FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Kansou, 13 FSM Intrm. 392 (Chk. 2005).

[13 FSM Intrm. 392]

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 DENYING APPOINTMENT OF COUNSEL

Richard H. Benson

Specially Assigned Justice

Decided: September 2, 2005

APPEARANCES:

For the Defendant:   Scott Garvey, Esq.

                                      (R. Kansou) P.O. Box 114

                                      Kolonia, Pohnpei   FM   96941

For the Respondent:   Beauleen Carl-Worswick, Esq.

                                          Chief Public Defender

                                          Office of the Public Defender

                                          P.O. Box PS-174

                                          Palikir, Pohnpei   FM   96941

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HEADNOTES

Criminal Law and Procedure ) Motions

     A "brief" is in effect a motion when it asks the court for relief. FSM v. Kansou, 13 FSM Intrm. 392, 394 (Chk. 2005).

Criminal Law and Procedure

     A corporation, or unincorporated association, or other organization is a "person" under the criminal code. FSM v. Kansou, 13 FSM Intrm. 392, 394 (Chk. 2005).

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Criminal Law and Procedure ) Right to Counsel

     All criminal defendants, including corporations, have the right to effective assistance of counsel. FSM v. Kansou, 13 FSM Intrm. 392, 394 (Chk. 2005).

Constitutional Law ) Professional Services Clause; Criminal Law and Procedure ) Right to Counsel

     The Office of the Public Defender was created by 2 F.S.M.C. 204(5). For at least the criminal side of the docket, this represents Congressís affirmative implementation of the Constitutionís Professional Services Clause. The primary, perhaps even the sole, responsibility, for the Professional Services Clauseís affirmative implementation lies with Congress. FSM v. Kansou, 13 FSM Intrm. 392, 394 & n.1 (Chk. 2005).

Constitutional Law ) Professional Services Clause

     The Professional Services Clause provides that the FSM national government recognizes the peopleís right to education, health care, and legal services and shall take every step reasonable and necessary to provide these services. The term "the people" refers only to natural persons, and does not include juridical persons such as corporations. FSM v. Kansou, 13 FSM Intrm. 392, 394-95 (Chk. 2005).

Constitutional Law ) Professional Services Clause; Criminal Law and Procedure ) Right to Counsel

     The framersí intent in including the Professional Services Clause was to establish a national policy of providing the services when requested by individual citizens unable to provide for themselves, although these services would not necessarily be free. Thus the framers intended that these professional services were to be provided only to natural persons, not to artificial persons. Therefore neither the Office of the Public Defenderís refusal to represent business entity defendants nor Public Defender Directive No. 19 barring such representation is unconstitutional. FSM v. Kansou, 13 FSM Intrm. 392, 395 (Chk. 2005).

Criminal Law and Procedure ) Right to Counsel

     For appointment of counsel under Rule 44(a), the rule requires that a defendant be unable to obtain counsel. Before the court can make a determination that a business entity defendant is unable to obtain counsel, the court would need detailed evidence concerning each entity defendantís financial situation, its ability to pay counsel, whether it has sought to obtain counsel, which counsel it had tried to retain, and what was the result of each of those attempts. Without that information, the court has no ground on which to conclude that the entity defendants, or any one of them, are unable to obtain counsel, or that they have even tried to. When none of that information is before the court, the court, without deciding whether Rule 44(a) applies to defendants who are not natural persons, will decline to appoint counsel for the entity defendants under Rule 44(a). FSM v. Kansou, 13 FSM Intrm. 392, 395 (Chk. 2005).

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COURTíS OPINION

RICHARD H. BENSON, Specially Assigned Justice:

     On March 18, 2005, the court asked the government to file a brief on how to proceed in relation to the entity defendants ) two partnerships, EM-R and Solid Builders and Trading Services, and two corporations, RIBC Aggregates Inc. and K & I Enterprises, Inc. The government did not respond. On June 22, 2005, defendant Roosevelt Kansou (a partner in both partnerships and a shareholder in both corporations) filed his Brief in Support of Appointment of Counsel for the Entity Defendants, which asks the court to appoint counsel for each of the entity defendants at the Office of the Public Defenderís

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expense. Since such appointments would greatly impact the Office of the Public Defender, the Chief Public Defender was asked to submit a brief on that officeís position on the point. That brief was filed on August 4, 2005. All other parties were invited to also state their positions. None did.

I.

     Kansouís "brief" is in effect a motion because it asks the court for relief. FSM Crim. R. 12(b). It asks the court to order the Office of the Public Defender to provide legal representation for the entity defendants, or, in the alternative, that the court find that the entity defendants are unable to find their own counsel and appoint counsel for them pursuant to Criminal Procedure Rule 44(a) and the FSM Model Rules of Professional Conduct Rule 6.2. Kansou asserts that his own ability to defend himself is damaged by the entity defendantsí lack of counsel and their resulting inability to present an effective, or any, defense. Kansou contends that since the "Office of the Public Defender is responsible for legal representation of persons in criminal cases," Pres. Exec. Order No. 1, ß 10, and since a "corporation or unincorporated association, or other organization" is a "person" under the criminal code, 11 F.S.M.C. 104(9), and are "persons" under the statute, 11 F.S.M.C. 918(1), the entity defendants are charged with violating, they are entitled to legal representation by the Office of the Public Defender.

     Kansou contrasts the FSM, where he contends there are no limitations on the types of persons the Public Defender can represent, with New York, where only persons subject to possible imprisonment are afforded appointed counsel and since corporations cannot be imprisoned they are not entitled to appointed counsel. Kansou further contends that Criminal Procedure Rule 44(a) requires the court to appoint counsel for all defendants who are unable to retain their own counsel and that the record shows that the entity defendants are unable to obtain counsel on their own.

II.

     Under article IV, section 6 of the Constitution, all criminal defendants, including corporations, have the right to effective assistance of counsel. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477-78 (App. 1996) (corporation is entitled to effective assistance of its retained counsel; question of whether a corporation is entitled to appointed counsel not reached). However, that is not the issue before the court. The issue presented is whether the entity defendants are entitled to appointed counsel at the Office of the Public Defenderís expense.

     The Office of the Public Defender denies that it is required to provide counsel for the entity defendants. It cites Public Defender Directive No. 19. That directive, issued on January 5, 1995, by the then Chief Public Defender Joe Phillip, bars "all FSM Public Defender attorneys, trial counselors, and investigators" from engaging in the representation of or providing legal representation to "corporations, companies, or to any business entities of any type; in any legal proceeding before any municipal, state, or national court; or before any administrative or adjudicatory body in the FSM."

     The Office of the Public Defender was created by 2 F.S.M.C. 204(5). For at least the criminal side of the docket, this represents Congressís affirmative implementation of the Constitutionís Professional Services Clause. That Clause provides that the FSM national government "recognizes the right of the people to education, health care, and legal services and shall take every step reasonable and necessary to provide these services." FSM Const. art. XIII, ß 1. The term "the people" refers only to natural persons, see Blackís Law Dictionary 1022 (5th ed. 1979) ("as generally used in constitutional law," the people means "the entire body of those citizens of a state or nation who are invested with

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political power for political purposes"), and does not include juridical persons such as corporations. For example, such juridical persons would not need health care or education.

     The framersí intent was "to establish a national policy of providing the services when requested by individual citizens unable to provide for themselves," although these services would not necessarily be free. Summary Minutes, Committee of the Whole, II J. of Micro. Con. Con. 730 (Oct. 31, 1975). Thus the framers intended that these professional services were to be provided only to natural persons, not to artificial persons.

     The court therefore concludes that neither the Office of the Public Defenderís refusal to represent business entity defendants nor Public Defender Directive No. 19 is unconstitutional. Thus the court cannot require that office to secure counsel for the four entity defendants on a constitutional basis.

III.

     Besides the constitutional ground, Kansou asserts a second ground for the court to appoint attorneys for the entity defendants. He relies on Criminal Procedure Rule 44(a), which states: "Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned at every stage of the proceedings from his initial appearance through appeal, unless the defendant waives such appointment." Kansou asserts that the entity defendants are covered by this rule. He further asserts that the entity defendants must be, or will be, unable to obtain counsel as evidenced by the courtís own difficulties in appointing counsel for other defendants in this case. Kansou also suggests that this case is an unpopular matter and that the defendants in this case are unpopular clients, and that the court should exercise its authority under FSM Model Rule of Professional Conduct Rule 6.2 to assure that individual lawyers fulfill their pro bono publico responsibilities by accepting their fair share of unpopular clients or persons unable to afford legal services. The Chief Public Defender supports any involvement by the private bar "in rendering pro bono services to any person or defendant[] charged with an offense in any conflicting situation where defendant(s) is/are unable to retain their own attorney because of indigence or other good reasons." Chief Public Defenderís Br. at 4.

     Without deciding whether Criminal Procedure Rule 44(a) applies to defendants who are not natural persons ) not human beings ) the court declines to appoint counsel for the entity defendants under Rule 44(a). The rule requires that a defendant be unable to obtain counsel. Before the court can make a determination that an entity defendant is unable to obtain counsel, the court would need detailed evidence concerning each entity defendantís financial situation, its ability to pay counsel, whether it has sought to obtain counsel, which counsel it had tried to retain, and what was the result of each of those attempts. None of that information is before the court. Without it, the court has no ground on which to conclude that the entity defendants, or any one of them, are unable to obtain counsel, or that they have even tried to. Cf. In re Appointment of Counsel to CLM Constr. Co., 649 A.2d 888, 889 n.2, 890 (N.J. Super. 1994).

IV.

     Accordingly, Kansouís motion to appoint counsel for the entity defendants is denied.

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