Man who killed eagle ray wants sentence suspended

A dive master who was sentenced in June to six months in prison for killing a protected spotted eagle ray has asked the Superior Court to stop the execution of his sentence pending his appeal.

Hu Jie Fang, through assistant public defender Matthew Meyer, also asked the court to give him more time to file an appeal.

Superior Court Associate Judge Joseph N. Camacho heard Fang’s two motions yesterday and placed them under advisement.

Matthew argued Fang’s motions. Assistant attorney general James McAllister, as counsel for the CNMI government, opposed them.

Meyer argued that a stay of execution of a sentence of imprisonment is mandatory “if an appeal is taken and the defendant is released pending disposition of the appeal.”

He said a convicted person who is either awaiting sentence or has filed an appeal shall be released on the same conditions as when awaiting trial, unless one of four circumstances exists: if the appeal appears frivolous, if it seems the appeal is taken for delay, if the court believes that no condition of release will assure that the person will not flee, and if the court believes that the defendant poses a threat.

Meyer said Fang’s appeal is not frivolous and that his appeal is not taken for delay but to exercise the very right of appeal of which the court advises the criminally accused at arraignment and before accepting a change of plea in lieu of trial.

He asserted that there is no reason to believe that Fang will flee to avoid serving his sentence if he loses his appeal.

There is also no reason to believe that Fang poses a threat to anyone, he said.

In Fang’s motion for extension of time to file an appeal, Meyer said under the NMI Supreme Court Rule, Fang has 30 days after judgment to file an appeal.

Meyer said the sentence was determined on June 18, 2014, and an attempt to file a notice of appeal was rejected on July 24, 2014.

Meyer said Fang may be entitled to an extension of time to file his appeal upon a finding of excusable neglect or good cause.

The lawyer said he showed diligence, although made errors in judgment in protecting Fang’s interests, by filing two motions for a stay of execution in the weeks following sentencing.

He said after considering the rules on filing a notice of appeal, it appeared to him that filing a stay of execution would toll the clock, under NMI Supreme Court Rules.

Meyer said where good faith but an error in judgment is shown, a criminal defendant should not be punished for the mistakes of his counsel, nor should the CNMI government incur the added expense of appointing new counsel should Fang file a motion for habeas corpus.

In the government’s opposition, McAllister said Fang is a flight risk, poses a threat to the safety of others, and fails to raise a substantial issue for appeal.

McAllister said Fang, a Chinese national, admitted that he is out of immigration status and likely to be deported.

McAllister said an investigative report reveals that defendant made pretrial statements indicating his intent to exact retribution upon anyone who assisted law enforcers in this case.

Accordingly, the prosecutor said defendant poses a threat to the five witnesses who testified against him and others who cooperated in the investigation.

McAllister said Fang sets forth vague allegations regarding abuse of sentencing discretion, but does not specify which mitigating factors were not considered or which aggravating factors were misstated.

“CNMI believes the sentence is appropriate based on defendant’s intentional disregard for laws against poaching. CNMI believes the sentence is also necessary to deter other poachers and preserve the local natural resources,” he said.

At the June 18 sentencing, Camacho ordered Fang to serve the six-month prison sentence day for day without the possibility of parole. Fang, 27, was given credit for three days of time served.

Camacho found Fang guilty of one count of ray protection at a bench trial on June 8. Witnesses testified that Fang shot a three-feet wide spotted eagle ray with a spear gun and took the ray on Jan. 15, 2014.