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Sunday, April 20, 2014

Ninth Circuit orders new sentencing for Tim Villagomez

The U.S. Court of Appeals for the Ninth Circuit has ordered the federal court to conduct a new sentencing for former lieutenant governor Timothy P. Villagomez, who is currently in federal prison after being found guilty of defrauding the Commonwealth Utilities Corp. through needless purchases of a de-scaling chemical.

The Ninth Circuit vacated Villagomez’s sentence after finding that the U.S. District Court for the NMI made a mistake in calculating his sentence.

With the new sentencing, there is a possibility that the former lieutenant governor would face more jail time.

Ninth Circuit Judges Mary M. Schroeder and Consuelo M. Callahan issued the decision. Judge N. Randy Smith concurred in all but part two of the majority’s disposition.

In granting the U.S. government’s cross-appeal, the Ninth Circuit judges ruled that the district court erred in finding that a four-level increase for Villagomez for participating in high-level public corruption would be double counting when combined with his base level of 14, which was based on his status as a public official.

The judges said that in calculating the sentencing guidelines range, “double counting” is allowed when the increases account for distinct harms.

The appellate court also upheld the district court’s rulings on the appeal of Villagomez and his co-defendants, former Commerce Secretary James A. Santos and his wife, Joaquina V. Santos.

Villagomez and the Santos couple had argued that they were deprived of their right to a public trial when the public was excluded from the courtroom during voir dire.

Through voir dire an attorney can challenge a prospective juror “for cause” if that person says or otherwise expresses bias against the attorney’s case.

The defendants also contend that the district court abused its discretion by denying their post-trial motion for an evidentiary hearing on their allegations of juror bias.

The Ninth Circuit judges disagreed. They ruled that the defendants forfeited their right to a public trial by failing to timely object to the closure of the courtroom during voir dire.

The judges noted that the defendants did not object to any closure during voir dire and did not complain about the total closure of the courtroom during voir dire until more than a year after trial.

They said the defendants knew or should have known of any closure at the time it happened. The judges said the defendants’ lawyers also knew or should have known of the closure.

“Even assuming that the first three elements of the plain error test are met—i.e., that the proceedings involved error, the error is plain, and the error affected the defendants’ substantial rights—we have “the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings,” the judges said.

The judges declined to exercise that discretion because the defendants point to nothing in the record suggesting that closure led to any unfairness in the jury selection or deviation from established procedures, affected the public interest in the administration of justice, or somehow made the jurors less attuned to their sense of responsibility or the importance of their function.

The Ninth Circuit judges also ruled that the district court properly denied the defendants’ post-trial motion for an evidentiary hearing due to alleged juror bias.

The judges ruled that the district court did not err in finding that the jurors were honest in their answers about their relationship with the defendants, attorneys, and witnesses when asked.

The judges cited that the record shows that the jurors who were related, albeit distantly, to some of the witnesses answered the questions asked of them honestly.

In his decision concurring in part and dissenting in part, Circuit Judge N.R. Smith disagreed that the courtroom closure, which occurred during the course of two days, was of a non-trivial duration.

“A courtroom closure that lasts for the entire jury selection process cannot be deemed trial,” Smith said, citing precedent.

Villagomez and the Santos couple are now serving their sentences in federal prison.

In August 2009, the federal court sentenced Villagomez to seven years and three months in prison, and sentenced the Santos couple to six years and six months in jail.

The case came to be called the Rydlyme scandal, after the de-scaling chemical’s brand name.

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