7 FSM Intrm. 633-642

A prosecution for criminal contempt does not pose a double jeopardy problem when previous contempt proceedings were in the nature of civil contempt, nor does it violate the statutory prohibition against successive prosecutions for contempt. FSM v. Cheida, 7 FSM Intrm. 633, 637 (Chk. 1996).

The doctrine of collateral estoppel or issue preclusion holds that when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. It therefore does not apply to a criminal contempt proceeding for acts after earlier civil contempt proceedings and because the burden of proof is different in a criminal proceeding and because it is not a subsequent action between the same parties. FSM v. Cheida, 7 FSM Intrm. 633, 637-38 (Chk. 1996).

After prosecution has been initiated, it may be dismissed by a court if there is no probable cause ) evidence giving a reasonable ground for suspicion sufficiently strong to warrant a cautious person to believe that the accused is guilty of the offense ) to believe that a crime has been committed, or that the defendant has committed it. FSM v. Cheida, 7 FSM Intrm. 633, 638 (Chk. 1996).

A due process challenge to a criminal contempt charge on the ground of the court's or its personnel's actions may be resolved by the judge's recusal and reassignment of the case to a judge whose impartiality has not been questioned. FSM v. Cheida, 7 FSM Intrm. 633, 638-39 (Chk. 1996).

When a defendant who testified in a civil contempt proceeding was not in custody, the civil contempt proceedings were not conducted to gather evidence for use in a subsequent criminal action and because a court is not required to warn a defendant of his right to counsel before giving testimony in a civil contempt proceeding, the defendant's testimony and voluntarily submitted pleadings in a civil contempt proceeding are admissible in a later criminal contempt proceeding.FSM v. Cheida, 7 FSM Intrm. 633, 640 & n.2 (Chk. 1996).

This criminal contempt action comes before the Court for resolution of pending motions. Defendant has filed the following eight motions: (1) Motion to Dismiss - Double Jeopardy; (2) Motion to Dismiss ) Collateral Estoppel; (3) Motion to Dismiss ) Succeeding Prosecution for Same Contempt; (4) Motion to Dismiss ) Statute of Limitations; (5) Motion to Dismiss ) Violation of Due Process; (6) Motion to Suppress; (7) Motion to Compel Disclosure of Certain Previous Convictions; and (8) Motion

In FSM Civil Action No. 1993-1024, the FSM Supreme Court found that Picho Cheida, administrator of the Hartman estate, had appropriated funds of the estate for his personal use. The Court entered judgment against Mr. Cheida on April 28, 1994 for $14,636.48, plus post-judgment interest. On May 5, 1994, the Court entered an order in aid of judgment in that case, which required Mr. Cheida to pay $175.00 each pay period to the government by allotment toward satisfaction of the judgment against him. Defendant was expressly forbidden from removing the allotment without prior court approval. This criminal contempt action is based on defendant's alleged failure to comply with an order of the Court enforcing that judgment.

After defendant fell behind on his payments, on August 21, 1995, State Justice Ombudsman and Court-appointed trustee Kerio Walliby filed a Verified Motion for Order to Show Cause. In that motion, he alleged that defendant had failed to comply with the Court's May 5, 1994 Order, and was in arrears on his payments by $1,123.34. The Court directed defendant to appear and show cause why he should not be found in contempt of the Court's May 5th Order.

the defendant knew of the order entered May 5, 1994 requiring him to pay $175.00 per pay period through payroll allotment, and of his obligation not to stop the allotment without court approval, and that the defendant had the ability to comply, but intentionally disobeyed or resisted and failed to pay the required amount.

Order (Sept. 8, 1995). The Court permitted Mr. Cheida to purge himself of contempt by paying the amount in arrears to either the State Justice Ombudsman or the Assistant Clerk of Courts by September 22, 1995. He was informed that if he failed to purge himself, he would be imprisoned until he paid his arrearages; however, his confinement would not exceed six months. The Court modified its May 5, 1994 Order by requiring that all future payments be made in cash directly to the Bank of the Federated States of Micronesia. Following issuance of the Court's September 8, 1995 Order, defendant apparently tendered the overdue sum.

Seven months later, on April 22, 1996, the State Justice Ombudsman filed a second Verified Motion for Order to Show Cause, alleging that defendant was again in arrears under the Court's modified May 5, 1994 Order, this time by $2,176.27. The Court noticed a hearing for May 28, 1996, and directed defendant to appear and to bring his pay stubs from September 22, 1995 forward. The Court's notice informed Mr. Cheida that "[i]f you are found in civil contempt you may be committed to jail until you comply with the order . . . ." Order (May 24, 1996).

On the date of the May 28, 1996 hearing, defendant filed an "Affidavit" and "Motion for Modification of Court's Order of May 5, 1994 (as Modified by the Order of September 8, 1995)." In these documents, defendant admitted that he was in arrears on his payments "at least $2,176.27" and that if "he had complied with the May 5, 1994 Order as modified, he would not be this far behind in meeting the payments." He further explained that he lost his job on March 15, 1996, and asked the Court to permit him to recommence his payments in June 1996, when he expected to be reemployed. He also offered to make lump sum payments if he received certain expected payments from other sources. After taking some testimony on May 28th, the Court continued its hearing to June 6, 1996.

According to defense counsel's August 14, 1996 Affidavit in Support of Recusal,1 provided as an attachment to defendant's Motion to Suppress, at some point during the pendency of the civil contempt action Judge Benson's law clerk communicated with the FSM Attorney General's office in connection with the possible filing of a criminal contempt complaint against the defendant. A June 3, 1996 facsimile from the law clerk to the FSM Attorney General's office, submitted with defense counsel's affidavit, suggests that there may also have been an earlier communication.

The Defendant expressed his willingness to abide by a Court order that would require him to turn over any and all wages, retainers, or compensation to the Court upon his receipt of any such sums. The Court would then make an equitable division of the receipt, using part of the funds received to reduce the outstanding indebtedness, and returning the balance to the Defendant.

Defendant shall turn over to the Justice Ombudsman, upon receipt, any and all funds received from any source identified in Defendant's Exhibit filed today, and endorse checks or drafts when necessary, to the Justice Ombudsman for deposit in a trust account. In addition, Defendant shall turn over any and all other funds he receives if such funds fall within the definition of wages, or gross revenue, as those terms are defined in Title 54 of the FSM Code.

Order (June 7, 1996). On the same day the Court issued that order, the Office of the Attorney General filed a criminal information, charging defendant with criminal contempt under 4 F.S.M.C. 119(1)(b) for his intentional disobedience or resistance to the trial court's May 5, 1994 Order, as modified on September 8, 1995 in FSM Civil Action No. 1993-1024. The information alleges in part that "[o]n March 15, 1996, Defendant Cheida had the ability to pay the full amount of the payments that he had not made between September 8, 1995 and March 15, 1996, but he did not pay any portion of the overdue amounts."

Defendant has filed five separate motions to dismiss the pending criminal action. These motions are based on: (1) the constitutional prohibition against double jeopardy; (2) the statutory prohibition against successive prosecution; (3) the common law doctrine of collateral estoppel; (4) operation of the statute of limitations; and (5) the government's alleged violation of defendant's right to due process.

Article IV, section 7 of the FSM Constitution provides that "a person may not . . . be twice put in jeopardy for the same offense." Defendant argues that the government's criminal information is based on the same offense previously adjudicated ) whether or not defendant has committed

contempt of the Court's May 4, 1995 Order, as modified by the September 8, 1995 Order. Defendant contends that this issue has already been addressed in the Court's hearings on the State Justice Ombudsman's two earlier Verified Motions for Orders to Show Cause.

The government responds that there can be no double jeopardy because the trial court's earlier two proceedings were for civil contempt, and the prohibition against double jeopardy only applies to a second criminal proceeding. Moreover, defendant has never been prosecuted for his failure to turn over his severance pay toward satisfaction of the judgment on or after March 15, 1996 ) when he received that payment.

Where the defendant has not yet been convicted of any crime, the protection against double jeopardy does not attach. FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 127-28 (Pon. 1995). This is the first time Mr. Cheida has been charged with criminal contempt for his alleged failure to comply with the Court's orders. Although defendant asserts that neither of the Court's orders on September 8, 1995 or June 7, 1996 indicated whether the Court was holding defendant in civil or criminal contempt, it is clear from the full record that the two previous contempt proceedings were in the nature of civil contempt. See Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 62, 65 (Pon. 1991) (explaining the distinction between civil and criminal contempt); Cheng Chia-W (I), 7 FSM Intrm. at 127-28 (because the FSM's double jeopardy rule is based on the United States rule, this Court may look to the law of the United States for guidance as to the rule's mechanical application); United States v. Hughey, 571 F.2d 111, 114-16 (2d Cir. 1979) (for purpose of resolving double jeopardy claim, court would look to the totality of the circumstances surrounding contempt sanction to determine whether defendant had been previously adjudged in civil or criminal contempt).

Civil and criminal sentences for the same contempt do not pose a double jeopardy problem. See Yates v. United States, 355 U.S. 66, 74, 78 S. Ct. 128, 133, 2 L. Ed. 2d 95, 102 (1957); United States v. Monteleone, 804 F.2d 1004, 1009 n.8 (7th Cir. 1986). Accordingly, defendant's motion to dismiss based on the prohibition against double jeopardy is denied.

Defendant's second motion to dismiss is based on the statutory prohibition against successive prosecutions. Title 4, section 119(2)(b) of the FSM Code provides that an accused party "shall have a . . . right not to be charged twice for the same contempt." Defendant argues that the government's information unlawfully charges him for the same contempt which has already been litigated ) violation of the Court's May 5, 1994 Order, as modified by the September 8, 1995 Order.

As discussed above, the issue of defendant's criminal contempt has not been previously litigated. The prior hearings have been in the nature of civil, rather than criminal, contempt proceedings. The government's June 7, 1996 information represents the first time defendant has been criminally "charged" with contempt. Accordingly, the government has not violated the prohibition set forth in 4 F.S.M.C. 119(2)(b). Defendant's motion to dismiss based on successive prosecution is denied.

Third, defendant argues that the government is collaterally estopped from pursuing this criminal action because the issue of whether he violated the May 5, 1994 Order has already been litigated twice, as a result of the State Justice Ombudsman's two previous motions for orders to show cause.

the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Mid-Pacific Constr. Co. v. Semes (II), 6 FSM Intrm. 180, 185 (Pon. 1993) (citing Restatement (Second) of Judgments § 27 (1982)).

Collateral estoppel does not bar this prosecution. First, the issue of defendant's criminal liability was neither raised nor decided in earlier contempt proceedings. Although under the FSM Code the intent which must be established to prove criminal contempt is no different from that required for civil contempt, the burden of proof applied in a criminal contempt proceeding is more stringent than that applied in a civil contempt proceeding. There is therefore no assurance that the result will be the same in both types of proceedings. Second, the government claims that it intends to base its proof on acts occurring after March 15, 1996, which were not at issue in the earlier contempt proceedings. Third, this is not a subsequent action between the same parties. Plaintiffs in Civil Action No. 1993-1024 litigated the issue of defendant's civil contempt, while the FSM government is now prosecuting defendant for criminal contempt. For these reasons, defendant's motion to dismiss based on collateral estoppel is denied.

Fourth, defendant contends that the government's information must be dismissed because the statute of limitations for criminal contempt has run. Defendant argues that under 4 F.S.M.C. 119(2)(b), a person charged with contempt has "a right to be charged within three months of the contempt," and the three-month statute of limitations has expired on violations of either the original May 5, 1994 Order, or the modified September 8, 1995 Order.

The government responds that under the May 5, 1994 Order, as modified, defendant had a continuing obligation to pay $175 each two weeks to the bank, and the government's criminal information is based on acts which occurred on or after March 15, 1996, the date on which defendant had the ability to pay the full amount he was in arrears on the May 5, 1994 Order, as modified. The government argues that to the extent its information appears to cover acts occurring more than three months before it was filed, the appropriate remedy is not to dismiss the information in its entirety, but to allow the FSM to base its conviction on only those acts that occurred within the permitted statutory time limitation.

After prosecution has been initiated, the Court may dismiss litigation if there is no probable cause to believe that a crime has been committed, or that defendant has committed it. FSM v. Mudong, 1 FSM Intrm. 135, 140 (Pon. 1982). Probable cause has been described as evidence giving a reasonable ground for suspicion, sufficiently strong to warrant a cautious person to believe that the accused is guilty of the offense. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985); Kosrae v. Paulino, 3 FSM Intrm. 273, 276 (Kos. S. Ct. Tr. 1988). The government's information is based in part on acts occurring within the statutory period of limitation under 4 F.S.M.C. 119(2)(b), and the government has presented probable cause to support its criminal action. Defendant's motion to dismiss on statute of limitations grounds is therefore denied.

Fifth and finally, defendant argues that the government's initiation and pursuit of the criminal charge against him violates his right to due process. Defendant contends that due process requires fairness and impartiality on the party of adjudicators, and in this case the Court and/or its staff actually encouraged initiation of the criminal investigation against him. Defendant complains that at the time of the Court's June 6, 1996 civil contempt hearing, a criminal contempt case was being prepared against him, yet the Court never informed him of that fact. The Court also never informed him that he

had a right to counsel and a right to remain silent, and that any testimony he gave might be used against him in a subsequent criminal proceeding. Defendant urges the Court to find that the actions of the Court and its personnel were prejudicial to his rights, and that this prejudice cannot be remedied in any way other than through dismissal of the criminal case.

Most of the issues raised by defendant's motion to dismiss on due process grounds have now been resolved through Judge Benson's recusal and the reassignment of this case to a judge whose impartiality has not been questioned. Any continuing prejudice to defendant's rights, which may have resulted from the manner in which this case has been handled, is more properly addressed in the context of defendant's motion to suppress. Defendant's motion to dismiss based on due process violations is denied.

The government has indicated that it intends to present as evidence in its case in chief certain affidavits, statements and testimony defendant gave at, or prepared in anticipation of, the Court's civil contempt hearings held on May 28, 1996 and June 6, 1996. Defendant has moved to suppress this evidence, arguing that it should be inadmissible in the pending criminal contempt proceeding because his constitutional rights were violated during the earlier civil contempt hearings. Specifically, defendant complains that although the Court had been in contact with the FSM Attorney General's office about a possible criminal contempt action against him, at no time during the May and June hearings was he ever informed of his right to counsel or his right against self-incrimination. His presence was required at the civil contempt hearings, and he was required to answer questions under oath, yet he was never advised of his rights as a criminal defendant.

In response, the government asserts that Mr. Cheida was in fact warned prior to the May 28, 1996 hearing of his right against self-incrimination, and that the Court had no statutory or constitutionally-mandated obligation to advise defendant of his rights in connection with a civil proceeding.

This Court has reviewed the May 28th transcript excerpts submitted by the government in opposition to defendant's motion to suppress. At that hearing, Judge Benson asked plaintiff's counsel a few questions about whether the pending case was in the nature of civil or criminal contempt, effectively putting defendant on notice that a future criminal contempt charge was a possibility. Judge Benson also raised the issue of self-incrimination. However, he did not plainly inform Mr. Cheida that he had a right to counsel and that anything he said could be used against him later in a criminal proceeding. The Court must therefore consider whether in the absence of such express warnings, defendant's testimony in the civil contempt action must be suppressed. The cases cited by the parties are not directly on point.

This Court has explained that U.S. law is an appropriate source of guidance in determining the scope of the protection afforded by the Constitution of the Federated States of Micronesia against compulsory self-incrimination. FSM v. Edward, 3 FSM Intrm. 224, 230 (Pon. 1987). It is generally accepted under U.S. law that the prosecution may use evidence acquired in a civil action in a subsequent criminal proceeding unless the defendant demonstrates that such use would violate his constitutional rights or depart from the proper administration of criminal justice. See United States v. Teyibo, 877 F. Supp. 846, 855 (S.D.N.Y. 1995) and sources cited therein.

In United States v. Kordel, 397 U.S. 1, 90 S. Ct. 763, 25 L. Ed. 2d 1 (1970), the U.S. Supreme Court declined to find that a corporate officer's due process rights had been violated by the prosecution's use of interrogatory responses, collected from the corporation in a nearly

contemporaneous civil condemnation proceeding, against the officer in a criminal case. The officer claimed that use of these responses violated his Fifth Amendment privilege against compulsory self-incrimination. In reaching its ruling, the court listed circumstances that may lead to a finding that a defendant's right to due process has been violated in sequential civil and criminal proceedings. These include situations in which: (1) the government pursued a civil action solely to obtain evidence for a criminal prosecution; (2) the government failed to advise the defendant during the civil proceeding that it is contemplating criminal prosecution; (3) the defendant was without counsel; (4) the defendant reasonably feared prejudice from pre-trial publicity or other unfair injury; or (5) other special circumstances suggest that the criminal prosecution is unconstitutional or improper. Id. at 11-12, 90 S. Ct. at 769-70, 25 L. Ed. 2d at 10. The court noted that none of the listed circumstances was present, and found no due process violation. See also Teyibo, 877 F. Supp. at 855-56 (citing Kordel).

Subsequently, in Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984), the U.S. Supreme Court considered whether a confession made to a probation officer should be suppressed as a compelled statement, where the defendant had an obligation to appear before his probation officer and answer questions truthfully. Defendant argued that the probation officer's failure to inform him of his privilege against self-incrimination barred use of his confession at trial. The court found that even though the probation officer was empowered to revoke the defendant's probation, and even though the probation officer reasonably expected that defendant's responses to certain questions might be incriminating,

[the probationer] was in no better position than the ordinary witness at a trial or before a grand jury who is subpoenaed, sworn to tell the truth, and obligated to answer on the pain of contempt, unless he invokes the privilege and shows that he faces a realistic threat of self-incrimination.

Id. at 427, 104 S. Ct. at 1142, 79 L. Ed. 2d at 419. The court noted that the fact that an investigation has focused on a suspect does not trigger the need for warnings in a non-custodial setting, and that the probationer's situation was not comparable to that of a suspect who is physically restrained and "painfully aware that he literally cannot escape a persistent custodial interrogator." Id. at 427-34, 104 S. Ct. at 1142-46, 79 L. Ed. 2d at 419-23. FSM law is not to the contrary.See Edward, 3 FSM Intrm. at 231.

Based on the reasoning in these cases, the Court finds that defendant's oral testimony at the May 28, 1996 and June 6, 1996 civil contempt hearings is admissible in this criminal action.2 Mr. Cheida was not "interrogated" in a custodial setting at the May 28, 1996 and June 6, 1996 civil contempt hearings; he was free to leave and did leave following each hearing. There is also no evidence that plaintiffs' civil contempt proceedings were conducted in whole or in part for the purpose of gathering information for the government to use in its subsequent criminal contempt action. Finally, the Court was not required to warn Mr. Cheida of his right to counsel before he gave testimony in the civil contempt proceedings. See Teyibo, 877 F. Supp. at 856-57 & n.7 (defendant's rights not violated where he voluntarily provided information without the assistance of counsel during civil proceedings, which was later used against him in criminal proceeding). Accordingly, defendant's motion to suppress is denied.

5. The name and address of any person whom the government may call as a witness together with the witness' statement and the record of any felony conviction of such proposed witness or any conviction, felony or otherwise, which involves dishonesty or false statement." In response, the government informed the defendant that none of its witnesses had felony convictions. It did not indicate whether its witnesses had any misdemeanor convictions involving dishonesty or false statement.

Defendant now moves the Court to compel the prosecution to disclose to the defense any prior convictions of its witnesses which involve dishonesty or false statement, regardless of whether these convictions were misdemeanors or felonies. In support, defendant cites FSM Criminal Rule 16(a)(1)(F), which requires the government to disclose any information which would "tend to negate the guilt of the defendant or mitigate the punishment," and Rule 609 of the FSM Rules of Evidence, which allows for impeachment of a witness using convictions involving dishonesty or false statement. Defendant further contends that he will be deprived of due process and equal protection of the laws if the government does not provide this information, because the government has access to the records of the national and state police force, to which defendant does not have equal access.

The government objects to discovery beyond that required by FSM Criminal Rule 16. It explains that the FSM does not have computerized records of convictions, and that defendant has made no showing that the information it seeks is not available to him directly from the national or state police.

(E) Prosecution Witnesses. Upon request of a defendant the government shall provide to the defendant the name and address of any person whom the prosecuting attorney intends to call as a witness together with the witness' relevant written or recorded statement, and the record of any felony convictions of such proposed witness.

(F) Material Favorable to Defendant. Upon request of a defendant the government shall provide to the defendant any material or information which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefor.

Rule 16(a)(1)(E) places no affirmative obligation on the government to provide defendant with information concerning misdemeanor offenses committed by its potential witnesses. Rule 16(a)(1)(F) also does not require the government to provide this information to defendant. Any prior misdemeanor convictions government witnesses may have involving dishonesty or false statement are relevant only to the witnesses' credibility; they have no bearing on defendant's actual guilt or innocence, or on the degree of any punishment. Finally, defendant has made no showing that the information he seeks is not available to him directly from the same sources to which the government itself would look. For these reasons, defendant's motion to compel disclosure is denied.

same day the government drafted its Motion to Compel, defendant filed and served his reciprocal disclosure of evidence. Accordingly, the government's motion to compel is denied as moot. Because there is no prejudice in leaving that motion on the record, defendant's motion to strike is denied.

2. Defendant's May 28, 1996 Affidavit and Motion to Amend are admissible under FSM v. Jonathan, 2 FSM Intrm. 189 (Kos. 1986). These pleadings were submitted to the trial court voluntarily, in connection with the civil contempt hearing held on that same date. The Court did not require or even request these submissions.