Cite as Chuuk v. Rotenis,16 FSM Intrm. 565 (Chk. S. Ct. Tr. 2009)

[16 FSM Intrm. 565]

CRIMINAL CASE NO. 130-2007

Decided: September 8, 2009

APPEARANCES:

HEADNOTES

Criminal Law and Procedure – Discovery

Criminal Rule 16(b)(1)(C) provides that the defendant, on the government's request, must state the nature of any defense that he intends to use at trial and the name and address of any person whom the defendant intends to call in support thereof. If, before or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection, or discovers additional witnesses or defenses, that party must promptly notify the other party or that other party's attorney or the court of its existence. Chuuk v. Rotenis, 16 FSM Intrm. 565, 566 (Chk. S. Ct. Tr. 2009).

[16 FSM Intrm. 566]

Criminal Law and Procedure – Discovery

When the government has properly made a Criminal Rule 16(b)(1)(C) request and the defendant has not responded and failure to comply has been brought to the court's attention, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. Chuuk v. Rotenis, 16 FSM Intrm. 565, 566-67 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure – Discovery

When faced with a discovery violation, the court should impose the least severe sanction that will accomplish the desired result of prompt and full compliance with the court's discovery orders and Rule 16(c). In exercising its discretion to fashion an appropriate remedy, the court should take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying the prejudice by a continuance, and any other relevant circumstances. These factors must be weighed even when there is a clear discovery order. Chuuk v. Rotenis, 16 FSM Intrm. 565, 567 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure – Discovery

When the court is not convinced that defense counsels took adequate steps to ensure prompt disclosure of their witnesses and when, because a continuance has been granted, prejudice to the government in preparing for the belatedly-disclosed defense witnesses is to some degree alleviated, the government will be allowed to reopen its case-in-chief to call additional witnesses if it wishes, and, if the government intends to re-open its case-in-chief and call additional witnesses in light of defendants' late disclosures of their witnesses, it must file a notice that complies with Criminal Rule 16(a)(1)(E). Chuuk v. Rotenis, 16 FSM Intrm. 565, 567 (Chk. S. Ct. Tr. 2009).

COURT'S OPINION

CAMILLO NOKET, Chief Justice:

On August 11, 2009, after the Government rested its case-in-chief, the court denied defendants' motion for acquittal. On August 12, 2009, before the cases-in-defense were begun, counsel for defendants Renty Rotenis and Mackarty Fiti stated that they intended to call witnesses in their cases-in-defense who had not been identified in their responses to the Government's discovery and who had not been previously disclosed to opposing counsel or the court. The Government objected that it had not been timely informed of the witnesses. The court ordered briefing on the issue of allowing the newly identified witnesses and granted a motion to continue the case. Defense counsel filed their motions, contending generally that they did not realize the witnesses were needed until they heard the testimony of the Government's witnesses. The Government filed its opposition, contending that the need for the witnesses should have been apparent during discovery and that the late notification of the witnesses prejudiced the case.

Criminal Rule 16(b)(1)(C) provides that the defendant, on the government's request, shall state the nature of any defense that he intends to use at trial and the name and address of any person whom the defendant intends to call in support thereof. FSM v. Wainit, 13 FSM Intrm. 433, 443-44 (Chk. 2005). If, before or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection, or discovers additional witnesses or defenses, that party must promptly notify the other party or that other party's attorney or the court of its existence. FSM v. Wainit, 11 FSM Intrm. 186, 189 (Chk. 2002). When the government has properly made such a request and the defendant has not responded and his failure to comply has been brought

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to the court's attention, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. Wainit, 13 FSM Intrm. at 443-44. The court should, however, impose the least severe sanction that will accomplish the desired result of prompt and full compliance with the court's discovery orders and Rule 16(c). In exercising its discretion to fashion the appropriate remedy, the court should take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying the prejudice by a continuance, and any other relevant circumstances. These factors must be weighed even where there is a clear discovery order. Wainit, 11 FSM Intrm. at 190-91.

The court is not convinced that defense counsels took adequate steps to ensure prompt disclosure of their witnesses. Because a continuance has been granted, prejudice to the Government in preparing for the belatedly disclosed defense witnesses is to some degree alleviated. The court will also allow the Government to reopen its case-in-chief to call additional witnesses, if it wishes. If the Government intends to re-open its case-in-chief and call additional witnesses in light of defendants' late disclosures of their witnesses, it must no later than September 21, 2009, file a notice that complies with Criminal Rule 16(a)(1)(E).

Trial was re-scheduled to continue on October 21-22 at 9:30 a.m.