FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2004-1516

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

JACK FRITZ and ROOSEVELT KANSOU,
Defendants.

__________________________________________

ORDER GRANTING LEAVE TO DISMISS

Martin Yinug
Associate Justice

Hearing: October 10, 2008
Decided: October 15, 2008

APPEARANCES:

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

For the Defendant: William E. Minkley, Esq.
(Fritz) Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

For the Defendant: Melissa A. Dineen, Esq.
(Kansou) Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure  Dismissal
 Under Criminal Procedure 48(a), the government's attorney may by leave of court file a dismissal of an information or complaint and the prosecution will thereupon terminate. Although the government has broad discretion in determining whether to initiate a criminal prosecution, once that prosecution is started in the FSM Supreme Court, the court has responsibility for assuring that actions taken thereafter are in the public interest. FSM v. Fritz, 16 FSM Intrm. 175, 176 (Chk. 2008).

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 dismissal power. The court thus must be satisfied that the reasons advanced for dismissal are substantial and in the public interest and are the real grounds upon which the application is based, and it should not be content with mere conclusory statements that the dismissal is in the public interest, but require a statement of the underlying reasons and underlying factual basis. FSM v. Fritz, 16 FSM Intrm. 175, 177 (Chk. 2008).

Criminal Law and Procedure  Dismissal
 A cost-benefit analysis  that the government does not want to bear the expense of trying the case by sending an FSM assistant attorney general from Pohnpei with the attendant airfare, per diem, and car rental costs and with only $1,000 in the budget for witness expenses when the vehicle the defendants were alleged to have conspired to steal from the national government was in its possession, and, after four years' of use since the case was filed, had become rundown and inoperative  is more appropriately made when the prosecution is exercising its discretion in deciding whether to file criminal charges, and not as a ground for leave to dismiss. FSM v. Fritz, 16 FSM Intrm. 175, 177 (Chk. 2008).

Criminal Law and Procedure  Dismissal
 When a new prosecutor stated that she had reviewed the case file and had concluded that the government had insufficient evidence to sustain convictions against the defendants, this is a stronger ground for motion for leave to dismiss. Factors among those customarily considered when the court is determining whether to grant leave to dismiss under Rule 48(a), are whether the dismissal involves any harassment of the defendants and whether a bona fide reason, such as insufficient evidence to obtain a conviction, exists for the dismissal. FSM v. Fritz, 16 FSM Intrm. 175, 177 (Chk. 2008).

Criminal Law and Procedure  Dismissal
 The court may grant leave to file a dismissal when the government doubts it has the evidence to sustain convictions in this case and thus thinks it advisable not to expend more of its limited resources on a prosecution it concludes that it does not have a reasonable chance of completing successfully. The prosecution of the case will terminate once the government's dismissal is filed. FSM v. Fritz, 16 FSM Intrm. 175, 177 (Chk. 2008).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

 On October 9, 2008, the prosecution filed a motion seeking leave of court to dismiss this case under Criminal Procedure Rule 48(a). Because trial was set to start on October 13, 2008, the court conducted a telephonic hearing on the motion on October 10, 2008. During that hearing, both the counsel for defendant Jack Fritz and the prosecutor stated that they were new to the case and both asserted that, if the motion to dismiss were denied, they would not be ready for trial on the 13th. Counsel for defendant Roosevelt Kansou stated that she was already prepared for trial. The court therefore vacated the trial date from the bench.

 Under Criminal Procedure 48(a), "[t]he attorney for the government may by leave of court file a dismissal of an information or complaint and the prosecution shall thereupon terminate." Although the government has broad discretion in determining whether to initiate a criminal prosecution, once that prosecution is started in the FSM Supreme Court, the court has responsibility for assuring that actions thereafter taken are in the public interest. FSM v. Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon. 1987). Rule 48 contemplates public exposure of the reasons for a prosecution's abandonment in order to prevent abuse of the dismissal power. FSM v. Fu Yuan Yu 398, 12 FSM Intrm. 487, 491 (Pon. 2004). The court thus must be satisfied that the reasons advanced for dismissal are substantial and in the public interest and are the real grounds upon which the application is based, and it should not be content with mere conclusory statements that the dismissal is in the public interest, but will require a statement of the underlying reasons and underlying factual basis. Id.

 In its written motion, the prosecution's stated ground for a dismissal was that it did not wish to bear the expense of trying the case  sending an FSM assistant attorney general from Pohnpei with the attendant airfare, per diem, and car rental costs and with only $1,000 in the budget for witness expenses  when the vehicle the defendants were alleged to have conspired to steal from the national government was in the government's possession, and, after four years' of use (since this case was filed), had now become rundown and inoperative. This is a cost-benefit analysis that is more appropriately made when the prosecution is exercising its discretion in deciding whether to file criminal charges, and not a ground for leave to dismiss.

 During the hearing, the new prosecutor stated that she had reviewed the case file and had concluded that the government had insufficient evidence to sustain convictions against the defendants. This is a stronger ground for the motion. Factors among those customarily considered when the court is determining whether to grant leave to dismiss under Rule 48(a), are whether the dismissal involved any harassment of the defendants and whether a bona fide reason, such as insufficient evidence to obtain a conviction, exists for the dismissal. Fu Yuan Yu 398, 12 FSM Intrm. at 491; FSM v. Yue Yuan Yu No. 346, 7 FSM Intrm. 162, 163 (Chk. 1995); see also FSM v. Ching Feng 767, 12 FSM Intrm. 498, 502, 504 (Pon. 2004).

 Since the government doubts it has the evidence to sustain convictions in this case and thus thinks it advisable not to expend more of its limited resources on a prosecution it concludes that it does not have a reasonable chance of completing successfully, the court accordingly grants the government leave to file a dismissal. The prosecution of this case will terminate once the government's dismissal is filed.

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