[24 FSM R. 434]

CRIMINAL CASE NO. 2020-500

Hearing: March 12, 2024
Decided: April 22, 2024

APPEARANCES:

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

For the Defendant:       Salomon M. Saimon, Esq.
      (Ioanis)                   P.O. Box 911
                                     Kolonia, Pohnpei FM 96941

For the Defendant:       Tevita T. Muloilagi, Esq.
  (Celestine)                 Office of the Public Defender
                                     P.O. Box 814
                                     Weno, Chuuk FM 96942

For the Defendant:       Marstella E. Jack, Esq.
      (Primo)                   P.O. Box 2210
                                     Kolonia, Pohnpei FM 96941

HEADNOTES

Criminal Law and Procedure – Dismissal – By the Government

While the prosecution has broad discretion in determining whether to initiate litigation, once that litigation is instituted, the court has responsibility for assuring that actions thereafter taken are in the public interest. Thus, criminal litigation can be dismissed only by obtaining leave of the court. FSM v. Ioanis, 24 FSM R. 434, 435 (Pon. 2024).

Criminal Law and Procedure – Dismissal – By the Government

While Rule 48(a) does not specify criteria for granting a prosecutor's motion to dismiss, dismissal under Rule 48(a) has been held to be appropriate where the government represents that there is insufficient evidence to obtain a conviction. The motion must be in the public interest, made in good faith, for a bona fide reason, and not for any improper purpose. The court must also consider the views of any victims of the crime before deciding whether to grant the prosecution's motion to dismiss. FSM v. Ioanis, 24 FSM R. 434, 435-36 (Pon. 2024).

Criminal Law and Procedure – Dismissal – By the Government

When there is no evidence that the prosecution's motion to withdraw an earlier motion to dismiss was filed with an intent to harass the defendants when the prosecution's motion to withdraw its motion to dismiss did not include any new evidence that was not in the case file, but rather that it was evidence unknown to the new prosecutor on the case and when change of prosecutors frequently results in mistakes regarding case information and is neither unusual nor does it inherently demonstrate bad faith on the prosecution's part, the court may grant the prosecution's motion to withdraw its motion to dismiss. FSM v. Ioanis, 24 FSM R. 434, 436 (Pon. 2024).

Criminal Law and Procedure – Dismissal – By the Government

Dismissal will not be granted when the case involves allegations of police misconduct and abuse of prisoners, including sexual assault; when these allegations implicate the criminal justice system as a whole; when the court must consider the victim's views before granting a dismissal; and when to dismiss, without having had any opportunity to address the charges would be contrary to both the public interests and the victim's. FSM v. Ioanis, 24 FSM R. 434, 436 (Pon. 2024).

COURT'S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

On March 8, 2024, Plaintiff filed a Motion for Leave to Dismiss Without Prejudice. On March 11, 2024, Plaintiff filed a Motion to Withdraw Plaintiff's Motion for Leave to Dismiss. On March 19, 2024, all three Defendant's filed oppositions.¹ On March 26, 2024, Plaintiff filed a Reply. Pursuant to FSM Criminal Rule 48(a), "The attorney for the government may by leave of court file a dismissal of an information or complaint and the prosecution shall thereupon terminate. Such a dismissal may be filed during the trial without the consent of the defendant." (emphasis added). "While the prosecution has broad discretion in determining whether to initiate litigation, once that litigation is instituted in Court, the Court also has responsibility for assuring that actions thereafter taken are in the public interest. [Thus] [c]riminal litigation can be dismissed only by obtaining leave of the Court." FSM v. Ocean Pearl, 3 FSM R. 87, 91 (Pon.1987) (emphasis added).² "Factors to examine when determining whether a dismissal is in the public interest include whether the dismissal involved any harassment of the defendants and whether a bona fide reason exists for the dismissal." FSM v. Ching Feng 767, 12 FSM R. 498, 502 (Pon. 2004). "While Rule 48(a) does not specify criteria for granting the prosecutor's motion, dismissal under Rule 48(a) has [also] been held to be appropriate where the government represents that there is insufficient evidence to obtain a conviction." FSM v. Tomiya Suisan Co., 11 FSM R. 15, 16-17 (Yap 2002).³ However, "[t]he court must also consider the views of any victims of the crime before deciding whether to grant the motion." 3B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 802, at 335 (3d ed. 2013). In short, any motion to withdraw must be in the public interest, made in good faith, for a bona fide reason, and not for any improper purpose.

Collectively Defendants raise several objections to the motion to withdraw, primarily including: 1) motion was malicious and made with the intent to harass defendants, 2) prior motion admits insufficient evidence to sustain a conviction, 3) motion is not in the public interest, and 4) the delay violates right to speedy trial. In open court,⁴ Assistant Attorney General Jeffrey Tilfas clarified that the motion to withdraw did not include any new evidence that was not in the case file, but rather that it was evidence unknown to the new prosecutor on the case. Change of counsel frequently causes disruptions to trial schedules and results in mistakes regarding case information. It is neither unusual nor does it inherently demonstrate bad faith on the part of the prosecution. Thus the court finds that there is no evidence that this was filed with an intent to harass the defendants. While it is not in the public interest to prosecute a case where there is insufficient evidence, the prosecution has subsequently determined that there is enough, notwithstanding a different prior conclusion. Finally, the Court finds that a few weeks delay does not violate the right to speedy trial.

Ultimately, this case involves allegations of police misconduct and abuse of prisoners, including sexual assault. These allegations implicate the criminal justice system as a whole. Furthermore, the court must consider the views of the victim before granting a dismissal. In doing so, we find that to dismiss, without having had any opportunity to address this complaint would be contrary to both the public interests and those of the victim.

UPON CONSIDERATION, of the filings, the motion to withdraw is GRANTED and the Motion to Dismiss is hereby withdrawn.

IT IS FURTHER ORDERED, that the plea hearing in this matter is set for Friday, May 10, 2024, at 10:00 a.m., in the FSM Supreme Court, Palikir. All parties are required to be present, in person, and prepared to enter a plea in court.

IT IS FURTHER ORDERED that trial shall commence on Wednesday, May 15, 2024, at 10:00 a.m., in the FSM Supreme Court, Palikir. All parties are required to be present, in person, and prepared for trial.

Footnotes:

¹ On March 19, 2024, Defendant MC Ioanis filed Consent to Dismissal, and Opposition to Withdraw Motion to Dismiss. On March 19, 2024, Defendant Celestine filed a Motion to Dismiss Plaintiff's Motion to Withdraw. On Mach 19, 2023, Defendant Primo filed an Opposition to Plaintiff's Motion to Withdraw Motion for Leave to Dismiss Case.

² See FSM v. Tomiya Suisan Co., 11 FSM R. 15, 16 (Yap 2002) ("The purpose for requiring court approval of dismissal of a criminal case is to . . . determine that dismissal serves the public interest."); FSM v. Yue Yuan Yu No. 346, 7 FSM R. 162, 163 (Chk. 1995) ("In considering whether leave to dismiss is to be granted, it must be found that the dismissal is in the public interest").

³ In FSM v. Tomiya Suisan Co., the court articulated a non-exhaustive list of other reasons a court may exercise its discretion to dismiss, including: "a plea agreement, death of the defendant, defendant's incompetency to stand trial, government security interests that might be placed at risk by disclosures at trial, where a defendant has cooperated with a prosecutorial investigation, and where the indictment has been superseded." 11 FSM R. 15, 16-17 (Yap 2002) (citations omitted).

⁴ March 12, 2024.