Justices deny ex-CUC board chair’s bid to suspend prison sentence pending his appeal

The CNMI Supreme Court has denied former Commonwealth Utilities Corp. board chair Francisco Q. Guerrero’s motion seeking to suspend the execution of his six-year prison sentence pending his appeal of his conviction on 11 charges related to allegations of sexual abuse of a minor.

In denying the motion, the high court justices ruled that Guerrero has not raised any substantial question of law or fact that will likely reverse his conviction or warrant a new trial.

The justices, however, remanded to the Superior Court to determine if an Attorney General Investigation Unit report about Guerrero’s sexual abuse charges exists.

“If that reports exists, and contains Brady material different from discovery already provided to Guerrero from the Commonwealth, we may reconsider Guerrero’s motion based on the supplemental record,” according the high court order signed by Chief Justice Alexandro C. Castro, Associate Justice John A. Manglona, and Justice Pro Tem Timothy H. Bellas.

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.

The justices also pointed out that because the trial court would have found Guerrero guilty regardless of the expert testimony, they conclude that Guerrero has not supplied sufficient evidence to show the expert-witness issue would likely result in reversal or a new trial.

Last July, a Superior Court jury acquitted the 63-year-old Guerrero of two counts of a sexual abuse of a minor in the second degree, but Associate Judge David A. 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. Wiseman sentenced the former CUC board chair to six years in prison, without the possibility of parole.

Guerrero, through counsel Brien Sers Nicholas, filed an emergency motion with the high court seeking a stay of his sentence pending appeal.

Before trial, Guerrero had asked for discovery material from the prosecution, including an Attorney General Investigative Unit report made around the time of Guerrero’s arrest that potentially contained statements from the victim that Guerrero believes will prove his innocence.

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 because “the government had assured the court that all exculpatory material had been produced.”

In the high court’s order on Tuesday, the justices said that in determining whether Guerrero’s claims merit a stay, Rule 9 of the NMI Supreme Court Rules requires the defendant to establish he “will not flee or pose a danger to any other person or to the community,” “the appeal is not for the purpose of delay,” and the appeal “raises a substantial question of law or fact likely to result in reversal or in an order for a new trial.”

The justices said in Brady’s case, the U.S. Supreme Court held “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

The justices said because in camera review is mandatory under these circumstances, the trial court should have reviewed the disputed AGIU report in camera.

At this early juncture in the appeal, however, the justices said they cannot say the oversight violated Brady, and would, therefore, require a new trial, for three reasons.

First, the justices said, they do not know whether the AGIU report contained any Brady material.

Second, the justices said, Guerrero received discovery documents created shortly after his arrest containing the victim’s statements. The justices said the document may have provided all of the victim’s statements, and, as a result, made Guerrero’s request for the AGIU report and other material moot.

Third, the justices said, the oversight may still be remedied through the trial court conducting an in camera review of the AGIU report.

“Under these narrow circumstances, a Brady violation has yet to ripen because the conviction is based solely on bench counts, the defendant raised the alleged violation before this court shortly after sentencing, and the trial court may review the disputed evidence in camera and then reconsider its guilty finding in light of that review,” the justices said.

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.