1 week Ago By Shane Tenorio Healy | The Guam Daily Post
Corruption charges filed against five Guam Regional Transit Authority officials have been dismissed with prejudice. On Monday afternoon, Superior Court of Guam Judge Alberto Tolentino issued an order dismissing with prejudice all charges filed against GRTA board Chair Alejo Sablan; certifying officer Jennifer Badar Cruz; two board members, Hågat Mayor Kevin Susuico and Inalåhan Mayor Anthony Chargualaf; and former GRTA interim executive manager Richard Ybanez. A dismissal with prejudice means that the government cannot refile the same case again in court.
All five were indicted in July 2023 on charges of theft by deception as a second-degree felony, conspiracy for misapplication of entrusted funds as a third-degree felony and misapplication of entrusted funds as a misdemeanor. Ybanez, Cruz, Sablan and Susuico also were charged with official misconduct as a misdemeanor, while Cruz faced a fifth charge of tampering with public records as a third-degree felony. Each offense also had attached a special allegation of crimes against the community.
The charges stemmed from the hiring of Ybanez without Ybanez having a "requisite college degree." The order issued Monday comes more than a month after Tolentino gave an oral order to dismiss the charges on Aug. 29, but allowed the defendants and their attorneys to submit written arguments on whether the charges should be dismissed with or without prejudice.
Tolentino in his order explained he dismissed the case because the Office of the Attorney General did not hire a special prosecutor, despite being ordered to earlier this year, since the OAG had been disqualified from prosecuting the case. The defendants not being allowed a speedy trial also was considered by Tolentino. The AG's office was disqualified because Tolentino decided there was a conflict of interest in the prosecution because the OAG had given legal advice to GRTA officials regarding Ybanez's hiring before they were indicted.
In determining whether to dismiss the charges with prejudice, Tolentino considered several factors such as the seriousness of the offenses, circumstances that led to the dismissal and how the administration of justice would be affected if the case were prosecuted again. Although each of the defendants, according to Tolentino, faced at maximum six years of imprisonment for the charges, he agreed with the officials' viable defenses, in particular being advised by the OAG regarding Ybanez's hiring, should show the charges "are not as serious as they may appear to be." "In this case, the defendants are first-time offenders who relied on the OAG's advice that their conduct was not illegal.
Thus, the court finds that the seriousness of the offenses charged weigh in favor of dismissal with prejudice," Tolentino wrote. In addition to the OAG not hiring a special prosecutor within the allotted time of 30 days, Tolentino highlighted other actions by the prosecution that showed a pattern of causing delay, such as the AG's office moving to disqualify Tolentino from the case because of Tolentino's "familial relationship" with AG Douglas Moylan. Additionally, the AG's office continued filing motions despite being disqualified from the case.
Tolentino then reasoned the "overly long delay may make it more difficult for the defendants to present the same case (at trial) they would have had that delay not occurred." "This conduct is not just one isolated, unwitting violation. It has become a pattern in this case.
Therefore, the court finds that the facts and circumstances of this case, which led to dismissal, weigh in favor of dismissal with prejudice," Tolentino wrote. Lastly, Tolentino expressed concern that the OAG, if the case was dismissed without prejudice, would attempt to prosecute the Transit officials again. However, it would result in conflicts of interest being brought up again.
Especially considering the OAG continues to maintain its disqualification was "inappropriate" and appointing a special prosecutor "violates the separation of powers within the Organic Act of Guam," Tolentino wrote. "Reprosecution of this case, while the People still maintain its position on disqualification and this court's order to appoint a special prosecutor, impacts the administration of justice because it is likely that the OAG may act as they have in this case if this same issue arises. And this issue of disqualification will likely arise again, given that the same conflict of interest between the OAG and GRTA still exists to this day," Tolentino stated.
"Therefore, the court finds that the impact of the reprosecution on the administration of justice weighs in favor of dismissal with prejudice," Tolentino added..
