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MARTIN G. YINUG, Associate Justice:
This comes before the court on (1) the defendant's Motion in Limine to Suppress Testimony and/or Documents, filed April 23, 2002 (government's opposition filed May 9, 2002); (2) the government's Motion in Limine No. 1, filed May 2, 2002 (defendant's opposition filed May 6, 2002, FSM's reply filed May 14, 2002); and (3) the defendant's Motion for Protective Order and to Suppress Evidence, filed May 15, 2002. Argument was heard on the first two motions on May 16, 2002. The government filed its opposition to the third motion on May 20, 2002, and the defendant filed his reply on May 22, 2002. All three motions are now submitted for decision.
I. Defendant's Motion in Limine
The defendant, Tadashi Wainit, seeks to suppress the introduction at trial of any testimony or documents that relate to his conduct in regard to the Chuuk state election held the same day as the national election. The grounds for this request are that these criminal charges all derive from Wainit's alleged conduct in relation to the March 6, 2001 national elections; Wainit is charged only with violations of national law in relation to the national elections, not the state election; and the general principle that other acts cannot be used as evidence to prove a defendant committed the act for which he is charged. Wainit also seeks to suppress, any testimony about, or the introduction of a letter allegedly from him that was mentioned in the criminal information and attached affidavits. The grounds for this request are that the government has not produced the letter, it may not exist, the government is trying to criminalize free speech without stating what the alleged letter actually said, and the alleged letter is hearsay.
A. State Election Matters
Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." FSM Evid. R. 404(b). Such evidence, however, is admissible "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id.
The criminal information, in general, alleges that Wainit committed various criminal acts to support the candidates endorsed by the Faichuk Commission. Faichuk Commission-endorsed candidates ran in both the state and national March 6, 2001 elections. The acts Wainit is alleged to have
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committed were to further the election of all the endorsed candidates although he is charged only in relation to the national elections.
The government may therefore introduce evidence of acts in relation to the March 6, 2001 Chuuk state election so long as those acts are relevant and are evidence "of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" in relation to the national election offenses charged in the information. Wainit's motion to suppress is therefore denied to that extent.
B. The Letter
The information and an attached affidavit refer to a letter, allegedly written by Wainit, that the government has so far been unable to produce. Wainit seeks suppression of any evidence or testimony related to this alleged letter.
If this letter does exist and is from Wainit, the evidence rules would define it as non-hearsay) an admission by a party-opponent. FSM Evid. R. 801(d)(2). And if Wainit were not to testify on his own behalf, as is his right, it could also be admissible under the hearsay exception for statements against interest when the declarant is unavailable to testify. FSM Evid. R. 804(b)(3). Either way, if produced and properly authenticated, the letter itself would be admissible evidence. (The government also contends that since the letter was written by the Mayor of Udot it must be a public document and thus admissible under the hearsay exception for public documents. But merely because a person who holds a public office creates a document does not necessarily make that document a public record. This ground, without more, is inapplicable.)
The letter itself has not been produced and, even if it exists, may not be available for trial. Production of the original letter, although preferable, is not absolutely required. Other evidence of the letter's contents could be admissible if all originals have been lost or destroyed (unless the proponent, the government, destroyed them in bad faith), or if no original can be obtained by any available judicial process or procedure, or if the original is under the control of the party against whom it is offered (Wainit) and he does not produce the original, or if it is not closely related to a controlling issue. FSM Evid. R. 1004. Since the letter appears to be closely related to a controlling issue, the government must show, in the absence of the original letter, that one of the other three situations applies before it can introduce evidence of the letter's contents without producing a copy of the letter. If the government can get past this hurdle, it may then try to prove the letter's contents by the testimony of witnesses who have read it.
Wainit's motion to suppress any reference or evidence of the alleged letter is accordingly denied to the extent outlined above.
II. Government's Motion in Limine
Wainit wants to call the State Election Director as a witness to testify about state election procedures, allowable procedures for state election campaigns, and the state election results. The government seeks to bar this testimony on the ground that the government has not charged Wainit with violating laws regarding Chuuk state elections and is not seeking to prove that Wainit's actions actually affected the outcome of any election. The government also seeks to bar Wainit from asserting a retaliation defense. The grounds for barring the retaliation defense are that the government denies that its intention in bringing this case was retaliatory; contends that there is clear evidence of Wainit's criminal conduct and that it thus had a duty to prosecute; asserts that the only clear issue before the court is whether Wainit engaged in criminal conduct; and contends that Wainit is not in a position to
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raise the issue at trial in this criminal proceeding. The government also argues that Wainit's stance is that any prosecution of Wainit after he (successfully) sued the government in an unrelated civil case is retaliation.
A. State Election Director
Wainit contends that he wants to call the State Election Director as a witness to testify about state election procedures, allowable procedures for state election campaigns, and the state election results only if the government is allowed to introduce evidence about the March 6, 2001 state election, and that if it is not, it will not be necessary to call this witness. That is, if the government is allowed to introduce any evidence concerning the state election, he also ought to be allowed to do so too.
As discussed above, the government's ability to introduce evidence of Wainit's conduct in relation to the March 6, 2001 state election is restricted to "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" in connection with the charges regarding the March 6, 2001 national elections. As such, testimony about the state election results and state election procedures is clearly irrelevant, and is thus barred. The government's motion is granted to that extent. Although it is difficult at this point to see how, testimony concerning allowable procedures for state election campaigns may have some bearing on the evidence the government is allowed to introduce. The State Election Director's evidence is therefore restricted to relevant evidence of which the Director has first-hand knowledge and which is within the scope of whatever evidence the prosecution introduces concerning the state election during the government's case-in-chief.
B. Wainit's Retaliation Defense
Wainit seeks to raise retaliation as a defense. He asserts that this prosecution is in retaliation for Udot Municipality's successful lawsuit against the national government (and others) in Udot Municipality v. FSM, 10 FSM Intrm. 354 (Chk. 2001), although he notes that the national government appealed only the attorney's fee award portion of that judgment. Wainit contends that this prosecution violates his right to equal protection of the laws as guaranteed by the FSM Constitution. Since this equal protection issue has not been raised before in the FSM, Wainit consulted U.S. law. He states that
"a violation may be established where the accused is able to show that other persons similarly situated have not generally been prosecuted, that the alleged discrimination was in circumstances intentional or purposeful, and that the accused's selection for prosecution was based on some arbitrary or invidious classification, such as race, religion or national origin."
Opp'n to Motion at 3 (May 6, 2002) (quoting 21A Am. Jur. 2d Criminal Law § 645, at 51 (1981)).
Since the equal protection provisions of the FSM Constitution are in large part derived from those in the U.S. Constitution, see, e.g., FSM v. Tipen, 1 FSM Intrm. 79, 83 (Pon. 1982) (in developing the Constitution's Declaration of Rights, the Constitutional Convention drew almost exclusively upon constitutional principles under U.S. law), the court will analyze this issue assuming that these elements effectively define an equal protection claim of discriminatory, selective, or retaliatory prosecution made under the FSM Constitution. The elements to an equal protection claim of discriminatory or selective enforcement are thus) other similarly situated persons who generally have not been prosecuted; the defendant was intentionally or purposefully singled out for prosecution; and the prosecution was based on an arbitrary or invidious classification. See United States v. Saade, 652 F.2d 1126, 1135 (1st Cir. 1981).
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Wainit asserts that no one else has ever been prosecuted for the offenses that he is alleged to have committed; that he was purposefully singled out for prosecution because the municipality of which he is mayor had successfully sued the national government; and that the invidious classification involved is those who claim to exercise the right of free speech and the right to seek redress in the courts.
The national government acknowledges that it has not previously prosecuted anyone for offenses similar to those for which Wainit is charged, but asserts that Wainit cannot claim discrimination just because he is the first to be prosecuted in this young nation's history. (The court notes someone has to be first.) Wainit has not identified any persons similarly situated to him that the government could have prosecuted, but has failed to. This Wainit must do if he is to make out selective prosecution equal protection claim. See, e.g., United States v. Bassford, 812 F.2d 16, 20 (1st Cir. 1987); Tracey v. United States, 739 F.2d 679, 683 (1st Cir. 1984).
Furthermore, Wainit does not appear to be the victim of an invidious classification. The Constitution's Declaration of Rights provides that: "Equal protection of the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language, or social status." FSM Const. art. IV, § 4. Discrimination on the basis of sex, race, ancestry, national origin, language, or social status would thus involve an invidious classification. Wainit does not claim he was selected for prosecution on one of these bases or something similar. Wainit has not shown that his prosecution is based on an invidious classification.
Nor does Wainit claim the prosecution is an attempt to prevent the exercise of constitutional rights. Wainit instead claims that the prosecution is punishment (or vindictiveness) for Udot Municipality's being a successful litigant. But it is difficult to see that when the FSM appealed only the attorney fee award portion of the judgment that Wainit alleges caused the FSM to prosecute him.
This court has long recognized that prosecuting attorneys have wide discretion in determining whether to prosecute, and a prosecutor's decision whether to prosecute must be overruled only in the most extraordinary circumstances, such as vindictiveness, impermissible discrimination, or an attempt to prevent the exercise of constitutional rights. Nix v. Ehmes, 1 FSM Intrm. 114, 123-25 (Pon. 1982); see also FSM v. Mudong, 1 FSM Intrm. 135, 140 (Pon. 1982) (decision to initiate, continue, or terminate a criminal prosecution, with limited exceptions, is within prosecutor's discretion). "Absent evidence to the contrary, a decision to prosecute a particular person is presumed to be motivated solely by proper considerations." 21A Am. Jur. 2d Criminal Law § 984 (rev. ed. 1998); see also Tracey, 739 F.2d at 682 (courts should presume prosecution pursued in good faith execution of the law). "In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present 'clear evidence to the contrary.'" United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1486, 134 L. Ed. 2d 687, 698 (1996) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1, 6, 71 L. Ed. 131, 143 (1926)).
To overcome this presumption, Wainit has a heavy burden to establish prima facie the elements of an impermissible selective prosecution so as to shift the burden to the government "to demonstrate that the prosecution was not premised on an invidious objective." Saade, 652 F.2d at 1135. He has not done so. Nor has he presented the "clear evidence to the contrary" that would show that this prosecution violates his right to equal protection (is impermissible discrimination) and that would entitle
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him to a dismissal. The government's motion in limine as to Wainit's retaliation defense is therefore granted.
III. Defendant's Motion to Suppress and for a Protective Order
Pursuant to a search warrant issued and executed on May 14, 2002, the government searched Wainit's office at T & S Mart and seized four file folders of documents and 22 computer disks. These items were returned to Wainit on May 17, 2002.
1. Discovery Deadline
Wainit seeks to suppress the introduction of any evidence the government acquired as the result of this search. The grounds for the motion are that, by the parties' stipulation and court order, the deadline for discovery requests was April 30, 2002; that the government could have requested discovery under Rule 16 and it did not; that the search was a means of discovery after the cutoff date; and that no showing was made that it was necessary to conduct discovery after the cutoff date. Wainit further contends that much of the information in the file folders and that most, if not all, of the information on the computer disks was beyond the scope of the search warrant, which was limited to information "relating to the March 2001 national elections and/or Udot Municipality boat and generator rentals that may exist on the premises of T & S Mart." Wainit also contends that the government seized one document from Wainit's desk that was not listed on the return; that the return was not sufficiently detailed, listing only the file folders and not the documents in them; and that the government violated a stipulation between the parties that the computer disks were to be taken to the FSM Supreme Court after their seizure.
Wainit does not contend that the search warrant was issued without probable cause. Nor does he contend that its scope was overly broad. He acknowledges that the search warrant's scope was narrow, but contends that much of what was seized was outside of the warrant's scope.
Under Rule 16, the government can request discovery of a defendant in a criminal case in only three limited instances. The government can ask the nature of any defense which the defendant "intends to use at trial and the name and address of any person whom the defendant intends to call in support thereof." FSM Crim. R. 16(b)(1)(C). If, and only if, the defendant has already requested discovery under Rule 16(a)(1)(C) or (D), then the government can ask "to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof," which are within the defendant's possession, custody or control "and which the defendant intends to introduce as evidence in chief at the trial," FSM Crim. R. 16(b)(1)(A), and it can also ask discovery of reports of scientific tests or experiments done which the defendant intends to introduce as evidence in chief at trial or which a witness the defendant intends to call will testify about, FSM Crim. R. 16(b)(1)(B).
Wainit contends that the government could have requested discovery of the items seized and failed to do so before the discovery cutoff date and that this search was an attempt to circumvent that. However, all the evidence that the government is entitled to request discovery of, is evidence that Wainit intends to introduce at trial, which presumably would tend to be exculpatory evidence. What the government sought by search warrant is, presumably, inculpatory evidence) evidence that a criminal defendant would not on his own introduce at trial and thus evidence that the government cannot obtain through discovery.
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This is consistent with the reasoning behind Rule 16. The FSM Criminal Rule 16 is similar to that in the United States federal rules. In the United States, the government's right to discovery under its Rule 16(b) was, in part, limited due to constitutional concerns about an accused's right to protection against self-incrimination. 3 Charles Alan Wright, Federal Practice and Procedure § 256 (3d ed. 2000). The FSM Constitution contains a protection against self-incrimination that is similar to that in the United States. "A person may not be compelled to give evidence that may be used against him in a criminal case . . . ." FSM Const. art. IV, § 7. The similar FSM Rule 16(b) thus addresses similar constitutional concerns here.
Another reason for limiting the government's right to discovery was "the many other means the government has for obtaining needed information." 3 Wright, supra, § 255, at 160. One of these means is the search warrant. Frequently, a search warrant is used at the start of an investigation before charges are brought. But no statute, rule, legal principle, or constitutional provision bars its use at a later stage in the proceeding. Wainit acknowledged that he found no cases that placed such limitations on search warrants. Neither the FSM Code, Title 12, chapter 3 nor Criminal Procedure Rule 41, both of which concern the issuance of search warrants, contain any such limitation either. The less frequent use of search warrants after a prosecution has started may well be due to the government's expectation that once an accused has been charged, arraigned, and the proceeding progressed to the pretrial motion stage, any further evidence that it might have been able to seize by search warrant would have long since disappeared.
Wainit has not cited any legal authority that bars the issuance or use of a search warrant at this stage of a criminal proceeding. He has based his argument on Criminal Rule 16(b) and the assumption that a search warrant constituted discovery under the rule. But Rule 16(b) only concerns the limited amount of information that the government may, in very limited circumstances, seek by discovery. It is not concerned with what the government may seek to obtain through the use of a search warrant) search warrants are not "discovery." The government's ability to seek a search warrant was thus also not subject to the agreed discovery cutoff date adopted in the court order.
The court has not found any legal authority that would bar the issuance of an otherwise proper search warrant at this point in a criminal proceeding. This portion of the motion to suppress is accordingly denied.
2. Inventory on Search Warrant Return
Wainit also asks that all of the documents in the four file folders be suppressed because the police did not provide an adequate inventory of the items seized. Wainit contends that the warrant inventory was insufficient as it only listed the four file folders and not the individual documents in the folders and asserts that this is an inadequate chain of custody that would create disputes that any documents that the government tried to introduce at trial were actually found in these folders.
The search warrant inventory return listed "Four filing folders;" a brown one entitled or labeled "Mayor's Correspondence to Udot Community," a yellow one labeled "Boat delinquent Notice," a blue one labeled "Fishing Project Agreement," and a red one labeled "Fishing Project Application." Wainit contends that, since each document in the file folders was not listed, the file folders' contents should be suppressed in their entirety. The government replies that the file folders contained about 600 pages of documents and that it would be unreasonable to require its officers to list on the inventory every document in the folders.
Persons executing search warrants are required to promptly file a return with an inventory of the property seized. 12 F.S.M.C. 307(4); FSM Crim. R. 41(d). The court agrees that in light of this prompt
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filing requirement it would be unreasonable to expect the government's inventory to list every document when there are numerous documents. Cf. United States v. Birrell, 269 F. Supp. 716, 722 (S.D.N.Y. 1967) (document-by-document inventory of over 20 filing cabinets would not seem to be called for even under extreme interpretation of Rule 41(d)) (construing U.S. Criminal Rule 41(d)); but see United States v. Zovluck, 274 F. Supp. 385, 391 (S.D.N.Y. 1967) (inventory description of "one mailbag of records" is inadequate; government ordered to provide inventory of each record by date and general nature). This is particularly so when Wainit has had the documents returned to him fairly promptly. Cf. In re Searches of Semtex Indus. Corp., 876 F. Supp. 426, 430 (E.D.N.Y. 1995) (defendant's "access to the records . . . obviates the need for a more detailed inventory"). Generally, the failure to promptly file a return with an inventory is a ministerial violation which does not void an otherwise valid search in the absence of a showing of prejudice. See, e.g., United States v. Bassford, 601 F. Supp. 1324, 1332 (D. Me. 1985) (that search warrant inventory not completed in defendant's presence does not, absent the showing of prejudice, void otherwise valid search, as prevailing view is that such provisions are ministerial only), aff'd, 812 F.2d 16 (1st Cir. 1987). This is because "[t]he ostensible purpose of the inventory requirement . . . is to enable the Court to determine)on the face of the warrant, return and inventory)whether the seizure was properly limited to the property identified in the warrant." Birrell, 269 F. Supp. at 721.
In this case, the return was promptly filed, but the written inventory, completed on the premises and in the presence of one of the defendant's employees, was not as detailed as Wainit would like. The inventory did list how each file folder was labeled, and thus presumably accurately described the nature of the documents contained within the seized folders, but it did not list each document in the folders. Wainit has not made any showing of prejudice from this lack of detail on the level he desires. He has only claimed that this may cause a chain of custody problem if the government tries to introduce at trial some of the documents in the file folders. This is not enough to void an otherwise valid search of the T & S Mart premises. If the inventory were found to be inadequate, the most likely remedy would be an order for the government to file a more detailed inventory, not suppression. See Zovluck, 274 F. Supp. at 391.
Wainit also contends that one of the officers conducting the search picked up a document off the top of his desk, which the affidavit of his employee described as "a status report on the payment of boat rentals," read the document, and put it in one of the four seized file folders, and that this document is not listed on the inventory. The government denies that this took place. If it did take place, perhaps the government agent, noticing the subject matter, put it into the corresponding file folder, thinking that it came from there or belonged there. In either case, its omission from the inventory would seem inadvertent, which, in itself, would not be grounds to suppress the document. See United States v. Hooker, 418 F. Supp. 476, 483-84 (M.D. Pa. 1976) (failure of government agent to list item on inventory in accordance with Rule 41(d) would not require suppression of that item as evidence where omission was inadvertent and no prejudice resulted to the defendant), aff'd without
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op., 547 F.2d 1165 (3d Cir. 1977).
3. Handling of Computer Disks
Wainit also complains that the seized computer disks were not taken to the FSM Supreme Court for safe-keeping. The government counters that it took the disks to an office where a computer could read the disks' contents because the hard drive on the computer at the T & S Mart office was not functioning so they could not be read there. Rule 41 only requires that a return be made promptly and be accompanied by a written inventory, not that the property itself be brought before the court. United States v. Acavino, 467 F. Supp. 284, 288 (E.D. Pa. 1979) (failure to follow more exacting command of warrant to bring property before magistrate did not void valid search). This is not a ground to suppress the computer disks in their entirety.
Accordingly, Wainit's motion to suppress all the evidence seized in the May 14, 2002 search of T& S Mart is denied.
B. Protective Order
Wainit also asks that if the fruits of the search warrant are not suppressed in their entirety then a protective order should be issued covering all items not relevant to the March 2001 national elections and thus outside the warrant's scope. He contends that many of the documents in the file folders are outside of the search warrant's scope, in particular, the correspondence file contains letters going back to 1991. Wainit also contends that the computer disks contained all financial data concerning Udot Municipality, and as such consisted primarily, if not totally, of material outside the search warrant's scope. Wainit asks that the court inspect each document and each item on the disks and rule on their relevance and admissibility.
That is not necessary at this point. There is no indication at this time that the government intends to offer any of them in evidence. The court also notes that anything outside the search warrant's scope is not likely to be relevant to this prosecution and thus not admissible at trial and is also not likely to be offered. Be that as it may, Wainit is still entitled to a protective order barring the admission of any of the seized items that were outside the warrant's scope. Therefore the prosecution may not introduce as evidence at trial any items it seized during the May 14, 2002 search of T & S Mart that do not relate "to the March 2001 national elections and/or Udot Municipality boat and generator rentals."
The government may introduce evidence of acts in relation to the March 6, 2001 Chuuk state election so long as those acts are relevant and are evidence of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in relation to the national election offenses charged in the information. The government may try to prove the letter's contents by the testimony of witnesses who have read it if the government can satisfy one of the conditions in FSM Evidence Rule 1004.
Wainit may not elicit testimony from the State Election Director about the state election held on March 6, 2001, except for any relevant evidence of which the Director has first-hand knowledge and which is within the scope of evidence the prosecution has introduced concerning the state election during its case-in-chief. Wainit, not having shown that he qualifies to present such a defense, may not
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present an equal protection claim or retaliation defense. The government may not introduce as evidence at trial any items it seized during the search of T & S Mart on May 14, 2002, that do not relate "to the March 2001 national elections and/or Udot Municipality boat and generator rentals."
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