FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kansou, 14 FSM Intrm. 273 (Chk. 2006)

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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 MODIFYING DISQUALIFICATION ORDER

Richard H. Benson

Specially Assigned Justice

Decided: June 16, 2006

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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:   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

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HEADNOTES

Contempt

    When an attorney’s inappropriate, intemperate, and ill-conceived remarks about the court were neither included in the contempt charge nor mentioned in the information against him and when bad faith was not pled, reliance on the attorney’s unmentioned improper remarks to allege his bad faith when that element was not pled in the criminal information is a belated rationalization. FSM v. Kansou, 14 FSM Intrm. 273, 276 (Chk. 2006).

Criminal Law and Procedure ) Prosecutors

    Prosecutors, because of their conduct, can be disqualified when it is in the public’s interest that the judicial process should both appear fair and be fair in fact. FSM v. Kansou, 14 FSM Intrm. 273, 277 (Chk. 2006).

Criminal Law and Procedure ) Prosecutors

    In helping locate and discuss relevant evidence in the discovery, a former prosecutor was a part of the prosecution team in the same way that the police are considered part of the prosecution team. FSM v. Kansou, 14 FSM Intrm. 273, 277 (Chk. 2006).

Criminal Law and Procedure ) Motions

    On a motion to reconsider, the court will not consider the later affidavits of the three who were present at the hearing when they present no information located after the hearing was closed and there was no valid reason given why the government was unable to present the evidence at the hearing; but a fourth person’s affidavit will be considered because he was unavailable before and during the hearing. FSM v. Kansou, 14 FSM Intrm. 273, 277 (Chk. 2006).

Criminal Law and Procedure ) Prosecutors

    Once an assistant attorney general has been disqualified, that attorney’s disqualification must be complete and any participation or anything less than complete abstention by a disqualified member of a prosecutor’s office in a supervisory capacity would warrant disqualification of the entire office. FSM v. Kansou, 14 FSM Intrm. 273, 278 (Chk. 2006).

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Constitutional Law ) Judicial Guidance Clause; Criminal Law and Procedure ) Prosecutors

    The court must make its decisions consistent with the FSM’s social and geographical configuration. While the FSM is a nation of large geographical distances, it has a small land base, a small population, and limited resources. It also has a small government legal office and few other lawyers available. The court, consistent with the FSM’s social and geographical configuration, thus should not order the government to go outside its Department of Justice for a prosecutor unless it is absolutely necessary. FSM v. Kansou, 14 FSM Intrm. 273, 278 (Chk. 2006).

Attorney and Client ) Disqualification of Counsel

    The disqualification of all lawyers in a government office when one of them is disqualified is a question within the trial court’s discretion. FSM v. Kansou, 14 FSM Intrm. 273, 278 (Chk. 2006).

Criminal Law and Procedure ) Prosecutors

    To insure that the judicial process both appears fair and is fair in fact, the court, aware of the hardship and insurmountable difficulties that the continued disqualification of the entire FSM Department of Justice may cause and also aware that the judicial process’s fairness may be impugned by the appearance that a former disqualified prosecutor may have had some involvement in the government’s preparation of its case against those defendants he was barred from prosecuting, will order that the entire FSM Department of Justice remain disqualified from prosecuting those defendants except for any FSM Department of Justice attorneys hired after the date of the former prosecutor’s last involvement. The new assistant attorney(s) general assigned to prosecute the case shall not have discussed the case’s merits with the previous prosecutors and shall not consult any of the previous prosecutors in preparing their prosecution. These new prosecutors shall be screened from all previous prosecutors in the case. FSM v. Kansou, 14 FSM Intrm. 273, 278-79 (Chk. 2006).

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COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

     On April 11, 2006, the government filed its Motion for Reconsideration of Court’s Disqualification Orders. Defendant Roosevelt Kansou responded to the motion on April 19, 2006 and supplemented his response on April 24, 2006. Memorina Kansou joined the response on May 5, 2006. The government filed a Supplemental and Reply Memorandum on April 27, 2006, to which Roosevelt Kansou responded on May 8, 2006.

I.  The Motion’s Background

     The government asks the court to reconsider both the July 13, 2005 order, FSM v. Kansou, 13 FSM Intrm. 344 (Chk. 2005), that disqualified Matthew Crabtree from prosecuting Roosevelt D. Kansou, Memorina Kansou, and EM-R, and the March 13, 2006 oral order (memorialized by a written memorandum entered April 5, 2006, FSM v. Kansou, 14 FSM Intrm. 171 (Chk. 2006)) that disqualified the entire FSM Department of Justice from prosecuting Roosevelt D. Kansou, Memorina Kansou, and EM-R and severed their prosecution from the trial of seven co-defendants that started later on March 13, 2006.

     The government avers, with supporting affidavits, that, after the July 13, 2005 order disqualified Crabtree, there was considerable discussion within the Department of Justice but none of the attorneys in that office interpreted the order as requiring either a screen around Crabtree or severance of the Kansou defendants from the rest of the case, or that it prevented the government from consulting

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Crabtree about the location and source of documents among the 20,000 pages of discovery in the case. It asserts that, if it had, it would have moved for reconsideration of the order at that time.

     The government further avers that Assistant Attorney General Matthew Olmsted, who took over interim responsibility for the case after Crabtree left the FSM in July 2005, had little familiarity with the voluminous discovery documents and communicated with Crabtree only about technical questions concerning the discovery database and technical issues, and that Assistant Attorneys General Keith Peterson and Lisa Rousso, who both had been hired after Crabtree’s departure and thus had no knowledge of the documents produced in the discovery, were assigned primary responsibility for the case. The government states that by February 2006, the prosecution team was becoming increasingly frustrated by their inability to "locate and source" certain discovery documents and that when it became apparent that the prosecution team could not "locate and source" the documents in time for trial, the Secretary of Justice made the decision to bring Crabtree to Pohnpei to help with this limited task.

     The government states that Crabtree was present on Pohnpei from the afternoon of February 24, 2006 to the morning of February 28, 2006 and that during that time he met with FSM Assistant Attorneys General Olmsted, Peterson, and Rousso for a total of about sixteen hours. On February 28, 2006, Roosevelt Kansou’s counsel met with Peterson at Palikir and noted that Crabtree was present talking to Peterson before the meeting started. He 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. The government avers that all of its discussion with Crabtree involved issues and documents that had direct relevance to a defendant that Crabtree was not disqualified from prosecuting.

     Shortly thereafter, Kansou’s counsel filed a motion to disqualify the entire FSM Department of Justice, which was heard and granted from the bench on March 13, 2006.

II.  The July 13, 2005 Disqualification Order

     The government now asks the court to reconsider its July 13, 2005 order, FSM v. Kansou, 13 FSM Intrm. 344 (Chk. 2005), disqualifying Crabtree. The government states that it does not intend to bring Crabtree back to prosecute the Kansou defendants. It asserts that the issue of whether Crabtree could prosecute the Kansou defendants was rendered moot when Crabtree’s employment with the Department of Justice ended. The government contends that the July 13, 2005 order should be overturned because disqualification is a drastic measure and prosecutors are not required to be entirely neutral and detached, as judges are expected to be.

    The government further contends that Crabtree’s filing of criminal contempt charges against Michael Sipos, who was then Roosevelt Kansou’s counsel, was proper because it stemmed not only from Sipos’s improper advice to his clients concerning the court’s pretrial release order but also from certain inappropriate and disdainful remarks that Sipos made about the court itself, and that those remarks revealed Sipos’s criminal intent to obstruct justice and that Sipos had in fact acted in bad faith. As the court noted in its July 13, 2005 order, Sipos’s inappropriate, intemperate, and ill-conceived remarks about the court were neither included in the contempt charge nor mentioned in the information. Kansou, 13 FSM Intrm. at 349. Nor was bad faith pled. Id. Reliance on Sipos’s unmentioned improper remarks to allege his bad faith when that element was not pled in the criminal information is a belated rationalization.

    The government also objects to what it sees as the court’s reliance on State v. Lettice, 556 N.W.2d 376 (Wis. Ct. App. 1996) and asserts that Crabtree’s conduct cannot be compared to the Lettice prosecutor’s egregious conduct in charging, the day before Lettice’s trial, his defense counsel

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with criminal contempt for revealing "privileged" documents that the court had already ruled were not privileged. The government misunderstands the court’s reference to Lettice, which was for the principle that prosecutors, because of their conduct, can be disqualified when it is in "the public’s interest that the judicial process [should] both appear fair and be fair in fact," Lettice, 556 N.W.2d at 378, not for the degree of prosecutorial misconduct.

    Otherwise, the government raises nothing new in its arguments other than to say that it did not learn, until the court’s March 13, 2006 oral order, that its interpretation of the July 13, 2005 order was incorrect. It will not be fruitful to plow the same ground again. The motion to reconsider the July 13, 2005 order is accordingly denied.

III.  The March 13, 2006 Disqualification Order

    The government also asks the court to reconsider its March 13, 2006 oral order disqualifying the entire FSM Department of Justice from prosecuting the Kansou defendants. The government asserts several bases for reconsidering and revoking this order. It contends that since the July 13, 2005 order did not explicitly order that Crabtree be screened from all parts of the prosecution of the Kansou defendants and permitted him to prosecute the other defendants and the Kansou defendants’ alleged co-conspirators, and since Crabtree was not disqualified for a conflict of interest, it had a reasonable, good faith interpretation of the July 13, 2005 order which permitted Crabtree’s visit to Pohnpei for the limited purpose of locating and discussing with the prosecution team documents relevant to the other defendants (some of which would also be relevant to the Kansou defendants). The government states that had it suspected that inviting Crabtree to Pohnpei for that purpose would violate the July 13, 2005 order it would have sought either that order’s reconsideration or the court’s permission for it to consult Crabtree on those limited issues.

    The government urges that Crabtree was not acting as a prosecutor when it consulted him in February 2006 and offers the dictionary definition of a prosecutor as one who functions as a trial lawyer prosecuting another for a crime in the name of the government. However, Crabtree in helping locate and discuss relevant evidence in the discovery was a part of the prosecution team in the same way that the police are considered part of the prosecution team. See FSM v. Walter, 13 FSM Intrm. 264, 268 n.2 (Chk. 2005).

    The government also asks that, if the court reaffirms its disqualification orders that it give guidance on how the prosecution of the Kansou defendants should proceed, including the question of who would appoint a special prosecutor, the extent the Department of Justice can interact with the special prosecutor, and how to fund the special prosecutor.

    Roosevelt Kansou asserts that the court should not consider the supporting affidavits of Secretary of Justice Marstella Jack and Assistant Attorneys General Peterson, Rousso, and Olmsted because the information they contain was available to the government at the time of the March 13, 2006 hearing since three of the four affiants were present and nothing is included that the government did not already know. The government contends that it needed more time to gather its facts and that the attorney most knowledgeable about the July 13, 2005 order was out of the country at the time.

    The court will not consider the affidavits of the three who were present at the hearing. They present no information located after the hearing was closed and there was no valid reason given why the government was unable to present the evidence on March 13, 2006. FSM v. Tipen, 1 FSM Intrm. 79, 94 (Pon. 1982). Olmsted’s affidavit will be considered because he was unavailable before and during the hearing.

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    The government further contends that notifying the attorneys for Roosevelt and Memorina Kansou and having them present while the disqualified attorney located those documents for the government (as was done in another case at the government’s request), was not a workable solution in this case because allowing those attorneys to observe the activities between the prosecutors and Crabtree would have disclosed confidential and privileged information concerning the prosecution of the co-defendants. Whether counsel and the court could have found a workable solution is uncertain. The point is that no attempt was made and to assert after the fact that none could have been found is disingenuous.

    Kansou further contends that if the government cannot show that the disqualified attorney has been effectively screened, the entire Department of Justice must be disqualified. The government contends that Crabtree’s involvement after July 13, 2005 was limited to inquiries concerning the location and source of documents. Kansou questions this because of certain postings by Crabtree on an internet site indicate he had extensive (181) e-mail contact with the Department of Justice and that he even posted a copy of the motion to reconsider currently before the court before the original was received and filed by the court clerk in Chuuk. Kansou asks that he be permitted to make further discovery concerning the Crabtree contacts and that the 181 e-mails be provided to the court for its in camera inspection.

    Kansou cites the general principle that once an assistant attorney general has been disqualified that attorney’s disqualification must be complete. The court has previously adopted this principle and further held that any participation or anything less than complete abstention by a disqualified member of a prosecutor’s office in a supervisory capacity would warrant disqualification of the entire office. FSM v. Wainit, 12 FSM Intrm. 376, 381 (Chk. 2004). Crabtree never held a supervisory position.

IV.  Modification of March 13, 2006 Order

    The court must make its decisions "consistent with . . . the [FSM’s] social and geographical configuration." FSM Const. art. XI, § 11. While the FSM is a nation of large geographical distances, it has a small land base, a small population, and limited resources. It also has a small government legal office and few other lawyers available. The court, consistent with the FSM’s social and geographical configuration, thus should not order the government to go outside its Department of Justice for a prosecutor unless it is absolutely necessary. The disqualification of all lawyers in a government office when one of them is disqualified is a question within the trial court’s discretion. Office of the Public Defender v. Trial Division, 4 FSM Intrm. 252, 254 (App. 1990) (trial court did not abuse its discretion in refusing to disqualify all lawyers in Public Defenders’ Office when one was disqualified).

    The court is aware of the hardship and insurmountable difficulties that the continued disqualification of the entire FSM Department of Justice may cause. The court is also aware that the judicial process’s fairness may be impugned by the appearance that Crabtree may have had some involvement after July 13, 2005 in the government’s preparation of its case against those defendants Crabtree was barred from prosecuting. Therefore, to insure that the judicial process both appears fair and is fair in fact, the entire FSM Department of Justice remains disqualified from prosecuting Roosevelt D. Kansou, Memorina Kansou, and EM-R, except for any FSM Department of Justice attorneys hired after February 2006. See FSM v. Wainit, 12 FSM Intrm. 172, 180 (Chk. 2003) (entire department not disqualified when the current prosecutor was not a member of the department when the disqualifying events occurred; disqualified prosecutors screened; and the case files segregated); cf. United States v. Lorenzo, 995 F.2d 1448, 1452-53 (9th Cir. 1995) (entire U.S. Attorney’s Office not disqualified although the defendants’ criminal conspiracy was directed at some office members since none of those members participated in the prosecution and since the prosecutor was not a member of the office when the crimes were committed).

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    The new assistant attorney(s) general assigned to prosecute this case shall not have discussed this case’s merits with the previous prosecutors and shall not consult any of the previous prosecutors in preparing their prosecution. If this seems an onerous burden to impose on a new attorney, it is not as burdensome as it appears. He, she, or they may consult, for assistance in trial preparation, a transcript of the recently completed trial of the other co-defendants, the court file, and any already prepared attorney work product within the Department of Justice. These new prosecutors shall be screened from all previous prosecutors in this case.

V.  Conclusion

    The government’s motion to reconsider the court’s July 13, 2005 order is denied. The motion to reconsider the March 13, 2006 order is granted in part and that order is modified to permit only those attorneys in the FSM Department of Justice hired after February 2006 who have not discussed the case’s merits with previous prosecutors to prosecute Roosevelt D. Kansou, Memorina Kansou, and EM-R.

    Because of the court’s disposition of the motion, it will be unnecessary to reach the government’s request for guidance in appointing and funding a special prosecutor or to rule on the Kansou defendants’ request for discovery concerning e-mails to and from Crabtree or his internet posting.

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