c- at" Q lI L' r:T) i aLl;;. t- W - SLJPERIQH CUURY SUPERIOR COURT GF r.u", •AW·, 0 .-r GL5P\Tv\ 1._::
1 1 ZUZHJAH \18 PH I: u h
2 CLERK ogcoum
3 |,,' ues- \
IN THE SUPERIOR COURT COURT OF OF GUAM GUAM 4
5 PEOPLE OF GUAM, GUAM, 6 Plaintiff, Criminal Case No. No. CM0145-21 7 vs. 8 DECISION DECISION AND AND ORDER (Disqualification NAKITA T. AGUON, NAKITAT.AGUON, 9 Of Of Prosecutor) Prosecutor) DOB: DOB:06/12/1990 06/12/1990 10 10 Defendant.
11 11
12 12 INTRODUCTION 13 13 This matter matter isis before before the the Honorable HonorableAlberto Alberto E. E. Tolentino Tolentino ("Judge ("Judge Tolentino"), Tolentino"), for the the 14 14 limited purpose purposeof of addressing addressingNakita NakitaC.C.Aguon's Aguon's("Defendant") ("Defendant") Motion Motion for Disqualification of 15 15
Prosecutor filed Sept. Sept. 5, 5, 2023. 2023. Defendant Defendant seeks seeks to disqualify Assistant Attorney General General Grant Grant 16 16
17 17 Olan ("AAG") Olen ("AAG") from prosecuting from prosecutingthe theunderlying underlyingcase. case.Attorney AttorneyDavid DavidJ.J.Lucan, Lujan,Esq. Esq. represents represents
18 18 the Defendant. Defendant. Upon Upon review reviewofofthe theevidence, evidence,oral oraland andwritten writtenarguments, arguments, and and legal legal authorities authorities
19 19 presented by by both attorneys, attorneys, the the court court hereby hereby issues issues this thisDecision Decision and and Order Order memorializing memorializing its
20 earlier denial denial of the motion. motion. 21 BACKGROUND 22 On May 25, 2021, 2021,the theOffice Office of the Attorney General filed filed aa criminal complaint alleging 23 that Defendantcommitted that Defendant committedthe theoffense offenseof of Driving Driving While Impaired Impaired (As (As aaMisdemeanor). Misdemeanor). 24 Complaint, Complaint, May 26, 2021. 2021. Trial Trialcommenced commenced on on November November16, 16, 2022, 2022, with with jury jury selection, selection, and and 25 has continuedwith has continued withseveral severalinterruptions interruptionsover overthe thelast lastnine ninemonths. months.Motion Motion for for Disqualification 26
27 of ofProsecutor, Prosecutor, September September5, 5, 2023 2023..
Page 11 of 4 1 1 On On September 6, 2023, September 6, 2023,aahearing hearingwas washeld heldononPlaintiffs PlaintiffsMotion Motion for for Disqualification of 2 Prosecutor. The People argued Prosecutor. The argued their position orally and waived their right to submit submit a brief in 3 response to the response to the Defendant's Defendant'swritten writtenmotion. motion. At At the the hearing, hearing, while the AAG AAG conceded conceded that that the 4 5 substance of his statements substance of statementswas wasidentical identical to to what what the the Defendant Defendant claims, claims, he he denies denies engaging in 5
6 6 ageist statements statements regarding Mr. Mr. Luj Lujan. Furthermore, the AAG Furthermore, the AAG denies denies allegations allegations that that he he was was
7 7 directing such such comments comments at the the Defendant, Defendant, and insisted he was discussing case with discussing the case with his
8 investigator investigator during during the the course of ofconducting conducting business. business. 9 While giving While givingthe thePlaintiff Plaintiffan anopportunity opportunityto to file fileaawritten writtenreply, reply,this thisCourt Courtissued issued an an oral
10 ruling denying the theMotion Motion for Disqualification. Defendant's Defendant's Reply Replyin inFurther Further Support of Motion Support of Motion 11 11 for for Disqualification Disqualification of ofProsecutor, Prosecutor, Oct. Oct. 2, 2, 2023. 2023. The The Court, Court, however, however, allowed allowedcounsel counsel to to submit submit 12 12 a reply to the the People's People's Opposition Opposition to to complete complete the the record. On OnOct. Oct. 2, 2, 2023, 2023, Defendant then filed filed 13 13 a Reply in in Further Support Supportof ofMotion Motion for Disqualification Disqualification of of Prosecutor. Prosecutor. 14 14
15 15
16 DISCUSSION 16
17 17 In its Reply, In Defendant argues Reply, Defendant argues that thisCourt that this Courtfocused focusedtoo toonarrowly narrowlyon onwhether whetherthe theAAG AAG
18 18 violated Rule 4.2 of violated ofthe the Guam Guam Rules of Professional Professional Conduct. Conduct. Furthermore, Furthermore, Defendant alleges
19 19 that the AAG's that the AAG's conduct conductdemonstrated demonstrated vindictive vindictive personal personal bias bias against against Defendant, Defendant, which the 20 20 Court failed failed to to consider consider when when applying applyingthe theappropriate appropriate legal legalstandard, standard, and and which which Defendant Defendant 21 21 believes believes ififcured cured would wouldhave have caused caused the Court to reach a different different conclusion. 22
23 of the Guam Rules of Rule 4.2 of of Professional Conduct provides: 24
25 In In representing a client, aa lawyer lawyer shall shall not not communicate communicate about about the 26 subj et of subject ofthe the representation representation with with aa person the the lawyer knows to be represented by another lawyer in in the the matter. matter. unless the lawyer lawyer has has 27
Page 2 of 4 Page 11 the consent consent of of the the other otherlawyer lawyer or or is authorized authorizedto to do do so so by by law or a court order. 2 Rule 4.2, Guam Rules Rules of of Professional Conduct (2003). (2003). 3
4 4 The Defendant Defendant alleges alleges that that this Court, handing down Court, when handing down its ruling from from the the bench, bench, focused 5 on whether the too narrowly on the AAG violatedRule AAG violated Rule 4.2 4.2 of ofthe the Guam Rules of of Professional Conduct. 6 Defendant alleges Defendant alleges that that the the AAG engagedininbullying AAG engaged bullyingtactics tacticsthat that sewed servedno nosubstantial substantial purpose purpose 7 other than thanto to intimidate, intimidate,citing citing Rule Rule 8.4( 8.4(d) d) of of the the Guam Guam Rules of Professional Professional Conduct, Conduct, which 8 9 provides: provides: 9
10 10 Threats, bullying, Threats, bullying, harassment, harassment, andand other other conduct conduct serving serving no substantial purpose other substantial purpose other than thanto to intimidate...anyone intimidate anyone associated associated 11 11 with the judicial process including ... opposing counsel, litigants...violate litigants ... violate the the prohibition prohibition on conduct conduct prejudicial prejudicial to the the 12 12 administration administration of ofjustice. 13 13 Rule Rule 8.4(d), 8.4(d), Guam Guam Rules of Professional Professional Conduct (2003). 14 14
15 15 furtheralleges The Defendant further alleges that thatthe thesuggestion suggestionof ofvindictive vindictive personal bias is prejudicial prejudicial 16 16 to the administration administrationof Barrett-Anderson v. ofjustice. Barret_-Anderson v. Comacho, Camacho, 2018 Guam 201] 20 18- 18-19,r 19 (the (the Court 17 17 recognized recognized that "in criminal that "in criminal proceedings proceedings where there there is a suggestion of of vindictive vindictive personal personal bias bias 18 18 19 by the the prosecutor, prosecutor, disqualification disqualification should be considered should be considered by an an appearance appearance of impropriety impropriety 19 20 standard."). This ThisCourt CourtEnds findsno nomerit meritininDefendant's Defendant'sargument argument and and rejects it it outright. 20
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c- at" Q lI L' r:T) i aLl;;. t- W - SLJPERIQH CUURY SUPERIOR COURT GF r.u", •AW·, 0 .-r GL5P\Tv\ 1._::
1 1 ZUZHJAH \18 PH I: u h
2 CLERK ogcoum
3 |,,' ues- \
IN THE SUPERIOR COURT COURT OF OF GUAM GUAM 4
5 PEOPLE OF GUAM, GUAM, 6 Plaintiff, Criminal Case No. No. CM0145-21 7 vs. 8 DECISION DECISION AND AND ORDER (Disqualification NAKITA T. AGUON, NAKITAT.AGUON, 9 Of Of Prosecutor) Prosecutor) DOB: DOB:06/12/1990 06/12/1990 10 10 Defendant.
11 11
12 12 INTRODUCTION 13 13 This matter matter isis before before the the Honorable HonorableAlberto Alberto E. E. Tolentino Tolentino ("Judge ("Judge Tolentino"), Tolentino"), for the the 14 14 limited purpose purposeof of addressing addressingNakita NakitaC.C.Aguon's Aguon's("Defendant") ("Defendant") Motion Motion for Disqualification of 15 15
Prosecutor filed Sept. Sept. 5, 5, 2023. 2023. Defendant Defendant seeks seeks to disqualify Assistant Attorney General General Grant Grant 16 16
17 17 Olan ("AAG") Olen ("AAG") from prosecuting from prosecutingthe theunderlying underlyingcase. case.Attorney AttorneyDavid DavidJ.J.Lucan, Lujan,Esq. Esq. represents represents
18 18 the Defendant. Defendant. Upon Upon review reviewofofthe theevidence, evidence,oral oraland andwritten writtenarguments, arguments, and and legal legal authorities authorities
19 19 presented by by both attorneys, attorneys, the the court court hereby hereby issues issues this thisDecision Decision and and Order Order memorializing memorializing its
20 earlier denial denial of the motion. motion. 21 BACKGROUND 22 On May 25, 2021, 2021,the theOffice Office of the Attorney General filed filed aa criminal complaint alleging 23 that Defendantcommitted that Defendant committedthe theoffense offenseof of Driving Driving While Impaired Impaired (As (As aaMisdemeanor). Misdemeanor). 24 Complaint, Complaint, May 26, 2021. 2021. Trial Trialcommenced commenced on on November November16, 16, 2022, 2022, with with jury jury selection, selection, and and 25 has continuedwith has continued withseveral severalinterruptions interruptionsover overthe thelast lastnine ninemonths. months.Motion Motion for for Disqualification 26
27 of ofProsecutor, Prosecutor, September September5, 5, 2023 2023..
Page 11 of 4 1 1 On On September 6, 2023, September 6, 2023,aahearing hearingwas washeld heldononPlaintiffs PlaintiffsMotion Motion for for Disqualification of 2 Prosecutor. The People argued Prosecutor. The argued their position orally and waived their right to submit submit a brief in 3 response to the response to the Defendant's Defendant'swritten writtenmotion. motion. At At the the hearing, hearing, while the AAG AAG conceded conceded that that the 4 5 substance of his statements substance of statementswas wasidentical identical to to what what the the Defendant Defendant claims, claims, he he denies denies engaging in 5
6 6 ageist statements statements regarding Mr. Mr. Luj Lujan. Furthermore, the AAG Furthermore, the AAG denies denies allegations allegations that that he he was was
7 7 directing such such comments comments at the the Defendant, Defendant, and insisted he was discussing case with discussing the case with his
8 investigator investigator during during the the course of ofconducting conducting business. business. 9 While giving While givingthe thePlaintiff Plaintiffan anopportunity opportunityto to file fileaawritten writtenreply, reply,this thisCourt Courtissued issued an an oral
10 ruling denying the theMotion Motion for Disqualification. Defendant's Defendant's Reply Replyin inFurther Further Support of Motion Support of Motion 11 11 for for Disqualification Disqualification of ofProsecutor, Prosecutor, Oct. Oct. 2, 2, 2023. 2023. The The Court, Court, however, however, allowed allowedcounsel counsel to to submit submit 12 12 a reply to the the People's People's Opposition Opposition to to complete complete the the record. On OnOct. Oct. 2, 2, 2023, 2023, Defendant then filed filed 13 13 a Reply in in Further Support Supportof ofMotion Motion for Disqualification Disqualification of of Prosecutor. Prosecutor. 14 14
15 15
16 DISCUSSION 16
17 17 In its Reply, In Defendant argues Reply, Defendant argues that thisCourt that this Courtfocused focusedtoo toonarrowly narrowlyon onwhether whetherthe theAAG AAG
18 18 violated Rule 4.2 of violated ofthe the Guam Guam Rules of Professional Professional Conduct. Conduct. Furthermore, Furthermore, Defendant alleges
19 19 that the AAG's that the AAG's conduct conductdemonstrated demonstrated vindictive vindictive personal personal bias bias against against Defendant, Defendant, which the 20 20 Court failed failed to to consider consider when when applying applyingthe theappropriate appropriate legal legalstandard, standard, and and which which Defendant Defendant 21 21 believes believes ififcured cured would wouldhave have caused caused the Court to reach a different different conclusion. 22
23 of the Guam Rules of Rule 4.2 of of Professional Conduct provides: 24
25 In In representing a client, aa lawyer lawyer shall shall not not communicate communicate about about the 26 subj et of subject ofthe the representation representation with with aa person the the lawyer knows to be represented by another lawyer in in the the matter. matter. unless the lawyer lawyer has has 27
Page 2 of 4 Page 11 the consent consent of of the the other otherlawyer lawyer or or is authorized authorizedto to do do so so by by law or a court order. 2 Rule 4.2, Guam Rules Rules of of Professional Conduct (2003). (2003). 3
4 4 The Defendant Defendant alleges alleges that that this Court, handing down Court, when handing down its ruling from from the the bench, bench, focused 5 on whether the too narrowly on the AAG violatedRule AAG violated Rule 4.2 4.2 of ofthe the Guam Rules of of Professional Conduct. 6 Defendant alleges Defendant alleges that that the the AAG engagedininbullying AAG engaged bullyingtactics tacticsthat that sewed servedno nosubstantial substantial purpose purpose 7 other than thanto to intimidate, intimidate,citing citing Rule Rule 8.4( 8.4(d) d) of of the the Guam Guam Rules of Professional Professional Conduct, Conduct, which 8 9 provides: provides: 9
10 10 Threats, bullying, Threats, bullying, harassment, harassment, andand other other conduct conduct serving serving no substantial purpose other substantial purpose other than thanto to intimidate...anyone intimidate anyone associated associated 11 11 with the judicial process including ... opposing counsel, litigants...violate litigants ... violate the the prohibition prohibition on conduct conduct prejudicial prejudicial to the the 12 12 administration administration of ofjustice. 13 13 Rule Rule 8.4(d), 8.4(d), Guam Guam Rules of Professional Professional Conduct (2003). 14 14
15 15 furtheralleges The Defendant further alleges that thatthe thesuggestion suggestionof ofvindictive vindictive personal bias is prejudicial prejudicial 16 16 to the administration administrationof Barrett-Anderson v. ofjustice. Barret_-Anderson v. Comacho, Camacho, 2018 Guam 201] 20 18- 18-19,r 19 (the (the Court 17 17 recognized recognized that "in criminal that "in criminal proceedings proceedings where there there is a suggestion of of vindictive vindictive personal personal bias bias 18 18 19 by the the prosecutor, prosecutor, disqualification disqualification should be considered should be considered by an an appearance appearance of impropriety impropriety 19 20 standard."). This ThisCourt CourtEnds findsno nomerit meritininDefendant's Defendant'sargument argument and and rejects it it outright. 20
21 In In this case, the appropriate legal standard standard is whether an attorney attorney participated participated in an action
22 22 that violates or significantly risks that violates risks violating violating the the Guam Guam Rules of ofProfessional ProfessionalConduct Conduct in in such such a
23 way that it is prejudicial to the the administration administrationof ofjustice. justice. It It is is aa fact that the the AAG AAG was was speaking speaking
24 24 to the the People's People's investigator investigator in in such way that such aa way that he he could could be be overheard overheard by by the the Defendant, Defendant; 25 consequently, the AAG consequently, the AAG has has been been admonished admonished and and reminded to speak reminded to speak with more more discretion. discretion. 26 . . . . However, thls However, this Court Court reiterates reiterates that that the the observation observation or merely merely observing observing someone someone conduct conduct 27
Page Page 3 of 4 I
1 business is not the same as communicating with them. Hill v. v. Shell Oil Co., 209 F Supp. Supp. [Zd] [2d] 2 2002). In this instance, Defendant was merely observing the AAG and the 876 (N.D. Ill. 2002). the People's People's 3
investigator as as they conducted conducted the the People's People's business. As such, business. As such, aa reasonable reasonable person person would not 4 conclude that the AAG's behavior gives AAG's behavior gives the the appearance appearance of impropriety. 5
6 CONCLUSION 7 For the the above above reasons, Court DENIES Defendant's reasons, the Court Defendant's request to disqualify request to disqualify the the 8 prosecutor. 9
10 10
11 SO ORDERED, ORDERED,Narc Nunc Pro Pro Tune Tune to September 6, 2023, September 6, 2023, this_ this orJAN 11 88 2024 day ofJAN 202~ 2024. 12 12
13 13
14 14
l¢. J
16 16 < >
17 HONORABLE ALBERTO E. TOLENTINO 18 Judge, Superior Court of Guam 19 19
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