• FaL SUPE Unum
20!HFEB PH I §'7 CLERK DF OURT
IN THE SUPERIOR COURT OF GUAM By?
THE PEOPLE OF GUAM, CRIMINAL CASE NO. CF0600- 17
vs. DECISION ANDORDER
FRANK EDWARD PANGEL1NAN,
Defendant.
INTRODUCTION This matter came before the Honorable Vernon P. Perez on January 3, 2018, for heating
on Defendant Frank Edward Pangelinan's ("Defendant") Motion to Dismiss. Defendant was
present and represents himself pro Se. Attorney William B. Pole was also present on behalf of
Defendant, as a second chair. Assistant Deputy Attorney General James C. Collins was present
on behalf of the People of Guam ("the Government"). In accordance with its ruling from the
bench on January 31, 2018, the Court now issues the following Decision and Order GRANTING Defendant's Motion to Dismiss.
BACKGROUND On October 30, 2017, Defendant was indicted with the charge of Promotion of Major
Prison Contraband (Communication Device) (As a Second Degree Felony). (Indictment, Oct.
30, 2017). Defendant is one of five defendants charged in this matter. The Indictment also charges Corina Lynn Blas Tedtaotao with (1) Conspiracy to Promote Major Prison Contraband
(As a Second Degree Felony) and (2) Possession of a Schedule II Controlled Substance (As a
Third Degree Felony), Quiana Liberty Iglesias Manibusan with (l) Conspiracy to Promote
People v. Pangelinan Case No.CF0600»l7 Decision and Order
Page 1of 5 ORIGINAL l
l Major Prison Contraband (As a Second Degree Felony),1 Raymond Tories Tedtaotao with (1)
2 Promotion of Major Prison Contraband (Controlled Substance) (As a Second Degree Felony) 3 and (2) Possession of a Schedule II Controlled Substance (As a Third Degree Felony); and Paul
4 Lynnwood Johnson with (1) Conspiracy to Promote Major Prison Contraband (As a Second
5 Degree Felony) with an attached Special Allegation: Felony Committed W hile on Pre-Trial 6 Felony Release. (Indictment, Oct. 30, 2017). According to the Declaration attached to the 7 Magistrate's Com plaint, the charge against Defendant is based on the discovery and
8 confiscation of a cell phone and charging apparatus from his cell at DOC. (Decl. of James C.
9 Collins, Magistrate's Con pl., Oct. 20, 2017). Defendant is currently serving a life sentence 10 without the possibility of parole at DOC.
11 On November 8, 2017, Ar Arraignment, Defendant asserted his right to speedy trial. Jury
12 selection and Trial in this matter was set to commence on December 20, 2017. 13 On December 5, 2017, Defendant Sled a Motion to Dismiss for the Allegation is De 14 Minims. On December 22, 2017, the Government filed its Opposition. On December 29,
\5 2017, Defendant filed his Reply as well as an Exhibit tiled under seaL On January 3, 2018, the 16 Court heard oral arguments on the motion and gave Defendant leave to file supplemental
17 pleadings based on additional discovery. On January 5, 2018, Defendant filed an Addendum 18 Reply to the Government's Opposition as well as an Exhibit under seal in support. 19 DISCUSSION 20 Defendant moves the Court to dismiss this matter because it is De Minims under 9
21 G.C.A. § 7.67. Section 7.67, Appropriateness of Prosecution, provides: 22 The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it 23 finds that the defendants conduct: 24 (a) Was within a customary license or tolerance, neither expressly negated 25 by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; 26
27 1 Codefendant Manibusan entered into a Plea Agreement with the Government on January 10, 2018. (Plea 28 Agreement, Jan. 10, 2018).
People v. Pangelinan Case N0.CF0600~l7 Decision and Order
Page 2 of 5
- (b) Did not actually cause or threaten the harm or evil sought to be 1 prevented by the law defining the offense or did so only to an extent too 2 trivial to warrant the condemnation of conviction, or 3 (c) Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The court shall 4 not dismiss a prosecution under this Subsection without tiling a written 5 statement of its reasons.
6 9 G.C.A. § 7.67. Section 7.67 "directs the triad court to dismiss a prosecution if it finds that the
7 defendant's conduct falls within at least one of three distinct circumstances," People v.Perez,
8 2004 Guam 4 <][9 (emphasis in original). The "statute recognizes that it would be unrealistic to
9 believe that judges never enter a finding of not guilty even though guilt is proven where a
10 conviction is considered to be in appropriate, and therefore authorizes the trial court to mitigate
the general provisions of the criminal law to prevent absurd applications." Id. at qt 10 (agreeing
12 with 9 G.C.A. § 7.67 commentary).
13 In this case, Defendant argues that the Government has not provided any evidence that
14 the cell phone in question was used or that it could be used as a communication device, and he
15 is not eligible for parole. (Mot. Dismiss at 2). Additionally, Defendant argues that any prison
\6 security issues are best left to the DOC administration and that there is no or little Government
17 interest in the prosecution of Defendant in this matter. Id. at 3. The Government opposes,
18 arguing that the nature of Defendant's conduct does not qualify it as De minims, and "was
19 exactly the type of conduct that the statute was designed to prevent in order to ensure the safety
20 of the community" and Defendant's life sentence without parole does not mitigate his conduct.
21 (Opp'n at 2). Further, according to the Government, the cell phone at issue was capable of 22 sending and receiving messages during the time alleged. Id.
23 For the purpose of this motion, the Court assumes as true all the factual allegations 24 against Defendant. Perez, 2004 Guam 4 'II 16. The Indictment charges Defendant as follows:
25 SIXTH CHARGE 26 On or about the 27th day of September, 2017, in Guam, FRANK EDWARD 27 PANGELINAN, did commit the offense of Promotion of Major Prison Contraband (Communication Device), in that, he possessed within a detention 28
People v. Pangelinan Case N0.CF0600-l7 Decision and Order
Page 3 of 5
- • facility any telecommunication or digital equipment prohibited by statute, rule or l policy that provides communication, either in written or verbal messages, or 2 through the transmission of electronic data via the internet, in violation of 9 GCA 3 §§ 58.60(a)(2)(C), 58.60(c)(3) & E.O. 94-19 D.O.C.R.R. Sec. 307 Code #304 & #325 . 4 (Indictment at 3). According to the portion of an affidavit for a search warrant submitted under 5 seal, two DOC officers discovered the cell phone in Defendant's cell on September 27, 2017, 6 when they conducted an unannounced shakedown around 4:40 p.m. See Ex. filed under seal, 7 Dec. 29, 2017. A subsequent search of the cell phone itself indicates that there were several 8 phone calls that took place on September 26 and 27, as well as fourteen (l4) SMS Messages 9 logged on the phone. See Ex. filed under seal, Jan. 5, 2018. 10 The Rules and Regulations of the Guam Department of Corrections ("DOCRR") were H approved under Executive Order 94-19 (Dec. 30, 1994). Pursuant to the DOCRR: 12 There are four (4) categories of prohibited acts: Greatest, High, Moderate, and 13 Low. Specific sanctions are authorized for each category. im position of a 14 sanction requires that the inmate be first found to have committed a prohibited act. 15 (E.O.
Free access — add to your briefcase to read the full text and ask questions with AI
• FaL SUPE Unum
20!HFEB PH I §'7 CLERK DF OURT
IN THE SUPERIOR COURT OF GUAM By?
THE PEOPLE OF GUAM, CRIMINAL CASE NO. CF0600- 17
vs. DECISION ANDORDER
FRANK EDWARD PANGEL1NAN,
Defendant.
INTRODUCTION This matter came before the Honorable Vernon P. Perez on January 3, 2018, for heating
on Defendant Frank Edward Pangelinan's ("Defendant") Motion to Dismiss. Defendant was
present and represents himself pro Se. Attorney William B. Pole was also present on behalf of
Defendant, as a second chair. Assistant Deputy Attorney General James C. Collins was present
on behalf of the People of Guam ("the Government"). In accordance with its ruling from the
bench on January 31, 2018, the Court now issues the following Decision and Order GRANTING Defendant's Motion to Dismiss.
BACKGROUND On October 30, 2017, Defendant was indicted with the charge of Promotion of Major
Prison Contraband (Communication Device) (As a Second Degree Felony). (Indictment, Oct.
30, 2017). Defendant is one of five defendants charged in this matter. The Indictment also charges Corina Lynn Blas Tedtaotao with (1) Conspiracy to Promote Major Prison Contraband
(As a Second Degree Felony) and (2) Possession of a Schedule II Controlled Substance (As a
Third Degree Felony), Quiana Liberty Iglesias Manibusan with (l) Conspiracy to Promote
People v. Pangelinan Case No.CF0600»l7 Decision and Order
Page 1of 5 ORIGINAL l
l Major Prison Contraband (As a Second Degree Felony),1 Raymond Tories Tedtaotao with (1)
2 Promotion of Major Prison Contraband (Controlled Substance) (As a Second Degree Felony) 3 and (2) Possession of a Schedule II Controlled Substance (As a Third Degree Felony); and Paul
4 Lynnwood Johnson with (1) Conspiracy to Promote Major Prison Contraband (As a Second
5 Degree Felony) with an attached Special Allegation: Felony Committed W hile on Pre-Trial 6 Felony Release. (Indictment, Oct. 30, 2017). According to the Declaration attached to the 7 Magistrate's Com plaint, the charge against Defendant is based on the discovery and
8 confiscation of a cell phone and charging apparatus from his cell at DOC. (Decl. of James C.
9 Collins, Magistrate's Con pl., Oct. 20, 2017). Defendant is currently serving a life sentence 10 without the possibility of parole at DOC.
11 On November 8, 2017, Ar Arraignment, Defendant asserted his right to speedy trial. Jury
12 selection and Trial in this matter was set to commence on December 20, 2017. 13 On December 5, 2017, Defendant Sled a Motion to Dismiss for the Allegation is De 14 Minims. On December 22, 2017, the Government filed its Opposition. On December 29,
\5 2017, Defendant filed his Reply as well as an Exhibit tiled under seaL On January 3, 2018, the 16 Court heard oral arguments on the motion and gave Defendant leave to file supplemental
17 pleadings based on additional discovery. On January 5, 2018, Defendant filed an Addendum 18 Reply to the Government's Opposition as well as an Exhibit under seal in support. 19 DISCUSSION 20 Defendant moves the Court to dismiss this matter because it is De Minims under 9
21 G.C.A. § 7.67. Section 7.67, Appropriateness of Prosecution, provides: 22 The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it 23 finds that the defendants conduct: 24 (a) Was within a customary license or tolerance, neither expressly negated 25 by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; 26
27 1 Codefendant Manibusan entered into a Plea Agreement with the Government on January 10, 2018. (Plea 28 Agreement, Jan. 10, 2018).
People v. Pangelinan Case N0.CF0600~l7 Decision and Order
Page 2 of 5
- (b) Did not actually cause or threaten the harm or evil sought to be 1 prevented by the law defining the offense or did so only to an extent too 2 trivial to warrant the condemnation of conviction, or 3 (c) Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The court shall 4 not dismiss a prosecution under this Subsection without tiling a written 5 statement of its reasons.
6 9 G.C.A. § 7.67. Section 7.67 "directs the triad court to dismiss a prosecution if it finds that the
7 defendant's conduct falls within at least one of three distinct circumstances," People v.Perez,
8 2004 Guam 4 <][9 (emphasis in original). The "statute recognizes that it would be unrealistic to
9 believe that judges never enter a finding of not guilty even though guilt is proven where a
10 conviction is considered to be in appropriate, and therefore authorizes the trial court to mitigate
the general provisions of the criminal law to prevent absurd applications." Id. at qt 10 (agreeing
12 with 9 G.C.A. § 7.67 commentary).
13 In this case, Defendant argues that the Government has not provided any evidence that
14 the cell phone in question was used or that it could be used as a communication device, and he
15 is not eligible for parole. (Mot. Dismiss at 2). Additionally, Defendant argues that any prison
\6 security issues are best left to the DOC administration and that there is no or little Government
17 interest in the prosecution of Defendant in this matter. Id. at 3. The Government opposes,
18 arguing that the nature of Defendant's conduct does not qualify it as De minims, and "was
19 exactly the type of conduct that the statute was designed to prevent in order to ensure the safety
20 of the community" and Defendant's life sentence without parole does not mitigate his conduct.
21 (Opp'n at 2). Further, according to the Government, the cell phone at issue was capable of 22 sending and receiving messages during the time alleged. Id.
23 For the purpose of this motion, the Court assumes as true all the factual allegations 24 against Defendant. Perez, 2004 Guam 4 'II 16. The Indictment charges Defendant as follows:
25 SIXTH CHARGE 26 On or about the 27th day of September, 2017, in Guam, FRANK EDWARD 27 PANGELINAN, did commit the offense of Promotion of Major Prison Contraband (Communication Device), in that, he possessed within a detention 28
People v. Pangelinan Case N0.CF0600-l7 Decision and Order
Page 3 of 5
- • facility any telecommunication or digital equipment prohibited by statute, rule or l policy that provides communication, either in written or verbal messages, or 2 through the transmission of electronic data via the internet, in violation of 9 GCA 3 §§ 58.60(a)(2)(C), 58.60(c)(3) & E.O. 94-19 D.O.C.R.R. Sec. 307 Code #304 & #325 . 4 (Indictment at 3). According to the portion of an affidavit for a search warrant submitted under 5 seal, two DOC officers discovered the cell phone in Defendant's cell on September 27, 2017, 6 when they conducted an unannounced shakedown around 4:40 p.m. See Ex. filed under seal, 7 Dec. 29, 2017. A subsequent search of the cell phone itself indicates that there were several 8 phone calls that took place on September 26 and 27, as well as fourteen (l4) SMS Messages 9 logged on the phone. See Ex. filed under seal, Jan. 5, 2018. 10 The Rules and Regulations of the Guam Department of Corrections ("DOCRR") were H approved under Executive Order 94-19 (Dec. 30, 1994). Pursuant to the DOCRR: 12 There are four (4) categories of prohibited acts: Greatest, High, Moderate, and 13 Low. Specific sanctions are authorized for each category. im position of a 14 sanction requires that the inmate be first found to have committed a prohibited act. 15 (E.O. 94-19 at 8). Section 3.7 provides a listing of prohibited acts that are classified under the 16 "moderate misconduct category," which includes code numbers 304 and 325, prohibited acts 17 Defendant allegedly committed by possessing the cellular device, as well as a Schedule of 18 Sanctions that may be imposed for inmates found to have committed the prohibited act(s). See 19 Indictment, E.O. 94-19 at 14-17. 20 Code # 304: Possessing unauthorized items for retention or receipt by the inmate, and 21 not issued the inmate through regular channels. 22 Code #325: Possessing, manufacturing, or introducing unauthorized property. 23 (E.O. 94-19 at 14). 24 The Government argues that "[t]here is nothing about Defendant's conduct, possession 25 of a cellular phone while in detention at DOC, putting the safety of DOC personnel / and other 26 inmates at risk, that would qualify it as De minims." (Opp'n at 2). The Court notes however, 27 that Defendant was not charged with Code # 112: Conduct which disrupts or interferes with the 28
People v. Pangelinan Case No.CF0600-17 Decision and Order
Page 4 of 5 • 1 security or orderly running of the Department. The Court acknowledges that the Government 2 has a significant interest in preventing major prison contraband involving controlled substances, 3 but does not find this to be the case for Defendant. Defendant is charged with Promotion of 4 Major Prison Contraband based on possessing a cell phone, not based on possessing a Schedule 5 II Controlled Substance. Further Defendant is not charged with Conspiracy to Promote Major 6 Prison Contraband. The Court's review of the discovery submitted for its' in camera review 7 does not clearly tie Defendant to the alleged conspiracy. The Court believes that DOC's 8 administration can sufficiently address Defendant's violation of Code numbers 304 and 325 9 based on its own internal Rules and Regulations. 10 Therefore, upon review of the facts of the case specific to Defendant, the Court finds it appropriate to dismiss the matter under 9 G.C.A. § 7.67(b) and GRANTS Defendant's Motion. XI CONCLUSION 13 For the foregoing reasons, the Court hereby GRANTS Defendant's Motion to Dismiss. 14 IT IS SO ORDERED, nuns pro tune to January 31, 2018, this Fesszm 15
19 HONORABLE VERNON p. PEREZ Judge, Superior Court of Guam 20
22 SERVICE viA CDURT BOX 23 I acknowledge flt I copy of the original hereto was placed in the court box af- 24 ,PQI45 L§5/=w 25 FEMLM 26 Depute or Court al Guam 27
Page S of 5