Prosecutor asks court to quash Ataligs’ two pretrial subpoenas

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ASSISTANT U.S. Attorney Eric O’Malley has asked the federal court to quash the two pretrial subpoenas requested by Rota Mayor Efraim Atalig and co-defendant Evelyn Atalig.

The Ataligs are accused of orchestrating CNMI-government-funded trips to California, Palau, Guam, and Saipan from February 2018 to August 2018.

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

O’Malley said the Ataligs’ subpoena is an improperly cast net for impeachment material.

“It seeks private information protected by Commonwealth law, the relevant portions of which have been or will be disclosed to the government, and then exchanged during the ordinary course of discovery,” he added.

He said the subpoena is unreasonable and oppressive and must be quashed.

If the court determines that the subpoenas are enforceable, O’Malley requested that the court conduct an in camera or private review of the records to ascertain what portion, if any, should be disclosed to the defendants and to protect the remainder of the confidential or private information included in it.

The Ataligs, through their attorneys David Banes and Steven Pixley, want to subpoena the CNMI Office of the Attorney General’s Criminal Division and are seeking the personnel records of Travis Hurst, an investigator with the CNMI Office of the Public Auditor who worked briefly for the Office of the AG’s investigative division.

The second subpoena was addressed to OPA and is seeking the personnel records of Travis Hurst and fellow OPA investigators Edward R. Cabrera and Juan Santos.

The OPA investigators named in the subpoenas participated in the investigation leading to the indictment against the Ataligs.

On March 19 OPA and the AG’s office were served with a subpoena duces tecum (to produce certain documents).

The return date for the subpoenas was March 26, 2020.

O’Malley said he initiated a Giglio request to OPA seeking potentially discoverable information.

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.”

O’Malley said, “In response, OPA conducted an internal review of the administrative files of all personnel associated with this matter. OPA provided the [U.S.] government with a written response on Feb. 7, 2020. The [U.S.] government provided that response through discovery on March 25, 2020, and has thus fulfilled its discovery obligations.”

Regarding OPA’s personnel files, he said the U.S. government also initiated a Giglio request to the AG’s office seeking a review of Travis Hurst’s administrative files, as well as any other potential law enforcement witnesses who may have once worked for other CNMI law enforcement agencies.

“Upon receipt, the responses will be provided through discovery,” O’Malley added.

As for the stay order execution of subpoenas, O’Malley said: “There will be no prejudice to the defendants. At present, there is no date set for trial, and, due to circumstances relating to the coronavirus pandemic, it is unlikely that the trial will be held anytime soon. Therefore, there is ample time to fully litigate the issue of the subpoenas.”

For good cause shown, Chief Judge Ramona V. Manglona granted the U.S. government’s motion to stay execution of subpoenas.

“Execution of subpoenas is temporarily stayed until such time the court has ruled on the government’s motion to quash,” she added.

Last week, the federal court issued an order postponing the jury trial of the Ataligs because of the Covid-19 pandemic and the decision of the Guam and CNMI governments to close all government offices effective immediately and direct all their non-essential employees to remain at home.

Judge Manglona vacated the jury trial set for March 18, 2020 and scheduled a status conference for April 29, 2020 at 1:30 p.m.

The jury trial for the Ataligs has been postponed several times now.

In the CNMI Superior Court, Mayor Atalig and seven of his former and current resident directors were charged with misconduct in public office. They are accused of taking government funded per diem and salary compensation to attend a Republican campaign rally on Guam on June 23, 2018.

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