People v. San Agustin

Opinion

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11 ma I is go 2 CLER5Q OF COURT CLER1, OF

3 IN IN THE

THE SUPERIOR

SUPERIOR COURT

COURT oF

OFG11'Am,.._

GJ:r;AM .- ».~ 4

5 OF GUAM,

THE PEOPLE OF GUAM, 6 Case No. CF0446-23

7 vs.

8 ARTHUR DECISION DECISION ANDAND ORDER

8 ARTHUR U.

U. SAN

SAN AGUSTIN,

AGUSTIN,et al,

eta/,

(Motion (Motion for Protective Order)

Protective Order)

9

10 10 Defendant.

11 11

12 INTRODUCTION

13 13 This matter

matter came

came before the

the Honorable

Honorable John

John C. Terlaje

Terlaje on

on January

January 22, 2024,

2024, for an

an

14 14 Evidentiary Hearing, in which the the People raised a Motion Motion for aa Protective

Protective Order

Order to

to prevent

prevent the

15 15

16 16 hearing from continuing. hearing from continuing.Attorney AttorneyGeneral

GeneralDouglas

DouglasMoylan

Moylan("Moylan")

("Moylan") and

and Assistant Attorney

17 General Lewis Harley General Lewis Harley ("Harley")

("Harley") appeared onbehalf appeared on behalfofthe

the People. Joaquin

JoaquinArriola

Arriola("J.

("J.Arriola")

Arriola")

18 18 appeared forArthur appeared for ArthurU.

U.San

SanAgustin

Agustin("Defendant").

("Defendant").G.

G.Patrick

PatrickCiville

Civille("Civille")

("Civille") appeared

appeared for

19 19 Masatomo Nadeau ("Nadeau"), ("Nadeau"), who

whojoined

joinedDefendant.

Defendant.Based

Basedon

onthe

therelevant

relevantlaw

lawand

and authorities

authorities

20 the Court now issues the following issues the following decision decision and

and order

order DENYING the

the People's Motion for aa 21 Protective Order.

22 BACKGROUND

23 On August 21, 2023,

2023, the

theOffice

Office of

ofthe

the Attorney

AttorneyGeneral

Generalindicted

indictedDefendant

Defendantand

and Nadeau

24 with five five charges:

charges: (1)

(1) Tampering

Tamperingwith

withPublic

PublicRecords,

Records, (2)

(2)Obstructing

ObstructingGovernment

Government Functions,

Functions,

25 (3) Official OfficialMisconduct,

Misconduct,(4)

(4)Obstructing

Obstructing Governmental

Governmental Functions, and(5)

Functions, and (5) Official Misconduct.

Misconduct.

26

27 Decision Decision and

and Order

Case No. CF0446-23,People CF0446-23, v. Arthur U U San

San Agustin

Agustin

Page1 1 of

of 5

11

Superseding Indictment Superseding Indictment(August (August 21,

21, 2023).

2023). These charges were all These charges all brought brought regarding

regarding both

both

2 Defendant's and Defendant's and Nadeau's Nadean's roles

roles in the Department of Public the Department Public Health Health and

and Social

Social Services

Services

3 4 ("DPHSS").On ("DPHSS"). OnSeptember September1, 2023, Defendant filed aa "Motion 1, 2023, "MotiontotoDisquaIu§/ Disqualify the

the Office of

ofthe

the

4 5 Attorney General," claiming that that disqualification

disqualification was

was warranted

warrantedas

asthe

theAG's Office, through

AG's Office, through

5

6 6 former Assistant former AssistantAttorney Attorney General

General("AAG") Sandra Miller, ("AAG") Sandra Miller, represented represented DPHSS.

DPHSS. Mot.

Mot. for

7 7 Protective Order, Protective Order, (January (January19,

19,2024).

2024).The

TheOffice

Officeof

ofthe

theAttorney

AttorneyGeneral

General("OAG")

("OAG") filed aa

8 Motion Motion for for Protective

Protective Order

Order in

in response. Id

response. Id.

9 DISCUSSION 10 their Motion for In their for Protective Protective Order,

Order, the

the OAG

OAG argues

argues that

that (1) the

the Defendant

Defendant fails to

11 11 establish sufficient cause establish cause to conduct an to conduct an evidentiary evidentiary hearing;

hearing, (2) that

that the

the Court

Court should

should exclude

12 12 under the

evidence under Work-Products Doctrine;

the Work-Products Doctrine, (3) that that granting

granting an

an evidentiary

evidentiary hearing

hearing would

13 13 violate Attorney-Client Privilege; violate Attorney-Client and (4) granting Privilege, and granting an an evidentiary

evidentiary hearing

hearing will the

will violate the

14 14 15 Deliberative Process Deliberative Process Privilege.

Privilege.Mot.

Mot.for

forProtective Order1],r22(January ProtectiveOrder (January 19, 19, 2024).

15 A. Does

Does Movant

Movant Fail

FailtotoEstablish

Establish Sufficient

Sufficient Cause

Cause to Conduct an Evidentiary 16 16 Hearing?

17 17 The OAG

OAGargues

argues that

that "no

"no declaration

declaration from

fromthe

theDefendant

Defendantor

orany

any other

other witness

witness has

has been

18 18 19 provided provided that sets sets forth information which would warrant subpoenaing subpoenaingformer

former AAG

AAG Sandra

Sandra

19

20 20 Miller."Mot.

Miller." Mot.for forProtective

ProtectiveOrder ,r 2(January Order1[2 (January19,

19, 2024).

2024). AAtrial

trialcourt

court may

may grant

grant a protective

21 order "to "toprotect

protectaaparty

partyor

orperson

personfrom

fromannoyance,

annoyance,embarrassment,

embarrassment, oppression, oppression, or

or undue

undue

th

22 burden or expense."

expense." Katakana

Kamakanav.v. City

City && County ofHonolulu, 446 F.3d 1172 (9 County of lath Cir.

Cir. 2006).

23 23 c) of Rule 26(0) of the the Federal Rules of Civil Civil Procedure

Procedure requires

requires a "particularized showing showing of

of good

24 . . , , cause" to protect protect information

information from being disclosed. Phillipe Phillipsex

ex rel.

rel. Estates

Estates of

ofByrd

Byrd v.

v. Gen.

25 Motors Corp. Motors (9 th Cir.

1206 (9th

Corp. 307 F.3d 1206 Cir. 2002). Defendant Defendant points out, however, however, that

that several pages

26

Decision Decision and

and Order

27 v. Arthur U. San

Case No. CF0446-23, People v. San Agustin Page Page 2 of 5 later in the very same brief, the the OAG argues that the Court should "make findings of of fact and

2 of law...

conclusions of ... in in light

light of

ofthe

the serious

serious ethical

ethical allegations

allegations and

and constitutional issues 3 4 ... before involved... before disqualifying Fulmer v. Harper, 517 disqualifying attorneys from the AG's Office. See Fulmar 4 F.2d 20 (10 Cir, Cir, 1975)."

1975)." Defendant out that on appeal in Fulmer, Defendant then points out 10 th Circuit Fulmar, the 10!1' Circuit 5

66 held that the trial trial court

court should

should "hold

"hold a full

full evidentiary

evidentiary hearing on the issues posed by the

77 motion motion to disqualify and the response thereto, which hearing should include the taking of of

8 testimony." Fulmer Fulmar v. Harper, 517 F.2d 21 21 (10 Cir, 1975).

1975). Given

Given the serious ethical concerns

99 raised by both parties, this Court must must agree with Defendant that there is sufficient Defendant that sufficient cause for an 10 10 evidentiary hearing.

11 11 B. Should

Should The

TheCourt

CourtExclude

Exclude Evidence

Evidence Under the

the Work-Products

Work-Products Doctrine?

Doctrine?

12 12 OAG argues

The OAG argues that

that the work~product

work-product doctrine protects materials prepared by an 13 13 14 14 United States v. Nobles, 422 attorney acting for their client in anticipation of litigation. See United

15 15 U.S. L.Ed.2d (1975).

(1975). Here,

Here, the

the AOG

AOG claims that Defendant seeks to inquire into the team

16 16 responsible for his prosecution as they initiated this case, violating the doctrine. Defendant

17 17 argues that the work-product doctrine, even even ifif itit applies, is an evidentiary issue that can be 18 18 raised by way of objection and does not bar an evidentiary hearing or the calling of of witnesses.

19 19 It is not apparent apparent at

at this

this time

time which

which materials

materials the

the AOG

AOG are

are claiming to be privileged. The 20 Court agrees that the work-product doctrine is an evidentiary issue and should be raised by way the work-product

21 of objection.

22 C. Does

Does Granting

Granting an

an Evidentiary

Evidentiary Hearing

Hearing Violate

Violate Attorney-Client

Attorney-Client Privilege?

Privilege?

23

24 The OAG argues that the Attorney General of of Guam represents the Public Interest here

25 conception of against the potential corruption government official. Attorney General of of aa government of Guam v.

v. Y'Asela

26

27 Decision Decision and

and Order

People v.

Case No. CF0446-23, People v. Arthur U. San San Agustin

Page Page 3 of 5

Pereira, Treasurer, Treasurer, Government

Government of

ofGuam,

Guam, SP0032-03.

SP0032-03. As

As such, the OAG apparently believes 2 an evidentiary hearing will violate the privilege that the OAG has with the People (the Client).

3 4 Defendant argues Defendant argues in response that the attorney attorney client privilege with respect to to communications

communications

4 between the OAG OAG and

and DPHSS,

DPHSS, Nadean,

Nadeau, and Director

Director San Augustin belongs to DPHSS, 5

66 Nadeau, and Director San Agustin-

Agustin .- not

not to

to the

the OAG. This Court agrees as as does the Guam

7 Supreme Court, which held that "privileges, such as the attorney-client privilege, are generally

8 viewed as viewed as rules of of evidence

evidence that

that must

must be asserted within the confines confines of

of aa court proceeding. See

99 th Privilege, Black's Law Dictionary (10th ed.

ed. 2014)

2014) (providing

(providing one

one of the

the definitions of

definitions of

10 as . _ ,, ca . . . . . .

"privilege" as "[a]n privilege as a]n evldentlary evidentiary rule

rule that

that gives

gives aa witness

witness the

the option

option to not disclose the fact 11 11 95 asked for, for, even

even though it might

might be

be relevant"

relevant" (emphasis

(emphasis added));

added)), see

see also Guam R.

also Guam R. Evid.

Evil. 503."

12 12 See In re A.B.

A.B. Won

Won Pat

Pat International

International Airport Authority, Guam Airport Autnorily, Guam 2019 WL 3072570.

3072570.

13 13

14 14 D. Does es GGranting

rant an E Evidentiary an v ident iary HHearing earing VViolate

io lat e DDeliberative Process eliberat iv Pro ces

Privilege?

15 15

16 16 The OAG argues that calling OAG witnesses would violate the Deliberative Process

17 17 Privilege, which prevents the discovery of "documents reflecting advisory opinions, 18 18 . , . .. I recommendations and and deliberations

dehberatlons comprising

comprising pa1t

part of

of a process by

by which governmental

19 19 and policies are formulated." See NLRB decisions and NLRB v.v. Sears, Sears, Roebuck

Roebuck & Co., 421

421 U.S. 132,

132, S.Ct.

S.ct.

20 1504 (1975). The privilege exists so that agency officials can speak frankly about agency 21 decisions so so as

asto

to protect

protect the

thequality

quality of those decisions.

decisions. Defendant

Defendant points

points out,

out, however,

however, that

that in

in

22 23 NLRB, NLRB, the U.S. Supreme Court Court went

went 011

on totocaution

cautionthat,

that,"lower

"lower courts

courts have

have uniformly

uniformly drawn a

23 24 distinction between pre-decisional communications, which are privileged, and communications 24

25 made after the the decisions and

and designed

designed to

to explain it..." Id. 1507.

1507. Defendant

Defendant seeks

seeks the

the latter

latter type

26

27 Decision and Decision and Order

Case No. CF0446-23, People v. Arthur U. San San Agustin

Agustin

Page 4 of 5 Page

11

of evidence of evidence here.

here. Therefore,

Therefore, an

an evidentiary hearing

hearing will

will not

not violate

violate the

the deliberative

deliberative process

2 privilege.

3 CONCLUSION AND ORDER

4

For the above reasons, the Court DENIES the People's Motion for People's Motion for Protective Order.

5

6

7 SO ORDERED, this . / y/ day of N~ dayof 2024.

2024.

8

9

10 10 1.-

I

11 11 HO ORA LE JO c.

C. TERLAJE

TERLAJE

Judge, Sup tor Co of of Guam

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27 Decision Decision and

and Order

People v.

Case No. CF0446-23, People v. Arthur U San San Agustin

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