FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Sam, 14 FSM Intrm. 398 (Chk. 2006)

[14 FSM Intrm. 398]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

PUNUN (DAS) SAM, SAMUEL WISUN, CHESNEY

MILLER, and RAKOFICH KASMIRO,

Defendants.

CRIMINAL CASE NO. 2006-1501

ORDER DENYING MOTIONS

Dennis Yamase

Associate Justice

Decided: September 19, 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

For the Defendant:   Harry A. Seymour, Esq.

               (Sam)         Office of the Public Defender

                                   P.O. Box 245

                                   Tofol, Kosrae   FM   96944

[14 FSM Intrm. 399]

For the Defendant:   Stephen V. Finnen, Esq.

        (Kasmiro)          P.O. Box 1450

                                   Kolonia, Pohnpei   FM   96941

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HEADNOTES

Criminal Law and Procedure ) Right to Confront Witnesses

    If codefendants are tried together, a defendantís out-of-court statement ought to be redacted to eliminate references to other codefendants. Failure to do so may result in reversal of convictions in the interests of justice. After redaction, no prejudice will occur if the statements then give no reference to any codefendant. Redaction can normally be accomplished by the parties. Thus the court will not view the statement until after redaction. FSM v. Sam, 14 FSM Intrm. 398, 400 (Chk. 2006).

Criminal Law and Procedure ) Right to Confront Witnesses

    An accusedís right to confront the witnesses against him provides him with two types of protection: the right physically to face those who testify against him, and the right to conduct cross-examination. The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the factfinder to weigh the witnessís demeanor. It applies when the ability to confront witnesses is most important ) when the trier-of-fact determines the ultimate issue of fact. FSM v. Sam, 14 FSM Intrm. 398, 401 (Chk. 2006).

Criminal Law and Procedure ) Discovery

    A bill of particulars is not a matter of right. It rests within the trial courtís sound discretion. FSM v. Sam, 14 FSM Intrm. 398, 401 (Chk. 2006).

Criminal Law and Procedure ) Discovery

    While the court must first look to FSM sources of law and circumstances in the FSM to establish legal requirements in criminal cases rather than begin with a review other courtsí cases, the court may look to U.S. sources for guidance in interpreting FSM Criminal Procedure Rule 7(f) (bills of particulars) when the court has not previously construed that rule and it is identical or similar to the U.S. rule. FSM v. Sam, 14 FSM Intrm. 398, 401 n.1 (Chk. 2006).

Criminal Law and Procedure ) Discovery

    The purpose of the bill of particulars is to inform the defendant sufficiently about the charge so he can prepare his defense and can avoid surprise. The test on passing on a motion for a bill of particulars should be whether it is necessary that the defendant have the particulars sought in order that prejudicial surprise be avoided. The sole question should be whether adequate notice of the charge has been given the defendant. FSM v. Sam, 14 FSM Intrm. 398, 401 (Chk. 2006).

Criminal Law and Procedure ) Discovery

    A motion for a bill of particulars should make clear what relief the defendant is seeking, and should be worded definitely enough that if it is granted the court could enforce its order. A motion for a bill of particulars must be denied when the motion has failed to specify the particulars sought, or makes a catchall request for "particulars." FSM v. Sam, 14 FSM Intrm. 398, 402 (Chk. 2006).

Criminal Law and Procedure ) Discovery

    No bill of particulars is necessary if the government has provided the information needed in some other satisfactory form, such as when the government has adopted an "open file" discovery policy, giving the defendants the opportunity to inspect all relevant documentary and physical evidence. FSM

[14 FSM Intrm. 400]

v. Sam, 14 FSM Intrm. 398, 402 (Chk. 2006).

Criminal Law and Procedure ) Discovery

    The court has always considered the governmentís "open file" discovery system to be a commendable and salutary practice. FSM v. Sam, 14 FSM Intrm. 398, 402 (Chk. 2006).

Criminal Law and Procedure ) Discovery

    A motion for a bill of particulars will be denied when no grounds were given for the motionís tardiness, when the motion fails to specify the particulars sought, and when it appears that the government has provided the information through other means. FSM v. Sam, 14 FSM Intrm. 398, 402 (Chk. 2006).

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COURTíS OPINION

DENNIS K. YAMASE, Associate Justice:

     On August 24, 2006, defendant Rakofich Kasmiro filed his Motion for a Bill of Particulars; Motion to Suppress Affidavit of Antonio Aiken and to Dismiss. On September 6, 2006, Punun (Das) Sam filed his Motion for Dismissal; Motion for Bill of Particulars. On September 8, 2006, the government filed its response to Kasmiroís motion.

     Kasmiroís motion asks for two things: 1) that Antonio Aikenís affidavit be suppressed, and, if suppressed, that the information must then be dismissed for lack of probable cause, and, 2) if the information is not dismissed, that the government be directed to file a bill of particulars. Samís motion joins Kasmiroís.

I.   Motion to Suppress and to Dismiss

     Kasmiro and Sam contend the information should be dismissed for lack of probable cause because Antonio Aikenís affidavit, which provided the probable cause for the information, should be suppressed. They contend that Aikenís affidavit must be suppressed because that affidavit is based on hearsay statements from the movantsí co-defendants. They contend that a court is forbidden from relying on a co-defendantís statement to establish probable cause. For this proposition, the movants rely on the courtís earlier mention that "the court is forbidden to consider as evidence against a defendant any part of a non-testifying codefendantís statement which inculpates another defendant since a statement cannot be cross-examined. Hartman v. FSM, 5 FSM Intrm. 224, 229 (App. 1991)." FSM v. Sam, 14 FSM Intrm. 328, 335 (Chk. 2006).

     The movants badly misconstrue the import of the courtís earlier statement. Cross-examination is not required when establishing probable cause. The courtís statement was instead a caution to the parties that

if the defendants are tried together, as currently seems likely, a defendantís out-of-court statement ought to be redacted to eliminate references to other codefendants. Failure to do so may result in reversal of convictions in the interests of justice. After redaction, no prejudice will occur if the statements then give no reference to any codefendant. Redaction can normally be accomplished by the parties. Thus the court will not view the statement until after redaction. Hartman v. FSM, 6 FSM Intrm. 293, 301-02 & n.12 (App. 1993).

[14 FSM Intrm. 401]

Sam, 14 FSM Intrm. at 335. It was made to assist the parties in trial preparation so that the parties would realize they should try to prepare the necessary redactions ahead of time if such redaction is capable of curing the cross-examination problem. It was thought necessary to mention this because "[t]he defendant in a criminal case has a right . . . to be confronted with witnesses against him." FSM Const. art. IV, ß 6.

       An accusedís right to confront the witnesses against him provides him with two types of     protection: the right physically to face those who testify against him, and the right to conduct cross-examination. The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the factfinder to weigh the demeanor of the witness. It applies when the ability to confront witnesses is most important)when the trier-of-fact determines the ultimate issue of fact.

FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002) (citations and footnote omitted). The right to confrontation does not apply before a person is accused and it is doubtful that the right applies even at a pretrial hearing. Id. That being so, the motions to suppress Aikenís affidavit are denied and, consequently, so are the motions to dismiss.

II.   Bill of Particulars

     Kasmiro and Sam also ask that the government be directed to file a bill of particulars. Kasmiro contends that the information "does not allege adequately what is being charged against the defendant. A bill of particulars is lacking." Motion at 2 (Aug. 24, 2006). Sam moved for a bill of particulars "based on the points and authorities in support of Kasmiroís motion." Motion at 1 (Sept. 6, 2006). Kasmiro appears to contend that the information must contain a bill of particulars and that he is entitled to one as a matter of right. But "a bill of particulars is not a matter of right." 1 Charles Alan Wright, Federal Practice and Procedure ß 129, at 648 (3d ed. 1999). It rests within the trial courtís sound discretion. United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984).

     Criminal Rule 7(f) provides that "[a] motion for a bill of particulars may be made before the initial appearance or within ten days after the initial appearance or at such later time as the court may permit." "The purpose of the bill of particulars is to inform the defendant sufficiently about the charge so he can prepare his defense and can avoid surprise." Hartman v. FSM, 5 FSM Intrm. 224, 232 (App. 1991). "The test on passing on a motion for a bill of particulars should be whether it is necessary that [the] defendant have the particulars sought in order that prejudicial surprise be avoided." 1 Wright, supra, ß 129, at 652. "The sole question should be whether adequate notice of the charge has been given the defendant." Id. at 662.

     The defendants made their initial appearance on January 19, 2006. No defendant moved for a bill of particulars at that time, or within ten days after that. At their initial appearance, the defendants were jointly represented, for the purpose of that hearing only, by a public defender who was scheduled to resign his post

and depart the FSM not long after that. Separate counsel for the defendants made their appearances or were appointed at later dates ) February 15, 2006 (for Sam, Miller, and Wisun,

[14 FSM Intrm. 402]

respectively)and March 23, 2006 (for Kasmiro). It is thus understandable that no defendant moved for a bill of particulars within ten days of his initial appearance.

     On April 17, 2006, the courtís scheduling order set May 5, 2006 as the deadline for making discovery requests and June 29, 2006, for filing pretrial motions. No motion for a bill of particulars was made before either deadline. It is not understandable why, by those dates, a bill of particulars was not sought if one was needed. On July 20, 2006, the government filed an amended information. Leave to do so was granted by the courtís August 8, 2006 Order Disposing of Pretrial Motions, which also denied the defendantsí pending motions to dismiss and also mentioned that the defendants had not sought a bill of particulars. Kasmiro sought a bill of particulars on August 24, 2006, and Sam sought one on September 6, 2006.

     Neither Kasmiro nor Sam has given any reason why their motions for a bill of particulars come at such a late date. Nor does either motion specify what is being sought. "The motion [for a bill of particulars] should make clear what relief [the] defendant is seeking, and should be worded definitely enough that if it is granted the court could enforce its order." 1 Wright, supra, ß 130, at 670-71. A motion for a bill of particulars must be denied when the motion has failed to specify the particulars sought, United States v. Gordon, 634 F.2d 639, 641 (1st Cir. 1980), or makes a catchall request for "particulars," United States v. Garrison, 353 F. Supp. 306, 312 (E.D. La. 1972). Samís and Kasmiroís motions make catchall requests for "particulars."

     Also, no bill of particulars is necessary if the government has provided the information needed in some other satisfactory form, 1 Wright, supra, ß 129, at 654; United States v. Glecier, 923 F.2d 496, 501-02 (7th Cir. 1991) (denial of bill of particulars motion did not violate defendantís constitutional right to be informed of charge against him when the indictment and other pretrial disclosures provided the defendant with enough information about the charges against him without a bill of particulars); United States v. Lavin, 504 F. Supp. 1356, 1361-62 (N.D. Ill. 1981) (proper to look to post-indictment discovery when considering whether bill of particulars is required), such as when the government has adopted an "open file" discovery policy, giving the defendants the opportunity to inspect all relevant documentary and physical evidence, United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1991); United States v. Esteves, 886 F. Supp. 645, 647 (N.D. Ill. 1995).

     In Samís case, the government, in its supporting affidavits and moving papers, has specified that Sam is alleged to have physically assisted another in overcoming Police Officer Weia by punching him. Obviously, no bill of particulars would be needed for him. In the past, the FSM government has maintained an "open file" discovery system. The court has always considered this to be a commendable and salutary practice. See FSM v. Walter, 13 FSM Intrm. 264, 268 (Chk. 2005). There is no indication that the government has departed from that policy in this case. That should satisfy any need Kasmiro might have for a bill pf particulars.

     Since no grounds were given for the tardiness of the motion for a bill of particulars, since the motions fail to specify the particulars sought, and since it appears that the government has provided the information through other means, the motions for bills of particulars are denied.

III.   Conclusion

     The motions for bills of particulars by Rakofich Kasmiro and Punun (Das) Sam are denied as are their motions to suppress Antonio Aikenís affidavit and to dismiss the information.

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Footnotes:

1.    While the court must first look to FSM sources of law and circumstances in the FSM to establish legal requirements in criminal cases rather than begin with a review other courtsí cases, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), the court may look to U.S. sources for guidance in interpreting an FSM criminal procedure rule when the court has not previously construed the rule and it is identical or similar to the U.S. rule, see, e.g., Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984). The court has not previously been called upon to construe Rule 7(f) (bills of particulars).

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