Wiseman: Ex-CUC board chair’s due process rights not violated

Superior Court Associate Judge David A. Wiseman has ruled that former Commonwealth Utilities Corp. board chair Francisco Q. Guerrero’s constitutionally guaranteed due process rights were not violated when the prosecution inadvertently failed to disclose an Attorney General Investigation Unit’s report regarding Guerrero’s sexual abuse charges.

In his order on Monday, Wiseman determined that the AGIU reports at issue are not Brady material because they do not contain evidence favorable to the defense and would not have any effect on the verdict of the counts that Wiseman decided.

Brady material refers to a piece of evidence known to the prosecution that is important for establishing the innocence or reducing the punishment of a defendant.

Wiseman also concluded that no prejudice resulted from the CNMI government’s nondisclosure of the first AGIU report where the second report containing substantially the same information was produced ahead of trial.

A Superior Court jury acquitted the 63-year-old Guerrero in July of two counts of a sexual abuse of a minor in the second degree, but Wiseman found him guilty of 11 charges: three counts of assault and battery, five counts of disturbing the peace, two counts of indecent exposure in the second degree, and sexual abuse of a minor in the fourth degree.

Last Nov. 19, Wiseman sentenced Guerrero to six years in prison, without the possibility of parole.

Guerrero, through counsel Brien Sers Nicholas, filed an emergency motion with the CNMI Supreme Court seeking a stay of the sentence pending appeal.

Before trial, Guerrero had requested a discovery material from the prosecution, including an AGIU report made at or around the time of Guerrero’s arrest, which potentially contained statements from the victim that Guerrero believed were material and exculpatory.

When the government did not provide the AGIU report or additional discovery, Guerrero filed a motion to compel, arguing the small amount of materials the government produced in the course of the case could not have met the prosecution’s burden to turn over evidence.

Wiseman denied Guerrero’s motion to compel, and declined to review the disputed evidence in camera (private) because “the government had assured the court that all exculpatory material had been produced.”

In coming to a finding of guilty, Wiseman relied “on the credibility of the victim’s testimony.”

Guerrero then filed a motion for a stay of sentence, but Wiseman denied it.

Last December, the High Court denied Guerrero’s motion to suspend the execution of the court’s sentencing order. The justices, however, remanded in part for further proceedings in Superior Court to determine if an AGIU report about the defendant’s sexual abuse charges exists.

In his order on remand on Monday, Wiseman said the evidence contained within the reports could not be held to undermine the court’s confidence in its guilty finding based on the bench counts, and thus is not Brady material.

On the prejudice issue, Wiseman said the government produced the second report before trial, which contained substantially the same information as the first report, albeit in slightly less detail.

“No prejudice could have resulted where defendant acquired the same information before trial via discovery which produced the second report,” the judge pointed out.

The CNMI Supreme Court recently denied Guerrero’s motion to reconsider its ruling that denied his request to suspend execution of his six-year prison sentence pending resolution of his appeal over his conviction.

Guerrero was ordered to start serving his sentence on Dec. 1, 2013, at the Department of Corrections. According to the court’s commitment order, Guerrero began sexually molesting the now 17-year-old girl in 2010 when she was in the 9th grade and continued doing so up to May 2012 on five different occasions.