9th Circuit reverses denial of Babauta’s release

The U.S. Court of Appeals for the Ninth Circuit has reversed the federal court’s decision to deny the request of former Commonwealth Utilities Corp’s Water Division laboratory manager Pedro Q. Babauta for his release from jail pending his appeal.

The Circuit judges said the district court found, and the U.S. government does not contest, that Babauta “is not likely to flee or to pose a danger to the safety of any other person or the community if released.”

“[Babauta] has also shown by clear and convincing evidence that the appeal raises a ‘substantial question’ of law or fact that is likely to result in reversal, an order for a new trial, or a sentence that does not include a term of imprisonment, on all counts on which imprisonment has been imposed,” the judges said.

The Ninth Circuit judges remanded the matter to the U.S. District Court for the NMI for the limited purpose of establishing appropriate conditions of Babauta’s release.

In his January 2006 order denying the motion, U.S. District Court for the NMI Chief Judge Alex R. Munson ruled that the defendant has not shown a substantial question of law or fact.

Munson had imposed In September 2005 a one-year prison term on Babauta for his conviction on submitting false documents.

The defendant, through counsel G. Anthony Long, appealed to the Ninth Circuit.

Long argued that Babauta is entitled to a new trial on one count because the jury was not instructed on an essential element of the charge.

The element, the lawyer said, includes that the defendant had a duty to report test results and violated this duty by concealing test results and not reporting them at all, as opposed to including falsified data in the submitted reports.

Babauta requested a jury instruction that stated he had a duty to report such information.

Long also argued that his client is entitled to a new trial on two counts because the court ruled as a matter of law rather than letting the jury decide that the U.S. Environmental Protection Agency had granted primary enforcement authority to the Division of Environmental Quality, such that, legally, DEQ, “stood in the shoes” of the Environmental Protection Agency.

Long said the court’s ruling “effectively took away from the jury the determination of the essential jurisdictional element that the government had the burden of proving beyond a reasonable doubt.”

The lawyer also asserted that the one-year sentence is not reasonable.

But Munson said the prosecution was entitled to an instruction consistent with its theory of the case; the elements of proof did not change or multiply simply because evidence that may have showed concealment was also introduced as part of the evidence of false statements.

On the second argument, Munson said “because the question presented to the court was strictly one of law and was not an issue for a fact-finder, it was properly decided by the court, and not the jury.”

With respect to the sentence issue, the judge said the court cannot discern any substantial question of law concerning the exercise of its reasoned discretion to impose sentence and the court’s reasons for departing from the advisory guidelines were stated on the record at sentencing.

Babauta was charged with falsification of some monthly water test reports to conceal the presence of total coliform bacteria and fecal coliform in the CUC public water system from 1999 to 2003.

The jury found him guilty on two counts of submitting false documents, but acquitted him on two other counts of submitting false documents.

The court declared a mistrial as to one count of conspiracy to defraud the EPA due to a hung jury.

A joint investigation conducted by the DEQ and EPA revealed that Babauta hid positive test results for the presence of E. coli and coliform bacteria.

The presence of fecal coliform bacteria indicates that drinking water may be contaminated with human or animal wastes. Microbes in these wastes can cause short-term effects such as diarrhea, cramps, nausea, headaches, as well as other negative health effects, the prosecution said.