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

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

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

21

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

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

20 20

21

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

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

21

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

26

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

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

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

,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

28

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

willlikelylikelyarise

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

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

24

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

7

8

9

10 10 HONORABLE HONORABLE ALBERTO E. TOLENTINO 11 11 Superior Court of Guam Judge, Superior

12

13 13

14 14

15 15

16 16

17

18 18

19 19

20 20

21

22

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