FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Chunn, 21 FSM R. 587(Pon. 2018)

[21 FSM R. 587]

CRIMINAL CASE NO. 2017-501

Decided: June 4, 2018

APPEARANCES:

        For the Plaintiff:                    Jonathan D. Buckner, Esq.
                                                     Assistant Attorney General
                                                     FSM Department of Justice
                                                     P.O. Box PS-105
                                                     Palikir, Pohnpei FM 96941

        For the Defendant:               Lorrie Johnson-Asher, Esq.
               (Chunn)                         Chief Public Defender
                                                     Office of the Public Defender
                                                     P.O. Box 1736
                                                     Kolonia, Pohnpei FM 96941

        For the Respondent:            Erick B. Divinagracia, Esq.
               (Jesse)                          Ramp & Mida Law Firm
                                                     P.O. Box 1480
                                                     Kolonia, Pohnpei FM 96941

HEADNOTES

Criminal Law and Procedure – Motions

A court can exclude evidence by granting a motion in limine. FSM v. Chunn, 21 FSM R. 587, 588 n.1 (Pon. 2018).

Criminal Law and Procedure – Discovery

When it has been brought to the court's attention that a party has failed to comply with Rule 16, 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

[21 FSM R. 588]

under the circumstances. FSM v. Chunn, 21 FSM R. 587, 590 (Pon. 2018).

Criminal Law and Procedure – Discovery

In exercising its discretion to fashion the appropriate remedy, a 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 that prejudice by a continuance, and any other relevant circumstances. FSM v. Chunn, 21 FSM R. 587, 590-91 (Pon. 2018).

Criminal Law and Procedure – Discovery

When there is compliance under the discovery rules, the government did not intentionally withhold evidence from the defendant. FSM v. Chunn, 21 FSM R. 587, 591 (Pon. 2018).

Criminal Law and Procedure – Discovery

The preferred remedy when the government makes a late disclosure of evidence is to offer the defendant a continuance to prepare to meet the additional evidence. This is because a 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). FSM v. Chunn, 21 FSM R. 587, 591 (Pon. 2018).

Criminal Law and Procedure – Discovery

When, at a pretrial hearing, the government did not call any of the witnesses that were listed in its recent submission, at this point, the prejudice to the defendant is minimal and not material to the hearing. Because the preferred remedy is to grant a continuance for the opposing party to consider the evidence, instead of excluding the discovery material, the court, in light of the new discovery material, will allow the defendants to file subsequent motions and to propose a schedule allowing them sufficient time to conduct their own examination and follow-up with the potential witnesses on their statements. FSM v. Chunn, 21 FSM R. 587, 591 (Pon. 2018).

COURT'S OPINION

DENNIS K. YAMASE, Chief Justice:

I. BACKGROUND

On February 28, 2018, the Defendant, Joseph Parisi (herein "Parisi"), entered a Motion in Limine to Exclude Evidence.¹ The plaintiff, Federated States of Micronesia (herein the "Government"), filed a response on March 7, 2018. On May 9, 2018, a Notice of Errata Regarding the Government's Response to Parisi's Motion in Limine was submitted by the Plaintiff. After consideration of the filings and the evidence on the record, the Court denies the Defendant's Motion in Limine to Exclude Evidence.

II. FACTS

A Scheduling Order was entered on February 16, 2017 setting discovery deadlines in this matter. After numerous stipulated extensions of time, on April 19, 2017, Parisi entered his response to the Government's discovery request, pursuant to FSM Criminal Rule 16. The submission listed the following individuals as potential witnesses: (1) Francisca Hairens, (2) Christina Nena, (3) Lahni

[21 FSM R. 589]

Malarme, (4) Maureen Yamada, and (5) Ann Marie Vitt.²

On October 26, 2017, Parisi filed an amended response to the plaintiff's discovery request, which included his anticipated defenses at trial. On January 12, 2018, Parisi entered a second amended response to the plaintiff's discovery request, which included a summary of the testimony of each witnesses that was listed in the October 26, 2017 filing.³

In summary, the January 12, 2018 filing denied Parisi knowingly received, transferred, or exploited Child Victim 1. Parisi also included a listing of witnesses who will testify that Parisi did not have sexual intercourse with Child Victim 1. The Government conducted interviews and additional investigation as a result of the January 12, 2018 filing, which included the translations of certain statements by the witnesses. Gov't's Response to Mot. in Limine at 2-3.

A hearing on pre-trial motions was held on February 14-15, 2018. On the day of the hearing before the case was called, the Government provided both Defendants with copies of an unsigned police report by Captain Hilario Bermanis Jr., and several photographs. Parisi's Mot. in Limine at 2.

During the hearing, Parisi objected to the admission of any evidence that was not disclosed prior to the hearing. Id. at 3. The Court denied the objection stating that the Defendants will be allowed to cross-examine any witnesses during the hearing. Id. On February 19, 2018, Parisi was served with additional discovery materials.⁴ Parisi's in limine motion was filed on February 28, 2018, and the Government's response was entered on March 7, 2018.

III. ISSUES

In the Defendant's February 28, 2018 motion in limine, the following issues are raised:

(1) whether the seven witness statements and four Constitutional Rights and Waiver Forms provided to both Defendants' counsels on February 19, 2018, were in noncompliance with the Court's Rules of Criminal Procedure?

(2) whether such noncompliance and late disclosure of the evidence was intentional by the Government?

[21 FSM R. 590]

(3) whether the evidence provided on February 19, 2018 was material to the defense at the time of the pretrial hearings from February 14-15, 2018?

(4) whether the failure to disclose the new evidence was prejudicial to Defendants in regards to the hearings from February 14-15 and overall case and should be excluded?

IV. DISCUSSION

A. Compliance with the FSM Rules of Criminal Procedure and Intentional Action by the Government

The Court will consider the first two (2) issues jointly. The Defendant Joseph Parisi argues that his motion in limine should be granted pursuant to FSM Criminal Rule 16(b)(2)(c), FSM Criminal Rule 16(d)(2) and FSM Criminal Rule 26.2(e).⁵ Parisi further argues that the Government intentionally withheld the discovery material prior to the February 14 hearing. The evidence was submitted to Parisi on February 19, 2018.

When it has been brought to the court's attention that a party has failed to comply with Rule 16, "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."

FSM v. Wainit, 11 FSM R. 186, 190 (Chk. 2002) (quoting FSM Crim. R. 16(d)(2)).

"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 that prejudice by a continuance, and any other relevant

[21 FSM R. 591]

circumstances.'" Id. at 190-91 (quoting 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE, § 260, at 188-90 (3d ed. 2000)).

Parisi argues that the February 19, 2018 list of witness statements shows that most of the evidence was obtained from January 24-26, 2018, nearly three (3) weeks prior to the hearing on pre-trial motions that was argued on February 14, 2018. This should have given the Government ample time to disclose the listing of witnesses, according to the Defendant. Parisi's Mot. in Limine at 8.

The Government claims that a review of the statements showed conflicting statements between Child Victim 1 and Mehmer Luzama, additional time was needed because of the numerous issues that were to be argued at the hearing, and none of the statements were used in the Government's case. Gov't's Response to Mot. in Limine at 10-11.

Here, the Government's actions do not violate the FSM Rules of Criminal Procedure because this matter is still in its pre-trial stages, and under FSM Criminal Rule 16(b)(2)(c), because evidence may be discovered at any time, a party has the duty to disclose evidence leading up to, and even during, trial. Because of the complexity of this case, the numerous witnesses and evidence that are on the record, and the on-going nature of the investigation by the Government, there is a possibility that additional evidence will be discovered, even after the closure of the discovery period. Instead of excluding evidence that may be material to both sides, the Court will allow the parties to make further filings based on the newly discovered evidence.

Therefore, based on the evidence, the Court finds that there is no violation of the FSM Rules of Criminal Procedure as to the February 19, 2018 discovery material. Because there is compliance under the rules, the Court finds that the Government did not intentionally withhold evidence from the Defendant.

B. Material Evidence and Prejudice to the Defendant

"The preferred remedy when the government makes a late disclosure of evidence is to offer the defendant a continuance to prepare to meet the additional evidence." Wainit, 11 FSM R. at 190 (Chk. 2002) (citing YALE KAMISAR, WAYNE R. LAFAVE & JEROLD H. ISRAEL, MODERN CRIMINAL PROCEDURE, 1128-29 (6th ed. 1986); United States v. White, 846 F.2d 678, 692 (11th Cir. 1988)). "This is because a 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)." Id. (citing United States v. White, 846 F.2d 678, 691 (11th Cir. 1988); United States v. Fernandez, 780 F.2d 1573, 1576 (11th Cir. 1986); United States v. Sarcinelli, 667 F.2d 5, 7 (5th Cir. Unit B 1982)).

In the present matter, because the Government did not call any of the witnesses that were listed in the February 19, 2018 submission, the prejudice to the Defendant, at this point in this matter, is minimal, and was not material to the February 14, 2018 hearing. Further, because the preferred remedy is to grant a continuance for the opposing party to consider the evidence, instead of exclusion of the discovery material, the Court will allow the Defendants to file subsequent motions, in light of the February 19, 2018 discovery material. Since no trial date has been set, such filing may include a proposed schedule to allow the Defendants sufficient time to conduct its own examination and follow-up with the potential witnesses on their statements.

V. CONCLUSION

The Defendant Joseph Parisi's Motion in Limine to Exclude Evidence is HEREBY DENIED. The Defendant may make subsequent filings based on the February 19, 2018 discovery material within

[21 FSM R. 592]

twenty (20) days of being served with this Order, and the Government may enter a response within the time allowed under FSM Criminal Rule 45(d).

Footnotes:

¹ "Limine" is defined as "(Of a court) to exclude [evidence] by granting a motion in limine." BLACK'S LAW DICTIONARY 420 (2d pocket ed. 2001).

² The discovery response only listed the names of these individuals, but did not indicate the contents of the witnesses' testimony.

³ This new filing added the following witnesses: Stera Jim, Marissa Rodriguez, Irak Rodriguez, and Mehmer Luzama.

⁴ The materials include: (1) Witness statement in Pohnpeian of Senoleen Rodriguez dated January 24, 2018; (2) Witness statement in Pohnpeian of Suwalleen Rodriguez dated January 25, 2018; (3) Witness statement in English of Francisca Hairens dated January 25, 2018; (4) Constitutional Rights and Waiver Form in Pohnpeian of Francisca Hairens dated January 25, 2018; (5) Witness statement in Pohnpeian of Merlinda Luzama dated January 26, 2018; (6) Witness statement in English of Marissa Jim dated January 26, 2018; (7) Constitutional Rights and Waiver Form in Pohnpei of Marissa Jim dated January 26, 2018; (8) Witness statement in English of Stera Jim dated January 26, 2018; (9) Constitutional Rights and waiver Form in Pohnpeian of Stera Jim dated January 26, 2018; (10) Witness statement in Pohnpeian of Maureen Yamada dated January 26, 2018; and (11) Constitutional Rights and Waiver Form in Pohnpeian of Maureen Yamada dated January 26, 2018.

⁵ FSM Criminal Rule 16(b)(2)(c):

FSM Criminal Rule 16(d)(2):

FSM Criminal Rule 26.2(e):