/ F\LED *MIR COURT $UPQ£ GUAM
1 ans gr; -6 FH\2-. \7 2 (ELEM at COURT
4 IN THE SUPERIOR COURT OF GUAM 5 THE PEOPLE OF GUAM, ) CRHVIINAL CASE NO. CF0066- 16 6 ) v. ) 7 ) DECISION AND ORDER 8 AUSTIN JAMES CRUZ BARCINAS ) SEVERING PERJURY CHARGE DOB: 02/23/1995 ) 9 ) 10 DEFENDANT. )
11 Introduction 12 This matter is assigned to the Honorable Maria T. Cenzon. On January 16, 2018, 13 Defendant Austin James Cruz Barcinas ("Defendant") appeared for a pre-trial conference and 14 was represented by Assistant Public Defender Kristine Borja.l The People of Guam (the 15
16 "People") were represented by Assistant Attorney General Sean Brown. On January 18, 2018,
17 the parties appeared before the Courts for a hearing on Defendant's Ex Parte Motion for Bill of
18 Particulars and other issues. Having reviewed the record and the relevant law, the Court ruled 19 from the bench, on January 18, 2018, ordering a severance of the perjury and criminal sexual 20 conduct charges. This Order further memorializes that ruling. 21
22 Background
23 Defendant was indicted with the following charges: 1) two counts of First Degree 24 Criminal Sexual Conduct (as a First Degree Felony), 2) two counts of Second Degree Criminal 25
26 1 Attorney Kristine Borja was present on behalf of Attorney Rocky Kingree, both attorneys are employed by the Public Defender Service Corporation. 27 ` Defendant waived his presence for this hearing. See Minute Entry (Jan. 18, 2018). Assistant Public Defender Rocky Kingree was present for Defendant and argued againsrthe severance and other issues. 28 People v. Austin James Cruz Bareinas, CF0066-16 Decision and Order Severing Perjury Charge Page 1 of 5 /- ` _/'
Sexual Conduct (as a First Degree Felony), 3) Assault with intent to commit criminal sexual 1 2 conduct (as a Third Degree Felony), 4) Perjury (as a Third Degree Felony), and 5) Fourth Degree
3 Criminal Sexual Conduct (as a Misdemeanor). Indictment (Feb. 9, 2016). 4 On August 25, 2016, the People filed a Notice of Intent to Admit Evidence of crimes, 5 wrong or acts ("Notice to Admit Evidence"), indicating their intent to use evidence from a prior 6 trial, where Defendant was acquitted. The People proffer such evidence "to prove motive, intent, 7
8 plan, identity, or absence of mistake," and "to prove charge 4 of the current matter." Not. to
9 Admit Evidence at 1-2. On January 16, 2018, during the pre-trial conference, the People once 10 again stated their intent to use Defendant's prior testimony from another trial to prove the perjury
12 charge. On the following day, Defendant filed an Ex Parte Motion for Bill of Particulars with
13 regards only to the perjury charge.
14 On January 18, 2018, the parties appeared before the Court for a hearing on Defendant's
15 Ex Parte Motion for Bill of Particulars and other issues. At that hearing, the Court indicated that 16 it will sever the perjury and criminal sexual conduct charges. Defense Counsel Kingree noted his 17 objection on the record arguing that severance was discussed among him, his client, and the 18
19 Public Defender Service Corporation, that they have decided not to pursue severance because it
20 actually helped the case. The Court, however, reasoned that severance is for the benefit of the 21 Defendant since the current charge and the charges from the first trial where the alleged 22 perjured statement were made - are substantially similar. 23
24 // 25 //
26 H 27 // 28 People v. Austin James Cruz Bareinas,CF0066-16 Decision and Order Severing Perjury Charge Page 2 of 5 .r |
1 Law
2 A. The Court has authority to sue sponge order a severance on the perjury and criminal sexual conduct charges. . 3 T itle 8 of the Guam Code Annotated ("GCA") § 65.35 governs the law on severance, the 4 law states "if it appears that a defendant is prejudiced by a jointer of offenses in an 5
6 indictment or information or by such jointer for trial together, the court may order an election or
7 separate trials of counts, grant a severance of defendants or provide whatever other relief justice 8 requires." This statute is based on former § 1098(a), former Rule 14, and Federal Rule of 9 Criminal Procedure P. 143, therefore, the Court looks to federal case law interpreting the statute 10
11 for guidance. Berzavente v . T ai tano, 2006 Guam 15.
12 Federal Courts agree that trial courts have broad discretion in deciding severance of trials. 13 See U.S. v. Reavis, 48 F .3d 763, 767 (4th C i r . 1995). See al so U.S. v. Smith, 893 F.2d 1573, 1581 14
15 (9th Cir. 1990). "[A]1though [Rule 14] is silent as ro the trial court's authority ro grant a
16 severance sue sponge, this power has been rec ogni z ed." U.S. v. McManus, 23 F .3d 878, 882-83 17 (4th Cir. 1994) (citing Jackson v. United States, 412 F.2d 149, 151 (D.C. Cir. 1969)). 18 Accordingly, the Court finds it is within its authority to sue sponge order severance of the 19
20 perjury and criminal sexual conduct charges.
21 B . Court finds prejudice against the Defendant justifies an order for severance of the Perjury and Criminal Sexual Conduct charges. 22 Generally, jointer of two or more offenses are permitted, "if the offense charged are of 23
24 the same or similar character or based on the same act or transaction or on two (2) or more acts
25 Fed. R. Crim. P. 14 (a) states "If the jointer of offenses or defendants in an indictment, an information, or a 26 consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." 27
28 People v. Austin James CruzBarcinas; CF0066-16 Decision and Order Severing Perjury Charge Page 3 of 5 | I |
or transactions connected together or constituting parts of a common scheme or plan." See 8 1
2 GCA § 55.35(a). However, as provided in Section 65.35, a judge may sever offenses properly
3 joined if jointer becomes prejudicial. Prejudice to a defendant must be so severe that by the
4 jointer he was denied a constitutionally fair trial. See US v. Tutino, 883 F. ad 1125, 1130 (ad. 5 Cir. 1989) (9th Cir. 1989), See also US v. Gallo, 668 F. Supp. 736 (9th Circ. Year). 6 Prejudice justifying the court to order severance occurs when "the defendant might become 7
8 embarrassed or confounded in presenting separate defenses, the jury might use evidence of one of
9 the crimes charged to infer oz criminal disposition to commit the other crime or crimes charged, 10 or the jury might cumulate evidence of the various crimes charged to find guilt on a count, which 11 i f considered separately, it would not so End." United States v. Chevalier, 776 F. Supp. 853, 857 12
13 (D. Vt. 1991) (em phasis added) (citing United States v. Lew is,626 F.2d 940, 945
14 (D.C.Cir. 1980)).
15 Discussion 16 In this case, Defendant was indicted of five charges, 1, 2, 3, and 5 allege Defendant 17 committed a criminal sexual conduct that occurred on June 14, 2012, while charge 4 alleges 18
19 Defendant committed perjury on January 14, 2016. Charge 4 alleges that Defendant testified for
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/ F\LED *MIR COURT $UPQ£ GUAM
1 ans gr; -6 FH\2-. \7 2 (ELEM at COURT
4 IN THE SUPERIOR COURT OF GUAM 5 THE PEOPLE OF GUAM, ) CRHVIINAL CASE NO. CF0066- 16 6 ) v. ) 7 ) DECISION AND ORDER 8 AUSTIN JAMES CRUZ BARCINAS ) SEVERING PERJURY CHARGE DOB: 02/23/1995 ) 9 ) 10 DEFENDANT. )
11 Introduction 12 This matter is assigned to the Honorable Maria T. Cenzon. On January 16, 2018, 13 Defendant Austin James Cruz Barcinas ("Defendant") appeared for a pre-trial conference and 14 was represented by Assistant Public Defender Kristine Borja.l The People of Guam (the 15
16 "People") were represented by Assistant Attorney General Sean Brown. On January 18, 2018,
17 the parties appeared before the Courts for a hearing on Defendant's Ex Parte Motion for Bill of
18 Particulars and other issues. Having reviewed the record and the relevant law, the Court ruled 19 from the bench, on January 18, 2018, ordering a severance of the perjury and criminal sexual 20 conduct charges. This Order further memorializes that ruling. 21
22 Background
23 Defendant was indicted with the following charges: 1) two counts of First Degree 24 Criminal Sexual Conduct (as a First Degree Felony), 2) two counts of Second Degree Criminal 25
26 1 Attorney Kristine Borja was present on behalf of Attorney Rocky Kingree, both attorneys are employed by the Public Defender Service Corporation. 27 ` Defendant waived his presence for this hearing. See Minute Entry (Jan. 18, 2018). Assistant Public Defender Rocky Kingree was present for Defendant and argued againsrthe severance and other issues. 28 People v. Austin James Cruz Bareinas, CF0066-16 Decision and Order Severing Perjury Charge Page 1 of 5 /- ` _/'
Sexual Conduct (as a First Degree Felony), 3) Assault with intent to commit criminal sexual 1 2 conduct (as a Third Degree Felony), 4) Perjury (as a Third Degree Felony), and 5) Fourth Degree
3 Criminal Sexual Conduct (as a Misdemeanor). Indictment (Feb. 9, 2016). 4 On August 25, 2016, the People filed a Notice of Intent to Admit Evidence of crimes, 5 wrong or acts ("Notice to Admit Evidence"), indicating their intent to use evidence from a prior 6 trial, where Defendant was acquitted. The People proffer such evidence "to prove motive, intent, 7
8 plan, identity, or absence of mistake," and "to prove charge 4 of the current matter." Not. to
9 Admit Evidence at 1-2. On January 16, 2018, during the pre-trial conference, the People once 10 again stated their intent to use Defendant's prior testimony from another trial to prove the perjury
12 charge. On the following day, Defendant filed an Ex Parte Motion for Bill of Particulars with
13 regards only to the perjury charge.
14 On January 18, 2018, the parties appeared before the Court for a hearing on Defendant's
15 Ex Parte Motion for Bill of Particulars and other issues. At that hearing, the Court indicated that 16 it will sever the perjury and criminal sexual conduct charges. Defense Counsel Kingree noted his 17 objection on the record arguing that severance was discussed among him, his client, and the 18
19 Public Defender Service Corporation, that they have decided not to pursue severance because it
20 actually helped the case. The Court, however, reasoned that severance is for the benefit of the 21 Defendant since the current charge and the charges from the first trial where the alleged 22 perjured statement were made - are substantially similar. 23
24 // 25 //
26 H 27 // 28 People v. Austin James Cruz Bareinas,CF0066-16 Decision and Order Severing Perjury Charge Page 2 of 5 .r |
1 Law
2 A. The Court has authority to sue sponge order a severance on the perjury and criminal sexual conduct charges. . 3 T itle 8 of the Guam Code Annotated ("GCA") § 65.35 governs the law on severance, the 4 law states "if it appears that a defendant is prejudiced by a jointer of offenses in an 5
6 indictment or information or by such jointer for trial together, the court may order an election or
7 separate trials of counts, grant a severance of defendants or provide whatever other relief justice 8 requires." This statute is based on former § 1098(a), former Rule 14, and Federal Rule of 9 Criminal Procedure P. 143, therefore, the Court looks to federal case law interpreting the statute 10
11 for guidance. Berzavente v . T ai tano, 2006 Guam 15.
12 Federal Courts agree that trial courts have broad discretion in deciding severance of trials. 13 See U.S. v. Reavis, 48 F .3d 763, 767 (4th C i r . 1995). See al so U.S. v. Smith, 893 F.2d 1573, 1581 14
15 (9th Cir. 1990). "[A]1though [Rule 14] is silent as ro the trial court's authority ro grant a
16 severance sue sponge, this power has been rec ogni z ed." U.S. v. McManus, 23 F .3d 878, 882-83 17 (4th Cir. 1994) (citing Jackson v. United States, 412 F.2d 149, 151 (D.C. Cir. 1969)). 18 Accordingly, the Court finds it is within its authority to sue sponge order severance of the 19
20 perjury and criminal sexual conduct charges.
21 B . Court finds prejudice against the Defendant justifies an order for severance of the Perjury and Criminal Sexual Conduct charges. 22 Generally, jointer of two or more offenses are permitted, "if the offense charged are of 23
24 the same or similar character or based on the same act or transaction or on two (2) or more acts
25 Fed. R. Crim. P. 14 (a) states "If the jointer of offenses or defendants in an indictment, an information, or a 26 consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." 27
28 People v. Austin James CruzBarcinas; CF0066-16 Decision and Order Severing Perjury Charge Page 3 of 5 | I |
or transactions connected together or constituting parts of a common scheme or plan." See 8 1
2 GCA § 55.35(a). However, as provided in Section 65.35, a judge may sever offenses properly
3 joined if jointer becomes prejudicial. Prejudice to a defendant must be so severe that by the
4 jointer he was denied a constitutionally fair trial. See US v. Tutino, 883 F. ad 1125, 1130 (ad. 5 Cir. 1989) (9th Cir. 1989), See also US v. Gallo, 668 F. Supp. 736 (9th Circ. Year). 6 Prejudice justifying the court to order severance occurs when "the defendant might become 7
8 embarrassed or confounded in presenting separate defenses, the jury might use evidence of one of
9 the crimes charged to infer oz criminal disposition to commit the other crime or crimes charged, 10 or the jury might cumulate evidence of the various crimes charged to find guilt on a count, which 11 i f considered separately, it would not so End." United States v. Chevalier, 776 F. Supp. 853, 857 12
13 (D. Vt. 1991) (em phasis added) (citing United States v. Lew is,626 F.2d 940, 945
14 (D.C.Cir. 1980)).
15 Discussion 16 In this case, Defendant was indicted of five charges, 1, 2, 3, and 5 allege Defendant 17 committed a criminal sexual conduct that occurred on June 14, 2012, while charge 4 alleges 18
19 Defendant committed perjury on January 14, 2016. Charge 4 alleges that Defendant testified for
20 a trial of an unrelated charge and knowingly made false statements "material to the credibility of 21 the witness and the outcome of the official proceeding." See Declaration in Support of 22 Magistrate's Complaint (Feb. 9, 2016). In the Notice to Admit Evidence, the People argue that 23 "if no mention of the prior case can arise at trial for this case, then the People could not prevail at 24
25 trial for a charge of perjury."
28 People v. Austin James CruzBarcinax; CF0066-16 Decision and Order Severing Perjury Charge Page 4 of 5 g 1
Although jointer of a perjury charge with the substantive crime is recognized, the Court 1
2 finds that the benefits of holding joint trials on these counts are outweighed by its prejudicial
3 effect. As already indicated by the People, evidence from the first trial- where Defendant was 4 acquitted and where the alleged false statement was given ._ must be presented to prove the 5 perjury charge. However, because the charges in the first trial and this trial are of the same 6 nature, there is a valid concern that the jurors might use that evidence to decide the Defendant's 7
8 guilt. Moreover, the Court does not find merit in Defense Counsel's argument since this Order
9 does not thwart him from raising any defense he so wishes in the severed proceedings. 10 Conclusion 11 For the reasons set forth above, the Court hereby orders a SEVERANCE on the Peljury 12
13 and Criminal Sexual Conduct charges. The trial of the Perjury charge shall follow the jury
14 selection and trial of the Criminal Sexual Conduct charges. 15
16 SO ORDERED this FEB UP 2018 | num: pro fund January 18, 2018. 17 \ ~ _ 18 _ -. 1 - - f 19
20 f 21 HONORABLE CENZON SERVICE am COURT BOX JUDGE, SUPERIQ1;-COURT'OF GUAM 22 lacknnvvledge thata copy of the original hereto was placedin the
23 °f * ) M l s 2 ) / We n
24 J. Ame:`
25 / /I /
Deputy Clerk,Su;@riorC0ur1 of Guam 26
27 *us v. Young,741 F. Supp. 334 (1996) (holding thatjoinder of underlying substantive crimes with perjury counts is proper, where the false statement concern the substantive offenses). 28 People v. AustinJames CruzBarcinas, CF0066-16 Decision and Order Severing Perjury Charge Page 5 of 5