CNMI Judge Hears Motion To Dismiss Charges Against Fitial

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Oral arguments on 13 charges against former Governor presented

By Andrew O. De Guzman

SAIPAN, CNMI (Marianas Variety, July 24, 2014) – Superior Court Judge David A. Wiseman placed under advisement the motion to dismiss 13 criminal charges filed by the Office of the Public Auditor against former Gov. Benigno R. Fitial after hearing oral arguments yesterday afternoon.

Judge Wiseman presided over the 30-minute session and heard oral arguments from attorney Stephen J. Nutting, who represents Fitial, and OPA legal counsel George L. Hasselback, who is prosecuting the case against the former governor.

Judge Wiseman told parties that he had read every word in the combined 76-page pleadings submitted by Nutting and Hasselback, and asked the parties to focus their arguments on issues about the constitution and statutes, not on each of the 13 charges filed by OPA against Fitial.

Nutting focused his argument on the timeliness of the charges brought by OPA against his client, Fitial.

The lawyer argued that charges involving four-year-old allegations could have been initiated at the time of Fitial’s incumbency, and not several months after Fitial had resigned from office on Feb. 20, 2013.

Fitial is facing charges relating to "massage-gate" in 2010, the ARRA contract with IPS of former Secretary Michael Ada, the no-bid $190 million power purchase agreement between Fitial and Saipan Development LLC and the "escort service" in 2012.

Nutting further pointed out that OPA did not "report" to the attorney general as provided for in the statute regarding its investigation and prosecution of Fitial to which Hasselback countered that he had been in constant communication with then-AG Joey San Nicolas.

Had OPA reported to the Attorney General, and the latter did not act or exercise its discretion to investigate and prosecute based on the "report," then there would be a basis for OPA to move, but this did not occur, Nutting told the court.

OPA "divested" the AG of its discretion to prosecute or not, Nutting told the court.

Hasselback argued that the constitutional authority of the AG was not exclusive as OPA was granted by the legislature the power to prosecute.

As to the delay of prosecution, Hasselback told the court that Fitial did not submit to the jurisdiction of the court when a penal summons was issued for him, and later an arrest warrant was issued by Judge Wiseman.

Hasselback pointed out that there was no violation of the statute of limitations.

"It is my belief that the Public Auditor had assumed a certain duty it had to complete before it could bring criminal actions. The principle duty being to advise the attorney general that a criminal act [OPA] believed had been committed by the governor," Nutting told reporters after the session.

Hasselback told reporters, "We went through this [issue] with Mr. Buckingham’s case. It is essentially the same argument. The same was already applied, and we hope to get the same result."

"I didn’t think the argument is too persuasive," Nutting responded, when asked by this reporter that Fitial did not immediately submit to the jurisdiction of the court. Nutting said Fitial was in office during and after the alleged criminal acts now being brought by OPA.

"That question is answered by the statute of limitations," Hasselback said.

"[Fitial’s] complaint about the Office of the Public Auditor waiting to bring charges its nothing but just a complaint. It’s a gripe. Until you talk about violating the statute of limitations, that’s when it turns from a gripe into a justification to dismiss the case," Hasselback said, when reminded by this reporter that Nutting did not think his argument was persuasive as to timeliness of the charges. He said the commonwealth has to bring charges within six years.

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