FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Wainit, 14 FSM Intrm. 164 (Chk. 2006)

[14 FSM Intrm. 164]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

TADASHI WAINIT,

Defendant.

CRIMINAL CASE NO. 2004-1513

ORDER DENYING STAY

Richard H. Benson

Specially Assigned Justice

Hearing: March 20, 2006

Decided: April 3, 2006

APPEARANCES:

For the Plaintiff:   Matthew L. Olmsted, Esq.

                              Assistant Attorney General

                              FSM Department of Justice

                              P.O. Box PS-105

                              Palikir, Pohnpei   FM   96941

For the Defendant:   Stephen V. Finnen, Esq.

                                    P.O. Box 1450

                                    Kolonia, Pohnpei   FM   96941

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[14 FSM Intrm. 165]

HEADNOTES

Appellate Review ) Stay ) Criminal Cases

    FSM Appellate Procedure Rule 9(c) sets forth the criteria for release pending an appeal from a criminal conviction. The defendant has the burden of establishing the requisite criteria. It permits the court to release a person who has been convicted of an offense and has filed an appeal only if the court believes that one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. FSM v. Wainit, 14 FSM Intrm. 164, 167 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    Once the court has determined that adequate and proper release conditions can be set, it must then make a two-part determination: 1) whether the appeal raises a substantial question of law or fact and does not appear to be for purpose of delay and 2) if a substantial question is found, whether that question is likely to result in a reversal, new trial, a sentence not including imprisonment, or imprisonment for less than time served. A "substantial question of law or fact" is defined as one that is a "close" question or one that could be decided the other way. FSM v. Wainit, 14 FSM Intrm. 164, 168 (Chk. 2006).

Appellate Review

    Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courtsí cases, when an FSM court has not previously construed an FSM appellate rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. FSM v. Wainit, 14 FSM Intrm. 164, 168 n.1 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases; Criminal Law and Procedure ) Sentencing

    A defendantís potential health problems and needs are not relevant to a motion for stay of execution of sentence. They are appropriately raised in a Rule 35(b) motion for reduction of sentence. FSM v. Wainit, 14 FSM Intrm. 164, 168 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    That the trial transcript might reveal issues is a ground far too speculative for the court to conclude that a defendant has met Rule 9(c)ís requirement that there be a substantial issue of law or fact for a stay pending appeal. The court cannot presume that an issue of which counsel is currently unaware will be revealed by a review of a completed transcript and that, if revealed, it will be a substantial issue. FSM v. Wainit, 14 FSM Intrm. 164, 168 (Chk. 2006).

Criminal Law and Procedure ) Information

    Although the government filed a motion to clarify that the one felony charge included the interference with the civil right to vote in not only the national election held March 2, 1999, but also the Chuuk state election held the same day, but since the information gave clear notice only that the felony charge arose from the national election, the government had to prove that the defendant unlawfully interfered with the right to vote in a national election because the informationís allegations alleging a criminal violation must be proven in order to obtain a conviction. FSM v. Wainit, 14 FSM Intrm. 164, 169 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    When the offenses being charged, the charges tried, and the resulting conviction involved only the national election and candidates, and not the state election, whether the national government can prosecute a violation of rights in a state election is not a possible, let alone a substantial, issue on an

[14 FSM Intrm. 166]

appeal of the conviction. FSM v. Wainit, 14 FSM Intrm. 164, 169 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    If by raising an issue about the state election the appellant means that evidence relevant to the national election charges could not be introduced if it also referred to the candidates and campaigns for the simultaneous state election, this, without more, is not a substantial or close question. FSM v. Wainit, 14 FSM Intrm. 164, 169 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases; Criminal Law and Procedure ) National Crimes

    That the evidence presented in a prosecution for interfering in a national election, might also have sustained a state court conviction on state law charges (if one had been brought) arising from the simultaneous state election, is irrelevant and thus not a substantial or close question. FSM v. Wainit, 14 FSM Intrm. 164, 169 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases; Evidence

    When a February 19, 1999 letter clearly refers to state legislative seats, but also asks for support for the Government of Udotís candidates, the question of who are the Government of Udotís candidates allowed the court to consider all evidence relevant to the issue, and when further evidence established that the incumbent candidate for the Chuuk Fourth Congressional District was one of those candidates, it was upon this basis that defendant was convicted of interfering in the national election. Thus this evidentiary issue is not substantial. FSM v. Wainit, 14 FSM Intrm. 164, 169 (Chk. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    In reviewing the sufficiency of evidence to warrant conviction, the issue before an appellate court is whether the evidence, viewed in a light most favorable to the trial courtís finding, would justify a finder of fact, acting reasonably, to conclude that guilt was established beyond a reasonable doubt. The appellate court must be able to conclude that no trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. A trial courtís factual findings challenged for insufficiency are reviewed on a clearly erroneous standard. FSM v. Wainit, 14 FSM Intrm. 164, 169 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    Considering the high hurdle that a criminal appellant must overcome to prevail on an insufficiency of the evidence challenge, it would take much more than the mere assertion that this is possible issue on appeal for a court to consider this a substantial or close issue. FSM v. Wainit, 14 FSM Intrm. 164, 169 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    Merely being an issue of first impression before the appellate division does not automatically make it a nonfrivolous issue, and just because an issue being brought before the appellate division is one of first impression for that division, does not make it a substantial issue entitling a defendant to a stay. FSM v. Wainit, 14 FSM Intrm. 164, 169 (Chk. 2006).

Statutes of Limitation ) Criminal Offenses

    When the statute of limitations is three years for a felony charge and two years for a misdemeanor charge and under the law applicable for offenses in 1999, the statute of limitations was extended, even if the time limitation to prosecute had expired, 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, but in no case will this provision extend the limitations period otherwise applicable by more than three years. FSM v. Wainit, 14 FSM Intrm. 164, 170 (Chk. 2006).

[14 FSM Intrm. 167]

Appellate Review ) Stay ) Criminal Cases

    An assertion that a constitutional issue is presented as to whether the FSM can, in its laws, "define who is a public officer, when it is a function expressly reserved to the state government," mischaracterizes

the courtís holding that national laws are often applied to persons based on their status, even when that status is defined solely by another government (not that the FSM can, in its laws, define who is a public officer under state law), is frivolous. To assert that the national government cannot apply its laws based upon a personís status as defined by some other body is also frivolous. FSM v. Wainit, 14 FSM Intrm. 164, 170 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    A contention that the meaning of the term "public officer," which was not defined in the FSM Code, cannot be its common and approved English usage (the required construction under the FSM Code) but a meaning that comports with different, defined terms, is not a substantial issue. Also meritless is a passing reference that new legislation, which does not include the term "public officer," somehow redefines or clarifies the term "public officer" to create an issue as to the meaning of "public officer." FSM v. Wainit, 14 FSM Intrm. 164, 170 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    Raising a series of non-substantial issues on appeal does not combine or convert them into a substantial issue entitling the movant to a stay. It is quality, not quantity, that creates a substantial or close issue. FSM v. Wainit, 14 FSM Intrm. 164, 170 (Chk. 2006).

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COURTíS OPINION

RICHARD H. BENSON, Specially Assigned Justice:

    After the defendant, Tadashi Wainit, was sentenced on March 10, 2006 to imprisonment for one year, he filed his Notice of Appeal and his Motion for Stay of Execution of Sentence. On March 14, 2006, the government filed its Opposition to Defendantís Motion for Release Pending Appeal. On March 20, 2006, Wainitís new counsel filed Wainitís Reply in Support of Motion for Release Pending Appeal. The motion was heard on March 20, 2006. The court granted the partiesí Joint Motion for Modification of Order of Commitment, which asked that Wainitís sentence not start until the trial court decided his motion for stay of execution of sentence and either stayed the sentence or denied the stay and set a date and time for the term of imprisonment to start.

I.

    FSM Appellate Procedure Rule 9(c) sets forth the criteria for release pending an appeal from a criminal conviction. The defendant has the burden of establishing the requisite criteria. FSM v. Akapito, 10 FSM Intrm. 255, 256 (Chk. 2001). Appellate Rule 9(c) permits the court to release a person who has been convicted of an offense and has filed an appeal "only if the court believes that one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community." FSM App. R. 9(c). The court is satisfied that release conditions could be set under Appellate Rule 9(d) that would reasonably assure that Wainit would not flee or pose a danger to any other person or to the community.

If the court concludes that no such a risk of flight or danger exists and it appears that the appeal is not for purpose of delay, and raises a substantial question of law or fact likely to result in: (1) reversal; (2) an order for a new trial; (3) a sentence that does not include

[14 FSM Intrm. 168]

a term of imprisonment; or (4) a reduced sentence to a term of imprisonment less than the total of the time already served, plus the expected duration of the appeal process, the person shall be released. The burden of establishing the requisite criteria rests with the defendant.

FSM App. R. 9(c). Thus, once the court has determined that adequate and proper release conditions can be set, it must then make a two-part determination: 1) whether Wainitís appeal raises a substantial question of law or fact and does not appear to be for purpose of delay and 2) if a substantial question is found, whether that question is likely to result in a reversal, new trial, a sentence not including imprisonment, or imprisonment for less than time served.

II.

    Wainit contends that his appeal does raise one or more substantial questions of law or fact and that the appeal is not for the purpose of delay. A "substantial question of law or fact" is defined as one that is a "close" question or one that could be decided the other way. United States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985); United States v. Bilanzich, 771 F.2d 292, 298-99 (7th Cir. 1985); United States v. Affleck, 765 F.2d 944, 952 (10th Cir. 1985); United States v. Powell, 761 F.2d 1227, 1231-32 (6th Cir. 1985) (en banc); United States v. Randell, 761 F.2d 122, 125 (2d Cir.), cert. denied, 474 U.S. 1008 (1985); United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985). The meaning of "substantial question of law or fact" has not been considered before. The U.S. cases cited in the text above interpret 18 U.S.C. ß 3143(b)(2), the U.S. counterpart from which FSM Appellate Rule 9(c) was derived.

    Wainit lists as meritorious and colorable issues on appeal and as his reasons for a stay of execution: 1) whether the statute of limitations barred the prosecution; 2) the sufficiency of the evidence; 3) whether certain evidence should have been excluded at trial; 4) whether the verdict is consistent with the evidence and the charges as filed; 5) any issues that might be revealed once the trial transcript has been prepared and reviewed; and 6) Wainitís health problems.

    Substantial time at the hearing and space in the moving papers was spent on Wainitís potential health problems and needs. These considerations are not relevant to a motion for stay of execution of sentence. They are appropriately raised in a Rule 35(b) motion for reduction of sentence. No such motion has been filed or is pending.

    That the trial transcript might reveal issues is a ground far too speculative for the court to conclude that Wainit has met Rule 9(c)ís requirement that there be a substantial issue of law or fact. The court cannot presume that an issue of which counsel is currently unaware will be revealed by a review of a completed transcript and that, if revealed, it will be a substantial issue.

    Wainit also asserts that the verdict is not consistent with the criminal information because, in

[14 FSM Intrm. 169]

his view, the FSM lacks jurisdiction "to enforce" Chuuk state election laws. On February 10, 2006, the government filed a motion to clarify that the one felony charge, violation of 11 F.S.M.C. 701(1), included the interference with the civil right to vote in not only the national election held March 2, 1999, but also the Chuuk state election held the same day. After hearing the motion before the trialís start, the court held that since the information gave clear notice only that the felony charge arose from the national election, the government had to prove that Wainit unlawfully interfered with the right to vote in a national election.

    Allegations in the information alleging a criminal violation must be proven in order to obtain a conviction. Buekea v. FSM, 1 FSM Intrm. 487, 493-94 (App. 1984) (prosecution must show the statute was violated as alleged in the information; it is not sufficient that the evidence show a violation of the statute different from the one alleged). The second charge, a misdemeanor, specifically only applied to the national election. Accordingly, the case was tried and proceeded to judgment solely on the basis of whether Wainit committed the offenses charged in relation to the national election, not the state election. The offenses being charged, the charges tried, and the resulting conviction involved only the national election and candidates, and not the state election. Thus, whether the national government can prosecute a violation of rights in a state election is not a possible, let alone a substantial, issue on an appeal in this case.

    If by raising an issue about the state election Wainit means that evidence relevant to the national election charges could not be introduced if it also referred to the candidates and campaigns for the simultaneous state election, this, without more, is also not a substantial or close question. That the evidence presented might also have sustained a state court conviction on state law charges (if one had been brought) arising from the simultaneous March 2, 1999 state election, is irrelevant. Although the February 19, 1999 letter clearly refers to state legislative seats, it also requests that John Fritz and his family support the Government of Udotís candidates. The question of who are the Government of Udotís candidates allowed the court to consider all evidence relevant to the issue. Further evidence established that the incumbent candidate for the Chuuk Fourth Congressional District was one of those candidates. It was upon this basis that Wainit was convicted of interfering in the national election. This evidentiary issue is not substantial.

    Wainit also lists sufficiency of the evidence as a possible issue. In reviewing the sufficiency of evidence to warrant conviction, the issue before an appellate court is whether the evidence, viewed in a light most favorable to the trial courtís finding, would justify a finder of fact, acting reasonably, to conclude that guilt was established beyond a reasonable doubt. Sander v. FSM, 9 FSM Intrm. 442, 449 (App. 2000); Welson v. FSM, 5 FSM Intrm. 281, 285 (App. 1992). The appellate court must be able to conclude that no trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. Runmar v. FSM, 3 FSM Intrm. 308, 315 (App. 1988). A trial courtís factual findings challenged for insufficiency are reviewed on a clearly erroneous standard. Sander, 9 FSM Intrm. at 449. Considering the high hurdle that a criminal appellant must overcome to prevail on an insufficiency of the evidence challenge, it would take much more than the mere assertion that this is possible issue on appeal for a court to consider this a substantial or close issue.

    Wainit asserts that his contention that the government was barred from prosecuting him by the statute of limitations is a substantial question of law since there is no controlling precedent for it because the appellate division has not ruled on the issue. The appellate division has previously stated that merely being an issue of first impression does not automatically make that a nonfrivolous issue. FSM Dev. Bank v. Yinug, 12 FSM Intrm. 437, 440-41 (App. 2004) (discussing whether Rule 38 sanctions for a frivolous appeal should be imposed). Similarly, just because an issue being brought before the appellate division is one of first impression for that division, does not make it a substantial issue.

[14 FSM Intrm. 170]

    Wainitís statute of limitations issue, if he were to prevail on it, would be a complete bar to prosecution. The statute of limitations is three years for the felony charge and two years for the misdemeanor charge. Under the law applicable for offenses in 1999, the statute of limitations was extended, even if the time limitation to prosecute had expired, 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, but in no case shall this provision extend the period of limitations otherwise applicable by more than three years." 11 F.S.M.C. 105(3). Wainit was charged with misconduct in office when he was Mayor of Udot.

    Wainitís contentions about the applicable statute of limitations have two parts. The court has already held that one of these contentions is frivolous. Wainit asserts that a constitutional issue is presented as to whether the FSM can, in its laws, "define who is a public officer, when it is a function expressly reserved to the state government." This statement mischaracterizes the courtís holding. The court did not hold that the FSM can, in its laws, define who is a public officer under state law. The court held that "[n]ational laws are often applied to persons based on their status, even when that status is defined solely by another government." FSM v. Wainit, 13 FSM Intrm. 532, 539 (Chk. 2005) (citing numerous examples); see also FSM v. Wainit, 12 FSM Intrm. 105, 110 (Chk. 2003). It is frivolous to assert that the national government cannot apply its laws based upon a personís status as defined by some other body. Wainit, 13 FSM Intrm. at 539-40.

    The other part of the statute of limitations contention is that the meaning of the term "public officer," which was not defined in the FSM Code, cannot be its common and approved English usage, the required construction under the FSM Code, 1 F.S.M.C. 208, but a meaning that comports with different, defined terms. This is not a substantial issue. Also meritless is Wainitís passing reference that new legislation, which does not include the term "public officer," somehow redefines or clarifies the term "public officer" to create an issue as to the meaning of "public officer." Wainit, 13 FSM Intrm. at 540.

    Lastly, raising a series of non-substantial issues does not combine or convert them into a substantial issue. It is quality, not quantity, that creates a substantial or close issue.

III.

    Wainit has not met his burden of establishing the requisite criteria. Accordingly, the motion for stay of execution of sentence pending appeal is denied. Tadashi Wainit shall report to the Director of Public Safety at the Chuuk state jail on Friday, April 7, 2006 at 3:00 p.m.

_______________________________

Footnotes:

    1.  Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courtsí cases, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when an FSM court has not previously construed an FSM appellate rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule, see, e.g., Bualuay v. Rano, 11 FSM Intrm. 139, 146 n.1 (App. 2002); Santos v. Bank of Hawaii, 9 FSM Intrm. 306, 308 n.1 (App. 2000); Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998); Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).

    The meaning of "substantial question of law or fact" has not been considered before. The U.S. cases cited in the text above interpret 18 U.S.C. ß 3143(b)(2), the U.S. counterpart from which FSM Appellate Rule 9(c) was derived.

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