LTD fl." ""\ I I LL LE SUPERIOR CQURT O F. GUAil=s§
1 2023 Are He 52E'f.11= 52 2 CLERK OFCUURT 3 IN THE SUPERIOR COURT OF GUKM- 4
5 PEOPLE OF GUAM, 6 Plaintiff, Criminal Case No. CF0090-23 7 GPD Report No: 23-03496 I22-26873 I21-28890 8 vs.
9 DECISION AND ORDER CHRISTOPHER ROSARIO TEDTAOTAO, DENYING DEFENDANT'S MOTION TO 10 DOB: 08/15/1976 DISMISS INDICTMENT FOR MISJOINDER OF OFFENSES 11 Defendant.
12 INTRODUCTION 13 This matter came before the Honorable Alberto E. Tolentino on June 5, 2023 for a hearing 14 on Christopher Rosario Tedtaotao's ("Defendant's") Motion to Dismiss the Indictment for 15
16 Misj binder of Offenses ("Motion"). Assistant Attorney General Grant Olan represents The People
17 of Guam ("the People"), and Curtis C. Van de veld represents Defendant. Having duly considered
18 the parties' briefs, oral arguments, and the applicable law, the Court now issues the following 19 Decision and Order and DENIES the Defendant's Motion. However, the Court will sever the 20 charges so that they may be adjudicated each subsequent to the other. 21
22 BACKGROUND
23 On February 14, 2023, Defendant was indicted on three charges: Theft of Property (As a
24 3'd Degree Felony), Criminal Trespass (As a Misdemeanor), and Theft (As a Petty Misdemeanor).
25 See Indictment (Feb. 14, 2023). 26
28 Page 1 of 7 1 Defendant allegedly committed the first charged offense of Theft of Property (As a 3rd
2 Degree Felony) on or about November 17, 2021 to November 20, 2021 by unlawful taking of
3 movable property belonging to Ruth Sakuma, valued at less than $1500.00 and greater than
4 $500.00 in violation off GCA §§43.30(a), 43.20(b), and43.15, as amended. Id.
; Defendant allegedly committed the second charged offense of Criminal Trespass (As a
7 Misdemeanor) on or about February 5, 2023, by knowingly entering or surreptitiously remaining
8 in the habitable property of Gladly Sifer without privilege or license to do so in violation of 9
9 GCA §37.30(a), as amended. Id. at 2.
10 Defendant allegedly committed the third charged offense of Theft (As a Petty
; Misdemeanor) by unlawfully taking, obtaining, or exercising unlawful control over the movable
13 property of Judith Arizala (a BLU cellphone) with intent to deprive Judith Arizala, in violation of
14 9 GCA §§ 43.30(a), 43.20(d), and43.15, as amended. Id. 2.
15 On March 3, 2023, Defendant filed a Motion to Dismiss the Indictment for Misjoinder of 16 Offenses. Defendant argued that the charges in this case should be brought separately because to 17 1g try them together would potentially violate Guam Rules of Evidence (GRE) 404, and further that
19 8 GCA § 55.35 distinguishes the charged offenses in this matter.
20 DISCUSSION 21 "Two (2) or more offenses may be charged in the same indictment or information in a 22 23 separate count for each offense if the offenses charged are of the same or similar character or are
24 based on the same act or transaction or on two (2) or more acts or transactions connected together
25 or constituting parts of a common scheme or plan." 8 GCA § 55.35(a). 26
28 Page 2 of 7 This provision of Guam law was originally sourced from Rule 8 of the Federal Rules of 1
2 Criminal Procedure. Thus, we may resort to federal authority interpreting the rule for guidance in
3 its applicatioN to this case. 4 Rule 8(a) describes three situations where jointer is proper and at least one of the rule's 5 conditions must be satisfied. See US v. Jawara, 474 F.3d 565,573-4 (9th Cir. 2007)(citations 6 7 omitted). The propriety of joining offenses in the indictment is determined solely by the
8 allegations in the indictment. Id. In Jawara, the defendant was indicted on a document fraud
9 charge and a manage fraud conspiracy charge. Id. at 570. The superseding indictment alleged 10 that defendant made false statements to questions regarding his nationality and birthplace on an ll Immigration and Naturalization Service form. Id. The superseding indictment also alleged that 12
13 defendant engaged in overt acts in furtherance of the marriage fraud conspiracy which included:
14 (l) facilitating a meeting between a cooperating witness, an alien, and a female U.S. citizen to get
15 them to marry each other in order to evade the immigration laws of the United States, and (2) 16 meeting with and soliciting a cooperating witness to procure a United States citizen who would 17 agree to many defendant in order to evade the immigration laws of the United States. Id. at 570- 18
19 1.
20 Prior to trial, defendant moved to sever the two counts, asserting misjoinder under Federal 21 Rule of Criminal Procedure 8(a) and prejudicial jointer under Federal Rule of Criminal Procedure 22 14. Id. The district court denied the motion. Id. The Ninth Circuit Court of Appeals agreed that 23 24 the two charges were neither part of a common scheme or plan, id. at 575, nor were they of the
25 same or similar character. Id. at 579.
28 Page 3 of 7 Whether the offenses are part of a common scheme or plan, the question asked is whether 1
2 "[c]ommission of one of the offenses [ ]either depended upon [ ]or necessarily led to the
3 commission of the other, proof of the one act [ ]either constituted [ ]or depended upon proof of 4 the other." Id. at 570 (emphasis in original)(citations omitted). The cou1"c found that there was no 5 direct connection between the acts other than defendant's participation in both events. Id. at 575 . 6 7 It reasoned that "the false statements were not made to bolster or help conceal the manage fraud
8 conspiracy, nor can it be said that the marriage fraud conspiracy flowed from the document fraud
9 crime." Id. Furthermore, "[a]lthough a close temporal relationship is not, in and of itself, a 10 sufficient condition for jointer, we consider it significant in this case that the alleged acts 11 underlying the two offenses had no temporal connection and were separated by several years.77 12
13 Id. (citation omitted). Thus, the court concluded that whatever connection exists there, that it was
14 entirely too speculative to justify jointer on the basis of a common scheme or plan. Id. The court
15 found that when the issue is whether the "offenses charged are of the same or similar character" 16 a much more complex inquiry may be required. Id. It noted that when all that can be said of two 17 separate offenses is that they are of the same or similar character "the customary justifications for 18
19 jointer (efficiency and economy) largely disappear.... [at] the same time, the risk to the defendant
20 in such circumstances is considerable." Id. (quotations in original)(citations omitted). The court 21 conducted a comparison between the approaches to the issue by two other circuits, one which 22 adopted a literal or categorical approach that paid exclusive attention to the likeness of class or 23 24 category of the offenses and the other which utilized a broader, more holistic approach that looks
25 to a variety of factors, including temporal proximity and potential for evidentiary overlap." Id. at
26 576 (citations omitted). 27
28 Page 4 of 7 In its critique of the former approach, the court observed that instructing district courts to 1
2 merely eyeball the indictment for offenses of a "like class" and encourage vigilant scrutiny in the
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LTD fl." ""\ I I LL LE SUPERIOR CQURT O F. GUAil=s§
1 2023 Are He 52E'f.11= 52 2 CLERK OFCUURT 3 IN THE SUPERIOR COURT OF GUKM- 4
5 PEOPLE OF GUAM, 6 Plaintiff, Criminal Case No. CF0090-23 7 GPD Report No: 23-03496 I22-26873 I21-28890 8 vs.
9 DECISION AND ORDER CHRISTOPHER ROSARIO TEDTAOTAO, DENYING DEFENDANT'S MOTION TO 10 DOB: 08/15/1976 DISMISS INDICTMENT FOR MISJOINDER OF OFFENSES 11 Defendant.
12 INTRODUCTION 13 This matter came before the Honorable Alberto E. Tolentino on June 5, 2023 for a hearing 14 on Christopher Rosario Tedtaotao's ("Defendant's") Motion to Dismiss the Indictment for 15
16 Misj binder of Offenses ("Motion"). Assistant Attorney General Grant Olan represents The People
17 of Guam ("the People"), and Curtis C. Van de veld represents Defendant. Having duly considered
18 the parties' briefs, oral arguments, and the applicable law, the Court now issues the following 19 Decision and Order and DENIES the Defendant's Motion. However, the Court will sever the 20 charges so that they may be adjudicated each subsequent to the other. 21
22 BACKGROUND
23 On February 14, 2023, Defendant was indicted on three charges: Theft of Property (As a
24 3'd Degree Felony), Criminal Trespass (As a Misdemeanor), and Theft (As a Petty Misdemeanor).
25 See Indictment (Feb. 14, 2023). 26
28 Page 1 of 7 1 Defendant allegedly committed the first charged offense of Theft of Property (As a 3rd
2 Degree Felony) on or about November 17, 2021 to November 20, 2021 by unlawful taking of
3 movable property belonging to Ruth Sakuma, valued at less than $1500.00 and greater than
4 $500.00 in violation off GCA §§43.30(a), 43.20(b), and43.15, as amended. Id.
; Defendant allegedly committed the second charged offense of Criminal Trespass (As a
7 Misdemeanor) on or about February 5, 2023, by knowingly entering or surreptitiously remaining
8 in the habitable property of Gladly Sifer without privilege or license to do so in violation of 9
9 GCA §37.30(a), as amended. Id. at 2.
10 Defendant allegedly committed the third charged offense of Theft (As a Petty
; Misdemeanor) by unlawfully taking, obtaining, or exercising unlawful control over the movable
13 property of Judith Arizala (a BLU cellphone) with intent to deprive Judith Arizala, in violation of
14 9 GCA §§ 43.30(a), 43.20(d), and43.15, as amended. Id. 2.
15 On March 3, 2023, Defendant filed a Motion to Dismiss the Indictment for Misjoinder of 16 Offenses. Defendant argued that the charges in this case should be brought separately because to 17 1g try them together would potentially violate Guam Rules of Evidence (GRE) 404, and further that
19 8 GCA § 55.35 distinguishes the charged offenses in this matter.
20 DISCUSSION 21 "Two (2) or more offenses may be charged in the same indictment or information in a 22 23 separate count for each offense if the offenses charged are of the same or similar character or are
24 based on the same act or transaction or on two (2) or more acts or transactions connected together
25 or constituting parts of a common scheme or plan." 8 GCA § 55.35(a). 26
28 Page 2 of 7 This provision of Guam law was originally sourced from Rule 8 of the Federal Rules of 1
2 Criminal Procedure. Thus, we may resort to federal authority interpreting the rule for guidance in
3 its applicatioN to this case. 4 Rule 8(a) describes three situations where jointer is proper and at least one of the rule's 5 conditions must be satisfied. See US v. Jawara, 474 F.3d 565,573-4 (9th Cir. 2007)(citations 6 7 omitted). The propriety of joining offenses in the indictment is determined solely by the
8 allegations in the indictment. Id. In Jawara, the defendant was indicted on a document fraud
9 charge and a manage fraud conspiracy charge. Id. at 570. The superseding indictment alleged 10 that defendant made false statements to questions regarding his nationality and birthplace on an ll Immigration and Naturalization Service form. Id. The superseding indictment also alleged that 12
13 defendant engaged in overt acts in furtherance of the marriage fraud conspiracy which included:
14 (l) facilitating a meeting between a cooperating witness, an alien, and a female U.S. citizen to get
15 them to marry each other in order to evade the immigration laws of the United States, and (2) 16 meeting with and soliciting a cooperating witness to procure a United States citizen who would 17 agree to many defendant in order to evade the immigration laws of the United States. Id. at 570- 18
19 1.
20 Prior to trial, defendant moved to sever the two counts, asserting misjoinder under Federal 21 Rule of Criminal Procedure 8(a) and prejudicial jointer under Federal Rule of Criminal Procedure 22 14. Id. The district court denied the motion. Id. The Ninth Circuit Court of Appeals agreed that 23 24 the two charges were neither part of a common scheme or plan, id. at 575, nor were they of the
25 same or similar character. Id. at 579.
28 Page 3 of 7 Whether the offenses are part of a common scheme or plan, the question asked is whether 1
2 "[c]ommission of one of the offenses [ ]either depended upon [ ]or necessarily led to the
3 commission of the other, proof of the one act [ ]either constituted [ ]or depended upon proof of 4 the other." Id. at 570 (emphasis in original)(citations omitted). The cou1"c found that there was no 5 direct connection between the acts other than defendant's participation in both events. Id. at 575 . 6 7 It reasoned that "the false statements were not made to bolster or help conceal the manage fraud
8 conspiracy, nor can it be said that the marriage fraud conspiracy flowed from the document fraud
9 crime." Id. Furthermore, "[a]lthough a close temporal relationship is not, in and of itself, a 10 sufficient condition for jointer, we consider it significant in this case that the alleged acts 11 underlying the two offenses had no temporal connection and were separated by several years.77 12
13 Id. (citation omitted). Thus, the court concluded that whatever connection exists there, that it was
14 entirely too speculative to justify jointer on the basis of a common scheme or plan. Id. The court
15 found that when the issue is whether the "offenses charged are of the same or similar character" 16 a much more complex inquiry may be required. Id. It noted that when all that can be said of two 17 separate offenses is that they are of the same or similar character "the customary justifications for 18
19 jointer (efficiency and economy) largely disappear.... [at] the same time, the risk to the defendant
20 in such circumstances is considerable." Id. (quotations in original)(citations omitted). The court 21 conducted a comparison between the approaches to the issue by two other circuits, one which 22 adopted a literal or categorical approach that paid exclusive attention to the likeness of class or 23 24 category of the offenses and the other which utilized a broader, more holistic approach that looks
25 to a variety of factors, including temporal proximity and potential for evidentiary overlap." Id. at
26 576 (citations omitted). 27
28 Page 4 of 7 In its critique of the former approach, the court observed that instructing district courts to 1
2 merely eyeball the indictment for offenses of a "like class" and encourage vigilant scrutiny in the
3 Rule 14 [severance] context, offered little guidance in close cases. Id. at 577. And that depending 4 on the level of abstraction (e.g., offenses involving dishonesty, offenses involving an intent to 5 defraud), offenses of a "like class" might encompass a host of otherwise unrelated offenses, 6 7 making an "uncomplicated" similar character inquiry tantamount to no meaningful inquiry. Id. at
8 577-8. Rather, the court found: it appropriate to consider factors such as the elements of the
9 statutory offenses, the temporal proximity of the acts, the likelihood and extent of evidentiary 10 overlap, the physical location of the acts, the modus operandi of the crimes, and the identity of ll the victims in assessing whether an indictment meets the "same or similar character" prong of 12
la Rule 8(a). The weight given to a particular factor will depend on the specific context of the case
14 and the allegations in the indictment. But the bottom line is that the similar character of the joined
15 offenses should be ascertainable-either readily apparent or reasonably inferred-from the face 16 of the indictment. Courts should not have to engage in inferential gymnastics or resort to 17 implausible levels of abstraction to divine similarity. Thus, where the government seeks jointer 18
19 of counts on the basis of "same or similar character," it crafts a barebones indictment at its own
20 risk. Id. at 578. Applying these factors, the court concluded that the only similarity discernible
21 from the indictment is that both counts involve immigration and that such a "vague thematic 22 connection" cannot, in and of itself, justify jointer. Id. at 579 (citation omitted). 23 In this case, the People have argued that jointer is proper because the charges against the 24
25 defendant constituted parts of a "common scheme or plan" and/or that they were the "same or
26 similar character." The Court disagrees. 27
28 Page 5 of 7 1. The alleged crimes did not constitute part of a "common scheme or plan." 1
2 The indictment against the defendant charges crimes which occurred on or about different 3 months, on or about different dates, and on or about different years. The charges alleged three 4 different victims that apparently had nothing in common with each other. None of the alleged 5
6 offenses depended upon or necessarily led to the commission of the other, nor does proof of the
7 one act constitute or depend upon proof of the other. These were three disparate unrelated
8 occasions of criminal conduct whose only commonality is that the same defendant is accused of 9 committing the offenses. 10 Therefore, the charges do not constitute parts of a common scheme or plan. 11
12 2. The crimes were not of the "same or similar character." 13 On the issue of whether the offenses charged are of the same or similar character, the 14 15 elements of the theft charges are different from the elements required to be proved for criminal
16 trespass. The two theft charges, one a third degree felony by virtue of the amount involved, while
17 the other is a petty misdemeanor for which the reason is not clear in the indictment, may or may 18 not have the same elements. However, because each of the offenses took place on different years 19 20 and several months apart from each other, that they took place at different physical locations
21 throughout Guam, that there is little likelihood that evidence of any of the offenses alleged would
22 overlap with the others, that there does not appear to be a particular way or method of doing the 23 crimes which was characteristic of the defendant, and that two of the victims were apparently 24 strangers to the defendant while a third allegedly knew the defendant - this Court can only 25 26 conclude that the offenses were not of the same or similar character and were improperly joined
27 pursuant to 8 GCA §55.35(a).
28 Page 6 of 7 3. The appropriate remedy for misjoinder is severance of the charges. 1
2 The Court further finds that dismissal of the indictment is not warranted. Guam law provides that 3 "[i]f it appears that a defendant or the government is prejudiced by a jointer of offenses or of 4 defendants in an indictment or information or by such jointer for trial together, the court may 5 6 order an election or separate trials of counts, grant a severance of defendants or provide whatever
7 other relief justice requires." See 8 GCA §65.35.
8 Because none of the requirements of proper jointer of the charges in the indictment are 9 10 present the Court hereby orders the severance of each charge and accordingly the adjudication of
each subsequent to the other. 1l
12 CONCLUSION
13 Therefore, the Court herewith DENIES Defendant's Motion to Dismiss for Misjoinder of
14 Offenses, however, GRANTS and ORDERS that part of the Motion that prayed for the severance 15 of the charges 16 Aus 14 zuza »' / IT IS SO ORDERED this 17 1.
19 I < > L `s 11
20 HONORABLE ALBERTO E. TOLENTINO Judge, Superior Court of Guam 21
23 24
25 26
28 Page 7 of 7