People v. Susuico

Opinion

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6 IN THE SUPERIOR COURT COURT OF OF GUAM GUAM 7

8 PEOPLE OF OF GUAM, GUAM, CRIMINAL CRIMINAL CASE no. NO.CF0492-22 CF0492-22 9 vs. 10 DECISION DECISION AND ORDER 11 FREDDY CUEVAS SUSUICO, 12 Defendant. Defendant. 13 1

14 INTRODUCTION 15 15 This matter is before before the the Honorable Honorable Vemon Vernon P. P. Perez Perez on on Defendant Defendant Freddy Freddy Cuevas Cuevas 16 16 Susuico's Susuico's ("Defendant") ("Defendant") Motion to Dismiss, filed November 7, 2024. 2024. Defendant Defendant is is represented represented 17 17 by Heather Martinez Martinez Quitugua. Quitugua. The The People People of of Guam Guam ("the ("the Government") Government") are are represented represented by 18 18 Assistant Attorney General Grant Olan. Olan. Having Having reviewed reviewed the the pleadings, pleadings, the arguments presented, 19 19 and the record, record, the the Court Court now now issues issues the the following following Decision and Order. 20 20 BACKGROUND 21 On August 4, 2022, Defendant was was indicted with the following charges: charges: (1) Theft of a 22 22 Motor Motor Vehicle (As a Second Degree Felony) - 13 13 Counts, Counts; (2) Theft of Property Property (As a Second 23 23 Degree Felony) - 88 Counts, Counts; (3) (3) Theft by Receiving Receiving (As (As aa Second Second Degree Felony), Felony); (4) Burglary 24 (As a Second Degree Felony) - 22 Counts, Counts; (5) (5) Possession of of aa Schedule Schedule II II Controlled Controlled Substance 25 (As a Third Degree Felony); (6) Assault Against a Peace Officer (As a Third Degree Felony); Felony), and 26 26 (7) (As a Misdemeanor) Misdemeanor)-- 22 Counts. Counts. (Indictment, Aug. 4,4, 2022). 2022). Over (7) Criminal Mischief (As (Indictment, Aug. Over two 27 27 years years later, later, on October October 29, 2024, 2024, aa grand grand jury juryreturned returned aaSuperseding Superseding Indictment Indictment against against 28

People v. Susuico Case No. CF0492-22 Case No. Decision Decision and and Order

Page 1 off ofS 1 Defendant, charging charging him him with with(1) (1) Theft Theftby byReceiving Receiving(as (asaaSecond SecondDegree DegreeFelony) ...- 13 Counts; Felony)- Counts,

2 (2) Theft by Receiving (As a Second Second Degree Degree Felony) Felony) .-- 88 Counts; Counts; (3) Burglary (As a Second 3 Degree Felony) - 22 Counts, Counts; (4) (4) Possession Possession of of aa Schedule Schedule II II Controlled Controlled Substance Substance (As a Third 4 Degree Felony), Degree Felony); (5) (5) Assault Assault Against Against aa Peace Officer Officer (As a Third Third Degree Degree Felony); Felony), and (6) Criminal Criminal

5 Mischief Mischief (As a Misdemeanor) - 2 Counts. (Superseding (Superseding Indictment, Indictment, Oct. Oct. 29, 29, 2024). 6 November 7, On November 7, 2024, Defendant filed the instant Motion. On instant Motion. On January January 10, 10, 2025, 2025, the 7 Government filed its Opposition. Government Opposition. On On February February 17, 17, 2025, Defendant Defendant filed filed his his Reply. Reply. The Court

8 subsequently placed the matter under advisement without further argument. argument. See See CR CR 1.1 1.1 Form 3, 9 Feb. 17, 2025. Feb. 17, 2025. . 10 10 DISCUSSION

11 11 Defendant Defendant moves moves to to dismiss dismiss Charge Charge One One -.- Counts One, Two, and Four and Charge Two 12 12 -- Counts Counts One, One, Two, Two, Three, Three, Four, Four, and and Five Five of of the the Superseding Superseding Indictment Indictment because the charges 13 13 were filed after after the statute statute of limitations. See generally, generally, Mot. Dismiss, Nov. 7, 7, 2024. 2024. The

14 14 Government Government opposes, opposes, arguing that "[b]ecause theft constitutes a single offense no matter how it 15 15 ged under is cha rged T it le 99 Chapter under Title ha pt er 43 43 .. . . .t he thesuper seding indict superseding ment does indictment does not not br oa den or broaden or 16 16 substantially amend amend the charges in the the original original indictment." indictment." (Opp'n (Opp'natat2, 2, Jan. Jan. 10, 10, 2025). 17 17 Under Under Guam law, law, prosecution of of a felony offense other other than murder and criminal sexual 18 18 conduct must commence conduct must commence within within three three (3) (3) years years of of the the offense offense committed. committed. 88 G.C.A. G.C.A. §§ 10.20. 10.20. 19 19 "Generally "Generally speaking, speaking, the the return return of of an indictment indictment tolls tolls the the statute statute of of limitations with respect to the 20 20 charges contained in the the indictment." indictment." United States v. v. Pacheco, Pacheco, 912 F.2d 297, 297,305 (9th Cir. 1990) 21 (internal citations omitted). (internal citations omitted). "A "A superseding superseding indictment indictment returned returned while the the first first indictment indictment is 22 22 pending pending is timely unless is timely unless it broadens or substantially amends the charges in the the original original indictment. indictment.

23 23 To determine whether the superseding superseding indictment impermissibly changed the impermissibly changed the charges charges in the 24 necessary to original indictment it is necessary to examine the two indictments carefully." United United States v. 25 Sears, Roebuck & Co., Sears, Inc., 785 F.2d 777, 778~79 Co., Inc., 778-79 ((citations omitted). citations omitted). 26 26 The original IndictMent charged Defendant Indictment charged Defendant with Theft of a Motor Motor Vehicle Vehicle (As a Second

27 27 Degree Degree Felony) Felony) in in Charge Charge One .-. Counts One, One-Counts One, Two, Two, and and Four, Four, and and charged charged Defendant Defendant with Theft

28 of of Property (As a Second Degree Felony) Felony) in in Charge Charge Two Two .-- Counts One, Two, Three, Four, and

People v. Susuico Case No. No. CF0492-22 Decision Decision and and Order

Page 2 of5 of 5 1 Five. (Indictment, (Indictment, Aug. Aug.4,4,2022). 2022). The TheSuperseding SupersedingIndictment Indictment changed changed Charge Charge One - Counts Counts 2 2 One, One, Two, and and Charge and Four and ChargeTwo Two -- Counts One, Two, Counts One, Two, Three, Four, and Five Four, and Five to to Theft by

3 Receiving Receiving(As (AsaaSecond Second Degree Degree Felony). Felony).(Superseding (SupersedingIndictment, Indictment,Oct. Oct. 29, 29, 2024). These These charges charges 4 4 are all alleged alleged to to have have occurred occurred between between February 5, 2020 and andSeptember September25, 25,2021. 2021.Id. Id Thus, the

5 issue issue before the Court Court is is whether whether or or not not the the Superseding Superseding Indictment Indictment broadened broadened or or substantially substantially 6 6 amended theoriginal amended the originalindictment indictmentby bychanging changingthe thecharge chargefrom fromTheft TheftofofaaMotor MotorVehicle Vehicle (As (As aa

7 Second Degree Degree Felony) Felony) and Theft of and Theft of Property Property (As (As a Second SecondDegree DegreeFelony) Felony) to toTheft Theft by byReceiving Receiving

8 (As (As aa Second Degree Felony). Second Degree Felony).

9 "To "Todetermine determine whether whetheraasuperseding superseding indictment indictment substantially substantially broadens broadens or amends amends aa 10 10 pending timely indictment, indictment, it is is appropriate appropriate to consider whether the additional additional pleadings pleadings allege

11 11 violations of of aa different different statute, different elements, statute, contain different elements, rely rely on different different evidence, or expose

12 12 the defendant defendant to to aapotentially potentially greater sentence." sentence." United United States v. v. Liu, Liu, 731 F.3d 982, 982, 996-97 (9th

13 Cir. 2013) 2013) (quoting (quoting United United States States v. Yielding, Yielding, 657 657 F.3d 688, 704 (8th Cir. 688, 704 Cir. 201 l) (internal 2011) (internal 14 14 quotation quotation marks marks omitted). "The "The central central concern concern in in determining determining whether the counts whether the counts in aa 15 15 superseding indictment should be be tolled tolled based on similar counts included in the the earlier earlier indictment

16 16 notice." Id. at is notice." 997. See at 997. See also United United States States v. v. Smith, 197 225, 229 197 F.3d 225, 229(6th (6th Cir. Cir. 1999) 1999) (citing (citing

17 17 Grady, 544 F.2d at at 601) 601) ("Notice ("Notice totothe thedefendants defendants of ofthe thecharges, charges, so so that that they they can can adequately adequately 18 18 prepare prepare their defense, is is the the touchstone touchstone in in determining determining whether whether aa superseding superseding indictment indictment has has 19 19 broadened the the original original indictment.")..

20 Pursuant Pursuant toto99G.C.A. G.C.A. §§ 43.30, 43.30,Theft Theft of of Property, Property, "[a] "[a] person person isis guilty guilty of of theft if he theft if he 21 21 unlawfully takes or obtains obtains or or exercises exercises unlawful unlawful control control over, movable property of ofanother another with 22 22 intent to deprive intent to thereof." 9 himthereof." deprivehim 9 G.C.A. G.C.A. §§ 43.30(a). 43.30(a). Pursuant to 9 Pursuant to 9 G.C.A. G.C.A. §§ 43.50, Theft by 43.50, Theft by 23 23 Receiving Stolen Stolen Property, "[a] person person is is guilty guilty of oftheft theft ififhe heintentionally intentionally receives, receives, retains retains or 24 disposes disposes of movable property property of ofanother another knowing knowing that that it it has has been stolen or believing believing that that itit has has 25 25 probably been stolen. probably been stolen. ItIt is a defense defense to aa charge charge of ofviolating violatingthis this Section Sectionthat that the the defendant defendant 26 26 received, received, retained or disposed retained or disposedof of the theproperty propertywith withintent intenttotorestore restoreitittotothe theowner." owner." 99 G.C.A. G.C.A. §§

27 40.50(a). Defendant Defendantargues argues that that the changes changesin inthe theSuperseding SupersedingIndictment Indictmentfrom fromTheft Theftof of Property Property

28 to Theft Theft by by Receiving Receiving"are "arenot notmere meretechnical technicalchanges changes but but change change the the nature nature of the the case case

People v. v. Susuico Case No. No. CF0492-22 Decision Decision and Order

Page Page 3 of of55 1 altogether" and the "defenses to the the crimes are are different different as aswell." well." (Mot. (Mot. Dismiss Dismiss at at 4). 4). Defendant Defendant

2 sets forth forth that that "[ "[w]hereas [he] could w]hereas [he] could have have argued argued he he was not the the one who stole the materials in

3 defense of of the Indictment, that defense is no longer available to him available to him because the elements of of the

4 crimes have changed. In Inaddition, addition, the the evidence evidence as as to to Mr. Mr. Susuico's Susuico's intent intent has has totally totally changed. 5 government was required to prove Mr. Susuico actively obtained goods, now Whereas before the government now

6 the elements address whether Mr. Mr. Susuico Susuico received received goods goods knowing knowing or thinking the goods were

7 probably stolen." probably stolen." Id Defendant Defendantalso alsonotes notesthat thatthese these changes changes to to the the Indictment were not made 8 within months after the the original Indictment Indictment was was returned, returned, but but over over two two years years later. later. Id Id at at 5. 9 "Guam's theft "Guam's theft statute, statute, set set forth in Title forth in Title 99 GCA GCA §§ 43.30, 43.30, and theft by and theft by receiving receiving statute, statute, set set 10 10 for th in forth in T itle 9 Title GCA §§ 43. 9 GCA on Model based on r ba 50, aare 43.50, Model Pena Penall Code Code sections sections 223. 223.2 aand nd 223. 223.6 11 respectively." People People v. Palisoc, Palisoc, 2002 2002 Guam il 40. The Supreme Guam 9911 Supreme Court of of Guam, after 12 12 reviewing reviewing commentary commentary to to the the Model Model Penal Penal Code Code sections, sections, found found that that "theft "theft and theft by receiving receiving

13 are intended are intended to to reach reach distinct distinct wrongdoers." il 41. wrongdoers." Id atat 11 41. The The Supreme Supreme Court Court observed observed that that 14 14 "[s]everal states follow the same logic logic in in interpreting interpreting their their respective respective theft theft statutes, statutes, finding that 15 15 in enacting a receiving statute, the legislature:

16 16 Intended Intended to reach a distinct group of wrongdoers. The class includes those persons who receive, retain, or dispose of property received from another person with the 17 17 knowledge oror reasonable reasonable belief belief that that the property property has been stolen. stolen. The legislative legislative 18 18 intent was not intent not to expand the offense offense of oftheft, theft, but but to create a separate crime. 19 Id il The Id atat 1]41. The Supreme Supreme Court Court made clear in Palisoc, Palisoc, that theft and theft by receiving receiving are not the 20 20 Id("We same crime. Id ("Weagree agreewith withthis thisline lineofofcases cases and and find find that that aa defendant defendant cannot be convicted 21 of both theft and theft by receiving because because one who is is aa thief thief cannot cannot be also also be aa receiver."). receiver."). 22 Accordingly, as theft and theft by receiving are not the same crime and the defenses available to 23 23 Defendant Defendant have changed, the Court finds that the the Superseding Indictment broadened the original

24 indictment by adding new charges beyond indictment beyond the statute of limitations limitations period. period. Therefore, the Court 25 25 finds Charge One of Theft by Receiving (As a Second Degree Felony) -- Counts Counts One, Two, and 26 26 Four and Charge Two of Theft by by Receiving Receiving (As a Second Second Degree Degree Felony)- Felony) Counts One, Two, 27 27 Three, Four, Four, and and Five Five of of the the Superseding Superseding Indictment Indictment must be dismissed. 28 28

People People v. Susuico Case No. CF0492-22 Case No. Decision Decision and and Order

Page 4 of5 of 5 1 CONCLUSION 2 reasons, the For the foregoing reasons, Court hereby the Court GRANTS Defendant's hereby GRANTS to Dismiss. Defendant's Motion to Dismiss. 3 2.v¢\ 4 IT IS SO ORDERED IS SO this A ORDEREDthis 2:;vAday 2025. April, 2025. ofApril,

8 4«---- HONORABEE p. PEREZ HONORABLE VERNON P. Court of Superior Cou1"t Judge, Superior of Guam

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22 senvlce Sl!RVICI! WA VIA I-MAIL 1!-M.AIL »1 acknowledge acil"O"""'edge :her that ana" electvomt. el@ct,on1c. 23 23 Com Co~G' ofthe theOf~g~nal was e mauledr o,,g,ni!II wa~ ma1lea to

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Deputy Oeput'f clerk_ Supenov Court clerk. Super,o, Coup of Gu~m Guam

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People People v. Susuico Case No. No. CF0492-22 Decision Decision and and Order

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