Superior Court Associate Judge David A. Wiseman issued yesterday a bench warrant for the arrest of Attorney General Edward T. Buckingham for not appearing in court despite penal summons served on him by an FBI special agent.
Wiseman imposed a $50,000 cash bail for Buckingham. He determined that the AG flagrantly disregarded the court’s lawful penal summons.
As this developed, the Office of Public Auditor yesterday filed an amended information adding two more charges against Buckingham.
The new charges—obstructing justice: interference with service of process, and misconduct in public office—were related to Buckingham’s alleged use of police officers to escort him at the airport to avoid being served with penal summons between Friday and Saturday.
Wiseman noted that assistant attorney general Gilbert Birnbrich, who appeared at the hearing as counsel for Bunkingham, characterized the case as novel.
“I am elevating the characterization of novel to bizarre,” said Wiseman, drawing laughter from many people mostly lawyers who watched the proceeding.
Wiseman said he does not find any justifiable excuse for Buckingham not appearing in court.
The Superior Court issued penal summons on Friday, ordering Buckingham to appear in court yesterday after the CNMI government, through OPA, filed criminal charges against him.
At yesterday’s hearing, Wiseman said Birnbrich has no lawful authority to represent a criminal defendant.
OPA legal counsel George L. Hasselback stated that if Buckingham requested for continuance of the hearing he would have gladly done so.
Hasselback said Buckingham’s order for Birnbrich to appear as his counsel is improper and another waste of public resources.
“Buckingham is a criminal defendant,” Hasselback stressed.
Hasselback said he does not believe that it is proper for the Office of the Attorney General to show up and represent a criminal defendant.
OPA filed on Friday criminal charges against Buckingham in connection with his alleged hosting of a delegate candidate’s party at Gov. Benigno R. Fitial’s house in August 2010 and the AG’s approval of a $400,000 sole-source American Recovery and Reinvestment Act management contract in October 2010 to Michael Ada within days of the latter stepping down as a Cabinet secretary.
Buckingham was served with the penal summons at the airport shortly after he and his wife left Saipan on 6am Delta flight to Narita, Japan on Saturday.
Wiseman said he is not aware of any statute allowing the OAG to represent a defendant in a criminal case.
Hasselback said he agrees with Wiseman that the OAG has no authority to represent a criminal defendant.
Hasselback said there’s no law that allows Birnbrich to “represent their boss in a criminal proceeding.”
The OPA counsel said they had to call in the FBI to assist them in serving the penal summons to Buckingham.
“The only recourse for the court is to issue a bench warrant for the arrest of Buckingham,” the lawyer said.
Birnbrich said Buckingham, who is still the AG, stated he would come back to Saipan to face the charges.
Birnbrich said Buckingham proceeded on his trip because he had already bought tickets for his and his wife’s travel to the U.S. mainland.
Birnbrich said Buckingham understands the penal summons and the gravity of the charges.
Wiseman said penal summons is a courtesy by the government not to arrest someone.
Hasselback said in his opinion Buckingham’s order directing Birnbrich to appear as his counsel at the hearing is improper and a waste of public funds.
“Buckingham by ordering the Office of the Attorney General to represent him in a criminal case…my generosity ended,” Hasselback said.
Hasselback said Buckingham accepted the penal summons only because he got caught at the airport.
Wiseman said there is no question that Buckingham was served with the court’s lawful order.
Wiseman then asked to see any declaration that the summons was served on Buckingham.
Hasselback apologized for not submitting such declaration. He stated that FBI special agent Haejun Park, who was in court, could testify about the summons.
Wiseman did not call Park to the witness stand, but only asked him if he told Buckingham that he should appear in court for today.
Park replied in the affirmative.
Wiseman noted there was no medical emergency or any justifiable excuse for Buckingham not appearing in court.
“The court cannot tolerate that conduct by any litigant especially if you are the Attorney General of the Commonwealth,” Wiseman said.
Wiseman said it is a blatant disregard of the lawful court’s penal summons.
In an interview with the media after the hearing, Hasselback said the filing of additional charges against Buckingham was about his evasion of penal summons services and misconduct in public office.
The additional two charges bring to a total of seven misdemeanor charges against Buckingham.
Hasselback said the allegations that the AG used Department of Public Safety police officers in evading service of penal summons were included in the obstruction charges.
“The matter of who, did, what to help Mr. Buckingham, what time and under what authority…those are all matters under current investigation,” he said.
The OPA counsel said they will be investigating what happened Friday night to Saturday morning because they believe that public funds, public personnel, and public equipment were used in the commission of crimes.
As to the question why it was FBI special agent Park who served the court’s penal summons to Buckingham, Hasselback said federal agents routinely help local enforcement agencies serve process on documents like penal summons.
“In this instance it became necessary Friday evening for me to reach out and seek some help from the FBI. Thankfully they are partners to help us and Mr. Buckingham was served with this document,” he said.
As to the question why the charges were filed on Friday or the day of Buckingham’s supposed last day of work as AG, Hasselback said OPA has limited number of personnel but they’ve done their best.
“When we found out that Mr. Buckingham was leaving the CNMI presumably forever because that’s what he told everyone, it become apparent that if he were permitted to leave the CNMI prior to the service of the judicial summons that he will be beyond the court’s jurisdiction,” he said.
Hasselback said he reviewed the evidence that they have and determined that they are enough to prove every single portion of every single charge in the information.
On how to effectuate the bench warrant since Buckingham is reportedly now in the U.S. mainland, Hasselback said logistically it is expensive to get someone back from the mainland.
“There are procedures that one has to go through,” said Hasselback, adding that he has to do some research on the procedures.
On Birnbrich’s appearance in court, the OPA counsel said an attorney of the OAG being ordered to show up and act as a criminal defense attorney for a criminal defendant indicates a possibility of a waste and abuse of public funds.
“And we will be investigating that too,” Hasselback added.
On the additional charges, Hasselback stated in the amended information that, on or between Aug. 3, 2012 and Aug. 4, 2012, Buckingham “knowingly obstructed, resisted, and/or opposed persons duly authorized to serve process issued by the Superior Court.”
Specifically, the lawyer said, the defendant, “being aware that a penal summons commanding him to appear before the court had been issued, and that he was being sought by persons who intended to effectuate service of such summons upon him, did engage in a course of conduct intended to deceive, resist, and/or otherwise prevent those persons from effectuating service upon him.”
This course of action, Hasselback said, included lying about Buckingham’s “whereabouts and/or directing others to lie about his whereabouts, directing subordinates to refuse to accept service of the summons at his usual place of business and/or other actions performed with the express purpose to evade the service of the aforementioned penal summons upon him.
This course of action, he said, culminated in Buckingham “seeking, suggesting, and/or accepting an armed escort consisting of members of the Department of Public Safety and/or the Commonwealth Ports Authority, operating publicly owned vehicles and being paid with public funds, that escort having the express purpose of taking Buckingham from his usual place of abode to the Saipan International Airport, through local and federal security checkpoints and ensuring that he boarded his flight away from the Commonwealth without being served a copy of the aforementioned summons.”
Hasselback said Buckingham as the AG used his position and/or influence to “knowingly and willfully obstruct, resist, and/or oppose persons duly authorized to serve process issued by the Superior Court, in serving, and/or attempting to serve said process, being on notice that such actions violated provisions of the Commonwealth Criminal Code and were, therefore, illegal.”