FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Wainit
11 FSM Intrm. 186 (Chk. 2002)

[11 FSM Intrm. 186]

FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
TADASHI WAINIT,
Defendant.
 
CRIMINAL CASE NO. 2001-1519
 
ORDER AND MEMORANDUM OF LAW
 
Martin G. Yinug
Associate Justice
 
Hearing: September 6, 10, 2002
 
Decided: October 4, 2002

APPEARANCES:

For the Plaintiff:                       Catherine Leilani Wiehe, Esq.
                                                  Assistant Attorney General
                                                  FSM Department of Justice
                                                  P.O. Box PS-105
                                                  Palikir, Pohnpei FM 96941
 
For the Defendant:                 Stephen V. Finnen, Esq.
                                                 Law Offices of Saimon & Associates
                                                 P.O. Box 1450
                                                 Kolonia, Pohnpei FM 96941

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[11 FSM Intrm. 187]

HEADNOTES

Criminal Law and Procedure) Discovery
     If, before or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection, or discovers additional witnesses or defenses, that party must promptly notify the other party or that other partys attorney or the court of its existence. FSM v. Wainit, 11 FSM Intrm. 186, 189 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     The rules contemplate that additional evidence and material might be discovered after the initial disclosure and prior to or even during trial that will need to be disclosed before being used at trial. The rules do not prohibit either side from finding more evidence for use at trial. Such late disclosure may be necessary for the just determination of a criminal proceeding. FSM v. Wainit, 11 FSM Intrm. 186, 189-90 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     While it is understandable that the government may not want to include someone as a witness until it has had the chance to interview that person to see what their testimony might be, this does not override Rule 16(c)s prompt notification requirement. FSM v. Wainit, 11 FSM Intrm. 186, 190 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     If the government feels that disclosing material to a defendant would jeopardize other pending investigations before they were completed, it can comply with Rule 16(c)s prompt disclosure requirement and address its legitimate concerns over a pending investigations confidentiality by notifying the court. Such a notification would be by a written ex parte motion for a protective order to be viewed by the judge alone in camera. The movants burden would be to make a sufficient showing that a protective order is needed. FSM v. Wainit, 11 FSM Intrm. 186, 190 & n.1 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     When rather than seek a protective order, the government has deliberately chosen not to disclose the material to the defendant (and to the court) until it felt that its other investigation would not be jeopardized, some sanction must be imposed in such circumstances. FSM v. Wainit, 11 FSM Intrm. 186, 190 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
      When it has been brought to the courts attention that a party has failed to comply with Rule 16, the court may order that party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. FSM v. Wainit, 11 FSM Intrm. 186, 190 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     The preferred remedy when the government makes a late disclosure of evidence is to offer the defendant a continuance to prepare to meet the additional evidence. FSM v. Wainit, 11 FSM Intrm. 186, 190 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     A court should impose the least severe sanction that will accomplish the desired result of prompt and full compliance with the courts discovery orders and Rule 16(c). In exercising its discretion to fashion the appropriate remedy, the court should take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that

[11 FSM Intrm. 188]

prejudice by a continuance, and any other relevant circumstances. These factors must be weighed even where there is a clear discovery order. FSM v. Wainit, 11 FSM Intrm. 186, 190-91 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     It can be an abuse of discretion to exclude evidence, instead of granting continuance, when the late disclosure of evidence was inadvertent. FSM v. Wainit, 11 FSM Intrm. 186, 191 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     Less drastic remedies, such as a continuance are proper instead of suppression when the governments discovery violations are not in bad faith. FSM v. Wainit, 11 FSM Intrm. 186, 191 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     Even when the government has not acted in bad faith, and although a continuance may normally be the most desirable remedy, a court may still properly suppress late-disclosed evidence for prophylactic purposes. FSM v. Wainit, 11 FSM Intrm. 186, 191 (Chk. 2002).
 
Criminal Law and Procedure ) Discovery
     Late-disclosed evidence may be suppressed for use in the governments case-in-chief, but allowed for use in rebuttal. FSM v. Wainit, 11 FSM Intrm. 186, 191 (Chk. 2002).
 
Criminal Law and Procedure ) Speedy Trial
     When only ten months have passed since the defendant was charged with twelve counts and about 8 months since his initial appearance ) not enough time has elapsed for speedy trial concerns to be implicated in a complex case, especially when trial seems imminent. FSM v. Wainit, 11 FSM Intrm. 186, 191 (Chk. 2002).
 
Criminal Law and Procedure ) Speedy Trial
     The time that elapses between the alleged offenses and the filing of charges is not to be considered when determining whether a defendant has been denied a speedy trial. FSM v. Wainit, 11 FSM Intrm. 186, 191 (Chk. 2002).

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COURTS OPINION

MARTIN G. YINUG, Associate Justice:

     On September 4, 2002, the defendant, Tadashi Wainit, filed an opposition to the governments first supplemental disclosure and moved to exclude the witnesses and documents listed in the disclosure and also moved for a speedy trial. On September 5, 2002, the government filed its opposition which included a copy of its First Supplemental Disclosure of Witnesses and Documents. On September 6, 2002, the government filed a Second Supplemental Disclosure of Witnesses and Documents. On the same day, Wainit filed a motion to exclude all evidence and witnesses listed in this disclosure. The government apparently chose not to file a response to the second motion, but is instead relying on its opposition to the first motion. On September 10, 2002, Wainit filed a supplement to his earlier motions. There has been no response to this filing either.

I.

     The information in this case was filed on December 4, 2001, charging Wainit with criminal

[11 FSM Intrm. 189]

offenses that allegedly took place in and before March, 2001. Wainit made his initial appearance on January 15, 2002. On April 19, 2002, the parties agreed to a discovery schedule, which was modified and made an order of the court on April 22, 2002. The government sought, and on its second application, was granted a search warrant for Wainits business premises for certain evidence in this case. The search took place on May 14, 2002. On June 6, 2002, the court ruled on the various motions arising from that search and granted Wainit a protective order that barred introducing "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." FSM v. Wainit, 11 FSM Intrm. 1, 13 (Chk. 2002). By order, entered June 27, 2002, trial was set, as agreed by the parties, for September 9, 2002, and the government was ordered to

provide the defendant any documents that it seized pursuant to the search warrant it executed on the premises of T & S Mart, Weno, Chuuk, on May 14, 2002, that it would have been required to provide to the defendant pursuant to his Rule 16 Request for Disclosure of Evidence, filed on January 28, 2002, if it had been in possession of those documents before the discovery cutoff date.

This order imposed no greater (and no lesser) duty on the government than the continuing duty to disclose imposed by the rules, which provide that:

     If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, or discovers additional witnesses or defenses, such party shall promptly notify the other party or that other partys attorney or the court of the existence of the additional evidence, material, witness or defense.

FSM Crim. R. 16(c).

II.

     On August 28, 2002, the government disclosed to Wainit that it intended to use as evidence 46 additional witnesses and nine documents. The September 6th supplemental disclosure added one more witness and three more documents.

     Wainit contends that these documents and witnesses should be excluded because they were disclosed after the discovery cutoff, they were not promptly disclosed when the prosecution knew of them, and the defense was thus unable to prepare for them, and that his right to a speedy trial would be violated if there was a continuance to allow him to prepare to defend against this evidence. He also contends that, as a result of the protective order, this evidence cannot be admitted in any other case as well.

     The government contends that because of various illnesses, the weather conditions in Chuuk on and after July 1, 2002 which prevented travel in the Lagoon, and the unavailability of witnesses because of these conditions, its compliance with the June 27th order and with Rule 16 was prompt. It further contends that it did not disclose certain material earlier because it would have jeopardized its investigation into other potential offenses which (in the governments view) that evidence indicates that the defendant may also have committed.

     These new witnesses and new evidence are not objectionable solely because they were disclosed after an agreed discovery cutoff. The rules contemplate that additional evidence and material might be discovered after the initial disclosure and prior to or even during trial, see FSM Crim. R. 16(c), that will

[11 FSM Intrm. 190]

need to be disclosed before being used at trial. The rules do not prohibit either side from finding more evidence for use at trial. Such late disclosure may be necessary for the just determination of a criminal proceeding. See FSM Crim. R. 2.

     The problem here, however, is not that the material was disclosed after the discovery cutoff (particularly because it seems much, if not most of the material did not come to the governments attention until after the discovery cutoff); the problem is whether it was disclosed as early as it should have been. Rule 16(c) requires prompt disclosure to the opposing party or to the court when additional evidence that is subject to disclosure comes to light. It is undisputed that the evidence at issue here was subject to disclosure under Rule 16(a)(1)(A), (C), and (E). While it is understandable that the government may not want to include someone as a witness until it has had the chance to interview that person to see what their testimony might be, this does not override Rule 16(c)s prompt notification requirement.

     Apparently, the witnesses and evidence disclosed in the supplemental disclosures on August 28th and September 6th were found by the government from the material it seized in the May 14th search. If the government felt that disclosing the material to Wainit would jeopardize other pending investigations before they were completed it could have complied with Rule 16(c)s prompt disclosure requirement and addressed its legitimate concerns over the confidentiality of pending investigation(s) by notifying the court. Such a notification would be by a written ex parte motion for a protective order to be viewed by the judge alone in camera. FSM Crim. R. 16(d)(1). The burden would be on the movant to make a sufficient showing that a protective order is needed. United States v. Isa, 413 F.2d 244, 248 (7th Cir. 1969). However, this avenue was not taken. Rather than seek a protective order, the government deliberately chose not to disclose the material to the defendant (and to the court) until it felt that its other investigation(s) would not be jeopardized. Some sanction must be imposed in such circumstances. United States v. Fernandez, 780 F.2d 1573, 1576-77 (11th Cir. 1986) (defendant entitled to some form of relief when governments late disclosure of evidence was the result of its failure to advise court ex parte or in camera of material it withheld so as not to alert others of an ongoing investigation).

     This disclosure was not timely or prompt under the circumstances. Some time lag after the government came into possession of the evidence from the May 14th search can be expected before the government could determine what it had and what it wanted to use, but 3 months was too long.

     When it has been brought to the courts attention that a party has failed to comply with Rule 16, "the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances." FSM Crim. R. 16(d)(2). The preferred remedy when the government makes a late disclosure of evidence is to offer the defendant a continuance to prepare to meet the additional evidence. Yale Kamisar, Wayne R. LaFave & Jerold H. Israel, Modern Criminal Procedure 1128-29 (6th ed. 1986); United States v. White, 846 F.2d 678, 692 (11th Cir. 1988). This is because a court should impose the least severe sanction that will accomplish the desired result of prompt and full compliance with the courts discovery orders and Rule 16(c). White, 846 F.2d at 691; Fernandez, 780 F.2d at 1576; United States v. Sarcinelli, 667 F.2d 5, 7 (5th Cir. Unit B 1982). In exercising its discretion to fashion the appropriate remedy, "the court should take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of

[11 FSM Intrm. 191]

rectifying that prejudice by a continuance, and any other relevant circumstances." 2 Charles Alan Wright, Federal Practice and Procedure 260, at 188-90 (3d ed. 2000). These factors must be weighed even where there is a clear discovery order. United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir. 1985). It can even be an abuse of discretion to exclude evidence, instead of granting continuance, when the late disclosure of evidence was inadvertent. Id. at 1311-14; see also Engichy v. FSM, 1 FSM Intrm. 532, 558-59 (App. 1984) (inadvertent late disclosure remedied by recess, hearing and recalling of witnesses). Less drastic remedies, such as a continuance are proper instead of suppression when the governments discovery violations are not in bad faith. United States v. Marshall, 132 F.3d 63, 70 (D.C. Cir. 1998).

    Here, the late disclosure was deliberate, not inadvertent. It was a deliberate choice. Assuming that the failure to even disclose it to the court in camera and seek a protective order was not the result of bad faith, nonetheless it was not inadvertent. But even when the government has not acted in bad faith, the court may suppress late-disclosed evidence for prophylactic purposes. See, e.g., United States v. Campagnuolo, 592 F.2d 852, 858 (5th Cir. 1979). Although a continuance may normally be the most desirable remedy, suppression may still be proper. See, e.g., United States v. Wicker, 848 F.2d 1059, 1062 (10th Cir. 1988). In United States v. Collins, 764 F.2d 647, 652-53 (9th Cir. 1985) late-disclosed statements were suppressed for use in the governments case-in-chief, but allowed for use in rebuttal.

     The court therefore concludes that, under the circumstances of this case, the least drastic, effective remedy that would further the principle that a true and just determination should be the result in criminal proceedings is to suppress all of the witnesses and evidence in the governments August 28th and September 6th supplemental disclosures, so that none of that material may be used in the governments case-in-chief, but to allow the government to use any relevant evidence in those two disclosures for rebuttal purposes. Wainits motions to exclude evidence and witnesses are thus granted in part. The government may not use in its case-in-chief any of the material first disclosed in its two supplemental disclosures. If the circumstances warrant, and if other admissible evidence is not available, the government may introduce on rebuttal, subject, of course, to all the usual objections, any of the material in its supplemental disclosures that is relevant. This sanction, coupled with the later continuances caused by other events, should cure any possible prejudice to Wainit from the late disclosures.

III.

    Wainit also contends that his speedy trial rights are implicated. It has been only ten months since Wainit was charged with twelve counts and about 8 months since his initial appearance) not enough time has elapsed for speedy trial concerns to be implicated in this complex case, especially since trial still seems imminent. The time that elapsed between the alleged offenses and the filing of charges is not to be considered when determining whether a defendant has been denied a speedy trial. See, e.g., United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468, 479 (1971); State v. Nihipali, 637 P.2d 407, 410 (Haw. 1981); State v. Myers, 569 P.2d 1351, 1352-53 (Ariz. 1977).

     Lastly, Wainits contention that the June 6th protective order ruled that the evidence it applied to was inadmissible in all cases was incorrect. That evidence was ruled inadmissible in this case. Whether it is inadmissible in some other case is for a court to decide in that cases context at the proper time.

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_____________________________

Footnotes:

1. Submission of discovery materials to the court for inspection in camera is proper when the governments need to preserve confidentiality is balanced with the defendants right to disclosure. United States v. Bocra, 623 F.2d 281, 285 (2d Cir.), cert. denied, 449 U.S. 875 (1980).