FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kansou, 14 FSM Intrm. 171 (Chk. 2006)

[14 FSM Intrm. 171]

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

MEMORANDUM OF DECISION

Richard H. Benson

Specially Assigned Justice

Hearing: March 13, 2006

Decided: March 13, 2006

Memorandum Entered: April 5, 2006

APPEARANCES:

For the Plaintiff:   Lisa Ruosso, 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

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

    When the FSM Secretary of Justice approached a defendant to discuss, and did discuss, a

[14 FSM Intrm. 172]

possible plea agreement without the presence or prior consent of his attorney,but the incident was short and ended with the defendant saying he wanted to discuss it with his lawyer and when no prejudice was alleged or shown, the Secretary of Justice’s actions did not form any part of the basis of the FSM Department of Justice’s disqualification and the three defendants’ severance, but the court had no choice but to refer the matter to the disciplinary process. FSM v. Kansou, 14 FSM Intrm. 171, 174 (Chk. 2006).

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

    The court cannot give any credence to a contention that a prosecutor’s complete disqualification was not required because of the ground for the disqualification. A disqualification is a disqualification. FSM v. Kansou, 14 FSM Intrm. 171, 174-75 (Chk. 2006).

Criminal Law and Procedure ) Prosecutors

    A prosecutor is held to a higher standard than defense counsel. A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. A prosecutor must have no interest in the case’s outcome other than that justice be done since the government’s interest in a criminal case is not that it should win the case, but that justice be done. FSM v. Kansou, 14 FSM Intrm. 171, 175 (Chk. 2006).

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

    The general rule is that the recusal or disqualification of an assistant attorney general does not require the recusal of the attorney general or his other assistants. Individual rather than vicarious disqualification is the general rule for prosecutors but individual disqualification must be complete. FSM v. Kansou, 14 FSM Intrm. 171, 175 (Chk. 2006).

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

    The result of a prosecutor’s disqualification from prosecuting three co-defendants is that the government had a choice ) it could either move to sever those three defendants and assign a different assistant attorney general to prosecute them and insulate the disqualified prosecutor from that prosecution, or it could have assigned a different assistant attorney general to prosecute all of the co-defendants. A detailed screening order is inappropriate when the government, at least theoretically, had a choice to make ) a new prosecutor for the case, or seek severance into two cases. This is a choice that, at least initially, the prosecution, not the court, must make. FSM v. Kansou, 14 FSM Intrm. 171, 175 (Chk. 2006).

Criminal Law and Procedure ) Conspiracy; Criminal Law and Procedure ) Joinder and Severance

    There is a great reluctance in conspiracy cases to put the government and the courts to the burden of separate trials in which the proof would be almost identical. FSM v. Kansou, 14 FSM Intrm. 171, 175 (Chk. 2006).

Criminal Law and Procedure

    Although the court must first look to FSM sources of law to establish legal requirements in criminal cases rather than begin with a review of other courts’ cases, when an FSM court has not previously construed FSM Criminal Procedure Rule 14 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. Kansou, 14 FSM Intrm. 171, 175 n.2 (Chk. 2006).

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

    Although the court was reluctant to disqualify the FSM Department of Justice from prosecuting three co-defendants and ordering their severance from the trial scheduled to start the same day, when no lesser sanction presented itself and the defendant has met his burden and established that a

[14 FSM Intrm. 173]

disqualified (former) prosecutor has assisted the current prosecutors in preparing the case against him and the government did not establish, or try to establish, that the disqualified former prosecutor was effectively screened from the prosecutors in the case, the entire FSM Department of Justice is therefore disqualified. FSM v. Kansou, 14 FSM Intrm. 171, 176 (Chk. 2006).

Criminal Law and Procedure

    As a general principle, a court must impose the least severe sanction that will accomplish the desired result of prompt and full compliance with applicable criminal procedure. FSM v. Kansou, 14 FSM Intrm. 171, 176 (Chk. 2006).

Criminal Law and Procedure ) Joinder and Severance

    Severance of joint criminal defendants is a matter of sound judicial discretion. A trial judge is afforded broad discretion under Rule 14 to grant relief from prejudicial joinder ) to sever defendants or counts from trial. When co-defendants were prejudiced by their joinder in a case because an attorney disqualified from prosecuting them assisted in the trial preparation, the court will order the severance of the charges against them. FSM v. Kansou, 14 FSM Intrm. 171, 176 (Chk. 2006).

Criminal Law and Procedure ) Joinder and Severance

    Rule 14 comes into play only if the original joinder was proper. It then permits a severance))or an order to the government to elect))if this is needed to avoid prejudice. FSM v. Kansou, 14 FSM Intrm. 171, 176 n.3 (Chk. 2006).

* * * *

COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

    Defendant Roosevelt Kansou’s Motion to Disqualify the FSM Department of Justice, filed March 8, 2006 and joined by Memorina Kansou, came before the court for hearing on March 13, 2006. After considering the written submissions and hearing oral argument, the court granted the motion from the bench and disqualified the FSM Department of Justice from prosecuting defendants Roosevelt Kansou, Memorina Kansou, and EM-R. Those three defendants were severed from the other defendants. Not guilty pleas were taken from defendants Simeon R. Innocenti (and Market Wholesale), John Petewon, James Fritz, John Engichy a/k/a Aiser John Engichy, Rosemary Engichy a/k/a Rosemary Nakayama, and Frank Darra and the case against them proceeded to trial. This memorandum memorializes and further explains the court’s reasoning.

I.

    On February 16, 2005, defendant Roosevelt Kansou filed his Motion to Disqualify the FSM Department of Justice and Matthew Crabtree, which Memorina Kansou later joined. The court, for reasons fully explained in its July 13, 2005 order, had disqualified Matthew Crabtree from prosecuting defendants Roosevelt D. Kansou, Memorina Kansou, and EM-R in this matter, but did not disqualify him

[14 FSM Intrm. 174]

from prosecuting any of the other defendants. FSM v. Kansou, 13 FSM Intrm. 344 (Chk. 2005). The court also did not disqualify the FSM Department of Justice or any other member of it from prosecuting any defendant in this matter. Matthew Crabtree had resigned his position with the FSM Department of Justice and left the country before the July 13th order was issued.

II.

    Roosevelt Kansou’s motion, with his counsel’s supporting affidavit, alleged the following facts. On February 28, 2006, Roosevelt Kansou’s counsel met, at Palikir, Pohnpei, with the current lead prosecutor in this case, Keith J. Peterson. Kansou’s counsel noted Crabtree was present talking to Peterson before the meeting started. Kansou’s counsel inquired and was informed that Peterson had had discussions with Crabtree over the period of several days concerning the case but that Crabtree would have no involvement with the actual presentation of the case at trial. Peterson further informed Kansou’s counsel that he understood that while Crabtree could not be the attorney of record, Crabtree had put the case together and his knowledge of the case was helpful to the current prosecutors. Although more specific details were requested during a telephone conversation the next day, Peterson declined to give any. Kansou’s counsel therefore believed that Crabtree was helping the prosecutor’s trial preparation against his client. Neither the government’s written response, nor its oral argument, disputed, explained, or even responded to these factual allegations.

     Kansou later supplemented his motion with allegations of a separate incident on February 28, 2006 on Kosrae, which was supported by his and his counsel’s affidavits. This supplement averred that the FSM Secretary of Justice approached Roosevelt Kansou to discuss, and did discuss, a possible plea agreement without the presence or prior consent of Kansou’s attorney. Both Roosevelt Kansou and the Secretary of Justice testified about this meeting at the March 13, 2006 hearing. The incident was short and ended with Kansou saying he wanted to discuss it with his lawyer. Kansou’s written supplement states that no permanent harm was done. Because no prejudice was alleged or shown, the Secretary of Justice’s actions did not form any part of the basis of the FSM Department of Justice’s disqualification and the severance of the three defendants. But the court had no choice but to refer the matter to the disciplinary process.

III.

    Crabtree’s involvement presented a different problem. The government contended that no disqualification was warranted because, in its view, it did not violate the July 13, 2005 order. The government argued that under that order Crabtree’s disqualification was not complete because the court did not disqualify him from prosecuting the other ten defendants and because the court did not explicitly order Crabtree screened from the case files. The government further contended that this would have been impractical because the conspiracy count charged Kansou and six other defendants and Crabtree was not disqualified from prosecuting those six. The government also contended that screening Crabtree was not required because Crabtree was, in its view, disqualified as a sanction for improper conduct and not for a conflict of interest.

    The government’s contentions are disingenuous. The court cannot give any credence to the government’s contention that complete disqualification was not required because of the ground for Crabtree’s disqualification. The court does not see the distinction the government seeks to make. This is because a prosecutor is held to a higher standard than defense counsel. See FSM MRPC R. 3.8; Charles W. Wolfram, Modern Legal Ethics § 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." FSM MRPC R. 3.8 cmt.; accord Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 62, 66 (Pon. 1991). A prosecutor must have no interest in the case’s outcome other than

[14 FSM Intrm. 175]

that justice be done since the government’s 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). When a prosecutor has an interest in a case other than that justice must be done, it is as much a conflict of interest as any other. A disqualification is a disqualification.

    The general rule is that the recusal or disqualification of an assistant attorney general does not require the recusal of the attorney general or his other assistants. Individual rather than vicarious disqualification is the general rule for prosecutors but individual disqualification must be complete. FSM v. Wainit, 12 FSM Intrm. 376, 381 (Chk. 2004).

    The result of Crabtree’s disqualification from prosecuting three co-defendants should have been clear to the government. The government had a choice. It could have either moved to sever those three defendants and assigned a different assistant attorney general to prosecute them and insulate Crabtree from that prosecution, or it could have assigned a different assistant attorney general to prosecute all of the co-defendants. The practicality, or impracticality, of severance when Roosevelt Kansou and six others were all charged in the same conspiracy count is a factor the court would expect the government to consider when deciding whether to seek severance or assign a new prosecutor to the case.

    Since Crabtree had already left the FSM by the time the court issued its disqualification order, the government, in effect, had its choice made for it. The court did not feel the need to state the obvious ) that Crabtree was to have no more to do with the prosecution of Roosevelt Kansou, Memorina Kansou, and EM-R. Nor was a detailed screening order appropriate when the government, at least theoretically, had a choice to make ) a new prosecutor for the case, or seek severance into two cases. This is a choice, at least initially, that the prosecution, not the court, must make.

    Nevertheless, through either inattention, or unfamiliarity with the case, the government sought to bring Crabtree back to assist in trial preparation without first notifying defense counsel and the court to see if a way could be fashioned to do this without violating the disqualification order. Instead, defense counsel apparently only found out about Crabtree’s assistance inadvertently and promptly filed his motion. At oral argument, the government asserted, although no evidence was produced, that Crabtree was not prosecuting the case; he was not a consultant; and he only came to help the government find documents. The court notes that in another case involving a disqualified prosecutor, the government sought permission, and a method was found, whereby that disqualified prosecutor was permitted to assist the current prosecutor in locating certain documents in the case. FSM v. Wainit, Crim. No. 2004-1513, Order (Mar. 23, 2005) (Public Defender’s Office representative to be present throughout the search and the disqualified prosecutor not render any assistance to the current prosecutor unless the Public Defender representative is present). Whether such protective measures would have been possible in this case is unknown. The point is that the government made no such effort to see if its perceived needs could be accommodated while the defendants’ interests were protected.

IV.

    This is, in part, a conspiracy case. "There is a great reluctance [in conspiracy cases] to put the government and the courts to the burden of separate trials in which the proof would be almost identical." 1A Charles Alan Wright, Federal Practice and Procedure § 226, at 571 (3d ed. 1999). 2

[14 FSM Intrm. 176]

The court was therefore reluctant to disqualify the FSM Department of Justice from prosecuting Roosevelt Kansou, Memorina Kansou, and EM-R and ordering their severance from the trial scheduled to start March 13, 2006. No lesser sanction presented itself. As a general principle, a court must impose the least severe sanction that will accomplish the desired result of prompt and full compliance with applicable criminal procedure.

FSM v. Kansou, 13 FSM Intrm. 48, 50 (Chk. 2004); FSM v. Wainit, 11 FSM Intrm. 186, 190-91 (Chk. 2002).

    Kansou has met his burden and established that a disqualified (former) prosecutor (Crabtree) has assisted the current prosecutors in preparing the case against him. The government did not establish, or try to establish, that Crabtree was effectively screened from the prosecutors in this case. The entire FSM Department of Justice is therefore disqualified. State ex rel. Romley v. Superior Court, 908 P.2d 37, 42 (Ariz. Ct. App. 1995); State v. Pennington, 851 P.2d 494, 500-01 (N.M. Ct. App. 1993); see also United States v. Goot, 894 F.2d 231, 234-35 (7th Cir. 1990).

    Severance of joint criminal defendants is a matter of sound judicial discretion. 1A Wright, supra, § 221, at 464-65 (3d ed. 1999). A trial judge is afforded broad discretion under FSM Criminal Rule 14 to grant relief from prejudicial joinder ) to sever defendants or counts from trial. Hartman v. FSM, 5 FSM Intrm. 224, 230 (App. 1991). Defendants Roosevelt Kansou, Memorina Kansou, and EM-R were prejudiced by their joinder in this case when an attorney disqualified from prosecuting them assisted in the trial preparation in February, 2006. The court therefore ordered the severance of the charges against them and the FSM Department of Justice’s disqualification.

V.

    Accordingly, the motion to disqualify the FSM Department of Justice was granted and the case against defendants Roosevelt Kansou, Memorina Kansou, and EM-R severed from that of the other appearing defendants before the other defendants’ pleas were taken, trial had started, or jeopardy had attached.

_______________________________

Footnotes:

1.  No pleas were taken from defendants Frank Cholymay, RIBC Aggregates Inc., K & I Enterprises, Inc., and Solid Builders and Trading Services because they were not then present before the court. Nor did they proceed to trial. Cf. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477 (App. 1996) (defendants who never appear for trial cannot be tried). The FSM Department of Justice was not disqualified from prosecuting those four defendants.

2.  Although the court must first look to FSM sources of law to establish legal requirements in criminal cases rather than begin with a review of other courts’ cases, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when an FSM court has not previously construed an FSM criminal procedure 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., Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984); FSM v. Fritz, 13 FSM Intrm. 88, 90 (Chk. 2004); FSM v. Wainit, 12 FSM Intrm. 376, 381 n.3 (Chk. 2004); FSM v. Wainit, 12 FSM Intrm. 105, 109 n.1 (Chk. 2003); FSM v. Wainit, 11 FSM Intrm. 1, 11 n.2 (Chk. 2002). FSM Criminal Procedure Rule 14 is similar to the U.S. Federal Rules of Criminal Procedure Rule 14.

3.  Criminal Procedure "Rule 14 comes into play only if the original joinder was proper. It then permits a severance))or an order to the government to elect))if this is needed to avoid prejudice." 1A Charles Alan Wright, Federal Practice and Procedure § 221, at 465 (3d ed. 1999). Joinder was proper in this case.

* * * *