People v. Ybanez
Opinion
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5 IN THE SUPERIOR COURT OF GUAM COURT OF GUAM 6 ) CRIMINAL NO.CF0447-23 CRIMINAL CASE no. CF0447-23 7 PEOPLE OF GUAM, GUAM, ) ) 8 vs. vs. )) )) 9 ) )) DECISION DECISION & ORDER 10 RICHARD Y.y. YBANEZ, )) RE. DISMISSAL DISMISSAL WITH WITH PREJUDICE PRE.ruDICE JENNIFER BADAR BADAR CRUZ, 111 1 ALEJO C. c. SABLAN, SABLAN, )) KEVIN KEVIN J.T. J.T. SUSUICO, ) 12 12 · ANTHONY p. CHARGUALAF, P. CHARGUALAF, )) ) 13 13 Defendant. )) 14 14
15 15 · This matter came came before before the the Honorable Alberto E. Tolentino on August 29, 2024, for a Honorable Alberto 16 16 Status Hearing. Hearing. Defendant Alejo Alejo Sablan Sablanwas was present present with Jr. Attorney counsel Joaquin C. Arriola, Jr. with counsel 17 Michael F. Phillips was present for Defendant Chargualaf. Public Defendant Anthony Chargualaf. Public Defender Renita 18 18
19 Taimanao-Munoz was present BadarCmz. for Defendant Jennifer Badar present for AttorneyGeorge C.ruz.Attorney Valdez was George Valdez 19
20 20 present present for Defendant Richard Ybanez. Defendant Richard Santos was Peter Santos Ybanez. Attorney Peter present Kevin was present Susuico. Kevin Susuico.
21 Attorney Phillip Phillip Tories, Torres, who whohad had filed filedan anEntry Entry of Appearance as ofAppearance Special Prosecutor as Special with the Prosecutor with 22 22 Office Officeof ofthe the Attorney AttorneyGeneral General (OAG), (OAG),was wasnot notpresent. The could,sue present. The sponte, dismissed the case court, sua sponge,dismissed 23 23 and found found that that oral oral argument argument on on the the question question of dismissal should of whether dismissal be with or without should be 24 24
25 prejudice prejudice was was not not necessary, necessary; and allowed the and instead allowed supplemental briefs submit supplemental the parties to submit on the briefs on
26 26 considered the parties' supplemental issue by September 6, 2024. Having considered supplemental briefing, relevant relevant 27 27 portions of the record, and applicable legal authority, the court hereby DISMISSES WITH WITH 28 28
Decision Decision & &Order Order Re. Re. Dismissal with with Prejudice People People v. v. Ybanez Ybanez el al., CF0447-23 et al., Page 17 Page 11 of 17 above-captioned matter. The court now issues the PREJUDICE the above-captioned following Decision & Order the following l 2 2 memorializing memorializing its dismissal with prejudice. reason for dismissal its reason
3 RELEVANT FACTS l
4 Based events that on events Based on between April that occurred between 12, 2022 through May 22, 2023, Defendants April 12, 5 Jennifer Bader Richard Ybanez, Jennifer Cruz, Alejo Badar Cruz, Sablan, Kevin Alejo Serbian, Chargualaf Susuico, and Anthony Chargualaf Kevin Susuico, 6 ("Defendants") accusedvia were accused ("Defendants") were Indictmentof via Indictment the following ofthe charges: THEFT BY DECEPTION followingcharges 7
nd nd 8 (As a 2nd Felony), THEFT BY COMPLICITY Degree Felony); Degree (As aa 2nd COMPLICITY (As Degree Felony); CONSPIRACY Degree Felony); CONSPIRACY
99 FOR FOR MISAPPLICATION 3rd Degree (As aa 3rd FUNDS (As ENTRUSTED FUNDS OF ENTRUSTED MISAPPLICATION OF Degree Felony); TAMPERING
10 WITH PUBLIC RECORDS RECORDS (As 3rd Degree (As aa 3rd Degree Felony); MISAPPLICATION OF ENTRUSTED 11 1
(As aa Misdemeanor), FUNDS (As and OFFICIAL Misdemeanor); and MISCONDUCT (As OFFICIAL MISCONDUCT Misdemeanor). 1 Each (As aaMisdemeanor).1 Each 12
13 13 offense was accompanied by a "Special Allegation: Crimes Against the Community." 2 The court
14 14 will review the procedural history addressing the case's relevant events leading up to dismissal. 15 15 A. Defendants' Defendants'Assertion oftheir Assertion of Right to Speedy Trial their Right 16 16 On July 26, 26, 2023, Sablan, Susuico, Defendants Sablan, 2023, Defendants and Chargualaf Susuico, and asserted their rights to Chargualaf asserted 17 17 18 speedy trial. 3 On speedy triaLs subsequently asserted their rights Ybanez and Cruz subsequently Defendants Ybanez 2023, Defendants August 15, 2023, On August 18
19 19 trial. 4 After to speedy triaLs to speedy trial on August 22, waived her right to Cruz waived Defendant Cruz asserting, Defendant After asserting,
20 20 2023.55
21 21 B. Defendant Sablan'sMotion DefendantSablan's to Disqualify Motionto the Office Disqualifythe of the Attorney General Office of 22 On September 1, 2023, Defendant Sablan filed September 1, of the tiled a Motion to Disqualify the Office of 23 23
24 Attorney General ("Motion to Disqualify") and aa Motion to Sever. Motion to Motion to Sever. In his Motion Disqualify, to Disqualify, 24
25 25
26 26 11 Indictment charged with each of these offenses. were charged case were this case in this Defendants in the Defendants Not all the Indictment (July 3, 2023). Not 21 Id. Id. 27 27 33 Sablan SerbianArraign. Arraign.Hr'g Hr'gMins. Mins.(July (July26, 26,2023); (July26, Mins.(July Hr'gMins. Arraign.Hr'g SusuicoArraign. 2023),Susuico 2023),Chargualaf 26,2023); Arraign. Hr'g ChargualafArraign. Hr'g Mins. (July 26, 2023). 28 28 4 4 Cruz Cruz Arraign. Ybanez Arraign. Hr'g 2023), Ybanez Hr'g Mins. (Aug. 15, 2023); Arraign. Hr'g 15, 2023). Mins. (Aug. 15, Hr'g Mins. 55 Waiver Waiver (Aug. 22, 2023).
Decision Decision & &Order Order Re. Re. Dismissal with with Prejudice People People v. v. Ybanez et al., al., CF0447-23 Page Page 2 of of 17 17 Defendant Serbian Defendant Sablan argued argued that that the the OAG's OAG's disqualification was proper due to a concurrent conflict 1
2 of interest between OAG of OAG and the Guam Regional Regional Transit Authority (GRTA) in violation of Guam
3 of Professional Conduct Rule of Condu9t (GRPC) 1.7. 6 Defendant (GRPC) 1.7.6 Defendant Susuico also filed Bled on September September 1, 1, 2023, 4 .4 own Motion his own Motion for for Sever Severance and aa Motion ance and Motion toto Dismiss Dismiss with ejudice.77 That same withPrPrejudice. same day, day, 5 Chargualaf joined Defendant Chargualaf joined in the Defendant's Defendant's Motion Motion tO Sever. 8 On September to Sever.8 September 7, 7, 2023, 2023, 6 9 7 Defendant Defendant Ybanez joined joined in in the the D.efendant"s Motion tO Defendant's Motion Dismiss.9 to Dismiss. Due to Due to the the dispositive dispositive motions
8 filed and the defendants' defendants' joinders insome jointers in someof ofthose those motions, motions, the the speedy speedy trial trial clocks forDefendants Defendants
9 Susuico tolled Sablan, Chargualaf, and Susuico tolled as as of ofSeptember 2023. 10 September1,1,2023.10 10 11 September 28, 2023, this On September this case case was was assigned assigned to to the the Honorable Honorable Alberto Alberto E. E. Tolentino. Tolentino." 11 on October And on October 4, 4, 2023, 2023, the the court court held heldits. its first first hearing for this this case case as as aa Status Status Hearing, Hearing, 12
13 13 addressing potential addressing conflicts of potential conflicts of interest, interest, or or the lack thereof, the lack thereof, regarding regarding the undersigned's undersigned's 12 14 14 appointment to this case. case." -About month later, About one month later, Defendants Ybanez Ylianez and and Chargualaf Chargualafjoined in 15 15 Defendant Sablan's Defendant Sablan's Motion Disqualify. 13 MotiontotoDisqualify.13 16 16 . The court began began hearing hearing oral oral argument argument for for the the Motion Motion to to Disqualify Disqualify on onNovember November 6, 6,2023, 17 17 8, 2023. which continued to November 8, 2023.
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5 IN THE SUPERIOR COURT OF GUAM COURT OF GUAM 6 ) CRIMINAL NO.CF0447-23 CRIMINAL CASE no. CF0447-23 7 PEOPLE OF GUAM, GUAM, ) ) 8 vs. vs. )) )) 9 ) )) DECISION DECISION & ORDER 10 RICHARD Y.y. YBANEZ, )) RE. DISMISSAL DISMISSAL WITH WITH PREJUDICE PRE.ruDICE JENNIFER BADAR BADAR CRUZ, 111 1 ALEJO C. c. SABLAN, SABLAN, )) KEVIN KEVIN J.T. J.T. SUSUICO, ) 12 12 · ANTHONY p. CHARGUALAF, P. CHARGUALAF, )) ) 13 13 Defendant. )) 14 14
15 15 · This matter came came before before the the Honorable Alberto E. Tolentino on August 29, 2024, for a Honorable Alberto 16 16 Status Hearing. Hearing. Defendant Alejo Alejo Sablan Sablanwas was present present with Jr. Attorney counsel Joaquin C. Arriola, Jr. with counsel 17 Michael F. Phillips was present for Defendant Chargualaf. Public Defendant Anthony Chargualaf. Public Defender Renita 18 18
19 Taimanao-Munoz was present BadarCmz. for Defendant Jennifer Badar present for AttorneyGeorge C.ruz.Attorney Valdez was George Valdez 19
20 20 present present for Defendant Richard Ybanez. Defendant Richard Santos was Peter Santos Ybanez. Attorney Peter present Kevin was present Susuico. Kevin Susuico.
21 Attorney Phillip Phillip Tories, Torres, who whohad had filed filedan anEntry Entry of Appearance as ofAppearance Special Prosecutor as Special with the Prosecutor with 22 22 Office Officeof ofthe the Attorney AttorneyGeneral General (OAG), (OAG),was wasnot notpresent. The could,sue present. The sponte, dismissed the case court, sua sponge,dismissed 23 23 and found found that that oral oral argument argument on on the the question question of dismissal should of whether dismissal be with or without should be 24 24
25 prejudice prejudice was was not not necessary, necessary; and allowed the and instead allowed supplemental briefs submit supplemental the parties to submit on the briefs on
26 26 considered the parties' supplemental issue by September 6, 2024. Having considered supplemental briefing, relevant relevant 27 27 portions of the record, and applicable legal authority, the court hereby DISMISSES WITH WITH 28 28
Decision Decision & &Order Order Re. Re. Dismissal with with Prejudice People People v. v. Ybanez Ybanez el al., CF0447-23 et al., Page 17 Page 11 of 17 above-captioned matter. The court now issues the PREJUDICE the above-captioned following Decision & Order the following l 2 2 memorializing memorializing its dismissal with prejudice. reason for dismissal its reason
3 RELEVANT FACTS l
4 Based events that on events Based on between April that occurred between 12, 2022 through May 22, 2023, Defendants April 12, 5 Jennifer Bader Richard Ybanez, Jennifer Cruz, Alejo Badar Cruz, Sablan, Kevin Alejo Serbian, Chargualaf Susuico, and Anthony Chargualaf Kevin Susuico, 6 ("Defendants") accusedvia were accused ("Defendants") were Indictmentof via Indictment the following ofthe charges: THEFT BY DECEPTION followingcharges 7
nd nd 8 (As a 2nd Felony), THEFT BY COMPLICITY Degree Felony); Degree (As aa 2nd COMPLICITY (As Degree Felony); CONSPIRACY Degree Felony); CONSPIRACY
99 FOR FOR MISAPPLICATION 3rd Degree (As aa 3rd FUNDS (As ENTRUSTED FUNDS OF ENTRUSTED MISAPPLICATION OF Degree Felony); TAMPERING
10 WITH PUBLIC RECORDS RECORDS (As 3rd Degree (As aa 3rd Degree Felony); MISAPPLICATION OF ENTRUSTED 11 1
(As aa Misdemeanor), FUNDS (As and OFFICIAL Misdemeanor); and MISCONDUCT (As OFFICIAL MISCONDUCT Misdemeanor). 1 Each (As aaMisdemeanor).1 Each 12
13 13 offense was accompanied by a "Special Allegation: Crimes Against the Community." 2 The court
14 14 will review the procedural history addressing the case's relevant events leading up to dismissal. 15 15 A. Defendants' Defendants'Assertion oftheir Assertion of Right to Speedy Trial their Right 16 16 On July 26, 26, 2023, Sablan, Susuico, Defendants Sablan, 2023, Defendants and Chargualaf Susuico, and asserted their rights to Chargualaf asserted 17 17 18 speedy trial. 3 On speedy triaLs subsequently asserted their rights Ybanez and Cruz subsequently Defendants Ybanez 2023, Defendants August 15, 2023, On August 18
19 19 trial. 4 After to speedy triaLs to speedy trial on August 22, waived her right to Cruz waived Defendant Cruz asserting, Defendant After asserting,
20 20 2023.55
21 21 B. Defendant Sablan'sMotion DefendantSablan's to Disqualify Motionto the Office Disqualifythe of the Attorney General Office of 22 On September 1, 2023, Defendant Sablan filed September 1, of the tiled a Motion to Disqualify the Office of 23 23
24 Attorney General ("Motion to Disqualify") and aa Motion to Sever. Motion to Motion to Sever. In his Motion Disqualify, to Disqualify, 24
25 25
26 26 11 Indictment charged with each of these offenses. were charged case were this case in this Defendants in the Defendants Not all the Indictment (July 3, 2023). Not 21 Id. Id. 27 27 33 Sablan SerbianArraign. Arraign.Hr'g Hr'gMins. Mins.(July (July26, 26,2023); (July26, Mins.(July Hr'gMins. Arraign.Hr'g SusuicoArraign. 2023),Susuico 2023),Chargualaf 26,2023); Arraign. Hr'g ChargualafArraign. Hr'g Mins. (July 26, 2023). 28 28 4 4 Cruz Cruz Arraign. Ybanez Arraign. Hr'g 2023), Ybanez Hr'g Mins. (Aug. 15, 2023); Arraign. Hr'g 15, 2023). Mins. (Aug. 15, Hr'g Mins. 55 Waiver Waiver (Aug. 22, 2023).
Decision Decision & &Order Order Re. Re. Dismissal with with Prejudice People People v. v. Ybanez et al., al., CF0447-23 Page Page 2 of of 17 17 Defendant Serbian Defendant Sablan argued argued that that the the OAG's OAG's disqualification was proper due to a concurrent conflict 1
2 of interest between OAG of OAG and the Guam Regional Regional Transit Authority (GRTA) in violation of Guam
3 of Professional Conduct Rule of Condu9t (GRPC) 1.7. 6 Defendant (GRPC) 1.7.6 Defendant Susuico also filed Bled on September September 1, 1, 2023, 4 .4 own Motion his own Motion for for Sever Severance and aa Motion ance and Motion toto Dismiss Dismiss with ejudice.77 That same withPrPrejudice. same day, day, 5 Chargualaf joined Defendant Chargualaf joined in the Defendant's Defendant's Motion Motion tO Sever. 8 On September to Sever.8 September 7, 7, 2023, 2023, 6 9 7 Defendant Defendant Ybanez joined joined in in the the D.efendant"s Motion tO Defendant's Motion Dismiss.9 to Dismiss. Due to Due to the the dispositive dispositive motions
8 filed and the defendants' defendants' joinders insome jointers in someof ofthose those motions, motions, the the speedy speedy trial trial clocks forDefendants Defendants
9 Susuico tolled Sablan, Chargualaf, and Susuico tolled as as of ofSeptember 2023. 10 September1,1,2023.10 10 11 September 28, 2023, this On September this case case was was assigned assigned to to the the Honorable Honorable Alberto Alberto E. E. Tolentino. Tolentino." 11 on October And on October 4, 4, 2023, 2023, the the court court held heldits. its first first hearing for this this case case as as aa Status Status Hearing, Hearing, 12
13 13 addressing potential addressing conflicts of potential conflicts of interest, interest, or or the lack thereof, the lack thereof, regarding regarding the undersigned's undersigned's 12 14 14 appointment to this case. case." -About month later, About one month later, Defendants Ybanez Ylianez and and Chargualaf Chargualafjoined in 15 15 Defendant Sablan's Defendant Sablan's Motion Disqualify. 13 MotiontotoDisqualify.13 16 16 . The court began began hearing hearing oral oral argument argument for for the the Motion Motion to to Disqualify Disqualify on onNovember November 6, 6,2023, 17 17 8, 2023. which continued to November 8, 2023. Private Private attorney attorney Joseph McDonald was present for the 18 18
19 19 Motion Hearing held Motion Hearing 8, 2023, November8, on November held on 2023, where where he he formally formally entered entered his his appearance appearance as as a Special
20 20
22 6 Sablan 6 Sablan Mot. Mot. Disq. OAG~(Sept. 2023). OAG (Sept. 1, 2023). 7 7 Susuico Susuico Mot. Mot. Sever. Sever. (Sept. (Sept. 1, 1, 2023); 2023), Susuico Susuico Mot. Mot. Dismiss (Sept. (Sept. 1, 2023). 23 8 Chargualaf Chargualaf Joinder Joiner Mot. Mot.Sever Sever(Sept. (Sept. 1, 1, 2023). 2023). 9 Ybanez Ybanez Joinder Joiner Mot. Mot. Dismiss Dismiss (Sept. (Sept. 7, 2023). 7, 2023). 24 24 10 At this point, there were twenty-three days left 10 At this point, there were twenty-three days left to commencecommence trial trial for all defendants until the resolution of the defendants until dispositive dispositive motions motions for for the the defendants' benefit, benefit, despite despite Defendant Defendant Ybanez Ybanez joining joiningin inthe the dispositive dispositivemotions motions at at aa later 25 · point point in intime. time. The The Guam Guam Supreme Supreme Court acknowledged acknowledged that delays for the benefit benefit of ofthe the defendant defendant constitute constitute as good cause for speedy cause for trial purposes, speedy trial suchas purposes, such astolling tolling of of the the speedy speedy trial trial clock. clock. See Ungava v. See Ungacta v. Superior Superior Court Court of ofGuam, Guam, 26 26 2013 Guam 29 (arguing that, ''delays "delays caused by,by, or for the benefit benefit of ofthe the defendant defendant constitute constitute good good cause cause for speedy trial pulposes."). purposes."). 27 27 11 Notice Judge Assign. (Sept. 28, 2023). Before the undersigned, this case was previously assigned to the Presiding 11 Notice Judge Assign. (Sept. 28, 2023). Before case was previously assigned to the Presiding Judge Alberto C. Lamorena III, IH, who filed filed aa Form Form OneOne - Disqualification Disqualificationon onSeptember September27, 27, 2023 2023. 28 28 12 Status Hr'g Mins. 11:12:37-16:20AM (Oct. 4, 2023). 12 Status Hr'g Mins. 11 :12:37-16:20AM 2023). 13 13 Ybanez Joiner Mot. Disq. OAG (Nov. 3, 2023), Chargualaf Joiner Mot. Disq. OAG (Nov. 6, 2023). Ybanez Joinder Mot. Disq. OAG (Nov. 3, 2023); Chargualaf Joinder Mot. Disq. OAG (Nov . 6, 2023).
Decision Decision & &Order Order Re. Re. Dismissal with with Prejudice People v. Ybanez People v. Ybanez et al., CF0447-23 Page Page 3 of of 17 17 14 Assistant Attorney General Assistant Attorney General(SAAG) (sAAG)'4 argued the and argued and Motion to Disqualify the Motion the Disqualify on behalf of the 1 15 2 People. People. At Atthis this hearing, hearing, the the court underadvisement. took the matter under court took advisement."
3 On On April April 25, 25, 2024, 2024, the the court & Order Decision & issued its Decision court issued granting Defendant Order granting Sablan's Defendant Sablan's 4 Motion Motion to to Disqualify Disqualify along along with with an Order requiring the OAG an Order secure the services of a Special to secure OAG to 5 Prosecutor within thirty-days the prosecution with the thirty-days to proceed with ofthis prosecution of case. 16 The this case.16 The speedy trial 6
clocks for for all all Defendants Defendants continued with twenty-three run, with continued to run, days left twenty-three days in the left to commence trial in 7
8 case. Six days case. Six dayslater, theOAG later,the OAGfiled filed aaMotion Motion to to Stay Appointmentof StayAppointment ofSpecial Prosecutor("Motion SpecialProsecutor ("Motion
9 Stay"). 17 to Stay").17 10 10 C. The ThePeople's Statement of Objection and People's Statement Motion to Disqualify the Court and Motion 11 11 On the same day that same day filed its Motion to Stay, thatitit filed the OAG Stay, the also tiled OAG also Statement of filed aa StateMent 12 12
13 13 Objection Objection and and Motion Motionto toDisqualify Disqualifythis onMay courton thiscourt 2024. 18 Defendant May1,1,2024.18 subsequently Sablan subsequently Defendant Sablan
14 14 Motionto filed aa Motion filed to Strike Strikethe the People's Objection, StatementofofObj People'sStatement Motion to section,Motion to Disqualify, and Motion Disqualify, and Motion 15 15 to Stay on May 2, 2024. 2024.Four Fourdays dayslater, later,the theOAG OAG filed filed a Motion to Vacate Requesting to MOtion Requesting the Court's Vacate the Court's 16 16 Decision Decision & Order, alternatively to Order; or alternatively toReconsider Reconsiderthe theDecision Decision&&Order Order("Motion ("Motion to toReconsider"). Reconsider"). 17 17 Defendant Ybanez Ybanez filed tiled his Opposition to to the the People's People's Motion Motion to Disqualify Stay and Motion Motion to Stay 18 18
19 on May 7, on May 7, 2024, alongwith 2024,along withhis hisJoinder Joiner to Defendant Sablan's to Defendant Sablan'sMotion Motion to to Strike. Strike.The ThePeople People filed filed 19
22 22 14 The Supreme Court of Guam recently answered the certifiedquestion General [is] Attorney General "[t]he Attorney whether"[t]he 14 The Supreme Court of Guam recently answered the certified questionofofwhether [is] 23 23 required to implement conflict conflict protocols protocols consistent consistent with with the the Guam Guam Rules of but not including, but Conduct including, ProfessionalConduct ofProfessional limited to,to, an an ethical ethical screen screen or or assignment assignment of of investigations investigations of agency officials totoan agency officials anindependent Special independent Special 24 24 Prosecutor." In In Re: Re: Request Request ofofLourdes A. A. Leon Guerrero, Declaratory J. J. (May added). By (emphasis added). 2024) (emphasis 31, 2024) (May 31, answering answering this this question question inin the the affirmative, affirmative, Ir it stated stated that that recusal prosecution, erecting recusal from prosecution, conflict walls, erecting conflict walls, or 25 appointing a Special Special Assistant Attorney Attorney General General is within the AG's discretion the AG's long as discretion so long any makes any AG makes the AG as the reasonable effort efforttotoensure ensure that the the lawyers lawyers under Linderhis hisdirect directsupervisory conformtotothe authorityconform supervisoryauthority Rulesof theRules ofProfessional Professional 26 26 Conduct. Id. (emphasis (emphasis added). added). Thus, Thus, this this court court uses the AssistantAttorney Special Assistant and Special positions Special Prosecutor and the positions Attorney General interchangeably throughout throughoutthisthisDecision Decision & Order. 27 27 15 Mot. Hr'g Mins., 15 Mot. Hr'g Mins., 12:21:25-21:58PM 12:21:25-21:58PM (Nov. (Nov. 8, 8, 2023). 16 Dec. & Order Granting Sablan Mot. Disq. OAG 16 Dec. & Order Granting Sablan Mot. Disq. OAG (Apr. 25, 25, 2024), 2024); Order (Apr. 25, 25, 2024). 28 28 17 Ppl. Mot. Stay(May 17 Ppl. Mot. Stay (May 1, l, 2024). 18 l8Ppl. Statementof ofObjection Objection& &Mot. Mot. Disq. Disq. (May (May 1,1, 2024). Ppl. Statement
Decision Decision & &Order Order Re. Re. Dismissal with with Prejudice People Ybanez et al., v. Ybanez People v. al., CF0447-23 Page 4 of Page 17 of 17 its Opposition and Response Response on on Defendant Defendant Sablan's Sablan's Motion Motion to Strike on on May May 7, 7, 2024. 2024. Judge Judge 1
2 Tolentino filed Tolentino filedhis his Answer AnswertotoStatement Statementof ofObjection Objectionon onMay May13, 2024. 19 13,2024.19
3 On May May 13, 13, 2024, 2024, the Honorable Maria Maria T. T. Cenzon Cenzonwas was assigned assigned as as the recusal judge to recusal judge i
4 determine the People's determine the People's Motion MotiontotoDisqualify Disqualifythis thi.scourt. court.VVhi1e While this case was before the the recusal recusal 5 judge, the speedy trial clock clockhad had run for for Defendants Defendants Sablan, Sablan, Susuico, and Chargualaf Chargualaf on May May 18, 6
7 2024. Ybanez's speedy 2024. Defendant Ybanez's speedytrial trialclock clockhad hadMn runon onJune June 2, 2, 2024. 2024. Judge Judge Cenzon Cenzon issued issued her
8 Decision Decision & & Order Order denying denying the the OAG's OAG'sStatement StatementofObj section and Motion of Objection Motion to Disqualify Disqualify this this court 9 on June 12,2024. June 12, 2024.On OnJune June13, 13,2024, 2024, the the Peoplefiled People tothe Replyto itsReply filedits theDefendant's Defendant's Opposition to 10 the Motion Motion to Reconsider. 11 1
D. D. Entry EntryofofAppearance Appearanceas asSpecial SpecialProsecutor Prosecutor 12 12
13 13 Attorney Phillip Phillip Tories Torresentered enteredhis his appearance as aa Special appearance as Special Prosecutor Prosecutorfor for the thePeople People of of
14 14 Guam On 2024.2020 19,2024. June19, on June Pursuant Pursuant to to this this Orderissued court'sOrder court's issuedon onApril April 25, 25, 2024, 2024, the the deadline 15 15 for the for the People People of ofGuam Guam to to secure secure the services of the services ofaaspecial specialprosecutor prosecutor in inthis this case case was was Saturday, Saturday, 16 16 May 25, 25, 2024. The court 2024. The court filed a Notice Notice of ofIn-Personhearing In-Person hearingon onAugust August13, 13,2024, 2024, scheduling scheduling aa 17 17 Status Hearing for Status Hearing for August 29, 29, 2024. 2024.However, However, the Special Prosecutor's only only other other action action in in this 18 18
19 19 case was to case was to file aa Notice NoticeofofCancellation Cancellationofofhis hisEntry EntryofofAppearance Appearanceas asSpecial SpecialProsecutor Prosecutor On on
20 20 August 15, 2024. 15, 2024. 21
22 22 19 19 7 GCA § 6107 states in relevant part: "Within ten (10) days after the service of such statement as above provided, 7 GCA § 6107 states in relevant part: "Within ten ( 10) days after the service of such statement as above provided, 23 or ten (10) days after the filing of any statement, whichever whichever isis later later in time, the Justice or Judge allegedalleged therein to be therein to be disqualified may file with the clerk his his oror her her consent consent in writing writing thatthat the the action action or or proceeding proceeding continue continue without without him him 24 or her, or may file or file with with the the clerk clerk his hisor herwritten orher writtenanswer answeradmitting admittingorordenying denyinganyanyororalt allofthe of contained allegations contained statement and setting in such statement forth any additional fact or facts material setting forth material or relevant relevant to to the the question question ofof his his or or her her. 25 disqualification... squal i fi cat i on. . .The The statement st at ementofofa·a.party part yobjecting obj ect i ngtot othe Just i ceororJudge t heJustice Judgeon on the t he ground ground ofof his hi s or or her her disqualification shall be presented at the the earliest earliest practicable practicable opportunity opportunity after his his or or her her appearance appearance and and discovery discovery ofof 26 26 the factss const he fact constituting i t ut i ng the t he ground ground ofof t he Just i ce's or Justice's or Judge's Judge's didisqualification, squal i fi cat i on, and and ini n any any event event before before tthe he commencement of commencement ofthe the hearing hearing of of any any issue issue of fact in of fact in the action or proceeding before before such Justice or such Justice or Judge." Judge." InIn any any 27 27 event, the court lostlostjMsdiction jurisdictionbefore beforethe the responsive responsive pleadings pleadings were due. The undersigned undersigned was was not not personally personally served sewed with the Statement of Objection and Motion to Disqualify until close to two weeks after it was was filed. filed. Dec. Dec. Serv. Serf. (May (May 28 28 15, 2024). * 20 Entry Appearance (June 20 Entry Appearance (June 19, 2024).
Decision & Decision & Order Re. Re. Dismissal with with Prejudice People People v. v. Ybanez et al., Ybanez et al., CF0447-23 Page Page 5 of17 17 E. E. Dismissal Dismissalof ofthe the Case Case 1
2 held the Status The court held Status Hearing Hearing on on August August 29, 29, 2024, 2024, to todetermine detennine whether whether and how this
3 case will be moving moving forward. forward. Ultimately, the court sue sua sponge sponte dismissed dismissed the the case, case; but left the 4 of whether issue of whether dismissal dismissal was was with with or or without withoutprejudice prejudicefor forthe thepalties partiesto brief. 21 The court issued tobrief.21 issued 5 its Order for Dismissal on September 4, 2024, 2024, memorializing its decision to dismiss the case. case. 6
7 However, that However, that same day, the OAG subsequently subsequently filed filed aa Motion Motion for Relief Relief from Order DismissaI Order of Dismissal
8 (t'Motionfor ("Motion.forRelief"), Relief'), pursuant pursuant to to Guam GuamRules Rules of ofCivil CivilProcedure Procedure(GRCP) 60(b). 22 As ordered (GRCP)60(b).22 9 by the court, Defendants Defendants Ybanez Ybanez and Sablan filed their supplemental supplemental briefs briefs in support of dismissal dismissal 10 10 23 with prejudice. prejudice." 11 11
12 12 LEGAL LEGAL AUTHORITY AUTHORITY 13 13 A. Dismissal A. Dismissalof ofthe the Case Case Pursuant Pursuant to to 88 GCA GCA §§ 80.60 80.60 and and §§ 80.70(b). 80. 14 14 s p o r dismissed The court suae sponte dismissed this this case case pursuant to 88 GCA pursuant to GCA §§ 80.60 80.60 and and alternatively alternatively 88 15 15
16 16 GCA §§ 80.70(b). GCA 80.70(b). PursUant to 88 GCA Pursuant to GCA §§ 80.60, 80.60, the the court court shall shall dismiss dismiss aa criminal criminal action action for for failure failure
17 17 to commence trial trial of of a defendant defendant within within sixty sixty (60) (60) days after after arraignment unless there there is good 18 18 cause for failure cause for failure to to commencethe commencethe trial trial within within the the sixty-day sixty-day time time frame. frame. Under Under 88 GCA GCA §§ 80.70(b), 80.70(b), 19 19 "[i]fthere "[i]f thereisis unnecessary unnecessary delay delay in in bringing bringing aa defendant defendant to to trial, the court, on its own motion, may 20 dismiss the indictment, information information or' or complaint." 97
22 The court was unable to find any good cause asto cause as towhy why this this case casewas wasnot notbrought broughtto totrial trial
23 within the the mandated mandated sixty sixty days. days; Among Among its its reasons reasons for for dismissing dismissingthe thecae, case, the the court court found found 24 . . . u | . . 2 unnecessary de delay in bnnglng lay in bringingthe theDe Defendants' casedual fe ndants' case trialafte after theOAG r the OAG waited waite untilJLu1e d unt11 19, 2024, June 19, 2024, 25
27 27 21 21 Status Hr'g Mims. l0:41 :20-42:25AM (Aug. 29, 2024). Status Hr'g Mins. 10:41 :20-42:25AM (Aug. 29, 2024). 22 Acting Chief Prosecutor Gloria Rudolph and Attorney Curtis Vandeveld signed off on this motion as a Special 22Acting Chief Prosecutor Gloria Rudolph and Attorney Curtis Vandeveld signed off on this motion as a Special 28 28 Assistant Attorney General, although although he has still not entered a formal appearance before the court coui;t in this this case.. 23 Ybanez Br. in Support (Sept. 6, 2024), Sablan Memo. in • 3 Ybanez Br. in Support (Sept. 6, 2024); Sablan Memo. Supp. (Sept. 9, 2024).
Decision Decision & &Order Order Re. Re. Dismissal with with Prejudice People People v. v. Ybanez al.,CF0447-23 Ybanez et al., Page Page 6 of of 17 17 to appoint a special prosecutor prosecutor to to the the case case -- twenty-five days after the thirty-day period expired 1
2 expired. 24 The court will now explicate its and thirty-one days after the speedy trial clock had expired.24
3 reasons to dismiss this case with prejudice. l r
4 B. Federal Speedy Trial Act Factors 5 Where a defendant's defendant's statutory statutory right right to speedy tn'al trial is violated, "[t]he issue of whether the 6
7 case should be dismissed with or without prejudice should be decided in the first instance by the
8 trial court." court." People 1, ,r People v. Corpuz, 2019 Guam 1, 1] 18 18(quoting (quotingNicholson Nicholson v. v. Superior Court Court (People), (People), 9 ,r 29) 2007 Guam 9 1] 29) (Mar. (Mar. 22, 22, 2019). 2019). While While the the Guam Guam Supreme Supreme Court Court has has "never ruled that a 10 10 speedy trial violation speedy trial violation requires an an automatic automaticdismissal dismissalwith with prejudice prejudice... Guam's speedy tn'al trial statute 11 11 does not contain a default default presumption presumptionone oneway wayor orthe theother-making other-making both both available available to to the trial 12
13 13 court." Id (quotingPeople v.v.Aromin, court." Id Aron in, 2014 2014 Guam 3 ,r,r 14, 20-21; Guam3111114, also 88 GCA 20-21,see also GCA §§ 80.60 (2005)). (2005)).
14 The Guam Supreme Court has.further hasJurther held that the trial courts must consider the federal Speedy 15 15 .Trial Act ,Trial Actfactors factors when when determining determining whether whether to to dismiss dismiss aa case case with with or or without without prejudice. prejudice. AAromin, on 16 16 Guam 3, 2014 Guam ,r 21. 3, 1121. 17 17 The federal federal Speedy Speedy Trial Act requires the court court to consider consider the following factors factors and 18 18
19 19 determine whether they determine whether they weigh weigh in favor of of dismissal dismissal with with prejudice prejudice in this this case: case: "(1) "(1.) the the 20 20 • seriousness of the offense; offense, (2) the facts facts and circumstances of the case which led to the dismissal; dismissal, 21 and (3) the impact of a reprosecution of the administration of justice." Aromin, Aron in, 2014 Guam ,r Guam3311 22 21. 23
24 (1) The Seriousness of of the Offense
25 When analyzing analyzing whether whether the the seriousness seriousness of of the the offense offense favors favors dismissal with prejudice, prejudice, 26 26 the trial court's interpretation recognizes that interpretation recognizes that "the more serious serious the offense, offense, the more weight 27
28 24 Order for Dismissal (Sept. 4, 2024). 24Order for Dismissal (Sept. 4, 2024).
Decision Decision & &Order Order Re. Re. Dismissal Dismissal with with Prejudice People People v. v. Ybanez Ybanez et al., CF0447-23 Page Page 7 of of 17 17 1 should should be given to dismissal given to without prejudice." dismissal without Aromin, prejudice."Aron ,r (citing United in, 1]23 25 United States v. Clymer, 25
2 F.3d 824, 831 ). "[W]here Cir. 1994)). 831 (9th Cir. of dismissal "[W]here the crime charged is serious, the sanction of
3 with prejudice should onlyfor imposedonly be imposed ordinarily be should ordinarily serious delay." forserious Corpuz,2019 delay."Corpus, ,r (quoting 20191124 4 United United States Simmons, 786 F.2d 479,485 States v. Simmons, (Zd Cir. 485 (2d Cir. 1986)). 5 By example and comparison example and to felony comparison to charges, misdemeanor felony charges, charges are misdemeanor charges generally are generally 6
deemed less serious. de,emed less instance, the nature of an serious. For instance, assault may be more an assault serious than a theft more serious 7
8 of the bodily because of another may view the punishments bodily injury. But another available for punishments available an assault versus for an
9 9 of the charge's seriousness. Thus, if evaluating the seriousness of of aa charge' indicator of stronger indicator a theft as a stronger 10 misdemeanor offenses alone, it would offenses in this case alone, fall in would fall favor of in favor dismissal with ofdismissal prejudice. with prejudice. 11 11 However, this case also felonies, nonetheless the court will also involves felonies; their will now review whether their 12 12
13 13 seriousness warrantsdismissal alsowarrants seriousness also with prejudice. dismissalwith
14 14 Defendant stated that Ybanez stated Defendant Ybanez the felony that the charges in felony charges appear serious case appear in this case "at first serious "at 15 15 glance." Ybanez Br. (~Sept. 2024).On (Sept. 6,6,2024). theone Onthe hand,allegations onehand, ofgovernment allegationsof misconduct here government misconduct 16 16 may may be be charged as as serious violations of the criminal seriousviolations statute charged criminal statute but also as charged ~ut violation of!h~ as aaviolation the 17 17 public's public's trust. potential punishments trust. The potential wouldalso punishments would beaa good also be indicatorof goodindicator the seriousness ofthe of the seriousness Of 18 18 nd 19 19 charges. As to the charges of BY DECEPTION of THEFT BY (As aa 2nd DECEPTION (As Degree Felony) and THEFT 2 Degr:ee
20 20 BY BY COMPLICITY 2nd Degree (As aa 2nd COMPLICITY (As face aa minimum typically face defendants typically FeloNy), defendants Degree Felony), of five years minimum of 21 and a maximum often maximum of years of ten years imprisonment. 25 For "offenders not previously convicted of ofimpdsonment.25 of a· 22 22 felony or or of court may constituting theft, the Court of an offense constituting sentence the may sentence to not more than the offender to 23 23 24 five five (5) (5) years of imprisonment years of and the imprisonment and provisions ofofthis theprovisions subsection prohibiting thissubsection probation prohibiting probation 24 26 25 25 suspension, suspension, parole, work release or work parole, or shallnot release shall be applicable not be to such applicableto offender. " Pursuant to 9 GCA such offender."26
26 26 §§ 80.31, third degree 80.31, third degree felonies, felonies, like like CONSPIRACY CONSPIRACY FOR MISAPPLICATION OF ENTRUSTED N OF ENTRUSTED 27 27
28 25 25 99GCA GCA§§43.20(a). 43.20(a). 26Id. Id.
Decision &&Order Decision Re. Dismissal OrderRe. with Prejudice Dismissal with People v. Ybanez People v. CF0447-23 Ybanez et al., CF0447-23 Page 88 of Page 17 of 17 FUNDS FUNDS (As aa 3rd 3rd Degree Degree Felony) Felony)and andTAMPERING TAMPERING WITH WITH PUBLIC RECORDS 3rd RECORDS (As aa 3rd 1
2 Degree Felony), Felony), have have aa sentence sentence between zero ranging between ranging years. Crime Against aa three years. zero to three
3 Community that the special allegation that was a special Community was added onto the People added each charge onto each in this charge in case. If this case. 4 4 convicted, convicted, the offender offender shall shall "serve (1)year one (1) "serve one incarcerationand yearofofincarceration pay an and pay additional fine an additional ofup line of 5 I
27 on the imposed on 6 to Five Five Thousand Thousand Dollars This year of ($5,000.00)." This Dollars ($5,000.00)."27 incarceration would be imposed of incarceration 6
underlying felony or sentence for the underlying misdemeanor. or misdemeanor. 7
8 Here, none none of of the the Defendants charged with these Defendants who were charged been these felonies have ever been
9 previously convicted of oror a felony of felony Therefore, offense.Therefore, theftoffense. theft maximum, only Defendant,atataamaximum, eachDefendant, each 10 faces no more than six years imprisonment for years of imprisonment charge if for each charge addition to the In addition if convicted. In 11 11 "victimless "victimless and and noN-violent" non-violent" nature ofthe nature of felonycharges, the felony Defendant Sablan charges,Defendant argues that Sablan argues the that the 12 12
seriousness negated by the ·defendants' offenses is negated of the offenses seriousness of viable defenses defendants' viable and their defenses and reasonable their reasonable 13 13
14 14 reliance on the OAG as GRTA's the OAG counselas GRTA's counsel mitigating factor as aa mitigating to their factor to sentencing. Sablan Memo. their sentencing. Memo.
15 15 should not be charges should felony charges the felony that the at 4-5 4-5 (Sept. (Sept. 6, 6, 2024). 2024). Defendant Ybanez also Defendant Ybanez argues that also argues 16 16 considered serious, although considered serious, seriousatatfirst appearingserious althoughappearing glance, because first glance, the likelihood because the likelihood of 17 17
conviction conviction is Br. at Ybanez Br. is extremely low. Ybanez 8-9 (Sept. at 8-9 6, 2024). (Sept. 6, 18 18
19 19 This court previously addressedthe previously addressed OAG's legal theOAG's representationof legal representation GRTA in its Decision ofGRTA
20 20 & Order. Order. Before Before the the OAG commencedaacriminal OAGcommenced prosecution for criminalprosecution the Defendants' for the conduct, "it Defendants' conduct, 21 was apparent thatthe apparent that theOAG at a minimum not, at OAG did not, asits minimumas legal representation, itsiegal adviseGRTA representation,advise that GRTA that 22 22 Defendant Ybanez Ybanez serving as theInterim asthe ExecutiveManager InterimExecutive wascontrary Managerwas contraryto tolaw... AAG Keeler, law ... AAG Keeler, 23 23 who was was responsible GRTA, apparently advising GRTA, for advising responsible for believed the apparently believed conduct was the conduct not illegal." was not illegal." 24
25 25 Order (Apr. & Order Decision & Decision 2024). While 25, 2024). (Apr. 25, the Attorney While the General suggested Attorney General that aalegal suggested that legal opinion on opinionon
26 26 the legality of Ybanez's hiring ofYbanez's hiring was Ybanez, that opinion fairness to Mr. Ybanez,"' offairness 'out of was "necessary 'out opinion was 27 27
28 27 27 9 GCA§§43.3l(d)(3). 9 GCA 43.3l(d)(3).
Decision Decision &&Order Order Re. with Prejudice Re. Dismissal with People v. Ybanez People v. CF0447-23 Ybanez et al., CF0447-23 Page 17 of 17 Page 9 of never generated, andGRTA generated; and GRTA was never advised to cease cease its potentially potentially illegal conduct before the 1
2 2 OAG OAGproceeded proceededtotoprosecute prosecute that conduct. Id that conduct. Id at at 14. 14.
3 Therefore, after Therefore, after reviewing reviewingthe theapplicable applicablesentencing sentencingstatutes statutes and the the People's People's conduct conduct in 4 commencing the criminal criminalprosecution prosecution ofofthis thiscase, case,the thecourt courtagrees agrees that that the the charges charges are are not as as 5 as they serious as they may may appear appearto tobe. be.In thiscase, Inthis case,the theDefendants Defendantsare arefirst-time first-timeoffenders offenderswho who relied relied 6
7 OAG's advice on the OAG's advicethat thattheir theirconduct conductwas was not not illegal. illegal.Thus, Thus,the thecourt courtfinds findsthat thatthe the seriousness seriousness
8 of of the the offenses offenses charged weigh weigh in favor of ofdismissal dismissal with with prejudice.
9 . (2) The TheFacts Facts and and Circumstances Circumstances of ofthe the case case which led to the the dismissal dismissal 10 When looking at the facts and circumstances of of the case case which which led to dismissal, trial courts 111
have considered: bad faith by the Government or or the the court court in in causing the delay; delay, actual actual prejudice 12 12
13 13 to the defendant, defendant; unavailability of ofwitnesses, witnesses; the the disappearance or deterioration of exculpatory disappearance or exculpatory
14 14 evidence; whether the the defendant was in defendant was in confinement confinement while while awaiting awaiting the the initiation of the the case. case.
at ,r 24. "While 15 Arominat1] "Whilenot notdispositive dispositiveunder underthis this second second factor, factor, the the court court also also evaluates evaluates whether 16 16 the the court's Or government's conduct or government's conductrises risestoto the. the level level of of 'something 'something more more than than an an isolated isolated 17 17
unwitting violation,' violation,' such asaafinding such as findingof of 'bad 'bad faith' faith'_or *oraa'pattern 'patternofofneglect."' neglect."'Id Id (quoting United United 18 18
19 19 States States v. Taylor, 487 U.s. 326, 487 U.S. 339 (1988))." 326,339 (1988))." 20 An "[i]nordinate An "[i]nordinatedelay delaybetween betweenpublic public charge charge and and trial" may may (1) (1) prejudice prejudice "a "adefense defense On on 21 the merits"-such merits"-such asasthrough through the the deterioration deterioration of ofcrucial crucial evidence, unavailability of ofwitnesses, witnesses, or 22 subversion of the subversion of thedefendant's defendant'sability abilitytotoprepare preparefor fortrial-or trial-or (2) (2) seriously seriously prejudice prejudice "defendant's 23 23 24 liberty, ... ...disrupt disrupthis hisemployment, employment,drain drainhis hisfinancial financialresources, resources, curtail curtail his his associations, associations, subject 24
25 25 him to public obloquy, and create create anxiety anxiety in him, him, his hisfamily family and his hisfriends." friends."Corpus ,r 25; United Corpuz1125, United
26 26 States v.v. Bert, Bert, 814 F.3d 70, 70, 82 82 (2d (Zd Cir. Cir. 2016) 2016) (quoting Taylor, Taylor, ,487 U.S. at 487 U.S. at 340-41) 340-41) (explaining (explaining 27 27 prejudice .prejudice to to defendant defendant may come in in trial prejudice or non-trial Aromin, 2014 Guam 3 prejudice), Aron non-trial prejudice); 28
Decision &Order Decision & Order Re. Re. Dismissal with with Prejudice People People v. v. Ybanez Ybanez et al., CF0447-23 Page Page 10 10 of 17 1 ,r 24 1] 24 (mentioning (mentioning examples examples of of prejudice prejudice such such as as witness witness unavailability, unavailability, deterioration deterioration of
2 exculpatory evidence, or curtailment exculpatory evidence, cullailment of of defendant's defendant's liberty). liberty). I t
3 In In order order to tounderstand understand whether whether .the facts and circumstances the facts circumstances in in this case attributed to an case attributed 4 overly overlylong longdelay delayand andprejudice, prejudice,the the court court laid laid out out the the relevant relevant procedural procedural history leading leading up up this 5 case's case's dismissal. dismissal. In Inregards regards to tothe thecourt's court'sconduct conductthat thatattributed attributedtO to the delay, the undersigned undersigned had 6
7 been on medical leave leave upon upon taking the Motion Motion to to Disqualify DisqualifyLinder under advisement. As its advisement. As its conduct conduct
8 that attributed attributedto tothe thedelay, delay, the theprosecution prosecutionwas wasaware awareof of the thecourt's court's order since since April 25, 25, 2024, 2024,
9. secure the services of to secure ofaaspecial specialprosecutor prosecutor in in order orderto toprosecute prosecute this this case. case. And Andbased based On on the 10 lack of any waiver waiver of ofspeedy speedy trial trial rights filed filed since since Defendant Defendant Cruz's Cruz's waiver waiveron onAugust August 22, 22, 2023, 2023, 11 11 it was also aware that thatitithad hadto tosecure securethose thoseservices servicesbefore before the thespeedy speedytrial trial clock clock expired. Instead, 12 12
13 13 the OAG the did not OAG did not appoint appoint aa special special prosecutor prosecutor until until tvvénty-five twenty-five days days past the expiration past the expiration of of the the
14 14 the court allotted time the to secure allotted to secure those those services servic.es before beforedismissing dismissing the the case case in inits its entirety. entirety.Just Just as as . 15 15 importantly, they had appointed this this special special prosecutor prosecutor thirty-one thirty-one days days after after the the speedy speedytrial trial clock clock 16 16 had already already been expired. expired. 17 17 Although Although aware aware that the speedy that the speedy trial trial clock clock was was set set to to expire expire on May 18, 2024, 2024, the the OAG OAG 18 18
19 19 filed aa Motion tiled toDisqualify Motionto Disqualifythis thiscourt courtand andStatement Statement of ofObj sectionon Objection onMay May 1, 2024. While 1, 2024. While the
20 20 speedy trial trial clock tolls"for for dispositive dispositive motions motions for for the the Defendants' Defendants' benefit, this motion is not not of 21 this type. type. Notably, Notably, the the OAG OAG previously indicated in aa 2023 indicated in 2023motion motionhearing hearingthat that it itwould would note not be 22 _22 filing filing anything anything of ofthis this nature nature against this court. against this court.Mot. Mot. Hr' Hr'g Mins. Mins. at at 1:41:19~41:30PM 1:41: 19-41 :30PM (Oct. 20, 23 23
24 2023). Rather than attempt Rather than attempt to to disqualify disqualify this this court court When when itit was initially initially assigned assigned to to the the case case on
25 September 28, 28, 2023, 2023,the theOAG OAGchose choseto tofile file this thismotion motion with with only seventeen days left left to commence
26 26 trial before aa speedy trial trial violation violation May may occur. occur. 27 27
Decision Decision &&Order Order Re. Re. Dismissal with with Prejudice People People v. v. Ybanez Ybanez et al., CF0447-23 Page Page 11 11 of 17 Defendant Sablan stated in his brief brief that the lack of of a trial date made it more difficult to 1
2 find and serve relevant witnesses with subpoenas, whose memories may fade overtime the longer
3 Defendant must the Defendant must wait wait for for trial. Sablan Sablan Br. Br. at at 66 (Sept. (Sept. 9, 9, 2024). If If the case proceeds to trial, the I
4 court acknowledges acknowledges that the the overly overly long delay may make make itit more more difficult difficult for for the defendants to 5 present the same case they would have had that delay not occurred. 6
7 In regards to whether the the OAG's conduct conduct rises to the level of "something more than an
8 isolated unwitting violation," the procedural procedural history history above above presents presents the the OAG's OAG's continuous filing
9 28 of motions28 afternot after not only only this this court court had had disqualified disqualified the the OAG OAG as as a whole, but also after the 10 Defendants' Defendants' speedy trial clock had expired. This conduct speedy trial conduct is not just one isolated unwitting 11 11 violation; it has become violation, become a pattern in this case. case. Therefore, the court finds finds that the facts facts and 12 12
13 13 circumstances of this case, which led to dismissal, weigh in favor of this case, of dismissal with prejudice.
14 14 (3) The Th~ impact impact of of a reprosecution on the administration of of justice 15 15 "The Court "The Court should should also look to the likelihood of of repeated violations and whether potential 16 16 79 administrative changes are prompted by the violation." Bert, 814 F.3d at 86. 86. While not as serious 17 17 as dismissal with prejudice, of a sanction as prejudice, dismissal without without prejudice prejudice would still still require the 18 18
19 19 People to obtain a new new indictment indictment and and potentially potentially face free dismissal on statute oflimitations limitations grounds. grounds,
20 20 ,r (quoting Taylor, Corpuz 1]27 Taylor, 487 U.S. at 342). 21 Defendants Ybanez and Sablan contend in their briefs that the impact of a reprosecution 22 on the administration of justice weighs in favor of of dismissal with prejudice. prejudice. Defendant Ybanez Ybahez 23 23 states that it is very likely that the case will not be re-charged, or alternatively, will be dismissed 24 24
25 again again if if the People indict indict the Defendants Defendants again. again. Ybanez Ybanez Br. Br. at at 10 10 (Sept. (Sept. 6, 2024). Ybanez supports
26 26
27 27 28 Mot. Stay Appt. (May l, 2024), Mot. Vacate or Reconsider 28Mot. Stay Appt. (May 1, 2024); Vacate or Reconsider (May 6, 6, 2024), 2024); Memo. Supp. Mot. (May 6, Supp. Mot. 6, 2024), 2024); 28 28 Opp'n Opp'n & & Resp. Resp. Mot. Mot. Strike Strike (May (May 7, 2024); Opp'n 7, 2024); Opp'n Reply Reply (June (June 13, 2024); Ppl.'s 13, 2024); PpI.'s GRCP 60(b) Mot. (Sept. (Sept. 4, 4, 2024).
Decision & Decision &Order Order Re. Re. Dismissal with with Prejudice People People v. v. Ybanez Ybanez et al., CF0447-23 Page Page 12 of 17 12 ofl7 argument with this argument with the the fact fact that thatAttorney Attorney Keeler and the Attorney General Keeler and General himself himselfwere were unsure unsure 1
2 2 occurred. Id. anything criminal occurred. anything Id.
3 As mentioned As mentioned earlier, earlier, the the OAG filed motions OAG repeatedly filed motions without without leave of ofcourt court and and after 4 this court had had already alreadydisqualified disqualified the the entire entireoffice from this office from this case. case. The The court court is is concerned concerned with 5 this case would proceed ififititwere how this weretotodismiss dismissthis thiscase casewithout without prejudice. prejudice. Even Eventhough though this this 6
7 court has court has already already disqualified the qAG, disqualified the OAG, itit still stillmaintains maintains that that the the disqualification disqualification was was 7
8 8 inappropriate and and that thatthis thiscourt's court'sOrder Orderto toappoint appointaaspecial special prosecutor prosecutorviolates the separation of violates the of
9 powers within Powers the Organic within the Organic Act Actof ofGuam. Guam. Pp1.'s Ppl.'s GRCP GRCP60(b) 60(b)Mot. Mot.at at4-6 4-6(Sept. (Sept. 4, 4, 2024). 2024). 10 10 Reprosecution of this case, case, while the People still maintain maintain its position on disqualification 11 and this court's order and this order to to appoint appoint aa special special prosecutor, prosecutor, impacts impacts the the administration of justice, administration of 12 12
13 13 because itit is likely because that the OAG likely that as they act as may act OAG may they have have in in this this case case ififthis this same same issue issue arises. arises. And
14 14 this issue issue of of disqualification disqualification will willlikely- likelyarise arise again, again, given giventhat that the same same conflict conflict of ofinterest interest between 15 15 the OAG the and GRTA OAG and st1llexists GRTAstill existstotothis thisday. day.Therefore, Therefore,the thecourt court finds finds that that the the impact of the the 16 16 reprosecution on on the administrationof theadministration ofjustice justiceweighs weighsin infavor favor of dismissal with with prejudice. 17 17 Because all three three factors factors weigh in in favor favor of ofdismissal dismissalwith withprejudice, prejudice,the the court court holds holds that that 18 18
19 19 this case be dismissed with prejudice for the reasons set forth forth above.
20 20 C. The The OAG's OAG'sGRCP GRCP60(b) 60(b)Motion Motionfor forRelief Relieffrom.Order from Orderof ofDismissal Dismissal 21 On September 4, On 4, 2024, 2024,the thesought soughtrelief relieffrom from this thiscourt's court's Order for for Dismissal under under GRCP GRCP 22 60(b) on three grounds that, which the the court court will will address below. address below. 23 23 (1) The The Court's Court's Order Orderfor for Dismissal Dismissal is not procedurally procedurally defective defective and void. 24 24
25 The OAG OAGfirst firstargues argues that this this court's court's Order for for Dismissal was procedurally defective and defective and
26 26 void under void under GRCP Ppl.'s GRCP GRCP 60(b). Pp1.'s Mot. at GRCP 60(b) Mot. at 22 (Sept. (Sept. 4, 4, 2024). Although it cites GRCP 27 27 60(b) as authority for as authority this argument, for this argument, this thisrule ruleisis not not one one within within the the small small list list of GRCP GRCP rules rules that that 28 28
Decision &Order Decision & Order Re. Re. Dismissal with with Prejudice People v. Ybanez People v. Ybanez et al., CF0447-23 Page Page 13 of17 17 applied to criminal may be applied criminal matters. matters. The The scope scope of GRCP's applicability of GRCP's applicability to to criminal criminal matters matters is 1
2 limited: limited:
3 These rules govern the These rules the procedure procedure inin all all suits suits of civil nature, of a civil nature, including including civil actions, domestic actions, domestic actions, actions, special special proceedings andand criminal criminal matters matters of of Which which the 4 court has has jurisdiction. jurisdiction. Their Their application to matters are to criminal matters are limited to Rules Rules 5 5(g), 78, 5(g), 78, 79(0), 79(c), 84, 84, 9] 91 and and93. 93. They Theyshall shallbebeconstrued construedand and administered administered to secure secure a just, just, speedy, speedy, and andinexpensive inexpensive determination determinationof of every every action. 6
GRCP GRCP Rule Rule 1. 1. Scope Scope of ofRules. Rules. (emphasis (emphasis added). 7
8 OAG'ssecond The OAG's secondargument argument as as to the the "procedural "procedural defectiveness and and voidness" voidness" of the the
9 court's Order Order for forDismissal Dismissalisisthat that the the court court dismissed dismissed this case without notice to the prosecution court's 10 10 or without opportunity opportunityfor for the the prosecution prosecutiontotorespond. respond.Ppl's Pal'sMot. Mot.GRCP GRCP60(b) 60(b) for for Relief at at 33 11 11 (Sept. 4, 4, 2024). 2024). Contrary Contrary to this position, the court did put putthe theOAG OAG on notice for for dismissal dismissal in in its 12 12
13 13 Order. This This court court specifically specificallyinstructed instructed that that it it must must secure the services of secure the of aa special special prosecutor prosecutor
14 14 "within thirty "within (30) days thirty (30) days of ofthe the filing filingofofthis thisOrder Orderor orthe thematter matter will willbe be dismissed in its entirety.39" dismissed in 15 15 Order (Apr. 25, 25, 2024). 2024). Therefore, the the court's court's Order Order for for Dismissal Dismissal is not procedurally procedurally defective 16 16 and void. 17 17 (2) The The OAG's OAG'sMotion Motionfor forReconsideration Reconsideration is is not not up for appeal. 18 18
19 19 The OAG OAG also also complains complains that its Motion for Reconsideration29 was for Reconsideration" was not not ruled ruled on on by by this this
20 20 court. court. As mentioned above, the mentioned above, the OAG OAG attempted to file attempted to file aa Motion Motion for for Reconsideration Reconsideration of of this this 21 court's Decision court's Decision & & Order Order disqualifying disqualifyingthe the entire entire OAG OAGfrom fromrepresenting representing the the People People in in this this case. 22
23 23
24 29 The 29 ThePeople's People's Motion Motion to to Reconsider Reconsider requested requested the Court to the Court to either: either: (1) vacate vacate its its Order, Order, asas a contravention of the the Organic Act Act of ofGuam, Guam; or or alternatively (2) reconsider reconsider its Decision and Order. Order.Memo. Memo.Ppl.'s Ppl.'s Mot. at 6 (May 6, 6, 2024). 25 The People cite as authority authorityforfor its itsmotion motionLocal LocalRuleRule of the Superior of the SuperiorCourt Courtof ofGuam GuamCVR CVR7.l(i). 7.l(i). While While thisthis rule rule applies for Motions for for Reconsideration Reconsideration in civil civil cases, cases, the scope scope of thethe Guam Rules Rules ofof Civil Civil Procedure Procedure generally generally 26 does not extend to to criminal criminal matters. matters.CVR CVR 1.1. 1.1. However, However, the rule rule cites to to an exception exception thatthatallows allows forfor the the GRCP GRCP to apply to criminal proceedings if criminal proceedings Whey they are inconsistent inconsistent with rules that apply. Id. (emphasis apply. Id. added).CR (emphasis added). CRl.l(d) l.l(d) is is the the 27 27 applicable rule forfor Motions Motions for forReconsideration Reconsiderationin incriminal criminalmatters, matters; and and this rule rule is consistent consistentwith with its civil source source CVR 7.1(i). CVR 7 .1 (i). Even Evenififthis thismotion motion cited cited CR CRl.1(d) authority, the 1.1 (d)asasauthority, the People People still still failed failed to to request request leave of court to to file file 28 28 motions after retreat to the Ex Parte judge, or after the deadline,retreat or file file aa motion motionto toshorten shorten time, time, so so the the court could properly address the matter address the matterbefore before the the case case temporarily temporarily transferred to a recusal recusaljudge. judge.
Decision & Order Decision & Order Re. Dismissal with with Prejudice People v. People v. Ybanez Ybanez et al., CF0447-23 Page 14 14 of of17 Pursuant to this Pursuant to this Decision Decision & Order, the court issued issued an an Order Order requiring requiring the the OAG OAG to secure secure the 1
2 services a special prosecutor prosecutor within within thirty thirty days daysif if the the OAG OAG wished to move forward forward in in this this case.
3 However, the the OAG OAG argued argued that that its right to appeal this court's appeal this court's April 25, 25, 2024 Order has not 4 expired, because its Motion because its Motion for for Reconsideration Reconsideration tolled tolled the the running running of time time for for an an appeal. appeal. 5 At At the the time it it filed filed the the Motion Motion to to Reconsider, Reconsider, but before the responsive pleadings were 6
filed or heard, heard, this case had been temporarily out of of this this court's jurisdiction jurisdiction as as aa result result of the the 7
8 OAG's OAG'sStatement Statementof ofObj sectionand Objection andMotion Motionto toDisqualify. Disqualify. A briefing briefingschedule schedule was was issued issued for the
9 Opposition and and Reply Reply to the Motion Motion to to Stay Stay Appointment Appointment of ofaa Special Special Prosecutor: Prosecutor: Opposition Opposition 10 10 was due May was 15, 2024, May 15, 2024; and Reply was was due May 2024. 30 However, 22, 2024.30 May 22, However, because because the the OAG OAG filed the 11 Statement of Objection Statement of Objection and Motion Motion to Disqualify, Disqualify, the the case case continued continued to be outside outside of of this this court court 12 12
13 13 until Judge until Judge Cenzon issued her Cenzon issued her Decision Decision & & Order, Order, on on June June 12, 12, 2024, 2024, denying the People's denying the
14 14 Statement of of Objection and Motion Motion to Disqualify Disqualify this this court. 15 15 Based on the the briefing schedule, the Reply would schedule, the would have have been been due before the speedy speedy trial 16 16 clock expired expired on May 18, 18, 2024. 2024. However, the OAG OAG failed failed to totile fileaaseparate separate motion motion to to shorten shorten 17 17 time, so that that the court could address addressitit and andbefore before the the disqualification disqualification of of this court as as a whole 18 18
19 19 became a possibility. possibility. Thus, Thus, the theOAG's OAG's Motion Motionfor forReconsideration Reconsiderationisis not not up up for for appeal. appeal.
20 (3) The The OAG OAGhas hascontinued continued to to act act in in this this case after its disqualification. case after 21 Lastly, Lastly, the the OAG OAG contends contends that that disqualification of the disqualification of the entire entire office office in this this case case is 1s 22 inappropriate,"31and inappropriate; andthat that they they were were unable unable to take further action ruled on action until this court ruled onits itsMotion Motion 23
25 30 30 Notice Notice of of Motion Motion (May (May 1, 2024). 31 An attorney in the Office of the Attorney 31 An attorney in the Office of the Attorney General, including the Attorney General, is an actual conflict of of interest 26 26 when they have have advised advised aa government government officer officer in in their their official official capacity capacity on on natters natters related related to an offense the officer officer is charged with. In Re: Request ofofLoura'es A. Leon Lourdes A. Leon Guerrero, Guerrero, Declaratory DeclaratoryJ.J. (May (May331,l , 2024) (citing Troutman, Troutman, 22 F.2d 27 27 at 1437, 1437; People ex rel. rel. Deukmejian v. Brown, 624 P.2d 1206, 1207 1207 (Cal. 1981) (in bank)). bank)). Whether the conflict of interest should be interest should be imputed imputed toto the the entire entire Office Office of of the Attorney General should Attorney General should be decided decided case case by case case after after 28 28 considering the entire complex ofof facts surrounding the conflict. Id. (citing People v. Pomar, 313 Cal. Cal. Rptr. 3d 457. 467 (Ct. App. 2023), as modified (Sept. 29, 2023)).
Decision Decision & & Order Order Re. Re. Dismissal with with Prejudice People v. Ybanez et al., CF0447-23 People Page 15 of 17 Page 15 17 to Reconsider. Ppl.'s Pp1.'s GRCP GRCP 60(b) Mot. Mot. at at 4-5 4-5 (Sept. (Sept.4,4,2024.) 2024.)They Theyfurther furtherargue argue that that had had the 1
2 court granted the theMotion Motion to Reconsider, the parties could could have determined how to proceed. Id. at
3 5. And And had had this court denied the the motion, motion, the the OAG OAG could could have have sought sought an an interlocutory appeal to E
4 determine thevalidity determine the validity of this court's Order disqualifying disqualifying the the entire entireoffice. office. Id. Id. 5 Although the OAG Although OAG posits posits its its inability inabilityto totake takefurther further action action without without this this court court ruling on 6
7` the Motion Motion to Reconsider, Reconsider; itit continued after filing continued to act after filing its its Motion Motion to to Reconsider Reconsider on on May May 6, 6, 2024. 7
8 But more recently, recently, the the OAG OAG still still acted acted in in this this case case after the expiration of the court's Order to
9 secure a special prosecutor within· Within'thirty-days of ofthat that order, which which warmed of the warned of the case's dismissal 10 10 for for failure to do so. For instance, instance,the theOAG OAGfiled: filed: Declaration of of Service; Service, Entry of Appearance for 11 11 a Special Prosecutor, Notice of Prosecutor; Notice ofCancellation Cancellation of ofaaSpecial SpecialProsecutor, Prosecutor; and and an an Opposition to the 12 12 32 13 13 Defendant's Motion Motion to to Strike. Strike."
14 14 Following Followingthe thesame samereasoning reasoningthe the Guam Guam Supreme Court applied inPeople People v. Corpus, Corpuz, even even 15 if ifthis this court court denied the Motion Motion to to Reconsider Reconsider and and allowed allowed itit to to seek seek an an interlocutory interlocutory appeal, appeal, the 16 16 OAG OAG still stillwould wouldhave have been been required required to show that that the thefederal federalSpeedy SpeedyTrial Trial Act Act factors weighed in 17 their favor, 33 favor; and and that the Defendants' that the Defendants' rights rightsto to speedy speedy trial trial would would not not have have been been violated. violated." 18 18
19 19 the OAG However, the likelywould OAGlikely wouldnot nothave havebeen beenable ableto toshow showthat that the the Defendants' Defendants' speedy speedy trial
20 rights would not have have been beenviolated violated since sinceititfiled filed its Motion Motion to Reconsider with only twelve twelve days days I
21 21 left left to to commence tolling the clock. commence with trial without tolling 22 22 \\ 23
24 24 \ \\
25 25 \\ 26 26 32 Decl. Serv. (May 15, 2024), Entry Appearance (June 19, 2024). Opp'n 32 Resp. Mot. Mot. Strike Strike (May (May 7, 7, 2024); 2024), Ppl.'s Ppl.'s Deel. Serv. (May 15, 2024); Entry Appearance (June 19, 2024). Opp'n & Resp. 27 27 60(b) Mot. (Sept. 4, 2024). GRCP 60(b) 33 The Guam Supreme Court in Corpus held that Corpuz was still in the same position post-conviction as he would 33 The Guam Supreme Court in Corpuz still in the same position post-conviction 28 28 have have been been if if he the Court granted interlocutory appeal appeal as as it relates to the issue issue of of showing showing prejudice under the federal Speedy Trial Act factors. factors. Corpus Corpuzatat~ 11 25, FN 5.
Decision Decision &&Order Order Re. Re. Dismissal with with Prejudice CF0447-23 People v. Ybanez et al., CF0447-23 Page Page 16 of 17 CONCLUSION 1
2 2 For the reasons set forth above, the court hereby DISMISSES WITH PREJUDICE PREJUDICE the the
3 3 above-captioned matter. 4
5 SO ORDERED this GCT 21 2024 OCT 21 2024 ----------- 6
10 10 HONORABLE HONORABLE ALBERTO E. TOLENTINO 11 11 Superior Court of Guam Judge, Superior
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23 23 SERVICE VIA EMAIL SERVICE VIA 24 I acKnowtedge acknowledge that an electronic éledilnnic copy otthe original.was ir.~aiJed :uw01~tI1eg>rigina]snus to: emailed to-
25 f'~ll2~rfe,s,Af1-i1JA.,l'¢4e¢5l;,,,.;,,s 26 fvsq, Phil. IN .v¢J.k z , Date:' ¢ p f w rn m e : - _ 3 & 2 3 , _ , 27 H**'4°r*64 "w;_ oif'p'iycl 5Su§ior§n{lr;6?G\am 28
Decision Decision & & Order Order Re. Re. Dismissal with with Prejudice Prejudice People People v. Ybanez et al., Ybanez et al., CF0447-23 CF0447-23 Page 17 of 17 17
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