FILED
1 SUPERtOR CQURT OF GUAM
2 ZmFEB -5 PH
3 CLER~O~T 4 By :__——
5 6 7 IN THE SUPERIOR COURT OF GUAM 8 9 PEOPLE OF GUAM, CRIMINAL CASE NO.: CM0431-17
10 vs. 11 DAVID J. SABLAN, 12 DOB: 11/06/1953 13 CECILE B. SUDA, DECISION AND ORDER 14 DOB: 09/22/1957 (Defendant Rosie Bias’s Motion 15 to Sever)
ROSIE BLAS, 16 DOB: 07/02/1962 17 ROLAND SELVIDGE, 18 DOB: 08/04/1949 19 20 MICHAEL J. DUENAS, DOB: 04/30/1954 21 22 JOHN ILAO, CRIMINAL CASE NO.: CM0431-17-O1 DOB: 02/16/1967 23 24 DEANNE TORRE, CRIMINAL CASE NO.: CM0431-17-02 25 DOB: 04/07/1970 26 DEFENDANTS. 27 28 CM0431-17 People of Guam v. David J. Sablan et al. Page 1 of 8 DECISION AND ORDER (re Defendant Bias’s Motion to Sever)
1 INTRODUCTION 2 This matter came before the Honorable Anita A. Sukola on January 23, 2019 for a hearing 3 on Defendant Rosie Bias’s Motion to Sever. Chief Prosecutor Basil O’Mallan appeared on behalf 4 of the People of Guam (“People”). Defendant David J. Sablan (“Defendant Sablan”) was 5 represented by Attorney Samuel S. Teker. Defendant Cecile B. Suda (“Defendant Suda”) was 6 represented by Attorney Curtis C. Van de veld. Defendant Deanne Torre (“Defendant Torre”) was 7 represented by Attorney Joaquin C. Arriola Jr. Defendant Rosie Bias (“Defendant Bias”) was 8 represented by Attorney Jacqueline Taitano Terlaje. Defendant Roland Selvidge (“Defendant 9 Selvidge”) was represented by Assistant Public Defender William C. Bischoff. Defendant John 10 flao (“Defendant flao”) was represented by Attorney Joseph C. Razzano. Defendant Michael J. 11 Duenas (“Defendant Duenas”) was represented by Attorney John C. Terlaje. At the conclusion of 12 the hearing on January 23, 2019, the Court took the matter under advisement. Upon review of the 13 oral and written arguments, and legal authorities presented by the Parties, Defendant Rosie Bias’s 14 Motion to Sever is hereby GRANTED. 15 BACKGROUND 16 The People filed the Complaint in this matter in the Superior Court on July. 24, 2017. The 17 Complaint alleges forty-seven separate crimes which include direct violations of the Guam Open 18 Government Law (“OGL”) and official misconduct, and Conspiracy to violate the OGL and 19 commit official misconduct, related to three separate events that allegedly occurred during the 20 period between December 2011 and July 2015. The alleged events occurred when the various 21 Defendants served as Commissioners of the Guam Housing and Urban Development Authority 22 (“GHURA”) Board of Commissioners.’ 23 ___________
1 Defendant-Sablan served as Commissioner from February 23, 2011 until June 28, 2016. Tydingco Decl. Support 24 Magistrate’s Compi. 1 (July 24, 2017). Defendant-Iiao served as Commissioner from August 12, 2013 until September 30, 2015. Id. Defendant-Torre was confirmed as Commissioner on March 30, 2011 and was appointed to a five-year 25 term. jç~ Defendant-Bias was confirmed on February 23, 2011 and was. appointed to a five-year term. j~j~ Defendant Selvidge was confirmed on September 9, 2010 and was relieved by Governor Eddie Baza Calvo in June of 2013. Id. at 26 2. However, Defendant-Selvidge remained on the Board until July of 2015. Id. Defendant-Suda was confirmed as commissioner on May 29, 2009, and was re-confirmed on June 4, 2012. Id. Defendant-Duenas did not serve as 27 Commissioner to the GHURA Board. However, Defendant-Duenas was Executive Director of GHURA from sometime in 2012 up to at least the date of the filing of the Complaint in this matter in July of 2017.
CM043 1-17 People of Guam v. David J. Sablan et al. DECISION AND ORDER (re Defendant Bias’s Motion to Sever)
1 The first event alleged in the Complaint is a secret meeting that was held by the then- 2 Conmilssioners of GHURA sometime during the period from December 2011 to January 2012 (the 3 “2011 Working Session”). Tydingco Deci. Supp. Magistrate’s Compi. 7-13 (July 24, 2017). The 4 People allege that Defendants Sablan (Charges 1-8), Suda (Charges 25-26), Torre (Charges 29-30), 5 Bias (Charges 33-34), and Selvidge (Charges 39-40), in their roles as Commissioners, met in a 6 secret public meeting that was neither noticed, nor open to the public. Id. Thus, the People allege 7 the Defendants acted either in direct violation of, or as part of a conspiracy to violate, the OGL and 8 official misconduct laws. Id. The Board allegedly decided how to award Low Income Housing Tax 9 Credits (“LIHTCs”) at the 2011 Working Session. The Complaint specifically alleges that (1) 10 no notice of the 2011 Working Session was given to the public, (2) that the meeting was not open 11 to the public, (3) that no minutes were taken and made public, and (4) thus no minutes were 12 transmitted to the Governor, the Legislature, and other entities; all of which constitute violations of 13 theOGL.Id. 14 The second event alleged in the Complaint concerns GHURA Board of Commissioners 15 Resolution FY20 15-014(A), which adopted a credit card usage policy. Tydingco Decl. Supp. 16 Magistrate’s Compl. 13-15. The People allege that on or about April 17, 2015, Defendants Sablan 17 (Charges 9-16), Torre (Charges 3 1-32), Blas (Charges 35-36), Selvidge (Charges 41-42), flao 18 (Charges 43-44), and Duenas (Charges 46-47) either voted by email, or in Duenas’ case agreed to 19 the vote by email. These actions amounted to either a direct violation of, or were part of a 20 conspiracy to violate, the OGL and/or official misconduct laws. j~; Magistrate’s Compl. 1-28. 21 The final event alleged in the complaint and underlying the remaining charges concerns 22 GHURA Board of Commissioners Resolutions FY20 13-005 and FY20 13-006, which authorized 23 certain expenditures up to five thousand dollars ($5,000.00) for the GHURA 50th Anniversary Gala 24 from Payment in Lieu of Taxes (“PILOT”) Funds, and up to three-hundred and sixty dollars 25 ($360.00) from PILOT Funds for GHURA to participate in the Governor’s 2012 MAGPRO 26 Banquet respectively. Tydingco Decl. Supp. Magistrate’s Compl. 16-19. The Complaint alleges 27 Defendants Sablan (Charges 17-24), Suda (Charges 27-28), and Blas (Charges 37-38), voted by 28 CM0431-17 People of Guam v. David J. Sablan et al. DECISION AND ORDER (re Defendant Bias’s Motion to Sever)
1 email to adopt the resolutions, either in direct violation of, or as part of a conspiracy to violate, the 2 OGLand official misconduct laws. Id.; Magistrate’s Compl. 1-28. 3 On April 5, 2018, the Court issued a Decision and Order severing Defendants flao and 4 Torre, which became captioned as CM043 1-17-01 and CM043 1-17-02, respectively. Decision and 5 Order (Apr. 5, 2018). The Court found that Defendant flao was only involved in one of the three 6 alleged conspiracies, and he would be prejudiced by the danger that a jury would crossover 7 evidence and culpability from one conspiracy to another. ~ 9. The Court further found that co 8 defendant statements were likely to be introduced against Defendant Torre, and the charges against 9 her needed to be severed to avoid a violation of her right to confrontation under the Sixth 10 Amendment. Id. 12. 11 On or about December 13, 2018, immediately prior to the scheduled jury trial for 12 December 17, 2018, counsel for Defendant Blas sought withdrawal as counsel. Mot. to Sever 3 13 (Dec. 21, 2018). During the first nearly eighteen (18) months of litigation, Defendant Bias was 14 represented by her former counsel. Id. On or about December 19, 2018, Defendant Bias appeared 15 with Attorney Jacqueline Taitano Terlaje, acting in a limited capacity. Attorney Terlaje expressed 16 her concerns with taking this case on the eve of trial with more than thirty thousand (30,000) pages 17 of discovery. On December 21, 2018, Defendant Blas filed a Motion to Sever. Id. The People filed 18 a Response on December 28, 2018. Resp. (Dec. 28, 2018). 19 DISCUSSION 20 Defendant Blas moves for an Order severing her trial from the remaining co-defendants, 21 arguing good cause exists to sever her trial due to the withdrawal of her counsel immediately 22 before jury trial. Mot. to Sever 1. Additionally, Defendant Bias argues that her Constitutional right 23 to confront witnesses may be violated during a joint trial with her co-defendants. ~ 4. 24 In response, the People argue the Court should not rule on Defendant Blas’s Motion to 25 Sever until such time as Defendant Blas has secured an attorney who will commit to her. Resp. 2. 26 The People further argue that “[i]f the Court is nevertheless convinced that severance is 27 appropriate, perhaps the optimal jurisprudential action would be to sever Defendants Suda, 28 CM043 1-17 People of Guam v. David J. Sablan et al. DECISION AND ORDER (re Defendant Bias’s Motion to Sever)
1 Selvidge and Bias from the first triai and put Defendant Sabian up as the first Defendant to go to 2 trial.” Id. 3 On January 24, 2019, Defendant Suda flied her Joinder in the Government’s Request for 4 Severance of Defendant Cecile B. Suda. Suda Joinder (Jan. 24, 2019). 5 I. Law Governing Severance. V
6 Under Guam law, “[i]f it appears that a defendant or the government is prejudiced by a 7 joinder of offenses or . . ~. by such joinder for triai together, the court may order an election or 8 V separate trials of counts [or]. grant a severance of defendants . . . .“ 8 GCA § 65.35 (2017). The 9 language of Rule 14 of the Federal Rules of Criminal Procedure similarly allows for severance in 10 federal criminal matters where a Defendant or the government is prejudiced by joinder. See Fed. 11 R. Crim. P. 14 (“If the joinder of offenses or . . . a consolidation for trial appears to prejudice a 12 defendant or the government, the court may. . . sever the defendants’ trials. . . .“). Thus, the Court 13 will look to federal cases interpreting Rule 14 to determine if Defendant Blas has demonstrated 14 sufficient prejudice to warrant severance here. See Sumitomo Constr. Co. v. Zhang Ye, Inc., 1997 15 Guam 8 ¶ 17 (reasoning “[g]enerally when a legislature adopts a statute which is identical or 16 similar to one in effect in another jurisdiction, it is presumed that the adopting jurisdiction applies 17 the construction placed on the statute by the originating jurisdiction”). 18 The Supreme Court of the United States has held that courts “should grant severance under 19 Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of 20 one of the defendants or prevent the jury from making a reliable judgment about guilt or 21 innocence. . . .“ Zafiro v. U.S., 506 U.S. 534, 539 (1993) (emphasis added). Applying Zafiro, the 22 Federal Ninth Circuit Court of Appeals applies a four-factor test to determine whether severance is 23 appropriate. Courts in the Ninth Circuit consider “(1) whether the jury may reasonably be expected 24 to collate and appraise the individual evidence against each defendant; (2) the judge’s diligence in 25 instructing the jury on the limited purposes for which certain evidence may be used; (3) whether 26 the nature of the evidence and legal concepts involved are within the competence of the ordinary 27 juror; and (4) whether [the Defendant] could show, with some particularity, a risk that joint trial 28 V
CM0431-17 People of Guam v. David I. Sablan et al. DECISION AND ORDER (re Defendant Blas’s Motion to Sever)
1 would compromise a specific trial right of one of the defendants, or prevent the jury from making a 2 reliable judgment about guilt or innocence.” U.S. v. Fernandez, 388 F.3d 1199, 1241 (9th Cir. 3 2004). The first two factors are the mOst important in the Court’s inquiry. j~ 4 a. Defendant Bias would be prejudiced if she were forced to proceed to trial without 5 her attorney having adequate time to prepare. 6 As a preliminary matter, the Court notes that this matter has been delayed several times and 7 scheduling conflicts continue to arise. “Trial judges necessarily require a great deal of latitude in 8 scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and ~ jurors at the same place at the same time, and this burden counsels against continuances except for 10 compelling reasons.” Morris v. Slappy, 461 U.S. 1, 11(1983). For the sake of judicial economy, the Court wishes to expedite litigation and begin trials in a timely manner.
12 Defendant Blas first argues that a joint trial would infringe upon her Sixth Amendment 13 right to representation of counsel. Mot. to Sever 1. Defendant Blas’ s previous counsel withdrew 14 four days prior to trial, leaving Attorney Terlaje to inherit this complex case which involves four 15 defendants and over 30,000 pages of discovery. jçi~ 16 Adequate time for defense preparation is included under the Sixth Amendment guarantee 17 of the right to counsel. Powell v. Alabama, 287 U.S. 45, 59 (1982). Unreasonable time constraints 18 imposed by a trial court can result in inadequate preparation. United States v. La Monte, 684 F.2d 19 672, 674 (10th Cir. 1982). Factors which bear upon the determination of whether counsel has been 20 provided adequate preparation time include: (1) the time afforded for investigation and 21 preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of 22 possible defenses; and (5) the accessibility of witnesses to counsel. United States v. King, 664 F.2d 23 1171, 1173 (l0thCir. 1981). 24 In the present case, the Court finds that Attorney Terlaje will need a considerable amount 25 of time to review the voluminous discovery in this matter. This trial has been delayed several times 26 and the Court desires to set a trial date for a time in the near future. It is unreasonable to expect 27 28 CM0431-17 People of Guam v. David I. Sablan et al. DECISION AND ORDER (re Defendant Bias’s Motion to Sever)
1 Attorney Terlaje to be prepared for trial by the time the Court plans to proceed with the trial of 2 Defendants Sablan, Selvidge, and Suda. 3 The People argue that the Court should wait to decide the issue of severance until such time 4 as Defendant Blas has secured an attorney who will commit to her. Resp. 2. The Court notes that 5 Attorney Terlaje has appeared in court on behalf of Defendant Bias on multiple occasions and has 6 filed this motion on behalf of Defendant Bias. Additionally, Attorney. Terlaje has advised the Court 7 that her initial hesitance towards committing to taking this case has been due to her worry that she 8 will be rushed into trial without adequate preparation time. The Court is satisfied that Attorney 9 Terlaje has made a commitment to Defendant Blas and will be prepared for trial at a later date. In 10 the event that Attorney Terlaje does not make a commitment to represent Defendant Blas, the 11 Court nevertheless wishes to sever Defendant Bias in order to timely go forward with the trial 12 against her multiple co-defendants. 13 b. The Court declines to address Defendant Blas’s Confrontation Clause argument. 14 Because the Court has decided that Defendant Blas is to be severed from the remaining 15 defendants due to her attorney’s need for preparation time, her argument based upon her right to 16 confront witnesses is moot. -
17 c. The People’s request for Defendant Sablan’s case to be severed and precede the 18 other trials is improper. 19 The People state that if the Court severs Defendant Bias, then “perhaps the optimal 20 jurisprudential action would be to sever Defendants Suda, Selvidge and Blas from the first trial and 21 put Defendant Sablan as the first Defendant to go to trial.” Resp. 2. The People state that this 22 approach has been supported by Defendants Blas, Suda, Selvidge, and Sablan. Id. 3. While this 23 approach has been introduced by the People’s Response and orally agreed to by several 24 defendants, no party has made a motion to sever Defendant Sabian. The Court cannot grant a 25 motion that has not been presented. 26 d. Defendant Suda’s request for severance is improper. 27 28 CM0431-17 People of Guam v. David J. Sablari et al. DECISION AND ORDER (re Defendant Blas’s Motion to Sever)
1 On January 24, 2019, Defendant Suda filed her Joinder in Government’s Request for 2 Severence of Defendant Cecile B. Suda. Suda Joinder. Defendant Suda joins the People’s request 3 to sever Defendant Suda, purportedly requested by the People in their Response to Defendant 4 Bias’s Motion to Sever. j~ The Court assumes that Defendant Suda is joining the People’s request 5 to sever Defendants Suda, Bias, and Selvidge from the case against Defendant Sablan, and have 6 Defendant Sablan’ s trial proceed first. Defendant Suda’ s joinder does not state any additional 7 explanation or argument regarding her desire to sever her charges. This Court has already decided 8 that this request by the People was improper, and therefore Defendant Suda’ s request to join this 9 request is moot. 10 CONCLUSION & ORDER 11 By a preponderance of the evidence and based on the foregoing reasons, Defendant Rosie 12 Bias’s Motion to Sever is hereby GRANTED. 13 14 Further Proceedings are set for February 11, 2019, at 11 a.m. 15 16 17 18 SO ORDERED__________ 19 /7 ______
20 The Honorable Anita A. Sukola 21 Judge, Superior Court of Guam 22 23 acknowledge that a copy of the acknowledge that a copy of the n • p 24 original hereto was placed in the original hereto was placed in the i.~eceiveu ror Service coutt.bOX ot couct box of:
25 ‘k~~k~kU, ~
~J~’ ‘~ 20 26 Date: ,~ Date: ‘1tS rrnw______ 27 ,~ (~ ;i~WCOU~tC’~’~’ ~-c~~-”’,, Marshal, Guam Superior Court
28 CM0431-17 People of Guam v. David J. Sablan et al. DECISION AND ORDER (re Defendant Bias’s Motion to Sever)