THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as FSM v. Zhong Yuan Fishery Co. ,
9 FSM Intrm. 351 (Kosrae 2000)

[9 FSM Intrm. 351]

THE FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

ZHONG YUAN FISHERY CO., LTD., MICRONESIA
FISHING VENTURE, INC. a/k/a PACIFIC FISHING
VENTURE, INC., and SAI SI,
Defendants.

CIVIL ACTION NO. 2000-2000

MEMORANDUM

Martin Yinug
Associate Justice

Decided:  March 13, 2000

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

For the Defendants:     Fredrick L. Ramp, Esq.
                                       P.O. Box 1480
                                       Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Criminal Law and Procedure ) Interrogation and Confession
     No FSM case determines that a corporation is a person for purposes of the privilege against self-incrimination found in article IV, section 7 of the FSM Constitution.  FSM v. Zhong Yuan Fishery Co., 9 FSM Intrm. 351, 352 (Kos. 2000).

Criminal Law and Procedure ) Interrogation and Confession
     Should the privilege against compulsory self-incrimination attach, it would be for the defendants to assert, not the FSM.  FSM v. Zhong Yuan Fishery Co., 9 FSM Intrm. 351, 353 (Kos. 2000).

Civil Procedure; Criminal Law and Procedure
     When the FSM moves for a stay of a civil case to preserve the defendants' rights in a related criminal case and the defendants oppose the motion and claim that they would suffer substantial prejudice from a delayed prosecution of the civil action and when the FSM had the prosecutorial

[9 FSM Intrm. 352]

discretion to file both the civil and criminal cases simultaneously, although there is nothing in the statute requiring that, the motion to stay will be denied and, in the absence of good cause, the civil case will go forward.  FSM v. Zhong Yuan Fishery Co., 9 FSM Intrm. 351, 353 (Kos. 2000).

*    *    *    *

COURT'S OPINION
MARTIN G. YINUG, Associate Justice:
     This memorandum explains the reasoning for the court's order of March 9, 2000, which denied the FSM's motion for stay of this case pending the resolution of a simultaneously filed criminal case based on the same allegations.  The March 9, 2000, order also denied the FSM's request for a protective order, except to the extent that the court found that the FSM need not provide the defendants with copies of certain Kosrae statutes, since the statutes are of public record.

     This case, Civil Action No. 2000-2000, and Criminal Action No. 2000-2500 were both filed on January 24, 2000.  The parties to the cases are the same; both cases are based on the same alleged conduct; and both allege violations of FSM fisheries law, 24 F.S.M.C. 501 et seq.  The civil action seeks civil penalties permitted under the statute, while the criminal action seeks the criminal penalties provided for by the same law.

     The FSM contends that the civil action should be stayed pending resolution of the criminal action because "the expanded scope of discovery permissible in the civil action would be thwarted by the defendants' rights against self-incrimination pursuant to Article IV, Section 7 of the FSM Constitution."  Motion for Stay of Civil Action Pending Resolution of Criminal Proceeding at 2.  The FSM further asserts that "[a] stay in the civil action is sought in order to preserve defendants' rights and at the same time allow the FSM to proceed with both the criminal prosecution and the civil action, as is its right, without being adversely affected in either action."  Id. The FSM concludes by noting that "[s]imilar fishing violations [sic] actions have proceeded in this manner in the past, and staying the civil action has proven to be the best way to preserve all parties' rights."  Id.  No citation to a specific instance where this practice has been employed is provided.

     Defendants object to any stay of the civil action.  They take the position that "[t]he act of filing this civil action forced each of the Defendants in the criminal action to answer allegations that they have violated FSM fishery laws and thus forced them to give evidence which may be used against them in the criminal action." Opp'n to Motion for Stay of Civil Action at 4.  The defendants note that the five causes of action in the civil action are identical to the five causes of action in the criminal action, and urge that their "right against self-incrimination has already been violated by the Government by filing this civil action."  Id.  Defendants also maintain that any delay in resolving the outstanding civil action would prejudice them because of the large amount of the pending civil claims.  These claims total $25,000,000, and the corporate defendants contend that they would be required to show this potential liability in their annual audits, which would hamper their ability to secure credit.  Defendants conclude that "[t]he stay requested, rather than an aid to the Defendants, would instead aid the Government by creating a shield to protect the Government against having to respond to discovery."  Id. at 6.

     Two of the defendants in this case are corporations, while the third is an individual.  No FSM case determines that a corporation is a person for purposes of the privilege against self-incrimination found in article IV, section 7 of the FSM Constitution, which provides that "[a] person may not be compelled to give evidence that may be used against him in a criminal case."  The United States Supreme Court, however, has held that a "purely personal" privilege, such as that of the right against

[9 FSM Intrm. 353]

compulsory self-incrimination, is not one that may be claimed by a corporation, since historically the purpose of the privilege has been to protect individuals.  First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 779 n.14, 98 S. Ct. 1407, 1416 n.14, 55 L. Ed. 2d 707, 717 n.14, reh'g denied, 438 U.S. 907, 98 S. Ct. 3126, 57 L. Ed. 2d 150 (1978).  The parties proceed on the assumption that all of the defendants are entitled to invoke this privilege, and the court will not decide this substantial point in the absence of briefing by the parties.  Suffice it to say that were the privilege to attach, it would be for the defendants to assert, not the FSM. The FSM's contention that a stay would preserve the defendants' rights is not a basis for the FSM's motion for stay where, as here, the defendants oppose the motion and claim that they would suffer substantial prejudice from a delayed prosecution of the civil action.

     Apart from these considerations, the FSM had the prosecutorial discretion to file both the civil and criminal cases simultaneously, although there is nothing under the court's reading of the national fisheries statute requiring this.  As a general principle, cases should proceed as expeditiously as possible through the trial division of this court.  Since this case has been filed, and in the absence of good cause, it should go forward.
                                                                                                                                                                                                                                                                                                           
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