FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Wainit
12 FSM Intrm. 201 (Chk. 2003)

[12 FSM Intrm. 201]

 
FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
TADASHI WAINIT,
Defendant.
 
CRIMINAL CASE NO. 2002-1504
 
ORDER DENYING STAY
 
Richard H. Benson
Specially Assigned Justice
 
Decided: October 23, 2003

APPEARANCE:

For the Defendant:                       Stephen V. Finnen, Esq.
                                                      Law Offices Of Saimon & Associates
                                                      P.O. Box 1450
                                                      Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure ) Motions
     Failure by the non-moving party to respond to the motion constitutes a consent to the granting of the motion, but even if a motion is unopposed, a court still needs good grounds before the motion may be granted. FSM v. Wainit, 12 FSM Intrm. 201, 203 (Chk. 2003).

[12 FSM Intrm. 202]

Appellate Review ) Decisions Reviewable
     Neither the Criminal Procedure nor the Appellate Procedure Rules provide for an appeal in a criminal case before a final decision, and although interlocutory appeals may be made by permission in civil cases, such appeals do not stay trial division proceedings. FSM v. Wainit, 12 FSM Intrm. 201, 203 (Chk. 2003).
 
Appellate Review ) Stay; Mandamus and Prohibition
     The rules do not stay trial division proceedings when a writ of mandamus is sought. FSM v. Wainit, 12 FSM Intrm. 201, 203 (Chk. 2003).
 
Statutes of Limitation ) Criminal Offenses
     The right not to be put into jeopardy once when barred by the statute of limitations is not a constitutional right, but rather one created by statute. FSM v. Wainit, 12 FSM Intrm. 201, 204 (Chk. 2003).
 
Appellate Review ) Decisions Reviewable
     The appealability of the denial of dismissal of a criminal case is an issue for the appellate division since it goes to their jurisdiction. FSM v. Wainit, 12 FSM Intrm. 201, 204 (Chk. 2003).
 
Appellate Review ) Stay; Criminal Law and Procedure ) Discovery
     There is no good reason to stay the completion of discovery in a criminal case while appellate review is sought when the defendant has already made his discovery request and because the amount of discovery that can be requested in a criminal case is so limited and the government cannot even request discovery unless the defendant has already done so, it is difficult to conceive of any circumstances under which staying discovery in a criminal case would be proper. FSM v. Wainit, 12 FSM Intrm. 201, 204 (Chk. 2003).
 
Appellate Review ) Stay; Criminal Law and Procedure
     As jeopardy does not attach in a criminal case until the first witness is sworn in to testify at trial, the trial court will therefore not stay pretrial proceedings while the defendant seeks appellate review because rulings on pretrial motions not yet filed may dispose of the case entirely in the defendantís favor. FSM v. Wainit, 12 FSM Intrm. 201, 204 (Chk. 2003).
 
Appellate Review ) Stay; Criminal Law and Procedure
     The only stay of a pending criminal case while appellate review is sought that the trial court could consider granting would be a stay of trial. For a stay to be granted, the appeal must be meritorious) a substantial likelihood that the applicant will prevail. A stay is normally granted only where the court is persuaded as to the probability of the movantís ultimate success. FSM v. Wainit, 12 FSM Intrm. 201, 204 (Chk. 2003).
 
Appellate Review ) Stay; Mandamus and Prohibition
     It has been a principle of long standing that a stay will not be granted in a criminal matter while the defendant is seeking a writ of mandamus unless there is a substantial likelihood he will prevail. The court cannot see any reason why the standard should be lower when the defendant has also filed an interlocutory notice of appeal as well as a petition for a writ of mandamus. FSM v. Wainit, 12 FSM Intrm. 201, 204 (Chk. 2003).
 
Appellate Review ) Stay
     An issue appealed is not meritorious and the method of seeking appellate review is not meritorious solely because it is a matter of first impression for the appellate division. FSM v. Wainit, 12 FSM Intrm. 201, 204 (Chk. 2003).

[12 FSM Intrm. 203]

Statutes ) Construction
     National laws are often applied to persons based on their status, even when that status is defined solely by another government. FSM v. Wainit, 12 FSM Intrm. 201, 205 (Chk. 2003).
 
Statutes ) Construction
     Words and phrases as used in the FSM code shall be construed according to the  common and approved usage of the English language. FSM v. Wainit, 12 FSM Intrm. 201, 205 (Chk. 2003).
 
Appellate Review ) Stay ; Criminal Law and Procedure
     In order for a defendant to be granted a stay of a criminal proceeding while he seeks interlocutory appellate review, he must show that his appeal or his petition is meritorious and has a substantial likelihood of success on the merits. FSM v. Wainit, 12 FSM Intrm. 201, 205 (Chk. 2003).

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COURTíS OPINION

RICHARD H. BENSON, Specially Assigned Justice:

     On October 3, 2003, defendant Tadashi Wainit, seeking interlocutory appellate review of this courtís September 24, 2003 Order Denying Motion to Dismiss, filed a Notice of Appeal and a Petition for Writ of Mandamus and/or Certiorari in the appellate division. On October 7, 2003, he served by hand delivery, and on October 8, 2003, he filed in the trial division his Motion to Stay Proceedings Pending Appeal or Writ Review. On October 10, 2003, he served by hand delivery and he filed his Supplement to Motion to Stay Proceedings Pending Appeal or Writ Review.

     The government had ten days from date of service to respond to the motion since it was served personally. FSM Crim. R. 45(d). No response has been filed. Failure by the non-moving party to respond to the motion constitutes "a consent to the granting of the motion." Id. Even if a motion is unopposed, a court still needs good grounds before the motion may be granted. See Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994); In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 153 (Pon. 1993).

     Wainit disputes the courtís ruling on his motion to dismiss. He seeks prompt appellate review of the ruling and asks that the trial court stay proceedings while the appellate division considers the matter. Currently the only proceedings scheduled in this case are completion of discovery, the filing of pretrial motions and responses and replies, and a date for hearing the pretrial motions, possibly followed by the entry of a plea. This schedule was agreed to by the parties.

     Neither the Criminal Procedure nor the Appellate Procedure Rules provide for an appeal in a criminal case before a final decision. FSM App. R. 4(b)(1). (Interlocutory appeals may be made by permission in civil cases, but such appeals do not stay trial division proceedings. FSM App. R. 5(a).) Nor do the rules stay trial division proceedings when a writ of mandamus is sought. (Petitions for writs of mandamus and prohibition are generally expedited matters usually decided by the remaining article XI, section 3 justice(s) on the papers without oral argument.) See FSM App. R. 21(a), (b).

      Wainit contends that a denial of a dismissal on statute of limitations grounds should (at least where the facts to the running of the statute are not in dispute) be considered the equivalent of a final decision and thus appealable. He analogizes this case to a criminal defendantís double jeopardy claim whereby the defendant are allowed to appeal a denial of a motion to dismiss on double jeopardy grounds before trial on the ground that if he had to wait until after a conviction, the constitutional right

[12 FSM Intrm. 204]

against double jeopardy would have been irreparably lost, see Abney v. United States, 431 U.S. 651, 658, 97 S. Ct. 2034, 2039-40, 52 L. Ed. 2d 651, 659 (1977), because the defendant may already have been tried (put in jeopardy) a second time. In this case, Wainit contends that being put in jeopardy before he can appeal the statute of limitations issue would have a similar effect.

     Wainit concedes that, unlike the right not to be put into jeopardy twice for the same offense, the right not to be put into jeopardy once when barred by the statute of limitations is not a constitutional right, but rather one created by statute. Furthermore, he acknowledges that there is authority that holds that the statute of limitations issue cannot be appealed until after a conviction. He contends that FSM courts should not follow that authority.

     The trial court will not express an opinion on the issue of the appealability of the denial of dismissal as that is an issue for the appellate division since it goes to their jurisdiction. Cf. Bank of Guam v. OíSonis, 9 FSM Intrm. 197, 199 (Chk. 1999) (trial court cannot strike notice of appeal as it goes to appellate divisionís jurisdiction).

     The court concludes that there is no good reason to stay the completion of discovery in this case. Wainit has already made his discovery request. The deadline for completion of discovery was October 22, 2003. That date has already come and gone. Also, the amount of discovery that can be requested in a criminal case is so limited, see FSM Crim. R. 16, and the government cannot even request discovery unless the defendant has already done so, FSM Crim. R. 16(b)(1), it is difficult to conceive of any circumstances under which staying discovery in a criminal case would be proper.

     Wainit asks that he not be put into jeopardy until after and unless the appellate division has ruled against him. Jeopardy does not attach in a criminal case until the first witness is sworn in to testify at trial. FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 128 (Pon. 1995). This court will therefore not stay the other pretrial proceedings either. Rulings on pretrial motions not yet filed may dispose of the case entirely in Wainitís favor.

     The only stay that the trial court could consider granting would be a stay of trial. Since this situation ) a stay being requested while interlocutory appellate review is sought in a criminal matter ) has not arisen before, there has been no standard set for considering such a request. The court concludes that for a stay to be granted, the appeal must be meritorious ) a substantial likelihood that the applicant will prevail. A stay is normally granted only where the court is persuaded as to the probability of the movantís ultimate success. Office of the Public Defender v. Trial Division, 4 FSM Intrm. 252, 254-55 (App. 1990) (stay of criminal trial while writ of mandamus sought denied; no showing of irreparable harm should the stay not be granted; no equities which militate in favor of stay); In re Raitoun, 1 FSM Intrm. 561, 563 (App. 1984) (stay of criminal trial while writ of mandamus sought denied). It has been a principle of long standing that a stay will not be granted in a criminal matter while the defendant is seeking a writ of mandamus unless there is a substantial likelihood he will prevail. The appellate division first denied a stay of a criminal trial while a writ of mandamus was sought in 1984 when it did not find "any substantial likelihood that the petitioner will prevail with the arguments he asserts in his application." In re Raitoun, 1 FSM Intrm. at 563. The court cannot see any reason why the standard should be lower when the defendant has also filed an interlocutory notice of appeal as well as a petition for a writ of mandamus.

     The court cannot say that the issue appealed is meritorious or that the method of seeking appellate review is meritorious solely because it is a matter of first impression for the appellate division. The argument that "public officer" in section 105(3)(b) cannot possibly refer to state and municipal public officials because the national government lacks the constitutional power to define those offices and to determine or install those officials is frivolous. National laws are often applied to persons based

[12 FSM Intrm. 205]

on their status, even when that status is defined solely by another government. For instance, the Federated Development Authority Policy Board is by statute composed of the President and the four state governors. 55 F.S.M.C. 326. The national government has no power to define or determine who the four governors are, but yet can apply a statute to them based on their status as defined by state law or constitution. Governors are also made allottees of funds based on their status as governors. 55 F.S.M.C. 217(5). The same is true with the national law making the Port Authority of each state the piloting authority for that state, 19 F.S.M.C. 701, even though national law does not create or define state port authorities. The Constitution requires that traditional leaders be given the respect due them based on their status as traditional leaders, FSM Const. art. V, ß 1, but the national government has no authority to define who is a traditional leader. State court judicial officers are permitted, under certain circumstances and based on their status as state court judges, to conduct initial appearances of defendants charged with national crimes, FSM Crim. R. 5(d), despite the national government being unable define their status. More examples can be found, if one had to look. Furthermore, the statute was construed as Congress mandated that it be construed. "Words and phrases as used in this code . . . shall be construed according to the common and approved usage of the English language." 1 F.S.M.C. 208.

     Wainitís points and authorities in support of the motion and his supplement are entirely devoted to the appropriateness of interlocutory appellate review. As stated above, that issue is for the appellate division to consider. There is nothing before the trial court as to where any alleged error occurred. The court notes that because it was served with a copy of the petition for a writ as the nominal respondent in that original action, it is aware that Wainit repeats therein as grounds for review the same arguments that he made before the trial court. This court has already found those arguments neither meritorious nor colorable. Wainit has not shown that this was an abuse of discretion or that the courtís ruling was incorrect, other than repeating the same arguments.

     The court therefore concludes that in order for Wainit to be granted a stay of a criminal proceeding while he seeks interlocutory appellate review, he must show that his appeal or his petition is meritorious and has a substantial likelihood of success on the merits. He has not shown this. No good grounds having been found to grant it, the motion to stay is therefore denied.

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