People v. Moore
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Opinion
Fl L FILED 1 CLERKOFCUi3¥<'T Cl.ERK OF COURT 2 2 za2ssEp 2a12:pm2tl/ 2015 SEP 20 PM f0 3 5?~UPERIG§~? G§URT SUPERIOR COURT 4 OF GUAM G QUAM
6 IN THE SUPERIOR COURT COURT OF OF GUAM GUAM
7 7 PEOPLE OF GUAM, GUAM, )) CRIMINAL CRIMINAL CASE no. NO. CF0314-21 CF0314-21 8 8 )) ) 9 vs. ) DECISION DECISION AND AND ORDER ORDER RE. 10 ) DEFENDANT'S MOTION TO ) COMPEL COMPEL BRADY/GIGLIO BRADY/GIGLIO 11 11 ) MATERIAL MATERIAL AND AND DEFENDANT'S DEFENDANT'S NICHOLAS WAYNE MOORE, NICHOLAS WAYNE ) EMERGENCY MOTION TO 12 12 DOB: DOB:04/08/1998 04/08/1998 ) COMPEL COMPEL BRADY/GIGLIO BRADY/GIGLIO 13 13 ) MATERIAL MATERIAL AND AND FOR Defendant. Defendant. ) APPROPRIATE APPROPRIATE REMEDIES 114 \ 115 INTRODUCTION 116 This matter came came before before the the Honorable HonorableMaria Maria T. T. Cenzon Curzon on on August 11, 2025, 2025, for for a Pre- 117
18 Trial Conference, Conference, during during which which the the Court Court heard heard oral argument Defendant Nicholas argument on Defendant Nicholas Wayne 18
19 19 Moore's Moore's ("Moore" ("Moore"ororthe the"Defendant") "Defendant")Motion Motionto toCompel Compel Discovery Discovery of ofBrady/Giglio Brady/Giglio Material Material
20 (the "Motion "Motionto to Compel") Compel")and andcompanion companion Emergency Emergency Motion Motion to to Compel Compel Brady/Giglio Material 21 From Federal Federal Prosecution Prosecution Team Team Members, Members, For Continuance of Trial, and Continuance of and For Appropriate 22 Sanctions or or Dismissal Dismissal (the (the"Emergency "Emergency Motion")(the motions are Motion")(the motions are collectively collectively referred referred to to herein herein 23
24 as the "Brady/Giglio Motion" Motion"or orthe the "Motion"), "Motion"),which whichwere weresubmitted submittedon onAugust August66and and 7, 7, 2025, 2025,
25 2 respectively. 1 respectively.1
27 1 On August 8, 2025, the People filed its Opposition to Def's Motion to Compel and its Response to Def' Emergency 1 On August 8, 2025, the People filed its Opposition to Defs Motion to Compel and its Response Defs Emergency 28 Motion to Motion to Compel Compel Brady/Giglio Brady/GiglioMaterial Materialfrom fromFederal FederalProsecution ProsecutionTeam Teammembers, members, for Continuance of Trial, and for Appropriate Sanctions Sanctions or or Dismissal. Dismissal. On August 11, On August 2025, the ll, 2025, the Defendant Defendant filed filed his his Reply Reply to to People's People's Opposition Opposition to Defendant's Motion Motion to Compel and Defendant's Reply Reply to to People's People's Response toto Emergency Emergency Motion. Motion.
People People v. v. Moore,Criminal CriminalCase Case No. No. CF0314-21 CF0314-21 Decision Decision And And Order Order Re. Re. Defendant's Motion Motion to Compel Brady/Giglio Brady/Giglio Material Materialand and Emergency Motion Emergency Motion Page Page 1I of of 32 I Present at the Present at the hearing hearing were were Defendant Defendant Moore Moore with with defense counselsAttorney defense counsels Attorney David David J. 2 Lujan, an,Attorney AttorneyMichael Michael F. F. Phillips, Phillips, and and Attorney Attorney William L. Gavras, William L. Gavras, all all in-person (collectively, 3 3
Counsels"). Representing "Defense Counsels"). Representing the the People People of Guam ("the ("the People") were were Assistant Assistant Chief Chief 4
5 Prosecutor Grant A. A. Olan, and Assistant Attorneys General Christine S. Tenorio and Valerie A.
66 Nuesa, appearing in Nuesa, also appearing in person person (hereinafter (hereinafter referred referred to as as the the "People," "People," the the "Prosecution, "Prosecution," as
7 "OAG" or "OAG" or individually, individually, as as "Olen," "Olan," "Tenorio" "Tenorio" or or "Nuesa," "Nuesa," as as appropriate). 8 The gravamen The gravamen of Defendant's Defendant's Motion is that that the the Government Government has failed failed to provide provide 9 or impeachment exculpatory or under Brady impeachment material under and its progeny, including Gi Brady and Giglio. ul Specifically, 10 10
11 11 Defendant seeks information that Troy Troy Damian, a key witness for the the People, previously served
12 as an informant for the federal government. 13 13 of the information within its possession to the The People respond that it has provided all of 14 14 satisfying its Defendant, thereby satisfying its Constitutional Constitutional due due process obligations obligations and and in in compliance compliance with 15 16 the holdings and principles outlined in Brady and and Gigolo. Gigi/a. Defendant seeks an Order of of the Court 16
17 17 compelling the following: following:
18 18 I. Order 1. the Prosecution Order the Prosecution to to "scour" "scour" the the files files of of the the U.S. U.S. Attorney's Attorney's Office, Office, the the U.S. U.S. 19 Marshal's Marshal's Office Office and and Naval Criminal Criminal Investigation Investigation Service (NCIS) for Brady/Giglio 20 2025); Material. Motion at p. 8 (Aug. 6, 2025), 21
22 2. Order Orderthe theProsecution Prosecutiontotoreport reporttotothe the Court Courtand and Defendant Defendant the the results results of of the search to
23 include ' identifying the identifying of files the type of files itit reviewed, reviewed,"who "whoparticipated participatedininthe the search, search, what 24 type of of information information was sought and what degree of of confidence confidence the government government has 25 that its its search search yielded the correct results and and why why the government's governnlent's confidence is at 26 the the level reported." Id; level reported." Id; 27 -
People People v. Moore, Criminal CriminalCase Case No. No. CF0314-2 CF0314-21l Defendant's Motion Decision And Order Re. Defendant's Motion to to Compel Compel 8raa§//Giglio Material and Brady/Giglio Material and Emergency Motion Emergency Motion Page Page 2 of 32 l 3. Order Order compelling compelling disclosure disclosure and, and, specifically, to "[d]irect specifically, to "[d]irect the the Attorney Attorney General's General's 22 Office Office to to diligently diligentlypursue pursue and obtain the the material materialfrom fromthe theU.S. U.S.Attorney's Attorney's Office, Office, 3 with affidavits with affidavits documenting efforts... documenting efforts ...." Emergency Emergency Motion at at p. p. 5 (Aug. 7, 7, 2025), 2025); 4
5 4. Grant Grantaacontinuance, Id at continuance; Id. at p. 6.
6 5. Impose Imposesanctions sanctions or or dismissal dismissal ififnon-compliance non-compliance persists. Id persists. Id. 7 6. Other Otherrelief reliefas as appropriate. Id appropriate. Id. 8 Upon Upon review review of ofthe thepleadings pleadingson onfile fileininthis thiscase, case,the theapplicable applicablestatutes, statutes, rules, rules, and and case 9
law, and law, and after after considering considering the the arguments arguments of of the the parties parties during the oral argument argument of of this this matter, matter, 10
11 11 the Court now the Court now issues issuesthis thisDecision Decisionand andOrder OrderDENYING DENYING Defendant's Motions. Motions.
12 12 RELEVANT RELEVANT FACTS FACTS 13 13 On July July 15, 2021,Moore 15, 2021, Moore and and Troy Troy Ryan Damian ("Dalnian") were Damian ("Damian") were each each charged charged with 14 14 Aggravated Murder Aggravated Murder (As 1st Degree (As a let Degree Felony), Felony), Special Special Allegationz Allegation: Deadly Weapon Weapon Used in in 15
16 Commission of of a Felony; Felony, Murder Murder (As 1st Degree Felony), Special (As a let Special Allgation: Deadly Weapon 16
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Fl L FILED 1 CLERKOFCUi3¥<'T Cl.ERK OF COURT 2 2 za2ssEp 2a12:pm2tl/ 2015 SEP 20 PM f0 3 5?~UPERIG§~? G§URT SUPERIOR COURT 4 OF GUAM G QUAM
6 IN THE SUPERIOR COURT COURT OF OF GUAM GUAM
7 7 PEOPLE OF GUAM, GUAM, )) CRIMINAL CRIMINAL CASE no. NO. CF0314-21 CF0314-21 8 8 )) ) 9 vs. ) DECISION DECISION AND AND ORDER ORDER RE. 10 ) DEFENDANT'S MOTION TO ) COMPEL COMPEL BRADY/GIGLIO BRADY/GIGLIO 11 11 ) MATERIAL MATERIAL AND AND DEFENDANT'S DEFENDANT'S NICHOLAS WAYNE MOORE, NICHOLAS WAYNE ) EMERGENCY MOTION TO 12 12 DOB: DOB:04/08/1998 04/08/1998 ) COMPEL COMPEL BRADY/GIGLIO BRADY/GIGLIO 13 13 ) MATERIAL MATERIAL AND AND FOR Defendant. Defendant. ) APPROPRIATE APPROPRIATE REMEDIES 114 \ 115 INTRODUCTION 116 This matter came came before before the the Honorable HonorableMaria Maria T. T. Cenzon Curzon on on August 11, 2025, 2025, for for a Pre- 117
18 Trial Conference, Conference, during during which which the the Court Court heard heard oral argument Defendant Nicholas argument on Defendant Nicholas Wayne 18
19 19 Moore's Moore's ("Moore" ("Moore"ororthe the"Defendant") "Defendant")Motion Motionto toCompel Compel Discovery Discovery of ofBrady/Giglio Brady/Giglio Material Material
20 (the "Motion "Motionto to Compel") Compel")and andcompanion companion Emergency Emergency Motion Motion to to Compel Compel Brady/Giglio Material 21 From Federal Federal Prosecution Prosecution Team Team Members, Members, For Continuance of Trial, and Continuance of and For Appropriate 22 Sanctions or or Dismissal Dismissal (the (the"Emergency "Emergency Motion")(the motions are Motion")(the motions are collectively collectively referred referred to to herein herein 23
24 as the "Brady/Giglio Motion" Motion"or orthe the "Motion"), "Motion"),which whichwere weresubmitted submittedon onAugust August66and and 7, 7, 2025, 2025,
25 2 respectively. 1 respectively.1
27 1 On August 8, 2025, the People filed its Opposition to Def's Motion to Compel and its Response to Def' Emergency 1 On August 8, 2025, the People filed its Opposition to Defs Motion to Compel and its Response Defs Emergency 28 Motion to Motion to Compel Compel Brady/Giglio Brady/GiglioMaterial Materialfrom fromFederal FederalProsecution ProsecutionTeam Teammembers, members, for Continuance of Trial, and for Appropriate Sanctions Sanctions or or Dismissal. Dismissal. On August 11, On August 2025, the ll, 2025, the Defendant Defendant filed filed his his Reply Reply to to People's People's Opposition Opposition to Defendant's Motion Motion to Compel and Defendant's Reply Reply to to People's People's Response toto Emergency Emergency Motion. Motion.
People People v. v. Moore,Criminal CriminalCase Case No. No. CF0314-21 CF0314-21 Decision Decision And And Order Order Re. Re. Defendant's Motion Motion to Compel Brady/Giglio Brady/Giglio Material Materialand and Emergency Motion Emergency Motion Page Page 1I of of 32 I Present at the Present at the hearing hearing were were Defendant Defendant Moore Moore with with defense counselsAttorney defense counsels Attorney David David J. 2 Lujan, an,Attorney AttorneyMichael Michael F. F. Phillips, Phillips, and and Attorney Attorney William L. Gavras, William L. Gavras, all all in-person (collectively, 3 3
Counsels"). Representing "Defense Counsels"). Representing the the People People of Guam ("the ("the People") were were Assistant Assistant Chief Chief 4
5 Prosecutor Grant A. A. Olan, and Assistant Attorneys General Christine S. Tenorio and Valerie A.
66 Nuesa, appearing in Nuesa, also appearing in person person (hereinafter (hereinafter referred referred to as as the the "People," "People," the the "Prosecution, "Prosecution," as
7 "OAG" or "OAG" or individually, individually, as as "Olen," "Olan," "Tenorio" "Tenorio" or or "Nuesa," "Nuesa," as as appropriate). 8 The gravamen The gravamen of Defendant's Defendant's Motion is that that the the Government Government has failed failed to provide provide 9 or impeachment exculpatory or under Brady impeachment material under and its progeny, including Gi Brady and Giglio. ul Specifically, 10 10
11 11 Defendant seeks information that Troy Troy Damian, a key witness for the the People, previously served
12 as an informant for the federal government. 13 13 of the information within its possession to the The People respond that it has provided all of 14 14 satisfying its Defendant, thereby satisfying its Constitutional Constitutional due due process obligations obligations and and in in compliance compliance with 15 16 the holdings and principles outlined in Brady and and Gigolo. Gigi/a. Defendant seeks an Order of of the Court 16
17 17 compelling the following: following:
18 18 I. Order 1. the Prosecution Order the Prosecution to to "scour" "scour" the the files files of of the the U.S. U.S. Attorney's Attorney's Office, Office, the the U.S. U.S. 19 Marshal's Marshal's Office Office and and Naval Criminal Criminal Investigation Investigation Service (NCIS) for Brady/Giglio 20 2025); Material. Motion at p. 8 (Aug. 6, 2025), 21
22 2. Order Orderthe theProsecution Prosecutiontotoreport reporttotothe the Court Courtand and Defendant Defendant the the results results of of the search to
23 include ' identifying the identifying of files the type of files itit reviewed, reviewed,"who "whoparticipated participatedininthe the search, search, what 24 type of of information information was sought and what degree of of confidence confidence the government government has 25 that its its search search yielded the correct results and and why why the government's governnlent's confidence is at 26 the the level reported." Id; level reported." Id; 27 -
People People v. Moore, Criminal CriminalCase Case No. No. CF0314-2 CF0314-21l Defendant's Motion Decision And Order Re. Defendant's Motion to to Compel Compel 8raa§//Giglio Material and Brady/Giglio Material and Emergency Motion Emergency Motion Page Page 2 of 32 l 3. Order Order compelling compelling disclosure disclosure and, and, specifically, to "[d]irect specifically, to "[d]irect the the Attorney Attorney General's General's 22 Office Office to to diligently diligentlypursue pursue and obtain the the material materialfrom fromthe theU.S. U.S.Attorney's Attorney's Office, Office, 3 with affidavits with affidavits documenting efforts... documenting efforts ...." Emergency Emergency Motion at at p. p. 5 (Aug. 7, 7, 2025), 2025); 4
5 4. Grant Grantaacontinuance, Id at continuance; Id. at p. 6.
6 5. Impose Imposesanctions sanctions or or dismissal dismissal ififnon-compliance non-compliance persists. Id persists. Id. 7 6. Other Otherrelief reliefas as appropriate. Id appropriate. Id. 8 Upon Upon review review of ofthe thepleadings pleadingson onfile fileininthis thiscase, case,the theapplicable applicablestatutes, statutes, rules, rules, and and case 9
law, and law, and after after considering considering the the arguments arguments of of the the parties parties during the oral argument argument of of this this matter, matter, 10
11 11 the Court now the Court now issues issuesthis thisDecision Decisionand andOrder OrderDENYING DENYING Defendant's Motions. Motions.
12 12 RELEVANT RELEVANT FACTS FACTS 13 13 On July July 15, 2021,Moore 15, 2021, Moore and and Troy Troy Ryan Damian ("Dalnian") were Damian ("Damian") were each each charged charged with 14 14 Aggravated Murder Aggravated Murder (As 1st Degree (As a let Degree Felony), Felony), Special Special Allegationz Allegation: Deadly Weapon Weapon Used in in 15
16 Commission of of a Felony; Felony, Murder Murder (As 1st Degree Felony), Special (As a let Special Allgation: Deadly Weapon 16
17 17 Used in Commission of a Felony, Commission of Felony; and Aggravated Assault Assault (As 2nd Degree Felony), Special (As aa 2"'* Special
18 18 Allegations Allegation: Deadly Weapon Weapon Used in Commission of of a Felony. Felony.Indictment (July 15, 2021). 15, 2021). 19 19 I. 1. Damian's Damian's Charges Charges are are severed severed from CF0314-21 CF0314-21 and, and,in inexchange exchange for his his cooperation 20 in the instant case, he pled guilty to different charges in CF0314-21-01. in the instant case, he pied guilty to different charges in CF0314-21-01.
21 21 On September 2, 2022, September 2, 2022, this this Court issued issued an an order order severing severing the the trial trial of of Defendant Defendant and and 22 22 Damian "for the Damian "for the purpose of adjudication purpose of adjudication of of these these charges, pursuanttoto88GCA charges, pursuant GCA §§ 65.35." 65.35." Order Order 23 2 Severing DefendantDamian Severing Defendant DamianFrom From CF314-21 CF3I4-21 (Sept. 2, 2022). chargesfiled 2022). The charges filed against against Damian 24 24 25 proceeded in Criminal Criminal Case Case No. No. CF0314-21-01. Id CF0314-21-0l. Id. 25
26 with With respect respect to to the the charges charges against against Damian Damian in in Criminal Criminal Case Case No. No. CF0314-21-01, CF0314-21-0l, the the 27 27 Court takes judicial notice of ofthe the following followingfacts, facts,pursuantto pursuant to Guam Guam Rules of of Evidence Evidence Rule Rule 201: 201: 28
People People v. Moore, Criminal CaseNo. Case No. CF0314-2 CF0314-21l Decision And Order Re. Re.Defendant's Motionto Defendant's Motion to Compel Compel Brady/Giglio Brady/Giglio Material Materialand andEmergency Emergency Motion Page Page 3 of 32 1 After After the the severance, severance, this court court held held several several hearings relating to the hearings relating the prosecution of the prosecution of 2 charges charges against against Damian Damian on on September 26, 2022 (parties (parties representing to the court that a resolution resolution 3 was being negotiated), negotiated); November November29, 29, 2022 2022 (parties (partiesrepresenting representing to to the the court court that that Damian Damian was 4
5 awaiting awaiting aa formal formal plea plea agreement); agreement); and and January January 31, 31, 2023 2023 (parties (parties informing informing the the court court that that
6 6 Attorney General's Office Office (OAG) (OAG)would wouldforward forwardplea pleaagreement agreementto todefense defense counsel counsel that week). that week).
7 See, Min. of ofFurther FurtherProceedings ProceedingsHearings Hearingsonon9/26/22, 9/26/22, 11/29/22 and 1/31/23. 11/29/22 and 1/31/23.The Thecourt court then 8 issued an Order Order vacating vacating further proceedings proceedings hearings hearings and and indicating indicating that that the matter would be set 9
for trial due due to the continued continued protracted protracted delay delay by by the the OAG in sending OAG in sending the agreed written plea 10 10
11 agreement to Damian's counsel. agreement to counsel. See Order Order Vacating Further Proceedings Hearing and Proceedings Hearing and Setting
1 12 Malterfor Matter Trial Trial (May (May 1, 1, 2023). 2023). 13 13 Subsequently, on May Subsequently, on May 3, 2023, the People submitted to the submitted to the Court a Plea Agreement and and 14 14 Information to resolve the case Information case against against Damian. Damian. The The Information Information charged charged Damian Damian with with Hindering Hindering 15 15
16 Apprehension(As Apprehension 3rd Degree (As a 3rd Degree Felony) Felony) and Disinterring Disinterring aa Corpse Corpse (As (As aa Misdemeanor). Misdemeanor). 16
7 117 Information (May (May3, 3,2023). 2023). The The Plea PleaAgreement calledfor Agreementcalled forDamian Damianto to plead plead guilty guilty to to the the charges charges
Is 18 in the Information and and contained containedthe thefollowing following provisions provisions requiring requiring his his testimony testimony in in other other cases, 19 19 specifically: specifically: 20 7. The Attorney General and Defendant Defendantagree agreetotothe thefollowing: following: 21
a. Defendant has fully and truthfully truthfully cooperated, and will cooperated, and will continue to 22 cooperate, the Government cooperate, with the Governmentof of Guam Guam Attorney Attorney General's General's Office Office and and 23 2 any other government entity entity lawfully authorized authorized to conduct conduct any inquiry, investigation or proceeding related to the offenses to which which Defendant Defendant is 24 pleading guilty; guilty; 25 b. Defendant agrees to Defendant agrees to testify truthfully truthfully at at,any any court court proceeding, proceeding, 26 including grand jury, trial or grand jury, or any any other other hearing hearing to which he is called called to testify, specifically testify, specificallyconcerning concerninghis hisown owncase thoseinvolving case or those involving his his co-actor, 27 Nicholas Nicholas Wayne Moore; Wayne Moore; 28 2
People v. v. Moore, Moore, Criminal CriminalCase Case No. No. CF0314-21 CF0314-21 Decision Decision And And Order Order Re. Defendant's Motion Re. Defendant's Motion to to Compel Brady/Giglio Brady/Giglio Material Materialand andEmergency Emergency Motion Motion Page Page 4 of of 32 1 c. Defendant agrees to Defendant agrees to submit submit toto polygraph analysis analysis atat any any and and all times the Attorney times which the Attorney General's General's Office Office may may desire desire to soso test test him. him. 2 Defendant understands thatthe understands that thepurpose purposeofofsuch suchtesting testingwill willbe betotoverify verify the 3 information information he he provides provides and and that that results results contradicting contradicting his his statements statements may be taken as as evidence evidence byby the Attorney Attorney General General of falsehood falsehood on his his part. part. 4 Defendant will be allowed to consult with his counsel at anytime he desires, Defendant will be allowed to consult with his counsel at anytime desires; 5 d. d. Defendant agrees agrees that that this this cooperation cooperation with thethe Attorney General General 6 will begin begin ixmnediately following his immediately following his plea(s) plea(s) of of guilty;
7 e. The Attorney Attorney General General agrees agrees that that if if the the Court Court accepts accepts this this Plea Plea 8 Agreement and sentences sentences Defendant Defendant in accordance with the provisions in accordance provisions contained herein, and contained herein, and after after Defendant Defendant has has cooperated cooperatedfully fully in the the 9 prosecution of prosecution case against of the case against his co-actor, Nicholas Wayne co-actor, Nicholas Wayne Moore, Moore, the Attorney General Attorney General will willnot notprosecute prosecute Defendant for other crimes arising arising from 10 the facts described described inin Guam Guam Police PoliceDepartment Department Report Report No. No.20-25884/20- 20-25884/20- 11 11 27259, Aggravated Aggravated Murder Murder charges and will will move move toto dismiss dismiss the charges chargesof of Fourth, Fifth, and Fourth, Fifth, and Sixth Sixth Charges, Charges, with with their their accompanying accompanying special special 12 allegations, contained in allegations, contained in the the indictment indictment in thisthis case, case, Superior Superior Court Court Criminal Case Case No. No. CF0314-21 CF0314-21;, 13 13
14 f. Defendant voluntarily agrees Defendant voluntarily agreestotowaive waive his his rights rights under under88GCA GCA §§ 120. 120.1414and andtotomove move the the Court Court to to continue continue his sentencing hearing until such such 15 15 date that that the theAttorney Attorney General's General's Office Office shall either move for sentencing sentencing or certify certify that that cases against Defendant's Defendant'sco-actor, co-actor,Nicholas Nicholas Wayne Moore, hashas 16 been disposed disposed of, either inin Superior Superior Court or another forum. If Defendant another forum. Defendant 17 fails to to comply comply with withthethe agreement agreement oror departs departs from from Guam Guam the Attorney Attorney General General maymay move forfor aa sentencing sentencing hearing to occur within ten (10) days hearing to days 18 thereafter, and 19 19 g. Defendant Defendant understands andagrees understands and agreesthat thatifhe if hedoes doesnot notcooperate cooperatefully fully 20 with with the Attorney Attorney General General as as detailed detailed herein, herein, that the the Attorney Attorney General may later charge and prosecute prosecute him him for for any any crimes he maymay have committed. committed. 21 21
22 2 On July July 5, 2023, 2023, this this Court Court held held aa Change Change of of Plea Plea hearing in in CF0314-21-01 CF0314-21-0l and accepted 23 Damian's pleas of Damian's pleas of GUILTY GUILTYtotothe the offenses offenses of ofHindering Hindering Apprehension (As a Third Apprehension (As Third Degree Degree 24 24 Felony) and and Disinterring Disinterring a Corpse (As aa Misdemeanor). Corpse (As Misdemeanor). Hrg. on on7/5/23 7/5/23 at at 10:08:06 AM to 10:08:06 AM 25 2
26 10: 16: 16AM 10:16:16 AM(July (July 5, 5, 2023). The Court Court has has not yet sentenced sentenced Damian, and he he continues continuesto to await await
27 27 sentencing until the People are sentencing until are satisfied satisfied with withhis hiscooperation cooperationin inthis thisinstant instantcase. case. Id Id.atat10216: 10: 16: 16 16 28 AM. AM. Thus, Thus, while whilethe the Plea PleaAgreement Agreementwas wasaccepted acceptedby bythe the could court on on July 2023, itit is not a final July 5, 2023, final
People People v. Moore, Criminal Criminal Case Case No. No. CF0314-2I CF0314-21 Decision And Order Re. Re. Defendant's Motion to Compel Defendant's Motion Compel Brady/Giglio Brady/Giglio Material Materialand andEmergency Emergency Motion Page Page 5 of 32 1 adjudication adjudication of of the crimes to which which he plead guilty until after the People have informed the Court 2 2 that it is satisfied with Damian's cooperation following Damian's cooperation following trial trial in in the the instant matter. 3 The People have disclosed Damian's Damian's Plea Plea Agreement Agreement in in CF0314-21-01 CF0314-21-01 to the Defendant 4
5 and confirmed that Damian is cooperating with the Guam Police Department (GPD) and the OAG
6 in in the the instant instant case, case, CF0314-21. CF0314-2 l. People's Response to Def's Emergency Response to Emergency Mot. Mot. to to Compel Compel 7 7 Brady/Giglio Material at at pp. pp. 2, 2, 55 (Aug. (Aug. 8, 8, 2025), 2025); People's Opp. Opp. to Def's Def's Mot. Mot. to to Compel Compel 8 Discovery of ofBrady/Giglio Material Materialatat p. p. 2, 2, 44 (Aug. (Aug. 8, 8, 2025). 2025). As such, such, Defendant is aware of of the 9 cooperation agreement agreement between between Damian and the People requiring requiring him to testify in in the the instant instant 10
11 11 case, ostensibly in exchange for a guilty plea plea to lesser charges. Both the Plea Agreement and the
12 12 Information in CF0314-21-01 are part of of the record in that case and accessible to the Defendant. 13 II. Defendant seeksinformation Defendant seeks informationfrom from the the People People regarding regarding any any cooperation cooperation or or deal deal 14 14 between Damian and thefederal between Damian federal government. government.
15 15 information regarding Although the People have provided the Defendant with information regarding Damian's Damian's 16 . . . . cooperation agreement with wlth the local govemlnent government in in thls this case, the Defendant seeks an order of case, the 17 17 this Court to to compel compel the the People People to to "scour the the files" offederal agencies, files" of agencies, entities, entities, and and persons persons that that 118
"participated "participated in in both both the investigation investigation and and prosecution prosecution of of the Defendant." Motion to Compel at 2. 19 19
20 20 This file scrubbing extends to the United States Marshal Service (the "US Marshals"), the United
21 21 States At"torney's Office ("USAO"), Attorney's Office ("USAO"), Navy Navy Criminal Criminal Investigative Investigative Service Service ("NCIS"), and "task 22 22 force officers [who] participated in both the investigation and and prosecution prosecution of of the the Defendant." Ids2 Defendant." Id. 23 2 The genesis of of the Motion appears to be information received by Defense Counsels that Damian 24 24
"has previously previously worked worked as a cooperating witness/informant for the the federal federal government government and this 255 2
26 fact constituted Brady material material which must be disclosed." Id. (Emphasis (Emphasis added). On July 14, 14, 27
28 2 Seeking information from law enforcement officers from local and federal agencies who "are a combined force 2 Seeking information law enforcement local and federal agencies "are a combined fore ...ultimately ultimately controlled controlled [by] the the federal [governlnent]." Id federal [government]." Id
People People v. v. Moore, Criminal Criminal Case Case No. CF0314-21 CF0314-21 Decision And And Order Order Re. Re. Defendant's Defendant's Motion Motion to to Compel Compel Brady/Giglio Brady/Giglio Material Materialand andEmergency Motion Emergency Motion Page 6 of of 32 l 2025, Defendant, through counsels, confronted the People with this information and, it appears 2 2 after some discussion, purportedly, on August 4, 2025, the People disavowed any obligation to discussion, purportedly, 3 to Defendant. provide this information to Defendant. Id. Id 4
5 In addition addition to claiming claiming that that this this information information is is discoverable discoverable under Brady, Defendant under Brady,
6 argues that this information is favorable to his defense as impeachment evidence and, therefore,
7 failure of the People to disclose it is is aa violation violation of of his his due due process process rights. rights. Id. Id at 3 (citing Giulio Giglio v. 8 United States, 405 U.S. 150, 154-55 (1972)). On August United States, August 8, 8, 2025, the People submitted under seal 9
Supporting Exhibits for Supporting Exhibits for People's People's Opposition Opposition to to Defendant's Defendant's Motion Motion to Compel Compel Discovery Discovery 10 10
11 Brady/Giglio Brady/Giglio(the "Subrnission"). 3Attached (the"Submission").3 Attachedas as Exhibit Exhibit22ofofthe theSubmission Submissionisisan an e-mail e-mail exchange exchange
12 12 between AAG Olen Olan and and Carmela Carmela S. S. Rapadas, Rapadas, Law Law Enforcement Enforcement Coordinator, Coordinator, USAO, which 13 13 states:44 114 Hara Adai Attorney Olan, Hafa 15
with With regards regards to your your telephonic telephonic inquiry to our office regarding regarding Troy Ryan 16 16 Damian, the United United States States Attorney's Attorney's Office does not confirm confine nor deny the 117 7 identity identity of any person person who who provides provides assistance assistance to to federal federal investigators investigators in advance of of federal proceedings requiring such disclosure. 18 18
Regards, 119 Carmela 20 Exhibit 2 also also contains a response response from representatives of the the USAO, USAO, including Assistant 21 21
United States United States Attorney Attorney (AUSA) Rosetta San Nicolas indicating inquiry has indicating that inquiry has been made to 22 2
23 other federal agencies including the Federal Bureau Bureau oflnvestigation of Investigation (FBI), the Bureau Bureau of of Alcohol, Alcohol,
24 Tobacco and Firearms (ATF) and various federal agencies. Exhibit federal agencies. Exhibit 2. 2. As As of of the the issuance issuance of this ofthis 25 2
26 3 3 On the On the same same day, day, the the AGO AGO filed filed an an identical packet in identical packet in support support of of its its Opposition Opposition to the the Defendant's Defendant's Emergency Emergenc 277 2 Motion to Motion Compel Brady/Giglio to Compel Brady/Giglio Material Material From From Federal Federal Prosecution Prosecution Team Team Members, Members, forfor Continuance Continuance of Trial, Trial, and an For Appropriate Appropriate Sanctions Sanctions or Dismissal. The information Dismissal. The and exhibits information and exhibits are are collectively collectively referred toto herein herein as as the th 28 "Submissions". "Submissions". 4 Exhibit 4 Submission: E-mail between Exhibit 2 to Submission: between Grant Grant Oian Olanand and Carmela CarmelaRapadas Rapadas dated dated August August6, 6, 2025 2025..
People v. Moore, Criminal Case CF0314-21 Case No. CF0314-21 Decision And Order Re. Decision And Re. Defendant's Motion Motion to to Compel Compel Brady/Giglio Brady/Giglio Material Materialand and Emergency Emergency Motion Page 32 Page 7 of32 1 Decision Decision and Order, the Court is unaware if additional additional response was received by the People from 2 . the federal federal government pursuant to government pursuant to the the People's People's August August 55 and and 6, 6, 2025, 2025, email email requests requests and/or and/or 3 whether any any such information was provided to Defendant. 44
5 DISCUSSION
6 I. 1. Timeliness of of Motion Motion To Compel.
7 Despite that the the Defendant's Motions were filed beyond the the cut-off cut-off date set forth in the 8 Court's Court's Triad Trial Scheduling Order Order of of June 23, 2025, 2025, because because the the Defendant Defendant received received the the information information 9
regarding potential regarding potential impeachment impeachmentmaterial materialofofaamaterial materialwitness witnessprior priortoto trial, trial, the the Court Court has granted has granted 10 10
11 leave for the Defendant to file the Motions (despite no formal request to do so), in the interests of
12 12 justice. Additionally, justice. Additionally, the question of whether whether evidence evidence is is in the possession and control of of the 13 13 Office the Attorney Office of the Attorney General General of Guam (OAG) in the the context context of where a federal federal agency agency is 114 involved in the investigation and prosecution of a criminal case is a question of first impression 15
consideration. 5 in Guam and, thus, merits some careful consideration.5 16 16
17 17 II. Prosecution's Obligation Obligation under Section Section 70.10, Brady and Giulio. Giglio.
18 It is axiomatic that a defendant in a criminal case has no constitutional right to discovery. 119 . 9 People v. People v. Orallo, Orallo, 2004 2004 Guam Guam55(quoting (quoting Weatherford Weatherfordv. Burney, Bursey, 429 U.S. U.S. 545, 545,559, 97 97 S.Ct. S.ct. 837, 837, 20 846 (1977)). (1977)). Rather, Rather, "'the "'the right to pre-trial discovery is strictly limited to that which is permitted 21 21 22 22 by statute statute or or could court rule rule mandated mandated by constitutional constitutional guarantees.999 guarantees."' Id.1],r 99 (quoting Id (quoting Cole v. State, State,
23 835 A.2d 600, 608 (Md.2003) (quoting Thorp v. State, Tharp v. State, 763 A.2d 151, 151, 171 (Md.2000)). 24 Statutorily, Statutorily,Title Title8,8,Guam GuamCode Code Annotated, Annotated, Chapter Chapter 70 governs governsdiscovery discovery obligations obligations and, and, 25 25 as relevant to the question at bar, bar, provides as follows: follows: 26 II// 27 27
28 5 The Court subsequently, but after the hearing of this matter, extended the motions cut-off date 5 August 29, The Court subsequently, but after the hearing of this matter, extended the motions cut-off date to August 29, 2025. 2025.
People People v, v. Moore, Criminal Criminal Case CF0314-21 Case No. CF0314-21 Decision And And Order Re. Re. Defendant's Motion to Compel Compel Brady/Giglio Brady/Giglio Material Materialand andEmergency Motion Emergency Motion Page Page 88 of of 32 32 1 §70.10. § 70.10. Matters MattersGenerally GenerallyDiscoverable; Discoverable; Prosecutors' Prosecutors' Obligations. Obligations. 2 2 (a) (a) Except Except asas otherwise otherwise provided provided by by §§ §§70.20 70.20and and 70.30, 70.30, at at any any time time after after 3 the first appearance appearance upon noticed motion motion by by the the defendant, defendant, thethe court court shall shall order the prosecuting prosecuting attorney to disclose attorney to disclose toto the the defendant's defendant's attorney attorney or or 4 penni permitthe the defendant's defendant's attorney attorney to inspect and and copy copy the the following following material material and information within his possession or or control, the the existence existence ofof which is 5 known, known, or by the the exercise exercise of of due due diligence diligence maymay become become known known to to the the 6 prosecuting attorney: attorney: 7 (7) (7) any any material material or or information information which which tends tends to negate the guilt guilt of the 8 defendant as to the the offense charged charged or or would wouldtend tend to to reduce reducehis his punishment punishment therefor. * * * therefor. * * * 9
(b) (b) The Theprosecuting prosecutingattorney's attorney's obligations obligationsunder under this this Section Section extend extend to any 110 material material information in thethe possession possessionor or control control of of members members of of his staff 11 and any other persons who have participated and any other persons who have participated in the the investigation or investigation or evaluation of of the the case case and who either regularly report or with reference to 12 this case case have have reported reportedtotohis hisoffice. office.
13 13 §70.15. § 70.15. Other OtherMatters MattersDiscoverable DiscoverableUpon UponGood Good Cause Cause Showing. Showing. 14 14 (a) (a) Except Except as as otherwise otherwise provided provided byby this this Section Section and and §§ §§ 70.20 70.20 and and 70.30, 70.30, 15 upon noticed motion by the the defendant andand aa showing showing ofof materiality to the preparation preparation of ofhis his defense defenseandand that that the request is reasonable, the court in its 16 16 discretion discretion may may order order the the prosecuting attorney to disclose disclose to to the the defendant's defendant's 117 attorney any relevant attorney any relevant material material and andinformation informationnot notcovered covered by§ by § 70.10. 70.10.
118 8 (b) The Thecourt court may may deny deny the the disclosure disclosure authorized by this Section if it finds that there is substantial risk that there substantial risk to to any any person person of of physical harm, harm, intimidation, 19 bribery, bribery, economic economicreprisals reprisalsororunnecessary unnecessary annoyance annoyance ororembarrassment, embarrassment, 20 resulting resulting from such disclosure, such disclosure, which outweighs any usefulness outweighs any usefulness of of the the disclosure to the the defense. defense. 21
22 The statutory obligations set statutory obligations set forth forth in in these Guam statutes statutescodify codify principles set forth by the
23 2 United United States Supreme Court States Supreme Court in in Brady v. v. Maryland, Maryland, 373 U.S. U.S. 83 (1963), (1963), which articulated the 24 standard rulethat standard rule thatsuppression suppressionof ofevidence evidence favorable favorable to the the accused violates violates due due process process when when the 25 2 evidence is is material material to to guilt guilt or orpunishment, regardless of the punishment, regardless prosecution's good the prosecution's good or bad faith in 26 failing failing to to produce produce such evidence. People v. Mateo, 2017 2017 Guam Guam 22 1] 14 14 ((citing Orallaatat1]1 12). citing Orallo 27 27
28 Giulio Giglio v.v. United UnitedStates, States, 405 U.S. 150 150 (1972), (1972), extended extended this this principle principle to toinclude include impeachment impeachment
People v. Moore, Criminal v. Moore, Criminal Case No. CF0314-21 l l Decision And And Order Order Re, Re. Defendant's Motion to to Compel Compel Brady/Giglio Material Materialand andEmergency Emergency Motion Page Page 9 of 32 l evidence, emphasizing that nondisclosure emphasizing that nondisclosureof ofevidence evidenceaffecting affecting the the credibility credibility of aa key key witness witness 2 2 can violate due due process if ifthe the evidence evidence is is material material and and could reasonably reasonably affect the judgment judgment of of 3 the jury. The The Guam Guam Supreme Supreme Court has has ruled that that Brady material, material, and and by by extension extension Giulio Giglio 44
5 material, material, must be be produced to aa defendant defendant under under Section 70.10. 6 These Section70.10.6 These cases cases establish, as as a
66 general rule, that the prosecution must disclose material general rule, materialevidence within its evidence within itspossession control possession or control 7 7 that is favorable to the defense. that is defense. 8 However, However,upon upon aa claim claimthat that the the prosecution prosecution has committeda Brady Brady violation, violation, aa defendant defendant 9 must prove prove three three elements in order to elements in to demonstrate demonstrate that that aa violation violation has has occurred: occurred: ((1) 1) the the evidence evidence 10 10
11 at issue must mustbe befavorable favorable to to the the defendant defendantbecause becauseititisiseither eitherexculpatory exculpatoryor orimpeaching, impeaching,(2) (2) the
12 12 government must have government must have suppressed suppressedthe theevidence, evidence,either eitherwillfully willfully or or inadvertently, and (3) inadvertently, and (3) the the 13 13 suppression of the suppression of the evidence must have prejudiced the must have the defendant defendantin inthat thatititdeprived deprived him him or or her her of of 114 a fair trial. trial. Mateo Mateo at 1 13 at 1] 13 ((quoting People People v. Campos,2015 Campos, Guam 11 11129 1]29((citingPeople citing v. Kitano, v. Kitano, 15 15
16 2011 Guam11121)(affirming 2011 Guam 11 'll 21)(aftirming trial trial court's court's finding thatno Brady Brady violation violationoccurred occurred because because the 16
17 17 prosecution did not prosecution did not suppress documentsrelating suppress documents relatingtotothe the photo photo lineup lineup used used to to identify identify the the
18 defendant)). defendant)). Before even even applying applying the the elements elements in Brady, Brady, Mateo imposes upon the criminal 119 9 . . . . . a Defendant Defendant a threshold showing ofmaterzalzty of materiality before before the prosecution prosecutlon is is obligated to tum over any 20 evidence under under Section 70.10. 70.10. Id. Id at1115 at 1 15 ("...under ... underboth bothsections sections70.10 70.10 and and 70.15, 70.15, as well as as our 21 21
22 holding in Tuncap, Tuncap, [1998 Guam 13 1118],aathreshold [1998Guam13118], thresholdshowing showing of of materiality must must be established 22
23 before the prosecution prosecution is is obligated to tum over over evidence evidence to the the defendant defendant either automatically 24 24 (under section 70.10 and Brady) or following followingaamotion motionby bythe the defendant defendant (under section 70.15)."). 70. 15)."). 255 2 "A "Ashowing showing ofofmateriality, materiality,however, however, isisnot notsatisfied satisfied by byaamere mereconclusory conclusory allegation allegation that that the the 26 2
28 66 People People v. Madeus, 2019 Guam 24 ,r'll 77(citing v. Madeus, (citing People v. v. Orallo, Oralla, 2004 2004 Guam ,r 12, Guam 55 1] 12; People v. Fisher, 2001 2001 Guam Guam 2 2 1] 12; 12; People v. v. Mateo, Mateo, 2017 Guam Guam 22 ,r 22 1113).
People v. v. Moore, Criminal Criminal Case Case No. No. CF0314-21 CF0314-21 Decision And Order Re. Motion to Compel Re. Defendant's Motion Compel Brady/Giglio Brady/Giglio Material Material and and Emergency Motion Emergency Motion Page 10 of32 Page 10 of32 1 requested information is material to the preparation of the defense." United States v. v. Farah, Farah, No. No. 2 22-CR-124 (NEB/TNL), 2023 2023 WL 8757097, 8757097, at *9 *9 (D. (D. Minn. Minn. Dec. Dec. 19, 19, 2023) 2023) (quoting (quoting United 3 States States v.v. Krauth, Krauts, 769 F.2d 473,476 473, 476 (8th (8th Cir. Cir. 1985)). 4
5 The focused issues before the Court are: (1) (1) is information information about a material material witness's
66 participation as participation as an an informant informant for the federal government in an an unrelated unrelated case material, thus 7 satisfying the threshold satisfying the threshold question question under under Mateo, Mateo, and and (2) (2) if itit is is material, material, whether whether the local local 8 government government is is "in "in possession" possession" of ofthe the federal government's information federal government's informationunder under88 GCA GCA§70. 10(b).7 § 70.1 O(b ). 7 9
A. Defendant seeks information about seeks information aboutwitness witnessTroy TroyDamian Damian purportedly purportedly in the 110 possession possession ofofthe thefederal federalgovernment governmenton onthe the basis basisthat that the the information information is 11 11 impeachment evidence evidence and the People have constructive possession of this the People have constructive possession of information. 12 12 On July 14, 2025, 2025, Defense Defense Counsel informed the government government that Troy Damian, "a critical 13 13 14 Mtness for the witness the government, government, has has previously previously worked worked as as aa cooperating cooperating witness/informant witness/informant for the 14
15 15 federal federal government." government." Motion to to Compel Compel at at p. p. 22 (Aug. (Aug. 6,6, 2025). 2025). Defendant Defendant argues that that this
16 16 information is favorable to his defense defense as impeachment impeachment evidence evidence and, and, therefore, failure failure of the 17 . . . . . . . .. People to People to dlsclose disclose itit is is a violation ofhis vlolatlon of his due rights. Id. due process rights. Id at Giglio v. (cltlng Giulio at 3 (citing v. United United States, States, 118 8 405 U.S. 150, 154-55 U.S. 150, 154-55 (1972)). (1972)). I In later submissions, n later submissions, Defendant further further seeks seeks to expand expand the the 19 19 20 disclosure to include such information information "to "to all all potential potential witnesses and and evidence evidence since we now 20
21 21 know the U.S. Attorney's Attorney's Office Office explicitly explicitly refuses refuses to share Brady/Giglio material." Def's Reply
22 Hz to People's People's Response Response totoDef's Def's Emergency EmergencyMotion Motiontoto Compel Compel Brady/Giglio Brady/Giglio Material Material at at p. p. 33 23 (emphasis added). added). 24 In undertaking this analysis, the Court considers first whether Defendant Defendant has satisfied the 25
26 26 threshold question under Mateo, Mateo, supra, of of establishing that information that Damian is a federal
28 7 The third Brady factor 7 The third Brady - "the "the suppression suppression of the evidence must must have prejudiced prejudiced the the defendant defendant in in that that it deprived him or her of aa fair fair trial" trial" - is premature premature at this this stage stage of the the proceedings. proceedings.
People v. v. Moore, Moore, Criminal Case Case No. No. CF0314-21 CF0314-21 Decision And And Order Re. Re. Defendant's Defendant's Motion to Compel Compel Brady/Giglio Material Material and and Emergency Emergency Motion Motion Page l11 l oof32 f32 1 informant or cooperating witness is material, material, in the context of Brady or Giglio. If the Court finds Giglio. If 2 2 that this information is material, the Court next considers whether the government has the duty to 3 provide this provide this information information -- which is in the possession possession of the the federal federal government government- - as as to "all 4
5 witnesses and evidence," as maintained by Defendant. potential witnesses
6 11. Information Information that that Damian Damian is is or orpreviously previously waswas a federal federal informant informantororcooperating cooperating witness for the federal witness for federal government government in 7 an unrelated unrelatedcase case is is not Brady Brady material. 8 no disagreement There is no disagreement that that information information regarding a cooperation cooperation agreement agreement between 9 Damian Damian and and the People in the the instant instant case case (or, more more accurately, accurately, in in the the severed severed case) case) is relevant 10 10
11 Brady/Giglio. 88 The People reported that the cooperation as potential impeachment evidence under Brady/Giglio. cooperation
12 12 agreement between Damian and the OAG/GPD has been disclosed disclosed to to the the Defendant. Defendant. As such, such, 13 13 Defendant has been Defendant has been given given impeachment impeachment material material which which is directly related to this this case. case. The The 114 question before before this this Court Court is whether whether Damian's Damian's cooperation with the federal govemnlent in an federal government 15 15
unrelated case case isis Brady Brady or or Giglio Giulio material, subject subject to disclosure. disclosure. 116 6
117 Despite a number of Despite of citations citations contained contained in Defendant's Defendant's Motions, Motions, Defendant Defendant has not
18 18 provided the Court with any controlling or provided or persuasive case authority supporting its argument that 119 any prior prior (or (or current) current) cooperation agreement between Damian and the federal government or or 20 infonnation whether he information whether he has has served served in a prior role as a federal informant informant in unrelated cases is 21 21
act to disclosure in this case as Brady material. The Guam Supreme Court subject Court has not addressed 22
23 this specific issue, issue; therefore, this Court turns to cases from other jurisdictions that address this 24
25 2
27 2
28 2 8 8 v. Fisher, People v. People Fisher, 2001 2001 Guam 2, 1[ ,r 12 UnitedStates, Giglio v.v. United (citing Giulio 12 (citing States, 405 405 U.S. U.S. 150, 150, 151-155) (l992)(holding that 151-155) (1992)(holding evidence relating relating to to the credibility of ofgovernment government witnesses, witnesses, including but not limited limited to to plea plea agreements, financial agreements, financial assistance, inducementstototestify, assistance, inducements testify, and and promises promisesof of leniency leniency fall within withinthe thedue due process process requirements of of Brady).
People People v. Moore, Criminal Criminal Case Case No. No. CF0314-21 CF0314-21 Decision And And Order Order Re. Re. Defendant's Defendant's Motion Motion to to Compel Brady/Giglio Brady/Giglio Material Material and and Emergency Motion Emergency Motion Page 12 12 of32 of32 1 cooperation witness's previous cooperation prosecution witness's that a prosecution those holding that persuasive those question and finds persuasive 22 agreement, which which bears relation to the case in which bears no relation thewitness which the testified, isnot witnesstestified, Brady material. not Bradymaterial. 33 In the one at In aa case similar to the People v. at bar, People Sibadan, 240 A.D.2d 30, 671 v. Sibadan, 2d 11 671 N.Y.S. ad 4
(N.Y. (N. Y.App. App.111998), courtherein thecourt 1998),the heldthat thereinheld prior history that a prosecution witness's prior of cooperation history of cooperation 5
6 with the prosecutor's office with didnot office did establishany notestablish agreement or any agreement understanding that witness would or understanding would
7 7 benefits for receive benefits receive informationhe forinformation providedat he provided trial as attrial Brady because as required under Brady the witness's because the witness's 88 prior cooperation had prior cooperation involvedmatters had involved unrelated to his matters unrelated in the his agreement to testify in case and also the case 9 pre-dated case in which pre-dated the case he was called to testify. The prosecution which he in Sibadan prosecution in had already fully Sibadan had 10 10
II 11 agreementbetween disclosed the terms of a cooperation agreement thewitness betweenthe andthe witnessand District Attorney's theDistrict Attorney's
12 12 Office Officerelating relatingto tohis inthe testimonyin histestimony case in the case to testify, permitting the witness in which he was called to 13 13 to plead plead guilty guilty to to aa lesser lesser charge thePeople recommendation bybythe charge with recommendation of aa low Peopleof term of low term 14 14 incarceration. Moreover, thecourt Moreover,the thereinruled courttherein that even ruledthat the witness even ififthe had cooperated witness had in the cooperated in past the past 15 15
16 with agency, such with the investigative agency, be Brady such information would notbe material: Brady material: 16
17 17 Generally, Generally, the the prosecutor's disclosure obligation arises only where "the obligation arises prosecutor "the prosecutor and understanding in and the witness have reached an understanding which the in which witness's cooperation the witness's cooperation 18 18 has been been exchanged exchanged for some quidpro quid pro quo the part on the quo on of the part of prosecutor" (People the prosecutor" (People v. v. Novoa, supra atat 497, 522 N.Y.S.2d there is any 504, 517 N.E.2d 219), or where there N.Y.S.2d 504, 119 other indication that other indication the witness' that the cooperation "was witness' cooperation bargained for, "was bargained or directly or for, directly 20 indirectly" (People v.v. Piazza, indirectly" (People supra at Piazza, supra 163, 422 N.Y.S.2d 9, at 163, 397 N.E.2d 9, 397 700; N.E.2d 700, supra at People v. Matos, supra at 278, 634N.Y.S.2d 278,634 N.Y.S.2d461). 21
22 Sibadan, Sibadan, 240 34. Although at 34. 240 A.D.2d at Sibadan involved Although Sibadan the witness's involved the prior cooperation witness's prior in cooperation in 22
23 23 unrelated involving the unrelated investigations involving the local local government the witness (asthe government(as had refused to cooperate witness had
24 24 with the federal Agency ("DEA")), EnforcementAgency Drug Enforcement federal Drug unless aa quidpro that unless holdsthat principleholds theprinciple ("DEA")), the 25 2 quo exchange occurred with involvement in with regard to the witness's involvement the case, such involvement in the involvement is 26 not not Brady Brady material. material. 27 27
28 2
People People v. Moore, Criminal CriminalCase l Case No. CF0314-21l Decision Decision And And Order Re. Defendant's Motion to Compel Brady/Giglia Order Re. Material and Brady/Giglio Material Emergency Motion and Emergency Page 13 of32 Page 13 0f32 1 In People v. Tellies, Tellier, 272 A.D. ad 2d 347, 707 N.Y.S. 2d 469 (N.Y. App. Div. 2 2000), a case 2 which which even even more closely closelymirrors mirrorsthe theinstant instant case, case,the the trial trial court court concluded concludedthat that the state prosecutor 3 failed to disclose that a witness in in the the tnlal trial was cooperating with the federal federal government in an 4
investigation involving involving the the defendant defendant and vacated the defendant's conviction after finding, inter 5
66 alia, that the witness had implicitly entered entered into a quid q u i d pro quo agreement agreement with with federal federal authorities authorities.
77 Id. at at 348. 348. On On review, review, however, however,the the appellate appellate court court reversed reversed the the trial court's court's decision decision after finding 8 that any that any cooperation cooperation agreement between between the the witness and and the the federal federal government did not occur 9
until after the the trial trialof of the the defendant. Id More importantly, defendant.Id. importantly, the the agreement agreement between between the the witness and 10 10
11 11 the federal government did not involve the charges for which the defendant was was on trial trial (which
12 charges),but were state charges), butpotentially potentially for separate federal racketeering charges. separate federal charges.Id. Id In In the the agreement agreement 13 13 with the federal government, which which was was entered entered into into after after the the state state trial trial of of the the defendant, defendant, the 14 witness would testify against against the defendant in in the thefederal federal criminal criminal racketeering racketeering action in exchange exchange 15
16 for allowing him to to plead plead to to aa lesser lesser federal federal conspiracy conspiracy charge charge and and aa recommendation recommendation to to the the 16
17 17 Federal sentencing judge judge for for a more favorable sentence. Id. Id There There was was no no evidence evidence that thatthe federal
18 18 to provide government agreed to provide the the witness witness with with a favorable favorable plea agreement and lenient sentence 19 . . . . . iin exchange for his testimony in the unrelated state state trial. trial. Id. at 349. Id at 20 Similarly, in Similarly, in this this case, case, nothing nothing in in Defendant's Defendant's moving moving papers papers establishes establishes or or infers infers that, that, 21
22 even ifif DDamian am ian previous ly sserved previously erved as as an aninform informant for the ant for the fed eral ggovernment, federal overnm ent, that that ssuch uch 22
23 engagement engagement is tied to a benefit in exchange for his testimony in this case. case. As Assuch, such,the theCourt CourtHerds finds
24 24 that any information that Damian is or was a federal informant informant is not subject to disclosure under 25 25 Erady Brady or Giglio. 9 or GigZio.9 26
28 9 9 also, Commonwealth See also, Commonwealth v.v.Ayala, Ayala,481 481 Mass, Mass. 46, 112 N.E.3d 239 112 N.E.3d 239 (2018), (2018), discussed discussed, infra. infra.
People v. v. Moore, Criminal Criminal Case Case No. No. CF0314-21 CF0314-21 Decision And And Order Order Re. Re. Defendant's Motion Motion to Compel Compel Brady/Giglio Brady/Giglio Material and Emergency Motion Emergency Motion Page 14 of32 Page 14 of32 1 Even if if the Court were agreement between cooperation agreement were to find, arguendo, that any prior cooperation 2 2 . . . . . Damian and Damlan government (regardless and the federal government of its (regardless of relation, or lack its relation, this case) lack thereof, to thls case) is 3 Brady whichititisisnot Brady material - which theCourt not -- the findsthat CourtEnds information not that itit isis information in the not in possession - the possession 4 constructive or otherwise constructive or of the otherwise -- of People. Therefore, the People. government's failure Therefore, the government's disclose the failure to disclose 5
6 Defendant is not a violation of Brady or Giglio. information to Defendant Giulio.
7 2. federalagency's Whether aafederal Whether knowledge and agency's knowledge possession of andpossession 8 impeachment evidence potential impeachment imputed upon evidence isis imputed the Office of upon the Attorney General the Attorney depends upon General depends extent of the upon extent federal the federal 9 involvement in the local investigation. agency's involvement
110 8 8 GCA GCA§ §70.10 70.10imposes imposesupon uponprosecutors prosecutors an an affirmative affirmative duty duty to disclose disclose to the the 11 12 12 defendant'sattorney defendant's anyevidence attorneyany whichisisfavorable evidencewhich tothe favorableto defense known thedefense to it, knownto or by the exercise it, or
13 13 of of due diligence may become to the known to become known prosecuting attorney, the prosecuting and which attorney, and is in which is his possession in his 114 4 . . . . . . or control. control. Thls extends "to dutyextends This duty anymaterial "toany informationinin materialinformation possession or control of thepossess10n the members ofmembers 15 15 of of his staff staff and any other other persons participated in have participated persons who have of the in the investigation or evaluation of 116
17 either regularly report or with reference to this case have reported to his office." 8 case and who either 17
18 GCA GCA §§ 70.10(b). 70.l0(b).
19 19 Guam courts courts have have not addressed the issue of not addressed to impute upon of whether this mandate extends to 20 . . . . . prosecutor potentlally a local prosecutor or impeachment potentially exculpatory or in the impeachment information in hands of the hands federal of federal 21 agencies that have assisted or in any way participated of participated in the local investigation or evaluation of 222
the case, or who have reported prosecutor with reported to the prosecutor reference to with reference his office to his under Section office under 70.10. Section70. 23 23
24 24 Even Even more specifically, Court has not considered the very narrow question of Supreme Court specifically, the Guam Supreme of
25 25 whether a defendant is entitled under Section 70.10, Brady, or its progeny, to information in the 26 26 . . . . . hands of the hands of governmentthat the federal government material witness. for that aa materlal the prosecution for the federal informant prosecution is a federal 227 or a cooperating witness for the government in the federal government an unrelated in an case. See, Kyles unrelated case. Kyles v. Whitley, v. Whitley, 28 28 437 (1995). 514 U.S. 419,437 (1995).
People CriminalCase v. Moore, Criminal People v. CF0J 14-21 Case No. CF0314-21 Decision Decision And And Order Order Re. Re. Defendant's Motion to Defendant's Motion Compel Brady/Giglio to Compel andEmergency Materialand Brady/Giglio Material Motion Emergency Motion Page 15 of32 Page 15 of32 I Court examines Thus, the Could the following: examines the constitutes a "joint investigation" between following: what constitutes 22 state or territorial agencies in a criminal territorial and federal agencies investigation for purposes of imputing a criminal investigation 33 federal agency' agency's knowledge to a stateprosecutor Because theGuam Brady? Because prosecutor underBrady? Supreme Court Guam Supreme 4 4
5 address this specific has not had the opportunity to address issue, the Court turns to case law from other specific issue,
66 jurisdictions for guidance.
7 Courts in other jurisdictions have similarly grappled with the grappled with boundaries of the boundaries constructive of constructive 88 knowledge, especially in contexts participate in, but do not direct, local contexts where federal entities participate 9
extent of investigations. The extent collaboration, control, ofcollaboration, and access to control, and pivotal factors to evidence are pivotal in factors in 10
11 determining whether knowledge determining whether possessed by knowledge possessed agencies should be imputed to the local federal agencies by federal
12 12 prosecuting of the practical authority. Thus, the inquiry before the Court requires an examination of prosecuting authority. 13 13 and legal relationships among the agencies involved. 14 14 In evaluating knowledge is imputed, evaluating whether such knowledge courts in imputed, courts other jurisdictions in other have jurisdictions have 15 15
16 considered whether the federal federal agency acted as agency acted aspart partof ofthe theprosecution prosecution"team" merely provided ormerely "team"or provided 16
17 17 ancillary ancillary support. support. While active participation or aa joint active participation investigative effort joint investigative can trigger effort can broader trigger broader
18 18 tangential assistance disclosure obligations, mere tangential suchas assistance -- such technical support astechnical or forensic analysis support or 19 19 . . -_ may notsuffice maynot attributefull sufficetotoattribute constructive knowledge fullconstructlve localprosecutors. knowledgetotolocal Consequently, prosecutors. Consequently, 20 the underlying hinges on the question hinges underlying question degree to the degree which federal to which agencies shared federal agencies personnel, shared personnel, 21
22 of Guam. of the Attorney General of resources, or investigative strategy with the Office of 22 th 1979), 23 23 The Defendant Defendant correctly cites to to United UnitedStates States v. v. Antone, Antone, 603 603 F.2d, 566 (5 F.2d, 566 (5* Cir. 1979),
24 24 investigation has occurred, courts engage in proposition that to determine whether a joint investigation for the proposition 25 2 a case-by-case case-by-case analysis analysis of ofthe the extent between the two governmental of interaction and cooperation between extent of 26
People People v. v. Moore, Criminal CriminalCase Case No. CF0314-2 CF0314-21l Decision Decision And Order Order Re. Re. Defendant's Motion to Defendant's Motion to Compel Compel Brady/Giglio Brady/Giglio Material Materialand andEmergency Motion Emergency Motion Page 16 of32 Page 16 of32 l 570. 10 A agencies. Id. atat570.10 A primary factor is the nature of cooperation, such as coordinating witness 2 interviews and investigating interviews and investigating the the facts facts of of the case. 11 Other the case." Other factors factors include include whether whether the other other 3 agency: "(l) "(I)participated participated in in the the prosecution's prosecution's witness witness interviews, interviews, (2) (2) was involved in in presenting 4
the case to the grand case to jury, (3) grand jury, (3) reviewed revieweddocuments documents gathered gathered by or or shared shared documents with the documents with 5
6 prosecution, (4) (4) played a role in the development ofprosecutorial prosecutorial strategy, or (5) accompanied
7 the prosecution to court proceedings." 12 court proceedings."12 8 Furthermore, the the case law on the subject is is varied varied as as to to the the outcomes, outcomes, which which suggests suggests that 9
the involvement of federal agencies, in and of itself, itself, does not not automatically automatically establish constructive 10 10
11 possession and the possession and the duty duty to disclose, disclose; rather, rather, they depend upon an evaluation evaluation of of agency agency roles, roles,
12 responsibilities, and responsibilities, and the nature of of their participation in the investigation and prosecution. 13 13 In United States States v. v. Risha, the Third Third Circuit Circuit outlined outlined aa three-factor three-factor test to determine 14 14 cross-jurisdictional constructive whether cross-jurisdictional constructive knowledge knowledge should should be be imposed: (1) (I) whether the party 15
with knowledge is acting on the government's behalf behalf or or under its control, control; (2) the extent to which 116
17 17 the entities are part of ofa team, participating in ajoint joint investigation, or sharing sharing resources, resources; and (3)
18 18
10 See also, United States v. Farah, No. 22-CR-124 (NEB/TNL), 2023 WL 8757097, at *10 (D. Minn. Dec. 19, 10 20 See also, States v. Farah, 22-CR-124 2023 8757097, at Dec. 19, 2023)("W11ether 2023)("Whether the the prosecution has a duty to to conduct conduct aa Brady Brady review review ofof materials materials inin the the possession possession of another another 21 21 government government agency agency depends dependson onaa fact-intensive fact-intensive inquiry inquiry into into the extent extent to which which the the agencies agencies conducted conducted aa joint joint investigation.")(court finding no no "joint "jointinvestigation" investigation"under underthethe circumstances)(citing circumstances)(citing United States States v.v. Gilbertson, 22 2 No. No. 17-cr-0066(l) 17-cr-0066(1)(PJS/HB), (PJS/HB), 2018 2018 WLWL 1905805, 1905805, at *2 (D. Minn. Minn. Apr. Apr. 23, 23, 2018), 2018); accord Tavlin, Tavlin, 2023 WL 3477610, at *3, *3; see, see, e.g., e.g., United States States v.v. Middendorf, Middendon No. 18-CR-36 (IPO), 2018 WL 3956494, 18-CR-36 (JPO), 3956494, at at *4 *4 (S.D. (S.D. N.Y. N.Y. Aug. 17,17, 23 2 2018), 2018); United States v.v. Connolly, Connolly, No. 1:16-cr-00370 (CM), 2017 l:16-cr-00370 (CM), 2017 WL WL 945934, 945934, atat *6, *6, *7 *7 (S.D. (S.D. N.Y. Mar. 2, 2, 2017), 2017); United United States v. Gupta,Gupta, 848 848 F. Supp. 2d491, 491,493 (S.D. N.Y.N.Y.2012), 2012);seesee also, also, e.g., United United States v.v. Tournant, Tournant,No. 22-22- 24 2 CR-276-LTS, 2023 2023 WL 5001186,atat*3 WL 5001186, *3(S.D. (S.D.N.Y. n.y. Aug. Aug. 4, 4, 2023), 2023); United United States v. Alexandre,No. States v. No. 22 22 Cr. Cr. 326 326 UPC). (JPC), 2023 2023 WL 416405,416405, at at *5 (S.D. n.y. Jan. (S.D. N.Y. Jan. 26, 26, 2023), 2023); United United States v. Avenatti, No. States v. No. 19-CR-374 19-CR-374 (JMF),(JmF). 2022 2022 WL 25 2 457315, 457315, at at *10 Feb. 15, n.y. Feb. (S.D. N.Y. *10 (S.D. 15, 2022); 2022); United UnitedStates States v. Bourassa, No. 4:18-cr-3-MLB, 4:18-cr-3-MLB,2020 2020 WL WL 7778038, 7778038, at *2 (N.D. Ga. Ga. Dec. Dec. 31,31, 2020), 2020); United States States v. Tyson, No. 1:18CR708, Tyson, No. l:18CR708, 2020 2020WL WL 255533, 255533,atat*I *1 (N.D. (N.D. Ohio Jan. Jan. 16, 16, 26 2020), 2020); United UnitedStates States v. Ferguson, Ferguson, 478 F. Supp. Supp. 2d 220, 220, 238 (D. Conn. 2007);2007); cf. cf. United UnitedStates States v.v. Risha, Risha, 445 445 F.3d 298, 301-02 (3d Cir. 2006); 2006), United United States States v. Antone, 603603 F.2d F.2d 566, 566, 570 (5th Cir. 1979); 1979); United United States States v. Blaszczak, Blaszczak, 27 308 F. Supp. Supp. 3d3d 736, 736,741-42 741-42(S.D. (S.D.N.Y. n.y. 2018). l11l United United States States v.v. Tavlin, Tavlin, No. 22-CR-134 (DWF/JFD), 2023 2023 WL 3477610 3477610 (D. Minn. Minn. May May 16,16, 2023), 2023), aflf'd, No. CR affd, No. 28 22-134 (DWF/JFD), 2023 WL 4669558 (D. Minn. July 20, July 20, 2023). 12 12Tavlin, Tavlin, No. No. 22-CR-134 22-CR-134 (DWF/JFD), 2023 WL 3477610 3477610 at at *3 (quoting United United States v. Middendorf, States v. Mldd€ndollf,No. No. 18-CR- 18-CR- 36 (JPO), 2018 WL (JPO), 2018 WL 3956494, 3956494,at at*4*4 (S.D.N.Y. (S.D.N.Y. Aug. 17, 17, 2018)).
People v. v. Moore, Moore, Criminal Criminal Case Case No. CF0314-21 CF0314-21 Decision And And Order Order Re. Re. Defendant's Motion to Compel Compel Brady/Giglio Brady/Giglio Material Material and and Emergency Emergency Motion Page 17 Page 17 of32 of32 I whether the the entity entity charged chargedwith with constructive constructive possessionhas ready access to the evidence. evidence. United 2 States v.v. Risha, 445 States 445 F.3d 298, 298, 304 (ad (3d Cir. Cir. 2006). 2006). See See also, United United States v. Denunzio, 123 States v. 123 3 F.Supp.3d 135 (2015). (2015). 4
Examples of a "joint Examples of 'joint investigation" investigation" include: where the include: where the US US Attorney's Office Office and and the the 5
6 Securities and Exchange Securities and Exchange Commission Commissionjointly jointly interview interview forty-four forty-four witnesses, witnesses,the theUSAO USAO is
7 7 required to review SEC's required to SEC's memoranda memoranda relating relating to those those interviews for Brady Brady material material (United (United 8 8 States States v. Gupta, 848 F.Supp. Gupta, 848 F.Supp.2d ad491, 491,493 493(S.D.N.Y. (S.D.N.Y. 2012)); 2012)), where where USAO USAO and and SEC jointly 9 conducted and and coordinated coordinatedtwenty interviewsof twentyinterviews of twelve twelve witnesses witnessesand andSEC SECprovided providedUSAO USAO with 10
11 documents obtained during during its own investigation the agencies agencies were were deemed deemedtotobe be conducting a
12 "joint" 'joint"rather rather than parallel parallel investigation. investigation.United United States v.v.Martoma, Martoma, 990 F.Supp. F.Supp.2d 2d458 458(S.D.N. (S.D.N.Y. Y. 13 13 2014). 2014). 14 14 In In contrast, where there contrast, where there is is no no joint joint investigation or significant cooperation, courts have 15
16 impute knowledge of declined to impute ofthe the federal federal agency agency upon uponthe the state state prosecutor, prosecutor. In People v. v. 16
17 17 Santorelli, Santorelli, 95 N.Y.2d N.Y.2d 412 412 (2000), (2000), central central to to the the Cou1"t's review in that case Court's review case is the question question of
18 18 whether FBI FBI interview reports pertaining pertaining to toaafederal federalinvestigation investigationwere werewrongfully wrongfiilly withheld from
19 . . . . the defendant in aa state prosecution. prosecution. The The extent of of the the federal federal agency's agency's involvement Santorelli involvement in Santorel 20 much more significant was much significantininthat that case case than than in in the the instant instant matter: matter: in Santorelli, the FBI Santorelli, the FBI saw saw the the 21
22 defendant discard clothing defendant discard clothing which which turned timed out out to to be be evidence evidence of ofaamurder murder committed committed by by another another 22
23 individual. Santorelli was charged with tampering tampering with with physical physical evidence. Defense requested requested all
24 24 requested "a Brady material and requested Brady "a copy copy of ofadj all FBI FBI 302 302 reports reports and and notes notes reflecting reflecting debriefings of of 25 25 . . . . . Nlcholas Nicholas Mazzarella Mazzarella concemxng concerning persons persons and xncldents relatedtoto this incidents related thls case." case." Mazzarella Mozzarella was 26 present when other other individuals individuals admitted admitted to to killing killing someone. 27
People People v. v. Moore, Criminal Criminal Case Case No. No. CF0314-21 CF0314-21 Decision And Order Re. Re, Defendant's Motion Motion to Compel Compel Brady/Giglio Brady/GiglioMaterial Materialand andEmergency Emergency Motion Motion Page 18 of32 1 In that In that case, case, the defendant urged that defendant urged that the the People Peoplemust mustbe becharged chargedwith withthe theFBI's FBI's refusal refusal to 2 disclose the requested material; material, however, the court held that the federal government had no duty 3 disclose information to disclose information possessed possessed by by aa separate separate sovereign sovereign conducting conducting its its own own independent independent 4 investigation. investigation. Therefore, the state prosecutor prosecutor did not commit commit a Brady Brady violation by failing failing to 5
66 produce any FBI reports reports requested requested by defense defense counsel counsel that were not in the control of of the state
77 prosecutor. 8 In this regard, the court reasoned: reasoned: 9 Here, defendant does not question that the the People produced all Brady material in 10 10 their actual actual possession. possession. Undisputedly, Undisputedly, the the People People did not possess the additional reports p o r t s defendant e n d a n t seeks. e e k s . Thee rreports-involving e p o r t s -in aas eseparate, p a r a t e , p rpre-existing e -e x is t in II 11 investigation-were t iga t ion -w e r e in in thee hhands ds of of ttheh e FB I, a an FBI, n inindependent de pe n de Fe de l la Federal law 12 12 enforcement agency not subject to State control. While defendant defendant argued that the two agencies were engaged in aa joint joint oror cooperative cooperative investigation, investigation, and that the 13 13 District Attorney thus had constructive possession or control of of the Federal records, the trial court held otherwise, and the record before us us supports that undisturbed supports 14 14 finding (contrast, United States States v. v. Antone, 603 603 F.2d 566, 566, 569-570 [knowledge of of 115 State officers could be imputed to Federal prosecutor where there was" was " extensive cooperation between the investigative agencies" and "entire effort was marked by 16 16 (a) (a) spirit spirit of of cooperation cooperation"]). "]). Indeed, deed, the th e record record reflects th at there reflects that ere wereere n o undisclosed 302 reports concerning the the February 4, 1994 1994 events, and that Federal 17 17 reports concerning the the FBI's "parallel" but separate investigation were unavailable 18 18 to either side in this case.
119 Further Further establishing the District District Attorney's Attorney's lack lack of ofaccess access to the FBI reports is is the record of ofLmsuccessful attemptsto unsuccessful attempts toobtain obtainthem themfrom from Federal Federal authorities. authorities. On at least 20 two occasions occasions thethe District District Attorney asked asked the United States Attorney's Office States Attorney's Office and and 21 the FBI for for the the reports, reports, and and both both times times was was refused refused on the ground ground that that the the FBI FBI considered considered thethe materials materials toto be unrelated unrelated toto the State's investigation. There State's investigation. There is no 22 record support for defendant's defendant's conclusory assertion of the People's bad bad faith faith or the existence of a government government conspiracy conspiracytoto deprive deprive defendant defendantof ofinformation. information. That a 23 Federal law law enforcement agent served servedasasafact factwitness witness at at defendant's defendant's trial trialdoes does 24 not alter the the conclusion that the People did not possess or control-actually or People did not possess or control-aetually constructively-the constructively--theadditional additionalmaterials materialsdefendant defendant sought. sought. 25 2
26 People v. Santorelli, 95 N.Y.2d 412, 421-22, 741 N.E.2d 493, v. Santorelli, 493, 497-98 (2000)(emphasis added).
27 In Commonwealth v. Ayala, 481 481 Mass. 46, 112 112 N.E.3d 239 (2018), (2018), shortly before the
28 2 defendant's trial for for first-degree first-degree murder, murder, the prosecution informed defense counsel that defense counsel that it had
People People v. Moore, Criminal CriminalCase Case No. CF0314-2 CF0314-21I Decision And Order Re. Re. Defendant's Motion to Compel Compel Brady/Giglio Brody/Giglio Material Materialand andEmergency Motion Emergency Motion Page 19 of32 Page 19 0f32 1 recently learned that the sole defense witness was a confidential informant for a federal gang task 2 2 force. Id. atat247. 247. The The trial trial was was continued, continued, and, and, during during the the period period of ofthe continuance, the defendant 3 filed several motions in state court proceedings to to obtain Federal records records detailing the the witness's witness's 4
status status as a confidential confidential informant and to informant and to compel several several Federal agents to testify testify about about this this 5
6 witness's witness's status. status. Id. In Inthese these motions, motions, defendant defendant argued argued that that the information about the the witness's witness's
7 informant status was material to his defense because it was necessary to determine her credibility credibility 8 as a witness. Id. Id The The opinion opinion describes describes the the process process that that the the defendant defendant would have to undertake in 9 order to obtain the the material material from from the the federal agency in question as federal agency as follows: follows: 10
11 At various various times, times, the the defendant defendant was informed informed that a successful successful pursuit of this this information would require that he he comply with the procedure set forth by Federal 12 regulations. The federally mandated procedure required the defendant to submit a written request request for information describing describing the informant records records and the subject subject 13 matter of the testimony sought. Federal authorities would then review the sought- 14 14 after information for privilege, confidentiality, and the likelihood that its disclosure would ou ld com prom ise ongoing compromise goin g in vestigation s. After investigations. After this th is review review, , th e Federal Federal 15 authorities would report authorities would report back to the the defendant defendant and either either disclose disclose the the requested requested information or explain why itit was continuing to be withheld. 16 16
17 17 Id. Despite Despite being being made made aware aware of ofthe the federal federal procedure, procedure, the defendant in Ayala refused to comply 18 18 and continued to unsuccessfully unsuccessfully request that the the trial trial court judge compel federal authorities authorities to 19 19
20 disclose this information. Id The information. Id. The defendant defendant claimed claimed that that his his due due process process rights rights under under the Fifth 20
21 21 and Sixth Amendments were violated Amendments were violated by by the state's failure failure to obtain and tum over over discovery discovery
22 22 related to the sole defense witness's witness's status status as a confidential informant for the federal government; government, 23 2 however, the court in Ayala disagreed. Applying Applyingaafour four (4) (4) factor factor analysis, analysis, Me the court ruled: (1) No 24 unfairness resulted to unfairness resulted to defendant defendant as a result of not receiving information that the witness was a 25 26 federal informant, informant; (2) Defendant's failure failure to avail of of the process under the federal regulations in 26
27 27 order order to obtain obtain informant informant records records despite despite advance knowledge of advance knowledge of the witness's witness's status status as an 28 28 informant forman t and an d knowledge kn owledge of of the th e federal procedu re by federal procedure by which ich he cou could hhave ave obtain obtained th the
People v. Moore, Criminal Criminal Case Case No. No. CF0314-21 CF0314-21 Decision And And Order Re. Defendant's Defendant's Motion Motion to to Compel Compel Erady/Giglio Brady/Giglio Material Material and and Emergency Motion Emergency Motion Page Page 20 20 of of32 1 information weighed against information weighed Defendant, (3) against Defendant; (3) the the burden burden on the the prosecutor prosecutor in obtaining obtaining the the 2 information information weighed weighed against against Defendant Defendant because the information held by federal authorities because the authorities was 3 3
not in the possession of of the prosecutor as asthe theprosecutor prosecutorwould wouldhave havebeen beenrequired requiredto tocomply comply with with 4
the federal procedure as federal procedure aswell; well, and and (4) based upon upon aa review review of the the degree of of cooperation cooperation in in the 5 5
6 case between the the state and federal state and federal agencies, despite that agencies, despite that several several state state police police officers were
7 deputized as federal deputized as federal officers officers for for the the purpose purpose of operating operating within a federal federal gang task task force, the 8 court found that thatthere therewas wasno nojoint joint investigation. investigation. 9 Applying the Applying the factors in Ayala to this case, case, theCourt considers: 13 Court considers:13 10 10
(1) Defendant's Defendant's failure failureto toavail availofofthe theprocess process under the the federal federal regulations 14 Despite regulations::14 11 11 Despite
12 arguing that the the information information about about Damian's Damian's status statusas asaafederal federalinformant informantisiswithin withinthe thePeople's People's 13 possession, possession, itit was the the Defendant, through his Defendant, through his counsel, counsel, who who identified identified at at least least one one federal federal 14 14 investigation investigationor or case case in in which which Damian purportedly provided information information to the federal authorities. authorities. 15 Therefore, this information was Therefore, was already already in the possession possession of of the the Defendant. Defendant. Moreover, Moreover, it was 16
17 defense counsel counsel who who directed directedthe the Court Court and and the the prosecution prosecution to to the Justice Department regulations regulations
18 18 applicable to obtaining the iron the the information from the federal federal government; government; yet, yet, there there is no indication 19 that the the defendant defendanthas hasdiligently diligently pursued thisavenue, pursued this avenue,despite despiteititbeing beingavailable available to him. him. 20 (2) The (2) The burden on on the prosecutor in obtaining the information: prosecutor in information: In In Ayala, the court 21
considered whether the considered whether the prosecutor prosecutor "has "has aa means meansof of access accesstotothe theinformation information held by Federal Federal 22
23 authorities that that the thedefendant defendantdoes doesnot. not.[Citation [Citation omitted.] omitted.] Here, the prosecutor would have been
25 13 One significant difficulty 13 One significant difficulty in ruling ruling on on Defendant's Defendant's Brady Brady request request is is that that aa determinative determinative factor factor as as to to whether whether 26 "suppressed" "suppressed" evidence evidenceisis "material" "material"isis"whether "whetherthere thereisisaa reasonable reasonable probability probabilitythat, that, had the evidence evidence been beendisclosed disclosed to the defense, the proceeding would the result of the proceeding would have been different." deferent." UnitedUnited States v. Blaszczak, States v. Blaszczak, 308 F. Supp. 3dad 27 736, 736, 740 (S.D.N.Y. (S.D.N.Y. 20l8)(quoting 2018)(quoting Pennsylvania v. v. Ritchie, Ritchie, 480 U.S. U.S. 39, 39, 57, 57, 107 107 S.ct. S.Ct. 989, 989, 94 L.Ed.2d 40 (1987)(quoting (I United UnitedStates States v. Bagley, 473 U.S. U.S. 667, 682, 105 667,682, 105 S.Ct. S.ct. 3375, 3375, 87 87L.Ed.2d481 L.Ed.2d481 (1985))(emphasis added). 28 28 Obviously, Obviously,asasthe the Defendant Defendanthashas yet yet to be tried in this matter, matter, itit isis impossible impossible to determine prejudice to the Defendant Defendant in this context. in context. 14See, Ayala at p. 1 Ayala 251.
People People v. v. Moore, Criminal Case No. No. CF0314-2 CF03!4-21l Decision And Order Re. Re.Defendant's Motion to Compel Defendant's Motion CompelBrady/Giglio Brady/Giglio Material Materialand and Emergency Motion Emergency Motion Page 21 of32 Page 21 of32 1 required to comply required to comply with the the Federal Federal procedure procedureasaswell." well." Id. Id at at 250. 250. "In "In response response to discovery 2 . . . . . requests issued by the defendant that sought to to determine whether other other individuals individuals at at the party 3 were also Federal informants, informants, the the prosecutor submitted requests requestsfor for information related to these 4 4
5 individuals individuals in in compliance compliance with with the the Federal Federal regulations. regulations. Rather Rather than disclose this information, the
6 FBI curtly curtly informed informed the prosecutor thatitit "decline[d] prosecutor that "decline[d] either to confirm confirm or or deny deny whether whether [an
7 is or individual] is orwas was an an informant informant for for the the FBI." FBI."Id. Inthis Id. In thiscase, case, in inresponse response to a Touchy Toughy letter, the 8 USAO's USAO's response response to AAG AAGGrant Grant Olan Olan was was virtually virtually identical: identical: "the "the United United States States Attorney's 9
Office does Office does not not corNirrn confirm nor deny the identity of of any any person person who who provides provides assistance assistance to federal 10 10
11 investigators in in advance of federal proceedings proceedings requiring such disclosure." disclosure." Exhibit Exhibit 2. 2.
112 (3) Based Based upon degree of upon the degree of participation participation between Guam and between Guam and federal authorities,
13 13 there was no no "joint "joint investigation": investigation": Although Although the Court will will discuss discuss this this factor in in greater detail greater detail 14 14 below, below, applying applying this this factor, factor, the the Court Court finds finds that that of ofthe the hundreds of potential hundreds of potential witnesses witnesses identified identified 15
16 by both both the the prosecution prosecution and the defense, defense,only only one one witness witness-- Eric Eric Salone Salone - was interviewed by 16
17 17 NCIS NCIS because because he was a United States sailor at States sailor at the the time time of of his his interview interview by by NCIS NCIS and and was was the
18 18 subj actof subject ofan aninvestigation investigation by by NCIS NCIS for foraaseparate separate case. case. The The defendant defendant was not the subject of the 19 19 NCIS interview."15See, NCIS See, United UnitedStates States v, v. Blaszczalq Blaszczak, 308 F. Supp. ad 736,741 Supp. 3d 736, 741(S.D.N.Y. (S.D.N.Y. 2018). 2018). 20 In In United United States v. Blaszczalq States v. the district Blaszczak, the district court court held held that that the the Securities Securities and Exchange Exchange 21 21
22 Commission ("SEC") did not Commission ("SEC") not act act as as an an "Ami "arm of ofthe the prosecutor" prosecutor" despite despite having initiated an an 22
23 investigationagainst investigation againstthe thedefendant defendant in inthat thatcase casefor forinsider insidertrading. trading.111 that case, In that case, despite despite the the SEC
24 24 having conducted simultaneousinterviews conducted simultaneous interviewstogether togetherwith withthe theUnited UnitedStates StatesAttorney's Attorney's Office Office 25 2 ("USAO") ("USAO")ofof various variouswitnesses, witnesses,the thecourt courtheld held that that the the USAO USAO was was not not required required to review the the 26
28 15 People's Response to Dens Emergency Mot. to 15People's Response to Defs Emergency Mot. to Compel Brady/Giglio Material at 3.
People People v. v. Moore, Criminal CriminalCase Case No. CF0314-2 CF03 l ll Decision And And Order Re. Re. Defendant's Motion Motion to Compel Compel Brady/Giglio Brady/Giglio Material Materialand andEmergency Emergency Motion Page 22 of32 32 l SEC's action action memorandum (upon which was based based the the SEC's SEC's separate separatecivil civil enforcement enforcement action 2 2 against defendant) defendant) for for any Brady material, material, reasoning reasoning as follows: follows : 3 [T]he Brady doctrine is directed, first and foremost, at suppression of evidence by 4 osecut or salthough, al t hough,to t obebesure, sur e,it i tisi snot-and not -and could coul d not not properly pr oper l ybe-. be-so prosecutors so 5 rigorously cabined. ItIt extends to anyone who is an "arm of the the prosecutor." prosecutor." [citation omitted]. 6 Many cases deal with with whether whether particular particular individuals individuals have have acted acted as as "arms of the 7 prosecutor" prosecut or" in i n given cases. Thus, ven cases. Thus, for example,e, a government for exampl government agent agent who who 8 "participated actively in "participated actively in [an] [an] investigation," "was present investigation," "was present at counsel's counsel's table table throughout all throughout all or or most most of ofthe the trial," trial," and and "indicate[ed] that he "indicat[ed] that he was was intimately intimately involved involved 9 in the prosecution" was held to have acted as an arm arm of of the the prosecutor. prosecutor. [citation [citation omitted]. But a parole officer did not. [citation omitted]. [citation omitted]. omitted]. Nor did a cooperating cooperating lO 10 witness or informant who provided witness provided information information and testified testified at trial, trial, but who 11 11 "played no "played no role in the investigation or in determining determining investigation or trialtrial strategy." strategy." [citation omitted]. [citation omitted]. EvenEven a government government expert expert who who assisted assisted prosecutors prosecutors in in 12 12 developing devel opi ng cross-examination cross-exami nat i onquestions quest i onsandand participated part i ci pat edini n mock mock crosscross examinations examinations was was held held not toto have acted as an "arm of of the the prosecutor" prosecutor" [citation [citation 13 13 omitted] .... omitted].... 14 United United States States v. Blaszczak, Blaszczak, 308 F. Supp. ad 736, Supp. 3d 736, 741 741 (S.D.N.Y. (S.D.N.Y. 2018). 2018). See also,Diablo See also, Diallo v. State, State, 15 15
16 413 Md. 678 (2010)(the court found that the state state prosecutor prosecutor did did not not have have constructive constructive possession possession 16
117 of of federal records because the federal federal investigation was parallel but separate, and there there was no
18 18 extensive cooperation between the agencies). 119 In this case, the Court considers the extent considers the extent of of the the federal federal agency's agency's involvement involvement in the 20 investigation investigation leading to the charges against the Defendant here. Defendant proffers that the the USAO USAO 21
22 filing its Complaint Complaint against Defendant for Unlawful Unlawful Flight To To Avoid Avoid Prosecution Under 18 U.S.C. 22
23 §§ 1073 supports aa finding 1073 supports finding of of aa single single prosecutorial prosecutorial team team and, and, thus, thus, the the People People must must further further "scour" "scour"
24 24 the records records of the USAO, the the FBI FBI and and other other federal federal agencys agencys for Brady material. material. The Court 25 2 disagrees. disagrees. 26 II // 27 28 28 H II
People v. Moore, Criminal Criminal Case Case No. No. CF0314-2 CF0314-21l Decision And And Order Re. Re. Defendant's Motion Motion to Compel Compel Brady/Giglio Brady/Giglio Material Materialand and Emergency Emergency Motion Page 23 23 of32 32 l a. The The18 18USC USCSection Section 1073 1073 Action Action Filed by the USAO in in Federal Federal District Court Court does does not create a "joint "joint investigation" investigation" between the USAO between the USAO and the 22 local local law enforcement. law enforcement. 3
4 4 Defendant argues that the filing of a criminal action by the USAO in the District of District Court of
55 Guam Guam under under 18 USC §§ 1073 18 USC (also known 1073 (also known as as the the "Fugitive "Fugitive Felony Felony Act" Act" or "FFA") supports supports a 6 finding that the federal government of the local prosecution team and, therefore, the People government is part of 7 7 of Brady or Giulio are held to be in constructive possession of of the USAO, Giglio material in the hands of 8
99 other federal agencies who were involved in Service and any other NCIS, the FBI, the U.S. Marshal Service
10 10 this case. In this regard, Defendant claims:
11 The criminal complaint [in the federal court] underscores a shared investigative and complaint [in 12 12 informational nexus informational authorities and federal nexus between Guam authorities factual federal agencies: the factual core of the federal charge (flight to avoid prosecution) depends entirely on actions 13 13 investigations and communicated to or and evidence developed in Guam criminal investigations relied on by federal authorities in federal authorities preparing the affidavit. The criminal complaint in preparing 114 was not the initiation of stand-alone prosecution, but rather it was a procedural of a stand-alone 15 15 federal government to mechanism permitting the federal to work with and to assist a Guam investigation that local investigation that resulted resulted in in the instant prosecution. 16 16
The facts facts show the U.S. that the show that Attorney's Office U.S. Attorney's charged Moore federally Office charged based federally based 17 17 directly on on Guam Department investigations, and the U.S. Marshals worked Police Department Guam Police 118 Guam authorities, closely with Guam information to locate and authorities, using their information apprehend and apprehend Moore in in Florida. The intertwined Florida. The nature of intertwined nature of the investigations, shared the investigations, factual shared factual 19 19 action support coordin ated action an d coordinated predicate, and predicate, th e view su pport the (for Brady view that (for material Brady material rposes) federal purposes) federal prosecutors w ere functionally prosecu tors were an d practically n ction ally and part of th practically part the 20 16 "prosecution team" with "prosecution team" Guam authorities. with Guam authorities." 21 21 Defendant correctly Defendant correctly notes that the notes that USAO filed the USAO tiled a Criminal Complaint against him for a 222
violation violation of he departed when he of the FFA when in violation departed Guam in of the Act. Def's violation of to Compel Motion to Def's Motion at Compel at 23 23
24 24 Exhibit A - Complaint in Federal Complaint in Court (United Federal Court vs. Nicholas Wayne of America vs. (United States of Moore, Wayne Moore,
25 2 United United States District Court States District Court for forthe the Territory Territoryofa/Guam, Guam, Magistrate MagistrateCase 21-00128 (May 28, No. 21 CaseNo. 26 26 the finding 2021). As further support for the joint investigation or team effort, Defendant points Ending of a joint 27
28 2 16 Le Motion p. 4. Motion to Compel at p.
People People v. v. Moore, Criminal CriminalCase Case No. CF0314-2l CF0314-21 Decision Decision And And Order Order Re. Defendant's Motion Motion to Compel Brady/Giglio Material Compel Brady/Giglio Emergency Motion and Emergency Material and Page 32 Page 24 of32 1 to the USAO's Sealthe ApplicationtotoSeal USAO's Application Record, and theRecord, subsequently, Unseal and subsequently, the Record Unseal the in the same Record in 22 case. Id. atat Exhibits argues that He argues C. He B, C. ExhibitsB, the filing of that the A action of the FFA and the motions to seal and action and 33 then unseal the record indicates the the record U.S. Attorney's the U.S. of Office had ongoing control and oversight of Attorney's Office 4 4
the investigative process; "was not process, that the USAO "was passive or not aa passive secondary participant. or secondary Instead, participant. Instead, 5
66 of law they made deliberate prosecutorial decisions regarding timing, secrecy, and coordination of
7 enforcement response, analysis. 17 The Brady analysis."l7 team in Brody thus showing an integrated prosecution team response, thus The 8 g Court disagrees. disagrees. 9 i. Federal Federal FFA FFAComplaint Complaintisisseparate separate and and independent independent of local of local 10 10 prosecution prosecution and seeks to advance seeks to advanceaaseparate federal interest. separatefederal 11 The basis of an action under the Fugitive under the Felony Act Fugitive Felony of fleeing Act (FFA) is a defendant's act of 12
the state or territorial jurisdiction in which the defendant faces prosecution in order to avoid such territorial jurisdiction 13 13
14 14 and distinct prosecution. Thus, a complaint under the FFA charges the defendant with a separate and
15 15 state (or territorial) prosecution for the underlying crime from the state felony alleged to have been underlying felony 16 16 committed by the Defendant. 17 17 18 U.S.C. §§ 1073 18 U.S.C. provides as 1073 provides as follows: follows: 118
§1073. § 1073. Flight Flightto toavoid avoidprosecution prosecution or or giving giving testimony. testimony. 119
Whoever moves or travels in interstate travels in commerce with interstate or foreign commerce intent either with intent (1) either (1) 20 or custody or to avoid prosecution, or confinement after conviction, under the laws of or confinement of 21 21 the the place from flees, for from which he flees, crime, or an for a crime, attempt to commit an attempt crime, commit aa crime, punishable by death or which is a felony under the laws of felony under of the place from which 222 flees, or (2) to avoid giving testimony in any criminal proceedings in the fugitive flees, such place in which the commission of of an offense punishable by death or which is 23 23 a felony under the laws of such place, is charged, or (3) to avoid service of such service of, or 24 24 contempt for alleged proceedin gs for tempt proceedings disobedience alleged disobedien ce of, lawfull process of lawfu requiring process req u irin attendance and the giving of testimony or the production of documentary evidence 25 2 before empowered by the State empowered agency of aa State before an agency the lawlaw of conduct to conduct State to such State of such investigations of alleged criminal investigations of alleged criminal activities, activities, shall shall be be fined fined under under this this or title or 26 2 imprisoned imprisonednotnotmore thanfive morethan years,ororboth. fiveyears, For both.For thethe purposes of pLus*poses of clause (3) of this clause (3) 27 2
28 2 17 17 Id. p. 77 ((emphasis added). Id at p. added).
People People v. v. Moore, Criminal CriminalCase Case No. CF0314-2 CF0314-21l Decision Decision And And Order Order Re. Re. Defendant's Defendant's Motion to Compel Braa§//Giglio Motion to Material and Brady/Giglio Material andEmergency Emergency Motion Motion Page 32 Page 25 of32 1 paragraph, theterm paragraph, the term"State" "State" includes includes aa State State of of the the United States, States, the the District District of of Columbia, and any commonwealth, territory, or possession of the United States. States. 2 2
3 Violations ofthis Violations of this section section may be prosecuted prosecutedonlyonlyinin the theFederal Federaljudicial judicial district in which the original crime crime was was alleged to have been been committed, or in in which which the 4 person was held held in in custody custody or or confinement, confinement, or or in in which an avoidance avoidance of of service service of of 5 process or process or aa contempt contempt referred referredto to in in clause clause(3) (3) of of the the first paragraph of first paragraph of this section is is alleged to have been beencommitted, committed,and andonly onlyupon uponformal formalapproval approvalininwriting writing by the 6 General, the Deputy Attorney General, Attorney General, General, the Associate Attorney General, General, or an Assistant Assistant Attorney Attorney General General of the United States, which function States, which function of approving 7 18 prosecutions may prosecutions may not not be be delegated. delegated." 8 The seminal case interpreting interpreting the the Congressional Congressional intent intent of ofthe FFA is is US. US. v.v. Brandenburg, Brandenburg, 9 rd 144 144 F.2d 656,659 659 (3 (3rd Cir.1944), Cir. 1944),which whichcontains containsthe thefollowing following discussion: discussion: 10 10
11 The purpose purpose of the the Fugitive Fugitive FelonFelonAct Actwas wastated statedbybyCongressman CongressmanSummers,Sumners, Chainman Chairman of of the the Committee Committee on the the Judiciary Judiciary of of the the House House of ofRepresentatives, Representatives, 12 quoting the comments comments of of the the Attorney GeneralGeneral of thethe United States the bill as States on the as follows: 'One of the most difficult problems which local follows: 'One of the most difficult problems which local law-enforcement law-enforcement agencies 13 have to deal deal with today is the ease ease with which criminals are are able able to to flee from the 14 State to to avoid prosecution ** * avoid prosecution * **..The The above bill is considered the most satisfactory above bill is considered the most solution of this problem, whichwhich the the States Stateshave havenever neverbeen beenable abletotosolve solveeffectively. effectively. 15 This bill will willnot notprevent prevent the the States from obtaining obtaining extradition extraditionofroving of roving criminals, but the complicated but the complicated process processof of extradition extraditionhas hasproved provedtotobe bevery very inefficient. inefficient. The 116 ability of ofFederal Federal officers officerstoto follow followaacriminal criminalfrom fromone oneState Statetotoany anyother other State State or 17 17 States, asprovided States, as provided in the the above above bill, bill, should furnish the the desired desiredrelief relief from this class of evaders. ***** *' Report law evaders. oflaw 'ReportNo. No.14581458ofofthe theHouse HouseCommittee Committeeon onthe the Judiciary Judiciary 18 18 to accompany S. 2253, May 3, 3, 1934, 1934, 73rd Congress, 2nd Session. The same same report shows that that the the word word 'burglary' and and the other other specific offenses named named in in the the Act Act 19 19 were substituted were substituted for forthe thewords words 'a 'a felony' f`elony' used used in in the the original original bill. TheThe general general 20 purpose purpose of of the the Act Act was was to assist in the enforcement of of state laws. state laws.
21 In In US. v. v. Thurman, Thurman, the Third Circuit Circuit held held that primely purpose of the Act that the primary Act is is to to:: 22 [...] ... ]return returnthe the felon felonto tothe the state state where the original flight flightoccurred occurred inin order order to assist assist 23 state officials in state officials in combating combatting organized organized crime crime there, there, and and to vindicate vindicate thethe federal interest in punishing actscommitted punishing acts committedin inthe thejudicial judicialdistrict districtwhere wherethetheoriginal originalflight flight 24 took place. place. As the court observed observed in Lupino v. United United States, States, 268 268 F.2d 799,799, 801 801 25 2 (8th (8th Cir.), Cir.), cert. cert. denied, denied, 361 361 U.S. 834, 80 S.Ct. 834, 80 S.ct. 86, 75 (1959): 86, 4 L.Ed.2d 75 (1959):
26 Such Such flights by by perpetrators perpetrators of crimes crimes against against thethe states states are are a common means meansofof hindering hindering state justice justice as asisis well well known known and, as itit and, as 27
28 is 18 18 18 U.S.C. U.S.C. §§ 1073(emphasis l073(emphasis added). added).
People v. v. Moore, Moore, Criminal Criminal Case No. CF0314-21l Case No. Decision And And Order Re. Defendant's Motion Re. Defendant's Motionto to Compel Brady/Giglio Material Compel Brady/Giglio Materialand andEmergency Emergency Motion Motion Page 26 of32 32 1 is the federal government which accords the freedom of of movement throughout the the country country that that makes makes the the flights flights possible, possible, it is plainly 2 2 within the province ofof that government to regulate this abuse of it. 3 The abuse is against the peace and dignity ofof the United States and of the States. also that of 4
United United States v.v. Thurman, Thurman, 687 F.2d 11, 11, 13 13 (3d (ad Cir. Cir. l982)(emphasis 1982)(emphasis added). added). 5
6 Moreover, the federal complaint under the the FFA may proceed proceed even even absent absent the filing of of an 7 indictment in the state court against the fleeing defendant. In Lupino v. United States, States, 185 F. Supp. 8 363, 367 (D. (D. Minn. Minn. 1960), 1960), the the Minnesota Minnesota District District Court, Court, in addressing addressing the constitutionality of of the 9
FFA, ruled FFA, ruledthat that the the law lawserves serves the theentire entirenation nation and and the the national national interest interest in the judicial system, 10
11 regardless regardless of whether whether the the state has has charged charged the the fleeing fleeing defendant, defendant, finding finding that that the the federal federal
12 prosecution is independent of of any actual state prosecution of of the underlying state law crime: 13 13 Section Section 1073 1073 proscribes acts which which are offensive to the dignity of of the United States, 14 14 not the individual individual State. State. For that that reason the existence existence or lack thereof thereof of of State State charges is wholly irrelevant irrelevant insofar insofar as a citizen citizen is accorded due process in in his arrest 15 15 for violating Section Section 1073. 1073. Congress, not the states, has established the punishable offense, and it is, therefore, federal, not state, arresting and removal process which 16 16 is relevant. 17 17 In the instant case, the Indictment against Defendant Defendant had had not not been filed filed at the time the 18 18
19 USAO filed its FFA FFA Complaint Complaintin in the the District District Court Court of ofGuam Guam on on May May 28, 28, 2021. 2021. See, Def's Mot. Mol. 19
20 20 to Compel at Exhibit A, B, B; compare, Indictment in CF0314-21 (July 15, 15, 2021). Thus, the the action
21 in the the federal federal court court proceeded proceeded independently independently of the the instant instant case case and, and, therefore, therefore, cannot cannot be 22 22 considered a ')oint prosecution" between 'joint prosecution" between the the USAO USAOand andthe the Guam Guam Police PoliceDepartment Department and and other other 23 local authorities. 24
Additional information Additional contained in the Defendant's submission information contained submission supports supports this finding, finding, 25 2
26 26 including Defendant's Defendant's acknowledgement acknowledgement that "[t]he U.S. Marshals Service led the investigation 27 27 regarding regarding Moore's Moore's fugitive fugitivestatus statusafter afteraawarrant warrantfor formurder murderand andrelated relatedoffenses offenses was was issued issued by 28 28 the Superior the Superior Court Court of Guam." Motion to of Guam." to Compel Compel at at p. 55 (emphasis (emphasis added). added). Exhibit Exhibit A to A to
People People v. v. Moore, Criminal Criminal Case Case No. CF0314-21 CF0314-21 Decision And And Order Order Re. Defendant's Motion Re. Defendant's Motion to to Compel Compel Brady/Giglio Eraay/Giglio Materia] Material and and Emergency Emergency Motion Page Z7 of32 Page 27 32 1 Defendant's Motion Motion to to Compel Compelisisthe theComplaint Complaintin inthe the District DistrictCourt Courtpursuant to the pursuant to the FFA and and 2 contains the the sworn swam statement of Deputy statement of DeputyU.S. U.S. Marshal Marshal Marciano J. J. Patricio, Patricio, who is the Deputy Deputy in 3 Charge of the U.S. U.S. Marshals MarshalsViolent Violent Fugitive Task Force, USMS, District of ofGuam. Guam. Exhibit A at 4
5 ,r 1. InInthe 111. theComplaint, Complaint,Patricio Patricioavows, avows,as asfollows: follows:
6 3. The information in in this this affidavit affidavitisisbased based on onmy mypersonal personal knowledge, knowledge, information provided to information provided to me by by other other law lawenforcement enforcement officers officers and and 7 individuals, and and the the reports reports andand memoranda memoranda of other other law lawenforcement enforcement 8 officers. The The information information in this this ajyidavit affidavit is is provided provided for @ lthe g limited purpose grg[ establishing establishing sufficient probable probable cause f!!1!!£. @ [gr, g!! request @ [gr, Q!! 9 warrant grg[ arrest and does not and does not set set forth forth all all of my my knowledge knowledge aboutabout this matter. matter. 10 10
11 4. On May 21,21, 2021, 2021, II received received information information through through investigative investigative means means that the Defendant, that the Defendant,NICHOLAS NICHOLASWAYNE WAYNE MOOREMOORE (MOORE), (MOORE), is aa 12 fugitive/person fugitive/person with with an an outstanding outstanding warrant ofofarrest arrest issued by the Superior Court of Guam for the offense of ofMurder, Murder, Aggravated Aggravated Assault Assault and and the Use 13 13 of ofaa Deadly Deadly Weapon Weapon in in the the Commission Commission of aa Felony. Felony. Defendant Defendant MOORE 14 14 was located on May 27, 27, 2021, by Deputy U.S. Marshals and 2021, by Deputy U.S. Marshals and task force officers with with the the U.S. U.S. Marshals Marshals Florida Florida Regional Regional Fugitive TaskTask Force. Force. 15 15 Defendant Defendant MOORE was located and positively confirmed outside his MOORE was located and positively confirmed outside his apartment unitatat4300 apartment unit 4300BayBayPoint PointDrive, Drive, Panama PanamaCity City Beach, Beach, Florida. Florida. 16 16
17 17 5. 5. Information Information developed during during thethe investigation investigation that that indicated indicated that that Defendant Defendant MOOREMOORE was was implicated implicated in in two two (2) (2)separate separate "shooting" "shooting" 18 18 investigations investigationson onGuam Guam that that occurred occurred on on October October 15, 15, 2020, and October 30, 2020, wherein one one victim victim survived survived the incident. The second victim victim was later 19 reported missing and is presumed deceased. deceased. Throughout Throughout the the investigation, investigation, 20 it is is believed believed that that the the second second victim victim was was shot shot multiple multiple times with aa .45 .45 caliber pistol, pistol, while inside his vehicle. vehicle. The second second victim's body body is also also 21 21 believed to be be disposed disposed ofof inin the the ocean, ocean, utilizing utilizing Defendant Defendant MOORE's father's boat. DNA testing father's boat. testing further further indicated indicated that thethe blood located in in the the 22 victim's vehicle victim's vehicle and and blood blood later later found on the the pistol pistol (.45 (.45 caliber) caliber) confiscated 23 2 at Defendant Defendant MOORE's MOORE's Guam Guam residence, matchedthe residence, matched theDNA DNA ofofthe the second second victim. victim. 24
225 6. On OnNovember November14, 14, 2020, 2020, just just days after his interview with Guam Police Police Department Detectives, Defendant Defendant MOORE MOOREdeparted departedGuam Guam withwith the reason 26 of ofattending attending a drug drug rehabilitation program at at the theBetty Betty Ford Ford Clinic Clinic in Palm Springs, California. California. Defendant Defendant MOORE MOOREwas wasscheduled scheduled to to return return to Guam Guam 27 within within 30 days following the completion of his treatment. following the completion of his treatment. The Guam Police Guam Police 28 Department Department hashassince since learned learnedthat thatDefendant DefendantMOOREMOORE left left the the state state of
People v.Moore, Moore, Criminal Criminal CaseNo. Case No. CF0314-2 CF0314-21I Decision And And Order Re. Defendant's Motion Motion to Compel Compel Brady/Giglio Brady/Giglio Material Materialand andEmergency Motion Emergency Motion Page Page 28 28 of of32 1 California California and and was was arrested arrested on February February 9, 2021, 2021, in Panama Panama City Beach, Florida Florida by police police officials officialsfor foraamisdemeanor misdemeanor criminal offense. criminal offense. 2
3 7. Based Based on on the the information information in in this Affidavit, Affidavit, your youraffiant affiantsubmits submits there there is probable cause to support the issuance support the issuance ofof a criminal complaint complaint andand arrest arrest 4 warrant forNICHOLAS warrant for NICHOLASWAYNE WAYNE MOORE for violationviolation of ofTitle Title 18, 18, United 5 States Code, Section 1073, 1073,Unlawful Unlawful Flight Flight to to Avoid Avoid Prosecution Prosecution inin relation to Guam Police Police Department Department Case Case Nos. Nos. 2020-27259 2020-27259 and and 2020-25884. 2020-25884. 6 at ,r,r Exhibit A at WE3 -- 77(emphasis (emphasis added). added). 7
8 While the Complaint indicates thatthe indicates that theknowledge knowledgeisis gleaned gleanedboth bothfrom from Patricio's Patricio's own
9 personal personal knowledge as as well well as from other law law enforcement enforcement officials, officials, including including the Guam Police Guam Police 10 10 Department (GPD), as Department (GPD), as set forth in the the Complaint, Complaint, the the information informationfrom from GPD GPD relates relatesspecifically specifically 11 to Moore's Moore'sdeparture departure from from Guam Guam in order to to avoid prosecution in in open open GPD GPD cases, cases, in in violation violation 12 12
of ofthe the FFA. FF A. Thus, Thus, while whilethe the federal federal government government may may file fileaacomplaint complaintunder under the FFA to to arrest arrest a 13 13
14 14 defendant who has has fled fled the state state or or territory territory in order to to avoid avoid prosecution, this action alone does
15 15 not establish aajoint joint investigation, investigation, evenif ifthe the allegation allegation is is based based upon information iiNormationfrom fromlocal local law 16 enforcement. 17 Courts have emphasized that cooperation between between state state and federal authorities, authorities, such such as 118
sharing informationor sharing information or coordinating coordinatingarrests, arrests,does doesnot notnecessarily necessarilyrise risetotothe thelevel levelof of a joint 19 19
20 20 investigation for Brady Brady or or Giulio Gigliopurposes. purposes.InInUnited UnitedStates Statesv.v.Ram os- Cartagena, the court held Ramos-Cartagena,
21 21 that that a general general cooperative agreement agreement between state state and and federal federal authorities authorities was was insufficient to 22 22 impose Brady obligations obligations on on federal federal prosecutors unlessthe prosecutors unless thecooperative cooperativeactivity activity directly directly resulted 23 in in the indictment indictment at atissue. issue.US. US v. Ramos-Cartagena, Ramps-Cartagena, 9 9 F.Supp.2d F.Supp.2d 88 (D.P.R. 1998). Nothing in 1998). Nothing in 24 25 Defendant's submissions indicatesthat submissions indicates thatthe theUSAO's USAO's (and (and U.S. U.S. Marshal Service) filing Marshal Service) filing of of the the 25
26 Complaint in in the District Court of of Guamdirectly Guam directly resulted resulted in in the Indictment in this case. case. At At best,
27 27 the effort effort of ofthe the USAO USAOand andthe the U.S. U.S.Marshals MarshalsService Serviceresulted resultedin inreturning returningthe the Defendant Defendant to Guam 28 to face prosecution, not not in the the issuance issuanceof of the theIndictment Indictmentitself, itself, which which is is subject subj et to to local local law law under under
People v. v. Moore, Criminal CriminalCase Case No. No. CF0314-21 CF0314-21 Decision And And Order Order Re. Re. Defendant's Defendant's Motion Motion to to Compel Compel Brady/Giglio Brady/Giglio Material Materialand and Emergency Motion Emergency Motion Page 29 of32 Page29 32 l 8 G.C.A., G.C.A., Chapter Chapter 50. 50. Indeed, Indeed, the FFA Complaint Complaint itself itselfindicates indicates that that its its purpose purpose is to seek seek aa 2 warrant of arrest pursuant pursuantto tothe theFF FFA. A. Complaintat1]3, at 13, supra. supra. 3 The FFA underscores underscores the independent federal interest independent federal interest in in maintaining maintaining the the integrity integrity of the 4
of ofthe the justice system by by preventing preventing individuals from evading accountability throughjurisdictional jurisdictional 5
6 loopholes. This This principle principle is is consistent the legislative consistent with the legislative history history of the Act, which which highlights its
7 role role in in addressing "roving class of criminals" addressing a "roving criminals" who who exploit exploitstate stateboundaries boundaries to avoid avoid prosecution. 8 Thus, despite Thus, despite Defendant's Defendant's contention, contention, the the USAO's USAO's Complaint Complaintagainst against Defendant Defendant under the FFA, under the FFA, 9 supported bythe supported by theAffidavit Affidavit of ofProbable Probable Cause Cause signed signed by Deputy Deputy U.S. Marshal Marshal Patricio, served a 10 10
11 11 stated federal federal purpose independent independentof of the the local local prosecution. prosecution. The USAO directed directed the prosecution
12 12 of the FFA of the FF Complaint Complaint without without any any involvement involvement of ofthe the OAG, OAG, and, and, under the specific facts, under the facts, it is
13 13 insufficient to establish establishaa"joint "joint investigation" investigation" or 'joint 'joint prosecution" prosecution" for for the the purpose ofBrady purpose of Brady or or 114 Giulio Giglio in this case. case. The Court Court notes furtherthat, notes further that,had hadthe theUSAO USAO "been "been acting acting on on the the [local] [local] 15
16 government's behalf in the case," case," the USAO's USAO'sMotion MotiontotoSeal Sealthe theCase Casewould wouldhave have barred barred the 16
17 17 OAG OAG from from participating participatingin inany any manner manner with with the federal prosecution -- including including as as an observer to
Is 18 the proceedings - and, and, therefore, could could hardly hardly be be deemed a joint joint prosecution directed by by the the local local 19 19 law enforcement. enforcement. 20 There is no other evidence proffered proffered by the the Defendant Defendant to indicate that that the theUSAO USAO or the 21 21
22 U.S. Marshals Marshals Services participated in any any way in in the the investigation investigation of ofthe the underlying underlying criminal 22
23 2 charges or that their involvement directly directly resulted resulted in in the the Indictment Indictment against Defendant in this
24 24 case. As As such, basedupon such, based uponreview review of of Defendant's submissions evidencing the submissions evidencing the involvement involvement of the 25 2 USAO USAO and and the the US Marshal Marshal Service in in this case, the Court case, the Courtfinds findsthat thatthe theUSAO's USAO'sfiling filing of a 26 Complaint in in the the District District Court Court of ofGuam Guamadvancing advancingan anindependent independent federal federal purpose purpose under under the 27
People People v. v. Moore, Criminal CriminalCase Case No. CF0314-21 CF0314-21 Decision And And Order Re. Defendant's Motion Re. Defendant's Motion to to Compel Compel Brady/Giglio Brady/Giglio Material Material and and Emergency Motion Emergency Motion Page 32 Page 30 of32 l Fugitive Fugitive Felon Felon Act Act does does not not establish establish aa "joint "joint prosecution" prosecution"or or"j'joint hint investigation" for the purpose 2 2 of involdng the of invoking the OAG's OAG's obligations obligations under Brady or Giulio. Giglio. 3 Moreover, even assuming arguendo that the separate and unrelated complaint under the 4
5 FFA did did constitute constitute aa "joint 'joint investigation" investigation" between the USAO/US USAO/US Marshals the local law Marshals and the
66 enforcement enforcement -- which it clearly does not - the the involvement involvement was limited only to the Defendant's 7 departure from Guam to avoid prosecution and did not involve any other investigation of of witness 8 Troy Ryan Ryan Damian, Damian, who who is is the subj act of subject of Defendant's Defendant's Motion. 9
CONCLUSION 110
11 For the reasons set forth herein, herein, the Defendant's Motions to Compel Brady or Giulio Giglio
12 material in the possession of the the U.S. U.S. Attorney's Attorney's Office, Office, the U.S. Marshal Service, NCIS, the FBI 13 13 and any other federal federal agency (collectively, the the "Federal Agencies") is DENIED. Furthermore, 14 because the because the Court Court finds finds that that any any material material in in the the hands hands of of the the federal relating to federal government relating 15 15
16 Damian is not in the possession of of the People, the Court further DENIES Defendant's Defendant's request to 16
17 17 extend review of of the files of the Federal Agencies as it relates to any of the potential witnesses in
18 18 this case. 19 19 Therefore, the Defendant's requests for relief are addressed accordingly: 20 11.. Order the Prosecution Prosecution to to "scour" the the files files of the the U.S. U.S. Attorney's Office, Office, the U.S. 21 21
Marshal's al's Office, Office, and th the Naval Naval Crimin al InInvestigation Criminal vestigation Service Service (NCIS) (NCIS) for fo 22
23 Brady/Giglio Material. Motion Motion at at p. p. 88 (Aug. 6, 2025): 2025): DENIED, DENIED; 24 2. Order the Prosecution Prosecution to report report to the Court and Defendant Defendant the results of of the search, 25 2 to include identifying the type of of files it reviewed, "who participated participated in in the search, 26 at type what type of of ininformation form ation was sou sought,t, an and wwhat h degree degree of of con fiden confidence th the 27
People v. Moore, Moore, Criminal CriminalCase Case No. CF0314-2 CF0314-21l Decision And Order Re. Defendant's Defendant's Motion Motion to to Compel Brady/Giglio Brady/Giglio Material Materialand andEmergency Emergency Motion Page 31 of32 Page 31 of32 l govennnent governmenthas has that that its search yielded the correct results results and andwhy why the thegovernment' government's 2 confidence is at the the level reported." Id.: level reported." Id: DENIED; 3 3. Order compelled disclosure disclosure and, specifically, to to "[d]irect the the Attorney General's 4
Office to diligently pursue and obtain the material from Hom the the U.S. U.S. Attorney's Attorney's Office, 5
6 with affidavits documenting documenting efforts. ,. " Emergency efforts .... Emergency Motion Motion at p. 5 (Aug. 7, 2025):
7 DENIED; 8 4. Grant a continuance for an indefinite indefinite period periof of of time, time; Id. Id. at p. 6: DENIED. 9 5. or dismissal if Impose sanctions or if non-compliance non-compliance persists. persists. Id.: Id.: DENIED. 10
11 6. Other relief Other relief as appropriate. Id.: Id.: DENIED.
12 12 SO ORDERED ORDERED this 20th day of September, 2025. this 20'h
U&fG:-) 13
14 14 J 15 HONORABLE MARIA MARIA T. CENZON 16 16 Judge, Superior Superior Court of Guam
17 17
19 19
22 22
23 SERVICE SERVICE VIA vIA E-MAIL E-MAIL IIacknowl acknowledgedgethat thatan an el ctroni electronic 24 24 © °Pyofofthe copy t eoriginal origi alwas wase-mailed emdledto: to: 25 (ma \ Peru is01-~ittJ.O, wwwu0/ M gk1»1n,fFJ w¢gm-e.»qv¢,,9 ~~~~J....,J.=.W;.:.:i,...;~~~~ 26 SEP 2 0 2025 }z'.nim ',\\~ Tlaie 27 C'J~ ¢YN:4*Nn.T T.. Thong ,..,Hf Uiark, Tio_n9_ ~lerk:, Superior Court al Superior Court 01 Guam Guam 28
People v. v. Moore, Moore, Criminal Criminal Case Case No. No. CF03 14-2 I CF03l4-21 Decision And Order Decision And Order Re. Defendant's Defendant's Mot ion to Motion to Compel Erady/Giglio Brady/Giglio Material Materialand andEmergency Emergency Motion Page 32 of32 Page 32 of32
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People v. Moore, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-moore-superctguam-2025.