Former Gov. John deJongh Jr.’s attorneys asked the court Tuesday to dismiss charges filed against him in September over security work at his house in 2007, saying the charges were groundless and a "politically driven … vendetta" by political foe Gov. Kenneth Mapp.
The motion also says the "entire case … hinges on a matter of remedial English punctuation," because the affidavit supporting the charges misquotes the legislative act authorizing the expense, changing its apparent meaning to make the charges plausible. The motion includes documents that seem to show that the administration cited the security work when it asked a senator to sponsor the legislation to begin with, long before the work was done.
Mapp’s most recent acting attorney general, Claude Walker, announced in October that he is charging Mapp’s former gubernatorial rival, deJongh, for allegedly embezzling public funds on widely publicized security improvements on his house in 2007. (See Related Links below)
Julito Francis, who headed the V.I. Public Finance Authority in 2007, was also arrested.
Walker charged both with embezzling public funds and failing to use public funds for their intended purpose.
DeJongh’s attorneys say the administration told some senators about the security and guard gate plans before requesting the funds – both when requesting the funds and again afterwards – when the Public Finance Authority discussed the work. They say it is not the administration’s fault the Legislature did not choose to list the work to be done with $1.3 million, nor discuss it at all when it introduced and passed the bill during session.
The filing includes a copy of a Jan. 30, 2007, letter from Public Works to deJongh and the PFA requesting the $1.3 million be reprogrammed, which lists Sen. Carlton Dowe as a recipient. The letter specifies the funds are to be used for a list of projects, including a security booth and road improvements at the governor’s residence.
Dowe introduced legislation reprogramming that $1.3 million in bond funding on the Senate floor during session on March 21, 2007, with fewer details about the use of the funds than the Public Works request, and senators approved it the same day without debate or discussion.
After the bill was passed, the PFA discussed the projects in detail several times, and Tuesday’s filing includes copies of several letters in April from the PFA detailing the same list of projects outlined before the bill was submitted on the floor, also listing Dowe as one of the recipients.
Then in 2009, Sen. Adlah "Foncie" Donastorg, a political foe of deJongh’s, started accusing deJongh of misusing the funds and called on the Office of the Inspector General of the U.S. Department of Interior to investigate.
DeJongh’s filing claims Donastorg’s cousin, Hannibal Ware, OIG’s regional manager, "was instrumental" in OIG taking up the claim.
There is a famous anecdote about a panda who either eats shoots and leaves, or maybe he eats, shoots and leaves, showing a comma can make a big difference in the meaning of a sentence.
The OIG report misquotes the Legislature’s act, saying it was "for the specific purpose of engineering design, construction, repair, or resurfacing of roads," and concludes "(c)learly, no part of the $1.3 million was to be used for security improvements at the governor’s private residence – or for any other purpose."
But deJongh’s attorneys point out, the act actually says "for engineering designs, construction, repairs or the resurfacing of roads." And just like the panda, where that comma goes changes the actions from normal and innocent to potentially criminal.
According to deJongh’s motion to dismiss, the purpose of the legislation was to allow all of those actions: engineering designs, various acts of construction and repairs or even the resurfacing of roads – not just those acts of construction and engineering required for road resurfacing.
To bolster this interpretation, the attorneys cite a half-dozen precedent-setting court cases emphasizing how punctuation is important to understanding the plain meaning of a law, and clarifying how punctuation is to be read, including a 2013 V.I. Supreme Court case (Fontaine v. People, 2013).
They also say both the original appropriation and the re-appropriation in question actually paid for many projects, from cemetery vaults to flood control, that had nothing to do with road repair.
"Maddeningly," Schulterbrandt’s affidavit repeats the exact same mistakes as the OIG report, according to deJongh’s attorneys, accusing him of simply copying from the report and not bothering to actually investigate.
"Like the OIG report he plagiarized for his affidavit, Schulterbrandt misspells "design" and "repair," both of which are in plural form in the act," they say. And like the OIG report, Schulterbrandt changes the comma placement to change the meaning of the act.
"That Schulterbrandt simply copied the OIG report for his probable cause affidavit is obvious," deJongh’s attorneys write in a footnote.
"It is also deeply disturbing that Schulterbrandt did not perform his own independent investigation. When the court grants Gov. deJongh’s pending motion for a probable cause hearing, the court can ask Schulterbrandt under oath why he gave such a rubber stamp to a document the contents of which he plainly had no personal knowledge," they write.
Calling the charges a "charade," deJongh’s attorneys say construction is one of the permitted use of the reprogrammed funds, and so deJongh and all the government agencies involved "all acted with appropriate legal authority." As a result, they say, the charges "must be dismissed."
When it schedules a probable cause hearing, V.I. Superior Court will rule on deJongh’s motion to dismiss and whether or not there is sufficient legal justification to bring the charges to trial.
The entire motion can be seen here: Defendent’s Motion to Dismiss the Information Pursuant to Fed. R. Crim. P. 12(b)(3)(B)(iv)