Although he has been convicted and has already served a year in prison, former deputy police chief Ambrosio T. Ogumoro still wants the high court to reverse his convictions in shielding then-attorney general Edward Buckingham from being served with penal summons in 2012.
Ogumoro, through counsel Daniel T. Guidotti, asked the CNMI Supreme Court to vacate his convictions for conspiracy to commit theft of services, theft of services, and three counts of misconduct in public office.
Guidotti asserted that a police officer has no duty to assist with serving an invalid penal summons.
Guidotti said that then-Superior Court associate judge David A. Wiseman erred when he concluded otherwise and convicted Ogumoro of misconduct in public office based on his failure to assist then-Office of the Public Auditor investigator Juanette David-Atalig with serving the penal summons on Buckingham at the Saipan airport.
Ogumoro is the only defendant in the case who actually served prison time.
The other defendants were former governor Benigno R. Fitial, Buckingham, former Commonwealth Ports Authority police chief Jordan Kosam, CPA police captain John T. Rebuenog, and Fitial’s former personal driver and bodyguard, Jermaine Joseph W. Nekaifes.
In January 2015, a Superior Court jury found Ogumoro guilty of conspiracy to commit theft of services.
Wiseman found Ogumoro guilty of five misconduct in public office charges, one count of obstructing justice: interference with a law enforcement officer or witness, and one count of criminal coercion.
In March 2016, Wiseman imposed a one-year prison term on Ogumoro.
He began serving his sentence on April 13, 2016. He was released on April 12, 2017.
Fitial resigned as governor on Feb. 20, 2013, days after the House of Representatives impeached him on charges of corruption, felony, and neglect of duty.
Fitial and Kosam pleaded guilty, while Buckingham was convicted during a bench trial. Fitial, Kosam, and Buckingham did not serve prison terms. The charges against Rebuenog and Nekaifes were dismissed.
In Ogumoro’s appeal, Guidotti said the core of this appeal is whether the jury that decided Ogumoro’s felony conspiracy to commit theft of services and theft of services charges should have received a lesser included offense charge.
Guidotti said this lesser included instruction would have given the jury an opportunity to convict Ogumoro of misdemeanor theft offenses.
Guidotti said although the standard of review is probably plain error given that law regarding lesser included instructions changed during this appeal, Ogumoro meets even the difficult plain error standard.
The lawyer said the key is that David-Atalig, who supplied the bulk of the testimony regarding Ogumoro’s theft convictions, provided incomplete, speculative, and ambiguous testimony.
“As a result, the jury was left with up to 13 different ways that it could have computed the dollar value of the theft of service offenses,” he pointed out.
Guidotti noted that the lowest of these computations is $84.40, below the felony theft threshold.
“It follows that a reasonable jury could have convicted Ogumoro of misdemeanor theft of service,” the lawyer said, stressing that his client meets the plain error standard.
Guidotti said if the high court remains unconvinced that it should vacate Ogumoro’s felony theft convictions based on the change to lesser included law, the high court should still vacate Ogumoro’s convictions because the government introduced insufficient evidence to convict him of felony theft.
“Again, David-Atalig, the only witness who testified regarding the dollar value of the theft offenses, provided incomplete, speculative, and ambiguous testimony regarding the dollar value of the theft offenses,” he said.
Guidotti also asserted that Wiseman convicted Ogumoro of misconduct in public office based on Ogumoro’s recall of DPS officers who were assisting David-Atalig with serving a penal summons on Buckingham.
Guidotti said that Wiseman’s error, a plain error, arises from his misconstruction of a Commonwealth statute that makes service of a penal summons obligatory on any police officer.
Guidotti said Wiseman construed the statute so as to remove the requirement that a penal summons be “be issued in accordance with law and the rules of procedure prescribed in accordance with law.”
He said Wiseman convicted Ogumoro of misconduct in public office based on violation of that statute, despite its acknowledgment that the penal summons that David-Atalig attempted to serve on Buckingham was invalid because it lacked a judge’s signature.
“In so doing, the trial court ignored the law and committed plain error,” Guidotti pointed out.