People v. Taitague

Opinion

FILED

6 IN THE SUPERIOR COURT OF GUAM

8 PEOPLE OF GUAM, Case No. CF 0504-13

10 Vs. DECISION AND ORDER ON 11 DEFENDANT' S MOTION FOR KALA JOE TAITAGUE, JUDGMENT OF ACQUITTAL 12

13 Defendant. 14

18 INTRODUCTION 19 This matter came before the Honorable Alberto C. Lamorena III on September 30, 2014 20 upon Defendant Taitague's Motion for a Judgment of Acquittal. Attorney F. Randall Cunliffe 21 represents Defendant. Assistant Attorney General James C. Collins represents the People of 22 Guam ("the People"). For the reasons set forth below, the Court DENIES the Motion. 23 BACKGROUND 24 On August 6, 2014, a jury found Defendant guilty of Possession of a Schedule II

25 Controlled Substance On Board an Aircraft Arriving in Guam in violation of 9 G.C.A. § 67.604

26 and Possession of a Schedule II Controlled Substance in violation of 9 G.C.A. § 67.401.2; the same jury found Defendant not guilty of Importation of a Schedule II Controlled Substance, 9 27

RLGINAL Decision and Order CF 0504-13, People v. Taitague

G.C.A. § 67.601(a). At the close of the People's case-in-chief, Defendant made an oral Motion 1 for a Judgment of Acquittal which the Court denied. 2 On August 11, 2014, Defendant filed her written Motion for a Judgment of Acquittal 3 pursuant to 8 G.C.A. § 100.30, challenging only the § 67.604 guilty verdict-Possession of a 4 Schedule II Controlled Substance On Board an Aircraft Arriving in Guam. The People 5 responded in their Opposition to Motion for Acquittal Notwithstanding the Verdict on August 6 12. Defendant then replied on August 25. 7 On September 30, the Court heard oral argument and took the matter under advisement. 8 DISCUSSION

9 1. The Standard for a Judgment of Acquittal

10 Guam law provides that "[i]f a jury returns a verdict of guilty ... a motion for judgment of acquittal may be made or renewed within seven days after the jury is discharged." 8 G.C.A. § II 100.30. Upon such a motion, the trial court reviews the challenged verdict "to make a 12 determination of the sufficiency of the evidence." People v. Enriquez, 2014 Guam 11 ¶ 13. 13 Sufficiency is based on "whether any rational trier of fact could have found the essential 14 elements of the crime beyond a reasonable doubt." Id. ¶ 11 (citations omitted); see also 8 15 G.C.A. § 90.21 ("No person may be convicted of an offense unless each element of the offense 16 is proved beyond a reasonable doubt."). Thus, in its analysis the Court must afford the People 17 "the strongest legitimate view of the evidence and all reasonable inferences that may be drawn 18 therefrom." Enriquez, 2014 Guam 11 ¶ 13 (citations omitted). 19 II. The Essential Elements of 9 G.C.A. § 67.604

20 To evaluate sufficiency of the evidence, a court must first determine the essential elements of the offense at issue. People v. Flores, 2004 Guam 18 ¶ 17 (citations omitted). Here, 21 the fact that a prohibited substance was not entered in the manifest or part of the official 22 supplies of the aircraft is not among the essential elements of § 67.604. 23 Section 67.604 proscribes "bring[ing] or possess[ing] on board any vessel or aircraft 24 arriving in ... Guam a controlled substance listed in Schedule I or II of this Act, unless such 25 substance or drug is a part of the cargo entered in the manifest or part of the official supplies of 26 the vessel or aircraft." 8 G.C.A. § 67.604(a) (emphasis added). Defendant has argued both 27 during and after trial that it is the People's "burden to prove that the [substance or drug] was not 28 on the manifest or part of the official supplies of the aircraft." (Def.'s Mot. for J. of Acquittal,

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2). The People respond that the statute's clause following "unless" does not constitute an I element, but rather an exception or affirmative defense that the People need not prove beyond a 2 reasonable doubt. (People's Opp'n to Def.'s Mot. for J. of Acquittal, 3:3-7). 3 The Guam Supreme Court has defined "element" as the "constituent part of the offense 4 which must be proved by the prosecution in every case to sustain a conviction under a given 5 statute." People v. Root, 2005 Guam 16 ¶ 14 (emphasis and citations omitted); see also Black's 6 Law Dictionary (9th ed. 2009) (defining "elements of crime" as "[t]he constituent parts of a 7 crime-usu[ally] consisting of the actus reus, mens rea, and causation-that the prosecution must 8 prove to sustain a conviction").

9 While the Guam Supreme Court has not directly addressed this issue, the federal circuits

10 have been careful to keep elements distinct from exceptions or affirmative defenses to a crime. The First Circuit, to which Defendant cites, identified the essential elements of the federal II counterpart to 9 G.C.A. § 67.604. See United States v. Franchi-Forlando , 838 F.2d 585, 591 (1st 12 Cir. 1988). The court recognized that the "`listed in the manifest' portion of [21 U.S.C.] § 955 13 makes [it an] exception[] to a general rule of liability," and that "defendants may have to treat 14 [it] as [an] affirmative defense[]." Id. (citations omitted); see also United States v. Barrios, 457 15 F.2d 680, 681 (9th Cir. 1972) (finding that in the related importation statute § 952(a), the 16 "except" clause is an affirmative defense); United States v. Hill , 935 F.2d 196, 199 (11th Cir. 17 1991) (agreeing with the Second and Seventh Circuits that under § 952(a) the burden of proving 18 that distribution of controlled substances was in accordance with regulations, an affirmative

19 defense, rests on the defendant).'

21 ' Although this case raises no double jeopardy implications, it is worthwhile to note that the Franchi-Forlando court 22 conducted its analysis in response to a Blockburaer challenge. Franchi-Forlando , 838 F.2d at 591; see Blockburger 23 v. United States, 284 U.S. 299, 304 (1932). Noting a similarity with the facts underlying Blockburger itself, the 24 court found that "the use of the words `unless' or `except' should [not] make a difference" in finding that the imposition of two similar statutes satisfies Blockburger. Franchi-Forlando , 838 F.2d at 591. Said another way, 25 exceptions can render statutes with similar elements sufficiently different under Blockburger. But see United States 26 v. Davenport , 519 F.3d 940, 945 (9th Cir. 2008) ("[We] decline to consider affirmative defenses ... that do not 27 directly negate an element of the crime but instead address mitigating circumstances, as `facts' that `require' proof for purposes of the Blockburger analysis."); Aparicio v. Artuz 269 F.3d 78, 98 (2d Cir. 2001) (same). 28

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More recently, the First Circuit went on to classify "individual exceptions to substantive 1 crimes" as a "type of affirmative defense." United States v. Hartsock , 347 F.3d 1, 8 (1st Cir. 2 2003) (citations omitted); see also United States v. McArthur, 108 F.3d 1350, 1353 (11th Cir. 3 1997) ("[A] narrow proviso to a more general statutory offense is more likely to be an 4 affirmative defense than an element of the offense."). To support this "link" between exceptions 5 and affirmative defenses, the Hartsock court noted both that "it is possible to omit exceptions 6 from the statute without doing violence to the definition of the offense," and that exceptions do 7 not, in accord with the Supreme Court's description of affirmative defenses, "negative any facts 8 of the crime." Hartsock , 347 F.3d at 6-7 (internal quotation marks and citations omitted).

9 Because the clause in § 67.604 uses excepting language ("unless"), its federal counterpart has been construed as an exception, and its omission would do no violence to the 10 offense's definition, the Court is satisfied that it is not an element. Furthermore, whether the 11 Court construes the clause as an exception or affirmative defense, statute mandates that 12 Defendant bears the burden to prove the language applies at trial. 13 Defendant concedes that § 67.505.2 governs burdens of proof for exceptions, although 14 her reading of the statute does not comport with the Court's. (Def.'s Reply to People's Opp'n to 15 Mot. for J. of Acquittal, 1). Section 67.505.2 provides that the People need not "negate any 16 exemption or exception in this Act in any ... trial," and that "the burden of proof of any such 17 exemption or exception shall be upon the person claiming its benefit." Similarly, the People

18 need not disprove either "a defense ... by proof at trial, unless the issue is in the case as a result

19 of evidence at the trial sufficient to raise a reasonable doubt on the issue," or "any defense which a statute explicitly designates as an `affirmative defense."' 8 G.C.A. § 90.21.2 20

21 2 According to at least the Ninth Circuit, the prosecution needs to prove the absence of some, but not all, 22 affirmative defenses. See Davenport, 519 F.3d at 945 n.3. In Davenport, the court noted that different principles 23 apply depending on the type of defense: "[I]f a[n affirmative] defense negates an element of the crime, rather than mitigates culpability once guilt is proven, it is unconstitutional to put the burden of proof on the defendant." Id. 24 (alterations in original); see also Patterson v. New York, 432 U.S. 197, 206-07 (finding that the Constitution does 25 not require the government to prove the nonexistence of all affirmative defenses, and that if a state "chooses to 26 recognize a factor that mitigates the degree of criminality or punishment," then as long as such mitigating circumstance does not serve to negate any of the elements of the criminal offense, the state need not prove the 27 mitigating factor's nonexistence). Here, however, the exception or affirmative defense is not one that negates an 28 element of the crime, like, for instance, a mistake of fact defense that may negate mens rea.

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Defendant's argument to the contrary is unpersuasive. She argues that § 67.505.2(c) 1 places the "burden of going forward" on an individual to establish that a "vehicle, vessel or 2 aircraft used in connection with controlled substances in Schedule I was used in accordance 3 with the provisions of this Act"; by implication, any other section in the Act involving a 4 Schedule II substance imposes the burden of proof on the People. (Def.'s Reply to People's 5 Opp'n to Mot. for J. of Acquittal, 1). 6 This argument, which appears to be rooted in the canon of expressio unius est exclusio 7 alterius, fails for numerous reasons. First, the Court agrees with the People that the burden 8 included in subsection (c) seems to apply to § 67.502.1(a)(4), which provides that "vehicle[s],

9 vessel[s], or aircraft" are subject to forfeiture if proven to have been "used" in connection with drug crimes. 9 G.C.A. § 67.502.1(a)(4). There is no apparent connection between the statutory 10 burden for forfeiture proceedings and the burden of proof for exceptions and defenses in 11 criminal proceedings.3 12 Secondly, Defendant's version of the statute ignores its plain language. An inquiry in 13 statutory interpretation always "begins with the language of the statute," and the statute's plain 14 meaning will prevail "where there is no clearly stated legislative intent to the contrary." Data 15 Mgmt. Res., LLC v. Office of Pub. Accountability, 2013 Guam 27 ¶ 17 (citations omitted). 16 Particularly with respect to expressio unius arguments, "courts have been warned to use this 17 maxim prudently," and that the phrase is "meant to act as an interpretive rule, rather than act as 18 a deliberate law." Rinehart v. Rinehart, 2000 Guam 14 ¶ 9 (citations omitted). This is especially

19 so where, as here, the plain language runs directly counter to Defendant's position: "It shall not be necessary for the government to negate y exemption or exception in this Act . . . The 20 burden of proof of a such exemption or exception shall be upon the person claiming its 21 benefit." 9 G.C.A. § 67.505.2(a) (emphasis added). The Guam Legislature explicitly placed the 22 burden of proof on defendants. 23

27 3 As the People also point out, the subsection's language is identical to 21 U.S.C. § 885(c) for which there is no 28 federal case law that supports Defendant's position.

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III. Sufficiency of the Evidence I Because a rational trier of fact could have found the essential elements of 9 G.C.A. § 2 67.604 beyond a reasonable doubt, it would be inappropriate to set aside Defendant's guilty 3 verdict. Indeed, Defendant does not contest the sufficiency of the People's evidence as it relates 4 to elements apart from the statute's excepting language. Moreover, as discussed above, although 5 the People did not produce evidence that Defendant failed to enter the prohibited item on the 6 aircraft's manifest or that the item was part of the aircraft's official supplies, the People were 7 not required to so do. 8 IV. T he Omission of § 67.604's Contested Language from the Jury Instructions

9 Defendant next argues that by removing the statute's contested clause from the jury

10 instructions, the Court functionally amended the indictment. (Def.'s Mot. for J. of Acquittal, 3). At trial, Defendant requested the Court to instruct the jury that § 67.604's excepting language 11 constituted an element of the crime. Citing points similar to the above, the Court denied the 12 request. 13 In the words of the Guam Supreme Court, "an amendment of an indictment occurs when 14 the changing terms of the Indictment are altered by the prosecutor or court after the Grand Jury 15 has passed upon them, and such amendment must be of a form not of substance to be 16 permissible." People v. San Nicolas, 2013 Guam 21 ¶ 16. Defendant, however, offers no 17 support for the proposition that altering jury instructions is tantamount to amending an 18 indictment. 19 This second argument, moreover, suffers the same infirmity as the first: The relevant language did not constitute an element that the People needed to prove beyond a reasonable 20 doubt, but rather an exception or affirmative defense that Defendant failed to invoke. Thus, 21 because the clause was not "of substance" to the case, the Court did not err in removing it from 22 the jury instructions. See State v. Boggs, 358 P.2d 124, 125-26 (Wash. 1961) (finding that the 23 trial court was correct in not instructing the jury that "the state must prove beyond a reasonable 24 doubt ... that the possession was not within one of the exceptions authorized in the act" where 25 the act provides for a burden of proof similar to Guam's § 67.505.2). The Court, thus, 26 committed no error in the omission. 27

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CONCLUSION 1 In light of the foregoing, the Court DENIES Defendant Taitague's Motion for Judgment 2 of Acquittal as it relates to the charge of Possession of a Schedule II Controlled Substance On 3 Board an Aircraft Arriving in Guam in violation of 9 G.C.A. § 67.604. Sentencing shall be 4 heard on January 14, 2015 at 3:00 p.m. 5 6 IT IS SO ORDERED this day of December 24, 2014. 7

10 HONORABLE ALB]RTO C.LAMORENA III 11 Presiding Judge, Supe 'or Cou of Guam

24 _ vl,a co 25 13 adge that a copy o: the on al hereto was placed it the ;ov't hox of; 26

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