People v. Ludwig, R.S.

Opinion

FILED SUPERIOR COURT GF GUAM 1 ams DCT 10 PH qt 38 2 CLERK OF COLIFT 3 BY: /Q 4 IN THE SUPERIOR COURT OF GUAM 5 PEOPLE OF GUAM, ) CRIMINAL CASE NO: cF0747-18 . »,» ) GPD POLICE REPORT NO.: 18-35606 6 )

PLAINTIFF )

7 )

vs. ) DECISION AND ORDER RE: PEOPLE'S 8 ) MOTION FOR DISMISSAL WITHOUT ) PREJUDICE 9 )

RAIMUNDO SIPSON SATUR LUDWIG, )

10 DOBz07/06/1989, )

)

11 DEFENDANT. )

)

12 w Introduction 13 This matter came before the Honorable Maria T. Cenzon on September 23, 2019 for a 14 pre-trial conference. Defendant Raimundo Sipson Satur Ludwig ("Defendant") was represented 15 by Zachary Taimanglo of the Public Defender's Office. Basil O'Mallan was present for the 16 People. At the conference, the People raised an oral Motion to Dismiss the above captioned 17 matter without prejudice. The Defendant did not have an objection to the Motion. Having heard 18 from the parties, the Court ORDERED the above-captioned matter DISMISSED WITHOUT 19 PREJUDICE pursuant to 8 GCA § 80.70. The Court now issues this Decision and Order 20 memorializing its oral ruling.

21 Background 22 Defendant is charged with three (3) counts of First Degree Criminal Sexual Conduct (As 23 a First Degree Felony) and three (3) counts of Second Degree Criminal Sexual Conduct (As a 24 First Degree Felony). Indictment (Dec. 21, 2018). The charges stem from alleged intentional 25 sexual conduct by Defendant towards a minor victim ("Victim") under the age of fourteen (14)

26 between January 1, 2015 and December 31, 2015. Id.

27 28 People v. Ludwig, CF0747-18 D&O re: People's Motion for Dismissal W ithout Prejudice Page I off '

1 On September 10, 2019, this Court held the first pre-trial conference on the matter.

2 Minute Entry (Sep. 10 2019). The People indicated concerns with their ability to meet with the

3 Victim for an interview. Id. The People asserted that they had a meeting scheduled with the

4 Victim, but that the Victim had cancelled at the last'nlinute. Id. The People indicated that before

5 they could send a plea offer to Defendant or proceed with the case, they would need more time to

6 attempt to reach the Victim for interview. Id. The Court set a continued pre-trial conference for

7 September 23, 2019. Id.

8 On September 23, 2019, the People indicated that they would not go to trial, and raised

9 the present oral Motion to Dismiss Without Prejudice. Minute Entry (Sep. 23, 2019). The People

10 expressed their belief that the mother of Victim was inhibiting the People's effort to locate the

11 Victim for interview. Id. The People indicated that they had scheduled appointments with the

12 Victim, but the Victim had never showed up. Id. The People had subsequently tried to reach out

13 to Victim by phone every day, with no success. Id. The People further indicated they had tried

14 about six times to contact the Victim the Friday before the September 23 conference. Id. The

15 People stated that they had no indication that Defendant was responsible for the People's

16 inability to contact Victim. Id. Defendant stated on the record that they had no objection to the

17 Motion to Dismiss. Id.

18 Discussion

19 When considering a Motion to Dismiss brought by the People under 8 GCA § 80.70(a),

20 the Court adopts the "presumption that [the prosecutor] is acting in good faith and in the proper 21 discharge of his duties." People of Guam u Gutierrez, 2005 Guam 19 'll 51 (quoting U.S. v. 22 Greater Blouse, Skirt & Neckwear Contractors Association, 228 F. Supp. 483, 486 (S.D.N.Y.

23 1964)). Defendant did not object to the People's oral Motion to Dismiss without prejudice. The

24 record does not reflect any basis for finding the people's Motion was brought in bad faith or

25 emblematic of any harassment requiring judicial or statutory protection. See Gutierrez 'it 49 26 (quoting Rinaldo vo Unites States, 432 US 22, 32 (1977) ("The principal object of the 'leave of

27 court' requirement is apparently to protect a defendant against prosecutorial harassment, e.g., 28 People v. Ludwig; QF0747-18 D&O re: People's Motion for Dismissal W ithout Prejudice ' Page 2 of 4 J 1 charging, dismissing, and recharging, when the Government moves to dismiss an indictment over

2 the defendant's objection.")).

3 The Court must address the concern of the Motion being brought near the eve of trial.1

4 The Court must make sure that such a tactic was not used by the People in order to gain an unfair 5 advantage over the Defendant by jury shopping, or to lay further groundwork for a pattern of

6 harassment. If charges are repeatedly brought then dismissed before trial, there is a concern that 7 the Defendant is being deprived of the opportunity for vindication by an acquittal. See Gutierrez 8 'H 53-54 (citing cases where prosecutorial actions evidenced these two (2) scenarios and 9 supported the finding of the prosecution's bad faith when seeking dismissal). 10 Here, the timing of the People's Motion is not cause for suspect by this Court. The People 11 raised the issue of contacting the Victim at the first September 10, 2019 pre-trial conference. On 12 September 23, the People explained during oral argument on the Motion that they had repeatedly 13 tried to contact the Victim in the case over the previous two weeks. They further indicated that 14 they had tried to call the Victim several times on the Friday before the pre-trial conference, with 15 no luck. The Court additionally accepts the People's belief that Defendant was in no way the 16 cause of the People's difficulty reaching the Victim. The Court's examination of the record does 17 not reveal any other possible basis for disturbing the presumption of good faith.

18 19 When the Court has no evidence of prosecutorial had faith or even the allegation of such

20 by Defendant, then it stands that the presumption of good faith alone "permits the [C]ourt to

dismiss without prejudice." People of Guam v. Flores, 2009 Guam 22 'i[ 29 (quoting U.S. v.

21 Olson, 846 F.2d 1103, 1114 (7th Cir. 1988)). with the good faith presumption unchallenged by 22 23 Defendant, the statute generally limits the Court to "two options: grant or deny the motion to

24 dismiss the indictment." Gutierrez 'll 64 (quoting U.S. v. Salinas, 693 F.2d 348, 351 (5th Cir.

25 1982)).

26

27 | Jury Selection and Trial in the above matter was scheduled for September 25, 2019, two days after the raising of the oral Motion to Dismiss.

28

People v. Ludwig; CF0747-18 D&O re: People's Motion for Dismissal W ithout Prejudice Page 3 of 4 '

I Importantly, no prejudice will attach here with the Court granting the Motion. The law in

2 Guam does not generally authorize "trial courts to sue sponge dismiss indictments with

3 prejudice" when considering an 8 GCA § 80.70Qa) Motion. Gutierrez '1[ 69. Any collateral

4 prejudice suffered by Defendant due to a dismissal without prejudice may be cured in a separate

5 expungement proceeding when appropriate. The Court in granting the instant Motion does not

6 foreclose this remedy.

7 Because there is no basis for abandoning the presumption of prosecutorial good faith, the 8 Motion to Dismiss is GRANTED WITHOUT PREJUDICE.

9 Conclusion and Order 10 Based on the reasons provided above, the Court hereby ORDERS CF0747-18 11 DISMISSED WITHOUT PREJUDICE pursuant to 8 GCA§ 80.70 upon the voluntary dismissal 12 of the People. The Court vacates any conditional release orders and restrictions which Defendant 13 is ordered to follow in this case. 14

15

16 OCT 10 2019

I

SO ORDERED this 9 nun ro tune to September 23, 2019.

17 I

18

19 0 RABI M ARIA T.\cEnzon 20 JUD PERIOR COURT OF GUAM 21

22

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28 People v. Ludwig; CF0747- 18 D&O re: People's Motion for Dismissal W ithout Prejudice ¢ . Page 4 of 4