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.
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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.
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
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 14 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 14 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 Pre- appear 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.
IT IS IS SO ORDERED this 17th ORDEREDthis 17th day day of of April, 2024. 7
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
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
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