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MARTIN G. YINUG, Associate Justice:
On May 28, 2003, defendant Tadashi Wainit filed his Motion to Disqualify the FSM Department of Justice; Motion to Dismiss Criminal Information; Request for Evidentiary Hearing. Wainit filed a supplement to this motion on June 12, 2003. The government filed its response to the motions on August 4, 2003. Wainit’s reply was filed on August 27, 2003.
By order of October 13, 2003, the court requested further briefing on certain points: 1) how the appointment of a special prosecutor would operate procedurally if the entire FSM Department of Justice were disqualified, 2) whether the court could order that the special prosecutor independently review the matter ab initio and file, based on the special prosecutor’s own independent judgment, an amended information to supersede the current one if the current prosecutor were not disqualified, and 3) in either of these instances, whether the court would have the authority to order that the prosecution condense its case from the current 117 counts and confine itself to those charges the prosecutor believes most warranted. On November 12, 2003, Wainit filed a supplemental supporting brief. The government’s response to the court order was filed on December 5, 2003. Wainit filed a further supplemental brief on December 12, 2003.
On November 12, 2003, Defendant Kerson Rizal’s Motion to Disqualify the FSM Department of Justice from Prosecuting the Matter and Motion to Dismiss the Information was filed. No response to it has been filed. Failure to oppose a motion is generally deemed a consent to the motion. FSM Crim. R. 45(d). But even when there is no opposition, a court still needs good grounds before it can grant the motion. Cf. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994). However, Rizal’s motion seeks the same relief, makes much the same arguments, and rests on much the same grounds as Wainit’s. The court will therefore consider the two motions together and the government’s responsive filings to Wainit’s motions as being applicable to both.
I. The Motions
Wainit’s motion asks the court to disqualify the entire FSM Department of Justice and then dismiss the information because it was filed by the Department of Justice (which Wainit says should have been disqualified) and because the information was not accompanied by affidavits, the presence of which, Wainit contends, are required by statute and rule. Because of this, Wainit contends that after dismissal, the FSM Department of Justice should be barred from refiling any of these charges, and that only a special prosecutor should be allowed to do so. Wainit also asks for an evidentiary hearing to determine what role Assistant Attorneys General Catherine Wiehe and Matthew Crabtree had in drawing up and filing this information and who authorized its filing.
Rizal joins Wainit in contending that the entire Department should be disqualified. He also asserts that if the FSM Department of Justice is disqualified the matter might then be prosecuted by the Chuuk Attorney General’s Office under a national-state joint law enforcement arrangement.
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II. Disqualification of Government Attorneys
The charges in this case arise from the government’s September 6, 2002 attempted execution of a search warrant at Wainit’s residence on Udot and the defendants’ alleged actions in regard to the physical resistance to the warrant’s execution. Wiehe and Crabtree, who were present at that attempted search, are among the alleged victims and witnesses. As such, they are disqualified from participating in the prosecution of this matter other than as victims and witnesses since a lawyer cannot act as advocate in a trial in which the lawyer is likely to be a necessary witness. FSM MRPC R. 3.7(a). Also, a government lawyer cannot represent the government when representation of that client may be materially limited by the lawyer’s own interests. See FSM MRPC R. 1.7(b). A lawyer’s own interests can include emotional interests, and "[a]n 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). Being the victims in a crime in which force was allegedly used is just such a strong emotional interest to disqualify a government attorney from prosecuting that same crime. A prosecutor who has a conflict of interest cannot administer justice. Wiehe1 and Crabtree have conflicts arising from strong emotional interests and thus could not be (and never were) prosecutors in this case.
Wainit and Rizal ask that the entire Department of Justice and all the lawyers in it be disqualified as well. However, "[a] lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9." FSM MRPC R. 3.7(b). Rules 1.7 and 1.9 deal with conflicts of interest.
Since a lawyer’s conflicts are usually imputed to all in the lawyer’s office or firm, one member’s disqualification generally requires the entire firm’s disqualification. FSM MRPC R. 1.10(a). Rizal thus contends that Wiehe’s and Crabtree’s disqualification should disqualify the entire Department of Justice. But unlike private law firms, the disqualification of all government attorneys in an office is not required when one is disqualified.2 In re Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993) (rules for vicarious disqualification of attorneys in the same law firm do not apply to government lawyers; disqualification of one government office member is not imputed to the other members); FSM MRPC R. 1.11. The FSM Department of Justice’s disqualification will not be imputed from Wiehe’s and Crabtree’s.
Wainit, however, contends that the entire FSM Department of Justice has direct, not imputed, conflicts of interest in prosecuting him. He further contends that this direct conflict extends not only to the Department’s current employees but also to any it might hire in the future. He asks that the court expressly address Wiehe’s, Crabtree’s, and the current prosecutor Anthony Welch’s conduct throughout this litigation. Wainit asserts that their conduct shows a lack of the impartiality that a prosecutor must have to properly do that job. Wainit contends that since, in his view, the entire Department is disqualified, the information must then be dismissed and a special prosecutor appointed to determine which, if any, charges to refile and prosecute. In support of his motion to disqualify, Wainit relies on Pease v. District Court, 708 P.2d 800 (Colo. 1985); People v. Garcia, 698 P.2d 801
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(Colo. 1985); People v. Connor, 666 P.2d 5 (Cal. 1983); People v. Superior Court (Greer), 561 P.2d 1164 (Cal. 1977) and People v. Gibbons, Crim. No. CF0390-96 (Guam Super. Ct. July 18, 1996).
United States cases interpreting and applying attorney disqualification ethical rules which are similar or identical to the American Bar Association’s 1983 Model Rules of Professional Conduct that this court has adopted verbatim,3 FSM Adm. R. VII, exhibit a variety of remedies, but some general principles may be gleaned from them. The general rule is that the "recusal or disqualification of an assistant [attorney general] does not require the recusal of the [attorney general] or his other assistants." State v. Edwards, 420 So. 2d 663, 673 (La. 1982). "[I}ndividual rather than vicarious disqualification is the general rule" but "individual disqualification must be complete" and any participation or anything less than complete abstention by a disqualified member of a prosecutor’s office in a supervisory capacity would warrant disqualification of the entire office. Pisa v. Commonwealth, 393 N.E.2d 386, 388-89 (Mass. 1979); see also United States v. Caggiano, 660 F.2d 184, 190-91 (6th Cir. 1981) (court reversed the trial court’s disqualification of the entire U.S. Attorney’s office because of one assistant attorney’s conflict), cert. denied, 454 U.S. 1149; 455 U.S. 945 (1982); State ex rel. Romley v. Superior Court, 908 P.2d 37, 44 (Ariz. Ct. App. 1995) (entire office’s disqualification reversed since disqualified assistant was isolated from disqualifying cases); State v. Crandell, 604 So. 2d 123, 128 (La. Ct. App. 1992) (consistent refusal to recuse district attorney and rest of staff when assistant disqualified); Mattress v. State, 564 S.W.2d 678, 680 (Tenn. Crim. App. 1977) (assistant district attorney’s disqualification does not require disqualification of district attorney or other assistants).
In State ex rel. Goldsmith v. Superior Court, 386 N.E.2d 942, 945 (Ind. 1979) the court concluded that the ethical rules did not require the disqualification of the prosecutor’s entire office when a deputy prosecutor would be a witness in a case that office was prosecuting, but would require the entire office’s disqualification if the head prosecutor was a witness or had an interest. The court in State v. Tippecanoe County Court, 432 N.E.2d 1377, 1379 (Ind. 1982) followed this principle when it held that since the prosecutor who had administrative control over the entire staff was disqualified, the trial court had properly disqualified the entire staff of deputies. Similarly, the court in State v. Snyder, 237 So. 2d 392, 394 (La. 1970) held that the district attorney was personally disqualified and so barred him and all his assistants from the prosecution.
The Guam case cited by Wainit for a Micronesian example of disqualification of an entire office follows the same pattern. In People v. Gibbons, Crim. No. CF0390-96 (Guam Super. Ct. July 18, 1996), the entire Guam Attorney General’s office was disqualified because the Guam Attorney General was himself a witness to, and his Chief Prosecutor was a victim in, an altercation and brawl and, rather than automatically recusing himself, he had chosen a subordinate as the case’s prosecutor and thus no one in the office could impartially prosecute the case. Id. slip op. at 2, 8.
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The court therefore concludes that as a general rule, an entire office of prosecutors will not be disqualified when one member is disqualified unless that one member has supervisory or administrative control over all the others.4 This case is thus unlike Gibbons and the other cases discussed above that disqualified entire offices. Neither Wiehe nor Crabtree have now, or ever had, any supervisory power over the current prosecutor and he is not subordinate to them.
This general principle has been followed even when the entire prosecutor’s office might be said to be a victim of the defendants’ crimes. In United States v. Heldt, 668 F.2d 1238, 1274-78 (D.C. Cir. 1981), it was insufficient to disqualify the prosecutors’ office when the alleged disqualifying interests were that the office itself was a victim of one of the crimes alleged in the indictment and two of the assistant attorneys were defendants in a civil suit arising out of a search allegedly conducted in bad faith. See also United States v. Kember, 685 F.2d 451, 458-59 (D.C. Cir. 1982) (same).
Besides Gibbons, Wainit relies on two California and two Colorado cases. In the two Colorado cases Wainit cites, Pease v. District Court, 708 P.2d 800, 802 (Colo. 1985); People v. Garcia, 698 P.2d 801, 806 (Colo. 1985), the Colorado court relied on the principle of imputed disqualification found in the Code of Professional Responsibility DR 5-205(D) and disqualified entire district attorney’s offices when one or more of the assistant attorneys were disqualified since they were witnesses. The Code’s principle of imputed disqualification for government lawyers in the same office was rejected by the later Model Rules of Professional Responsibility, and it was these Model Rules that were adopted here by FSM GCO 1983-2. As stated above, under the rules applicable here, a government lawyer’s disqualification is not imputed to the others in that government office. In re Extradition of Jano, 6 FSM Intrm. at 27 & n.1 (construing FSM MRPC R. 1.11). The reasoning followed in these Colorado cases therefore cannot be applied to this case.
In People v. Superior Court (Greer), 561 P.2d 1164, 1166-67 (Cal. 1977) (also cited by Wainit) John Greer and Rose Anderson were charged with murdering Rose’s ex-husband, who was the son of a discovery clerk in the district attorney’s office and who was involved in a protracted custody battle with Rose over their child, Paul. The police, after consultation with the district attorney’s office, arrested Rose, although she had made arrangements to surrender voluntarily instead of being arrested, and put Paul in the custody of the discovery clerk, Martha Anderson, despite knowing that Rose had made arrangements to place Paul elsewhere. Id. at 1167. A contested guardianship proceeding between the two women ensued. Id. The court concluded that the circumstances surrounding Rose’s arrest and the transfer of her child to Martha Anderson’s custody supported the trial court’s ruling that the district attorney had an emotional stake in the case of the sort that would disturb his exercise of impartial judgment in the proceedings, and held that the trial court’s disqualification of the district attorney was not an abuse of discretion. Id. at 1174. Once again, the entire office was disqualified because the district attorney was. This case thus does not depart from the general pattern already
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In People v. Connor, 666 P.2d 5, 7 (Cal. 1983) (the last case Wainit cites), the defendant apparently shot at his prosecutor and escaped and although he was not charged with a crime against the prosecutor, the prosecution was transferred to another prosecutor in the same office although in a different unit. The trial court denied the recusal of the entire District Attorney’s Office for the original charges, but, for the escape charges, did order the entire office recused and, under a California statute, assigned the prosecution to the California Attorney General’s Office. Id. The California Supreme Court affirmed on the ground that, while singly the circumstances may be insufficient, in combination the aggregate effect was enough to sustain the trial court’s recusal of the entire office. Id. at 9. In California, when an entire district attorney’s office is disqualified, the prosecution is transferred to the California Attorney General’s office, which continues to prosecute. The FSM does not have that luxury of separate offices.
In light of the social and geographical configuration of Micronesia, FSM Const. art. XI, § 11, and the principle that a prosecutor’s disqualification is largely within the court’s discretion, see, e.g., Office of the Public Defender v. FSM Supreme Court, 4 FSM Intrm. 307, 309 (App. 1990); United States v. Lorenzo, 995 F.2d 1448, 1453 (9th Cir. 1993) (even cases that order disqualification recognize that the question is largely within the trial court’s discretion); Garcia, 698 P.2d at 806, the court concludes that the better course is to follow the general principle discussed above and to disqualify only those in the office over whom Wiehe and Crabtree had, or have, supervisory authority, not the entire office. Neither Wiehe nor Crabtree were either the Chief of Litigation (head prosecutor) or the Secretary of Justice (attorney general). The current prosecutor, who was not present on Udot on September 6, 2002 but was on vacation outside the FSM, is not disqualified by this order, and, as long as any new hires are not placed under Wiehe’s or Crabtree’s supervision or administration, the court concludes that they should not be disqualified from assisting the prosecution either. The motions to disqualify the entire Department of Justice are accordingly denied. Since the entire Department is not disqualified, the motion to dismiss, based on the entire Department’s presumed disqualification, is denied, as is the motion to appoint a special prosecutor.
III. The Criminal Information
This criminal information was filed by Assistant Attorney General Emilio Musrasrik on September 9, 2002, along with a written Application for Issuance of Arrest Warrants and Detention Hearing. There were no affidavits or writings under oath attached to the information. Wainit contends that this violates 12 F.S.M.C. 210. That statute authorizes the court to issue an arrest warrant or penal summons "[i]f the information . . . is supported by one or more written statements under oath . . . showing probable cause . . . ." 12 F.S.M.C. 210.
The government contends that the statute varies from the applicable court-promulgated rule, and that the court rule should be applied instead. The Constitution permits the Chief Justice to promulgate rules, which Congress may amend by statute. FSM Const. art. XI, § 9. These include criminal procedure rules. Id. § 9(c). Congress has the authority to amend or create procedural rules by statute, and when Congress has enacted a procedural rule, it is valid. Jano v. King, 5 FSM Intrm. 326, 331 (App. 1992) (when Congress has acted, the court need not have exercised its concurrent rule-making power); cf. SCREP No. 36, II J. of Micro. Con. Con. 824, 860-61. The Chief Justice does not have the authority to amend Congressionally-enacted statutes. Therefore, if the statute applies and the statute and the rule conflict, the statute must prevail.
The government contends that the statute does not apply because Wiehe’s telephonic application for an arrest warrant was under oath and that since she was a victim, she was applying as a
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complainant and therefore the statute, 12 F.S.M.C. 204, and the rule, FSM Crim. R. 4(a), applying to complaints may be followed. This contention overlooks the government’s earlier-filed criminal information. She could not have been testifying in support of a citizen’s (or her own) complaint. No such complaint was ever filed. There was only the government-filed information. It is also doubtful whether she was properly sworn for a telephonic appearance because it appears that when Wiehe applied for the warrants by telephone she was not sworn in the physical presence of a court clerk or someone else empowered to administer oaths. See FSM v. Skico, Ltd. (III), 7 FSM Intrm. 558, 559 (Chk. 1996) (person giving evidence under oath by telephone must physically appear before someone who can identify the witness and administer the oath).
The government relies on Criminal Procedure Rule 4(a) which provides that "[i]f it appears from the complaint, or from affidavit(s) filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue." FSM Crim. R. 4(a). Rule 9(a) provides that for warrants based on an information, the information must be "supported by a showing of probable cause under oath as is required by Rule 4(a)." FSM Crim. R. 9(a). Rule 4(a) contains an "or" before referring to affidavits, thus making them optional when the prosecution is initiated by a complaint. This is logical because a complaint is "made upon oath before a judicial officer or a clerk of this court." FSM Crim. R. 3. However, an information is not made under oath. See FSM Crim. R. 7. That would appear to leave only affidavits as the means to show the required "probable cause under oath" for informations. If so, then the statute and the rule are consistent with each other. If not, then the statute applies. Either way, the information should have been supported by affidavit(s). It was not.
Since the statute, 12 F.S.M.C. 210, (and possibly the rules) requiring sworn written statements to be filed with the information applies in this case, and since no such statements were attached, Wainit’s and Rizal’s motions to dismiss on this ground are granted. These dismissals are not on the merits. Neither Wainit nor Rizal have 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 of a criminal case because of a defective information is without prejudice. FSM v. Xu Rui Song, 7 FSM Intrm. 187, 190 (Chk. 1995). Since the information was statutorily defective, these dismissals are therefore without prejudice.
If, as is likely, some charges are refiled for the September 6, 2002 Udot incident, they must be filed by a prosecutor not under the supervision of either disqualified attorney (Wiehe and Crabtree), and the files in both this case and any refiled case must be kept safely segregated from any files which a disqualified attorney may have access to. Furthermore, any prosecutor may have no more contact with Wiehe and Crabtree concerning this matter other than the normal contact between a prosecutor and a victim-witness. A memorandum stating these restrictions shall be inserted in each file, if it has not been done already. The government shall file, no later April 1, 2004, a certificate that it has complied with this order.
Since the information in this case is dismissed, the request for an evidentiary hearing is denied, as it would now serve no purpose. Attorneys Wiehe and Crabtree are disqualified from participating (other than as victims and witnesses) in prosecuting charges related to the September 6, 2002 Udot incident, but the motions to disqualify the entire FSM Department of Justice from prosecuting charges related to that incident are denied. Wainit’s and Rizal’s motions to dismiss are granted. The criminal information filed on September 9, 2002 is dismissed as to Wainit and Rizal without prejudice and with leave to refile such charges as are deemed proper by any FSM Department of Justice prosecutor who is not disqualified by this order. This dismissal without prejudice has the additional, salutary effect that
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any refiled information may be redrawn, and possibly streamlined, by fresh eyes with considered judgment exercised after the passage of time has lessened passions.
Should defendant Kent Cheipot (or the government) file a motion to dismiss, based on this ruling, the information as to him, the court expects that it would be granted under similar conditions.
1.Wiehe no longer works at the FSM Department of Justice.
2.This different treatment for private and government law offices is considered to stem, in part, from government agency attorneys not being bound by a common profit motive as are lawyers in private practice, and in part because a prosecutor’s duty is to seek justice, not merely to convict. See United States v. Caggiano, 660 F.2d 184, 190-91 (6th Cir. 1981), cert. denied, 454 U.S. 1149; 455 U.S. 945 (1982); see also Wolfram, supra, § 7.6.5, at 404-05.
3.Although the court must first look to FSM sources of law to establish legal principles in criminal cases rather than begin with a review of cases decided by other courts, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), the FSM court may also look to U.S. sources for guidance in interpreting the rule when the FSM rule is identical or similar to a U.S. counterpart, see, e.g., Bualuay v. Rano, 11 FSM Intrm. 139, 146 n.1 (App. 2002) (appellate rules); Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 n.3 (App. 2000) (civil rules); In re Extradition of Jano, 6 FSM Intrm. 26, 27 n.1 (App. 1993) (Model Rules of Professional Conduct); Etscheit v. Santos, 5 FSM Intrm. 35, 38-39 (App. 1991) (Code of Judicial Conduct); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984) (criminal rules); Porwek v. American Int’l Co. Micronesia, 8 FSM Intrm. 463, 466 n.1 (Chk. 1998) (removal rules). See also FSM v. Edgar, 4 FSM Intrm. 249, 251 (Pon. 1990); Panuelo v. Pohnpei, 2 FSM Intrm. 225, 229-33 (Pon. 1986) for other cases which have used U.S. cases to interpret the Model Rules of Professional Conduct.
4.But see Fox v. Shapiro, 375 N.Y.S.2d 945, 950-51 (N.Y. Sup. Ct. 1975) (when district attorney made detailed arrangements with his staff after his appointment and prior to assuming office to isolate himself from the files and staff members with respect to cases he was disqualified from, his assistants were not disqualified from prosecuting those cases); see also In re Grand Jury Proceedings, 700 F. Supp. 626, 630-31 (D.P.R. 1988), (when the U.S. Attorney had recused himself from any participation in the proceedings, the court denied the disqualification of the entire U.S. Attorney’s office although the U.S. Attorney had an emotional interest because his brother was a government witness and the movant had filed a complaint against his brother); State v. Burton, 751 S.W.2d 440, 452 (Tenn. Crim. App. 1988) (district attorney and his staff were not disqualified from prosecuting a defendant for a robbery although the defendant had stolen the district attorney’s pickup truck after escaping from jail; court concluded that, even if the district attorney were disqualified, his entire staff would not be).