FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kansou, 15 FSM Intrm. 180 (Chk. 2007)

[15 FSM Intrm. 180]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

ROOSEVELT D. KANSOU and FRANK CHOLYMAY,

Defendants.

CRIMINAL CASE NO. 2003-1508

ORDER DENYING DISMISSAL

Dennis K. Yamase

Associate Justice

Decided:  July 9, 2007

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.

                                  P.O. Box 114

                                  Kolonia, Pohnpei   FM   96941

* * * *

HEADNOTES

Criminal Law and Procedure ) Speedy Trial

      Four factors ) 1) length of delay, 2) the reason for the delay, 3) the defendantís assertion of his right, and 4) prejudice to the defendant ) are balanced when analyzing the FSM Constitutionís speedy trial right and to determine speedy trial violations; and they are also used to analyze whether a Rule 48(b) dismissal for unnecessary delay in prosecution is warranted. The court will also use the same four-factor balancing test to determine whether dismissal is appropriate under 12 F.S.M.C. 802 since that statutory right is embodied in Rule 48(b). FSM v. Kansou, 15 FSM Intrm. 180, 183 (Chk. 2007).

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. If the delay has not been so lengthy as to be presumptively prejudicial, no further analysis is needed. FSM v. Kansou, 15 FSM Intrm. 180, 183 (Chk. 2007).

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

       A longer delay is tolerable for a complex conspiracy, than for an ordinary crime. FSM v. Kansou,

[15 FSM Intrm 181]

15 FSM Intrm. 180, 184 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

      The provisions in the FSM Constitutionís Declaration of Rights are traceable to the United States Constitutionís Bill of Rights, and when a FSM Declaration of Rights provision is patterned after a U.S. Bill of Rights provision, United States authority may be consulted to understand its meaning. The FSM speedy trial right is patterned after the United States Constitution. FSM v. Kansou, 15 FSM Intrm. 180, 185 n.1 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

     A defendant may waive his right to a speedy trial. He effects a waiver, in respect of a particular delay, when he requests it, consents to it, enters a plea of guilty, makes certain dilatory pleas or motions, or when the delay is otherwise attributable to the defendant. FSM v. Kansou, 15 FSM Intrm. 180, 185 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

       Although non-assertion of the right does not constitute waiver of the speedy trial right, a court can consider whether the right was asserted, and how vigorously, in determining the reasonableness of any delay. FSM v. Kansou, 15 FSM Intrm. 180, 185 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

       The court can disregard the delay during the 2005 discovery when the defendantís first assertion of his speedy trial right was not until he filed a motion to dismiss on that ground on November 6, 2006, since he had already waived any claim based on that right by consenting to the March 13, 2006 trial date. 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. Since 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, the defendant thus waived any speedy trial claim for the delay before the March 13, 2006 trial date when his attorney consented to that trial date. FSM v. Kansou, 15 FSM Intrm. 180, 185-86 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

       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. The movantís speedy trial right was thus suspended or waived by his successful (and justified) motion to disqualify the FSM Department of Justice. FSM v. Kansou, 15 FSM Intrm. 180, 186 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

       When a defendant raises an issue before trial which makes the original trial date impractical, the reasonable period of delay caused thereby is attributable to the defendant. FSM v. Kansou, 15 FSM Intrm. 180, 186 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

      A defendant is free to take whatever actions he feels are necessary to protect his rights prior to trial. He may not, however, use the delaying consequences of those actions as a basis for claiming that his trial was improperly delayed. FSM v. Kansou, 15 FSM Intrm. 180, 186 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

       Delay caused by a defendantís successful motion to disqualify the FSM Department of Justice is attributable to him, if not wholly, at least in large part, and delay caused by his successful motion to disqualify the judge is also attributable to him. FSM v. Kansou, 15 FSM Intrm. 180, 186 (Chk.

[15 FSM Intrm 182]

2007).

Criminal Law and Procedure ) Conspiracy; Criminal Law and Procedure ) Joinder and Severance

      Absent a strong showing of prejudice, co-conspirators are customarily tried together. This is not only for reasons of judicial and prosecutorial economy and, in the FSM, public defender economy, but also to give the factfinder a fuller picture of the scheme, as well as to decrease the chance of inconsistent verdicts and allow witnesses to avoid the burden of having to testify at successive trials. FSM v. Kansou, 15 FSM Intrm. 180, 186-87 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

      Although judicial economy considerations cannot be elevated to where they impair a defendantís constitutional rights, they are relevant. FSM v. Kansou, 15 FSM Intrm. 180, 187 n.3 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

      When co-defendants are charged together and will be tried together, any delay attributed to one co-defendant is attributed to all of them. FSM v. Kansou, 15 FSM Intrm. 180, 187 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

      Delay due to a co-defendantís unavailability is not attributed to the government, and this includes the time a co-defendant was a fugitive. FSM v. Kansou, 15 FSM Intrm. 180, 187 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

      A single speedy trial "clock" governs in cases with multiple defendants. The "clock" starts to run with the most recently added defendant and any delay attributable to any one defendant is charged against the single clock, thus making the delay applicable to all defendants. No other rule is practical. If every co-defendant had a different "clock," the advantages of a joint trial would be destroyed and multiple trials, with all their disadvantages, would have to be held in sequence. FSM v. Kansou, 15 FSM Intrm. 180, 187-88 & n.5 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

      A defendant remains free to move for a severance at any time during which his speedy trial clock has not begun to run because a codefendant has not been apprehended. FSM v. Kansou, 15 FSM Intrm. 180, 188 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

     When the movantís case has never been severed from his co-defendantís and the movant never sought a severance, the speedy trial "clock" therefore did not start to run until December 11, 2006, when the co-defendant made his initial appearance. FSM v. Kansou, 15 FSM Intrm. 180, 188 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

     Prejudice to an accused from delay may consist of: 1) oppressive pretrial incarceration; 2) the accusedís pretrial anxiety; and 3) impairment of the defense. Of these, the most serious is the last because the possibility an accusedís inability to adequately prepare his defense skews the fairness of the entire system. Pretrial anxiety is the least significant factor and, because a certain amount of pretrial anxiety naturally exists, the accused must demonstrate that he suffered extraordinary or unusual pretrial anxiety. FSM v. Kansou, 15 FSM Intrm. 180, 188 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

     A defendantís general statement that witnessesí memories may be impaired from the delay, does not show prejudice. FSM v. Kansou, 15 FSM Intrm. 180, 188 (Chk. 2007).

[15 FSM Intrm 183]

Criminal Law and Procedure ) Speedy Trial

      When delay is justified by a legitimate reason, such as complexity, a speedy trial claim will fail absent a demonstration of actual prejudice. FSM v. Kansou, 15 FSM Intrm. 180, 188 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

       Prejudice is not shown when the defendant does not state that his, or any particular one of his, witnesses now has an impaired memory or is no longer available, or what that witness would testify to if his or her memory were not impaired. FSM v. Kansou, 15 FSM Intrm. 180, 188 (Chk. 2007).

Criminal Law and Procedure ) Speedy Trial

       The failure of a prosecution witnessís memory does not support a speedy trial violation claim. FSM v. Kansou, 15 FSM Intrm. 180, 188-89 (Chk. 2007).

* * * *

COURTíS OPINION

DENNIS YAMASE, Associate Justice:

     On April 18, 2007, defendant Roosevelt D. Kansou filed his Motion to Dismiss Due to Unnecessary Delay. On April 24, 2007, the government filed its opposition. The motion is denied. The courtís reasons follow.

I.  Trial Delay

     The motion asks the court to dismiss the remaining charges against Roosevelt Kansou due to unnecessary delay in bringing him to trial on those charges. Kansou contends that the delay violates his constitutional right to a speedy trial. He also asserts that 12 F.S.M.C. 802 and Criminal Procedure Rule 48(b) authorize the court to dismiss the charges against him for unnecessary delay even if his constitutional speedy trial right has not been violated.

      Four factors ) 1)  length of delay, 2)  the reason for the delay, 3)  the defendantís assertion of his right, and 4)  prejudice to the defendant ) are balanced when analyzing the FSM Constitutionís speedy trial right and to determine speedy trial violations; and they are also used 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.  The court will also use the same four-factor balancing test to determine whether dismissal is appropriate under 12 F.S.M.C. 802 since that statutory right is embodied in Rule 48(b).

     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.  Wainit, 12 FSM Intrm. at 410. If the delay has not been so lengthy as to be presumptively prejudicial, no further analysis is needed.

      As the court [Senior Justice Richard H. Benson then presiding] stated earlier when it denied Kansouís November 6, 2006 Motion to Dismiss Due to Unnecessary Delay in Trial,

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

[15 FSM Intrm 184]

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. 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.

FSM v. Kansou, 14 FSM Intrm. 497, 499-500 (Chk. 2006).  While a longer delay is tolerable for a complex conspiracy, such as Count I in this case, than for an ordinary crime, Barker v. Wingo, 407 U.S.

[15 FSM Intrm 185]

514, 531, 92 S. Ct. 2182, 2192, 22 L. Ed. 2d 101, 117 (1972), since the court has previously determined that the delay has been lengthy, the analysis will turn to the reasons for the delay and the other two factors.

II.  Attributable Delay

      Kansou contends that the government is responsible for three primary phases of delay and that it is those delays that entitle him to a dismissal.  He cites the governmentís delay in producing discovery, which had been promised by January 31, 2005, but was not provided until some months later.  The second phase he cites as government delay is the former disqualified prosecutorís continued involvement with the prosecution, which occasioned Kansouís successful March 8, 2006 motion to disqualify the Department of Justice, and which also, in Kansouís view, resulted in Judge Bensonís later recusal from trying Kansou on Counts I and XXXII.  The third phase of delay that Kansou attributes to the government, is its expressed desire to try Kansou and Frank Cholymay together on Count I (conspiracy).

     "A defendant may waive his right to a speedy trial.  He effects a waiver, in respect of a particular delay, when he requests it, consents to it, enters a plea of guilty, makes certain dilatory pleas or motions, or when the delay is otherwise attributable to the defendant." 3 Charles E. Torcia, Whartonís Criminal Procedure ß 421, at 151-55 (12th ed. 1975) (footnotes omitted).

A.  Discovery Delay

      The court can disregard the delay during the 2005 discovery.  Kansouís first assertion of his speedy trial right was when he filed a motion to dismiss on that ground on November 6, 2006, although his counsel may have raised it orally at a status conference in the preceding month. Kansou did not assert his speedy trial right earlier and, although non-assertion of the right does not constitute waiver of the speedy trial right, see, e.g., Wehr v. State, 841 P.2d 104, 113 (Wyo. 1992) (but court can "consider whether the right was asserted, and how vigorously, in determining the reasonableness of any delay"), he had already waived any claim based on that right for any delay before the March 13, 2006 scheduled trial date.  As the court stated in ruling on Kansouís first motion to dismiss for unnecessary delay,

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.

[15 FSM Intrm 186]

FSM v. Kansou, 14 FSM Intrm. at 500.  Kansou consented to the March 13, 2006 trial date, thus waiving any speedy trial right for any discovery delay before that date.

B.  Disqualification Delay

      Kansou moved to disqualify the FSM Department of Justice just before the scheduled trial, that is, he asked that his trial be delayed.  Kansou cannot now complain that the delay after the court granted his motion to disqualify was unnecessary because, by making that motion, he asked for further delay on the ground that the delay was necessary.  His disqualification motion could only have contemplated that, rather than a March 2006 trial (as scheduled and agreed to), further delay was necessary. He cannot now complain that it was unnecessary.  It was a delay Kansou thought was necessary for reasons he thought (and the court agreed) were justified.

"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."  Wainit, 12 FSM Intrm. at 411.  Kansouís speedy trial right was thus suspended or waived by his successful (and justified) motion to disqualify the FSM Department of Justice.  "When a defendant raises an issue before trial which makes the original trial date impractical, the reasonable period of delay caused thereby is attributable to the defendant."  State v. Price, 34 P.3d 112, 116 (Mont. 2001).  A defendant is free to take whatever actions he feels are "necessary to protect his rights prior to trial.  He may not, however, use the delaying consequences of those actions as a basis for claiming that his trial was improperly delayed."  State v. Spearin, 477 A.2d 1147, 1154-55 (Me. 1984).

      Thus, the delay caused by Kansouís successful motion to disqualify the FSM Department of Justice is attributable to him, if not wholly, at least in large part.  Delay caused by Kansouís successful motion to disqualify Judge Benson is also attributable to Kansou.  See French v. State, 521 N.E.2d 346, 348 (Ind. 1988) (delay from successful motion to disqualify presiding judge entirely attributable to defendant).

C.  Co-Defendant Delay

     Kansou also contends that delay has been caused by the governmentís desire to try him together with his co-defendant, Frank Cholymay, who was not extradited from the United States until early December 2006.  Kansou, however, did not move, and has not moved, to sever his case from Cholymayís.

     Absent a strong showing of prejudice, co-conspirators are customarily tried together. United States v. Scott, 37 F.3d 1564, 1579 (10th Cir. 1994); United States v. Perkins, 926 F.2d 1271, 1280 (1st Cir. 1991); United States v. Patriarca, 402 F.2d 314, 317 n.2 (1st Cir. 1968); see also United States v. Kime, 99 F.3d 870, 880 (8th Cir. 1996) ("[p]ersons charged with a conspiracy will generally be tried together, especially where proof of the charges against each is based on the same evidence and acts"); United States v. Ramirez, 45 F.3d 1096, 1100 (7th Cir. 1995) (presumption that co-conspirators that are charged together are tried together); United States v. Cardascia, 951 F.2d 474, 482 (2d Cir. 1991) (policy favors "joinder of trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted"); United States v. Brooks, 957 F.2d

[15 FSM Intrm 187]

1138, 1145 (4th Cir. 1992) (defendants charged in the same conspiracy indictment "should ordinarily be tried together"); United States v. Drew, 894 F.2d 965, 968 (8th Cir. 1996) ("[r]arely, if ever, will it be improper for co-conspirators to be tried together"). This is not only for reasons of judicial and prosecutorial economy [and in the FSM public defender economy], but also to give the factfinder a fuller picture of the scheme, see, e.g., United States v. Taglia, 922 F.2d 413, 417 (7th Cir. 1991), as well as to decrease the chance of inconsistent verdicts and allow witnesses to avoid the burden of having to testify at successive trials. See United States v. Casamento, 887 F.2d 1141, 1151 (2d Cir. 1989) and cases cited therein.

     Kansou would have been tried together with the six other alleged co-conspirators tried in March 2006 if he had not successfully made the strong showing of prejudice that required the court to grant his disqualification motion.  Kansou should expect to be tried with the remaining alleged co-conspirator.

     Even if Kansou had not waived the delay before the March 13, 2006 trial date and even if the delay since then was not attributable to defendant Kansou, Kansouís speedy trial right still has not been violated.  This is because he has never sought to have his case severed from Cholymayís and because, when co-defendants are charged together and will be tried together, any delay attributed to one co-defendant is attributed to all of them. E.g., United States v. Patterson, 140 F.3d 767, 772 (8th Cir. 1998); United States v. Cephas, 937 F.2d 816, 822 (2d Cir. 1991) (delay caused by co-defendantís motions in a joint trial can "be attributed to all defendants without analyzing whether the delay was reasonable"), cert. denied, 502 U.S. 1037 (1992); United States v. Mayes, 917 F.2d 457, 460 (10th Cir. 1990); United States v. Piteo, 726 F.2d 50, 52 (2d Cir. 1983), cert. denied, 466 U.S. 905 (1984); United States v. Gambino, 784 F. Supp. 129, 138-39 (S.D.N.Y. 1992).

     Delay due to a co-defendantís unavailability is not attributed to the government, United States v. Tranakos, 911 F.2d 1422, 1428 (10th Cir. 1990); United States v. Richmond, 546 F.2d 1386, 1388-89 (10th Cir. 1977) (delayís principal cause was need to extradite co-defendant from Canada), cert. denied, 435 U.S. 995 (1978), and this includes the time a co-defendant was, as Cholymay was, a fugitive.  Mayes, 917 at 450 (speedy trial period never ran because a co-defendant was a fugitive); United States v. Pena, 793 F.2d 486, 488-89 (2d Cir. 1986) (fugitive co-defendants never appeared so speedy trial time never started to run until fugitive co-defendants was dropped from superseding indictment); United States v. Felton, 592 F. Supp. 172, 184 (W.D. Pa. 1984), revíd in part on other grounds, 753 F.2d 256 and 276 (3d Cir. 1985); see also United States v. Dennis, 737 F.2d 617, 620-22 (7th Cir. 1984) (delay in bringing co-defendant to trial excluded from speedy trial time); United States v. Varella, 692 F.2d 1352, 1358 (11th Cir. 1982) (speedy trial time did not start until co-defendantís arrest).

      A single speedy trial "clock" governs in cases with multiple defendants.  The "clock" starts to run with the most recently added defendant and any "delay attributable to any one defendant is charged

[15 FSM Intrm 188]

against the single clock, thus making the delay applicable to all defendants."  Pena, 793 F.2d at 489; see also Piteo, 726 F.2d at 52.  "Of course, a defendant remains free to move for a severance at any time during which his speedy trial clock has not begun to run because a codefendant has not been apprehended."  Pena, 793 F.2d at 489.

     Kansouís case has never been severed from Cholymayís.  Nor did Kansou ever seek a severance other than from the co-defendants whose trial was to start March 13, 2006.  The speedy trial "clock" therefore did not start to run until December 11, 2006, when Cholymay made his initial appearance.  Considering this caseís complexity, the time since then, especially since there has been no judge assigned to the case, cannot be considered an unnecessary delay.

     The current, undersigned presiding justice, although having conducted Cholymayís initial appearance in December 2006, see FSM Crim. R. 5(a) (defendantís initial appearance to be held before "nearest available justice"), has only been assigned to this case within the last month.  The court fully expects that the remaining counts and defendants will be tried at the same time.  A third trial on Count I, probably before yet another judge, would be wasteful of judicial, prosecutorial, and public defender resources and would risk inconsistent verdicts and would needlessly burden the witnesses.  It will be avoided unless necessary.

IV.  Prejudice from Delay

     Kansou contends that he has been prejudiced by the delay because "the recollection of witnesses is likely to be significantly impaired."  Motion at 8 (Apr. 18, 2007).  Kansou also contends that as "a prominent public figure [he] has had to deal with the stress and inconvenience of being charged with serious crimes and the associated damage to his reputation."  Id.

      Prejudice to an accused may consist of:  1)  oppressive pretrial incarceration; 2)  the accusedís pretrial anxiety; and 3)  impairment of the defense.  Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.  Of these, the most serious is the last because the possibility an accusedís inability to adequately prepare his defense "skews the fairness of the entire system."  Id.  "Pretrial anxiety Ďis the least significantí factor and because a Ďcertain amount of pretrial anxiety naturally exists,í the [accused] must demonstrate that he suffered Ďextraordinary or unusualí pretrial anxiety." Whitney v. State, 99 P.3d 457, 475 (Wyo. 2004) (quoting Campbell v. State, 999 P.2d 649, 656 (Wyo. 2000)).

      Kansou has not made any showing whatsoever of extraordinary or unusual pretrial anxiety. Kansou is also not now, nor has he ever been, incarcerated pending trial.

      Kansou does not show how his defense may be impaired, or was impaired since March 2006, other than the general statement that witnessesí memories may be impaired.  This does not show prejudice.  See United States v. Bass, 460 F.3d 830, 838 (6th Cir. 2006) (general argument that trial six years after last event was prejudicial because testifying witnessesí memories had deteriorated and others were unavailable, does not show prejudice to the defendant).  When delay is justified by a legitimate reason, such as complexity, a speedy trial claim will fail absent a demonstration of actual prejudice.  Id.  Kansou does not state that his, or any particular one of his, witnesses now has an impaired memory or is no longer available, or what that witness would testify to if his or her memory were not impaired.  And if it is the prosecutionís witnesses whose memories are impaired, Kansou does not explain how that could possibly harm his ability to adequately prepare his defense.  The failure of

[15 FSM Intrm 189]

a prosecution witnessís memory does not support a speedy trial violation claim.  Tranakos, 911 F.2d at 1429; United States v. Tercero, 640 F.2d 190, 195 (9th Cir. 1980), cert. denied, 449 U.S. 1084 (1981); United States v. Mulligan, 520 F.2d 1327, 1333 (6th Cir. 1975), cert. denied, 424 U.S. 919 (1976); United States v. Sheperd, 511 F.2d 119, 124 (5th Cir.), rehíg denied, 514 F.2d 1072 (5th Cir. 1976); United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1316 (2d Cir.), cert. denied, 417 U.S. 972 (1974); United States v. Heinlein, 490 F.2d 725, 729 n.4 (D.C. Cir. 1973).

     Kansou therefore has not shown any prejudice from the delay.

V.   Conclusion

     While the delay in getting Kansou to trial on Counts I and XXXII has been lengthy, most of that delay has been necessary and, after the scheduled March 13, 2006 trial date, also attributable to defendant Kansou.  For speedy trial and unnecessary delay purposes, Kansouís and Cholymayís situations are considered the same since they are co-defendants who have not been severed. Kansou has not shown any prejudice from the delay.  Weighing all of the factors in the four-part test, Kansou has not shown unnecessary delay attributable to the prosecution that would entitle him to a dismissal of the charges against him.

     Accordingly, Roosevelt Kansouís motion to dismiss for unnecessary delay is denied.

     Since all current counsel and the newly-assigned presiding judge now reside on Pohnpei, a telephonic status conference is hereby set for July 12, 2007, at 11:00 a.m. (Pohnpei time), at the FSM Supreme Court, Palikir, Pohnpei, for the purpose of setting a trial date in September or October 2007.  The status conference shall be recorded telephonically in Chuuk where any party or interested member of the public may listen to the proceeding as it occurs.

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Footnotes:

1.  The provisions in the FSM Constitutionís Declaration of Rights are traceable to the United States Constitutionís Bill of Rights, Engichy v. FSM, 1 FSM Intrm. 532, 541 (App. 1984), and when a FSM Declaration of Rights provision is patterned after a U.S. Bill of Rights provision, United States authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000). The FSM speedy trial right is patterned after the United States Constitution.

2.  This is true even though the court order granting it was later modified to permit any FSM Department of Justice attorney(s) to prosecute Kansou if that attorney had been hired after February 2006 and had not discussed the caseís merits with previous prosecutors (including by exchange of e-mails). Kansou, 14 FSM Intrm. at 279.

3.  Although judicial economy considerations cannot be elevated to where they impair a defendantís constitutional rights, they are relevant. United States v. Pepe, 747 F.2d 632, 651 n.21 (11th Cir. 1984).

4.  This reasoning is based on U.S. statutes enforcing the U.S. constitutional speedy trial right. Since the U.S. statutory right is more stringent, and more favorable to defendants, than the U.S. (or FSM) constitutional speedy trial right, the reasoning may be used as a guide to both the FSM constitutional speedy trial right and an accusedís rights under 12 F.S.M.C. 802 and Criminal Rule 48(b).

5.  No other rule is practical. If every co-defendant had a different "clock," the advantages of a joint trial would be destroyed and multiple trials, with all their disadvantages, would have to be held in sequence.

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