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Rota mayor, girlfriend want to see FBI, OPA interview notes

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BECAUSE English is not their first language, Rota Mayor Efraim Atalig and co-defendant Evelyn Atalig want the federal court to issue an order compelling the Federal Bureau of Investigation and the Office of the Public Auditor to produce interview notes of their witnesses in the case.

Efraim M. Atalig

In a joint motion to compel production of interview notes, the Ataligs, through their attorneys, said the prosecution has not produced the interview notes taken by the FBI or OPA agents who conducted the interviews.

“The interview summaries and reports prepared by the FBI and the OPA materially misrepresent what was said by the witnesses interviewed,” the Ataligs’ attorneys, David Banes and Steven Pixley, said.

“The interviews were not recorded by the FBI or the OPA and no interpreter was present,” they added.

“As an independent ground for production, the interview notes constitute material exculpatory evidence,” the defense lawyers stated.

They said, “There is reason to believe that the interview notes, if taken truthfully by the agents, will reveal… other misrepresentations in the FBI and OPA reports and summaries.”

According to the defense lawyers, “The prosecution is very likely to argue that it has found no material difference between the notes and the reports and summaries produced. This does not answer the question of whether the notes are exculpatory — even an omission in the notes can be exculpatory.”

The defense is requesting District Court for the NMI Chief Judge Ramona V. Manglona to order the prosecution to produce all the FBI and OPA interview notes, or at least conduct a review to determine whether they should be produced.

As the FBI and OPA interviews contained sensitive information, the Ataligs also want them filed under seal.

Judge Manglona recently granted the request of the Ataligs to reschedule their trial from January 8, 2020 to March 10, 2020 at 10 a.m.

In Sept. 2018, Mayor Atalig was charged with one count of wire fraud for attending a Guam political rally while on a government-funded trip.

In Nov. 2018, the US. government filed against Mayor Atalig a superseding indictment that included his girlfriend, Evelyn Atalig. They were charged with conspiracy, wire fraud, theft from program receiving federal funds, and two counts of false statements.

They were accused of arranging CNMI-government funded trips to California, Palau, Guam, and Saipan under fraudulent pretenses.

In Superior Court, Mayor Atalig and seven of his resident directors were accused of taking government- funded per diem and salary compensation to attend a Republican Party rally on Guam on June 23, 2018.

Presiding Judge Roberto Naraja has rescheduled the jury trial of the Rota officials from Jan. 13, 2020 to March 30, 2020.

The mayor’s co-defendants in this case are Department of Commerce Resident Director Dean Manglona, Department of Finance Resident Director Josepha Manglona, Department of Public Works Resident Director Vanessa Charfauros, Department of Labor Resident Director Dexter Apatang, Department of Community and Cultural Affairs Resident Director Magdalena Mesngon, former Rota Department of Public Safety Resident Director Eusebio Manglona, and former Rota Department of Fire and Emergency Medical Services Resident Director Dennis Mendiola.

Except for Apatang, Charfauros, and Mesngon, the five other Rota officials including Mayor Atalig have pled not guilty to the misconduct in public office charge filed against them in Superior Court.

Copies of documents

In a separate motion filed in court on Wednesday, Mayor Atalig said the U.S. government should produce copies of plea agreements and other documents showing promises or understanding of non-prosecution of his co-defendants in the CNMI case.

The mayor, through attorney David Banes, has requested the court to compel the federal prosecution to produce the following:

“Documents and records of proffer sessions, presentence investigation reports, and probation (NMI Superior Court and the Office of the Attorney General) files of witnesses whom the prosecution intends to call at trial, including without limitation, Dexter Apatang, Vanessa Charfauros, and Magdalena Mesngon, who are co-defendants in CNMI v Efraim Atalig et al., CNMI Superior Court Criminal Case No. 18-0088;”

The defense also wants to see copies “of plea agreements and other documents showing promises made to, or any other understanding or agreement as to future prosecution against, witnesses whom the prosecution intends to call at trial, including without limitation, the plea agreements of Dexter Apatang, Vanessa Charfauros, and Magdalena Mesngon.”

Banes is likewise seeking copies of “personnel files, disciplinary actions, and investigation reports of government agents who investigated the case including without limitation FBI agents Michael A. Gadsden and Haejun Park, and OPA investigators Travis A. Hurst and Josue Genesis C. Cruz.”

Banes said “the [U.S.] government has an obligation to disclose material exculpatory evidence, as well as any promises made to any witness, or any understanding or agreement as to the prosecution of that witness.”

The defense believes that the prosecution has subpoenaed or will subpoena Apatang, Charfauros, and Mesngon to testify at trial, Banes added.

“Any agreement of defendant’s co-defendants or other witnesses with the CNMI government or the U.S. government therefore constitutes Giglio evidence,” he added.

According to an online legal dictionary, “Giglio information or material refers to material tending to impeach the character or testimony of the prosecution witness in a criminal trial.”

Banes said upon information and belief, either the CNMI prosecution or the federal prosecution has conducted proffer sessions with some, if not all, of the co-defendants in the CNMI court case.

Proffer sessions are meetings between prosecutors and individuals who are the focus of an ongoing investigation.

Banes said he requested in writing Brady and Giglio evidence on Sept. 20, 2018. “So far, no Brady or Giglio evidence related to the co-defendants or any other witness has been produced by the government, except a summary report of a proffer session of Vanessa Charfauros,” he added.

“The Brady Rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense,” an online legal dictionary stated.

Banes said the U.S. government also has an obligation to disclose impeachment materials contained in the personnel files of testifying officers.

He believes that the prosecution will call government agents who investigated the case to testify at trial.

In addition, Banes said he requested in writing for “Henthorn” evidence from the prosecution, but “so far none has been produced.”

Banes said he has personal knowledge that at the very least, there is Henthorn evidence against agent Park.

“It is essential to obtain all relevant information about agents that have interviewed a witness or defendant,” an online legal website stated. “This includes prior backgrounds or training that can be used to undermine their credibility. It also includes the agents’ personnel files. The seminal case of United States v. Henthorn, 931 F.2d (9th Cir. 1991) allows for this sort of information to be provided to a defendant.”

In a separate motion filed on Wednesday, Banes “gives notice that there is a potential issue regarding whether the prosecution should grant immunity to all of Mr. Atalig’s co-defendants in the related CNMI court criminal case…so that Mr. Atalig can call them to testify at trial, or, instead, the prosecution may selectively choose only those co-defendants who support the government’s version of the facts (meaning those who do not, cannot be called by Mr. Atalig to testify as they will not be immune from prosecution and so will invoke the Fifth Amendment and refuse to testify).”

Banes said the defense “is not filing a motion to grant immunity today, but would like to give notice to the court. This potential issue is not yet ripe and depends on what the testimony of witnesses called by the prosecution will be at trial and, potentially, negotiations between the parties.”

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