THE  SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Yue Yuan Yu No. 708,
7 FSM Intrm. 300 (Kos. 1995)

[7 FSM Intrm. 300]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

YUE YUAN YU NO. 708, GUANGDONG P. FISHERY
and TING HONG OCEANIC ENTERPRISES,
Defendants.

CIVIL ACTION NO. 1995-2003
MEMORANDUM OF DECISION
 
Martin Yinug
Associate Justice

Hearing:  September 19, 1995
Decided:  October 30, 1995

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

For the Defendant:       Brian J. Stowell, Esq.
         (Ting Hong)          Law Offices of R. Barrie Michelsen
                                       P.O. Box 1450
                                       Kolonia, Pohnpei FM 96941

[7 FSM Intrm. 301]

For the Defendants:     Ron Moroni, Esq.
                                       P.O. Box 1618
                                       Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Search and Seizure
     In a post-seizure probable cause hearing in a civil forfeiture case the standard for finding that the FSM has probable cause to seize a fishing vessel is defined by reference to 24 F.S.M.C. 513(2).  FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. 300, 302 n.1 (Kos. 1995).

Evidence ) Hearsay; Search and Seizure
     A court may rely on hearsay evidence for the purpose of finding probable cause at a post-seizure hearing.  FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. 300, 303 (Kos. 1995).

Evidence ) Hearsay; Search and Seizure
     Although procedural and evidentiary rules are relaxed at a probable cause hearing a prosecutor may not rely solely on hearsay evidence when other, more competent testimony is available.  FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. 300, 304 (Kos. 1995).

Civil Procedure ) Affidavits; Evidence ) Hearsay
     A court may discount inherently unreliable evidence.  The more levels of hearsay or the more hearsay statements contained within an affidavit, which is hearsay itself, the more unreliable the evidence is.  FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. 300, 304 (Kos. 1995).

Evidence; Search and Seizure
     Representations of counsel in a probable cause hearing are not a substitute for competent, reliable evidence in the form of testimony or appropriately detailed affidavits.  FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. 300, 305 (Kos. 1995).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:
     This civil forfeiture case presents a question regarding the amount and quality of evidence necessary to prove probable cause at a post-seizure hearing.  The FSM seized a vessel suspected of violating Title 24 F.S.M.C. 116(1).  At the post-seizure, probable cause hearing, the Court concluded that the FSM failed to prove that it had probable cause to seize the vessel.  This memorandum of decision explains the Court's reasoning.

Proceedings to Date
     On Monday, September 11, 1995, several Maritime Surveillance Officers boarded the Yue Yuan Yu No. 708, ("the Vessel"), then at port in Kosrae.  One officer reportedly examined the Vessel's log and found it completely blank as to the Vessel's most recent voyage.  The Vessel was seized without an arrest warrant on Thursday, September 14, 1995.  The FSM filed a civil complaint for forfeiture and damages on Friday, September 15, 1995.  The complaint was supported by the Affidavit of Pius

[7 FSM Intrm. 302]

Chotailug.

     On Monday, September 18, 1995, the Vessel and co-defendant Guangdong P. Fishery filed a motion requesting the immediate release of the vessel.

Post-Seizure Hearing
     The Court, sitting in Yap State, held the probable cause hearing by telephone on September 19, with counsel appearing in Pohnpei State, and the vessel still under arrest in Kosrae.  The FSM offered the affidavit of Pius Chotailug, which stated:

1.  I [Pius Chotailug] am an adult resident of Pohnpei, FSM.

2.  I am the Deputy Administrator of the Maritime Wing of the FSM National Police.

3.  On information and belief, on or about September 11, 1995, Marine Surveillance Officers of the Maritime Wing located in Kosrae boarded a vessel identified as Yue Yuan Yu No. 708 for a routine inspection, while that vessel was docked in port at Kosrae.

4.  On information and belief, upon boarding the vessel a Marine Surveillance Officer requested the captain or other officer to produce, among other things, a completed fishing log book.

5.  On information and belief, the only log book produced or otherwise found on board the vessel was completely blank with respect to the vessel's most recent voyage.

6.  On information and belief, the vessel was carrying yellowfin tuna fish, which appeared to have been recently caught.

7.  I believe that the conduct of the defendants violates certain provisions of Title 24 of the Code of the Federated States of Micronesia as is more fully set forth in the Complaint.

The FSM offered no witnesses or other evidence at the hearing.

     The parties agreed that the search of the vessel on September 11 was proper. The defendants conceded, for the sake of the hearing, that the search was within the officer's authority.  The parties further agreed that the seizure of a vessel must be supported by probable cause, citing Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985) and FSM v. Zhoang Yuan Yu No. 621, 6 FSM Intrm. 584, 589 (Pon. 1994).1  Finally, the parties concurred that this showing of probable cause at a post-

[7 FSM Intrm. 303]

seizure hearing may be established on hearsay evidence.

     In argument, as distinct from offering evidence, counsel for the FSM identified Dexter Benjamin as the Marine Surveillance Officer who searched the Vessel and questioned its captain on September 11, and arrested the vessel on September 14. The FSM argued that the Chotailug affidavit contained all the essential facts to find probable cause, and that the practice of the FSM was to offer only affidavits at a post-seizure, probable cause hearing.  Chotailug did not appear at the hearing to elaborate on the details of his affidavit.  The FSM argued instead that it was not required to bring Chotailug to the hearing, and claimed that the defendants could have compelled his appearance by subpoena.

     The defendants argued that the affidavit added no more detail to establish probable cause than what appeared in the complaint itself.  Conceding that a finding of probable cause may be based on hearsay, the defendant Vessel argued that the affidavit was so unreliable that the Court would be remiss to use it alone to find probable cause.  The defendant Vessel also argued that the FSM made no attempt to explain why the Court should rely on affidavits, since Chotailug was available on Pohnpei, and so was Benjamin on Kosrae.

Legal Analysis
A.  Hearsay Evidence Presented at a Probable Cause Hearing
     The parties concur that for purposes of finding probable cause at a post-seizure hearing, the Court may rely on hearsay evidence.  Nevertheless, the Court begins its inquiry at this point.  While the Rules of Evidence apply generally in civil cases, including admiralty and maritime cases, FSM Evid. R. 1101(b), there is precedent for using hearsay to find probable cause at a post-seizure hearing.  The FSM Supreme Court relied on a detailed affidavit to find probable cause in Zhoang Yuan Yu No. 621, 6 FSM Intrm. at 590.  The Court explained its reliance on hearsay by reference to the Rules of Criminal Procedure.  The Court reasoned that a civil forfeiture case involving seizure of a vessel believed to have been used to commit a fishing violation, presented a question sufficiently similar to a criminal case to warrant reference to the Rules of Criminal Procedure.  Id. at 589-90.  But the Court also found that a civil forfeiture case was distinct from a criminal matter as not to merit strict compliance with the criminal rules.
 
     Even though there is no criminal case pending on the present facts, the Court adopts the reasoning of Zhoang Yuan Yu No. 621.  A post-seizure hearing in a forfeiture case is the civil equivalent of various probable cause hearings that may be held in a criminal case, such as application for arrest or search warrant, issuance of criminal summonses, or a preliminary examination.  The Rules of Evidence do not apply in miscellaneous criminal proceedings.  FSM Evid. R. 1101(d)(3).

     Similarly, the Rules of Evidence do not apply to determinations of preliminary questions of fact made by the Court under Evidence Rule 104.  FSM Evid. R. 1101(d)(1).  The Court has not located any

[7 FSM Intrm. 304]

reported FSM decisions defining the scope of the Court's discretion under Evidence Rules 104 and 1101.  Accordingly, the Court refers to interpretations of the US Federal Rules of Evidence from which our rules derive.  See Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).

B.  The Court May Discount Any Unreliable Evidence
     Even though the language of the Rules of Evidence appears limitless, the Court is not free in a probable cause hearing to disregard them entirely.  "Although [Rule] 104(a) is not an open invitation to ignore the . . . Rules of Evidence, the Rule does recognize the ability of the court to receive all relevant evidence and discount evidence that is inherently untrustworthy or suspicious."  12 Federal Procedure 33:36, at 66 (L. Ed. 1988).  To the same end, in a criminal case, a prosecutor may not, at a probable cause hearing, rely solely on hearsay testimony when competent evidence is readily available from perceiving witnesses.  See, e.g., McDonald v. District Court, 576 P.2d 169, 171 (Colo. 1978).  A probable cause hearing is a matter of limited purpose, and procedural and evidentiary rules are relaxed.  But hearsay evidence alone will not suffice when other, more competent testimony is available.  See People v. Smith, 597 P.2d 204, 207 (Colo. 1979).  Thus, although the strict guidelines against the admission of hearsay evidence do not apply in a probable cause hearing, this Court may discount unreliable hearsay.

C.  The Chotailug Affidavit
     The Chotailug Affidavit does not approach the level of reliability this Court requires in probable cause hearings.  Cf. Zhoang Yuan Yu No. 621, 6 FSM Intrm. at 587-88.  The Court may "discount evidence that is inherently untrustworthy or suspicious."  Seiler v. Lucasfilm, Ltd., 613 F. Supp. 1253, 1262 (N.D. Cal. 1984). Upon review of the Chotailug affidavit, the Court discounts the evidence therein as unreliable.  For the Court to give the affidavit the weight the FSM asserts, there must be an additional measure of reliability or an explanation of those exigent circumstances that make it impossible to produce more reliable evidence.  Here, the FSM has failed in both regards.

     The affidavit itself is deficient in several ways.  Although made on information and belief, the affidavit does not state how the affiant became aware of the information.  It does not state whether Chotailug spoke with the Marine Surveillance Officers, or that he spoke with someone else who spoke with those officers.  The Marine Surveillance Officers who had first-hand information are not identified in the affidavit or the Complaint.  Benjamin was identified at the hearing, but the other officers were never named.  Hearsay otherwise admissible may be excluded where it consists primarily of reiteration of a statement of some other unidentified person.  See Cedeck v. Hamiltonian Fed. Sav. & Loan Ass'n, 551 F.2d 1136, 1138 (8th Cir. 1977).
 
     The affidavit is hearsay, since the affiant, Pius, was not before the Court.  FSM Evid. R. 801(c).  Likewise, the affidavit contains hearsay within hearsay, since it conveys information that was told to the affiant by some other person not before the Court.  FSM Evid. R. 805.  The number of levels of hearsay the affidavit contains is not certain, but it is at least three and possibly more.  The blank log book itself would be better evidence of probable cause to seize a vessel for a violation of 24 F.S.M.C. 116(1).  Instead, the FSM offered the affidavit of Chotailug, who may have spoken to Benjamin, who might have examined the log book.

     Multiple levels of hearsay become less reliable as the number of levels of hearsay increase.  McCormick's Handbook of the Law of Evidence 324.3, at 911 (3d ed. 1984).  Similarly, since Chotailug did not specify whether he had more than one informant, the affidavit may contain unattributed hearsay statements from more than one declarant.  "[A]s the number of included hearsay statements increases, the guarantees of reliability that justify admission become attenuated."  11 James

[7 FSM Intrm. 305]
 
W. Moore et al., Moore's Federal Practice 805.2, at VII-297-98 (1976).

     The Court is concerned about the use of unreliable hearsay when more competent evidence is available.  Even a hearsay affidavit of Dexter Benjamin would be preferred.  "Establishing probable cause on the basis of hearsay alone should only be resorted to when the testimony of a perceiving witness is unavailable or when `it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge.'"  Maestas v. District Court, 541 P.2d 889, 892 (Colo. 1975). On these grounds, the Court does not find the Affidavit of Pius Chotailug reliable enough to prove probable cause.

D.  Other Considerations
     The Court is reluctant to allow representations of counsel to substitute for competent, reliable evidence in the form of testimony or appropriately detailed affidavits.  First, allowing such practice puts counsel in the unenviable position of being both witness and advocate.  See FSM MRPC 3.7.  Second, as in this case, such representations add nothing to the reliability of the evidence.  Counsel for the FSM did not state how she became aware of the information she related to the Court.  She did not state that she spoke with Benjamin directly.  If she learned through discussions with Chotailug, that simply adds another layer of hearsay.
 
     The FSM cannot escape the net by claiming that the defendants could have compelled the attendance of either Chotailug or Benjamin at the post-seizure hearing.  In this hearing, the government bears the burden of proving it had probable cause to seize the vessel.  Ishizawa, 2 FSM Intrm. at 77.  Giving any credence to the FSM's argument turns the burden of proof on its head.  At any rate, producing Chotailug would eliminate only one layer of hearsay.  Dexter Benjamin, a witness with first-hand knowledge, was not identified until the post-seizure hearing began. Compelling his appearance would have been impossible.  The failure of the FSM to identify the officer with first-hand knowledge until the hearing is mystifying.

     Finally, the Court must consider the unique factual scenario presented in this case.  There are circumstances under which the Court may be compelled to rely on hearsay evidence to determine probable cause.  Many FSM seizures take place on the high seas, and vessels are often arrested at outer islands.  Since probable cause determinations must be made quickly, it may not always be possible for the FSM or a State to bring the witnesses necessary to the hearing or to have them prepare affidavits to be transmitted to the Court.

     No such difficulties existed here.  The seizure took place at port in Kosrae. Benjamin could have gone to the Kosrae State Court or the FSM Supreme Court Justice Ombudsman on Kosrae, to swear out an affidavit, thus providing first-hand information of the search and seizure.  Better still, when Benjamin allegedly first learned of the violation, he could have gone to the Justice Ombudsman and requested that he transmit to the Court on Yap a request to issue an arrest warrant for the vessel.

     The passage of time between the search and the arrest is vexing.  The Court assumes that Benjamin had probable cause to believe that a violation of the fisheries law occurred when he searched the vessel on September 11.  Yet the vessel was not seized until September 14.  The FSM could have used the three-day interval to apply for an arrest warrant.  See, e.g., FSM v. Hai Hsiang No. 63, 7 FSM Intrm. 114, 115 (Chk. 1995).  At the very least, the FSM could fax to Benjamin on Kosrae, a form of affidavit that he could swear and sign before a notary or court staff. In this era of nearly instantaneous facsimile and telephone communication among the major centers of Micronesia, such shortfalls should not be tolerated.

[7 FSM Intrm. 306]

     In commenting, the Court again emphasizes the unique facts presented.  This Court does not wish to urge the FSM to rush to file criminal complaints or informations, applications for search or arrest warrants, and the like.  Because so much prosecutorial discretion is vested in the office of the FSM Attorney General, in an adopted judicial system without such procedural checks as a grand jury or arraignment, then the decision to search, seize, arrest or prosecute, must be sober and deliberate.  In this far-flung island nation, delays are often inevitable.  However, the FSM should be prepared to explain why the delay occurred.  It has not done so here, and no reasonable inference to explain the delay can be culled from the sparse record presented.
 
Conclusion
     It was the failure of the FSM to bear its burden of proof that it had probable cause to seize the Vessel that underlies the Court's Order to release the Vessel.

*    *    *    *
 
Footnote:
 
1.  In a post-seizure hearing in a civil forfeiture case, the standard for finding that the FSM had probable cause to seize the vessel is defined by reference to the statute.

Where he has reasonable cause to believe that an offense against the provisions of this Title . . . has been committed, any authorized officer may, with or without process:
            . . . .

(b)  Within the fishery waters:
. . . .
(iii)  Seize any fishing vessel used or employed in, or when it reasonable appears to have been used or employed in violation of any provision of this Title . . . .

24 F.S.M.C. 513(2)(b)(iii).  This statutory standard is nearly identical to the standard adopted in Ishizawa, 2 FSM Intrm. at 77.  Title 24 F.S.M.C. 513 was amended following the Ishizawa decision.