Buckingham bid to suppress contents of his email denied

Posted on Feb 03 2014

Superior Court Associate Judge Kenneth L. Govendo has denied former attorney general Edward T. Buckingham’s motion to suppress the contents of the latter’s email that the CNMI government had obtained via a search warrant. The email exchanges cover a span of three days.

In an order Friday, Govendo ruled that three days is a sufficiently short and limited period of time so as not to infringe on Buckingham’s rights or to be deemed “exploratory rummaging.”

Govendo said the time frame is limited to a three-day window, in which it was reasonable to expect that email communication could have been directed to the Office of the Attorney General.

“Further, because the OAG does not provide government email addresses to its [assistant attorneys general], it is impossible to expect that the Commonwealth could have reasonably limited the search to specific email addresses,” the judge pointed out.

The OAG obtained a search warrant for the contents of Buckingham’s email during the time of Aug. 3 to 6, 2012. Buckingham, through counsel Richard W. Pierce, filed a motion to suppress, claiming that the warrant lacks probable cause.

In support of the warrant, Office of the Public Auditor investigator Juanette David-Atalig provided a sworn affidavit where she disclosed that she attended Buckingham’s initial hearing, in which assistant attorney general Gilbert Birnbrich represented him.

David-Atalig said she reviewed recordings of Birnbrich’s testimony at the House of Representatives’ hearings related to then-governor Benigno R. Fitial’s impeachment, during which Birnbrich testified about the OAGa’s representation of Buckingham.

The investigator said that Birnbrich testified that he was “cc’d” on an email from Buckingham directing another assistant attorney general, Charles Brasington, to appear at Buckingham’s initial appearance, coordinate with Fitial regarding this representation, and use any resources of the OAG deemed appropriate in effectuating his representation.

In denying the motion, Govendo said it seems clear that probable cause for the warrant exists. Govendo said the facts as described by David-Atalig provide enough cause to expect that Buckingham contacted the OAG for representation in this criminal case.

“While she was aware of only one email in particular, there are enough facts provided to reasonably expect that multiple emails were sent between the defendant and the OAG in relation to the theft of services charge,” the judge said.

Govendo said it was reasonable to suspect that there were responses to that email and perhaps other emails on this specific topic.

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. Four of those charges have already been dismissed.

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

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