FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kansou, 14 FSM Intrm. 497 (Chk. 2006)

[14 FSM Intrm. 497]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

ROOSEVELT D. KANSOU, MEMORINA KANSOU,

FRANK CHOLYMAY, EM-R, RIBC AGGREGATES INC.,

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

Decided: November 24, 2006

Memorandum Entered: December 7, 2006

APPEARANCES:

For the Plaintiff:           Pole Atanraoi, Esq.

                                    FSM Assistant Attorney General

                                    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

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[14 FSM Intrm. 498]

HEADNOTES

Criminal Law and Procedure ) Dismissal; Criminal Law and Procedure ) Speedy Trial

     A four-factor balancing test ) 1)  length of delay, 2)  the reason for the delay, 3)  the defendantís assertion of his right, and 4)  prejudice to the defendant ) is used to analyze the meaning of the FSM Constitutionís speedy trial right and to determine speedy trial violations; and it is also an appropriate tool to analyze whether a Rule 48(b) dismissal for unnecessary delay in prosecution is warranted. FSM v. Kansou, 14 FSM Intrm. 497, 499 (Chk. 2006).

Criminal Law and Procedure ) Dismissal; Criminal Law and Procedure ) Speedy Trial

     To determine whether to exercise its discretionary power to dismiss under Rule 48(b), a court may consider the same factors relevant to a constitutional decision regarding denial of a speedy trial. FSM v. Kansou, 14 FSM Intrm. 497, 499 (Chk. 2006).

Criminal Law and Procedure ) Speedy Trial

     A lengthy delay is a triggering mechanism to determine if further analysis is required to determine if a defendantís right to a speedy trial has been violated. FSM v. Kansou, 14 FSM Intrm. 497, 499 (Chk. 2006).

Criminal Law and Procedure ) Speedy Trial

     Since no trial can be held until after a defendantís motions to disqualify the prosecutors or to dismiss the case are decided, such motions are delays caused or requested by a defendant. Delay caused or requested by a defendant suspends his speedy trial right, or is considered his waiver of that right until that delay is over, even when that delay is justified. FSM v. Kansou, 14 FSM Intrm. 497, 500 (Chk. 2006).

Criminal Law and Procedure ) Speedy Trial

     An accused is not denied a speedy trial when the delay is clearly attributable to the accused himself or to his counsel. Such delay includes the time to rule on a defendantís pretrial motions. FSM v. Kansou, 14 FSM Intrm. 497, 500 (Chk. 2006).

Criminal Law and Procedure ) Speedy Trial

     A defendantís consent to a trial date that may be, or is, beyond the time when a trial would have to be held under the defendantís speedy trial right, constitutes the defendantís waiver of his right to a speedy trial. An express waiver of an accusedís speedy trial right is not required if defense counsel agrees to a trial date beyond the speedy trial limit. FSM v. Kansou, 14 FSM Intrm. 497, 500 (Chk. 2006).

Criminal Law and Procedure ) Dismissal; Criminal Law and Procedure ) Speedy Trial

     For speedy trial or unnecessary delay purposes, a defendant cannot take advantage of delays caused by his own conduct or consent, whether or not those delays were justified. The delay caused by a defendantís requests, although justified since the court granted relief based on his motions, thus cannot be used by the defendant to seek a dismissal on the ground that his speedy trial right was violated or that there has been unnecessary delay in bringing him to trial. FSM v. Kansou, 14 FSM Intrm. 497, 500 (Chk. 2006).

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[14 FSM Intrm. 499]

COURTíS OPINION

RICHARD H. BENSON, Specially Assigned Justice:

     On November 6, 2006, defendant Roosevelt D. Kansou filed his Motion to Dismiss Due to Unnecessary Delay in Trial. The government filed its opposition on November 9, 2006. On November 24, 2006, the court denied the motion. This memorandum memorializes the reasons for that denial.

    Kansouís motion asserted that the charges against him should be dismissed because of the long time from when the alleged offenses were committed and from when the information was filed in this case to the date set for trial. He contends that the reasons for the delay are all attributable to the government and thus a dismissal is warranted.

     A four-factor balancing test ) 1)  length of delay, 2)  the reason for the delay, 3)  the defendantís assertion of his right, and 4)  prejudice to the defendant ) is used to analyze the meaning of the FSM Constitutionís speedy trial right and to determine speedy trial violations; and it is also an appropriate tool to analyze whether a Rule 48(b) dismissal for unnecessary delay in prosecution is warranted. FSM v. Wainit, 12 FSM Intrm. 405, 410 (Chk. 2004). To determine whether to exercise its discretionary power to dismiss under Rule 48(b), a court may consider the same factors relevant to a constitutional decision regarding denial of a speedy trial. Wainit, 12 FSM Intrm. at 410. A lengthy delay is a triggering mechanism to determine if further analysis is required to determine if a defendantís right to a speedy trial has been violated. Id.

     The delay has been lengthy in this case. The information was filed on November 11, 2003. Congressman Roosevelt Kansouís initial appearance was held on January 13, 2004. On January 19, 2004, Congress, by resolution, removed the presiding justice from this case. On August 4, 2004, that removal was ruled unconstitutional, Urusemal v. Capelle, 12 FSM Intrm. 577 (App. 2004), and the presiding justice thereafter resumed handling the case. (No other justice had been assigned to the case in the interim.)  On September 28, 2004, the court ruled on Kansouís pending motions. FSM v. Kansou, 12 FSM Intrm. 637 (Chk. 2004).

     In November 2004, Kansou discharged his counsel and asked the court to appoint him counsel. Kansouís motion to disqualify the FSM Department of Justice, and to dismiss the case, filed September 6, 2004, was heard on November 9, 2004. The court denied Kansouís motion to dismiss but granted him relief that vacated the previous penal summons as improperly issued, with the government able to seek new penal summonses. FSM v. Kansou, 13 FSM Intrm. 48, 50 (Chk. 2004). The government sought, and was issued, new penal summonses, and a new initial appearance was held for Roosevelt Kansou on November 10, 2004. On November 15, 2004, the court denied without prejudice Kansouís motion to disqualify so that new counsel could renew it if he or she believed the circumstances warranted. Id. at 49.

     On February 16, 2005, Kansou renewed his motion to disqualify the FSM Department of Justice. On July 13, 2005, the court decided that motion and disqualified one of the FSM prosecutors. FSM v. Kansou, 13 FSM Intrm. 344 (Chk. 2005). Also on July 13, 2005, the court issued an order proposing a schedule for further proceedings in the case, with the trial to start in January 2006, and sought input from all parties (there being seven other defendantsí schedule to consider at the time). Based upon the partiesí submissions, the court altered its proposal so that trial would start on March 13, 2006 and again asked for the partiesí input. Neither Kansou nor any other defendant objected to the amended proposal and the court accordingly set trial to start on March 13, 2006.

     On March 8, 2006, Kansou filed another motion to disqualify the FSM Department of Justice.

[14 FSM Intrm. 500]

The motion was heard before the start of trial on March 13, 2006. It was granted and the case against Roosevelt (and Memorina) Kansou was severed from that of the defendants whose trial did start on March 13, 2006. FSM v. Kansou, 14 FSM Intrm. 171 (Chk. 2006). The government sought reconsideration, and, on June 16, 2006, the court modified the disqualification order so that any newly-hired FSM Department of Justice prosecutor who had had no contact with a previously-disqualified prosecutor would be allowed to prosecute Kansou. FSM v. Kansou, 14 FSM Intrm. 273, 278-79 (Chk. 2006).

     A new prosecutor was admitted to appear pro hac vice on June 30, 2006. Once she had had an opportunity to familiarize herself with the voluminous record in the case, a status conference was held on September 25, 2006, at which Kansou, for the first time, indicated that he felt there were speedy trial concerns. On October 10, 2006, Kansou filed his motion to disqualify the presiding justice from trying him on Counts I and XXXII on the ground that since the justice had tried his co-defendants on those counts it would be unfair for him to be tried by a judge who had already heard and ruled on the evidence that would be presented against him. That motion was granted and Counts I and XXXII were severed. At the October 18, 2006 status conference, a tentative trial date of December 4, 2006 was set for the remaining counts. Kansou then filed his motion dismissal due to unnecessary delay.

      From September 6, 2004 to November 15, 2004, and again from February 16, 2005 to July 13, 2005, Kansou had pending motions to disqualify the FSM prosecutors. No trial can be held until after a defendantís motions to disqualify the prosecutors or to dismiss the case are decided. Wainit, 12 FSM Intrm. at 411. Such motions are delays caused or requested by a defendant. Delay caused or requested by a defendant suspends his speedy trial right, or is considered his waiver of that right, until that delay is over, even when that delay is justified. Id. Furthermore, an accused is not denied a speedy trial when the delay is clearly attributable to the accused himself or to his counsel. Such delay includes the time to rule on a defendantís pretrial motions. Id. at 411-12. Thus much of the delay before July 13, 2005 can be attributed to Kansou.

     Shortly after July 13, 2005, the court, with Kansouís consent, set the trial date for March 13, 2006. A defendantís consent to a trial date that may, or is, beyond the time when a trial would have to be held under the defendantís speedy trial right, constitutes the defendantís waiver of his right to a speedy trial. An express waiver of an accusedís speedy trial right is not required if defense counsel agrees to a trial date beyond the speedy trial limit. State v. Farinholt, 458 A.2d 442, 448 (Md. Ct. Spec. App. 1983) (dismissal for speedy trial violation reversed and prosecution reinstated), affíd, 472 A.2d 452, 456 (Md. 1984). Kansou thus waived any speedy trial claim for the delay before the March 13, 2006 trial date when his attorney consented to that trial date. The delay after that date is attributable to Kansou because it was caused by his request ) his motion to disqualify the FSM Department of Justice.

     For speedy trial or unnecessary delay purposes, a defendant cannot take advantage of delays caused by his own conduct or consent, whether or not those delays were justified. Wainit, 12 FSM Intrm. at 412. The delay caused by Kansouís requests, although justified since the court granted relief based on his motions, thus cannot be used by Kansou to seek a dismissal on the ground that his speedy trial right was violated or that there has been unnecessary delay in bringing him to trial. The motion to dismiss was therefore denied.

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