Federal prosecutor: Law does not require production of interview notes

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ASSISTANT U.S. Attorney Eric O’Malley said the U.S. government is not required to produce official witness reports, “let alone the rough notes that assisted the drafting of those reports” under Federal Rule of Criminal Procedure 16(a)(2).

In response to the request of Rota Mayor Efraim Atalig and co-defendant Evelyn Atalig to produce Federal Bureau of Investigation and Office of the Public Auditor witnesses interview notes, O’Malley said the law does not require such production and because they are rough notes.

“They did not record the witnesses’ verbatim statements but merely pointers to refresh an investigator’s memory when they write their official report,” O’Malley said, referring to the FBI and OPA.

He said the prosecution has reviewed the notes relating to the interviews with investigators and found no inconsistencies.

However, to give assurance to the defense, he said the U.S. government does not object to, and hereby requests, an in-camera comparison of the notes and the accompanying reports.

The Ataligs have asked the federal court to order the prosecution to produce FBI and OPA interview notes, or at least conduct a review to determine whether they should be produced and, if warranted, filed under seal as they contain sensitive information.

The Ataligs also requested the U.S. government to produce copies of plea agreements and other documents showing promises or understanding of non-prosecution of the mayor’s co-defendants in the CNMI case.

The defendants are also seeking “personnel files, disciplinary actions, and investigation reports of government agents who investigated the case including without limitation FBI agents Michael A. Gadsden and Haejun Park, and OPA investigators Travis A. Hurst and Josue Genesis C. Cruz.”

O’Malley conceded that there was derogatory information in one of the FBI’s agents personnel file, but added that the court should factor the passage of time and the agent’s intervening years of exemplary service in weighing whether the described conduct is still relevant to the agent’s credibility.

He did not identify the agent.

As for the defendants’ other requests, O’Malley asked the court to allow the U.S. government to submit the documents ex-parte and under seal because “the content of the documents effectively discloses information it believes is not discoverable so service to the defense or public disclosure would defeat that purpose.”

In Sept. 2018, Mayor Atalig was charged with one count of wire fraud for attending a Guam political rally while on a government-funded trip.

In Nov. 2018, the U.S. government filed a superseding indictment against the mayor and his girlfriend, Evelyn Atalig. They were charged with conspiracy, wire fraud, theft from program receiving federal funds, and two counts of false statements.

The Ataligs’ federal trial will start on March 10, 2020 at 10 a.m.

In Superior Court, Mayor Atalig and seven of his resident directors are accused of taking government- funded per diem and salary compensation to attend a Republican Party rally on Guam on June 23, 2018.

Their local jury trial will begin on March 30, 2020.

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