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GUAM
J
IN THE
THE SUPERIOR
SUPERIOR COURT
COURT OF
OF GUAM
GUAM
PEOPLE OF GUAM GUAM CRIMINAL CRIMINALCASE
CASENO:NO:cF0411_24
CF0411-24
Police Report
Report No.
No. 21-18551
21-18551
vs.
DECISION DECISION AND ORDER
BRIAN BRIAN JAKE CEPEDA CEPEDA ALANO,
ALANO, DENYING DENYING OAG'S
OAG'S STATEMENT
STATEMENT OF
DOB: DOB:12/20/1996 12/20/1996 OBJECTION Defendant.
This matter is before
matter is before the
the Honorable Dana A.
Honorable Dana A. Gutierrez Gutierrez for the
the limited
limited purpose
purpose of
reviewing the Office of the Attorney General's the Attorney General's (the "OAG")
"OAG") Statement
Statement of Objection
Objection
("Objection"), in which which the
the OAG
OAG objects
objects to
to the
the Honorable
Honorable Alberto
Alberto E. Tolentino
Tolentino ("Judge
("Judge
Tolentino") presiding presiding over
over the
the above-captioned
above-captioned matter
matter due
due to his
his relationship
relationship with Attorney
General Douglas Moylan_ General Douglas Moylan ("Moylan").
("Moylan"). Upon consideration of the consideration of the arguments and applicable
Guam law, the Court hereby DENIES the OAG's Objection. For For this
this reason, Judge Tolentino
may continue to preside over over this matter.
matter.
FACTUAL BACKGROUND
The following facts
facts are
are undisputed: DorisL.G.
undisputed: Doris L.G. Tolentino Tolentino ("Doris")
("Doris") and
and Moylan were
manned andhad married and hadtwo twochildren-Brandon
children-Brandon(born
(bam 1990)
1990) and
and Angela
Angela (born
(bam 1992) (the "Moylan
1992) (the
Children"), Children"); Doris Dorisand
and Moylan
Moylandivorced
divorcedinin1997,
1997;Judge
Judge Tolentino
Tolentinoand
and Doris
Dorismarried
married in
in 2005
2005 and
and
remain married man*iedtoday;
today,as
assuch,
such,Judge
JudgeTolentino
Tolentinoisis the
the stepfather
stepfatherof
of the
the Moylan Children.
Children. See
Answer Answer to Statement of Objection Statement of Objection ("Answer") ,r,r14-15 ("Answer") atatW 14-15 (July (July 31,
31, 2024).
As As recently
recently as
as October
October 2022,
2022, Judge Tolentino sue Judge Tolentino sua sponge sponte disqualified himself Hom from cases
cases
ii*
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04II-24; CF0411-24; People of ofGuam v. Brian
Brian Jake Cepeda Alano
Alano
<4
in which Moylan Moylan appeared before him as a\ private counsel because of of his relationship with Moylan
as the stepfather of the the Moylan Children. See Id.
Id at ,r
at 'H 33;; see also Statement Statement of Obj
Objection
action
("Objection") at Ex. 29, 2024)
Ex. A-MM (July 29, 2024) (providing (providing examples of Judge Tolentino's examples of
disqualifications in cases involving Moylan from 2014 to 2022).
In 2022, Moylan was elected Attorney General of of Guam and was scheduled to take office
January 2023. in January 2023. Answer at ,r 5.5. InIn December at 11 December 2022, 2022, Judge
Judge Tolentino
Tolentino and MOylan
Moylan met with
various other staff various other staff members members of the
the OAG and
and the
the Superior
Superior Court
Court of Guam
Guam to
to discuss
discuss Judge
Judge
Tolentino's previous Tolentino's previous disqualification disqualification in Moylan's Moylan's cases. ,r According to Judge Tolentino cases. Id. atat116.
undisputed by
and undisputed by the Moylan "assured the OAG, Moylan "assured [Judge [Judge Tolentino]
olentino] and
and the
the other members in
attendance that he attendance that he perceived perceived no
no conflict
conflict in
in his election
election as the
the Attorney
Attorney General
General and the
the
prosecution of criminal criminal cases
cases before
before [Judge
[Judge Tolentino]."
Tolentino]." Id. ,r
Id at1]7.
During and after January 2023, Judge Judge Tolentino presided over over many
many cases involving the
without objection
OAG without objection from from the
the OAG.
OAG. See
See Answer ,r 44 (stating Answeratat1] (stating that that Judge
Judge Tolentino's
Tolentino's docket
consists mostly of of criminal matters brought by by the
the People
People of Guam through the OAG).
However, beginning in However, beginning in April April of
of 2024,
2024, three
three Superior
Superior Court
Court of Guam
Guam Judges
Judges issued
issued
Decisions and Decisions and Orders Orders addressing
addressing whether
whether Judge
Judge Tolentino
Tolentino was disqualified disqualified from
from matters
matters
involving Moylan involving Moylan due to his relationship with Moylan and the Moylan Children.
First, on April 5, 2024,
2024, the Honorable
Honorable Joseph n. Camacho, presiding as Judge Pro N. Camacho,
Tempore, Tempore, issued a Decision and Order in People People of Guam
Guam v.v. Nakita
Nikita TT Aguon, analyzing whether
Judge Tolentino Judge Tolentino was was disqualified from cases disqualified from involving Moylan cases involving Moylan pursuant to 7 pursuant to 7 GCA
GCA §§ 6105(a),
6105(a),
which states tes that
tha t a "Judge
"Judge shallll disqua lify himself disqualify himself in
in any
a ny proceeding
oceeding in
in wh,ich
which his
his or her
her
impartiality might reasonably be questioned" unless both parties agree to to have
have the
the judge
judge continue
Aguon, CM0145-21
to sit in the proceedings. Aguon, at 7 CM0145-21 at 7 (Super. Ct. Guam (Super. Ct. Guam Ap~l
April 5,
5, 2024);
2024), 77 GCA
GCA §§
3
DECISION AND ORDER DENYING DENYING OAG'S OAG'S STATEMENT
STATEMENT OF
OF OBJECTION
CF04] I-24; People CF0411-24; ofGuam Peopleof Guam v.
v. Brian
Brian Jake
Jake Cepeda
Cepeda Alano
Alana
6l05(a). 6105(a). Judge Camacho Camacho found
found that
that "a reasonable
reasonable person
person could question whether whether Judge
Tolentino could be impartial impartial in
in aa case
case proceeding
proceeding at
atthe
thedirection
directionof
of[AG]
[AG] Moylan" due
due to
to their
their
continuing relationships relationships with the
the Moylan Children. Id. at 8. Thus, the court Moylan Children. court held that, "[a]t "[a]t a
minimum, it would would have
have been
been prudent for Judge
prudent for Tolentino to disclose Judge Tolentino disclose these these relationships to the
parties." Id. parties." Id
Next, Next, on on June
June 4, 2024, the Honorable 2024, the Honorable Elyze Elyse M.
M. Iriarte
Iriarte issued
issued aa Decision
Decision and
and Order
Order as
as the
recusal judge recusal People of Guam judge in People Guam v.
v. Carina
Corina Jamel
Jamel Taitingfong
Taitingfong, et
et al.,
al., CF0024-24 (Super.
(Super. Ct.
June 4, Guam June 2024). In that case, 4, 2024). case, the the defendant
defendant objected
objected to
to Judge
Judge Tolentino
Tolentino presiding
presiding over the
case, and Judge Judge Iriarte
Iriarte held
held that
that Judge
JudgeTolentino
Tolentino was disqualified from from the
the matter. Taitingfong,
matter. Tai g
CF0024-24 CF0024-24 at at 10.
10. Judge
Judge Iriarte
Iriarte reasoned pursuant to reasoned that pursuant to 7 GCA §§ 6105(a), 6105(a), aa reasonable
reasonable question
exists regarding regarding Judge Judge Tolentino's impartiality toward Tolentino's impartiality toward Moylan Moylandue
due to
totheir
theirmutual
mutual relationship
relationship
with with Judge Tolentin0's stepchildren Judge Tolentino's stepchildren and and due
due to the fact that Judge Judge Tolentino
Tolentino had previously sue sua
sponte disqualified sponge disqualified himself himself from
from all
all matters
matters involving
involving Moylan
Moylan while was in while Moylan was in private private
s1
at 5. Further, Judge
practice. Id. at Judge Iriarte Matte determined that the the pro per procedure
proper procedure would
would have
have been
been for
Judge Tolentino Judge Tolentino to sit only in in matters
matters where both patties had waived parties had waived their right to object object to his
his
presiding case. Id. atat 8.8. Because presiding over the case. Because the the defendant
defendant objected and clearly did not waive waive that
that
right, Judge thatJudge Judge Iriarte held that JudgeTolentino Tolentinowas
was disqualified
disqualified from sitting onthe the case. Id at
case. Id. at 8-9.
on June
Lastly, on June 12, 2024, 2024, the
the Honorable
Honorable Maria
Maria T. Cenzon
Cenzon issued
issued aa Decision
Decision and
and Order
Order
Denying the OAG's Statement the. OAG's Statement of of Objection
Objection in People
People of
ofGuam
Guam v.
v. Richard
Richard Y Ybanez,
Ybanez, CF0447-
June 12,
23 (Super. Ct. Guam June 12, 2024).
2024). In
In that
thatcase,
case,on
onMay
May 1,
1,2024,
2024,the
theOAG
OAG objected for the first
time to to Judge Judge Tolentino presiding presiding over
over the
the matter
matter due
due to
to his
his aforementioned
aforementioned relationship relationship with
Moylan Moylan and and the Moylan Moylan Children.
Children. Ybanez,
Ybanez, CF0447-23 at
at 5-6.
5-6. Sitting
Sitting as
as the
the recusal
recusal judge, Judge
Judge
Cenzon found that Judge Judge Tolentino
Tolentino is not compelled to disclose disclose his
his relationship
relationship with Moylan
Moylan
4
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People CF0411-24; Peopleof ofGuam
Guam v.
v. Brian
BrianJake
Jake Cepeda Alana
Cepeda Alano
under 77 GCA under GCA §§ 6105(a)
6105(a) or
or any
any other
other section
section of
ofthe
the recusal
recusal statute.
statute. Id.
Id. at
at 12-17.
12-17.
Cenzon provided
Judge Cenzon provided several several reasons justifying Judge Judge Tolentino's omission, including
(1) that Moylan admitted during the meeting with Judge Judge Tolentino
Tolentino and
and other
other staff
staff members that
that
he per perceived no continuing ceived no continuing conflict conflict r requiring Judge TTolentino's equir ing Judge disqualification;
olentino's disqua (2) tha lifica tion, (2) that
Moylan's and Moylan's and .Doris's relationship, relationship, which ended in in 1997, ended sufficiently 1997, ended sufficiently far far in
in the
the past
past as to
not currently be a concern when viewed viewed obi
objectively;
ectively, (3) that the
the Moylan
Moylan Children, who are Judge
Tolentino's stepchildren, Tolentino's stepchildren, are are all adults living on their own;
own, and (4)
(4) in the
the small legal community
of Guam, for Judge Tolentino to disqualify himself in all cases of cases involving Moylan would be "(a)
impractical to impractical to enforce, (b) negatively impact the efficient administration of of justice, and (c) lead
to judge-shopping judge-shopping and/or overburden other judges judges in the same court."
court." Id. at 17.
Id at 17.
Finally, on July 18, 2024, 2024, the
the Supreme
Supreme Court of Guam 1ssued issued an Opinion in In re Arthur
San Agustin. U San Agustin·v.Superior SuperiorCourt
CourtofofGuam, al., 2024 Guam 2, disqualifying Judge Tolentino in Guam, etet al.,
that matter, matter, but but on grounds
grounds that are
are unrelated
unrelated to his relationship relationship with Moylan.
Moylan. The Supreme
Supreme
Guam noted
Courtt of Gua noted tha thatt they
they fir
first issued their
st issued .their Or
Order disqualifying
der disqua Judge TTolentino lifying Judge olentino on
2023, but
December 5, 2023, but stated stated that
that their
their July 18, 2024 Opinion 18, 2024 Opinion supersedes supersedes that
that Order.
Order. San
San
Agustin, 2024 Guam 2 at Agustin, ,r 8. The at 118. The San Agustin Court noted that Judge Tolentino had previously
himself in that matter because "he, his wife, and his chamber clerk have or had close disqualified himself
[a real party in interest], concluding this could create relationships with San Agustin and Nadeau, [a
a conflict." Id. ,r 4.4. The Id atat 1] The matter matter was
was then
then reassigned
reassigned to
to the
the Honorable Presiding Judge Alberto
III, and the defendant objected to Presiding C. Lamorena III, Presiding Judge Lamorena presiding over the
matter. Id. matter. ,r 5.5. The at 'll
Id at The issue issue of
of Presiding
Presiding Judge
Judge Lamorena's recusal was then assigned to Judge
Tolentino, and Tolentino, and Judge Tolentino Tolentino issued a Decision and and Order
Order concluding
concluding that
that Presiding
Presiding Judge
Lamorena was not disqualified. Id atat 11 disqualified. Id. ,r 6.6. Ultimately, Ultimately, the
the Supreme
Supreme Court
Court of Guam held that
that
5
¢ DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] CF041]l-24; People"ofGuam People'ofGuam v.
v. Brian
BrianJake
Jake Cepeda
Cepeda Alano
because beca us e Judge udge Tolentino
olent ino hadd disqualified qua lified himself
hims elf in
in the underlying
he under lying matter,
t er , he was aalso
he wa ls
disqualified Hom disqualified from sitting asthe sittingas therecusal
recusal judge
judgeand,
and, therefore,
therefore, v`acated
vacated his
his decision
decision and
and disqualified
disqualified
him from from the the matter ,r,r 440, entirely. Id aatt W
matter entirely. 0 , 554. h e SSan 4 . TThe Agustin
a n Ag ust clarified the proper Court clarified proper
when aa party
procedure when party seeks seeks to
to challenge
challenge aa recusal
recusal judge
judge for
for cause. ,r
Id atat1134.
cause. Id
PROCEDURAL BACKGROUND
The instant matter
matter was
was initiated
initiated on
on June 17, 2024,
June 17, 2024, when
when the filed an
the OAG filed an Indictment Indictment
against Brian against Brian Jake Jake Cepeda
Cepeda Alano ("Defendant") for Possession Alano ("Defendant") Possession of a Schedule Schedule IIII Controlled
Controlled
rd
Substance (As Substance (As aa 3rd Degree Degree Felony).
Felony). On
On July 25,
25, 2024,
2024, the
the matter
matter was
was assigned
assigned to
to Judge
Judge
Tolentino.. Tolentino
July 29, On July 29, 2024, the OAG OAG filed
filed their
their Objection,
Objection, stating
stating that
that "disqualification of Judge
Tolentino from Tolentino from this and any other other matter involving Moylan is required"
required" due
due to
to their
their familial
familial
relationship. Objection relationship. Objection at at 7.
7. The
The OAG argues that "[a] reasonable reasonable person would presume presume that
that
Judge dge TTolentino's i ho' s personal
er s ona l relationship
r el a t i ons hi pwith
wi t h [AG]
[ AG ] Moylan
M oyl a n and
a nd his pprior
ri yea
years sspent
p ent
disqualifying himself disqualifying himself from matters involving from any matters involving Moylan would would raise
raise aa reasonable
reasonable question
question
about his impartiality about his impartiality and necessitateshis and necessitates hisdisqualification."
disqualification."Id
Id at 6.
The Court notes that the
the OAG has filed
filed numerous identical objections to Judge Tolentino
presiding over many criminal matters. 1However, many criminalmatters.1 However, the theCourt
Courttakes
takes judicial notice 2 of judicialnoticed of the
the fact
fact that,
1 1 This Court has This Court has been assigned assigned to
tohear
hearthe
therecusal
recusalof JudgeTolentino ofJudge Tolentinoin
in several
severalcases
casesininwhich
whichthe
theOAG
OAG
has filed identical statements of objection, including, but not limited to, the following: People of Guam v. has tiled identical statements of objection, including, but not limited to, the following: People of Guam v.
Pangelinan Reyes
Peter Pangelinan Reyes Jr., CF0419-24 CF0419-24 (Super.
(Super. Ct. Guam Aug.
Aug. 5,
5, 2024), People of
2024); People ofGuam
Guam v.v. Jamielynn
Cabrera, CF0439-24
Pangelinan Cabrera, CF0439-24 (Super.
(Super. Ct. Guam July 30, 30, 2024), 2024); and
and People of of Guam
Guam v.v. Ma
Mark
rk
Anderson Paulino, CF0482-24 (Super.
ro, CF0482-24 (Super. Ct. Guam July 30, 2024)
July 30,
2 Guam Rules of Evidence ("GRE") Rule 201 governs judicial notice of of adjudicative facts. "A judicially noticed fact must be one not subject to reasonable disputedispute in that it is either (1) generally known within the territorial jurisdiction jurisdiction of the trial court or (2) capable of accurate and ready deten;nination determination by resort to sources whose accuracy cannot cannot reasonably
reasonably bebe questioned."
questioned." GRE
GRE 201(b).
20l(b).
6
.P
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People CF0411-24; PeopleofofGuam Guam v.
v. Brian
Brian Jake
Jake Cepeda Alano
Cepeda Alano
date, the to date, the OAG has not tiled OAG has filed objections objections in
in all
all of
ofits
itscases
cases before
before Judge
Judge Tolentino,
Tolentino, and
and instead
instead is
. . . 3 proceeding in certain matters. 3
response to In response to the OAG's Objection, the OAG's Objection, Judge Judge Tolentino
Tolentino issued
issued his
his Answer on
on July
July 31,
31,
2024, denying 2024, denying that that his
his disqualification
disqualification was
was required
requiredin
in this
thiscase.
case.Answer at,r135. In support Answer at support of
his position, his position, Judge Judge Tolentino
Tolentino cites
cites to the meeting
to the meeting that
that he
he and
and Moylan
Moylan had
had regarding
regarding their
their
and the fact that Moylan
potential conflict, and stated that he Moylan stated he perceived perceived IJ.O
no disqualification. Id. at ,r at117.
Further, Judge Further, Judge Tolentino Tolentino states
states that
thatthe
theMoylan
Moylan Children have "reached majority and and adulthood
adulthood
and have been residing at their their own
own residences."
residences." Id.
Id
This This matter was assigned
assigned to
to this
this Court on August 1,
1, 2024, for the limited purpose of of
Judge Tolentino's recusal.
deciding Judge recusal. On August August 5,
5, 2024,
2024, the
the Court
Court issued
issued an Order for
for Further
Further
Briefing, requiring the the OAG to explain their position on whether the OAG has objected to Judge
Tolentino presiding over cases cases "involving Moylan" at the the earliest practicable opportunity, opportunity, as
required by required by Title Title 7, Guam Code Annotated 7, Guam Annotated ("GCA"), Section 6107, ("GCA"), Section 6107, considering considering Moylan has
been in office office since
since January
January 2023. The Court
Court permitted, but did not not require,
require, the Defendant to
respond respond to the same question.
question. On August
AUgust 12, 2024, the OAG filed filed their
their Response,
Response, arguing
arguing that
their objection their timely. 4 The objection was time1y.4 The Defendant Defendant filed
filed a Response
Response to Government's
Government's Statement
Statement of
Objection on Objection on August 12, 2024, August 12, 2024, stating
stating that
that (1)
(1) the
the factual
factual claims
claims put
put forth
forth in
in the
the OAG's
constitute aa disqualification;
Objection do not constitute disqualification, (2)
(2) the
the Defendant
Defendant waives
waives any
any conflict;
conflict, and (3) the
the
3 3 According to the Superior According Court of Superior Court of Guam's Weekly Calendar Calendar for
for the
the week
week of ofAugust
August 26,26, 2024,
2024, Judge
Judge
Tolentino continues continues toto have
have aa full
full calendar
calendar ofof cases moving forward forward which
which list
list the
the OAG
OAGas as counsel.
counsel. Judge
Judge
Tolentino remains Tolentino remains scheduled scheduled to to hear
hear progress
progress hearings,
hearings, status hearings,further status hearings, father proceedings, proceedings, motion
motion
hearings, pre-trial conferences, hearings, pre-trial conferences,changechangeof of pleas, pleas, return
return of
of warrants,
warrants, andand jury selections selections and
and trials in
in
criminal mattersinvolving criminal matters involving the the OAG.
OAG. The Superior
Superior Court.of Guam's
Guam's Weekly
Weekly Calendar is posted Calendar is posted publicly on the the Judiciary Judiciary of
ofGuam's
Guam'swebsite,
website,available
availableat at
https://www.guamcourts.org/Calendar/images/Weeldyhttps ://www.guamcourts.org/Calendar/images/Weekly-
AET.pdf.
4 4 The OAG's Response did not raise any new arguments not stated in their their Objection.
action.
7
DECISION AND ORDER DENYING_OAG'S DENYING.0AG'S STATEMENT
STATEMENT OF OBJECTION
OBJECTION
CF041 I-24,' People of CF0411-24; ofGuam v.
v. Brian
Brian Jake Cepeda Alano
Alano
OAG failed OAG failed totoobject objectatathe
theearliest
earliestpracticable
practicable opportunity
opportunity and
and therefore
therefore has
has waived any
any
-conflict. conflict.
DISCUSSION
7 GCA GCA §§.6105 provides the substantive substantive grounds
grounds for
for judicial
judicial disqualification in Guam. 7
GCA GCA§§6105(a)
6105(a)states full:
states in full:
shall disqualify himself
Any Judge shall himself or herself in any proceeding in which his oror her impartiality might her impartiality might reasonably be questioned, but if, following complete disclosure to all parties in the proceeding of of the reasons
reasons for
for disqualification,
disqualification, all all parties parties agree
agree to having the
to having
Judge continue
dge cont inu e to
t o sitit in the pproceedings, he or she need oceedings , he need not not
disqualify himself
himself or herself.
When grounds for disqualification grounds for disqualification exist, exist,77 GCA
GCA §§ 6106 requires a judge to disclose disclose any
facts that disqualify him under under Section 6105. If
Section 6105. fails to declare his disqualification as If a judge fails
party may file a statement required, any PaM' of objection, setting statement of setting forth forth the facts
facts constituting the
grounds of disqualification grounds of disqualification of of such judge. 77 GCA
such judge. GCA §§ 6107.
6107. 77 GCA
GCA§§6107
6107mandates,
mandates, in
in part:
part:
statement of
The statement of aa party party objecting
objecting to to the
the Justice
Justice or
or Judge
Judge on
on thethe
ground ground of his or her disqualification shall be presented at the his or her disqualification shall be presented at the earliest practicable opportunity earliest opportunity after his his or orher
herappearance
appearance-and
-and
discovery of the facts constituting grounds of the Justice's Or discovery of the facts constituting grounds of the Justice's or disqualification, and in* Judge's disqualification, in· any event before the commencement of commencement the hearing of the hearing of issue of fact in of any issue in the the action
action or
proceeding before proceeding beforesuch
such Justice
Justice or
or Judge.
Judge.
7 7 GCA GCA§ §6107 6107(emphasis
(emphasis added).
added). IfIfa aparty
partyfails
failstotoobject
objectat atthethe"earliest "earliestpracticable
practicable
opportunity" after discovery opportunity" after discovery of of the
the facts
facts which
which disqualify
disqualify aajudge,
judge,that
that failure
failure "constitutes
"constitutes aa
Van Dax waiver." Van Dox v. Superior Court Court of
ofGuam,
Guam, 2008
2008 Guam i! As such, when Guam 77 1]45. when aa party remains
silent on aa known silent on known disqualification pursuanttoto77GCA disqualification pursuant GCA § § 6105(a),
6105(a), the
the party
party waives their right
waives ·their right to
to
later object to the the judge presiding. People judge presiding. ofGuam People of Guam v.
v. Win,
Wia, 2020 Guam
Guam 17 i! 28.
17 'll
l
"The rule rule that
that a request for disqualification should be submitted prior to any hearing in
the matter before the matter before challenged judge the challenged judge 'rests on the principle that that aa party
party may
may not gamble on a
a
8
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0411-24;
I-24; People 0f v. Brian Jake Cepeda Alano of Guam v. Alana
favorable favorabledecision'
decision'.... Thus, a statement of .... Thus, of obi section is normally timely if objection if it is submitted prior
to any any hearing hearing before before the challenged judge in the challenged judge the matter."
matter." Van
Van Dox,
Dax, 2008
2008 Guam ,r 46.
Guam 77 1] 46.
(citing to
(emphasis added) (citing to an an exception
exception that
that itit is
is not
not appropriate
appropriate to wait until the eve of of trial to
request disqualification based on information known months months earlier).
earlier).
Importantly, the Importantly, the recusal recusal statute
statute "is
"is not
not i_ntended
intended to
to 'bestow
'bestow veto power over judges or to
used as be used as aa judge shopping shopping device."' San
San Agustin,
Agustin, 2024 Guam ,r 24 (quoting Guam 2 'H (quoting People v.
v.
Camaddu, 2015 Camaddu, 2015 Guam ,r 80).
Guam 22 11 80). Likewise, Likewise, courts
courts should
should avoid
avoid outcomes
outcomes which
which lead
lead to
to the
of the criminal justice system. See Camaddu, manipulation of Camaddu, 2015 2015 Guam ,r 80 (stating Guam 2 1180 (statingthat thatif
if a
trial trial court court recused itself "every reused itself "every time time ititreceives
receives unsolicited
unsolicited material
material uncomplimentary to a .
uncomplimentary to
defendant prior to trial trial or sentencing [it]
[it] would create an intolerable situation which could lead
to a manipulation manipulation of the criminal justice justice system.").
1. The The OAG
OAGFailed
Failedto
to Object
Object at
at the
the Earliest
Earliest Practicable
Practicable Opportunitv
Opportunity
As noted, even even when
when aa judge
judge fails
fails to
to disclose
disclose any
any potentially
potentially disqualifying disqualifying facts,
facts, aa party
may object may object to to aa judge
judge presiding
presiding pursuant
pursuant to
to GCA 6107 but
GCA §§ 6107 but must
must do
do so
so at
at the
the earliest
earliest practicable
practicable
opportunity after discovery discovery of the
the facts
facts constituting
constituting the
the ground
ground of the
the judge's
judge's disqualification
disqualification or
else that party waives their right to to bring an
an objection.
Here, although Judge Tolentino did not not disclose
disclose any
any facts,
facts, the OAG was still
still required to
bring its objection as soon as as possible
possible after
after discovery of
of the
the facts.
facts. The Court
Court understands
understands the
OAG's position OAG's position to be that Moylan is generally generally involved
involved in
in the
the OAG's cases,
cases, even if he is not
lead counsel on a matter.
matter. The OAG cites to
to Judge Iriarte's Decision in Taitingfong Taitingfong, in which she
wrote, wrote, "Deputy Attorney Attorney General
General Gloria
Gloria Rudolph
Rudolph Clarified
clarified that Attorney GeNeral General Moylan is
consulted on general case strategy and plea agreements and and that
that itit would
would be
be incorrect
incorrect to say
say that
he is not personally involved in this case." Objection at 6. Given that Moylan is the head of of the
9
f.
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People of CF0411-24; ofGuam v. Brian Jake Cepeda Alano
OAG, and that he is involved in matters whic:p.
which the OAG
OAG prosecutes, the OAG was aware of of the
facts regarding facts regarding Moylan's Moylan's and Judge Tolentino's Tolentino's relationship
relationship by
by January
January 2023.
Despite being aware of
of Judge Tolentino's
Tolentino's and
and Moylan's
Moylan's relationship
relationship by
by January
January 2023,
2023,
the OAG argues argues two primary reasons reasons for
for why its Objection was timely:
timely: (1) because
because the OAG
filed its Objection prior to to Judge
Judge Tolentino hearing the matter and only two weeks after after the case
was initiated;
initiated, and (2)
(2) because
because the
the Supreme Court of Guam issued an Opinion in San Agustin on
July 18, 2024 2024 which provided additional grounds on which to to require
require disqualification. Objection
at 5.
A. The CCourt
o Viewss the TOAG's
V A G ' OObjection bj e io n in tthe
he CContext
o nt oof
f JJudge
udg
Tolentino's Relationship with Moylan Movlan
First, the
the OAG
OAG cites
cites to
to Van
VanDox,
Dox, quoting
quoting ininpart,
part, that
that aastatement
statement of objection
objection is
"normally" timely when when submitted
submitted prior
prior to a hearing by the challenged challenged judge and
and also
also that
that the
timeliness requirement should be "liberally construed" to promote justice. Response timeliness Response at 2. The
OAG provides an an accurate
accurate timeline of
of the
the procedural
procedural posture
posture in this
this matter,
matter, including that the
OAG filed filed its Objection within one week week after
after the matter
matter was assigned
assigned to Judge Tolentino and
before Judge Tolentino ever set the .matter to to be
be heard.
heard. Id.
Id at 3.
However,, despite However despit e 'the
't he Court's
C our t 's Order
Or der that
t ha t the
t he OAG expla
explain whet
whether itit br ought itits brought
Objection Objection at the earliest practicable practicable opportunity,
opportunity, "considering "considering Attorney
Attorney General Moylan has been
in office since January 2023," the January 2023," the OAG failed failed to address
address the timeline of
of its Objection in the
broader context broader context of of the
the history
history between
between Judge
Judge Tolentino
Tolentino and
and Moylan.
Moylan. In
In doing
doing so,
so, the
the OAG
seemingly seemingly would would have the Court view this this matter
mattersasananisolated
isolatedobjection
objectionrather
rather than
than in
in the
the larger
larger
context ofMoylan's Moylan's relationship with Judge Tolentino.
Thus, hus, the
the Cour
Court must fir st analyze first whether it is analyze whether is appr opr iate to appropriate to view this this matter
matter in
in
isolation. isolation oror toto consider consider the
the larger
larger context
context of
of the history
history of
of the
the relationship
relationship between Judge Judge
10
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People CF0411-24; Peopleof ofGuam
Guam v.
v. Brian
BrianJake
Jake Cepeda Alana
Cepeda Alano
and Moylan
Tolentino and Moylan since since and
and prior
prior to January 2023.
i. The Van Dox Standard Is Not Not Applicable
When the Supreme Supreme Court
Court of
of Guam announced
announced in Van Dox
in Van Dox that a statement of of objection is
"normally timely if it is "normally timely is submitted submitted prior to hearing before to any hearing before the challenged challenged judge the
judge in the
matter," it cited a California case in support: Hollingsworth llingsw orthv.v.Superior
Superior Court,
Court, 191
191 Cal. App. 3d
ad
22, 236 Cal. Rptr. 193 (Ct. App. 1987). In Hollingsworth, Hollingsworth, the California Court of Appeals found
that counsel presented presented its
its statement
statement of
of disqualification
disqualification at
at the
the earliest
earliest practicable
practicable opportunity
opportunity
because the case had only recently been assigned to the challenged judge, and the Court Court found
that it would be unreasonable and impracticable to require a party to challenge a judge prior to
knowing which knowing which judge judgewill
will hear
hearthe
the matter. Hollingsworth, 236 matter. Hollingsworth, 236 Cal.
Cal. Rptr.
Rptr. 193,
193, 196.
196.
Fur ther , when Further, when the Van Dox the Va Dox Cour
Court wr ote tha
wrote thatt the
the timeliness
timeliness·rrequirement
equir should be
"liberally "liberally construed construed to promote
promote justice,"
justice," itit cited to another another California case: Eagle Maintenance &
Supply Co. v. Superior Court, Court, 16
16 Cal. Rptr. 745 (Dist. Ct. App. 1961). In that case, the California
Court of Appeals notes that the the matter
matter had
had been
been assigned to.a
toa department
department of
ofthe
the superior
superior court,
court,
judge. Eagle Maintenance, but not yet to a specific judge. 16 Ca. Rptr. 745, Maintenance, 16 745, 747. Thus, the court court stated,
stated,
"it would "it would place place an undue hardship upon a litigant or his cowasel counsel to compel him to know before
the first first scheduled scheduled trial
trialsetting,
setting,what
whatjudge
judgewould
wouldbe
beassigned
assignedtototry
tryhis
hiscase
case....
...." Id
h e llogicc iin Hollingsworth The Hollingsworth and Eagle Maintenance and Eagle Maintenance whichh ma es aa lib mandates er a
liberal
construction of the timeliness standard does not apply apply to the unique
unique situation
situation before this Court.
Court.
While OAG ma While the OAG mayy not not ha ve known
have known tha t Judge
that ssigned the be aassigned
would be
olentino would
Judge TTolentino the aabovebove -
captioned matter, was aware matter, it was aware by January 2023 that Judge January 2023 Judge Tolentino Tolentino would be assigned assigned some
11
DECISION AND ORDER DENYING DENYING OAG'S
0AG'S STATEMENT
STATEMENT OF
OF OBJECTION
OBJECTION
CF04] CF041 I-24;
l-24; People People of
ofGuam v.
v. Brian
Brian Jake Cepeda Alano
Alano
cases involving the cases the OAG, OAG, considering
considering Judge
Judge Tolentino is
is one of
of four
four criminal judges5 in the criminal judges the
Superior Court of Guam Guam and
and the
the OAG files aasignificant OAG files significantnumber number of
ofcriminal
criminalcases.
cases. Further,
Further, the
facts that give rise to the OAG's facts OAG's Obj Objection
sectionhave
have remained
remained the
the same since prior to January 2023
sanie in all
and remain the same all cases involving Judge Tolentino Tolentino and
and Moylan.
Moylan. Therefore,
Therefore, this
this is not a
circumstance in which a party must wait to see which judge is assigned "normal" circumstance assigned and and then, if
if
there is a conflict, challenge challenge that judge.
judge.
Instead, a more relevant case to review in this this matter is People of
of Guam v.
v. Win.
Wia. There,
the he PPublic Defender Service lic Defender vice Corporation p or a t ion ("PDSC")
("P DS C ") had
ha d raised
r a is ed the
t he issue
is s u e of
of the ju dge's
judge's
disqualification previously disqualification previously in in other cases.
cases. Win,
Wia, 2020 17 ii,i 27.
2020 Guam 17 27. The The Supreme
Supreme Court
Court of
of
Guam found that the defendant was aware aware of the conflict through through his
his counsel's involvement in
the other cases, cases, and
and the
the fact
fact that
that they
they remained
remained silent in Win rendered his Wia rendered his objection waived and
untimely. Id. untimely. Id
Like in Win, Wia, this matter is more appropriately viewed in its broader context regarding the
ofthe
parties' previous knowledge of the facts.
facts. Here,
Here, the
the broader
broader context
context requires the Court to requires the to review
Tolentino's and Judge Tolentino's and Moylan's Moylan's relationship
relationship as
as well
well as
as the OAG's
OAG's conduct
conduct in
in other
other cases
cases before
Judge Tolentino.
ii. Viewing this
Viewing this Matter
Matter in
in IIsolation
s o latio WWould
o Permit
Permit OOutcomes
utco
Contrary to the Recusal Statute's Intended Purpose
The recusal statute statute shall
shall not
not be
be construed
construed to
to permit
permit judge-shopping,
judge-shopping, to
to bestow
bestow veto power
over judges, or to permit manipulation of the criminal justice system. San Agustin, 2024 Guam 2
,i 24; 1] 24, Camaddu, 2015 Guam 22 1]
Camaddu, 2015 ,i 80.
80. Thus,
Thus, the
the Court must attempt
attempt to avoid
avoid these
these undesired
undesired
outcomes.. outcomes
5 5 PursuanttotoSupreme Pursuant SupremeCourt Courtof
ofGuam
GuamAdministrative
AdminiStrativeRule
RUleNo.
No. 23-002,
23-002, in
in addition to
to the four criminal
judges in the Superior Court the Superior Court of Guam, Guam, the Supreme Court of Supreme Court of Guam
Guam created Court
Court 8,
8, which is comprised
comprised
of ofboth both criminal criminal and and non-criminal
non-criminal cases. to the cases. Court 8 is assigned to the Honorable Honorable John
JohnC.C.Terlaje.
Terlaje.
12
DECISION AND ORDER DENYING DENYING OAG'S
OAG'S STATEMENT
STATEMENT OF
OF OBJECTION
CF04] I-24; People of CF0411-24; ofGuam v. Brian Jake Cepeda Alano
First, if First, if the the Court
Court disqualified
disqualified Judge
Judge Tolentino
Tolentino in
in all
all cases
cases in
in which
which the
the OAG files an
objection but allowed Judge Tolentino to to sit on any matter in which the OAG did not not object,
object, it
would create create a system system in which the
the OAG could
could cherry-pickwhich
cherry-pick which cases
cases to
to disqualify
disqualify Judge
Judge
Tolentino. Tolentino. Allowing the OAG Allowing the OAGtotodetermine determine which
which cases
cases itit will
will permit
permit Judge
Judge Tolentino to sit
sit on
on
would clearly promote judge-shopping. See In re Takeno, Takano, No. BR
BR 15~00108,
15-00108, 2016 WL 7384603
(D. Guam Dec. 19, 2016) (opining that allowing a party party to "cherry-pick" which cases to
disqualify a judge disqualify judge from from would promote judge-shopping). Unlike a criminal defendant, who is a
different individual in each case case with the right to decide whether whether to object
object to a judge presiding,
the OAG represents represents the People of Guam. Because the People of of Guam
Guam cannot
cannot object to Judge
over certain
Tolentino presiding over certain criminal criminal matters
matters but not others,
others, disqualifying Judge Tolentino disqualifying Judge Tolentino in
cases, without further
some but not all cases, further explanation, is inappropriate.
Likewise, permitting Likewise, permitting the the OAG
OAGtotosit
siton
onknown
knownfacts
factsfor
formonths
monthsand
andthen
then raise
raise those
those facts
facts
disqualify Judge
at any given time to disqualify Judge Tolentino Tolentino could
could bestow
bestow aa veto
veto power
power on
on the and
the OAG and
of the judicial system. For example, the OAG allow the manipulation of OAG could, could, theoretically,
theoretically, hold
these facts over Judge these Judge Tolentino's head head with
with the
the constant
constant threat
thr~at of in all of raising them in all his his cases
cases
after any after any unfavorable unfavorable decision. In other decision. In other words, words, the
the same that prevents same logic that prevents a party party from
from
disqualifying disqualifying aa judge judge after an unfavorable unfavorable decision in aa particular particular case
case likewise prevents the
OAG from disqualifying aa judge after OAG ~fter an unfavorable decision in any case case involving
involving the OAG.
Without speculating speculating about
about the
the OAG's
OAG's motive to bring
bring these recently tiled filed objections
objections or
why itit has objected in some some cases
cases but
but not
not others,
others, the
the fact
fact that the possibility exists that the OAG
could use these strategies system necessitates strategies to forum-shop or manipulate the judicial system necessitates that the
view tthe C ourtt view OAG's object he OAG's objections broadly, ions br oa dly, rrather
a t her tthan in isola
ha n in isolation in t the t ion in instant
he inst matter.
a nt ma t t er .
Consequently, the Court Court declines
declines to find that
that the Objection
Objection was
was brought
brought at
at the earliest
earliest practicable
13
DECISION AND ORDER DENYING OAG'S 0AG'S STATEMENT STATEMENT OF OBJECTION
OBJECTION
CF0411-24;
I-24; People of of Guam v.
v. Brian Jake Cepeda Alano
opportunity oppor t unit y solely solely because
beca use itit·was
wa s filed
filed promptly
ompt ly after
ft er the
t he matter
t er wass aassigned
ssigned too Judge
Judge
Tolentino. Tolentino
B. The
The Supreme Court
Court of Guam Issuing Its Its Opinion in San Agustin Does Justify the
Not Justifv the OAG's
OAG's Failure
Failure to
to Object
Object atatthe
theEarliest
EarliestPracticable
Practicable
Opportunity Opportunitv
OAG argues
The OAG argues that that their
th.eir Objection
Objection is timely
timely because
because it was
was filed
filed shortly
shortly after
after the
Supreme Court Supreme Court of of Guam issued its Opinion issued its Opinion in
in San Agustin on July 18, 18, 2024, and San
San Agustin
provided ovided additional ddit iona l grounds
gr ounds on
on which
which tto require disqualification.
disqualification. The O
OAG
AG argued that
]mploying the "[e]mp1oying the approach approach set
set forth
forth by the Supreme Court, Court, i.e., knowing
knowing all
all the
the facts
facts and
and
understanding the context involving Judge Tolentino's history of himself where the of disqualifying himself
AG was involved, it is clear that Judge Tolentino is a disqualified judge judge in any case where AG
Moylan is involved.
involved. The basis
basis for
for Judge Tolentino's prior disqualification disqualification hasn't changed." 97
Objection at 5. Objection
San Agustin is distinguishable from the instant instant matter
matter for
for several
several reasons.
reasons. First,
First, that case
address whether an appearance of did not address of bias exists exists based on Judge Tolentino's relationship relationship
with Moylan. Second, the San Agustin Court held that Judge Tolentino was disqualified in that
recusal judge
matter as the recusal judge because because he disqualified himself in the underlying case.
case. Here, Judge
Tolentino has not disqualified himself himself in the underlying underlying matter
matter and he is not the recusal judge.
judge.
Supreme Court
Moreover, the Supreme Court of of Guam
Guam first
first issued its Order in San Agustin on December
2023, which addressed the same issues 5, 2023, issues related to Judge Judge Tolentino's
Tolentino's disqualification disqualification as the
recusal judge judge as as the
the San
San Agustin July 18, 2024 Opinion, albeit in less less detail.
detail. The
The OAG does not
distinguish why the July 18, 2024 Opinion in San Agustin triggered its mass objection, but the distinguish
December 5, 2023 2023 Order
Order did not.
not.
Therefore, the Therefore, the Court Court declines
declines to
to find
find that
that the
the issuance
issuance of
of the
the Opinion in San Agustin
14
v
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF04] I-24; People CF0411-24; PeopleofofGuam Guam v.
v. Brian
BrianJake
Jake Cepeda
Cepeda Alano
circumstances allowing
changed the circumstances allowing the the OAG to timely
timely file
file numerous
numerous statements
statements of
of objection
objection
against Judge Tolentino based on previously known facts.
facts.
c. C. The
The OAG
OAGHas
Has Waived
Waivedits
its Objection
Objection by
by Silence
Silence
As discussed As discussed previously,
previously, parties can waive parties can waive aa judge's judge's 77 GCA
GCA §§ 6105(a1 disqualification by 6105(a) disqualification by
remaining silent alter after learning of
of potentially
potentially disqualifying disqualifying facts.
facts. Win,
Wia, 2020 Guam 17 ,r 28. This 17 'II
"silence-as-waiver" rule renders an objection as waived when based on information previously
known to the parties known separate litigation.
parties through separate litigation. Id.
Id. (finding that PDSC waived by by silence
because they had raised the issue of of the judge's
judge's disqualification
disqualification iN
in previous cases and, therefore,
of the issue).
were aware of
Further, in Win, Further, the Supreme Wia, the Supreme Court
Court of Guam declined
declined to answer
answer whether "the most
most
egregious" egregious" conflicts conflicts are
are waivable
livable through
throughsilence,
silence,but
butfound
foundthat,
that,ininthat
thatcase,
case,the
thesi1ence-assilence
-as-
rule applied
waiver rule applied because because counsel
counsel had
had been aware
aware of the conflict and waited over a year year to
,r
object. Id. atat1130.
Here,
e, like
like in
m Win,
Wia, the OAG wa ited over waited over aa yea r to
year file its
to file •its fir st objection first objection to
to Judge
Judge
Tolentino. The OAG OAG wa
wass aaware
wa r of
of aall
ll the
the fafacts
cts rregarding
ega r ding Judge
Judge TTolentino's
olentino's aand
nd Moyla n's
Moylan's
relationship by relationship by January January 2023,
2023, yet waited
waited until
until May 1,
1, 2024 to file
file its
its first
first objection to Judge
Tolentino in Ybanez.
Ybanez. Further, the OAG continues to proceed in a number Further, the number of of cases before Judge
Tolentino without without objecting(
objecting. Thus, the Court finds that the silence-as-waiver rule applies and the
waived its OAG waived its ability to object to Judge Tolentino based on his relationship with Moylan-..
The Court need not answer whether Judge Tolentino Tolentino is
is disqualified
disqualified from hearing matters
involving Moylan because even if if he is,
is, the
the OAG
OAG has
has waived
waived its
its right
right to
to object.
object. Therefore,
Therefore, the
Court denies the OAG's OAG's Objection
ObjectionOn
on the
the basis
basis that
that itit was
was not
not brought
brought at
at the
the earliest
earliest practicable
opportunity.
15
U
I
DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0411-24; CF04] Peopleof
I-24; People ofGuam
Guam v.
v. Brian
Brian Jake
Jake Cepeda
Cepeda Alano
Alano
CONCLUSION
For the aaforementioned
for ementioned reasons,
ea sons, the
the Court
our t hereby
her eby DENIES OAG's Objection.
DENIES the OAG's Objection.
may continue
Consequently, Judge Tolentino may continue to to preside over
over the above-captioned matter.
SO ORDERED:
ORDERED: - - - - ; . ,Air?
Alll, 7- ~ - r e , -I :B?f.
9 · ~}i32[,
~~~-
HO ORABLE A. GUTI EZ Judy Sup§\'ior C"ourt\df Guam
SERVICE VIA·E-MAIL SERVICE vIA*E-mm acknowledae that I acknowledge that an an electronic
.mpy ° ° 7j/,e 4 , 8 original was
was e-mailad
e-mailedWe
to:
" r P1250 tro;,rPC~
§.54,-N
\V
1;
_Cm/.;
al Gum