Cite as FSM v. Jonas, 1 FSM Intrm. 231a. (Pon. 1982)
CRIMINAL ACTION NO. 1982-525
APPEARANCES:
| For the Plaintiff: | David R. Nevitt |
| Chief Litigator | |
| Federated States of Micronesia | |
| Ponape, Caroline Islands 96941 | |
| For the Defendant: | Maketo Robert |
| Public Defender | |
| State of Ponape | |
| Ponape, Caroline Islands 96941 |
The object in determining conditions of pretrial release is to assure the defendant=s presence at trial so that justice may be done while keeping in mind the presumption of innocence and permitting the defendant the maximum amount of pretrial freedom. The FSM Supreme Court should attempt to weigh the various forces likely to motivate a defendant to stay and face trial against those forces likely to impel him to leave. FSM Crim. R. 46(a)(2). FSM v. Jonas (I), 1 FSM Intrm. 231a, 233 (Pon. 1982).
When the highest prior bail was $1,500, imposition of bail in the amount of $10,000, on the basis of disputed and unsubstantiated government suggestions that the defendant has cash and assets available to him, would be unwarranted. FSM v. Jonas (I), 1 FSM Intrm. 231a, 236 (Pon. 1982).
Various charges against defendant Billy Jonas have been filed with this Court. These include theft of property, forgery of invoices and cash receipts, solicitation of others to commit similar crimes and conspiracy. The Government contends that Mr. Jonas, and three other co-defendants have realized some $40,000.00 in ill-gotten gains from their former employer, Mobil Oil Company, as a result of activities which are the subject of these criminal actions against them.
Billy Jonas was arrested and brought before the Honorable Carl Kohler, Trust Territory District Court Judge, acting pursuant to 12 F.S.M.C. 506 in the absence of any Justice of the Supreme Court of the Federated States of Micronesia on Ponape at that time. On October 29, 1982 Judge Kohler set cash bail in the amount of $10,000.00 and imposed various restrictions on Mr. Jonas in the event that Billy Jonas might be released upon bail. The three other defendants
arrested and charged as being involved in the same conspiracy were released on unsecured appearance bonds each in the amount of $1,000.00.
Defendant Billy Jonas remains in custody in the Ponape State Jail and now moves for modification of bail. I find myself in substantial agreement with the apparent reasoning and actions taken by Judge Kohler but for the reasons stated here, the amount of cash bail required is reduced to $1,500.00. Additional restrictions are imposed in the event the bail requirement is met. This opinion is filed pursuant to the requirements of Rule 46(a)(4) of this Court's Rules of Criminal Procedure.
Rule 46(a)(2) of the Court's Rules of Criminal Procedure instructs that, in determining conditions of release, the judicial officer shall take into account:
the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.
The object is to assure the presence of the defendant at trial so that justice may be done while keeping in mind the presumption of innocence and permitting the defendantthe maximum amount of pre-trial freedom. The Court should attempt to weigh the various forces likely to motivate a defendant to stay and face trial, against those forces likely to impel him to leave.
Examples may be useful in assisting an understanding of the pertinent considerations. Obviously, a defendant who has lived his entire life on Ponape, who speaks only Ponapean and whose family, friends, work, land and home are on Ponape would have to face grave charges indeed even to consider fleeing the island or the Federated States of Micronesia. On the other hand, a tourist just passing through might be tempted to hasten his departure by a few days to avoid even such a small charge as a traffic ticket.
The defendant here is of Palauan ancestry. Although he says he has lived on Ponape Island for some eight or nine years, he seems to have relatively few lasting connections. here. He is unmarried and no older members of his family live on Ponape. At the hearing on this motion, defendant indicated that he has two small daughters living on Ponape,but the degree of responsibility which he may feel toward them was not made clear. 1
Until the charges which are the basis of this litigation were levelled against him, Mr. Jonas was an employee of Mobil Oil Company, and was residing in a house furnished by Mobil Oil. He now has lost that job and
Mobil has asked him to vacate the house, He owns no land here and claims to have no substantial assets on Ponape. Despite his presence here for some eight or nine years, Mr. Jonas indicates that he speaks only a little Ponapean.
These facts suggest to the Court that Mr. Jonas has relatively few roots in Ponape which would furnish strong incentive for him to remain here in the face of adversity.
On the other side of the scale, Mr. Jonas seems to face rather serious adversity. He is charged with seven different counts of alleged violations. There is sufficient documentation in the Court file to confirm that the Government has not made those charges lightly. Moreover, the Government represents that Mr. Jonas is presently under probation for a previous conviction and, if convicted of the charges in this case, may face up to an additional four years of imprisonment for violation of his terms of probation.
Rule 46(a)(1) of the Rules of Criminal Procedure requires that, in determining the possibility of release prior to trial, the Court should release the defendant on his own recognizance unless the Court determines that such a release will not reasonably assure the presence of the defendant at future proceedings. Based upon the considerations discussed above, I do not believe release on the defendant's own recognizance or even other restrictions short of a cash bail requirement will reasonably assure that the defendant will remain in Ponape to face trial on these charges. Consequently, I agree with Judge Kohler that there is a need to impose a cash bail requirement.
Having said that, it nevertheless remains extraordinarily difficult here to determine an appropriate amount of cash bail to be required. The Government asserts that the defendant is engaged in business activities in Ponape but is unable to assist the Court in determining the value of the assets of those businesses, the profitability of the businesses or even their precise nature.
Defendant professes dire poverty. He says he has been without a job for the past two months and has found it difficult even to survive. He says that he has no bank account or savings account and no assets or accounts to his name.
In reviewing earlier cash bail requirements set by this Court, I find that our highest imposition of bail is $1,500.00. In this context, imposition of bail in the amount of $10,000.00 would be extraordinary. I do not find the Government's suggestion of the availability of cash to Mr. Jonas to be sufficiently substantiated to warrant such an extraordinarily high bail requirement.
Therefore, the amount of bail will be reduced to $1,500.00. This amount is intended to be sufficiently low so that the defendant, through friends and family, might find it possible to provide the required amount even if all he says about his financial condition is true. I also calculate $1,500.00 to be a high enough figure, when coupled with the added restrictions imposed here, to make it unlikely that the defendant will attempt to depart from Ponape even if there is truth to the Government's claim that Mr. Jonas has cash and assets available to him.
I have also reviewed the restrictions imposed upon Billy Jonas by the District Court Judge in the October 29 order, in the event that the defendant is released on bail. With one exception, these restrictions are hereby approved, adopted and continued with the modified bail. The exception is the paragraph 2.b. provision prohibiting Mr. Jonas from having contact with any other defendant. This restriction seems to impose a serious obstacle to defendant's preparation of his defense. In absence of advice to this Court by the Government of reasons requiring this restriction, that restriction is set aside.
The earlier order already restricted the defendant to Ponape Island. In addition, the defendant shall be prohibited from buying, obtaining, possessing, or using any ticket for air or sea transportation pending trial of this matter. if the defendant presently has in his possession any such ticket, that ticket shall immediately be turned over by him to the Clerk of Court as a condition of his release and shall be retained by the Clerk of Court until the completion of the trial and decision by this Court. Air Micronesia and Air Nauru and all shipping lines which carry shipments to and from Ponape shall be notified of this restriction of Mr. Jonas.
Further, defendant shall be prohibited from at any time using the causeway to Teketik Island or being on Teketik Island.
An order implementing this opinion is also now being issued.
So ordered this 12th day of November, 1982.
/s/ Edward C. King
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Chief Justice
Supreme Court of the Federated
States of Micronesia
Trial Division
Entered this 12th day of November, 1982.
/s/
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Chief Clerk of Court
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1.This question would not normally be raised but seems appropriate here in light of discrepancies in the information presented to the Court by Mr. Jonas. In contrast to his statement in Court that he has two daughters here, Mr. Jonas had earlier submitted his affidavit signed under oath stating that he has "a daughter in Ponape." (Emphasis added).