SUPERIOR Court Associate Judge Teresa Kim-Tenorio has granted Chuilian Fu’s motion to suppress evidence obtained by the prosecution through a June 11, 2024 search warrant.
Judge Kim-Tenorio ordered the removal of the evidence from the Commonwealth government’s custody and its return to Fu.
At a hearing on June 13, 2024, attorney Anthony Aguon, who represents Fu, raised concerns as to the legality of the warrant and orally motioned for a briefing hearing.
The court ordered the defense to submit a brief no later than June 18 and ordered the Commonwealth to submit any opposition no later than June 21.
In her issued order on Wednesday, July 17, Judge Kim-Tenorio noted that Fu submitted a brief alleging numerous deficiencies with the warrant.
In his brief, Fu asked the court to “order [that] any evidence derived [from the warrant] … be suppressed, entirely removed from the prosecution’s custody and returned.”
The Commonwealth did not submit any opposition to Fu’s brief or motion.
The court also noted that at a July 2 hearing, the Commonwealth, represented by Assistant Attorney General James Robert Kingman, “stood on its warrant,” which the judge described as “deficient to the point of invalidity.”
The judge said the June 11 warrant “does not reference specific statutes, only ‘numerous offenses under the Commonwealth Code.’ … Courts have found such descriptors overbroad. See Galpin, 720 F.3d at 447 (‘insofar as the warrant generally authorized officers to search Galpin’s physical property and electronic equipment for evidence of violations of ‘NYS Penal Law and or Federal Statutes,’ the warrant violated the Fourth Amendment’s particularity requirement”). The June 11 … warrant also did not describe the place or items to be searched with particularity.”
Moreover, the judge said, “the Commonwealth Rules of Criminal Procedure require that law enforcement officers provide a receipt for items taken during or after the execution of a search warrant. … Fu likewise has not received a receipt for the items seized on June 11, 2024….”
Background
Fu, owner of F&S Corporation, and his co-defendant, former Chief of Parole Nick Reyes, were charged with conspiracy to commit misconduct in public office, conspiracy to commit theft by deception, and one count of theft by deception.
Both have pled not guilty to the allegations.
According to the information filed by the Office of the Attorney General in Superior Court, on or about Oct. 4, 2022, on Saipan, “Nick Masga Reyes agreed with … Chuilian Fu that one or both would engage in or solicit theft of property by deception, to wit, the construction of a patio at the Parole Office purported to be constructed by a tailoring company owned by Chuilian Fu’s F&S Corporation in the amount of $9,997.80, but actually constructed by uncompensated labor performed by parolees under the direction of Nick Masga Reyes, made punishable by 6 CMC §1603.”
Discovery rules
In her order, Judge Kim-Tenorio said ordinary discovery rules apply to the Commonwealth’s subpoenas as to Reyes and Fu.
Fu and Reyes have alleged numerous deficiencies as to the Commonwealth’s acquisition of the defendants’ financial records through a subpoena.
At a hearing on July 2, 2024, the court heard a discussion on the evidence the Commonwealth obtained by its application of 4 CMC § 6454(a). The Commonwealth submitted ex-parte motions and subpoenas pursuant to a provision of the Right to Financial Privacy Act or RFPA of 1978, 12 U.S.C. § 3409.
The defendants objected and contended that a separate provision of the RFPA, 12 U.S.C. § 3413(e), rendered the RFPA inapplicable in this case.
The judge then allowed the defendants to file a motion to suppress evidence gained by way of these subpoenas.
However, Judge Kim-Tenorio granted the government’s motion for delayed notice subpoenas against F&S Corporation and Chris Leon Guerrero.
F&S is a tailoring company owned by Fu while Leon Guerrero is the CNMI Board of Parole chairman.
“F&S and Leon Guerrero are not parties in this litigation,” the judge said. “Businesses and their owners are separate legal entities. The RFPA provides [the] means by which government authority can acquire the financial records of nonparties.”
The judge added, “Since F&S and Leon Guerrero are not parties in this action, any alleged deficiency with the Commonwealth’s subpoena process would constitute a violation of the RFPA.”
She said if “defendants continue to allege deficiencies, F&S or Leon Guerrero may seek the remedies listed in 12 U.S.C. § 3417. Suppression is not one such remedy.”
The jury trial for the case has been rescheduled from July 15 to Jan. 13, 2025.
