He noted that the court was being asked by the U.S. government “to occupy an essentially investigatorial role in support of a motion which is, perhaps unavoidably, entirely speculative at this point in time.”
However, he added, the U.S. government “has sufficient investigatory resources at its disposal, and sufficient processes and procedures, to conduct its own enquiry into the facts surrounding this unprecedented event.”
Munson said he could entertain a new motion, should the U.S. government “be able to offer some evidence in support of its concerns.”
“The court concludes that it is inappropriate at this juncture to inject itself into such proceedings,” Munson added.
In an e-mail, Assistant U.S. Attorney Eric O’Malley said “the [U.S.] government has closely read the order and understands its meaning and rationale.”
He added, “Going forward, our office will continue its mission, to aggressively investigate and, if warranted, prosecute any violation of federal law.”
O’Malley had asked for an evidentiary hearing, which Munson granted, after U.S. authorities learned that federal detainee Qingmei Cheng was “transferred” by four corrections officers, including Commissioner Dolores M. Aldan, to Gov. Benigno R. Fitial’s residence in the early morning of Jan. 8.
Cheng, held without bail at the corrections facility, has been charged with 22 counts of attempting to bring aliens into the United States.
Cheng is also Fitial’s masseuse.
Her court-appointed lawyer Joseph Horey yesterday said that appropriate action will be taken if it was determined that the rights of his client have been compromised.
He declined to further comment.
In his order, Munson stated: “Without commenting further at this point, the court has sufficient resources to determine if one of its orders has been violated and to impose sanctions therefore if it concludes that such has occurred.”
Munson said that facts that led to the U.S. government’s “request for an evidentiary hearing are unique in the court’s experience.”
Munson added: “As acknowledged by the U.S. attorney…all subpoenaed participants at the evidentiary hearing face at least some possibility of being deemed criminally culpable. Because of that, the court is also concerned that it might need to assure individual counsel for each person subpoenaed.”
“At this point,” the judge added, “the evidentiary hearing will have become a full-blown adversarial proceeding but no one involved — the court, the plaintiff, or the subpoenaed parties — will have any idea where it is going, if anywhere.”
He said “given the paucity of ground other than ‘possible prejudice’ to the plaintiff and defendant, traditional investigation and use of the grand jury are more appropriate than a speculative, open-ended fact-finding hearing conducted under the aegis of the court.”
Attorney General Edward T. Buckingham and Assistant Attorney General David Lochabay moved that the subpoenas for Fitial, Aldan, Capt. Georgia Cabrera, Capt. Arnold Seman and Officer Abigail Borja be quashed, and the order for the evidentiary hearing be vacated.
Fitial, Aldan, Cabrera, and Borja each executed an affidavit or declaration regarding their participation in the controversy.
Buckingham told KSPN 2 yesterday that he was “feeling great” about Munson’s order.
He was also quoted as saying that Fitial “uses massage for pain management [and] not for sex.”
The local AG’s Office set out three grounds for quashing the subpoenas and vacating the evidentiary hearing, “and the court finds all three arguments well-taken.”
The court said the first argument was that the U.S. government has not shown that there was any prejudice to either its case or to Cheng’s rights, and “that such a showing is a predicate to an evidentiary hearing.”
Munson said the court agrees that the U.S. government “must provide at least some facts tending to show evidence of the prejudiced alleged.”
In the massaging of Fitial by Cheng at his residence, the court said the U.S. government “has only expressed a legitimate but wholly unsupported concern that its case or [Cheng’s] rights may have been prejudiced by the unusual events.”
“The court is now persuaded that [the U.S. government’s] burden is greater than that and has not been met,” Munson said.
The court also noted that “[Cheng] has a lawyer with whom she can speak confidentially and openly.”
“It is her attorney’s duty, and not that of [the] plaintiff, to determine if [the] defendant’s rights have been compromised,” Munson said.
