FSM SUPREME COURT APPELLATE DIVISION

Cite as Wainit v. FSM, 14 FSM Intrm. 193 (App. 2006)

[14 FSM Intrm. 193]

TADASHI WAINIT,

Appellant,

vs.

FEDERATED STATES OF MICRONESIA,

Appellee.

CRIMINAL CASE NO. 2004-1513

APPEAL CASE NO. C2-2006

ORDER DENYING RELEASE PENDING APPEAL

Martin Yinug

Associate Justice

Decided: April 18, 2006

APPEARANCES:

For the Appellant:   Stephen V. Finnen, Esq.

                                  P.O. Box 1450

                                  Kolonia, Pohnpei   FM   96941

For the Appellee:   Matthew L. Olmsted, Esq.

                                Assistant Attorney General

                                FSM Department of Justice

                                P.O. Box PS-105

                                Palikir, Pohnpei   FM   96941

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HEADNOTES

Appellate Review ) Stay ) Criminal Cases

    When, pursuant to Appellate Procedure Rule 9(b), an appellant first filed a motion with the trial court for release while an appeal is pending and the trial court denied the motion and set out in detail the reasons for the denial in its order, a motion for release may thereafter be made to the Supreme Court appellate division or to a justice thereof. Wainit v. FSM, 14 FSM Intrm. 193, 194 (App. 2006).

Appellate Review ) Stay ) Criminal Cases

    Rule 9(c) lists the criteria that the court should use to determine whether to grant a motion for release pending appeal The appellant must establish 1) that he will not flee or pose a danger to any other person or to the community and 2) that his appeal is not for the purpose of delay, and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served. Wainit v. FSM, 14 FSM Intrm. 193, 194 (App. 2006).

[14 FSM Intrm. 194]

Appellate Review ) Stay ) Criminal Cases

    Rule 9 provides no explicit standard of review for a motion made to the appellate court for release pending appeal. Rule 9(b) contemplates the appellate court making an independent determination on whether post-conviction release should be granted and clearly contemplates the appellate court giving some weight to the trial courtís findings as the appellate court is required to consider its statement of reasons for the denial. The courtís determination should give great deference to the trial courtís statement of reasons for denial, as that court is in the best position to evaluate the appellantís legal arguments at least until the appeal has been briefed. Wainit v. FSM, 14 FSM Intrm. 193, 194-95 (App. 2006).

Appellate Review ) Stay ) Criminal Cases

    When an appellate rule has not been construed by the FSM Supreme Court and the ruleís language is the same or substantially similar to its United States counterpart, the court may look to U.S. courts for guidance. Wainit v. FSM, 14 FSM Intrm. 193, 195 n.1 (App. 2006).

Appellate Review ) Stay ) Criminal Cases

    When the appellant has not raised any arguments in his motion for release that counter the trial courtís findings or undermines its reasoning relied on in denying the motion for release, the appellate court will find that the appellant has not established that his appeal raises a substantial question of law or fact and will deny it and adopt as its own the trial courtís well-reasoned decision. Wainit v. FSM, 14 FSM Intrm. 193, 195 (App. 2006).

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COURTíS OPINION

MARTIN YINUG, Associate Justice:

I.  Introduction

    Before the court is Appellantís Motion for Release Pending Appeal. Appellee filed an opposition to the motion.

    Appellant first filed a similar motion with the trial court pursuant to Rule 9(b) of the Rules of Appellate Procedure. The trial court denied the motion and set out in detail the reasons for the denial in its order. Rule 9(b) further provides that a motion for release when an appeal is pending may thereafter be made to the Supreme Court appellate division or to a justice thereof. FSM App. R. 9(b). Appellantís motion asks the court to grant him a stay of his imprisonment pending the outcome of the appeal of his criminal conviction and sentence of imprisonment for one year.

    Rule 9(c) lists the criteria that the court should use to determine whether to grant this motion. Id. The appellant must establish (1) that he "will not flee or pose a danger to any other person or to the community" and (2) that his appeal "is not for the purpose of delay, and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served." FSM App. R. 9(c) (internal numbering omitted).

II.  Standard of Review

    Rule 9 provides no explicit standard of review for a motion made to the appellate court for release pending appeal. Id. This court has not previously construed Rule 9. It is apparent, however,

[14 FSM Intrm. 195]

that Rule 9(b) contemplates the appellate court making an independent determination on whether post-conviction release should be granted. The rule clearly contemplates the appellate court giving some weight to the trial courtís findings as the appellate court is required to consider the statement of reasons for the denial. FSM App. R. 9(b). The court believes that its determination should give great deference to the trial courtís statement of reasons for denial, however, as that court is in the best position to evaluate the legal arguments presented by the appellant at least until the appeal has been briefed. Additionally, this reading of the rule comports with that of U.S. courts that construed the former U.S. counterpart to Rule 9. See, e.g., Harris v. United States, 404 U.S. 1232, 92 S. Ct. 10, 30 L. Ed. 2d 25 (1971); United States v. Provenzano, 605 F.2d 85, 92 (3d Cir. 1979).

III.  Discussion

    Appellant argues that he is unlikely to flee or present a danger to anyone else or the community. He states that he is not a government official, he is not in good health and, most importantly, his passport is not in his possession. The court is satisfied that Appellant has established that he would be unlikely to flee or pose a danger to the community should he be released pending the outcome of his appeal.

    With regard to the second prong of the Rule 9(c) analysis, Appellant argues that there are two substantial issues raised in the appeal which are likely to result in a reversal. Briefly, Appellant argues that (1) a statute of limitations defense precluded his conviction and (2) his conviction was not for the crime for which he was charged.

    The arguments raised by Appellant concerning the second prong of Rule 9(c) were considered and rejected by the trial court. This court has carefully reviewed Appellantís current motion, Appelleeís opposition and the decision of the trial court on the motion put before it, and is convinced that the trial courtís decision was correct for the reasons stated in the April 3, 2006 order. Appellant has not raised any arguments in this motion that counter the trial courtís findings or undermines its reasoning relied on in denying the motion for release. The court finds that Appellant has not established that his appeal raises a substantial question of law or fact. The court hereby denies Appellantís motion and adopts as its own the trial courtís well-reasoned decision.

    Appellant also filed a Motion for Release Pending Determination and a Supplemental Motion for Release Pending Determination. Those motions are denied as moot.

Footnotes:

1.   Where an appellate rule has not been construed by the FSM Supreme court and the ruleís language is the same or substantially similar to its United States counterpart, the court may look to U.S. courts for guidance. Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998). Rule 9(b) of the FSM Rules of Appellate Procedure contains language that appears to have been borrowed from the version of Rule 9 of the U.S. Federal Rules of Appellate Procedure that was in effect at the time the FSM Rules were adopted.

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