FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Wainit
12 FSM Intrm. 360 (Chk. 2004)

[12 FSM Intrm. 360]

 
FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
TADASHI WAINIT,
Defendant.
 
CRIMINAL CASE NO. 2002-1504
 
ORDER DISQUALIFYING PROSECUTORS,
ORDER OF DISMISSAL, AND MEMORANDUM
 
Martin G. Yinug
Associate Justice
 
Hearing: January 14, 2004
Decided: February 19, 2004

APPEARANCES:

For the Plaintiff:                   Robert M. Weinberg, Esq.
                                             R. Anthony Welch, Esq.
                                             Assistant Attorneys 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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HEADNOTES

Criminal Law and Procedure ) Motions
     Failure to oppose a motion is generally deemed a consent to the motion and a party who has failed to oppose will not be permitted to orally argue the motion. But even when there is no opposition, a court still needs good grounds before it can grant the motion. FSM v. Wainit, 12 FSM Intrm. 360, 362 (Chk. 2004).
 
Criminal Law and Procedure ) Motions; Criminal Law and Procedure ) Prosecutors
     Generally, a motion to disqualify a prosecutor must be made at the earliest possible time, and failure to do so may constitute a waiver of the objection. FSM v. Wainit, 12 FSM Intrm. 360, 363 (Chk. 2004).

[12 FSM Intrm. 361]

Criminal Law and Procedure ) Motions
     Motions raising defenses and objections based on defects in the information (other than it fails to state an offense or the court lacks jurisdiction) must be raised prior to trial. FSM v. Wainit, 12 FSM Intrm. 360, 363 (Chk. 2004).
 
Attorney, Trial Counselor and Client ) Disqualification of Counsel; Criminal Law and Procedure ) Prosecutors
     A government lawyer, like any other lawyer, cannot represent the government if the representation of that client may be materially limited by the lawyer’s own interests. A lawyer’s own interests may include emotional interests. An emotional interest, in order to be disqualifying, must create a bias or hostility in the government lawyer sufficiently strong to interfere seriously with the lawyer’s exercise of public responsibility. FSM v. Wainit, 12 FSM Intrm. 360, 363 (Chk. 2004).
 
Attorney, Trial Counselor and Client ) Disqualification of Counsel; Criminal Law and Procedure ) Prosecutors
     Since a government lawyer’s public responsibility involves the exercise of discretion, a prosecutor may be disqualified when the prosecutor suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary function of his office. FSM v. Wainit, 12 FSM Intrm. 360, 363 (Chk. 2004).
 
Attorney, Trial Counselor and Client ) Disqualification of Counsel; Criminal Law and Procedure ) Prosecutors
     Since a prosecutor has wide discretion in deciding whether to initiate a particular criminal prosecution, a prosecutor’s emotional interest sufficiently strong to impair the impartial exercise of this discretion will disqualify the prosecutor from any participation in the matter, including filing the information. FSM v. Wainit, 12 FSM Intrm. 360, 364 (Chk. 2004).
 
Attorney, Trial Counselor and Client ) Disqualification of Counsel; Criminal Law and Procedure ) Prosecutors
     When prosecutors filed a case just two months after the frightening events allegedly caused by the defendant, and when it seems reasonable for them to have had emotional interests that would disqualify them from impartially exercising their discretion whether to prosecute the same defendant in any new cases, their failure to disqualify themselves raises an appearance of impropriety. Accordingly, a motion to disqualify those prosecutors will be granted. FSM v. Wainit, 12 FSM Intrm. 360, 364 (Chk. 2004).
 
Attorney, Trial Counselor and Client ) Disqualification of Counsel; Criminal Law and Procedure ) Dismissal
     When an information was filed by two prosecutors who should have been disqualified from filing it or being involved in their official capacity in the bringing of charges against the defendant, then upon a timely objection, the information will be dismissed. FSM v. Wainit, 12 FSM Intrm. 360, 364 (Chk. 2004).
 
Criminal Law and Procedure ) Dismissal; Criminal Law and Procedure ) Prosecutors
     When there is no way to determine if prosecutors who were not disqualified would have exercised their discretion to file these charges, the information must be dismissed to allow that to happen. This is because no matter how firmly and conscientiously a prosecutor may steel himself against the intrusion of a competing and disqualifying interest, he never can be certain that he has succeeded in isolating himself from the inroads on his subconscious. The defendant does not have to show actual prejudice, because on the basis of public policy, it will be presumed to exist as a matter of law. The purpose of this is to avoid the appearance of impropriety. This is designed not only to

[12 FSM Intrm. 362]

prevent the dishonest practitioner from improper conduct but also to preclude the honest practitioner from being put in a position where he will be forced to choose between conflicting duties. FSM v. Wainit, 12 FSM Intrm. 360, 364 (Chk. 2004).
 
Criminal Law and Procedure ) Dismissal
     When a dismissal is not on the merits and the defendant has not been put in jeopardy, the dismissal is without prejudice. FSM v. Wainit, 12 FSM Intrm. 360, 365 (Chk. 2004).

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COURT’S OPINION

MARTIN G. YINUG, Associate Justice:

     On January 14, 2004, this case came before Specially Assigned Justice Richard H. Benson for hearing on defendant Tadashi Wainit’s Motion to Disqualify Catherine Wiehe, Matthew Crabtree, and the Entire FSM Department of Justice; Motion to Dismiss, filed November 14, 2003, and on his Motion in Limine to Suppress Testimony and/or Documents, filed November 17, 2003. His supplement to the motion to disqualify/dismiss, filed December 12, 2003, and his reply in support of both motions, filed January 7, 2004, are also before the court.

     The government failed to respond to the motions and the prosecutor to whom this case was assigned resigned his office as of November 28, 2003. Failure to oppose a motion is generally deemed a consent to the motion. FSM v. Moses, 9 FSM Intrm. 139, 143 (Pon. 1999); FSM Crim. R. 45(d). The government was therefore not permitted to orally argue the motion. But even when there is no opposition, a court still needs good grounds before it can grant a motion. Cf. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

     This order was prepared under Specially Assigned Justice Benson’s direction, but was not issued before the assignment ended. Because trial had been scheduled for March 15, 2004, the case was assigned to the present justice. The present justice has reviewed the file and the draft order and hereby adopts and issues the prepared draft essentially unchanged.

I. Relief Sought

     The Criminal Information filed in this matter on November 7, 2002, was signed by Assistant Attorneys General Catherine Leilani Wiehe and Matthew W. Crabtree on November 5, 2002. Wainit’s first motion seeks the disqualification of attorneys Wiehe and Crabtree and the entire FSM Department of Justice and the appointment of a special prosecutor. It also seeks to dismiss the criminal information on the ground that, at the time it was filed, the two attorneys who filed it were, or should have been, disqualified from filing any further cases against Wainit.

     The motion in limine seeks to suppress any evidence or testimony concerning Wainit and the state election held on the same day as the 1999 national election which gave rise to the charges in this case, or at a minimum have that evidence and testimony limited in the same manner as it was in another case involving the 2001 national election and the state election held simultaneously. See FSM v. Wainit, 11 FSM Intrm. 1, 5-6 (Chk. 2002). Wainit also seeks to suppress two documents, letters allegedly sent by Wainit, as, in his view, illegally seized, and any testimony related to them as the fruit of the poisonous tree.

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II. Motion to Disqualify/Dismiss

A. Grounds

     The motion to disqualify is based on the ground that the two prosecuting attorneys who signed and filed this criminal information were both witnesses and alleged victims in a criminal case with 39 counts filed against Wainit about two months earlier. That 39-count information against Wainit (and another 78 counts against two others) arose from the attempted execution of a search warrant on September 6, 2002 at Wainit’s residence on Udot and the defendants’ alleged forceful resistance to the warrant’s execution. See FSM v. Wainit, 11 FSM Intrm. 424, 432-33 (Chk. 2003).

     Wiehe and Crabtree were present at this attempted warrant execution and are alleged victims of the forceful resistance. Wainit notes that these same two attorneys were disqualified from an earlier criminal case even though that case was started before the events occurred that gave rise to both the 39-count information against Wainit and, eventually, that disqualification. FSM v. Wainit, 12 FSM Intrm. 172, 177-79 (Chk. 2003). Wiehe testified telephonically on September 26, 2002, at Wainit’s initial appearance on the charges stemming from the September 6th events. Crabtree also appeared telephonically at the hearing to seek revocation of Wainit’s pretrial release in the earlier case he and Wiehe were prosecuting against Wainit, even though the prosecutor for the September 6th events was seeking the same relief.

B. Timeliness

     Generally, a motion to disqualify a prosecutor must be made at the earliest possible time, and failure to do so may constitute a waiver of the objection. See generally T.J. Griffin, Annotation, Disqualification of Prosecuting Attorney on Account of Relationship with Accused, 31 A.L.R.3d 953, 989 (1970). Wainit could have brought this motion earlier when he moved to dismiss this case on the ground that it was filed after the statute of limitations had run. That motion was denied, FSM v. Wainit, 12 FSM Intrm. 105 (Chk. 2003), as well as a later motion to stay further trial court proceedings, FSM v. Wainit, 12 FSM Intrm. 201 (Chk. 2003). This motion to disqualify followed shortly thereafter.

     Although this motion could, and probably should, have been brought earlier, the court will not penalize Wainit for choosing to pursue a dispositive motion first when this motion to disqualify followed fairly promptly. Motions raising defenses and objections based on defects in the information (other than it fails to state an offense or the court lacks jurisdiction) must be raised prior to trial. FSM Crim. R. 12(b)(2). Wainit has met that deadline.

C. Disqualification of Prosecutors

     A government lawyer, like any other lawyer, cannot "represent a client [the government] if the representation of that client may be materially limited . . . by the lawyer’s own interests . . . ." FSM MRPC R. 1.7(b). A lawyer’s own interests may include emotional interests. "An emotional interest, in order to be disqualifying, must create a bias or hostility in the government lawyer sufficiently strong to interfere seriously with the lawyer’s exercise of public responsibility." Charles W. Wolfram, Modern Legal Ethics § 8.9.3, at 453 (1986). Since a government lawyer’s public responsibility involves the exercise of discretion, a prosecutor may be disqualified when the prosecutor "suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary function of his office." People v. Superior Court (Greer), 561 P.2d 1164, 1173 (Cal. 1977).

[12 FSM Intrm. 364]

     Since a prosecutor has wide discretion in deciding whether to initiate a particular criminal prosecution, FSM v. Mudong, 1 FSM Intrm. 135, 140 (Pon. 1982); Nix v. Ehmes, 1 FSM Intrm. 114, 126 (Pon. 1982); see also FSM v. Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon. 1987), a prosecutor’s emotional interest sufficiently strong to impair the impartial exercise of this discretion will disqualify the prosecutor from any participation in the matter, including filing the information.

     A review of Wiehe’s testimony at Wainit’s September 26, 2002 initial appearance on the 39-count information and Crabtree’s statements reported in the Kaselehlie Press on September 19, 2002 shows that the September 6, 2002 events engendered a strong emotional response by Wiehe and Crabtree. Because prosecutors Wiehe1and Crabtree filed this case just two months after the frightening September 6, 2002 events, and because it seems reasonable for them to have had emotional interests that would disqualify them from impartially exercising their discretion whether to prosecute Wainit in any new cases, their failure to disqualify themselves raises an appearance of impropriety. Accordingly, the motion to disqualify prosecutors Wiehe and Crabtree is granted.

D. Effect of Disqualifications

     The information was filed by two prosecutors who should have been disqualified from filing it. "[I]f a prosecutor who should have been disqualified is involved in his official capacity in the bringing of charges (by way of indictment or information) against the defendant, then upon a timely objection, the information will be dismissed . . . ." Sinclair v. State, 363 A.2d 468, 475 (Md. 1976) (footnote omitted) (conviction reversed because criminal information was obtained by, and case prosecuted by, attorney who represented private parties in civil matters against defendant); see also Corbin v. Broadman, 433 P.2d 289, 295-96, 31 A.L.R.3d 943, 951-52 (Ariz. Ct. App. 1967) (dismissal of indictment upheld because obtained by disqualified prosecutor, which made proceeding unlawful); State v. Jones, 208 S.W. 83, 86 (Mo. 1924) (when prosecutor proceeded against defendant in case where prosecutor was interested party because defendant collided with prosecutor’s car while driving drunk, the information should have been quashed by the court on its own motion). Since there is no way to determine if prosecutors who were not disqualified would have exercised their discretion to file these charges, the information must be dismissed to allow that to happen. This is because "no matter how firmly and conscientiously a [prosecutor] may steel himself against the intrusion of a competing and disqualifying interest, he never can be certain that he has succeeded in isolating himself from the inroads on his subconscious." People v. Zimmer, 414 N.E.2d 705, 707 (N.Y. 1980) (prosecutor was corporate counsel to and shareholder of, corporation that was alleged victim of defendant’s acts; indictment therefore dismissed). The defendant does not have to show actual prejudice, because on the basis of public policy, it will be presumed to exist as a matter of law. Sinclair, 363 A.2d at 475 n.8; State v. Detroit Motors, 163 A.2d 227, 231 (N.J. Super. 1960) ("Public policy appears to dictate that criminal prosecutions must be totally free of any imputation of improper influence or motive.") (indictments dismissed because prosecutor who obtained them was disqualified). The purpose of this is to avoid the appearance of impropriety. Zimmer, 414 N.E.2d at 708. This is designed not only to prevent the dishonest practitioner from improper conduct but also to preclude the honest practitioner from being put in a position where he will be forced to choose between conflicting duties.

     The court therefore concludes that the proper remedy for this is to dismiss the information. Since the prosecutors were disqualified because of their involvement in the September 6, 2002 events, they were disqualified from signing and filing this information in November, 2002. This criminal information must therefore be dismissed.

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IV. Relief Granted

     Accordingly, the motion to dismiss the information is granted and the March 15, 2004 trial date set orally in open court on January 14, 2004 is hereby vacated. This dismissal is not on the merits. Nor has Wainit been put in jeopardy. FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 128 (Pon. 1995) (jeopardy does not attach in a criminal case until the first witness is sworn in to testify at trial). The dismissal is therefore without prejudice. See FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999) (when, based on the information, there is no probable cause to believe a crime has been committed, the information and criminal summons are dismissed without prejudice); FSM v. Xu Rui Song, 7 FSM Intrm. 187, 190 (Chk. 1995) (dismissal of a criminal case because of a defective information is without prejudice).

     Since this information must be dismissed because it was filed by disqualified prosecutors, the court does not reach the issue of whether the entire Department of Justice should be disqualified. Nor does the court reach the merits of the motion in limine. If the charges in this case are refiled by other prosecutors, Wainit may again raise these issues.

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Footnote:

1. Wiehe is no longer employed at the FSM Department of Justice.