3 IN THE SUPERIOR COURT OF GUAM 4
5 ) CRIMINAL CASE NO. CF97-12 PEOPLE OF GUAM ) 6 ) ) DECISION AND ORDER 7 ) v. ) (Defendant's Motion for a Bill of 8 ) Particulars or to Dismiss and Motion to ) Dismiss the Superseding Indictment) NICHOLAS FAUSTO CAMADDU, 9 ) DOB:09/13/1960 ) 10 ) Defendant. ) 11
12 INTRODUCTION 13
14 This matter came before the Honorable Anita A. Sukola on February 18, 2013, on
15 Nicholas Fausto Camaddu's ("Defendant") Motion for a Bill of Particulars or to Dismiss. The 16 Court also heard Defendant's Motion to Dismiss the Superseding Indictment. Defendant was 17 represented by Assistant Alternate Public Defender John P. Morrison. Assistant Attorney 18 General Matthew S. Heibel appeared on behalf of the People of Guam ("the People). Following 19
20 the hearing, the Court took the matter under advisement. Upon review of the oral and written
21 arguments, and legal authorities presented by both parties, the Courts issues its Decision and 22 Order DENYING Defendant's Motion for a Bill of Particulars and Motion to Dismiss the 23 Superseding Indictment. 24
BACKGROUND 25
26 The Superior Court of Guam Grand Jury returned a true bill in the above-captioned case
27 on February 17, 2012. Defendant was indicted on the following charges: (1) First Degree 28 Criminal Sexual Conduct (as a 1st Degree Felony) and (2) Second Degree Criminal Sexual
People v. Nicholas Fausto Camaddu (CF97-12) Page I ofS Decision and Order Def. 's Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment Conduct (as a 181 Degree Felony). Indictment (Feb. 17, 2012). On February 22, 2012, 1
2 Defendant was arraigned. Defendant entered a plea of not guilty and waived his right to a
3 speedy trial. 1 Super. Ct. of Guam Minute Entry Log No. 11632 (Feb. 22, 20 12). 4 The Court set this matter for jury selection and trial on December 17, 2012. See 5 Scheduling Order (Oct. 18, 2012). However, jury selection in the instant case was vacated due 6
to unresolved matters relative to the availability of an off-island witness. At the same time, the 7
8 Court took a Motion to Permit Live Video Testimony of Witness and Defendant's Motion in
9 Limine to Prohibit Introduction of Prior Bad Act Evidence under advisement. Hence, the Court 10 d cided to set CF275-12, another case involving Defendant, to proceed to trial first and have the 11 case at bar trail. 12
On January 22, 2013, the Superior Court of Guam Grand Jury handed down a
14 sup rseding indictment in the above-captioned case. The superseding indictment charges out 15 th following: (1) First Degree Criminal Sexual Conduct (as a 151 Degree Felony) (2 counts) and 16 I(2) Second Degree Criminal Sexual Conduct (as a 1st Degree Felony) (4 counts). Superseding 17 Indictment (Jan. 22, 2013). Defendant was arraigned on the additional counts on January 23, 18
1.9 2013. On January 29, 2013, Defendant filed Motion for a Bill of Particulars and to Di miss the
20 Superseding Indictment. The People filed their opposition to both motions on February 6, 2013. 21 The Court heard oral arguments on February 18, 2013. 22 DISCUSSION 23
24 Motion for Bill of Particulars
25 Defi ndant moves the Court for a Bill of Parti u1ars pursuant to 8 GCA § 55.30 or to
26 dismiss all charges. See Def.'s Mot. for a Bill of Parti ular~_ or to Dismiss (Jun 29, 2013). 2.1 1 Defendant asserted his right to a speedy trial on December 10, 2012. Because several motions were taken unde 28 advisement on December 17, 2012, the assertion was tolled until January 18, 2013, when the Court issued it D ision and Order. On January 24, 2013, Defendant waived his right to a speedy trial.
P ople v. Nicholas Fausto Camaddu (CF97-12) Page 2 of 8 D ision and Order- Def. 's Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment Defendant argues that "[n]one of the counts of charges dealing with these roughly two to three 1
2 month time periods, specify with particularity whether these alleged acts are part of a
3 continuing course of conduct, and when, in more particularity, they occurred." !d. at 2. 4 "Additionally, the dates alleged in the superseding indictment are broader than those previously 5 in the original indictment." !d. at 2-3. "Based on necessity, [Defendant], through counsel, 6
requests an order directing the prosecution to serve and file a Bill of Particulars specifically 7
8 setting forth the following with respect to the Counts and Charges that address the time period
9 between November 2011 and February 6, 2012: When and where, with more particularity, and 10 the time, dates, and places on which [Defendant] is alleged to have engaged in these acts?" !d. 11 at 3-4. Defendant contends that "[g]oing forward on the indictment, as drafted, would deprive 12
13 [him] of effective assistance of counsel in preparing a defense, and may result in unfair surprise
14 at trial and exposure to further jeopardy by repeated prosecutions." !d. 15 The People oppose Defendant's Motion for Bill of Particulars. The People do not 16 dispute that "[a] defendant in a criminal case has the right to adequate notice of the charges 17 against him both in statute and in case law." People's Opp'n Mot. for Bill of Particulars at 2 18
19 (Feb. 6, 2013). "However, the defendant's rights under the due process clause are not absolute.
20 Claims of due process violations must be reviewed on a case by case basis, 'picked out in the 21 facts and circumstances of each case."' !d. at 3. The People argue that "[t]he Supreme Court of 22 Guam has ruled that time is not an element of an offense, per se, for criminal sexual conduct 23 charges and that a date range that does not hamper a defendant's right sufficiently apprises 24
25 him/her of the charges with sufficient particularity." !d. at 4. Further, the People contend that
26 the indictment provided adequate notice to the Defendant and that "the charging instrument is 27 sufficient pursuant to our statutes which does not require the People to specify exact dates." !d. 28
People v. Nicholas Fausto Camaddu (CF97-12) Page 3 of 8 Decision and Order Def.'s Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment at 4-5 (referring to 8 GCA § 55.1 0). The People also point out that Guam Code "does not allow 1
2 for charging pursuant to the continuing course of conduct theory, thus each incident must be
3 alleged in a separate count but requiring notice to the defendant that the incident charged is a 4 separate and different incident; the People have done this." !d. at 5. 5 "A motion for a bill of particulars is appropriate where a defendant requires clarification 6
in order to prepare a defense." United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). "It 7
8 is designed to apprise the defendant of the specific charges being presented to minimize the
9 danger or surprise at trial, to aid in preparation and to protect against double jeopardy." !d. "In 10 determining if a bill of particulars should be ordered in a specific case, a court should consider 11 whether the defendant has been advised adequately of the charges through the indictment and 12
all other disclosures made by the government. !d. (citing United States v. Giese, 597 F.2d 1170, 13
14 1180 (9th Cir. 1979) ).
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3 IN THE SUPERIOR COURT OF GUAM 4
5 ) CRIMINAL CASE NO. CF97-12 PEOPLE OF GUAM ) 6 ) ) DECISION AND ORDER 7 ) v. ) (Defendant's Motion for a Bill of 8 ) Particulars or to Dismiss and Motion to ) Dismiss the Superseding Indictment) NICHOLAS FAUSTO CAMADDU, 9 ) DOB:09/13/1960 ) 10 ) Defendant. ) 11
12 INTRODUCTION 13
14 This matter came before the Honorable Anita A. Sukola on February 18, 2013, on
15 Nicholas Fausto Camaddu's ("Defendant") Motion for a Bill of Particulars or to Dismiss. The 16 Court also heard Defendant's Motion to Dismiss the Superseding Indictment. Defendant was 17 represented by Assistant Alternate Public Defender John P. Morrison. Assistant Attorney 18 General Matthew S. Heibel appeared on behalf of the People of Guam ("the People). Following 19
20 the hearing, the Court took the matter under advisement. Upon review of the oral and written
21 arguments, and legal authorities presented by both parties, the Courts issues its Decision and 22 Order DENYING Defendant's Motion for a Bill of Particulars and Motion to Dismiss the 23 Superseding Indictment. 24
BACKGROUND 25
26 The Superior Court of Guam Grand Jury returned a true bill in the above-captioned case
27 on February 17, 2012. Defendant was indicted on the following charges: (1) First Degree 28 Criminal Sexual Conduct (as a 1st Degree Felony) and (2) Second Degree Criminal Sexual
People v. Nicholas Fausto Camaddu (CF97-12) Page I ofS Decision and Order Def. 's Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment Conduct (as a 181 Degree Felony). Indictment (Feb. 17, 2012). On February 22, 2012, 1
2 Defendant was arraigned. Defendant entered a plea of not guilty and waived his right to a
3 speedy trial. 1 Super. Ct. of Guam Minute Entry Log No. 11632 (Feb. 22, 20 12). 4 The Court set this matter for jury selection and trial on December 17, 2012. See 5 Scheduling Order (Oct. 18, 2012). However, jury selection in the instant case was vacated due 6
to unresolved matters relative to the availability of an off-island witness. At the same time, the 7
8 Court took a Motion to Permit Live Video Testimony of Witness and Defendant's Motion in
9 Limine to Prohibit Introduction of Prior Bad Act Evidence under advisement. Hence, the Court 10 d cided to set CF275-12, another case involving Defendant, to proceed to trial first and have the 11 case at bar trail. 12
On January 22, 2013, the Superior Court of Guam Grand Jury handed down a
14 sup rseding indictment in the above-captioned case. The superseding indictment charges out 15 th following: (1) First Degree Criminal Sexual Conduct (as a 151 Degree Felony) (2 counts) and 16 I(2) Second Degree Criminal Sexual Conduct (as a 1st Degree Felony) (4 counts). Superseding 17 Indictment (Jan. 22, 2013). Defendant was arraigned on the additional counts on January 23, 18
1.9 2013. On January 29, 2013, Defendant filed Motion for a Bill of Particulars and to Di miss the
20 Superseding Indictment. The People filed their opposition to both motions on February 6, 2013. 21 The Court heard oral arguments on February 18, 2013. 22 DISCUSSION 23
24 Motion for Bill of Particulars
25 Defi ndant moves the Court for a Bill of Parti u1ars pursuant to 8 GCA § 55.30 or to
26 dismiss all charges. See Def.'s Mot. for a Bill of Parti ular~_ or to Dismiss (Jun 29, 2013). 2.1 1 Defendant asserted his right to a speedy trial on December 10, 2012. Because several motions were taken unde 28 advisement on December 17, 2012, the assertion was tolled until January 18, 2013, when the Court issued it D ision and Order. On January 24, 2013, Defendant waived his right to a speedy trial.
P ople v. Nicholas Fausto Camaddu (CF97-12) Page 2 of 8 D ision and Order- Def. 's Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment Defendant argues that "[n]one of the counts of charges dealing with these roughly two to three 1
2 month time periods, specify with particularity whether these alleged acts are part of a
3 continuing course of conduct, and when, in more particularity, they occurred." !d. at 2. 4 "Additionally, the dates alleged in the superseding indictment are broader than those previously 5 in the original indictment." !d. at 2-3. "Based on necessity, [Defendant], through counsel, 6
requests an order directing the prosecution to serve and file a Bill of Particulars specifically 7
8 setting forth the following with respect to the Counts and Charges that address the time period
9 between November 2011 and February 6, 2012: When and where, with more particularity, and 10 the time, dates, and places on which [Defendant] is alleged to have engaged in these acts?" !d. 11 at 3-4. Defendant contends that "[g]oing forward on the indictment, as drafted, would deprive 12
13 [him] of effective assistance of counsel in preparing a defense, and may result in unfair surprise
14 at trial and exposure to further jeopardy by repeated prosecutions." !d. 15 The People oppose Defendant's Motion for Bill of Particulars. The People do not 16 dispute that "[a] defendant in a criminal case has the right to adequate notice of the charges 17 against him both in statute and in case law." People's Opp'n Mot. for Bill of Particulars at 2 18
19 (Feb. 6, 2013). "However, the defendant's rights under the due process clause are not absolute.
20 Claims of due process violations must be reviewed on a case by case basis, 'picked out in the 21 facts and circumstances of each case."' !d. at 3. The People argue that "[t]he Supreme Court of 22 Guam has ruled that time is not an element of an offense, per se, for criminal sexual conduct 23 charges and that a date range that does not hamper a defendant's right sufficiently apprises 24
25 him/her of the charges with sufficient particularity." !d. at 4. Further, the People contend that
26 the indictment provided adequate notice to the Defendant and that "the charging instrument is 27 sufficient pursuant to our statutes which does not require the People to specify exact dates." !d. 28
People v. Nicholas Fausto Camaddu (CF97-12) Page 3 of 8 Decision and Order Def.'s Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment at 4-5 (referring to 8 GCA § 55.1 0). The People also point out that Guam Code "does not allow 1
2 for charging pursuant to the continuing course of conduct theory, thus each incident must be
3 alleged in a separate count but requiring notice to the defendant that the incident charged is a 4 separate and different incident; the People have done this." !d. at 5. 5 "A motion for a bill of particulars is appropriate where a defendant requires clarification 6
in order to prepare a defense." United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). "It 7
8 is designed to apprise the defendant of the specific charges being presented to minimize the
9 danger or surprise at trial, to aid in preparation and to protect against double jeopardy." !d. "In 10 determining if a bill of particulars should be ordered in a specific case, a court should consider 11 whether the defendant has been advised adequately of the charges through the indictment and 12
all other disclosures made by the government. !d. (citing United States v. Giese, 597 F.2d 1170, 13
14 1180 (9th Cir. 1979) ).
15 Guam law provides for Bill of Particulars as follows: 16 Whether or not an indictment or information complies with § 55.1 0, if it fails to 17 specify the particulars of the offense sufficiently to enable the defendant to prepare his defense, the court may, on motion of the defendant, require the 18 prosecuting attorney to furnish the defendant with a clarification of the pleading 19 containing such particulars as may be necessary for the preparation of the defense. 20 8 GCA § 55.30 (2005). 21
22 The Court recognizes that it has discretionary authority to require the People to furnish
23 such a clarification, notwithstanding an indictment's conformance with 8 GCA § §55.1 0. "The 24 law on statutory construction is well-settled. [I]f a statute is unambiguous, then judicial inquiry 25 is complete." People v. Quichocho, 1997 Guam 13 ~ 5 (citing Rubin v. United States, 449 U.S. 26
424 (1981 ). The "Bill of Particulars" statute is unambiguous. Therefore, the Court will review 27
People v. Nicholas Fausto Camaddu (CF97-12) Page 4 of 8 Decision and Order- De f.'s Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment the charges as drafted in the indictment to determine whether the exercise of its discretionary 1
2 authority is appropriate.
3 Defendant is charged with two counts of First Degree Criminal Sexual Conduct. The 4 two counts in Charge 1 are based on 9 GCA § 25.15(a)(l) and (b). First Degree Criminal 5 Sexual Conduct provides as charged: 6
(a) A person is guilty of criminal sexual conduct in the first degree if he or she 7 engages in sexual penetration with the victim and if any of the following 8 circumstances exist: ( 1) the victim is under fourteen ( 14) years of age; 9
9 GCA §25.15(a)(l). 10
11 Defendant is also charged with four counts of Second Degree Criminal Sexual Conduct.
12 The 4 counts in Charge 2 are based on 9 GCA § 25.20(a)(l) and (b). Second Degree Criminal 13 Sexual Conduct provides as charged: 14 (a) A person is guilty of criminal sexual conduct in the second degree if the 15 person engages in sexual contact with another person and if any of the 16 following circumstances exist: ( 1) that other person is under fourteen ( 14) years of age; 17 9 GCA § 25.20(a)(l). 18
19 "It is a cardinal principal of our criminal law that an indictment is sufficient which
20 apprises a defendant of the crime with which he is charged so as to enable him to prepare his 21 defense and to plead judgment of acquittal or conviction as a plea to a subsequent prosecution 22 for the same offense." People v. Jones, 2006 Guam 13 ~ 12 (citing Portnoy v. United States, 316 23 F.2d 486, 488 (1 51 Cir. 1963). As to the first charge, it alleges that Defendant engaged in sexual 24
25 penetration by "causing his finger to penetrate the vagina of A.N.C., a minor under fourteen
26 years of age." The victim is under the age of fourteen as her date of birth is August 1, 2000. 27 Accordingly, the Court finds that the charging document tracks the language of 9 GCA § 25.15 28
People v. Nicholas Fausto Camaddu (CF97-12) Page 5 of8 Decision and Order Def. 's Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment (a)(l ). As to the second charge, the victim again is under the age of fourteen. Charge 2, count 1 1
2 alleges that the Defendant caused "his finger to touch the primary genital area of the victim."
3 Count 2 alleges the Defendant caused his finger to touch the primary genital area of the victim." 4 Count 3 alleges the Defendant caused "his hand to touch the inner thigh of the victim." Count 4 5 alleges that Defendant caused the hand of A.N.C. to touch his penis. All counts track the 6
language of Second Degree Criminal Sexual Conduct as charged pursuant to 25.20 (a)(1). 7
8 Moreover, sexual contact "includes the intentional touching of the victim's or actor's intimate
9 parts or the intentional touching of the clothing covering the immediate area of the victim's or 10 actors intimate parts, if that intentional touching can reasonably be construed as being for the 11 purpose of sexual arousal or gratification." 9 GCA § 25.1 O(a)(8). 12
13 Defendant also argues that the time factor is not spelled out in specificity. It is well
14 established that an indictment "should be read in its entirety, construed according to common
15 sense, and interpreted to include facts which are necessarily implied." Jones, 2006 Guam 13 ~ 16 12 (citing US. v. Givens, 767 F.2d 574,584 (9th Cir. 1985). "To prove Second Degree Criminal 17 Sexual Conduct, there must exist evidence of the following elements: (1) defendant engaged in 18
19 sexual contact with another; and (2) the other person is under fourteen (14) years of age."
20 People v. Campbell, 2006 Guam 14 ~ 15. The same would hold true for First Degree Criminal 21 Sexual Conduct. The only difference is that First Degree Criminal Sexual Conduct requires 22 proof of sexual penetration. 23 "Time is a material element of an offense only if made so by statute." !d. "[S]ince time 24
25 is not an element of criminal sexual conduct, it is sufficient if the evidence demonstrates a date
26 reasonably near the date alleged in the indictment. Proof of any date before the return of the 27 indictment and within the statute oflimitations is sufficient." Id. at~ 17. 28
People v. Nicholas Fausto Camaddu (CF97-12) Page 6 of8 Decision and Order Def. 's Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment The Court finds the Superseding Indictment to sufficiently apprise Defendant of the 1
2 charges against him. Consequently, the Court does not find any violation of Defendant's Due
3 Process Rights. 4 Motion to Dismiss the Superseding Indictment 5 Defendant moves the Court to dismiss the Superseding Indictment "as the government 6
has absolutely no excuse for having waited nearly a year to file it." Def. 's Mot. to Dismiss the 7
8 Superseding Indictment at 3 (Jan. 29, 2013). Defendant argues that the superseding indictment
9 is not based on any new information. "In essence, the Government filed completely new 10 charges on the eve of trial." !d. Defendant moves for dismissal pursuant to 8 GCA §80. 70(b). 11 The People oppose Defendant's motion. They argue that Defendant is not prejudiced, 12
had previously waived his right to speedy trial and has again waived his right to a speedy trial. 13
14 People's Opp'n Mot. at 2 (Feb. 6, 2013). The People further contend that "[h]here, as in Flores,
15 [2009 Guam 22,] the first indictment is different than the superseding indictment in the crimes 16 charged. Second, Guam statutory law differs from the federal statute and other state statutes 17 regarding time for trial, tolling the time for trial, and restarting the trial clock where a 18
19 superseding indictment occurs." !d.
20 The authority cited by Defendant to dismiss reads: 21 (b) If there is unnecessary delay in bringing a defendant to trial, the court, on its 22 own motion, may dismiss the indictment, information or complaint. The reasons for the dismissal shall be set forth in an order entered upon the 23 minutes. 8 GCA § 80. 70(b)(2005). 24
25 The note corresponding 8 GCA § 80.70(b) briefly touches on "unnecessary delay."
26 "The test in Subsection (b) covers 'unnecessary delay' in taking any steps and embraces both 27 dismissal for want of prosecution and for denial of the constitutional right to a speedy trial." 8 28
People v. Nicholas Fausto Camaddu (CF97-12) Page 7 of 8 Decision and Order Def. 's Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment GCA § 80.70(b) Note. It is the Court's reading that 8 GCA § 80.70(b) also supplements the 1
2 specific guidelines provided by § 80.60 when it comes to dismissal for unnecessary delay. In
3 view of this, the Court also finds that such authority to dismiss based on unnecessary delay is 4 discretionary. Defendant points out to the Federal system's Speedy Trial Act which requires the 5 government to file their indictments within 30 days of a defendant's arrest. However, as 6
pointed out by Defendant, Guam law does not have a statute identical to the Federal Speedy 7
8 Trial Act.
9 With the case at bar, Defendant's statutory right to a speedy trial has never been 10 violated. Defendant did assert at one point, however, the speedy trial clock has not run up to 11 forty-five days, considering his incarceration. Defendant currently waives his right to a speedy 12
13 trial and the superseding indictment against him does not run contrary to the orderly procession
14 of justice. The superseding indictment as filed is within the People's province absent any
15 Accordingly, the court does not find violation to the Defendant's due process rights. 16 unnecessary delay to exercise its discretion to dismiss. 17 CONCLUSION 18
19 By preponderance of the evidence and based on the foregoing reasons, the Court
20 DENIES Defendant's Motion for Bill of Particulars and Motion to Dismiss the Superseding 21 Indictment. 22 A continued Pre-Trial Conference is scheduled for April29, 2013 at 9:30a.m. 23 SO ORDERED this _ll__day of APRIL, 2013. 24
28 Judge, Superior Court of Guam
People v. Nicholas Fausto Camaddu (CF97-12) Page 8 of8 Decision and Order Def. 's Mot. for a Bill of Particulars or to Dismiss /Mot. to Dismiss the Superseding Indictment