People v. Moore

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

5

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

26

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 -

28

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

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

32

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

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

27

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

27

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

26

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

27

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

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

27 2

28 2

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

119

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

28

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

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 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

24

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

32

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

27

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

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

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 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

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

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

28

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

28

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

18 18

19 19

20

21

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