Ogumoro’s argument borders on being frivolous—Warfield

Suspended Police Capt. Aniceto T. Ogumoro’s argument that the Attorney General’s Office’s appeal should be dismissed based on an untimely filing is without merit and borders on being frivolous, according to Chief Prosecutor Jeffery L. Warfield Sr.

Warfield said Ogumoro, due to his counsel’s presence when the documents were being filed in the Superior Court and CNMI Supreme Court, knows very well that the AGO’s notice of appeal was filed prior to the close of business on May 17, 2006.

In the government’s pleadings, Warfield asserted that, as chief prosecutor, he certified the notice of appeal and that is within his authority to do so.

Ogumoro had argued that the AGO’s appeal of Superior Court Associate Judge Kenneth Govendo’s decision that suppressed all the evidence seized during the raid at his house was untimely and therefore should be dismissed.

In his motion to dismiss the appeal, Ogumoro, through counsels Viola Alepuyo and Joseph James N. Camacho, said the AGO’s deadline to file an appeal of Govendo’s suppression order was May 17, 2006, at 3pm.

Alepuyo and Camacho said that, although the AGO’s appeal was filed on May 17, it is untimely because it was filed at 4:37pm in the Supreme Court.

The lawyers said the Superior Court’s deadline for daily business hours is 4:30pm, but the AGO filed the notice of appeal at 4:45pm.

“The government should be held to the same standard and rules as everyone seeking relief in this court and must suffer consequences of violating those rules the same as everyone else,” the lawyers said.

The lawyers also pointed out that the notice of appeal was certified not by the Attorney General, but by the chief prosecutor.

“The chief prosecutor of the AGO’s Criminal Division is an assistant attorney general but is not the Attorney General and the statute specifically mandates the Attorney General to certify the appeal,” they added.

In the government’s response to the motion, Warfield noted that Ogumoro concedes that the notice of appeal and certification was filed with the Superior Court on the 30th day.

“As a result, he [the defendant] can only argue that because the file stamp indicates a time of 4:45pm, the notice of appeal and certification should be deemed filed the next day,” Warfield said.

This argument is unpersuasive and disingenuous, Warfield said, citing that Camacho, attorney for the defendant, was present when the AGO arrived at the Clerk’s Office to file the notice.

Warfield said counsel for the government even talked with Camacho regarding the actual time versus the time indicated by the clerk’s stamp.

More specifically, Warfield said, the counsel pointed out that the Superior Court clerk’s clock was approximately 30 minutes ahead of the actual time.

The chief prosecutor said Ogumoro pointed out that the notice of appeal was filed in the Superior Court at 4:45pm and the AGO then “filed the same in the Supreme Court at 4:37pm.”

“As a practical matter, it is an impossibility that the notice of appeal could have been first filed at 4:45pm in Superior Court and then filed at 4:37pm in the Supreme Court unless the Clerk’s office is in possession of a time travel machine,” Warfield said.

With respect to the authority issue, Warfield asserted that the authority to certify the notice of appeal belongs to the AGO and not the attorney general himself.

Ogumoro argued that only the AG has the authority or ability to certify to the Superior Court that an appeal of the Superior Court’s order suppressing evidence is “…not taken for purpose of delay and the evidence is a substantial proof of actual material in the proceeding.”

But Warfield said there exists a series of cases that have examined the issue of whether the power to enforce the laws and prosecute violations of the law rests within the AGO or the person holding the office at any given time.

“The Courts, including this Honorable Court, has been very clear. The authority to prosecute cases and perform the functions necessary to carry out those prosecutions lie with the office and not the person,” he added.

In February 2006, police arrested Ogumoro after they raided his house where they allegedly recovered three rifles and 25 boxes of ammunitions. He pleaded not guilty.

On March 29, 2006 Govendo orally granted Ogumoro’s motion and suppressed all evidence seized during the raid at the defendant’s house on Capitol Hill on Feb. 10, 2006.

The AGO appealed to the High Court.