HAGÅTÑA (The Guam Daily Post) — Department of Public Health and Social Services Director Arthur San Agustin has filed several motions for his charges of corruption to be dismissed in the Superior Court of Guam.
San Agustin was charged with obstructing government functions and official misconduct as misdemeanors along with 15 counts of tampering of public records as third-degree felonies.
The charges stem from allegedly approving sanitary permits for 15 public schools without any legally required inspections.
However since pleading not guilty to the charges and scheduled to begin trial later this month, his attorney Joaquin “Jay” Arriola Jr. filed a total of five motions, with four being to dismiss the charges for various reasons.
Of the four dismissal motions, the lengthiest stems from the Office of the Attorney General’s Government Corruption Division not presenting exculpatory evidence to the grand jury when seeking an indictment.
Arriola gives context in the motion by explaining that, not only is Director San Agustin not directly involved with sanitary permits, the department being underfunded and understaffed has resulted in Public Health not being able to conduct inspections.
Additionally, since 2019 schools have had a five year window to come into compliance and an OAG memo in 2020 states the schools would not be subject to penalties if not in full compliance.
Arriola argues if this information had been presented to the grand jury “there is a very high probability a true bill may not have been returned on some or all charges” against San Agustin and co-defendant Masatomo Nadeau, the chief environmental officer for DPHSS.
“Here, several pieces of exculpatory evidence, known to the government, were omitted from the government’s presentation to the grand jury. The government has an obligation to present such information to the grand jury. The failure to do so requires that the indictment be dismissed,” Arriola wrote.
In two other motions, San Agustin is requesting dismissal on grounds that records from grand jury proceedings had yet to be turned over and a request for the prosecution to further specify what the alleged criminal acts were committed by San Agustin.
If not dismissed, Arriola requests alternatives of having a bill of particulars provided or produce grand jury records.
Misconduct
The fourth motion for dismissal alleges there was prosecutorial misconduct during the grand jury proceedings.
Although grand jury proceedings are not open to the public, Arriola claimed the prosecution committed two acts of misconduct by “vouching” and “testifying” in response to questions directed by grand jurors.
“Here, in response to juror questions, the prosecutor committed misconduct by vouching in response to grand juror questions and by answering the questions herself, inserting argument and opinion into the evidentiary presentation to the grand jury,” Arriola wrote.
According to Post files, Gloria Rudolph was the prosecutor with Government Corruption Division who obtained the indictment.
Disqualification
The fifth motion filed in San Agustin’s case is not one to dismiss, however it is a request to disqualify the AG’s Office from from prosecuting the case.
Arriola requests the disqualification on the basis the DPHSS until being subpoenaed had received advice from the AG’s Office and were subsequently assisted by a prosecutor prior to San Agustin and Nadeau being indicted.
Additionally, the OAG previously released opinions regarding how sanitary permits should be handled.
“That the same OAG that advised DPHSS into this conduct is now prosecuting DPHSS is an egregious breach of attorney client relationship,” Arriola stated. “This is especially concerning since the OAG appears to have abandoned its post once the subpoenas were issued in 2023.”
Arriola then requests, if the OAG asserts a conflict wall is in place, an evidentiary hearing to question Attorney General Douglas Moylan along with other deputies and assistant attorneys general.
The Guam Daily Post inquired with Nadeau’s attorney Patrick Civille, who confirmed they have joined San Agustin’s motions to dismiss.
Arthur San Agustin, director of the Department of Public Health and Social Services, arrives ahead of his hearing on Tuesday, Aug. 29, 2023, at the Guam Judicial Center in Hagåtña.
