IN THE SUPERIOR COURT OF
2 PEOPLE OF GUAM, ) CRIMINAL CASE NOC Cr:i69-d +; 3 ) \ ) \
4 ) \ vs. ) ' 5 ) ) 6 TIMOTHY GEORGE PARALIZA, ) DECISION AND ORDER ) 7 Defendant. ) ) 8 ) _____________________________) 9 This matter came before the HONORABLE VERNON P. PEREZ on February 25, 2013 10 for Defendant's Motion to Dismiss. Attorney Suresh Sampath represented the Defendant. II 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, CM0279-ll, was dismissed without prejudice on February 24, 2012. The case was re-
18 filed and Defendant now requests dismissal. The Court took argument on the motion on February 25, 2013. The Court now addresses the Motion to Dismiss. 19 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
Decision and Order CM0269-12 -Page 1 of 4- 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 II 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, 53 7(1972). A court should also consider the seriousness of the offense as the more serious the offense, the more weight given to dismissal without prejudice. United States v. Clymer, 25 16 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 that while the above standard applies to a speedy trial right 23 violation and the federal rules may differ from Guam statutes, the factors are helpful in the 24 instant matter as the Guam Supreme Court, in Rasauo II, has deemed the speedy arraignment 25 right akin to the speedy trial right. See People v. Rasauo, 2011 Guam 14. 26
Decision and Order CM0269-12 -Page 2 of 4- Defendant argues that the Guam Supreme Court, in People v. Palomo, 1998 Guam 12,
2 requires dismissal with prejudice as it is the only possible remedy. 1 The Court concludes that
3 dismissal without prejudice is entirely appropriate where the circumstances support such a finding whether or not the violation was statutory or constitutional. 2 Defendant fails to 4 convince the Court that the only possible remedy is dismissal with prejudice as multiple United 5 States Supreme Court decisions, cited above, discuss the ability for a court to apply the relevant 6 factors and decide whether to dismiss a case with or without prejudice. 3 Furthermore, the Guam 7 Supreme Court remanded the portion of the decision relevant to with or without prejudice back 8 to the trial Court in Rasauo II, which is the very decision in which the original dismissal was 9 based upon The Guam Supreme Court left that part of the decision to the trial court. If the 10 Guam Supreme Court wished that Palomo would apply and prevent dismissal without prejudice 11 in Rasauo II dismissals, the Guam Supreme Court would not have given the trial court an 12 opportunity to dismiss the case without prejudice. There can be no language clearer than this: 13 "[t]he issue of whether or not the case should be dismissed with or without prejudice should be
14 decided in the first instance by the trial court". Rasauo II at 5. Thus, the Guam Supreme Court
15 clearly intended that a determination based on the facts of the case be made by the trial court
16 and that dismissal could be with or without prejudice. This Court will balance the factors provided to it by the United States Supreme Court to 17 make a determination. Defendant has presented no support of any factor to show that actual 18 prejudice occurred. There are no suggestions that witnesses are now unavailable or that 19 exculpatory evidence is now missing or deteriorated. The Court should also consider the public 20
21 The Court recognizes Defendant's argument that actual prejudice is not required for a with pr~judice dismissal. The Court 1
22 will only conclude that where actual prejudice is not an element 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).
3 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 arc in a much better than are at 346. v. Paraliza, Decision and Order CM0269-12 -Page 3 of 4- interest factor and the impact on the alleged victim if dismissal occurs with prejudice.
2 Defendant does face misdemeanor charges and the anxiety factors do not appear to weigh in Defendant's favor.
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IN THE SUPERIOR COURT OF
2 PEOPLE OF GUAM, ) CRIMINAL CASE NOC Cr:i69-d +; 3 ) \ ) \
4 ) \ vs. ) ' 5 ) ) 6 TIMOTHY GEORGE PARALIZA, ) DECISION AND ORDER ) 7 Defendant. ) ) 8 ) _____________________________) 9 This matter came before the HONORABLE VERNON P. PEREZ on February 25, 2013 10 for Defendant's Motion to Dismiss. Attorney Suresh Sampath represented the Defendant. II 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, CM0279-ll, was dismissed without prejudice on February 24, 2012. The case was re-
18 filed and Defendant now requests dismissal. The Court took argument on the motion on February 25, 2013. The Court now addresses the Motion to Dismiss. 19 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
Decision and Order CM0269-12 -Page 1 of 4- 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 II 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, 53 7(1972). A court should also consider the seriousness of the offense as the more serious the offense, the more weight given to dismissal without prejudice. United States v. Clymer, 25 16 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 that while the above standard applies to a speedy trial right 23 violation and the federal rules may differ from Guam statutes, the factors are helpful in the 24 instant matter as the Guam Supreme Court, in Rasauo II, has deemed the speedy arraignment 25 right akin to the speedy trial right. See People v. Rasauo, 2011 Guam 14. 26
Decision and Order CM0269-12 -Page 2 of 4- Defendant argues that the Guam Supreme Court, in People v. Palomo, 1998 Guam 12,
2 requires dismissal with prejudice as it is the only possible remedy. 1 The Court concludes that
3 dismissal without prejudice is entirely appropriate where the circumstances support such a finding whether or not the violation was statutory or constitutional. 2 Defendant fails to 4 convince the Court that the only possible remedy is dismissal with prejudice as multiple United 5 States Supreme Court decisions, cited above, discuss the ability for a court to apply the relevant 6 factors and decide whether to dismiss a case with or without prejudice. 3 Furthermore, the Guam 7 Supreme Court remanded the portion of the decision relevant to with or without prejudice back 8 to the trial Court in Rasauo II, which is the very decision in which the original dismissal was 9 based upon The Guam Supreme Court left that part of the decision to the trial court. If the 10 Guam Supreme Court wished that Palomo would apply and prevent dismissal without prejudice 11 in Rasauo II dismissals, the Guam Supreme Court would not have given the trial court an 12 opportunity to dismiss the case without prejudice. There can be no language clearer than this: 13 "[t]he issue of whether or not the case should be dismissed with or without prejudice should be
14 decided in the first instance by the trial court". Rasauo II at 5. Thus, the Guam Supreme Court
15 clearly intended that a determination based on the facts of the case be made by the trial court
16 and that dismissal could be with or without prejudice. This Court will balance the factors provided to it by the United States Supreme Court to 17 make a determination. Defendant has presented no support of any factor to show that actual 18 prejudice occurred. There are no suggestions that witnesses are now unavailable or that 19 exculpatory evidence is now missing or deteriorated. The Court should also consider the public 20
21 The Court recognizes Defendant's argument that actual prejudice is not required for a with pr~judice dismissal. The Court 1
22 will only conclude that where actual prejudice is not an element 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).
3 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 arc in a much better than are at 346. v. Paraliza, Decision and Order CM0269-12 -Page 3 of 4- interest factor and the impact on the alleged victim if dismissal occurs with prejudice.
2 Defendant does face misdemeanor charges and the anxiety factors do not appear to weigh in Defendant's favor. As Defendant was not languishing in jail awaiting the initiation of this case, 3 the liberty interests discussed in Taylor do not favor dismissal with prejudice. However, the 4 crimes alleged against Defendant are not felony crimes, less serious than felonious acts, and this 5 consideration does weigh in favor of dismissal with prejudice. Finally, with all considered 6 above, the Court does not find any bad faith by the Government or the Court in causing the 7 delay. 8 According to the standard for with prejudice dismissal discussed above, the Court 9 concludes that actual prejudice has not occurred. The Court finds that Defendant's delay to 10 arraignment, while excessive, was not so excessive that actual prejudice occurred based on the 11 facts present in this specific case. The Court does appreciate the length of delay to arraignment 12 Defendant faced, yet, the Defendant was not incarcerated at the time he awaited arraignment
13 and no factor weighing in Defendant's favor is great enough to warrant dismissal with
14 prejudice. Thus, the Court denies Defendant's Motion to Dismiss because of the failure to seek
15 proper remedy to the prior dismissal in CM0279-11 and because the previous court appears to
16 have made a decision in compliance with the proper rules. CONCLUSION 17 The Court hereby DENIES Defendant's Motion to Dismiss. The Parties will return for 18 a Criminal Trial Setting on March 11, 2013 at 1O:OOa.m .. 19
20 So ORDERED this \~ day of March, 2013.
~ 21
22 HONORABLE VERNON P. PEREZ 23 JUDGE, SUPERIOR COURT OF GUAM 24
Decision and Order CM0269-12 -Page 4 of4-