IN THE SUPERIOR COURT OF GUAM
2 PEOPLE OF GUAM, ) CRIMINAL CASt: NO. CMo690--12,- ,_, j
" .) ) ) 4 ) vs. ) 5 ) ) 6 SAMKOSAM, ) DECISION AND ORDER ) 7 Defendant. )
9 This matter came before the HONORABLE VERNON P. PEREZ on March 4, 2013 for 10 Defendant's Motion to Dismiss. Attorney Suresh Sampath represented the Defendant. 11 Assistant Attorney General James Collins appeared on behalf of the Government. The Court 12 took the motion under advisement. Having reviewed the pleadings and arguments presented, 13 the Court now issues the following Decision and Order. 14 BACKGROUND 15 Defendant is charged with driving while under the influence. Defendant moved to have
16 the previous case dismissed due to a violation of the rule put forth in Rasauo II. The earlier 17 case, CM0999-ll, was dismissed without prejudice by the prior Court. The case was re-filed
18 and Defendant now requests dismissal. The Court took argument on the motion and now
19 addresses the Motion to Dismiss. DISCUSSION 20 Before addressing the standard used to evaluate dismissal with prejudice, the Court 21 would like to point out that Defendant missed the opportunity to request the previous Court for 22 reconsideration. As to that procedural failure alone, the Court would be comfortable denying 23 dismissal in the current matter. Yet, the Court will continue to discuss the standard for 24 dismissal with prejudice to allow for a complete decision and resolution of all issues. 25
People v. Kosam, Decision and Order CM0690-l2 -Page 1 of6- Standard for With Prejudice Dismissal
2 Dismissal in a criminal case shall be with prejudice when there is actual prejudice to the defendant and the defendant's ability to prepare a defense. The length of delay is the most 3 essential factor for a trial court, but, there are other factors to consider. The United States 4 Supreme Court stated "[t]he longer the delay, the greater the presumptive or actual prejudice to 5 the defendant, in terms of his ability to prepare for trial or the restriction on his liberty". United 6 States v. Taylor, 487 U.S. 326, 340 (1988). Moreover, the United States Supreme Court has 7 recognized that "[ d]ismissal without prejudice is not a toothless sanction" because "it forces the 8 Government to obtain a new indictment if it decides to reprosecute, and it exposes the 9 prosecution to dismissal on statute of limitations grounds." !d. at 342. Where the violations 10 involve both constitutional and statutory violations of the defendant's speedy trial right there is 11 a greater likelihood for with prejudice dismissal. 12 While courts acknowledge the deleterious impact that pre-trial detention may have on an 13 individual, a defendant's prolonged pre-trial confinement, alone, is not enough to show that the
14 interests of justice weigh in favor of dismissal with prejudice. See Barker v. Wingo, 407 U.S.
15 514, 537(1972). A court should also consider the seriousness of the offense as the more serious
16 the offense, the more weight given to dismissal without prejudice. United States v. Clymer, 25 F.3d 824, 831 (9th Cir. 1994). The interests of the victim and interests of the public also play 17 an important role in this evaluation. Under liberty concerns, the courts should consider effects 18 on employment, financials, social association, anxiety of the defendant, anxiety of friends and 19 family and public criticism. Taylor, 340. In combination with the overall length of delay, the 20 Court should consider the fading memories of witnesses and deterioration of exculpatory 21 evidence to establish actual prejudice. Doggett v. United States, 505 U.S. 647, 654 (1992). 22 The Court understands the above standard applies to a speedy trial right violation, the 23 federal rules may differ from Guam statutes, and that Constitutional and statutory issues are 24 separate concerns. Yet, the factors are helpful in the instant matter as the Guam Supreme 25 Court, in Rasauo II, has deemed the speedy arraignment right akin to the speedy trial right and 26
People v. Kosam, Decision and Order CM0690-l2 -Page 2 of6- granted the trial Court with the discretion to determine whether or not the prompt arraignment
2 violation is dismissed with or without prejudice. See People v. Rasauo, 2011 Guam 14.
3 Defendant argues that the Guam Supreme Court, in People v. Palomo, 1998 Guam 12, requires dismissal with prejudice as it is the only possible remedy. 1 The Court concludes that 4 dismissal without prejudice is entirely appropriate where the circumstances support such a 5 finding whether or not the violation was statutory or constitutional. 2 Defendant fails to 6 convince the Court that the only possible remedy is dismissal with prejudice as multiple United 7 States Supreme Court decisions, cited above, discuss the ability for a court to apply the relevant 8 factors and decide whether to dismiss a case with or without prejudice. 3 Furthermore, the Guam 9 Supreme Court remanded the portion of the decision relevant to with or without prejudice back 10 to the trial Court in Rasauo II, which is the very decision in which the original dismissal was ll based upon. The Guam Supreme Court left that part of the decision to the trial court. If the 12 Guam Supreme Court wished that Palomo would apply and prevent dismissal without prejudice 13 in Rasauo II dismissals, the Guam Supreme Court would not have given the trial court an
14 opportunity to dismiss the case without prejudice. There can be no language clearer than this:
15 "(t]he issue of whether or not the case should be dismissed with or without prejudice should be
16 decided in the first instance by the trial court". Rasauo II at 5. Thus, the Guam Supreme Court
17 clearly intended that a determination based on the facts of the case be made by the trial court and that dismissal could be with or without prejudice. 18 This Court will balance the factors provided to it by the United States Supreme Court to 19 make a determination. Defendant has presented no support of any factor to show that actual 20
21 1 The Court recognizes Defendant's argument that actual prejudice is not required for a with prejudice dismissal. The Court 22 will only conclude that where actual prejudice is not an clement for with prejudice dismissal. it is clearly the greatest factor in such a decision.
23 2 The United States Supreme Court cases reviewed and cited by this Court discuss the factors relevant to a with prejudice dismissal. Thus, in situations where the factors weigh against dismissal with prejudice, the Court has complete authority to find 24 that dismissal is without prejudice. Taylor, 334; See United States v. Engstrom, 7 F.3d 1423 (9th Cir. 1993).
25 The dissenting opinion in Taylor, while not controlling here, describes the Court's view on Defendant's arguments very well: This is the kind of case that reasonable judges may decide differently ... But even on the remaining question whether the dismissal of two of the three counts pending against respondent should have been with or without prejudice, there 26 is room for disagreement between conscientious and reasonable judges. The question, however, is one that district are in a much better than are at 346. People v. Kosam, Decision and Order CM0690-12 -Page 3 of6- prejudice occurred. There are no suggestions that witnesses are now unavailable or that
2 exculpatory evidence is now missing or deteriorated.
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IN THE SUPERIOR COURT OF GUAM
2 PEOPLE OF GUAM, ) CRIMINAL CASt: NO. CMo690--12,- ,_, j
" .) ) ) 4 ) vs. ) 5 ) ) 6 SAMKOSAM, ) DECISION AND ORDER ) 7 Defendant. )
9 This matter came before the HONORABLE VERNON P. PEREZ on March 4, 2013 for 10 Defendant's Motion to Dismiss. Attorney Suresh Sampath represented the Defendant. 11 Assistant Attorney General James Collins appeared on behalf of the Government. The Court 12 took the motion under advisement. Having reviewed the pleadings and arguments presented, 13 the Court now issues the following Decision and Order. 14 BACKGROUND 15 Defendant is charged with driving while under the influence. Defendant moved to have
16 the previous case dismissed due to a violation of the rule put forth in Rasauo II. The earlier 17 case, CM0999-ll, was dismissed without prejudice by the prior Court. The case was re-filed
18 and Defendant now requests dismissal. The Court took argument on the motion and now
19 addresses the Motion to Dismiss. DISCUSSION 20 Before addressing the standard used to evaluate dismissal with prejudice, the Court 21 would like to point out that Defendant missed the opportunity to request the previous Court for 22 reconsideration. As to that procedural failure alone, the Court would be comfortable denying 23 dismissal in the current matter. Yet, the Court will continue to discuss the standard for 24 dismissal with prejudice to allow for a complete decision and resolution of all issues. 25
People v. Kosam, Decision and Order CM0690-l2 -Page 1 of6- Standard for With Prejudice Dismissal
2 Dismissal in a criminal case shall be with prejudice when there is actual prejudice to the defendant and the defendant's ability to prepare a defense. The length of delay is the most 3 essential factor for a trial court, but, there are other factors to consider. The United States 4 Supreme Court stated "[t]he longer the delay, the greater the presumptive or actual prejudice to 5 the defendant, in terms of his ability to prepare for trial or the restriction on his liberty". United 6 States v. Taylor, 487 U.S. 326, 340 (1988). Moreover, the United States Supreme Court has 7 recognized that "[ d]ismissal without prejudice is not a toothless sanction" because "it forces the 8 Government to obtain a new indictment if it decides to reprosecute, and it exposes the 9 prosecution to dismissal on statute of limitations grounds." !d. at 342. Where the violations 10 involve both constitutional and statutory violations of the defendant's speedy trial right there is 11 a greater likelihood for with prejudice dismissal. 12 While courts acknowledge the deleterious impact that pre-trial detention may have on an 13 individual, a defendant's prolonged pre-trial confinement, alone, is not enough to show that the
14 interests of justice weigh in favor of dismissal with prejudice. See Barker v. Wingo, 407 U.S.
15 514, 537(1972). A court should also consider the seriousness of the offense as the more serious
16 the offense, the more weight given to dismissal without prejudice. United States v. Clymer, 25 F.3d 824, 831 (9th Cir. 1994). The interests of the victim and interests of the public also play 17 an important role in this evaluation. Under liberty concerns, the courts should consider effects 18 on employment, financials, social association, anxiety of the defendant, anxiety of friends and 19 family and public criticism. Taylor, 340. In combination with the overall length of delay, the 20 Court should consider the fading memories of witnesses and deterioration of exculpatory 21 evidence to establish actual prejudice. Doggett v. United States, 505 U.S. 647, 654 (1992). 22 The Court understands the above standard applies to a speedy trial right violation, the 23 federal rules may differ from Guam statutes, and that Constitutional and statutory issues are 24 separate concerns. Yet, the factors are helpful in the instant matter as the Guam Supreme 25 Court, in Rasauo II, has deemed the speedy arraignment right akin to the speedy trial right and 26
People v. Kosam, Decision and Order CM0690-l2 -Page 2 of6- granted the trial Court with the discretion to determine whether or not the prompt arraignment
2 violation is dismissed with or without prejudice. See People v. Rasauo, 2011 Guam 14.
3 Defendant argues that the Guam Supreme Court, in People v. Palomo, 1998 Guam 12, requires dismissal with prejudice as it is the only possible remedy. 1 The Court concludes that 4 dismissal without prejudice is entirely appropriate where the circumstances support such a 5 finding whether or not the violation was statutory or constitutional. 2 Defendant fails to 6 convince the Court that the only possible remedy is dismissal with prejudice as multiple United 7 States Supreme Court decisions, cited above, discuss the ability for a court to apply the relevant 8 factors and decide whether to dismiss a case with or without prejudice. 3 Furthermore, the Guam 9 Supreme Court remanded the portion of the decision relevant to with or without prejudice back 10 to the trial Court in Rasauo II, which is the very decision in which the original dismissal was ll based upon. The Guam Supreme Court left that part of the decision to the trial court. If the 12 Guam Supreme Court wished that Palomo would apply and prevent dismissal without prejudice 13 in Rasauo II dismissals, the Guam Supreme Court would not have given the trial court an
14 opportunity to dismiss the case without prejudice. There can be no language clearer than this:
15 "(t]he issue of whether or not the case should be dismissed with or without prejudice should be
16 decided in the first instance by the trial court". Rasauo II at 5. Thus, the Guam Supreme Court
17 clearly intended that a determination based on the facts of the case be made by the trial court and that dismissal could be with or without prejudice. 18 This Court will balance the factors provided to it by the United States Supreme Court to 19 make a determination. Defendant has presented no support of any factor to show that actual 20
21 1 The Court recognizes Defendant's argument that actual prejudice is not required for a with prejudice dismissal. The Court 22 will only conclude that where actual prejudice is not an clement for with prejudice dismissal. it is clearly the greatest factor in such a decision.
23 2 The United States Supreme Court cases reviewed and cited by this Court discuss the factors relevant to a with prejudice dismissal. Thus, in situations where the factors weigh against dismissal with prejudice, the Court has complete authority to find 24 that dismissal is without prejudice. Taylor, 334; See United States v. Engstrom, 7 F.3d 1423 (9th Cir. 1993).
25 The dissenting opinion in Taylor, while not controlling here, describes the Court's view on Defendant's arguments very well: This is the kind of case that reasonable judges may decide differently ... But even on the remaining question whether the dismissal of two of the three counts pending against respondent should have been with or without prejudice, there 26 is room for disagreement between conscientious and reasonable judges. The question, however, is one that district are in a much better than are at 346. People v. Kosam, Decision and Order CM0690-12 -Page 3 of6- prejudice occurred. There are no suggestions that witnesses are now unavailable or that
2 exculpatory evidence is now missing or deteriorated. The Court should also consider the public
3 interest factor and the impact on the alleged victim if dismissal occurs with prejudice. Defendant does face misdemeanor charges and the anxiety factors do not appear to weigh in 4 Defendant's favor. As Defendant was not languishing in jail awaiting the initiation of this case, 5 the liberty interests discussed in Taylor do not favor dismissal with prejudice. However, the 6 crimes alleged against Defendant are not felony crimes, less serious than felonious acts, and this 7 consideration does weigh in favor of dismissal with prejudice. Finally, with all considered 8 above, the Court does not find any bad faith by the Government or the Court in causing the 9 delay. While actual prejudice is not required to dismiss a case with prejudice when a violation 10 of a statutory prompt arraignment right is violated, it must be the most important factor. 11 The Court considered the effect of the commonly used language "with or without 12 prejudice". To dismiss a case with prejudice by definition means the matter already contains 13 prejudice. When a with prejudice dismissal occurs, the defendant is prejudiced and the case
14 must be dismissed as to not further prejudice the same defendant. The Court does not believe
15 that when the Guam Supreme Court stated in People v. Julian that "constitution standards ...
16 have no application ... ," the Supreme Court desired to rule out an actual prejudice discussion. If the Court did decide that prejudice is irrelevant in a statutory prompt arraignment right violation 17 discussion, again, the Court would not have left it up to the lower Court to decide whether 18 dismissal should be with or without prejudice in the very Rasauo case that started this line of 19 cases. While this is a newer legal frontier and most of the frontier is still left for interpretation, 20 the prejudice concern is the one of the most major concerns for any dismissal by any criminal 21 jurisdiction Court. It will take many future cases to clear up any doubt remaining on the prompt 22 arraignment right and the issue of with prejudice dismissal. 23 According to the standard for with prejudice dismissal discussed above, the Court 24 concludes that actual prejudice has not occurred. The Court finds that Defendant's delay to 25 arraignment, while excessive, was not so excessive that actual prejudice occurred based on the 26 facts present in this specific case. The Court does appreciate the length of delay to arraignment
People v. Kosam, Decision and Order CM0690-12 -Page 4 of6- Defendant faced, yet, the Defendant was not incarcerated at the time he awaited arraignment
2 and no factor weighing in Defendant's favor is great enough to warrant dismissal with prejudice. Thus, the Court denies Defendant's Motion to Dismiss because ofthe failure to seek 3 proper remedy to the prior dismissal in CM0999-ll and because the previous court appears to 4 have made a decision in compliance with the proper rules. 5 Statutory or Constitutional Right 6 At hearing for this Motion, Defendant expressed issue with the classification of the prior 7 dismissal as statutory or constitutional issue. Clearly, the Court understands that the Rasauo II 8 decision was based on a statutorily provided right under 9 GCA § 80.60 and that any 9 Constitutional issue is an entirely separate analysis. Rasauo, at ~9. Yet, that does not mean that 10 a constitutional speedy trial consideration is not present. The Sixth Amendment of the United II States Constitution provides "[i]n all criminal prosecutions, the accused shall enjoy the right to 12 a speedy and public trial." The Court believes that such a broad and powerful rule would also
13 apply to the failure to promptly arraign a defendant, even in a misdemeanor case. For example,
14 once a criminal complaint is filed and delay is created by the Government, it is quite possible
15 that both a statutory and Constitutional violation occurred. On the other hand, the Defendant is
16 correct in citing to the Guam Supreme Court and stating that the Constitution may never be implicated. See Julian. Yet, if ever a speedy issue arises in arraignment or at trial, it is 17 important for a court to consider both statutory and Constitutional issues if the delay is great 18 enough. 19 Due to the relative lack of case law on speedy arraignment issues, the Court believes the 20 standard discussed above is very helpful in interpreting the Guam Supreme Court's rulings in 21 Rasauo. Additionally, the U.S. Constitution will always trump any jurisdiction's conflicting 22 statute, so, without a showing that Constitutional concerns are unnecessary, which is very 23 possible as explained by the Guam Supreme Court in Julian, the Court should at minimum ask 24 whether there is a Constitutional issue. In conclusion, the Court agrees with Defendant that 25 this case involves a statutory expression of prompt arraignment. Still, the Court finds that the 26 Guam Supreme Court intended that there is trial court discretion in determining whether or not
v. Decision and Order CM0690-12 -Page 5 of6- a case be dismissed with or without prejudice when a violation of the rule pronounced in
2 Rasauo is found. CONCLUSION 3 The Court hereby DENIES Defendant's Motion to Dismiss. The Parties will return for 4 a Criminal Trial Setting on April 8, 2013 at 1Oa.m .. 5
6 So ORDERED this --.J,LJJ_ day of March, 2013.
8 HONORABLE VERNON P. PEREZ 9 JUDGE, SUPERIOR COURT OF GUAM 10
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