FEDERATED STATES OF MICRONESIA
THE SUPREME COURT TRIAL DIVISION
Cite as FSM v. Tomiya Suisan Co.,11 FSM Intrm. 15 (Yap 2002)

[11 FSM Intrm. 15]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

TOMIYA SUISAN CO., LTD., OFFSHORE TUNA
FISHERIES ASSOCIATION OF JAPAN a/k/a
KINKATSUKYO, AKIHIKO MIYAMOTO,
Defendants.

CRIMINAL CASE NO. 2001-3500

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: June 7, 2002

[11 FSM Intrm. 16]

APPEARANCE:

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

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HEADNOTES

Criminal Law and Procedure - Dismissal
The government may by leave of court file a dismissal of an information and thereupon terminate the prosecution. The purpose for requiring court approval of dismissal of a criminal case is to invest the court with sufficient discretion so that the court may determine that dismissal serves the public interest. FSM v. Tomiya Suisan Co., 11 FSM Intrm. 15, 16 (Yap 2002).

Criminal law and Procedure - Dismissal
Dismissal under Rule 48(a) is appropriate when the government represents that there is insufficient evidence to obtain a conviction. FSM v. Tomiya Suisan Co., 11 FSM Intrm. 15, 16-17 (Yap 2002).

Criminal Law and Procedure - Dismissal
Reasons for which a court may exercise its discretion to dismiss a criminal case are: a plea agreement, the defendant’s death, 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at trial, when a defendant has cooperated with a prosecutorial investigation, and when the indictment has been superseded.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. Tomiya Suisan Co., 11 FSM Intrm. 15, 17 (Yap 2002).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

On May 9, 2002, the FSM faxed to the court’s office in Yap its motion to dismiss this case, and also sought leave to file the motion by fax in order to meet the deadline imposed by this court’s April 30, 2002, notice of possible dismissal. However, the court subsequently received the original of the motion to dismiss by mail. The clerk will file the motion to dismiss today. The fact that the court received the faxed copy of the motion to dismiss within the period specified in the notice of possible dismissal is sufficient to meet the concerns specified in the notice. The motion to file by fax is therefore denied as moot.

Rule 48(a) of the FSM Rules of Criminal Procedure provides in pertinent part that "[t]he attorney for the government may by leave of court file a dismissal of an information . . . and the prosecution shall thereupon terminate." The purpose for requiring court approval of dismissal of a criminal case is to invest the court with sufficient discretion so that the court may determine that dismissal serves the public interest. FSM v. Yue Yuan Yu No. 346, 7 FSM Intrm. 162, 163 (Chk. 1995); FSM v. Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon. 1987). 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 

[11 FSM Inrtm. 17]

represents that there is insufficient evidence to obtain a conviction. Yue Yuan Yu No. 346, 7 FSM Intrm. at 163. Under the similar United States Federal Rule of Criminal Procedure 48(a), reasons for which a court may exercise its discretion to dismiss are a plea agreement, United States v. Cowan, 524 F.2d 504, 514 (5th Cir. 1975), cert denied sub nom., Woodruff v. United States, 425 U.S. 971 (1976); death of the defendant, United States v. Wellborn, 849 F.2d 980, 985 (5th Cir. 1988); defendant’s incompetency to stand trial, United States v. Oberlin, 718 F.2d 894, 895 (9th Cir. 1983); government security interests that might be placed at risk by disclosures at trial, United States v. Friedman, 107 F.R.D. 736, 742 (N.D. Ohio 1985); where a defendant has cooperated with a prosecutorial investigation, United States v. Hamm, 659 F.2d 624, 631 (5th Cir. 1981); and where the indictment has been superseded, United States v. Del Vecchio, 707 F.2d 1214, 1216 (11th Cir. 1983).

In the case at bar, the information involves allegations of illegal fishing by a vessel called the Fumi Maru No. 1 of which the defendant Akihiko Miyamoto was the captain and fishing master. The allegedly illegal fishing activity was apparently observed by a fishing vessel, but neither the Fumi Maru No. 1 nor its captain was arrested at the time the events occurred. The FSM has not been able to locate them subsequently. The vessel apparently no longer has a permit to fish in the FSM. The FSM recites that it will continue to pursue the companion civil case which is based on the same factual allegations. Given these considerations, the court grants the motion to dismiss. The dismissal is without prejudice. 28 James Wm. Moore et al., Moore’s Federal Practice § 648.02[3] (1999).

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