I •
IN THE SUPERIOR COURT OF GUAM
THE PEOPLE OF GUAM, ) ) CRIM INAL CASE O. CM0 5 5 3 -1 1 vs. ) DECISION AND ORDER ANGRES KAU, )
Defendant. )
INTRODUCTION 10 This matter came before the Honorable James L. Canto II on Defendant's motion to dismiss, filed January 15, 2013. Oral arguments were heard on February 10, 2014. Assis tant 12 Attorney General Lisa D. Lorig appeared on behalf of the Government and Assistant Public 13 Defender Terrance A. Long represented Defendant. Having considered the parties' briefs, oral 14 arguments, and the applicable law, the Court now issues the following Decision and Order. 15 BACKGROUND 16 On May 4, 2011, the Government filed a complaint to charge Defendant with (1) driving 17 under the influence of alcohol, as a Misdemeanor; (2) driving under the influence of alcohol 18 (BAC), as a Misdemeanor; (3) driving under the influence of alcohol (BAC) while under age of 19 2 1 years, as a Mi sdemeano r; (4 ) l eavi ng t he scene o f acci dent wi t h pro pert y damage, as a P et t y 20 Misdemeanor; and (5) operation of a motor vehicle without a valid operator's license, as a Petty 21 Mi sdem eano r. O n May 16, 201 1, the Superior Cou rt o f G u a m ente red a su mm o ns for 22 Defendant to appear and answer on June 15, 2011. There is nothing in the record to indicate 23 that any service of the summons was attempted, and no affidavits of service or non-service were 24 filed. On J une 15, 2011, Magistrate Judge Albert E. Tolentino declared Defendant was not 25 present and recommended re-issuance of summons due to non -service return by the Deputy 26 Marshal . 27 On August 15, 2011, the Honorable Albe rto C. Lamo rena reissued the s ummons 28 co mmandi ng Defendant t o appear and answer o n Sept ember 1 4 , 2 0 1 1 . On September 16, 2011,
Page l of 5 I Magistrate Judge Tolentino declared Defendant was not present in court on September 14, 2011
2 and having determined that reasonable and diligent attempts were made by the Deputy Marshal
3 to personally serve Defendant a copy of the Summons without success, the Magistrate Judge 4 recommended a Bench Warrant be issued against Defendant. No affidavits of service or non- 5 service were filed.
6 On Augus t 7, 2013, Defendant was arraigned, two years and three months after the
7 filing of the complaint.
8 On January 15, 2014, Defendant filed the present motion to dismiss because he was not
9 promptly arraigned within sixty (60) days of the complaint pursuant to People v. Rasauo, 2011
10 Gu am 1 4 . Defendant argues that the delay is not excused by good cause and that the complaint
should be dismissed with prejudice. 12 On January 29, 2014, the Government filed an opposition. The Government concedes
13 that dismissal is appropriate in this case, but asserts that the present case should be dismissed 14 without prejudice.
15 D IS C U S S IO N
16 Under Guam law, "unless good cause is shown, a complaint shall be dismissed where a 17 defendant is not promptly arraigned within 60 days of the filing of the complaint." Rasauo, 18 20 11 Gu am 14 ¶ 16. This rule applies "the statutory speedy trial time period delineated in 8
19 GCA § 80.60(a)(3)" to the prompt arraignment requirement delineated in 8 GCA § 60.10(a). Id.
20 Good cause to delay a prompt arraignment is determined by the specific circumstances of each
21 case. Id . at ¶ 14.
22 1 . Go o d Ca use to De la y P ro mpt Arra ig nme nt
23 Under Gu am l aw, cases t hat eval u at e del ay a nd go o d cau se i n t he st at u t o ry speedy t ri al
24 context are instructional for the purposes of prompt arraignment under 8 GCA § 60.10. People 25 v. Julian, 2012 Guam 26 ¶ 35. A speedy t ri al may be del ayed by t he fo l l o wi ng go o d cau ses: 1 )
26 conduct of the defendant; 2) delay that benefits the defendant; 3) unforeseen circumstances; and
27 4) prompt disposition of pretrial motions. See e.g. P eo p l e v. Flores, 2009 Guam 22 ¶ 40; 28 Carver v. Superior Court, 1998 Guam 23 ¶ 11; Quinata v. Superior Court, 2010 Guam 8 ¶ 36.
Page 2 of 5 I In this case , the Defendant was arraigned on August 7, 2013 and more than 60 days
2 after the complaint was filed on May 4, 2011. Ther e i s nothing in the record to show that
3 Defendant was served with a summons, indictment or bench warrant for over t wo (2 ) ye ars.
4 The parties do not allege , and the record does not indicate, that the Defendant absconded or
5 attempted to avoid apprehension or prosecution. Most importantly , there is no allegation or
6 indication that the Defendant ' s conduct caused the delay . The Defendant did no t willfully
7 di so bey the summons and warrant in this case and the outstanding bench warrant does not
8 constitute good cause to delay the Defendant ' s prompt arraig nment for over two (2) years.
9 F urthermore, judicial delay in prompt arraignment is attributed to the Government.
10 Julian, 2012 Guam 26 at ¶ 22. Pursuant to Rasauo , 2011 Guam 14 ¶ 12, courts, judicial officers
11 and prosecuting attorneys all share the duty and the constitutional guarantee to promptly dispose
12 criminal charges. Id. (cit ing Strunk v. U S . , 4 1 2 U.S. 434, 439, n. 2 (1973) a nd 8 G C A §
13 80.50(a)). For these reasons , the complaint shall be dismissed pursuant to Rasauo, 2011 Guam
14 14.
15 2 . Dismissa l With o r Witho ut P re judic e
16 Gu am l aw do es not speci fy whet her dismissal with prejudice or dismissal without
17 prejudice is the appropriate remedy for a violation of 8 G C A § 60 . 10(a) and Rasauo, 20 11
18 Gu am 14. The prompt arraignment requirement is an expression of the spe edy trial right.
19 Stephen, 2009 Guam 8 ¶ 32. Absent clear guidance to dismiss an untimely arraignment with or
20 without prejudice, the Court shall consider the established speedy trial analyses in order to more
21 consistently weigh the circumstances of an untimely arraignment. See id. at ¶ 21 (an established
22 rule or forewarning may be required to dismiss with pre judice).
23 Under Guam law, the Court must consider the following relevant factors to determine 24 whether a delay violates the Sixth Amendment right to a speedy trial: 1) the length of the delay;
25 2) the reason for the delay; and 3) the presence or absence of prejudice resulting from the delay.
26 People v. Flores, 2009 Guam 22 ¶¶ 41-42 (citing Barker v. Wi n g o , 407 U.S. 514, 521 (1972)).
27 When federal time limits to begin trial are violated, the following factors determine whether to
28 dismiss the prosecution with or without prejudice: 1) the seriousness of the offense; 2) the facts
Page 3 of 5 10
and circumstances that led to dismissal ; 3) the impact of reprosecution on the administration of
federal time limits and the administration of justice ; and 4) the prejudice suffered by the
defendant from the delay . See U.S. v. Perez, Crim. No. 09-00025, 2011 WL 2294194, at *3 (D.
Guam Jun . 8, 2011) (cit ing 18 U.S.C. § 3162(a)(2); U.S. v. Taylor, 487 U.S. 326, 336-337, 108
S.Ct. 2413, 101 L.Ed.2d 297 (1998); and U. S. v. Lewis, 518 F.3d 1171, 1176 (9th Cir. 2010)).
In this case, Defendant was arraigned on August 7, 2013 and more than two years and
three months after the complaint was filed on May 4 , 2 0 1 1 .
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I •
IN THE SUPERIOR COURT OF GUAM
THE PEOPLE OF GUAM, ) ) CRIM INAL CASE O. CM0 5 5 3 -1 1 vs. ) DECISION AND ORDER ANGRES KAU, )
Defendant. )
INTRODUCTION 10 This matter came before the Honorable James L. Canto II on Defendant's motion to dismiss, filed January 15, 2013. Oral arguments were heard on February 10, 2014. Assis tant 12 Attorney General Lisa D. Lorig appeared on behalf of the Government and Assistant Public 13 Defender Terrance A. Long represented Defendant. Having considered the parties' briefs, oral 14 arguments, and the applicable law, the Court now issues the following Decision and Order. 15 BACKGROUND 16 On May 4, 2011, the Government filed a complaint to charge Defendant with (1) driving 17 under the influence of alcohol, as a Misdemeanor; (2) driving under the influence of alcohol 18 (BAC), as a Misdemeanor; (3) driving under the influence of alcohol (BAC) while under age of 19 2 1 years, as a Mi sdemeano r; (4 ) l eavi ng t he scene o f acci dent wi t h pro pert y damage, as a P et t y 20 Misdemeanor; and (5) operation of a motor vehicle without a valid operator's license, as a Petty 21 Mi sdem eano r. O n May 16, 201 1, the Superior Cou rt o f G u a m ente red a su mm o ns for 22 Defendant to appear and answer on June 15, 2011. There is nothing in the record to indicate 23 that any service of the summons was attempted, and no affidavits of service or non-service were 24 filed. On J une 15, 2011, Magistrate Judge Albert E. Tolentino declared Defendant was not 25 present and recommended re-issuance of summons due to non -service return by the Deputy 26 Marshal . 27 On August 15, 2011, the Honorable Albe rto C. Lamo rena reissued the s ummons 28 co mmandi ng Defendant t o appear and answer o n Sept ember 1 4 , 2 0 1 1 . On September 16, 2011,
Page l of 5 I Magistrate Judge Tolentino declared Defendant was not present in court on September 14, 2011
2 and having determined that reasonable and diligent attempts were made by the Deputy Marshal
3 to personally serve Defendant a copy of the Summons without success, the Magistrate Judge 4 recommended a Bench Warrant be issued against Defendant. No affidavits of service or non- 5 service were filed.
6 On Augus t 7, 2013, Defendant was arraigned, two years and three months after the
7 filing of the complaint.
8 On January 15, 2014, Defendant filed the present motion to dismiss because he was not
9 promptly arraigned within sixty (60) days of the complaint pursuant to People v. Rasauo, 2011
10 Gu am 1 4 . Defendant argues that the delay is not excused by good cause and that the complaint
should be dismissed with prejudice. 12 On January 29, 2014, the Government filed an opposition. The Government concedes
13 that dismissal is appropriate in this case, but asserts that the present case should be dismissed 14 without prejudice.
15 D IS C U S S IO N
16 Under Guam law, "unless good cause is shown, a complaint shall be dismissed where a 17 defendant is not promptly arraigned within 60 days of the filing of the complaint." Rasauo, 18 20 11 Gu am 14 ¶ 16. This rule applies "the statutory speedy trial time period delineated in 8
19 GCA § 80.60(a)(3)" to the prompt arraignment requirement delineated in 8 GCA § 60.10(a). Id.
20 Good cause to delay a prompt arraignment is determined by the specific circumstances of each
21 case. Id . at ¶ 14.
22 1 . Go o d Ca use to De la y P ro mpt Arra ig nme nt
23 Under Gu am l aw, cases t hat eval u at e del ay a nd go o d cau se i n t he st at u t o ry speedy t ri al
24 context are instructional for the purposes of prompt arraignment under 8 GCA § 60.10. People 25 v. Julian, 2012 Guam 26 ¶ 35. A speedy t ri al may be del ayed by t he fo l l o wi ng go o d cau ses: 1 )
26 conduct of the defendant; 2) delay that benefits the defendant; 3) unforeseen circumstances; and
27 4) prompt disposition of pretrial motions. See e.g. P eo p l e v. Flores, 2009 Guam 22 ¶ 40; 28 Carver v. Superior Court, 1998 Guam 23 ¶ 11; Quinata v. Superior Court, 2010 Guam 8 ¶ 36.
Page 2 of 5 I In this case , the Defendant was arraigned on August 7, 2013 and more than 60 days
2 after the complaint was filed on May 4, 2011. Ther e i s nothing in the record to show that
3 Defendant was served with a summons, indictment or bench warrant for over t wo (2 ) ye ars.
4 The parties do not allege , and the record does not indicate, that the Defendant absconded or
5 attempted to avoid apprehension or prosecution. Most importantly , there is no allegation or
6 indication that the Defendant ' s conduct caused the delay . The Defendant did no t willfully
7 di so bey the summons and warrant in this case and the outstanding bench warrant does not
8 constitute good cause to delay the Defendant ' s prompt arraig nment for over two (2) years.
9 F urthermore, judicial delay in prompt arraignment is attributed to the Government.
10 Julian, 2012 Guam 26 at ¶ 22. Pursuant to Rasauo , 2011 Guam 14 ¶ 12, courts, judicial officers
11 and prosecuting attorneys all share the duty and the constitutional guarantee to promptly dispose
12 criminal charges. Id. (cit ing Strunk v. U S . , 4 1 2 U.S. 434, 439, n. 2 (1973) a nd 8 G C A §
13 80.50(a)). For these reasons , the complaint shall be dismissed pursuant to Rasauo, 2011 Guam
14 14.
15 2 . Dismissa l With o r Witho ut P re judic e
16 Gu am l aw do es not speci fy whet her dismissal with prejudice or dismissal without
17 prejudice is the appropriate remedy for a violation of 8 G C A § 60 . 10(a) and Rasauo, 20 11
18 Gu am 14. The prompt arraignment requirement is an expression of the spe edy trial right.
19 Stephen, 2009 Guam 8 ¶ 32. Absent clear guidance to dismiss an untimely arraignment with or
20 without prejudice, the Court shall consider the established speedy trial analyses in order to more
21 consistently weigh the circumstances of an untimely arraignment. See id. at ¶ 21 (an established
22 rule or forewarning may be required to dismiss with pre judice).
23 Under Guam law, the Court must consider the following relevant factors to determine 24 whether a delay violates the Sixth Amendment right to a speedy trial: 1) the length of the delay;
25 2) the reason for the delay; and 3) the presence or absence of prejudice resulting from the delay.
26 People v. Flores, 2009 Guam 22 ¶¶ 41-42 (citing Barker v. Wi n g o , 407 U.S. 514, 521 (1972)).
27 When federal time limits to begin trial are violated, the following factors determine whether to
28 dismiss the prosecution with or without prejudice: 1) the seriousness of the offense; 2) the facts
Page 3 of 5 10
and circumstances that led to dismissal ; 3) the impact of reprosecution on the administration of
federal time limits and the administration of justice ; and 4) the prejudice suffered by the
defendant from the delay . See U.S. v. Perez, Crim. No. 09-00025, 2011 WL 2294194, at *3 (D.
Guam Jun . 8, 2011) (cit ing 18 U.S.C. § 3162(a)(2); U.S. v. Taylor, 487 U.S. 326, 336-337, 108
S.Ct. 2413, 101 L.Ed.2d 297 (1998); and U. S. v. Lewis, 518 F.3d 1171, 1176 (9th Cir. 2010)).
In this case, Defendant was arraigned on August 7, 2013 and more than two years and
three months after the complaint was filed on May 4 , 2 0 1 1 . The length of this delay may give
8 rise to a presumption of prejudice . Flores , 2009 Guam 22 at ¶ 49. The delay appears to have
9 been caused, in part, by the failure to serve the summons and the bench warrant, and the
10 responsibility for this delay weighs against the Government . Julian 20 12 Guam 26 a t ¶ 22.
11 Another possible cause for the delay may have been an inability to serve Defendant , but the
12 entire record is devoid o f the information necessary to determine whether this delay wa s
13 deliberate, negligent or justified, and the responsibility for the delay does not weigh in favor of
14 either party. F l o res, 20 09 Guam 2 2 at ¶¶ 45-46 . Most importantly, the complaint caused no
15 oppressive pretrial incarceration, anxiety or concern before Defendant appeared on J uly 27,
16 2013, and there is no allegation of actual prejudice in this matter. Id. at ¶¶ 49-56. These
17 circumstances weigh against a constitutional violation and against a dismissal with prejudice.
18 F urthermore, a dismissa l without prejudice is warranted in light o f the le ss serious
19 misdemeanor offense, the aforeme ntioned slight impact o f the delay, the absence o f c le a r
20 Government neglect , and the aforementioned absence of prejudice suffered by Defendant. See
21 P erez, 2011 W L 2294194, at *3-8.
22 More over, Defendant seeks dismissal with prejudice, but fails to articulate an argument
23 for dismissal with prejudice in a way that allows a court to apply the recognized rules of law.
24 L a mb v. Hoffman, 2008 Guam 2 ¶ 3 5 . ("It is not sufficient fo r a part y simply to announce a
25 position or assert an error and then leave it up to this Court to discover and rationalize the basis
26 for his claims , or unravel and elaborate for him his arguments, and then search for authority
27 either to sustain or reject his position.").
28 For all of these reasons, the complaint shall be dismissed without prejudice.
Page 4 of 5 CONCLUSION Based upon the foregoing , the Defendant's motion to dismiss is hereby GRANTED and
the complaint is dismissed without prejudice for the failure to promptly arraign the Defendant
pursuant to 8 GC A § 60. 10(a) and People v. Rasauo , 2011 Guam 14.
S O O R D E R E D this day of March, 2014.
8 9
11 HON. JAMES L. CANTO II 12 J udg e , S upe rio r Co urt o f Gua m 13
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