Judge finds accuser not credible; 3 alleged assaults did not occur

U.S. District Court for the NMI Chief Judge Ramona V. Manglona has determined that a security guard who filed a sexual harassment lawsuit against Hopwood Junior High School principal Jonas Barcinas and the Public School System is simply not credible and that the three alleged sexual assaults did not occur.

Manglona said she finds that Homayan Kabir aggressively searched for witnesses for the sexual assault charges and didn’t care whether they lied.

Manglona also determined that Kabir needed money and this was a substantial factor in bringing his lawsuit.

“For these reasons, the court finds his testimony not credible,” said the judge in her findings of fact dated Aug. 29, 2013.

Manglona filed the findings under seal. On Thursday, she unsealed her findings as she dismissed the lawsuit after Kabir, Barcinas, and PSS reached a confidential settlement.

Manglona made the determination after conducting an evidentiary hearing on June 25 and 26, 2013, and closing arguments on July 1, 2013.

When asked for comments about the judge’s determination, attorney Joseph Horey, counsel for Kabir, told Saipan Tribune yesterday that Manglona’s ruling covered only one of the four claims in the case.

Horey said Kabir disagrees with Manglona’s findings, but understands that it can sometimes be difficult to know who to believe in a “he-said, he-said” case like this.

Horey said that Kabir’s other three claims would still have gone to the jury if the case had not settled.

“As we know from criminal cases, the judge and jury sometimes disagree. The jury may well have taken a more favorable view of Kabir’s credibility than Judge Manglona did, especially considering that some new evidence only came to light after her ruling,” he said.

Anyway, the lawyer said, the issue is now moot since the parties have reached a settlement that is reasonable and acceptable to all sides.

“Kabir is glad to have finally come to an end of this matter,” Horey added.

At the evidentiary hearing, the court heard the testimony of nine witnesses: Three for Kabir (Kabir himself, his wife, Cynthia Attao, MD Moklesur Rahman) and six for Barcinas (Elphedia Sablan, James Ramon, Efrin Borja, Johnny Sam, and Hermana Ling).

At the hearing, Kabir testified that Barcinas sexually assaulted him three times in 2005—once in June, once in July, and once in September.

Barcinas denied the allegations.

Kabir owned Eagle Security Services, a company hired to provide security services to Dandan Elementary School. He also worked as a security guard for the company.

Kabir is married to Attao, who is related to both Barcinas and witness Elphedia Sablan. At the time, Barcinas was the school’s principal and Sablan worked with Attao at the governor’s office. Ramon was a teacher at Dandan Elementary School, while Borja and Sam were both school bus drivers.

In finding Kabir’s testimony not credible, Manglona said bus drivers Borja and Sam both testified that Kabir came to them looking for a witness for his sexual assault charges. To both, Kabir said he would pay them $5,000 or $10,000, and that the money was to come from the winnings from his lawsuit.

Borja testified that Kabir said he could not find a job anywhere, and that was why he was suing. Borja also testified that Kabir told him to make up a story, which Borja took to mean that Kabir wanted him to lie.

Sam testified that Kabir also aggressively sought him as a witness, and they met twice. Sam found the first meeting so odd that he secretly taped the second meeting.

It is unclear whether Kabir told Sam that he wanted him to lie, but Kabir did say at the second meeting that he did not want any lying, which he did not say at the first meeting.

Manglona said another motivating factor for this lawsuit is spite.

“Kabir was a poor security guard and was also poor at completing the paperwork necessary for the job. This suggests that he was not involuntarily assaulted, and therefore, diminishes his credibility,” Manglona said.

The judge noted that Barcinas explained that he only hired Kabir to help his cousin Attao.

Manglona said the Dandan school was vandalized during Eagle Security’s service—13 classrooms were burglarized—and Barcinas credibly testified about numerous occasions where Kabir’s paperwork was deficient.

Barcinas also testified about an incident in August 2006, about a year after the three alleged sexual assaults, where Barcinas argued with Kabir in his office over his time sheets. Barcinas believed Kabir was lying on his time sheets and confronted him about it and shouting ensued. Kabir called Barcinas a liar. Barcinas told him to get out of his office. Afterwards, teacher Ramon entered Barcinas’ office.

Manglona said Ramon corroborated this event. Ramon also testified that he heard Kabir repeatedly say that he would sue Barcinas.

The judge also found Attao’s testimony not credible for several reasons.

One reason cited was that Attao testified that in 2005 she knew Barcinas sexually assaulted Kabir. Yet Sablan’s testimony indicated that, in 2006, Attao did not know this, Manglona said.

Manglona said Attao never addressed this deficiency, despite being recalled to the stand after Sablan’s testimony.

“For this reason, the court finds Attao’s testimony lacking credibility,” the judge added.