People v. Cha

Opinion

IN THE SUPERIOR COURT OF GUAM

) Case No. CF0020-08

PEOPLE OF GUAM )

7 )

)

8 )

vs. ) DECISION AND ORDER ) (Defendant's Motion to Dismiss ) Indictment) )

SONGJA CHA, )

1 )

Defendant. )

2 )

1 -----------------------------)

INTRODUCTION

15 This matter came before the Honorable Anita A. Sukola November 8, 201 for J6 Defendant's Motion to Dismiss Indictment. Assistant Attorney General J. Werner 17

18 appeared on behalf of the People of Guam ("the People') Attorney F. Randall Cunliffe

19 represented Song Ja Cha ("DefendanC). The Court took the matter Upon

20 review of the evidence, \VTitten and oral arguments, and legal authorities presented by both 21 parties, the Court hereby issues this Decision and Order DENYING Motion to

Dismiss Indictment.

BACKGROUND

On January 2008, Defendant was indicted by a Grand Jury in the Superior Court of

Guam in CF0020-08. The indictment charged the following: (1) Compelling Prostitution (as a rd

3rd Degree Felony) (2 counts) (2) Promoting Prostitution (as a 3 Degree Felony) (3) Promoting 8

People 08) Notion

rd

Prostitution (as a 3 rd Degree Felony) (7 counts) (4) Aggravated Assault (as a 3 Degree Felony)

1 rd

2 (2 counts) (5) Assault (as a Misdemeanor) and (6) Felonious Restraint (as a 3 Degree Felony)

3 (7 counts). Indictment (Jan. 22, 2008). 4 During the pendency of the instant casc, federal charges were also filed against

Defendant in the District Court of Guam. Defendant was charged with the following:

6 Conspiracy (Count I); Sex Trafficking (Counts II trough X); Coercion & Enticement For 7

8 Purpose of Prostitution (Counts XI through XX) and Forfeiture Allegation (Count XXI). U.S.

9 Dis!. Ct. of Guam Superseding Indictment (Jul. 23, 2008). Defendant was subsequently o convicted on counts 1 through 20 in the District Court of Guam. U.S. Dis!. Ct. of Guam 11 Judgment in Criminal Case (Sept. 24, 2012)

2

On August 1, 2011, at the request of the People, the following charges against

4 Ddendant were dismissed by this Court without prejudice: 2 Counts of Compelling Prostitution rd

1 (as a 3rd Degree Felony), in the First Charge of the Indictment; Promoting Prostitution (as a 3 16 rd Degree Felony), in the Second Charge; and Seven Counts of Promoting Prostitution (as a 3 17 Degree Felony), in the Third Charge. Mot. & Order to Dismiss Without Prejudice (Aug. 3,

19 2011).

20 On September 27. 201 this Court issued its scheduling order, setting jury selection and

2 trial for November 21,2012 at 1:30 p.m., and ordering that all motions be filed by October 1 2 201 201 On ~/Vl."t!", 11, Defendant filed a Motion to 3 Dismiss Indictment. The People filed their to Ddendant's Motion to Dismiss on 24

October 19,201 The Court heard the matter on November 8,201 took it under advisement,

and now issues this Decision and Order.

/II

People v. Ja Cha (CF0020-08) Motion Dismiss Inidictment

DISCUSSION

1

2 Defendant moves the Court to dismiss the Indictment arguing that the Court is barred

3 from proceeding with trial in this matter pursuant to 9 GCA § 1.28 (a). Defs. Memo of Law in 4 Support of Mot. to Dismiss Indictment (Oct. 11, 2012). Defendant contends that this case

should be dismissed because she was "previously charged and tried in the District Court of

Guam for Conspiracy to Commit Sex Trafficking, Sex Trafficking and Foreign Transportation

8 for Prostitution based upon the same conduct for which she is charged in this case." Id. The

9 People oppose Defendant's motion and argue that the elements of the federal and Guam charges 10 are not identical, inter alia. People's Response to Defs. Mot. to Dismiss (Oct. 19,2012).

11 The Court recognizes that "[t]he Bill of Rights of the Organic Act of Guam provides that 12 '[n]o person shall be subject for the same offense to be twice put in jeopardy of punishment.. .. '

48 U.S.c. § 1421b(d) (West 2008). Section 1421b(u) of the Organic Act of Guam similarly

extends the Fifth Amendment's Double Jeopardy Clause to Guam. 48 U.S.C. § 1421b(u) (West

2008). The Double Jeopardy Clause protects against three distinct abuses: a second prosecution 17 for the same offense aller acquittal; a second prosecution for the same offense aller conviction;

8

1 and multiple crimmal punishments for the same offense. People v. Torres, 2008 Guam

o 16. Since Defendant was convicted in the District Court of Guam, the second reasoning is most 21 applicable. The issue now before this Com1 is whether Defendant's local charge is considered a

second same court.

specifically provides when there is a bar to prosecution relative to concurrent jurisdiction:

When conduct constitutes an ofTense within the concurrent jurisdiction of this Territory and of the United States or any state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Territory under the following circumstances:

(a) the first prosecution resulted in an acquittal or in a conviction as defined in § 1 and the subsequent prosecution is based on the same conduct, unless (1) the offense of which the defendant was formerly convicted or acquitted and the 1 offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil or (2) the offense for which the 3 defendant is subsequently prosecuted is intended to prevent a substantially more serious harm or evil than the offense of which he was formerly convicted or 4 acquitted or (3) the second offense was not consummated when the former trial began;

9 GCA § 1.28 (a) (2005).

The People do not dispute that the above statute, 9 GCA § 1.28 (a), is applicable to the

instant case. People's Response to Def's. Mot. to Dismiss at 2 (Oct. 19,2012). However, the 9

People only address the current charges against Defendant since they previously dismissed the o

11 counts of Compelling Prostitution and Promoting Prostitution. The remaining charges against

2 the Defendant are: (l) Aggravated Assault (as a 3rd Degree Felony) (2 counts) (2) Felonious

Restraint (as a Degree Felony) (7 counts) and (3) Assault (as a Misdemeanor). Indictment 4

5

Elements of Crimes as Charged in the Indictment

1 "For Aggravated Assault, the People must prove that the [D]efendant (1) recklessly 1 caused or attempted to cause (2) serious bodily injury to another. See 9 GCA § 19.20 (a)(2).

19 For Felonious Restraint, the elements are that the [D]efendant (1) knowingly (2) holds another 20 in a condition of involuntary servitude. See 9 GCA §§ 22.30(b) and 4.60. [Lastly,] [t]he

elements of misdemeanor Assault are that the [D ]efendant (1) recklessly caused or attempted to

cause (2) bodily injury to another. See 9 GCA §§19.30(a)(l) and (e)."

Defs. Mot. to Dismiss at 2 (Oct. 19,2012).

Defendant was convicted in the District Court of Guam of the following: Conspiracy

(Count 1); Sex Trafficking (Counts II trough X); and Coercion & Enticement For Purpose of

Prostitution (Counts XI through XX). With respect to the Conspiracy charge, a substantive

Song Ja Cha (CF0020-08) Dismi Inidictment crime and a conspiracy to commit that crime are not the "same offense" for the purposes of a

double jeopardy claim, even if based on the same incidents: The essence of the charge of

conspiracy is an agreement to commit a crime, hence the two prosecutions do not involve the

same conduct. United States v. Felix, 503 U.S. 378,112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). In

review of the federal charges, the Court agrees \vith the People that those charges Defendant 6 was convicted of do not allege bodily injury or involuntary servitude. These elements are 7

8 essential in the instant case relative to the charge of Aggravated Assault and Felonious

9 Restraint. The federal charges also require that the Defendant's conduct affects interstate or o foreign commerce. There is no parallel requirement for the remaining charges in this Court.

The Court also notes that most of the charges in the District Court of Guam arise under Title 18 12

}3 of the United States Code, other than the Compelling Prostitution statute provided for in 9 GCA

§ 28.30. Neither of these statutory schemes cite directly to the remaining charges in the instant I 1 case.

6 Defendant also argues that "successive prosecutions by federal and territorial courts are

impermissible because such courts are 'creations emanating from the same sovereignty.

18

19 United Slates v. Wheeler, 435 U.S. 313, 3] 8 (1978). The Court also recognizes that successive

20 prosecutions based on the same conduct are constitutional if brought by separate sovereigns,

the state and federal governments. United States v. Koon, 34 F.3d 1416, 1438 (9th Cir.1994)

(citing Heath v. 474 U.S. 82, 106 S.Ct. 433. 88 LEd.2d 387 (1985)); see

S'lates v. Guy, 903 F.2d 1240, 1242 (9th Cir.1990). To that end. the Ninth Circuit Court opined

in U,S. v. Sablan, a case originating from this Territory, that the factual issues underlying

federal charges are the same factual issues that formed the basis of lDefendant's] prior guilty

plea and conviction in territorial court. However. collateral estoppel does not preclude

Page

subsequent criminal prosecutions involving facts and issues previously litigated or admitted.

1

2 Rather, in criminal prosecutions, collateral estoppel only works to bar the government from

3 asserting facts or issues that are inconsistent with any determinations made in a previous action 4 between the same paIiies. US. v. Sablan, 302 Fed.Appx. 735, 737 C.A.9(Guam) 2008.

With different charges filed against the Defendant in the case at bar in comparison to the 6 Judgment entered in the District Court of Guam, this Court does not find that jeopardy has 7

8 previously attached. In view of this, there is no violation of 9 GCA § 1.28 (a) since the charges

9 are different. The remaining charges in the Indictment against Defendant stand. 10 CONCLUSION

11 By preponderance of the evidence and based on the foregoing reasons. the Court

DENIES Defendant's Motion to Dismiss Indictment. Jury selection is still set for November rd

4 21,2012 at 1:30 p.m. on the remaining charges of (1) Aggravated Assault (as a 3 Degree

15 Felony) (2 counts) (2) Felonious Restraint (as a 3rd Degree Felony) (7 counts) and (3) Assault 6 (as a Misdemeanor).

17 SO ORDERED this -I---F-_day of NOVEMBER, 2012.

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HONORABLE ANITA SUKOLA Judge, Superior Court of Guam

CS)