People v. Hocog

• Court: Superior Court of Guam
• Decided: January 8, 2018
• Docket: CF0487-17
• Status: Unknown

Opinion

SUr all.. UlfLnMl ? " El?I iQ T I r i 7'

2 ZUIBJAH - PH '5=(2 3 CLERK OF CUURT 4 Q8/I 5

6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIMINAL CASE NO. CF0487- 17-01 9 vs. 10 DECISION AND ORDER l l GERRY JOHN HOCOG, 12

Defendant. 13

15 INTRODUCTION 16 This matter is before the Honorable Vernon P. Perez on the People of Guam's Motion 17 Concerning the Doctrine of Deliberate Ignorance. Attorney Joaquin C. Arriola represents 18 Defendant Gerry John Hocog ("Defendant"). Assistant Deputy Attorney General James C. 19 Collins represents the People of Guam ("the Government"). Having reviewed the pleadings, the 20 arguments presented, and the record, the Court now issues the following Decision and Order. 21 BACKGROUND 22 On September 14, 2017, Defendant was indicted with the following charges: (l) 23 Conspiracy to Promote Major Prison Contraband (Controlled Substance) (As a Second Degree 24 Felony), (2) Receiving Bribes (As a Third Degree Felony), and (3) Official Misconduct (As a 25 Misdemeanor). (Indictment, Sep. 14, 2017). These charges stem from a Mandala Drug Task 26 Force investigation concerning the distribution of methamphetamine into the Department of 27 Corrections. (Deal. of Matthew A. Phelps, Magistrate's Con pl., Aug. 25, 2017). Although 28

Peopl e v. Hocog Case NO. cF0487-17-01 Decision and Order ,ml Page 1 off HI

I Defendant was initially charged with twelve other co-defendants, the Court granted Defendant's

2 Motion to Sever on October 25, 2017. See Dec. & Order, Oct. 26, 2017. 3 On October 13, 2017, the Government filed the instant motion, which includes a 4 Decision and Order issued in a separate criminal matter by Judge Michael J. Bordallo on the 5 same issue. On November 13, 2017, Defendant filed his Opposition. On November 20, 2017, 6 the Government filed its Reply. 7 On November 29, 2017, the Court heard oral arguments on the motion, and subsequently 8 placed the matter under advisement. Defendant remains in asserted status.l 9 DISCUSSION 10 The Government "asks the Court to rule that 'deliberate ignorance' instructions similar lI to those found in the federal system, could potentially be available at trial before this court, 12 should evidence sufficient to support the delivery of such instructions come forward." (Mot. at IN 7, Oct. 13, 2017). Federal courts have held that "positive" knowledge is not necessarily 14 required to satisfy the legal element of "knowingly" in criminal drug statutes. See, e.g., United 15 States v. Heredia, 483 F.3d 913, 918 (9th Cir. 2007) ("knowingly in criminal statutes is not 16 limited to positive knowledge, but includes the state of mind of one who does not possess 17 positive knowledge only because he consciously avoided it."). The Ninth Circuit's Model 18 Criminal Jury Instructions define Deliberate Ignorance as: 19 You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant: 20

1. was aware of a high probability that [e.g., drugs were in the defendant's 21 automobile], and 22 2. deliberately avoided learning the truth. 23 You may not find such knowledge, however, if you find that the defendant 24 actually believed that [e.g., no drugs were in the defendant's automobile], or if you find that the defendant was simply careless. 25

28 1 Defendant asserted his right to speedy trial at Arraignment on October 4, 2017.

People v. H ocog Case No. CF0487- I 7-0 l Decision and Order

Page 2 of 4 l Guam law provides that:

2 Except as authorized by [Guam Uniform Controlled Substances Act], it shall be unlawful for any person knowingly or intentionally: (1) to manufacture, deliver or 3 possess with intent to manufacture, deliver or dispense a controlled substance. 4 9 G.C.A. § 67,401.1 (emphasis added). 5 A person acts knowingly, or with knowledge, with respect to his conduct or to 6 attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist. A person acts knowingly, or with knowledge, with 7 respect to a result of his conduct when he is aware that his conduct is practically 8 certain to cause the result. 9 9 G.C.A. § 4.30(b). Additionally, Guam law defines causation as: 10 (a) An element of an offense which requires that the defendant have caused a particular l1 result is established when his conduct is an antecedent but for which the result would not 12 have occurred, and, la (1) if the offense requires that the defendant intentionally or knowingly caused the 14 result, that the actual result, as it occurred, la (A) is within the purpose of contemplation of the defendant, whether the purpose or 16 contemplation extends to natural events or to the conduct of another, or, if not, 17 (B) involves the same kind of injury or harm as Ina! designed or contemplated and is not 18 too remote, accidental in its occurrence or dependent on another's volitional act to have a 19 just bearing on the defendants liability or on the gravity of his offense, 20

21 9 G.C.A. § 4.50 (emphasis added). 22 T he Court is inclined to agree with its sibling court that the principle of "positive 23 knowledge" is not an absolute requirement under 9 G.C.A. § 4.50. The Court finds that section 24 4.50(a)(l)(b)'s provision of "the same kind of injury or harm as that designed or contemplated" 25 allows for a finding that Guam law does not foreclose a "deliberate ignorance" instruction. 26 Therefore, the Court GRANTS the Government's Motion Concerning Doctrine of Deliberate 27 Ignorance. Whether such an instruction will actually be given at trial, however, cannot be 28 determined until evidence has been presented.

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• • l CONCLUSION '). For the foregoing reasons, the Court hereby GRANTS the Government's Motion 3 Concerning the Doctrine of Deliberate Ignorance. A Further Proceedings is set for 4 \ ?Zt»<@~3 I(/, MI( "-... at cXIZIVM 5 f'~ IT IS SO ORDERED this <9 day of January, 2018. 6

10 HONORABLE VERNON p. PEREZ Judge, Superior Court of Guam lI

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19 SERWSE we; comer E83 acknowledge that a copy of r' original hereto was placed in a. 20 court box of:

21 CE, 1)2L,'t~54= § 22

23 Depufy6 uteri C0ur1 of Guam 24

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