Cite as FSM v. Wainit,11 FSM Intrm. 411 (Pon. 2003)

[11 FSM Intrm. 411]

CRIMINAL CASE NO. 2002-500

Decided: March 11, 2003

APPEARANCES:

HEADNOTES

Appellate Review – Decisions Reviewable; Criminal Law and Procedure – Venue

An order granting or refusing a transfer of venue is not a final judgment and is not appealable. FSM v. Wainit, 11 FSM Intrm. 411, 412 (Pon. 2003).

Appellate Review – Stay; Criminal Law and Procedure – Venue

Since an order granting a change of venue is not appealable, no stay is warranted while the defendant seeks its review in the appellate division. FSM v. Wainit, 11 FSM Intrm. 411, 412 (Pon. 2003).

Criminal Law and Procedure – Venue

By statute, either a defendant or the government may petition the court for a change of venue for good cause. FSM v. Wainit, 11 FSM Intrm. 411, 413 (Pon. 2003).

[11 FSM Intrm. 412]

Criminal Law and Procedure – Venue

Apart from the rights conferred by 11 F.S.M.C. 106, there is no constitutional or statutory right to trial in the same state as the offense. FSM v. Wainit, 11 FSM Intrm. 411, 413 (Pon. 2003).

Criminal Law and Procedure – Venue

A criminal defendant may raise the issue of venue on any appeal from a final judgment should he be convicted. If he is acquitted, then he has suffered no prejudice. FSM v. Wainit, 11 FSM Intrm. 411, 413 (Pon. 2003).

Criminal Law and Procedure – Venue

A defendant's contention that he will suffer irreparable injury if he is forced to defend his case in a different venue is not persuasive. Any individual who employs private counsel to defend himself in a criminal case will incur the costs of defense, even if he is ultimately acquitted. FSM v. Wainit, 11 FSM Intrm. 411, 413 (Pon. 2003).

Criminal Law and Procedure

Logic dictates that certain events in the course of a criminal investigation and prosecution will involve ex parte communications with a judge. For example, giving advance notice of an impending search could defeat the purposes of the search where property permitted to be seized was located on the about-to-be searched premises. Similarly, giving a defendant notice of the filing of a criminal complaint or information prior to arrest could facilitate a defendant's avoidance of arrest were a defendant disinclined to cooperate with law enforcement. FSM v. Wainit, 11 FSM Intrm. 411, 413 (Pon. 2003).

COURT'S OPINION

MARTIN YINUG, Associate Justice:

By order entered on October 3, 2002, this court ordered the venue in this case changed from Chuuk, where is was assigned Criminal Case No. 2001-1519, to Pohnpei, where it was designated Criminal Case No. 2002-500. On October 11, 2002, defendant Tadashi Wainit ("Wainit") then filed his notice of appeal challenging the granting of the motion for change of venue. The notice of appeal at page 2 also recites that "[d]ue to the novel circumstances underlying this appeal, it is being filed concurrently with a Petition for Writ of Prohibition and/or Certiorari." Also on October 11, 2002, Wainit filed his motion to stay proceedings in this case pending disposition of the petition for writ of prohibition and/or certiorari with the appellate division. In that motion for stay he alleges that he will be irreparably harmed if he is required to go forward with his defense in Pohnpei, because of the additional costs involved in defending there. He urges that his right to present witnesses will be placed in jeopardy because of the expenses he will incur for the transportation, food, and lodging for those witnesses.

An order granting or refusing a transfer of venue is not a final judgment and is not appealable. United States v. French, 787 F. 2d 1381, 1384 (9th Cir. 1986); United States v. Garber, 413 F.2d 284, 285 (2d Cir. 1969); United States v. Foster, 296 F.2d 249, 251 (4th Cir. 1961); Semel v. United States, 158 F.2d 231, 232 (5th Cir. 1946). Since the order granting a change of venue is not appealable, no stay is warranted. In his reply to the FSM's response to his motion for stay, Wainit asserts that the issue presented is novel, because the motion to transfer venue in this instance is brought by the FSM, and not the defendant. Such a motion is expressly permitted under a 2001 amendment to the FSM venue statute, 11 F.S.M.C. 106, which provides in pertinent part at subsection (4) that "[e]ither a defendant or the Government may petition the court for a change of venue for good

[11 FSM Intrm. 413]

cause." Apart from the rights conferred by this statute, there is no constitutional or statutory right to trial in the same state. Further, Wainit does not address how the 2001 amendment to the venue statute goes to the question of appealability, and it is not apparent to the court how the fact that the motion for change of venue is brought by the FSM, as opposed to Wainit, changes the analysis leading to the conclusion that the order granting or denying such a motion is not an appealable final judgment. Wainit may, of course, raise the venue issue on any appeal from a final judgment should he be convicted. If he is acquitted, then he has suffered no prejudice.

Moreover, Wainit's contention that he will suffer irreparable injury if he is forced to defend this case in Pohnpei is not persuasive. Any individual who employs private counsel to defend himself in a criminal case will incur the costs of defense, even if he is ultimately acquitted. Wainit cannot be heard to complain about purported additional costs which may result from trying the case in Pohnpei, where that transfer resulted from allegations regarding the defendant's own conduct.

Accordingly, Wainit's motion to stay this case pending appeal is denied.

On October 2, 2002, Wainit filed his motion to reveal ex parte communications, in which he asserts that ex parte communications occurred between one FSM assistant attorney general and the court about the events occurring in Udot on September 6, 2002. In response, the FSM states that it assumes that the reference to ex parte communications relates to the filing in Chuuk of the criminal information and attendant motions in Criminal Action No. 2002-1501, as well as the FSM's motion for bond forfeiture and detention without bail in Criminal Action No. 2001-1519 (the designation for the instant case while it was pending in Chuuk), and which was also filed under seal. The bond forfeiture and detention motion recites that it was filed under seal to prevent the defendant from fleeing or inciting mob protest. The FSM indicates that copies of all of these submissions have now been provided to Wainit, and that other than communications relating to these filings, it is unaware of any other direct communications with the court where opposing counsel was not present. The FSM also states that it is unaware of any authority under which Wainit can seek to have the substance of such communications disclosed. The FSM urges that by their nature and practice, new criminal informations are ex parte.

Logic dictates that certain events in the course of a criminal investigation and prosecution will be ex parte. It is stating the obvious to say, for example, that giving advance notice of an impending search could defeat the purposes of the search where property permitted to be sized under 12 F.S.M.C. 304 was located on the about-to-be searched premises. Similarly, giving notice to a defendant of the filing of a criminal complaint or information prior to arrest could facilitate a defendant's avoidance of arrest were a defendant disinclined to cooperate with law enforcement. Wainit cites no authority which would entitle him to compel from the FSM a detailed description of communications of this type. But apart from the fact that Wainit has demonstrated no entitlement to the substance of such communications, the only ex parte communication beyond the written submissions themselves, copies of which have already been supplied to Wainit's counsel, was a phone call on or about September 9, 2002, requesting the issuance of the three arrest warrants for the defendants in Criminal Case No. 2002-1501 after counsel's recital under oath of the facts and charges in the information. Such a communication is of the type contemplated by the pre-arrest procedures set out in Title 12 of the FSM Code. No prejudice accrued to Wainit as a result.

Wainit's counsel will notify the court of the defendant's return to Chuuk from his current trip off-island for medical treatment. A final telephonic pre-trial conference will then be held for the purpose of scheduling any remaining pre-trial matters and determining a trial date.