U.S.A v. Villagomez

• Decision Date: 22 April 2010
• Docket Number: Criminal Case No. 08-00020.
• Citation: 708 F.Supp.2d 1105
• Parties: UNITED STATES of America, Plaintiff,v.Timothy P. VILLAGOMEZ, Joaquina V. Santos, and James A. Santos, Defendants.
• Court: U.S. District Court — Northern Mariana Islands

708 F.Supp.2d 1105

UNITED STATES of America, Plaintiff,v.Timothy P. VILLAGOMEZ, Joaquina V. Santos, and James A. Santos, Defendants.

Criminal Case No. 08-00020.

District Court for the Northern Mariana Islands.

April 22, 2010.

Eric S. O'Malley, U.S. Department of Justice, Saipan, MP, for Plaintiff.

Brien Sers Nicholas, Law Office of Brien Sers Nicholas, Saipan, MP, David Lujan, Agana, GU, Joey P. San Nicolas, Attorney at Law, Tinian, MP, for Defendants.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' JOINT RENEWED MOTION FOR RELEASE PENDING APPEAL

MARK W. BENNETT, District Judge.

“ If at first you don't succeed, get a bigger hammer.”

Alan Lewis¹

Defendants, including the former lieutenant governor of the Commonwealth of the Northern Mariana Islands, who were convicted in a high-profile case of conspiracy to defraud the United States, wire fraud, theft from a program receiving federal funds, and bribery, have filed a joint renewed motion pursuant to 18 U.S.C. § 3143(b) for release from custody while their convictions are on appeal to the United States Court of Appeals for the Ninth Circuit.The trial judge denied their earlier motions for release pending appeal, finding that the defendants' claims of jury misconduct were not fairly debatable.Undaunted, the defendants now rely on “a bigger hammer,” a contention that a recent United States Supreme Court decisionPresley v. Georgia,--- U.S. ----, 130 S.Ct. 721, --- L.Ed.2d ----(2010), establishes that they have a fairly debatable claim that their Sixth Amendment right to a public trial was violated when the trial judge refused to open to the general public unoccupied seats in the courtroom reserved for visiting students.This matter was reassigned to me, as a visiting judge.²Therefore, I must decide whether the defendants have presented a fairly debatable claim of violation of their right to a public trial that warrants their release during the pendency of their appeals.

I.INTRODUCTION AND BACKGROUND

A.Trial Proceedings

1.Indictment and trial

On January 15, 2009, a Grand Jury handed down a First Superseding Indictment against defendantsTimothy P. Villagomez, the former lieutenant governor of the Commonwealth of the Northern Mariana Islands(CNMI) and the former executive director of the Commonwealth Utilities Corporation, the semi-autonomous agency responsible for providing power and water to the people of the CNMI, James A. Santos, the former Secretary of Commerce of the CNMI, and Joaquina V. Santos, the wife of James Santos and the sister of Timothy Villagomez.The First Superseding Indictment charged each of the defendants with conspiracy to defraud and to commit offenses against the United States, in violation of 18 U.S.C. § 371, wire fraud, in violation of 18 U.S.C. §§ 1343,1346, and2, and theft concerning a program receiving federal funds, in violation of 18 U.S.C. §§ 666(a)(1)(A)and2.In addition, defendant Villagomez was charged with bribery concerning a program receiving federal funds, in violation of 18 U.S.C. §§ 666(a)(1)(B)and2, and defendantsJames Santos and Joaquina Santos were charged with bribery concerning a program receiving federal funds, in violation of 18 U.S.C. §§ 666(a)(2)and2.³The defendants were released pending trial on unsecured bonds and subject to certain pretrial conditions.

A jury trial in this case before Chief United States District Court Judge Alex R. Munson began with jury selection on March 30, 2009.Evidence began on March 31, 2009, and ran for sixteen days.Closing arguments and submission of the case to the jury occurred on April 23, 2009, and on April 24, 2009, the jury returned verdicts of guilty against all defendants on all charges.Verdict Form (docket no. 211).Defendants were again permitted to remain on release pending sentencing, subject to the pretrial release conditions previously set by the court.

The present motion for release pending appeal is based on incidents in the course of the jury trial, which the court will now consider in further detail.

2.Reserved seats

During the trial, Chief Judge Munson reserved for groups of visiting students several rows of seating in the public gallery, on the judge's right, behind the defense tables, and opposite the jury box, amounting to approximately half or perhaps slightly more than half of the public gallery.At oral arguments on the motion presently before the court, the parties agreed that photographs showing the courtroom layout and the position of the reserved seats would be helpful to an understanding of the motion and this ruling.Although I proposed that I would take such photographs myself, I subsequently discovered that the clerk's office had such photographs, taken by a member of the clerk's office staff for other purposes during the course of the trial of these defendants.I believe that inclusion of these photographs, taken by a neutral party for other purposes, will be unobjectionable to the parties.

The first photograph shows a view from the left aisle beside the seats reserved for students, to the right of the bench, with the back row of reserved seats occupied:

This second photograph shows a view from the back of the gallery, looking left, with seats reserved for students behind the left column, and with the bench between the columns:

This third photograph shows a view from the back of the gallery, looking right, with the bench to the left of the column and the jury box to the far right of the column:

The reserved seats were not occupied by visiting students on all eighteen days of the trial (during presentation of evidence, closing arguments, and the verdict); rather, the reserved seats were occupied, apparently never in their entirety, by visiting students only parts of some days, perhaps as few as three or four days of the eighteen days of the trial.

Other portions of the gallery, behind the prosecution tables, were also reserved for government personnel and witnesses and for the media.On one occasion, an attorney not involved in the case sat in the section reserved for government personnel or the press.

3.The requests to release reserved seats

On Tuesday, March 31, 2009, the first day of trial after jury selection, during a sidebar conference on an unrelated matter, counsel for defendantJames Santos made the following request:

MR. TORRES: I'd like to bring one thing up.I would like to request that the farther part of this courtroom be open.It was reserved for the students, and they did not show up, so we request that the public be allowed.

THE COURT: That's not going to happen.

Transcript of Jury Trial, Day One, March 31, 2009(docket no. 365)at 3.The trial judge provided no further explanation for his ruling.Following the trial judge's denial of defendantJames Santos's request, none of the defendants objected to the trial judge's decision on any ground, let alone a Sixth Amendment public trial ground.

On a second occasion, on April 23, 2009, before the case was submitted to the jury the following exchange occurred out of the presence of the jurors:

MR. LUJAN [counsel for defendant Villagomez]: I'm not trying to nitpick, but throughout the trial, the members of the public have approached me asking how come they're not allowed to sit, for example, behind the prosecutors.We notice it says “U.S. Government” and then it says “Press,” but you take, for example, I see Attorney Matt Gregory; he's allowed to sit there.He's not a member of either.He's just a member of the public, like other people.But other members of the public have been turned away when there's no more seats left among these pews behind us.

I guess that's another instance I'm asking the Court to discuss with the Marshals.

MR. QUICHOCHO [Counsel for defendantJoaquina Santos]: Also, Your Honor, if there are-I know that the seating right here to my left is not full with students.Can we open them up for the public, as well, Your Honor, as long as there's space?

THE COURT: No.

MR. QUICHOCHO: Thank you, Your Honor.

Defendants' Supplemental Memorandum In Support Of Renewed Motion For Release On Bail Pending Appeal(Defendants' Supplemental Memorandum)(docket no. 394), Exhibit B, at 3-4.Again, the trial judge provided no further explanation for his ruling and, again, none of the defendants objected to the trial judge's decision on any ground, let alone a Sixth Amendment public trial ground.Subsequently, after a further recess, during which the trial judge conferred with the United States Marshal, the trial judge stated the following in another sidebar:

THE COURT: ... The other thing, there was a statement about Mr. Gregory, Matthew Gregory, sitting over with the United States personnel.He said they-the United States asked him to sit there with them.

MR. O'MALLEY [The prosecutor]: It didn't come from me, Your Honor.

Defendants' Supplemental Memorandum, Exhibit B, at 5.The parties have not identified any further part of the trial transcript concerning the issue of reserved seating.

B. Post-Trial Proceedings

1.The first motions for release pending appeal

On July 20, 2009, each of the defendants filed or joined in a motion (docket nos. 303, 304, 305) for release pending appeal, pursuant to 18 U.S.C. § 3143(b), asserting that such release was appropriate, primarily because their claims of juror misconduct were fairly debatable.By Order (docket no. 306), filed July 21, 2009, the trial judge denied the defendants' motions for release pending appeal, without prejudice, on the ground that the motions were premature, because the defendants had not yet been sentenced.

2.Sentencings

On August 5, 2009, the court sentenced defendant Villagomez to 87 months of imprisonment and sentenced James Santos and Joaquina Santos to 60 months of imprisonment each.Sentencing Hearing Minutes (docket nos. 311, 312, 313); Judgments (docket nos. 314, 315, 317).The court continued the defendants' release and directed the defendants to self-surrender at the correctional...