Cite as In re Extradition of Jano, 6 FSM Intrm. 12 (App. 1993)

[6 FSM Intrm. 12]

In re the Extradition of MARTIN JANO.



Richard H. Benson
Associate Justice

Decided:  February 12, 1993

For the Appellant:     Marvin Hamilton, Esq.
                                    Office of the Public Defender
                                    P.O. Box 425
                                    Colonia, Yap  FM  96943

For the Appellee:      Michael Brady, Esq.
                                    Assistant Attorney General
                                    Office of the FSM Attorney General
                                    P.O. Box PS-105
                                    Palikir, Pohnpei  FM  96941

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     Extradition is neither a criminal nor a civil proceeding.  In re Extradition of Jano, 6 FSM Intrm. 12, 13 (App. 1993).

Attorney, Trial Counselor and Client; Extradition
     The FSM Attorney General's Office is not disqualified in an international extradition case where the accused is the plaintiff in a civil suit against one of its members because the Attorney General's office has no discretion in the matter. It did not initiate nor can it influence the course of the prosecution abroad, and the discretion of whether to extradite a citizen does not repose in the Attorney General's Office.  In re Extradition of Jano, 6 FSM Intrm. 12, 13-14 (App. 1993).

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RICHARD H. BENSON, Associate Justice:
     This case came before me on the motion of the appellant for an order disqualifying the FSM Attorney General's Office from appearing in this case, contending that a conflict of interest exists.

[6 FSM Intrm. 13]

The motion also seeks to have the trial court proceeding declared null and void because of the disqualification.

     The following are the facts appearing from representations of counsel:

     There is presently pending in the trial division of this court a civil action in which the appellant is plaintiff and Mr. Juergens, Chief of Litigation in the office of the FSM Attorney General is a defendant.

     The Assistant Attorney General who has appeared throughout these proceedings and whose supervisor is Mr. Juergens, came to the FSM on January 5, 1993.  He has no personal knowledge of the facts of the civil case and asserts that Mr. Juergens "is in no position to influence [the assistant's] handling of the case."

     In argument the appellant relies on cases in which a prosecutor's disqualification is at issue.  These cases point out a conflict may (or may be perceived) to influence the exercise of the discretion vested in a prosecutor.  The appellant states that the assistant, and the FSM Attorney General's Office would want the appellant off the island so he could not pursue his civil claims.  The appellant also states that since the Secretary of External Affairs may make the final decision, he may seek the advice of the office of the Attorney General.

     Extradition is neither a civil nor a criminal proceeding.  31A Am. Jur. 2d Extradition 1, at 752 (1989) ("cannot . . . be properly characterized as a criminal prosecution").  The cases available which deal with the question of disqualification arise in both civil cases and criminal cases.  See, e.g., People v. Clancy, 705 P.2d 347 (Cal. 1985) (civil) and People v. Hamilton, 756 P.2d 1348 (Cal. 1988) (criminal).  No cases were found or submitted which involve extradition.

     The civil and criminal cases however point out the principles that govern disqualification.  The issue is whether the circumstances are such that the prosecutor or the government lawyer would not be able to exercise discretion in an evenhanded manner.

     I conclude that the Assistant Attorney General and the office itself is not, in an extradition case, vested with discretion by which it could act to the prejudice of the appellant.  They had no part in the institution of criminal proceedings in Baltimore, Maryland.  They cannot influence the course of that prosecution by dismissal, plea agreement, trial, or otherwise.  They are not given the discretion granted a prosecutor of criminal cases or a government lawyer pursuing civil claims.

     Concerning the advice that the assistant or the office may give, upon his request, to the Secretary of External Affairs, I do not find that a basis for the disqualification sought.  The Agreement on Extradition, Mutual Assistance in Law Enforcement Matters and Penal Sanctions, one of several subsidiary agreements to the Compact of Free Association between the Federated States of Micronesia and the United States, provides:

Article XV
Extradition of Citizens or Nationals

     1.  No Signatory Government shall be bound to extradite its own citizens or nationals, but may grant extradition if, in its discretion, extradition is deemed proper.

[6 FSM Intrm. 14]

     2.  If the requested Government denies extradition solely on the basis of citizenship or nationality, it shall submit the case to its competent authorities for purposes of prosecution.

     First, the appellant's point is too speculative a base for disqualification. Second, while it may be true that the circumstance may come to pass, the discretion granted by article XV does not repose in the office of the Attorney General.

     The appellant has not demonstrated cause for disqualification.

     For the reasons stated the motion is denied.

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