People v. Sablan

Opinion

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2 2§m gag 25 202~ APR 25 Fn3 1:I:31+ 34 3 CLERK OF CLERK OF COURT COURT 4 IN THESUPERIOR IN THE COURT(lf SUPERIORCOURT OFGUAM~. GUAM I 5 8 5--.__*_

6 PEOPLE OF GUAM GUAM Criminal CriminalCase Case No. CF0447-23 7 vs. vs.

8 DECISION AND ORDER ALEJO c. C. SABLAN SABLANet et al., al., (Motion (Motion to to Disqualify Disqualify the the Office Office of the 9 Attorney General) General) Defendant. Defendant. 10 10

11 This matter came camebefore before the the Honorable HonorableAlberto Alberto E. Tolentino Tolentino on on several several dates dates in in October October and and 12 12 November November 2023, 2023, for an evidentiary evidentiary hearing hearingon onAlejo Alejo C. Sablan's ("Defendant") ("Defendant") Motion Motion to Disqualify 13 the Office Office of ofthe the Attorney AttorneyGeneral General (Sept. (Sept. 1, 1, 2023). 2023). At Ateach eachhearing, hearing, Attorneys Attorneys Joaquin Angola, Joaquin C. Arriola, 14 14

15 15 Jr. andWilliam Jr. and Brennanappeared B. Brennan William B. appearedon onbehalf behalfofofDefendant. Defendant.At At different different hearings, hearings,the theOffice Office of of

16 16 the the Attorney General representedby General was represented byone oneor ormore moreof ofAttorney Attorney General GeneralDouglas DouglasMoylan, Moylan, Acting Acting

17 Chief Prosecutor GloriaL. Prosecutor Gloria L. Rudolph, Rudolph,Assistant AssistantAttorney AttorneyGeneral General ("AAG") Lewis Lewis Harley, Harley, AAG AAG ("AAG") 18 18 Daniel AAG D. Daniel Morris, AAG D. Graham Graham Botha, and Special Botha, and Special Assistant AssistantAttorney AttorneyGeneral General("SAAG") ("SAAG") Joseph Joseph 19 B. McDonald. McDonald. Counsel Counsel for for Defendant's Defendant's co-defendants, as well co-defendants, as well as as counsel counselfor for the the Office Office of the the 20 Governor Governor of ofGuam, Guam, were also also present at some present at some stages stages of of the proceedings 1 Having duly the proceedings. duly considered considered 21

22 the parties' briefing briefing and and oral oral arguments, arguments, witness testimony, and applicable applicable law, the Court hereby

23 GRANTS GRANTSDefendant's Defendant's Motion.

25 1 The 1 notes the thefollowing following counsel counsel were were also The Court notes also present present forfor some some of ofthe the proceedings: J On On behalf behalf of ofDefendant: Attorney Christine Defendant: Attorney Christine Arriola Arriola (Nov. (Nov. 6, 6, 2023), 2023); 26 On On behalf behalfofofCo-defendant Co-defendant Ybanez: Attorney Attorney Sean Sean Brown (Oct. 20, Brown (Oct. 20, 2023), Attorney Louie 2023), and Attorney Louie Yanza Yanza (Nov. (Nov. 6, 6, 2023), 2023); On On behalf behalfofofCo-defendant Co-defendant Badar Cruz: PublicPublicDefender DefenderStephen Stephen Hattori Hattori (Oct. (Oct. 20, 20, Nov. Nov. 1, 1, and and Nov. 6, 6, 2023), 2023); 27 On On behalf behalfofofCo-defendant Co-defendant Susuico: Susuico: Attorney Attorney Peter Peter Santos Santos (Nov. 6, 6, 2023), 2023); On behalf On behalf of ofthe the Office Office of ofthe the Governor Governor of Guam: of Guam: Attorney Jeffrey Moots Attorney Jeffrey Moots (Oct. (Oct. 20, 20, 2023), andAttorney 2023), and AttorneyLeslie Leslie Travis Travis 28 (Nov. 1, 1, 2023). 2023). 1 1 'I

1 1 BACKGROUND Defendant is the the former former Chairman Chairman of of the the Board Board of of Directors for for the the Guam Regional Transit 2

3 Authority ("GRTA"). OnOn Authority ("GRTA"). July July3,3,2023, 2023,a agrand grandjury juryindicted indicted Defendant Defendant on charges of Theft by charges of

4 Complicity Complicity (as (as aa Second Second Degree Degree Felony), Felony),Conspiracy Conspiracyfor forMisapplication MisapplicationofofEntrusted Entrusted Funds Funds (as aa 5 Third Degree Felony), Third Felony), Misapplication Misapplication of of Entrusted Entrusted Funds (as a Misdemeanor), Funds (as Misdemeanor), and and Official 6 Misconduct (as a Misdemeanor), Misdemeanor), as as well well as a Special Special Allegation Allegation of ofCrime Crime Against Against the the Community Community 7 attached to all attached to all four charges. charges. See See Indictment at 8-10 8-10 (Jul. (Jul. 3, 3, 2023). 2023). There There are are four four co-defendants co-defendants in 8 this case, case, all all of whom are connected connected to to GRTA GRTA and and all all of ofwhom whomface facerelated charges. 2 It is alleged related charges 9

10 10 that co-defendantRichard that co-defendant RichardY.Y.Ybanez, Ybanez, the the former former Interim InterimExecutive ExecutiveManager Managerof of GRTA, GRTA, was was not not

11 legally legallyqualified qualifiedto tohold holdthat that office, office;ititisisfurther furtheralleged allegedthat that Defendant Defendant conspired or or was was complicit complicit in

12 Ybanez illegally receiving Ybanez receiving the the salary salary of that that office. See SeePeople's People'sProposed Proposed Findings Findings of ofFact Fact and and 13 Conclusions of Law Conclusions of Law ("Proposed ("Proposed FFCL") FFCL") at at 22 (Dec. (Dec. 4, 4, 2023). 14 14 On September 1,2023, September 1, 2023,Defendant Defendantfiled filedaaMotion Motionto to Disqualify Disqualify the the Office Office of of the the Attorney 15 General. General. Defendant arguesthe Defendant argues theOffice Officeof of the theAttorney AttorneyGeneral General("OAG") ("OAG") has has a disqualifying disqualifying conflict 16 16 of ofinterest interest in in this case casebecause becauseone onedivision division of of the the OAG OAG is is prosecuting this case casewhile while another anotherdivision division 17 17

18 18 of ofthe OAG has provided the OAG provided legal legal services services to to GRTA GRTA on on this very issue. issue. Mot. Disqualify Disqualify (Sept. (Sept. 1, 1, 2023).

119 On On September 15, 2023, September 15, 2023,the thePeople Peopleof Guam (the of Guam (the prosecutorial prosecutorialdivision divisionof ofthe theOAG) OAG) filed an an 20 Opposition, arguing that disqualification disqualification was not warranted. warranted. On arguing that On September 22, Defendant September 22, Defendant filed filed aa 21 Reply, Reply, reasserting reasserting conflict conflict of ofinterest interestprinciples principlesand and requesting requesting an an evidentiary evidentiary hearing hearing to determine determine 22 whether whether aa conflict conflict wall was in place. 23 The case first came before before this 3 After a stipulation by the parties, this Court Court on on October October 4, 2023.3 After a stipulation by the 24

25 z2 The The co-defendants co-defendantsare areRichard RichardY.YYbanez, Ybanez,former formerIntermit Intermit Executive Executive Manager for for GRTA; GRTA, Jennifer Jennifer Badar Badar Cruz, Cruz, 26 Certifying Officer forfor GRTA, GRTA; Kevin Kevin J.T. J.T. Susuico, Susuico, Director the Board Director of the Board ofof Directors Directors for for GRTA, GRTA; andand Anthony Anthony P.P. Chargualaf, Vice-Chairman Vice-Chairman ofof the the Board Board of of Directors Directors for GRTA. See generally Indictment See generally Indictment (July (July 3, 3, 2023). 2023). 27 3 3 The case was originally case was originally before the Honorable Presiding Judge Alberto Presiding Judge Alberto C. C. Lamorena Lamorena III. III. However, However, on on September September 27,27, 2023, 2023, Presiding PresidingJudge JudgeLamorena Lamorenadisqualified disqualifiedhimself himself from from the the case. case. Form Form One One-_Disqualification Disqualification (Sept. (Sept. 28 27, 2023). The Thecase case was thereafter reassigned reassigned toto this this Court. Court. Notice Notice of ofJudge Judge Assignment Assignment (Sept. 28, 2023). (Sept. 28, 2023). 2 11 Motion to the Motion Disqualifywas to Disqualify wasset setto tobe beheard heard on on October October20, 20, 2023. 2023. On Onthat thatdate, date, Defendant Defendant stated stated

2 that he intended that he intendedtotocall callChief ChiefDeputy DeputyAttorney AttorneyGeneral General("CDAG") ("CDAG") Joseph A. Guthrie Joseph A. andAAG Guthrie and AAG

3 Thomas P. P. Keeler as witnesses. witnesses. Min. Thomas Min. Entry Entry at at 1:42:06 1:42:06 PM (Evidentiary (Evidentiary Hearing, Hearing, Oct. Oct. 20, 20, 2023). 2023). 4 However, However, neither neither of of those those individuals were present. present. Id. Id. at at 1:45:27 1:45:27 PM. PM. The TheCould Courtthen then continued continued 5 the hearing hearingto toNovember November 1, 1, 2023. 2023. Id. Id. at 1:52:09 PM. :52:09 PM. 6 On November 1, 1, 2023, 2023, the Court heard the Court heardtestimony testimonyfrom HomCDAG CDAG Guthrie Guthrieand andAAG AAG Keeler. 7

8 During the testimony testimony of of CDAG CDAG Guthrie, Guthrie, the the Court asked asked Acting Acting Chief ChiefProsecutor Prosecutor Rudolph Rudolph to excuse

9 herself from herself from the the heading, asshe hearing, as shewas wasalso alsoaapotential potentialwitness. witness.Min. Min. Entry Entryat at4:07:41 4:07:41PM PM(Evidentiary (Evidentiary

10 10 Hearing, Nov. 1, 1, 2023). The Thehearing hearing continued AAGs Harley continued with AAGs Harleyand and Mon'is Morris present behalf of present on behalf of 111 the People. People. After AfterAAG AAGKeeler Keelercompleted completedhis histestimony, testimony,Defendant Defendantindicated indicatedhe he intended to call two intended to 12 12 more witnesses: witnesses:Attorney Attorney General GeneralMoylan, Moylan, and andMs. Ms. Maria Maria Apuron. Apuron. Id. at at 5:05:57 :57PM. PM. Because Because it 13 was late in the the day, day, the the Court Courtcontinued continuedthe thehearing healingtotoNovember November 6, 6, 2023. 2023. In the interim, interim, the the People People 14 14 made several new filings.44 several new 15 15

16 The hearing continuedon hearing continued onthe themorning morningof of November November 6, 6, 2023. 2023. There, There, Attorney Attorney General General

17 17 Moylan Moylan appeared appeared for for the the People People and requested immediate and requested of the hearingof immediate hearing themotions motionsthe thePeople People filed filed on

18 18 November 3, 2023. 2023. Ultimately, Ultimately, the the Court Court denied the People's People's two ex parte denied the parte motions motions as as untimely. untimely. 119 Min. Entry Entry at 9:34:44 AM (Evidentiary 9:34:44 AM (Evidentiary Hearing, Hearing, Nov. Nov. 6, 6, 2023). 2023). The TheCourt Courtthen thentook tookaaone-hour one-hour 20 recess. recess. Id. Id. at at 9:43:36 9:43:36 AM. InInthe theinterim, interim, the the People filed filed aa Renewed Renewed Ex Ex Parte Parte Application for aa 21 Protective Order Order and and Motion to Seal Seal Proceedings Proceedings U\Iov. 6, 2023), (Nov. 6, 2023), seeking seekingto to prevent preventActing Acting Chief Chief 22 Prosecutor Rudolph from firm testifying testifyingand andto toseal sealthe the continued continued motion motion hearing. 23

24 hearing continued The hearing continuedon onNovember November6, 6,2023 2023atat10:55 10:55AM. AM. There, There, Attorney Attorney General General Moylan Moylan

25 26 44 These These include include aa Memorandum Memorandum Supporting Ex Parte Application Application for for aa Protective Protective Order Order (Nov. (Nov. 3, 3, 2023), 2023); an Ex an Ex Parte Motion to Strike Strike Protected Materials Materials (Nov. (Nov. 3, 3, 2023); 2023), a Memorandum Supporting Supporting Motion Motion In In Liming Limine for for Legal Legal 27 Determination that Ethical Wall Wall Unnecessary Unnecessary (Nov. 3, 2023); an an Ex Parte Motion Motion for for Reconsideration Reconsideration of of the Barring of the Barring of the People's People's Attorney from from the the Case Case and and to Strike All AlI Evidence from the November November 1, 1, 2023 Hearing Hearing (Nov. (Nov. 3, 2023), and 3, 2023); and 28 Declarations from the Acting Chief Chief Prosecutor (Nov. (Nov. 3, 3, 2023) 2023) and AAG Daniel andAAG Daniel Morris Morris (Nov. (Nov. 3, 2023). 3, 2023). 33 11 and Defendant argued the recently-filed Ex Parte Application for a Protective Order and Motion to

2 Proceedings, as Seal Proceedings, as well well as as an oral oral motion by the People People to quash quash a subpoena subpoena to Acting Chief Chief 3 Prosecutor Rudolph. The Court Rudolph. The Court sealed sealed the the proceedings, proceedings, denied denied the the other other motions, and and decided decided that 4 Acting Chief Acting Chief Prosecutor Prosecutor Rudolph Rudolph would testify testify that that afternoon. afternoon. Min. Entry Min. Entry at at 11:09:47 11 :09:47 AM 5 (Evidentiary Hearing, (Evidentiary Nov. 6, Hearing, Nov. 6, 2023); 2023), id. 11 :26:32 AM. id. at 11:26:32 the interim, In the interim, the People People filed filed aa 6 Memorandum (Nov. 6, 2023), 2023), arguing the subpoena issued to to Acting Chief Chief Prosecutor Rudolph was 7

8 The People defective. The People also also filed filed aa Motion for Stay to File Emergency Writ (Nov. 6, 2023), requesting

9 a stay to allow the People to request a writ of prohibition from from the Supreme Court. Court. Nonetheless, Nonetheless, the

10 hearing continued in the afternoon of November 6, 6, 2023. 2023. There, SAAG Joseph McDonald appeared 11 5 Defendant objected that SAAG McDonald is not an Assistant Attorney on behalf behalf of of the People.5 Defendant objected an Assistant 12 12 General, but aa private General, but private practitioner. practitioner. Min. Min. Entry Entry at 1:38:32 PM (Nov. :38:32 PM (Nov. 6, 6, 2023). 2023). SAAG McDonald McDonald 13 13 explained that he had been asked by the People to make a limited appearance as a special prosecutor 114 for purposes purposes of this this motion motion hearing, hearing, and and that that this this was was permissible permissible under under the the relevant relevant rules. rules. Id. Id. at 15 15

16 16 1:39:56 PM. SAAG :39:56 PM. SAAGMcDonald McDonaldregistered registered another another objection objection to to Acting Acting Chief ChiefProsecutor Prosecutor Rudolph

17 17 having to testify. Id. Id. at at 1:47:45 1 PM. The The Court Court ovemlled overruledthe the objection, objection, and and Acting Chief Chief Prosecutor 118 Rudolph gave her Rudolph gave her testimony. testimony. Id. Id. at at 1:49:37 1:49:37 PM. Defendant Defendant then then called called Maria Maria Apuron, Apuron, and she 19 19 as well. testified as well. Id. at 2:47:54 PM. 20 After the hearing was complete, the People filed a Notice Notice of of Filing Filing Relevant Relevant Legal Authority 21 (Nov. 28, 2023), and a Proposed FFCL FFCL on on December December4,4, 2023 2023. 22 22

23 24

27 5 SAAG McDonald filed his Entry of Appearance as Special Assistant Attorney General two days later, on 5 SAAG McDonald filed his Entry of Appearance as Special Assistant General days later, 28 November November 8, 8, 2023. 2023. 4 11 EINQINGS FINDINGS OF FACT

2 By By aa preponderance of the preponderance of the evidence, evidence, the the Court Courtmakes makesthe thefollowing following findings findings of of fact: fact:

3 Case Background Baclgggmnd

4 1. 1. The The Guam Guam Regional Regional Transit Transit Authority Authority (GRTA) (GRTA) isisa apublic publiccorporation corporation within within the the 5 5 Government of Guam, Government of Guam, with "the "the exclusive exclusive franchise franchise for the the furnishing furnishing of of public public 6 transportation within Guam transportation within Guamand andon onits itsroads roadsand andhighways." highways." 12 12GCA GCA §§ 6102. 6102. 7 2. GRTA 2. has GRT A hasa aBoard BoardofofDirectors, Directors,12 12GCA GCA§ §6201(a), andone 6201 (a),and oneofofthe themembers members of ofthe the Board Board is is 8 the the Chairman, see 12 Chairman, see 12GCA GCA §§ 6201 (b). Defendant 6201(b). Defendant was, was, during during the time periods the time periods relevant relevant here, here, 9

10 10 the Chairman. Chairman.

11 11 3. The 3. GRTABoard TheGRTA Boardofof Directors Directorshas hasthe thepower powerto to appoint appoint an Executive Manager. an Executive Manager. 12 12 GCA GCA §§

12 12 6202(a). 6202(a). During During the the time time periods periods relevant relevant here, here, co-defendant RichardY. co-defendant Richard Y. Ybanez was was the 13 13 Interim Executive Managerof Executive Manager ofGR GRTA. TA. 14 14 4. By Bystatute, statute, GRTA's GRTA'sExecutive ExecutiveManager Managershall shall"possess "possess at at aa minimum, minimum, from from an an accredited accredited 15 institution, institution, aa Bachelors Bachelors degree, degree, preferably preferably in the the field field ofofbusiness business administration, administration, city 16 16 planning, urban planning, planning, urban planning, engineering, engineering, engineering engineering technology, public public administration administration or 17

18 18 closely related field closely related field or ordiscipline." discipline." 12 GCA §§ 6202(a)(2). 12 GCA 6202(a)(2).

19 19 5. ItItappears appearsundisputed that Richard undisputed that RichardY. Y. Ybanez does not hold a Bachelor's Bachelor's degree.

20 StructuL Structureofofthe_(ifice of of the Office t_h_e the A_t_torney Geriral Attorney General 21 6. "The "TheAttorney AttorneyGeneral General shall shall have cognizance cognizance of ofall allmatters matters pertaining pertaining to to public prosecution, 22 including the prosecution including the prosecutionof ofany anypublic publicofficials." officials." 55 GCA GCA§§30104 30104 (emphasis (emphasis added). added). 23 TheOffice 7. The Officeofof the Attorney the General Attorney conducts General conductscriminal prosecutionsand criminalprosecutions criminal cases brings criminal andbrings cases 24

25 in in the name name of of the the People People of Guam.

26 8. "Notwithstanding ''Notwithstanding any any other provision provision of law, the oflaw, the Attorney Attorney General General shall have cognizance of of

27 all legal matters, matters, excluding the Legislative Legislativeand andJudicial Judicial Branches of the government of of Guam,

28 5 11 involving involving the the Executive Executive Branch Branch of ofthe the government government of of Guam, Guam, its its agencies, agencies, instrumentalities, instrumentalities,

2 public corporations,autonomous public corporations, autonomousagencies agencies and and thethe Mayors Mayors Council[.]". 55 GCA Council[.]". GCA §§ 30102 30102 3 (emphasis emphasis added). added). 4 9. The TheOffice Officeofof the theAttorney AttorneyGeneral Generalgives giveslegal legaladvice advicetotogovernment governmentagencies agencies through through its 5 "Civil "CivilLitigation" Litigation"division, division,and andformerly formerlythrough through its its "Solicitor" "Solicitor"division, division,which whichhas has now now been 6 merged with with the Civil Civil Litigation Litigationdivision. division.See See Min. Min.Entry Entry2:53 2:53 :00 PM PM (Evidentiary Hearing, 7

8 Nov. 1, 1, 2023). 2023).

9 The OAG's TAG's Representation GRTA. Representation of GRTA

10 10 10. 10. During the the time time periods periodsrelevant tothe relevantto theIndictment, Indictment,AAG AAG Tom Tom Keeler Keeler was was assigned to to provide provide 11 legal legal services to ORTA. services to GRTA. AAG Keeler AAG Keelerhas hasbeen beenananassistant assistant attorney attorney general general since smce 12 12 approximately 2010, andhas 2010, and hasadvised advisedORTA GRTA during during that time. time. Id. Id. at at 4:21 :50 PM. 4:21 :50 PM. 13 13 11. 11. AAG Keeler agreed with defense counsel's suggestion suggestion that GRTA was his "client" and that 14

15 he accordingly accordingly owes owes GRT GRTA aa duty of Id. at of confidentiality. Id. at 4:24:40 4:24:40 PM.

116 12. AAG Keeler 12. AAG Keeler never never had had regular regular communication withthe communication with themembers membersof ofthe theORTA GRTA Board Board of

17 Directors, including Defendant. Defendant. Id. at at 4:24:00 PM; PM, id. at 5:04:20 PM. 5:04:20 PM. 1

118 13. AAG Keeler 13. AAG Keelerdid didhave have frequent frequent communication with co-defendant communication with co-defendantYbanez. Ybanez. At At times times prior to 19 the commencement of criminal proceedings proceedings in in this this case, case, he communicated with with Ybanez about about 20 the college college degree degree issue. issue. Id. Id. at at 4:41 PM. 4:41 :30 PM. 21 14. On January 14. On January 23, 2023, 2023, AAG AAG Keeler Keeler corresponded corresponded with with newly-elected newly-elected Attorney Attorney General General 22

23 Moylan Moylan about pending pendingmatters matterswith withORTA. GRTA. Attorney General General Moylan Moylan questioned Ybanez's questioned Ybanez's

24 qualification qualification to serve as Interim Interim Executive Executive Manager. Manager. Id. at at 4:28:40 PM. 4:28:40 PM.

25 15. January29, 15. On January 2023,AAG 29,2023, AAGKeeler Keeler sent sent an anemail emailto to Attorney Attorney General General Moylan Moylan and and CDAG CDAG

26 Guthrie outliningthe theissue. issue. Id. Id. at 4:31:00 PM. In Guthrie outlining 4:31 :00 PM. Inresponse, response, Attorney Attorney General General Moylan 27

28 6 1 1 indicated thatthey indicated that "need to would "need theywould to discuss discussthis thisfurther" further"and and"likely "likely need need to to have have a legal

2 opinion out out of of fairness fairnessto toMr. Mr.Ybanez." Ybanez." Id. Id. at at 4:32:00 PM. 4:32:00 PM. 3 16. On February 16. February7,7,2023, 2023,AAG AAG Keeler Keeler sent an an email email to to Attorney Attorney General General Moylan Moylan and and CDAG CDAG 4 Guthrie suggesting that thatYbanez Ybanez may may meet a certain certain"years "years of of service" requirement requirement that would 5 substitute forhaving substitute for havingaacollege college degree. degree. Id. Id. at at 4:44:10 PM, id. 4:44: PM; id. at at 4:46:20 PM. PM. 6 17. Shortly thereafter, 17. Shortly thereafter,AAG AAG Keeler Keeler was was removed removed from from representation representationofofGRTA GRTA by by CDAG 7

8 Guthrie, no reason Guthrie, with no reasongiven, given, and and assigned assignedto toanother anotherdivision. division. Id. Id. at 4:57:15 4:57:15 PM. PM.

9 Investigation bythe Investigation by ti£Government Corrugjon Division Government Corruption Division

10 18. 18. Acting Chief ChiefProsecutor Rudolph initiated Prosecutor Rudolph initiatedthe theinvestigation investigationinto intoGRTA. GRTA. Id. at at 2:00:50 PM. 2:00:50 PM. 11 She did so so after after receiving receiving aaseparate separate complaint complaint about about other other alleged alleged improper improper conduct conduct by 12 12 Interim Executive Executive Manager ManagerYbanez. Ybanez. Id. Id. 13 19. 19. Acting Chief ChiefProsecutor Prosecutor Rudolph Rudolph has has had communications with Attorney communications with Attorney General General Moylan 14 14 during the investigation of this during the this case case because because Attorney General Moylan Moylan is is her her superior, superior, and and 15

16 she "has to to report reportto tohim." him." Id. at 2:03:50 2:03:50 PM. PM.

17 17 20. The Indictment 20. The in this Indictment in this case case was was filed filed on July 3, 2023. July 3, Defendant filed a later, Defendant days later, Four days 2023. Four

18 18 Request for Discovery Discovery and Notice, Notice and Notice; Noticeof ofDefenses Defenses(July (July7, 7, 2023). 2023). This Thisincluded includedaa request 19 19 for "[a]ny "[a]nyand and all alldiscovery, discovery, evidence, evidence,or ormaterials materials required required to to be be provided provided to to Defendant Defendant 20 pursuantto Brady Brady v. Maryland, 373 v. Maryland, 373 U.S. 83 (1963) (1963) ...."" Id. Id. at at 2. 21 21. 21. Because Because of this this request request for "Brady "Brady material," material," Acting Acting Chief ChiefProsecutor Prosecutor Rudolph Rudolph directed directed 22 23 Investigator Maria Apuron to communicate with AAG communicate with AAG Keeler Keelerabout about obtaining obtaining discoverable

24 material. material. Min. Min. Entry Entry at at 2:15:25 PM (Evidentiary Hearing, Nov. 6, 2:15:25 PM 6, 2023).

25 22. August 30, 22. On August 30,2023, 2023,AAG AAG Keeler Keeler met with Ms. Ms. Apuron. Apuron. Acting Acting Chief ChiefProsecutor Prosecutor Rudolph Rudolph 26 was not not present presentatatthis thismeeting. meeting.Id. Id.atat2:2: 16:25 PM.AAG AAGKeeler Keelerturned timed over 16:25 PM. over to Ms. Apuron 27

28 7 1 1 all of of his his "correspondence withGRTA." "correspondence with GRTA." Min. Min.Entry Entryatat4:50:30 4:50:30 PM PM (Evidentiary (Evidentiary Hearing, Hearing,

2 Nov. Nov. 1, 1, 2023). 2023). This Thisincluded included copies copies of ofthe the emails emails mentioned mentioned above. 3 23. AAG Keeler 23. AAG Keelerunderstood understood the the directive directive to to produce produce these these documents to be documents to be "coming "coming from his 4 superiors." superiors." Id. Id. at at 4:51:15 4:51:15 PM. He Hedid didnot notask askhis hissuperiors superiors whether whether he was allowed to 5 5 disclose these documents. disclose these documents. Id. Id. at at 4:52:15 4:52:15 PM. PM. He Healso alsodid didnot nothave havean anattorney-client attorney-client 6 privilege privilege waiver from firm GRTA ORTAtotodo doso. so. Id. Id. at at 4:55:50 PM. 4:55:50 PM. 7

8 24. These documents were provided documents were provided to Defendant in in response responseto tohis hisRequest Requestfor forDiscovery. Discovery.

9 Conflict Walls

10 25. 25. On April 17, 17, 2023, 2023, CDAG CDAGGuthrie Guthriewrote wroteand anddisseminated disseminated aa memorandum on the memorandum on the use use of of 11 11 conflict conflict walls within the the OAG. OAG. Id. Id. at at 2:55:00 PM. 2:55:00 PM. 12 12 26. 26. A copy copy of ofthis this memorandum wasfiled memorandum was tiledwith withthe theCourt Courtprior priortotothe thehearing. hearing.People's People's Notice Notice 13 13 of of Filing Filing (Oct. (Oct. 30, 30, 2023). 2023). The memorandum memorandum isis aa form copy, copy; itit contains contains no no specific specific 14 information information about about screening procedures in this case. See See id. 15 15

16 16 27. Acting Acting Chief ChiefProsecutor Prosecutor Rudolph Rudolph described described her understanding understandingof ofhow how conflicts conflicts are are typically typically

17 17 handled atthe handled at theOAG, OAG, which includes a notation notationon onthe thephysical physicalfile file and andin inthe theOAG's OAG's record-

18 18 keeping software software that particularindividual that a particular individual is is screened screened from from the the case. case. Min. Entry Entry at 1:58:50 19 PM PM (Evidentiary (Evidentiary Hearing, Nov. 6, 2023). 20 28. Acting Chief ChiefProsecutor Prosecutor Rudolph Rudolph testified testified that that the the Government Government Corruption division division did not 21 follow followthe the OAG OAGscreening screeningprocedure procedureininthis thiscase casebecause because itit is is unnecessary, unnecessary, as the the division division is 22

23 physically sequestered sequestered from the rest of the OAG, OAG, does does not not interact interact with with other other divisions, and and

24 is so small that any small that conflictwould any conflict wouldbe be"right "rightin infront frontof of their theirface." face." Id. Id. at at 1:49:45 1:49:45 PM.

25 However, However, she she testified testified that that she does interact she does interactwith withAttorney Attorney General General Moylan. Moylan. Id. Id. at at 1:52:45 1:52:45 26 PM. 27

28 8 11 29. Acting Chief 29. Acting Chief Prosecutor Rudolph, AAG Prosecutor Rudolph, AAG Keeler, Keeler, and and CDAG CDAGGuthrie Guthrie all all testified testified that that they they

2 were unaware if any unaware if any conflict wall was was in in place for for this this case. 3 DISCUSSION DISCUSSION 4 1. Legal Standard 5 In Guam, Guam, "the "the current current standard standard for attorney attorney disqualification disqualification is whether whether an an attorney's attorney's 6 continued representationofofaa party continued representation party or or participation in an participation in an action violates or or significantly significantly risks risks 7

8 violating the Guam Rules Rules of of Professional Professional Conduct." Conduct." Barrett-Anderson v. Camacho, Camacho, 2018 Guam 20

9 ,r 20. ii 20. "[D]isqualification is aa drastic drastic course course of of action action that that should not be taken should not simply out taken simply out of

10 10 hypersensitivity hypersensitivity to ethical nuances or the nuances or the appearance appearanceof of impropriety." impropriety." Id. ,r 14 (quoting Roush v. Id. 1] 11 Seagate Seagate Tech., Tech., LLC, 58 Cal. Rptr. Rptr. ad 3d 275, 275, 281 281 (Ct. App. 2007)). 2007)). However, However, disqualification disqualification is 12 appropriate for "inevitable appropriate for "inevitable and material conflicts." and material Id.1],r 17. conflicts." Id. 17. 13 Defendant cites several several rules, rules, including including GRPC GRPC 1.8 and and GRPC GRPC 1.13(b) l.13(b) and and (d), that that may be 114 implicated here. here. Mot. Mot. Disqualify Disqualifyat at 22 (Sept. (Sept. 1, 1, 2023), 2023); Reply Reply at at 2 (Sept. 22, 2023). 2023). But But Defendant's 15 15

16 16 argument primarily turns argument primarily TumsononGRPC GRPC 1.7, 1.7,which which provides, provides, in relevant part: part:

117 (a) ... ...a alawyer lawyershall shallnotnotrepresent representaaclient clientififthe therepresentation representation involves involvesaa concurrent concurrent conflict conflict of ofinterest. interest. A concurrent conflict of interest exists concurrent conflict exists if: if: 18 18 (1) the the representation representation of of one client will will be be directly directly adverse adverse to to another client, another client; 19 19 or (2) (2) there there is is aa significant significant risk risk that representationof that the representation of one one orormore moreclients clientswill will 20 be materially materially limited by the the lawyer's lawyer's responsibilities responsibilities to to another another client, client, aa 21 former client client or or aa third third person or by a personal personal interest interestof of the the lawyer. lawyer.

22 2. The Office of the Attorney Attorney General General is Disqualified Disqualified 23 The question, question, under under Barrett-Anderson, is whether the OAG's OAG's continued continued participation participation in in this this 24 case would would violate violate GRPC GRPC 1.7(a). I. 7( a). Based Basedon onthe thefollowing followinganalysis, analysis,the theCourt Courtconcludes concludes that that it would. 25

26 The OAG OAGhas has aa concurrent conflict of interest. concurrent conflict

27 A. The The Guam Guam Rules Rules of Professional ConductApply Professional Conduct Apply to to the theOAG OAG

28 The Guam Guam Rules of Professional Conduct apply apply to to the the attorneys attorneysof of the the OAG, OAG, including the 9 9 11 Attorney General General himself. See See Barrett-Anderson, 2018 Guam 20 ,r,r Guam 20 W 14-28 14-28 (analyzing an an Assistant

2 Attorney General's Attorney alleged conflict of General's alleged of interest), interest); People v. v. Tennessee, Tennessen, 2009 Guam 3 ,r,r 2009 Guam W 33-50 33-50 3 (analyzing (analyzing the the Attorney General's General's own own alleged alleged conflict conflictof interest). Other ofinterest). Otherjurisdictions jurisdictionsare are in in accord. 4 See, Ag., Att'y See, e.g., Att'y General v. v. Mich. Public Public Service Service Com'n, Com 'n, 625 N.W.2d N.W.2d 16, 16, 27 (Mich. Ct. Ct. App. App. 2000) 2000) 5 ("Itisiswell ("It wellsettled settledthat thatin inthe the control control of litigation,the oflitigation, theAttorney AttorneyGeneral Generalhas has the the duty duty to conform conform his his 6 conduct to that conduct to thatprescribed prescribedby bythe therules rulesof of professional professional ethics." ethics." (quoting Mar chin v. Manchin v. Erowning, Browning, 296 296 7

8 S.E.2d 909 (W. S.E.2d 909 Va. 1982)), (W. Va. 1982)); Chun v. v. Ba. Bd. of ofTrustees Trustees of ofEmployees' Employees' Retirement Retirement Sys. Of State Sys. Of State of

9 Hawaii, Hawaii, 952 P.2d 1215, 1237-38(Haw. 1215, 1237-38 1998); see also 7A (Haw. 1998),see 7A C.J.S. Attorney General C.J.S. Attorney General§§ 46, 46, "Conflict "Conflict

110 Interests" Interests" (2024), (2024); 77 Am. Am. Jur. ad Attorney Jur. 2d Attorney General General§§ 17 (2024). 17 (2024). 11 11 In general, the "rules of general, the ofprofessional professional conduct conduct are not to be mechanically are not applied" to the mechanically applied" 12 12 attorneys of the attorneys of the OAG, OAG, or or to to any anyother otherGuam Guam attorneys. attorneys. Barrett-Anderson, 2018 Guam Guam 20 ,r 24; 20 1124, 13 13 accord Chun, Chun, 952 P.2d at at 1236, 1236; Michigan Michigan Public Public Service Service Com Com 'n, 625 at 33. 625 N.W.2d at 33. Recognizing Recognizing 14 this, this, other jurisdictionshave other jurisdictions havedetermined determinedthat thathe the"unique "uniquenature" nature"ofoftheir theirOAG OAG ((or its local local 115

16 16 equivalent) equivalent) "allow[s] "allow[s]dual dualrepresentation representation in in certain certain circumstances circumstances not otherwise permitted in the

117 arena of of private private practice." practice." See id. ,State See id.; Stateex exrel. rel.Com Com'r'rof ofTransp. Transp.v.v.Medicine MedicineBird Bird Black Black Bear White

18 Eagle, 63 S.W.3d 734, 773-74 (Tenn. 734, 773-74 (Tenn. Ct. Ct. App. App. 2001). 2001). Guam Guam has has not so held, held; it it has has explicitly 19 "reject[ed] the the Attorney Attorney General's General's request request for flexibility flexibility under under the the [GRPC] [GRPC] based based on on her her unique unique 20 position as as the theChief ChiefLegal Legal Officer Officer of ofthe the Government of Guam." Guam." Barrett-Anderson, 2018 Guam 20 21 ,r 24; see also Santos v.v. Camacho, 2006 WL 581251 1]24, 581251 * 77 (D. (D. Guam Guam Mar. 10, 2006). Thus, 10, 2006). Thus, in in Guam, Guam, 22 neither the Attorney neither the Attorney General General nor OAG OAG attorneys attorneys receive receive special, special, unwritten unwritten flexibilities flexibilities under under the 23

24 GRPC. Instead, GRPC. Instead,they theyare aresubject subjecttotothe thesame samerules rules of ofconduct, conduct, in inlargely largelythe thesame samemanner, manner, as as other

25 Guam attorneys.66

27 66 Barrett-Anderson Barrett-Anderson notes that the the GRPC GRPC doesdoes have havecertain certainrules rulesthat thatafford affordflexibilities flexibilities to government attorneys on certain issues. issues. See 2020 Guam 20 ,r1124 See 2020 (citing GRPC 24 (citing GRPC 1.11, 1.11, 3.6(d), 3.6(d), 7.6). 7.6). However, However, these these rules do not affect the core 28 issue here. here. GRPC 3.6(d) and 7.6 are are facially facially inapplicable. GRPC 1.11 is GRPC I. I I is relevant, but it does not not provide provide any any additional additional 10 11 Because the OAG Because the OAG is subject to the subject to the GRPC GRPC generally, generally, it is subject to GRPC 1.7 specifically. subject to

2 That rule "prohibit[s] an an attorney attorney from from representing representing a client client whose whose interests interests are are adverse adverse to the the 3 interests of another former or current another former currentclient." client." Guerrero v. v. Moylan, 2002 2002 Guam 18 ,r1[49. Guam 18 49. The The Court Court 4 must therefore must therefore determine determinetwo two things: things:first, first, whether whetherthis thiscase caseinvolves involvestwo two distinct distinct"clients" "clients" of the 5 OAG, OAG, and and second, the interests second, whether the interestsof of those thosetwo two clients clientswould would conflict. conflict. 6 B. This This Case Implicates Implicates Two Two Clients of of the theOAG OAG 7

8 It is undisputed for purposes undisputed for purposesof ofthis thiscase casethat thatone one"client" "client" of of the OAG OAG is is the the public public interest.

g9 See, Ag., In re Kline, 311 See, e.g., P.2d 321, 311 P.2d 321,390 390(Kan. (Kan.2013) 2013)("as ("asAttorney AttorneyGeneral General... ... his his 'client' was was the

10 10 public."), public."); Levitt v. v. Attorney Attorney General, General, 151 151 A. 171, 171, 174 (Conn. 1930). 174 (Conn. 1930). The The People People have have taken taken the 111 position position that theprosecutorial that the prosecutorialdivision divisionof of the the OAG OAG is the "law "law firm" firm"that thatserves serves the the public interest in 12 12 criminal prosecutions. See criminal prosecutions. See Mot. Mot. in liming limine at at 22 (refining (referringtotothe theprosecution prosecution as the "People's as the "People's law 13 13 Firm"), firm"); Ex Parte Parte Mot. Reconsideration at 2, Reconsideration at 2, 11 11 (Nov. (Nov. 3,3,2023) 2023)(describing (describingdisqualification disqualification as as 14 14 "depriving Plaintiff of "depriving Plaintiff of its its law law firm"). Defendant Defendant has has not argued argued otherwise. otherwise. Since Guam Guam law 15 15

16 empowers the Attorney empowers the General to Attorney General to serve serve as the "public as the "public prosecutor" prosecutor" for for Guam, Guam, 5 5 GCA GCA §§30104, 30104, and and

17 17 to "conduct to ... the "conduct ... theprosecution prosecution of of all all offenses offenses against against the lawsof the laws 30l09(a), the GCA §§ 30109(a), Guam,"55GCA of Guam," the 18 Court agrees agrees that thatthis thisisisone one"client" "client"of of the the OAG. OAG. 19 The harder questionisiswhether harder question whetherthe theOAG OAG has hasaasecond second"client" "client" implicated implicatedby by this thiscase. case. The 20 People People argue argue that Defendant Defendant himself himself is not a client of the OAG OAG because because the OAG OAG does does not not represent represent 21 individuals. Opposition Oppositionat at 3. 3. ItItisisgenerally generallyheld heldthat thatan anattorney attorney general general does does not not represent represent private 22 individuals, but rather rather the the interest interestof of the the public as as a whole. whole. See, See, e.g., e.g., Ce Cebertowicz v. Madigan, 48 48 23

24 N.E.3d 702, n.E.3d 702, 706-07 706-07 (I11. ct. App. (Ill. Ct. APP-2016); 2016),Cliffv. czwv. Vasco, 267 A.D.2d Vacca, 267 (n.y. APP- 731 (N.Y. A.D.2d 731 App. Div. Div. 1999). 1999).

25 Moreover, Moreover, the the evidence evidencepresented presented does does not not suggest suggest the formation of ofan an attorney-client attorney-client relationship 26 27 flexibility on the issue of of conflicts, conflicts; as as discussed discussed inin more more detail detail below, the rule provides that "a lawyer lawyer currently serving 28 as a public public officer officeror oremployee employee...... is is subject subject totoRules Rules 1.7 1.7and and1.9." l.9." GRPC GRPC l.ll(d)(l). 1.ll(d)(1). 11 1 1 between the OAG OAG and and Defendant Defendant personally. AAG AAGKeeler's Keeler'suuncontradicted contradicted testimony testimonyestablished established

2 that he rarely that he rarely interacted interactedwith withDefendant Defendantor orthe theother othermembers membersofofthe theGRTA GRTA Board Board of of Directors, and

3 never communicated legal advice advice to to Defendant directly. Thus, communicated legal Defendant directly. Thus, the theCourt Courtagrees agrees that that Defendant Defendant 4 himself himself is not a "client" "client" of ofthe the OAG. OAG.But Buthis thisfact factisisnot notdispositive, dispositive,as as Rule Rule 1.7 1.7 is is not limited limited to the 5 circumstance where a law firm circumstance where firm simultaneously simultaneously represents plaintiff and represents both plaintiff and defendant defendant in the same same 6 case. Concurrent case. Concurrent conflicts conflicts of ofinterest interest "can "can arise arise from from the the lawyer's lawyer's responsibilities responsibilities to to another another client, 7

8 a former client or aathird thirdperson personororfrom fromthe thelawyer's lawyer'sown owninterests." interests."ABA ABA Model Rule Prof. Conduct Conduct

9 1.7, Cut 1. 1. Cmt 1. Accordingly, Accordingly,adverse adverserepresentation representation"can "canexist eventhough existeven prior client thoughaa prior client is is not not aa party party 10 10 to the the litigation." litigation." American American Airlines, Inc. v. v. Sheppard, Mullin, Richter & Hampton, Sheppard, Mullin, Hampton, 96 Cal. App. 4th 111 1017, 1039(2002). 1017, 1039 (2002). Here, while Defendant Defendant himself is not a client of the OAG, OAG, the the Guam Guam Regional 12 12 Authority is aa client Transit Authority clientof of the the OAG. OAG. 13 13 Whether an attorney-client relationship relationship has has formed formed is is a question question of of fact, which which necessarily necessarily 14 14 "depend[s] upon the circumstances." circumstances." Guam Bar Ethics Ethics Committee Committee v. Maquera, Maquera, 2001 2001 Guam Guam 201] 20, 15. 15 15

16 16 The attorney-client attorney-client relationship relationship between between the OAG OAGand and GRTA GRTAisisclear clearHom fromboth bothGuam's Guam'sstatutes statutes and and

17 17 by the by specific facts the specific facts adduced atthe adduced at theevidentiary evidentiary hearing. hearing. As As aa matter of statute, matter of GCA§§30102, under55GCA statute, under 18 the Attorney General General of of Guam Guamhas has"cognizance "cognizanceof ofall alllegal legalmatters matters... ... involving the Attorney involving the the Executive Executive 19 19 Branch Branch of the the Government Government of ofGuam, Guam,its itsagencies, agencies,instrumentalities, instrumentalities, public public corporations corporations [and] [and] 20 autonomous agencies.... autonomous agencies ...." Accordingly, Accordingly,the theAttorney AttorneyGeneral General"is "isexpected expected to to provide provide legal services 21 to those agencies that also agencies that also are arefiscally fiscally supported supportedby bythe thetax-base tax-baseof ofthe thegovernment governmentof ofGuam." Guam." 5 5 22 GCA GCA §§30201. 30201. And Andaalegal legalrelationship relationship between between the the Attorney Attorney General General and GRTA is and GRTA is contemplated contemplated 23

24 by GRTA's GRTA'senabling enabling statute, which provides statute, which providesthat thatGRTA GRTA "shall "shall ... ... enter enterinto intocontract contract with with the the

25 Attorney Attorney General to address General to legalissues." address legal issues." See See 12 12 GCA GCA §§ 6105(a)(8). 6105(a)(8). These Theseare arestrong strong indications indications 26 that GRTA was that GRTA was intended tobe intended to beaa"client" "client" of of the the OAG. OAG. 27 Moreover, the the record record here here establishes thatthe establishes that theOAG OAG actually actually did did provide provide legal legal services to 28 12 11 AAGKeeler GRTA. AAG Keelertestified testifiedthat that he he has has advised advised GRTA, GRTA, either either directly directly or through his representation representation

2 of of the Department of Public Works, Works, since since approximately approximately 2010. 2010. AAG AAG Keeler Keeler testified testified that he often 3 communicated with co-defendant Ybanez about about legal legal issues. issues. AAG Keeler Keeler even even noted noted that that Ybanez 4 had "raised the issue" that forms the core ofthis this criminal prosecution to to him, him, and that AAG AAG Keeler 5 had "analyzed" "analyzed" the issue for GRT GRTA at at Ybanez's Ybanez's request. request. An attorney-client attorney-client relationship relationship has 6 therefore therefore been been established established between between the the OAG and GRTA. See Mich. Mich. Public Service Com'n, 625 625 7

8 N.W.2d at 28 N.W.2d 28 ("when ("whenthe theAttorney Attorney General advises or represents General advises represents another another official, official, agency, agency, or

9 department, an attorney-client relationship relationship is is thereby thereby formed, and the rules regarding regarding professional professional

10 10 conduct apply.").

11 11 C. The OAG Has a Concurrent Conflict Conflict of of Interest 12 Under Under GRCP 1.7(a)(2), 1. 7( a concurrent conflict of interest exists where "there is a significant 13 13 risk that that the the representation of one or or more more clients clients will will be materially by the lawyer' materially limited by lawyer's 14 14 responsibilities to another client, a former client client or a third person or by a personal interest of of the 15

16 16 lawyer." That That isis the the situation situation here.

117 The conflict of of interest in this case does not merely arise from firm the the fact fact that that the targets of the 18 18 prosecution are executive prosecutioq are executive branch branch employees. employees. The issue is that the subject of the prosecution prosecution is 19 19 official activity by by the the GRTA GRTA board-activity board-activity which whichthe theOAG OAGwas wasclearly clearlyaware aware of ofbut but did not advise 20 GRTA to cease. cease. As found above, GRTA is a client of the OAG. Thus, Thus, GRTA GRTA has has the same same right to 21 "undivided "undivided loyalty" loyalty" from from the the OAG OAG as as any any client client would would expect expect from from their their attorney. See White Eagle, Eagle, 22

23 63 S.W.3d at 773. 773. In In the the context context of of concurrent concurrent conflicts conflicts of ofinterest, interest, loyalty is the "primary value at

24 stake." stake." Metro-Goldwyn-Alayer, v. Inc..v.Tracinda Metro-Goldwyn-Mayer, Inc. Tracing Corp., 36 Cal. App. 4th 4th 1832, 1832, 1839 (Ct. (Ct. App. 1995).

25 Yet it appears the Yet People take the People take the the position position that that any anyduty dutythe theOAG OAGowes owes to tothe the"Government "Government of of Guam" Guam"

26 (here, to GRTA) is subordinate to to the the OAG's OAG's duty to the public public interest interest in in criminal criminal prosecution. prosecution. See 27

28 13 13 7 11 Opposition at 3.7 concede that they do not maintain, or intend In so arguing, the People necessarily concede

2 to maintain, ''undivided "undivided loyalty" to each client.

3 "Undivided Ioyalty" "Undivided loyalty" here here would would have, have, at at minimum, minimum, required required the OAG to advise GRTA ORTA that 4 Ybanez serving as the Interim Executive Manager was contrary to law before the OAG commenced 5 prosecution for a criminal prosecution for that that same same conduct. conduct. It does not appear It does appear that any such advice was given. 6 AAG Keeler, who was responsible responsible for advising GRTA, ORTA, apparently apparently believed the conduct was not 7

8 illegal. Attorney General Moylan Attorney General Moylan apparently believed that apparently believed that this this conduct conduct may may not not be legal legal but but

g 9 that a legal suggested that opinion on legal opinion on the the issue issue was was necessary necessary "out "out of of fairness fairness to to Mr. Mr. Ybanez." Ybanez." But no

10 10 legal opinion was generated, and evidently no one in the OAG OAG advised advised GRTA ORTA to to cease cease its conduct, conduct, 111 yet the OAG has prosecuted that conduct prosecuted that conduct anyway. anyway. From From these these facts, facts, the Court finds finds that that OAG's 12 representation of GRT representation of GRTA is materially A is materially limited limited by by the the OAG' OAG's pursuit of this this prosecution. prosecution. GRTA ORTA has 13 13 a valid interest in receiving loyal, confidential legal representation. This is true of of the organization 14 14 as a whole, not merely its constituent employees. However, constituent employees. However, GRTA ORTA can can no no longer longer assume assume that the 15 15

16 OAG will devote itself itself fully to protecting GRTA's GRTA's legal legal interests, interests, because clearly the OAG believes

117 GRTA's interests interests are are ultimately ultimately subordinate subordinate to to the the prosecutorial prosecutorial interest. interest. The Court Court therefore therefore 18 concludes that the OAG has a concurrent conflict of of interest under GRPC 1.7(a)(2). l.7(a)(2). 19 19 D. There Was No Conflict Wall 20 Guam case law suggests that the OAG can use "conflict walls" to to avoid avoid disqualification disqualification of of 21 the whole office. the whole office. See See Tennessee Tennessen, 8 2009 2009 Guam Guam 33 11 36 ("Where conflict walls are effectively ~ 36 ("Where conflict walls are effectively 22

23 77 The The People Peoplecite citefor for this this proposition propositionan Order by the Honorable Honorable Joaquin V.E. Manibusan Manibusan in in the the case case ofof Attorney Attorney 24 General of General of Guam Guam v. v. Pereira, Pereira, SP0032-03 SP0032-03 (May 2003). The (May 5, 2003). The Court Court reads reads Pereira Pereira to to stand stand for for the the proposition proposition that that the OAG's OAG's duty dutytoto the the public publicinterest interest allows allows ititto to represent represent "adverse "adverse state agencies in state agencies in intragovernmental intragovemmental disputes." disputes." Id. at 3. 25 Whether or not that holding remains valid under the Barrett-Anderson Whether Barrett-Anderson standard, standard, thethe case caseat at bar bar isis not not aa civil civil dispute dispute between "adverse statestateagencies"-it agencies"-it isis not not aa dispute between the OAG OAG andand GRTA. GRTA. Rather, Rather,this thisisisaa criminal criminalcasecase based based 26 on actions which the OAG OAG diddid not not advise advise against against yet seeks to prosecute seeks to prosecutecriminally. criminally. This This issue issue isis more complex than than the issue raised raised in inPereira Pereiracases, cases, as well as legal precedent as all the legal precedent cited cited in in Pereira, Pereira, which is itselflimited itself limited to to disputes disputes between 27 "adverse state agencies." agencies." TheThe Court Court thus thus finds Pereira Pereira too too remote remote from from the the issue issue here here to to be persuasive. 88 The The Court Court recognizes that Tennessee Tennessen was was overruled overruled in in part by Barrett-Anderson, 2018 Guam Guam 20 20 'H 19, but ,i 19, but only only 28 "to "to the the extent that [Tennessen] [Tennessen] is is inconsistent." The Theinconsistency inconsistencybetween betweenthe thecases cases involves involves the the standard for for evaluating 14 11 implemented, disqualificationof implemented, disqualification of the the entire entire office office may may be be unnecessary."), unnecessary."); People People v. v. Santos, Santos, 2018

2 12 ,r1114. Guam 12 14. Assuming Assumingaaconflict conflict wall wall could have been viable here, "[t]he burden falls "[t]he burden falls upon upon the 3 government to to show show that thatthe theconflict conflictwall wall provided provided an aneffective effective screen." screen." Tennessee, Tennessen, 2009 Guam 3 4 ,r 46 (citing 1146 (citingState v. v. Gonzales, Gonzales, 119 P.3d P.3d 151, 151, 163 163(N.M. (N.M. 2005)); 2005)), see also Santos, 12 if 14 Santos, 2018 Guam 121] 5 (raising "concerns "concerns about the effectiveness of about the ofaa wall" wall"screening screeningthe the Chief ChiefProsecutor) Prosecutor). 6 Here, it appears no conflict appears no conflict wall wall was was enacted. enacted. Although Although CDAG CDAGGuthrie Guthrie testified testified about about 7

8 screening procedures at atthe theOAG OAG generally, he was unaware unawareof of any anyconflict conflict wall existing existing in in this this case.

9 AAG Keelerwas AAG Keeler wasalso not aware also not ofany aware of anyconflict conflictwall wallexisting existingininthis this case, case, and and he he met met with with the the

10 People's People's investigator investigator at the the direction direction of of Acting ActingChief ChiefProsecutor ProsecutorRudolph Rudolph and and disclosed disclosed email email 111 communications he'd had communications he'd had with with Attorney Attorney General Moylan Moylan and and CDAG CDAGGuthrie Guthrieabout about the the issue which 12 12 forms this this case. case. Acting ActingChief ChiefProsecutor ProsecutorRudolph Rudolph testified testified that that she she was not aware aware of of any any conflict 13 wall in in this case, case, that thatthe thepractice practiceof ofthe theGovernment GovernmentCorruption CorruptionDivision Division does does not notfollow follow the general 14 14 OAG OAG conflict conflictwall wallpolicy policybecause becausethe theoffice officeisismall smalland andphysically physicallysequestered, sequestered,and and that that she she had had 15

16 16 been in communication withAttorney communication with Attorney General General Moylan Moylan about aboutthis thiscase. case. Attorney General General Moylan

17 himself made made an appearance appearance in this case case on November 6, 6, 2023, to argue 2023, to argue several severalmotions. motions. It is

18 therefore clear clear that either eitherno noconflict conflict wall wall existed, whether between divisions of the OAG OAG or or to screen 19 19 off off specific specific individuals from the individuals from the case, case, or or else else it existed but was existed but was totally totally ineffective. ineffective. Thus, Thus, the the 20 concurrent conflict of concurrent conflict of interest interest is imputed across acrossthe theOAG, OAG, and and the thewhole whole office office must must be disqualified 21 from this prosecution. 9 22 3. The The Court CourtDoes DoesNot NotReach Reachthe thePeople's People'sLate-Raisec1_Argumg_1t$ Late-Raised Arguments 23 24 The People filed filed their their Opposition Opposition on on September September 15, 2023. This was a timely filing, 15, 2023. filing, and and the

25 disqualification, disqualification, not not the use use of of conflict conflict walls. See See id. 'W 15-20. Since ,i,i 15-20. Since Barrett-Anderson did did not address conflict walls, address conflict walls, it 26 did did not not overrule overrule this this portion portion of ofTennessee. Tennessen. 9 9 Tobe To beclear, theCourt clear,the Courtdoes doesnot nothold holdthat thatDefendant Defendantor orhis hisco-defendants co-defendantsare areimmune immunefromfromcriminal criminal prosecution. prosecution. 27 The The court only holds holds that, due toto the the conflict conflict of interest, the OAG OAG itself may not conduct that that prosecution. prosecution. The Court's decision decision today expresses opinion about expresses no opinion about the the merits merits of ofthis this case, case, nor about the potential use use of of aa special prosecutor. prosecutor. 28 15 15 J

11 arguments raised therein are are therefore therefore timely timely for purposes purposes of of this this Decision Decision and and Order. Order. However, However, the

2 People have subsequently raised a litany of new arguments arguments across their Memorandum Supporting Supporting 3 Motion In Liming Limine for Legal Determination Determination that that Ethical Wall Unnecessary Ethical Wall (Nov. 3, 2023) and Unnecessary (Nov. and 4 Proposed FFCL (Nov. 28, 28, 2023). 2023). These include: 5 (1) Whether Whether the Legislature has waivedwaived any any potential potential conflict conflict of of interest interest that might arise from 6 the Attorney General's General's dual dual role role of ofChief ChiefLegal Legal Officer Officer and and Public Public Prosecutor Prosecutor (first (first raised in 7 Mot. in liming limine at 6), 6); (2) Whether disqualification of the OAG would violate the "separation of of Powers" powers" doctrine 8 (first raised in Mot. in liming limine at 8), 8); 9 (3) Whether a "conflict "conflict wall" is ever ever required required for for the the OAG OAG (first (first raised in Mot. in limine, at at passim), passim); 10 (4) Whether Whether the law recognizes an "after-the-fact" "after-the-fact" reliance on counsel counsel defense defense (first (first raised in 11 11 Proposed FFCL at 15), 15); (5) Whether the lack ( Whether the lack of of an an official official OAG OAG "Opinion" "Opinion" under under 55 GCA GCA §§ 30107 nullifies aa potential 30107 nullifies potential 12 12 advice-of-counsel defense defense (first (first raised in Proposed Proposed FFCL at 19), 19); 13 13 (6) Whether there is evidence evidence that non-disqualification non-disqualification would prejudice Defendant's Defendant's fairfair trial rights (first raised in proposed FFCL at 21), ); 14 (7) Whether the Motion to Disqualify should be deemed deemed anan improper improper "tactical" "tactical" motion motion (first (first 15 raised in proposed FFCL at 21-22). 15

16 16 However, the Court finds finds these these arguments arguments untimely untimely for purposes purposes of of this this motion. motion. Local Rule of of the 117 Superior Court, Court, Criminal Criminal Rule Rule ("CR") ("CR") 1.1 l.1(b)(l) 1) contemplates contemplates that that briefing includes only a motion, 18 18 opposition, and reply. reply. The The People People had had an an opportunity opportunity to to raise raise these arguments in their Opposition, 19 19 so. Accordingly, but did not do so. Accordingly, the the Court Court views views the Motion in i!7- limine, and the new legal arguments arguments 20 presented in the Proposed FFCL, as tantamount to an unauthorized sur-reply. Unauthorized unauthorized sur-reply. Unauthorized sur- sur- 21

22 replies offering new arguments are disfavored. See US. Bank Bank Trust, NA. v. Rudick, 156 Trust, NA. 156 A.D.3d A.D.3d 841 841,

23 842 (N.Y. App. Div. 2017); 2017), Harkey v. v. US. US. Bank, Bank, NA., 2015 2015 WL WL 300271 300271 ** 11 (D. (D. Nev. Jan. 21, 2015) 24 ("Surreplies arehighly highlydisfavored disfavored.... ...."), v. Assuranceforeningen Assuraneeforeningen Skuld Skull (Gjensidig), ("Surreplies are "); Hill v. (Gjensidig), 2017 2017 WL 25 930060 ** 14 14 n.1 n.l (D. (D. Guam Guam Mar. Mar. 9, 9, 2017) 2017) (noting (noting aa sur-reply sur-reply was was stricken stricken and and citing citing authority authority 26 showing a court has the discretion discretion to to do do so). so). Therefore, Therefore, the the Court Court declines declines to to analyze analyze the the issues issues 27 \

raised for the first first time time in the Motion Motion in limine Iimine and/or in the Proposed FFCL, and limits its analysis its analysis 28 16 1 1 to the issues issuestimely timely raised raised in inthe thePeople's People's Opposition.

2 CONCLUSION

3 Based on the above analysis, analysis, the the Court Court concludes concludesthat thatthe theOffice Officeof of the the Attorney Attorney General's 4 continued representationininthis continued representation thiscase casewill willviolate violateGRPC GRPC 1. 1.7. 7. The The conflict conflict ofofinterest interest has has not not been 5 5 mitigated by the mitigated by the imposition of an imposition of an effective conflict conflict wall. wall. Therefore, Defendant's Therefore, Defendant's Motion to 6 Disqualify the Office Office of ofthe the Attorney General General is GRANTED. 7

9 SO ORDERED this APR Z 52024

11 1

x. ) ~ ./I f rx f

12 Hono1iABLE'A!§BE1iio HONORABL:E>AkBERTO - -~· - - . E. E. TOLENTINO Judge, Superior Court of Guam Judge, Superior 13 13

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