Rota mayor’s lawyer raises immunity issue

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ATTORNEY David Banes has raised the issue of immunity from prosecution of the witnesses who will testify in the jury trial of his client, Rota Mayor Efraim Atalig, and his co-defendant and girlfriend Evelyn Atalig.

At the pretrial conference hearing in federal court on Wednesday, Banes said: “I don’t know how many are actually going to invoke their Fifth Amendment rights or who are actually going to testify.”

To plead the Fifth means to refuse to answer a question on the grounds the speaker’s statements could be self-incriminating especially in a criminal proceeding.

Banes is referring to Rota Mayor Atalig’s co-defendants in the separate Superior Court case who may be called by the U.S. government to testify in the federal court case.

“We don’t have any objection if they decide to testify, but if certain witnesses do invoke the Fifth because they have not been granted immunity from prosecution, then that is a very significant issue for the defense,” Banes said.

“We believe that Mayor Atalig’s co-defendants have exculpatory information,” Banes added.

Exculpatory means evidence that shows lack of criminal intent by the accused.

Assistant U.S. Attorney Eric O’Malley, for his part, told District Court for the NMI Chief Judge Ramona V. Manglona that offers of immunity were made to all of Mayor Atalig’s co-defendants in the local court case, “but not all took the plea agreement offer.”

“Immunity is only for those that have decided to take responsibility,” O’ Malley added.

Banes wants an assurance from the federal prosecutor that the co-defendants of Mayor Atalig in the local case will not be prosecuted in federal court if they testify and provide exculpatory testimony.

O’Malley said: “I am not prepared to give a free pass to a group of people that have been charged locally for waste, fraud, and abuse, so that they can take the stand and testify.”

The Ataligs appeared in court via teleconference. Attorney Steven Pixley appeared as Evelyn Atalig’s defense counsel.

Mayor Atalig was initially charged with one count of wire fraud for attending a political rally on Guam while on a CNMI government-funded trip.

Later, a superseding indictment was filed against him and Evelyn Atalig for orchestrating CNMI government-funded trips to California, Palau, Guam, and Saipan under fraudulent pretenses.

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

Their jury trial in federal court is scheduled for March 10, 2020 at 10 a.m.

At the hearing on Wednesday, Judge Manglona directed Banes to file the issue of witness immunity by Feb. 19, 2020. She said the U.S. government’s opposition is due by Feb. 26.

The two defense lawyers also made an oral motion for the grand jury materials to be provided to them before the court hears the opening statements.

O’Malley will submit a production of grand jury reports and witness testimony by Feb. 26.

In the Superior Court case, the CNMI government initially charged Mayor Atalig and seven of his resident directors with theft and misconduct in public office.

The court later allowed the CNMI government to file second amended information against the defendants on Aug. 30, 2019, charging them each with misconduct in public office only.

Misconduct in public office is punishable up to one-year imprisonment or a fine of $1,000 or both.

The CNMI government is accusing the Rota officials of taking government-funded per diem and salary compensation to attend a Republican campaign rally on Guam on June 23, 2018.

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

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