~ ~~U~ cr IN THE SUPERIOR COURT OF GUAM".! ; 2 PEOPLE OF GUAM, ) 3 ) 4 vs. ) DECISION AND ORDER ) (Motion to Dismiss) 5 BERNARD DIOMAMBO AROMIN, ) ) 6 Defendant. ) 7
8 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on 9 December 22, 2011 for Defendant's Motions to Dismiss (hereinafter referred to as "Motion"). 10 Defendant was not present, but was represented by Attorney Suresh Sampath. People were 11 represented by Assistant Attorney General James C. Collins. The Court having considered all 12 the oral arguments, briefs, and materials filed herein now renders the following decision. 13 Guam's Supreme Court held I : "that unless good cause is shown, a complaint shall be 14 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 15 complaint." People v. Rasauo, 2011 Guam 14, 16. Defendant argues that pursuant to People v. 16 Rasauo, 2011 Guam 14 (hereinafter referred to as Rasauo Ir), this case should be dismissed 17 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 18 was filed. See also 8 GCA § 60.10. People argue that the Court should fmd good cause exists for 19 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this 20 Court will review the specific facts in this case to determine whether or not there was good 21 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was 22 filed. Rasauo, 2011 Guam 14"10, 14. 23 Defendant was arrested on July 13, 2010 and given a notice to appear with a date of July 24 6, 2011. On April 15, 2011, the Complaint was filed and a Summons was issued on April 28, 25 2011 for an arraignment scheduled for June 22, 2011. After sixty-eight (68) days had passed 26 from the filing of the Complaint, Defendant appeared and was appointed counsel at the June 22, 27 2011 hearing. In order to provide Defendant the opportunity to meet and confer with counsel, 28
10f5 the arraignment was continued until July 20,2011, twenty-eight (28) days later. Defendant was 2 finally arraigned on July 20, 2011, which is more than sixty (60) days after the Complaint was 3 filed. 4 The time between the Complaint and the first appearance on June 22, 2011 does violate 5 the 60 day rule announced in Rasauo II. Hence, the Court must review what days, if any, after 6 June 14, 2011 constitute good cause or if this case must be dismissed for the 60 day rule 7 violation.Id. at ~ 14. 8 The People maintain that once a request for a summons is presented "the People retain 9 no control over the court's decision about when to calendar the date on which a defendant is to 10 return to court." People's Opp'n to Mot. to Dismiss, p.5 (Nov. 18, 2011). Thus, the People 11 advocate that any delay attributed to the court's calendaring of an arraignment should be found 12 to be good cause and not cause the case to be dismissed pursuant to Rasauo II. The Court 13 disagrees that a bright line rule of any delay caused by a court's calendaring of a criminal matter 14 is automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 15 intended the court and its officers to be subject to the prompt arraignment rule put forth in 16 Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 17 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the 18 ends of justice"). See e.g. People v. Ilemelong, CF150-10 (Super. Ct. Guam Jan. 13, 2012). 19 Since the onus is on all judicial officers, in addition to the prosecuting attorneys, to ensure that a 20 defendant is promptly arraigned, the Court holds that the delay created by the Court scheduling 21 the arraignment date after more than sixty (60) days had passed from the filing of the Complaint 22 is not good cause. The Defendant was not promptly arraigned; therefore, this case must be 23 dismissed. Rasauo, 2011 Guam 14. 24 While not necessary for this decision, for purposes of thoroughness, the Court finds that 25 the twenty-eight (28) days the Court continued the arraignment for purposes of allowing the 26 Defendant to meet and confer with counsel prior to being arraigned is reasonable and constitutes 27 good cause. See e.g. People v. Nena, CF1075-10 (Super. Ct. Guam Feb. 10,2012). 28
1 This holding is hereinafter referred to as the "60 day rule."
20f5 Lastly, the Court must determine if the dismissal should be with or without prejudice. 2 The Court is persuaded by the People's argumenr that the dismissal should be without
3 prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule requires
4 a dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not the case
5 should be dismissed with or without prejudice should be decided in the fIrst instance by the trial
6 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where
7 the case was dismissed with prejudice based upon a fInding that there was a statutory bar to re- 8 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v.
9 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a 10 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory
11 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 ~~ 35-36. 12 Therefore, the Court considers "a showing of prejudice or any other factors" to 13 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by 14 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.C. § 3162( a)(2). Defendant does not make a 15 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of 16 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 17 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used
18 to determine if dismissal with prejudice is required here. 19 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed 20 for alleged government misconduct which occurs outside the Complaint process because such
21 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of
22 justice. '" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(intemal
23 citations omitted). See also Stephens, 2009 Guam 8 ~ 21 (discussing dismissal for unnecessary
24 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 ~~ 61-
25 70( discussing dismissal based on fInding the People acted in bad faith). In this case, there is no 26
2 This issue was raised orally, not in the written opposition.
30f5 alleged government misconduct or bad faith on the part of the People3 . Instead, there is a 2 violation of the 60 day rule, which was recently announced in Rasauo II, which requires 3 dismissal, but not necessarily dismissal with prejudice. 4 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong 5 message to prosecutors who have consistently violated defendants' rights and force them to 6 reduce pretrial delays in general. Us. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8, 7 2011). Stephens, 2009 Guam 8 ~ 21("If a court is to apply the harsh rule of dismissing a 8 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution 9 that further delay could jeopardize the case.").
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~ ~~U~ cr IN THE SUPERIOR COURT OF GUAM".! ; 2 PEOPLE OF GUAM, ) 3 ) 4 vs. ) DECISION AND ORDER ) (Motion to Dismiss) 5 BERNARD DIOMAMBO AROMIN, ) ) 6 Defendant. ) 7
8 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on 9 December 22, 2011 for Defendant's Motions to Dismiss (hereinafter referred to as "Motion"). 10 Defendant was not present, but was represented by Attorney Suresh Sampath. People were 11 represented by Assistant Attorney General James C. Collins. The Court having considered all 12 the oral arguments, briefs, and materials filed herein now renders the following decision. 13 Guam's Supreme Court held I : "that unless good cause is shown, a complaint shall be 14 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 15 complaint." People v. Rasauo, 2011 Guam 14, 16. Defendant argues that pursuant to People v. 16 Rasauo, 2011 Guam 14 (hereinafter referred to as Rasauo Ir), this case should be dismissed 17 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 18 was filed. See also 8 GCA § 60.10. People argue that the Court should fmd good cause exists for 19 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this 20 Court will review the specific facts in this case to determine whether or not there was good 21 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was 22 filed. Rasauo, 2011 Guam 14"10, 14. 23 Defendant was arrested on July 13, 2010 and given a notice to appear with a date of July 24 6, 2011. On April 15, 2011, the Complaint was filed and a Summons was issued on April 28, 25 2011 for an arraignment scheduled for June 22, 2011. After sixty-eight (68) days had passed 26 from the filing of the Complaint, Defendant appeared and was appointed counsel at the June 22, 27 2011 hearing. In order to provide Defendant the opportunity to meet and confer with counsel, 28
10f5 the arraignment was continued until July 20,2011, twenty-eight (28) days later. Defendant was 2 finally arraigned on July 20, 2011, which is more than sixty (60) days after the Complaint was 3 filed. 4 The time between the Complaint and the first appearance on June 22, 2011 does violate 5 the 60 day rule announced in Rasauo II. Hence, the Court must review what days, if any, after 6 June 14, 2011 constitute good cause or if this case must be dismissed for the 60 day rule 7 violation.Id. at ~ 14. 8 The People maintain that once a request for a summons is presented "the People retain 9 no control over the court's decision about when to calendar the date on which a defendant is to 10 return to court." People's Opp'n to Mot. to Dismiss, p.5 (Nov. 18, 2011). Thus, the People 11 advocate that any delay attributed to the court's calendaring of an arraignment should be found 12 to be good cause and not cause the case to be dismissed pursuant to Rasauo II. The Court 13 disagrees that a bright line rule of any delay caused by a court's calendaring of a criminal matter 14 is automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 15 intended the court and its officers to be subject to the prompt arraignment rule put forth in 16 Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 17 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the 18 ends of justice"). See e.g. People v. Ilemelong, CF150-10 (Super. Ct. Guam Jan. 13, 2012). 19 Since the onus is on all judicial officers, in addition to the prosecuting attorneys, to ensure that a 20 defendant is promptly arraigned, the Court holds that the delay created by the Court scheduling 21 the arraignment date after more than sixty (60) days had passed from the filing of the Complaint 22 is not good cause. The Defendant was not promptly arraigned; therefore, this case must be 23 dismissed. Rasauo, 2011 Guam 14. 24 While not necessary for this decision, for purposes of thoroughness, the Court finds that 25 the twenty-eight (28) days the Court continued the arraignment for purposes of allowing the 26 Defendant to meet and confer with counsel prior to being arraigned is reasonable and constitutes 27 good cause. See e.g. People v. Nena, CF1075-10 (Super. Ct. Guam Feb. 10,2012). 28
1 This holding is hereinafter referred to as the "60 day rule."
20f5 Lastly, the Court must determine if the dismissal should be with or without prejudice. 2 The Court is persuaded by the People's argumenr that the dismissal should be without
3 prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule requires
4 a dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not the case
5 should be dismissed with or without prejudice should be decided in the fIrst instance by the trial
6 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where
7 the case was dismissed with prejudice based upon a fInding that there was a statutory bar to re- 8 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v.
9 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a 10 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory
11 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 ~~ 35-36. 12 Therefore, the Court considers "a showing of prejudice or any other factors" to 13 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by 14 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.C. § 3162( a)(2). Defendant does not make a 15 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of 16 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 17 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used
18 to determine if dismissal with prejudice is required here. 19 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed 20 for alleged government misconduct which occurs outside the Complaint process because such
21 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of
22 justice. '" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(intemal
23 citations omitted). See also Stephens, 2009 Guam 8 ~ 21 (discussing dismissal for unnecessary
24 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 ~~ 61-
25 70( discussing dismissal based on fInding the People acted in bad faith). In this case, there is no 26
2 This issue was raised orally, not in the written opposition.
30f5 alleged government misconduct or bad faith on the part of the People3 . Instead, there is a 2 violation of the 60 day rule, which was recently announced in Rasauo II, which requires 3 dismissal, but not necessarily dismissal with prejudice. 4 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong 5 message to prosecutors who have consistently violated defendants' rights and force them to 6 reduce pretrial delays in general. Us. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8, 7 2011). Stephens, 2009 Guam 8 ~ 21("If a court is to apply the harsh rule of dismissing a 8 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution 9 that further delay could jeopardize the case."). However, the violation of a defendant's prompt 10 arraignment right is not an issue this Court has been asked to address in relation to arraignments 11 that occurred after Rasauo II was issued. Instead, this Court is merely addressing motions to 12 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court 13 to believe that the People do not require a strong message from this Court to ensure that they are 14 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of 15 dismissal without prejudice. 16 Further, in this circumstance, dismissal without prejudice can not be seen as condoning 17 the People's behavior, because neither the People nor the Court were aware of the 60 day rule at 18 the time of the delay of the Defendant's prompt arraignment. fd. This factor weighs in favor of 19 dismissal without prejudice. 20 In this scenario, Defendant's constitutional rights are not implicated, thus the Court 21 should weigh the violation of Defendant's right to a prompt arraignment with the competing 22 interest "of society to be secure from crime through the regular enforcement of the criminal 23 laws." Gutierrez, 2005 Guam 19 ~ 68(intemal citation and quotation omitted). Upon balancing 24 these factors as well as taking into consideration of lack of showing of prejudice the Court 25 determines that dismissal without prejudice is most appropriate. 26 For all of the foregoing reasons, since there is not good cause shown for the entire 27
28 3 All of the procedural facts of this case occurred before the promulgation of Rasauo II, therefore, there can be no finding that the People intentionally violated the 60 day rule.
40f5 duration of the violation of the 60 day rule, Defendant's Motion is GRANTED in part. Rasauo, 2 2011 Guam 14, 16. The Court finds that Defendant was not promptly arraigned pursuant to 8 3 GCA § 60.1 O( a); therefore, the Court is DISMISSING this case without prejudice. 4
6 IT IS SO ORDERED thio/kL ~February, 2012. 7
9 HONORABLE ELIZABETH BARRETT-ANDERSON 10 Judge, Superior Court of Guam 11
50f5