[24 FSM R. 249]

CRIMINAL CASE NO. 2021-507

Decided: August 28, 2023

APPEARANCES:

For the Plaintiff:         Jeffrey S. Tilfas, Esq.
                                  Assistant Attorney General
                                  FSM Department of Justice
                                  P.O. Box PS-105
                                  Palikir, Pohnpei FM 96941

HEADNOTES

Criminal Law and Procedure – Motions – Unopposed

While failure to oppose a motion may be deemed consent to the motion, good grounds must exist for the court to grant it. FSM v. Bulabalavu, 24 FSM R. 249, 250 (Pon. 2023).

Criminal Law and Procedure – Dismissal – By the Government

Rule 48(a) provides that the government attorney may dismiss an information only on leave of court. Leave of court is required to assure that the dismissal is in the public interest. FSM v. Bulabalavu, 24 FSM R. 249, 250 (Pon. 2023).

Criminal Law and Procedure – Dismissal – By the Government

Absent a bona fide reason for dismissal, a dismissal may be a tool of harassment, as a Rule 48(a) dismissal is ordinarily without prejudice. That concern is allayed when the government has reached a good faith resolution of a related matter and has no intent to refile. FSM v. Bulabalavu, 24 FSM R. 249, 250 (Pon. 2023).

Criminal Law and Procedure – Standard of Proof; Evidence – Burden of Proof

Probable cause is a much lower standard than guilt beyond a reasonable doubt. FSM v. Bulabalavu, 24 FSM R. 249, 251 (Pon. 2023).

Criminal Law and Procedure – Dismissal – By the Government

A dismissal based on the defendant's compliance with a deferred prosecution agreement, in lieu of proceeding with any prosecution, is in good faith and therefore in the public interest. FSM v. Bulabalavu, 24 FSM R. 249, 251 (Pon. 2023).

COURT'S OPINION

DENNIS L. BELCOURT, Associate Justice:

This matter came before the Court on the government's motion to dismiss pursuant to Rule 48 of the FSM Rules of Criminal Procedure. Defendant has not filed an opposition to the motion. While such failure to oppose may be deemed consent to the motion, good grounds must exist for the Court to grant it. FSM v. Suzuki, 17 FSM R. 114, 115 (Chk. 2010).

In the motion, filed July 31, 2023, the government states as a basis for the dismissal that, as part of a deferred prosecution agreement the defendant has paid $5,000 on a citation issued against him for overstaying his entry permit.

Rule 48(a) of the FSM Rules of Criminal Procedure provides that the attorney for the government may dismiss an information only on leave of court. Leave of court is required to assure that dismissal is in the public interest. FSM v. Fritz, 16 FSM R. 175, 176 (Chk. 2008). For example, a basis for leave may exist when a new prosecutor reviewing a case file determines there is insufficient evidence to sustain a conviction. Id. at 177; FSM v. Yue Yuan Yu No. 346, 7 FSM R. 162, 163 (Chk. 1995). A concern is that, absent a bona fide reason for dismissal, the dismissal may be a tool of harassment, as a Rule 48(a) dismissal is ordinarily without prejudice. Yue Yuan Yu No. 346, 7 FSM R. at 163. That concern is allayed where the government has reached a good faith resolution of a related matter and has no intent to refile. Id. at 163-64.

In its motion, the government does not argue that its evidence was insufficient to support a conviction. However, the Court presided over a hearing on probable cause on the single count for violation of "willfully and unlawfully remaining," 50 F.S.M.C. 114, and while it found probable cause [FSM v. Bulabalavu, 23 FSM R. 434, 436-37 (Pon. 2021)], probable cause is a much lower standard than guilt beyond a reasonable doubt. The Court concludes dismissal of this matter based on Defendant's compliance with the deferred prosecution agreement, in lieu of proceeding with any prosecution, is in good faith and therefore in the public interest.

The Government's request is granted, and this matter is dismissed. Pretrial release conditions are vacated, and defendant's passport shall be returned to him.