People v. Rosalin

Opinion

F¥LED l SUPER!0R couRT 0? GUAM 2

3 2018 JAN -2 PH Ll: UP CLERK QF/:¢uRT 4

5 By '

6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIMINAL CASE NO. CF0487- 17 9 vs. 10 DECISION AND ORDER 11 FRANKIE CHARLES ROSALIN, et al. 12

Defendant(s). la

14 INTRODUCTION 15 This matter is before the Honorable Vemon P. Perez on Defendant Frankie Charles I6 Rosalin's ("Defendant") Motion to Sever filed October 10, 2017. Attorney Anthony C. Perez 17 represents Defendant. Assistant Deputy Attorney General James C. Collins represents the IN People of Guam ("the Government"). Having reviewed the pleadings, the arguments presented, 19 and the record, the Court now issues the following Decision and Order. 20 BACKGROUND 21 On September 14, 2017, Defendant and twelve other co-defendants' were indicted on a 22 total of fifty-one (51) drug related charges. See Indictment, Sep. 14, 2017. Defendant is 23 specifically charged with: (1) Conspiracy to Promote Major Prison Contraband (Controlled 24

25 l The Indictment also charges: Shawn Johnson, Bruno Simmons, Roxanne Hocog, Jeffrey Limo, Fern in Maratita, 26 Edward Crisostomo, Ronald Mano, Gerry Hocog, Paul Johnson, Rosalina Hocog, Jerome San Nicolai, and Liana Cabrera. (Indictment, Sep. 14, 2017). Roxanne Hocog, Fern in Maratita, and Ronald Menu have each entered into 27 cooperation pleas with the Government. See Hocog Plea Agreement, Nov. 13, 2017. Mano Plea Agreement, Nov. 13, 2017, and Maratita Plea Agreement, Nov. 21, 2017. A Bench W arrant was issued for Liana Cabrera on 28 October 5, 2017, for her failure to show up for her Arraignment Hearing on October 4, 2017.

People v. Rosaffn, Er. of. Case No. CF048?-17 Decision and Order ORIGINAL Page 1 of 6 ll_l III-

1 Substance) (As a Second Degree Felony) and Two Counts of Official Misconduct (As a

2 Misderneanor).2 Id. These charges stem from a Mandana Drug Task Force investigation

3 concerning the distribution of methamphetamine into the Department of Corrections. (Decl. of

4 Matthew A. Phelps, Magistrate's Con pl., Aug. 25, 2017).

5 On October 10, 2017, Defendant filed the instant motion to sever.3 On October 20,

6 2017, the Government filed its Opposition to the Motion.

7 DISCUSSION 8 The issue before the Court is whether Defendant's trial should be severed from his 9 remaining co-defendants. Guam law on severance provides:

10 If it appears that a defendant or the government is prejudiced by a jointer of offenses or of defendants in an indictment or information or by such jointer for 11 trial together, the court may order an election or separate trials of counts, grant a 12 severance of defendants or provide whatever other relief justice requires. 13 8 G.C.A. § 65.35 (emphasis added). Section 65.35 mirrors Rule 14(a) of the Federal Rules of 14 Criminal Procedure. See 8 G.C.A. § 65.35, Note. Rule l4(a) provides: 15 (a) RELIEF. If the jointer of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the 16 government, the court may order separate trials of counts, sever the 17 defendants' trials, or provide any other relief that justice requires. Accordingly, the Court may tum to federal case law interpreting the analogous federal rules for 18

guidance. 19

There is a general preference for joint trials of defendants who are indicted together, as 20

joint trials serve a number of purposes: 21 It would impair both the efficiency and the fairness of the criminal justice system 22 to require, in all these cases of joint crimes where incriminating statements exist, 23 that prosecutors bring separate proceedings, presenting the same evidence again 24 2 25 These charges are listed as Charge Twenty and Charge Twenty-One in the Indictment.

26 3 Co-defendants Gerry Hocog, Jeffrey Limo, and Rosaline Hocog have also filed motions to sever in this matter. On October 25, 2017, the Court granted co-defendant Gerry Hocog's Motion to Sever See Dec. & Order, Oct. 26, 27 2017. On November 15, 2017, the Government indicated it would not be opposing Rosaline Hocog's Motion to Sever Co-defendant Jeffrey Limo's Motion to Sever is pending the resolution of the Gt>vernmentls Motion for 28 Disqualification of Defense Counsel.

People v. Rosafin, Er. of. Case No. CF0487-]7 Decision and Order

Page 2 of 6 and again, requiring victims and witnesses to repeat the inconvenience (and l sometimes trauma) of testifying, and randomly favoring the last-tried defendants 2 who have the advantage of knowing the prosecution's case beforehand. Joint 3 trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability-advantages which 4 sometimes operate to the defendant's benefit. Even apart from these tactical 5 considerations, joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts. 6 Richardson v. Marsh, 481 U.S. 200, 210 (1987). The trial court has great discretion when 7 ruling on a motion to sever. Zafira v. United States, 506 U.S. 534, 538-39 ("Rule 14 does not 8 require severance even if prejudice is shown, rather it leaves the tailoring of the relief to be 9 granted, if any, to the district court's sound discretion."). The Court must balance the rights of 10 the defendant to a fair trial absent prejudice, which may result from the jointer. United States v. l l Lewis, 787 F.2d 1318, 1321 (9th Cir. 1986). 12 Here, Defendant argues that severance is necessary because his Sixth Amendment right I3

of confrontation will be violated and he will suffer extensive prejudice from a joint trial. See 14 generally, Mot., Oct. 10, 2017. Defendant argues that he will "suffer undue prejudice if he is l5 tried jointly with co-defendants Maratita and Johnson because the Government may introduce at 16 trial pretrial statements made by those co-defendants which implicate Rosalin and Rozalin will 17

be unable to confront those co-defendants regarding these inculpating statements." Id. at 4. As 18 an initial matter, co-defendant Maratita entered into a cooperation plea agreement with the 19 Government on November 17, 2017, and therefore any confrontation clause issue with regard to 20 statements made by him are now moot. In regards to co-defendant Johnson, the Court 21 understands that the statements at issue involve alleged text messages from Johnson to 22 Defendant during the course of the alleged conspiracy. See Mot. at 2, Oct. 10, 2017, Opp'n at 23 6-7, Oct. 20, 2017. 24 The Confrontation Clause of the Sixth Amendment guarantees criminal defendant's the 25 right "to be confronted with the witnesses against him." U.S. CONST. amend. XI. "Where 26 testimonial evidence is Ar issue, . . the Sixth Amendment demands what the common law 27 required: unavailability and a prior opportunity for cross examination.as Crawford v. 28

People v. Ro5aHn, Er. of. Case No. CF0487-17 Decision and Order

Page 3 of 6 l Washington, 541 U,S. 36, 53-54 (2004). "Therefore, where two defendants are tried jointly, the

2 pretrial confession of one cannot be admitted against the other unless the confessing defendant

3 takes the stand." Richardson v. Marsh, 481 U.S. 200, 206 (l987). Severance of defendants is

4 thus required in cases where the confession of a non-testifying co-defendant implicate the other

5 defendant, as the defendant's constitutional right to confront witnesses against him would be

6 infringed. Eruton v. United States, 391 U.S. 123, 133-36. This is regardless of whether the jury

7 is instructed to consider that confession only against the codefendant. Id. 8 Briton and the Confrontation Clause are not violated, however, if a co-defendant's

9 statement is redacted to eliminate not only the defendant's name, but any reference to the 10 defendant's existence. Richardson, 481 U.S. at 211 ("We hold that the Confrontation Clause is

l l not violated by the admission of a non-testifying codefendant's confession with a proper

12 l i mi t i ng i nst ruct i on when, as here, t he confessi on i s red act ed t o el i mi nat e not onl y t he I3 defendant's name, but any reference to his or her existence."). Crawford also describes 14 "statements in furtherance of a conspiracy" as "statements that by their nature [are] not

15 testimonial." Crawford, 541 U.S. at 56. Thus, co-conspirator statements made in furtherance of

16 a conspiracy would be no testimonial and beyond the scope of Crawford and Briton. See, e.g.,

17 Bourjaily v. United States, 483 U.S. 171, 181-82 (1987) (agreeing with the lower coin that

18 there was no constitutional problem when statements were admitted without the opportunity to

19 confront the witness who made them because requirements for admission of an out of court 20 statement under the hearsay exception in Rule 801(d)(2)(E) for statements made in furtherance

21 of a conspiracy are "identical to the requirements of the Confrontation Clause"), United States

22 v. Allen, 425 F.3d 1231, 1235 (9th Cir. 2005) ("co-conspirator statements are not testimonial

23 and therefore beyond the compass of Crawford's holding."), United States v. Coco, 923 F.2d

24 759, 761 (8th Cir. 1991) ("We have explicitly held that Briton is not violated when the hearsay 25 statement is otherwise admissible under Rule 801(d)(2)(E) [the co-conspirator exception to the

26 rule against hearsay]. The Confrontation Clause is satisfied when the out-of-court statement in 27 question comes within a firmly rooted hearsay exception."), United States v. Patterson, 713

People v. Rosafin, Er. al. Case No. CF0487-1T Decision and Order

Page 4 of 6 1 F.3d 1237, 1247 (10th Cir. 2013) ("because these statements were made in furtherance of a

2 conspiracy, they are no testimonial and present no Sixth Amendment problem").

3 The Government argues that "in the specific context of conspiracy cases, statements

4 made during the course of a conspiracy are 'non-testimonial' and may therefore be admitted

5 against a defendant at trial." (Opp'n at 7) (citing Allen, 425 F.3d at 1235). Here, the alleged

6 text messages between Defendant and Johnson occurred during the course of the conspiracy,

7 and the Court is still inclined to agree that the text messages would be considered non-

8 testimonial and therefore do not fall under Briton or Crawford. Therefore, the Court will not

9 grant Defendant's Motion to Sever on that basis.

10 Defendant also moves the Court to sever his trial from his co-defendants because he will

11 suffer extensive prejudice. Specifically, Defendant argues that:

12 (1) he may become embarrassed or confounded in presenting separate defenses, (2) the jury may use the evidence of one of the crimes charged to infer a criminal l3 disposition on part of the defendant from which is found guilty of the other crime 14 or crimes charged, or (3) the jury may cumulate the evidence of various crimes charged and find guilt when, if considered separately, it would not so find. 15

(Opp'n at 5). 16

"[I]t is well settled that defendants are not entitled to severance merely because they 17

may have a better chance of acquittal in separate trials." Zafiro, 506 U.S. at 540 (citation 18

omitted). 19 It is not surprising that a defendant might prefer to be tried separately so that only 20 evidence admissible strictly against him would be heard by the jury. However, if 21 this formed the only basis for prejudice required for severance, the consequent volume of separate trials of multiple actions in a series of similar and connected 22 illegal transactions would create an intolerable burden on the trial courts. Serious consider is properly to be given to the factor of judicial economy by the trial court 23 in the exercise of its discretion when severance is sought. 24 U.S. v. Kennedy, 564 F.2d 1329, 1334 (9th Cir. l977). Only where jointer would create "a 25 serious risk that a joint trial would compromise a specific trial right of one of the defendants, or 26 prevent the jury from making a reliable judgment about guilt or innocence," must the Court 27 grant severance. Zajiro, 506 U.S. at 539. 28

People v. Roscdfn, et. of. Case No. CF048T-17 Decision and Order

Page 5 of 6 l This Court previously granted co-defendant Gerry Hocog's Motion to Sever, finding that

2 the asserted status of the case with twelve defendants calendared to go to trial together created

3 administrative difficulties for the Court and that there was also a greater likelihood that

4 Defendant may be prejudiced by a joint trial. See generally, Dee. & Order, Oct. 26, 2017.

5 Today, the complexity of the case has changed. Three co-defendants have entered into

6 cooperation plea agreements with the Government: Roxanne Hocog, Ronald Menu, and Fern in

7 Maratita. Two other co-defendants have also been severed: Gerry Hocog and Rosalina Hocog.

8 Therefore, there are seven d efend ants currently set to go to trial together in mid -2 0 1 8 :

9 Defendant, Shawn Johnson, Bruno Simmons, Paul Johnson, Edward Crisostomo, Jerome San

10 Nicolai, and Jeffrey Limo. Some of these remaining co-defendants have also indicated to the

Il Court that they are in negotiations with the Government. At this time, the Court finds that any

12 potential prejudice may be reduced in the form of limiting instructions. See, e.g., United States

la v. Fernandez, 559 F.3d 303, 317 (5th Cir. 2009), United States v. Wilson, 605 F.3d 985, 1016

14 (D.C. Cir. 2010). Further, while Defendant's alleged role in the conspiracy may not be as large

15 as others, the Court finds that his jointer in this matter appropriate. See, e.g., United States v.

16 Nata rel, 938 F.3d 302, 307 (let Cir.) ("it is not a necessary precondition to jointer that a

17 defendant be involved in each offense charged in an indictment, jointer is proper as long as

18 there is some common activity binding the objecting defendant with all the other inductees and

19 that common activity encompasses all the charged offenses."). Therefore, the Court will also

20 not grant Defendant's motion on this basis and DENIES the Motion to Sever.

21 CONCLUSION

22 For the foregoing reasons, the Court hereby DENIES Defendant's Motion to Sever. A

23 Further Proceedings is set for January 31, 2018 at 11:00 a.m. before Judge Anita A. Sukola.

25 IT IS SO ORDERED this SERVICE vIA COURT BOX QQ day of December, 2017 acknowledge 'hat a copy of the 26 ornglnal hereto was placed in the court box of: , » *`-L>* J* bold/I A fuzz/ \ " F" l J" 0 .H + c. 'f jizv- A HONORABLE VERNON p. PEREZ 27 D M m 't e n T »»b'r.J1{ LJ Pd (6.1 D HE% T r-55611 , .. I-\ .T¢ ., _ . Judge, Superior Court of Guam ZN Date: I 1IId TI 5 ~"»~ r 7% 7 Maki/ Anlclr Curb . 1 1 gm~rtl»ru Sir# ¢vcwu>|¢~au- People v Rasalin, Hz. al. Case No CF0487-17 Decision and Order

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