FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2003-1508

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

ROOSEVELT D. KANSOU 
and FRANK CHOLYMAY,
Defendants.
__________________________________________________

MEMORANDUM OF DENIAL OF MOTIONS

Dennis K. Yamase
Associate Justice

Argued: January 19, 2008
Decided: January 21, 2008

APPEARANCES:

For the Plaintiff: Pole Atanraoi, Esq.
FSM Assistant Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Scott Garvey, Esq. (Kansou)
P.O. Box 114
Kolonia, Pohnpei FM 96941

For the Defendant: Andrea S. Hillyer, Esq. (Cholymay)
P.O. Drawer D
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure  Speedy Trial

When it was the prosecution's witnesses who were either unavailable or whose memory failed, the defendants were not prejudiced and may even have benefitted from the delay. When the defendants do not state that any particular defense witness now had an impaired memory or was no longer available, or what that witness would have testified to if his or her memory were not impaired, this does not show prejudice. The failure of a prosecution witness's memory does not support a dismissal for unnecessary delay claim. FSM v. Kansou, 15 FSM Intrm. 481, 482 (Chk. 2008).

Criminal Law and Procedure  Conspiracy

A co-conspirator's criminal liability is not predicated on the last overt act that that co-conspirator committed, or even on whether that co-conspirator committed any overt act. It is based on an overt act having been taken by any co-conspirator. FSM v. Kansou, 15 FSM Intrm. 481, 482 (Chk. 2008).

Criminal Law and Procedure  Conspiracy

By claiming that he could not have committed any overt act in pursuance of the conspiracy after December 1999, a defendant appears to be asserting the defense of withdrawal from the conspiracy. That defense is very limited. It is an affirmative defense that the accused, under circumstances showing a complete and voluntary renunciation of his criminal intent, made a reasonable effort to prevent the conduct or result which is the object of the conspiracy. When no evidence was ever presented, and the accused never asserted, that he made any effort, let alone a reasonable effort to prevent the conduct or result which was the object of the conspiracy, he cannot claim withdrawal or renunciation as a ground for dismissal. FSM v. Kansou, 15 FSM Intrm. 481, 483 (Chk. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On January 19, 2008, before the start of closing arguments, the defendants renewed various motions. Both defendants renewed their motions for dismissal for unnecessary delay and defendant Frank Cholymay moved to dismiss the case against him on the ground that the statute of limitations barred any prosecution of him.

Dismissal for unnecessary delay has been sought on three previous occasions and was extensively briefed and denied each time. FSM v. Kansou, 15 FSM Intrm. 373 (Chk. 2007); FSM v. Kansou, 15 FSM Intrm. 180 (Chk. 2007); FSM v. Kansou, 14 FSM Intrm. 497 (Chk. 2006). The only point the defendants raised in support of their motions to dismiss for unnecessary delay was that they had been prejudiced because the passage of time had dimmed witnesses' memories. However, since it was the prosecution's witnesses who were either unavailable or whose memory failed, the defendants were not prejudiced and may even have benefitted from the delay. This does not show prejudice. The defendants do not state that any particular defense witness now had an impaired memory or was no longer available, or what that witness would have testified to if his or her memory were not impaired. The failure of a prosecution witness's memory does not support a dismissal for unnecessary delay claim. Kansou, 15 FSM Intrm. at 188-89. Accordingly, the renewed motions to dismiss for unnecessary delay were denied.

Defendant Frank Cholymay also moved for dismissal based on the statute of limitations. He asked the court for a finding of the date of the last overt act he was alleged to have taken in the furtherance of the supposed conspiracy. He contended that any overt act he may have taken was outside of the three-year statute of limitations for conspiracy since his employment with the Northern Namoneas Development Authority ended in December 1999, and the information was filed on November 11, 2003. Cholymay's argument fails for two reasons.

First, a co-conspirator's criminal liability is not predicated on the last overt act that that co-conspirator committed, or even on whether that co-conspirator committed any overt act. It is based on an overt act having been taken by any co-conspirator. 11 F.S.M.C. 203(1)(b) ("he or another person with whom he conspired commits an overt act in pursuance of the conspiracy"). The conspiracy was alleged to have been a continuing conspiracy, with overt acts by the owners of Island Imports, who tried, up until 2002 or until the time of the information was filed, to collect money they claimed they were owed because of an alleged conspiracy to divert Northern Namoneas project funds into private hands.

Second, by claiming that he could not have committed any overt act in pursuance of the conspiracy after December 1999, when he left his employ as Executive Director of the Northern Namoneas Development Authority, Cholymay appears to be asserting the defense of withdrawal from the conspiracy. That defense is very limited. "It is an affirmative defense that the defendant, under circumstances showing a complete and voluntary renunciation of his criminal intent, made a reasonable effort to prevent the conduct or result which is the object of the conspiracy." 11 F.S.M.C. 203(3). No evidence was ever presented, and Cholymay never asserted, that he made any effort, let alone a reasonable effort to prevent the conduct or result which was the object of the conspiracy. He therefore cannot claim withdrawal or renunciation as a ground for dismissal.

The motion to dismiss on the statute of limitations ground was accordingly denied.

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