FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. HarrisFSM v. Harris, 24 FSM R. 636 (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 DISMISS; SCHEDULING ORDER
Chang B. William
Associate Justice
Trial: December 11, 2024
Decided: December 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)
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944
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The prosecution and the defense may enter into plea agreements that, upon the defendant's entry of a guilty plea 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 must not participate in discussions leading to such plea agreements nor be bound thereby. FSM v. Harris, 24 FSM R. 636, 638 (Pon. 2024).
The court may accept a plea agreement for consideration while requiring the parties to file an amendment to include an inadvertently omitted count and to clarify the sentence recommendation for the record. FSM v. Harris, 24 FSM R. 636, 638 (Pon. 2024).
Under the constitutional legal system, a decision as to whether to initiate, continue or terminate a particular criminal prosecution is, with limited exceptions, within the prosecutor's discretion since the prosecutor may, by leave of court, file a dismissal of an information or complaint and the prosecution will thereupon terminate. FSM v. Harris, 24 FSM R. 636, 639 (Pon. 2024).
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 taken thereafter are in the public interest. Thus, criminal litigation can be dismissed only by obtaining leave of the court. FSM v. Harris, 24 FSM R. 636, 639 (Pon. 2024).
Factors to examine when determining whether a dismissal is in the public interest include whether the dismissal involved any harassment of the defendant and whether a bona fide reason exists for the dismissal. FSM v. Harris, 24 FSM R. 636, 639 (Pon. 2024).
While Rule 48(a) does not specify criteria for granting the prosecutor's motion to dismiss, dismissal under Rule 48(a) is appropriate when the government represents that there is insufficient evidence to obtain a conviction. A non-exhaustive list of other reasons a court may exercise its discretion to dismiss include: a plea agreement, the defendant's death, the defendant's incompetency to stand trial, government security interests that might be placed at risk by disclosures at trial, when a defendant has cooperated with a prosecutorial investigation, and when the indictment has been superseded. FSM v. Harris, 24 FSM R. 636, 639 (Pon. 2024).
When the prosecution's motion to dismiss a defendant is primarily based on a cooperation agreement reached with the defendant, where, in exchange for his truthful testimony and his assistance in the prosecution of the case against the other defendants, the government offered him immunity and agreed not to prosecute him, and, secondarily, is because the prosecution did not have sufficient evidence to prosecute him on all of the counts, the motion was made for a bona fide reason, in good faith, and not for any improper purpose such as harassment, and, is also in the public interest. FSM v. Harris, 24 FSM R. 636, 639 (Pon. 2024).
The court has inherent authority to modify its own order at any time before judgment is entered if the defendant should fail to cooperate as provided by the terms of his cooperation agreement leading to a dismissal. The court has the inherent authority to reconsider, rescind, or modify, any order sua sponte, or by motion from the parties, and especially in cases where the public interest is no longer served because, unlike a plea agreement, a cooperation agreement is not binding on the court, but is nevertheless enforceable as a contract between the government and the defendant. FSM v. Harris, 24 FSM R. 636, 639-40 & n.8 (Pon. 2024).
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CHANG B. WILLIAM, Associate Justice:
On December 11, 2024, this court held trial in this criminal matter, Associate Justice William presiding. The Government was represented by Assistant Attorney General Bethwell O'Sonis (O'Sonis). Defendant Starcy Harris (Harris) was represented by public defender Nixon Alten (Alten). Defendant Jimmy Norman (Norman) was represented by public defender Tevita Muloilagi (Muloilagi). Defendant Roxy Joseph (Joseph) was represented by Steve George (George). Translation into Pohnpeian was provided by National Justice Ombudsman Johnny Peter (Peter). As a preliminary matter, the court addressed the two last-minute filings including a Plea Agreement and a Motion to Dismiss. The court then held trial, heard testimony from two witnesses1 for the prosecution, and then recessed at the request of the defendant.2
On December 10, 2024, the Government filed a Plea Agreement for defendant Norman. Pursuant to FSM Criminal Rule 11(e), plea agreement procedure,
The 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.
(emphasis added). The court reviewed the six (6) charges from the information3 and read the maximum possible penalty for each. The court then read the rights to the defendant, including the right to counsel, the right to remain silent, and the right to trial. The court affirmed that the plea was voluntary. Then the court took the defendant's plea of guilty, as to Count 1: Theft in violation of 11 F.S.M.C. 602. The Prosecution tendered the Plea Agreement explaining that in exchange for plea of guilt to the single charge of theft the government would withdraw all of the other charges against defendant Norman. The Court warned the defendant that the court was not bound by the terms of that agreement and inquired into the factual basis of the plea. The prosecution represented that it was based on the defendant's confession and the public defender concurred. The court further confirmed the value stolen of the property to be approximately $500. It was noted that last Count 6: Solicitation was inadvertently omitted by the Plea Agreement but that it was the intention of the parties to include it. Further, the parties clarified that the one (1) month sentence be restated to be thirty (30) days, without credit for any time served. The court accepted the Plea Agreement for consideration requiring the parties to file an amendment to include the missing count and to clarify the sentence recommendation for the record.
On December 10, 2024, the Government filed a Motion to Dismiss all charges against defendant Joseph. 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). "Under the constitutional legal system, a decision as to whether to initiate, continue or terminate a particular criminal prosecution is, with limited exceptions, within the discretion of the prosecutor." FSM v. Mudong, 1 FSM R. 135, 140 (Pon.1982) (emphasis added). "Nolle prosequi is a formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further." BLACK'S LAW DICTIONARY 1074 (8th ed. 2004).
"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).4 "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) (emphasis added). "While Rule 48(a) does not specify criteria for granting the prosecutor's motion, dismissal under Rule 48(a) has 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). The Tomiya court further 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." Id. at 17 (emphasis added) (citations omitted).5
The Government represented that the motion is primarily based on a cooperation agreement reached with the defendant. In exchange for his truthful testimony and his assistance in the prosecution of the case against the other defendants, the Government offered him immunity and agreed not to prosecute him. Secondarily, the Government represented that they did not have sufficient evidence to prosecute him on all of the counts. The court finds that the motion was made for a bona fide reason, in good faith and not for any improper purpose such as harassment. The court further finds that cooperating with the prosecution is in the public interest.
As a warning, the Court has inherent authority to modify its own order at any time before judgment is entered.6 Should the defendant fail to cooperate as provided by the terms of this agreement, the court
has the inherent authority to reconsider, rescind, or modify, any order sua sponte, or by motion from the parties, and especially in cases where the public interest is no longer served.7 Noting that unlike a plea agreement, a cooperation agreement is not binding on the court, it is nevertheless enforceable as a contract between the Government and the defendant.8
UPON CONSIDERATION the Motion to Dismiss is GRANTED in favor of defendant Joseph. The motion is made in good faith and in the public interest.
IT IS HEREBY ORDERED that all charges against defendant Joseph are DISMISSED with prejudice.
IT IS FURTHER ORDERED that the Witness Subpoena for Roxy Joseph is extended to include the continued trial date, set for Friday, December 13, 2024, at 10:00 a.m., in the FSM Supreme Court, Palikir. Failure to appear may result in the RECONSIDERATION of the dismissal, as well as a warrant being issued for your arrest, a fine, or imprisonment for contempt of court;
IT IS FURTHER ORDERED that the parties correct, sign, and refile the Amended Plea Agreement for defendant Norman no later than Wednesday, December 18, 2024.
IT IS FURTHER ORDERED that the National Justice Ombudsman prepare a presentence report for defendant Norman and serve it on the parties no later than Wednesday, December 25, 2024,
IT IS FURTHER ORDERED that the continued trial be set for Friday, December 13, 2024, at 10:00 a.m., in the FSM Supreme Court, Palikir. Counsel for the Government, Defendant Harris, and public defender Alten, should be present and prepared for trial at that time. Defendant Norman, and public defender Muloilagi, need not be present.
IT IS FURTHER ORDERED that the Department of Justice make arrangements to have defendant Harris, currently under custody, transferred for this hearing by the Pohnpei State Police pursuant to the Joint Law Enforcement Agreement.
_______________________________Footnotes:
1 Customs and Tax Officer Jeffrey Aron and National Police Officer Charles Otoko.
2 Defendant represented that he had not received a copy of the Motion to Dismiss, with the attached Immunity Agreement, nor had the Government provided him with a Witness Statement on which he could prepare his defense.
3 The information charges all three defendants with: 1) Theft, in violation of 11 F.S.M.C. 602(1); 2) Criminal Mischief in violation of 11 F.S.M.C. 603(1); 3) Unauthorized Possession in violation of 11 F.S.M.C. 604(1); 4) Trespassing in violation of 11 F.S.M.C. 605; 5) Conspiracy in violation 11 F.S.M.C. 203(1)(a); 6) Solicitation in violation of 11 F.S.M.C. 202.
4 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.").
5 Rule 48 does not confer "unqualified power or discretion on the Executive Branch." United States v. Flynn, 507 F. Supp. 3d 116, 129 (D.D.C. 2020). "The 'leave of court' phrase 'was intended to modify and condition the absolute power of the Executive.'" Id. (citation omitted). Before Rule 48(a)'s passage in 1944, "federal prosecutors wielded the power to drop criminal charges," or enter a nolle prosequi, "at will." Id. at 127. However, the perception that prosecutors were seeking dismissals for politically well-connected defendants led some judges to "feel complicit in dealings they deemed corrupt." Id.
6 "Generally, district courts do have 'inherent authority' to decide motions for reconsideration or rehearing of orders in criminal proceedings, even when there is no statute authorizing such motions." United States v. Barragan-Mendoza, 174 F.3d 1024, 1028 (9th Cir. 1999); It is a "traditional and virtually unquestioned practice." United States v. Dieter, 429 U.S. 6, 8 n.3, 97 S. Ct. 18, 19 n.3, 50 L. Ed. 2d 8, 11 n.3 (1976).
7 See Hemstreet v. Greiner, 378 F.3d 265, 269 (2d Cir. 2004) ("We have the authority to reconsider a decision sua sponte rather than at the request of a party, particularly where we are faced with extraordinary circumstances and 'the realization that injustice would ensue'") (citation omitted); Livonia Pub. Sch. v. Selective Ins. Co. of the S.E., 611 F. Supp. 3d 426, 434 (E.D. Mich. 2020) ("This 'inherent procedural power' allows district courts to 'reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient. A District Court may exercise this power sua sponte . . . or it may do so on motion of the parties" (citation omitted)).
8 "Generally speaking, a cooperation-immunity agreement is contractual in nature and subject to contract law standards." United States v. Irvine, 756 F.2d 708, 710 (9th Cir. 1985). "Unlike the normal commercial contract, however, due process requires that the government adhere to the terms of any plea bargain or immunity agreement it makes." United States v. Pelletier, 898 F.2d 297, 302 (2d Cir. 1990). Thus, a "cooperation agreement is analogous to a plea bargain agreement." United States v. Carrillo, 709 F.2d 35, 36 (9th Cir. 1983) (citation omitted).
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