Ataligs accuse FBI agent of witness tampering

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ROTA Mayor Efraim Atalig and co-defendant Evelyn Atalig are asking the federal court to sanction Federal Bureau of Investigation special agent Haejun Park for his ex parte communications with an expert witness and for witness tampering.

An ex parte communication is “any communication between a judge or juror and a party to a legal proceeding or any other person about the case, outside of the presence of the opposing party or the opposing party’s attorney.”

The Ataligs, through their joint motion filed by attorneys David Banes and Steven Pixley, said they requested the court on March 6 to amend their witness list for the trial and to add an expert witness, Gregory Vecchi, PhD.

Dr. Vecchi is an FBI interviewing expert and will testify “on matters relating to (among other subjects) coercive and misleading effect of the way the government’s investigative agents used in this matter when interviewing witnesses in this case, and the significance of certain ‘Henthorn’ materials of an agent involved in this case.”

According to the defense lawyers: “On March 8, 2020, Dr. Vecchi received a telephone call from Agent Park. Agent Park started the conversation by reminding Dr. Vecchi that they had served abroad years ago. Agent Park talked to Dr. Vecchi for several minutes about their previous assignment together before revealing that he was the case agent in this case. Agent Park gave Dr. Vecchi the impression that the prosecution had a strong case, and made negative remarks about the defense investigator. Dr. Vecchi believes Agent Park wanted him to feel that he was joining the wrong team by being a defense expert witness. Based on the subjects discussed and Agent Park’s tone, Dr. Vecchi had the distinct impression that Agent Park was trying to dissuade him from being an expert witness for the defense.”

The defense lawyers said Agent Park also asked what subject matters Dr. Vecchi would testify about. “Dr. Vecchi told him that he had not yet reviewed materials because he was waiting for the approval of the budget and approval of his appearance, but he knew the general topics of his testimony,” the defense lawyers said.

They added that the U.S. government never obtained any permission or consent from either the court or the defense to communicate with the expert witness.

“The [U.S.] government could have easily requested consent to communicate with the defense expert witness. That was not done,” the defense lawyers said.

They said Dr. Vecchi, an expert on law enforcement and its appropriate methods, concluded that the phone call was “unprofessional and inappropriate.”

The defense said Agent Park’s phone call constitutes ex parte communications and expert witness tampering prohibited by law and the court should consider imposing appropriate sanctions “such as limiting Agent Park’s involvement in this case, and giving appropriate jury instructions…. At the very least the court at trial [should] instruct the jury that Agent Park attempted expert witness tampering and the jury may consider this as a factor reflecting on the agent’s dishonesty.”

The defense said it was not clear what is the extent of Assistant U.S. Attorney Eric O’Malley’s involvement in the FBI agent’s conduct.

“In a comment to defense counsels regarding negative remarks made by Agent Park to Dr. Vecchi about the defense investigator, Mr. O’Malley indicated that Agent Park did not say any negative remarks, which seems to suggest that he was present during at least part of the phone call,” the defense lawyers said.

On Thursday, a hearing was held before Chief Judge Ramona V. Manglona regarding the motion to amend the witness list.

After hearing from the parties, Judge Manglona continued the hearing to March 25 at 1:30 p.m., adding that the tampering allegation was a “new issue.”

The federal judge also addressed financial issues regarding the request for expert service and noted that there was no e-voucher submitted.

The defense lawyers explained their reasons for the delay in submitting an e-voucher and discussed their concerns. Judge Manglona ordered them to submit the documents.

The Ataligs’ jury trial scheduled for March 10 was postponed after Banes was arrested on a DUI charge.

Due to his circumstances, Banes asked the federal court for a short continuance which Judge Manglona granted. The jury trial will now start on March 18, 2020 at 8:30 a.m.

The Ataligs were charged with conspiracy, wire fraud, theft from program receiving federal funds, and two counts of false statements.

They are accused of orchestrating under false pretenses CNMI-government-funded trips to California, Palau, Guam, and Saipan from Feb. 2018 to Aug. 2018.

In the CNMI Superior Court case, Mayor Atalig and seven of his former/current resident directors were charged with misconduct in public office.

They were accused of taking government-funded per diem and salary compensation to attend a Republican Party campaign rally on Guam on June 23, 2018.

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