2 PEOPLE OF GUAM, ) 3 ) vs. ) DECISION AND ORDER 4 ) (Motion to Dismiss) PAUL L.G. REYES, ) 5 ) 6 Defendant. )
8 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on 9 December 22, 2011 for Defendant's Motions to Dismiss (hereinafter referred to as "Motion"). 10 Defendant was not present, but was represented by Attorney Suresh Sampath. People were 11 represented by Assistant Attorney General James C. Collins. The Court having considered all 12 the oral arguments, briefs, and materials filed herein now renders the following decision. 13 Guam's Supreme Court heIdI: "that unless good cause is shown, a complaint shall be 14 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 15 complaint." People v. Rasauo, 2011 Guam 14 ~ 16. Defendant argues that pursuant to People v. 16 Rasauo, 2011 Guam 14 (hereinafter referred to as Rasauo 11'), this case should be dismissed 17 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 18 was filed. See also 8 GCA § 60.10. People argue that the Court should find good cause exists for 19 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this 20 Court will review the specific facts in this case to determine whether or not there was good 21 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was 22 filed. Rasauo, 2011 Guam 14 ~~ 10, 14. 23 Defendant was arrested on June 12, 2010 and given a notice to appear (''NTA'') with a 24 date of June 1,2011. On May 4,2011, the Complaint was filed, but no summons was issued2 .
26 1 This holding is hereinafter referred to as the "60 day rule." 2 Unlike the facts in Rasauo II, the Court notes that a summons is now required to automatically be issued on all 27 misdemeanors, upon a filed complaint and affidavit, even when the People do not request for a summons, after a probable cause determination is made. 8 GCA § 15.20(a). Also, currently, all persons arrested for Dill charge are 28 brought before a magistrate for a probable cause determination prior to being released; therefore, a NTA is not issued.
lof6 Id. at ~ 7. The Court takes judicial notice of the fact that there was no magistrate judge on June 2 1, 2011, and that the arraignment was continued until July 6, 2011. The Magistrate Court 3 appointed Defendant representation on July 6, 2011, and set the continued arraignment for 4 August 10, 2011. Defendant was arraigned after ninety-eight (98) days had passed from the
5 filing of the Complaint. 6 The Court notes that the People concede that there is no good cause for the delay 7 between the filing of the Complaint and the NTA date twenty-eight (28) days later. This amount 8 of delay does not violate the 60 day rule announced in Rasauo II; thus the Court will review the 9 other delays to determine if the time after July 5, 2011 3 constitutes good cause or if this case
10 must be dismissed for the 60 day rule violation. 11 The first delay in this case occurred because there was not a magistrate judge on the 12 original hearing scheduled for arraignment. The delay in a criminal case due to the 13 unavailability of a judge has been found to be good cause in exceptional circumstances. Gill v. 14 Superior Ct. of Guam, 1996 WL 875781, *4 (D. Ct. Guam Oct. 4, 1996). However, there is no 15 showing of exceptional circumstances for delay that commenced on June 1, 2011. It is also of 16 note that since the onus is on all judicial officers to ensure that a defendant is promptly 17 arraigned, the arraignment might have been continued to the following week, but instead it was 18 continued for over a month. Therefore, the Court fmds that the unreasonable delay caused by 19 the unavailability of a magistrate to arraign Defendant, more than 60 days after the Complaint 20 was filed, is not good cause. Thus, this delay in this case is per se unreasonable, hence this case
21 should be dismissed for the violation of the 60 day rule. 22 While not necessary for this decision, for purposes of thoroughness, the Court 23 determines that the next delay of an additional thirty-five (35) days that the Court allowed 24 Defendant to meet and confer with counsel prior to being arraigned is unreasonable and does 25 not constitute good cause. Title 8 Guam Code Annotated section 45.30(c) provides that the 26 Court shall allow reasonable time to a defendant to meet and confer with counsel prior to being
28 3 The sixtieth day falls on Sunday, July 3,2011; thus pursuant to 8 GCA § 1.25(a), the sixtieth day becomes July 5, 2011.
20f6 arraigned. Meeting with and discussing this with counsel allows a defendant to understand the
2 significance of the arraignment process as well as the defendant's rights, which are asserted or 3 waived at arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to
4 have this understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744- 5 45 (Ky. Ct. App. 2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo,
6 2011 Guam 1, are not present when a defendant is appointed counsel and the delay between the
7 Complaint and the arraignment is partially attributed to the time necessary for a defendant to 8 meet and confer with his appointed attorney. 2011 Guam 1 ~ 53 (quoted by Rasauo, 2011 Guam
9 14~10).
10 In this case, Defendant argued that a reasonable amount of time for a defendant to meet 11 and confer with an attorney prior to arraignment is no more than one (1) week. See e.g. Decl. of 12 PDSC Investigator Sea Aguon Cruz, CM547-11 (Dec. 19, 2011). The Office of the Attorney 13 General has argued in several cases that any delay of arraignment occasioned by a continuance 14 granted by the magistrate court should be excused as good cause. The Court disagrees that a 15 bright line rule of any delay caused by a court's calendaring of a criminal matter is 16 automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 17 intended the court and its officers to be subject to the prompt arraignment rule put forth in 18 Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 19 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the 20 ends of justice"). See also People v. Ilemelong, CF150-1 0 (Super. Ct. Guam Jan. 13,2012). 21 Further, the Court rejects the contention that any length of delays caused by the time 22 provided to a defendant to meet and confer with an attorney is automatically good cause. The
23 Court finds that a reasonable amount of delay attributed to the time a defendant needs to meet 24 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009
25 Guam 22 ~ 38. Since the onus is on all judicial officers and the prosecuting attorneys to ensure 26 that a defendant is promptly arraigned, the Court holds that reasonable time, in the context of a 27 continued arraignment after a defendant is appointed counsel, means no more than thirty (30) 28
30f6 days4. 8 GCA § 80.50(a). Therefore, the Court finds that thirty-five (35) days is an excessive 2 amount of time for a court to provide a defendant to meet and confer with his attorney prior to 3 being arraigned. 4 Lastly, the Court must determine if the dismissal should be with or without prejudice. 5 The Court is persuaded by the People's argumentS that the dismissal should be without 6 prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule requires 7 a dismissal with prejudice.
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2 PEOPLE OF GUAM, ) 3 ) vs. ) DECISION AND ORDER 4 ) (Motion to Dismiss) PAUL L.G. REYES, ) 5 ) 6 Defendant. )
8 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on 9 December 22, 2011 for Defendant's Motions to Dismiss (hereinafter referred to as "Motion"). 10 Defendant was not present, but was represented by Attorney Suresh Sampath. People were 11 represented by Assistant Attorney General James C. Collins. The Court having considered all 12 the oral arguments, briefs, and materials filed herein now renders the following decision. 13 Guam's Supreme Court heIdI: "that unless good cause is shown, a complaint shall be 14 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 15 complaint." People v. Rasauo, 2011 Guam 14 ~ 16. Defendant argues that pursuant to People v. 16 Rasauo, 2011 Guam 14 (hereinafter referred to as Rasauo 11'), this case should be dismissed 17 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 18 was filed. See also 8 GCA § 60.10. People argue that the Court should find good cause exists for 19 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this 20 Court will review the specific facts in this case to determine whether or not there was good 21 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was 22 filed. Rasauo, 2011 Guam 14 ~~ 10, 14. 23 Defendant was arrested on June 12, 2010 and given a notice to appear (''NTA'') with a 24 date of June 1,2011. On May 4,2011, the Complaint was filed, but no summons was issued2 .
26 1 This holding is hereinafter referred to as the "60 day rule." 2 Unlike the facts in Rasauo II, the Court notes that a summons is now required to automatically be issued on all 27 misdemeanors, upon a filed complaint and affidavit, even when the People do not request for a summons, after a probable cause determination is made. 8 GCA § 15.20(a). Also, currently, all persons arrested for Dill charge are 28 brought before a magistrate for a probable cause determination prior to being released; therefore, a NTA is not issued.
lof6 Id. at ~ 7. The Court takes judicial notice of the fact that there was no magistrate judge on June 2 1, 2011, and that the arraignment was continued until July 6, 2011. The Magistrate Court 3 appointed Defendant representation on July 6, 2011, and set the continued arraignment for 4 August 10, 2011. Defendant was arraigned after ninety-eight (98) days had passed from the
5 filing of the Complaint. 6 The Court notes that the People concede that there is no good cause for the delay 7 between the filing of the Complaint and the NTA date twenty-eight (28) days later. This amount 8 of delay does not violate the 60 day rule announced in Rasauo II; thus the Court will review the 9 other delays to determine if the time after July 5, 2011 3 constitutes good cause or if this case
10 must be dismissed for the 60 day rule violation. 11 The first delay in this case occurred because there was not a magistrate judge on the 12 original hearing scheduled for arraignment. The delay in a criminal case due to the 13 unavailability of a judge has been found to be good cause in exceptional circumstances. Gill v. 14 Superior Ct. of Guam, 1996 WL 875781, *4 (D. Ct. Guam Oct. 4, 1996). However, there is no 15 showing of exceptional circumstances for delay that commenced on June 1, 2011. It is also of 16 note that since the onus is on all judicial officers to ensure that a defendant is promptly 17 arraigned, the arraignment might have been continued to the following week, but instead it was 18 continued for over a month. Therefore, the Court fmds that the unreasonable delay caused by 19 the unavailability of a magistrate to arraign Defendant, more than 60 days after the Complaint 20 was filed, is not good cause. Thus, this delay in this case is per se unreasonable, hence this case
21 should be dismissed for the violation of the 60 day rule. 22 While not necessary for this decision, for purposes of thoroughness, the Court 23 determines that the next delay of an additional thirty-five (35) days that the Court allowed 24 Defendant to meet and confer with counsel prior to being arraigned is unreasonable and does 25 not constitute good cause. Title 8 Guam Code Annotated section 45.30(c) provides that the 26 Court shall allow reasonable time to a defendant to meet and confer with counsel prior to being
28 3 The sixtieth day falls on Sunday, July 3,2011; thus pursuant to 8 GCA § 1.25(a), the sixtieth day becomes July 5, 2011.
20f6 arraigned. Meeting with and discussing this with counsel allows a defendant to understand the
2 significance of the arraignment process as well as the defendant's rights, which are asserted or 3 waived at arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to
4 have this understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744- 5 45 (Ky. Ct. App. 2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo,
6 2011 Guam 1, are not present when a defendant is appointed counsel and the delay between the
7 Complaint and the arraignment is partially attributed to the time necessary for a defendant to 8 meet and confer with his appointed attorney. 2011 Guam 1 ~ 53 (quoted by Rasauo, 2011 Guam
9 14~10).
10 In this case, Defendant argued that a reasonable amount of time for a defendant to meet 11 and confer with an attorney prior to arraignment is no more than one (1) week. See e.g. Decl. of 12 PDSC Investigator Sea Aguon Cruz, CM547-11 (Dec. 19, 2011). The Office of the Attorney 13 General has argued in several cases that any delay of arraignment occasioned by a continuance 14 granted by the magistrate court should be excused as good cause. The Court disagrees that a 15 bright line rule of any delay caused by a court's calendaring of a criminal matter is 16 automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 17 intended the court and its officers to be subject to the prompt arraignment rule put forth in 18 Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 19 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the 20 ends of justice"). See also People v. Ilemelong, CF150-1 0 (Super. Ct. Guam Jan. 13,2012). 21 Further, the Court rejects the contention that any length of delays caused by the time 22 provided to a defendant to meet and confer with an attorney is automatically good cause. The
23 Court finds that a reasonable amount of delay attributed to the time a defendant needs to meet 24 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009
25 Guam 22 ~ 38. Since the onus is on all judicial officers and the prosecuting attorneys to ensure 26 that a defendant is promptly arraigned, the Court holds that reasonable time, in the context of a 27 continued arraignment after a defendant is appointed counsel, means no more than thirty (30) 28
30f6 days4. 8 GCA § 80.50(a). Therefore, the Court finds that thirty-five (35) days is an excessive 2 amount of time for a court to provide a defendant to meet and confer with his attorney prior to 3 being arraigned. 4 Lastly, the Court must determine if the dismissal should be with or without prejudice. 5 The Court is persuaded by the People's argumentS that the dismissal should be without 6 prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule requires 7 a dismissal with prejudice. Rasauo, 2011 Guam 14 1 16("The issue of whether or not the case 8 should be dismissed with or without prejudice should be decided in the first instance by the trial 9 court."). This is in contrastto other criminal cases Guam's Supreme Court has addressed, where 10 the case was dismissed with prejudice based upon a finding that there was a statutory bar to re- 11 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v. 12 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a 13 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory 14 interpretation. Rasauo, 2011 Guam 14113; People v. Stephen, 2009 Guam 8 11 35-36. 15 Therefore, the Court considers "a showing of prejudice or any other factors" to 16 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by 17 Villapondo, 1999 Guam 31 1 52). Cf 18 U.S.C. § 3162(a)(2). Defendant does not make a 18 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of 19 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 20 1 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used 21 to determine if dismissal with prejudice is required here. 22 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed 23 for alleged government misconduct which occurs outside the Complaint process because such 24 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of 25 justice.'" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(internal 26
27 4 The Court encourages the arraignment judge to consider only granting continuances for a defendant to meet with appointed counsel of two (2) weeks or less in light of the Rasauo II decision; however, the Court accepts that up to 28 thirty (30) days is reasonable. 5 This issue was raised orally, not in the written opposition
4of6 citations omitted). See also Stephens, 2009 Guam 8 ,-r 21 (discussing dismissal for unnecessary 2 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 ,-r,-r 61- 3 70(discussing dismissal based on finding the People acted in bad faith). In this case, there is no 6 4 alleged government misconduct or bad faith on the part of the People . Instead, there is a 5 violation of the 60 day rule, which was recently announced in Rasauo II, which requires
6 dismissal, but not necessarily dismissal with prejudice. 7 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong 8 message to prosecutors who have consistently violated defendants' rights and force them to 9 reduce pretrial delays in general. Us. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8, 10 2011). Stephens, 2009 Guam 8 ,-r 21("If a court is to apply the harsh rule of dismissing a 11 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution 12 that further delay could jeopardize the case."). However, the violation of a defendant's prompt 13 arraignment right is not an issue this Court has been asked to address in relation to arraignments 14 that occurred after Rasauo II was issued. Instead, this Court is merely addressing motions to 15 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court 16 to believe that the People do not require a strong message from this Court to ensure that they are 17 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of
18 dismissal without prejudice. 19 Further, in this circumstance, dismissal without prejudice can not be seen as condoning 20 the People's behavior, because neither the People nor the Court were aware of the 60 day rule at 21 the time of the delay of the Defendant's prompt arraignment. Id. This factor weighs in favor of
22. dismissal without prejudice. 23 In this scenario, Defendant's constitutional rights are not implicated, thus the Court 24 should weigh the violation of Defendant's right to a prompt arraignment with the competing 25 interest "of society to be secure from crime through the regular enforcement of the criminal 26 laws." Gutierrez, 2005 Guam 19 ,-r 68(intemal citation and quotation omitted). Upon balancing
28 6 All of the procedural facts of this case occurred before the promUlgation of Rasauo 11, therefore, there can be no fmding that the People intentionally violated the 60 day rule.
50f6 these factors as well as taking into consideration of lack of showing of prejudice the Court
2 detennines that dismissal without prejudice is most appropriate. 3 There are ninety-eight (98) days between the filing of the Complaint and Defendant's 4 arraignment. As indicated above, there is not good cause shown for the entire duration of the 5 violation of the 60 day rule. Therefore, Defendant's Motion is GRANTED in part. Rasauo, 2011 6 Guam 14 ~ 16. The Court finds that Defendant was not promptly arraigned pursuant to 8 GCA § 7 60.l0(a); therefore, the Court is DISMISSING this case without prejudice.
9 IT IS SO ORDERED this _ of February, 2012.
12 HONORABLE ELI~ABETH BARRETT-ANDERSON Judge, Superior Court of Guam 13
20 fEB Z4 201l 21
60f6