FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Wainit
11 FSM Intrm. 511 (Pon. 2003)

[11 FSM Intrm. 511]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

TADASHI WAINIT,
Defendant.

CRIMINAL CASE NO. 2002-500

PRE-TRIAL ORDER

Martin Yinug
Associate Justice

Decided: May 7, 2003

APPEARANCES:

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

For the Defendant:	Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure - Right to Compel Witnesses
Upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the witness’s presence is necessary to an adequate defense, the government will bear the costs of insuring that the witness is present at trial.  Specifically, this includes travel costs.  FSM v. Wainit, 11 FSM Intrm. 511, 512 (Pon. 2003).

Criminal Law and Procedure - Right to Compel Witnesses
In a criminal case, a witness’s fees and costs need not be tendered at the time of service of the subpoena, a useful precautionary measure.  FSM v. Wainit, 11 FSM Intrm. 511, 513 (Pon. 2003).

Criminal Law and Procedure
One subparagraph of a criminal rule should not be read so as to render another subparagraph unsusceptible to a meaning readily derived from the words employed at best, and indecipherable at worst.  FSM v. Wainit, 11 FSM Intrm. 511, 513 (Pon. 2003).

[11 FSM Intrm. 512]

Criminal Law and Procedure - Right to Compel Witnesses
If a criminal defendant elects to proceed under FSM Criminal Rule 17(b), he should then ascertain from the FSM what that manner of payment is, and how that procedure will work in the event that he is found unable to pay the costs attendant upon securing the presence of his witnesses at trial.  FSM v. Wainit, 11 FSM Intrm. 511, 513 (Pon. 2003).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

The court has been advised that the defendant Tadashi Wainit ("Wainit") has returned to the FSM from Hawaii, where he underwent medical treatment.

The court is scheduled to sit in Pohnpei the week of May 11, 2002.  Pursuant to this court’s order of March 10, 2003, this case will be set for hearing sometime during that week to determine when this case will be set for trial.

An issue for resolution at the status conference is whether Wainit intends to avail himself of the provision of FSM Criminal Rule 17(b) which provides that "upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense," the government will bear the costs of insuring that the witness is present at trial.  Specifically, this includes travel costs.  2 Charles Alan Wright, Federal Practice and Procedure § 272 at 136 (2d ed. 1982).  While the actual application may be made ex parte, Wainit should advise the court whether he expects to proceed under this rule so that in the event of the appropriate showing under the rule, coordination with the FSM of insuring the presence of his witnesses can occur expeditiously.

The court takes this opportunity to clarify a procedural point which has been misunderstood by Wainit.  In his response to the motion for change of venue and renewed motion for speedy trial filed on September 30, 2002, he interprets subparagraph (d) of FSM Criminal Rule 17 and subparagraph (b) of that same rule to mean that taken together, the FSM need not pay for the travel costs of his witnesses if Wainit lacks the financial ability to secure the presence of his witnesses at trial.  Specifically, he urges that

[t]his language [the language of Rule 17(d)] clearly states that the FSM need not pay fees and mileage.  Even if the defendant showed indigence, all of the defendant’s witnesses could be subpoenaed, and their trip to Yap or Kosrae, would be paid in the same manner as if the Government would pay.  However, the Government is not required to pay.  If the Government did not pay, the witness would not go, and the defendant wold have no way to compel the witnesses to be there for him.  There is no protection to the defendant in the event the change of venue is granted.

Subparagraph (b) of FSM Criminal Rule 17 provides in its entirety is as follows:

(b) Defendants Unable to Pay.  The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.  If the court orders the subpoena to be issued the costs incurred by the process and the fees of 

[11 FSM Intrm. 513]

the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.

Subparagraph (d) of that same Rule provides in pertinent part that "[f]ees and mileage need not be tendered to the witness upon service of a subpoena issued in behalf of the Federated States of Micronesia, or any governmental officer or agency charged with the responsibility of enforcing the criminal laws of the national government of the Federated States of Micronesia."  According to Wainit, subparagraph (d) taketh away what subparagraph (b) giveth.  Referring to the just-quoted portion of subparagraph (d), he urges that "[t]his language clearly states that the FSM need not pay fees and mileage."  Such a reading of subparagraph (d) renders subparagraph (b) unsusceptible to a meaning readily derived from the words employed at best, and indecipherable at worst, since subparagraph (b) states that "the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government."

The correct reading of subparagraph (d) is to interpret it to mean what it says on its face, which is that the costs need not be tendered at the time of service, a useful precautionary measure.  That the FSM need not up-front travel costs at the time of service of the subpoena by placing a check in the appropriate amount in the pocket of the subpoenaed individual does not mean that such costs are any less subject to payment by the FSM, but are to be paid in "the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government," as the rule indicates.  If Wainit elects to proceed under FSM Criminal Rule 17(b), then he should ascertain from the FSM what that manner of payment is, and how that procedure will work in the event that he is found unable to pay the costs attendant upon securing the presence of his witnesses at trial.

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