People v. Ahn

Opinion

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2 20l9HA§21 PH up 22 3 CLE 4 By! al nr'

7 IN THE SUPERIOR COURT OF GUAM 8

9 PEOPLE OF GUAM, CRIMINAL CASE NO.: CF0375-18

10 vs. 11 DECISION AND ORDER 12 MAX MYONGKI AHN, (Dismissal) aka Muong Ki An, 13 aka Muong Ahn, 14 DOB: 05/21/1958

15 DEFENDANT.

17 INTRODUCTION 18 This matter came before the Honorable Anita A. Sukola on the People of Guam's 19 ("People") Position Re: Dismissal without Prejudice filed November 6, 2018. Defendant Max 20 Myongki Ahn ("Defendant") filed a response brief on November 30, 2018. Attorney Clyde 21 Lemons Jr. represents the Defendant. Attorney Matthew A. Phelps represents the People of Guam. 22 A Motion Hearing was held on January 2, 2019, and the Court subsequently took this matter under 23 advisement. Upon review of the arad and written arguments, and legal authorities, presented by the 24 Parties, the Court hereby grants the People's request and hereby dismisses the case without 25 prejudice.

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r- CF0375-18 People v. Max Myongki Ahn DECISION AND ORDER (Dismissal) ORIGINAL 4é».- Page 1 of 9 BACKGROUND

On or about June 5, 2018, a drug detection canine alerted to a package while inspecting

3 United States Postal Service parcels. Collins Deal. Supp. Magistrate's Con pl. at 1 (Jun. 15, 2018).

4 The package was sent to Guam from the mainland and was allegedly addressed to an individual

5 named "Jack Cruz." Federal law enforcement agents then secured a federal search warrant to

6 open the package. The agents discovered chemical drug test lats and eleven (11) vials in

7 commercial packaging indicating they contained tetrahydrocannabinol ("THC"). Ii

Further investigation indicated that the package was addressed to a commercial

9 establishment in Upper Tum of, Guam, known as "Max's Smoke Shop / Gallop U.S.A" (the

10 "smoke shop"). Q The agents further discovered that the proprietor of the smoke shop, the

11 Defendant, was previously convicted in federal court for crimes related to the distribution of the

12 drug "spice" Q The illegal contents of the package were removed and replaced with items

13 designed to simulate the suspected illegal contents. Q The agents also marked the simulated items

14 with liquid that is invisible to the naked eye but detectable with special lighting. Q An electronic

15 device was also placed in the package. Q

On June 13, 2018, law enforcement entities conducted a controlled delivery of the package.

17 Q The Defendant was the only individual present at the smoke shop when the package was

18 delivered. Q The Defendant also allegedly stated that the individual named on the package was an

19 employee of the shop. Q Officers waited until the electronic device in the package indicated that

20 the package had been opened before entering the smoke shop. Q On entering, the officers used a

21 device emitting the required special lighting to determine that the Defendant had the liquid from

22 the package on his hands, indicating that he had handled the simulated items. Q

A local search warrant was also attained and executed at the smoke shop premises. Q

24 Officers discovered suspected "spice," digital scales, plastic baggies and additional U.S.P.S.

25 packaging materials purportedly sent from the same address as the intercepted package, and

O 26 addressed to the same Jack Cruz. Q The Defendant was then arrested. Q

CF0375-18 People v. Max Myongki Ahn Page 2 of 9 DECISION AND ORDER (Dismissal) H

1 On June 25, 2018, a Superior Court of Guam Grand Jury returned an Indictment charging

2 the Defendant with T w o C ou n t s of C O N S P I R A C Y T O I M P O R T A S C H E D U L E I

3 CONTROLLED SUBSTANCE (As a First Degree Felony), Two Counts of IMPORTATION 4 OF A SCHEDULE I CONTROLLED SUBSTANCE (As a First Degree Felony), 5 CO N SP I R ACY T O P O SSESS W I T H I N T EN T T O DELI V ER A SCH EDULE I 6 CONTROLLED SUBSTANCE (As a First Degree Felony), and POSSESSION OF A 7 SCHEDULE I CONTROLLED SUBSTANCE WITH INTENT TO DELIVER (As a First 8 Degree Felony).

9 The Defendant appeared for an arraignment and asserted his right to speedy trial on July

10 25, 2018, and filed an assertion form on July 26, 2018. The Defendant was confined on federal

11 charges on the date of his arraignment. The Defendant then appeared for a criminal triad setting on

12 August 1, 2018. This Court set Jury Selection and Trial for September 10, 2018.

13 After the Defendant asserted his right to speedy trial, the People requested that items seized

14 from the smoke shop be subjected to laboratory testing. People's Mot. Find Good Cause

15 Continuation of Triad Date at 2 (Aug. 17, 2018). Guam Crime Lab personnel indicated that the

16 evidence was released to Guam Customs and Quarantine personnel to mail to the Drug

17 Enforcement Administration to perform the laboratory testing.

18 Subsequently, on August 17, 2018, the People tiled the Motion to Find Good Cause for

19 . Continuation of the Trial Date. The Defendant filed an Opposition to the Motion on August 24, . 20 i 2018. On September 4, 2018, the Court issued a Decision and Order granting the People's Motion I 21 I to continue the triad pending laboratory testing.

22 On October 29, 2018, the Supreme Court of Guam issued an Order which directed this

23 Court to vacate its previous decision to continue the trial. Supreme Court Order (Oct. 29, 2018)

24 The Supreme Court Order further directed this Court to dismiss all charges pending against

25 Defendant. ld The Supreme Court left this Court to determine whether to dismiss the indictment

O 26 with or without prejudice.

252 27 Q 28 Z ]> CF0375-18 People v. Max Myongki Ahn Page 3 of 9 |-' DECISION AND ORDER (Dismissal) 1 DISCUSSION 2 In People v. Aron in, 2014 Guam 3 'll 21, the Supreme Court of Guam was presented with

3 the question of whether a case should be dismissed with or without prejudice when a defendant's

4 right to a prompt arraignment was violated. The Supreme Court held that such cases should not be

5 automatically dismissed with prejudice, but that triad courts should follow the multifactor test

6 contained in Section 3162(a)(2) of the Federal Speedy Trial Act when determining if such

7 dismissals should be with or without prejudice. Q The Aron in decision dealt with the dismissal of

8 an indictment due to a violation of the defendant's rights under 8 GCA § 60.10 ("the Prompt

9 Arraignment Statute"), which requires that a defendant shall be arraigned promptly after the

10 indictment or information is tiled. The Defendant in the present case argues that the Aron in

11 decision applies to dismissal in cases dealing with the Prompt Arraignment Statute, but does not

12 apply to the present case, in which the indictment was dismissed due to a violation of 8 GCA §

13 80.60(a) ("the Guam Speedy Trial Act"), which requires a court to dismiss a criminal action if the

14 triad is not commenced within sixty (60) days from the date of arraignment. Def' s Brief at 4 (Nov.

15 30, 2018).

16 The Defendant points out that the notes to the Prompt Arraignment Statute indicate that it

17 was derived in part from Federal Rule of Criminal Procedure 10 and it is therefore appropriate to

18 use federal law to interpret the Prompt Arraignment Statute. Q Unlike the Prompt Arraignment

19 Statute, Guam's Speedy Triad Act was not derived from a congruent federal law.1 Q The

20 Defendant therefore argues that the multifactor test of the Federal Speedy Triad Act is inapplicable

21 to the present case. Q The Court disagrees.

22 The Supreme Court's ruling in Aron in suggests that a balancing test is required to

23 determine whether dismissal should be with or without prejudice in cases involving the Guam

24 Speedy Triad Act as well as the Prompt Arraignment Statute, notwithstanding the fact that the

25 Guanl Speedy Trial Act is not based upon a similar federal law. "This court has never ruled that a 3 26 speedy triad violation requires an automatic dismissal with prejudice, and we refuse to adopt such a J 27 < > I The Supreme Court of Guam has noted that while Guam's Speedy Trial Act was not derived from the federal 7 28 Speedy Trial Act, the two statutes are similar. Aron in'II 20.

r" CF0375-18 People v. Max Myongki Ahn Page 4 of 9 DECISION AND ORDER (Dismissal) 1 remedy for the failure to promptly arraign a defendant." Arornin qs 14. In Aron in, the Supreme

2 Court led that because section 60.10 allows the triad court to withhold dismissal altogether upon

3 a showing of good cause, it is logical that it would also allow the intermediate remedy of dismissal

4 without prejudice. Aron in '][ 16. This logic applies equally to section 80.60, which also allows a

5 Md court to withhold dismissal altogether upon a showing of good cause. 8 GCA § 80.60(b)(3).2

6 Having determined that the Aron in decision applies to dismissals pursuant to Guam's

7 Speedy Trial Act, the Court now must apply the Aron in test to the facts of this case. The Aron in

8 decision mandated that trial courts in Guam use the Federal Speedy Triad Act factor test for

9 determining whether dismissal under the Guam Speedy Trial Act should be with or without

10 prejudice. The factors to consider are (1) the seriousness of the offense; (2) the facts and

11 circumstances of the case which led to the dismissal, including but not limited to: the facts and

12 circumstances surrounding the length of delay, government conduct, and actual prejudice suffered

13 by the defendant, and (3) the impact of a reprosecution on the administration of justice." The

14 Court discusses each factor below.

15 1. Seriousness of the offense.

16 The Supreme Court has made clear, "the more serious the offense, the more weight should

17 be given to dismissal without prejudice." Aron in at 'it 23. In Aron in, the Court found this factor

18 weighed in favor of dismissal with prejudice because the defendant was not charged with any

19 felony crimes. at <]1

20 In the instant case, the Defendant is charged with six felonies of the first degree. The

21 charges include allegations that the Defendant is involved in a scheme to import large quantities of

22 illegal drugs to Guam and distribute these drugs to the community. The Court notes felonies of the

23 first degree carry a minimum incarceration term of five (5) years and a maximum term of twenty

24 (20) years pursuant to 9 GCA § 80.30. The Court finds that these charges are very serious and that

25 this factor weighs heavily in favor of dismissal without prejudice.

26 O :u 27 2 While the Supreme Court has found that no good cause existed in the present case, this does not negate the principle in Aron in that there is an intermediate remedy between withholding of dismissal and automatic dismissal

'I 28 with prejudice.

CF0375-18 People v. Max Myongki Ahn Page S of 9 J> DECISION AND ORDER (Dismissal) f"" 1 2. Facts and circumstances of case which led to dismissal.

2 Aron in states that this factor considers the following sub-factors, among other

3 considerations: the facts and circumstances surrounding the length of delay, government conduct,

4 and actual prejudice suffered by the defendant. at '][ 21. The Court considers each sub-factor

5 below .

6 a. Length ofdelav.

7 As the U.S. Supreme Court has recognized, the length of a delay standing alone is a

8 significant "measure of the seriousness of the speedy triad violation." United States v. Tavlor, 487

9 U.S. 326 at 340. Where there is no reasonable justification for delay, the lengthier the delay, the

10 more likely dismissal with prejudice is warranted. U.S. v. Stavton, 791 F.2d 17, 21-22 (2d Cir.

11 1986) (finding sheer length of delay period weighed in favor of dismissal with prejudice because

12 there was no explanation for a twenty-three month delay, and no indication that any portion of

13 delay was excludable under speedy triad act).

14 In the present case, the Defendant was arraigned on July 25, 2018. The Supreme Court

15 issued an order requiring disrnissad on October 29, 2018, roughly three months after the

16 Arraignment. The Court notes that at the time of the Supreme Court Order, the 60-day timeline

17 created by the Guam Speedy Triad Act had overrun by roughly one month. While noting that there

18 has been a considerable length of delay in the prosecution of this case, the Court finds that this

19 length of time is not dispositive of the issue. "We find that a 59-day delay, while not insubstantial,

20 is not so substantial that dismissal with prejudice is mandated regardless of the other

21 circumstances." United States v. Koory, 20 F.3d 844, 848 (8th Cir. 1994). The Court will consider

22 the substantial length of delay as a factor weighing in favor of dismissal with prejudice, but will

23 also consider the People's explanation for the delay and the prejudice suffered by the Defendant

24 due to this delay.

25 The Court notes that the Defendant has not been incarcerated in this case during the period

O 26 of delay.3 A Commitment Order was filed on June 15, 2018, the same day that the People filed a

32 27 3 The Court notes that the Defendant was in custody during the pendency of this litigation, but was being held by the Q 28 United States Bureau of Prisons in a federal case.

Z > CF0375-18 People v. Max Myongki Ahn DECISION AND ORDER (Dismissal) Page 6 of 9 1 i Magistrates Complaint. The Court then issued an Order of Conditional Release on June 19, 2018

2 and the Defendant has not been held in this matter since that date.

3 W hile the Court notes that the length of delay in this case was substantial,the Court finds

4 that the fact that the Defendant was not confined in this case diminishes the impact of this delay on

5 the Court's overall detennination of whether this matter should be dismissed with or without

6 prejudice.

7 b. Government conduct. 8 I The Supreme Court of Guam has stated that when weighing the facts and circumstances

9 I which led to dismissal factor, bad faith on the part of the People or the Court weighs in favor of

10 dismissal with prejudice. Aron in, 2014 Guam 3 at '][ 24. This factor weighs in favor of dismissal

11 without prejudice where the government and trial court act in good faith notwithstanding a

12 statutory speedy trial violation. U.S. v. Lewis, 611 F.3d 1172, 1180 (9th Cir. 2010) (reasoning the

13 facts and circumstances factor weighed in favor of dismissal without prejudice where there was a

14 nearly six (6) month delay that was non-excludable under any exception from the Speedy Trial

15 Act, because the delay was due in part to the government attempting to conserve judicial resources

16 through a joint trial, and where the case was complex and appropriately demanded considerable

17 preparation by all parties).

18 i The Court finds that this matter is similar to Lewis, where there was no finding of bad faith

19 : on the People or the Court resulting in the delay. Rather, here the delay was due to reasonable

20 i disputes in the law, and reliance on what was valid precedent at the time the People moved for a

21 continuance. There has been no showing by the Defendant that the People or the Court acted in

22 bad faith. Rather, the People relied on valid precedent in moving the Court to find good cause to

23 toll the continued trial beyond the permissible period contemplated by Section 80.60. The Court,

24 relying on the same precedent, granted the request. The Court therefore finds that there has been

25 no bad faith on the part of the People or Court, and this sub-factor therefore supports dismissal

23 2 6 without prejudice. .. 1:3 27 SD 28 i »--- r | CF0375-18 People v. Max Myongki Ahn DECISION AND ORDER (Dismissal) Page 7 of 9 1 c. Actual prejudice suffered by the defendant.

2 The type of prejudice courts should look for include the resulting unavailability of potential

3 witnesses or whether exculpatory evidence is missing or deteriorating. Aron in, 2014 Guam 3 at 'I

4 21. However, the Supreme Court did suggest that a defendant's incarceration might weigh in favor

5 of dismissal with prejudice under the actual prejudice factor. at '][ 24, see also, Clymer, 25 F.3d

6 at 832 (reasoning courts look to prejudice in terms of the defendant's ability "to prepare for trial

7 and in terms of the restrictions on his liberty." (internal quotes and citation omitted)). As

8 previously discussed, the Defendant was not incarcerated in this matter pending triad.

9 Further, the Court notes that there has been no argument raised about prejudice to the

10 Defendant's ability to prepare for Md. There has been no indication that the delay affected

11 potential witnesses or created other issues related to an eventual trial of this matter. Therefore, this

12 factor weighs in favor of dismissal without prejudice.

13 3. Impact of reprosecution on the administration of justice.

14 Finally, the Supreme Court of Guam has made clear that "dismissal without prejudice is

15 not a toothless sanction because it forces the Government to obtain a new indictment it if decides

16 to reprosecute, and it exposes the prosecution to dismissal on statute of limitation grounds."

17 Aron in, 2014 Guam 3 at 'll 25. W here a court simply ignores, or is ignorant, of mandatory and

18 applicable authority decided years before being confronted with a relevant matter, the impact of

19 reprosecution on the administration of justice factor weighs in favor of dismissal with prejudice.

20 Clymer, 25 F.3d at 832 (reasoning that the trial court was confronted with a speedy trial issue

21 created by the misinterpretation of the meaning of a statutory exclusion from the speedy trial

22 statute which a higher court had directly addressed five years prior).

23 Here, unlike in Clymer, the Court was not unaware of authority which would have

24 governed the Court's conduct in this matter. Rather, the Court would point out that since the

25 inception of this matter, and the movement toward trial, the Court has constantly acted to protect

C 26 the Defendant's right to a speedy trial under Section 80.60. What occurred here is a change of law

27 in the middle of proceedings due to an order from the Supreme Court of Guam. The effect on the \ J 28

CF0375-18 People v. Max Myongki Ahn Page 8 of 9 DECISION ANDORDER(Dismissal) 1 administration of justice of reprosecution would be that the People are forced to comply with the

2 Supreme Court Order. Rather than punishing the People for not anticipating the Supreme Court's

3 decision, the Court finds that dismissal without prejudice will force the People to conform their

4 conduct to comply with the Supreme Court's pronouncement. Thus, the Court finds that

5 reprosecution would contribute to the administration of justice. Therefore, the final factor weighs

6 in favor of dismissal without prejudice.

7 CONCLUSION 8 Having considered each factor of the multifactor test contained in the Federal Speedy Trial

9 Act to determine if dismissals should be with or without prejudice, the Court finds that it is in the

10 b es t interes t of jus tic e to allow rep ros ec ution of this matter. Thus , b y p rep ond eranc e of the

11 Qevidence and for the foregoing reasons, the People's request that this matter be dismissed without

12 prejudice is hereby G R A N T E D .

15 SO ORDERED /? 16

19 The Honorable Anita A. Sukola Judge, Superior Court of Guam 20

21 SERVICE vIA COURT BOX 22 I acknowledge that I copy al the "°;§° was plaoldhll 23 pt I5t'-4=<> lb Ti 24 mama ,:¢l87 25 Depute/ rCau1dGuam 26 :J 'E 27

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Z. J> CF0375-18 People v. Max Myongki Ahn Page 9 of 9 DECISION AND ORDER (Dismissal) I