Massage-Gate: OAG Files Motion to Vacate and Quash

January 22, 2010

Attorney David Lochabay from the CNMI Office of the Attorney General filed a Motion to Vacate the Order for Evidentiary Hearing and to Quash the Subpoenas today in the District Court of the Northern Marianas. The first half of the motion is soaked in arrogance and shows the typical Fitial Administration belief that the governor and his officials are above the law and all can be made fine with excuses.

The Motion admits that "the facts as stated in the Government's Motion for evidentiary hearing are essentially correct." The motion repeats much of what the U.S. government stated in their motion calling for an evidentiary hearing, but this motion is peppered with excuses used as a basis to justify an unjustifiable act.

The motion claims that the governor's back condition should be a valid reason for the unreasonable act of removing a prisoner from her jail cell. This is not a sound argument because a licensed medical practitioner could have been contacted or another masseuse who is not in jail could have been called. The governor claims that the treatment relieves his "pain", but apparently the pain still exists so logically he should have sought other treatment.

It was an absolute abuse of the power of the office of the governor to arrogantly request that a prisoner be removed from jail to meet his personal needs. No other CNMI resident would or could request to have a prisoner taken from jail for a massage for any reason, including pain.

The motion claims that DOC Commissioner Aldan had a conversation with the governor in the early morning hours of January 8th and that during that conversation he complained of back pain. It does not say who initiated the phone conversation. It also does not state the exact time of the call.

The claim that "repeated attempts to reach the Attorney General or Don Hall were unsuccessful" is also not a valid argument for using one's position and office to remove a prisoner from jail. Can most people be reached in the early hours of the morning? (The hour of 3:00 am has been publicized.) Can phone records verify that any attempts were or were not actually made? Do either the AG or Mr. Hall even have the authority to release the prisoner without getting court documents? If a court orders a prisoner to jail without bail then why should anyone be allowed to remove the prisoner without consent of the court or an official of the court. Only complete arrogance and audacity could be the cause of behavior exhibited by the governor and the DOC officials.

The fact that this reportedly is not the first time that the governor had the prisoner released from custody to be brought to his house for a massage is also significant. It shows a pattern of utter disrespect for the law.

The act also ignores the rights of a prisoner. Why should a prisoner be taken from her cell to perform a massage? The removal could be viewed as cruel and unusual punishment as stated in the 8th Amendment. The motion does not even address the rights and wishes of the prisoner. Did she protest? Were any promises made to her? Was she threatened? What conversation transpired between DOC officials and the prisoner? An evidentiary hearing is needed to determine these facts.

The motion claims:
Upon information and belief there is no evidence that any conversations concerning the criminal charges pending against Defendant Cheng were had by the Governor, Mrs. Fitial (the Governor's wife was present during the massage), and any of the others present, or any other persons. Nor is there any evidence of any other type of action(s) which could conceivably have "prejudice(d)" the Federal Government's case against Defendant Cheng.
The motion claims that Aldan and three DOC officials accompanied the prisoner to the governor's house where she "treated the governor and was successful in relieving his pain." The motion claims that since the prisoner was always in the custody of the DOC officials that she was never actually released. The motion states, "At no time was she "released" or otherwise not in custody." Silly semantical word games do not make the act any less reprehensible.

Qingmei Cheng, a defendant in a human smuggling case, was taken from the jail and brought to the governor's house to give him a massage. That is a fact. It is a fact that she was released from her cell. Is this routine? Is it true that the commissioner's husband has been "released" from jail on weekends? Is the jail so mismanaged that this is considered acceptable practice? How many other prisoners have been released, but not "released"? Is it because this is a common practice that the government officials think that it is acceptable? Can any CNMI resident call DOC and order a prisoner to their house to perform a job that they must have completed because it's an emergency? Can the federal government take control of the jail or at least monitor it?

The AG claims that there is no showing for cause for an evidentiary hearing:
It is entirely a federal matter and even if Defendant Cheng had been promised the moon by any persons or persons involved in this incident, it would have been an illusionary promise and incapable of causing "prejudice" to the case against Defendant Cheng.
Wouldn't just the act of the governor being able to use his office to release her from prison in the middle of the night prejudice the case?

The second part of the motion seems to indicate that the governor and officials fear that they are being investigated for future prosecution for violating federal law. The motion states that the evidentiary hearing "is simply a pretext for the gathering of evidence against some who may have violated the criminal laws of the United States. This is buttressed by the fact that agents of the Federal government have already interviewed Aldan."

From the motion:
It appears apparent that the Government is investigating this incident, not necessarily as a housekeeping measure over the care and feeding of federal detainees, but also with an eye toward criminal prosecution, that raises the question of the propriety of involving the court in an criminal investigation.
The motion also states:
The secrecy also is an important protection for those under investigation by the grand jury. It prevents persons under investigation from being the objects of public derision and being pilloried in the media, as is currently being done to Governor Fitial in this case. (See Exhibit 1, Newspaper articles. Sadly, it is hard to imagine how anyone connected to the incident could avoid derision and stigma of the public after this media assault.
What on earth do the governor, the DOC officials and the Fitial Administration expect when such an outrageous act is committed? Do they seriously believe that the media will not publicize this? Get real! This one contemptible incident raises a multitude of serious questions: Why is a governor allowed to abuse his powers and office? Why would a DOC commissioner consent to this act? Was the safety of the other prisoners or DOC officials compromised by three DOC officials leaving their posts? Where are lines drawn between official power and individual needs? Was this an abuse of public funds? What are the rights of prisoners to be protected? Can prisoners be made to perform jobs for officials? How was the case prejudiced by this outrageous incident?

The argument to kill the messenger is worn and also not valid. The public has a right to expect that their public officials will behave ethically and responsibly. Publicity in such an incident is absolutely expected and is the norm. Look at the cases of other officials who violated laws and/or the public trust. The media is relentless.

As in most scandals, the press backs off when the offending official responds to actions in a forthright and direct way and accepts responsibility for violating the public trust and apologizes. This was not done.

Good Editorial
Zaldy Dandan, editor of the Marianas Variety, wrote an editorial, Variations: Massage-gate that makes some excellent points.

Zaldy states that if the incident happened in the states, heads would have rolled. That's certainly true. He then outlines one outrageous controversy after another as he traces the governor's political career from scandal to scandal. He makes it clear that the governor's moral compass seems to have been lost over a decade ago. Yet the governor has continued leading the CNMI down his wayward path with many loyal supporters continuing to follow him and making excuses for his decisions.

Zaldy mentions that some forms of community outrage have surfaced since the paper exposed the incident. He then says, "But I don’t think all this will be channeled into an organized movement directed against the governor."

If it is determined that a law has been violated, the community may not need to organize to demand an end to abuse of power. The U.S. attorneys may just prosecute.

Another good read from the Variety is Governor: Get Your own Lawyer.


Anonymous said...

This could be quite interesting, CNMI AG's "aging greybeards" going head to head with USAO "young guns". Old age and treachery will always win out over youth and skill? Lots of fodder for the two newspapers and this will keep the public's eyes off what Fitial is doing while silently setting up his last dynasty.

Anonymous said...

Fitial should resign now,but he won't. Aldan should be fired along with the three officers. The legacy that this administration leaves is book material.Zaldy has a good outline and seeing it all in one place is astounding.Hope that there is a federal law that has been broken and they throw the book and the whole library at them!!

Anonymous said...

Dream on. Nothing will happen.

Captain said...

It looks like this AG office is "pacifying" the Gov. by filing ridicules papers at the direction of the Gov.
Same thing happened with the suit against the Feds.
The Lawyers know the filing won't fly but have one hand open for the money and the other delivering the paperwork.
Same going on here and now. File it and hope the Judge is sleeping.
But I agree, most likely nothing will happen down the line. Unless the Feds have something else that they are investigating that they might bring out.
The Gov and people involved will probably get a reprimand and told not to do it again and the rest of the corruption will go on.

Humanitarian said...

This entire “controversy” originated with Marianas Variety coverage of the short two-page ex parte (with respect to its targets) motion of the USAO seeking a hearing “in aid of the Court's jurisdiction.” No other authority, precedent, or rationale was provided.

I am not blaming any particular judge, because the CNMI judiciary has been letting local lawyers get away with stunts like this for decades -- seeking specific judicial actions with minimal or no prima facie showing of the legal authority for so doing. The standard response of the judiciary should be to deny such relief without prejudice, subject to renewal upon proper authority and procedure. This is so seldom done by our courts that as a result, most lawyers seldom bother, and we get the sort of ad hoc decision making so prevalent around here, the triumph of emotion and exceptionalism over precedent.

Yet the law is the law, no matter how much we hate an incumbent politician and wish to use it to persecute him in ways that could not succeed at the ballot box.

Is there precedent anywhere in the United States of America for the use of such an “evidentiary hearing” fishing expedition in lieu of a Grand Jury investigation? Did the AUSA's supervisor pre-approve the filing, and was it in conformance with DoJ Main Justice principles?

Perhaps we'll find out the answer to the first question next week when the USAO files its response.

Hey! Let's subpoena the records of this blog so we can learn who is being so outrageously zealous in supporting the Bill of Rights!

Anonymous said...

I'm pretty sure the OAG Civil Division Chief spells his surname “Lochabay”, with an “a” as the penultimate character.

Wendy said...


The Marianas Variety did not start any controversy. The governor did when he requested that a prisoner be brought to his house to give him a massage.

Calling for an elected official to be respectful of laws and to uphold the public trust is not "persecution" whether in the CNMI or in the U.S.

Hey! This blog has "no records", and with only a handful of exceptions, every post is written by me. Those that are not have the author's name attributed to them. I can't imagine why a "court" would want to know the identity of you or other anonymous commenters unless a threat was made in a comment. They would have to subpoena Google and ask them to trace IP addresses, because "this blog" has no capability of identifying commenters' identities.

YES! Bill of Rights! Hey, guess that's me who supports it!

Anonymous 1:36 -Thanks! I will correct that!

Anonymous said...

Humanitarian -respect to targets? do you mean fitial, aldan and the three musketeers? why do you respect them? yes, the law is the law and it is against the law to take prisoners out of jail when they have no bail. it's called contempt of court.

Anonymous said...

"I am the rule."

"They will all be deported."

"No surrender. No retreat."

Poor Ben. After all his tough talk, he's just another wimp, trying to avoid responsibility by blaming everyone else for his troubles. Let's all have a pity party for poor, persecuted Ben.

Man up, Ben. Quit being such a pussy! Admit you made a mistake, and show some class, for once.

MrCoffee said...

After I printed out the motions from the AG's office, I was unsure of what to do with them, as I don't have a bird cage to line.

If the subpoenas should be quashed because they consider it leading to a possible criminal investigation, should the AG's office cease to provide defense, or at least secure outside counsel?

Anonymous said...

Yes, it is contempt of court and MOST judges take that very seriously.
Taking a federal inmate deemed a flight risk out of jail,unbelievable.

Anonymous said...


Anonymous said...

Wait a minute. Have the commentators read the motion? It makes a simple point: if the U.S. Attorney's Office or the US Marshals believe a crime has been committed, present it to the Grand Jury to charge.

But the U.S. Attorney's Office should file a motion for contempt of court against the Department of Corrections and Aldan for disregarding the Court's bail order. That would be the right way to present it-- apparently they have all the facts. Bring in Dolores to show cause why she shouldn't be held in contempt. Why hasn't O'Malley done that? Maybe he doesn't know? Or maybe it is the "friendliest" way to do this-- and Lochabay and the AG may not seem to get it? That's the right motion, not "to find out" about due process issues--- that's for her lawyer to assert, not the Prosecutor. If he hasn't filed anything, what business is it of O'Malley?

No doubt Ben and Dolores did wrong. The question is how to handle it. This "evidentiary hearing" is not the way to do it. Even Baka could have handled this one!

Anonymous said...

There are two kinds of contempt, civil and criminal. The USAO has not moved for either, because there are absolutely no facts suggesting either type -- in the opinion of the AUSAs who have declined to seek any such sanction.

This is merely a hearing “in aid of jurisdiction,” not a contempt or grand jury proceeding.

Saipan Writer said...

I imagine it's difficult to know how to proceed in a case that is so outrageous and probably without precedent. The AG's office can claim they know the right way and that the US attorney's office has gone about this the wrong way, but do they have any other case that is similar on the facts?

I don't blame the US Attorney's office for bringind this to the attention of the Court by expedient of a simple motion to find out what has happened and why. The Court will have to figure out the procedure now, though, and we will all learn something.

Anonymous said...

I think most legal minds that are not in Fitial's pocket realize the AG is not a criminal defense attorney or to be fair TK is not - not sure which one let's him keep talking but that was there first mistake. Any criminal defense lawyer knows his clients comment regardless of how it might look to others is no comment. The "incident" is never what takes down a politician, its the cover up. And OMG this governor is dying from a thousand self inflicted cuts executed by his AG. Let it Be...