23 Jun 2017
- By Bryan Manabat – [email protected] – Variety News Staff
FORMER Department of Public Safety Deputy Commissioner Ambrosio T. Ogumoro still wants the high court to reverse his conviction in shielding then-Attorney General Edward Buckingham from being served with penal summons in 2012.
Ogumoro has already served a year in prison for his conviction in the case.
Through his legal counsel, Daniel Guidotti, Ogumoro is now asking 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 said then-Superior Court Judge David A. Wiseman erred when he convicted Ogumoro of misconduct in public office based on the then-DPS official’s failure to help then-Office-of-the-Public-Auditor’s Juanette David-Atalig serve a penal summons on Buckingham at the Saipan airport.
Guidotti said a police officer has no duty to assist in serving an invalid penal summons.
The other defendants were former Gov. Benigno R. Fitial, Buckingham, former Commonwealth Ports Authority police chief Jordan Kosam. CPA Police Capt. John T. Rebuenog, and Fitial’s former personal driver and bodyguard, Jermaine Joseph W. Nekaifes.
Ogumoro was the only defendant who served prison time after a jury found him guilty of conspiracy to commit theft of services in Jan. 2015.
Judge Wiseman also found Ogumoro guilty of five charges of misconduct in public office, one count of obstructing justice: interference with a law enforcement officer or witness, and one count of criminal coercion.
Judge Wiseman sentenced Ogumoro to one year in prison in March 2016.
Former Governor Fitial was also found guilty and sentenced to one year in jail, but citing Fitial’s poor health, then-Gov. Eloy S. Inos commuted his sentence.
As for Buckingham, he was sentenced to 3.5 years in jail, all suspended. He was also placed on probation for 3.5 years, ordered to pay a $14,000 fine, and barred from working in the CNMI government for 20 years.
Kosam was sentenced to one year of imprisonment — but all suspended — and three years supervised release.
The charges against Rebuenog and Nekaifes were dismissed.
According to Guidotti, the core of the 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.
The lesser included instruction, said Guidotti, would have given the jury an opportunity to convict Ogumoro of misdemeanor theft offenses.
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,” Ogumoro’s lawyer said.
He said the lowest of these computations is $84.40, which is below the felony threshold.
“It follows that a reasonable jury could not have convicted Ogumoro of misdemeanor theft of service.”
Ogumoro’s case meets the plain error standard, his lawyer added.
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.
Guidotti said Judge Wiseman convicted Ogumoro of misconduct in public office based on Ogumoro’s recall of DPS officers who were helping David-Atalig serve a penal summons on Buckingham.
Guidotti said Judge 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.”
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 a plain error, Guidotti said.
Judge Wiseman, he added, “construed the statute so as to remove the requirement that a penal summons be ‘issued in accordance with law and the rules of procedure prescribed in accordance with law.’ ”
Source: Marianas Variety : http://www.mvariety.com/cnmi/cnmi-news/local/96313-ambrosio-ogumoro-appeals-conviction-in-buckingham-case