FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Kansou, 13 FSM Intrm. 344 (Chk. 2005).

[13 FSM Intrm. 344]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

ROOSEVELT D. KANSOU, SIMEON R. INNOCENTI,

JOHN PETEWON, JAMES FRITZ, MEMORINA

KANSOU, JOHN ENGICHY a/k/a AISER JOHN

ENGICHY, ROSEMARY ENGICHY a/k/a ROSEMARY

NAKAYAMA, FRANK DARRA, FRANK CHOLYMAY,

EM-R, RIBC AGGREGATES INC., MARKET

WHOLESALE, K & I ENTERPRISES, INC., and SOLID

BUILDERS AND TRADING SERVICES,

Defendants.

CRIMINAL CASE NO. 2003-1508

ORDER DISQUALIFYING PROSECUTOR

Richard H. Benson

Specially Assigned Justice

Hearing:  February 16-17, 2005

Decided:  July 13, 2005

[13 FSM Intrm. 345]

APPEARANCES:

For the Plaintiff:   Matthew Crabtree, Esq.

                                 Assistant Attorney General

                                 FSM Department of Justice

                                 P.O. Box PS-105

                                 Palikir, Pohnpei   FM   96941

For the Defendant:   Scott Garvey, Esq.

                                       (R. Kansou) P.O. Box 114

                                        Kolonia, Pohnpei   FM   96941

For the Defendant:    Joseph Phillip, Esq.

                                        (M. Kansou) P.O. Box 464

                                        Kolonia, Pohnpei   FM   96941

* * * *

HEADNOTES

Contempt

     When counselís contentions are colorable and not made in bad faith, counsel is not subject to criminal liability merely because his or her interpretation or understanding of the law is incorrect. FSM v. Kansou, 13 FSM Intrm. 344, 349 (Chk. 2005).

Contempt

     A possible, but drastic, means by which a party may immediately challenge an interlocutory court order is to not comply with it and thus subject themselves to a contempt proceeding and then appeal the contempt finding, if there is one. Usually in such cases, if the client chooses to follow the attorneyís advice it is only the party disobeying the order, not the partyís attorney, who is then subjected to a contempt proceeding, often as part of the same proceeding in which the disobeyed order was given. FSM v. Kansou, 13 FSM Intrm. 344, 349 (Chk. 2005).

Contempt; Criminal Law and Procedure ) Right to Silence

     An attorney is not liable for criminal contempt for advising his client in good faith to assert his or her privilege against self-incrimination. For an attorney in the Federated States of Micronesia to be liable for criminal contempt for advising a client to assert his or her right to self-incrimination, the attorney must have given that advice in bad faith. FSM v. Kansou, 13 FSM Intrm. 344, 349 (Chk. 2005).

Criminal Law and Procedure ) Prosecutors

     When the prosecutorís filing of a contempt charge against only the defense counsel followed precipitously on the heels of the defense counselís clientsí non-filing of a required report; when the non-complying clients were not charged with contempt; when the prosecutor sought an enlargement of time to respond to already filed motions, for which the rules required a response within ten days, in order to prepare and file a criminal contempt charge although there was no need to prepare the charge in such an immediate fashion since contempt has a three-month statute of limitations; when it would have been salutary for the prosecutor to have taken some time for calm refection and consideration and some research before deciding whether to exercise prosecutorís discretion to file contempt charges and against whom; when the haste with which the contempt charge was brought against defense counsel does not show the impartial exercise of a prosecutorís discretion of whether to initiate a prosecution,

[13 FSM Intrm. 346]

that is required of the prosecutorís office; when, once the prosecutor became aware of the need to prove defense counselís bad faith, he did not move to amend the contempt charge to allege bad faith but months later moved to dismiss the information against defense counsel on other grounds, the court thus concludes that the contempt prosecution was not brought in good faith although the court does not conclude that the contempt prosecution was initiated to intentionally interfere with the defendantsí chosen counsel, but rather that it appeared that it may have had that effect. FSM v. Kansou, 13 FSM Intrm. 344, 349-50 (Chk. 2005).

Criminal Law and Procedure ) Prosecutors

     A prosecutor is held to a higher standard than defense counsel. A prosecutor is much more constrained as an advocate and has the responsibility of a minister of justice and not simply that of an advocate. FSM v. Kansou, 13 FSM Intrm. 344, 349-50 (Chk. 2005).

Criminal Law and Procedure ) Prosecutors

     A prosecutor must have no interest in the caseís outcome other than that justice be done because the governmentís interest in a criminal case is not that it should win the case, but that justice be done. FSM v. Kansou, 13 FSM Intrm. 344, 350 (Chk. 2005).

Criminal Law and Procedure

     It is in the publicís interest that the judicial process should both appear fair and be fair in fact. FSM v. Kansou, 13 FSM Intrm. 344, 350 (Chk. 2005).

Attorney and Client ) Disqualification of Counsel; Criminal Law and Procedure ) Prosecutors

     When the prosecution of defense counsel for contempt was not in good faith and had the effect of appearing unfair and interfering with the defendantsí choice of counsel and when that prosecution was not demonstrated to be harmless, the prosecutor will be disqualified from prosecuting those defendants. FSM v. Kansou, 13 FSM Intrm. 344, 350 (Chk. 2005).

Criminal Law and Procedure ) Prosecutors

     The record is wholly inadequate to disqualify the entire FSM Department of Justice or any other member of that department when the record shows that one prosecutor must be disqualified from prosecuting some of the defendants. FSM v. Kansou, 13 FSM Intrm. 344, 350 (Chk. 2005).

Attorney and Client ) Disqualification of Counsel; Criminal Law and Procedure ) Prosecutors

     Neither the prosecutorís search of another private law office on Pohnpei nor defense counselís possible fee-forfeiture warrant the prosecutorís disqualification. Nor does defense counselís civil suit against the prosecutor have any bearing on whether the prosecutor should be disqualified. FSM v. Kansou, 13 FSM Intrm. 344, 350 (Chk. 2005).

* * * *

COURTíS OPINION

RICHARD H. BENSON, Specially Assigned Justice:

     This comes before the court on Defendant Roosevelt Kansouís Motion to Renew His Motion to Disqualify the FSM Department of Justice and Matthew Crabtree, filed February 16, 2005. Defendant Memorina Kansou orally joined the motion. The government waived its right to reply in writing and oral argument on the motion was heard on February 16 and 17, 2005. The motion to disqualify Matthew Crabtree is granted and the motion to disqualify the FSM Department of Justice is denied. The courtís reasons follow.

[13 FSM Intrm. 347]

I.  Background

     The criminal information in this matter was filed on November 11, 2003. At the January 13, 2004 initial appearance, Michael J. Sipos appeared as attorney for defendants Roosevelt D. Kansou, Memorina Kansou, and EM-R (a partnership owned by Roosevelt D. Kansou and Memorina Kansou). The pretrial release order made at that hearing, and memorialized in a January 15, 2004 written order, included a provision that the defendants

must, on or before the tenth of each month, report to the Secretary of Justice in writing, all funds sent outside of the FSM, showing the payee, amount, date, and purpose; the report due February 10, 2004 shall cover January 13-31, 2004, and all subsequent reports shall cover the previous calendar month;

Pretrial Release Order ∂∂ 1(c) [R. Kansou], 5(b) [M. Kansou], 8(c) [EM-R] (Jan. 15, 2004).

     At some point, the prosector informed counsel Sipos that since this is a money-laundering case, the government may, at some future point, seek forfeiture, as tainted funds, of some or all of the fees paid to counsel. A letter concerning this and noting that it was speculative whether any fees would be forfeitable was sent to Sipos on January 16, 2004. Letter from FSM Assistant Attorney General Matthew Crabtree to Michael J. Sipos (Jan. 16, 2004).

     On January 26, 2004, Sipos filed a civil suit against prosecutor Crabtree individually and against him and others in their official capacities. That suit sought money damages for civil conspiracy and civil rights, declaratory and injunctive relief that attorneyís fees are not forfeitable, and punitive damages. The basis for that still pending action was the prosecutorís warning to Sipos that Siposís attorneyís fees might be forfeitable and that the release terms the prosecutor had sought for the defendants in this case were unlawful.

     No judge was available to actively preside over this case from late January, 2004 to late August, 2004.

     On February 3, 2004, Sipos filed on his clientsí behalf, a motion that sought, among other things, to modify their pretrial release conditions. On February 9, 2004, Sipos served on the Department of Justice a motion seeking a stay of the release condition reporting requirement. It stated that "[w]ith all due respect to the court, and understanding that the defendants are acting under advice of counsel, moving defendants hereby respond to the reporting requirement by invoking their right to silence." Motion at 3 (Feb. 12, 2004). The motion was filed on February 12, 2004. No report were filed.

     On February 12, 2004, the prosecutor served a motion, (filed on February 16, 2004) to enlarge time to respond to the February 3, 2004 motions. One of the reasons given for the enlargement request was "the need to draft and file a contempt action." Motion at 2 (Feb. 16, 2004).

     On February 16, 2004, prosecutor Crabtree filed a criminal information charging counsel Sipos with contempt of court. Attached to the information as exhibits were a copy of the January 15, 2004 release order and a copy of the motion served on February 9th. The information charged Sipos with

[13 FSM Intrm. 348]

one count of criminal contempt for intentionally obstructing the administration of justice or intentionally disobeying a court order by telling his clients to disobey the court order requiring monthly reports. It asserted that, as an officer of the court, Sipos had a duty not to advise his clients that they do not have to comply with a lawfully issued court order.

     On November 8, 2004, counsel Sipos filed a notice that his clients in this case had discharged him.

     On December 3, 2004, the prosecutor filed a motion to dismiss the criminal information filed against Sipos. The defense filed its response on December 21, 2004, and the case was dismissed on December 27, 2004.

II.  Partiesí Contentions

     The present motion asks that the FSM Department of Justice and prosecutor Crabtree be disqualified from appearing further in this case. The motion is based in large part on the circumstances surrounding the filing of criminal charges against counsel Sipos. It is also based upon Crabtreeís raising the fee forfeiture issue with counsel Sipos and upon the execution, at another private law firm in Pohnpei, of a search warrant seeking evidence in this case.

     The movants contend that an attorney is not liable for criminal contempt for advising his client in good faith to assert his or her privilege against self-incrimination. For this proposition they rely on Maness v. Meyers, 419 U.S. 449, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975). From this, they conclude that the criminal contempt charge against Sipos was unfounded and that the filing of the charge therefore showed an absence of prudence by Crabtree. The movants assert that this, along with the prosecutorís search of another private law office on Pohnpei for evidence in this case and the warning of possible fee forfeiture resulted in the interference with or violation of their right to effective assistance of counsel.

     The prosecutor acknowledges that all criminal defendants have a constitutional right to an attorney of their choice and states that the Department of Justice did not want to interfere with any defendantís attorney of choice and asserts that because Sipos was charged does not mean that the movants were deprived of their counsel of choice. The prosecutor contends that the charge was filed against Sipos because when court orders are not respected and obeyed the system breaks down. The prosecutor concedes that if he had been aware of Maness before the Sipos case was filed, he might not have filed that case, but he still believed that Sipos did not act in good faith.

     The prosecutor asserts that Sipos, instead of telling his clients not to comply with the reporting requirement, could have sought a writ of prohibition from the appellate division or sought an order to file under seal, but did not. The prosecutor argues that since basic research would have shown that business entities have no right against self-incrimination, Siposís advice must have been given in bad faith because it was without merit. The prosecutor notes that Siposís clients discharged him ) Sipos did not ask to withdraw as their counsel. The prosecutor also contends that while the Constitution guarantees a defendant an attorney of his or her choice, it does not guarantee that attorney immunity from prosecution for bad conduct. The prosecutor asserts that he was not biased against Sipos, but was prosecuting improper conduct and that Sipos stepped over the line a lot, including making intemperate and disparaging remarks about the court.

III.  Discussion

     Sipos did take appropriate steps to assert his clientsí perceived rights. On February 3, 2004,

[13 FSM Intrm. 349]

he filed a motion to reconsider the reporting requirements. On February 9, 2004, he tried to move for a stay of the reporting requirements. (It was not filed until February 12, 2004.) Counsel Sipos, in this regard, proceeded as a defense counsel should ) to try to obtain relief from the trial court. When he was unable to, he advised his clients to decline to comply with the reporting requirement and to invoke the right to silence.

     The prosecutor asserts that because basic research would have shown that business entities have no right to assert a privilege against self-incrimination that the motions and Siposís advice was given in bad faith. That principle, however, applies to only one of Siposís three clients ) the EM-R partnership. Although the court later rejected Siposís contentions on his clientsí behalf concerning the right against self-incrimination, FSM v. Kansou, 12 FSM Intrm. 637, 642-43 (Chk. 2004), the court concludes that those contentions were colorable and not made in bad faith. Counsel is not subject to criminal liability merely because his or her interpretation or understanding of the law is incorrect. See, e.g., Maness, 419 U.S. at 467-68, 95 S. Ct. at 595-96, 42 L. Ed. 2d at 588-89; In re Watts, 190 U.S. 1, 32, 23 S. Ct. 718, 726, 47 L. Ed. 933, 943 (1903). The court also notes, that while the prosecutor referred to various intemperate and ill-conceived remarks made by Sipos about the court, those remarks were not included in the contempt charge or mentioned in the information. The court will therefore not consider those remarks while deciding this motion.

     A possible, but drastic, means by which a party may immediately challenge an interlocutory court order is to not comply with it and thus subject themselves to a contempt proceeding and then appeal the contempt finding, if there is one. See Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 466, 470 (Pon. 2001). Usually in such cases, if the client chooses to follow the attorneyís advice it is only the party disobeying the order, not the partyís attorney, who is then subjected to a contempt proceeding, often as part of the same proceeding in which the disobeyed order was given. The court concludes that the standard enunciated in Maness ) that an attorney is not liable for criminal contempt for advising his client in good faith to assert his or her privilege against self-incrimination ) is an appropriate standard to adopt in the Federated States of Micronesia. Thus, for an attorney in the Federated States of Micronesia to be liable for criminal contempt for advising a client to assert his or her right to self-incrimination, the attorney must have given that advice in bad faith.

     The prosecutorís filing of a contempt charge only against Sipos followed promptly, even precipitously, on the heels of Siposís clientsí non-filing of the report due February 10, 2004. The non-complying clients were not charged with contempt. An enlargement of time was sought to respond to already filed motions for which the rules require a response within ten days, FSM Crim. R. 45(d), in order to prepare and file a criminal contempt charge although contempt has a three-month statute of limitations, 4 F.S.M.C. 119(2)(b), and thus there was no need to prepare the charge in such an immediate fashion. It would have been salutary for the prosecutor to have taken some time for calm refection and consideration (and probably for some research) before deciding whether to exercise prosecutorís discretion whether to file contempt charges and against whom. The haste with which the contempt charge was brought against Sipos does not show the impartial exercise of a prosecutorís discretion of whether to initiate a prosecution, that is required of the prosecutorís office. See FSM v. Wainit, 12 FSM Intrm. 360, 363-64 (Chk. 2004). Once the prosecutor became aware of Maness, he did not move to amend the charge against Sipos to allege bad faith. Months later, the prosecutor moved to dismiss the Sipos information on other grounds.

     A prosecutor is held to a higher standard than defense counsel. See FSM MRPC R. 3.8; Charles W. Wolfram, Modern Legal Ethics ß 13.10.4, at 765 (1986) ("a prosecutor is much more constrained as an advocate"). "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." FSM MRPC R. 3.8

[13 FSM Intrm. 350]

cmt. (noted with approval in Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 62, 66 (Pon. 1991)). This is because a prosecutor must have no interest in the caseís outcome other than that justice be done because the governmentís interest in a criminal case is not that it should win the case, but that justice be done. FSM v. Wainit, 12 FSM Intrm. 172, 180 (Chk. 2003).

     The court thus concludes that the Sipos contempt prosecution was not brought in good faith. The court does not conclude that the contempt prosecution was initiated to intentionally interfere with the movantsí chosen counsel, but rather that it appeared that it may have had that effect. It is in "the publicís interest that the judicial process [should] both appear fair and be fair in fact." State v. Lettice, 556 N.W.2d 376, 378 (Wis. Ct. App. 1996) (filing unfounded contempt charges against defense counsel on eve of trial was prosecutorial misconduct requiring reversal). The prosecution of Sipos for contempt had that effect ) to appear unfair and to interfere with the movantsí choice of counsel. The Sipos prosecution was not demonstrated to be harmless.

     Therefore Crabtree is disqualified from prosecuting defendants Roosevelt D. Kansou, Memorina Kansou, and EM-R. The record is wholly inadequate to disqualify the entire FSM Department of Justice or any other member of that department. See In re Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993) (disqualification of all government attorneys in an office is not required when one is disqualified); FSM v. Wainit, 12 FSM Intrm. 376, 380 & n.2 (Chk. 2004) (same); FSM v. Wainit, 12 FSM Intrm. 172, 179 (Chk. 2003)(same). Crabtree is not disqualified from prosecuting the other defendants.

     Neither the prosecutorís search of another private law office on Pohnpei nor the fee-forfeiture problem warrant the prosecutorís disqualification and neither affect the courtís view of this disqualification motion. Nor does Siposís civil suit against Crabtree have any bearing on whether prosecutor Crabtree should be disqualified. United States v. Kember, 685 F.2d 451, 458 (D.C. Cir. 1982) ("a defendant cannot disqualify a prosecutor by the mere filing of a lawsuit"); United States v. Heldt, 668 F.2d 1238, 1276 (D.C. Cir. 1981).

IV.  Conclusion

     Accordingly, only Matthew Crabtree is disqualified from prosecuting defendants Roosevelt D. Kansou, Memorina Kansou, and EM-R. He is not disqualified from prosecuting the other defendants in this matter. Nor is the FSM Department of Justice or any other member of it disqualified from prosecuting any defendant named in this matter.

* * * *