USA v. ESPEDION, et al

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THE DISTRICT COURT OF GUAM
UNITED STATES OF AMERICA,
Plaintiff,
vs.
RICHARD NIC PAMA ESPEDION
aka “RICHARD PAMA”,
Defendant.
CRIMINAL CASE NO. 24-00012
DECISION AND ORDER
ON DEFENDANT’S MOTION TO
DISMISS THE INDICTMENT WITH
PREJUDICE
I. 	INTRODUCTION
On December 27, 2024, the court granted the United States’ Motion to Dismiss
Indictment Without Prejudice as to Defendant Richard Nic Pama Espedion, aka “Richard Pama,”
under Federal Rule of Criminal Procedure 48(a). ECF No. 106. The prosecution stated that
dismissal was “appropriate and ‘not clearly contrary to manifest public interest.’” ECF No. 105.1
Now before the court is Defendant’s Motion to Dismiss the Indictment with Prejudice (the
“Motion to Dismiss with Prejudice”), which challenges the prosecution’s reasons for dismissal
and seeks to dismiss the Indictment with prejudice. ECF No. 108. For the foregoing reasons, the
court hereby DENIES Defendant’s Motion to Dismiss with Prejudice.
1 The court refers to CM/ECF pagination throughout this Decision and Order.
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II. 	PROCEDURAL HISTORY
On April 10, 2024, Defendant was indicted on two counts: (1) Possession of Contraband
in Prison, in violation of 18 U.S.C. §§ 1791(a)(2), (b), and 18 U.S.C. § 2; and (2) Possession
with Intent to Distribute Fifty Grams or More of Methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(viii) and 18 U.S.C. § 2. Indictment, ECF No. 1, at 1-2. He pleaded not
guilty to both charges. See ECF No. 8.
On April 11, 2024, the Magistrate Judge issued a Brady Disclosure Order requiring the
prosecution to produce “information or evidence” that “may help bolster the defendant’s case or
impeach a prosecutor’s witness or other government evidence.” ECF No. 11, at 2. The court
further allowed “the government [to] apply … for a modification of the requirements of this
Disclosure Order” if it concluded that disclosure “would compromise witness safety, victim
rights, national security, a sensitive law-enforcement technique, or any other substantial
government interest.” Id.
On May 1, 2024, Defendant’s cellmate and co-defendant, John Boy Trae Duenas (“Mr.
Duenas”), was interviewed by the government after he had pled guilty. See Sealed Gov’t. Ex. 36.
The government interviewed Mr. Duenas two additional times: May 9, 2024, and May 21, 2024.
See id. On November 4, 2024, defense counsel “requested for copies of any interviews of the co-
defendant.” ECF No. 64, at 2. On November 5, 2024, the prosecution filed an Ex Parte Motion
for In Camera Inspection to seal the government’s three interviews of Mr. Duenas. ECF No. 64;
see also Sealed Gov’t. Ex. 36. The interviews covered “ongoing drug distribution within the
Guam Department of Corrections” and the prosecution sought to seal them pursuant to the
court’s Brady Disclosure Order. ECF No. 112, at 2 (quoting ECF No. 11). The court orally
granted the sealing of the interviews and prosecution’s in camera inspection motion, instructing
the government “to obtain an expedited transcript of the audio recordings.” ECF No. 122, at 3;
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ECF No. 62-1. Approximately two weeks prior to the court’s in camera review during trial, on or
around November 6, 2024, the prosecution provided defense counsel with brief excerpts from the
interviews. See e.g., ECF No. 100, at 141, 177-79. An official, certified, and complete transcript
for the three interviews was filed on November 12, 2024. See Sealed Gov’t. Ex. 36; see also ECF
No. 122, at 3.
Jury selection began on November 14, 2024, and it was followed by a four-day jury trial
from November 18 to November 21. ECF Nos. 74, 77, 78, 79, and 84. On the second day of trial,
November 19, the prosecution called Mr. Duenas, the Defendant’s cellmate, to testify. See ECF
No. 100, at 4-32. On direct, Mr. Duenas testified that Defendant owned the drugs that were on
Mr. Duenas’ bunk located in their cell. Id. at 10, 13. He further testified that Defendant would
share the drugs with him and that he would, at times, guard the cell for Defendant. Id. at 11, 16.
The prosecution concluded its direct examination of Mr. Duenas, and defense counsel
commenced cross-examination the same day. See id. at 33-123. After cross-examination, the
court released the jury for the day and discussed how it would proceed with a Jencks Act review
of the transcript memorializing Mr. Duenas’ three interviews with the government. ECF No. 102,
at 137, 123-33. Incidentally, the same transcript, as stated above, is the exact subject matter of
the Brady Disclosure Order. ECF No. 112, at 2 (quoting ECF No. 11).
The parties reconvened the following day, November 20, 2024. Id. at 134. The court
discussed its Jencks Act and Brady in camera review of the 106 pages of transcript from Mr.
Duenas’ interviews that it had performed, ex parte, with the prosecution. See id. at 143-75. The
court ordered the prosecution to disclose parts of the transcript that mentioned an individual
named “Ed” as a possible co-owner of the drugs in question. See id. at 153-65, 171-72; see also
Gov’t. Ex. 38, ECF No. 79-2, at 5-6. The court also ordered the prosecution to release parts of
the interview transcript where Mr. Duenas described the cell as the “drug cell” which he guarded
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and where he and the Defendant smoked methamphetamine.2 See id. at 144-52; see also Gov’t.
Ex. 38, ECF No. 79-2, at 1-4.
Defense counsel received the court ordered disclosures, reviewed them, and then
reinitiated cross-examination of Mr. Duenas.3 See ECF No. 100, at 178-208. Defense counsel
impeached Mr. Duenas’ direct examination testimony by focusing on Ed’s co-ownership of the
drugs. Id. at 195-96. Defense counsel completed cross-examination, and the prosecution
conducted a redirect examination. See id. at 208-24. Defense counsel then attempted to raise the
statements again regarding Ed on recross, but the prosecution objected as “asked and answered”,
and the court sustained the objection. Id. at 234. The prosecution rested its case. See ECF No. 79.
Defendant did not call any witnesses on his behalf. See id. The parties subsequently presented
their closing arguments. See ECF Nos. 79, 84.
The jury deliberated but could not reach a unanimous verdict. See ECF No. 90. The court
declared a mistrial on November 22, 2024. See ECF Nos. 77-79, 84, 90. Thereafter, the court set
a status hearing for December 16, 2024, to discuss how the parties intended to proceed. See ECF
No. 90. Before the status hearing, Defendant filed a Motion to Compel Brady/Giglio Material on
November 25, 2024, and the United States filed Consolidated Motions in Limine on December 3,
2024. ECF Nos. 91, 94. Then, on December 27, 2024, the United States filed a Motion to
Dismiss Indictment Without Prejudice as to Defendant Richard Nic Pama Espedion aka “Richard
Pama.” ECF No. 105. The court granted the motion under Federal Rule of Criminal Procedure
48(a) that same day. ECF No. 106. Based on the court’s dismissal of the indictment without
prejudice, the Defendant’s Brady/Giglio motions and the United States’ consolidated motions in
2 The prosecution had previously disclosed four totally different pages of the interviews with Mr. Duenas. Gov’t. Ex.
37, ECF No. 79-1, at 2-4. The disclosure included statements from Mr. Duenas alleging Defendant Espedion owned
the drugs and was a member of a Filipino cartel. Id. at 4.
3 Defense counsel specifically confirmed to the court that he had received the disclosures, and that he had sufficient
time to review them. ECF No. 100, at 180-81.
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limine became moot.
Defendant now moves to have the indictment dismissed with prejudice for two reasons.
ECF No. 108, at 1-2. First, “the government failed to disclose exculpatory evidence prior to and
during trial. Id. The exculpatory evidence, in particular, includes statements made by Mr. Duenas
in his interviews discussing “widespread and longstanding dealing of drugs at [the Department of
Corrections] by both staff and inmates,” including a named government witness, and inmate Ed.
Id. at 5; see also Sealed ECF No. 109, at 1-2 (the named government witness is identified in this
sealed supplemental filing). Second, “[t]he government moved under Fed. R. Crim P. 48(a) to
dismiss the indictment without prejudice” for an improper purpose, i.e., “to avoid its obligations
under Brady/Giglio and to gain a strategic advantage.” Id. at 1-2. He requests a hearing to
examine “the extent of the government’s Brady violations and the government’s intent in
dismissing the indictment.” Id. at 9.
III. 	ANALYSIS
The question presented to this court is whether the prosecutor’s failure to disclose certain
alleged exculpatory statements from the government’s interviews of Mr. Duenas violates Brady
and justifies dismissal with prejudice. See ECF No. 108, at 4-6. Two weeks prior to the court’s in
camera review, the prosecution released excerpts to Defendant from its interviews with the
witness, Mr. Duenas. See Gov’t. Ex. 37, ECF No. 79-1, at 2-4. After its in camera review during
trial, the court ordered the disclosure of additional excerpts from the government’s interviews of
Mr. Duenas. See Gov’t. Ex. 38, ECF No. 79-2. These additional excerpts, found in Exhibit 38,
included statements indicating that Ed was a possible co-owner of the drugs, specifically the
methamphetamine found in the Defendant’s cell on Mr. Duenas’ bunk bed. Defendant received
these additional excerpts during the middle of his cross-examination of Mr. Duenas and used
them to impeach Duenas’ testimony. The excerpts released to the Defendant, both by the
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prosecution and the court, contained Jencks Act and Brady material. See Gov’t. Ex. 37, 79-1;
Gov’t. Ex. 38, ECF No. 79-2.
Defendant now argues that the government allegedly withheld Brady statements of
“widespread and longstanding dealing of drugs at” the Department of Corrections and the
involvement of both the named government’s witness and Ed. See ECF No. 108, at 5; see also
ECF No. 109. He argues that the statements are contained in the transcript of the government’s
interviews of Mr. Duenas. See id. The government counters that these statements are broader
than the charges against the Defendant and their disclosure would jeopardize an ongoing
criminal investigation. See ECF No. 102, at 125.
A. IS THERE A BRADY VIOLATION RELATING TO WIDESPREAD AND
LONGSTANDING DEALING OF DRUGS AND THE INVOLVEMENT OF THE
NAMED GOVERNMENT WITNESS AND ED?
Brady v. Maryland confirmed the prosecutorial obligation to disclose evidence that “is
material either to guilt or to punishment, irrespective of good faith or bad faith of the
prosecution.” 373 U.S. 83, 87 (1963). A Brady/Giglio violation consists of three elements: (1)
“[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching;” (2) “that evidence must have been suppressed by the State, either
willfully or inadvertently;” and (3) “prejudice must have ensued.” U.S. v. Olsen, 704 F.3d 1172,
1181 (9th Cir. 2013) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)); see also U.S. v.
Blanco, 392 F.3d 382, 387 (9th Cir. 2004). Evidence is material, or prejudice ensues, when
“there is a reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 470 (2009).
As to the first element, the court must address whether the alleged statements of
widespread and longstanding drug dealing at the Department of Corrections by staff and inmates,
including the named government witness and inmate Ed, were exculpatory, and thus favorable to
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the Defendant. While defense counsel was “virtually certain that he overheard” that the named
government witness was “involved in the dealing of drugs or intentionally permitted drug
dealing to occur at” the Department of Corrections, a thorough review of the transcript from the
interviews of Mr. Duenas does not support such sweeping conclusions. ECF No. 109; Sealed
Gov’t. Ex. 36. As to statements related to Ed and the drugs found in his cell, the court ordered
release of these statements as they were indeed exculpatory and impeaching. See Gov’t. Ex. 38,
ECF No. 79-2. The Defendant was able to use these statements to effectively cross-examine Mr.
Duenas with the “Ed” statements. See ECF No. 100, at 195-96. Based on the court’s thorough
review, it only released excerpts found in Exhibit 38. See Gov’t. Ex. 38, ECF No. 79-2. The
court opted not to release any other information that would jeopardize an ongoing criminal
investigation. See Sealed Gov’t Ex. 36. In fact, much of the court’s review revealed potentially
strong inculpatory evidence against the Defendant which had not yet been fully developed. See
Sealed Gov’t Ex. 36. Release of such information could have harmed the Defendant.
Defendant further argues that the court ordered disclosures in this case were made
pursuant to the Jencks Act for impeachment purposes only and that the court’s “attention was not
focused on Brady/Giglio considerations.” ECF No. 108, at 3 n. 1. He contends that “large
amounts of Brady/Giglio material [] has not been disclosed” from the 106 pages of transcript. Id.
at 3. This is false. In fact, the Assistant United States Attorney called the court’s attention to
Brady’s due process protections not once, but twice during its in camera review of the transcript.
ECF No. 102, at 162-64. The court reviewed the entirety of the transcript, as it stated on the
record, and ordered the disclosure of Jencks and Brady material. Id. at 176; Gov’t. Exs. 37, 38,
ECF Nos. 79-1, 79-2. Furthermore, as stated earlier, the Jencks and Brady/Giglio material relied
on the same transcript the court reviewed in camera.
The second element is not at issue here. There is no question that the requested alleged
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Brady/Giglio material requested by the defense were not disclosed to the Defendant by the
prosecution. Sealed Gov’t. Ex. 36. Rather than disclose the alleged Brady/Giglio material, the
prosecution sought guidance from the court by requesting an in camera review to limit
disclosure. See ECF No. 64.
When there is a compelling government interest, the prosecution can submit the evidence
to the court for in camera review. See Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).; see also
U.S. v. Dupuy, 760 F.2d 1492, 1501 (9th Cir. 1985) (“Consultation with the judge is particularly
appropriate when the Government has legitimate reasons for protecting the confidentiality of the
material requested, for the trial judge can then weigh the Government’s need for confidentiality
against the defendant’s need to use the material in order to obtain a fair trial.”); United States v.
Harmon, 833 F.3d 1199, 1205 (9th Cir. 2016). After conducting an in camera review, the court
“would be obligated to release information material to the fairness of the trial.” Ritchie, 480 U.S.
at 60.
The Ninth Circuit Court of Appeals has approved of in camera review of sensitive
material when the government has an important state interest. Dupuy, 760 F.2d at 1501. When
conducting in camera review, the court has a duty to review the transcript for Brady or Giglio
material before sealing them, and it did so here. Id. at 1502; ECF No. 102, at 176 (“[T]he [c]ourt
reviewed the entire transcript from the witness Duenas’s statement in camera last night for about
three hours[.]”) (emphasis added). During its in camera review, the court weighed the
prosecution’s need for confidentiality against the Defendant’s need for the material in order to
obtain a fair trial. See Gov’t. Ex. 38, ECF No. 79-2. The court decided that the information
contained within Government’s Exhibit 38 should be disclosed to the Defendant for a fair trial.
See Gov’t. Ex. 38, ECF No. 79-2.
As to the third element, Defendant was not prejudiced by the nondisclosure of other
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information found in the transcript. See Sealed Gov’t. Ex. 36. In particular, the alleged
statements regarding widespread drug dealing at the Department of Corrections were still being
investigated and many of the statements potentially inculpated the Defendant. See Sealed Gov’t.
Ex. 36. Had the ongoing, investigatory statements been released, they would have prejudiced the
Defendant’s case. The other evidence pertaining to the named government witness was not found
in the three interviews of co-defendant, Mr. Duenas. Thus, there has been no prejudice to the
Defendant.
In sum, the elements for the Brady/Giglio test have not been met. Dismissal with
prejudice is therefore not justified.
B. DID THE PROSEUCTION MEET ITS OBLLIGATION TO TIMELY DISCLOSE
THE BRADY MATERIAL?
The prosecution must disclose the Brady material “at a time when the disclosure would
be of value to the accused.” U.S. v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985) (finding that
a delay in providing the information was not a due process violation when the defense was able
to use it for cross-examination of the witness). “Brady does not necessarily require that the
prosecution turn over exculpatory material before trial.” U.S. v. Gordon, 844 F.2d 1397, 1403
(9th Cir. 1988) (emphasis in original).
Defendant argues that the prosecution “ignore[d] its obligations before trial” by not
turning over Brady material, like the “Ed” evidence. See ECF No. 108, at 6; see also ECF No.
113, at 2. As discussed above, all potential exculpatory and impeachment evidence was provided
to defense counsel. See Gov’t. Ex. 38, ECF No. 79-2. Moreover, the court provided defense
counsel with time to examine the disclosed excerpts regarding the possible co-owner of the
drugs, Ed, and asked defense counsel if he was ready to proceed. ECF No. 102, at 179-81. He
confirmed that he was ready to proceed with trial and did so. Id. Defense counsel then effectively
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used the excerpts that were disclosed to him to impeach Mr. Duenas’ testimony. See ECF No.
100, at 195-96. The timing of the prosecution and the court’s disclosures were sufficient because
Defendant was in possession of the relevant exculpatory and impeachment material, reviewed it,
and made effective use of it at trial.
C. REQUEST FOR HEARING ON THE MOTION TO DISMISS
Defendant asserts that a hearing must be held to (1) determine “the extent of the
government’s violation of the [Brady Disclosure] Order[,]” and (2) determine “the motives for
the government request to dismiss the indictment pursuant to Rule 48(a).” ECF No. 108, at 6-7.
He cites United States v. Olmos-Gonzales to argue that the government must provide more than a
conclusory statement that it is moving to dismiss in the best interest of the public. 993 F. Supp.
2d 1234, 1235-36 (S.D. Cal. 2014); ECF No. 108, at 7. According to Defendant, the prosecution
was acting in bad faith “to cover up its Brady violations by dismissing this matter without
prejudice.” Additionally, Defendant contends that the prosecution cannot be permitted to dismiss
without prejudice as a delay tactic to gain a tactical advantage. ECF No. 108, at 8.
The court has already conducted an in camera review to determine whether there were
Jencks Act or Brady/Giglio violations. See ECF No. 102, at 143-75. During the review, the court
questioned the prosecution about Jencks Act and Brady material it had found in the transcript of
Mr. Duenas’ interviews and ordered the prosecution to turn over evidence that it had found to be
potentially exculpatory or impeachment evidence. See ECF No. 102, at 143-75; See Gov’t. Ex.
38. As a result, further hearing to determine the extent of any alleged Brady violations is
unnecessary. The court finds that the prosecution was not acting in bad faith, and that it took
proper steps to ensure that the Defendant received exculpatory or impeachment evidence while
protecting its ongoing criminal investigations.
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D. DISMISSAL WITH PREJUDICE
According to Defendant, the court’s pretrial Brady Disclosure Order and Federal Rule of
Criminal Procedure 48(a) “requires the Court to dismiss with prejudice the government’s
voluntary dismissal where the dismissal is requested in bad faith, improper purpose, or to gain a
tactical advantage.” ECF No. 108, at 5. He asserts the “failure to disclose was intentional and
motivated by a desire to keep secret the government’s investigation into the widespread and
longstanding dealing of drugs at DOC by both staff and inmates.” Id.
Dismissal with prejudice is inappropriate in this case. “A district court may dismiss an
indictment for government misconduct for one of two reasons, each with its own standard: either
because it finds a serious due-process violation or because it concludes that dismissal is
warranted under its supervisory powers.” United States v. Bundy, 968 F.3d 1019, 1030 (9th Cir.
2020) (citing United States v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993)). First, a district court
may dismiss an indictment for a due process violation if the prosecutor’s conduct is “so grossly
shocking and outrageous as to violate the universal sense of justice.” See id. (citing United States
v. Green, 962 F.2d 938, 942 (9th Cir. 1992)) (discussing how this typically involves “physical or
mental brutality” from law enforcement or “where the crime is ‘manufactured by the
government’”). The prosecution’s conduct here does not reach the level of grossly shocking or
outrageous so as to warrant a dismissal with prejudice. See United States v. Green, 962 F.2d 938,
941-42 (9th Cir. 1991) (holding that a government official covertly taping a law firm’s phone
call did not merit the dismissal of the case for a Fifth Amendment due process violation even
though it was “less than exemplary official performance” because it did not justify “the extreme
measure of dismissing the indictment.”) In the case at bar, a criminal investigation was ongoing,
and the information contained in the transcript was not fully developed. See Sealed Gov’t. Ex.
36; ECF No. 102, at 143-75.
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Secondly, “[a] district court may dismiss an indictment under its inherent supervisory
powers ‘(1) to implement a remedy for the violation of a recognized statutory or constitutional
right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate
considerations validly before a jury; and (3) to deter future illegal conduct.’” Bundy, 968 F.3d at
1030 (quoting United States v. Struckman, 611 F.3d 560, 574 (9th Cir. 2010)). The court can
dismiss a case under its supervisory powers even if the violation would not merit a dismissal as a
due process violation. See id. However, a district court must appropriately tailor its remedies and,
when considering whether to dismiss with prejudice, it must “have concluded that there is ‘no
lesser remedial action’ available to it.” Id. (quoting United States v. Chapman, 524 F.3d 1073,
1087 (9th Cir. 2008)); see also United States v. Isgro, 974 F.2d 1091, 1098 (9th Cir. 1992)
(“[T]he Supreme Court as well as the Ninth Circuit has repeatedly pointed out that dismissal of
an indictment, particularly with prejudice, is a drastic measure.”).
The Ninth Circuit has held that for a district court to “dismiss an indictment with
prejudice for prosecutorial misconduct” under its supervisory powers, it must find that there is
both “(1) flagrant behavior and (2) substantial injustice.” Id. (quoting Kearns, 5 F.3d at 1253). In
United States v. Bundy, the government failed to disclose evidence that would have undermined
the government’s indictment, opening statement, and “the government’s central theory of the
case.” Id. at 1044-45. The government made misrepresentations to the court which the court
relied upon in issuing an order that limited testimony. Id. at 1035. The government then “blamed
the defense for not requesting more specific information.” Id. at 1044.
Here, contrary to Defendant’s claims, the prosecution was not motivated by a desire to
keep secret the government’s investigation. ECF No. 108, at 5. In fact, the prosecution followed
the proper protocol and filed an Ex Parte Motion for In Camera Inspection prior to trial. ECF
No. 64. The prosecution disclosed pages of the transcript containing exculpatory and impeaching
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statements made by Defendant’s co-defendant, Mr. Duenas, before trial. Gov’t. Ex. 37, ECF No.
79-1, at 2-4. The prosecution requested an in camera review of the transcript during trial with the
court. See ECF No. 102, at 143-75. The prosecution was forthcoming with the court and sought
to follow the court’s Brady Disclosure Order. See ECF No. 64, at 2. Dismissal with prejudice “is
a drastic measure” and it would be inappropriate here where the prosecution had taken proactive
measures to ensure that they followed the proper procedures. Isgro, 974 F.2d at 1098.
IV. 	CONCLUSION
For the above stated reasons, the court hereby denies Defendant’s Motion to Dismiss with
Prejudice.
SO ORDERED.
/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated:Feb 19, 2026
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