Massage-Gate: U.S. Files Response

January 29, 2010

Will Criminal Charges Be Filed?
The Government's response to the motion to vacate order for evidentiary hearing and to quash the subpoenas makes several points worth noting. First, the motion filed by the AG was filed solely on behalf of Commissioner Dolores Aldan. No attorney made an appearance on behalf of the other witnesses. Those others witnesses are Governor Fitial and the three DOC officials: Capt. Arnold Kaipat Seman (the governor's son-in-law), Capt. Georgia Cabrera, and Corrections Officer Abigail Borja. The three DOC officials and Commissioner Aldan accompanied the prisoner-masseuse to the governor's home so she could give the governor a massage. Prisoner Qingmei Cheng was arrested on January 5, 2010 on 22 counts of attempting to bring aliens to the United States. She was ordered by the federal judge to be held without bail until her hearing date.

From the Government's motion filed today:
The Government notes that the Office of the Attorney General of the Commonwealth of the Northern Mariana Islands filed the present motion solely on behalf of employee Dolores M. Aldan, presumably because she acted in her official capacity and her interests may conflict with those of the other witnesses. To the Government’s knowledge, no counsel has entered an appearance on behalf of the other witnesses. Because the Attorney General filed the initial motion to extend in the name of the C.N.M.I., presumably on behalf of all subpoenaed witnesses, the Government relies upon the Attorney General as the only known counsel of record for service of this response on the remaining witnesses, in accord with Fed. R. Crim. P. 49(b), and Fed. R. Civ. P. 5(b)(1).
The AG's motion noted that the hearing was unusual. The response agrees stating: "To begin, the Government agrees with witness Aldan that this is an unusual hearing. The removal of a federal detainee from a holding facility for the purpose of providing a personal service to a public official was an unusual event." I would guess that this case is not only unusual, but also unprecedented.

The response cites the All Writs Act, which "provides judges with a flexible mechanism to enforce compliance with their judgments and orders. This may include taking action against persons not a party to the underlying litigation." The response contends:
The evidentiary hearing now set for February 17, 2010 is an acceptable use of this power as it is necessary and appropriate in aid of the Court’s jurisdiction, specifically its authority to detain persons charged with federal crimes and to prevent unauthorized contacts with those detainees.

The purpose of the evidentiary hearing is to discover and record the existence, or non-existence, of prejudice to the Government’s case. It will also serve to disclose and record the existence, or non-existence, of prejudice to defendant Cheng’s due process and/or civil rights. In short, it will either provide a clean record upon which the prosecution of Cheng may proceed without obstacle, or it will provide a basis for motions or actions brought by Cheng. As of the date of this filing, there is no evidence on the record – only unsupported assertions of counsel. There is no testimony, no sworn statements, no physical evidence. The Government believes an evidentiary hearing is an appropriately cautious measure to make such a record.

Granted, information revealed during the evidentiary hearing may conceivably prompt the Court, the Government, or an interested third-party, to initiate contempt proceedings. Such proceedings may be criminal in nature, to vindicate disobedience to the Court’s lawful order, or civil, to compel obedience to its orders going forward. In either case, witness Aldan’s concerns regarding judicial involvement in a criminal investigation are not relevant. Indeed, in contempt proceedings it is the judiciary that requests appointment of government attorneys (or outside counsel if the interests of justice require) to prosecute in aid of enforcing judicial orders. Fed. R. Crim. P. 42(a)(2). Nor do protections afforded by a grand jury necessarily apply to contempt proceedings. United States v. Marthaler, 571 F.2d 1104, 1105 (9th Cir. 1978). Importantly, however, in either an evidentiary hearing or a contempt proceeding, the witnesses will have the Fifth Amendment’s protection against self incrimination.
The Government is also considering the defendant's due process and civil rights. The evidentiary hearing may determine if any of Ms. Cheng's rights were violated by her unauthorized removal from the jail.

The Government stated: "Under Federal Rule of Criminal Procedure 42(a), upon receiving information of a possible violation of its order, a court may sua sponte, or upon petition of an interested party, initiate contempt proceedings by giving notice in open court, by providing notice of an order to show cause, or by issuing an arrest warrant. Fed. R. of Crim. P. 42.; 18 U.S.C. § 401."

The response requests that the motion to vacate the evidentiary hearing and quash subpoenas be denied.

I assume that the Court could, and hopefully will, find those involved in removing a prisoner against the Court's order of jailing the prisoner without bail, in contempt. If the incident is determined to have violated federal law, hopefully criminal charges will be brought to hold those involved accountable, and to set an example to the community that laws are meant to be followed. To date no apology or statement of acceptance that the incident was a breach of public trust or abuse of office has been issued.

It should be noted that this is not the first time that this particular prisoner, Qingmei Cheng, was released from custody at the direction of the governor. From the Variety:
One of the arresting officers who asked not to be identified, said Qingmei Cheng, the 28-year-old masseuse at YuYu Spa, was booked for solicitation of customers sometime between March and June 2009.

The source said Cheng was ordered released even before she could be brought to the police station for questioning.
“It’s frustrating for politics to come into [our line of work]. One phone call and she was released even before she could be interviewed by an investigator. We were told she was going to massage the governor,” the source said.
Cheng’s arrest for solicitation should have been recorded by the Department of Corrections but the source said he wouldn’t be surprised if the incident was expunged from official documents.
The comments made by Commissioner Aldan to the Saipan Tribune yesterday indicate that she may not be capable of making sound decisions regarding the operations of the jail. The fact that her husband is given furlough is questionable. I am surprised that the AG didn't ask her to remain silent. Her remarks and flippant attitude appear to have only damaged her further.

In July 2009 it was reported that the Department of Corrections was calling for the end of the Consent Decree that was imposed on the department and prison facilities for violating the civil rights of the prisoners. The consent decree from the U.S. Department of Justice forced the CNMI to construct the adult prison facility after they witnessed deplorable conditions in the old facility. The new jail opened in February 2008 in Susupe. The consent decree also called for adequate staffing, and training of personnel in professional corrections practices. If this consent decree was lifted, the judge may want to reinstate it and provide some direct federal oversight at the jail and the Department of Corrections in view of the recent incident which demonstrates a flagrant disregard for the law. If it wasn't lifted the judge may want to strengthen it.


Anonymous said...

These clowns need to go now, all of them including the governor.We all know the governor and Aldan don't have the moral fiber to resign on their own. Come on feds, please file charges. Help us out!

MrCoffee said...

This is absolutely delicious... I feel almost gleeful reading the case citations that smack down the AG's garbage motion.

And I see the AUSA trying to put an end to the AG back-and-forth.

My question to the community is, "Is this saber-rattling or just matter-of-fact citing of the law" when they talk about options to pursue contempt proceedings.

How can I be sure to have a seat in court on 2/17!?

Wendy said...

Good morning MrCoffee: I noticed that the response was no nonsense and a smack down of sorts. The message seemed to be -Go ahead and put out all of your nonsense, but we are not even going there.

I am hoping that the USDOJ will arrest anyone who violated a federal law. I am anxious to see what the judge says also.

If you do get a seat in court on the 17th please could you write a piece for this blog -an eyewitness report? I would really appreciate it!

Anonymous said...

"To begin, the Government agrees with witness Aldan that this is an unusual hearing. The removal of a federal detainee from a holding facility for the purpose of providing a personal service to a public official was an unusual event."

USAO Response (emphasis added).

However, the emergency alternative medicine treatment of the chief executive officer of a United States Commonwealth in the face of the excruciating pain of aggravated spinal stenosis is not, not, NOT a "personal" service but an official treatment.

The USAO seems not to recognize the constitutional status of a chief executive officer under state/commonwealth law, or else is clearly trying to denigrate the CNMI with respect to the 50 states and Guam.

Make no mistake about it, AUSA O'Malley is clearly acting in derogation of the rights of the CNMI and its citizens in the health of their governor. The CNMI OAG is well within its prerogatives to zealously defend the rights of our people.

The order for the putative "evidentiary hearing," now plainly unmasked as part of a witch-hunt against Fitial wholly collateral to the criminal proceeding against Cheng; it should be immediately and interlocutorily appealed to the Ninth Circuit.

Wendy said...

Anonymous 5:42

I would not identify myself either if I had said, "However, the emergency alternative medicine treatment of the chief executive officer of a United States Commonwealth in the face of the excruciating pain of aggravated spinal stenosis is not, not, NOT a "personal" service but an official treatment."

What a ridiculous statement. First, do you have any evidence that this masseuse, who reportedly was once arrested for solicitation, is a licensed physical therapist or even a licensed massage therapist? Do you not agree that there are numerous massage therapists available on Saipan who were not in jail?

The readers of this site are not going to buy your nonsensical spin. There is clearly no excuse for the governor's action. None!

There is no "witch hunt." The governor put himself in this situation. Now let him accept responsibility.

Captain said...

This whole "fiasco", to me, looks like it could develop into a much bigger mess generating many charges that have not been mentioned yet.(hopefully)

It seems like some people seem to not realize that Federal law is NOT the same s NMI law where people like the Gov. and other "connected" and legislature interference is the norm.
This is what is basically "tying the hands" of many of the law enforcement people. (the few that actually try to do their job)
The AG is owned by the Gov. (as stated by the AG in the past)

Interference of a Fed witness, I believe can carry a multitude of specific charges.
There may also be warranted Civil rights violations.
Many other charges with interfering with the Fed court orders etc.
This is additional to possible other mentioned charges.
I would bet that an attorney could "rattle" off many more possible charges to make this incident much more notable.

And noni 5:42 seems to be one of the Govs. AG attorney's or "volunteers" Even as a lay person I have seen much instances of a lessor magnitude which resulted in a major consequence to the offender in my many years around the Pacific and Asia to be able to "swallow" what this noni is stating.
"Absurd" on excuses given, especially in regards to a person that has no license and was an ex garment worker turned Massues and prostitute.
And the biggest thing is this was all done under the secrecy of darkness at 3am in an attempt to have it hidden from the public eye.

This also possibly left the prison operation in violation by leaving it understaffed, along with unauthorized use of a Govt. vehicle. (among other things)
I am wondering who "blew the whistle" on this.
I hope the Feds are talking to him/her.

The Saipan Blogger said...

If the pain was that bad he should have popped a vicodin. It would have numbed the pain before the 12 "alleged" phone calls were finished.

Saipan Writer said...

I find it interesting that only David Lochabay from the CNMI AG's office filed pleadings and only on behalf of Dolores San Nicolas.

I wonder if the Governor will file anything on his own behalf (through the AG or his own counsel).

I think it would be much safer for the US Attorneys to go and hand deliver a copy of their motion/response to the Governor and each of the three other officers, and not assume that the AG represents all of them.

Otherwise, we'll see another delay on 2/17.

Saipan Writer said...

I too would like to know more about how this all came to light. I thought I had read early on that the DOC officials themselves informed the US Marshalls. But of course, I could be wrong.

I also understand the CNMI argument, that if the Court wanted to sua sponte pursue contempt or use its power under the All Writs Act, it could say so. This hearing is like a preliminary to either of those. But ultimately, I agree with the Feds that this is a case without precedent, and there is a need for a hearing to clear the air.

There is a small bit in there, also about Cheng protecting her own rights. I want to know if Joseph Horey is court-appointed counsel or if he was hired by Cheng. I want to know if he has a conflict of interest because his firm at present represents Dolores San Nicolas in ongoing civil litigation.

There is a lot of ground to cover in getting to the "bottom" of this.

Saipan Writer said...

And to Anon 5:42 AM.
Is the CNMI going to pay for this "official treatment" out of the CNMI coffers? Do you think Ms. Cheng will put in an insurance claim?


How far can you bend over?

Anonymous said...

Anon 5:42, WRONG is WRONG no matter what you say, you can bend over it, but it is still WRONG!!!

Anonymous said...

If this was not the wild, wild, wild west Fitial would have resigned immediately. Aldan and her posse would have been fired. Kilili would have taken a real stand against lawlessness. The legislature would investigate the jail and their policies. The public auditor would investigate the costs of the trip out of jail. But hey, this is Saipan. Until enough people demand accountability and effective leadership from their leaders and officials they will have none.

Anonymous said...

DOC should be renamed the Department of Corruption.

Anonymous said...

DoC = Department of Clowns.

Anonymous said...

BenTan calls Bob and Jed: "Put your client on ice and keep her quiet ok? We'll take care of the family in China. No conflict there.

As for the consent decree... William Sablan said it... "No hostages here, only Chinese." So now it is, "No problem here, only a supervised massage."

Anonymous said...

Department of Comfort

Anonymous said...

Someone could make some money leasing out jail cells to the feds for 200 per bed and having Chinese girls provide services for tourists in room service style.

Anonymous said...

Federal judges have wised up and now forbid detainees' removal without federal consent.

Won't be too long before a detainee succumbs to a heart attack there.