Ogumoro’s, Kosam’s motion to dismiss charges denied

Superior Court Associate Judge David A. Wiseman has denied the motion of former Department of Public Safety deputy commissioner Ambrosio T. Ogumoro and former Commonwealth Ports Authority chief Jordan Kosam to dismiss the criminal charges against them.

In an eight-page order on Friday, Wiseman ruled that Ogumoro and Kosam patently ignore the crucial fact that the court exercised its inherent authority to appoint a special prosecutor to handle this particular case, and as such, each and every ground the two cited for dismissal is without legal or factual merit.

Wiseman found their arguments meritless, incredulous, and nearly sanctionable.

The judge denied any related argument based upon the Office of the Public Auditor’s supposed invalid authority to prosecute the case.

“The court will further investigate whether the arguments contained within the instant motion are subject to Rule 11 sanctions,” he said.

On Aug. 17, 2012, Wiseman appointed OPA legal counsel George L. Hasselback as special prosecutor and charged him with the investigation and prosecution of matters or persons that are connected or relevant to the charges filed against former attorney general Edward T. Buckingham.

On March 20, 2013, Hasselback filed an information charging Ogumoro with 15 different counts of criminal violations relating to misconduct in public office.

On Sept. 29, 2014, Ogumoro filed the motion to dismiss for lack of jurisdiction.

Attorney Edward Arriola Sr., counsel for Ogumoro, argued that OPA lacks constitutional and legislative authorities to prosecute the defendant, that the Office of the Attorney General has no authority to delegate his prosecutorial powers to the OPA or personnel within the agency, and that an executive order will not cure the violation of the separation of powers.

In the government’s opposition to the motion, Hasselback claimed that the court should “deny the motion in its entirety as the arguments…are based upon a complete misunderstanding of the salient facts surrounding the prosecution of this case.”

During the hearing of the motion last Oct. 22, attorney Joaquin Torres, counsel for co-defendant Kosam, joined in Ogumoro’s motion to dismiss.

In his order denying the motion, Wiseman cautioned Torres to exercise due diligence and first review its merits, if any, before making such future requests, as the court finds no merit in the motion.

Wiseman clarified that the court’s Aug. 17, 2012 order—which purported to delegate prosecutorial authority to counsel for the OPA pursuant to the court’s inherent authority to appoint a special prosecutor—is not the subject of Ogumoro’s challenge.

Wiseman said the court would not entertain such an argument, which was not made in neither Ogumoro’s written filings nor during the hearing.

Wiseman said the Commonwealth plainly, simply, and correctly argues that OPA was, in fact, designated as a special prosecutor by the court, which conferred absolute prosecutorial authority upon the OPA to prosecute this case.

Wiseman refused to acknowledge and dismissed as irrelevant the defendant’s reliance upon Superior Court Associate Judge Kenneth L. Govendo’s decision in the criminal case against former Aging Division director Rose Mondala.

In Mondala’s case, Govendo dismissed the case, citing a violation of the separation of powers doctrine and finding that “the AG has no authority to delegate his prosecutorial powers to OPA or personnel within the OPA.”

Wiseman recognized that the Mondala case has absolutely no bearing on the outcome of Ogumoro’s case—“as the two are polar opposites factually—and defendant’s conflicting arguments remain irreconcilable.”

In the Mondala case, Wiseman said the AG purported to assign or delegate prosecutorial authority to OPA, which the court said flies in the face of the AG’s exclusive authority to prosecute instances of criminal violations within the CNMI.

In Ogumoro’s case, Wiseman said the court again stressed that it exercised its inherent authority to delegate a special prosecutor to prosecute a criminal case, and appointed the OPA to represent the Commonwealth.

Wiseman said Ogumoro’s arguments fundamentally ignore obvious and readily apparent facts, of which he knew or should have known, in order to bolster arguments that are irrelevant, inapposite, and groundless.

He cautioned Ogumoro to refrain from filing frivolous or completely groundless motions, regardless of whether his lawyer claims he was unaware of essential facts that effectively render his entire motion moot.

OPA charged Ogumoro with 15 criminal charges for his role in, among other things, shielding then-AG Buckingham from being served with penal summons in August 2012.

Aside from Ogumoro and Kosam, OPA also filed criminal charges against former CPA police captain John T. Rebuenog, former governor Benigno Fitial and Fitial’s former personal driver and bodyguard, Jermaine Joseph W. Nekaifes, for their participation in shielding Buckingham from being served with penal summons.

Govendo dismissed the case against Nekaifes at Hasselback’s request.

Last Feb. 19, Govendo found Buckingham guilty of all public corruption charges except one and sentenced him to 3.5 years in prison, all suspended. Govendo recused from presiding over the cases against the remaining defendants.