ROTA businesswoman and principal of DFS Enterprises Abelina Mendiola has filed a civil complaint in Superior Court against the Office of the Attorney General and the CNMI government regarding the subpoenas served on her bank accounts.
Mendiola, represented by attorney Keith Chambers, filed two separate civil complaints for two subpoenas issued to her Bank of Guam account, and one subpoena issued to her Bank of Saipan account.
The lawsuits seek “a declaratory judgment that the subpoenas are null and void and have no legal force and effect.”
The complaint also requested the court to issue an injunction and stop the OAG from enforcing the subpoenas. Mendiola is likewise seeking judgment for attorney’s fees and costs, and other relief.
According to Chambers, his client “has a constitutional liberty interest, privacy, in keeping the contents of her bank accounts free from unreasonable searches pursuant to Article I, Section 10 of the Commonwealth Constitution.”
Mendiola and DFS Enterprises also have “a constitutional liberty interest, privacy, in keeping the contents of their bank accounts free from unreasonable searches pursuant to Article I, Section 3 of the Commonwealth Constitution and the Fourth Amendment of the United States Constitution,” Chambers said.
Moreover, “Ms. Mendiola and DFS Enterprises have a statutory liberty interest, privacy, in keeping the contents of their bank accounts free from unreasonable searches pursuant to 4 CMC § 6453,” he added.
Background
On or about Dec. 27, 2023, the OAG applied to the Commonwealth Superior Court clerk of court for a subpoena duces tecum or Subpoena 1 to be issued to the custodian of records of the Bank of Guam.
Subpoena 1 was labeled “PITA Case No. 23-02-01”; “Criminal Case No.” with no accompanying case number.
On Dec. 27, 2023, the clerk issued a subpoena duces tecum pursuant to the OAG’s application. Subpoena 1 received the clerk’s official seal.
On or about Jan. 19, 2024, the OAG applied to the clerk for another subpoena duces tecum or Subpoena 2 to be issued to the custodian of records of the Bank of Guam.
Subpoena 2 was labeled “PITA Case No. 23-15-02-01”; “Criminal Case No.” with no accompanying case number.
On Jan. 22, 2024, the clerk issued a subpoena duces tecum pursuant to the OAG’s application. Subpoena 2 received the clerk’s official seal.
According to Mendiola’s lawsuit, Subpoenas 1 and 2 request substantially the same materials with the notable differences being that Subpoena 2 includes language asking for “any and all records”; it also adds DFS Enterprises and includes a different bank account number.
Both subpoenas “requested” the plaintiff to provide as soon as possible to the OAG’s Criminal Division all Bank of Guam records and transaction records, i.e., account applications, deposit slips, withdrawal slips, wire transfer transactions, ATM and/or credit card transactions, cashier’s checks, copies (front and bank) of all checks drawn from all accounts, and bank statements for Abelina Mendiola’s accounts from January 2021 to present, including records of if and when the account was closed and the reason why the account was closed.
Bank of Saipan
On or about Dec. 27, 2023, the OAG applied to the Commonwealth Superior Court clerk of court for a subpoena duces tecum to be issued to the custodian of records, Bank of Saipan.
The subpoena was labeled “PITA Case No. 23-02-01”; “Criminal Case No.” with no accompanying case number.
On Dec. 27, 2023, the clerk issued a subpoena duces tecum pursuant to the OAG’s application. The subpoena received the clerk’s official seal.
According to the subpoena, Mendiola is “hereby ordered to provide as soon as possible and to the Office of the Attorney General, Criminal Division…all Bank of Saipan records and transaction records, i.e., account applications, deposit slips, withdrawal slips, wire transfer transactions, ATM and/or credit card transactions, cashier’s checks, copies (front and bank) of all checks drawn from all accounts, and bank statements for Abelina Mendiola’s account from January 2021 to present, including records of if and when the account was closed and the reason why the account was closed.”
The subpoenas stated that “failure to comply…may constitute the crime of contempt of court and a warrant may be issued for your arrest.”
The subpoenas also stated that they were “issued upon the application of the Office of the Attorney General for the Commonwealth of the Northern Mariana Islands, pursuant to Commonwealth Rules of Criminal Procedure 17(c) and in compliance with the Federal Right to Financial Privacy Act of 1978.”
Invalid
But Chamber said the subpoenas are invalid and otherwise null and void and have no legal force and effect.
“The Office of the Attorney General does not have the authority on its own to issue the Subpoenas,” the lawyer said. “Rule 17(c) of the Commonwealth Rules of Criminal Procedure does not give the Office of the Attorney General the authority to issue the Subpoenas.”
“Based on information and belief,” Chambers added, “there is no active criminal case in the Commonwealth Superior Court to which the Subpoenas are connected. Therefore, Rule 17(c) of the Commonwealth Rules of Criminal Procedure is inapplicable here.”
He noted that Rule 17(a) states in relevant part that subpoenas “shall state the name of the court and the title of the proceeding.”
Here, he said, the subpoenas do not state “the title of the proceeding,” because, based on information and belief, a criminal proceeding in this matter does not exist.
“Therefore, the Office of the Attorney General did not comply with Rule 17 of the Commonwealth Rules of Criminal Procedure,” Chambers said.
The OAG likewise did not comply with the Federal Right to Financial Privacy Act of 1978, which is made applicable to the Commonwealth by 4 CMC § 6454, the lawyer added.
He said the subpoenas “do not mention which provisions of the Federal Right to Financial Privacy Act of 1978 would permit the Office of the Attorney General to obtain the Materials of the Subpoenas under these facts.”
Chamber said the subpoenas are “unreasonable and oppressive” and there is no proper purpose for them. “The Subpoenas do not clear the necessary hurdles of (1) relevancy; (2) admissibility; and (3) specificity,” he added.
According to Variety news files, Abelina Mendiola was one of the officials of Luta Mermaid LLC, the owner of the former MV Luta.
In 2017, Luta Mermaid was sued by the OAG for, among other things, receiving $400,000 in public funds without authorization.
The $400,000 was a “loan” authorized by the Rota Legislative Delegation in 2015 to pay for the “fuel, lubrication, and costs necessary for the maiden voyage of MV Luta from Louisiana to Rota.”
In July 2019, Luta Mermaid agreed to repay the $400,000 in five years to settle the lawsuit.
In Feb. 2022, Sens. Edith Deleon Guerrero and Paul A. Manglona blamed the “lack of diligence” for the CNMI government’s failure to collect the $400,000 that Luta Mermaid owes the Commonwealth.
