FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kansou, 14 FSM Intrm. 128 (Chk. 2006)

[14 FSM Intrm. 128]

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

Richard H. Benson

Specially Assigned Justice

Hearing: January 4, 2006

Decided: March 3, 2006

APPEARANCES:

For the Plaintiff:   Matthew L. Olmsted, Esq. (briefed)

                               Keith J. Peterson, Esq. (argued)

                               Assistant Attorneys General

                               FSM Department of Justice

                               P.O. Box PS-105

                               Palikir, Pohnpei FM 96941

[14 FSM Intrm. 129]

For the Defendant:   Scott Garvey, Esq.

           (R. Kansou)    P.O. Box 114

                                    Kolonia, Pohnpei   FM   96941

For the Defendant:   Joey J. Sapelalut, Esq.

                (Darra)       Office of the Public Defender

                                    P.O. Box PS-174

                                    Palikir, Pohnpei   FM   96941

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HEADNOTES

Constitutional Law ) Case or Dispute

    When there is in the Constitution a textually demonstrable commitment of the issue to a coordinate branch of government (such as Congress being the sole judge of the elections of its members) it is a nonjusticiable political question not to be decided by the court because of the separation of powers provided for in the Constitution. FSM v. Kansou, 14 FSM Intrm. 128, 130 (Chk. 2006).

Constitutional Law ) Case or Dispute

    While it is within Congressís sole power to determine, by statute, how, and for what, the national government will spend its funds, it is always within the judicial branchís power or jurisdiction to determine, in a proper case, whether those funds were spent in conformity with the statute. FSM v. Kansou, 14 FSM Intrm. 128, 130 (Chk. 2006).

Constitutional Law ) Due Process ) Vagueness; Criminal Law and Procedure ) Dismissal

    A criminal statute must not be so vague and indefinite as to fail to give fair notice of what acts will be punished but the right to be informed of the nature of the accusation does not require absolute precision or perfection of criminal statutory language. When the statute complained of, while not mathematically precise, gives fair notice of the acts that will be punished, payment for expenses other than expenses incurred in the course of official public relations, entertainment activities or constituent services necessary to advance the national governmentís purposes and goals, the prosecution will not be dismissed on the ground that the statute was unconstitutionally vague. FSM v. Kansou, 14 FSM Intrm. 128, 130 (Chk. 2006).

Criminal Law and Procedure ) Information; Statutes of Limitation ) Criminal Offenses

    FSM law provides that a prosecution commences when an information is filed, and the filing of an information is sufficient for statute of limitations purposes. FSM v. Kansou, 14 FSM Intrm. 128, 131 (Chk. 2006).

Criminal Law and Procedure ) Information

    A request for a more definite statement is actually a motion for a bill of particulars. A motion for a bill of particulars may be made before the initial appearance or within ten days after the initial appearance or at such later time as the court may permit. FSM v. Kansou, 14 FSM Intrm. 128, 131 (Chk. 2006).

Criminal Law and Procedure ) Motions

    The FSMís motion in limine asking for an order barring all defendants from raising the certain defenses at trial will be granted when it was filed as a result of a defendantís response to its discovery request; when it was considered together with that defendantís motion asserting those same defenses;

[14 FSM Intrm. 130]

and when all defendants were served the motion but only one filed a response. FSM v. Kansou, 14 FSM Intrm. 128, 131 (Chk. 2006).

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COURTíS OPINION

RICHARD H. BENSON, Specially Assigned Justice:

    The following two sets of motions and responses are both decided in this order because they are closely related. Both motions were heard on January 4, 2006.

1. On October 31, 2005, Defendant Roosevelt Kansou filed his Motion to Dismiss Or, in Alternative, to Make More Definitive and his Memorandum of Points and Authorities in Support of His Motion to Dismiss

Or, in Alternative, to Make More Definitive Certain Portions of the Information. Frank Darra filed a joinder to the motion on December 19, 2005. On December 27, 2005, the government filed its response. Kansouís reply was filed on January 3, 2006.

2.  On November 8, 2005, the government filed its Motion in Limine. Defendant Roosevelt Kansou filed his response on November 28, 2005. On November 30, 2005, the FSM filed its reply memorandum, which was refiled on December 21, 2005 as a memorandum of points and authorities.

I.

    Roosevelt Kansouís motion to dismiss (joined by Frank Darra) is denied. The information does not involve a non-justiciable political question. Where there is in the Constitution a textually demonstrable commitment of the issue to a coordinate branch of government (such as Congress being the sole judge of the elections of its members) it is a nonjusticiable political question not to be decided by the court because of the separation of powers provided for in the Constitution. Aten v. National Election Commír (III), 6 FSM Intrm. 143, 145 (App. 1993). While it is within Congressís sole power to determine, by statute, how, and for what, the national government will spend its funds, it is always within the judicial branchís power or jurisdiction to determine, in a proper case, whether those funds were spent in conformity with the statute. Cf. FSM v. Udot Municipality, 12 FSM Intrm. 29, 48-51 (App. 2003).

    Nor is the statute in question unconstitutionally vague. A criminal statute must not be so vague and indefinite as to fail to give fair notice of what acts will be punished but the right to be informed of the nature of the accusation does not require absolute precision or perfection of criminal statutory language. Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984). The statute complained of, 55 F.S.M.C. 224B(2), while not mathematically precise, gives fair notice of the acts that will be punished, payment for expenses other than "expenses incurred in the course of official public relations, entertainment activities or constituent services necessary to advance the purposes and goals of the National Government."

    Roosevelt Kansouís motion also asks that certain counts of the information be dismissed because, in his view, prosecution of those counts is time-barred. He contends that those counts are time-barred because the prosecution of this case did not commence, for statute of limitations purposes, when the information was filed on November 11, 2003, but a year later, on November 9, 2004, when the information was supported by an affidavit and probable cause established by a written statement under oath. To support this contention, Kansou relies on Jaben v. United States, 381 U.S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345 (1965).

[14 FSM Intrm. 131]

Jaben, however, involved a criminal complaint and this case does not. This case involves a criminal information. FSM law provides that a prosecution commences when an information is filed. 11 F.S.M.C. 105(5). The court must follow the FSM statute. Furthermore, even under U.S. law, "the filing of [an] information [i]s sufficient for statute of limitations purposes." United States v. Burdix-Dana, 149 F.3d 741, 743 (7th Cir. 1998).

     Accordingly, Roosevelt Kansouís motion to dismiss is denied, as is Darraís joinder of that motion.

    Kansouís motion also asks that portions of Count I be made more definite. This part of the motion is also denied. The information is adequate. Furthermore, a request for a more definite statement (a civil procedure phraseology) is actually a motion for a bill of particulars for Count I. As such, the motion comes much too late. FSM Crim. R. 7(f) ("A motion for a bill of particulars may be made before the initial appearance or within ten days after the initial appearance or at such later time as the court may permit.").

II.

    The FSMís motion in limine asks for an order barring all defendants from raising at trial the defenses of non-justiciable political question, unconstitutional vagueness, statute of limitations, and constitutionally protected speech. The motion was filed as a result of Roosevelt Kansouís response to the governmentís discovery request. It is thus considered together with Roosevelt Kansouís motion. The government asks that any order resulting from its motion be applied to all defendants. (All defendants were served the motion. Only Roosevelt Kansou filed a response.)

    For the reasons stated above, the governmentís motion is granted as to the non-justiciable political question and unconstitutionally vague defenses. It is also granted on the statute of limitations defense as to all defendants except John Engichy a/k/a Aiser John Engichy and Rosemary Engichy a/k/a Rosemary Nakayama, to whom the three year extension of the statute of limitations for public officials, 11 F.S.M.C. 105(3)(b), does not apply. The Engichysí situation will be dealt with in a separate order ruling on the Engichysí separate motion to dismiss.

    The motion, as to the constitutionally protected speech defense, is provisionally granted. The motionís opposition is vague and without citation to pertinent authority. However, a defendant may raise this objection or defense at trial to particular statements, if and when offered, should the testimony and evidence justify it.

III.

    Now therefore it is hereby ordered that Roosevelt Kansouís motion to dismiss is denied. Roosevelt Kansouís alternative motion for a more definite statement is also denied. Accordingly, Frank Darraís joinder to the motion is also denied. The governmentís motion to limine is granted in part. No defendant may raise at trial the defenses of the non-justiciable political question, or unconstitutional vagueness, or the statute of limitations defense based on the contention that the prosecution did not commence on November 11, 2003, but about a year later. (John and Rosemary Engichyís motion based on a statute of limitations defense will be the subject of separate order.) The constitutionally protected speech defense can only be raised when and if the testimony and evidence justify it.

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