Ti
FILED . l SUPERIOR COURT OF GUAN 2 ZOISFEB 20 PH l=27 3 CLERKOFCOURT 4
6 IN THE SUPERIOR COURT OF GUAM 7
8 THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0241-16 9
10 vs. DECISION AND ORDER
12 DEVIN TAYLOR TAITANO POTTS I 13 Defendant. 14
15 INTRODUCTION
16 This matter came before the Honorable Vernon P. Perez on November 28, 2018, for
17 hearing on Defendant Devin Taylor Taitano Potts' ("Defendant") Motion to Sever Counts.
18 Defendant was not present, but was represented by counsel, Attorney Delia W olff. Assistant
19 Attorney General James C. Collins was present on behalf of the People of Guam ("the
20 Government"). Having reviewed the pleadings, the arguments presented, and the record, the
21 Court now issues the following Decision and Order.
22 BACKGROUND
23 On April 14, 2018, Defendant was indicted with two counts of Possession of a Schedule
24 II Controlled Substance (As a Third Degree Felony).l (Indictment, Apr. 14, 2018). Count One
25 alleges that Defendant possessed a Schedule H Controlled Substance on or about November 24,
26 I The Indictment also charges co-defendant Marcus Damian with one count of Possession of a Schedule II 27 Controlled Substance (As a Third Degree Felony). Co-defendant Damian entered into a global plea agreement with the Government on December 13, 2017, and is currently serving a sixty-two (62) month sentence at the Department 28 of Corrections. See Plea Agreement, Dec. 29, 2017, Judgment, Sep. 20, 2018.
People v. Potts Case No. CF024l-I6 Decision and Order
Page 1 of 4 I 2015, while Count Two alleges that Defendant possessed a Schedule II Controlled Substance on
2 or about February 1 2 , 2 0 1 6 . Id. B ot h c ount s st e m from t he d i sc ove ry of suspe c t e d
3 methamphetarnines in Defendant's possession during a traffic stop.
4 On October 8, 2016, Defendant filed the instant Motion. On October 22, 2018, the
5 Government tiled its Opposition. No Reply was filed. On November 28, 2018, the Court heard
6 oral arguments on the Motion and subsequently placed the matter under advisement.
7 DISCUSSION
8 Defendant moves the Court to sever the two counts of Possession of a Schedule II
9 Controlled Substance for trial pursuant to 8 G.C.A. § 65.35. See generally, Mot., Oct. 8, 2018.
10 Under Guam law, two or more offenses may be charged in the same indictment "if the
offenses charged are of the same or similar character or based on the same act or transaction or
12 on two or more acts or transactions connected together or constituting parts of a common
13 scheme or plan." 8 G.C.A. § 55.35.2 However, "if it appears that a d efend ant or the
14 government is prejudiced by a jointer of offenses .. . in an indictment or information or by such
15 jointer for trial together, the court may order an election or separate trials of counts. as 8 16 G.C.A. § 65.35.
17 W hen determining whether offenses are properly joined, courts traditionally consider
18 "whether the charges are laid under the same statute, whether they involve similar victims,
19 locations, or modes of operation, and the time frame in which the charged conduct occurred."
20 United States v. Taylor, 54 F.3d 967, 973 (let Cir. I995) (citations omitted). Furthermore, "the
21 validity of the jointer is determined solely by the allegations in the indictment." United States
22 v. Jawara, 474 F.3d 565, 572 (9th Cir. 2007) (citing United States v. Terry, 911 F.2d 272 (9th
24 1 Section 55.35 is substantially the same as Rule 8 of the Federal Rules of Criminal Procedure. See 8 G.C.A. § 25 55.35, Note. Rule 8(a) provides:
26 (a) Joiner of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged - whether felonies or misdemeanors or both - are 27 of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. 28 Fed. R. Crum. p. 8.
People v. Ports Case No. CF024l- 16 Decision and Order
Page 2 of 4 I Cir. 1990)). "At least one of Rule 8(a)'s three conditions must be satisfied for proper jointer, 2 and 'those conditions, although phrased iN general terms, are not infinitely elastic."' ld. at 573
3 (citation omitted). "[T]he primary purpose of Rule 8(a) jointer is to ensure that a given
4 transaction need only be proved once. ... Where there is substantial overlap in evidence
5 between two offenses, jointer eliminates the need to prove substantially the same evidence
6 twice over, thus realizing precisely the kind of economy envisaged by Rule 8(a)." Howerton v.
7 United States, 964 A.2d 1282, 1292 (D.C. 2009). (citations, internal quotation marks, and
8 alterations omitted). See also Terry, 911 F.2d at 276 ("When ... joined offenses are not
g connected and are not provable by the same evidence, jointer is improper.").
10 Here, Defendant argues that it will be extremely prejudicial for the counts to be tried
11 together in front of azury, that the charged acts are "separate and distinct from each other," and
12 there is no evidentiary overlap. (Mot. at 3). The Government, in opposition, argues that both
13 counts involve simple drug possession resulting in a "joint arrest" in March 2016, there is not a
14 significant period of time lapsing between both incidents, and that testimony will overlap for
15 both incidents concerning Defendant's "discussions with law enforcement in regards to
16 potential co-operation and his later simultaneous arrest." (Opp'n at 3).
17 Accordingly, the issues before the Court are whether jointer is appropriate under the
18 "same or similar character" prong and whether Defendant is prejudiced by such jointer. The
19 "same or similar character" prong "is the most amorphous and controversial of the three 20 grounds forjoinder." Id. at 575.
21 Numerous courts and commentators have questioned the logic and fairness of such a rule. See e.g., Randazzo, 80 F.3d at 627 ("It is obvious why Congress 22 provided for jointer of counts that grow out of related transactions the reasons 23 for allowing jointer of offenses having 'the same or similar character' is less clear."), Helper, 590 F.2d at 430 ("When all that can be said of two separate 24 offenses is that they are of the 'same or similar character,' the customary 25 justifications for jointer (efficiency and economy) largely disappear.... At the 26 same time, the risk to the defendant in such circumstances is considerable."), Note, Joint and Single Trials under Rule 8 and 14 of the Federal Rules of 27 Criminal Procedure, 74 Yale L.J. 553, 560 (1965) (recommending "abolition of 28 jointer of similar offenses under Rule 8" given its "lack of utility" and risk of
People v. Potts Case No. CF024l-16 Decision and Order
Page 3 of 4 prejudice to the defendant); lA Charles Alan Wright, Federal Practice And I Procedures 143 (ad ed. 1999) ("Joiner on this ground poses obvious dangers of 2 prejudice to the defendant....
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Ti
FILED . l SUPERIOR COURT OF GUAN 2 ZOISFEB 20 PH l=27 3 CLERKOFCOURT 4
6 IN THE SUPERIOR COURT OF GUAM 7
8 THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0241-16 9
10 vs. DECISION AND ORDER
12 DEVIN TAYLOR TAITANO POTTS I 13 Defendant. 14
15 INTRODUCTION
16 This matter came before the Honorable Vernon P. Perez on November 28, 2018, for
17 hearing on Defendant Devin Taylor Taitano Potts' ("Defendant") Motion to Sever Counts.
18 Defendant was not present, but was represented by counsel, Attorney Delia W olff. Assistant
19 Attorney General James C. Collins was present on behalf of the People of Guam ("the
20 Government"). Having reviewed the pleadings, the arguments presented, and the record, the
21 Court now issues the following Decision and Order.
22 BACKGROUND
23 On April 14, 2018, Defendant was indicted with two counts of Possession of a Schedule
24 II Controlled Substance (As a Third Degree Felony).l (Indictment, Apr. 14, 2018). Count One
25 alleges that Defendant possessed a Schedule H Controlled Substance on or about November 24,
26 I The Indictment also charges co-defendant Marcus Damian with one count of Possession of a Schedule II 27 Controlled Substance (As a Third Degree Felony). Co-defendant Damian entered into a global plea agreement with the Government on December 13, 2017, and is currently serving a sixty-two (62) month sentence at the Department 28 of Corrections. See Plea Agreement, Dec. 29, 2017, Judgment, Sep. 20, 2018.
People v. Potts Case No. CF024l-I6 Decision and Order
Page 1 of 4 I 2015, while Count Two alleges that Defendant possessed a Schedule II Controlled Substance on
2 or about February 1 2 , 2 0 1 6 . Id. B ot h c ount s st e m from t he d i sc ove ry of suspe c t e d
3 methamphetarnines in Defendant's possession during a traffic stop.
4 On October 8, 2016, Defendant filed the instant Motion. On October 22, 2018, the
5 Government tiled its Opposition. No Reply was filed. On November 28, 2018, the Court heard
6 oral arguments on the Motion and subsequently placed the matter under advisement.
7 DISCUSSION
8 Defendant moves the Court to sever the two counts of Possession of a Schedule II
9 Controlled Substance for trial pursuant to 8 G.C.A. § 65.35. See generally, Mot., Oct. 8, 2018.
10 Under Guam law, two or more offenses may be charged in the same indictment "if the
offenses charged are of the same or similar character or based on the same act or transaction or
12 on two or more acts or transactions connected together or constituting parts of a common
13 scheme or plan." 8 G.C.A. § 55.35.2 However, "if it appears that a d efend ant or the
14 government is prejudiced by a jointer of offenses .. . in an indictment or information or by such
15 jointer for trial together, the court may order an election or separate trials of counts. as 8 16 G.C.A. § 65.35.
17 W hen determining whether offenses are properly joined, courts traditionally consider
18 "whether the charges are laid under the same statute, whether they involve similar victims,
19 locations, or modes of operation, and the time frame in which the charged conduct occurred."
20 United States v. Taylor, 54 F.3d 967, 973 (let Cir. I995) (citations omitted). Furthermore, "the
21 validity of the jointer is determined solely by the allegations in the indictment." United States
22 v. Jawara, 474 F.3d 565, 572 (9th Cir. 2007) (citing United States v. Terry, 911 F.2d 272 (9th
24 1 Section 55.35 is substantially the same as Rule 8 of the Federal Rules of Criminal Procedure. See 8 G.C.A. § 25 55.35, Note. Rule 8(a) provides:
26 (a) Joiner of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged - whether felonies or misdemeanors or both - are 27 of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. 28 Fed. R. Crum. p. 8.
People v. Ports Case No. CF024l- 16 Decision and Order
Page 2 of 4 I Cir. 1990)). "At least one of Rule 8(a)'s three conditions must be satisfied for proper jointer, 2 and 'those conditions, although phrased iN general terms, are not infinitely elastic."' ld. at 573
3 (citation omitted). "[T]he primary purpose of Rule 8(a) jointer is to ensure that a given
4 transaction need only be proved once. ... Where there is substantial overlap in evidence
5 between two offenses, jointer eliminates the need to prove substantially the same evidence
6 twice over, thus realizing precisely the kind of economy envisaged by Rule 8(a)." Howerton v.
7 United States, 964 A.2d 1282, 1292 (D.C. 2009). (citations, internal quotation marks, and
8 alterations omitted). See also Terry, 911 F.2d at 276 ("When ... joined offenses are not
g connected and are not provable by the same evidence, jointer is improper.").
10 Here, Defendant argues that it will be extremely prejudicial for the counts to be tried
11 together in front of azury, that the charged acts are "separate and distinct from each other," and
12 there is no evidentiary overlap. (Mot. at 3). The Government, in opposition, argues that both
13 counts involve simple drug possession resulting in a "joint arrest" in March 2016, there is not a
14 significant period of time lapsing between both incidents, and that testimony will overlap for
15 both incidents concerning Defendant's "discussions with law enforcement in regards to
16 potential co-operation and his later simultaneous arrest." (Opp'n at 3).
17 Accordingly, the issues before the Court are whether jointer is appropriate under the
18 "same or similar character" prong and whether Defendant is prejudiced by such jointer. The
19 "same or similar character" prong "is the most amorphous and controversial of the three 20 grounds forjoinder." Id. at 575.
21 Numerous courts and commentators have questioned the logic and fairness of such a rule. See e.g., Randazzo, 80 F.3d at 627 ("It is obvious why Congress 22 provided for jointer of counts that grow out of related transactions the reasons 23 for allowing jointer of offenses having 'the same or similar character' is less clear."), Helper, 590 F.2d at 430 ("When all that can be said of two separate 24 offenses is that they are of the 'same or similar character,' the customary 25 justifications for jointer (efficiency and economy) largely disappear.... At the 26 same time, the risk to the defendant in such circumstances is considerable."), Note, Joint and Single Trials under Rule 8 and 14 of the Federal Rules of 27 Criminal Procedure, 74 Yale L.J. 553, 560 (1965) (recommending "abolition of 28 jointer of similar offenses under Rule 8" given its "lack of utility" and risk of
People v. Potts Case No. CF024l-16 Decision and Order
Page 3 of 4 prejudice to the defendant); lA Charles Alan Wright, Federal Practice And I Procedures 143 (ad ed. 1999) ("Joiner on this ground poses obvious dangers of 2 prejudice to the defendant.... [I]t may fairly be asked whether jointer of this kind 3 should ever be allowed. If the offenses arise out of separate and unrelated transactions, there is likely to be little saving in time and money in having a single 4 trial."). 5 Id. The Court "consider[s] factors such as the elements of the statutory offenses, the temporal 6 proximity of the acts, the likelihood and extent of evidentiary overlap, the physical location of 7 the acts, the modus operandi of the crimes, and the identity of the victims in assessing whether 8 an indictment meets the 'same or similar character prong." Id. at 578. 9 The Court acknowledges that the two offenses charged here are identical: Defendant is 10 charged with two counts of Possession of a Schedule II Controlled Substance, that is, an
amphetamines-based substance, occurring at two different times, roughly three months apart. 12 Although there may be some evidence that overlaps as to any discussion Defendant may have 13 had with law enforcement regarding cooperation, as the Government argues, the Court does not 14 find that the likelihood of such evidentiary overlap trumps any potential prejudice to Defendant. 15 Accordingly, the Court will grant Defendant's Motion to Sever Counts. 16 CONCLUSION 17 For the foregoing reasons, the Court hereby GRANTS Defendant's Motion to Sever 18 Counts. Separate trials will occur for each count of Possession of a Schedule II Controlled 19 Substance. Further Proceedings are set for S>l §//01 at 9:00 a.m. 20
21 IT IS SO ORDERED thls . 90% day of February, 2019. vi` IL 22 > 23 . SERVICE VIA CQURT cc C Iaaknc1'.*:dgl: ti :' _ ' :ogy of the 24 uriglnll here.: -.- : laced in the mu of: s
25 ea; 5.mg; HONORABIJEVERNON p. PEREZ Judge, Supefior._C;;u"rt ofGHam 26 /,~ I ~C
27 Rosalind Elajgdia Deputy Gee
People v. Ports Case No.CF024l-16 Decision and Order
Page 4of 4