Superior Court Associate Judge Joseph N. Camacho has ruled that a defendant in a check forgery case is entitled to get the “tangible materials” used by the police in order for him to cross-examine the government’s witness during a preliminary hearing.
In an order on Friday, Camacho said Nelsin Anson Saimon is entitled to any tangible materials that law enforcers had relied on to arrest him, so he could fully exercise his right to cross-examine adverse witnesses at the preliminary examination hearing and to be able to weed out groundless claims against him.
That was why the CNMI Legislature enacted 6 CMC Section 6303(c), Camacho said, to ensure that defendants have a right to cross-examine at a preliminary examination hearing.
Further, the judge said, the CNMI Supreme Court has ruled that the purpose of a preliminary examination hearing is to “weed out groundless claims.”
That means Saimon is entitled to the materials that police detective Daniel T. Joab had relied on when he swore out an affidavit of probable cause to support the issuance of an arrest warrant against Saimon, Camacho said.
Specifically, the “tangible materials” are Department of Public Safety police officer Daniel Maliuyaf’s notes, Maliuyaf’s reports, and the alleged forged check, Camacho said.
According to court records, a Superior Court judge signed an arrest warrant for Saimon on Jan. 26, 2018, based on Joab’s affidavit of probable cause.
Saimon allegedly cashed at the LC Market in Gualo Rai a check in the amount of $578 that belonged to Kae Poong (Saipan) Corp. in December 2017. He allegedly told the store’s employee that he works for Kae Poong Corp.
Poong Corp., however, has been out of business since 2013.
Last Jan. 27, Joab arrested Saimon on the charges of possession of forged writing on forgery or forgery device, and theft. Saimon was brought to the Superior Court on Jan. 29, for his initial appearance and bail hearing. The court found him indigent and appointed the Office of the Public Defender as his counsel.
The Office of the Attorney General, as counsel for the government, then filed an information charging Saimon with theft and forgery.
On Feb. 5, a preliminary examination hearing was held to determine whether there is probable cause to charge Saimon.
The OAG did not provide the defense with any materials prior to the preliminary examination hearing, including the check that Saimon allegedly cashed, or the video surveillance that allegedly identified Saimon as cashing the check, or any witness statements or police reports.
The prosecution’s sole witness was Joab. No exhibits were used and none were entered as evidence at the preliminary examination hearing.
A representative of LC Market in Gualo Rai did not testify. Maliuyaf did not testify either, even though he was the officer who first went to LC Market in December 2017, reviewed the video surveillance, and identified Saimon.
Joab testified that he talked with Maliuyaf and learned about the specifics of the case by reviewing Maliuyaf’s notes, Maliuyaf’s reports, and the alleged forged check.
Joab also testified that it was Maliuyaf and not Joab who talked with the employee of Kae Poong Corp. about the alleged forged check.
Joab was also not present during the initial contact between Maliuyaf and the store’s employee and did not review the video footage.
Saimon, through counsel, then asked for copies of those materials, which the government refused to provide. Defense counsel argued, among other things, that failing to provide the materials is a due process violation.
The court then continued the preliminary examination for the parties to brief the issue.
Saimon is seeking materials on which the prosecution bases its probable cause, and materials which Joab testified he used to refresh his recollection and familiarize himself with the case prior to testifying at the preliminary examination hearing.
Saimon argues that failure to provide the materials constitutes an interference with his right to effective assistance of counsel, interferes with his right to cross-examine witnesses, and violates the due process requirements.
In his ruling, Camacho said that, without the “tangible materials” to fully and properly cross-examine the government’s witness on how law enforcers established probable cause for Saimon’s arrest, the defense counsel’s cross-examination would be reduced to ineffective attempts to guess and speculate.
At the same time, Camacho said, without a full and proper cross-examination at a preliminary examination hearing, the court would not be able to obtain a robust record to rule whether or not there is probable cause that a crime has been committed and Saimon is the person that committed the crime.
The OAG argues, among other things, that Saimon is not entitled to the materials because a preliminary examination hearing does not secure fundamental rights and is not required by either the CNMI or U.S. Constitutions and that due process does not include a right to avoid trial in the absence of probable cause.
Yes, Camacho said, but since Saimon was arrested under a warrant, he does not have a due process right to a preliminary examination hearing. However, Saimon does have such a right under Rule 5.1 of the Commonwealth Rules of Criminal Procedure.
Camacho said a defendant has certain statutory rights at the preliminary examination hearing.
“For example, defendant has a right to cross-examine adverse witnesses at the preliminary examination hearing pursuant to the law,” he said. Saimon is therefore entitled to tangible materials, if any, used by law enforcement to establish probable cause.