SUPERIOR Court Judge Pro Tem Alberto Tolentino has denied Gov. Ralph DLG Torres’ motion to dismiss Counts I to XII for failure to allege “mens rea” in the misconduct in public office charges against him.
“The standard mens rea for civil penalties and felonies is clear under Commonwealth law and the mens rea for the alleged charges will be presented to the jury in their instructions,” Judge Tolentino said in his latest order on Monday.
According to an online legal dictionary, mens rea refers to criminal intent. “The literal translation from Latin is ‘guilty mind.’ A mens rea refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime.”
Judge Tolentino said, “The central issue of this motion is whether or not defendant is aware and assured of the standard of mens rea he will be held to for the charges and what remedy, if any, is needed at this stage of the proceedings.”
The Office of the Attorney General filed a criminal case against the governor alleging 12 counts of misconduct in public office and one count of theft relating to the issuance of airline tickets for business class, first class, or other premium class travel for himself and/or first lady Diann T. Torres. The case also alleged one count of contempt for failure to appear in compliance with a subpoena.
The governor has denied the charges.
As written, Judge Tolentino noted that the information filed by the AG’s office against the governor “does not contain the words typically associated with a standard of mens rea, to wit, ‘knowingly,’ ‘negligently,’ ‘recklessly,’ ‘willfully,’ or even ‘intentionally’ are all absent from the charging document.”
Represented by attorneys Viola Alepuyo, Matthew Holley, Anthony Aguon and Victorino Torres, the governor said he has no way to determine what the mens rea of the misconduct in public office is without any mention of the mens rea within the charging document.
The governor also said that the dismissal of the charges is the only possible remedy for the Commonwealth’s failure to include the mens rea in the information.
Judge Tolentino disagreed.
The judge cited a previous ruling of the United States Supreme Court that stated, “Violations of a regulatory civil statute, such as 1 CMC § 7407, do not require any culpable mental state in and of themselves.”
He added, “The prohibition against causing premium airline tickets to be issued listed in 1 CMC § 7407(f) is one such regulatory statute that seeks to prevent personal use of limited Commonwealth funding. To purchase a premium airline ticket is not a ‘mala in se’ act, a moral wrong in and of itself. The penalty for causing such an airline ticket to be issued is a civil fine of $1,000, a rather minor penalty that is likely aimed at recouping the loss of funds that went towards the extra costs of airfare that the Commonwealth paid. As a regulatory offense, defendant knew or should have known that 1 CMC § 7407(f) carries with it a strict liability standard, as all minor civil penalties of this nature do.”
Judge Tolentino said, “While there may be no case law in the CNMI at this point outlining the exact mens rea to be used in judging the crime of Misconduct in Public Office, based upon the [CNMI] Supreme Court’s ruling in Commonwealth v. Camacho, 2019 MP 2, the culpable mental state of ‘knowingly’ is implied in the statute and must be considered by the fact-finder.”
“Defendant must have knowingly committed an illegal act and knowingly completed the act under the color of office,” the judge said. “The general practice of using strict liability for civil violations is also implied and the Commonwealth must prove as part of their case that the civil violations of 1 CMC § 7407(f) were committed according to a strict liability standard. The exact mens rea of Charges I-XII, misconduct in public office, will be included in the instructions given to the jury, so that they, the fact-finder, may properly consider defendant’s innocence or guilt.”
