Prosecutor: Communication with defense expert witness not prohibited

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ASSISTANT U.S. Attorney Garth Backe is asking the federal court to deny the motion for sanctions filed by Rota Mayor Efraim Atalig, and co-defendant Evelyn Atalig against a Federal Bureau of Investigation special agent they accused of witness tampering and ex parte communications with an expert witness.

Backe said “communication with an opposing party’s expert witness is not prohibited in criminal cases.”

The expert witness is Gregory Vecchi, PhD, an FBI interviewing expert who, the defendants said, will testify “on matters relating to (among other subjects) the 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 defense lawyers David Banes and Steven Pixley, on March 8, 2020, Dr. Vecchi received a telephone call from FBI special agent Haejun Park.

Park, the defense lawyers added, “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 stated that the U.S. government never obtained any permission or consent from either the court or the defense to communicate with the expert witness.

But Backe said, “Agent Park did not attempt to dissuade defendant’s expert from testifying.”

“More importantly,” Backe added, “the government makes known that the intent of the call was not to dissuade Dr. Vecchi from taking the job, but to ascertain information that was not being provided by the defense.”

Backe said the case against the Ataligs has been pending since August 2018, “yet defendants inexplicably waited four days before trial to commence to disclose their intention of calling an expert witness.”

Moreover, Backe said, the U.S. government made requests for discovery related to Dr. Vecchi on March 6, and again on March 8, “but these requests were not even acknowledged by defense until 8:30 a.m. on Tuesday, March 10 — i.e., an hour and a half before jury selection. It was in this environment of uncertainty that the call to the proposed expert was made.”

The U.S. government’s response to the defendants’ joint motion for sanctions included affidavits from Backe, Agent Park, and Travis Hurst of the CNMI Office of the Public Auditor.

The jury trial for the Ataligs was scheduled for March 10, but it was postponed after Banes was arrested on a DUI charge.

Due to his circumstances, Banes asked the federal court for a short continuance of the jury trial, which Chief Judge Ramona V. 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 February 2018 to August 2018.

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