Theft charges against ex-Rota mayor, co-defendants dismissed

Superior Court Associate Judge Joseph N. Camacho has dismissed the theft charges filed against former Rota mayor Melchor A. Mendiola and four other former Rota municipal employees, and vacated the jury trial set for Jan. 25, 2016.

Mendiola and co-defendants Stacey Atalig, Tina Atalig, Alfred Apatang, and Bernard Apatang, however, are still facing a criminal case charging them each with possession or removal of government property offense. The charge is for bench trial and not for jury trial.

In an order issued on Saturday, Camacho dismissed with prejudice the case charging Mendiola and co-defendants with theft.

Dismiss with prejudice means the prosecution cannot re-open the case anymore.

Camacho said the government should not be able to charge, dismiss, and re-charge cases until it gets the outcome it wants, a sort of conduct that Rule 48(a) of the Criminal Rules of Procedure seeks to prevent.

Camacho reminded the government that “while [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones.”

Camacho said it is as much a prosecutor’s duty to “refrain from improper methods to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

The judge noted that it is obvious that the government’s motion is a “motion for leave to amend” and a “motion to continue” disguised as a “motion to dismiss.”

In essence, Camacho said, the court’s concern is that the government will proceed with possession or removal of government property and will move to amend the information to include theft.

This, the judge pointed out, in effect circumventing the court’s earlier order in the theft case denying the government’s motion to amend.

Camacho issued on Saturday the order dismissing the case and a separate order vacating jury trial after listening to the counsels’ arguments on Friday on the government’s motion to dismiss theft charges without prejudice.

Defendants, through counsels, opposed the motion to dismiss the theft charges without prejudice. They asked the court to instead dismiss the charges with prejudice, which means the prosecution cannot re-open the case.

Assistant public defender Tillman Clark, counsel for Stacey Atalig, said there was no explanation of the government’s filing of possession or removal of government property with a week before the trial.

Clark said the prosecution wants to file, amend, dismiss, and re-file charges into infinity. He said the government is basically amending the case.

Attorney Thomas E. Clifford, counsel for Alfred Apatang, said he agrees with everything that Clark stated.

Clifford said the court should enforce the rules of criminal procedure.

Attorney Matthew Gregory, counsel for Tina Atalig, said the government’s action is in violation of pre-trial order and prejudice to his client.

Gregory said the court should enforce the rules of criminal procedure to prevent people living perpetually under threat of charges.

Attorney Bruce Berline, counsel for Bernard Apatang, said the case was filed 10 months ago and that he does not understand why they are still in court.

“I think enough is enough! The court should dismiss this case with prejudice,” Berline stressed.

“How about fiscal responsibility?” said Berline, pointing out that the case has been pending in court for 10 months now and as court-appointed counsels he and co-lawyers have yet to get paid in this case.

Berline said he spent plane tickets for the scheduled trial and other expenses using his credit card.

“Where’s the AG’s (Attorney General) credit card? That’s my credit card,” he said. “It got to be stopped.”

Attorney Joaquin Torres, counsel for Mendiola, said the idea of innocent until proven guilty seems thrown out of the window in this case.

“I think at some point the court has to make a decision,” Torres said.

Assistant attorney general Baisley said it is inappropriate to rule in defendants’ favor without full briefing and case law presented.

Baisley said it is extra ordinary to dismiss the case with prejudice.

Baisley said the suggestion that the case sat on his lap is not fair.

In his order on Saturday, Camacho said as the hearing progressed, it became increasingly clear that under some unspecified circumstances, the government might again charge the defendants with theft.

Camacho said he is not aware of what situation would prompt the Commonwealth to re-file the theft charges.

Camacho said since this case was so close to trial, a significant amount of funds had already been expended by the judiciary and defense counsel.

He said court marshals have flown from Saipan to Rota multiple times to serve jury summons in this case.

Camacho said taking into account the trips to Rota, the attorney’s fees for the court-appointed private counsels, and the costs of making repairs to the Rota Courthouse, the judiciary has already spent over $50,000 on this case.

Camacho noted that the items alleged to have taken in this case care are four laptops with values ranging from $975 to $2,049, as well as nine picnic tables.

In his order to show cause last week, Camacho ordered Baisley to explain why the government filed on Tuesday the penal summons with attached information charging the defendants each with possession or removal of government property when the government filed on Monday a motion to dismiss the case charging the defendants with theft.

In his response to the order to show cause, Baisley asserted that the Commonwealth moved to dismiss the charges of theft because it intends to proceed forward against defendants on the possession or removal of government property charges.

On Thursday, Camacho vacated the hearing as to the order to show cause.

On Friday, Camacho heard arguments on the government’s motion to dismiss theft charges without prejudice.