THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Cheng Chia-W (I) ,
7 FSM Intrm. 124 (Pohnpei 1995)

[7 FSM Intrm. 124]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

CHENG CHIA-W, HORNG BAO YINN and
TING HONG OCEANIC ENTERPRISES CO., LTD.,
Defendants.

CRIMINAL CASE NO. 1994-502

ORDER

Andon L. Amaraich
Chief Justice

Hearing:  April 20, 1995
Decided:  April 21, 1995

APPEARANCES:
For the Plaintiff:            Carole Rafferty, Esq.
                                       Assistant Attorney General
                                       Office of the FSM Attorney General
                                       P.O. Box PS-105
                                       Palikir, Pohnpei FM 96941

For the Defendants:    Jeanne Kent
                                       Law Offices of John Brackett
                                       P.O. Box 208
                                       Kolonia, Pohnpei FM 96941

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HEADNOTES
Criminal Law and Procedure ) Information
     Dropping one count from a criminal information does not prevent the prosecution from proving that count as an element of other pending charges.  FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 126 (Pon. 1995).

Criminal Law and Procedure ) Dismissal
     Where counts in an information other than the one count dismissed also charge illegal fishing violations the dismissal of two other counts for which illegal fishing is an element will be denied.  FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 126 (Pon. 1995).

Constitutional Law ) Excessive Fines
     It is premature to challenge a statute as unconstitutional for imposing excessive fines until a fine

[7 FSM Intrm. 125]

has been imposed.  FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 126 (Pon. 1995).

Constitutional Law ) Legislative Powers; Separation of Powers
     Congress has not unconstitutionally delegated its authority to define crimes by delegating to an executive agency the power to enter into fishing agreements because congressional approval is needed for these agreements to take effect.  FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 127 (Pon. 1995).

Criminal Law and Procedure ) Double Jeopardy
     The protection against double jeopardy in a second trial is not available until the person has first been tried in one trial.  Jeopardy does not attach in a criminal trial until the first witness is sworn in to testify.  FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 128 (Pon. 1995).

Criminal Law and Procedure ) Discovery
     Where defendants have no constitutional right to the discovery sought, an untimely motion to compel discovery will be denied.  FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 128 (Pon. 1995).

Criminal Law and Procedure ) Discovery
     The prosecution has an ongoing obligation to supply to defendants any and all unprivileged evidence of an exculpatory nature.  FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 128 n.4 (Pon. 1995).

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COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     On April 20, 1995, the Court held a hearing on a number of motions filed by the defendants in the above-captioned case.  The Court also granted from the bench, the motion to appear pro hac vice filed by Carole Rafferty of the Office of the FSM Attorney General.  Defendants' substantive motions, in total, make four requests of this Court:  (1) to dismiss Counts II and III of the Information filed by the Attorney General's Office; (2) to hold that the fines permitted under Title 24 of the FSM Code are unconstitutionally excessive; (3) to find that Title 24 "wrongfully and unconstitutionally delegate[s the power to define major crimes] to MMA (Micronesian Maritime Authority) by blindly and without restriction allowing MMA to enter into agreements, the violation of any terms of which become a crime;" (4) to find that the prosecution has violated the FSM Constitution by placing defendants in double jeopardy for the same offense.  Defendants also filed a motion seeking to compel certain discovery from the prosecution.  After considering the submissions and oral arguments of the parties, the Court concludes that the defendants are not entitled to any of their requested relief at this time.  The Court now will discuss its finding with respect to each of defendants' claims.

Motion to Dismiss Counts II and III of the Information
     Defendants argue that Counts II and III of the Information should be dismissed. Count II charges defendants with transporting and possessing fish taken in violation of the law,1 while

[7 FSM Intrm. 126]

Count III alleges that defendants failed to properly stow their fishing gear.2 According to defendants, those two Counts are premised upon a lack of a permit, and because the prosecution dismissed Count I in the Information charging defendants with not having a valid permit, these two Counts also should be dismissed. Defendants argument fails on two levels.

     First, assuming that Counts II and III are in fact premised on a lack of a valid permit, the prosecution's decision to dismiss the invalid permit count does not prevent them from proving at trial that the defendants did not possess a valid permit when they were arrested for fishing.  In other words, the fact that the prosecution dropped Count I does not prevent them from proving that defendants did not have a valid permit as an element of other charges still pending against defendants.

     Second, Counts II and III are not premised on the lack of a valid permit.  Rather, they are premised on illegal fishing.  And while Title 24 does not specifically define the term "illegal fishing," section 501 of Title 24 does contain a long list of unlawful and prohibited acts relating to fishing.  It is apparent that the violation of any of these prohibited acts would constitute illegal fishing.  Here, defendants have been charged with three additional violations of section 501 in addition to Counts II and III.  As such, a conviction on any of these three alleged violations of section 501 would constitute illegal fishing, thereby forming the basis for prosecution under Counts II and III.

     In summary, the dismissal of Count I of the Information does not automatically require the dismissal of Counts II and III.  Defendants' motion therefore is denied.

Excessive Fines
     Defendants next argue that the Information filed against the defendants must be dismissed because the fines that may be imposed for violations of the charges contained in the Information are excessive and in violation of article IV, section 8 of the FSM Constitution.  Article IV, section 8 states, in part, that "[e]xcessive bail may not be required, excessive fines imposed, or cruel and unusual punishments inflicted."  (emphasis added).

     Article IV, section 8 states that excessive fines may not be "imposed."  Here, no fines have been imposed, nor has any conviction been secured.  Instead, defendants have decided, based on their own interpretation of Title 24, that it cannot be applied without violating the excessive fines clause of the FSM Constitution. Clearly, it would be premature to rule on the constitutionality of a statute before that statute has been interpreted by the Supreme Court.  Suldan v. FSM, 1 FSM Intrm. 201, 205 (Pon. 1982) (recognizing that "constitutional issues should not be decided if the statute in question may be interpreted in such a way as clearly to conform with constitutional requirements").  See also In re Otokichy, 1 FSM Intrm. 183, 190 (App. 1982).  It would be equally premature to find that defendants have been subjected to excessive fines when their penalty, much less their guilt or innocence, has yet to be determined.

     Accordingly, it would be premature to rule on defendants' excessive fines claim until an actual penalty has been imposed. Defendants' claim therefore is rejected.

[7 FSM Intrm. 127]

Delegation of Legislative Authority
     In this argument, Defendants assert that Congress, through Title 24, has unconstitutionally delegated to the MMA its authority to define crimes.3  Specifically, defendants argue that "Congress has wrongfully and unconstitutionally delegated that power to MMA by blindly and without restriction allowing MMA to enter into agreements, the violation of any terms of which become [sic] a crime capable of bankrupting nearly everyone doing business in Pohnpei or the FSM."  Defendants' claim of blind and wholesale delegation of authority is without merit, however, because Title 24 requires Congressional approval of foreign and domestic-based fishing agreements, including the agreement here in question.  According to section 405 of Title 24 of the FSM Code:
 
     (1)  To take effect within the exclusive economic zone, a foreign fishing agreement of domestic-based fishing agreement shall require the approval of the Congress of the Federated States of Micronesia by resolution.

     (2)  The Committee on Resources and Development shall approve such an agreement if the Congress is not in session.

     (3)  An agreement involving fewer than ten vessels does not require the approval of the Congress of the Federated States of Micronesia.

     Clearly, Congress has examined the issue of how best to enforce fishing regulations and has determined that the MMA should have the authority to draft fishing agreements, provided that those agreements are approved by Congress. Congress also has determined that violations of these Congressionally approved fishing agreements will constitute violations of the criminal law.  Having made that decision, it would be an improper violation of the separation of powers for the Judiciary to invade the legislative sphere by instructing Congress how they should go about creating the law.  See Suldan, 1 FSM Intrm. at 205 (holding that once Congress has passed a statute, the members of the executive and judiciary branches should not decide among themselves to reassign the decision-making responsibilities set forth in the statute).

     Accordingly, defendants' claim of unconstitutional delegation of legislative authority is denied.
 
Double Jeopardy
     Article IV, section 7 of the FSM Constitution states that "[a] person may not be . . . twice put in jeopardy for the same offense."  Defendants claim that double jeopardy has occurred because they are going to be tried based on the same conduct in both a criminal action and a civil forfeiture action.  In Laion v. FSM, 1 FSM Intrm. 503, 521-25 (App. 1984), the appellate division examined the double jeopardy provision contained in Article IV, section 7.  According to Laion, "[t]he principal purpose of the protection against double jeopardy established by [Article IV, section 7] is to prevent the government from making repeated attempts to convict an individual for the same alleged act."  Id. at 521.  Laion also set out the three basic protections intended by the double jeopardy clause:  "It protects

[7 FSM Intrm. 128]

against a second prosecution for the same offense after acquittal.  It protects against a second prosecution for the same offense after conviction.  And it protects against multiple punishments for the same offense."  Id. at 523 (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969)).

     In this case, the first two protections are not yet available to defendants because they have neither been acquitted nor convicted of any crime.  In fact, as stated above, the defendants have not even been tried a single time in the instant case. The third protective prong also is unavailable at this time because defendants have not been, and may never be, subjected to any punishments.  As such, the issue is not yet ripe for judicial determination.

     Although Laion opinion is useful in determining the scope of the double jeopardy rule, it does not provide any guidance as to the mechanical application of the rule. Accordingly, the Court must to the law of other jurisdictions for guidance.  The most likely source for this information is the United States since that nation's double jeopardy rule is the law upon which the FSM's rule is based.  The prevailing and consistent view in the United States is that jeopardy does not attach in a bench trial until the first witness is sworn in to testify.  See e.g., Serfass v. United States, 420 U.S. 377, 390-91, 95 S. Ct. 1055, 1062, 43 L. Ed. 2d 265, 275 (1975) (recognizing that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is put to trial before the trier of facts, whether the trier be a jury or a judge).  In applying this rule, it is apparent that no jeopardy has attached in this case.

     For the reasons set forth above, defendants' double jeopardy claim is premature, and therefore denied.

Motion to Compel
     The last issue that needs to be discussed concerns defendants' motion to compel.  Although the Court already ruled in the April 20th hearing that it would not consider that motion due to its untimely nature, the Court nonetheless elects to clarify its ruling from the bench.  Defendants' initial request for the discovery that forms the basis for this motion was made on September 29, 1994, well in advance of the November 13, 1994 deadline for filing pretrial motions.  The initial deadline was set in anticipation of a trial on December 13, 1994.  After that trial date was postponed, defendants requested and received an extension of the deadline for filing motions until February 30, 1995.  In granting that extension, however, the Court warned the defendants that parties generally are not entitled to relief due to their own carelessness and neglect.

     Notwithstanding that warning, defendants now ask the Court, on the eve of trial, to ignore the pretrial motions deadline that expired two months ago, and to compel discovery that they requested almost seven months ago.  The defendants were warned about their carelessness and chose to ignore those warnings.  Because defendants' motion is untimely, and because defendants have no constitutional right to the discovery sought, see 23 Am. Jur. 2d Depositions and Discovery 402 (1983), the defendants' motion to compel was denied.4

[7 FSM Intrm. 129]

Conclusion
     In summary, it is hereby ordered that Carole Rafferty's Motion to Appear Pro Hac Vice is granted.  It is further ordered that defendants' Motion to Dismiss Counts II and III is denied.  It is further ordered that defendants' Motion to Dismiss the Information is denied.  Finally, it is further ordered that defendants' Motion to Compel is denied.

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Footnotes:
 
1.  Specifically, Count II charges a violation of 24 F.S.M.C. 501(1)(l) which states that "it is unlawful for any person . . . (l) to knowingly ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of any fish taken or retained in violation of this title or any regional fishing treaty, regulation, permit, foreign or domestic-based fishing agreement or any applicable law."
 
2.  Count III refers to an alleged violation of 24 F.S.M.C. 105 which requires that "[a]ll fishing gear aboard a fishing vessel in the exclusive economic zone shall be stowed in such a manner that it is not readily available for use in fishing, except when such fishing vessel is in an area in which it is authorized to fish in accordance with this title."
 
3.  Defendants also claim that Title 24 is an unconstitutional violation of separation of powers because it usurps the power of the Judiciary to tailor a penalty to a crime by imposing mandatory minimum fines.  Although the law of the FSM as well as other nations is replete with examples of mandatory minimum sentencing, it would be inappropriate to consider this argument until after the statute has been interpreted and a penalty imposed.
 
4.  Although the Court refused to consider defendants' untimely motion, the Court did require the prosecution to inform all of its witnesses of their right to speak with the defendants' counsel.  Of course, those witnesses are not required to meet with defendants' counsel if they choose not to do so.  Additionally, the denial of defendants' motion does not alter prosecution's ongoing obligation to supply to defendants any and all unprivileged evidence of an exculpatory nature.  See FSM Crim. R. 16(a)(1)(F).  See also Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).