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Tuesday, April 22, 2014

Govendo dismisses 2 more charges vs Buckingham
Former AG still faces 8 charges

Superior Court Associate Judge Kenneth L. Govendo has dismissed two more of the remaining 10 charges filed against former attorney general Edward T. Buckingham.

In a 21-page order on Friday, Govendo granted Buckingham’s motion to dismiss the charge of obstructing justice by interfering with the service of process and the charge of misconduct in office.

Both charges are based on the same alleged act: that Buckingham, being aware that a penal summons was issued against him, engaged “in a course of conduct intended to deceive, resist and/or otherwise prevent” the effectuation of service upon him.

Govendo ruled that having found that the penal summons was invalid, the court need not address the issue of whether a physical threat or physical resistance is required under Commonwealth law.

The judge previously determined that the penal summons was invalid as it was signed by the clerk of court and not by a judge.

In the same order, Govendo denied Buckingham’s motion to dismiss seven other charges. He dismissed one other charge as it relates to a certain punishment section of the law, but allowed the charge to proceed to trial as it relates to other punishment sections.

The Office of the Public Auditor filed 12 criminal charges against Buckingham in connection with an alleged violation of election laws and illegal award of a sole-source contract, among others.

Buckingham, through counsel Richard W. Pierce, filed a motion to dismiss all 12 counts in the second amended information.

The CNMI, through Office of the Public Auditor legal counsel/assistant attorney general George L. Hasselback, opposed the motion. Hasselback, however, moved to voluntarily dismiss two counts.

Last Jan. 21, Govendo dismissed two charges of misconduct in public office against Buckingham. The charges were related to the alleged sole-source contract.

Govendo heard the oral arguments last Tuesday on the motion to dismiss the remaining 10 charges.

On count 6 (obstructing justice by interfering with the service of process) and count 7 (misconduct in public office), Buckingham argued that the penal summons was invalid because it was not signed by a judge and therefore it was impossible for him to have obstructed the service of process.

Buckingham also alleged that obstruction laws traditionally require some type of physical threat or physical resistance.

In the government’s response, Hasselback contended that the summons was signed by the clerk of court, a process that had been court policy for over 25 years.

Hasselback also argued that no physical threat or physical resistance is required under Commonwealth law.

In his order Friday, Govendo said that under the NMI Rules of Criminal Procedure, a penal summons must be signed by a judge, describe the offense charged in the information, contain the defendant’s name, and “summon the defendant to appear before the court at a stated time and place.”

“The penal summons in this case did not meet the first criterion; rather it was signed by the clerk of court,” Govendo said in dismissing counts 6 and 7.

The seven other counts that Govendo did not dismiss are count 1, 2, 3, 8, 9, 10, and 11.

Count 1 alleges that Buckingham, as a public official, knowingly and willfully caused public funds, time, personnel, and/or equipment to be used for political and/or campaign activity.

Count 2 alleges he used the name of a government department or agency to campaign for or express support for a candidate running for public office.

Count 3 alleges that, as a public official, Buckingham performed illegal acts under the color of his office.

Count 8 charges theft of service, and count 9 charges misconduct in public office. Both counts surround Buckingham’s use of the Office of the Attorney General’s personnel and resources to assist in his defense in this case.

Count 10 charges conspiracy to commit theft of services. Specifically, Buckingham is alleged to have conspired with personnel from the Department of Public Safety, Commonwealth Ports Authority, and other government agencies to have a police escort take him to the airport so he could leave the CNMI before being served with the penal summons.

Count 11 charges misconduct in public office. Specifically, Buckingham is alleged to have used his influence to conspire to assure that services were diverted to his benefit.

On count 1, Buckingham claims that the charge is preempted by Federal Election Commission Act because it arises from the election of the Commonwealth’s delegate to the U.S. House of Representatives.

Govendo, however, ruled that there can be no doubt that FECA does not preempt Commonwealth’s laws regulating the actions of public employees relating to elections.

On count 2, Buckingham claims that the statutory definition of “candidate” prevents criminalization of his actions. He also argues that the CNMI law infringes on his First Amendment rights.

Govendo ruled that the statute does not in any way encroach upon an individual’s ability to support a candidate in his private capacity as a citizen.

“Instead it prevents individuals from using the influence inherently connected with a government department or agency in their campaigning efforts,” the judge pointed out.

With respect to count 3, Govendo said this count mirrors the allegations as stated in counts 1 and 2 that he determined will proceed to trial.

Pertaining to Counts 8 and 9, Buckingham claims that the court already ruled that an assistant attorney general could appear at his arraignment.

Govendo said by allowing this limited appearance by assistant attorney general Gil Birnbrich, Superior Court Associate Judge David A. Wiseman expressed his concern and stated that he did not believe the Office of the Attorney General had the authority to represent an individual in a criminal matter.

“Thus, the issue of whether defendant was entitled to the services rendered by the OAG has not yet been decided by the court,” Govendo said.

Buckingham argues that counts 10 and 11 should be dismissed because there is no law within the Commonwealth that renders a police escort unlawful.

Govendo stated that, while this is true, it is equally true that an individual is not entitled to receive a service that would impede a law enforcement officer from fulfilling his duties or to actively disregard those duties.

Buckingham’s bench trial will start on Feb. 10.

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