FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Fu Yuan Yu 398
12 FSM Intrm. 487 (Pon. 2004)

[12 FSM Intrm. 487]

FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
FU YUAN YU 398, a fishing vessel, CAI JIA
JI, CHEN PING, and MICRONESIA FISHING
VENTURE, INC.,
Defendants.
 
CRIMINAL CASE NO. 2001-504
 
MEMORANDUM OF DECISION
 
Andon L. Amaraich
Chief Justice
 
Hearing: May 21, 2002
Order Entered: December 9, 2002
Memorandum Entered: June 11, 2004

APPEARANCE:

For the Plaintiff:             Catherine L. Wiehe, Esq.
                                       Assistant Attorney General
                                       FSM Department of Justice
                                       P.O. Box PS-105
                                       Palikir, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure ) Dismissal
      The attorney for the government may by leave of court file a dismissal of an information or complaint. FSM v. Fu Yuan Yu 398, 12 FSM Intrm. 487, 491 (Pon. 2004).
 
Criminal Law and Procedure ) Dismissal; Marine Resources; Settlement
     While the prosecution has broad discretion in determining whether to initiate litigation, once that litigation is instituted in court, the court also has responsibility for assuring that actions thereafter taken are in the public interest; therefore criminal litigation can be dismissed only by obtaining leave of the court. In a fishing case where criminal and civil cases are filed together, and the dismissal of the criminal proceeding(s) is obviously "integral" to the settlement agreement for which court approval is sought, the same policy considerations apply to the settlement of the civil proceeding(s) as apply to the criminal dismissal. FSM v. Fu Yuan Yu 398, 12 FSM Intrm. 487, 491 (Pon. 2004).
 
Criminal Law and Procedure ) Dismissal
     Factors to examine when determining whether a dismissal is in the public interest include
 
[12 FSM Intrm. 488]

whether the dismissal involved any harassment of the defendants and whether a bona fide reason exists for the dismissal. FSM v. Fu Yuan Yu 398, 12 FSM Intrm. 487, 491 (Pon. 2004).
 
Criminal Law and Procedure ) Dismissal
     The court is required to exercise sound judicial discretion in considering a request for dismissal. This requires that the court have factual information supporting the request. FSM v. Fu Yuan Yu 398, 12 FSM Intrm. 487, 491 (Pon. 2004).
 
Criminal Law and Procedure ) Dismissal
     Rule 48 contemplates public exposure of the reasons for a prosecutionís abandonment in order to prevent abuse of the power of dismissal. The court must be satisfied that the reasons advanced for dismissal are substantial and in the public interest and are the real grounds upon which the application is based, and it should not be content with mere conclusory statements that the dismissal is in the public interest, but will require a statement of the underlying reasons and underlying factual basis. FSM v. Fu Yuan Yu 398, 12 FSM Intrm. 487, 491 (Pon. 2004).
 
Marine Resources
      A purpose of Title 24 is to protect marine resources, which are vital to the people of the FSM, from abusive fishing practices. FSM v. Fu Yuan Yu 398, 12 FSM Intrm. 487, 492 (Pon. 2004).
 
Criminal Law and Procedure ) Dismissal; Marine Resources
     Title 24 establishes agencies to conclude fishing agreements and establish regulations for the exploitation of FSM marine resources. In fishing cases, when the prosecution seeks a dismissal, the court should be presented with evidence that appropriate agencies have been involved in the resolution of the case(s). FSM v. Fu Yuan Yu 398, 12 FSM Intrm. 487, 492 (Pon. 2004).
 
Criminal Law and Procedure ) Dismissal
     When, although the settlement contains fines which seem quite small in comparison to the potential fines the defendants face if found guilty, the particular violations are minor and somewhat technical violations of the law, rather than a blatant disregard of the law regulating foreign fishing vessels operating in FSM waters, and when the settlement amount includes an understanding by the FSM that its case is not a very strong one and it is very possible that it might not be able to prove its case against the defendants if it took the case to trial, the court finds sufficient reasons stated to justify dismissal of the action. FSM v. Fu Yuan Yu 398, 12 FSM Intrm. 487, 492 (Pon. 2004).

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COURTíS OPINION

ANDON L. AMARAICH, Chief Justice:

     On December 18, 2001, plaintiff FSM filed a motion for dismissal pursuant to FSM Criminal Rule 48(a). On December 9, 2002, the court issued an order granting plaintiffís motion to dismiss. This memorandum discusses the reasons supporting the courtís granting of plaintiffís motion to dismiss.

Background

1. Criminal Information

     The FSM filed the criminal information in this action on November 29, 2001. On the same date, the FSM also initiated a civil proceeding, FSM Civ. No. 2001-053, against the same defendants (Fu

[12 FSM Intrm. 489]

Yuan Yu 398, Chen Ping, Cai Jia Ji and Micronesia Fishing Venture, Inc.) for the same set of circumstances.1

     The criminal information alleges that on November 24, 2001, defendant Chen Ping, the captain of the vessel Fu Yuan Yu 398, failed to accurately record the vesselís catch in the logbook and log sheet. Plaintiff alleges that the failure to maintain accurate logs detailing the fishing vesselís activities constitutes a violation of a foreign fishing agreement and a violation of Section 501(1)(a) of Title 24 of the Code of the Federated States of Micronesia. The criminal penalty for violation of 24 F.S.M.C. 501(1) is a fine of not less than $10,000 and not to exceed $500,000. 24 F.S.M.C. 503(2).

     Plaintiff further alleges that defendants provided information in their logbook and logsheets regarding species and quantity of fish taken while knowing or having reasonable cause to believe that the information for misleading, incomplete, or false. Plaintiff alleges that this conduct constituted a violation of 24 F.S.M.C. 501(1)(h), and that the penalty for violation of that section is a fine of not less than $100,000. 24 F.S.M.C. 503(3).

2. Motion to Dismiss

     On December 18, 2001, plaintiff filed a motion to dismiss all of the charges in this case pursuant to FSM Criminal Rule 48.2 On April 15, 2002, this court entered an order/notice of hearing requiring the parties to present the underlying reasons and factual basis for dismissal of the criminal charges in this case and settlement of the stipulated settlement agreements in Civil Action Nos. 2001-053 and 2001-054, so that the court could determine whether the dismissal in this case and the settlement in the civil cases was in the public interest.

3. May 21, 2002 Hearing

     On May 21, 2002, a hearing was held on the plaintiffís motion to dismiss pursuant to FSM Criminal Rule 48(a) and to determine the underlying reasons/factual basis supporting the motion for dismissal. Plaintiff was represented by Catherine L. Wiehe. Defendant was not represented by counsel.3

     Mr. Pangelinan, a Deputy Director for NORMA, the FSM National Oceanic Resource Management Authority, testified on behalf of Plaintiff. He stated he is familiar with this facts and circumstances of this case. He testified that the settlement for the cases was $15,000 for one case (2001-053) and $7,000 for the other case (2001-054). He testified that NORMA was consulted by the Department of Justice in regards to the settlement of these cases, and that NORMA agreed that the settlement was consistent with the nature of the case and the charges filed. NORMA had been concerned with shark fishing in the FSM Exclusive Economic Zone (EEZ), however, there were no specific laws to regulate shark fishing. NORMA was concerned about defendantsí failure to log certain catches. In the

[12 FSM Intrm. 490]

witnessesí opinion, NORMA considered defendantsí violations in these cases to be minor violations of Title 24 of the FSM Code.

     One of the alleged violations includes fines of $100,000, and up to $500,000. He testified that there is new legislation pending before Congress to allow for administrative fines. It was thought that the fines provided in Title 24 were too excessive for minor violations such as failure to keep accurate logs as in this case.

      Mr. Pangelinan testified that the laws permit fishing for non-tuna fish species. The laws do not state whether log books need to be completed each day or not. The witness stated that fishing captains sometimes forget to log everything they catch. Further, the nature of tuna fishing is that incidental catch of non-tuna species results. The overall sense of NORMA was that the violations in this case seemed minor. NORMA was satisfied with the resolution in this case, and believed that the settlement was reasonable.

     Mr. Pangelinan testified that the procedure in "fishing violation" cases is that the FSM patrol boats will approach the suspected vessel. Then FSM personnel will board the vessel and search for violations. If suspected violations of the law are observed, the FSM Department of Justice will be consulted for advice. Mr. Pangelinan stated that he believed that he was consulted on behalf of NORMA by the Department of Justice as to how the FSM should proceed in this matter.

     Mr. Pangelinan further testified that the fishing vessel (Fu Yuan Yu 398) was brought into port. He stated that the FSM had difficulty arresting and holding the boat for the suspected violation of targeting shark because there were no specific laws in place to prohibit the targeting of shark. He believed that if the vessel had been truly targeting shark, the set up on board would have been different. The suspected violations concerned an inaccurate logging of the catch ) NORMA believed that some of the catch had not been logged properly.

     The witness also testified that there was discussion between NORMA and the Department of Justice regarding whether the bycatch was a violation of Title 24; he stated that he informed the Assistant Attorney General he spoke to that he had problems with arresting the boat for possibly targeting shark (he could not remember who he spoke to at the Department of Justice). He believed it would be hard to prove in court that the vessel had indeed been targeting shark. Mr. Pangelinan stated that he was more concerned with the vesselís apparent inaccurate logs, as fisheries management (NORMAís responsibility) is dependant upon accurate information provided by the fishing vessels.

     Mr. Pangelinan also testified that NORMA was consulted by the Department of Justice prior to the settlement agreed to by the parties. While he himself did not have authority on behalf of NORMA to consent to the settlement, he discussed the case with the Executive Director who did have authority and did consent on behalf of NORMA to the settlement reached by the parties. Mr. Pangelinan stated that he participated in a series of meetings with Assistant Attorney General Catherine Wiehe wherein it was discussed what would constitute a reasonable settlement value in this case.

     Mr. Pangelinan testified that he is satisfied with the settlement because the facts of the case were such that it would have been a difficult case to prove for the FSM; it would have been difficult to prove the alleged violations of Title 24. The maximum fines provided for seemed quite excessive for the suspected minor violations of Title 24 alleged in the information. One of the main reasons underlying the FSMís desire to dismiss this case is the realization that it does not have a strong case against the defendants. Further, it is not clear under the present law whether the mere presence of bycatch is a problem. Additionally, the FSM is moving towards implementation of administrative fines and penalties to address minor violations of the law.

[12 FSM Intrm. 491]

     The witness testified that there are not specific guidelines and procedures for handling cases such as this one. It depends on the Secretary of Justice and the President of the FSM. Mr. Pangelinan stated that if NORMA disagrees with the Department of Justice on a case, NORMA would typically defer to the DOJ as the DOJ is the governmental agency possessing legal expertise.

Discussion

     Rule 48(a) of the FSM Rules of Criminal Procedure provides that the attorney for the government may by leave of court file a dismissal of an information or complaint.

     The information in the criminal case charges a violation of 24 F.S.M.C. 501(1)(a), with a possible fine of up to $500,000, and 24 F.S.M.C. 501(1)(h), with a fine of not less than $100,000, or imprisonment of up to two years. The maximum civil penalty for the violations alleged in the two civil actions is a fine totaling $15,000,000.

      In FSM v. Ocean Pearl, 3 FSM Intrm. 87 (Pon. 1987), the court stated that "[w]hile the prosecution has broad discretion in determining whether to initiate litigation, once that litigation is instituted in court, the court also has responsibility for assuring that actions thereafter taken are in the public interest; therefore criminal litigation can be dismissed only by obtaining leave of the court." Further, the court determined that, in a fishing case where criminal and civil cases are filed together, and the dismissal of the criminal proceeding(s) is obviously "integral" to the settlement agreement for which court approval is sought, the same policy considerations apply to the settlement of the civil proceeding(s) as apply to the criminal dismissal.

      In Ocean Pearl, initial settlement negotiations between the FSM and the defendants resulted in a settlement in the amount of $65,000. The defendants included a United States company and ship. When it came to light that the defendants would be seeking reimbursement of the $65,000 penalty from the U.S. Fishermanís Protection Act, which could conceivably result in the U.S. seeking reimbursement from the FSM (most likely by withholding compact funds) in that amount, the FSM wished to include language in the settlement agreement which would condition the settlement upon the U.S. not imposing economic sanctions on the FSM as a result. Defendants refused to include such language. When settlement negotiations broke down, defendants filed a motion to enforce the earlier agreement.

      In Ocean Pearl, the court denied defendantsí motion to enforce the settlement as it found that there might be reasons why a prosecutor should retain discretion to abort a plea agreement upon learning information subsequent to execution of a written plea agreement but before presentation of the agreement to the court. 3 FSM Intrm. at 91.

     Factors to examine when determining whether a dismissal is in the public interest include whether the dismissal involved any harassment of the defendants and whether a bona fide reason exists for the dismissal. FSM v. Yue Yuan Yu No. 346, 7 FSM Intrm. 162 (Chk. 1995).

     The court is required to exercise sound judicial discretion in considering a request for dismissal. This requires that the court have factual information supporting the request. Rule 48 contemplates public exposure of the reasons for the abandonment of a prosecution in order to prevent abuse of the power of dismissal. The court must be satisfied that the reasons advanced for dismissal are substantial and in the public interest and are the real grounds upon which the application is based. The court should not be content with mere conclusory statements that the dismissal is in the public interest, but will require a statement of the underlying reasons and underlying factual basis.

[12 FSM Intrm. 492]

     A purpose of Title 24 F.S.M.C. is to protect marine resources which are vital to the people of the FSM from abusive fishing practices. The FSM Code vests the prosecutor with the authority and responsibility to seek substantial fines for violations of the title, in this case fines of up to $15,000,000. Title 24 also establishes agencies to conclude fishing agreements and establish regulations for the exploitation of marine resources in the FSM. In fishing cases such as these, the court should be presented with evidence that appropriate agencies have been involved in the resolution of the case(s).

     The court believes that the plaintiff has established that the dismissal of this case is in the public interest. The Court notes that the settlement contained fines which seemed quite small in comparison to the potential fines defendants faced if found guilty, but the plaintiff has shown that the particular violations in this case are minor and somewhat technical violations of the law, rather than a blatant disregard of the law regulating foreign fishing vessels operating in FSM waters. Further, the settlement amount includes an understanding by plaintiff that its case is not a very strong one and it is very possible that the FSM might not be able to prove its case against the defendants if plaintiff took the case to trial. The court finds that sufficient reasons were stated, justifying the dismissal of this action.

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________________________________________

Footnotes:

1. Also on November 29, 2001, the FSM initiated a civil proceeding, FSM Civ. No. 2001-054, for identical causes of action for actions allegedly committed by another vessel, the Fu Yuan Yu 399.

2. Also on December 18, 2001, plaintiff filed a stipulated settlement agreement in Civil Action Nos. 2001-053 and 2001-054, civil cases related to this criminal matter, agreeing to settle those cases upon payment of a combined fine of $22,000 by defendants. On April 19, 2002, the FSM filed a notice of dismissal pursuant to FSM Civil Rule 41(a)(1) in both Civil Action Nos. 2001-053 and 2001-054.

3. Defendants never filed an answer or otherwise responded to the complaint.