Preliminary hearing, affirmative defense issue placed under advisement

Attorney Richard W. Pierce confers with his client, former police officer Jesse S. Concepcion, during a break at yesterday’s preliminary hearing in the Superior Court. Concepcion and former Department of Public Safety commissioner James C. Deleon Guerrero are facing charges for allegedly sexually abusing a then-15-year-old girl in 2013. (Ferdie de la Torre)

Superior Court Associate Judge Joseph N. Camacho yesterday placed under advisement the preliminary hearing whether the government was able to establish probable cause to charge former Department of Public Safety commissioner James C. Deleon Guerrero and former police officer Jesse S. Concepcion.

Camacho also placed under advisement the issue whether Deleon Guerrero and Concepcion can raise affirmative defense at the preliminary hearing stage.

After conducting the hearing for four hours, Camacho said he will issue a written decision.

The judge started the preliminary hearing last April 22 and continued it yesterday after defense lawyers Richard W. Pierce and Matthew J. Holley raised the affirmative defense issue.

Camacho then ordered the parties to submit briefs on the affirmative defense issue. He heard the arguments yesterday.

During the continuation of the preliminary hearing yesterday, assistant attorney general Matthew Baisley, counsel for the government, asserted that they have presented sufficient evidence to establish probable cause as to all charges.

The Office of the Attorney General 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.

Baisley argued that in this case, Deleon Guerrero and Concepcion, both veteran police officers, were involved in prostitution when a minor girl was dropped to them at a secluded beach site with the understanding that she will get paid in exchange for sex.

Baisley said the girl at that time was under the immediate authority of the two men.

“That’s inherently coercive. That’s immediate authority,” the prosecutor said, adding that the girl can’t escape and had no option at that time.

Baisley said inherently coercive is what the CNMI Legislature was really concerned about when adults engaged in sex with minors.

On the conspiracy charges, Baisley said they have presented substantial evidence that the defendants agreed to meet with the girl at the beach for sex.

The prosecutor said Concepcion knew that the girl was a minor then.

“We have enough evidence to move this case forward,” he pointed out.

Baisley said they also have circumstantial evidence to support probable cause as to the charges of conspiracy.

On the misconduct charges, Baisley said it is simply incredible that Deleon Guerrero and Concepcion used a DPS vehicle when they had sex with the girl.

Holley, counsel for Deleon Guerrero, argued that there’s no evidence that Deleon Guerrero used his position as then-DPS commissioner to coerce the girl to have sex with him.

Holley said there’s no evidence that Deleon Guerrero and Concepcion have position of authority over the girl.

Holley said the government failed to establish probable cause as to the charge of sexual abuse of a minor in the first degree.

Holley said the government is only making up this coercive environment issue.

Holley said the government has failed to meet even the threshold of probable cause.

On the conspiracy charges, Holley said the evidence showed that Deleon Guerrero and Concepcion did not know that the girl is a minor.

Holley noted that Federal Bureau of Investigation special agent Haejun Park testified that Deleon Guerrero and Concepcion were both surprised when he told them that the girl is a minor.

“That’s contradictory to conspiracy,” the lawyer pointed out.

Pierce, counsel for Deleon Guerrero, said there’s not one piece of evidence elicited from the government’s witnesses that defendants have position of authority over the girl.

Pierce said the government made up this coercive idea as this is not even in the statute.

When Saipan Tribune left the courtroom late yesterday afternoon, the parties were about to start arguing the affirmative defense issue.

In Concepcion’s brief, Pierce said if the point of the preliminary hearing is to determine whether a crime was likely committed and whether the defendant likely committed it, the affirmative defense negates the existence of the crime and the liability of the defendant.

“There is no reason to proceed to trial if it is likely that no one committed a crime,” said Pierce in Concepcion’s response to the government’s opening brief on the affirmative defense issue.

Concepcion and Deleon Guerrero have asserted an affirmative defense that they believed then that the girl they allegedly sexually assaulted was not a minor.

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

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.

At a preliminary hearing last April 22, FBI special agent 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.

Deleon Guerrero and Concepcion are both under house arrest after posting $25,000 and $10,000 cash bail plus property, respectively.