People v. Scharff II

Opinion

IN THE SUPERIOR COURT OF GUAM 2 PEOPLE OF GUAM, ) CRIMINAL CASE~. ~~aJ3-M 9: 15 3 ) 4 )

vs. )

5 ) DECISION AND ORDER ) (Motion to Dismiss Superseding 6 Indictment)

CHARLES E. SCHARFF II, )

7 ROSEMARIE EVANGELISTA, )

JOAQUIN MAFNAS PANGELINAN, JR., )

8 IGNACIO SANTOS PALACIOS, )

)

9 Defendants.

10

II INTRODUCTION 12 On April 9, 2013, this matter came before the HONORABLE VERNON P. PEREZ on 13 Defendant Joaquin Mafnas Pangelinan's Memorandum of Law in Support of Defendant 14 Pangelinan' s Motion to Dismiss Superseding Indictment. Defendant is represented by Attorney 15

16 F. Randall Cunliffe. Defendant Ignacio Santos Palacios joined in the Motion to Dismiss and is

17 represented by Attorney John C. Terlaje. The Government of Guam ("Government") is 18 represented by Attorney General Jesse J.N. Nasis. After reviewing the pleadings and 19 arguments, the Court now issues the following Decision and Order denying Defendants'

20

21 Motion.

22 BACKGROUND 23 On January 14,2010, Defendants were indicted on charges of Theft by Receiving Stolen 24 Property (As a 2nd Degree Felony) (8 Counts) and Guilt by Complicity to Commit Receiving 25 Stolen Property (As a 2nd Degree Felony) (8 Counts). On March 22, 2012, Defendants were 26

27 indicted on charges of Theft by Receiving Stolen Property (As a 2nd Degree Felony) (12

28 Counts), Conspiracy to Commit Theft by Receiving Stolen Property (As a 2nd Degree Felony),

and Criminal Facilitation (As a Misdemeanor). The charges for Theft by Receiving Stolen Page 1 of6

People v. Charles E. Scharff II, et al. Decision & Order Criminal Case No. CFOO:B-1 0

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2 1 1 · the alleged conduct. 3 On March 11, 2013, Defendant Joaquin Mafnas Pangelinan filed Memorandum of Law 4 in Support of Defendant Pangelinan's Motion to Dismiss Superseding Indictment ("Motion").

5

6 Defendant Ignacio Santos Palacios filed Joinder by Defendant Ignacio Santos Palacios on

7 March 20,2013. The Government did not file an opposition. 8 DISCUSSION

9 Defendants ask this Court to dismiss the Indictment, because the Government failed to 10

11 present exculpatory evidence to the grand jury. Specifically, Defendants argue the discovery

12 material provided by the Guam Police Department ("GPD") and Office of the Attorney General

13 contains multiple statements the vehicles in seven (7) out of the twelve (12) Counts were not 14 reported stolen. 1

15 A reviewing court should uphold an indictment "if there is some rational ground for 16

17 assuming the possibility that an offense has been committed and the accused is guilty of it."

18 Guevara v. Superior Court, 62 Cal.App.4th 864, 869 (Cal.Ct.App.1998) (citation omitted). 19 "Mistakes in testimony, misstatements, or the failure to prevent exculpatory evidence will not 20 serve as grounds to dismiss an indictment where they do not 'amount to flagrant deception or 21 overreaching of a grand jury."' People v. Palomo, 1993 WL 129624 * 5 (D. Guam 1993)

22

23 (quoting United States v. Fritz, 852 F.2d 1175, 1178 (9th Cir. 1988)). ;'Dismissal of an 1

24 indictment is a disfavored remedy." /d. (citing United States v. Rogers, 751 F.2d 1074, 1076- 25 1077 (9th Cir.l985)).

26

27

28

1

The police reports do list GPD report numbers for four of the vehicles that are listed as stolen in the indictment, an they as follows: Count 1, Count 2, Count 5, and Count 9. The reports indicate that as for the vehicle listed in Count 11, the registered owner was contacted, the vehicle was confirmed stolen, but no GPD case number was assigned.

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People v. Charles E. Scharffll, et al. Decision & Order Criminal Case No_ CFOO:B-1 0

Title 8 GCA § 50.54(b) provides that "[t]he grand jury shall find an indictment when 2 from the evidence presented, there is reasonable cause to believe that an indictable offense has 3 been committed and that the defendant committed it." 8 GCA § 50.54(b) (2013). In Guam, 4 felony offenses are prosecuted by grand jury indictment. See 8 GCA § 1.15 (2013). During 5

6 grand jury proceedings, the grand jury is to receive only competent evidence. See 8 GCA §

7 50.42 (2013). Competent evidence is evidence that a reasonable person would rely upon in 8 conducting his or her daily affairs. See People v. Quidachay, 815 F.2d 1311, 1313 (9th Cir.

9 1987). "Reasonable cause amounts to evidence such that a man of ordinary caution or prudence 10

would be led to believe and conscientiously entertain a strong suspicion of the guilt of the 11

12 accused." People v. Graio, 1987 WL 109393 at* 2 (D. Guam 1987) (citations omitted).

13 Title 8 GCA § 50.46 states that "[t]he grand jury shall receive only evidence presented 14 to it by the prosecuting attorney but the prosecuting attorney shall submit any evidence in his 15 possession which would tend to negate guilt and the grand jury shall weigh all the evidence 16

17 submitted." 8 GCA § 50.46 (2013) (emphasis added). In Brady v. Maryland, 373 U.S. 83, the

18 Supreme Court held that "the suppression by the prosecution of evidence favorable to the 19 accused upon request violates due process where the evidence is material either to guilt or to 20 punishment. ... " 373 U.S. at 87.

21 In the present case, Defendants are charged with violating Title 9 GCA § 4.60, § 22

23 43.20(a), § 43.50(a). Section 43.20(a) prescribes what classification a theft crime should

24 receive, and Section 43.50(a) defines what constitutes Theft by Receiving. Section 43.20(a) 25 provides:

26 § 43.20. Theft; Defined & Punishment Classified.

27 (a) Theft constitutes a felony of the second degree if the amount 28 involved exceeds One Thousand Five Hundred Dollars ($1 ,500) or if the property stolen is a bus, truck, automobile, aircraft, motorcycle, or motor boat, or in the case

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People v. Charles E. Scharff II, eta/. Decision & Order Criminal Case No. CF0013-l 0 !I

of theft by receiving stolen property, if the defendant is in the busin~::ss of buying and selling stolen property.

3 9 GCA § 43.20(a) (2013). Section 43.50(a) defines "Theft by Receiving" as follows:

4 § 43.50. Theft by Receiving Stolen Property; Defined. 5 (a) A person is guilty of theft if he intentionally receives, retains or 6 disposes of movable property of another knowing that it has been stolen or believing that it has probably been stolen. It is a defense to a charge of violating 7 this Section that the defendant received, retained or disposed of the property with intent to restore it to the owner.

8

9 9 GCA § 43.50(a) (2013) (emphasis added). "A person is guilty of theft if he intentionally

10 receives, retains or disposes of movable property of another knowing that it has been stolen or 11 believing that it has probably been stolen." 9 GCA § 43.50(a) (2013) (emphasis added).

12 "Property of [a]nother includes property in which any person other than the defendant has an 13

14 interest which the defendant is not privileged to infringe .... " 9 GCA § 4 3.1 0( e) (20 13 ).

15 Defendants argue that during the grand jury hearing on March 22, 2012, Officer Santos

16 either intentionally or unintentionally misled the grand jury concerning the investigation into 17 seven (7) of the twelve (12) allegedly stolen vehicles. Motion at 5. Specifically, Defendants 18 argue Officer Santos incorrectly stated all the vehicle owners had been contacted, when in fact, 19

20 seven (7) of the twelve (12) vehicles were not reported stolen and the owners could not be

21 contacted. !d. Defendants also argue that it is disturbing the assistant attorney general present 22 did not correct officer Santos's testimony before the grand jury. !d. Defendants further contend 23 II the Government produced no reports that contained information regarding seven (7) of the 24 twelve (12) vehicles proving the vehicles were ever reported stolen. Id at 6. Finally, 25

26 Defendants argue that the superseding indictment should be dismissed with prejudice, since the

27 grand jury was misled or not provided exculpatory evidence. !d. 28

Page 4 of6

E.

II People v. Charles ScharffII, eta!.

Decision & Order Criminal Case No. CF0011-l 0

After reviewing the grand jury proceeding and considering the evidence presented to the 2 grand jury, this Court finds there was sufficient competent evidence to support all twelve counts 3 of the first charge of the Superseding Indictment. While the Court does not deny that no reports 4 were produced which contained information demonstrating seven (7) of the twelve (12) vehicles 5

6 were stolen, the Court finds there was sufficient evidence to indict based on the testimony

7 presented during the grand jury proceeding. Officer Fred Santos ("Officer Santos") testified 8 that Defendant Joaquin Mafnas Pangelinan had indicated he was aware the vehicles were stolen 9 but was not aware where they were stolen from. Grand Jury Recording at 9:49:34. Officer 10

II Santos also testified that Defendant Ignacio Santos Palacios stated Defendant Charles E. Scharff

12 ("Scharff') told Palacios the cars were stolen, and that Scharff brought cars over to Palacios's

13 property with his friends. !d. at 9:51 :48. Officer Santos later testified the vehicles had been 14 determined stolen by checking records, and the registered owners were later contacted, and it 15 was confirmed the vehicles were stolen. !d. at 10:00:59.

16

17 Based on the evidence presented, the Court finds a conscientious jury could clearly have

18 had a strong suspicion Defendants committed the crime charged. Defendants' statements are 19 sufficient to establish probable cause for an indictment of Theft by Receiving Stolen Property.

20 Furthermore, although there may have been errors in Officer Santos's testimony, the errors did 21 not involve flagrant conduct causing substantial prejudice. Even if the Court were to assume 22

23 seven (7) of the twelve (12) vehicles were not reported stolen and this was exculpatory evidence

24 not presented to the grand jury, Defendants' statements that the vehicles were all stolen was 25 sufficient to indict. Therefore, Defendants do not present an argument sufficient to justify 26 dismissal ofthe indictment 27

28

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People v. Charles E. Scharff II, eta/. Decision & Order Criminal Case No. CF00:-1:'1-1 0

CONCLUSION

For the foregoing reasons, Defendants' Motion to Dismiss is DENIED in its entirety. A

criminal trial setting is set for August 6, 2013, at 10:00 a.m.

so ORDE.RED this ~Df\ of July 2013.

/(J&_·~

HONORABLE VERNON P. PEREZ JUDGE, SUPERIOR COURT OF GUAM

JUL 3 I 2iJB

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IIPeople v. Charles E. Scharff II, et a/.

nPt'i<:ion f& nrriPr II C;i;-;;;~j Ca;;N~. CF0033-1 0