FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Petewon, 14 FSM Intrm. 320 (Chk. 2006)

[14 FSM Intrm. 320]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

JOHN PETEWON, JAMES FRITZ, JOHN ENGICHY

a/k/a AISER JOHN ENGICHY, and FRANK DARRA,

Defendants.

CRIMINAL CASE NO. 2003-1508

ORDER DENYING STAYS OF EXECUTION OF SENTENCES

Richard H. Benson

Specially Assigned Justice

Decided: August 2, 2006

APPEARANCES:

For the Plaintiff:   Keith J. Peterson, Esq.

                               Assistant Attorney General

                               FSM Department of Justice

                               P.O. Box PS-105

                               Palikir, Pohnpei   FM   96941

[14 FSM Intrm. 321]

For the Defendant:   John Petewon, pro se

          (Petewon)        Weno, Chuuk   FM   96942

For the Defendant:    Harry A. Seymour, Esq.

          (Engichy)          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

                                    Palikir, Pohnpei   FM   96941

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HEADNOTES

Appellate Review ) Stay ) Criminal Cases

    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. Petewon, 14 FSM Intrm. 320, 324 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    Release from imprisonment pending appeal is not automatic once a notice of appeal and a motion to stay have been filed, but rests on the court’s discretion. FSM v. Petewon, 14 FSM Intrm. 320, 324 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    Rule 9(c) permits the court to release persons who have been convicted of an offense and have filed appeals 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, and 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 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 v. Petewon, 14 FSM Intrm. 320, 324 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    If the court determines 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. FSM v. Petewon, 14 FSM Intrm. 320, 324 (Chk. 2006).

[14 FSM Intrm. 322]

Appellate Review ) Stay ) Criminal Cases

    For purposes of a stay, 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. Petewon, 14 FSM Intrm. 320, 324 (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 start with a review of other courts’ cases, when an FSM appellate rule is identical or similar to a U.S. counterpart and has not been previously construed, the court may look to U.S. sources for guidance in interpreting the rule. FSM v. Petewon, 14 FSM Intrm. 320, 325 n.1 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    That a pretrial motion to dismiss succeeded in eliminating one count and a motion to acquit on the other count was unsuccessful ) is too vague an issue to show a substantial or close question. Exactly what issue(s) an appellant intends to raise under this ground is unclear. FSM v. Petewon, 14 FSM Intrm. 320, 325 (Chk. 2006).

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

    As summarized in a well-known adage ) ignorance of the law is no excuse. Nor is it a substantial or close question on appeal. FSM v. Petewon, 14 FSM Intrm. 320, 325 (Chk. 2006).

Criminal Law and Procedure ) Defenses

    A mistake of, or ignorance of, law is not a defense under the FSM statute. It is generally not a defense to penal liability. FSM v. Petewon, 14 FSM Intrm. 320, 325 (Chk. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    The standard of review that an appellate court must apply in reviewing a claim of insufficiency of evidence in a criminal proceeding is whether the appellate court can conclude that the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence. In reaching this conclusion, the appellate court’s obligation is to review the evidence in the light most favorable to the trial court’s factual determinations and most favorable to the inferences the trial court drew from the evidence. FSM v. Petewon, 14 FSM Intrm. 320, 325 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    A mere assertion that an appellate panel might view the evidence from different angles does not show a close or substantial question. It ignores the standard that the appellate court must use in its review and the difficulty an appellant has in prevailing on an insufficiency of the evidence claim. FSM v. Petewon, 14 FSM Intrm. 320, 325-26 (Chk. 2006).

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

    Defenses and objections based on defects in the information (other than that it fails to show jurisdiction in the court or to charge an offense) must be raised prior to trial. Any deficiency in the information not raised before trial has been waived and therefore cannot be a substantial or close question on appeal. FSM v. Petewon, 14 FSM Intrm. 320, 326 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    Deficiencies in the presentation of evidence is a claim of insufficiency of the evidence. In light of the standard of appellate review for such claims and the high hurdle an appellant must overcome, the court, without more, cannot consider this to be a close or substantial question. FSM v. Petewon, 14 FSM Intrm. 320, 326 (Chk. 2006).

[14 FSM Intrm. 323]

Appellate Review ) Stay ) Criminal Cases; Evidence

    A blanket claim that all evidence should have been excluded will not be considered a close or substantial question on appeal. Nor is a claim that prejudicial evidence was admitted a substantial issue because relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter. FSM v. Petewon, 14 FSM Intrm. 320, 326 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    A question whether the verdict is based on sufficient evidence and is consistent with the evidence as presented and the charges as filed is too vague for the court to consider it a substantial or close question, and it raises an insufficiency of the evidence claim. The mere assertion that the evidence was insufficient, in light of the appellate court’s standard of review, does not present a close or substantial question. FSM v. Petewon, 14 FSM Intrm. 320, 326 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    When there was evidence that an appellant was part of a conspiracy, an assertion that his mere knowledge of a conspiracy is not enough to implicate him in the conspiracy, does not present a substantial or close question. FSM v. Petewon, 14 FSM Intrm. 320, 327 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    There are cases where the voluntariness of a defendant’s statement and whether he knowingly and intelligently waived his right to silence present a close or substantial question, but when the appellant merely lists the denial of his suppression motion as a ground for appeal and does not state why it is an appealable issue or why that denial was in error, the ground will not support a stay. FSM v. Petewon, 14 FSM Intrm. 320, 327 (Chk. 2006).

Criminal Law and Procedure ) Conspiracy; Criminal Law and Procedure ) Defenses

    It is an affirmative defense that the defendant, under circumstances showing a complete and voluntary renunciation of his criminal intent, made a reasonable effort to prevent the conduct or result which is the object of the conspiracy. FSM v. Petewon, 14 FSM Intrm. 320, 327 (Chk. 2006).

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

    When no evidence was ever presented that a defendant made any effort, let alone a reasonable effort to prevent the conduct or result which is the object of the conspiracy, he cannot claim that the withdrawal or renunciation defense presents a substantial question since he did not present any evidence that might show that he could meet the defense’s statutory requirements. FSM v. Petewon, 14 FSM Intrm. 320, 327 (Chk. 2006).

Appellate Review ) Stay ) Criminal Cases

    That the time an appellant expects the appeal to take deprives him of his right to appeal is a meritless ground for a stay. FSM v. Petewon, 14 FSM Intrm. 320, 327 (Chk. 2006).

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COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

    On June 30, 2006, the court entered judgments of conviction against defendants John Petewon, James Fritz, John Engichy a/k/a Aiser John Engichy, and Frank Darra. On July 3, 2006, John Engichy, through counsel, filed his notice of appeal and a motion to stay execution of sentence and a motion for

[14 FSM Intrm. 324]

an expedited hearing. On July 5, 2006, James Fritz, through counsel, filed his notice of appeal, and on July 6, 2006, he moved to join Engichy’s motion to stay the execution of sentence. On July 6, 2006, John Petewon, acting pro se, filed his notice of appeal and a motion to stay execution of sentence. On July 6, 2006, Frank Darra filed his notice of appeal in the appellate division in Pohnpei, and on July 7, 2006, he filed his motion to stay the execution of his sentence and a motion for an expedited hearing.

    On July 13, 2006, the government filed its opposition to Engichy’s motion to stay, and on July 17, 2006, it filed its oppositions to Petewon’s and Darra’s motions to stay.

I.

    Each motion to stay seeks that movant’s release from imprisonment while his appeal is pending. 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. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004); FSM v. Akapito, 10 FSM Intrm. 255, 256 (Chk. 2001); FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998). Release from imprisonment pending appeal is not automatic once a notice of appeal and a motion to stay have been filed, but rests on the court’s discretion. Moses, 12 FSM Intrm. at 511.

    Appellate Rule 9(c) permits the court to release persons who have been convicted of an offense and have filed appeals "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 conditions could be set under Appellate Rule 9(d) for each convicted movant’s release that would reasonably assure that each 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 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, if the court determines 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.

II.

    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), aff’d, 14 FSM Intrm. 193, 195 (App. 2006) (single justice denial); see also 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.

[14 FSM Intrm. 325]

1008 (1985); United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985). Each convicted’s stay motion mentions issues that he intends to raise in his appeal. None of them are substantial or close questions.

A.  Engichy and Fritz

    John Engichy cites three grounds for his appeal: 1) that he moved for dismissal pretrial and one count against him was dismissed and that he moved for acquittal on the remaining conspiracy count; 2) whether he "had the prerequisite knowledge of the offense of conspiracy"; and 3) whether with three appellate justices reviewing the entire, voluminous evidence, it might "be viewed in different angles." Engichy Motion at 4 (July 3, 2006). James Fritz’s motion to stay incorporates by reference the arguments in Engichy’s motion.

    The first ground raised ) that a pretrial motion to dismiss succeeded in eliminating one count against Engichy and a motion to acquit on the other was unsuccessful ) is too vague to show a substantial or close question. Exactly what issue(s) either Engichy or Fritz intend to raise under this ground is unclear.

    The second ground appears to be an assertion that Engichy (and by reference, Fritz) either did not know that conspiracy was a crime or that they did not know what constituted the offense of conspiracy. This is a claim that they were ignorant of the law. As summarized in a well-known adage ) ignorance of the law is no excuse. Nor is it a substantial or close question on appeal. Ignorance or mistake of fact is a defense under 11 F.S.M.C. 301A(3). A mistake of, or ignorance of, law is not a defense under the FSM statute. It is generally not a defense to penal liability. See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.1(d) (1986). Engichy and Fritz may not use ignorance of the law of the offense of conspiracy as a defense or to show that there is a substantial or close question on appeal.

    Nor can the court deem the third ground ) that when the three appellate justices review the entire, voluminous evidence, it might "be viewed in different angles" ) to be a substantial or close question on appeal. This is a claim of insufficiency of the evidence. The standard of review that an appellate court must apply in reviewing a claim of insufficiency of evidence in a criminal proceeding is whether the appellate court can conclude that the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence. Sander v. FSM, 9 FSM Intrm. 442, 449 (App. 2000); Alfons v. FSM, 5 FSM Intrm. 402, 405 (App. 1992); Runmar v. FSM, 3 FSM Intrm. 308, 315 (App. 1988); Engichy v. FSM, 1 FSM Intrm. 532, 546 (App. 1984). In reaching this conclusion, the appellate court’s obligation is to review the evidence in the light most favorable to the trial court’s factual determinations and most favorable to the inferences the trial court drew from the evidence. Sander, 9 FSM Intrm. at 449; Alfons, 5 FSM Intrm. at 405; Welson v. FSM, 5 FSM Intrm. 281, 285 (App. 1992); Engichy, 1 FSM Intrm. at 545. Thus a mere assertion that an appellate panel might view the

[14 FSM Intrm. 326]

evidence from different angles does not show a close or substantial question. It ignores the standard that the appellate court must use in its review and the difficulty an appellant has in prevailing on an insufficiency of the evidence claim.

Accordingly, the motions to stay by Engichy and Fritz are denied.

B.  Petewon

    John Petewon presents as issues he intends to raise on appeal: 1) deficiencies in the information and presentation of the evidence, 2) allowance into evidence of prejudicial material that should have been excluded, and 3) whether the verdict is based on sufficient evidence and is consistent with the evidence as presented and the charges as filed. Petewon also asks for leave to supplement his motion to stay once he has obtained appellate counsel.

    Deficiencies in the information is not a substantial ground for an appeal. "The following must be raised prior to trial: . . . Defenses and objections based on defects in the information (other than that it fails to show jurisdiction in the court or to charge an offense . . .)." FSM Crim. R. 12(b)(2). Thus any deficiency in the information not raised before trial has been waived and therefore cannot be a substantial or close question on appeal. None were raised before trial.

        Deficiencies in the presentation of evidence is a claim of insufficiency of the evidence. As stated above, in light of the standard of appellate review for such claims and the high hurdle an appellant must overcome, the court, without more, cannot consider this to be a close or substantial question.

    Since, except for that evidence that related solely to the charges against Simeon Innocenti, Petewon objected to the admission of every exhibit on one or more grounds, it is difficult to understand exactly what evidence that was admitted he now feels should have been excluded and why. A blanket claim that all evidence should have been excluded will not be considered a close or substantial question. Nor is a claim that prejudicial evidence was admitted a substantial issue. "Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter." United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979). Thus this ground does not present a close or substantial issue either.

    Petewon’s third ground ) whether the verdict is based on sufficient evidence and is consistent with the evidence as presented and the charges as filed ) is too vague for the court to consider it a substantial or close question. Furthermore, it raises an insufficiency of the evidence claim again. As stated above, the mere assertion that the evidence was insufficient, in light of the appellate court’s standard of review, does not present a close or substantial question.

    Therefore Petewon’s motion to stay must be denied. But since, for reasons not on the record, Petewon is currently without counsel, Petewon’s motion for leave to supplement and renew his motion to stay once he has appellate counsel is granted.

C.  Darra

    Frank Darra cites as substantial non-frivolous issues entitling him to a stay: 1) that there is no evidence that he joined the conspiracy, 2) that his mere knowledge of a conspiracy is not enough to implicate him in the conspiracy, 3) that his motion to suppress was denied, 4) his defense of withdrawal and renunciation of the conspiracy, and 5) that he cannot exercise his right to appeal if the motion to stay is not granted because of the long time he expects to pass before his appeal is heard and decided.

[14 FSM Intrm. 327]

    Darra’s first ground and second ground present another sufficiency of the evidence claim. In Darra’s case, it not only is not a substantial or close question, it is frivolous to assert that there was no evidence he was part of a conspiracy. Since there was evidence that he was part of a conspiracy, an assertion that his mere knowledge of a conspiracy is not enough to implicate him in the conspiracy ) does not present a substantial or close question either.

    There are cases where the voluntariness of a defendant’s statement and whether he knowingly and intelligently waived his right to silence present a close or substantial question. This is not one of them. Darra merely lists the denial of his suppression motion as a ground for appeal. He does not state why it is an appealable issue or why that denial was in error. Darra’s third ground, concerning his suppression motion, will not support a stay.

    Darra asserts that the defense of withdrawal and renunciation of the conspiracy presents a substantial question on appeal. He bases this defense on his resignation from his job at FSM Finance in Chuuk and his return to Pohnpei. The conspiracy statute provides that: "It is an affirmative defense that the defendant, under circumstances showing a complete and voluntary renunciation of his criminal intent, made a reasonable effort to prevent the conduct or result which is the object of the conspiracy." 11 F.S.M.C. 203(3) (1981); FSM Pub. L. No. 11-72, § 15(7) (to be codified at 11 F.S.M.C. 203(7)) (Revised Criminal Code Act effective Jan. 25, 2001). No evidence was ever presented that Darra made any effort, let alone a reasonable effort to prevent the conduct or result which is the object of the conspiracy. He therefore cannot claim that the withdrawal or renunciation defense presents a substantial question since he did not present any evidence that might show that he could meet the defense’s statutory requirements.

    Darra’s fifth ground ) the time he expects the appeal to take deprives him of his right to appeal ) is meritless.

    Darra’s motion to stay the execution of his sentence is accordingly denied.

III.   Conclusion

    The motions to stay execution of sentence brought by John Petewon, James Fritz, John Engichy a/k/a Aiser John Engichy, and Frank Darra are all denied. Petewon is granted leave to supplement (and renew) his motion to stay once appellate counsel has entered an appearance.

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Footnotes:

1.   Although the court must first look to FSM sources of law to establish legal requirements in criminal cases rather than start with a review of other courts’ cases, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when an FSM appellate rule is identical or similar to a U.S. counterpart and has not been previously construed, 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); Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998); Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992). The U.S. cases cited in the text above interpret 18 U.S.C. § 3143(b)(2), the U.S. counterpart from which FSM Appellate Rule 9(c) was derived. The meaning of "substantial question of law or fact" has been considered only once before, very recently. FSM v. Wainit, 14 FSM Intrm. 164, 168 (Chk. 2006), aff’d, 14 FSM Intrm. 193, 195 (App. 2006) (single justice denial).

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