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1 IN THE SUPERIOR COURT OF GUAM .1, \
2 ) CRIMINAL CASE NO. CF0133-09 '
J PEOPLE OF GUAM, )
4 vs.
DECISION AND ORDER
5 @efendant Joaquin Q. Castro'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 Joaquin Q. Castro's Motion to Sever. Assistant Attorney General Jeffery Moots 11 Assistant Attorney General Clyde Lemons were present for the Prosecution Division.
I2 Thomas J. Fisher was present with Defendant Joaquin Q. Casfo. Also present were 13
t4 Samuel S.Teker and Joshua D. Walsh with Defendant Raynold C. Alcantara and Defendant J
15 L.G. Diaz. Attorney Howard Trapp was present with Defendant Esmeralda A. Sabinay. A t6 Joaquin C. Arriola, Jr., was present with Defendant Benedette C. Santos. Attorney t7 Taimanao-Ayuyu was present with Defendant Vincent G. Perez. Attorney Lewis W.
18 was present with Defendant Henry C. Flores. Attorney Julie C. Rivera, representing T9
20 Luke Tonaichy, was also present. The Court took the motion under advisement. After
2l heard the parties' arguments, considering the parties' pleadings and the record, the Court no
22 issues the following Decision and Order.
23 BACKGROTIND
24 On March 12,2009 Defendant Joaquin Q. Castro (hereinafter "Defendant Castro') was 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. $$ 13.30 & 13.60 (a). 28 Defendant Castro, along with three of the nine other co-defendants, was also charged in the
PeopTe v. FTores et. al Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l33-09 - Page I ofll -
I indictment with the substantive offense of Aggravated Assault (as a 2nd Degree Felony), in
2 violation of 9 G.C.A. $$ 19.20 (a)(l) and (b). The indictment stems from the alleged assault of a J teenage boy being held at the Dededo Precinct and the alleged conspiracy to cover up the assaul 4 An arraignment was held on March 25,2009 where Defendant Castro asserted his right to a 5
6 speedy trial.
7 On April 16,2009 Defendant Castro filed aNotice of Motion and Motion to Sever
8 (hereinafter "Motion to Sever"). On April 23,z}}9,Prosecution filed People's Opposition to 9 Defendant Joaquin Castro's Motion to Sever (hereinafter "Opposition"). A hearing on the 10 Motion to Sever was held on May 5,2009. At the May 5, 2009 hearing, Defendant Castro 11
t2 waived his right to a speedy hial.
13 DISCUSSION l4 Section 55.35 of Title 8 of the Guam Code Annotated (G.C.A.), which mirrors Rule 8 of 15 the Federal Rules of Criminal Procedure, govems joinder and provides in pertinent part:
I6 t7 S 55.35. Charging Multiple Offenses.
18 (a) Two (2) or more offenses maybe charged in the same indictment or information in a separate count for each offense if the offenses charged are 19 of the same or similar character or are based on the same act or transaction 20 or on two (2) or more acts or tansactions corrected together or constituting parts of a common scheme or plan.
2l (b) Two (2) or more defendants maybe charged in the same indictrnent 22 or information if they are alleged to have participated in the same act or 23 transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts 24 together or sqlarately and all of the defendants need not be charged on each count.
25
26 8 G.C.A. $ 55.35. Section 55.35 permits the joinder of several defendants in the same indictnent
27 or information if they are alleged to have participated in the same act or transaction, or the same 28 series ofacts or transactions constituting an oflense or offenses.
PeopTe v. FTores et. aJ Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l33-09 -Page2ofll -
1 Section 65.30 of Title 8 of the Guam Code Annotated governing joinder of offenses
2 provides:
J $ 65.30. Joinder of Offenses Encouraged.
4 (a) The court may order two or more indicfinents or information or 5 both to be tried together if the offenses, and the defendants if there is more 6 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 7 indictment or information. 8 (b) Except as otherwise provided by $ 65.35, a defendant shall not be 9 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 10 prosecuting attorney at the time of the commencement of the first trial. 11 8 G.C.A. $ 65.30. Thus, section 65.30 encourages joint trials.
I2 Case law also favors a joint trial when two or more defendants have joint involvement in 13
committing a criminal offense. Zafiro v. United States, 506 U.S. 534,537 (1993) ("There is a l4 15 preference in the federal system for joint trials of defendants who are indicted together", as joint
16 trials "promote efficiency and serve the interests ofjustice by avoiding the scandal and inequity t7 of inconsistent verdicts."). The United States Supreme Court has endorsed the notion that a joint 18 trial typically allows "the jury to obtain a more complete view of all the acts underlying the 19
20 charges than would be possible in separate trials" and thus "to arrive more reliably at its
2T conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the
22 respective responsibilities of each defendant in the sentencing." Buchanan v. Kentucky. 483 23 u.s. 402,418 (1987).
24 The preference for a joint trial is particularly strong where the charge is conspiracy.
25
26 United States v. Lewis. 557 F. 3d 601, 609 (8th Cir. 2009) ("[P]ersons charged in a conspiracy
27 jointly indicted on similar evidence from the same or related events should be tried together."); 28 U.S. v. Fernandez. 388 F.3d 1199,1242 (9tJ1,Cir. 2004) (setting forth that "[a] joint trial is
People v. FTores et. a7 Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l33-09 -Page3ofll-
I particularly appropriate where the co-defendants are charged with conspitacy, because the 2 concern for judicial efficiency is less likely to be outweighed by possible prejudice to the J defendants when much of the same evidence would be admissible against each of them in 4 separate trials."); U.S. v. Williams, 553 F. 3d 1073, 1079 (7th Cir. 2009) (holding that "[a]
5
6 conspiracy charge combined with substantive counts arising out of that conspiracy is a proper
basis for joinder of defendant's"); U.S. v. Miller. 549F. Supp. 2d1312,1318 (D. Kan., 2008)
8 (setting forth that "[i]n the context of conspiracy, severance will rarely, if ever be required, since, 9 in a conspiracy case, joint trials reduce the chance that each defendant will try to create a 10 reasonable doubt by blaming an absent colleague and provide the jury the best perspective on all 11
t2 of the evidence and therefore increases the likelihood of a correct outcome."). Where conspiracy
13 is a dominant element and the Government must prove agreement among several co-defendants, 14 joinder is presumed despite the fact that the evidence may show that some defendants were t5 "kingpins" and others were less active. See. U.S. v. Edelin. 118 F. Supp. 2d36,43 (D.D.C.
I6 t7 2000).
18 In the Motion to Sever, Defendant Casfio moves this Court to sever his jury trial from his
I9 other nine co-defendants' jury tial. Deferldant Casto cites to 8 G.C.A. $ 65.35 in support of his 20 motion. Section 65.35 of Title 8 of the Guam Code Annotated, which mirrors Rule 14(a) of the 2l Federal Rules of Criminal Procedure, governs severance and provides:
22
23 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 24 court may order an election or separate trials of counts, grant a severance of defendants provide whatever other relief justice requires.
25
26 8 G.C.A. $ 65.35.Thus, section 65.35 permits severance at the Courts' discretion only upon a
27 showing of prejudice. 28
People v. FTores et. a.l Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l33-09 -Page4ofll -
1 The United States Supreme Court has defined "prejudice" in this context to be a "serious
2 risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent J the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 4 U.S. 534, 537-539 (1993). The defendant must establish that a joint trial will result in compelli 5
6 prejudice, against which the trial court cannot protect so that a fair tial cannot be had. Id. a|537-
538. Only in the event that prejudice appears to be compelling does severance become 8 wa:ranted. United States v. Perez. 489 F.2d 51, 65 (5th Cir. t973). The decision to sever 9 ultimately rests with the discretion of the court. See United States v. Throckmorton, 87 F.3d 10 1069,lOTl (9th Cir. 1996), cert. denied, 519 U.S. 1132, 117 S. Ct. 993, 136 L. Ed. 2d 874 11
T2 (ree7).
13 In his Motion to Sever, Defendant Castro concludes that this Court should sever because l4 he will be prejudiced if forced to go to trial with his co-defendants. Defendant Castro points out 15 that he is alleged to have committed an assault with three others and to have conspired with nine 16
t7 others to accomplish the assault. Defendant Casfo argues that there is a clear danger that the j 18 will use evidence of conspiracy against others to determine that Castro is guilty of the t9 substantive offense of assault. Defendant Castro asserts that a limiting jury instruction will be 20 insufficient to cure a juror's natural inclination to assume Castro's guilt by virtue of his presence 2I at the scene. Defendant Castro also suggests that the complexity inherent in a trial of ten 22
23 individuals based upon a voluminous, overlapping, evidentiary record strongly militates toward
24 separate trials.
25 The Court finds, as an initial matter, that Defendant Castro's claims of prejudice are 26 conclusory and without any facfual support. In the Motion to Sever, Defendant Casfo makes no 27 more than a conclusory statement that if severance is not granted, the jury will not be able to 28
People v. FTores et. a7 Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l33-09 -Page5 ofll -
I make a reliable judgment as to his guilt or innocence. Conclusory statements are not enough for
2 this Court to grant a severance. When moving for severance, defendant bears a "heavy burden"
J of showing prejudice. Sgg U.S. v. Nelson, 137 F.3d 1094,1108 (9th Cir. 1998); U.S. v. Edelin, 4 118 F. Supp. 2d36,41 (D.D.C. 2000). Broad and general allegations of prejudice are 5
6 insufficient. Defendant Castro must demonstrate that ajoint trial will impinge on a fundamental
7 trial right or compromise the proceeding in a tangible way. Sgg, U. S. v. Escalante. 637 F.2d 8 ll97,l20l (9th Cir. 1980). Defendant Castro has the burden to show that the joint trial would be 9 so prejudicial that this Court should exercise its' discretion in only one way, severance. In his 10 Motion to Sever, Defendant Castro has not met this burden and fails to show any manifest 11
I2 prejudice or any substantial "spillover effecf'ofbeing tried with his nine other co-defendants.
13 In the Motion to Sever, Defendant Castro points out that this Court's inquiry as to T4 prejudice needs to focus on whether the jury can reasonably be expected to comparbnentalize l5 evidence which only applies to one co-defendant, and not the other. Defendant Casfro points out l6 t7 that there is a clear danger that the jury will use evidence of conspiracy against others to
18 determine that Castro is guilty of the substantive offense of assault. No other factual support is
19 set forth in the Motion to Sever.
20 The Court finds that Defendant Castro fails to make the necessary showing for severance 2I to the extent that he suggests in his motion that he will suffer prejudice because joinder would 22
23 confuse the jury, whether through guilt by association or commingling of evidence. The risk of
24 guilt by association does not create a need to sever because "it is well settled that defendants are 25 not entitled to severance merely because they may have a better chance of acquittal in separate 26 trials." U.S. v. Cisneros,26F. Supp. 2d,13,79-20 (D.D.C. 1998) (quoting Zafto,506 U.S. at 27 540); See also United States v. Reavis, 48 F.3d 763,767 (4th Cir. 1995) ("The party moving for 28
People v. Flores et. a7 Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l 33-09 -Page6ofll -
I severance must establish that actual prejudice would result from a joint trial and not merely that
2 oa separate trial would offer better chance of acquittal.' ") As a consequence, Defendant Castro's J supposed concems about guilt by association do not supply the grounds necessary for severance 4 in this case.
5
6 Nor does Defendant Casho's suggestion that the jury will not be able to
7 comparhnentalizethe evidence, as it relates to each defendant, supply this Court with the 8 grounds necessary for a severance in this case. Defendant Castro's argument is not clear as to 9 what exactly the jury will be unable to compartmentalize in this case. The Court assumes that 10 Defendant Casho's position is based on an argument that the jury would be unable to l1
t2 comparbnentalizethe evidence because there is more evidence of the other co-defendants' guilt
13 than of his own guilt. Severance is never warranted simply because the evidence against one t4 defendant is more damaging than that against another, even if the likelihood of the latter's 15 acquittal is thereby decreased. U.S. v. Hivelv. 437 F.3d752,765 (8th Cir. 2006). Nor is the l6 17 preference for joint trials by defendant's jointly indicted, particularly where conspiracy is
18 charged, limited by any requirement that the quantum of evidence of each defendant's culpabili
T9 be equal. U.S. v. Lewis" 557 F.3d 601, 610 (8th Cir. 2009). Severance is not appropriate merely 20 because some co-conspirators were more active in the conspiracy, nor because some co-
2l conspirators played a more central role." Seg, U.S. v. Edelin. 118 F. Supp. 2d36,43 (D.D.C.
22
23 2000).
24 Moreover, the supposed risk associated with commingled evidence assumes that a 25 defendant and his codefendants have mutually antagonistic defenses. "To be entitled to 26 severance on the basis of mutually antagonistic defenses, a defendant must show that the core of 27 the codefendant's defense is so irreconcilable with the core of his own defense that the 28
People v. FTores et. aI Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l33-09 -PageTofll -
1 acceptance of the codefendant's theory by the jury precludes acquittal of the defendant."
2 Throckmorton, 87 F.3d at 1072 (citing United States v. Sherlock,962F.2d 1349,1363 (9th Cir.
3 1989), cert. denied sub nom. Chadey v. United States, 506 U.S. 958, 113 S. Ct. 419,121 4 L. Ed. 2d342 (1992)). Defendant Castro has made no such showing in his Motion to Sever and 5
6 therefore is not entitled to severance on these gounds.
7 Finally, the risk of prejudice posed by joint trials can be cured byproper jury
See, Zafiro v. U.S., 506 U.S. at 540-541, (explaining that limiting instructions to the jury will 8
9 often suffice to cure any risk of prejudice); U.S. v. Femandez. 388 F. 3d 1199,1243 (9rhCir.
10 2004) (holding that a court's careful and frequent limiting instructions to the jury, explaining 11
t2 how and against whom certain evidence maybe considered, can reduce or eliminate any
i3 possibility of prejudice arising from a joint trial.). In particular, a defendant seeking severance t4 based on the 'spillover' effect of evidence admitted against co-defendants must demonstrate the 15 insufficiency of limiting instructions given by the judge. See. U.S. v. Nelson. 137 F.3d 1094, t6 T7 1108 (9th Cir. 1998) (holding that the 'spillover' effect can be rendered non-prejudicial through
18 limiting instructions to the jwy); U.S. v. Joetzki. 952F.2d 1090, 1094 (9th Ctu. 1991). I9 Defendant Castro, in his Motion to Sever, merely concludes that a limiting jury 20 instruction will be insufficient to cure a juror's natural inclination to assume Castro's guilt by 2l virtue of his presence at the scene. Defendant Castro is not entitled to a severance based on his 22
23 speculation that the jury will be unable to follow the Court's instructions. See. U.S. v. Escalante.
24 637 F. 2d 1197,1201 (9th Cir. 1980). Since jurors are presumed to follow the court's
25 instructions, this Court finds that limiting instruction(s) in this case will surely suffice to cure 26 potential prejudice.
27
28
People v. Flores et. aI Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l33-09 -Page8ofll-
I In his Motion to Sever, Defendant Castro also suggests that the complexity inherent in a
2 trial of ten individuals based upon a voluminous, overlapping, evidentiary record strongly J militates toward separate trials. Contrary to the suggestions made by Defendant Castro, the 4 finds that this case actually militates towards a joint trial. See. U.S. v. Farris. 614F.2d 634,642-
5
6 643 (gthCir. 1979) (holding that the possibility of prejudice in a joint trial of trventy-three (23)
7 defendants, all charged with violations of an antifraud provision of the Securities Exchange Act, 8 was outweighed by the complexity of the case...had there been twenty-three (23) separate frials, 9 it would have required twenty-three (23) separate presentations of the entire fraudulent scheme, 10
11 totwenty-three(23)differentfindersoffact);U.S.v.Morrow.537F.2dl20,135-136(5thCir'
t2 1976\ (holding that the trial court properly denied various motions for severance that were
13 brought on the theory that the complexity of the case would prevent the jury from rationally t4 assigning guilt on an individual basis in a case involving twenty-three (23) defendants, all 15 charged in a single conspiracy count, with only certain defendant's charged with nine substanti 16
T7 counts in connection with the conspiracy charge.)
18 The present case involves only two charges, one charge of Conspiracy to Commit
t9 Aggravated Assault and one charge of Aggravated Assault. Al1ten defendants are named in the 20 conspiracy count that lies at the heart of this prosecution. Although the jury may have to 2I a tremendous amount of evidence, the nature of the evidence and the legal concepts involved in 22
23 the case are not extraordinarily difficult. Much, if not all of the evidence that will be intoduced
24 ultimately bears at least indirectly on the agreement of the co-conspirators. The same evidence 25 will be admissible against all co-defendant's shown to be members of the conspiracy. Given this 26 state of affairs, the interest in judicial economy understandably exerts strong pressure in favor of 27 a joint trial. See. U.S. v. Morrow. 537 F.2d 120,136 (5th Cir. 1976); U.S. v. Castro. 887 F.2d 28
People v. FTores et. aL Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l33-09 -Page9ofll -
I 988, 998 (9th Cir. 1989) (holding that the co-defendants in a trial involving fraud were not
2 entitled to sever trials based on complexity of issues, where the evidence generally applied to a J both defendants.)
4 Moreso, this Court finds that severing Defendant Castro's trial from the other nine co-
5
6 defendants in this case will not serve the interests ofjustice or prompt the efficient resolution of
7 this case. Instead, it will squander scarce judicial resources and could lead to inconsistent 8 judgments. Sg9, Johnson v. Tennis. 549 F . 3d 296,302 (3rd Cir. 2008) (holding that the "[p]ubli 9 interest in judicial economy favors joint tials where the same evidence would otherwise be l0 presented at separate trials of defendants charged with a single conspiracy."); Buchanan v.
11
12 Kentucky, 483 U.S. 402,418-419 (19S7) (holding that joint trials are preferred in order to
13 preserve judicial resources, produce consistent verdicts and minimizethe burden on jurors, T4 witnesses, defendants, and attorneys.)
15 The Court finds that joinder is appropriate here because this is a conspiracy case that 16
t7 involves questions of law and fact common to all ten Defendants. To prove the charges,
18 Prosecution will have to put on the same witnesses to give the same testimony and will have to
19 present the same evidence. Documentation relevant to one Defendant will, at least to some 20 extent, be relevant to the other nine defendants. The witnesses that Prosecution will be calling 2T against each Defendant individually can also be called to testi$ against the other Defendants 22
23 about the same events that occurred. If the Court were to grant the Motion to Sever, Prosecution
24 would have to prove the same set of facts on two occasions in two different courtrooms. 25 Granting the Motion to Sever will compromise judicial economy because this Court will 26 have to conduct multiple trials involving the same issues and the same facts. It would impair 27 both the efficiency and the fairness of the criminal justice system to require Prosecution to bring 28
PeopTe v. FTores et. al Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CF0l33-09 -Pagel0ofll-
1 separate proceedings, presenting the same evidence again and again, requiring victims and
2 witnesses to repeat the inconvenience (and sometimes trauma) of testiffing, and randomly 3 favoring the last-tried defendants who have the advantage of knowing the prosecution's case 4 beforehand. Richardson v. Marsh. 481 U.S. 200,209-210 (1937). The Court will not do that.
) 6 When interests ofjudicial economy are weighed, the charges and defendants are linked by an
7 alleged overarching conspiracy, and there is no finding of prejudice, concerns ofjudicial 8 economy will mandate a joint trial. See. U.S. v. Fernandez. 388 F.3d at 1242; United States v.
9 Vaccaro. 816 F.2d 443 (gthCir. 1987), cert. denied,484 U.S. 928 (1987), abrogated on other 10 grounds, Huddleston v. United States.485 U.S. 63l (1938); United States v. Lewis, 557 F.3d at 11
t2 609-610.
13 CONCLUSION t4 For the foregoing reasons, Defendant Castro's Motion to Sever is hereby DENIED.
15
t6 nn l7 So ORDERED this day of Jl0 m".2oos. 18
19
20 HONORABLE VERNON P. PEREZ JUDGE. SUPERIOR COURT OF GUAM 2T
22
23 I do herebycertifythatthe bregoing 24 is a full true and correct copy ofthe oririnal on file in the office of the 25 cleik of the SuPerior Court of Guam Dated at Hagatna, Guam
26 jij;,i 2 3.ZU;3 $o/r"r
27 Tomtnr L.tFinoulu G--Uv &*, suP"rlorcourt "t c 28
People v. Flores et. al. Decision and Order (Defendant Joaquin Q. Castro's Motion to Sever) Criminal Case No. CFOl33-09 -Page ll ofll -