People v. Moore
Opinion
Fl L E
SUPERIOR CGURT
GF GU/\.-/i
l
2 2321, APR 17 a et 3 CLERK CLERK OF
OF COURT
COURT
4 g8/-__ -
5 IN THE SUPERIOR COURT OF GUAM 6
7 THE PEOPLE OF GUAM, 8 CRIMINAL CASE no.
NO. cF0313-21
CF0313-21
9 vs.
DECISION AND ORDER
10
11 NICHOLAS WAYNE MOORE, MOORE,.
12 12 Defendant. 13
INTRODUCTION INTRODUCTION
14
This matter came before the Honorable Vernon P. Perez on January January 31, 2024, for hearing 15 15 on Defendant Nicholas Nicholas Wayne
Wayne Moore's
Moore's ("Defendant")
("Defendant") Motion
Motion for
for Court to Compel Attendance 16
of of Eric Salone at Trial or or in
in the
the Alternative
Alternative Motion to Dismiss filed November 15, 2023 2023 and
17 17 Motion Motion to Dismiss, to Compel Appearance of of Salone, for Disqualification, to Compel Brady and 18
Other Evidence Evidence and
and for
for Evidentiary
Evidentiary Hearings
Hearings filed
filed December
December 11,
11, 2023.
2023. Present were Assistant 19 19 Attorney Attorney General General Sean E. Brown
Brown on
on behalf
behalf of
of the
the People
People of
of Guam
Guam ("the
("the Government")
Government") and
and
20 20 Defendant with with counsels
counsels David
David J.J. Lujan,
Lujan, Michael
Michael F.
F. Phillips,
Phillips, and
and William
William L.
L. Gavras.
Gavras. Having
Having
21 21 reviewed the pleadings, pleadings, the arguments
arguments presented, and the presented, and the record, the Court now issues the record, the
22 22
following Decision Decision and
and Order.
23 23 BACKGROUND
24 24 Defendant is charged Defendant is charged with with (1)
(1) two counts
counts of Aggravated
Aggravated Assault
Assault (As
(As a Second Degree
25 25
Felony) with with attached
attached Special
Special Allegation: Deadly Deadly Weapon
Weapon Used
Used in
in the
the Commission
Commission of
of a Felony;
26 26
(2) (2) one one count of Terrorizing Terrorizing (As
(As aa Third
Third Degree
Degree Felony)
Felony) with
with attached
attached Special
Special Allegation:
Allegation: Deadly
Deadly
27 27 Weapon Weapon Used Used in
in the Commission
Commission of
of a Felony);
Felony); and
and (3)
(3) one
one count
count of Possession
Possession of an
an Unregistered
Unregistered
28 28
People v.
v. Moore
Case No. CF0313-2 Case No. CF0313-21l Decision Decision and Order
Page 11 of 14
1 Firearm (As a Third Third Degree
Degree Felony). Superseding Indictment, Felony). (Am. Superseding Indictment, Jun. 13, 2022).
2022). The original
2 Indictment in Superseding Indictment in this this matter
matter also charged a co-actor, co-actor, Eric
Eric Benjamin
Benjamin Salone ("Salone"),
3 with (1) Aggravated Assault (As (As aa Second
Second Degree
Degree Felony) -- 22 Counts Counts with Special Allegation:
4 Weapon Used Deadly Weapon Used in in the Commission
Commissionof
ofaa Felony,
Felony; (2)
(2) Terrorizing (As a Third Third Degree
Degree Felony)
5 with Special Allegation: Deadly Weapon Used in Weapon Used in the Commission Commission of
ofaa Felony;
Felony, and (3) Possession
1
6 of a Firearm of Firearm Without Without a Firearms
Firearms Identification
Identification Card
Card (As
(As aa Third
Third Degree
Degree Felony).
Felony).1 (Superseding
7 Indictment, Mar. 24, 2022).
2022). The defendants were subsequently subsequently severed
severed for
for trial. See Order, May.
8 20, 2022 (granting (granting an
an oral
oral stipulation
stipulation for
for severance
severance of
of defendants). 16, 2022, Salone defendants). On June 16,
9 plead guilty to Possession of of a Firearm without a Firearms Identification Card (As a Third Third Degree
Degree
10 10 of Firearms (As a Misdemeanor) pursuant to a deferred plea agreement Felony) and Discharge of
11 with the the Government. Deferred Plea Agreement See Deferred
Government. See Agreement in in CF0313-21-01,
CF0313-21-01,Aug.
Aug.11,
ll, 2022.
2022. The
12 12 Deferred Plea Agreement Agreement includes a cooperation cooperation provision
provision with
withthe Government. Id.
theGovernment. Id
13 13 Defendant Moore's Jury Selection and Trial Trial commenced
commenced on the Amended
Amended Superseding
Superseding
14 14 15, 2022 and continued Indictment June 15, continued throughout the fall of of 2022 before Judge Alberto E.
15 15 Salone testified at trial Tolentino. Salons trial during during the
the Government's chief on Government's case in chief on August August 22, 2022,
16 16 September 6, 2022, September August 23, 2022, August 24, 2022, August 25, 2022, September September 15, 15, 2022,
2
17 17 and October 10, 2022.
2022.2 At the conclusion of Salone's testimony testimony on
on October
October 10,
10, 2022, Attorney
18 18 Lujan an indicated indicated that
thathe
hewould
would subpoena
subpoena Salone
Salone if
if needed
needed for
for recall.
recall. (Digital Recording at2:33 2:33:29,
19 19 Oct. 10, 2022).
20 20 On November 9, 2022, November 9, 2022, the
the court
court adjourned
adjournedtrial
trial until
until January
January 10,
10, 2023, to allow trial jurors jurors
21 opportunity to an opportunity to travel travel over
over the
the holidays. At this
holidays. At this point
point in
in trial,
trial, Defendant was conducting his 22 cross-examination of cross-examination of Government witness Brian Mendiola.
Mendiola. Judge Tolentino Tolentino was unable to
23 23
24 24 1 1 These charges are are reflected as charges four to six in the Superseding Indictment. (Superseding Indictment, Mar.
25 24, 2022).
2 2 On October On October 4, 4, 2022, the court
court granted
grantedthe
theGovernment's
Government'sMotion
Motion to
to Bar
Bar Further
Further Cross-Examination Cross-Examination of Salone by 26 26 finding that
Defendant, finding that "defense "defense counsel
counsel has
has already
already impeached
impeached Salone
Salone several
several times
times and
and presented
presented to
to the jury
27 27 Salone's potential lack Salone's of credibility"
lack of credibility"and
andthat
that "based
"based on
on Attorney
Attorney Lujan's
Lujan'srepresentations
representations on August August 25,
25, 2022 and
September 6, September 6, 2022, 2022,Attorney
Attorney Lujan
Lucanhad
hadsufficient
sufficienttime tofinish
timeto finishhis
hiscross-examination." See Dec.
cross-examination." See Dec. & 10, & Order, Oct. 10,
28 2022. 2022.
People v.
v. Moore
Case No.
No. CF0313-2
CF0313-21l
Decision Decision and and Order
Page 2 of14
1 resume trial resume January 10, trial on January 10, 2023, 2023, due
due to
to medical issues that
that developed throughout throughout the
the holiday
2 break.
3 January 23, On January 23, 2023, Judge Arthur 2023, Judge Arthur R. Barcinas Barcinas granted
granted Defendant's
Defendant's January
January 9, 2023
2023
4 Motion for Motion Mistrial. 3 for aa Mistrial.3
5 May 15, On May 15, 2023,
2023, Jury
Jury Selection
Selection and Trial for the Trial commenced for the second time before before Judge
Judge
4
6 Tolentino.
To1entino.4 After four After four days
days of jury selection,
selection, Defendant
Defendantfiled
filedaaMotion
Motionfor
for Mistrial.
Mistrial. See Mot.
7 Resulting from Mistrial Resulting from Violations Violations Banning
Banning Media
Media Coverage
Coverage and
and Public
Public Access,
Access, and
and Failure
Failure to
8 an Open Maintain an Courtand OpenCourt andPublic
PublicTrial,
Trial,May
May 19,
19,2023.
2023. In
Inlight
light of
of the
the Motion,
Motion, the
the fifth
fifth day
day of
of
9 jury selection selection was cancelled. 5 was cancelled.5
10 10 On October 3, 2023, 2023, Defendant
Defendantfiled
filed a Reassertion
Reassertionof
of Speedy
Speedy Trial.
Trial.
111
12 12 33 Judge JudgeBarcinas
Barcinaspresided
presidedover
overthe
thematter
matterininaacase
casemanagement
management role
role to
to address
address housekeeping issues.
issues.
13 13 4 After aa mistrial After mistrial was
was declared
declared in
in January
January 2023, the
the matter
matter was
was subsequently
subsequentlypresided
presidedover
over by
by Judge
Judge Maria
Maria T.
14 14 Cenzon and Cenzon and Judge John C. Terlaje John C. Terlaje until
until Judge
JudgeTolentino's
Tolentino's return
return to
tothe benchon
thebench May 15,
onMay 2023. See
15,2023. See Notice of Judge Notice of
Assignment, Jan. Assignment, Jan. 23, 23, 2023
2023 (Judge
(Judge Cenzon
Cenzon assigned);
assigned), Notice
Notice of
of Judge Assignment, Mar. 9, 2023 2023 (Judge
(Judge Tolentino
Free access — add to your briefcase to read the full text and ask questions with AI
Fl L E
SUPERIOR CGURT
GF GU/\.-/i
l
2 2321, APR 17 a et 3 CLERK CLERK OF
OF COURT
COURT
4 g8/-__ -
5 IN THE SUPERIOR COURT OF GUAM 6
7 THE PEOPLE OF GUAM, 8 CRIMINAL CASE no.
NO. cF0313-21
CF0313-21
9 vs.
DECISION AND ORDER
10
11 NICHOLAS WAYNE MOORE, MOORE,.
12 12 Defendant. 13
INTRODUCTION INTRODUCTION
14
This matter came before the Honorable Vernon P. Perez on January January 31, 2024, for hearing 15 15 on Defendant Nicholas Nicholas Wayne
Wayne Moore's
Moore's ("Defendant")
("Defendant") Motion
Motion for
for Court to Compel Attendance 16
of of Eric Salone at Trial or or in
in the
the Alternative
Alternative Motion to Dismiss filed November 15, 2023 2023 and
17 17 Motion Motion to Dismiss, to Compel Appearance of of Salone, for Disqualification, to Compel Brady and 18
Other Evidence Evidence and
and for
for Evidentiary
Evidentiary Hearings
Hearings filed
filed December
December 11,
11, 2023.
2023. Present were Assistant 19 19 Attorney Attorney General General Sean E. Brown
Brown on
on behalf
behalf of
of the
the People
People of
of Guam
Guam ("the
("the Government")
Government") and
and
20 20 Defendant with with counsels
counsels David
David J.J. Lujan,
Lujan, Michael
Michael F.
F. Phillips,
Phillips, and
and William
William L.
L. Gavras.
Gavras. Having
Having
21 21 reviewed the pleadings, pleadings, the arguments
arguments presented, and the presented, and the record, the Court now issues the record, the
22 22
following Decision Decision and
and Order.
23 23 BACKGROUND
24 24 Defendant is charged Defendant is charged with with (1)
(1) two counts
counts of Aggravated
Aggravated Assault
Assault (As
(As a Second Degree
25 25
Felony) with with attached
attached Special
Special Allegation: Deadly Deadly Weapon
Weapon Used
Used in
in the
the Commission
Commission of
of a Felony;
26 26
(2) (2) one one count of Terrorizing Terrorizing (As
(As aa Third
Third Degree
Degree Felony)
Felony) with
with attached
attached Special
Special Allegation:
Allegation: Deadly
Deadly
27 27 Weapon Weapon Used Used in
in the Commission
Commission of
of a Felony);
Felony); and
and (3)
(3) one
one count
count of Possession
Possession of an
an Unregistered
Unregistered
28 28
People v.
v. Moore
Case No. CF0313-2 Case No. CF0313-21l Decision Decision and Order
Page 11 of 14
1 Firearm (As a Third Third Degree
Degree Felony). Superseding Indictment, Felony). (Am. Superseding Indictment, Jun. 13, 2022).
2022). The original
2 Indictment in Superseding Indictment in this this matter
matter also charged a co-actor, co-actor, Eric
Eric Benjamin
Benjamin Salone ("Salone"),
3 with (1) Aggravated Assault (As (As aa Second
Second Degree
Degree Felony) -- 22 Counts Counts with Special Allegation:
4 Weapon Used Deadly Weapon Used in in the Commission
Commissionof
ofaa Felony,
Felony; (2)
(2) Terrorizing (As a Third Third Degree
Degree Felony)
5 with Special Allegation: Deadly Weapon Used in Weapon Used in the Commission Commission of
ofaa Felony;
Felony, and (3) Possession
1
6 of a Firearm of Firearm Without Without a Firearms
Firearms Identification
Identification Card
Card (As
(As aa Third
Third Degree
Degree Felony).
Felony).1 (Superseding
7 Indictment, Mar. 24, 2022).
2022). The defendants were subsequently subsequently severed
severed for
for trial. See Order, May.
8 20, 2022 (granting (granting an
an oral
oral stipulation
stipulation for
for severance
severance of
of defendants). 16, 2022, Salone defendants). On June 16,
9 plead guilty to Possession of of a Firearm without a Firearms Identification Card (As a Third Third Degree
Degree
10 10 of Firearms (As a Misdemeanor) pursuant to a deferred plea agreement Felony) and Discharge of
11 with the the Government. Deferred Plea Agreement See Deferred
Government. See Agreement in in CF0313-21-01,
CF0313-21-01,Aug.
Aug.11,
ll, 2022.
2022. The
12 12 Deferred Plea Agreement Agreement includes a cooperation cooperation provision
provision with
withthe Government. Id.
theGovernment. Id
13 13 Defendant Moore's Jury Selection and Trial Trial commenced
commenced on the Amended
Amended Superseding
Superseding
14 14 15, 2022 and continued Indictment June 15, continued throughout the fall of of 2022 before Judge Alberto E.
15 15 Salone testified at trial Tolentino. Salons trial during during the
the Government's chief on Government's case in chief on August August 22, 2022,
16 16 September 6, 2022, September August 23, 2022, August 24, 2022, August 25, 2022, September September 15, 15, 2022,
2
17 17 and October 10, 2022.
2022.2 At the conclusion of Salone's testimony testimony on
on October
October 10,
10, 2022, Attorney
18 18 Lujan an indicated indicated that
thathe
hewould
would subpoena
subpoena Salone
Salone if
if needed
needed for
for recall.
recall. (Digital Recording at2:33 2:33:29,
19 19 Oct. 10, 2022).
20 20 On November 9, 2022, November 9, 2022, the
the court
court adjourned
adjournedtrial
trial until
until January
January 10,
10, 2023, to allow trial jurors jurors
21 opportunity to an opportunity to travel travel over
over the
the holidays. At this
holidays. At this point
point in
in trial,
trial, Defendant was conducting his 22 cross-examination of cross-examination of Government witness Brian Mendiola.
Mendiola. Judge Tolentino Tolentino was unable to
23 23
24 24 1 1 These charges are are reflected as charges four to six in the Superseding Indictment. (Superseding Indictment, Mar.
25 24, 2022).
2 2 On October On October 4, 4, 2022, the court
court granted
grantedthe
theGovernment's
Government'sMotion
Motion to
to Bar
Bar Further
Further Cross-Examination Cross-Examination of Salone by 26 26 finding that
Defendant, finding that "defense "defense counsel
counsel has
has already
already impeached
impeached Salone
Salone several
several times
times and
and presented
presented to
to the jury
27 27 Salone's potential lack Salone's of credibility"
lack of credibility"and
andthat
that "based
"based on
on Attorney
Attorney Lujan's
Lujan'srepresentations
representations on August August 25,
25, 2022 and
September 6, September 6, 2022, 2022,Attorney
Attorney Lujan
Lucanhad
hadsufficient
sufficienttime tofinish
timeto finishhis
hiscross-examination." See Dec.
cross-examination." See Dec. & 10, & Order, Oct. 10,
28 2022. 2022.
People v.
v. Moore
Case No.
No. CF0313-2
CF0313-21l
Decision Decision and and Order
Page 2 of14
1 resume trial resume January 10, trial on January 10, 2023, 2023, due
due to
to medical issues that
that developed throughout throughout the
the holiday
2 break.
3 January 23, On January 23, 2023, Judge Arthur 2023, Judge Arthur R. Barcinas Barcinas granted
granted Defendant's
Defendant's January
January 9, 2023
2023
4 Motion for Motion Mistrial. 3 for aa Mistrial.3
5 May 15, On May 15, 2023,
2023, Jury
Jury Selection
Selection and Trial for the Trial commenced for the second time before before Judge
Judge
4
6 Tolentino.
To1entino.4 After four After four days
days of jury selection,
selection, Defendant
Defendantfiled
filedaaMotion
Motionfor
for Mistrial.
Mistrial. See Mot.
7 Resulting from Mistrial Resulting from Violations Violations Banning
Banning Media
Media Coverage
Coverage and
and Public
Public Access,
Access, and
and Failure
Failure to
8 an Open Maintain an Courtand OpenCourt andPublic
PublicTrial,
Trial,May
May 19,
19,2023.
2023. In
Inlight
light of
of the
the Motion,
Motion, the
the fifth
fifth day
day of
of
9 jury selection selection was cancelled. 5 was cancelled.5
10 10 On October 3, 2023, 2023, Defendant
Defendantfiled
filed a Reassertion
Reassertionof
of Speedy
Speedy Trial.
Trial.
111
12 12 33 Judge JudgeBarcinas
Barcinaspresided
presidedover
overthe
thematter
matterininaacase
casemanagement
management role
role to
to address
address housekeeping issues.
issues.
13 13 4 After aa mistrial After mistrial was
was declared
declared in
in January
January 2023, the
the matter
matter was
was subsequently
subsequentlypresided
presidedover
over by
by Judge
Judge Maria
Maria T.
14 14 Cenzon and Cenzon and Judge John C. Terlaje John C. Terlaje until
until Judge
JudgeTolentino's
Tolentino's return
return to
tothe benchon
thebench May 15,
onMay 2023. See
15,2023. See Notice of Judge Notice of
Assignment, Jan. Assignment, Jan. 23, 23, 2023
2023 (Judge
(Judge Cenzon
Cenzon assigned);
assigned), Notice
Notice of
of Judge Assignment, Mar. 9, 2023 2023 (Judge
(Judge Tolentino
Tolentino re-
15 15 assigned); Am.
assigned), CTS Order, Am. CTS Order, Mar.
Mar. 13,
13, 2023 (signed by Judge Judge Terlaje for Judge
Judge Tolentino). Judge Elyze Tolentino). Judge M. Iriarte Elyse M. Iriarte
also briefly presided over briefly presided over this matter matter after
afterDefendant's
Defendant's re-assertion ofspeedy re-assertionof speedytrial trialon
onMay 2023.See
May5,5,2023. SeeNotice,
Notice, May
May
16 16 2023; Minute Entry, 5, 2023, 8, 2023. The Entry, May 8, Thematter matter did
did not
not proceed
proceed to
to trial
trial before
before Judge
Judge Iriarte,
Iriarte, however,
however, in light of
17 17 the Government's withdrawal of of its
its waiver
waiver of
ofJudge
Judge Iriarte's
Iriarte' s conflict
conflict of
ofinterest
interest after the
the Pre-Trial
Pre-Trial Conference on
May 8,8, 2023 May 2023.
18 18 5 entirely clear
It is not entirely clear to to the
the Court
Court how
how the
the May
May 19, 2023
2023 Motion and
and the
the May 15,
15, 2023
2023 jury venire
venire were
19 19 subsequently addressed.
subsequently addressed.On OnMay
May 18,
18,2023, theday
2023,the thefiling beforethe
daybefore filingof
ofthe
theMotion,
Motion,the
thejury
juryvenire
venirewas
wasinstructed
insected to
return for continued return for continuedselection selectionthe
thefollowing
followingday
dayatat9:00
9:00a.m.
am.(Minute
(MinuteEntry,
Entry,May
May 18,
18,2023).
2023). The May 19,
19, 2023
2023
20 20 selection was later vacated selection vacated in in the
theCourt's
Court'scase
casemanagement
managementsystem witha anote systemwith note"by
"byCourt
Court(Motion
(Motionfiled)".
filed)". No further
No further
hearing was calendared until until the filing of
thefiling of Defendant's Ex Parte Defendant's Ex Parte Motion Motionfor
forRelease
Releasewith
withConditions
ConditionsononJune
June2,2, 2023
2023.
21 At the Motion At the Motion Hearing Hearingon onJune
June 5,5, 2023,
2023, Defendant
Defendant was was released back on released back on electronic electronic monitoring
monitoring and and aa Status Status Hearing
Hearing
22 was set for August August 8,8, 2023. On June 5, OnJune 5, 2023,
2023, Defendant
Defendant also also waived waivedhishisright
right to
to aa speedy
speedy trial.
trial. The
The Court
Court notes
notes that
that
the Judiciary Judiciary of
of Guam was closed
closed for
for business
business upon the the declaration declaration ofCOR
of COR 22 by Maga'hagan Guiihan by I Maga'h&gan Guahan on May a 221,
1
23 23 2023, in light of Typhoon Mawar of Typhoon Mawarapproaching approachingthe the Mariana Mariana Islands,
Islands, and was only openedopened for for limited limited court-related
court-related
services and and urgent
urgentproceedings
proceedingson onMay
May30, 2023.See
30,2023. SeeADM23-003, ADM23-003, May May 21,21, 2023;
2023, ADM23-004,
ADM23-004, May 29, 29, 2023.
24 24 The Supreme Supreme Court
Court ofofGuam
Guamsubsequently
subsequentlydirected certainurgent directedcertain urgentmatters matters toto continue
continue to to be
be scheduled
scheduled andand heard
heard and
for all other matters, for matters, including including criminal
criminal and andcivil
civil trials,
trials,to berescheduled tobe rescheduleduntil
untilJune
June 2023.See
9,9,2023. SeeADM23-005, ADM23-005, May May
25 30, 2023;
2023, ADM23-006,
ADM23-006, Jun. Jun. 2,
2, 2023. On OnOctober
October16, 16, 2023,
2023, atat the
the start.ofJury
Jury Selection, Attorney Phillips Phillips inquired 26 the court about with the about thethestatus statusofofthe
theMotion
Motionandandthe thejury
juryvenire
venirefrom
fromMay. (Digital Recording May. (Digital Recordingatat9:9: 15:58, 15:58, Oct. 16,
2023). Judge Tolentino 2023). Judge Tolentinoindicated indicated hehe believed
believedthe the Motion
Motion for for Mistrial was withdrawn.
Mistrial was withdrawn. Id Id.atat9:9: 16:48.
16:48. Judge
Judge Tolentino
Tolentino
27 27 informed the parties also informed parties that thathehehad
haddischarged
dischargedthe thejury
juryvenire fromMay.
venirefrom May. Id. at 9: 17 Id at :50 ("The
17:50 ("The jury commissioner commissioner
the court
asked the court you you know
know are
are we
we still
still going
going to
to keep them because
keep them becausethey're they're kind
kindof of in
in limbo
limbo and andII said
saidno.
no.We'll
We'll go
28 ahead andand discharge discharge them.").
them.").
People v. Moore Case No. CF0313-21 Decision and Decision and Order
Page 3 of14
1 October 16, On Monday, October 16, 2023, 2023, Jury
Jury Selection
Selection and
and Trial commenced for the third time.
Trial commenced
2 2 A jury jury of oftwelve
twelveand
andfour
fouralternates
alternates was
was empaneled
empaneled the
the following day,
day, however,
however, the
the matter
matter did
3 proceed to not immediately proceed to opening opening statements
statements and witness testimony.
4 On November 15, 2023, November 15, 2023, Defendant Defendantfiled
filed a Motion
Motion for Court to
to Compel
Compel Attendance
Attendance of
of Eric
5 Salone at Trial Salone at Trial or or in
in the
theAlternative
AlternativeMotion
Motion to
to Dismiss
Dismiss("Motion
("Motion to
to Compel"). On
On November 4,
6 2023, the 2023, the Government Governmentfiled
filed its
its Opposition. On December Opposition. On December 4, 2023, 2023, Defendant
Defendant filed
filed his
his Reply.
7 December 6, On December 6, 2023, 2023, the
the Government
Governmentalso
alsofiled
filed aa Request
Requestfor
for Leave
Leave to
to File aa Surreply
Surreply to
8 8 Defendant's Ex Parte Motion Salone to Testify Motion to Compel Eric Salone Testify at at Trial
Trial or
or Dismiss
Dismiss the
the Case.
9 On December 11, ll, 2023,
2023, Defendant
Defendant filed
filed aa Motion
Motion to
to Dismiss,
Dismiss, to Compel
Compel Appearance of
Appearance of
10 10 Salone, Salone, for Disqualification, to Compel Brady Brady and Other Evidence
Evidence and
and for
for Evidentiary Hearings
11 11 ("Motion to ("Motion to Dismiss").
Dismiss"). On
On December
December 19,
19, 2023,
2023, the Government
Government filed its
its Opposition.
Opposition. On
12 12 December 22, 2023, 2023,Defendant
Defendantfiled
filed his
his Reply.
Reply.
13 Both motions Both motions were
were scheduled
scheduled to
to be
be heard
heard before
beforeJudge
Judge Tolentino
Tolentinoon
onJanuary
January 8, 2024. 6
8, 2024.6
14 14 The Motion Motion Hearing Hearing did
did not go forward
forward before
before Judge
Judge Tolentino, however, however, in
in light
light of
ofaa Statement
Statement
15 15 of of Objection Objection filed filedby
byDefendant
Defendant that
that day.
day.
16 16 On January 18,2024, January 18, 2024,this
thismatter
matterwas
wasre-assigned
re-assignedtotothis
thisCourt.
Court. See
See Notice
Notice of
of Judge
Judge
17 17 Assignment, Jan.
Assignment, Jan. 18, 2024.
2024.
18 January 31, On January 31, 2024,
2024,the
the Court
Court heard
heard arguments
argumentson
onthe
themotions
motions and
and subsequently
subsequently placed
placed
19 19 the matters under under advisement.
advisement.
20 20 On April 9, 2024, April 9, 2024, this Court granted granted Defendant's
Defendant's October 17,
17, 2023
2023Motion
Motion for
for a Mistrial
Mistrial
21 and discharged and dischargedthe theOctober
October2023
2023jury. See Order re:
jury. See re: Defendant's Oct. 17, 2023 Oct. 17, 2023 Mot.
Mot. Mistrial,
22 22 9, 2024, Apr. 9, 2024; Minute Entry, Apr. 9, 9, 2024.
23 April 15, On April 15, 2024,
2024, Defendant
Defendant re-asserted
re-asserted his
his right
right to
to a speedy
speedy trial. Jury Selection trial. Jury Selection and and
24 24 Trial is is currently
currently set to commence on April 30, 30, 2024.
25
26 26
27 66 The Thefirst first Motion
Motion was
was scheduled
scheduled to
to be
be heard on December
December 14,
14, 2023. The
The hearing
hearing was
was rescheduled
rescheduled upon request of 28 See Ex Defendant. See Ex Parte Parte Unopposed
Unopposed Motion
Motion to
to Move
Move Motion
Motion Hearing,
Hearing, Dec. 13,
13, 2023.
People v.
v. Moore
Case No.
No. CF0313-21
CF0313-21
Decision Decision and and Order
Page 4 of14
1 DISCUSSION
2 Defendant moves the Court to compel the the Government
Government to secure
secure the attendance
attendance of
of Eric
3 Salone at trial as he is a necessary necessary witness
witness or to dismiss the the case
case in
in the
the alternative. See generally, alternative. See
4 Mot. Compel, Nov.
Mot. Compel, 15,2023.
Nov.15, 2023. After
Aftertestifying
testifyinginin the2022
the 2022trial,
trial,Salome
Salone relocated
relocated to
to the
the mainland
mainland
5 United States United States and is no and is longer able
no longer to be
able to be served
served aa subpoena underGuam subpoena under Guamlaw.
law.7
7
See88G.C.A. See G.C.A. §
§
6 75.25 ("A 75.25 subpoena requiring ("A subpoena requiring the attendance of a witness at a hearing the attendance hearing or trial may be served at at
7 any place within the the territory
territory of Guam.").
Guam."). Defendant
Defendant sets
sets forth that
that "[b]ecause Salone is currently "[b]ecause Salone
8 on probation resulting resulting from a plea agreement agreement that requires
requires him
him to
to testify in
in this
this case,
case, both
both this
this
9 and the Court and the prosecution prosecutionhave
havecoercive
coercivepower
powerover
over Salone
Salone sufficient
sufficient to
to force
force him to
to travel to
10 10 Guam for trial."
Guam for 7).Defendant Compelatat7).
(Mot.Compel
trial." (Mot. Defendantargues arguesthat
thathis
his "interest in having "interest in having the
the jury
11 observe Salone implicates implicates whether Defendant will will receive
receiveaafair
fairtrial
trialunder
under both
both the
the Due Process
12 12 Clause of of the Fifth
Fifth Amendment
Amendment and
and the right to compulsory process under underthe
theSixth
SixthAmendment"
Amendment"
13 13 and that itit "also implicates and that implicates his rights under the Sixth Amendment's guarantee under the to the guarantee to the right
right of
14 14 confrontation. Id Id.atat9-10.
9-10.Defendant
Defendantrequests
requestsan
anorder
orderstating
stating that
that "if
"ifSalone
Salonedoes
doesnot
notappear
appear at
15 15 willbe trial, he will befound inbreach foundin ofhis
breach of hisplea
pleaagreement
agreementand
and the
the terms
terms of
ofhis
his probation,
probation, and
and that
that the
16 16 Court will make suchaafinding make such findingand
andimpose
imposeappropriate
appropriate sanctions."
sanctions." Id.Idatat11.
ll. .
17 17 After the After the filing
filing of
ofthe
theNovember
November15,
15, 2023
2023 Motion
Motion to
to Compel,
Compel, "Defendant's
"Defendant's counsel
counsel
18 18 learned that thatthe
thegovernment
governmentwas
wascomplicit
complicitininremoving
removingSalone
Salonefrom
fromGuam."
Guam." (Mot.
(Mot. Dismiss
Dismiss at
at 2,
19 19 11,2023).
Dec. ll, light 2023).InIn of of
light this,
this, Defendantfiled
Defendant fileda second a secondmotion
motionon
onthe
theissue,
issue, requesting
requesting the
the
20 20 following relief:
relief:
21 1.
1. This
Thismatter
mattershould
should be
be dismissed
dismissed with
with prejudice
prejudice as
as aa sanction
sanction for
for flagrant,
flagrant,
continuing, and prejudicial prosecutorial misconduct.
misconduct.
22 2. IfIfthis
thismatter
matterisisnot
notdismissed,
dismissed, the
the government
government shouldshould be order[ed] to produce produce
23 23 Salome Salone atattrial
trialand
andatatits
itsown
ownexpense
expenseasasititisisresponsible responsibleforforallowing allowing Salone to
24 24 leave island.
island. In In the
the alternative
alternative to an
an order
order that
that the
the government
government incur
incur the
the
25
26 26
27 77 Bill Bill No.
No.155-37
155-37 introduced
introduced by Senator William A.
Senator William Parkinson proposes A. Parkinson to add the proposes to the Uniform Act Act to
to Secure
Secure the
the
Attendance of Witnesses from Without Without aa State
State in Criminal Proceedings to Title Title 88 Guam
Guam Code
Code Annotated,
Annotated, but is still
28 pending before Legislature.
Legislature. AAPublic
PublicHearing
Hearingononthe
thebill
billwas
washeard
heardon
onJanuary
January 8,8, 2024.
2024.
People v.
v. Moore
Case No. CF0313-2 CF03 l3-2 l
Decision Decision and and Order
Page 5 of14
expense, Defendant will pay for Salone's flight to Salone's flight to and from Guam will provide l room, board and a per diem diem to
to Salone
Salone while
while on
on Guam
Guam for
for Defendant's
Defendant's trial.
2 An evidentiary 3. An evidentiary hearing hearing should
should be heldheld to
to determine
determine to what
what extent
extent the
the
3 government isis culpable government culpable in Defendant not in Defendant not being able to being able to secure
secure Salone's
Salone's
4 appearance at trial and what efforts the government has made to secure Salome's Salone's
appearance at trial.
5 Anevidentiary
4. An evidentiaryhearing hearingshould
shouldbe
be held
held to
to determine
determine which
which and
and to
to what extent
6 of the Attorney General's Office employees of Office violated violated their duty of
of candor. Any
7 employee found to have violated their duty of of candor candor should
should be
be disqualified
disqualified
from this prosecution.
8 5. AAhearing 5. hearing should
should be
be held
heldtotodetermine
determine ififthe
thegovernment
government hashas sufficiently sufficiently
9 justified its representation to its representation to Judge Judge Cenzon
Cenzon that
that Salone's
Salone's testimony
testimony was
was so
10 untruthful that the government's conscience conscience cannot
cannot tolerate
tolerate calling Salone as a in either
witness in either this prosecution or in People v. CF0314-23.
Moore, CF0314-23 v. Moore,
11 Thegovernment
6. The governmentshould shouldbebe ordered
ordered to
to identify,
identify, line
line by line,
line, 1)
1) which parts
parts of
of
12 Salone's transcripts Salone's transcripts contain contain untruthful
untruthful statements,
statements, 2)2) what
what the truth is, 3) when 13 13 the government learned of this truth, truth, 4) how the government government learned of this truth, and 5) why the government has not previously provided this information 14 to the Defendant.
15 15 Id. atat19.
19. Defendant
Defendantargues
arguesthat
thatthe
theGovernment
Governmentviolated
violatedits
its duty
duty of
ofcandor
candor because
because (1) it failed
16 16 to obi acttoto Salone's object Salone's December 20, 2022 request to relocate to the mainland, (2) it represented to 17 17 the Court that Salone complied complied with
with his
his terms
terms of
ofprobation,
probation, (3)
(3) it did not ask the court to continue 18 18 the December 20, 2022 hearing so that counsel for Defendant Defendant could be present, (4) subsequent to 19 19 the December 20, 2022 hearing the Government December 20, Government has represented that Salone represented that Salone did not testify testify
20 truthfully, (5) truthfully, (5) the the Government
Government represented
representedtotoJudge
JudgeCenzon
CenzonininCF0314-21
CF03l4-2l that it will not call call
21 Salone as aa witness Salone as witness because because of
of his
his untruthful penurious testimony untruthful perjurious testimony in in CF0313-21,
CF03l3-2l, (6)
( the
the
22 Government represented to Government represented to the the court
court in the December
December 20, 2022
2022 hearing that
that Salone
Salone testified
testified
23 truthfully, and (7) the Government has failed in its duty to inform the court that Salone gave false 24 testimony which is a violation of his plea agreement.
agreement. (Mot.
(Mot. Dismiss at
at 4-9).
25 The Government opposes motions. As opposes both motions. As to to the
the first
first Motion,
Motion, the
the Government
Government argues
argues
26 that "Defendant "Defendant would
would suffer
suffer no
no prejudice
prejudice by
by Salone's
Salone's unavailability
unavailabilitytoto testify testifyatat trial.
trial. The
27 Defendant can introduce introduce into evidence
evidence Salone's testimony testimony from
from the
the first
first trial
trial because
because Salone
Salone
28 28
People v. Moore Case No. CF0313-21 Decision Decision and and Order
Page 6 of14
l qualifies as as an
anunavailable
unavailablewitness
witnessunder
under GRE
GRE 804(a)(5)."(Opp'n
804(a)(5)." (Opp'n at
at3,3,Nov.
Nov. 29,
29, 2023).
2023). The
2 Government further argues argues that
thatthe
theintroduction
introductionof
ofSalone's
Salone's testimony
testimony from
from the
the first
first trial
trial would
3 not violate violate his his rights
rights because
because the
the "Defendant
"Defendanthad
had an
an opportunity
opportunity to
to ask
ask those [questions
[questions that
that are
4 vital to his defense] and and any questionsrelated any other questions relatedtotohis hisdefense
defense...
... when
when he
he examined
examined Salone
5 the first at the first trial,"
trial," id
id at
at 2,
2, and
and the
the court
court "already
"already ruled
ruled that
that the probative value of of the
the additional
additional
6 questions the Defendant questions the Defendant wants wantsto
to ask
askSalone
Saloneisis outweighed
outweighedby
by considerations
considerationsof
of waste
waste of
of time
7 and needlesspresentation and needless presentationofofcumulative cumulative evidence."IdId atat3.3. As evidence." As to to the
the second
second Motion,
Motion, the
the
8 Government Government argues argues that ((1) Defendant failed failed to
to provide
providean
an adequate
adequate basis for an ex parte parte motion;
motion,
9 (2) that (2) that it it has reached out
outto
toSalone's
Salone's attorney
attorney to
to see
see ifhe
if he would be
be willing
willing to
to come
come back
back to Guam
10 to testify, testify; and and (3) itithas
has "committed
"committed no
no misconduct
misconduct or
or intentionally
intentionally violated Defense's Defense's rights
rights
11 11 under the theconfrontation
confrontationclause."
clause." (Opp'n
(Opp'n at
at 2,
2, Dec. 19,
19, 2023).
12 "[D]ismissal "[D]ismissalofofan
anindictment
indictmentisisinappropriate inappropriateabsent
absent flagrant and prejudicial prejudicial prosecutorial
13 13 misconduct."
misconduct." People People v.
v. Natch,
Naich, 2013
2013 Guam
Guam 77,J
1133 (quoting United
33 (quoting United States v.
v. Jacob,
Jacob, 855 F.2d 652,
14 14 655 (9thCir.
655 (9th Cir. 1988)).
l988)).
15 15 [A]
[A]court
courthas
has two
twoavailable
availabletheories
theories for
fordismissing
dismissing an an indictment indictment on on the basis basis of
prosecutorial misconduct:ifif the prosecutorial misconduct: the government's government'sactionsactionsare areso so extreme
extreme as as to
16 16 constitute violation of constitute a violation ofdue due process
process or, ififnot
not rising
rising toto that
that level,
level,under
under the
the court's
court's
17 17 supervisory Powers. Under supervisory powers. Under the the second theory, the
second theory, the court court is is empowered
empowered to to act
act "to
"to
implement remedy for the violation implement a remedy violation of ofaarecognized
recognizedstatutory
statutory or or constitutional constitutional
18 18 right, right; to preserve
preserve judicial
judicialintegrity
integrityby
byensuring
ensuringthat
that aa conviction
conviction rests
rests on
on appropriate
19 19 considerations validly before considerations validly before aa jury, jury; and
and to deter
deter future illegal conduct.
future illegal conduct. Dismissal 20 20 for for these
these reasons is only proper in cases of flagrant prosecutorial misconduct.
21 Id Id (internal (internalcitations citationsand
and quotation
quotation marks omitted).
omitted).
22 A. The The December
December 20, 2022 Progress ProgressHearing
Hearing in
in CF0313-23-01
CF0313-23-01
23 23 As much much of
of Defendant's
Defendant's Motion
Motion to
to Dismiss
Dismiss stems
stems from
from Salone's
Salone's December
December 20,
20, 2022
2022
24 hearing, the Court finds it it necessary to go
go through
through what occurred at the the hearing.
hearing. Defendant
Defendant asserts
asserts
25 several things things occurred
occurred at
at the
the hearing, including
including that
that (1)
(1)the
themain
mainsubj act was
subject was Salone's
Salome's counsel's
counsel's
26 26 request that that Salone
Salone be
be permitted
permitted to
to relocate to the mainland, mainland; (2) the
the Government
Government represented
represented to
27 the the Court Court that that Salone had complied
Salone had complied with
with the
the terms
terms of his
his probation,
probation; (3) the
the Government
Government
28 28
People v.
v. Moore
Case No. CF0313-21 Case No. CF0313-21 Decision Decision and and Order
Page 7 of14
1 truthfully at trial;
represented that Salone testified truthhllly trial, and and ((4)
4) the
the Government
Government should have asked for
2 a continuance. See Mot.
continuance. See Mot. Dismiss Dismiss at
at 4-9.
3 December 20, The December 20, 2022 hearing was calendared calendared as
as a Progress Hearing for Salone before 4 Tolentino. According Judge Tolentino. According to to the
the Coult's
Court's case
case management
management system,
system, aa Progress
Progress Hearing was
5 initially set for for October
October 18,
18, 2022
2022 after
after Salone
Salone changed
changed his
his plea
plea on
on June
June 16,
16, 2022.
2022. The October
6 18, 2022 Progress 18, Progress Hearing, Hearing, however,
however, was
was rescheduled
rescheduled to
to December 20, 2022 due to to an
an ongoing
7 trial. There is trial. There is no filed filed Notice of Hearing
Notice of Hearing in
in the
the system,
system, so
so the Court
Court is unaware at this
this time
time how
8 parties parties were were notified
notified of
of the
the hearing. Present at
hearing. Present at the
the December
December 20,
20, 2022
2022 hearing
hearing before Judge
9 Tolentino were Salone Tolentino Salone with counsel, F. Randall Cunliffe, Assistant Attorney with counsel, Attorney General Sean Brown Brown
10 10 on behalf of the People of behalf of of Guam, and Probation. (Minute Entry (CF0313-21-0l), l-O 1), Dec. 20, 2022).
11 11 At the hearing, Probation advised the court that Salone Salone completed all his conditions and that the
12 12 pending was only thing pending was restitution.
restitution. (Digital
(Digital Recording
Recording atat 2:12:53
2:12:53 (CF0313-21-01),
(CF0313-21-01), Dec. 20,
13 13 Whenasked 2022). When askedabout about the
the issue
issue of
ofrestitution, AAG Brown restitution, AAG Brown indicated indicated that
that there was difficulty 14 14 in finalizing it with the victim because trial was was ongoing:
ongoing:
15 15 COURT: Excellent, excellent job job Mr. Salone. He's completed everything.
Mr. Salone. everything. Only pending item
item is
is the
the restitution amount. Did we liquidate that amount Mr. Brown?
16 16 AAG BROWN: Your Your Honor, Honor, II don't,
don't, II don't
don'tthink
thinkwe did. IfIfII think wedid. think about about itit there
17 17 might have been somesome compensation compensation by by criminal criminal injuries
injuries compensation and I was 18 18 waiting for the the victim to kind of of finalize finalize things for us but becausebecause we're in in trial trial
actively it's kind of
of hard to talk to the victim. So, I think we might to the victim. So, I think we might need need to come 19 19 back. Plus, I think the defendant only plead back. Plus, think the defendant only plead guilty guilty recently
recently so I don't think there's 20 20 a problem with continuing this for a few few more more months
months to to see where we're at. at. If it's 21 just restitution we can move that to collections court if that's all that's left, but once a substantial period of time substantial period time has gone by.
22 22 Id atat2:2:13:13. Id 13:13. The court then placed Salone on unsupervised probation, without objection from 23 23 AAG Brown AAG Brown or or Attorney Cunliffe:
24 24 COURT: Okay,
Okay,Mr. Mr. Salone,
Salone, you
you did
did your
your end,
end, you
you did
did your
your part
part of
of the deal. The
25 only thing that's
that's left
left to work
work out
out is the payment
payment of restitution. The court is going to ofrestitution.
26 26 of your relieve you of your obligation obligation to check in okay.
okay. It will be an unsupervised period of time until we get of get that restitution dollar amount ordered, okay.
27 27 SALONE: Yes, Your
Your Honor. Thank you.
28
People People v.
v. Moore
Case No. CF0313-21 Decision Decision and and Order
Page 8 of14
COURT: COURT: So Soyeah,
yeah, just
just don't
don't get
get in
in trouble
trouble again.
again. We will
will notice
notice you
you for
for another
another
1 hearing once we get
get the
the dollar
dollar amount,
amount, if if any, of restitution, okay?
2 SALONE: SALONE: Yes,
Yes,Your
YourHonor.
Honor. Thank
Thank you.
3 Id. atat2:l5:05.
2:15:05. The
Thefollowing
followingmonth,
month,counsel
counsel for
forSalone
Salone submitted
submitted an
an Order for Return
Return of
4 Defendant's Defendant's Passport Passport on January 18,2023, January 18, 2023,which
whichwas
wassigned
signedby
by Judge
JudgeTolentino
Tolentino and
and filed
filed on
5 January 24, 2023. January 24, 2023.
6 In light
light of
ofthe
the above,
above, the
the Court
Court does
does not
not find
find that
that the Government
Government failed to object to 7 Salone's Salone's request request to
to relocate
relocateto
tothe
the mainland
mainland on
on December
December 20,
20, 2022, because
because one
onewas
wasnot
notformally
formally
8 made made on the the record
record at
at that
that hearing.
hearing. The
The Court
Court Eurther
further does not find
find that
that the
the Government
Government
9 represented to the court at the the December
December 20,
20, 2022
2022hearing
hearingthat
thatSalone
Salonscomplied
complied with
with his terms
terms of
of
10 10 probation or that probation or that itit represented representedto
to the
the court
court that
thatSalone
Salonstestified
testifiedtruthfully
truthfullyatattrial.
trial. Rather,
Rather, it
11 11 appears thatprobation appears that probationadvised advisedthe
thecourt
courtthat
thatSalone
Salonecompleted
completed all
all his
his conditions
conditions of
of probation
probation and
12 12 that it was the the presiding
presiding court itself that told Salone"you ''you did
did your
your part
part of
ofthe
the deal." There was
13 13 no specific specific statement that Salone statement that Salone testified truthfully at trial by the the Government
Government at
at the
the hearing.
hearing.
14 14 The Government did not comment commenton
onthe
theveracity
veracityof
ofSalone'
Salone's testimony
testimony at
attrial.
trial. The Government
15 15 noted that Salone had only recently recently changed
changed his
his plea
plea and
and asked for
for the
the matter to be brought back 16 16 in a couple of of months
months to address restitution. Both address restitution. Both the the Government
Government and
and the presiding court noted 17 17 that trial was that trial was still still ongoing.
ongoing. Therefore,
Therefore,the
theCourt does not
Court does not find
find the
the Government
Government violated
violated its
its duty
duty
18 18 of of candor candor at at the
the hearing
hearing nor
nor does
does itit find
findthe
theGovernment
Government committed
committed "flagrant
"flagrant prosecutorial
prosecutorial
19 19 misconduct" and and will
willnot
notdismiss
dismissthis
thismatter
matterunder
under that
that basis.
20 20 B. Salone's
Salone's Deferred
Deferred Plea
PleaAgreement
Agreement in
in CF0313-21-01
CF0313-21-01
21 Although Salons Although Salone was
was placed
placed on
on unsupervised by the unsupervised probation by the court presiding presiding over his
22 case in CF0313-21-01, the Court CF0313-21-01, the Couit notes that his deferred probationary probationary term does not expire until 23 23 June2025. June 2025. Salone's Salone's deferred probation probationterm
termisisfor
foraaperiod
periodof
ofthree
three(3)
(3) years.
years. See Deferred Plea
24 24 Agreement (CF0313-21-01), (CF0313-21-01 ), Aug. 11, 11, 2022.
2022. As
Ashe
hechanged
changedhis
hisplea
pleaininJune
June 2022,
2022, the
the court
court
25 technically still has jurisdiction over Salone until has jurisdiction until June June2025.
2025. Salone's
Salone's plea
plea agreement
agreement provides
26 in in relevant part:
part:
27 27 Pursuant Pursuant toto this
this agreement,
agreement, Defendant
Defendantshall,
shall,in
in good
good faith,
faith, cooperate
cooperate with any
any
28 investigation by the the government
government into
into the
the events
events described
described inin the
the Indictment
Indictment and
and
People v. Moore Case No.
No. CF0313-21
CF0313-21
Decision Decision and and Order
Page 9 of14
related police report for for CF0313-21
CF0313-21 and and GPD
GPD Report No. 20-25884.
20-25884. Defendant
Defendant
1 shall make
makehimself
himself available
available to
to be
beinterviewed
interviewed byby any
anylaw
law enforcement
enforcementofficer,
officer, law
2 enforcement enforcement representative, and/or and/or anyanyagent
agentofofthe
theOffice
Officeof
of the
theAttorney
Attorney General;
General,
3 which requirement shall be requirement shall be accomplished accomplishedby byproviding providing his
hisProbation
ProbationOfficer
Officer with
complete and
and accurate contact information accurate contact information and and complying
complying with
with aa continuing
continuing duty
duty
4 to update hiscontact
update his contactinformation.
information.AAwillful
willful effort to avoid
avoid detection
detection by the above
5 referenced government entities shallshall be considered a substantive substantiveviolation
violation of the
terms terms of this
this agreement. Defendant agrees agreement. Defendant agrees that he shall that he shall testy
testify truthfully andand 6 completely inin any completely any matter matter requiring
requiring his testimony which nis testimony related to the when is related the 7 aforementioned cases aforementioned cases andpoliee police reports.
*ma
***
8
9 If Ifthe
the Defendant fails to cooperate cooperate with
withpolice
police or the
theOffice
Office of the Attorney General in preparation of trial
preparation of trial and
and at
attrial,
trial, then
thenthe
thedeferred
deferredpleapleaofof guilty guilty will be entered
entered
10 and the
the Defendant
Defendantwill
will be sentenced
sentenced to to serve
serve up
up toto four
four ((4) years ofof incarceration incarceration
11 at the the Department
Departmentof of Corrections, Corrections, Mangilao.
Mangilao.
***
***
12 12
13 13 Defendant agrees Defendant agrees to testifytruthfully to testy truthfullyagainst againsthis
hisco-defendant,
co-defendant, Nicholas
Nicholas Wayne
Wayne
Moore, at any court Moore, court proceeding.
14 14 (Deferred Plea Agreement at at 5;
5, 7;
7, & 88 (CF0313-21-0l))
(CF0313-21-01)) (emphasis added). In (emphasis added). In light light of
of these
these
15 15 provisions, the Court finds that that Salone
Salone may
may still
still be
be subject
subject to
to testify at Defendant's trial in in the
16 16 instant matter. instant matter. See, Ag., See, e.g., Miles
Miles v.
v. State,
State, 85 S.W.3d
S.W.3d 907,
907, 914
914 (Ark. 2002)
2002) ("Under
("Under the
the
17 17 circumstances of the plea plea agreement in this case, case, we
we are
are not
not persuaded
persuadedthat
thatthe
theword
word'trial'
'trial' applies
18 18 solely to to the
the first
first trial
trial that
that ended
ended in
in aa mistrial.
mistrial. Clearly, the intent intent of the
the parties was for the
parties was the
19 19 testimony to be used testimony to used in in a trial
trial deciding
deciding the
the issue
issue of
of guilt.
guilt. Viewing the
the plain
plain language
language of the
the
20 20 agreement as as aa whole,
whole, we conclude that
that [the
[the defendant]
defendant] was
was obligated
obligated to give
give truthful
truthful testimony
21 in in a proceeding leading to an adjudication adjudicationof
of the
thelegal
legal issues.").
issues.").
22 C. Salone's
Salone's Trial
TrialTestimony
Testimony in
in Fall
Fall 2022
2022
23 23 The Court
Court next
next turns to the
the issue
issue of
of the Government's
Government's representations representations that Salone did not 24 24 testify truthfully truthfully and the Government and whether or not the Government wants wantsto
to call
call him
him as
asaawitness.
witness. The Court
25 notes that that itit has
has varying
varying statements from different statements from different Assistant Assistant Attorney
Attorney Generals and
and in different
26 26 proceedings. Defendant Defendantsets
sets forth
forth statements
statements made by now retired Assistant Attorney General made by General J.
27 27 Basil O'Mallan O'Mallan III
III before
beforeaadifferent
differentjudge
judgeininaadifferent
differentmatter
matter involving
involving Defendant
Defendant and
and a
28
People v. Moore Case No.
No. CF0313-21
CF0313-21
Decision Decision and and Order
Page Page 10
10 of14
1 statement set forth in email from Assistant Attorney General Christine S. Tenorio, both of which statement
2 discuss the discuss the issue issue of
of Salone
Salone having
having potentially
potentially committed
committed perjury.
perjury. See Mot. Compel at 2, Nov.
3 15, 2023;
2023, Mot.
Mot. Dismiss,
Dismiss, Dec.
Dec. 11, AtaaJuly
2023. At
ll, 2023. July331, 2023 Motion l, 2023 Motion Hearing
Hearing in CF0314-21 8 before in CF0314-218
4 Judge Maria T.
T. Cenzon,
Cenzon, AAG
AAG O'Mallan represented the following:
5 Your Honor, Mr. Salone is not on my witness list. That's not Your not an oversight, that was multi-day cross
an intent based on his multi-day cross examination examinationbyby Mr.
Mr. Luj
Lujan in the
the felony 313-
6 basically he has
21 case where basically has proved proved untrustworthy.
untrustworthy. I do not feel feel comfortable
comfortable
7 putting someone on the stand who has a great potential potential to
to perjure
perjurehimself.
himself. That's
why l'm
I'm not
not planning
planning on
on bringing him in.
8 8
9 (Digital Recording at 10:47:16 (CF0314-21), (CF0314-21), Jul.
Jul. 31,
31, 2023).
2023). When
When asked about the cooperation
10 10 agreement agreement Salone was subject et to
to by
by the
the court,
court, AAG O'Ma1lan the following:
O'Mallan stated the following:
11 It is a full
full cooperation
cooperation plea
plea agreement.
agreement. But I mean
mean based on his appearance on the witness stand in the other case I don't feel comfortable putting him on on the
the stand.
stand. I
12 12 don't think don't think he's
he's trustworthy.
trustworthy.
13 1 Id atat l0:48:08. Id Then,when 10:48:08. Then, whenasked askedabout
aboutwhether
whetherorornot
notthe
the Government
Governmentwould
wouldbe
be able
able to
to assist
assist
14 defense counsel defense counsel in secur securing Sa
Salone's aappearance
ppea nce for
for trial CF0314-21, AAG O'Ma ia l in CF0314-21, O'Mallan lla
15 15 responded: 16 16 my concern I mean, my concern is
is itit almost
almost feels like suborning suborning perjury. This guy has indicated 17 17 he's not trustworthy he's not trustworthy and
and that's
that's why
whyIIwas
was aa little
little surprised
surprised by the request. But But I can
contact, I can make
make an attempt to to contact contact Mr.
Mr. Salone
Salons and
and see
see if
ifhe's
he's willing
willing to
to come
come
18 18 back but I have
have no intention of using him.
19 19 Id atat l0:48:53.
10:48:53. Subsequently,
Subsequently, on
on October
October 24,
24, 2023,
2023, Attorney
Attorney Gavras
Gavras emailed AAG
AAG Tenorio
Tenorio
20 20 Government'sassistance
requesting the Government's assistanceininsecuring securingthe
thetestimony
testimonyofofSalome
Salone at
at the upcoming
upcoming trial.
21 (Mot. Dismiss, Attachment). AAG Tenorio Attachment). AAG Tenorio responded responded with
with the following statement:
22 Based Based on
on Mr. Salone's
Salone's prior
prior testimony
testimonyatat the
the first
first trial, we believe this satisfied any 23 23 obligation under obligation his plea under his plea agreement.
agreement. WeWe are
are not
not in
in contact
contact with
with Mr.
Mr. Salome
Salone and wewe
do not currently know of his currently know his whereabouts.
whereabouts. We would would have have nono objection
objection to you
24 using his prior testimony, as it would would fall
fall under
under aa hearsay
hearsay exception.
exception. However, it
25 should be understood that the AG's office does AG's office does not
not intend
intend to
to suborn
suborn perjury.
26 26
27 27 88 CF0314-21 CF0314-21isisaaseparate separate pre-trial
pre-trial matter involving Defendant and is assigned to to Judge
Judge Cenzon. Defendant is Cenzon. Defendant is also 28 represented by Attorneys Attorneys Lucan,
Lujan, Phillips, and Gavras in in that matter.
People v.
v, Moore
Case No.
No. CF0313-21
CF0313-21
Decision Decision and and Order
Page 11
11 of14
of14
l Id.
2 Contrastly, at the January 2024 hearing January 31, 2024 the instant matter, hearing in the AAG Brown stated that matter, AAG
3 if Salome were brought Salone were to Guam, brought to he would want him to testify at trial.
Guam, he (Digital Recording trial. (Digital at Recording at
4 3:09:40, Jan. 31, 2024) ("I 31, 2024) have no
("I have If he is able to get on a plane and no objection to him testifying. If
5 here, Iwould fly out here, loveto wouldlove have him
to have testify again.").
him testify AAG Brown again."). AAG noted that Salone's testimony Brown noted
6 inconsistencies but may have had inconsistencies indicated that but indicated of having testified for that it was the inevitable result of 7 hours or over fourteen hours so. Id. at or so. the Government's 3:00:43; 3:09:32. Additionally, the at 3:00:43, Government's Opposition to
8 December 2023 the December Motion sets 2023 Motion forth that "there are sets forth Salone did or did not are no guarantees that Salone 9 commit perjury. Witnesses change their answers commit routinely without answers routinely [there]being without [there] perjury." (Opp'n beingperjury." (Opp'n
10 10 at 2, Dec. 19, 2023).
11 11 O'Mallan or Neither AAG O'Mallan AAG Tenorio or AAG are currently Tenorio are assigned to currently assigned this matter, and AAG to this
12 12 statements were O'Mallan's statements O'Mallan's made in were made completely separate in aa completely matter. Their separate matter. statements imply that Their statements
13 13 perjurious testimony. The Salone may have made penurious currently assigned Thecurrently Assistant Attorney General assigned Assistant
14 14 to have does not appear to the same opinion.
have the As this opinion. As Assistant Attorney General will be handling this Assistant
15 15 trial, the the case at trial, Court finds the Court that his finds that opinion regarding his opinion witness should control, and regarding Salone as a witness
16 16 notes that further notes the task that the of evaluating task of and weighing evaluating and evidence and inconsistencies of testimony weighing evidence
17 17 lies within the lies within Nonetheless, the purview of the jury. Nonetheless, the purview Court also the Court orders the also orders Government to the Government
18 18 the other reconcile the statements made by the prosecutors at the Office of other prosecutors the Attorney of the General.
Attorney General.
19 19 Government formally Should the Government change its formally change position regarding its position Salone's trial regarding Salone's testimony, itit shall trial testimony,
20 20 immediately inform the Court and defense counsel, and shall also specifically identify also specifically any known identify any known
21 perjury committed instances ofpeijury by Salone committedby during his testimony. See, Salone during California v.v. Trombetta, g., California
See, e.g., Trombetta,
22 485 (1984)
467 U.S. 479, 485 ("The most (1984) ("The the access-to-evidence cases impose upon most rudimentary of the
23 23 prosecution a constitutional the prosecution obligation to constitutional obligation report to to report the defendant to the the trial defendant and to the court trial court
24 24 whenever whenever government witnesses lie government witnesses under oath.").
lie under
25 Lastly, AAG Lastly, represented to the AAG Brown represented Court at the Court the January
at the 31, 2024 hearing that the January 31,
26 26 Government has Government some efforts has made some Salons. This included contacting Attorney Cunliffe efforts to contact Salone.
27 to see if Salone would available for trial, would be available noting the existence of the plea agreement and that trial, noting
28 witness in he was still a witness this case.
in this (Digital Recording case. (Digital at 3:01:05, Recording at Jan. 31, 3:0l:05, Jan. 2024). AAG Brown 31, 2024).
People People v. Moore Case No. CF0313-21 CF0313-21
Decision Decision and and Order
Page 12 of14
of
1 he had indicated that Salone advised him via email that he young kids had young and was
kids and employed and would was employed
2 to come back to Guam.
not be able to Id.atat3:0l:27.
Guam. Id Thesestatements 3:01:27.These clearly contrast statementsclearly those set contrast those
3 forth in the email correspondence indicating that the Office of the Attorney General was not in
4 contact with contact Mr. Salone with Mr. and did
Salone and not currently did not know of currently know his whereabouts.
of his further Brown further
whereabouts. AAG Brown
5 indicated that it was not a "for was not sure thing"
"for sure that Salone thing" that would not Salone would come back but acknowledged not come
6 he didn't really want to come back.
didn't really AAG Brown back. AAG represented that the Government could continue Brown represented
7 efforts and additionally suggested that the Court hold a hearing with Attorney Cunliffe making efforts
8 fully ascertain and Salone to bully whether or not Salone would be willing ascertain whether to return willing to for trial.
return to Guam for
9 At this time, because Defendant has asserted Defendant has his right asserted his to aa speedy right to trial and speedy trial said trial is set and said
10 10 to commence commence on April 30, on April off island witness testimony.
30, 2024, there is limited time to coordinate off 11 1 The Court hereby orders the Government to continue Government to its efforts continue its ability to efforts to ascertain Salone'ss ability 12 12 immediately return Guam to return to Guam testify at to testify of the provisions set forth in his deferred at trial in light of
113 agreement and plea agreement to advise and to the Court
advise the ofsaid
Court of efforts at
said efforts set for Friday, at the Pre-Trial Conference set 14 14 April 19, 2024 at 10:00 2024 at Court will The Court
l0:00 a.m. The also notice will also Salone's counsel notice Salone's to appear counsel to for the Preappear for
15 15 Trial Salone be Should Salons
Conference. Should
Trial Conference. unable toto appear beunable personatat trial, appear ininperson despite all trial, despite reasonable all reasonable
16 16 efforts being made, efforts being Court will further made, the Court address the further address of his the use of prior trial his prior testimony as an trial testimony
17 17 of Evidence 804(a)(5)
unavailable witness under Guam Rules of (b)(l). 9 804(a)(5) and (b)(l).9
18 18
19 9 is aa preference for live testimony, as there is
acknowledges there
Court acknowledges
The Court "gives the as such testimony "gives the jury (or other jury (or trier
other trier
of opportunity to of fact) the opportunity observe the to observe demeanor of the demeanor the witness of the whiletestifying witnesswhile [T]hrough live .... [T]hrough
testifying.... testimony, and live testimony,
20 this procedure only, the persons who are to decide upon the evidence have an opportunity of of observing thethe quality, age, education, understanding, behavior, and inclinations of the witness." United States v. Yids, 498 F.3d 945, 950 v. Yida,
21 21 (citations omitted).
(9th Cir. 2007) (citations "Demeanorisis of omitted). "Demeanor ofthethe utmost importance in utmost importance the determination of in the of the credibility of 22 a witness .... The witness.... demeanor of The demeanor witness ...
of a witness ... is 'wordless language."'
is 'wordless (quoting Gov't't of language."' Id (quoting Virgin Islands v. Aquino, ofVirgin
738 F.2d 540, 548 (3d Cir. 1967)).
(ad Cir. Nonetheless, GRE 1967)). Nonetheless, GRE 804804 provides in relevant part:
provides in
23 23 (a) Definition unavailability. "Unavailability of unavailability.
Definition of as a witness" includes "Unavailability as situations in includes situations the in which the
24 declarant --
* * *
***
25 is absent (5) is from the hearing and the absent from proponent ofa the proponent to procure of statement has been unable to the declarant's (or in attendance (or
declarant's attendance ofa hearsay exception in the case of under subdivision exception under (6)(2), subdivision (b)(2),
26 26 declarant's attendance or testimony) by process or other reasonable means.
the declarant's
(4), the
(3), or (4),
* * *
27 27 * ** (b) Hearsay exceptions.
exceptions. The following are not excluded by the following are hearsay rule the hearsay the declarant rule ifif the is declarant is
28 unavailable as a witness:
People v. Moore Case No. CF03 13-21 CF0313-21
Decision and Order
Page 13
13 of14
of14
1 CONCLUSION
2 For For the foregoing
foregoing reasons,
reasons, the Court does not find the Government committed "flagrant 3 prosecutorial misconduct"and prosecutorial misconduct" andDENIES DENIES the
the portions
portions of Defendant's
Defendant's Motions
Motions that
that request
request
4 dismissal. The dismissal. The Court, Court, however, the Government however, ORDERS the Government to continue continue its efforts
efforts to
to ascertain
ascertain
s 5 Salons is able to immediately return to whether or not Salone to Guam Guam to
to testify
testify at trial.
trial.
6
IT IS
IS SO ORDERED this 17th
ORDEREDthis 17th day
day of
of April, 2024.
7
8
9 »
10 10 HONORABLE VERNON p. P. PEREZ Judge, Superior Court of Guam Judge,
11 11
12 12
13 13
14 14
15 15
16 16
17 17
18 18
19 19 SERVICE VIA vIA EMAIL
I acknowledge that an electronic 20 copy of copy of the
the original
original was e-mailed
e-mailed to:
to:
AS A&.I Uf,,J-Go.t1r11§.,M•fl.;llv,s, - Gavfa-§,M~fA'°"W$r
21 ,_,....,,....
p.L-_l¢~n . Date: e Date: ~mim f .e : Q=s1.~.
Mme: q:5t,,.,..,.. .
22 A nh,.,;,
lvniv a~""'
n ........-
23 Deputy Clerk, Deputy Clerk, S
s error Court of Guam
24
25 (1)
(1) Former
Former testimony.
testimony. Testimony
Testimony givengivenasas aawitness witness at
at another
another hearing
hearing of the
the same
same or a
different different proceeding,
proceeding, oror in
in aa deposition
deposition taken
taken in compliance with law in in the the course
course of the
the
26 same or another
another proceeding,
proceeding, if if the party party against
againstwhom
whomthe thetestimony
testimonyisisnow
nowoffered,
offered, or, in
a civil
civilaction
actionororproceeding,
proceeding,aapredecessor
predecessor inininterest, interest, had
had an
an opportunity
opportunity and
and similar
similar
27 motive motive toto develop
developthe
the testimony
testimony by by direct,
direct, cross,
cross, or
or redirect
redirect examination.
28 Guam R.
R. Evid.
Evil. 804.
804. 4
People v. Moore CaseNo.CF0313-21 No. CF0313-21
Decision Decision and and Order
Page 14 of14 Page 14
People v. Moore (People v. Moore) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.