FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

Cite as Zhang Xiaohui v. FSM, 15 FSM Intrm. 162 (App. 2007)

ZHANG XIAOHUI, fishing master of
Hai-Shun, a carrier vessel,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. P1-2007
(CRIMINAL CASE NO. 2006-500)

ORDER OF DISMISSAL

Decided: July 2, 2007

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
Hon. Camillo Noket, Temporary Justice, FSM Supreme Court*

* Chief Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCES:

For the Appellant:
Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

For the Appellee:
Marstella Jack, Esq.
Secretary of Justice
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

[15 FSM Intrm 169]

* * * *

HEADNOTES

Appellate Review - Decisions Reviewable
Neither the Criminal Procedure nor the Appellate Procedure Rules provide for an appeal in a criminal case before a final decision, although interlocutory appeals may be made by permission in civil cases. Neither FSM Code, Title 12 (criminal procedure) nor Title 4 (Judiciary Act) authorize interlocutory criminal appeals. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 166 (App. 2007).

Admiralty; Appellate Review - Decisions Reviewable
Interlocutory appeals in civil admiralty and maritime cases may be made under Appellate Rule 4(a)(1)(D) but that rule does mot apply in a criminal case. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 166 n.1 (App. 2007).

Appellate Review - Decisions Reviewable
In criminal cases, appeals are permitted from all final decisions of the FSM Supreme Court trial division. It is thus a final decision, not a final judgment, that is reviewable under Appellate Rule 4(b). Only the sentence constitutes a final judgment in a criminal case, so a final judgment finding an accused guilty and imposing a sentence is always a final decision. However, a final decision may also be one of those small class of orders referred to as collateral orders. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 166 (App. 2007).

Appellate Review - Decisions Reviewable
Immediate appeals from orders that are not final judgments will sometimes be necessary when they have a final and irreparable effect on the rights of the parties or non-parties. An immediate appeal may be taken, from that small class of orders that finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 166-67 (App. 2007).

Appellate Review - Decisions Reviewable; Bail; Criminal Law and Procedure - Double Jeopardy
An accused’s claim that he was previously put in jeopardy and is about to be tried again for the same offense is a collateral order that is immediately appealable because it is a final decision, as is the denial of an accused’s motion for reduction of bail on the ground that it is unconstitutionally excessive. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167 & n.2 (App. 2007).

[15 FSM Intrm 170]

Appellate Review; Criminal Law and Procedure
Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courts’ cases, when an FSM court has not previously construed an FSM rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167 n.3 (App. 2007).

Appellate Review - Decisions Reviewable; Criminal Law and Procedure - Double Jeopardy
Because reversal on appeal from a conviction following a second trial comes too late to afford an accused protection against being twice put to trial for the same offense, an order denying a motion to dismiss on the ground that the accused had previously been tried for that offense is a final decision and thus appealable. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167 (App. 2007).

Criminal Law and Procedure - Double Jeopardy
The right not to be tried more than once and the right not to receive multiple convictions and punishments for the same offense are both protected by the double jeopardy clause but they are conceptually distinct rights. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167 (App. 2007).

Appellate Review - Decisions Reviewable; Criminal Law and Procedure - Double Jeopardy
When the double jeopardy claim involves protection against multiple punishment, not the protection against being put on trial a second time, the rationale for granting pretrial appeals does not apply. There is no right to an immediate appeal from a double jeopardy claim of multiple punishments because that right can be fully vindicated on an appeal following a final judgment and therefore is not an immediately appealable final decision. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167 (App. 2007).

Appellate Review - Decisions Reviewable; Criminal Law and Procedure - Double Jeopardy
A pretrial double jeopardy appeal will be dismissed as not from a final decision when the double jeopardy claim is not based on a claim that the defendants had been previously put in jeopardy. The "collateral order" exception for double jeopardy claims is limited to former jeopardy claims and an appellate court lacks jurisdiction to entertain an immediate pretrial appeal of a trial court denial of a motion to dismiss based on multiple punishment grounds. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167 (App. 2007).

Appellate Review - Decisions Reviewable; Criminal Law and Procedure - Double Jeopardy
When an appellant asks to be advised on whether, if he goes to trial, and if he is convicted on more than one count, and then if he is sentenced on more than one count, would his sentence then violate his right not to be subjected to double jeopardy, any ruling the appellate court could make would be in the nature of an advisory opinion and the court does not have the jurisdiction to issue advisory opinions. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167-68 (App. 2007).

Appellate Review - Decisions Reviewable; Criminal Law and Procedure - Dismissal
Denials of motions to dismiss on grounds such as a challenge to the sufficiency of the indictment are not immediately appealable by an accused, even if contained in a motion to dismiss on double jeopardy grounds. An order denying a motion to dismiss a charging document because it is defective is not "collateral" in any sense of that term because it goes to the heart of the issues to be resolved at trial. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 168 (App. 2007).

Appellate Review - Decisions Reviewable
An accused cannot file interlocutory appeals from orders denying motions to suppress evidence, orders granting or denying discovery, orders denying or granting a transfer or change of venue and denial of motions challenging indictments on various grounds. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 168 (App. 2007).

[15 FSM Intrm 171]

Appellate Review - Decisions Reviewable; Criminal Law and Procedure - Dismissal
Denial of a defense motion to dismiss ordinarily is not final. Thus, appeals from a denial of a defense motion to dismiss based on challenges to the charging document’s sufficiency or failure to charge an offense or and many other grounds will be dismissed. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 168 (App. 2007).

Appellate Review - Decisions Reviewable
The three requirements for an appeal under the collateral order doctrine are that the order appealed from must: 1) conclusively determine the disputed question; 2) resolve an important issue completely separate from the merits of the action; and 3) be effectively unreviewable on appeal from a final judgment. If an order meets all three of these requirements, it is a final decision and is immediately appealable. Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 168 (App. 2007).

* * * *

COURT’S OPINION

MARTIN YINUG, Associate Justice:

This is an interlocutory appeal from a criminal case. We dismiss this appeal for lack of jurisdiction. Our reasons follow.

I. Background

The criminal information filed against defendant Zhang Xiaohui charges him with four separate violations of 19 F.S.M.C. 425 for his alleged act, while the master of a vessel, of failing to render assistance to four people found in distress at sea in one boat. Zhang filed the following motions:

1) a motion to dismiss, on the ground that, in his view, under Title 19, the information should have been prosecuted in the name of the Secretary of Transportation, not the Federated States of Micronesia and since it was not, the court lacked subject matter jurisdiction, and on the ground that the Secretary was required by Title 19 to undertake an investigation before the Secretary could file the information, but had not done so;

2) a motion to prohibit the Secretary of Justice from supervising prosecution of the case on the ground that the Secretary of Justice has a disciplinary proceeding pending against her; and

3) a motion for merger of the four counts on the ground that, if the counts were not merged, Zhang could be convicted and sentenced on all four counts, which would, in his view, violate the constitutional protection against double jeopardy.

On April 27, 2007, the trial court denied these motions [FSM v. Zhang Xiaohui, 14 FSM Intrm. 602 (Pon. 2007)] on the grounds that:

1) the defects noted by Zhang were technical defects that did not prejudice the accused and therefore were not grounds for dismissal and that the prosecution was ordered to file an amended information signed by the Secretary of Transportation and by an attorney authorized to appear before the FSM Supreme Court, and that an investigation by the Secretary was not a mandatory prerequisite to the filing of an information;

2) the Secretary was a member of the bar in good standing since no discipline had as yet been imposed, and, since pending disciplinary proceedings are, by rule, confidential this motion would be stricken from the record; and

[15 FSM Intrm 172]

3) the legislative intent behind 19 F.S.M.C. 425 was to punish a vessel’s master for each person in distress he found at sea to whom he failed to render assistance so the double jeopardy clause’s protection against multiple punishments for the same offense was not implicated and merger of the four counts was denied.

II. Appellant’s Issues

On May 1, 2007, Zhang appealed. In his Statement of Issues, filed the same day, Zhang contended: 1) that the trial court erred by denying his motion to dismiss without prejudice a defective criminal information for lack of jurisdiction; 2) that the trial court erred by ordering the government to file an amended information with instructions on how the information was to be styled and which attorney should file it; and 3) that the criminal information which alleges violations of FSM maritime law did not vest jurisdiction in the court because it failed to comply with Title 19’s express requirements.

III. Jurisdictional Question

Since neither the Criminal Procedure nor the Appellate Procedure Rules specifically provide for an appeal in a criminal case before a final decision, whether this appeal could be heard was a matter of first impression. We therefore, on June 6, 2007, issued an order requiring the parties to file briefs on the issue of whether we have jurisdiction to hear this interlocutory criminal appeal, in effect, the order was a sua sponte motion to dismiss. On June 15, 2007, both Zhang and the government filed their briefs on the jurisdiction issue.

Zhang contends that the court has jurisdiction to hear this appeal under the collateral order doctrine. Zhang contends that the trial court’s denial of his motion to dismiss on the ground that the trial court lacked subject matter jurisdiction is a matter collateral to Zhang’s guilt or innocence and is thus a final decision and appealable. He contends that the trial court does not have subject matter jurisdiction to hear this case because the government failed, in his view, to comply with the Title 19’s express requirements that the Secretary of Transportation investigate and prosecute this case. He asserts that if he were required to try this case prior to an appeal, it would not be subject to correction after the case’s conclusion. Zhang relies on Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651, (1977); Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 1 (1951); and Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). We find these cases persuasive but do not reach the same conclusion that Zhang does.

[15 FSM Intrm 173]

IV. Discussion

Neither the Criminal Procedure nor the Appellate Procedure Rules provide for an appeal in a criminal case before a final decision, although interlocutory appeals may be made by permission in civil cases. FSM v. Wainit, 12 FSM Intrm. 201, 203 (Chk. 2003). Neither FSM Code, Title 12 (criminal procedure) nor Title 4 (Judiciary Act) authorize interlocutory criminal appeals. "In criminal cases appeals are permitted from: (1) all final decisions" of the Federated States of Micronesia Supreme Court trial division. FSM App. R. 4(b). It is thus a final decision, not a final judgment, that is reviewable under Appellate Rule 4(b). Only the sentence constitutes a final judgment in a criminal case. FSM Crim. R. 32(b); see also Neth v. Kosrae, 14 FSM Intrm. 228, 231 (App. 2006). A final judgment finding an accused guilty and imposing a sentence is always a final decision. However, a final decision may also be one of those small class of orders referred to as "collateral orders."

The appellate division has recognized that immediate appeals from orders that are not final judgments will sometimes be necessary when they have a final and irreparable effect on the rights of the parties or non-parties. An immediate appeal may be taken, from that small class of orders that finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. FSM Dev. Bank v. Adams, 12 FSM Intrm. 456, 461 (App. 2004) (relying on Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225-26, 93 L. Ed. 1528, 1536 (1949)). These "collateral orders" are thus final decisions.

An accused’s claim that he was previously put in jeopardy and is about to be tried again for the same offense is one such collateral order that is immediately appealable because it is a final decision. Abney v. United States, 431 U.S. 651, 659-62, 97 S. Ct. 2034, 2040-42, 52 L. Ed. 2d 651, 660-62 (1977) (also relying on Cohen). This is because reversal on appeal from a conviction following a second trial comes too late to afford an accused protection against "being twice put to trial for the same offense." Id. at 661, 97 S. Ct. at 2041, 52 L. Ed. 2d at 661 (emphasis in original). Thus, an order denying a motion to dismiss on the ground that the accused had previously been tried for that offense was a final decision and thus appealable. Id. at 662, 97 S. Ct. at 2042, 52 L. Ed. 2d at 662.

That rationale does not apply here. Zhang has not yet been tried once - not yet been put in jeopardy. Zhang’s double jeopardy claim arises only if he has been convicted on more than one count and then punished on more than one count. Zhang’s multiple punishment claim is not based on his having previously been put in jeopardy and now being put in jeopardy for a second time. "The right not to be tried more than once and the right not to receive multiple convictions and punishments for the same offense are both protected by the double jeopardy clause but they are conceptually distinct rights." United States v. Central Liquor Co., 628 F.2d 1264, 1266 (10th Cir. 1980). When the double jeopardy claim involves protection against multiple punishment, not the protection against being put on trial a second time, the Abney rationale for granting pretrial appeals does not apply. State v. Murphy, 537 N.W.2d 492, 495 (Minn. Ct. App. 1995). There is no right to an immediate appeal from a double jeopardy claim of multiple punishments because that right can be fully vindicated on an appeal following a final judgment and therefore is not an immediately appealable final decision. State v. Ontiveros, 923 P.2d 388, 393 (Haw. 1996). A pretrial double jeopardy appeal will be dismissed as not from a final decision when the double jeopardy claim is not based on a claim that the defendants had been previously put in jeopardy. Central Liquor Co., 628 F.2d at 1266. The Abney "collateral order" exception for double jeopardy claims is limited to former jeopardy claims and an appellate court lacks jurisdiction to entertain an immediate pretrial appeal of a trial court denial of a motion to dismiss based on multiple punishment grounds. United States v. Ramirez-Burgos, 44 F.3d 17, 18-19 (1st Cir. 1995).

[15 FSM Intrm 174]

Essentially what Zhang is asking for on the double jeopardy question is to be advised on whether, if he goes to trial, and if he is convicted on more than one count, and then if he is sentenced on more than one count, would his sentence then violate his right not to be subjected to double jeopardy. Any ruling we would make at this time would be in the nature of an advisory opinion. We do not have the jurisdiction to issue advisory opinions. Fritz v. National Election Dir., 11 FSM Intrm. 442, 444 (App. 2003).

Zhang also generally asserts that the trial court lacks subject matter jurisdiction to try his case and that the trial court’s denial of his motion to dismiss on this ground is an appealable final decision. This claim seems based on his assertion that the Secretary of Transportation did not conduct his own investigation before the case was filed against him and because the case was filed with the Federated States of Micronesia, not the Secretary, named as the plaintiff. Zhang does not assert that the FSM Supreme Court does not have jurisdiction to try defendants charged with violations of 19 F.S.M.C. 425 or that some other court has exclusive jurisdiction over the offenses charged. His assertion is that, in his view, certain things had to be done by certain persons before an information could be filed charging him with violating 19 F.S.M.C. 425 and that those things were not done. This assertion is a claim that the information is defective.

Denials of motions to dismiss on grounds such as a challenge to the sufficiency of the indictment are not immediately appealable by an accused, even if contained in a motion to dismiss on double jeopardy grounds. Abney, 431 U.S. at 663, 97 S. Ct. at 2042, 52 L. Ed. 2d at 662. An order denying a motion to dismiss a charging document because it is defective is not "‘collateral’ in any sense of that term" because it goes to the heart of the issues to be resolved at trial. Id. An accused cannot file interlocutory appeals from "orders denying motions to suppress evidence, orders granting or denying discovery, orders denying or granting a transfer or change of venue and denial of motions challenging indictments on various grounds." 3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 26.2(c), at 190 (1984) (footnotes omitted). "Denial of a defense motion to dismiss ordinarily is not final." 15B Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3918.3, at 454 (2d ed. 1992). Appeals from a denial of a defense motion to dismiss based on challenges to the sufficiency of the charging document or failure to charge an offense or and many other grounds will be dismissed. Id. at 454-55.

The three requirements for an appeal under the collateral order doctrine are that the order appealed from must: 1) conclusively determine the disputed question; 2) resolve an important issue completely separate from the merits of the action; and 3) be effectively unreviewable on appeal from a final judgment. Adams, 12 FSM Intrm. at 461. If an order meets all three of these requirements, it is a final decision and is immediately appealable.

None of Zhang’s asserted issues satisfies any of these three elements and all of his challenges are reviewable on appeal from a conviction if one is had. None are completely separate from the action. The April 27, 2007 order is thus not a final decision that is otherwise unreviewable.

V. Conclusion

Accordingly, Zhang Xiaohui’s appeal is dismissed for lack of jurisdiction.

* * * *

[15 FSM Intrm 175]

Footnotes: