Villagomez’s motion to dismiss indictment junked

The federal court has denied Lt. Gov. Timothy P. Villagomez’s latest motion to dismiss the indictment against him and co-defendants James A. Santos and Joaquina V. Santos.

In a written order issued Monday, U.S. District Court Chief Judge Alex R. Munson ruled that Villagomez and his co-defendants have not presented any argument or rationale to fulfill their “difficult burden” to demonstrate any “flagrant misconduct” by the U.S. government that would warrant dismissing the indictment.

Munson also denied Villagomez’s motion to disclose the entire grand jury proceedings, saying the defendants have not produced anything more than “unsubstantiated, speculative assertions of improprieties in the grand jury proceedings” that does not outweigh the policy of grand jury secrecy.

Villagomez filed Tuesday, March 31, the motion to dismiss. The Santos couple joined in the motion. The three argued that the indictment must be dismissed because of “prosecutorial overreaching.”

Prosecutorial overreaching refers to a prosecutor’s misconduct that is designed to cause or provoke a mistrial in order to obtain a second, more favorable opportunity to convict the accused.

Guam attorney Leilanie V. Lujan, one of Villagomez’s counsels, asserted that a conversation between the prosecutor and the grand jury were not recorded.

In opposing the motion, assistant U.S. attorney Eric O’Malley pointed out that the colloquys were recorded, but neither transcribed nor produced.

In his ruling, Munson said courts may dismiss an indictment as an exercise of their inherent supervisory power or to protect a defendant’s due process rights “when the grand jury’s function has been so subverted as to compromise the integrity of the judicial process….”

However, Munson said, courts will not invoke this harsh remedy lightly.

The one challenging an indictment, the judge said, carries a difficult burden. “He must demonstrate that the prosecutor engaged in flagrant misconduct that deceived the grand jury or significantly impaired its ability to exercise independent judgment,” Munson said.

In this case, Munson said, Villagomez and co-defendants initially argued that the independence of the grand jury was compromised because the assistant U.S. attorney engaged in unrecorded discussions with the grand jurors regarding the evidence and witnesses, in violation of the Federal Rule of Criminal Procedure.

The Procedure, he said, requires all grand jury proceedings, except deliberation and voting, to be recorded.

However, at the hearing, Munson noted, the U.S. government clarified that the transcripts given to the defense were only excerpts of the proceedings and that the entire proceedings were recorded.

Munson said the portions of the recordings that were not given to the defense were those portions where the prosecutor discussed with the grand jurors any additional questions they might have for the witness.

In response, defendants argued that even if the entire proceedings were recorded, the U.S. still may have engaged in “prosecutorial overreaching” because it may have failed to ask the questions that the jurors wanted answered, it may have convinced the jurors not to ask questions the jurors wanted answered, or it may have distorted the jurors’ questions.

The defendants asked the court to order the U.S. to turn over the grand jury proceedings in their entirety.

Munson disagreed.

“Mere unsubstantiated, speculative assertions of improprieties in the proceedings do not supply the ‘particular need’ required to outweigh the policy of grand jury secrecy,” the judge said.

Here, Munson said, the defendants have not pointed to any particular need that outweighs the policy of grand jury secrecy.

“The need to ensure that the government did not overreach is not a particular need and has not been substantiated by anything other than speculation that the government may have engaged in improprieties,” he said.

Munson said he has carefully reviewed both the transcripts that were given to the defense as well as the excerpted colloquies between the prosecutor and the grand jurors regarding any additional questions.

Munson determined that the record is complete and does not indicate any “prosecutorial overreaching.”