Fitial begs for no prison term

Former governor Benigno R. Fitial is requesting for a lenient sentence of no prison term, but Office of the Public Auditor legal counsel George L. Hasselback is recommending to slap him with a two-year imprisonment with no parole, while chief prosecutor Leonardo Rapadas is recommending a sentence of more than a year in prison.

Benigno R. Fitial

Attorney Stephen J. Nutting, counsel for the 69-year-old Fitial, submitted on Friday in Superior Court a memorandum that recommends that if the court determines a term of imprisonment be imposed, that it be suspended sentence in its entirety, on the condition that Fitial pay an appropriate fine, and restitution to for any loss to the government which might be proven for the crimes he now stands to answer for.

“Subjecting Mr. Fitial to further punishment in the way of a term of incarceration as will be recommended by the government, would not serve the interest of justice, nor would it serve the interests of the Commonwealth,” Nutting said.

Nutting also cited Fitial’s background and extensive record of service to the Commonwealth, including as a former House speaker.

OPA legal counsel Hasselback, who is serving as a special prosecutor in the case, filed a memorandum on Thursday, that recommends a sentence of five years imprisonment, all suspended except for two years with no possibility of parole, a fine of $5,000 and a 10-year ban on employment with the CNMI government.

“Such a sentence would punish the defendant for his blatant arrogance in treating the time, money, and resources of the CNMI’s law enforcement agencies as his own private property and dispatching the good men and women who serve our community away from their duties to protect the public with the express purpose of breaking the law,” Hasselback said.

In the government’s memorandum filed on Friday, chief prosecutor Rapadas recommends a one-year sentence to be served at the Department of Corrections, with such sentence to be served consecutively to any sentence imposed for count seven conspiracy to commit theft of services. Rapadas asks the court to impose a fine, with the amount at the court’s discretion.

“This court should send a message to all offenders that the laws must be respected and that the laws apply to government officials equally,” Rapadas said.

Associate Judge David A. Wiseman will hold the sentencing on June 24, 2015 at 1:30pm.

Last May, Fitial pleaded guilty to the charges of misconduct in public office and conspiracy to commit theft of services.

The offense of misconduct in public office refers to the time when Fitial had his masseuse—a female Chinese who was at that time a federal prisoner at the Department of Corrections—temporarily released so she could massage him at his house on Jan. 8, 2010.

The conspiracy to commit theft of services refers to Fitial’s role in former attorney general Edward T. Buckingham’s efforts to evade lawful service of process during his departure from the Commonwealth at the Francisco C. Ada-Saipan International Airport on Aug. 3 or 4, 2012.

Fitial resigned as governor on Feb. 20, 2013, days after the House of Representatives impeached him on charges of corruption, felony, and neglect of duty.

In the sentencing memorandum, Nutting said Fitial has already been severely punished for his actions; he is no longer the proud governor of the CNMI; will likely go down in history as the first governor of the CNMI to have been impeached, and then convicted of crimes committed while in office.

Nutting said Fitial, his wife and children, have been in constant anguish over the uncertainty of these proceedings and the potential harsh consequences he now faces.

At the same time, he said, these worries were only compounded by Fitial’s ongoing struggle with diabetes and his health, and the intensive physical therapy he must undergo to stem the slowly degenerating disease which plagues him.

Further punishment, he said, would only serve the demand for senseless retribution voiced by those few adversaries who either fail, or are unwilling to recognize all of the positive things Fitial did for the Commonwealth while he was in the executive office and over the course of his long and distinguished career.

On the escort of the masseuse, Nutting explained that in the late evening of Jan. 7, 2010, on the very eve of his second inauguration celebration, Fitial was suffering from severe and excruciating back pain that prompted him to call the Department of Corrections director to escort the masseuse to provide him treatment he needed.

Nutting said no charges were ever brought by the U.S. Attorney or the CNMI Attorney General against Fitial, or anyone else connected with such escort.

Nutting said then-U.S. District Court for the NMI Chief Judge Alex R. Munson did not impose any sanctions or reprimand against Fitial or the Department of Corrections for their actions related to the escort.

While the incident caused no small amount of embarrassment to then governor Fitial, it caused little, or no damage to the Commonwealth.

Nutting said seeking the escort, Fitial overstepped his lawful authority, and such gave rise to the charges.

Nutting pointed out that the nature of this misconduct does not warrant a term of incarceration, especially now, five and one half years after the event.

On the Buckingham escort, Nutting said Fitial’s action in this matter were far different from those of Buckingham.

Nutting said first and foremost, Fitial, although a part of the conspiracy to give Buckingham an escort to the Saipan International Airport, gained no benefit from that conspiracy.

Second, and unlike Buckingham, Nutting said Fitial did not flee the CNMI after having been served with process when the conspiracy proved fruitless.

To the contrary, Nutting said, Fitial voluntarily returned to the CNMI to answer the charges, sparing the CNMI the expense of seeing extradition.

He said third and unlike Buckingham, Nutting said, Fitial has accepted responsibility for his actions and has spared the CNMI the expense of a lengthy and highly publicized trial, and the possible appeals which might follow.

Superior Court Associate Judge Kenneth L. Govendo found Buckingham guilty of six charges and imposed a suspended sentence, citing to the former AG’s service to the CNMI, his age, and medical issues.

In his recommendation, Hasselback said Fitial’s complete neglect of his oath of office deserves censure and this sentence would appropriately punish his wrongdoing.

Such a sentence, Hasselback said, would serve as a strong deterrent to present and future elected officials, so that they do not emulate the defendant’s deplorable actions.

Hasselback said while Fitial does not pose any direct physical threat to the safety of the CNMI’s citizenry, the court should carefully consider the significant impact that the fraud, waste, and abuse of government funds and property involved in such instances of public corruption have had upon the general state of the Commonwealth.

On the contrary, he said, a light sentence in this matter (perhaps out of sympathy to an infirm individual who no longer occupies public office) would shake the public’s confidence in the legitimacy of the CNMI government.

“It would send a strong message that high-level elected officials were immune from the punishment that the CNMI’s law carries for criminal action,” Hasselback said.

Hasselback said Fitial has admitted to conspiring with others to provide services over which the defendant had control to a person who was not entitled to receive the benefit of those services.

Hasselback said Fitial has admitted those services included an armed escort of police officers to help another person avoid service of a judicial summons.

He said Fitial was not only the highest-placed government official who participated in this conspiracy to break the law, but also the one who initiated the conspiracy, gave marching orders to various members of the conspiracy and actively participated in the conspiracy throughout its entire implementation.

Fitial’s brazen actions he said, were not only in complete opposition to his sworn duties as governor of the CNMI, but made the entire conspiracy possible.

In the government’s recommendation, Rapadas said Fitial ordered the release of his personal masseuse who was in federal custody at the time from federal detention.

Rapadas said Fitial has not sought a court order from the federal judge.

Rapadas said defendant’s “order” was in contravention with the district court’s detention order.

“He additionally did this surreptitiously, very late at night, in the hopes that federal officials would not catch him. When he did this, he involved others in CNMI law enforcement,” the chief prosecutor said.

Rapadas said unfortunately, federal officials did find out and when he was summoned to federal court to determine what had occurred and if he had compromised the federal case, he sent his appointed attorney general to convince the U.S. Attorney to withdraw the government’s subpoena.

When that did not work, Rapadas said Fitial continued to fight the subpoena.