ABELINA Mendiola, principal of DFS Enterprises, has filed a petition for a temporary restraining order and preliminary injunction against the Office of the Attorney General in Superior Court.
Mendiola, represented by attorney Keith Chambers, wants the court to issue a preliminary injunction pursuant to NMI R. Civ. Pro. 65(a), preventing the OAG and the CNMI from enforcing invalid subpoenas against the Bank of Guam until such time that the court has ruled on the merits of her complaint for declaratory judgment and injunctive relief in the same case.
Mendiola also requested the court to schedule an immediate hearing on her application for preliminary injunction and complaint for declaratory judgment and injunctive relief.
She asked the court to issue a temporary restraining order against the OAG to prevent it from enforcing the subpoenas until a hearing on her request for a preliminary injunction.
“Petitioners are prepared, if necessary, to give security for the issuance of the restraining order and/or preliminary injunction applied for in the sum deemed proper by this Court pursuant to NMI R. Civ. Pro. 65(c). However, Petitioners respectfully request that the Court set the sum at zero dollars because defendants will not suffer any financial costs or damages should the Court ultimately find that defendants were wrongfully enjoined and restrained,” Mendiola’s petition 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.
Relevance
In a 19-page memorandum, Chambers said “the subpoenas are not relevant or admissible because there is currently no criminal case to which they can be relevant or admissible.”
For a subpoenaed document to be relevant, it must be relevant to a matter that is currently before the court, the lawyer added.
Chambers said the plain language of Rule 1 of the Commonwealth Rules of Criminal Procedure shows that it only applies to criminal cases.
“It is fundamental that there must be a proceeding pending before the Court to which the subpoenaed material relates before the subpoena may be issued,” he added.
Here, 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, Chambers added.
Moreover, he said, “the subpoenas also do not articulate what specific crime or crimes allegedly took place.”
Chambers said it is clear that the OAG is using the subpoenas to go on a “fishing” expedition.
“That is, the Office of the Attorney General does not know whether Plaintiffs were involved in any criminal activity and is, therefore, requesting records of every financial transaction imaginable to discover whether a crime did in fact occur,” Chambers added.
“It cannot be said that there is a compelling purpose for the Office of the Attorney General’s issuance of the subpoenas because, without the existence of an active criminal case, it cannot be determined what ‘public purpose’ is being satisfied here.
“It is also impossible to find that the subpoenas are narrowly tailored to achieving a public purpose because, without knowing what the compelling interest is, it is not known if there are other less intrusive ways to obtaining the materials of the subpoenas, Chambers 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.
