FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kansou, 14 FSM Intrm. 132 (Chk. 2006)

[14 FSM Intrm. 132]

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 4, 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

For the Defendants:   Harry A. Seymour, Esq.

             (Engichys)      Office of the Public Defender

                                     P.O. Box 245

                                     Tofol, Kosrae   FM   96944

For the Defendant:   Ready Johnny, Esq.

                 (Fritz)        Office of the Public Defender

                                   P.O. Box 754

                                   Weno, Chuuk   FM   96942

For the Defendant:   Joey J. Sapelalut, Esq.

               (Darra)        Office of the Public Defender

                                    P.O. Box PS-174

[14 FSM Intrm. 133]

                                    Palikir, Pohnpei   FM   96941

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HEADNOTES

Criminal Law and Procedure ) Conspiracy

    A person commits the offense of conspiracy, if, with intent to promote or facilitate the commission of a national offense, he agrees with one or more persons that they, or one or more of them, will engage in or solicit the conduct or will cause or solicit the result specified by the definition of the offense; and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy. FSM v. Kansou, 14 FSM Intrm. 132, 134 (Chk. 2006).

Criminal Law and Procedure ) Conspiracy

    The agreement in a conspiracy does not have to be explicit. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement and a conspiracy exists when either the agreement or the means contemplated for its achievement are unlawful. FSM v. Kansou, 14 FSM Intrm. 132, 134 (Chk. 2006).

Criminal Law and Procedure ) Conspiracy

    It is not necessary to prove the specific terms or the specific scope of the conspiratorial agreement or to prove that the conspiracy’s substantive object was accomplished. A single overt act committed by one of the co-conspirators before the conspiracy’s end is enough for there to be criminal liability for conspiracy. The existence of, and participation in, a criminal conspiracy may be proved by circumstantial as well as by direct evidence, if it affords a reasonable inference as to the ultimate facts sought to be proved. There must be evidence of some participation or interest in the commission of the offense. FSM v. Kansou, 14 FSM Intrm. 132, 134 (Chk. 2006).

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

    Conspiracy is regarded as a continuing offense, hence, the statutory period of limitation therefor begins to run from the time of the last provable overt act in furtherance of the conspiracy. FSM v. Kansou, 14 FSM Intrm. 132, 134 (Chk. 2006).

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

    Conspiracy is punishable by imprisonment for not more than one-half the maximum sentence which is provided for the most serious offense which was the object of the conspiracy if the maximum is less than life imprisonment. When the most serious offense charged as an object of the conspiracy carries a maximum of twenty years’ imprisonment, the conspiracy charge thus has a maximum sentence of ten years and therefore a limitations period of three years. FSM v. Kansou, 14 FSM Intrm. 132, 134-35 (Chk. 2006).

Statutes of Limitation ) Criminal Offenses

    For any offense based on misconduct in office by a public officer or employee at any time when the defendant is in public office or employment or within two years thereafter, the period of limitation otherwise applicable can be extended by up to three years. FSM v. Kansou, 14 FSM Intrm. 132, 135 (Chk. 2006).

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

    Since the maximum penalty for bribery is five years’ imprisonment, the general limitation period for bribery is thus three years. FSM v. Kansou, 14 FSM Intrm. 132, 135 (Chk. 2006).

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[14 FSM Intrm. 134]

COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

    On November 9, 2005, defendants John Engichy and Rosemary Engichy ("Engichys") filed their Motion for Dismissal. Defendant James Fritz joined the motion on December 6, 2005. Frank Darra joined the motion on December 19, 2005. The government filed its response on January 3, 2006. The motion was heard on January 4, 2006.

I.   Count One ) Conspiracy

    John and Rosemary Engichy (joined by James Fritz and Frank Darra) move for dismissal on the ground that the information fails to establish probable cause that a crime has been committed, namely that the Engichys (and presumably those joining the motion) committed the offense of conspiracy.

    The movants deny that a conspiracy existed. The Engichys deny that they intentionally agreed with anyone to illegally take national government funds. The movants contend that the information does not establish probable cause for the conspiracy offense. This contention is without merit.

    A person commits the offense of conspiracy, if, with intent to promote or facilitate the commission of a national offense, he agrees with one or more persons that they, or one or more of them, will engage in or solicit the conduct or will cause or solicit the result specified by the definition of the offense; and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy. FSM v. Este, 12 FSM Intrm. 476, 483 (Chk. 2004); 11 F.S.M.C. 203(1). The agreement in a conspiracy does not have to be explicit. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement and a conspiracy exists when either the agreement or the means contemplated for its achievement are unlawful. Este, 12 FSM Intrm. at 483. Neither is it necessary to prove the specific terms or the specific scope of the conspiratorial agreement or to prove that the conspiracy’s substantive object was accomplished. Id. A single overt act committed by one of the co-conspirators before the conspiracy’s end is enough for there to be criminal liability for conspiracy. Id. The existence of, and participation in, a criminal conspiracy may be proved by circumstantial as well as by direct evidence, if it affords a reasonable inference as to the ultimate facts sought to be proved. There must be evidence of some participation or interest in the commission of the offense. Id. The information’s allegations are thus sufficient.

    The movants also contend that the conspiracy charge must be dismissed based on the applicable statute of limitations because none of the overt acts alleged in the information for which exact dates are cited are within three years of the date the information was filed. "Conspiracy is regarded as a continuing offense, hence, the statutory period of limitation therefor begins to run from the time of the last provable overt act in furtherance of the conspiracy." 1 Charles E. Torchia, Wharton’s Criminal Law § 91, at 419 (14th ed. 1978). The information alleges that the conspiracy is continuing to present. Prosecution of the conspiracy count is therefore not time-barred based on the information’s allegations. It may be time-barred only if the prosecution does not prove at trial an overt act within the applicable limitations period.

    The information alleges overt acts within the statutory period. Conspiracy is punishable "by imprisonment for not more than one-half the maximum sentence which is provided for the most serious offense which was the object of the . . . conspiracy if the maximum is less than life imprisonment." 11 F.S.M.C. 204(2). The most serious offense charged as an object of the conspiracy carries a maximum of twenty years’ imprisonment. 55 F.S.M.C. 223 (20 years for violation of 55 F.S.M.C. 221

[14 FSM Intrm. 135]

or 222). The Count I conspiracy charge thus has a maximum sentence of ten years and therefore a limitations period of three years. 11 F.S.M.C. 105(2)(b). The information, however, alleges continuing overt acts until its November

11, 2003 filing.

    Accordingly, the motion to dismiss the conspiracy count is denied. Furthermore, the information alleges that James Fritz and Frank Darra, who joined the motion, were public officers or employees during the relevant time periods. For "[a]ny offense based on misconduct in office by a public officer or employee at any time when the defendant is in public office or employment or within two years thereafter," the period of limitation otherwise applicable can be extended by up to three years. 11 F.S.M.C. 105(3)(b). Thus the limitations period for the conspiracy count would not have run out for Fritz or Darra even if the conspiracy were not alleged to have continued up to the date of the information’s filing because there are overt acts alleged and dated within six years of the information’s November 11, 2003 filing.

II.   Count Thirty-Two ) Bribery

    The Engichys also move to dismiss Count XXXII (bribery) on the ground that it is time barred. The information alleges criminal conduct under that count from periods in 1998 up to May, 2000. The information was filed more than three years later, on November 11, 2003.

    The maximum penalty for bribery is five years’ imprisonment. 11 F.S.M.C. 531(4). The general limitation period for bribery is thus three years. 11 F.S.M.C. 105(2)(b). The information does not allege that either John or Rosemary Engichy were public officers or employees. Therefore John and Rosemary Engichy’s motion to dismiss Count XXXII is granted.

    Neither James Fritz nor Frank Darra are charged under Count XXXII. So this portion of the Engichys’ motion is not applicable to them. The other defendants charged under Count XXXII are all alleged to be public officials or employees and none joined the Engichys’ motion.

III.   Conclusion

    The motion to dismiss the conspiracy count (Count I) is denied as to all movants. The motion to dismiss the bribery count (Count II) is granted. Count XXXII, insofar as it charges John Engichy a/k/a Aiser John Engichy and Rosemary Engichy a/k/a Rosemary Nakayama with an offense, is dismissed. Count XXXII is not dismissed in regards to the other defendants it charges.

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