People v. Scharff II

Opinion

IN THE SUPERIOR COURT OF GUAM

2 THE PEOPLE OF GUAM, ) ) 3 vs. ) 4 ) DECISION AND ORDER ) ON DEFENDANTS' MOTION TO 5 CHARLES E. SCHARFF II, ) DISMISS 6 ROSEMARIE EVANGELISTA, ) JOAQUIN MAFNAS PANGELINAN, JR., ) 7 IGNACIO SANTOS PALACIOS, ) ) 8 Defendants. ) 9

10 This matter came before the HONORABLE VERNON P. PEREZ on July 18,2012 for 11 the Defendants' Motion to Dismiss. Attorney Nelsen J. Werner appeared on behalf of the 12 Government. Attorney Jeffrey Moots represented Defendant Joaquin Mafnas Pangelinan, Jr., 13 who was present. Attorney John C. Terlaje represented Ignacio Santos Palacios, who was 14 present. Attorney Darleen E. Hiton represented Charles E. Scharff II, who was present. Julie R. 15 Rosete represented Rosemarie Evangelista, who was present. Having reviewed the pleadings, 16 the arguments presented and the record, the Court now issues the following Decision and Order. 17 BACKGROUND 18 The Defendants are charged with theft by receiving, conspiracy and criminal facilitation. 19 Defendant Joaquin Mafnas Pangelinan Jr. requests dismissal of the Superseding Indictment as 20 he argues that the Government failed to satisfy the statute of limitations when charging the 21 crimes alleged. All other Defendants have joined in the motion. 22 DISCUSSION 23 The Defendants move this Court to dismiss the Superseding Indictment on the basis 24 that the People failed to charge the crimes alleged within the time limits provided under 8 GCA 25 §§ 10.30 and 1O.20(c). More specifically, the Defendants argue that the Government failed to 26 commence prosecution within three years of the alleged felony offense. The Government 27 concedes that the Superseding Indictment added two charges that came after three years in 28 violation of 8 GCA § 10 .20(c). The Government does not object or oppose the Court dismissing

People v. Scharff II. , et al.. Decision and Order (Motion to Dismiss) Criminal Case No. CF0033-10 -Page 1 of3- charge two and three of the Superseding Indictment. Thus, the charges of conspiracy and 2 criminal facilitation will be dismissed. The only issue here is whether the first charge may stand. 3 The Government's main contention in opposition to the motion is that charge one of the 4 Superseding Indictment was also present in the original indictment. 1 In both indictments, the 5 Defendants are charged with receiving stolen property which is a crime of theft under 9 GCA § 6 43.50(a). The Government contends that this charge should withstand dismissal because any 7 time concerns relate back to the initial indictment and the commencement of prosecution at that 8 time was within three years of the offense. 9 The Defendants point out that the initial indictment contains eight counts while the 10 Superseding Indictment contains twelve counts. Defendants argue that the additional counts 11 would be in violation of 8 GCA § lO.20(c). The Defendants conclude on this point by 12 suggesting that even if the first charge of the Superseding Indictment withstands dismissal, the 13 four additional counts should be dismissed as untimely. 14 As to the first point of issue, the Court agrees with the Government that the theft by 15 receiving charge relates back to the initial indictment. As long as the initial indictment was 16 timely under 8 GCA § 10.20(c) the charge may stand in the Superseding Indictment. Theft 17 occurring where the item's value is over $1,500.00 is a second degree felony. 9 GCA § 43.20. 18 As charged, the Defendants face felony charges because the alleged stolen property received is 19 well over $1,500.00. Thus, the three year statute of limitation provided under 8 GCA § 10.20(c) 20 is the applicable time restraint to commence prosecution. 21 The offenses allegedly occurred between August and September in 2007. Prosecution of 22 the alleged offenses started on July 14, 20lO when the grand jury handed down an indictment. 23 As explained above, the Government has three years to commence prosecution. 8 GCA § 24 10.20( c). Here, the Government had until September of 2010 indict the Defendants. The initial 25 indictment was timely and the Superseding Indictment relates back to July 14, 2010 because it 26 27 1 The Defendants raise issue with the phrasing used by the Government in bringing the initial indictment. The Court finds the language used to adequately inform the Defendants ofthe crime alleged against them. The language cites to the specific statute, 28 which clearly allows the Defendants to prepare a defense against the crime of theft by receiving stolen property as provided unde 9 GCA § 43.50(a).

People v. Scharff II.. et al.. Decision and Order (Motion to Dismiss) Criminal Case No. CF0033-IO - Page 2 of3- did not broaden the scope of the charge of theft by receiving. United States v. Grady, 544 F.2d 2 598, 601 (2nd Cir. 1976); see also United States v. Salmonesse, 352 F.3d 608 (2nd Cir. 2003); 3 United States v. Ratcliff, 245 F.3d 1246, 1252-53 (lith Cir. 2001). Thus, the Court finds that 4 even though the Superseding Indictment came long after the three year deadline to commence 5 prosecution, it is still timely as it relates back to the earlier indictment and Charge One did not 6 broaden the scope of the initial indictment. The Court concludes that the first charge withstands 7 dismissal and the Defendants' motion must be denied in part. 8 As to the four additional counts in the Superseding Indictment, the Court had more 9 difficulty in coming to a conclusion. Notice is the key to a proper indictment. Here, the 10 Defendants were aware of the charge they were facing relating to their alleged activities. The 11 initial indictment included the statute in which the Defendants were charged with violating. A 12 simple reading of 9 GCA § 43.50(a) would provide any defendant with adequate notice that 13 theft by receiving stolen property is illegal and the process to raising potential defenses could 14 begin. Yet, the real issue is whether the additional counts expand the scope of the initial 15 indictment? The Court read the language in both indictments and finds that the language used 16 provides adequate notice to the Defendants. The Court concludes that adding newly discovered 17 victims in a superseding indictment does not broaden the scope of the initial indictment. It is 18 common for facts to develop after an indictment is handed out in a criminal action. Here, the 19 discovery of more specific information allowed the Government to charge additional counts. 20 The Court finds the additional four counts to be timely as they stem from the same charge 21 existing in the initial indictment. 22 CONCLUSION 23 For the foregoing reasons, the Court GRANTS Defendant's Motion to Dismiss in part 24 and DENIES in part. The conspiracy and criminal facilitation charges are hereby DISMISSED 25

26 ORDERED this d-~~ay of August, 2012. 27 O~~YI'By: HOO~NTNr-llp~"""'!p""'tk-E~ 28 JUDGE, SUPERIOR COURT OF GUAM

PeoNs!; v. Scharff II.. et al.. Decision and Order (Motion to Dismiss) Criminal Case No. CF0033-10 - Page 3 of3-