People v. Aguon

Opinion

r*° i:::-o ,s Lt- D. . rr-1• SUPERlOP COURT SUPERIOR EGURT `\

OF GUAM OF

ml, APR -'55 202~APR 3· 3 -9 PM :4:: 33 11 CLERI'\ 0OACOURT QLERH Unum 2

33 yI*_ IN THE THE SUPERIOR SUPERIOR COURT COURT OF OF GUAM GUAM 44

55 PEOPLE OF GUAM, ) ) CRIMINAL CASENO. CRIMINAL CASE no. CM0145-21 66 ) ) DECISION AND ORDER DENYING 77 MOTION FOR DISQUALIFICATION OF vs. ) PROSECUTOR 88 ) ) 99 NAKITA T. AGUON, ) 110 ) Defendant. ) 11 - - - - - - - - - - - - - - - )) /I

12 12 THIS MATTER11 came THIS came before beforethe theCourt Courtfor for aa Motion Motion Hearing Hearing on on Nakita Nakita T. Aguon's 13 13 14 ("Defendant") Motion for Disqualification ("Defendant") Motion of the Prosecutor Disqualification of Prosecutor and Supplemental Supplemental Motion for for 14 15 15 Disqualification Disqualification of ofProsecutor Prosecutor on on March March 11 and and March March 21, 2024. Assistant Attorney General 21, 2024. Grant General Grant

16 Olan ("AAG Olan") Olan ("AAG Olan")appeared appeared on behalfofthe of thePeople People of of Guam ("the ("the People"). Attorney Attorney David David Luj Lujan 17 ("Attorney ("Attorney Lujan") Lujan") appeared appeared on on behalfofthe behalf of theDefendant. Defendant.Atier Afterthe thehearing, hearing,the theCourt took the matter Court took 18 18 under advisement and and now now issues issuesthe thefollowing following Decision Decision and Order. 19 19 20 BACKGROUND

21 A. A. Procedural Procedural History 22 This case case began began on on May May 25, 25, 2021, 2021, and and itit was was assigned assigned to to the Hon. Hon. Judge Alberto E. Tolentino 23 ("Judge ("Judge Tolentino"). Tolentino"). Jury trial began on November 16, 2022, but it was paused from late 2022 24 25

26 '1 The Theundersigned undersigned judge judge extends the utmost extends the utmost respect respectto toJudge JudgeTolentino, Tolentino,his hiswife, wife,and andtheir their children. children. Nothing in this Nothing in this Order Order is is intended intended to to imply imply or or call callinto intoquestion question the the good good reputation of Judge Tolentino, Tolentino, Mrs. Mrs. 27 Tolentino, or Tolentino, or their theirchildren. children.TheTheappearance appearanceof conflictofofinterest ofconflict interestarises arisessimply simplybecause because ofofthe theclose close degree degree of familial relationship. rclationshin. 28 CM0145-21 CM0145-21 Decision Decision and Order Denying and Order DenyingMotion Motion for for Disqualification Disqualification of ofProsecutor Prosecutor Page1 Page of15 I

through summer summer 2023 2023 due due to to juror juror and and judge judge unavailability. Trial Trialresumed resumed and and continued continued through through 1 l

2 summer and the summer and fall fall of 2023. 2023. At At this this time, time, the the People Peoplehave have presented presented their case-in-chief case-in-chiefand and rested.

3 Defendant has not begun begun her hercase-in-chief. case-in-chiei 4 The People rested September27, rested on September 27,2023. 2023.Min. Min. Entry Entry at at 10:13:51 10:13:51AM AM (Sept. (Sept. 27, 2023). 5 Several months Several months later, later, on on January 18, 2024, January 18, 2024,Judge JudgeTolentino Tolentino announced announcedhis hisdisqualification disqualification from from the 6 case. case. Form One - Disqualification Disqualification (Jan. (Jan. 18, 18, 2024). 2024). Judge Judge Tolentino cited a family family relationship relationship 7

8 between between his his mother-in-law mother-in-law and and Attorney Attorney Lujan,2 Lujan,2 an adversarial relationship between Attorney Attorney Luj an Lujan 9 and Judge Judge Tolentino's Tolentino's brother-in-law, and apparent apparent"animus" "animus" from from Attorney Lujan Lujan towards towards Judge Judge 10 10 Tolentino Tolentino as as factors factors contributing to to an an "appearance "appearance of bias." See generally id. On the See generally the same same day, l11l Judge Tolentino Judge Tolentino issued issued aa Decision Decision and and Order Order (Jan. (Jan. 18, 18, 2024) 2024) denying denying Defendant's Defendant's Motion Motion for 12 12 13 13 Disqualification Disqualification of ofProsecutor Prosecutor (Sept. (Sept. 5, 5, 2023). 2023). Judge Judge Tolentino did not not decide decide two two other other pending pending

14 14 motions-a motions-aMotion Motion for forJudgment Judgment of Acquittal Acquittal (Oct. 2, 2023) (Oct. 2, and aa Motion 2023) and Motion for for Grant of Use Grant of Use 15 15 Immunity to Defense Immunity to Defense Witness WitnessPatrick PatrickIndalecio Indalecio(Dec. (Dec.13, 13,2023)-prior 2023)-prior to to his his disqualification. 16 16 I Because all other Judges Judgesof of the the Superior SuperiorCourt Courtof of Guam Guamhave havealso alsodisqualified disqualitled from this case, I 17 17 I I I

the undersigned was appointed as judge judge pro pro tempore. tempore. Notice Notice of Judge Assignment (Jan. 30, 2024). 18 18 I

19 19 Court briefly The Court metwith brieflymet withthe theparties parties on on February February 9, 9, 2024, 2024, to to discuss discuss the the status status of the the case. case. See

20 Min. Entry Entry (Feb. (Feb. 9,9,2024). 2024).At Athat thattime, time,Defendant's counsel 3noted Defendant'scounsels noted the the pending pending motions and and also 21 indicated indicated that that Defendant Defendant may seek seek to set aside Judge Judge Tolentino's Tolentino's Decision and Order and and re-raise 22 the issue issue ofprosecutorial of prosecutorial disqualification. disqualification. See See id. id. at at 10:14:46 10:14:46AM. AM. 23

26 2 2 From this relationship, Judge Tolentino andAttorneyLujan have at least eight degrees of familial relationship. From this relationship, Judge Tolentino and Lujan have at least eight degrees of amilial relationship. SeeAppendix A - Table of A-Table ofConsanguinity. Consanguinity. Title Title77GCA GCA §§6105(b)(5), 6105(b)(5), which whichrequires requires disqualification disqualificationin incertain certaincases cases 27 involving involvingfamily familymembers, members, applies only to relationships relationships within withinthree three or orfewer fewerdegrees. degrees. 28 3At 3 thishearing, At this was represented Defendantwas hearin Defendant re resented by b Attorney Attome Delia DeliaWul[li§_aEpcaring_in.place Wolff, carin in lace of ofAttomc Auorncy Lujan Lu"an.. | CMO l45-2 l CM0145-21 Decision Decision and Order Denying DenyingMotion Motion for for Disqualification Disqualification of ofProsecutor Prosecutor Page Page 22 of1515 InitialMotion B. Initial Motionfor forDisqualification Disqualificationof ofProsecutor Prosecutor (September (September 2023) 1

2 Since September 2023, 2023, Defendant Defendanthas hasmaintained maintainedthat thatAAG AAGOlan Olanmust mustbe bedisqualified disqualifiedfrom firm

3 this case for making certain for making certain statements statements to to his his investigator investigator on on August August 15, 2023. 4 On September 5, 15, 2023.4 4 2023, Defendant Defendant filed filed a Motion Motion for for Disqualification Disqualification of ofProsecutor. Prosecutor. The The next next day, day, Judge Judge Tolentino 5 denied the orally denied the Motion, Motion, finding that AAG finding that A.AG Olan's comments did not comments did not violate violate Guam Guam Rule Rule of 6 Professional Conduct ("GRPC") ("GRPC")4.2, 4.2,which whichgoverns governscommunications communicationsbetween betweenaa lawyer lawyerand and aa person 7

8 represented by represented counsel.See by counsel. SeeMin. Min.Entry Entryatat1:11:32 1:11:32PM PM (Jury (JuryTrial, Trial, Sept. Sept. 6, 6, 2023). 2023). However, it it 9 9 appears the the Defendant Defendantsought, sought,and andJudge JudgeTolentino Tolentinogranted, granted,leave leavetotofile fileaareply reply brief. brief. 10 10 On October October 2, 2023, 2023, Defendant filed a Reply Defendant filed Reply in in Further Further Support of Motion Support of Motion for for 11 11 Disqualification of ofProsecutor. Prosecutor. Defendant argued the Defendant argued the Court Court erred erredby by only only analyzing the issue issue of 12 12

13 disqualification under under GRPC GRPC 4.2. 4.2. See See id. id at at 2-3. 2-3. Defendant Defendant argued argued the Court also also should should have have

14 14 analyzed under under GRCP 8.4(d), 8.4(d), which which governs governs "conduct "conduct that that is is prejudicial prejudicial to to the the administration administration oof 15 15 justice." Id. at at 3-4. 3-4. Defendant Defendant additionally argued argued the Court should have have analyzed analyzed for for "vindictive "vindictive 16 16 personal bias," and and should have done so under under an an "appearance "appearanceof of bias" bias" standard. Id. at standard. Id. 3. at 3. 17 17

18 On On January 18,2024, January 18, 2024,shortly shortlybefore beforehe hedisqualified disqualified himself himself from firm this case, 5 Judge this case,5 Judge Tolentino Tolentino 18 19 19 issued a written written Decision Decision and andOrder Orderdenying denyingthe theMotion Motionfor for Disqualification Disqualification of ofthe the Prosecutor. Prosecutor. Judge Judge

20 Tolentino found found that that the the statements statements in question were not made to Defendant, made to Defendant; instead, they were instead, they were 21 made made by AAG AAGOlan Olanto tohis hisinvestigator, investigator, and and they they were were inadvertently inadvertently overheard overheard by by Defendant. Defendant. Dec. Dec. 22 & Order Order at at 33 (Jan. (Jan. 18, 18, 2024). Judge Judge Tolentino held that although althoughAAG AAG Olan Olan should should have have spoken to spoken to 23

25 4 4 The alleged statements include: "What is wrong with [Attorney Lujan]?"; "[Attorney Lujan] is getting Old," The alleged statements include: "What is wrong with [Attorney Lujan]?"; "(Attorney Lujan] is getting old;" 26 "I don'tcare "I don't care ififthis thiscase case takes five years, takes five years,IIwill will be herefor be here years,"and five years;" for five and"I"Idon't don't care carewhat whatkind landof oftricks tricks [Attorney [Attorney Lujan] has has up his sleeve, sleeve, I'mI'm not not going going to to let let this this go." go." Mot. Mot. Disqualification Disqualificationatat 22 (Sept. (Sept. 5, 5, 2023). 2023). 27 Perthe 55 Per thefiling filing stamps stamps on on each eachdocument, document,Judge JudgeTolentino Tolentinofiled hisDecision filedhis Decision andandOrder Orderat at lI:46 :46 PM PM on on January January 18, 2024, and then thenfiled tiled his his Form Form One One -- Disqgahtication Dis ualificationatat3:53 3:53PM PMon onthe thesame same day.da 28 I CM0145-21 CM0145-21 : Decision Decision and OrderOrder Denying DenyingMotion Motion for for Disqualification Disqualification of ofProsecutor Prosecutor I

Page Page3oflS 15 I investigator more discreetly, the investigator discreetly, his his statements statementsdid didnot notrise violation of risetoto aa violation of either either GRCP 4.2 or 1 1

2 2 GRCP8.4(d). GRCP 8.4(d). See See id. id. at at 3-4. 3-4. Judge Judge Tolentino Tolentino also found "no merit" in in Defendant's Defendant's legal legal asseMion assertion

3 3 that the claim ofpersonal claim of personal bias bias should should be be analyzed analyzed under under the the "appearance "appearance of ofbias" bias" standard. standard. Id. at 4. 4 C. Motion Motion to to Withdraw WithdrawDecision Decision and Order (February (February 2024) 5 After After the first hearing before this Court, Defendant Defendant filed a Motion Motion to to Withdraw Withdraw Decision Decision and 6 7 Order Denying Motion Order Denying Motionfor forDisqualification Disqualificationofof Prosecutor Prosecutor (Feb.15, (Feb. that the argues that Defendantargues 2024).Defendant 15,2024). 7 8 Decision and Order should Decision should be withdrawn withdrawn because, in in her her view, view, Judge Judge Tolentino Tolentino had already de facto face

9 9 disqualified himself disqualified thiscase fromthis himselffirm onJanuary caseon January 17, 17, 2024, 2024, one one day day before before he he issued issued the Decision Decision and and 10 10 this case. Order in this case. Defendant Defendant notes that on notes that on that that day, day, Judge Judge Tolentino Tolentino disqualified disqualified himself himself from 11 11 another casehandled by Attorney handled by Attorney Lujan, Lujan,People of ofGuam v. v. Nicholas Nicholas Wayne Moore,Criminal Wayne Moore, Criminal Case Case 12 12 13 13 No. No. CF0313-21 CF0313-21 ("Moore ("Moore case"). ln In disquadifying disqualifying from the Moore case, Judge Tolentino stated Judge Tolentino stated that

14 he consented"to he consented "tohis hisdisqualification disqualification from 'from all all cases caseshandled handledbybythe theLujan Lujanfirm." firm."Mot. Mot. Withdraw; Withdraw, Ex. 15 15 2 (Answer (Answer to to Statement Statement of of Objection, Objection, Criminal CriminalCase Case No. No. CF0313-21, CF0313-21, Jan. Jan. 17, 17, 2024). 2024). Defendant l)efendant 16 j reasonsthat that Judge JudgeTolentino' Tolentino'ssdisqualification disqualification in in the Moore case extends the Moore extendstotoall allother othercases casesinvolving involving 17 18 Attorney Attorney Lujan, Lujan, including includingthis thisone. one.Id. Id.atat4-5. 4-5.Thus, Thus,Defendant Defendantconcludes concludes that that Judge Judge Tolentino was 18 19 19 without jurisdiction without jurisdictiontotoissue issuethe theDecision Decisionand and Order Order in inthis thiscase case since since he was already already disqualified

20 when he he issued issued it. it. See See id. id. On On February February 16, 16, 2024, the Court heard the Motion to Withdraw. The 21 People indicated indicated they they had had no no objection objection to to the the Motion. Motion. Min. Min. Entry Entry at at 10:58:17 10:58:17 AM (Feb. 16, 16, 2024). 22 Since Since the motion was unopposed, unopposed, the theCourt Courtgranted grantedthe theMotion. Motion.Id. Id.at at11 11:20:10 AM. :20:10 AM. 23 D. D. Further FurtherProceedings Proceedings on Motion to Withdraw Withdraw the the Prosecutor Prosecutor 24 25 On March March 1, I, 2024, 2024, the Court Court heard heard new arguments arguments on the Motion Motion to Withdraw Withdraw the

26 26 Prosecutor. There, in Prosecutor. There, in addition addition to to the issue issue of AAG Olan's Olan's alleged alleged statements, statements, Defendant Defendant asserted asserted 27 there had had been been an anundisclosed undisclosedfamilial familial relationship relationship between betweenJudge JudgeTolentino Tolentino and andDouglas DouglasMoylan, Moylan, 28 CM0145-21 Decision Decision and and Order Denying DenyingMotion Motion for Disqualification Disqualification of ofProsecutor Prosecutor Page of15 Page4 oflS • !

undisputed thatJudge undisputed that JudgeTolentino Tolentino has hasaasignificant significant and and continuing continuingrelationship relationshipwith with his his stepchildren. stepchildren. 11 2 2 It is also reasonable It is to infer reasonable to infer that thatJudge JudgeTolentino's Tolentino'swife wife and andAttorney Attorney General GeneralMoylan Moylan likely likely have

3 3 continuing interactions in order to co-parent Parent their their children. children. Under Under these these circumstances, circumstances, a reasonable 4 _ . . . . . . person person could question whetherJudge question whether JudgeTolentino Tolentmocould couldbe be impartial impartial in in a case proceeding at the case proceeding the 5 6 direction of Attorney direction of Attorney General General Moylan. Again, air, the S theCourt Courtdoes doesnot notsuggest suggest that that Judge Judge Tolentino 6 7 actually was not impartial-only impartial-only that thataareasonable reasonableperson person might might find findthe the situation situation troubling. 7 8 At At minimum, minimum, itit would would have have been been pnldent prudent for for Judge Judge Tolentino to to disclose disclose these these relationships

9 9 to the parties. parties. Judge JudgeTolentino Tolentino may have have believed believed that the therelationship relationshipbetween betweenhimself himself and andAttorney Attorney 10 10 General Moylan-which isisnot General Moylan-which notbased basedon onconsanguinity, consanguinity, or or on on an an existing existing marriag e w as too marriage---was 11 11 attenuated toto merit attenuated merit his his disqualification. disqualification.However, However, Guam Guamjudges judgesshould should"err "erron on the the side side of of the 12 12 13 13 caution" with with respect to to disqualification.Dizon, 1998 1998 Guam Guam 33 119, see also ABA ,i 9; see ABA1990 1990 Model Code

14 14 of .Judicial ConductCanon Judicial Conduct Canon3E(l), 3E(1), Commentary Commentary("A ("A judge judge should should disclose disclose on the record on the record information information

15 15 that the judge judge believes the parties or their that the parties or their lawyers might consider relevant to consider relevant to the the question question or·. 16 j disqualification, evenif disqualification, even if the judge believes the judge there is believes there is no real real basis basis for for disqualification."). disqualification."). Full Full 17 18 disclosure would have been appropriate here because appropriate here becauseititwould would have have allowed the parties to to register 18 19 19 an objection, if ifany. any. Moreover, Moreover,transparency transparency could could have mitigated mitigated an appearance appearanceofimpropriety. of impropriety. See See

20 7 GCA 7 GCA §§6l05(a) 6105(a)("if, following ("if, complete following disclosure complete totoallallparties disclosure theproceeding partiesininthe thereasons ofthe proceedingof reasons 21 for for disqualification, disqualification, all all parties parties agree agree to having the Judge continue to sit in the proceedings, proceedings, he or she 22 23 need need not disqualify himself or or herself'); herself"), Liyeberg Liljeberg v. v. Health Health Services Acquisition Corp., Services Acquisition Corp., 486 U.S. 486 U.S. 23 24 847, 847, 866 (1988) (full (full disclosure disclosure "would "would have have completely completely removed removed any any basis basis for for questioning questioning the the 24 25 judge's impartiality judge's impartiality and would have made it possible for aa different different judge judge to to decide decide whether whether the the 26 26 interests-and appearance-of appearance-ofjustice justice would would have have been been served served by aa retrial."). retrial."). Conversely, Conversely, the the 27 2; nondisclosure of these facts strengthens strengthensthe theappearance appearanceofofimpropriety. impropriety.Cf Cf Burlington Northern Northern R. R. 28 CM0145-21 CM0145-21 Decision Decision and Order Denying and Order Denying Motion Motion for for Disqualification Disqualification of of Prosecutor Prosecutor Page 88 oflS of 15 Co. v. TUCO Co. v. Inc., 960 S.W.2d 629, TUCO Inc., 1997) (in 629, 636 (Tex. 1997) arbitrator context, (in arbitrator partiality can be context, partiality 1 1

2 2 "established from "established nondisclosure itself, regardless the nondisclosure from the whether the nondisclosed regardless of whether information nondisclosed information

3 3 assuming-as the Court Evenassuming-as original)).Even (emphasisininoriginal)). bias." (emphasis or bias." partialityor establishespartiality necessarily establishes necessarily 4 emphatically does-that Tolentino'smotivations JudgeTolentino's does-that Judge fornot motivationsfor disclosing were notdisclosing wholly pure were wholly of heart pure of 5 and incorruptible, and reasonable person incorruptible, a reasonable might think person might otherwise. This think otherwise. merits Judge This merits Tolentino's Judge Tolentino's 6 7 disqualification under7 7GCA disqualification under GCA§§6l05(a). 6105(a). 7

8 2. The Relationship Between The Relationship JudgeTolentino Between Judge andAttorney Tolentino and General Moylan AttorneyGeneral Does Not Moylan Does Compel Disqualification of AAG Disqualification of Olanor AAGOlen thewhole orthe Office of whole Office Attorney General of the Attorney General 9 confirmed that Having confirmed Judge Tolehtino that Judge should have Tolentino should disqualified, the have been disqualified, now the Court now 10 10

11 11 Defendant's primary argument. confronts Defendant's Defendant argues argument. Defendant thatdisqualification arguesthat ofthe disqualificationof wholeOffice thewhole Office

12 12 becauseAAG appropriate because is appropriate General is Attorney General the Attorney ofthe of AAG Olen disclose the to disclose failed to Olan failed relationship between the relationship between 13 13 Judge Tolentino Judge andAttorney Tolentino and General Moylan. Attorney General Supp.Mot. Moylan. Supp. Disqualification at 2, 6. The Court is Mot. for Disqualification 14 14 not convincedthat not convinced this is that this an appropriate remedy. is an 15 15

16 16 First, there First, evidence before the Court there is no evidence that AAG Court that had, or Olanhad, AAG Olen had reason orhad to have, reason to any have, any

17 17 and Attorney Tolentino and Judge Tolentino relationship between Judge familial relationship the familial ofthe knowledge of General Moylan. Attorney General Moylan.

18 whether he would have unclear whether relationship, ititisisunclear therelationship, abouthe knowabout didknow Olandid AAGOlan even ififAAG 18 Moreover, even Moreover, 19 3 legal duty to disclose any legal those facts. It is clear disclose those had a duty to disclose his own clear that Judge Tolentinohad 20 21 disqualification. See disqualification. GCA §§6106 See 7 GCA 6106 (when ( judge knows a judge knows of of disqualifying disqualifying facts, facts, "it "it shall shall be his or be his or 21 22 22 her declare the duty to declare her duty same in the same open court in open and cause court and memorandum thereof to cause aa memorandum entered in the to be entered

23 23 2004) ("if (3d Cir. 2004) 289 (ad F.3d 289 368 F.3d Intern. Ltd., 368 minutes."); see also In re Kensington Intern.Ltd., minutes."), there is to be a ("if there 24 I n » burden of burden disclosure, that of disclosure, burden is that burden to be is to placed on beplaced thejudge onthe disclosepossible judgetotodisclose grounds possible grounds 25 for disqualification."). ButDefendant disqualification.").But hasnot Defendanthas provided-nor has notprovided-nor the Court has the independentlyfound- Courtindependently found- 26 26 27 or GRPC statute or any Guam statute provision, nor GRPC provision, law from nor any case law jurisdictions, providing other jurisdictions, firm other that aa providing that 27 28 CM0145 CM0145-21 Decision Decision and and Order Denying Motion Motion for Disqualification Disqualification of ofProsecutor Prosecutor Page9 Page of15 ofl5 1 party has an equivalent has an equivalent legal legal or ethical duty to ethical duty to disclose a judge's judge disqualification. The The Court Court is is not not 1 2 inclined inclined to to create create such a rule rule here. here. Cf cf. L & H H Air Airco, Inc. Inc. v. v. Rapistan Corp., 446 N.W.2d N.W.2d 372, 378

3 (Minn. (Minn.1989) 1989)("courts ("courtshave havebeen been extremely extremely reluctant reluctant to to impose impose a duty upon attorneys attorneys to to their their client's client's 4 adversary."). 5 Second, the standard Second, the standard for for attorney disqualification is attorney disqualification is "whether an an attorney's attorney's continued continued 6 representation of a party representation of party or participation in an participation in an action action violates violates or or significantly significantly risks risks violating the the 7

8 Guam Rules of of Professional Conduct." Barrett-Anderson v. Professional Conduct." v. Camacho, Camacho, 2018 2018 Guam Guam 20 20 1[ 20. Thus, ,i 20. Thus,

9 neither AAG Olan Olan specifically, specifically, nor the Office of neither AAG the Office ofthe the Attorney Attorney General General as as aa whole, whole, should should be 10 10 disqualified disqualified based based on on the familial familial relationship relationship absent absent evidence that this this relationship relationshipwill will lead to an an ll 11 actual or likely actual or likely GRPC violation. Again, however, Defendant has not Defendant has not cited cited any any GRPC GRPC provisions provisions 12 12 13 13 which which might might apply applyto to this this issue, issue, nor nor is is any any apparent apparent to to the Court. 9 the Court.9

14 14 Third, because he has because he has already already been beendisqualified, disqualified, Judge JudgeTolentino Tolentinoisis no no longer longer part part of this this 15 15 case. To To the the extent extent that Defendant believes that Judge Tolentino that Judge Tolentino may have been biased biased in his prior I16 6 decisions, decisions, the the Court has shown shown its itswillingness willingness to reconsider those decisions decisions where where appropriate. appropriate. Thus, 17 17 any any appearance of impropriety appearance of has been impropriety has been purged. And while purged. And while Defendant Defendant may may argue argue that that 18 18 19 19 disqualification of ofthe the Office Officeofofthe theAttorney AttorneyGeneral Generalisisnonetheless nonethelesswarranted warranted as as aapunishment, punishment,

20 attorney disqualification disqualification is is generally generally not not appropriate appropriate on on that that basis. See, e.g., In See, e.g., In re re Estate Estate of of Myers, Myers, 21 130 130 P.3d 1023, 1023, 1026 1026 (Colo. 2006) 2006) (en (en bane) bane) (trial (trial court's court's disqualification disqualification power is to to protect protect 22 Q integrity of ofproceedings, proceedings, "not "not to discipline or punish" attorneys), attorneys); City City of ofSan San Diego Diego v. v. Superior Superior 23 I I ! 24 99 Defendant's Defendant's Supplemental SupplementalMotion Motion argues arguesthat thatclaims claimsof"vindictive of "vindictive personal personal bias" bias" are are not not analyzed analyzed under under the the 25 Barrett-Anderson Barrett-Anderson standard, standard, butbut rather rather under under an an "appearance "appearance of of bias" bias" standard.Defendant standard. Defendant has has advanced advanced this this argument argument throughout her throughout her efforts effortsto to disqualify disqualify AAGAAG Olan. SeeSupp. Olan. See Disqualificationatat33(Mar Mot.Disqualification Supp.Mot. (Mar 8,8, 2024); 2024); Reply Reply Mot. Mot. 26 Disqualification Disqualificationat at 33 (Oct. (Oct. 2, 2, 2023); 2023); Mot. Mot. Disqualification Disqualificationatat2-3 2-3(Sept. 5, 2023). (Sept. 5, 2023). As As explained explained inin the the next next section, section, the the Court Court disagrees with that disagrees with that conclusion. conclusion. But Butevenififititwere were the, true,this thisportion portionofofDefendant's Defendant'sargument regarding the argument regarding thefamilial familial I 27 I relationship does relationship not appear does not appear toto implicate implicate "vindictive "vindictivepersonal personalbias" bias"ininany anyway, way,sosothe theappearance appearance ofofbias bias standard standard does does not apply a I herehere regardless. re ardless. I 28 CM0145-21 -21 Decision and Order Order Denying DenyingMotion Motion for for Disqualification Disqualification of ofProsecutor Prosecutor Page10of15

I I Court, 30 Cal. App. 5th 470(Ct. 5th 457,470 (Ct. App. App. 2018) 2018) ("We ("We do do not not disqualify aa lawyer lawyer from from representing representing 1

2 2 a client to punish the lawyer's mistakes mistakes or or even evenbad badbehavior. behavior.The Thediscipline disciplineoflawyers of lawyers in in California California

33 is a function reserved to the State Bar."), see also People v. Tuncap, 1998 State Bar."); 1998 Guam Guam 13 13 1123 ,i (courts

4 should generally "apply "applysanctions sanctions which which affect affectthe theevidence evidenceat at trial trial and and the merits of of the case as little little 5 as possible."). 6 The Court The Court therefore therefore concludes that the undisclosed undisclosed relationship relationship between between Judge JudgeTolentino Tolentino and 7

8 Attorney General Attorney General Moylan, Moylan, while whilemeriting meriting the the disqualification disqualification of ofJudge Tolentino, does Judge Tolentino, does not not require

9 9 the disqualification of of AAG AAGOlan Olanand/or and/or the entire entire Office Office of ofthe the Attorney General. 10 10 The People 3. The People of Guam Guam are are Not Not Disqualified Disqualified from from Prosecuting Prosecuting This This Case 11 11 Defendant also asks Defendant also asks the the Court Court to to reopen reopen the the question questionof of whether whether AAG AAG Olen Olan must be 12 12 13 13 disqualified forhis disqualifiedfor hisalleged allegedcomments commentson onAugust August15, 15,2023. 2023. Defendant Defendant argues argues diesel commentsviolate these comments violate

14 14 GRPC GRPC 4.2 4.2 and and 8.4(d), 8.4(d),and andalso alsodemonstrate demonstrate "vindictive "vindictivepersonal personal bias" bias"against againstDefendant Defendantand/or and/or 15 15 Attorney Lujan. Lujan. 16 16 The Court finds that thatAAG AAG Olen's Olan's commends commends do not amount amountto to aaviolation violation of of either either GRPC GRPC 17 17 18 provision. First, First, the the Court Court agrees agrees with with and and adopts adopts Judge Tolentino's analysis Judge Tolentino's analysis under under Rule 4.2. See 18 19 19 Dec. & Orderat & Order at 3-4 3-4 (Jan. (Jan. 18, 18, 2024). That That rule rule provides: "a "alawyer lawyershall shallnot notcommunicate communicate about about the

20 subject of of the the representation representation with a person the the lawyer lawyer knows to be represented represented by by another another lawyer lawyer in 21 matter, unless the matter, unlessthe thelawyer lawyerhas hasthe theconsent consentof theother ofthe otherlawyer lawyeror orisisauthorized authorizedtotodo do so so by by law law or 22 a court order." GRPC court order." GRPC 4.2. 4.2. Here, Here, Judge Judge Tolentino found that thatAAG AAG Olan's Olan's comments comments were made to 23 24 the People's investigator, the People's investigator, not not to to Defendant Defendant herself, and and the Court hasno Court has basisto no basis todeviate deviate from firm that that 24 25 finding. finding. The TheCoul't Comtwas wasnot notpresent present for for this this incident, incident, nor nor was was itit captured captured in in the trial transcripts. Under

26 26 the circumstances, circumstances,the theCourt Courtfinds findsititappropriate appropriatetotodefer defertotoJudge JudgeTolentino's Tolentino'sfinding findingof of fact. fact. Since 27

28 CM0145-21 CM0145-21 Decision Decision and Order Denying Motion Motion for Disqualification Disqualification of ofProsecutor Prosecutor Page11 oflS15

I I Judge Judge Tolentino Tolentino clearly clearly found found that that AAG AAG Olan Olandid didnot notcommunicate communicate with with Defendant, Defendant, the the Court Court 11

2 2 concludes there there was was no no violation violation of of GRPC GRPC 4.2.

3 Second, the Court Courtfinds findsno noviolation violation of of Rule 8.4(d). That That rule rnle provides that itit is is "professional "professional 4 misconduct for a lawyer lawyer to to ... engage in .. engage in conduct conduct that thatisisprejudicial prejudicialtotothe theadministration administrationof ofjustice." justice." 5 8.4(d). Courts GRPC 8.4(d). Courts have have held that state and and federal federal equivalents equivalentsto toGRPC GRPC 8.4(d) 8.4(d) apply apply to tactics by 6 7 7 to harass and intimidate counsel intended to intimidate others. See Schneiter v. United Schneider v. United States, 159 Fed. Cl. 356,

8 (2022) (collecting 376 (2022) cases); see also (collecting cases), also Matter Matter of Oberlander, 2018 QfOberlander, 9782713 * 21 2018 WL 9782713 21 (E.D.N.Y.

9 9 Aug. 13, 2018) (respondent's "unrelenting Aug. 13, "unrelenting pattern of flagrant and and discourteous discourteous behavior behavior ... ... provides provides 10 sufficient sufficient grounds grounds under the circumstances circumstancesto tofind find aaviolation violation of of Rule Rule 8.4(d)."). 8.4(d)."). However, However, the Court 11 again defers to to Judge Tolentino's finding Judge Tolentino's finding that that AAG AAG Olan's Olan's comments comments were directed to his own own 12

13 investigator, investigator, not not to to Defendant. Defendant. Such Such comments, while indiscreet, do not rise to the level of comments, while of a GRPC

14 8.4(d) violation. cf. Cf Alexander Alexander Interactive Interactive Inc. v. Adorama, Inc., 2014 WL 4058705 * 2 (S.D.N.Y. Adorama, Inc., 15 15 Aug. 14, 14, 2014) ("manifest[ing] ("manifest[ing] aa dislike dislike of ofopposing opposingcounsel" counsel" does does not prejudice the administration 16 ofjustice, of justice, whereas whereas "hurl[ing] "hurl[ing]aapersonal personal invective" invective"laced laced with withprofanity profanityatatcounsel counsel does does so). 17 In any case, as noted above, the Guam standard standardfor for attorney attorneydisqualification disqualification is "whether "whether an an 18 19 19 attorney's continued representation of a party representation of party or or participation in an action violates sign icantly violates or significantly

20 violating the risks violating the Guam Guam Rules of of Professional Professional Conduct." Barrett-Anderson, 2018 Guam ,r 20 Guam 20 1] 21 (emphasis added). Even (emphasis added). Even if if AAG AAG Olan's Olan'sactions actions had had risen the level risen to the level of a violation violation previously, previously, the 22 question is whether whether his continued representationof continued representation of the the People People of of Guam Guam would violate or or risk risk aa 23 24 violation of violation ofthe the GRPC, GRPC,not notwhether whether his priorrepresentation did did so. so.Attorney Attorney disqualification disqualification is is meant 24 25 25 to be be aa prophylactic prophylactic remedy. remedy. See, See, e.g., e.g., City of of San San Diego, Diego, 30 Cal. Cal. App. 5th 5th at at 470-71, 470-71; State State 26 26 Compensation Insurance Fundv. Fund v. Drobot, Drobot, 2014 WL 12579808 12579808 * 7 (C.D. Cal. Jul. 11, 2014) 2014) (similar). (similar). 27 Here, Judge Tolentino's Tolentino's admonishment admonishment of of AAG AAG Olen's Olan's indiscretion indiscretionappears appears sufficient sufficient to to deter deter any any 28 -. CM0145-21 CM0145-21 Decision Decision and Order Denying and Order DenyingMotion Motion for for Disqualification Disqualification of ofProsecutor Prosecutor I Page12 of15 further inappropriate further inappropriate conduct, conduct, and and indeed indeed Defendant Defendant has has not not alleged any any other other inappropriate inappropriate 1 1

2 2 statements since statements sincethat thattime. time.Accordingly, Accordingly,the theCourt Courtwill willnot notdisqualify disqualifyAAG AAG Olan Olen for for an alleged prior

3 violation violationof ofthese these rules. rules. 4 Defendant additionally argues that that AAG AAG Olan's Gian'sstatements statements merit merit disqualification disqualification because because 5 6 they present an an appearance appearanceof of"vindictive "vindictive personal personal bias." bias." At At the outset, outset, the the Court Courtfinds findsthat thatAAG AAG 6 7 Olan's statements Olen's statements simply simplydo do not notrise risetotothe thelevel levelof of proving proving that thatAAG AAG Olan Olen holds a "vindictive 7 8 personal bias" towards either Defendant or Attorney Lujan. However, Attorney Lujan. However,Defendant Defendantargues argues that that under under

9 9 People v. People v. Tennessee, Tennessen, 2009 Guam 3, the statements statements need need only only demonstrate demonstrate an an"appearance "appearanceof of bias" bias" 10 10 warrant disqualification. to warrant Tennessen, the Guam Supreme disqualification. In Tennessee, Court held that Supreme Comi the "appearance that the "appearance oof 11 11 standard governed bias" standard governed attorney attorney disqualification, disqualification, and and that that a reasonable person might might find that the 12 13 13 then-AttorneyGeneral then-Attorney General held held aa "vindictive "vindictivebias" bias"towards towardsaaparticular particular defendant. See id. ,r1]31. See id. However, 31. However,

14 14 Tennessee largely overruled Tennessen was largely ovemlled by Barrett-Anderson, which which clarified clarified that that the the "appearance of of bias" bias"

15 15 standard does not not govern govern attorney attorney disqualification disqualificationtoday. today. See See 2018 2018 Guam Guam 20 ,r,r 20 'lm 17-20. Defendant 16 l j argues that that Barrett-Anderson Barrett-Anderson carved carved out a special special exception exceptionto tothis thisnew newrule rulefor forclaims claimsof of"vindictive "vindictive 17 18 18 personal bias." See See Supp. Supp.Mot. Mot. Disqualification Disqualification at at 33 (citing (citingBarrett-Anderson, 2018 Guam Guam 20 ,r 19). 20 'H

19 19 However, However, the the Court Court does not read Barrett-Anderson Barrett-Anderson to do so.

20 In Barrett-Anderson, Barret_-Anderson, the Supreme Court Court of of Guam announced a new new attorney disqualification attorney disqualification 21 21 standard based standard based on on the the 2003 2003adoption adoptionof of the the Guam Guam Rules Rules of of Professional Conduct. See 2018 Guam 22 23 201i,r 18. 18. The The Supreme Come reasoned Supreme Cowi thatsince reasonedthat sincethe theGRPC GRPCwas wasbased basedononthe theABA ABAModel Model Rules Rules oof 23 24 Professional Conduct ("MRPC"), Professional Conduct ("MRPC"), attorney attorney disqualification disqualification under under the GRPC should mirror attorney 24 25 disqualification w1der under the the MRPC, MRPC, i.e., i.e., the the "violates "violates or or significantly significantly risks risks violating violating the the [GRPC]" [GRPC]"

26 26 standard. See id. standard. See ,r17.However, id. 1117. However, the the Supreme Supreme Court Court also also recognized recognized that that c1iminal criminal cases cases opened 27 2; before the adoption of the GRPC in in 2003 2003 should should not not necessarily governed by necessarily be governed by the GRPC. GRPC. Thus, 28 CM0145 CM0145-21 Decision Decision and and Order Denying DenyingMotion Motion for Disqualification Disqualification of ofProsecutor Prosecutor Page13of Page 15 oflS t "[w]hen "[ w]hen indictments indictments pre-date pre-date the the cun'ent cun-ent rules, rules, additional additional standards for disqualification standards for disqualification of 1

2 prosecutors may exist or be employed employed when when a defendant's defendant'sconstitutional constitutionalrights rights1isk risk being being violated." violated."

3 Id.~ Id. 1119. The Tennessen 19. The Tennessee case fell fell under underthis thiscategory-the Tennessen defendant was indicted in 2002, category-the Tennessee 4 prior prior to the adoption of the GRPC. Id. ~ 18. Id. 'll 5 Tennessen case predated the Barrett-Anderson then explained that since the Tennessean the adoption of the 6 GRPC, GRPC, ititwas was not not inconsistent inconsistent for for the the Supreme Court Court to to have have applied applied the thepre-GRPC pre-GRPC "appearance of of 7

8 bias" standard standard in that that case. case. See See id. ~ 19. id. 1] 19. Howev er, Barret_-Anderson However, Barrett-Anderson makes makes clear clear that that the the

9 '"appearance of "'appearance ofimpropriety' impropriety'standard standard ceased ceased to to be be the the standard standard for attorney attorney disqualification after 10 the 2003 of the 2003 adoption of the Guam Rules of Professional Conduct for of Professional criminal actions for criminal actions filed after the jiled after the 11 11 rules' effective effective dare date and for all all subsequent attorney conduct subsequent attorney conduct in in pending pending civil civil cases." ~ 18 Id. '" cases." Id. 18 12

13 (emphasis added). And to (emphasis added). to the the extent extent that that Tennessee Tennessen is inconsistent inconsistent with with Barrett-Anderson, the the

14 Supreme Court expressly overruled ovemxled Tennessee. ~ Id.1119. Tennessen. Id. 15 The Court Court does docs not not read read Barrett-Anderson Barrett-Anderson to leave open a specific leave open specific exception exception for the the 16 "appearance of bias" bias" standard to continue standard to continue governing governing claims claims of of "vindictive "vindictive personal personal bias." Instead, Instead, 17 Barrett-Anderson Barrett-Anderson explains that that the Tennessee Tennessen case properly properly evaluated evaluatedthe theclaim claimthat thatway-but way-but it 18

19 thatcase was proper because that casewas wasindicted indictedbefore before the theadoption adoptionof ofthe theGRPC. GRPC. Had the the Tennessee Tennessen case

20 been filed filed after after 2003, 2003, then then the "appearance of bias" bias" standard standard would would not not have applied. applied. Instead, Instead, the I

21 GRPC-based GRPC-based attorney attorney disqualification disqualification rule that is, rule-that is, the Barrett-Anderson Barrett-Anderson rule-would have have 22 governed. This would have foreclosed governed. foreclosed application of the application of "appearance of the "appearance of bias" bias" test even to the the 23 analysis of "vindictive "vindictive personal bias." personal bias." 24

25 Accordingly, the the Court Court rejects rejects Defendant's argument that aa claim of "vindictive argument that "vindictive personal personal

26 26 bias" should should be evaluated for the appearance of evaluated for ofbias. bias. Instead, Instead, itit must must be be evaluated evaluated under under the same 27 standard as all standard as all other other attorney attorney disqualification disqualification challenges: challenges: whether whetherthe thealleged alleged "vindictive "vindictive personal personal 28 CM0145-21 CM0145-21 Decision Decision andOrderDenying Denying Motion Motion for for Disqualification Disqualificationof ofProsecutor Prosecutor Page14 of I15 S t E

g I I bias" actually, bias" actually, or or significantly GRPC. And since the Court has found provision of the GRPC. significantly risks, violates a provision found 11

2 110 evidence of no evidence of actual actual vindictive vindictive bias bias on on the part of the part AAG Olan, nor any violation or like violation of AAG

3 risk that his future to disqualify basis to GRPC, this claim is not aa basis would violate the GRPC, appearances, if any, would future appearances, disqualify 4 AAG Olan either. AAG Olan 5 CONCLUSION 6 The Court has determined that there an objective was an there was of impropriety due to the objective appearance of 7

8 relationship between relationship Judge Tolentino between Judge and Attorney Tolentino and General Moylan through Judge Tolentino's Attorney General

9 members. 10 family members. 10That Thatrelationship relationshipshould Moylan was General Moylan AttorneyGeneral onceAttorney disclosedonce beendisclosed havebeen shouldhave 110 swam sworninto into office. office. However, However,since sinceJudge nolonger Tolentinoisisno JudgeTolentino part of longerpart this case, ofthis Court finds that case, the Court 11 11 this does not serve as a basis to disqualify the whole AAG Olan or the disqualify AAG of the Attorney General. whole Office of 12

13 reconsidered arguments Additionally, the Court rejects the reconsidered that AAG arguments that disqualified Olan should be disqualified AAG Olen

114 uNder GRCP 4.22 and 8.4(d), under GRCP 4(d), or or on the basiss of of an appearance appearance of of "Vindictive ''vindictive personal personal bias." 15 Defendant's Motion to Defendant's Motion to Disqualify Disqualify is there?t:NJED. is therefore DE NI E D. 16

17 17 so. SO ORDERED this h i s ~ day of of April 2024. P

~ 18 18

19 SERVICE VIA EMAIL 20 HONORABLE JOSEPH N. n. CAMACHO II acknowledge that an acknowledge that electronic an electronic copy copy of of the original was the 0rigina! e-mailed to: was e-mailed to: 21 Judge Pro Tempore, Superior Court of Guam Judge

22 A& L"'-M" D •` L a H G , rr /)

Date: 41; . urqspm Date:'4/~kfim:t./~'(3 II'\ Ame: 23 Hr-bnfq An-I., ; I Cnc.-z-. Qu 24 Deputy Clerk, Supp Court of Guam

26 '° 10 It is worth repeating, the undersigned judge extends the utmost respect to It is worth repeating, the undersigned judge extends the utmost respect to Judge Tolentino, his Judge Tolentino, his wife, wife, children. Nothing and their children. Nothing in in this this Order Orderisisintended intended to toimply orcall implyor callinto intoquestion questionthe thegood good reputation reputation of ofJudge Judge 27 Tolentino, Mrs.Mrs. Tolentino, Tolentino, or ortheir theirchildren. children.The Theappearance appearanceof ofconflict conflictof ofinterest interestarises arisessimply simplybecause because of the close degree close Ile· i:cc ofoffamilial familial rclationsbi relationship.• . . 28 CM0145-21 CM0145-21 Decision Decision andand OrderDenyingMotion Motionfor forDisqualification Disqualificationof ofProsecutor Prosecutor Page15of ofl515 I

I

APPENDIX RPPENDIXA

I I I

I I

l

l 1 Appendix A - Table Consanguinity ofConsanguinity Table of 4 2

/ Great-Great 3 Grandparents

4 Table of Consanguinity Consanguinit ,/ / 55 I degrees of Showing degrees relationship of relationship Great-Grand 5 ..,. /~ Great Gnndparents Grandparents Undes Uncles Aunts Aun\:s 6 2/ 2 . I Great ' 6 I 7 ,Y Grandparents First Cousins First Cousins Uncles Removed Twice Removed Aunts 8 1/" I 3] I s I 7 1 I 9 Parents Uncles Under First Cousins First Cousins Second Cousins Aunts ANna Removed Once Ranoved Removed Once Removed Once 10 10 |

I l r 11 11 2 I . 4 I 6 ' I a8 I g Person Person Brochers Brothers First First Second Third 12 12 Sisters Cousins Cousins Cousins

§ 13 l I 3 I s 5 I 1 7 I 9 I 3 Children Chi\dlen Nephews Nephews First first Cousins Second Cousins Cousins Third Cousins iI 14 Nieces Nieces Once Once Removed Removed Once Removed Once Removed Removed OnceRemorved Once l I\ 15 15 2z 1 . 4 I 6 ' First I 8 a I 10 1 I Grand 16 16 Grand First Cousins Cousin Second Cousins Cousins Third Cousins Children Nephews Nephews Removed Twice Removed Twee Twice Removed Removed Twice Renewed i 17 17 Niece: Nieces 3J l s I 7 I 9 I II I 18 18 Great-Grand Great-Grand Second Cousins Cousins Third Cousins Great-GnuKI Great-Grand First Cousins First Cousins Children Nephews Nephews Thrice Removed Thrice Removed ThriceRerno¥ed Thrice Raf owed Removed ThriceRanovved Thrloe 19 19 Niece: Nieces

21 21 Source:

22 http://upload.wikimedia.org/wikipedia/cornmons/2/28/Table_of_Consanguinity ng_ http://upload.wildrnedia.org/wikipedialcommons/2/28/Tab1e_of_Consanguiru'ty_showing_degrees_

23 23 of_relationship.png

24 -7- -7-