Villagomez, through his counsel David J. Lujan filed a motion yesterday and said he is entitled to continued release on the condition previously set by the court while his appeal is still pending in the Ninth Circuit Court of Appeals.
Lujan said the motion is based on clear and convincing evidence that Villagomez is neither a flight risk nor a danger to the community, and the existence of appellate issues which should be deemed substantial.
He said after the jury returned its verdict of conviction against Villagomez, the court ordered that he be released on bail pending sentence.
“In permitting Villagomez’s release pending sentencing, the court made the specific findings which mandate Villagomez’s release pending appeal. That assessment was correct because Villagomez will appear on July 28 to accept the court sentence,” Lujan said.
The lawyer added that Villagomez had spent most of his life on Saipan, has a firmly-established and strong ties to his family, community and property, thus he will present no danger to the community if released.
Lujan added that Villagomez has no prior criminal record and his conviction arose from a factual context of being a public official.
Lujan pointed out that Villagomez spent nearly his entire life on Saipan, leaving only to attend college in Washington State and California over 20 years ago.
He said Villagomez came back to Saipan before finishing college to attend to his ailing mother.
Villagomez’s father was a pediatrician at the Commonwealth Health Center who passed away in 2005, and three of Villagomez’s four siblings live on Saipan as well.
For these reasons, Lujan said the prospect of Villagomez being a flight risk is virtually unthinkable.
Lujan added that the issue of whether Villagomez was tried by an impartial jury is most assuredly ‘fairly debatable’.
He said that the defense moved for a new trial on the grounds that Villagomez had been deprived of a fair trial by the failure of the jury to disclose critical information like blood relations of some jurors to government witnesses but the court denied the motion.
Lujan said that since the court denied the claim of juror bias, the issues that Villagomez will present to the Ninth Circuit on appeal are also ones of law including taking the allegations in the new trial motion as true, and if the fact that the jury included jurors who were related to government witnesses entitle Villagomez to either a new trial or an evidentiary hearing.
“If the Court of Appeals concludes that the answer to these questions is yes, it will reverse all of Villagomez’s convictions, remanding the matter to this Court for either a new trial or an evidentiary hearing on Villagomez’s new trial motion,” Lujan said.
He cited the Sixth Amendment to the Constitution guarantees the accused the right to trial by an impartial jury, but this right cannot be fulfilled when members of the jury are closely related to trial witnesses…” Lujan said.
He added that “the Federal Court’s denial of Villagomez’s motion for a new trial necessarily rests on its conclusion that a relationship of first cousin or niece between a juror and a government witness is not close.”
Lujan added that Villagomez’s Ninth Circuit appeal meets the definition of a substantial appeal as it will present the Court of Appeals with substantial issues that are “new and novel,” “unique facts not plainly covered by controlling precedents,” and important questions concerning the scope and meaning of decisions of the Supreme Court.
Villagomez and his co-defendants former Commerce secretary James A. Santos and his wife Joaquina Santos will be sentenced on July 28, 2009 after a jury convicted them guilty of all five counts conspiracy, wire fraud, theft of federal funds and bribery in connection with the Rydlyme scandal.
