.

      As noted above, FSM Crim. R. 7(c)(3) provides that an error in the citation or description or its omission shall not be ground for the dismissal of the information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant’s prejudice. Under FSM Crim. R. 7(e), the Court may permit an information to be amended as any time before finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

      In the matter at hand, if the Government were to file an Amended Criminal Information which contained the signature of the Secretary of the Department of Transportation, Communication and Infrastructure, i.e., signed by that official, and if the inclusion of this signature reflected the only difference between such an Information and the Amended Criminal Information previously filed on December 1, 2006, then there would be no additional or different offense that is being charged, nor

would any substantial rights of the defendant be prejudiced.

      Accordingly, the Court will permit the Government to file an Amended Criminal Information in the name of the Secretary of the FSM Department of Transportation, Communication and Infrastructure, as is required by 19 F.S.M.C. 1307(1)(a). This Amended Criminal Information shall be the same as the Amended Criminal Information filed on December 1, 2006, except that it will be signed by the Secretary of the FSM Department of Transportation, Communication and Infrastructure as well as by an attorney for the Government who is authorized to appear before this Court. This Amended Criminal Information shall be filed with the Court within seven (7) days from the date that this Order is issued.

b.   Failure to undertake investigation

      As noted above, the Defendant also maintains that not only did the Secretary of the Department of Transportation, Communication and Infrastructure fail to undertake an investigation into this matter, but that such an investigation must be made prior to the filing of any information. The Defendant argues that this failure by the Secretary deprives this Court of its subject-matter jurisdiction over this case.

      The legislature’s intention as to whether a statutory provision is mandatory is determined from the language used. Generally, a provision is directory and not mandatory if it requires that certain actions be completed, but does not prescribe the result which should follow if those actions are not completed. Buruta v. Walter, 12 FSM Intrm. 289, 293 (Chk. 2004).

      Although Section 1306 of Title 19 of the FSM Code authorizes the Secretary of the Department of Transportation, Communication and Infrastructure to investigate violations, there is no provision in Title 19 of the FSM Code that prescribes what action shall be taken if an investigation is not undertaken. As such, the requirement that an investigation be undertaken prior to the filing of an information is not mandatory, as the Defendant argues.

      In short, so long as an information alleging a violation of Title 19 of the FSM Code is filed within the time period set forth at Section 1314 of Titles 19 of the FSM Code, this Court has subject-matter jurisdiction over that case. Accordingly, the Defendant’s motion to dismiss this case on this basis is denied.

c.   Failure to notify foreign maritime authority

      The Defendant also maintains that the Secretary of the Department of Transportation, Communication and Infrastructure was required to notify, through diplomatic channels, the maritime authority in the country where the vessel that the Defendant purportedly masters is flagged.

      Although Section 1306(4) of Title 19 of the FSM Code does require such notification, that provision of law, like all of Section 1306 of Title 19 of the Code, is not mandatory. Moreover, the notification requirement imposed by Section 1306(4) is only required if the Secretary has caused an investigation to be undertaken, and only then if the investigation concerns a vessel. By all accounts, in this case, the only named Defendant is an individual, and not a vessel. Thus, even if an investigation had been undertaken by the Secretary, there would have been no requirement to notify any foreign maritime authority.

      In short, the Defendant’s argument that this Court lacks subject matter jurisdiction over this case based upon the failure of the Secretary of the Department of Transportation, Communication and Infrastructure to comply with the requirements of 19 F.S.M.C. 1306(4) is simply misplaced.

Accordingly, the Defendant’s motion to dismiss this case on this basis is denied.

B.  Motion to Disqualify Secretary of the FSM Department of Justice

      1.  Review of Pleadings

      In his motion to prohibit attorney Marstella Jack, the Secretary of the FSM Department of Justice, from "supervising" the prosecution of this case, the Defendant maintains that Secretary Jack is "currently under referral, by Justice Richard Benson, for disciplinary prosecution for violation of the Rules of Professional Conduct." In support of his position, the Defendant cites to a decision that Justice Benson issued in the case of FSM v. Kansou, 14 FSM Intrm. 171 (Chk. 2006), in which he stated that the Court "had no choice but to refer the matter to the disciplinary process." Id. at 174. According to the Defendant, the mere fact that an attorney is facing possible discipline is, "alone . . . sufficient cause for disqualification" from participating in a case."

      On February 28, 2007, the Government filed its response pleading to the Defendant’s motion to disqualify Secretary Jack from participating in this matter. In that pleading, the Government argues that Secretary Jack faces no restrictions in anyway from the practice of law in the FSM. As such, the Government argues that the Defendant’s motion should be denied.

      In his March 9, 2007 pleading, the Defendant argues that the Government’s response pleading was not timely filed. Although the Defendant does not request that the Government’s pleading be stricken from the record, he does reiterate his request that Secretary Jack be disqualified from further participation in this case.

     In a March 22, 2007 pleading the Government requests that the Court strike the Defendant’s various pleadings concerning Secretary Jack from the record of this case. According to the Government, no discipline has ever been imposed against Ms. Jack and there is no basis for prohibiting her from participating in this matter. The Government further argues that Rule 5 of this Court’s Disciplinary Rules and Procedures provides that disciplinary proceedings pending before a reviewing justice shall be confidential. As such, the Government requests that the Court strike the various pleadings filed by the Defendant that refer to a potential disciplinary action concerning Secretary Jack.

      No opposition has been filed to the Government’s motion to strike.

2.   Government’s February 28, 2007 Response Pleading

      As noted above, a party opposing a motion has ten days after service of the motion to file and serve responsive papers. FSM Crim. R. 45(d). Six days are added to this period when service is done by mail. FSM Crim. R. 45(e). The Court may at its discretion enlarge the time for filing for cause shown, if a request for an enlargement of time is made prior to the expiration of the time period in which the responsive pleading itself is to be filed. If a request for enlargement of time is made after the expiration of the original time period in which the responsive pleading is itself due, then the enlargement of time may only be granted upon a showing of excusable neglect. FSM Crim. R. 45(b). Where no reason is given for late filing and an enlargement of time is never sought, responsive papers will be stricken from the record as untimely. Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 84 (Chk. 1995).

      In the matter at hand, a review of the Defendant’s motion seeking disqualification was filed on February 12, 2007. Service of this pleading, however, was made on February 9, 2007, by hand delivery on counsel for the Defendant. The Government’s response was filed on February 28, 2007.

[14 FSM Intrm. 613]

Under FSM Crim. R. 45, the Government’s response should have been filed on February 19, 2007. The record clearly shows that the Government’s response was filed without any enlargement of time having been granted, much less requested.

      Accordingly, the Government’s February 28, 2007 response pleading at issue here is stricken from the record of this case.

3.   Disqualification of Secretary of the FSM Department of Justice

     As noted above, the Defendant seeks to disqualify the Secretary of the FSM Department of Justice from participating in this case based solely upon the statement included in the order issued in the case of FSM v. Kansou, 14 FSM Intrm. 171 (Chk. 2006), that "the Court had no choice but to refer the matter to the disciplinary process."

      At this time, however, the Secretary of the FSM Department of Justice is an attorney in good standing with this Court. There is no legal authority that the Court is aware of – nor has any been cited by the Defendant – which would serve as a basis for this Court to disqualify the Secretary of the FSM Department of Justice from participating in this matter for the reasons cited by the Defendant.

     Accordingly, the Defendant’s motion to disqualify the Secretary of the FSM Department of Justice is hereby denied.

4.   Government’s Motion to Strike

     As noted above, the Defendant has not filed any opposition to the Government’s motion to strike those pleadings which refer to a purported disciplinary matter against the Secretary of the FSM Department of Justice. Failure to respond in writing to a written motion is deemed a consent to the granting of the motion. FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004). However, even if there is no opposition, the Court still needs good grounds before it can grant the motion. Id. at 511.

     At this time the only reference in the record of this case to any potential disciplinary matter concerning Secretary Jack is the statement set forth in a decision issued by Justice Benson in the case of FSM v. Kansou, 14 FSM Intrm. 171, 174 (Chk. 2006): "the Court had no choice but to refer the matter to the disciplinary process." However, and as noted above, at this time, attorney Marstella Jack is in good standing with this Court. In light of the fact that this Court’s Rules for Discipline and Procedure provide for the confidentiality of all pending disciplinary matters, and given that the Defendant’s various motions at issue here have no bearing on the substantive outcome of this case, the Court, exercising its discretion, see FSM Crim. R. 57, believes that the various pleadings that refer in any way to a possible disciplinary matter, whether such a matter is pending or not, should be stricken from the record in this case.

     Under these circumstances, the Court hereby grants the Government’s request to strike the Defendant’s various pleadings that relate to his request to have the Secretary of the FSM Department of Justice disqualified from participating in this case, including the Defendant’s pleadings filed on February 12, 2007, and March 9, 2007. In addition, and as noted above, the Government’s February 28, 2007 pleading concerning this issue has been stricken from the record in this case based upon its untimely filing with the Court. Accordingly, the Court hereby also strikes the remaining pleading that concerns the issue at hand, the Government’s March 22, 2007 pleading. Striking all of these pleadings will leaving the record in this case void of any reference to the Defendant’s request to disqualify the Secretary of the FSM Department of Justice from participating in this case based upon a purported pending disciplinary matter.

C.   Motion for Election or Merger of Counts

      1.   Review of Pleadings

      The Amended Criminal Information in this case charges four separate violations of 19 F.S.M.C. 425. That provision of law requires the master of a vessel that is within the FSM’s waters, see 19 F.S.M.C. 102 (Title 19 applies to all foreign vessels which enter, operate in, or are located in the waters of the FSM), to render assistance to any person who is found at sea and in distress or in danger of being lost at sea if this assistance can be rendered without endangering the vessel, crew or passengers. Although all of the counts arises from a single transaction by the Defendant – his alleged act of failing to render assistance to four people found at sea while acting as the master of a vessel – each count relates specifically to each one of four alleged victims, who were purportedly together at sea, in one boat, all of whom the Defendant allegedly refused to render assistance to.

      According to the Defendant, he will be prejudiced if he is convicted and sentenced on all four counts against him. The Defendant argues that not only does the action he allegedly undertook constitute a single offense, but that the evidence needed to convict him of each of the four counts will be exactly the same. As such, the Defendant, citing to FSM Crim. R. 14, argues that the four counts should be merged together into a single count. The Defendant further maintains that if these four counts are not merged together that his constitutional protection against double jeopardy will be violated.

     In its opposition, the Government summarily argues that the Defendant will not be prejudiced if this matter proceeds to trial on all four counts. The Government further maintains that the Defendant’s constitutional protection against double jeopardy will not be violated as the evidence needed to prove each violation will differ as there are four separate victims, each of whom "will give in [sic] evidence their own personal account and experience of what the defendant did to them."

2.   Analysis

      FSM Crim. R. 8 provides that two or more offenses may be charged in the same information in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

     Under FSM Crim. R. 14, if it appears that a defendant or the government is prejudiced by a joinder of offenses or defendants in a single information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires. Thus, as this Court has held, in cases involving multiple juvenile defendants, it is appropriate for the Court to proceed separately with each defendant. FSM v. Albert, 1 FSM Intrm. 14, 17 (Pon. 1981). Similarly, although there may be a danger of prejudice in cases in which a co-defendant’s inculpatory statement is admitted into evidence, severance can be denied when the statements in question can be redacted to eliminate any reference to a co-defendant. Hartman v. FSM, 5 FSM Intrm. 224, 230 (App. 1991).

     The principal purpose of the protection against double jeopardy established by the FSM Constitution is to prevent the government from making repeated attempts to convict an individual for the same alleged act. Laion v. FSM, 1 FSM Intrm. 503, 521 (App. 1984). Thus, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. If the test is met a dual conviction will not violate the constitutional protection against double jeopardy. Id. at 523-25 (App. 1984) (sustaining convictions for both assault with a dangerous weapon and aggravated assault; assault with a dangerous weapon requires use or attempted use of a dangerous weapon, a fact not required for aggravated assault, and aggravated assault requires an intent to cause serious bodily injury, which need not be proved for conviction of assault with a dangerous weapon). Similarly, where a trial court orders concurrent sentences of two convictions of different offenses flowing from a single wrongful act, there is no cumulative or multiple punishments that might violate the double jeopardy clause. Id. at 524; FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 166, 179 (Pon. 1997) (no violation of double jeopardy if each offense charged requires proof of a fact which the other does not).

       On the other hand, if, for the same act, both a lesser included and greater offense are proven, the court should then enter a conviction on only the greater offense. A defendant cannot be sentenced on both a higher and lesser included offense arising out of the same criminal transaction. Palik v. Kosrae, 8 FSM Intrm. 509, 516 (App. 1998). When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. If the test is met, a dual conviction will not violate the constitutional protection against double jeopardy. Id. at 514.

     At issue here is the Defendant’s claim that prosecution for the multiple violations he faces arising from his arguably single action will result in a violation of his constitutional protection against double jeopardy. Because these violations are each the same, i.e., an alleged violation of 19 F.S.M.C. 425, the merger doctrine at issue in Palik v. Kosrae, 8 FSM Intrm. 509 (App. 1998), which merges higher and lesser offenses arising from a single criminal act, does not apply. Similarly, because there is only one defendant in this matter, the prejudice that could necessitate a severance of trial, like that at issue in Hartman v. FSM, 5 FSM Intrm. 224 (App. 1991), does not exist.

      Thus, the sole issue before this Court is whether the prosecution of the defendant for four separate violations of 19 F.S.M.C. 425, arising from his arguably single act of failing to render assistance to four individuals who were together in one boat, violates his right to protection from double jeopardy. This appears to be a matter of first impression before this Court, as there are no published decisions in the FSM that address the unique facts at issue in the matter at hand.

       When the language in an FSM rule or law is nearly identical to a United States counterpart, this Court may look to the courts of the United States for guidance in interpreting the rule or law. Laion v. FSM, 1 FSM Intrm. 503, 522 (App. 1984). Moreover, this Court has previously looked to court decisions from the United States to assist in the interpretation of the double jeopardy clause set forth in the Declaration of Rights in the FSM Constitution, as that clause was drawn from the Bill of Rights of the United States Constitution. Id. at 522 (recognizing that the double jeopardy clause in the FSM Constitution, like the double jeopardy clause in the US Constitution, not only protects against a second prosecution for the same offense after acquittal, it also protects against multiple punishments fore the same offense).

      Courts in the United States have overwhelmingly recognized that the protection against double jeopardy is not violated by bringing multiple violations of the same law against a defendant when the violations arose from a single transgression that involved multiple victims. Most recently, in State v.

Varnell, 132 P.3d 772 (Wash. Ct. App. 2006), a defendant’s conviction of five counts of solicitation to commit murder in the first degree, which flowed from a single solicitation for the murder of five victims, was affirmed on appeal.

       In Varnell, the defendant offered money to an undercover police officer to entice him to kill a former wife and four members of her family. The defendant was charged with multiple counts of solicitation to commit murder in the first degree based upon his single solicitation. In challenging his five convictions on appeal, the Defendant argued that the double jeopardy clause in the United States Constitution precluded him from being prosecuted and punished more than once for his single act of soliciting for murder.

       The court in Varnell rejected the defendant’s double jeopardy argument. The court explained that the proper inquiry in determining whether a defendant could be prosecuted for multiple offenses arising from a single transgression focused on the legislature’s "unit of prosecution" – what the legislature intended to be the punishable offense. If the mere act of soliciting to commit a murder was the punishable offense, then a defendant could only be prosecuted once no matter how many people he intended to have murdered. On the other hand, if the law forbade soliciting to commit the murder of any person, then it is deemed that the legislature intended to punish a culprit for each and every effort that he made to solicit the murder of any person.

      In the State of Washington, the law provides that "`[a] person is guilty of murder in the first degree when . . . [w]ith a premeditated intent to cause the death of another person . . . .’" Id. at 777. The Varnell court determined that the legislature intended a guilty person to be punished each time he intended to cause the death of any another person. In Varnell, the defendant intended to cause the death of five people. As such, the Varnell court determined that the defendant could be charged, convicted and sentenced on five separate counts of solicitation to commit murder in the first degree.

      Numerous other courts in the United States have also espoused the rationale offered by the court in Varnell when entertaining challenges of a possible violation of the double jeopardy clause based upon the prosecution of multiple charges of the same crime arising from a single transgression. Like Varnell, all of these courts have rejected the contention that such prosecutions violate the double jeopardy clause. See Lave v. Dretke, 416 F.3d 372 (5th Cir. 2005) (sustaining defendant’s multiple convictions of murder for victims who were killed during a single robbery); State v. Burdick, 211 Ariz. 583, 125 P.3d 1039 (Ariz. Ct. App. 2006) (sustaining defendant’s convictions of four counts of disorderly conduct arising from single incident in which defendant angrily waived a gun at group of four individuals); Patton v. State, 837 N.E.2d 576 (Ind. Ct. App. 2005) (sustaining defendant’s conviction on two counts of inflicting serious bodily injury with a deadly weapon after he fired his gun into a vehicle with two passengers, both of whom were injured); Swain v. State, 911 So.2d 140, (Fla. Dist. Ct. App. 2005) (sustaining defendant’s multiple convictions of murder for victims who were killed during a single robbery); State v. Smith, 102 P.3d 158 (Wash. Ct. App. 2004) (sustaining defendant’s multiple convictions of first degree assault while armed with a deadly weapon following his discharge of a gun into a vehicle with multiple passengers); Spradling v. State, 773 S.E.2d 553 (Tex. Crim. App. 1989) (sustaining defendant’s multiple convictions of violating a statute that required him to "render to any person injured in an accident reasonable assistance" following an accident in which defendant struck and killed two pedestrians. See e.g., Charles Plovanich, Annotation, Single Act Affecting Multiple Victims as Constituting Multiple Assaults or Homicides, 8 A.L.R.4th 960 (1981).

      In the matter at hand, Section 425 of Title 19 of the FSM Code provides as follows: "A master shall render assistance to any person found at sea and in distress or in danger of being lost if this assistance can be rendered without endangering the vessel, crew or passengers." (emphasis added). Reviewing this provision of law it appears that the legislature intended each and every person – not

merely a boat carrying the person or people – who is found at sea and who is in distress or capable of being lost at sea to be provided with assistance. As a result, a master who fails to render assistance to any person, as required by 19 F.S.M.C. 425, is subject to punishment for each person to whom he owes this duty, but fails to fulfill.

      It would be illogical to conclude that the legislature only intended to punish a master for each occasion in which he failed to render assistance, regardless of the number of people who were victimized by his failure to act. Indeed, logic dictates that in the case of a boat carrying more than one person, if that craft is in distress or capable of being lost at sea, then every person on that craft would be in distress or capable of being lost at sea. If the legislature had intended to only punish a person who fails to render assistance on such an occasion, then a master who finds a boat with several passengers aboard, and who thereafter selectively renders assistance to only some of those passengers while ignoring the others, would be exonerated of any wrong doing: by all accounts, that master would have arguably "rendered assistance," as required by Title 19 of the FSM Code.

     In short, the Court finds that the unit of prosecution for Section 425 of Title 19 of the FSM code, as reflected in the legislative intent, is that there be a punishment for each violation of the law, as it relates to each person who is found at sea and who is in distress or capable of being lost at sea, but is denied assistance. Thus, following the logic of Varnell and the various other cases from the United States that have considered this issue, the double jeopardy clause of the FSM Constitution, which parallels the double jeopardy clause of the United States Constitution, is not violated when a defendant, who commits the single act of failing to render assistance to a boat carrying four people – all of whom are purportedly in distress – is charged with multiple counts of violating the 19 F.S.M.C. 425.

      Accordingly, the Defendant’s request to merge the counts against him into a single count is denied, as is his request to require the Government to select which of the four counts that it shall proceed with at trial. As such, this case shall proceed forward on all four counts of violating 19 F.S.M.C. 425, as alleged in the Amended Criminal Information.

D.  Opposition to Postponement of Trial and Scheduling of Trial

      At the April 26, 2007, status conference in this case, the Defendant’s counsel explained that the Defendant’s pleading opposing the postponement of trial, which had previously been scheduled for April 10, 2007, and was rescheduled due to factors beyond the control of the Court, did not need to be responded to by the Government, or ruled upon by the Court. According to the Defendant’s counsel, that pleading was filed merely to preserve an issue for appeal, assuming that the Defendant is convicted and sentenced thereby triggering his right to pursue an appeal. A review of the Defendant’s pleading confirms that the only relief sought is that trial be scheduled sometime before April 30, 2007.

      Based upon the Court’s calendar, and after conferring with the parties about the scheduling of trial at the April 27, 2007 status conference, including the statement by counsel for the Government that he would not be prepared for trial until the end of May 2007, the Court hereby schedules trial for June 6, 2007. Accordingly, based upon the scheduling of trial for June 6, 2007, the Defendant’s request to schedule trial before April 30, 2007 is hereby denied.

     At trial, the Court will provide a translator for the translation in both Mandarin Chinese and English. If the Government and/or the Defendant believe that additional translators will also be needed at trial for any of the witnesses appearing on behalf of the parties, they shall so notify the Court no later than May 23, 2007. In doing so, they shall specify the languages that will need to be translated into English.

E.   Conclusion

      In conclusion, and for the reasons set forth above, the Defendant’s various motions, with the exception of his motion to strike the Government’s February 23, 2007 opposition pleading, filed on March 9, 2007, are denied. In addition to striking the Government’s February 23, 2007 pleading from the record of this case, the Court also strikes the Government’s February 28, 2007 pleading based upon its untimely filing with the Court.

       The Government’s motion to strike the various pleadings that concern a reference to any disciplinary action against the Secretary of the FSM Department of Justice, which was filed on March 22, 2007, is hereby granted. Accordingly, the Defendant’s motions filed on February 12, 2007, and March 9, 2007, both of which concern this issue are hereby stricken from the record in this case, as is the Government’s March 22, 2007, pleading concerning this issue.

      As discussed above, the Government shall, within seven days from the date of this Order, file an Amended Criminal Information that is signed by both the Secretary of the FSM Department of Transportation, Communication and Infrastructure and an attorney for the Government who is authorized to appear before this Court, as is required by 19 F.S.M.C. 1307(1)(a) and FSM Crim. R. 7. This matter shall proceed forward on all four counts set forth in the Amended Criminal Information.

       In addition, the Government shall, within seven (7) days from the date of this Order, file a copy of the Presidential Order referenced in its pleading filed on February 23, 2007, which purports to show that the Department of justice has been designated as the legal representative for the Executive Branch of Government for the FSM. See supra note 1 at page 608.