THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Wu Ya Si ,
6 FSM Intrm. 573 (Pohnpei 1994)

[6 FSM Intrm. 573]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

WU YA SI, BEIHAI FISHING CO. and
MICRONESIAN FISHING VENTURE, INC.,
Defendants.

CRIMINAL ACTION NO. 1994-503

MEMORANDUM OF DECISION

Andon L. Amaraich
Associate Justice

Decided:  November 10, 1994

APPEARANCES:
For the Plaintiff:            Mark L. Driver, Esq.
                                       Assistant Attorney General
                                       Office of the FSM Attorney General
                                       P.O. Box PS-105
                                       Kolonia, Pohnpei FM 96941

For the Defendants:     John Brackett, Esq.
                                       P.O. Box 208
                                       Kolonia, Pohnpei FM 96941

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HEADNOTES
Criminal Law and Procedure ) Speedy Trial
     When a defendant has already agreed to a trial date that meets the constitutional requirement for a speedy trial, and no reason is offered why that date is no longer constitutionally sound, a later motion for a speedy trial may be denied.  FSM v. Wu Ya Si, 6 FSM Intrm. 573, 574 (Pon. 1994).

Civil Procedure ) Motions
     A motion filed in a related criminal case for the release of a vessel, which is only a defendant in a civil forfeiture action, will be denied as not properly before the court.  FSM v. Wu Ya Si, 6 FSM Intrm. 573, 574 (Pon. 1994).

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[6 FSM Intrm. 574]

COURT'S OPINION
ANDON L. AMARAICH, Associate Justice:
     Defendants have three motions currently pending before the court in this criminal action:  "Motion for Speedy Trial" filed October 26, 1994; "Amended Motion for Speedy Trial" filed October 27, 1994; and, "Motion for Reduction and Approval of Bond and Expedited Hearing" filed October 26, 1994.  This Order and Memorandum of Decision addresses all of defendants' pending motions.

     The FSM Constitution guarantees a criminal defendant the right to a "speedy public trial."  FSM Const. art. IV, 6.  See also Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) (adopting four-part test for determining whether criminal defendant is accorded speedy trial).  In this case, however, defendants already have been provided with a trial date that meets the constitutional requirements of a speedy trial.

     On October 20, 1994, the court held a conference in chambers that was attended by counsel for both the prosecution and the defendants.  At that time the court requested the parties to submit prospective dates for trial and for the deadline for filing of pre-trial motions.  At a court hearing held the following day, both parties stated that they could be ready for trial beginning on December 27, 1994, and that such date was acceptable.  The parties also agreed that the court should set a November deadline for the filing of all pre-trial motions.  Finding that the trial date agreed to by the parties comported with the constitutional requirements of a speedy trial, the court issued an order from the bench setting December 27, 1994 as the commencement date for the trial in this criminal action.  In their motions for speedy trial, both of which were filed after the establishment of the date for trial, defendants do not offer any reason why the scheduled date for trial is no longer constitutionally sound.  Rather, the court, based upon both the arguments contained in defendants' motions as well as upon its independent review of the matter, remains convinced that the date set for trial in this case is both "speedy" and constitutionally sound.

     The final issue before the court in this case concerns defendants' motion relating to the release of the fishing vessel known as the Zhong Yuan Yu No. 621 (the "vessel").  The facts giving rise to this criminal prosecution, as is the case in most fishing violation cases in the FSM, also gave rise to a separate, albeit related, civil action.  While this criminal prosecution concerns the actions of the individual and corporate defendants responsible for the vessel, it does not involve the vessel itself.  Rather, the vessel is a defendant in the civil action only, and the seizure and detention of the vessel, as well as the terms and conditions established by the court for the vessel's release, are matters pertaining solely to the civil forfeiture action.  Accordingly, because the defendants filed their motion regarding the release of the vessel in the criminal action, the motion is not properly before the court and the court will not rule on that motion.

     In conclusion, it is hereby ordered that defendants' motions for a speedy trial are granted, and commencement of the trial in this criminal action will remain scheduled for December 27, 1994.  It is further ordered that the deadline for the filing of all pre-trial motions in this case is now set for Monday, November 28, 1994.  It is further ordered that defendants' "Motion for Reduction and Approval of Bond and Expedited Hearing" does not belong in this criminal action and is therefore denied.

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