People v. Taimanglo, J.

Opinion

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IN THE SUPERIOR COURT OF GUAM

THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0742-18

vs.

DECISION AND ORDER

JASON TAIMANGLO, DENNIS DELOSARIO DIZON, and MELVIN SABLAN LEON GUERRERO,

Defendants.

INTRODUCTION

This matter came before the Honorable Vernon P. Perez on July 26, 2019, for hearing on

Defendant Jason Taimanglo's ("Defendant") First Motion to Sever Charges ("Motion to Sever"). Defendant was present with counsel, Attorney William B. Pole, and Assistant Attorney General Leonardo M, Rapadas was present on behalf of the People of Guam ("the Government"). Having reviewed the pleadings, the arguments presented, and the record, the Court now issues the following Decision and Order.

BACKGROUND

On December 21, 2018, Defendant and co-defendants, Dennis Delosario Dizon, Steven James Sablan Leon Guerrero, and Melvin Sablan Leon Guerrero, were each charged with (1) Burglary (As a Second Degree Felony) - 4 Counts, (2) Theft by Receiving (As a Second Degree Felony) - 4 Counts; (3) Theft (As a Second Degree Felony) - 4 Counts, (4) Attempted Theft (As a Second Degree Felony), and Criminal Trespass (As a Misdemeanor) - 4 Counts.l

1 These charges are reflected against Defendant as Charges Sixteen through Twenty. See Indictment at 22-28.

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I (Indictment, Dec. 21, 2018). These charges stern from allegations that defendants broke into 2 and stole property from Reaction Co., Inc. in Tiyan, Black Construction Company job site in 3 Dededo, Guam Custom s and Quarantine Agency warehouse in Barrigada, and Black 4 Construction Company property in Yigo, in August, October, and November 2018. See Decl. of 5 Sean Brown, Magistrate's Con pl., Dec. 14, 2018). The Indictment further alleges that 6 Defendants attempted to steal property from Guam Power Authority Substation, MongMong in 7 November 2018. See Indictment, Dec. 21, 2018. All charges relating to co-defendant Steven 8 James Sablan Leon Guerrero were severed on July 31, 2019. See Order, Jul. 31, 2019. 9 On January 23, 2019, Defendant filed the instant Motion. On July 10, 2019, the 10 Government filed its Opposition, and on July 12, 2019, Defendant filed his Reply. None of the co-defendants have joined in Defendant's Motion to Sever.

12 On July 26, 2019, the Court heard further arguments on the Motion, and subsequently 13 placed the matter under advisement. 14 DISCUSSION 15 Defendant moves the Court to sever each of the four counts of Charges Sixteen, 16 Seventeen, Eighteen, and Twenty from each other, and for Charge Nineteen to be severed from 17 all charges. See generally, Mot. Sever, Jan. 23, 2019. In total, Defendant moves for all charges 18 and counts to be severed into five (5) different trials, pursuant to 8 G.C.A. § 65.35. Id. The 19 Government opposes, arguing that the charges are properly joined and that Defendant will

20 suffer no prejudice from such jointer. See Ge/zemlly, Opp'n, Jul. 10, 2019. Defendant also

2

21 moves the Coup to sever his trial from co-defendant Dizon. See Mot. Sever at 4-5. The Court

22 will first address whether severance of the offenses is appropriate. 23 Under Guam law, two or more offenses may be charged in the same indictment "if the 24 offenses charged are of the same or similar character or based on the same act or transaction or 25 26

27 7 Defendant also moves the Court w sever his case from any co-defendant who has asserted. See Mol. Sever at 5.

28 The Court finds that this portion of the Motion to Sever to be moot because no defendants are asserted at this time.

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l on two or more acts or transactions connected together or constituting parts of a common 2 scheme or plan." 8 G.C.A. § 5535.3 Severance may be appropriate, however:

3 If Ir 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 4 trial together, the court may order an election or separate trials of counts, grant a 5 severance of defendants or provide whatever other relief justice requires. 6 8 G.C.A. § 6535.4 7 To determine whether offenses are properly joined, courts traditionally consider 8 "whether the charges are laid under the same statute, whether they involve similar victims, 9 locations, or modes of operation, and the time frame in which the charged conduct occurred." 10 United States v. Taylor, 54 F.3d 967, 973 (let Cir. 1995) (citations omitted). Furthermore, "the

validity of the jointer is determined solely by the allegations in the indictment." United States 12 v. Jawara, 474 F.3d 565, 572 (9th Cir. 2007) (citing United States v. Terry, 911 F.2d 272 (9th 13 Cir. l990)). "[T]he primary purpose of Rule 8(a) jointer is to ensure that a given transaction 14 need only be proved once.... W here there is substantial overlap in evidence between two 15 offenses, jointer eliminates the need to prove substantially the same evidence twice over, thus 16 realizing precisely the kind of economy envisaged by Rule 8(a)." Howerfon v. United States, 17 964 A.2d 1282, 1292 (D.C. 2009) (citations, internal quotation marks, and alterations omitted). 18 See also Terry, 911 F.2d at 276 ("W hen .. joined offenses are not connected and are not 19 provable by the same evidence, jointer is improper."). Rule 8(a) is "construed broadly in favor 20

21 3 Section 55.35 is substantially the same as Rule 8 of the Federal Rules oflCriminal Procedure, which provides:

(a) Joiner of Offenses. The indictment or information may charge a defendant in separate counts 22 with 2 or more offenses if the offenses charged - whether felonies or misdemeanors or both _ are of the same or similar character, or are based on the same act or transaction, or are connected with 23 or constitute parts of a common scheme or plan.

24 Fed. R. Crim. P. 8.

25 4 Section 65.35 is substantially similar to Rule 14 of the Federal Rules of Criminal Procedure, which provides:

26 If the jointer of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of 27 counts, sever the defendants' trials, or provide any other relief that justice requires.

28 Fed. R. Crum. p. l4(a).

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I of initial joinder." United States v. Walker, 3 F.3d380, 385 (nth Cir. 1993) (citation omitted). 2 See also United States v. Boulanger, 444 F.3d 76, 87 (let Cir. 2006) (construing Rule 8(a) 3 generously in favor ofjoinder). 4 Here, Defendant argues that the facts forming the basis of the charges do not "support 5 keeping these charges together" and instead "support separating the charges by victim and 6 date." (Reply at 4-5, Jul. 12, 2019). Defendant sets forth that "the only similarity is ... that 7 four of the charges stem from four different alleged burglaries and charge of attempted theft, 8 again involves a different date and a different victim." Id. at 4. The Government disagrees, 9 arguing that "the same defendants identify each other as responsible for all the burglary 10 charges" and that "[s]pecific evidence, physical and oral, tie each defendant to this string [of]

burglaries and thefts." (Opp'n at 4).

12 In this case, Count One to the Sixteenth Charge, Seventeenth Charge, Eighteenth 13 Charge, and Twentieth Charge alleges offenses occurring on the 13th day of August, 2018, at 14 Reaction Company, Inc. (Indictment, Dec. 21, 2018). Count Two to the Sixteenth Charge, 15 Seventeenth Charge, Eighteenth Charge, and Twentieth Charge alleges offenses occurring on 16 the 20th day of August, 2018, at Black Construction Co., Dededo. Id. Count Three to the 17 Sixteenth Charge, Seventeenth Charge, Eighteenth Charge, and Twentieth Charge alleges 18 offenses occurring on the let day of October, 2018, at Guam Customs & Quarantine, Barrigada. 19 Id. Count Four to the Sixteenth Charge, Seventeenth Charge, Eighteenth Charge, and Twentieth 20 Charge alleges offenses occurring on the 5th of November, 2018, at Black Construction Co. ld. 21 The Nineteenth Charge alleges the offense of Attempted Theft (As a Second Degree Felony) 22 occurring on the 22nd day of November, 2018, at Guam Power Authority Substation, 23 MongMong. Id. The alleged charges took place over a period of four months. Each count of 24 Theft (as a Second Degree Felony) alleges that defendants "unlawfully take, obtain or exercise 25 unlawful control over the movable property of [the victim], that is, miscellaneous items, with 26 intent to deprive [the victim] thereof, the amount involved exceeding $1,500.00" and each count 27 of Theft by Receiving (As a Second Degree Felony) alleges that defendants "intentionally 28 receive, retain or dispose of the movable property of [the victims], that is miseeiianeous items,

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l knowing that it had been stolen or believing that it had probably been stolen, the amount 2 involved exceeding $1,500.00.' ld. 3 Although there are different victims alleged in the various counts, the Court finds that 4 the offenses are properly joined because they are of the same or similar character and occurred 5 within a short period of time. See, e.g., United States v. Chambers, 964 F.2d 1250, 1250-51 (let 6 Cir. 1992) (affirmingjoinder of six robberies involving similar victims over a period of two and 7 a half months), United States v. Sanders, 463 F.2d 1086, (Sth Cir. 1972) (affirming jointer of 8 counts where offenses were of the same or similar character and occurred eight months apart), 9 Howard v. United Sfafes, 372 F.2d 294, 301 (9th Cir. 1967), cert. denied 388 U.S. 915 (1967) 10 (holding that "the use of multicount indictments charging offenses of similar character is a Il sanctioned practice), United States v. Benson, 199 F.Supp. 2d 735, 736 (finding six counts of 12 bank robbery properly joined under Rule 8(a) because they are of the same or similar 13 character"), United States v. Rodgers, 732 F.2d 625, 629 (after examining prior cases where 14 jointer was affirmed for offenses occurring during time periods including eight months, two- 15 years, and five-months, finding "the time-period factor is to be determined on a case-by-case 16 approach, there is no per se rule on when the time period between similar offenses is so great 17 that they may not be joined."). is Nonetheless, even if offenses are properly joined, a court may grant severance of the 19 offenses if the defendant is prejudiced by such jointer. "The prime consideration in 20 determining whether or not to grant a severance is the possibility of prejudice to the defendant 21 in conducting his defense. Weighing the danger of confusion and undue cumulative inference is 22 a matter for the trial judge within his sound discretion." Johnson v. United States, 356 F.2d 23 680, 682 (8th Cir. 1966), cert. denied 385 U.S. 857 (1966). "It is not enough simply to show 24 that such jointer makes it more difficult to defend." Id. (citations omitted). 25 Defendant argues that he will be prejudi'ed by having one single trial on multiple 26 distinct charges, citing to Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964) and McElroy 2? v. United States, 164 U.S. 76, 80 (1896). See Mot. Sever at 4. In Dre iv, the D.C. Circuit Court 28

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I

l of Appeals notes that a defendant may be prejudiced by jointer for one or more of the following 2 reasons:

3 (l) 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 4 disposition on the part of the defendant from which is found his guilt of the other 5 crime or crimes charged, or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find.

6

331 F.2d at 88. Defendant, however, does not further examine these issues in relation to the 7

instant matter, only simply stating "[a]ll four can be found in this case, and this is a hallmark of 8

American Law." (Mot. at 4).

9

The Court is not convinced that Defendant will be so prejudiced by having a single trial 10

on all counts charged, "Even where there may be some risk of prejudice, if the possibility of

prejudice may be cured by a cautionary instruction severance is not required." United States v.

12

Walker, 3 F.3d 380, 385 (lath Cir. 1993) (citation and quotation marks omitted). See also 13

United States v. Taylor, 54 F.3d 967, 974 (let Cir. 1995) (finding that defendant's "bare 14

allegation that, if the jury were to believe that he was involved in one bank robbery, then it 15

might also (improperly) be led to believe from the fact alone that he was involved in the other, 16

is simply not enough. This type of spillover is standard fare whenever counts involving discrete 17

incidents are linked in a single indictment. We have repeatedly held that such a garden variety 18

side effect, without more, is insufficient to require severance."). "Juries are presumed to follow 19

their instructions." Znfro v. United States, 506 U.S. 534, 540 (1993) (citation omitted).

20

Without more, the Court finds that the use of limiting jury instructions will be sufficient to cure 21

any possible prejudice.

22.

Lastly, the Court notes that the Government's response to the portion of Defendant's 23

24 Motion requesting severance of his charges from the co-defendants only addresses the request

based on co»defendants' assertion of speedy trial rights. See Opp'n at 2. The Government does 25

not address whether severance is appropriate or not- from co-defendant Dizon specifically, based 26

on potential Briton v. United States, 391 U.S. 123 (l968) issues. See Mot. Sever at 4-5.

2?

28

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l Therefore, the Court orders the Government to provide a further statement as to its position 2 regarding the appropriateness of severance of Defendant's trial from co-defendant Dizon. 3 CONCLUSION 4 For the foregoing reasons, the Court hereby DENIES Defendant's Motion to Sever 5 Charges. The Court, however, ORDERS the Government to provide a further statement as to 6 its position regarding Defendant's motion to sever his trial from Co-Defendant Dennis Dizon. 7 Such statement or responsive pleading shall be tiled by October 14. 2019. 8 Further Proceedings are set for October15. 2019 at9:00 a.m.

9 IT IS S0 ORDERED this 3rd day of October, 2019.

10

12

13 HONORABLE VERNON p. PEREZ Judge, Superior Court of Guam 14

15 16 17 18

19 20 21

22 SERVICE vu CGURT BOX

23 Iacknowledgolhlh =°»=vf;',;» odhlnal hlnto was placed n e 24 R°%"M< all/J~ We

25 n£lELjLj_2nng.,,

26

Depwv ems, sudiéid "Eur! of Guan:

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