Ex-CUC manager’s request for release thumbed down

Superior Court Associate Judge Alex R. Munson has denied the request of former Commonwealth Utilities Corp.’s Water Division laboratory manager Pedro Q. Babauta to be released from jail pending his appeal.

In denying the motion for release, Munson ruled that Babauta has not shown a substantial question of law or fact.

Munson had imposed in September 2005 a one-year jail term on Babauta, who was convicted of submitting false documents. The defendant, through counsel G. Anthony Long, appealed.

Long argued that Babauta is entitled to a new trial on count five because the jury was not instructed on an essential element of the charge: that the defendant had a duty to report test results and he violated this duty by concealing test results and not reporting them at all, as opposed to including falsified data in the submitted reports.

Babauta requested a jury instruction stating that he had a duty to report such information.

Long also argued that the defendant is entitled to a new trial on both counts four and five because the court ruled as a matter of law, rather than letting the jury decide that the U.S. Environmental Protection Agency had granted primary enforcement authority to the Division of Environmental Quality, such that, legally, DEQ “stood in the shoes” of the EPA.

Long said the court’s ruling “effectively took away from the jury the determination of the essential jurisdictional element the government had the burden of proving beyond a reasonable doubt.”

The lawyer finally argued that the one-year sentence is not reasonable.

In his order, Munson said the prosecution was entitled to an instruction consistent with its theory of the case; the elements of proof did not change or multiply simply because evidence that may have showed concealment was also introduced as part of the evidence of false statements.

On the second argument, Munson said “because the question presented to the court was strictly one of law and was not an issue for a fact-finder, it was properly decided by the court, and not the jury.”

As for the reasonableness of the sentence, Munson said the court cannot discern any substantial question of law concerning the exercise of its reasoned discretion to impose a sentence and the court’s reasons for departing from the advisory guidelines were stated on the record at sentencing.

Babauta was charged with falsification of some monthly water test reports to conceal the presence of total coliform bacteria and fecal coliform in the CUC public water system from 1999 to 2003.

The jury found him guilty on two counts of submitting false documents, but also acquitted him on two other counts of submitting false documents.

The court declared a mistrial on one count of conspiracy to defraud the Environmental Protection Agency due to a hung jury. A hung jury occurs when the jurors are unable to reach a unanimous verdict as to the charge or charges.

A joint investigation conducted by the CNMI Division of Environmental Quality and U.S. Environmental Protection Agency revealed that Babauta hid positive test results for the presence of E. coli and coliform bacteria.

The presence of fecal coliform bacteria indicates that drinking water may be contaminated with human or animal wastes. Microbes in these wastes can cause short-term effects such as diarrhea, cramps, nausea, headaches, as well as other negative health effects, the U.S. government said.