Ex-DPS chief asks court to consider his defense

Former Department of Public Safety commissioner James C. Deleon Guerrero is asking the Superior Court “in the interest of justice” to consider at the preliminary hearing his and co-defendant Jesse S. Concepcion’s affirmative defense that they believed then that the girl they allegedly sexually assaulted was not a minor.

In Deleon Guerrero’s opposition yesterday to the government’s opening brief on the affirmative defense issue, defense counsel Matthew J. Holley noted that from the very same reports that the government wishes to establish probable cause, they elicited evidence that the defendants reasonably believed that the alleged victim was not a minor.

Holley said CNMI law requires that the accused be permitted to raise an affirmative defense at the preliminary hearing.

Holley said an affirmative defense, by its very nature, is the gateway for the court to weed out groundless claims.

The lawyer said pursuant to a statute, if the accused so chooses, the court must allow him to present evidence on his own behalf, including any evidence supporting an affirmative defense, in the court’s determination of probable cause.

In the government’s brief, the Office of the Attorney General said the court should not allow Deleon Guerrero and Concepcion to sidestep a jury trial by permitting them to present an affirmative defense at the preliminary hearing stage.

Assistant attorney general Matthew Baisley said Deleon Guerrero and Concepcion, both seasoned police officers, are presenting the affirmative defense that they believed a 15-year-old girl was 24, 19, or 18, depending on which of their statements one chooses to believe.

Baisley said according to the defendants, they need not present this defense to a jury of their peers—a defense that revolves exclusively around their credibility and the credibility of their statements—but instead should be permitted to sidestep a jury trial, and have this court grant a defense for which they have yet to produce a single piece of admissible evidence.

“While defendants’ brazenness is unparalleled, their position is easily answered,” the prosecutor said.

At a preliminary hearing last April 22, Federal Bureau of Investigation special agent Haejun Park testified that Deleon Guerrero and Concepcion confessed during his interview that they had sex with a girl at a secluded San Antonio beach site in June 2013.

Park said Deleon Guerrero, 44, and Concepcion, 45, were surprised when he told them that the girl was a minor and was then only 15 years old.

Superior Court Associate Judge Joseph N. Camacho continued the preliminary hearing to May 9, 2016 at 1:30pm after an issue arose regarding affirmative defense.

Camacho ordered the prosecution and the defense counsel to submit briefs on the affirmative defense issue.

The issue was that “in a prosecution under 6 CMC 1303-1309, whenever a provision of law defining an offense depends upon a victim being under a certain age, it is an affirmative defense that, at the time of the alleged offense, the defendant reasonably believed the victim to be that age or older, unless the victim was under 13 years of age at the time of the alleged offense.”

OAG charged Deleon Guerrero and Concepcion each with one count of sexual abuse of a minor in the first degree, two counts of misconduct in public office, and two counts of conspiracy to commit sexual abuse of a minor in the first degree.

The defendants are both under house arrest after posting $15,000 and $10,000 cash bail plus property, respectively.