FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Elnei 24 FSM R. 72 (Pon. 2023)
FEDERATED STATES OF MICRONESIA,
Plaintiff,
vs.
CHRISTINA ELNEI, NORLEEN OLIVER DEORIO,
PATRICK CARL, PETERSON SAM, and PATRICK
PEDRUS,
Defendants.
CRIMINAL CASE NO. 2022-502
ORDER DISMISSING CHARGES
Larry Wentworth
Associate Justice
Hearing: September 7, 2022, January 16, 18, February 23, March 3, and 21, 2023
Decided: March 21, 2023
APPEARANCES:
For the Plaintiff:
Jeffrey S. Tilfas, Esq.
Quintina Letawerpiy, Esq
Nixon Alten, Esq.
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendant:
Judah Johnny
Tyson Elias, Esq.
Assistant Attorneys General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941
For the Defendant:
Marstella E. Jack, Esq.
(DeOrio)
P.O. Box 2210
Kolonia, Pohnpei FM 96941
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The right to a prompt probable cause hearing is a constitutional requirement for any significant pretrial restraint of liberty but is only necessary if detention, bail, or condition for release is placed on the defendant. FSM v. Elnei, 24 FSM R. 72, 74 (Pon. 2023).
A person, who has been arrested and who has been released on bail or personal recognizance, may apply to a judge and request a preliminary examination. Thereupon the judge or official shall set a time and place for preliminary examination. FSM v. Elnei, 24 FSM R. 72, 74 (Pon. 2023).
The FSM national government controls the entry of persons into the country, while the states generally control quarantine as a matter of public health once someone has arrived in that state, but, in instances such as the covid-19 pandemic, the national government may set mandatory nationwide standards as a condition of entry and of public health. These nationwide standards are mandatory minimums. The states have the power, based on local conditions, to set more stringent standards, if warranted. FSM v. Elnei, 24 FSM R. 72, 75 (Pon. 2023).
When an information's language is more specific than the language of the statute under which the crime is charged, the prosecution must establish those specific facts alleged in the information in addition to a violation of the statute. FSM v. Elnei, 24 FSM R. 72, 76 (Pon. 2023).
When the nationwide five-day quarantine standard was promulgated at least two days after the conspiracy to violate was allegedly formed, it is difficult to see how the court could possibly find probable cause for the needed criminal intent for the alleged conspiracy ─ the intent to agree to violate a nationwide mandate that had not yet been promulgated. FSM v. Elnei, 24 FSM R. 72, 76 (Pon. 2023).
No civil rights crime was committed when the defendants adhered to the seven-day Pohnpei quarantine, instead of the nationwide five-day quarantine because Pohnpei had medical reasons to, and thus had the power to, adhere to its seven-day quarantine. FSM v. Elnei, 24 FSM R. 72, 76 (Pon. 2023).
Since the relevant regulation required that, once the quarantine site is cleared of quarantined individuals, the Hazmat team would perform decontamination in all the rooms and areas used for quarantine, the court cannot find probable cause for any ill will toward new arrivals' civil rights in the defendants' failure to adopt a suggestion involving the use of untrained personnel to ready the quarantine site for new arrivals when Pohnpei covid officials continued to adhere to the standard operating protocol for quarantine and for cleaning quarantine facilities by trained cleaning crews. FSM v. Elnei, 24 FSM R. 72, 76-77 (Pon. 2023).
The arriving passengers' civil rights were not violated by the extension of the Pohnpei quarantine from five to seven days. FSM v. Elnei, 24 FSM R. 72, 77 (Pon. 2023).
The most important function of quarantine is preventing all new arrivals, and their possessions, from coming into contact with and possibly infecting someone in the general population or contaminating something and spreading disease. FSM v. Elnei, 24 FSM R. 72, 77 (Pon. 2023).
Looking at the purpose for, and the public policy behind, the Quarantine Standard Operating Procedures, the court cannot find probable cause that the unintended failure to keep quarantined arrivals six feet apart constitute civil rights crimes. FSM v. Elnei, 24 FSM R. 72, 77 (Pon. 2023).
It is a crime to wilfully interfere with, delay, or obstruct a public official in the discharge or attempted discharge of any duty of his or her office. FSM v. Elnei, 24 FSM R. 72, 77 (Pon. 2023).
An FSM public official is any person elected, appointed or employed to perform a governmental function on the FSM's behalf, or any department, agency or branch thereof, or any allottee as defined in the Financial Management Act of 1979 or any successor law, in any official function under or by authority of any such agency or branch of government. FSM v. Elnei, 24 FSM R. 72, 78 (Pon. 2023).
A Pohnpei state employee who was not performing a governmental function on the FSM's behalf, but, instead, performing a governmental function on the State of Pohnpei's behalf, does not fall within the Criminal Code's definition of "public servant," and thus not within the ambit of 11 F.S.M.C. 501(1). FSM v. Elnei, 24 FSM R. 72, 78 (Pon. 2023).
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LARRY WENTWORTH, Associate Justice:
On July 14, 2022, defendant Norleen Oliver DeOrio filed her Motion to Set Aside Pretrial Release Order and Schedule Probable Cause Hearing. In essence, she asked that the court hold a preliminary hearing or preliminary examination at which to challenge probable cause for the charges against her. On August 24, 2022, defendants Christina Elnei, Patrick Carl, Peterson Sam, and Patrick Pedrus filed their Motion to Dismiss. Because of this motion's grounds, it was appropriate to handle the motion together with defendant DeOrio's preliminary hearing.
The right to a prompt probable cause hearing is a constitutional requirement for any significant pretrial restraint of liberty but is only necessary if detention, bail, or condition for release is placed on the defendant. FSM v. Kimura, 19 FSM R. 617, 620 n.5 (Pon. 2014). No significant pretrial restraints of liberty were set for the defendants' release. The court only required that they notify the court if they were going to travel outside the FSM. Nevertheless, a person who has been arrested and who "has been released on bail or personal recognizance . . . may apply to a judge . . . and request a preliminary examination. Thereupon the judge or official shall set a time and place for preliminary examination . . . ." 12 F.S.M.C. 505.
Since defendant DeOrio had a statutory right to a preliminary hearing, the court set the preliminary hearing for August 17, 2022, which was continued due to illness of the other defendants' counsel. The preliminary hearing started on September 7, 2022, by video-conference. It did not finish then, and so was set to resume on October 27, 2022, but instead was, at various defendants' requests (sometimes joined by the prosecution), continued further. The hearing finally resumed on January 16, 2023, with further testimony on January 18, and February 23, 2003. At the parties' request, all parties filed written closing arguments on March 2, 2023, and oral closing arguments were heard on March 3, 2023.
These criminal charges stem from the June 11-12, 2022 repatriation fight from Guam to Pohnpei and the arrivals' subsequent quarantine on Pohnpei. At the time, Pohnpei had two quarantine facilities – one the Emergency Medical Unit ("EMU") in the old China Star Hotel, which had 26 rooms available and the other, the Medical Monitoring Area ("MMA") at Misko Beach, which had 40 units available. Seventy-two passengers, who had been quarantined for three days on Guam just before departing for Pohnpei, arrived on that repatriation flight at about 12:30 a.m., knowing that they would quarantined again upon arrival on Pohnpei. Seventy-one were bussed from the airport to the EMU. (The other passenger, the FSM President, was sent home to self-quarantine.) At the EMU, the arrivals were crowded together and given their orientation and room assignments.
Pohnpei quarantine personnel found room accommodations for all but 24 people at the EMU. The rest were not taken to the MMA because that facility had, until that day, still housed two passengers from the previous repatriation flight who had tested positive for covid-19 while in Pohnpei quarantine. Before the MMA could house any more arrivals, it had to be cleaned according to protocol by a trained quarantine cleaning crew. The remaining 24 arrivals were temporarily accommodated in what had been the China Star lobby and the restaurant areas. Most were given pillows, blankets, and mattresses, and slept on those or on the furniture, not always spaced over 6 feet apart, and had to share toilets and showers.
The last two MMA residents were released from quarantine some time on June 11, 2022. The MMA was properly and expeditiously cleaned on June 12, 2022. By 9 p.m., June 12, 2022, the 24 persons who had been housed in the EMU lobby and restaurant areas were moved to the MMA units. All arrivals were kept in Pohnpei quarantine for seven days and then released. None had tested positive.
A. Counts 1-24
Counts 1-24 charge that the defendants conspired to violate the civil rights of 24 different persons by holding those persons in quarantine for seven days instead of five days as set out in the President's Emergency Regulation to Clarify the Maximum Period of Quarantine Upon Arrival in FSM, which was signed and became effective on June 14, 2022. Pohnpei quarantine officials kept the June 11-12, 2022 arrivals in quarantine for seven days because, when added to the three days' quarantine on Guam, that equaled the ten days' quarantine recommended by the United States Center for Disease Control ("CDC").
The court has earlier, in other cases, stated that, only the FSM national government controls the entry of persons into the country, see FSM Const. art. IX, § 2(c), while the states generally control quarantine as a matter of public health once someone has arrived in that state, cf. FSM Const. art. VIII, § 2 ("power not expressly delegated to the national government or prohibited to the states is a state power"). That is not strictly true. In instances such as the covid-19 pandemic, the national government may set mandatory nationwide standards as a condition of entry and of public health. But the court views these nationwide standards as mandatory minimums. Cf. FSM Const. art. X, § 2(r) (national government has the power "to promote education and health by setting minimum standards"). The states thus have the power, based on local conditions, to set more stringent standards, if warranted. Furthermore, under the SOP for the Repatriation of Stranded Citizens, Residents, and Essential Workers from Guam, which was authorized by the Chairman of the FSM Covid-19 Task Force on June 1, 2022, "[q]uarantine period and testing will depend on State's quarantine protocol." Id. at 2.
The previous repatriation flight had a number of persons who had tested negative in Guam quarantine, but who, after arrival in Pohnpei quarantine, tested positive for covid-19, and whose quarantine time therefore had to be extended. Thus, Pohnpei covid officials had medical reasons to follow the CDC-recommended ten days and had the power to maintain a seven-day quarantine despite the new, just-implemented lower nationwide five-day standard.
The criminal information specifically charges that the defendants conspired to commit these charged crimes "by extending the period of quarantine from 5 to 7 days, both, without lawful purpose or medical reasons, in violation of false imprisonment." When an information's language is more specific than the language of the statute under which the crime is charged, the prosecution must establish those specific facts alleged in the information in addition to a violation of the statute. Lee v. Kosrae, 20 FSM R. 160, 165-66 (App. 2015); FSM v. Boaz (I), 1 FSM R. 22, 24 (Pon. 1981). The prosecution therefore had to show, among other things, that there were no medical reasons for the extra two days of quarantine.
The prosecution contended that there was no medical reason for a seven-day quarantine instead of a five-day quarantine because the arrivals all tested negative before leaving Guam. But Pohnpei covid officials did have a medical reason – the ten days' quarantine recommended by the U.S. CDC, and their previous experience of arrivals testing negative before leaving Guam quarantine and later testing positive while in Pohnpei quarantine. The prosecution is thus not able to show probable cause for the charge that the defendants did not have a medical reason.
Also, the nationwide five-day standard was promulgated two days after the June 12th arrivals' seven-day quarantine period had started. Therefore it is difficult to see how the court could possibly find probable cause for the needed criminal intent here – the intent to agree to violate a nationwide mandate that had not yet been promulgated.
The court therefore cannot conclude that Counts 1-24 allege or charge any crimes. Accordingly, Counts 1-24 are dismissed with prejudice.
B. Counts 25-94
Counts 25-94 charge that the defendants actually violated each of the 71 arrivals' civil rights by "intentionally and maliciously disabling the MMA by not making expeditious preparation for its use as a quarantine facility" thus leaving each arriving passenger in unsafe conditions at the EMU and by extending the Pohnpei quarantine period from five to seven days.
For the reasons just explained, the defendants committed no crime by adhering to the seven-day Pohnpei quarantine, instead of the nationwide five-day quarantine. Pohnpei had medical reasons to, and thus had the power to, adhere to its seven-day quarantine.
Also, the court cannot find any evidence of the charged maliciousness. The prosecution alleges that the defendants' ill intent was shown because defendant DeOrio waited until the evening of June 8, 2022, to ask, on Acting Governor Christina Elnei's request, that June 11-12 flight be postponed to June 15, 2022. The court cannot find ill intent here. Although the defendants had for some time known that a repatriation flight was scheduled for June 11-12, 2022, they did not know until June 8, 2022, that two passengers from the previous repatriation flight would still test positive and would, on the Pohnpei Medical Advisory Committee's advice, have to remain in their MMA quarantine until June 11, 2022. The court also notes that the previously-mentioned SOP for the Repatriation of Stranded Citizens, Residents, and Essential Workers from Guam (June 1, 2022), provides that "[t]he state medical team will determine the additional number of days to be quarantined or remain in quarantine for both: the individuals who tested positive [while in state quarantine] and the individuals that tested negative." Id. at 6, ¶ 10.
On June 9, 2022, after the repatriating persons had all checked into Guam quarantine and been given $175 swab tests, all at the FSM government's expense, Dr. Pretrick, on the FSM's behalf, suggested a way that MMA might be readied in time to accommodate the 71 scheduled arrivals. That, however, would have involved the use of national government personnel who had not been trained in the covid cleaning protocol. This would not adhere to the June 1, 2022 SOP which required that "[a]fter the quarantine site is cleared [of quarantined individuals], the Hazmat team will perform decontamination in all the rooms and areas used for quarantine." Id. at 6, ¶ 13. Thus, the court cannot find probable cause for any ill will in the defendants' failure to adopt Dr. Pretrick's suggestion because Pohnpei covid officials continued to adhere to the standard operating protocol for quarantine and for cleaning quarantine facilities.
The prosecution cannot show probable cause that the "extension" of the Pohnpei quarantine from five to seven days violated any of the arriving passengers' civil rights. And it has not shown probable cause that the failure to prepare the MMA was willful attempt to deprive the 24 arrivals who were not accommodated at the EMU of their civil rights. Since the court therefore cannot find probable cause the crimes charged were committed, Counts 25-94 are dismissed with prejudice.
C. Counts 120-223
Counts 120 to 223 charge that all defendants violated the civil rights of all of the June 12 arrivals by not complying with the Quarantine Standard Operating Procedures when all 71 arrivals were transported to the EMU and none to the MMA and all were crowded together for orientation and room assignment and when those not given room assignments were quarantined in the EMU's lobby and restaurant areas where not everyone was to maintain a six-foot distance between people and where they had to share toilet and shower facilities.
Ironically, these counts charge that the defendants did not do enough quarantining, while Counts 1-94 charge the defendants with doing too much (that is, an extra two days) quarantining. The court notes the following: the repatriating passengers were not uniformly kept over six feet apart when going to Guam airport, when going through Guam airport and boarding the repatriation flight; when seated on the United aircraft during the flight; and when bussed to the Pohnpei quarantine site. Nor were they expected to. They also shared toilet facilities in the airports and aboard the United aircraft. While the Pohnpei covid officials were unable to ensure that everyone maintained a six-foot distance between them and the next person while in the EMU lobby and restaurant areas, they appear to have tried their best. And they did move those accommodated in the lobby and restaurant areas to the MMA quarantine facility as soon as it was properly decontaminated on June 12, 2022, by Pohnpei's trained cleaning crew according to protocol.
There is no evidence that anyone at the EMU, including those accommodated in the restaurant and lobby areas, ever came into contact with anyone in the general public. That is the most important function of quarantine – preventing all new arrivals, and their possessions, from coming into contact with and possibly infecting someone in the general population or contaminating something and spreading disease. The Pohnpei covid officials' adherence to their protocols prevented that from being a possibility with the passengers arriving on the June 11-12, 2022 repatriation flight.
Therefore, looking at the purpose for, and the public policy behind, the Quarantine Standard Operating Procedures, the court cannot find probable cause that these counts charge crimes. Accordingly, Counts 120-223 are dismissed.
D. Count 119
There were no Counts 95-118. That leaves Count 119. Count 119 charges that defendant DeOrio violated 11 F.S.M.C. 501 because she had willfully interfered with, delayed, or obstructed a public official in the discharge of her duties when she instructed the Quarantine Manager, Marcy Lorrin, "to stop cleaning the MMA when it was clear that EMU would not be able to house all the repatriated passengers for the current flight." Title 11, Section 501 of the FSM Criminal Code makes it a crime to "wilfully interfere[] with, delay[], or obstruct[] a public official in the discharge or attempted discharge of any duty of his or her office." 11 F.S.M.C. 501(1).
Even if DeOrio interfered with, delayed, or obstructed Lorrin in the discharge of her duties, no crime appears to be charged or alleged because Lorrin is not a "public official" covered by 11 F.S.M.C. 501. The Criminal Code defines a public official as:
any person elected, appointed or employed to perform a governmental function on behalf of the Federated States of Micronesia, or any department, agency or branch thereof, or any allottee as defined in the Financial Management Act of 1979 or any successor law, in any official function under or by authority of any such agency or branch of government.
11 F.S.M.C. 104(12). Lorrin was a Pohnpei state employee who served under DeOrio, not a national government employee. While that distinction may not be conclusive in all cases, no evidence before the court suggests that Lorrin was performing a governmental function on the FSM's behalf. Instead, she was performing a governmental function on the State of Pohnpei's behalf. Lorrin therefore does not appear to fall within the Criminal Code's definition of "public servant," and thus not within the ambit of 11 F.S.M.C. 501(1).
Furthermore, the testimony before the court was that Lorrin was told to stop cleaning the MMA so that the EMU could be cleaned and would be ready for the repatriation flight that was going to arrive that evening.
For all the foregoing reasons, the court cannot find probable cause for an obstruction charge here. Accordingly, Count 119 against DeOrio is dismissed with prejudice.
This case was the result of misplaced hopes. Pohnpei covid officials were hoping that the June 11-12, 2022 repatriation flight would either be postponed to the June 15th flight from Guam when both the EMU and the MMA would be cleaned and available or that the June 12th flight would be limited to only 38 passengers, for which the EMU could be made ready to accommodate. And the national covid officials were hoping that the MMA would be cleaned and made ready for the 71 passengers that had been quarantined at its expense on Guam for three days. In what may have been an ill-advised contest of wills, neither's hopes were realized.
Accordingly, the Counts 1-94 and 119-223 are all dismissed with prejudice. This case is closed.
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