FSM SUPREME COURT APPELLATE DIVISION

Cite as Engichy v. FSM, 15 FSM Intrm. 546 (App. 2008)

[15 FSM Intrm. 546]

JOHN ENGICHY a/k/a AISER JOHN ENGICHY,

JOHN PETEWON, JAMES FRITZ, FRANK DARRA,

and ROSEMARY ENGICHY a/k/a ROSEMARY NAKAYAMA,

Appellants,

vs.

FEDERATED STATES OF MICRONESIA,

Appellee.

APPEAL CASE NO. C3-2006

OPINION

Argued:  December 10, 2007

Decided:  March 25, 2008

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Cyprian J. Manmaw, Temporary Justice, FSM Supreme Court*

Hon. Aliksa B. Aliksa, Temporary Justice, FSM Supreme Court**

*Chief Justice, State Court of Yap, Colonia, Yap

**Chief Justice, Kosrae State Court, Tofol, Kosrae
 

APPEARANCES:

For the Appellants:   Harry A. Seymour, Esq.

 (J. & R. Engichy)     Office of the Public Defender

                                 P.O. Box 245

                                 Tofol, Kosrae FM 96944
 

For the Appellant:    Johnny Meippen, Esq.

  (Petewon)              P.O. Box 705

                                Weno, Chuuk FM 96942
 

For the Appellant:   Ready E. Johnny, Esq. (brief only)

    (Fritz)                  Office of the Public Defender

                                P.O. Box 754

                                Weno, Chuuk FM 96941
 

* * * *

[15 FSM Intrm 547]

HEADNOTES

Appellate Review ) Briefs, Record and Oral Argument

      The court may grant co-appellantsí motions to consider their two briefs as supplemental to each other. Engichy v. FSM, 15 FSM Intrm. 546, 551 (App. 2008).

Appellate Review ) Briefs, Record and Oral Argument

      When an appellant has filed his brief properly he need not ask to incorporate his brief as his oral argument due to his absence from oral argument because all properly filed appellate briefs are considered regardless of participation in oral argument. Engichy v. FSM, 15 FSM Intrm. 546, 551 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases

      All issues of law are reviewed de novo on appeal. Engichy v. FSM, 15 FSM Intrm. 546, 552 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases

      In the appeal of a criminal matter, when considering challenges of insufficient evidence to justify the trial courtís findings, an appellate tribunal is obligated to review the evidence in the light most favorable to the trial courtís factual determinations and this standard of review extends to inferences drawn from the evidence as well. The standard of review is not whether the appellate court is convinced beyond a reasonable doubt but whether the court can conclude that the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. The appellate court need not conclude that the evidence is inconsistent with every hypothesis of innocence in order to affirm the conviction. Engichy v. FSM, 15 FSM Intrm. 546, 552 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases

      The standard of review of a trial courtís factual findings is whether those findings are clearly erroneous. The appeals court cannot substitute its judgment for that of the trial judge, and because findings of fact must not be set aside unless clearly erroneous, an appellate court starts its review of a trial courtís factual findings by presuming the findings are correct. The appellantís burden to clearly demonstrate error in the trial courtís findings is especially strong when the findings are based upon oral testimony because, before reaching its conclusions as to the witnessesí credibility, the trial court had the opportunity to view the witnessesí demeanor as they testified, while the reviewing court has not. Engichy v. FSM, 15 FSM Intrm. 546, 552 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases

      An appellate court cannot say that a trial courtís finding was clearly erroneous when it was the result of weighing conflicting evidence because an appellate court will not reweigh the evidence presented at trial, and since credibility determinations are uniquely the province of the factfinder, not the appellate court. Engichy v. FSM, 15 FSM Intrm. 546, 552 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases

      An appellate court should not overrule or set aside a trial courtís finding of fact when there is credible evidence in the record to support that finding. The trial courtís findings will be upheld so long as they rationally reflect evidence which is reasonable and combines with other evidence to present a coherent, believable, overall picture. The exercise of the trial courtís discretion should not be disturbed by an appellate court absent a showing that the trial courtís action has unfairly resulted in substantial hardship and prejudice to a party. Engichy v. FSM, 15 FSM Intrm. 546, 552 (App. 2008).

[15 FSM Intrm 548]

Criminal Law and Procedure ) Conspiracy

      When co-conspirators had the opportunity to cease furthering the conspiracy by not submitting the accounts receivable for collection, as those debts were illegally incurred, but handed over those accounts to another with the understanding that the other was going to attempt collection from the government equates to an overt act done to further the goal of the conspiracy, namely the improper obligation and expenditure of national government funds. Engichy v. FSM, 15 FSM Intrm. 546, 554 (App. 2008).

Criminal Law and Procedure ) Conspiracy

      A letter can be an overt act because requesting the government to approve and pay a balance due that included charges involved in a conspiracy was an attempt to further the conspiracy, even though the co-conspirator was making the request in his official capacity as allottee. Engichy v. FSM, 15 FSM Intrm. 546, 554 (App. 2008).

Criminal Law and Procedure ) Conspiracy; Criminal Law and Procedure ) Statutes of Limitation

      When two independent actions were both overt acts committed by a member, or members, of the conspiracy within the three years preceding the informationís filing, the government filed its information within the applicable statute of limitations. Engichy v. FSM, 15 FSM Intrm. 546, 554 (App. 2008).

Criminal Law and Procedure ) Information ) Amendment

      Since the court may permit an information to be amended at any time before finding if no additional or different offense is charged and if the defendantís substantial rights are not prejudiced, when, before the trial courtís finding, the information was amended to add violation of section 548 of the 1980 criminal code to violation of section 529 of the 2001 criminal code; when the two sections are identical in all but in two inconsequential ways (in 2001 violation of the statute is changed from being an "offense" to being a "crime" and the feminine pronoun "she" is added to indicate that a man or woman can violate the statute); and when the elements of violating the two statutes and their respective penalty provisions are identical, no additional or different offense was charged by adding Section 548 to the information. Engichy v. FSM, 15 FSM Intrm. 546, 555 (App. 2008).

Criminal Law and Procedure ) Information ) Amendment

      When, because the two statutes are substantively identical, the appellants were not prejudiced in any way; when the appellants conceded there was nothing different that they would have done to prepare a defense for Section 548 as opposed to Section 529 and when the trial court explicitly gave the opportunity for the appellants to counter any perceived prejudice, amendment of the information to include both sections was proper. Engichy v. FSM, 15 FSM Intrm. 546, 555 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases

      When a party at trial claims surprise, and the judge offers that party a chance to cure any prejudice and the party makes the tactical choice to decline the opportunity, it is a tactical choice the party must live with and is not a basis for reversal. Engichy v. FSM, 15 FSM Intrm. 546, 555 (App. 2008).

Constitutional Law ) Ex Post Facto Laws

      An ex post facto decision is one that imposes punishment for past conduct, lawful at the time it was engaged in. The concept of ex post facto laws is limited to the following: 1)  making criminal and punishable an act innocent when done; 2)  aggravating a crime, or making it greater than it was when committed; 3)  increasing the punishment for a crime and applying the increase to crimes committed before the enactment of the laws; or 4)  altering the legal rules of evidence so that testimony insufficient to convict for the offense when committed would be sufficient as to that particular offense

[15 FSM Intrm 549]

and accused person. Engichy v. FSM, 15 FSM Intrm. 546, 555 (App. 2008).

Constitutional Law ) Ex Post Facto Laws

      There was no ex post facto violation in the appellantsí conviction for conspiring to violate Section 529 (2001) when the conduct underlying violation of Section 529 was unlawful as of 1982 under the substantively identical Section 548 which was made law then, the appellants cannot maintain that their conduct in the late 1990ís underlying the Section 529 conspiracy charge was lawful when they engaged in it; when, since Section 529ís punishment provisions are identical to those of Section 548, conviction under Section 529 does not aggravate the crime to make it greater than it was when committed and does not increase the punishment; and when, since the statutes are substantively identical, the same evidence would be sufficient for conviction under both. Engichy v. FSM, 15 FSM Intrm. 546, 555 (App. 2008).

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

      The trial court used a co-defendantís pre-trial, out-of-court affidavit only against the declarant since the judgeís discourses with the prosecutor stated that it was only being offered or used against the declarant and the trial courtís made specific findings with regard to the affidavit that only concerned the declarant co-defendant and since the courtís special findings delineated other pieces of evidence, independent of that affidavit, that supported the other defendantsí participation in the conspiracy. Engichy v. FSM, 15 FSM Intrm. 546, 556-57 (App. 2008).

Criminal Law and Procedure ) Joinder and Severance; Evidence

      The best practice for a trial court finding itself in the situation where a non-testifying defendantís out-of-court statement will be introduced into evidence in a joint or multi-defendant trial, is to make an early, clear and uniform record identifying those defendants against whom the out-of-court statement will and will not be used. A trial court is not generally prohibited from admitting the statement. Engichy v. FSM, 15 FSM Intrm. 546, 557 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases; Evidence

      When the record was uniform in signifying that the trial court did not consider one co-defendantís affidavit against the other defendants and when the trial court, in its special findings made at the trialís conclusion identified the other pieces of admitted evidence that it relied upon and that exist independent of the one co-defendantís affidavit; when a review of this specifically relied upon evidence, in addition to the complete record on appeal, presents a sufficient evidentiary basis to support the other defendantsí participation in the conspiracy wholly independent of and detached from the one co-defendantís affidavit, the appellate court will conclude that the trial court was successful in excluding the one co-defendantís affidavit as evidence against the other defendants. Engichy v. FSM, 15 FSM Intrm. 546, 557 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases; Evidence

      When the trial court asked the government to redact the other defendantsí names from one co-defendantís affidavit but no redacted version offered into evidence, and when a physical redaction under these circumstances would have been superfluous, merely replicating the mental exercise of compartmentalizing already successfully undertaken by the trial court, if the trial court proceeded with the trial despite the governmentís failure to provide a redacted copy of the statement, that choice was within the trial courtís discretion and did not unfairly result in substantial hardship or prejudice to any party and thus was not reversible error. Engichy v. FSM, 15 FSM Intrm. 546, 557-58 (App. 2008).

Criminal Law and Procedure ) National Crimes

      When a "national offense" is defined as including any offense "which is otherwise an offense

[15 FSM Intrm 550]

against the Federated States of Micronesia" and the underlying offenses involve improper obligation and expenditure of FSM funds and tampering with FSM official documents and information, it is difficult to see how these offenses could not be considered offenses against the FSM and an argument that they are not will be rejected. Engichy v. FSM, 15 FSM Intrm. 546, 558 (App. 2008).

Criminal Law and Procedure ) Conspiracy

      The conspiracy statute does not explicitly require the underlying offense to be a crime. Engichy v. FSM, 15 FSM Intrm. 546, 558 (App. 2008).

Criminal Law and Procedure ) Conspiracy

      A person commits the offense of conspiracy, if, with intent to promote or facilitate the commission of a national offense, he agrees with one or more persons that they, or one or more of them will engage in or solicit the conduct or will cause or solicit the result specified by the offenseís definition; and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy. Engichy v. FSM, 15 FSM Intrm. 546, 558 (App. 2008).

Criminal Law and Procedure ) Conspiracy

      The agreement in a conspiracy does not have to be explicit. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement. It is not necessary to prove the specific terms or the specific scope of the conspiratorial agreement or to prove that the conspiracyís substantive object was accomplished. The existence of, and participation in, a criminal conspiracy may be proved by circumstantial as well as by direct evidence, if it affords a reasonable inference as to the ultimate facts sought to be proved. Engichy v. FSM, 15 FSM Intrm. 546, 558 (App. 2008).

Criminal Law and Procedure ) Conspiracy

      The trial court is allowed great discretion in the reception of circumstantial evidence, for a conspiracy must be proved by a number of indefinite acts, conditions, and circumstances varying with the purpose to be accomplished. When it is shown that the defendants by their acts pursued the same object, one performing one part and the other performing another part so as to complete it or with a view to its attainment, the trier of fact will be justified in concluding that they were engaged in a conspiracy to effect that object. Most conspiracy convictions are based on circumstantial evidence. Engichy v. FSM, 15 FSM Intrm. 546, 558 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases; Criminal Law and Procedure ) Conspiracy

      While appellate panels must always show deference to the inferences and conclusions drawn by a trial judge from evidence, this deference seems even greater in the context of a conspiracy trial, in which the trial judge is likely looking for the proverbial "wink and nod" that often ties a conspiracy together. It is with such considerable deference that an appellate court reviews the evidence explicitly relied upon by the trial court in reaching its guilty verdict. Engichy v. FSM, 15 FSM Intrm. 546, 558-59 (App. 2008).

Criminal Law and Procedure ) Standard of Proof

      Conflicting testimony may be admitted, and it is the responsibility of the finder of fact to weigh all the answers and resolve the conflict, and it is well established that the weighing of contradictory evidence is strictly within the trial courtís discretion. Engichy v. FSM, 15 FSM Intrm. 546, 559 (App. 2008).

Appellate Review ) Standard of Review ) Criminal Cases

      When credible evidence in the record supports the trial courtís findings and presents a coherent, believable, overall picture and when, after reviewing the entire record on appeal in the light most

[15 FSM Intrm 551]

favorable to the trial courtís factual determinations and inferences, the appellate court finds there is sufficient evidence to support the trial courtís findings of guilt beyond a reasonable doubt, the appellantsí convictions will be affirmed. Engichy v. FSM, 15 FSM Intrm. 546, 559 (App. 2008).

* * * *

COURTíS OPINION

MARTIN YINUG, Associate Justice:

      Trial was held in this criminal matter in Chuuk from March 13, 2006 to April 8, 2006. On June 30, 2006, the trial court entered judgment against John Engichy, James Fritz, John Petewon and Frank Darra, convicting all of criminal conspiracy, 11 F.S.M.C. 203, to violate 55 F.S.M.C. 221(2), 221(3) and 11 F.S.M.C. 529. On February 6, 2007, the trial court entered judgment against Rosemary Engichy, convicting her of criminal conspiracy, 11 F.S.M.C. 203, to violate 55 F.S.M.C. 221(2), 221(3) and 11 F.S.M.C. 529. All defendants appealed their convictions to this Court and oral argument was held on December 10,2007. For the reasons set forth below, we affirm the convictions.

      Two preliminary housekeeping matters need to be addressed. First, the Engichys and Petewon have moved this Court to consider their two briefs as supplemental to each other, and this request is granted. Second, Fritz has moved this Court to incorporate his brief as his oral argument due to his absence from oral argument. Fritz need not request such relief as all properly filed appellate briefs are considered regardless of participation in oral argument and Fritz filed his brief properly.

I.  Introduction

      The conspiracy operated in the following general manner. The Engichysí businesses, Island Imports and Merry Sand Mining, would provide goods, materials and services to customers on credit to the Faichuk Development Authority (FDA) and to the Northern Namoneas Development Authority (NNDA), government bodies created to facilitate development projects in Chuuk. These credit purchases would be authorized by Senator John Petewon for the FDA and by Senator Roosevelt Kansou for the NNDA, and would subsequently be paid from future congressional allotments of national government funds. As allottee for the FDA, Fritz would solicit local vendors to release goods, materials and services while ensuring subsequent payment from national government funds allotted in the future. Darra, the FSM Finance representative in Chuuk would process the payments for the credit purchases representing goods, materials and services that had already been provided. Once funding became available and allotments made, fraudulent purchase requisitions would be created and processed through FSM Finance for payment and those payments would then be used to pay the credit accounts of FDA and NNDA being held by the Engichysí businesses.

      After a lengthy trial, all defendants were convicted of conspiracy, 11 F.S.M.C. 203, to obligate national government funds in advance of availability and for purposes other than those for which an allotment has been made, 55 F.S.M.C. 221(2) & (3), as well as conspiracy to tamper with public records or information, 11 F.S.M.C. 529.

II.  Issues on Appeal

      The Appellants collectively raise the following issues on appeal:

(1)  Did the government file its Information within the applicable statute of limitations?

[15 FSM Intrm 552]

(2)  Did the trial court commit reversible error in suggesting and allowing the government to amend its Information from alleging conspiracy to violate 11 F.S.M.C. 529 (2001) to alleging conspiracy to violate 11 F.S.M.C. 548 (1982)?

(3)  Did the trial court commit reversible error in admitting Exhibit 400, the affidavit of Frank Darra?

(4)  Do violations of the statutes underlying the conspiracy charge constitute national offenses as contemplated by the conspiracy statute?

(5)  Is there sufficient evidence to support the trial courtís findings of guilt beyond a reasonable doubt?

III.  Standard of Review

      All issues of law are reviewed de novo on appeal. Nanpei v. Kihara, 7 FSM Intrm. 319, 323-24 (App. 1995).

      In considering challenges of insufficient evidence to justify the trial courtís findings, an appellate tribunal is obligated to review the evidence in the light most favorable to the trial courtís factual determinations and this standard of review extends to inferences drawn from the evidence as well. The standard of review is not whether the appellate court is convinced beyond a reasonable doubt but whether the court can conclude that the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. Engichy v. FSM, 1 FSM Intrm. 532, 545-46 (App. 1984). In the appeal of a criminal matter, the appellate court need not conclude that the evidence is inconsistent with every hypothesis of innocence in order to affirm the conviction. Jonah v. FSM. 5 FSM Intrm. 308, 310-11 (App. 1992).

      The standard of review of a trial courtís factual findings is whether those findings are clearly erroneous and the appeals court cannot substitute its judgment for that of the trial judge. Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 59 (App. 1993). Because findings of fact shall not be set aside unless clearly erroneous, an appellate court starts its review of a trial courtís factual findings by presuming the findings are correct. The appellantís burden to clearly demonstrate error in the trial courtís findings is especially strong when the findings are based upon oral testimony because, before reaching its conclusions as to the witnessesí credibility, the trial court had the opportunity to view the witnessesí demeanor as they testified, while the reviewing court has not. Cheni v. Ngusun, 6 FSM Intrm. 544, 546 (Chk. S. Ct. App. 1994).

      An appellate court cannot say that the trial courtís finding was clearly erroneous when it was the result of weighing conflicting evidence. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 464 (App. 2000). An appellate court will not reweigh the evidence presented at trial. Credibility determinations are uniquely the province of the fact finder, not the appellate court. Johnny v. FSM, 8 FSM Intrm. 203, 207 (App. 1997).

      An appellate court should not overrule or set aside a trial courtís finding of fact where there is credible evidence in the record to support that finding. The trial courtís findings will be upheld so long as they rationally reflect evidence which is reasonable and combines with other evidence to present a coherent, believable, overall picture. The exercise of the trial courtís discretion should not be disturbed by an appellate court absent a showing that the trial courtís action has unfairly resulted in substantial hardship and prejudice to a party. Engichy, 1 FSM Intrm. at 556-58.

[15 FSM Intrm 553]

IV.  Discussion

A. Issue (1):  Statute of Limitations

      Appellants argue that the applicable statute of limitations had expired on the conspiracy charge when the Information was filed on November 11, 2003.

      This issue was initially adjudicated prior to trial in a bench order dated March 4, 2006. Appellants moved the trial court to dismiss the conspiracy count because none of the overt acts occurred within the applicable three-year statute of limitations. The trial court denied the motion and ruled, in pertinent part:

"Conspiracy is regarded as a continuing offense, hence, the statutory period of limitation therefor begins to run from the time of the last provable overt act in furtherance of the conspiracy." 1 Charles E. Torchia, Whartonís Criminal Law ß 91, at 419 (14th ed. 1978). The information alleges that the conspiracy is continuing to present. Prosecution of the conspiracy count is therefore not time-barred based on the informationís allegations. It may be time-barred only if the prosecution does not prove at trial an overt act within the applicable limitations period.

The information alleges overt acts within the statutory period. Conspiracy is punishable "by imprisonment for not more than one_half the maximum sentence which is provided for the most serious offense which was the object of the . . . conspiracy if the maximum is less than life imprisonment." 11 F.S.M.C. 204(2). The most serious offense charged as an object of the conspiracy carries a maximum of twenty yearsí imprisonment. 55 F.S.M.C. 223 (20 years for violation of 55 F.S.M.C. 221 or 222). The Count I conspiracy charge thus has a maximum sentence of ten years and therefore a limitations period of three years. 11 F.S.M.C. 105(2)(b). The information, however, alleges continuing overt acts until its November 11, 2003 filing.

FSM v. Kansou, 14 FSM Intrm. 132, 134-35 (Chk. 2006).

      The trial court denied the statute of limitations defense because the government alleged overt acts within the applicable statute of limitations and therefore must be given the opportunity to prove that at least one overt act did occur within the applicable statute of limitations, namely any time after November 10, 2000.

      In November 2001, John Engichy hired accountant Virginia Galang to compile a list of accounts receivable for the Engichysí businesses. This list of accounts receivable was completed on February 28, 2002, and was prepared for a collection action brought against the Engichys by Albatross, whose counsel was Craig Reffner. This list of accounts receivable was admitted into evidence in the present matter along with supporting documentation provided by the Engichys to Galang and Reffner. Virginia Galang testified at trial about compiling this document and testified that John Engichy asked her to compile the document "to support receivables we have from NNDA." Furthermore, Galang testified that Albatross and Reffner were offering to help collect money from NNDA on behalf of the Engichys so that the Engichys could use that money to pay Albatross. Tr. at 130 (vol. II). Craig Reffner also testified that as part of the judgment entered against the Engichys in favor of Albatross, the Engichys assigned to Albatross their rights to collect on their accounts receivable owed by NNDA and FDA. Furthermore, Reffner testified that he met with the Engichys several times regarding the basis of the debt owed to the Engichys by NNDA and FDA and at these meetings the Engichys would hand him documentation purported to substantiate the accounts receivable from NNDA and FDA.

[15 FSM Intrm 554]

      In 2002, the Engichys represented to Albatross, its counsel and the trial division of this court that NNDA and FDA owed them for goods and services, and these same debts were subsequently proven to be connected with the conspiracy during the trial of the present matter. The circumstances under which these representations were made are irrelevant and we reject the Engichysí argument that they were forced by court order to proffer their accounts receivable from NNDA and FDA. The Engichys voluntarily chose to submit the accounts receivable from NNDA and FDA as legitimate debts owed to them and nothing in the record supports the idea that they were forced to submit these particular accounts to the court and Albatross for collection. The Engichys had the opportunity to cease furthering the conspiracy by not submitting the accounts receivable from NNDA and FDA to the court and Albatross for collection, as those debts were illegally incurred. Handing over these accounts to Albatross with the understanding that Albatross was going to attempt collection from the government equates to an overt act done to further the goal of the conspiracy, namely the improper obligation and expenditure of national government funds.

      Additionally, Appellants highlight Exhibit 48, an April 24, 2002 letter from Fritz to the FSM Budget Office, which in part submitted for review "Balance Due Local Vendors." Appellants argue that this letter cannot be considered an overt act because it was submitted by Fritz as part of his duties as allottee. We reject this argument. Requesting the government to approve and pay a balance due that included charges involved in the conspiracy was an attempt to further the conspiracy, despite Fritz making the request in his official capacity as allottee.

      These two independent actions are both overt acts committed by a member, or members, of the conspiracy within the three years preceding the filing of the Information. Accordingly, the government filed its Information within the applicable statute of limitations.

B. Issue (2):  Amendment of Information

      Appellants argue that it was reversible error for the trial court to suggest and allow the government to amend its Information from alleging conspiracy to violate 11 F.S.M.C. 529 (2001) to alleging conspiracy to violate 11 F.S.M.C. 548 (1982). Also, Appellants maintain that conviction of conspiracy to violate Section 529 is an ex post facto violation.

      Despite the arguments of counsel, the trial courtís order and specific findings on this issue show that the Information was amended to add Section 548: Section 529 remained in the Information at all times and ultimately both Sections were included in the Information when the defendants began presenting their case-in-chief.

      The trial court ultimately convicted the Appellants of conspiring to violate Section 529. There are three layers to this issue: (1) did the trial court improperly suggest to the prosecution to seek amendment of the Information?; (2)  was the amendment improper?; and (3)  is conviction under Section 529 an ex post facto violation?

      The trial court did not suggest the amendment. Defense counsel raised this issue in its motion for acquittal following the governmentís case-in-chief, asserting the ex post facto violation with Section 529. In its rebuttal to the motion, the government did not directly address the issue, at least not to the trial courtís satisfaction. Accordingly, the trial court asked the governmentís counsel to clarify its position on the issue, and the ensuing discourse between the governmentís counsel and the trial court did include the trial court at one point asking if the government was seeking to amend the Information. The trial court at no point instructed or recommended that the government seek the amendment and the interchange represents the trial court attempting to ascertain the partiesí respective positions on the issue.

[15 FSM Intrm 555]

      In its specific findings on the amendment issue, the trial court found that the two provisions were substantially identical and that fair notice was given of the periods of time alleged to be involved in the conspiracy. Furthermore, the trial court went so far as to offer any defendant the right to examine additional witnesses and present additional evidence if they felt prejudiced by the amendment.

      FSM Crim. R. 7(e) reads: "Amendment. The court may permit an information to be amended at any time before finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." The amendment was made before the trial courtís finding. Furthermore, Sections 529 and 548 are identical in all but in two inconsequential ways. First, Section 529 changes the violation of the statute from being an "offense" to being a "crime." The conspiracy statute used in this case only requires the underlying violation to be an offense, not a crime, making that discrepancy irrelevant. Secondly, Section 529 adds the feminine pronoun "she" to indicate that a man or woman can violate the statute. The addition of "she" has no impact on the substance of the statute. The elements of violating the two statutes and their respective penalty provisions are identical, meaning that no additional or different offense was charged by adding Section 548 to the Information. Finally, because the two statutes are substantively identical, the Appellants were not prejudiced in any way. As was demonstrated at oral argument when they were confronted with this question, there is nothing different that the Appellants would have done to prepare a defense for Section 548 as opposed to Section 529. Furthermore, the trial court explicitly gave the opportunity for the Appellants to counter any perceived prejudice. Where a party at trial claims surprise, and the judge offers that party a chance to cure any prejudice and the party makes the tactical choice to decline the opportunity, it is a tactical choice the party must live with and is not a basis for reversal. Nakamura v. Bank of Guam (I), 6 FSM Intrm. 345, 351-52 (App. 1994). The amendment was proper.

      There is no ex post facto violation. An ex post facto decision is one that imposes punishment for past conduct, lawful at the time it was engaged in. See Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260, 266-67 (Chk. S. Ct. Tr. 1993). The concept of ex post facto laws is limited to the following: 1) making criminal and punishable an act innocent when done; 2) aggravating a crime, or making it greater than it was when committed; 3) increasing the punishment for a crime and applying the increase to crimes committed before the enactment of the laws; or 4) altering the legal rules of evidence so that testimony insufficient to convict for the offense when committed would be sufficient as to that particular offense and accused person. See Robert v. Mori, 6 FSM Intrm. 394, 400 (App. 1994).

      The conduct underlying violation of Section 529 was unlawful as of 1982, when the substantively identical Section 548 was made law. Accordingly, the Appellants cannot maintain that their conduct in the late 1990's underlying the Section 529 conspiracy charge was lawful when they engaged in it. Furthermore, the punishment provisions of Section 529 are identical to those of Section 548, so conviction under Section 529 does not aggravate the crime to make it greater than it was when committed and does not increase the punishment. Finally, because the statutes are substantively identical, the same evidence would be sufficient for conviction under both.

      The trial courtís amendment to add Section 548 to the Information was proper and there was no ex post facto violation in Appellantsí conviction for conspiring to violate Section 529.

C. Issue (3):  Frank Darraís Affidavit

      Exhibit 400 is Darraís sworn pre-trial affidavit and Appellants argue that its entry into evidence was improper because they did not have the opportunity to cross-examine Darra as he refused to testify, thereby violating their right to confront witnesses.

[15 FSM Intrm 556]

      At a pre-trial suppression hearing on March 10, 2006, the trial court found that Darra voluntarily signed away his rights to counsel and to remain silent and therefore he saw no reason to suppress the affidavit against Darra. In their brief, the Engichys assert that "[b]y pre-trial motion, the court ordered that the statement be used only against the declarant and that references to Mr. Engichy be redacted. However, the evidence was admitted at trial with no redaction of Mr. Engichyís name on it." Upon review of the order issued by the trial court on March 13, 2006, there is nothing addressing use of the statement against co-defendants or redaction. While there is nothing before us for review showing that the trial court did explicitly state whether or not Darraís statement was being used against other defendants, a review of the trial transcript reveals that the trial court used Darraís statement only against Darra. The following discourse between the trial court and the governmentís counsel took place when the government moved to have Darraís statement admitted into evidence:

MR. PETERSON:  I ask that the document be received into evidence.

COURT:  Very well. Pass it to Mr. Sapelalut. This is admitted. Itís only applicable to Mr. Darra, is that correct?

MR. PETERSON:  Thatís correct.

COURT:  Very well.

      Tr. at 212 (vol. III). Furthermore, during the governmentís closing argument, there was another discourse between the trial court and the governmentís counsel regarding the import of Darraís statement:

COURT:  Excuse me. Excuse me. Youíre just talking concerning his own)Youíre talking about his statement? Mr. Darraís?

MR. PETERSON:  Well, Mr. Darraís statement. Yes.

COURT:  And what can I use that for as far as the conspiracy is concerned.

MR. PETERSON:  I think: it can be used with respect to Mr. Darraís involvement in the conspiracy. I think thatís)I think it surely can be. It cannot be used against the other defendants. Iím not arguing that it should. Iím just saying that, but it certainly )

COURT:  I didnít think you were.

      Tr. at 3060-61 (vol. XXX). Finally, in his special findings made from the bench after announcing the guilty verdicts, the trial court makes the following specific findings with regard to Darraís statement:

Frank Darraís individual role is revealed in his statement to the prosecution. His statement includes that he knew the materials on purchase orders were already released in most cases coming before him for certification. And that, in some instances, the advice of allotment had not been issued before the materials were released. He knew that release before availability of funds was contrary to the requirements of the law.

      Tr. at 3069 (vol. XXX) [emphasis added]. Furthermore, the special findings delineate other pieces of evidence, independent of Darraís affidavit, supporting the other defendantsí participation in the conspiracy.

[15 FSM Intrm 557]

      This issue was addressed by the Appellate Division in the cases of Hartman v. FSM, 5 FSM Intrm. 224 (App. 1991) and Hartman v. FSM, 6 FSM Intrm. 293 (App. 1993). These cases involved the joint trial of three co-defendants for sexual assault, two of whom did not testify at trial but made admissions to the police that were admitted into evidence. The appellate division remanded the proceedings to the trial court for additional findings on whether the out-of-court statements of the non-testifying defendants were used to establish the guilt of any defendant other than the defendant making the statement. On remand, the trial court confirmed that it did not consider the out-of-court statements against any defendant other than the one making the statement. FSM v. Hartman, 5 FSM Intrm. 350, 353 (Pon. 1992). Upon further review, the appellate division found that the trial courtís statements during a pretrial proceeding contradicted its later assurance on remand that the out-of-court statements were not considered against the other defendants:

    These statements are not consistent with the use of confessions only to inculpate the one making the statement; and read in conjunction with the courtís original findings, cause us continued concern. . . .

. . . .

     We do not question the trial court's knowing the proper use of the statements or that he intended and tried to exclude the statement where improper as evidence against a codefendant. But his words cause us to believe that he was not entirely successful.

6 FSM Intrm. at 302-03. For these reasons, the appellate division reversed the underlying convictions.

       The Hartman court was ultimately hung up on specific inconsistencies between the trial courtís findings on remand versus the trial courtís findings in a pretrial matter, and its holding demonstrates the limits of a trial courtís discretion in choosing how to conduct its trial. Indeed, the best practice for a trial court finding itself in this situation is to make an early, clear and uniform record identifying those defendants against whom the out-of-court statement will and will not be used. However, because it turns on unique factual circumstances, the Hartman decision does not generally prohibit a trial court from admitting a non-testifying defendantís out-of-court statement into evidence in a joint or multi-defendant trial.

      In the present matter, there is no troubling language or contradiction of positions by the trial court as there was in Hartman. The record in the present matter is uniform in signifying that the trial court did not consider Darraís affidavit against the other defendants. Furthermore, in its special findings made at the conclusion of trial in the present matter, the trial court identifies the other pieces of admitted evidence that it relied upon and that exist independent of Darraís affidavit. The trial court identified the 2002 listing of accounts receivable made by the Engichys in the Albatross case, copies of checks by the FSM to the Engichysí businesses along with supporting documentation, invoices issued by the Engichysí businesses and charged to the development authority, purchase requisitions reflecting amounts payable to the Engichys, and the testimony and pre-trial statement of Doris Killion. Review of this specifically relied upon evidence, in addition to the complete record on appeal, presents a sufficient evidentiary basis to support the other defendantsí participation in the conspiracy wholly independent of and detached from Darraís affidavit. Like the Hartman court, we do not question the trial courtís knowing the proper use of Darraís statement. Unlike in Hartman, we find that the trial court in the present matter was successful in excluding Darraís affidavit as evidence against the other defendants.

     In the present matter, the trial court did request the government to redact the names of the other defendants from Darraís affidavit. Appellants claim that ultimately there was no redacted version

[15 FSM Intrm 558]

offered into evidence. Regardless, a physical redaction under these circumstances would be superfluous, merely replicating the mental exercise of compartmentalizing already successfully undertaken by the trial court as discussed above. Accordingly, if the trial court proceeded with the trial despite the governmentís failure to provide a redacted copy of Darraís statement, that choice was within the trial courtís discretion and did not unfairly result in substantial hardship or prejudice to any party and therefore was not reversible error. Engichy, 1 FSM Intrm. at 556-58.

      We find that the trial court did not abuse its discretion in admitting Darraís statement and no reversible error was made in this regard.

D. Issue (4):  National Offense Underlying Conspiracy

      Appellants argue that the crimes underlying the conspiracy charge are not national offenses as contemplated by 11 F.S.M.C. 203 (1982). 11 F.S.M.C. 104(7)(1982) defines a "National offense" as including any offense "which is otherwise an offense against the Federated States of Micronesia." The underlying offenses in the present matter involve improper obligation and expenditure of FSM funds and tampering with FSM official documents and information. It is difficult to see how these offenses could not be considered offenses against the FSM and we reject the Appellantsí argument in this regard.

      Furthermore, the Appellants argue that violation of 55 F.S.M.C. 221 is not a crime. 55 F.S.M.C. 223 provides for criminal penalties for violation of 55 F.S.M.C. 221. Regardless, the 1982 version of the conspiracy statute does not explicitly require the underlying offense to be a crime. The government charged the Appellants under the 1982 version of the statute in the Information and, therefore, the question of whether violation of Section 221 is criminal is irrelevant.

E. Issue (5):  Sufficiency of Evidence to Support Convictions

      A person commits the offense of conspiracy, if, with intent to promote or facilitate the commission of a national offense, he agrees with one or more persons that they, or one or more of them will engage in or solicit the conduct or will cause or solicit the result specified by the definition of the offense; and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy. The agreement in a conspiracy does not have to be explicit. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement. It is not necessary to prove the specific terms or the specific scope of the conspiratorial agreement or to prove that the conspiracyís substantive object was accomplished. The existence of, and participation in, a criminal conspiracy may be proved by circumstantial as well as by direct evidence, if it affords a reasonable inference as to the ultimate facts sought to be proved. FSM v. Este, 12 FSM Intrm. 476, 483 (Chk. 2004).

      The trial court is allowed great discretion in the reception of circumstantial evidence, for a conspiracy must be proved by a number of indefinite acts, conditions, and circumstances varying with the purpose to be accomplished. When it is shown that the defendants by their acts pursued the same object, one performing one part and the other performing another part so as to complete it or with a view to its attainment, the trier of fact will be justified in concluding that they were engaged in a conspiracy to effect that object. Most conspiracy convictions are based on circumstantial evidence. Este, 12 FSM Intrm. at 483.

      The Este case highlights the great discretion afforded to the trial court in receiving and evaluating circumstantial evidence with regard to an alleged conspiracy. While appellate panels must always show deference to the inferences and conclusions drawn by a trial judge from evidence, this deference seems even greater in the context of a conspiracy trial, in which the trial judge is likely looking for the

[15 FSM Intrm 559]

proverbial "wink and nod" that often ties a conspiracy together. It is with such considerable deference that we review the evidence explicitly relied upon by the trial court in reaching its guilty verdict.

      In denying the defendantsí joint motion for acquittal following the governmentís case-in-chief, the trial court identified four specific overt acts in furtherance of the conspiracy that could be proven beyond a reasonable doubt: (1)  Fritzís request for early delivery of a mayoral vehicle; (2)  Fritzís letter "To Whom it May Concern" purporting to commit $100,000.00 in allotments for past due debts; (3)  the submission of the purchase order for the aforementioned $100,000.00; and (4)  the practice of cash being given to customers holding NNDA authorizations for the value of out-of-stock items. These findings give us a clear idea of what the trial court was relying upon at this juncture in the trial.

      At the end of trial, after the guilty verdict was delivered, the trial court made special findings which "set out the courtís reasoning, its findings and conclusions. Tr. at 3066 (vol. xxx). Primarily, the trial court confirms that the overt acts identified in its denial of the motion for acquittal did indeed occur beyond a reasonable doubt, and the trial court points to the admitted evidence supporting these conclusions. Next, the trial court finds that Darraís participation in the conspiracy is demonstrated by his own statement.

      Finally, the trial court pronounces its reliance upon the pre-trial statement of Doris Killion, and confirms the basis for admitting the statement into evidence. Much was made by the Appellants of Doris Killionís testimony at trial, specifically of her reluctance to confirm the accusatory crux of her pre-trial statement when confronted at trial. The Appellants rely upon Killionís trial testimony, arguing that her refusal to corroborate her pre-trial statement when on the stand makes obvious the statementís fabrication. The trial court, however, did not share this conclusion. Conflicting testimony may be admitted, and it is the responsibility of the finder of fact to weigh all the answers and resolve the conflict. Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 350 (App. 1994). It is well established that the weighing of contradictory evidence is strictly within the trial courtís discretion and we find nothing in the record to suggest that the trial court abused its discretion in relying upon Doris Killionís statement, which was ultimately the most damning piece of evidence tying the conspiracy together.

      Credible evidence in the record supports the trial courtís findings and presents a coherent, believable, overall picture. After reviewing the entire record on appeal in the light most favorable to the trial courtís factual determinations and inferences, we find there is sufficient evidence to support the trial courtís findings of guilt beyond a reasonable doubt.

V.  Conclusion

      The government filed its Information within the applicable statute of limitations. The trial court did not commit reversible error in amending the Information to add the charge of conspiracy to violate 11 F.S.M.C. 548 (1982). The trial court did not commit reversible error in admitting the sworn affidavit of Frank Darra. The offenses underlying the conspiracy conviction are national offenses as contemplated by 11 F.S.M.C. 203 (1982). Sufficient evidence exists to support the trial courtís findings of guilt beyond a reasonable doubt. Appellantsí convictions are affirmed.

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