Superior Court Associate Judge David A. Wiseman imposed yesterday a one-year prison sentence on 69-year-old former governor Benigno R. Fitial, who is convicted of misconduct in public office and conspiracy to commit theft of services.
“Such conduct cannot, should not, and will not be tolerated and the proverbial message must be sent that government officials who betray the public trust by violating the laws of the CNMI will in all likelihood go to jail,” Wiseman said.
Wiseman allowed Fitial to start serving the prison term at the Department of Corrections on or before July 6, 2015. The judge so ordered after Fitial’s counsel, Stephen Nutting, informed the court that the former governor needs to go back to the Philippines in the next few days for his ongoing medical rehabilitation/treatment.
Fitial refused to comment to the media about the sentence as he, with the aid of his wife Josefina and a walking cane, slowly emerged from the courtroom. He was smiling as family members and supporters greeted and comforted him.
Nutting stated that they are “very extremely disappointed.” He refused to elaborate.
Fitial remained calm on his seat when Wiseman announced the sentence during the hearing packed mostly with prominent persons, businessmen, former government officials, family members, and friends who supported the former chief executive.
In an interview after the sentencing, Office of the Public Auditor legal counsel George L. Hasselback said this is a testament to those people out there to step forward, speak up when they see instances of corruption within the government.
“It’s extremely difficult to get people to response to this type of things,” said Hasselback as he thanked investigators at the Department of Public Safety and OPA and people who provided testimony and information that led to investigation in this case.
Chief prosecutor Leonardo Rapadas said they’re very happy that jail term was imposed.
“I think we do need to send a message to the Commonwealth that these sorts of crimes will not be tolerated,” Rapadas said.
Rapadas said to get a conviction and a jail sentence on the highest official of the Commonwealth sends a strong message to all government officials that they need to adhere to the ethics of their office.
“When you have the highest official not upholding the law, unfortunately corruption rolls down hill,” he added.
Fitial signed a plea agreement with the government and pleaded guilty last May 13 to two offenses, making him the first governor of the Commonwealth convicted of crimes.
The offense of misconduct in public office refers to the time when Fitial had his masseuse—a female Chinese who was at that time a federal prisoner at the Department of Corrections—temporarily released so she could massage him at his house on Jan. 8, 2010.
The conspiracy to commit theft of services refers to Fitial’s role in former attorney general Edward T. Buckingham’s efforts to evade lawful service of process during his departure from the Commonwealth at the Francisco C. Ada-Saipan International Airport on Aug. 3 or 4, 2012.
For the crime of conspiracy to commit theft of services, Wiseman sentenced the defendant to the maximum term of five years in jail.
Wiseman noted that in view of several and significant mitigating circumstances and for those reasons only, he suspends all except one year and the maximum fine of $5,000.
For the crime of misconduct in public office, the judge sentenced Fitial to one-year imprisonment, all suspended except for 30 days, to run concurrent with the sentence in the other offense and the maximum fine of $1,000.
It means that Fitial’s actual total prison term is one year.
Upon completing the prison term, the former governor will be placed on probation for one year. He will be permanently barred from re-employment directly or indirectly with the CNMI government.
Before the sentence was handed down, Fitial was allowed to speak.
“I ask for forgiveness for breaking the law,” said Fitial as he begged Wiseman to give him “just and merciful considerations.”
The former governor thanked the people who wrote letters in support of him. He apologized to his family and friends, who stood by him all throughout the years, for the wrong acts that he did.
In sentencing Fitial, Wiseman noted defendant’s acceptance of responsibility for his actions by pleading guilty to the charges and by making sincere and profound remorseful statement to the court.
Wiseman also noted defendant’s many decades of public service and achievements, many of which were in the public interest.
The judge said Fitial is 69 and in imperfect health.
However, Wiseman said, there are many others of advanced years who suffer from some medical ailment who got to prison including governors of various states.
As to the crime of misconduct in public office, Wiseman said Fitial’s acts demonstrated a flagrant display of abuse of authority.
Wiseman said on the eve of his inauguration, Fitial ordered the release of his personal masseuse, a federal prisoner at the time, from a detention facility, Department of Corrections, late at night and had her transported to his residence for a personal massage.
Wiseman said Fitial claims he was in agonizing pain which was witnessed by his attorney general at that time (not Buckingham) and that the masseuse was the one he used for some time to get relief from his pain.
As to the crime of conspiracy to commit theft services, Wiseman said Fitial’s acts demonstrated blatant arrogance, unbefitting of the highest office of government.
“The defendant treated the time, money, and resources of the CNMI’s law enforcement agencies as his own private property and dispatched the good men and women who serve our community away from their duties to protect the public with the express purpose of breaking the law,” he said.
Wiseman said that, on Aug. 13, 2012, when OPA filed criminal charges against Buckingham, Fitial orchestrated a coordinated effort to actively interfere with the ongoing criminal process.
Wiseman said in the course of 85 phone calls and messages between Fitial, police authorities, and other members of the conspiracy, the defendant was like a screenwriter, producer, and director of a movie with an elaborate plot to employ armed police officers to escort Buckingham to the airport at the very crack of dawn in order to avoid service of a penal summons.
The judge said Fitial even instructed his personal bodyguard by cell phone to shield Buckingham from FBI agents who were merely exercising their official duty to serve a penal summons.
“Unfortunately, this was not a movie, but real life,” Wiseman pointed out.
The judge said Fitial argues that the only personal benefit he received from all these events was the massage therapy he received from the prisoner he summoned from federal detention at DOC.
“However, I think the position that ought to be appropriate, in this matter is not how you measure what happened here in the value of money, property or other personal benefit, but rather the harm to the erosion of public trust in government,” he said.
Wiseman said he takes Fitial’s serious medical condition into account in sentencing, but cannot allow the matter of the defendant’s health to depreciate the seriousness of his offenses.
“The public’s perception of sentencing is a crucial factor in its overall perception of the justice system,” he said.
Wiseman said good works do not offset criminal misconduct, though they may mitigate it.
Wiseman said based on the original 13 charges filed against Fitial, they represented that perhaps the defendant was responsible for a culture of ethical failure in his office.
The judge said the crimes committed in this case were grave.
Wiseman said consigning someone to prison, in particular Fitial, who he has known for almost four decades in many personal, professional and social capacities; or any other defendant, “is a very difficult and sad necessity.”
Wiseman said there are impulses of avoidance from time to time—toward a personally gratifying leniency or toward an opposite extreme.
“But there is, obviously, no place for private impulse in the judgment of the court. The course of justice must be sought with such objective rationality as we can muster, tempered with mercy, but obedient to the law,” he said.
Fitial served as House speaker of the 3rd, 12th, and 14th legislatures. He is also a two-term governor. He resigned as governor on Feb. 20, 2013, days after the House of Representatives impeached him on charges of corruption, felony, and neglect of duty.
After he resigned, Fitial has been staying in the Philippines, where he is undergoing medical rehabilitation due to diabetes complication.
Fitial requested for a lenient sentence of no prison term.
Nutting recommended that if the court determines a term of imprisonment be imposed, that it be suspended sentence in its entirety, on the condition that Fitial pay an appropriate fine, and restitution to for any loss to the government which might be proven for the crimes he now stands to answer for.
Hasselback, who is serving as a special prosecutor in the case, recommended a sentence of five years imprisonment, all suspended except for two years with no possibility of parole, a fine of $5,000 and a 10-year ban on employment with the CNMI government.
Rapadas recommended a one-year sentence to be served at the Department of Corrections, with such sentence to be served consecutively to any sentence imposed for count seven conspiracy to commit theft of services. Rapadas asked the court to impose a fine, with the amount at the court’s discretion.
Nutting reiterated his sentencing memorandum that Fitial, although a part of the conspiracy to give Buckingham an escort to the Saipan International Airport, gained no benefit from that conspiracy.
To the contrary, Nutting said, Fitial voluntarily returned to the CNMI to answer the charges, sparing the CNMI the expense of seeing extradition.
He said unlike Buckingham, Fitial has accepted responsibility for his actions and has spared the CNMI the expense of a lengthy and highly publicized trial, and the possible appeals which might follow.
Superior Court Associate Judge Kenneth L. Govendo found Buckingham guilty of six charges and imposed a suspended sentence, citing the former AG’s service to the CNMI, his age, and medical issues.