FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v. Ching Feng 767, 12 FSM Intrm. 498 (Pon. 2004)

[12 FSM Intrm. 498]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

CHING FENG 767, a Fishing Vessel; KEIHO FISHERY CO., LTD.; HUANG CHENG I.;
TAIWAN DEEP SEA TUNA BOATOWNERS AND EXPORTERS ASSOCIATION,
Defendants.

CRIMINAL CASE NO. 2001-503

MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Hearing: April 24, 2002
Order Entered: May 1, 2002
Memorandum Entered: June 16, 2004

APPEARANCES:

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

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

For the Defendants (Keiho Fishery Co.) (Taiwan Deep Sea):
Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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[12 FSM Intrm. 499]

HEADNOTES

Criminal Law and Procedure
The national criminal code signed into law on January 25, 2001, does not apply to acts committed before its effective date, and prosecutions for offenses committed before the effective date are governed by the prior law, which is continued in effect for that purpose. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 501 (Pon. 2004).

Criminal Law and Procedure
Under previous law, A felony is an offense which may be punished by imprisonment for more than one year; a petty misdemeanor is an offense which may be punished by imprisonment for not more than 30 days; and every other offense is a misdemeanor. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 501 (Pon. 2004).

Criminal Law and Procedure
When, for the offenses charged, a defendant convicted of the crime cannot be subjected to any imprisonment, the offenses are classified as petty misdemeanors. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 501 (Pon. 2004).

Statutes of Limitation - Criminal Offenses
Prosecution for a petty misdemeanor must be commenced within six months after it is committed. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 501 (Pon. 2004).

Criminal Law and Procedure - Dismissal
The attorney for the government may by leave of court file a dismissal of an information or complaint. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 502 (Pon. 2004).

Criminal Law and Procedure - Dismissal; Marine Resources; Settlement
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; therefore criminal litigation can be dismissed only by obtaining leave of the court. In a fishing case where criminal and civil cases are filed together, and the dismissal of the criminal proceeding(s) is obviously "integral" to the settlement agreement for which court approval is sought, the same policy considerations apply to the settlement of the civil proceeding(s) as apply to the criminal dismissal. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 502, 504 (Pon. 2004).

Criminal Law and Procedure - Dismissal
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 Intrm. 498, 502, 504 (Pon. 2004).

Criminal Law and Procedure - Dismissal
The court is required to exercise sound judicial discretion in considering a request for dismissal. This requires that the court have factual information supporting the request. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 504 (Pon. 2004).

Criminal Law and Procedure - Dismissal
Rule 48 contemplates public exposure of the reasons for a prosecution’s abandonment in order to prevent abuse of the power of dismissal. The court must be satisfied that the reasons advanced for dismissal are substantial and are the real grounds upon which dismissal is required. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 504 (Pon. 2004).

[12 FSM Intrm. 500]

Marine Resources
A purpose of Title 24 is to protect marine resources, which are vital to the people of the FSM, from abusive fishing practices. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 504 (Pon. 2004).

Criminal Law and Procedure - Dismissal; Marine Resources
Title 24 establishes agencies to conclude fishing agreements and establish regulations for the exploitation of FSM marine resources. In fishing cases where the prosecution seeks a dismissal, the court should be presented with evidence that appropriate agencies have been involved in the resolution of the case(s). FSM v. Ching Feng 767, 12 FSM Intrm. 498, 504 (Pon. 2004).

Criminal Law and Procedure - Dismissal; Statutes of Limitation - Criminal Offenses
Dismissal of a case is warranted when the statute of limitation applicable to both of the counts in the criminal information had elapsed before the case was filed. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 504-05 (Pon. 2004).

Marine Resources
Protecting marine resources from abusive fishing practices is an important goal. FSM v. Ching Feng 767, 12 FSM Intrm. 498, 505 (Pon. 2004).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On May 1, 2002, this court entered an order granting plaintiff’s motion to dismiss and directing clerk of court to return bail. This memorandum of decision discusses the reasoning behind the decision to grant plaintiff’s motion to dismiss.

Oral argument was heard on the motion on April 24, 2002. At the hearing, Assistant Attorney General Catherine L. Wiehe appeared on behalf of the FSM. Stephen Finnen appeared on behalf of defendant Huang Cheng I. Defendants Keiho Fishery Co., Ltd. and Taiwan Deep Sea Tuna Boatowners and Exporters Association were represented by Craig Reffner.

Factual Background

On November 23, 2001, plaintiff FSM filed a criminal information against defendants claiming that defendants violated 24 F.S.M.C. 501(2) by fishing without a permit, and for alleged failure to abide by a foreign fishing agreement in violation of 24 F.S.M.C. 501(1)(a). On November 23, 2001, the FSM also filed a civil complaint against the same defendants alleging two causes of action. The first cause of action alleged defendants violated 24 F.S.M.C. 501(2) by fishing without a permit. The second cause of action alleged that defendants violated a foreign fishing agreement in violation of 24 F.S.M.C. 501(1)(a).

The alleged acts leading to plaintiff’s institution of both the civil and criminal actions are that on 

[12 FSM Intrm. 501]

December 21, 2000, FSM Surveillance Officer Roland Isisaki and In-Port Inspector Nicholas Raifmai boarded the defendant vessel Ching Feng 767 at the Pohnpei Port at Deketik to conduct a routine inspection of the vessel and its logbooks. They inspected the vessel’s radio beacon logbook and observed that on November 20, 2000 the vessel dropped its radio beacons at seven different positions in the FSM EEZ.

Plaintiff alleged that pursuant to 24 F.S.M.C. 102(22)(c), "the placing, searching for, or recovery of fish aggregating devices or associated electronic equipment such as radio beacons" constitutes fishing. Isisaki and Raifmai further inspected the vessel’s fishing permit and discovered that the vessel’s most current fishing permit was valid from December 6, 2000 to December 5, 2001, and that the previous permit was valid from November 18, 1999 to November 17, 2000. Since defendants did not possess a valid permit on November 20, 2000, by placing the vessel’s radio beacons in FSM waters on November 20, 2000, plaintiff alleges that defendants were fishing illegally.

1. Plaintiff’s Motion to Dismiss

On February 25, 2002, plaintiff FSM filed a motion to dismiss pursuant to Rule 48(a) of the FSM Rules of Criminal Procedure. In its motion, plaintiff states it believes that dismissing this action would best serve the interests of justice, acknowledging the arguments in the defendants’ joint motion to dismiss.

Previously, on February 15, 2002, defendants filed a joint motion to dismiss for untimely filing of [the criminal] information ("the joint motion to dismiss"), in which defendants argue for dismissal of the criminal action, relying upon the statute of limitations provided in Title 11 of the FSM Code.

Defendants’ joint motion to dismiss argues that the allegations in the criminal information allege two crimes: (1) a violation of 24 F.S.M.C. 501(2) for fishing without a license. The penalties for violating this section are provided in section 503(6) - a fine of not less than $500,000; there is no term of imprisonment. The second alleged crime is a violation of 24 F.S.M.C. 501(1)(a), violation of a foreign fishing agreement. This violation has criminal penalties outlined in 24 F.S.M.C. 503(2) which prescribes a fine of not less than $10,000 and not more than $500,000; there is no term of imprisonment.

Defendants argue that the criminal information was filed on November 23, 2001. The acts alleged occurred on November 20, 2000. The alleged discovery of these acts occurred on December 21, 2000.

On January 25, 2001, Public Law No. 11-72 was signed into law. 11 F.S.M.C. 102 provides that the new law does not apply to acts committed before its effective date, and that prosecutions for offenses committed before the effective date are governed by the prior law, which are continued in effect for that purpose. Under previous law, 11 F.S.M.C. 104(1) classified crimes as follows: "A ‘felony’ is an offense which may be punished by imprisonment for more than one year. A ‘petty misdemeanor’ is an offense which may be punished by imprisonment for not more than 30 days. Every other offense is a ‘misdemeanor.’"

The two offenses alleged in the criminal prosecution solely seek fines, which means that a defendant convicted of either of these crimes would not be subject to any imprisonment. As a result, for the time limits on prosecution, these offenses are classified as "petty misdemeanors." Under former law, 11 F.S.M.C. 105(2) provided that the prosecution for a petty misdemeanor must be commenced within six months after it is committed. Therefore, the FSM had six months from November 20, 2000 to institute prosecution. Since the FSM failed to file the criminal information in this case within that 

[12 FSM Intrm. 502]

time period, it is untimely and must be dismissed.

The FSM acknowledges that the case should indeed be dismissed pursuant to FSM Criminal Rule 48(a), as the criminal information was not timely filed.

Rule 48(a) of the FSM Rules of Criminal Procedure provides that the attorney for the government may by leave of court file a dismissal of an information or complaint and the prosecution shall thereupon terminate. In FSM v. Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon. 1987), the court stated that 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; therefore criminal litigation can be dismissed only by obtaining leave of court. 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. Yue Yuan Yu No. 346, 7 FSM Intrm. 162 (Chk. 1995).

The FSM argues that case should be dismissed as a bona fide reason exists for the dismissal of the charges brought against the defendants were not brought in a timely manner and the statute of limitations had expired prior to the action being filed.

2. Argument at Hearing

On April 24, 2002, oral argument was heard on the plaintiff’s motion to dismiss. The court informed the parties that Rule 48(a) of the FSM Rules of Criminal Procedure requires the prosecution to seek leave of court to file a dismissal of the case. Plaintiff’s counsel stated that on February 15, 2002, defendants filed a joint motion to dismiss; plaintiff seeks a dismissal for the reasons set forth in the joint motion to dismiss as it believes the motion is well founded and legally correct that a dismissal of this matter is mandated due to the fact the statute of limitations on the action had run prior to the action being filed.

Plaintiff’s counsel stated that Title 24, under which both counts were brought, does not include a provision discussing the applicable statute of limitations on criminal actions brought under that title. Therefore, the court must look to the statute of limitations provisions in Title 11 of the FSM Code. In the joint motion to dismiss, defendants pointed out that since the two alleged offenses only provided for fines and not imprisonment, these crimes would be classified as petty misdemeanors under prior Title 11 F.S.M.C. 104(1). And under former 11 F.S.M.C. 105(2)(d), the prosecution for a petty misdemeanor must be commenced within six months after [the crime] is committed.

Plaintiff’s counsel pointed out that the alleged violations occurred on November 20, 2000, and that this action was not filed until November 23, 2001. Plaintiff’s counsel stated that typically in fishing cases involving violations of Title 24, a criminal information and a civil complaint are filed almost immediately and that the vessel is seized and made a defendant under the FSM Supreme Court’s in rem jurisdiction. In this matter, for some reason the assistant attorney general handling the case did not bring the action at the time the violations were reported. When the case was assigned to Ms. Wiehe, she was unaware of the six month statute of limitation and held off filing the case until the vessel came back into port in the FSM, at which time the vessel could be seized by court process. However, the FSM was not able to determine the location of the vessel.

When the vessel finally returned, the FSM instituted the action, but by the time the criminal summons was issued the boat had left port again. Plaintiff’s counsel stated that since typically these types of cases are brought almost immediately, she had never faced a statute of limitations problem. Ms. Wiehe stated that this matter was originally handled by Assistant Attorney General Anthony Welch, 

[12 FSM Intrm. 503]

and that she did not know why proceedings had not been initiated immediately. This matter was later assigned to her in early 2001.

The court inquired of how the assignment of cases is handled at the FSM Attorney General’s Office. Ms. Wiehe stated that sometimes cases are reassigned to equalize the workload among the attorneys. Typically reassignment of cases is supervised by the Secretary of Justice, but Ms. Wiehe stated she was not certain whether this case may have been directly transferred from Mr. Welch to her without knowledge of the Secretary of Justice.

The court then asked how dismissals are handled at the FSM Attorney General’s Office. Ms. Wiehe stated the final decision is typically made by the Secretary of Justice; the assistant attorney generals advise the Secretary on the matter, and the Secretary then makes the decision as to how the office will proceed. The court inquired as to how is it determined by the FSM Attorney General’s Office what is in the "public interest." Ms. Wiehe stated that the decision is made by the Secretary of Justice, the Assistant Attorney General handling the case, and the applicable governmental agency, if one is involved.

In this matter, the governmental agency involved in this case was the National Oceanic Resource Management Authority ("NORMA"), formerly known as the Micronesian Maritime Authority ("MMA"). However, in this case the agency was not consulted as to the dismissal.

The court asked why, if the vessel had been in port two times after the violations had occurred, the vessel had not been seized. Ms. Wiehe stated she was never informed by the officers as to when the boat was in port. She stated she had asked the surveillance officers to notify the Attorney General’s office when the Ching Feng 767 came into port, but she received no notification until November of 2001.

The court inquired of plaintiff’s counsel as to her opinion as to whether the dismissal of this criminal matter is in the public interest. Ms. Wiehe stated that the factors to consider in determining whether a dismissal [of the case] is in the public interest include whether the dismissal involved any harassment of the defendants and whether a bona fide reasons exists for the dismissal. Ms. Wiehe stated that, in this case, the proceedings were initiated in good faith, and that she was unaware of the short time limit of the statute of limitations on petty misdemeanors. Further, the bona fide reason for dismissal is that the plaintiff cannot legally proceed because the statute of limitations has expired.

Mr. Reffner, counsel for defendant Keiho Fishery Co., Ltd., stated that he agrees with the government’s position that it has no choice but to dismiss this criminal matter since the statute of limitations precludes it from having a legally cognizable claim. Additionally, the civil action is still pending. Mr. Reffner stated the case FSM v. Ocean Pearl, 3 FSM Intrm. 87 (Pon. 1987) requires that the dismissal of this case be in the public interest; in this case the government’s actions were merely an oversight, not an attempt to harass the defendants.

Mr. Finnen, counsel for defendant Huang Ching I, stated that what the court examines under the Ocean Pearl case is whether the government is abusing its prosecutorial discretion; in other words, the government should be barred from continually dismissing and re-filing the same case. Mr. Finnen further stated that in this case, the public interest requires that the court force strict compliance with the law, and that the court provide due process to the defendants. The FSM Congress has placed limits on the time frame in which the government may bring criminal actions.

Mr. Finnen stated that in this case, when the plaintiff realized its mistake, it immediately moved to dismiss the criminal matter. And he stated this was the appropriate action to take; once the FSM 

[12 FSM Intrm. 504]

was aware the statute of limitations had expired, it was obligated to dismiss the charges, and this court is obligated to grant the FSM’s motion to dismiss this case.

Analysis

In FSM v. Ocean Pearl, 3 FSM Intrm. 87 (Pon. 1987), the court stated that "[w]hile 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; therefore criminal litigation can be dismissed only by obtaining leave of the court." Further, the court determined that, in a fishing case where criminal and civil cases are filed together, and the dismissal of the criminal proceeding(s) is obviously "integral" to the settlement agreement for which court approval is sought, the same policy considerations apply to the settlement of the civil proceeding(s) as apply to the criminal dismissal.

In Ocean Pearl, initial settlement negotiations between the FSM and the defendants resulted in a settlement in the amount of $65,000. The defendants included a United States company and ship. When it came to light that the defendants would be seeking reimbursement of the $65,000 penalty from the U.S. Fisherman’s Protection Act, which could conceivably result in the U.S. seeking reimbursement from the FSM (most likely by withholding compact funds) in that amount, the FSM wished to include language in the settlement agreement which would condition the settlement upon the U.S. not imposing economic sanctions on the FSM as a result. Defendants refused to include such language. When settlement negotiations broke down, defendants filed a motion to enforce the earlier agreement.

In Ocean Pearl, the court denied defendants’ motion to enforce the settlement as it found that there might be reasons why a prosecutor should retain discretion to abort a plea agreement upon learning information subsequent to execution of a written plea agreement but before presentation of the agreement to the court. 3 FSM Intrm. at 91.

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. Yue Yuan Yu No. 346, 7 FSM Intrm. 162 (Chk. 1995).

This court is required to exercise sound judicial discretion in considering a request for dismissal. This requires that the court have factual information supporting the request. Rule 48 contemplates public exposure of the reasons for the abandonment of a prosecution in order to prevent abuse of the power of dismissal. The court must be satisfied that the reasons advanced for dismissal are substantial and are the real grounds upon which the dismissal is requested.

A purpose of Title 24 F.S.M.C. is to protect marine resources which are vital to the people of the FSM from abusive fishing practices. The FSM Code vests the prosecutor with the authority and responsibility to seek substantial fines for violations of the title, in this case fines of up to $15,000,000. Title 24 also establishes agencies to conclude fishing agreements and establish regulations for the exploitation of marine resources in the FSM. In fishing cases such as this, the court should be presented with evidence that appropriate agencies have been involved in the resolution of the case(s).

This court finds that dismissal of this case is warranted as the statute of limitation applicable to both of the counts in the criminal information had elapsed. Prior law [11 F.S.M.C. 105(2)(d)] provided that the prosecution for a petty misdemeanor must be commenced within six months after the offense is committed.

[12 FSM Intrm. 505]

The criminal information, filed on November 23, 2001, states that the alleged acts occurred on November 20, 2000. Clearly, this is longer than a six month time period and the statute of limitations had run such that the plaintiff had no legal grounds to bring its action against defendants.

The FSM Government has reason to be concerned that the FSM Attorney General’s office is not handling these matters with reasonable diligence. When Congress enacted Title 24, it charged the FSM Attorney General with the responsibility to protect marine resources which are vital to the people of the FSM. Thus, the court is very concerned that it must dismiss this matter on a procedural technicality when it is possible that defendants have violated provisions of Title 24. Additionally, if the FSM has no legal basis to bring an action (for example, as in this case, the statute of limitations had elapsed), it should not be harassing defendants with baseless claims.

The court hopes that this case will be a reason that the FSM improves its procedures when investigating and prosecuting crimes under Title 24. When the FSM fails to exercise reasonable diligence in the institution and prosecution of a criminal case, it wastes the time and money of the court and any defendants involved. Protecting marine resources from abusive fishing practices is an important goal. The court expects the government to evaluate its policies and practices in this area and make the appropriate changes such that this situation does not reoccur in the future.

Summary

1. The criminal offenses in this matter were alleged to have occurred on November 20, 2000. The case was assigned to Assistant Attorney General Anthony Welch. Nothing was done on the case by the FSM, however, until the case was reassigned by Mr. Welch to Assistant Attorney General Catherine Wiehe in early 2001.

2. On November 23, 2001, the Criminal Information in this matter was filed.

3. In February of 2002, defendants filed a Joint Motion to Dismiss the case pursuant to Rule 48(a).

4. During the period of November 2000 through January 2001, the FSM never took any action to institute criminal prosecution.

5. When the FSM finally filed the Criminal Information, the statute of limitation had already run.

6. It is not clear to the Court why the FSM did not take any action on the case during the period of November 2000 through early 2001.

7. Plaintiff’s counsel said she was not aware of the statute of limitation then.

8. According to Plaintiff’s counsel, the FSM surveillance people did not inform her where the vessel was in port. The vessel had been in port twice after the time it was inspected by surveillance and the inspector.

9. It is not clear whether the reassignment of the case to counsel Wiehe was done through the usual case assignment procedure in the Department of Justice; there is indication that the reassignment was not done through the Department’s usual procedure for case assignment.

Conclusion

1. This is a situation which resulted from total lack of diligence, from inattention to public duty, and 

[12 FSM Intrm. 506]

absence of effort, coordination and communication between and among the FSM Department of Justice and enforcement agencies under the Department’s control.

2. The Court is very concerned that it must dismiss this very important case on a procedural technicality in a situation where it is possible the defendant violated the laws that is are designed to protect the interests of the FSM Government and its people.

Given the unfortunate situation we are faced with because the statute of limitation has run, it is with profound reluctance that the Court has had to dismiss this case.

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