But Assistant U.S. Attorney Eric S. O’Malley also said that the present joint motion of Villagomez, his sister Joaquina V. Santos and her husband, former Commerce secretary James A. Santos, should be denied by the federal court.
The federal court will hear the motion on Jan. 20, 2011.
O’Malley said the U.S. District Court for the NMI “has completed its job of ‘fact finding,’ and as [visiting] Judge [Mark W.] Bennett declared…he has left the ‘legal implications’ of his findings for the Ninth Circuit to assess.”
“As such,” O’Malley said, “the Ninth Circuit may be better positioned to assess the likelihood outcome for the defendants’ claims, and their present motion.”
On Nov. 24, 2010, Judge Bennett issued an order “settling” the record.
Bennett was on island last November and conducted evidentiary hearings on the defendants’ motion that the public was excluded during jury selection, which the prosecution denied.
The evidentiary hearings and subsequent order were “inappropriate uses of Rule 10 (e) [and] both should be stricken from the record,” O’Malley said, adding, “the defendants waived their right to use Rule 10 (e).”
According to O’Malley, Bennett’s Nov. 24 order “settling” the record is plainly unreasonable.”
“Even if the Nov. 24 order was properly issued and reasonable, it still does not present a fairly debatable question for appeal,” O’Malley argued.
He added “More importantly, however, the defense provided no evidence that anyone was actually excluded by it. The only ‘member of the public’ to testify that she was denied entry during jury selection was Rowena Aldan.”
Aldan testified that she had attempted to gain entry in the afternoon, when jury selection started, but she did not specify the time, O’Malley said.
“It might have been at the very beginning, when every seat was occupied by prospective jurors. And again, she specifically was told that she was not eligible to enter because she was a listed witness,” O’Malley said.
In sum, O’Malley said, “the fact that five U.S. Marshals, six court security Officers, and trial Judge Alex R. Munson were not able to convince Judge Bennett that members of the public had access to the courtroom during jury selection does not matter. What matters, is that the Nov. 24 order makes no affirmative finding that the security staff barred eligible members of the public from entering the courtroom when seats were available.”
In April 2009, Villagomez and the Santos couple were convicted of bribery, theft and wire fraud.
They have appealed their conviction to the U.S. Court of Appeals for the Ninth Circuit.
Villagomez, 48, is serving his sentence of seven years and three months in Tucson, Arizona.
Mrs. Santos, 51, and her 49-year-old husband each received a sentence of six years and six months in prison.
She is an inmate in Dublin, California while her husband is in jail in Atwater, also in California.
