FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Harris, 24 FSM R. 602 (Pon. 2024)
FEDERATED STATES OF MICRONESIA,
Plaintiff,
vs.
STARCY HARRIS, JIMMY NORMAN, and ROXY
JOSEPH,
Defendants.
CRIMINAL CASE NO. 2024-501
ORDER GRANTING MOTION TO WITHDRAW; SCHEDULING ORDER
Chang B. William
Associate Justice
Hearing: November 7, 2024
Decided: November 12, 2024
APPEARANCES:
For the Plaintiff:
Bethwell O’Sonis, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendant:
Nixon Alten, Esq.
(Harris)
FSM Public Defenders’ Office
P.O. Box 1736
Kolonia, Pohnpei FM 96941
For the Defendant:
Tevita T. Muloilagi, Esq.
(Norman)
FSM Public Defenders’ Office
P.O. Box 814
Weno, Chuuk FM 96942
For the Defendant:
Steve George, Esq.
(Joseph)
FSM Public Defenders’ Office
P.O. Box 245
Tofol, Kosrae FM 96944
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A motion to dismiss in exchange for testimony should properly be accompanied by a plea agreement, or cooperation agreement, if one has been made pursuant to Rule 11(e)(2), which provides that any plea agreement must be disclosed by the parties to the court when the defendant tenders his plea. FSM v. Harris,
24 FSM R. 602, 604 n.1 (Pon. 2024).
The government must notify any victim of the crime charged of any proposed plea agreement, and obtain the victim's comments, before tendering the agreement to the court, and, absent a showing of good cause, the court may reject any proposed plea agreement submitted without compliance with this requirement. FSM v. Harris, 24 FSM R. 602, 605 (Pon. 2024).
A plea agreement is not fixed until the court has acted upon it in all particulars. Until the court has fixed all conditions and explained them to the defendant, there is no firm agreement and the defendant is entitled to decline the agreement. FSM v. Harris, 24 FSM R. 602, 605 (Pon. 2024).
There are four principal events in a plea and sentencing arrangement: 1) the plea agreement between the government and the defendant; 2) court acceptance of the plea agreement; 3) the plea itself; and 4) the imposition of sentence. Thus, the plea bargaining process contemplates that plea agreements will be submitted to the trial judge for acceptance or rejection. FSM v. Harris, 24 FSM R. 602, 605 (Pon. 2024).
A plea agreement is not simply a contract between two parties. It necessarily implicates the integrity of the criminal justice system and requires the courts to exercise judicial authority in considering the plea agreement and in accepting or rejecting the plea. FSM v. Harris, 24 FSM R. 602, 605 n.3 (Pon. 2024).
Since neither the prosecutor nor the defendant is justified in relying substantially on the plea bargain until the trial court approves it, courts are therefore reluctant to bind them to the agreement until then. As a general rule, either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court, with the primary exception that if the court accepts a defendant's guilty plea entered in reliance on a plea agreement or other promise that is then not honored by the government, the defendant's due process rights are violated. FSM v. Harris, 24 FSM R. 602, 605 (Pon. 2024).
It is clear from the Constitution that the FSM Supreme Court is not to consider itself bound by the decisions of courts in the United States and other jurisdictions, including the Trust Territory courts, and must not fall into the error of adopting the reasoning of those decisions without independently considering suitability of that reasoning for the FSM. FSM v. Harris, 24 FSM R. 602, 605 n.4 (Pon. 2024).
No detriment, and thus no due process violation, occurs until the guilty plea is accepted by the district court, and absent the trial court's formal acceptance of the defendant's guilty plea or an express provision in the plea agreement requiring certain pre-plea performance, the court will decline to recognize any bases for detrimental reliance by the defendant that would warrant specific performance of the plea agreement on due process or any other grounds. FSM v. Harris, 24 FSM R. 602, 605-06 (Pon. 2024).
A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the court judgment, does not deprive an accused of liberty or any other constitutionally protected interest. FSM v. Harris, 24 FSM R. 602, 606 (Pon. 2024).
Although Rule 11(e)(3) expressly requires that the government must notify any victim(s) of a plea
agreement, it does not require that the government obtain their consent, and for failure to comply with this requirement, the court may, at its discretion, reject any proposed plea agreement. FSM v. Harris, 24 FSM R. 602, 606 (Pon. 2024).
Since the Department of Justice represents the government and all its agencies, including the Department of Finance Division of Customs and Tax Administration, there is no external third-party victim to be consulted and this could be considered good cause needed to waive the notice requirement for plea agreements, but the court is still not compelled to order specific performance, as the decision whether to accept the agreement is ultimately discretionary. FSM v. Harris, 24 FSM R. 602, 606 (Pon. 2024).
The general rule is that a plea agreement is not fixed, nor is there a firm agreement, until the court has accepted the plea. Until then, either party is entitled to modify or withdraw its consent to a plea agreement, unless detrimental reliance can be shown. FSM v. Harris, 24 FSM R. 602, 606 (Pon. 2024).
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CHANG B. WILLIAM, Associate Justice:
On November 7, 2024, this court held a continued plea hearing in this matter, Associate Justice William presiding. The Government was represented by Assistant Attorney General Bethwell O'Sonis (O'Sonis). Defendant Starcy Harris (Harris), was present and represented by Public Defender Nixon Alten (Alten). Defendant Roxy Joseph (Joseph) was present and represented by public defender Steve George (George). Public defender Tevita Muloilagi (Muloilagi) appeared on behalf of defendant Jimmy Norman (Norman), however, his client was not present at the hearing.
As a preliminary matter the court addressed the absence of the defendant. O'Sonis represented that the defendant was released from Pohnpei State custody on October 16, 2024. Muloilagi represented that he did not know that his client had been released until only moments earlier and was relying on the national police to transfer him to the hearing. Muloilagi apologized and represented that he normally would have been in contact with the defendant to ensure that the defendant knew about the hearing date and had transportation. The court excused this absence. As a secondary matter, O'Sonis represented that he intended to file a motion to dismiss all charges against defendant Joseph in exchange for his testimony.1 The court then proceeded to hear oral arguments on the government's motion to withdraw. O'Sonis represented that the plea agreements were not filed in compliance with FSM Criminal Rule 11(e)(3), which requires notice to the victims prior to tendering the agreement with the court. Muloilagi objected, arguing that the court is permitted to accept a plea agreement without compliance with this requirement upon a showing of good cause. Furthermore, he argued that appellate precedent establishes only the defendant's right to withdraw, not the government's. Significantly, Alten represented that he did not file a brief, or join the other defendants' objection, because it was in his client's interest to have the plea agreement withdrawn.
FSM Criminal Rule 11(e)(3), states in full,
The government shall notify any victim(s) of the crime(s) charged of any proposed plea agreement, and obtain the comments of the victim, prior to tendering the agreement to the court. Absent a showing of good cause, the court may reject any proposed plea agreement submitted without compliance with this requirement.
(emphasis added).2 "A plea agreement is not fixed until the court has acted upon it in all particulars. Until the court has fixed all conditions and explained them to the defendant there is no firm agreement, and the defendant is entitled to decline this agreement." Dores v. FSM, 3 FSM R. 155, 158 (App. 1987) (emphasis added). "There are four principal events in a plea and sentencing arrangement. First is the plea agreement between the government and the defendant. Second is court acceptance of the plea agreement. Third is the plea itself and fourth is imposition of sentence." FSM v. Dores, 1 FSM R. 580, 585-86 (Pon. 1984). Thus, "[t]he plea bargaining process contemplates that plea agreements will be submitted to the trial judge for acceptance or rejection." FSM v. Skilling, 1 FSM R. 464, 481 (Kos. 1984).3
[T]he realization of whatever expectations the prosecutor and defendant have as a result of their bargain depends entirely on the approval of the trial court. Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court.
United States v. McGovern, 822 F.2d 739, 744 (8th Cir. 1987) (emphasis added).4 The primary exception is "if the court accepts a defendant's guilty plea entered in reliance on a plea agreement or other promise that is then not honored by the Government, the defendant's due process rights are violated." United States v. Norris, 486 F.3d 1045, 1048 (8th Cir. 2007). However, "[n]o detriment, and thus no due process violation, occurs until the guilty plea is accepted by the district court." Id. "Absent the district court's formal
acceptance of the defendant's guilty plea or an express provision in the plea agreement requiring certain pre-plea performance, we have consistently declined to recognize any bases for detrimental reliance by the defendant that would warrant specific performance of the plea agreement on due process or any other grounds." Id. at 1049 (emphasis added). Ultimately, "[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest." Mabry v. Johnson, 467 U.S. 504, 507, 104 S. Ct. 2543, 2546, 81 L. Ed. 2d 437, 442 (1984).
Although FSM Criminal Rule 11(e)(3) expressly requires that the government "shall notify any victim(s)" of a plea agreement, it does not require that the government obtain their consent. (emphasis added). Moreover, for failure to comply with this requirement, "the court may reject any proposed plea agreement." Id.(emphasis added). In short, accepting a plea agreement is at the discretion of the court. In this case, the defense has persuasively argued that the Department of Justice represents the government, and all its agencies, including the Department of Finance Division of Customs and Tax Administration. Thus, there is no external third-party victim to be consulted. This indeed could be considered the "good cause" needed to waive the notice requirement, but the court is still not compelled to order specific performance, as the decision whether to accept the agreement is ultimately discretionary. Id. The government has presented a non-arbitrary reason for withdrawing from the agreement based on a change of position after consultation with the other agency. While this change of position is not necessitated, it is permitted. The general rule is that a plea agreement is not fixed, nor is there a firm agreement, until the court has accepted the plea. Until then, either party is entitled to modify or withdraw its consent to a plea agreement, unless detrimental reliance can be shown. In this case, the plea agreement has not been accepted by the court and the defendant has neither plead guilty in reliance, nor begun pre-plea performance of the agreement.
UPON CONSIDERATION, of the briefs filed and of the oral arguments made, the court GRANTS the government's motion to withdraw from both plea agreements.
IT IS HEREBY ORDERED that the trial is set for Wednesday, December 11, 2024, at 10:00 a.m., in the FSM Supreme Court, Palikir. All defendants are expected to be present in person and prepared to plea, re-confirm their plea, or change their plea pursuant to a plea agreement, at that time. If a plea of not guilty is entered, as to any defendant, trial shall commence immediately thereafter.
IT IS FURTHER ORDERED that the Department of Justice make arrangements to have defendant Harris, currently under Pohnpei State Custody, transferred for this hearing as necessary.
_______________________________Footnotes:
1 A motion to dismiss in exchange for testimony should properly be accompanied by a plea agreement, or cooperation agreement, if one has been made pursuant to FSM Criminal Rule 11(e)(2), which states in full, "[a]ny plea agreement shall be disclosed by the parties to the court at the time the defendant tenders his plea. Failure by the prosecutor to comply with such agreement shall be grounds for withdrawal of the plea." (emphasis added).
2 Pursuant to FSM Criminal Rule 11(e)(1), the plea agreement procedure,
[t]he prosecutor and counsel for the defendant, or the defendant when acting pro se, may enter into plea agreements that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to an included or related offense, the prosecutor will take certain actions or adopt certain positions, including the dismissal of other charges and the recommending or not opposing of specific sentences or dispositions on the charge to which a plea was entered. The court shall not participate in discussions leading to such plea agreements nor be bound thereby.
3 "A plea agreement . . . is not simply a contract between two parties. It necessarily implicates the integrity of the criminal justice system and requires the courts to exercise judicial authority in considering the plea agreement and in accepting or rejecting the plea." United States v. Norris, 486 F.3d 1045, 1048 (8th Cir. 2007) (citing United States v. McGovern, 822 F.2d 739, 743 (8th Cir. 1987)) (emphasis added).
4 Of course, this Court can and should consider decisions and reasoning of courts in the United States and other jurisdictions, including the Trust Territory courts, in arriving at its own decisions. What is clear from the Constitution, however, is that we are not to consider ourselves bound by those decisions and must not fall into the error of adopting the reasoning of those decisions without independently considering suitability of that reasoning for the Federated States of Micronesia."
Alaphonso v. FSM, 1 FSM R. 209, 213 (App. 1982) (emphasis added). Upon independent consideration, the court finds such reasoning suitable for the Federated States of Micronesia.
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