IN THE SUPERIOR COURT OF GUAM 1
2 ) CRIMINAL CASE NO. CF97-'l2 PEOPLE OF GUAM ) 3 ) ) DECISION AND ORDER 4 ) v. ) (Defendant's Motion to Strike Senator's 5 ) Letter from the Record and Appoint New NICHOLAS F. CAMADDU, ) Judge) 6 ) ) 7 Defendant. )
9 INTRODUCTION 10 This matter came before the Honorable Anita A. Sukola on June 28, 2013, on Nicholas 11 F. Camaddu's ("Defendant") Motion to Strike Senator's Letter from the Record and Appoint 12
13 New Judge. Alternate Public Defender John Patrick Morrison represented Defendant. Assistant
14 Attorney General Matthew Heibel represented the People of Guam ("People"). Following the 15 hearing, the Court took the matter under advisement. Upon review of the written and oral 16 arguments and legal authorities presented by both parties, the Court issues its Decision and 17 Order DENYING Defendant's motion. 18
19 BACKGROUND
20 On February 17, 2012, Defendant was charged by a Superior Court of Guam Grand Jury 21 with two counts of First Degree Criminal Sexual Conduct and four counts of Second Degree 22 Criminal Sexual Conduct. Defendant was subsequently charged by a superseding indictment on 23 January 22,2013. On May 28,2013, a jury oftwelve found Defendant guilty of all charges. At 24
25 Defendant's sentencing hearing, which was scheduled for June 21, 2013, this Court revealed
26 that it had received a letter from Senator Brant McCreadie requesting that this Court sentence 27 Defendant to the maximum sentence provided under 9 GCA § 25.15. It is noteworthy to 28
People v. Nicholas F. Camaddu (CF97-12) Page I of7 Decision and Order Defendant's Motion to Strike Senator's Letter from the Record and Appoint New Judge mention, however, that although the letter was dated June 3, 2013, the letter was sent via email 1
2 and was not brought to this Court's attention until the morning of the scheduled sentencing
3 hearing on June 21, 2013. Although both this Court and the People had received the letter prior 4 to the scheduled hearing, Defense Counsel stated that it had not received the letter and requested 5 for time to review the letter with the Defendant. This Court granted Defense Counsel's request, 6 and later that day, Defense filed its Motion to Strike Senator's Letter from the Record and 7
8 Appoint New Judge. This Court allowed the People to file any opposition to Defense's Motion,
9 and on June 27, 2013, the People filed its Response to Defense's Motion. Oral arguments were 10 scheduled on June 28, 2013 at which time this Court took the matter under advisement. 11 DISCUSSION 12
13 At issue before this Court is Defendant's Motion to Strike Senator McCreadie's Letter
14 from the Record and Appoint New Judge. Defendant argues that Senator McCreadie's letter
15 demonstrates impropriety and should be stricken from the record. Def s Mot. Strike at 3 (June 16 21, 2013). Furthermore, Defendant argues that, due to the appearance of impropriety, this Court 17 should recuse itself from further consideration of the instant case. Id. 18
19 Defendant relies on Dizon v. Superior Court of Guam, 1998 Guam 3, as the basis for its
20 argument. In Dizon, Presiding Judge Alberto C. Lamorena III received a letter from Ninth 21 Circuit Judge Alfred Goodwin expressing his concerns regarding a pending criminal matter and 22 requesting that the Presiding Judge make efforts towards a "quick resolution" of the case. 1998 23 Guam 3 at ,-r 3. The Supreme Court of Guam found that Judge Goodwin's letter presented the 24
25 appearance of impropriety and that the evidence was sufficient to show that a reasonable person
26 would doubt the Presiding Judge's ability to be impartial. Id. at ,-r 13. Judge Lamorena was 27 therefore ordered recused from the matter. Id. at ,-r 15. It is Defendant's position that the 28
People v. Nicholas F. Camaddu 2 of7 Decision and Order Defendant's Motion to Strike Senator's Letter from the Record and New "standard for judicial recusal is the appearance of impropriety,.." and that the apparent 1
2 impropriety found in Dizon is in line with the impropriety alleged in this matter. Def's Mot.
3 Strike at 3 (June 21, 2013). 4 The People filed its Response to Defense's Motion, arguing that Dizon should not be the 5 controlling case in this matter. People's Resp. Mot. at 3 (June 27, 2013). It is the People's 6
position that the impropriety that was present in Dizon is distinct from the alleged impropriety 7
8 in this case. /d. Furthermore, the People contend that recusal should not occur based on the
9 slightest suggestion of impropriety and that various factors regarding the circumstances of the 10 case and the parties should be taken into consideration. /d. at 4 (citing Ada v. Gutierrez, 2000 11 Guam 22 ~ 24). 12 In light of the facts of this case, as well as the arguments set forth by both parties, this 13
14 Court will analyze the two issues presented in Defendant's Motion. 15 A. Defendant's Motion to Strike Senator's Letter 16 This Court will first address the issue regarding Defendant's Motion to Strike Senator 17 McCreadie's letter from the record. Defendant based his argument solely on the appearance of 18
19 impropriety as demonstrated in Dizon. While such legal analysis may support Defendant's
20 argument on the issue of recusal, Defendant failed to provide any legal basis to support its 21 independent argument that the Senator's letter should be stricken from the record. This Court 22 will, nevertheless, decide this issue based on the merits of this case. 23 It is the opinion of this Court that the letter from Senator McCreadie should not be 24
25 stricken from the record. "A sentencing court can consider all kinds of relevant infonnation
26 regardless of admissibility at trial, including hearsay that has never been tested by cross- 27 examination, provided it has sufficient indicia of reliability to support its probable accuracy." 28
People v. Nicholas F. Camaddu (CF97-12) 3 of7 Decision and Order- Defendant's Motion to Strike Senator's Letter from the Record and Appoint New Judge US. v. Mills, 710 F.3d 5 (1st Cir. 2013). In the instant case, Senator McCreadie's letter provides 1
2 no information which this Court was not already aware of, nor did the Senator's letter provide
3 any contradictory information that would bring its accuracy into question. Since the information 4 stipulated within the letter does not contradict any of the facts verified at trial, this Court is of 5 the opinion that there is sufficient indicia of reliability to support its probable accuracy, and for 6
that reason, the letter should not be stricken from the record. 7
8 B. Defendant's Motion to Appoint New Judge
9 This Court will now address the issue regarding Defendant's Motion to Appoint New 10 Judge. Defendant relies heavily upon the Dizon case as the basis for its argument in favor of 11 recusal. "The recusal statute provides that a judge must disqualify himself when his 12
'impartiality might reasonably be questioned."' Dizon 1998 Guam 3 ~ 8 (citing 7 GCA § 13
14 615(a)). A Judge has a duty to disclose in open court if he or she has obtained knowledge or
15 facts that may cause him or her to be disqualified from presiding over a proceeding. 7 GCA § 16 6106. Furthermore, a party may file an Objection to Judge's Competency setting forth the facts 17 1 constituting the grounds for disqualification. 7 GCA § 6107. It is noteworthy to mention, 18
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IN THE SUPERIOR COURT OF GUAM 1
2 ) CRIMINAL CASE NO. CF97-'l2 PEOPLE OF GUAM ) 3 ) ) DECISION AND ORDER 4 ) v. ) (Defendant's Motion to Strike Senator's 5 ) Letter from the Record and Appoint New NICHOLAS F. CAMADDU, ) Judge) 6 ) ) 7 Defendant. )
9 INTRODUCTION 10 This matter came before the Honorable Anita A. Sukola on June 28, 2013, on Nicholas 11 F. Camaddu's ("Defendant") Motion to Strike Senator's Letter from the Record and Appoint 12
13 New Judge. Alternate Public Defender John Patrick Morrison represented Defendant. Assistant
14 Attorney General Matthew Heibel represented the People of Guam ("People"). Following the 15 hearing, the Court took the matter under advisement. Upon review of the written and oral 16 arguments and legal authorities presented by both parties, the Court issues its Decision and 17 Order DENYING Defendant's motion. 18
19 BACKGROUND
20 On February 17, 2012, Defendant was charged by a Superior Court of Guam Grand Jury 21 with two counts of First Degree Criminal Sexual Conduct and four counts of Second Degree 22 Criminal Sexual Conduct. Defendant was subsequently charged by a superseding indictment on 23 January 22,2013. On May 28,2013, a jury oftwelve found Defendant guilty of all charges. At 24
25 Defendant's sentencing hearing, which was scheduled for June 21, 2013, this Court revealed
26 that it had received a letter from Senator Brant McCreadie requesting that this Court sentence 27 Defendant to the maximum sentence provided under 9 GCA § 25.15. It is noteworthy to 28
People v. Nicholas F. Camaddu (CF97-12) Page I of7 Decision and Order Defendant's Motion to Strike Senator's Letter from the Record and Appoint New Judge mention, however, that although the letter was dated June 3, 2013, the letter was sent via email 1
2 and was not brought to this Court's attention until the morning of the scheduled sentencing
3 hearing on June 21, 2013. Although both this Court and the People had received the letter prior 4 to the scheduled hearing, Defense Counsel stated that it had not received the letter and requested 5 for time to review the letter with the Defendant. This Court granted Defense Counsel's request, 6 and later that day, Defense filed its Motion to Strike Senator's Letter from the Record and 7
8 Appoint New Judge. This Court allowed the People to file any opposition to Defense's Motion,
9 and on June 27, 2013, the People filed its Response to Defense's Motion. Oral arguments were 10 scheduled on June 28, 2013 at which time this Court took the matter under advisement. 11 DISCUSSION 12
13 At issue before this Court is Defendant's Motion to Strike Senator McCreadie's Letter
14 from the Record and Appoint New Judge. Defendant argues that Senator McCreadie's letter
15 demonstrates impropriety and should be stricken from the record. Def s Mot. Strike at 3 (June 16 21, 2013). Furthermore, Defendant argues that, due to the appearance of impropriety, this Court 17 should recuse itself from further consideration of the instant case. Id. 18
19 Defendant relies on Dizon v. Superior Court of Guam, 1998 Guam 3, as the basis for its
20 argument. In Dizon, Presiding Judge Alberto C. Lamorena III received a letter from Ninth 21 Circuit Judge Alfred Goodwin expressing his concerns regarding a pending criminal matter and 22 requesting that the Presiding Judge make efforts towards a "quick resolution" of the case. 1998 23 Guam 3 at ,-r 3. The Supreme Court of Guam found that Judge Goodwin's letter presented the 24
25 appearance of impropriety and that the evidence was sufficient to show that a reasonable person
26 would doubt the Presiding Judge's ability to be impartial. Id. at ,-r 13. Judge Lamorena was 27 therefore ordered recused from the matter. Id. at ,-r 15. It is Defendant's position that the 28
People v. Nicholas F. Camaddu 2 of7 Decision and Order Defendant's Motion to Strike Senator's Letter from the Record and New "standard for judicial recusal is the appearance of impropriety,.." and that the apparent 1
2 impropriety found in Dizon is in line with the impropriety alleged in this matter. Def's Mot.
3 Strike at 3 (June 21, 2013). 4 The People filed its Response to Defense's Motion, arguing that Dizon should not be the 5 controlling case in this matter. People's Resp. Mot. at 3 (June 27, 2013). It is the People's 6
position that the impropriety that was present in Dizon is distinct from the alleged impropriety 7
8 in this case. /d. Furthermore, the People contend that recusal should not occur based on the
9 slightest suggestion of impropriety and that various factors regarding the circumstances of the 10 case and the parties should be taken into consideration. /d. at 4 (citing Ada v. Gutierrez, 2000 11 Guam 22 ~ 24). 12 In light of the facts of this case, as well as the arguments set forth by both parties, this 13
14 Court will analyze the two issues presented in Defendant's Motion. 15 A. Defendant's Motion to Strike Senator's Letter 16 This Court will first address the issue regarding Defendant's Motion to Strike Senator 17 McCreadie's letter from the record. Defendant based his argument solely on the appearance of 18
19 impropriety as demonstrated in Dizon. While such legal analysis may support Defendant's
20 argument on the issue of recusal, Defendant failed to provide any legal basis to support its 21 independent argument that the Senator's letter should be stricken from the record. This Court 22 will, nevertheless, decide this issue based on the merits of this case. 23 It is the opinion of this Court that the letter from Senator McCreadie should not be 24
25 stricken from the record. "A sentencing court can consider all kinds of relevant infonnation
26 regardless of admissibility at trial, including hearsay that has never been tested by cross- 27 examination, provided it has sufficient indicia of reliability to support its probable accuracy." 28
People v. Nicholas F. Camaddu (CF97-12) 3 of7 Decision and Order- Defendant's Motion to Strike Senator's Letter from the Record and Appoint New Judge US. v. Mills, 710 F.3d 5 (1st Cir. 2013). In the instant case, Senator McCreadie's letter provides 1
2 no information which this Court was not already aware of, nor did the Senator's letter provide
3 any contradictory information that would bring its accuracy into question. Since the information 4 stipulated within the letter does not contradict any of the facts verified at trial, this Court is of 5 the opinion that there is sufficient indicia of reliability to support its probable accuracy, and for 6
that reason, the letter should not be stricken from the record. 7
8 B. Defendant's Motion to Appoint New Judge
9 This Court will now address the issue regarding Defendant's Motion to Appoint New 10 Judge. Defendant relies heavily upon the Dizon case as the basis for its argument in favor of 11 recusal. "The recusal statute provides that a judge must disqualify himself when his 12
'impartiality might reasonably be questioned."' Dizon 1998 Guam 3 ~ 8 (citing 7 GCA § 13
14 615(a)). A Judge has a duty to disclose in open court if he or she has obtained knowledge or
15 facts that may cause him or her to be disqualified from presiding over a proceeding. 7 GCA § 16 6106. Furthermore, a party may file an Objection to Judge's Competency setting forth the facts 17 1 constituting the grounds for disqualification. 7 GCA § 6107. It is noteworthy to mention, 18
19 however, that Defendant did not file an Objection to Competency pursuant to § 6107, and for
20 that reason, the issue of recusal pursuant to § 61 05( a) will be determined by this Court and not 21 by another sitting Judge. 22 While impartiality is the basis for recusal under§ 6105(a), Defendant's motion does not 23 directly stipulate to § 6105(a) and instead focuses on the "appearance of impropriety" as its 24
25 basis for this Court's recusal from this case. Under Dizon, "a reasonable person standard must
26 be applied to determine whether recusal is necessary." 1998 Guam 3 ~ 8. Under Ada, however, 27 1 This Objection must be served on the Judge alleged to be disqualified, and the Judge may either consent that the
28 action continues without her or file an answer denying such allegation. The question of a Judge's disqualification shall then be heard and determined by another Superior Court of Guam Judge.
People v. Nicholas F. Camaddu (CF97-12) 4 of7 Decision and Order Defendant's Motion to Strike Senator's Letter from the Record and Appoint New the Court held that "courts must apply the reasonable person standard within the context of the 1
2 jurisdictions, parties, and controversies involved." 2000 Guam 22 ~ 24. Upon reviewing the
3 various facts and legal authorities surrounding this matter, and based on the "reasonable person" 4 standard set forth in Dizon and Ada, it is the opinion of this Court that recusal is not necessary 5 and the instant case may be distinguished from Dizon for several reasons. 6 The first distinction between this matter and the Dizon case is the stage of litigation in 7
8 which the extrinsic information was submitted to the Court. Unlike in Dizon, where Judge
9 Goodwin's letter was received during the pretrial stage of the litigation, here Senator 10 McCreadie's letter was received after a jury had already found the Defendant guilty of all 11 charges. While the Dizon Court does not place great emphasis on the fact that extrinsic 12
13 information was submitted during the pretrial stage, it is the opinion of this Court that this
14 distinction is essential for determining whether such information would affect the impartiality of
15 the Judge. 16 There is a clear distinction between information that may be admitted in preparation for 17 trial and information admitted post-conviction. As indicated in US. v. Mills, 710 F.3d 5 (1st Cir. 18
19 2013), a court may consider any reliable and accurate information at sentencing, regardless of
20 whether the information would have been admissible at trial. Whether Senator McCreadie's 21 letter would have been admitted at trial is irrelevant at this point. Furthermore, at sentencing the 22 law makes no distinction in regards to extrinsic information submitted by elected officials. 23 Given the circumstances, this Court believes that a reasonable person would find that extrinsic 24
25 information submitted to the Court at sentencing would be admissible provided the information
26 is reliable and accurate. 27
People v. Nicholas F. Camaddu (CF97-12) Page 5 of7 Decision and Order Defendant's Motion to Strike Senator's Letter from the Record and Appoint New Judge The second distinction is the weight of influence a Ninth Circuit Judge has over the 1
2 Court in comparison to that of a Senator. This Court believes that this distinction is also
3 essential for the determination of whether such extrinsic information would affect the 4 impartiality of the Judge. The Court in Dizon held that "a letter from a Ninth Circuit Court of 5 Appeals judge carries a great deal of weight on a lower court judge." 1998 Guam~ 14. This was 6
7 still notwithstanding the fact that the Ninth Circuit no longer had direct appellate jurisdiction
8 over Superior Court of Guam cases. !d. at~ 13. 9 Unlike in Dizon, however, where Judge Goodwin's influence over the Court, while 10 limited, was still significant given the weight of his position within the Judicial Branch, here 11 Senator McCreadie's influence over this Court is less significant. As firmly established in our 12
13 government's separation of powers doctrine, the Guam Legislature has limited authority over
14 the activities of the Judiciary outside of its powers granted under the Organic Act. Although 15 Defendant argues that Senator McCreadie "votes on the creation of laws and funding for the 16 Judiciary of Guam," it is important to note that, as argued by the People, Senator McCreadie is 17 not a member of the Guam Legislative Committee on the Judiciary, and for that reason, does not 18
19 have direct authority over the activities of this Court. It is also noteworthy to mention that
20 Senator McCreadie has no official power over this Court's judgeship since, as stipulated by the 21 People, Judges are appointed by the Governor of Guam and retained by popular vote. In light 22 of the legal reasons provided, it is the opinion of this Court that a reasonable person would not 23
find Senator McCreadie's letter particularly influential over this Court. 24
25 The third and final distinction between the Dizon case and the matter before this Court is
26 the appearance of impropriety. In Dizon, Judge Lamorena did not initially disclose his receipt of 27 Judge Goodwin's letter. 1998 Guam 3 ~ 4. In fact, it was not until the Petitioner in that case 28
People v. Nicholas F. Carnaddu (CF97-12) 6 of7 Decision and Order- Defendant's Motion to Strike Senator's Letter from the Record and Appoint New Judge submitted two separate requests to have the letter disclosed that Judge Lamorena revealed its 1
2 existence. ld. The Dizon Court, in light of all circumstances surrounding the case, found that
3 Judge Lamorena's failure to disclose the letter immediately presented an appearance of 4 impropriety and ordered the Presiding Judge be recused from the case. !d. at ~ 15. 5 Unlike in Dizon, where the Judge in that case withheld the extrinsic information until 6 Petitioner requested for its disclosure, in the matter before this Court, the existence of the letter 7
8 submitted by Senator McCreadie was disclosed on the bench at the earliest possible
9 convenience, thus the existence of extrinsic information was presented willingly and voluntarily 10 by this Court. For the aforementioned reasons, this Court is of the opinion that there was no 11 impropriety that would suffice as grounds for recusal under Dizon. 12 As argued by the People, "[The] Dizon [case] should not be read so broadly as to start 13
14 using recusal as a presumption." People's Resp. Mot. at 4 (June 27, 2013) (citing Ada, 2000
15 Guam 22 ~ 15). The Court has a duty, as stipulated in Ada, to hear its cases and "keep the 16 wheels of justice rotating." 2000 Guam 22 ~ 15. In the interest of justice, and in the absence of 17 impropriety or any other grounds for recusal, it is imperative that this duty be preserved. 18
19 CONCLUSION
20 By preponderance of the evidence and based on the foregoing reasons, the Court 21 DENIES Defendant's Motion to Strike Senator's Letter from the Record and Appoint New 22 Judge. 23 Sentencing is scheduled for JULY 9, 2013 atd, p.m. 24
25 SO ORDERED this 5"
27 HONORABLE ANITA A. SUKOLA Judge, Superior Court of Guam 28
People v. Nicholas F. Camaddu (CF97-12) Page 7 of7 Decision and Order Defendant's Motion to Strike Senator's Letter from the Record and Appoint New Judge