Banes: New evidence vs Atalig will only mislead, confuse jurors

The case against Rota Mayor Efraim M. Atalig involving five different trips is already a complicated one and that the U.S. government’s intent to introduce evidence related to three additional trips at trial in which he was not charged with, will only mislead and confuse the jurors later at trial, according to defense counsel David George Banes.

In Atalig’s motion in limine, Banes said the U.S. District Court for the NMI should preclude the U.S. government from introducing at trial evidence related to the three additional trips.

Limine refers to a motion filed before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial.

“This is already a complicated case involving five different trips with thousands of pages of discovery that will most certainly require numerous witnesses and exhibits at trial,” said Banes, who was appointed by the court Wednesday as counsel for Atalig.

The lawyer said the three additional trips that the U.S. government intends to introduce at trial have nothing to do with the five trips charged.

Banes said even if they have some relevance, their probative value is outweighed by prejudice.

“There is no good reason to complicate this case even more by having a full-blown trial within a trial now and running the risk of misleading and confusing the jury later at trial,” he pointed out.

The defense lawyer said in this case, the prosecution essentially accuses Atalig and his co-defendant, Evelyn M. Atalig, of defrauding the CNMI government by going on five trips on government money.

Banes said less than two months from the scheduled trial date, the prosecution notified him that it intended to introduce at trial under Rule 404(b), evidence relating to three additional trips.

Banes said the prosecution claimed there was a “pattern” of using government money for personal trips.

He said the prosecution produced more than 600 pages in discovery related to two of those three trips, and indicated more might be coming for the third one.

Banes said none of the three trips is charged either in this federal case or Atalig’s criminal case pending in the Superior Court.

Banes said the only way the prosecution can use to link the three additional trips to the charges in this case is to argue Atalig has a propensity of defrauding the CNMI government.

The lawyer said if the prosecution contests this motion, just to resolve it will require a full-blown trial within a trial to decide whether Atalig did anything wrong regarding the three additional trips.

He said this does not mean that Atalig himself or Evelyn Atalig should be precluded from introducing evidence related to trips not charged in the superseding indictment.

Banes said Rule 404(b) permits prior act evidence to be offered to show certain non-propensity purposes, but only if the U.S. government meets a four-part test.

Banes said even if the four-part test is met, prior act evidence is inadmissible if its potential prejudicial effect outweigh its probative value.

He said there is insufficient evidence to prove that, regarding the three additional trips, Atalig defrauded the CNMI government.

Banes said the U.S. government has not included those three trips in the alleged scheme in the superseding indictment.

He said the U.S. government has produced so far discovery materials related to only two of the three additional trips.

He said one was the trip to Guam where the Chamorro medicine conference was held and the second was the South Korea trip where the Little League District Tournament took place.

Banes said those discovery materials do not show Atalig defrauded the CNMI government.

Banes said regarding the trip to Guam, the discovery materials suggest that Atalig, while on Guam, did not attend all the days of the Chamorro medicine conference, but went to a meeting with the Guam Mayors’ Council and visited different mayors on Guam.

Banes said there is no evidence showing the meeting or the visits were not done in the interest of the CNMI government nor is there any evidence showing Atalig had the intent to defraud the CNMI government.

In fact, the lawyer said, the discovery materials show that the trip was investigated by the CNMI Office of the Attorney General, but Atalig is not charged in this criminal case pending in the Superior Court for this Guam trip.

As to the South Korea trip, Banes said the discovery materials show that the CNMI Office of Public Auditor investigated the use of funds given to the Little League Association and concluded that no violation of law or regulation occurred.

Banes said Atalig is not charged in his criminal case pending in the Superior Court for this South Korea trip.

Banes said the fact that Atalig went on the three additional trips had no bearing on any material point in this case.

On the other hand, he said, allowing the jury to hear evidence about those three trips would likely mislead and confuse the jury as to the issues to be decided in this case, and cause the jury to convict Atalig because they think in general that something was wrong or that Atalig had a bad propensity.

In federal court, Atalig and his girlfriend, Evelyn M. Atalig, are indicted with five corruption charges for arranging CNMI government-funded trips to California, Republic of Palau, Guam, and Saipan under fraudulent pretenses.

Banes said the California trip was on March 2018 in San Diego, California where the 9th Annual Chamorro Cultural Festival was held.

He said the Palau trip was in May 2018, where a man’amko cultural exchange between Rota and Palau was held.

Banes said the Guam trip was in June 2018, for which the U.S. government claims the true purpose was to attend a political rally.

He said one Saipan trip was in April 2018, where the 23rd Micronesia Islands Forum and the Flametree Festival where held.

He said the second Saipan trip was in August 2018, where the Agricultural Fair was held, for which the U.S. government claims the true purpose was for Atalig to participate in organized campaign events.

In the Superior Court case, the Office of the Attorney General filed criminal charges against Atalig and seven other Rota municipal officials in connection with the Guam political rally.

The Ataligs pleaded not guilty of all charges.