‘Probable cause finding is not enough ground to forfeit bail’

A finding of probable cause to charge a defendant who is on bail in a previous case is not sufficient evidence to forfeit the bail, according to Superior Court associate judge David A. Wiseman.

“The probable cause finding does not present enough evidence to satisfy the preponderance of the evidence standard,” Wiseman said.

The judge discussed the bail forfeiture issue in his order issued yesterday denying the CNMI government’s motion to forfeit John M. Namauleg’s bail.

Wiseman ruled that it is the government’s responsibility to prove that Namauleg violated the conditions of his release. In this instance, he found that the government has failed to meet the standard required.

According to court records, the Attorney General’s Office charged Namauleg with multiple counts of theft, attempted theft, and forgery in connection with fraudulent cashing of checks belonging to defunct garment manufacturer Neo Fashion Inc. from December 2007 through January 2008.

On Feb. 21, 2008, the court approved a modified bail order for the defendant. The order allowed his temporary release from custody subject to certain conditions.

One of the conditions was for Namauleg to obey all Commonwealth laws. As a security for his release, he was entrusted to a third party custodian who signed a $20,000 unsecured/appearance bond. In addition, a 1994 Nissan pickup truck worth $5,000 was posted.

The government alleged that Namauleg committed the following acts within days of his release: attempted second degree murder, assault with a dangerous weapon, and aggravated assault and battery.

During a preliminary hearing on March 5, 2008, the court found probable cause for each charge.

The government, through Assistant Attorney General Melissa Simms, moved to forfeit Namauleg’s bail.

Simms asserted that the preliminary hearing regarding the newer charges constitutes sufficient basis to warrant the forfeiture of the bond.

Assistant Public Defender Malik Edwards, counsel for Namauleg, argued, among other things, that the proposed forfeiture based on the probable cause finding is not supported by CNMI law and would be unconstitutional.

In his ruling Wiseman stated that in the CNMI, a bail forfeiture is required in instances where a breach of condition of a bond occurs.

However, the judge said, the court may, at its discretion, “direct that a forfeiture be set aside…if it appears that justice does not require the enforcement of the forfeiture.”

Wiseman said a preliminary hearing is held in order to accord an arrested person the right to a determination of probable cause as a prerequisite to extended restraint of liberty following arrest.

“One of the main problems contemplated by the instant case is that in order to forfeit bail most courts have found that the breach of a condition must be proven by a preponderance of evidence, rather than by a mere finding of probable cause,” he said.

Because the government relied solely on a finding of probable cause to support their forfeiture, Wiseman said, the court is unable to grant the motion to forfeit Namauleg’s bail.

Wiseman determined that breaching a condition of bail release, even conditions not relating to appearance, can constitute enough grounds for forfeiting bail.

The judge said the government submitted as their only evidence the bill of information of probable cause.

Wiseman said the March 5 preliminary hearing finding a sufficient factual basis that Namauleg committed the crimes is an insufficient basis to order a bail of forfeiture.

“The Rules of Evidence do not apply in preliminary examinations in criminal cases and thus hearsay evidence may have been allowed in finding probable cause to charge the defendant,” he pointed out.