Composing a Song is a Condition of Release for Violent Drug Dealer Sentenced to 25 Years Without Parole

April 16, 2010

You can't make this stuff up...

A Friday evening KSPN 2 News report stated that the Parole Board through Governor Fitial paroled David Tanaka Diaz who was sentenced to 25 years without parole. He served 8 years of his sentence.

CNMI Attorney General Edward Buckingham stated in an interview with the newscaster: "It is an entirely discretionary act on the part of the governor. Other governors have the authority, and on the federal level so does the president and it's essentially a discretionary act that can be in the discretion of the governor used to modify a sentence. The governor took steps to commute his sentence, and by virtual of the commutation Mr. Diaz became eligible for consideration of parole. It didn't mean that he would get parole, but meant that the Parole Board could consider him for parole."

The AG failed to state when the governor actually commuted his sentence or why it was commuted. Buckingham is the legal counsel for the Parole Board according to press releases.

KSPN stated that conditions of Diaz's release includes that he must remain at his house between the hours of 6:00 pm and 6:00 am, he must perform 36 hours of community service a month, he cannot operate a motor vehicle, he must participate in prevention programs, and he must enroll in and complete a program at the NMI Trade Institute.

The news report did not state who will pay for the educational requirement. Perhaps the NMI Trade Institute is tuition free.

The news report also did not state what would happen if the former prisoner violated any of the conditions of his release. (I requested a copy of the document.)

I am amazed that a condition of a violent criminal is:
That I shall conduct Outreach (Public Education) at all Public and/or Private School about drug abuse.
(This is written as exactly as it was broadcast on KSPN2.) Should we assume that the legal counsel for the Parole Board, Attorney General Buckingham, approved these conditions? Did the person/s who wrote and approved these conditions consult with the PSS? Will parents and students be notified when Diaz will be on campus in case they want to opt out of a scheduled outreach appearance?

There is another unusual condition that was reported by KSPN:
That I shall composed and record a song (Chamorro and English) about drug abuse in the CNMI and have it publicly played on all the Radio stations as well as provide a master disc to the school system for educational purpose at all schools.
(This is written exactly as it was broadcast.) I imagine that the Parole Board consulted with "all the Radio stations" to get their permission to play this song on the air. I am assuming that they also consulted with the PSS to see if this material would be useful to the schools and students before making this a condition of parole.

Here is what KSPN wrote on their web-site:
A local man jailed with no hope of parole, was let out of the slammer...on parole. Six years ago David Tanaka Diaz was put behind bars for twenty–five years. In 2003 he was arrested for the illegal trafficking of 290 grams of ice. He was sentenced a year later without parole, but last month Diaz walked out of the Department of Corrections on a parole granted by the parole board and the governor. According to an email from Chief Parole Officer Lee Guerrero, Diaz has to adhere to a certain number of standard and specialized conditions including a curfew, community service, youth outreach and composing a song in both Chamorro and English about drug abuse in the CNMI and have it played on local radio stations.
(According to all newspaper reports, David Tanaka Diaz was arrested in 2001 and sentenced in 2002 which means he has actually served 8 years in prison. He was released 17 years early.)

Who decides if the song that he composes is appropriate, meaningful, useful or of good enough quality to broadcast on the radio? If he composes one or two lines does he meet the requirements of this agreement? It's not only offensive, it's ludicrous!

Please take the time to read Attorney Jane Mack's excellent post, David Tanaka Diaz Update and Jane's newest post, David Tanaka Diaz - threepeat.

Disclaimer: This is not a legal blog. No opinion or statement should be perceived as legal advice. All posts are the opinion of the author or contributors who are expressing their First Amendment rights.


The Saipan Blogger said...

I hope his song has yodeling. I really like yodeling.

Anonymous said...
This comment has been removed by a blog administrator.
UNREAL!!! said...

No way is this guy going to go on my child's campus. Next they'll help him to sign up for American Idol. It's like they are trying to make a hero out of the NMIs worst drug dealer. Fitial will hide behind the fat guy and his press secretary and say nothing. I want to see what the radio stations said about promoting this drug dealer's song.

Wendy said...

Anonymous 9:28

The governor should come out and say why he commuted this man's sentence and when. Was it commuted before the elections to secure a block of votes? Was it commuted because this man is sick? The AG stated at length that he "reviews" all requests that are brought to his office. Did the family make a request? Did Diaz make a request?

If the KSPN report is correct, and I have no reason to think it was not, the terms of the agreement are extremely offensive to the public. The agreement calls for a convicted criminal to attend trade school. What will the other students and teachers think of this? What does the administration of the school think of this? Were terms negotiated with the school? Who pays for the tuition?

I doubt that any school principal would allow this man to speak at their schools. There are many liabilities that would be involved if it was allowed. I am not just talking about danger from a former drug dealer with a violent past being given access to children, but from the content of any talk. What educator would invite this man to speak? What parent would want their children to spend time away from studies to hear from a violent drug dealer that may or may not have been reformed?

I also doubt that a radio station would want to get involved in this controversy. I am sure that they may fear losing advertisers or being a target of outrage from the public. It is absolutely incredible that an agreement such as this would be penned! An agreement that includes the attempt to transform (at least on paper) a violent drug dealer to a hero for children and a rock star.

There are many amazing people in the CNMI who serve as EXCELLENT ROLE MODELS for the youth that principals could invite to their schools to speak! There are talented artists, manamko with amazing stories, history scholars, some current and former legislators, writers, attorneys, and performers without a criminal past.

I wonder what CNMI performers and singers think of this deal. A criminal gets a radio deal with the blessing of the AG (the Parole Board's legal counsel), the Parole Board and governor while they struggle to get their music on the airwaves.

If this man has not been "reformed" and goes back to his patten of criminal activity what will the governor have to say then? Will he still let his volunteers, press secretary and AG be his mouthpiece? Will he ever accept responsibility?

Anyone who was involved with this action should face the public and reveal what prompted them to make this outrageous decision and to pen such an offensive document. That includes the governor, the AG, and the Parole Board.

I am interested to see if the public will have anything to say about this or if parole-gate will be shrugged off like massage-gate, and gun-gate. The CNMI really has earned the reputation of the wild west as a previous commenter said. It is almost like clockwork -every month there is a scandal involving the CNMI legal system and the out of control administration that appears to have no respect for the law, peoples' rights or the well-being and safety of the citizens.

Anonymous said...

Once the Aldan case and this reach international media the tourist industry will be gone just like the garment industry. Saipan is not safe. I can see every legal blog and US newspaper picking up on this and the conditions of the release. It will make Saturday Night Live and late night talk shows. The guv is killing us.

Anonymous said...

To Ben Fitial, Ed Buckingham, Rosemond Santos, and the Board of Parole:

How do you sleep at night?

I do not sleep well at all because I do not feel safe here. I am worried about my family.

Don't you worry, too?

Anonymous said...

Who is David Diaz's connnection to Fitial? Elizabeth Diaz Rechebei? Did she make a call for a favor from Ben and Buckingham? No one gets this good of a deal without knowing someone. Who? Why?

Anonymous said...

My guess is that Diaz made a big cash donation to Fitial's re-election campaign.

Anonymous said...

One of the conditions was that this guy was not supposed to drive a car, and before this particular post someone stated elsewhere that they recognized this guy driving by in a vehicle and last knew he was supposed to be in jail.

Anonymous said...

I think the outrage is misplaced. Everywhere in the U.S. except the CNMI criminals are afraid of Federal charges because they are so much more severe than state charges. If Judge Wiseman is on the bench in Susupe, he gives 25 years, but if he is in Garapan he gives 3 to defendants with identical records. Someone could curse Judge Wiseman in Garapan during sentencing and still not receive the minimum sentence that someone with 10,000 charactor references would receive in Suspue. Jawn Joyner will be sentenced on May 7, for a plea to 3 counts of drug distribution. If he was prosecuted in the CNMI court (which was possible) he would be looking at A MINIMUM MANDATORY sentence of of least 75 years in jail without the possibility of parole. The public perception is that the Chinese are the drug dealers, so therefore life sentences for selling drugs is okay. Spending $25,000 a year per criminal would be better spent deporting the criminals right away and spending the money on rehabilitation programs for our local people who are hooked on ice.

The "C" in Covenant stands for criminal said...

Dear Gov. Fitial:

Way to go! Too many of these greasy Russians spending their tourist dollars here, buying up property leases, building luxury houses. You really sent them a message, Gov. When violent, local meth heads attack Russian tourists, they will be pardoned in secret at the first opportunity.

Let's hurry up and pardon a convict who raped a Japanese and murdered a Korean for the hat trick.

Anonymous said...

the guv seems to have endless surprises for all us. like a magician in a circus, he keeps pulling out flower, handkerchiefs, non stop. what's next, can somebody guess?

Anonymous said...

well, it is nothing short of a very sad state of affairs when every month some BS like this happens. The CNMI is dying a slow death by ignorance and arrogance. but, why pardon a drug dealer.....?

The Saipan Blogger said...

I heard he got pardoned because the governor needed a haircut. This guy gives the best haircuts on island.

Anonymous said...

Anon 4:20

The apparent disparity between the CNMI's statute and the federal statute only exists for small quantities. If Diaz had been convicted of possession of 290 grams of meth with intent to distribute, his prior felony drug conviction would have netted him 20 years to life in federal court. 21 U.S.C. section 841(b)(1)(B).

Anonymous said...

This is just another reason convicted felons should be serving time off island out of Ben's control. If he would have been serving time in a federal prison, only the Governor of that state could have done what Ben did. Think about it and look who is still in our facility here. Purge it out.

Anonymous said...

Anon 9:45

You are comparing a federal drug kingpin statute to all cases in CNMI court. Also you are assuming that the meth was 100% pure, which is extremely unlikely. Under 21 U.S.C. 841, If a person has one prior conviction and has 290 grams of less than 100% pure meth the federal mandatory minimum is 10 years.

Diaz would have been looking at a 10 year mandatory minimum in federal court not the 25 years that was the mandatory minimum in the CNMI.

Anonymous said...

Anon 10:47

Wrong. 21 USC sec. 841 is the basic statute dealing with controlled substance manufacture, distribution and possession with intent to distribute. It is not the "kingpin statute."

You are also wrong on the penalty. For 50 grams or more of methamphetamine (no requirement that it be of any particular purity), the statute says that if any person commits such a violation "after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment."

Anonymous said...

Anon 10:47

For an easy chart on federal drug mandatory minimums check out:

Diaz would have been looking at a 10 year mandatory minimum in federal court not the 25 years that was the mandatory minimum in the CNMI.

Anonymous said...

Anon 4:40

May I suggest a remedial reading class for you? If you would read the statute, and stay away from tables prepared by third parties, you would see that a person with at least one prior felony drug conviction who violates 21 USC sec. 841 by possessing over 50 grams of methamphetamine is looking at not less than 20 years. Trust me. And no getting out by painting a bus stop, either.

Anonymous said...

Anon 4:40

The next sentence of 21 USC 841(b) says OR 500 GRAMS OF A MIXTURE.

U.S. v. Rusher, 966 F.2d 868 is the controlling case.

Anonymous said...

Anon 10:19

A mixture only requires a detectable amount of the drug. So if Diaz's 290 grams was 80% pure, he would have possessed 232 grams of actual meth, and would be subject to a 20-year mandatory minimum. If it was 60% pure, he would have possessed 174 grams of actual meth, and would be subject to the 20-year mandatory minimum. If it was 40% pure, he would have had 116 grams of actual meth, and the 20-year mandatory minimum would apply. If it was on 20% pure, he still would have had 58 grams of actual meth, and the 20-year mandatory minimum would apply. Typically what we see in the Marianas is purity exceeding 80%.