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I IN THE SUPERIOR COURT OF GUAM a. _1
2 CRIMINAL CASE NO. CFO133-09 J PEOPLE OF GUAM,
4 vs.
DECISION Ai\D ORDER
5 @efendant Benedette C. Santos's 6 HENRY C. FLORES et. al., Motion to Sever)
7 Defendants.
8
9 This matter came before the HONORABLE VERNON P. PEREZ on May 5,2009
10 Defendant Santos's Motion to Sever. Assistant Attorney General Jeffery Moots and Assi 11 Attorney General Clyde Lemons were present for the Prosecution Division. Attomey Joaquin I2 Arriola, Jr., was present with Defendant Benedette C. Santos. Also present were A 13
T4 Samuel S. Teker and Joshua D. Walsh with Defendant Raynold C. Alcantara and
15 Juan L.G. Diaz. Attorney Howard Trapp was present with Defendant Esmeralda A. Sabinay
I6 Attorney Thomas J. Fisher was present with Defendant Joaquin Q. Casfro. Attorney I7 Taimanao-Ayuyu was present with Defendant Vincent G. Perez. Attorney Lewis W. Li 18 was present with Defendant Henry C. Flores. Attorney Julie C. Rivera, representing 19
20 Luke Tonaichy, was also present. The Court took the motion under advisement. After
2I heard the parties' arguments, considering the parties' pleadings and the record, the Court 22 issues the following Decision and Order.
23 BACKGROT]]\D
24 On March 12,2009 Defendant Benedette C. Santos (hereinafter "Defendant Santos")
25
26 indicted, along with nine other co-defendants, with one charge of Conspiracy to Commit
27 Aggravated Assault (as a 2nd Degree Felony) in violation of 9 G.C.A. $$ 13.30 & 13.60 (a). 28 Four of the nine other co-defendants were also charged in the indicbnent with Aggravated
PeopTe v. FTores et. aJ Decision and Order (Defendant Benedette C. Santos's Motion to Sever) Criminal Case No. CFO133-09 -Pagelofll-
1 Assault (as a 2nd Degree Felony), in violation of 9 G.C.A. $$ 19.20 (aXl) and (b). The
2 indictment stems from the alleged assault of a teenage boy being held at the Dededo Precinct J the alleged conspiracy to cover up the assault. An arraignment was held on March 25,2009 4 where Defendant Santos asserted her right to a speedy trial.
5
6 On April 15,2009 Defendant Santos filed Defendant Santos's Motion to Sever
(hereinafter "Motion to Sever"). A hearing on the Motion to Sever was held on May 5,2009.
8 Although Prosecution failed to file an Opposition to Defendant Santos's Motion to Sever, the 9 Court permitted Prosecution to orally argue in opposition at the hearing. On May 5,2009 10 Prosecution filed People's Motion to File Opposition to Defendant Benedette Santos' Motion to 11
t2 Sever Out of Time and People's Opposition to Defendant Benedette Santos' Motion to Sever. At
IJ a Pretrial conference held on May 15, 2009,the Court heard arguments on People's Motion to
I4 File Opposition to Defendant Benedette Santos' Motion to Sever Out of Time and granted the 15 motion.
T6
T7 DISCUSSION
18 Section 55.35 of Title 8 of the Guam Code Annotated (G.C.A.), which mirrors Rule 8 of
I9 the Federal Rules of Criminal Procedure, governs joinder and provides in pertinent part: 20 S 55.35. Charging Multiple Offenses.
2l (a) Two (2) or more offenses maybe charged in the same indictment or 22 information in a separate count for each offense if the offenses charged are 23 of the same or similar character or are based on the same act or transaction or on two (2) or more acts or transactions corrected together or constituting 24 parts of a cornmon scheme or plan.
25 (b) Two (2) or more defendants may be charged in the same indictment 26 or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an 27 offense or offenses. Such defendants may be charged in one or more counts together or separately and all ofthe defendants need not be charged on each 28 count.
People v. Flores et. a7 Decision and Order (Defendant Benedette C. Santos's Motion to Sever) Criminal Case No. CF0l33-09 -Page2ofll-
8 G.C.A. $ 55.35. Section 55.35 permits the joinder of several defendants in the same indictment 2
J or information if they are alleged to have participated in the same act or transaction, or the same
4 series ofacts or transactions constituting an offense or offenses.
5 Section 65.30 of Title 8 of the Guam Code Annotated governing joinder of offenses 6 provides:
7
8 $ 65.30. Joinder of Offenses Encouraged.
9 (a) The court may order two or more indictments or information or both to be tried together if the offenses, and the defendants if there is more 10 than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single 11 indictment or information.
t2 (b) Except as otherwise provided by $ 65.35, a defendant shall not be 13 subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the I4 prosecuting attorney at the time of the commencement of the first trial.
l5 8 G.C.A. $ 65.30. Thus, section 65.30 encourages joint trials.
r6
t7 Case law also favors a joint trial when two ormore defendants have joint involvement in
18 committing a criminal offense. Zafiro v. United States, 506 U.S. 534,537 (1993) ("There is a
t9 preference in the federal system for joint trials of defendants who are indicted togethed', as joint 20 trials "promote efficiency and serve the interests ofjustice by avoiding the scandal and inequity 21 of inconsistent verdicts."). The United States Supreme Court has endorsed the notion that a joint 22
23 trial typically allows "the jury to obtain a more complete view of all the acts underlying the
24 charges than would be possible in separate trials" and thus'to arrive more reliably at its
25 conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the 26 respective responsibilities of each defendant in the sentencing." Buchanan v. Kentucky. 483 27
28 u.s.402,418 (1987).
PeopTe v. FTores et. al. Decision and Order (Defendant Benedette C. Santos's Motion to Sever) Criminal Case No. CF0l33-09 -Page3 ofll -
1 The preference for a joint trial is particularly strong where the charge is conspiracy.
2 United States v. Lewis. 557 F. 3d 601, 609 (Sth Cir. 2009) ("[P]ersons charged in a conspiracy J jointly indicted on similar evidence from the same or related events should be tried together.");
4 U.S. v. Fernandez. 388 F.3d 1199,1242 (9th Ctu. 2004) (setting forth that "[a] joint trial is 5
6 particularly appropriate where the co-defendants are charged with conspiracy, because the
concern for judicial efficiency is less likely to be outweighed by possible prejudice to the 8 defendants when much of the same evidence would be admissible against each of them in 9 separate trials."); U.S. v. Williams, 553 F. 3d 1073,1079 (7th Cir. 2009) (holding that "[a]
10 conspiracy charge combined with substantive counts arising out of that conspiracy is a proper 11
I2 basis for joinder of defendant's"); U.S. v. Miller. 549 F . Supp. 2d 1312, 1 3 I 8 (D. Kan., 2008)
13 (setting forth that "[i]n the context of conspiracy, severance will rarely, if ever be required, si t4 in a conspiracy case, joint trials reduce the chance that each defendant will try to create a 15 reasonable doubt by blaming an absent colleague and provide the jury the best perspective on all T6
T7 of the evidence and therefore increases the likelihood of a correct outcome."). Where conspiracy
18 is a dominant element and the Government must prove agreement among several co-defendants,
t9 joinder is presumed despite the fact that the evidence may show that some defendants were 20 "king)ins" and others were less active. $eg, United States v. Edelin. 118 F. Supp. 2d36,43 2T (D.D.C.2000).
22
23 In the Motion to Sever, Defendant Santos moves this Court to sever her jury trial from
24 her other nine co-defendants' jury hial. Defendant Santos cites to 8 G.C.A. $ 65.35 in support of 25 her motion. Section 65.35 of Title 8 of the Guam Code Annotated, which mirrors Rule l4(a) of 26 the Federal Rules of Criminal Procedure, governs severance and provides:
27
28
Peop)-e v. FTores et. aj Decision and Order (Defendant Benedette C. Santos's Motion to Sever) Criminal Case No. CF01 33-09 -Page4ofll-
1 If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the 2 court may order an election or separate trials of counts, grant a severance of defendants J provide whatever other relief justice requires.
4 8 G.C.A. $ 65.35.Thus, section 65.35 permits severance at the Courts' discretion only upon
5 showing of prejudice.
6 The United States Supreme Court has defined "prejudice" in this context to be a "serious 7 risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent 8
9 the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States. 506
10 U.S. 534, 537-539 (1993). The defendant must establish that a joint trial will result in compelli 11 prejudice, against which the trial court cannot protect so that a fair trial cannot be had. ld. at 537'
T2 538. Only in the event that prejudice appears to be compelling does severance become 13
wa:ranted. United States v. Perez. 489 F.2d 51,65 (5th Cir. 1973). The decision to sever I4 15 ultimately rests with the discretion of the court. See United States v. Throckmorton, 87 F.3d 16 1069,1071 (9th Cir.1996), cert. denied, 519 U.S. 1132,117 S. Ct. 993,136 L. Ed. 2d874 T7 (ree7).
18 In her Motion to Sever, Defendant Santos first contends that this Court should sever I9 20 because she will otherwise suffler undue prejudice if she is tried with her co-defendants.
2l Defendant Santos points out that Prosecution has presented testimony that she was in the vicinity
22 of where the alleged assault took place and was later instructed to deny having any knowledge o 23 what happened if questioned by law enforcement officers. Defendant Santos argues that a jury 24 would be unable to separate the acts that the co-defendants are accused of simply because she 25
26 was in the area.
27 The Court finds, as an initial matter, that Defendant Santos' claims of prejudice are 28 conclusory and without any factual support. In the Motion to Sever, Defendant Santos makes no
People v. FTores et. a7 Decision and Order (Defendant Benedette C. Santos's Motion to Sever) Criminal Case No. CF0l33-09 -Page5ofll-
I more than a conclusory statement that if severance is not granted, the jury will not be able to
2 make a reliable judgment as to her guilt or innocence. Conclusory statements are not enough for a this Court to grant a severance. When moving for severance, defendant bears a "heavy burden"
4 of showing prejudice. Seg, U.S. v. Nelson, 137 F.3d 1094,1108 (9th Cir. 1998); United States v.
5
6 Edelin, 118 F. Supp. 2d36,41 (D.D.C. 2000). ln her Motion to Sever, Defendant Santos has not
7 met this burden and fails to show any compelling prejudice that will result from the failure to 8 sever her trial from the other nine co-defendants' trial.
9 In the Motion to Sever, Defendant Santos directs the Court to the case of People v.
10 Aeustin. Criminal Case No. CF0l20-06, Decision and Order on Motion to Sever and 11
I2 Government's Motion to Grant Immunity (October 5, 2006). Defendant Santos points out that
l3 this Court's inquiry as to prejudice needs to focus on whether the jury can reasonably be I4 expected to comparhnentalize the evidence as it relates to separate defendants in light of its 15 volume and limited admissibility. No other factual support is set forth in the Motion to Sever.
I6 t7 The Court finds that Defendant Santos fails to make the necessary showing for
18 to the extent suggested in her motion, that she will suffer prejudice because joinder would
19 confuse the jury, whether through guilt by association or commingling of evidence. The risk of 20 guilt by association does not create a need to sever because "it is well settled that defendants are 2l not entitled to severance merely because they may have a better chance of acquittal in separate 22
23 trials." U.S. v. Cisneros,26F. Supp. 2d13,19-20 (D.D.C. 1998) (quoting Zafiro,506 U.S. at
24 540); See also United States v. Reavis, 48 F.3d 763,767 (4thCir.1995) ("The partymoving for 25 severance must establish that actual prejudice would result from a joint trial and not merely that 26 'a separate trial would offer better chance of acquittal.' ") As a consequence, Defendant Santos'
27
28
People v. FTores et. aJ Decision and Order (Defendant Benedette C. Santos's Motion to Sever) Criminal Case No. CF0133-09 -Page6ofll -
supposed concerns about guilt by association do not supply the grounds necossary for severance I I
2 in this case.
J Nor does Defendant Santos' suggestion that the jury will be unable to compartmentalize 4 the evidence, as it relates to each defendant, supply this Court with the grounds necessary for a 5
6 severance in this case. Defendant Santos' argument is not clear as to what exactly the jury will
7 be unable to compartmentalizein this case. The Court assumes that Defendant Santos's position
8 is based on an argument that the jury would be unable to compartrmentalize the evidence because 9 there is more evidence of the other co-defendants' guilt than of her own guilt. Severance is never 10 warranted simply because the evidence against one defendant is more damaging than that against 11
t2 another, even if the likelihood of the latter's acquittal is thereby decreased. U.S. v. Hively,437
13 F.3d752,765 (Sth Cir. 2006). Nor is the preference for joint hials by defendant's jointly t4 indicted, particularly where conspiracy is charged, limited by any requirement that the quantum 15 of evidence of each defendant's culpabilitybe equal. U.S. v. Lewis. 557 F.3d 601, 610 (8th Cir.
L6
t7 2009). "Severance is not appropriate merely because some co-conspirators were more active in
18 the conspiracy, nor because some co-conspirators played a more central role." $Cg, United States
T9 v. Edelin. 118 F. Supp. 2d36,43 (D.D.C. 2000).
20 Moreover, the supposed risk associated with commingled evidence assumes that a 2I defendant and his codefendants have mutually antagonistic defenses. "To be entitled to 22
23 severance on the basis of mutually antagonistic defenses, a defendant must show that the core of
24 the codefendant's defense is so irreconcilable with the core of his own defense that the 25 acceptance of the codefendant's theory by the jury precludes acquittal of the defendant."
26 Throckmorton, 87 F.3d at 7072 (citing United States v. Sher1ock,962F.2d 1349, 1363 (9th Cir.
27 1989), cert. denied sub nom. Charley v. United States, 506 U.S. 958, 113 S. Ct. 419,l2l 28
PeopTe v. FTores et. al Decision and Order (Defendant Benedette C. Santos's Motion to Sever) Criminal Case No. CFO133-09 -PageTofll-
1 L. Ed. 2d342 (lgg2)). Defendant Santos has made no such showing in her Motion to Sever and 2 therefore is not entitled to severance on these grounds.
J Finally, this Court may provide such instructions and clarification as are necessary in 4 order to ensure that the jurors understand the task assigned to them attial. See, U.S. v. Nelson.
5
6 137 F.3d 7094,1108 (9th Cir. 1998); U.S. v. Fernandez. 388 F. 3d 1199,1243 (9thCit.2004)
7 (holding that a court's careful and frequent limiting instructions to the jury, explaining how and
against whom certain evidence may be considered, can reduce or eliminate any possibility of 8
9 prejudice arising from a joint trial.). Defendant Santos has not shown in her Motion to Sever that 10 an instruction(s) to the jury from the Court would not cure any potential prejudice. Zafito v.
11
T2 U.S., 506 U.S. at 540-541, (explaining that limiting instructions to the jury will often suffice to
13 cure any risk of prejudice). Since jurors are presumed to follow the court's instructions, this t4 Court finds that a limiting instruction in this case will surely suffice to cure any potential 15 prejudice. Thus, the risk ofjury confusion does not provide Defendant Santos with grounds for 16
1,7 severance.
18 Defendant Santos also moves this Court to sever her from the co-defendants in this
19 in order to provide her with a speedy ftial as required under 8 G.C.A. $ 80.60 (3). In support of 20 this position, Defendant Santos points out in her Motion to Sever that one of her co-defendants 2l has filed an interlocutory appeal of this Court's decision on a Motion to Quash. The Court would 22
23 point out that the interlocutory appeal was denied by the Supreme Court of Guam onMay 26,
24 2009. gee, People of Guarn v. Casfro. Supreme Court Case No: CRA9-004, Order (May 26,
25 2009\. The interlocutory appeal no longer is an impingement on Defendant Santos's right to a 26 speedy trial.
27
28
PeopTe v. FTores et. a7 Decision and Order (Defendant Benedette C. Santos's Motion to Sever) Criminal Case No. CFO I 33-09 -Page8ofll-
1 Notwithstanding the denial of the interlocutory appeal, the Court finds that Defendant
2 Santos would still not be entitled to a severance based upon her assertion of her right to a speedy J trial. U.S. v. Varella. 692F.2d 1352 (llth Cir. l9S2) involved three criminal defendant's who 4 were charged with conspiracy to distribute and import marijuana, possession with intent to 5
6 distribute marijuana, and importation of marijuana. One co-defendant claimed that his stafutory
right to a speedy trial was impaired by the four month delay occasioned by joinder of his co-
8 defendants, some of whom had pending pretial motions. Specifically, this co-defendant argued 9 that the lower court erred in denying his motions for severance to allow his trial to proceed more 10 speedily. In upholding the lower court, the Eleventh Circuit Court of Appeals held that:
11
T2 The primary purpose of the Speedy Trial Act is to accelerate criminal hials. Congress recognized the utility of multi-defendant trials to effectuate the prompt efficient 13 disposition of criminal justice. It felt that the efficiency and economy ofjoint trials far outweighed the desirability of granting a severance where the criterion was simply the I4 par*agJ of time. Proposed Amendments to the Ervin Bill: Hearings on S. 895, 92nd l5 -ong., lst Sess. (1971) (letter to Senator Ervin from Assistant Attorney General William H. Rehnquist). Congress feared that rigid statutory time limits would force courts to r6 disregard the principle of 'Judicial efficiency;" courts would be forced to "grant severances unnecessarily in multi-defendant cases 'so that a defendant whose case was I7 moving slowly would not hold up the trial of his codefendants.' " S.Rqr.No. 93-1021, 18 93rd Cong., 2d Sess. (1974). "In multiple defendant cases, such as major narcotic conspiracies, judges may be forced to grant sev€rances which would otherwise not be 1,9 required. This in tum would lead to more trials and more congestion." Hearings on the 20 1972 Senate Subcommittee Bill, S. 754,93rd Cong., lst Sess. (1972) (Testimony of Deputy Attorney General Joseph T. Sneed). Thus, reasonable delay in multi-defendant 2l cases was specifically provided for by 13 U.S.C. $ 3161ftX7). Congress stressed that "the purpose of the provision is to make sure that [the Speedy Trial Act] does not alter 22 the present rules on severance of codefendants by forcing the [g]ovemment to prosecute 23 the first defendant separately or to be subject to a speedy trial dismissal motion under section 3162." S.Rep.No. 93-1021,93rd Cong., 2nd Sess. (1974). The express 24 exclusionary command of $ 3l6lftXl and the congressional guidance gleaned from its legislative history refutes the appellant's contention that the district court abused its 25 discretion in denying his motions for severance. The appellant's statutory right to a 26 speedy trial was not violated by the four-month pretrial delay.
27 Id. at 1359. 28
People v. FLores et. a7 Decision and Order (Defendant Benedette C. Santos's Motion to Swer) Criminal Case No. CF0l33-09 -Page9ofll -
1 Based upon the holding in Varella. Defendant Santos is not entitled to a severance where her
2 criterion is simply the passage of time.
a .)
More importantly though is that Defendant Santos herself is responsible for the present 4 delay in bringing this matter to trial. Defendant Santos tolled the speedy trial time clock by the 5
6 filing on April 15, 2009 of her pretrial Motion to Dismiss for Lack of Sufficient Evidence and
7 the present Motion to Sever. The Supreme Court of Guam, relying upon the provision of the 8 Speedy Trial Act found in 18 U.S.C. $ 3161(h)(l)(F), has pointed out that the filing of pre-frial 9 motions qualifies as a good cause excuse to commence trial within speedy trial guidelines under 10 8 G.C.A. g 80.60 (3). See. Nicholson v. Superior Court of Guam. 2007 Guam 9 (citing to People 11
t2 v.Ibanez,DCA 91-0001A, 1992WL97221 at*2 (D. Guam App. Div. 1992)). Consequently,
13 this Court finds that Defendant Santos's assertions regarding speedy trial do not supply the I4 grounds for severance.
15 Lastly, the Court finds that severing Defendant Santos' trial from the other nine cot 6 I7 defendants in this case will not serve the interests ofjustice or prompt the efficient resolution of
18 this case. Instead, it will squander scarce judicial resources and could lead to inconsistent
19 judgments. S9g, Johnson v. Tennis. 549 F. 3d296,302 (3rd Cir. 2008) (holding that the "[p]ubli 20 interest in judicial economy favors joint trials where the same evidence would otherwise be 2l presented at separate trials of defendants charged with a single conspiracy."); Buchanan v.
22
23 Kentucky, 483 U.S. 402,418-419 (1987) (holding that joint trials are preferred in order to
24 preserve judicial resources, produce consistent verdicts and minimizethe burden on jurors,
25 witnesses, defendants, and attorneys.)
26 The Court finds that joinder is appropriate here because this is a conspiracy case that 27 involves questions of law and fact common to all ten Defendants. To prove the charges, 28
PeopTe v. FTores et. a7 Decision and Order (Defendant Benedette C. Santos's Motion to Swer) Criminal Case No. CF0133-09 - Page l0ofll -
1 Prosecution will have to put on the same witnesses to give the same testimony and will have to
2 present the same evidence. Documentation relevant to one Defendant will, at least to some J extent, be relevant to the other nine defendants. The witnesses that Prosecution will be calling 4 against each Defendant individually can also be called to testifu against the other Defendants 5
6 about the same events that occurred. If the Court were to grant the Motion to Sever, Prosecution
7 would have to prove the same set of facts on two occasions in two different courtrooms.
Granting the Motion to Sever will compromise judicial economybecause this Court will 8
9 have to conduct multiple trials involving the same issues and the same facts. The Court will not t0 do that. When interests ofjudicial economy are weighed, the charges and defendants are linked 11
t2 by an alleged overarching conspiracy, and there is no finding of prejudice, concerns ofjudicial
13 economy will mandate a joint triat. See. U.S. v. Fernandez. 388 F.3d at 1242; United States v. I4 Vaccaro. 816 F.2d 443 (gthCir. 1987), cert. denied,484 U.S. 928 (1987), abrogated on other 15 grounds, Huddleston v. United States. 485 U.S. 681 (1983); United States v. Lewis, 557 F.3d at 16
t7 609-610.
18 CONCLUSION 19 For the foregoing reasons, Defendant Benedette C. Santos's Motion to Sever is hereby 20 DENIED.
2I 22 So oRDERED this auy ot 19 June,2009.
23 ldo hereby certifi that the bregpitxg 24 isi futt true and correct copy ofthe oriqinal on file in the offre of the
cle-rk of the Super'or Court of Guam HONORABLE VERNON P. PEREZ 25 DatedatHagatna,Guam in JUDGE. SUPERIOR COURT OF GUAM 26 iiiiL n iuuE UUi\ L:_2O.-
'
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28 ffi
PeopTe v. FLores et. a7 Decision and Order (Defendant Benedette C. Santos's Motion to Sever) Criminal Case No. CF0133-09 -Pagellofll-