IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) Criminal Case No~/: CF0017:-J2 4 ) ) 5 v. ) DECISION AND ORDER ) Re: Motion to Dismiss Indictment 6 MICHELE T. UNGACTA, ) 7 ) ) 8 Defendant. 9
IO INTRODUCTION
11 This matter came before the Honorable Judge Michael J. Bordallo on May 9, 2012. The
12 People were represented by Assistant Attorney General Elizabeth Vasiliades. The Defendant 13 was represented by Attorney F. Randall Cunliffe. After considering the matter presented, the 14 Court issues the following decision and order granting in part and denying in part the 15
16 Defendant's motion to dismiss the indictment The Court concludes that the Second, Third, and
17 Fourth Charges of the Superseding Indictment may proceed in the prosecution. However, the 18 First Charge, the Simple Stalking charge, is dismissed without prejudice. 19 BACKGROUND 20 On March 7, 2012, a superseding indictment was filed charging the Defendant with 21
22 Simple Stalking, Harassment, Obstruction of Government Function, and two counts of Official
23 Misconduct. On April 11, 2012, the Defendant filed a motion to dismiss the indictment. The 24 Defendant argues that the first charge, Simple Stalking, should be dismissed because some of 25 the criminal conduct presented to the grand jury falls outside of the three-year statute of 26 limitations. The Defendant also argues that the indictment fails to properly advise her of the 27
28 charges against her as contained in the Second, Third and Fourth Charges. Lastly, the
Page 1 of6 Defendant challenges the indictment asserting that the Second, Third and Fourth Charges are 2 duplicitous. 3 DISCUSSION 4 1. Statute of Limitations for Simple Stalking Charge 5
6 Defendant moves to dismiss the Simple Staling Charge because some of the criminal
7 conduct presented to the grand jury falls outside of the three year statute of limitations. The 8 Simple Stalking charge has a statute oflimitations of three years. 9 GCA §§ 19.70(a) and (d); 8 9 1 GCA § 1O.20(c). Because the grand jury returned the indictment on January 17, 2012, any \0
II conduct occurring prior to January 17, 2009 would fall outside the statute of limitations. The
12 superseding indictment, however, includes conduct occurring as far back as December 1, 2008.
13 The People respond that the indictment is timely alleging that the Simple Stalking 14 charge is a continuing offense. Statutes of limitations generally begin to run when a crime is 15 complete. Toussie v. United States, 397 U.S. 112, 115 (1970). Where there is a continuing 16
17 offense such as a conspiracy, however, the limitations period begins to run at the end of the last
18 act that was part of the offense. United States v. Amirnazmi, 645 F.3d 564, 592 (3d Cir. 2011). 19 The People characterize Count I as a continuing offense because it requires repeated acts by the 20 Defendant, and they argue that the statute of limitations did not begin to run until the 21 continuous commitment of the offense was completed. 22
23 Regardless of whether the Simple Stalking is a continuing offense or whether there was
24 sufficient evidence presented to the Grand Jury, the Court finds that the Simple Stalking charge 25 as stated in the superseding indictment is facially deficient. The first charge reads as follows: 26 On or about the period between December 1, 2008 through December 31, 2011 27
28 IThe Court notes this was the first indictment issued against the Defendant, which was eventually superseded on March 7, 2012. Page 2 of6 inclusive, in Guam, Michele Therese Ungacta did commit the offense of Simple Stalking, in that she did intentionally, willfully, maliciously and repeatedly follow 2 and harass another person, that is, E.U., in violation of 9 GCA §§ 19.70(a) and 3 (d).
4 This charge is facially deficient because the Court cannot determine whether the Grand Jurors 5 relied upon matters to return the indictment which occurred outside the statute of limitations. 6 For instance, all conduct occurring prior to January 17, 2009 falls outside the statute of 7 limitations. Thus, it is possible that the Grand Jury relied upon matters which occurred prior to 8
9 January 17, 2009. It is also possible that the Grand Jury relied upon matters which occurred
10 after January 17, 2009. Because the Court cannot definitively determine what the Grand Jury 11 relied upon, the Court does not expect the Defendant to do so. Thus, the Court must dismiss 12 Count I ofthe indictment without prejudice for such deficiency. 13
14 2. Sufficiency of the Indictment
15 Defendant's next challenge to the indictment alleges that the Second, Third, and Fourth 16 Charges are insufficient under 8 GCA § 55.10. The test by which the sufficiency of an 17 indictment, criminal information or complaint is analyzed does not differ. 8 GCA § 55.10. 18 Section 55.10(a) provides, 19
20 (a) The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall be 21 signed by the prosecuting attorney. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such 22 statement. Allegations made in one count may be incorporated by reference in 23 another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one 24 or more specified means. 25 8 GCA § 55.10(a). An indictment is sufficient where, "it contains the elements of the crime 26 alleged, adequately informs the defendant of the crime to allow him to defend against the 27 charges, and is stated with sufficient clarity to bar subsequent prosecution for the same 28
Page 3 of6 offense." Guam v. Jones, 2006 Guam 13, ~3. When analyzing sufficiency "[i]t is also well 2 established that an indictment should be read in its entirety, construed according to common 3 sense, and interpreted to include facts which are necessarily implied." !d. 4 The language a charging document must constitutionally contain was re-analyzed by the 5
6 U.S. Supreme Court in Us. v. Resendiz-Ponce. 549 U.S. 102, 106 (2007). In Resendiz-Ponce,
7 the defendant was charged with attempted reentry into the United States after having been 8 previously deported. Id. at 102. He challenged the sufficiency of his charging document 9 arguing that was constitutionally deficient because it did not specify the particulars of his IO
II attempts to re-enter the U.S.: that he walked into an inspection area; that he presented a
12 misleading identification card; or that he lied to the inspector. Id. 107-109. Instead, the I3 complaint replicated the statutory language and identified the place and time. Id. Justice 14 Stevens authoring the opinion first explained that there are, "two constitutional requirements 15 for an indictment: 'first, [that it] contains the elements of the offense charged and fairly informs 16
17 a defendant of the charge against which he must defend, and, second, [that it] enables him to
18 plead an acquittal or conviction in bar of future prosecutions for the same offense. '" Id. at 107 19 (internal citations omitted). It then held, after explaining some of the ways the word attempt 20 could be defined, that, "[i]n this case, the use of the word 'attempt,' coupled with the 21 specification of the time and place of respondent's attempted illegal reentry, satisfied both. 22
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IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) Criminal Case No~/: CF0017:-J2 4 ) ) 5 v. ) DECISION AND ORDER ) Re: Motion to Dismiss Indictment 6 MICHELE T. UNGACTA, ) 7 ) ) 8 Defendant. 9
IO INTRODUCTION
11 This matter came before the Honorable Judge Michael J. Bordallo on May 9, 2012. The
12 People were represented by Assistant Attorney General Elizabeth Vasiliades. The Defendant 13 was represented by Attorney F. Randall Cunliffe. After considering the matter presented, the 14 Court issues the following decision and order granting in part and denying in part the 15
16 Defendant's motion to dismiss the indictment The Court concludes that the Second, Third, and
17 Fourth Charges of the Superseding Indictment may proceed in the prosecution. However, the 18 First Charge, the Simple Stalking charge, is dismissed without prejudice. 19 BACKGROUND 20 On March 7, 2012, a superseding indictment was filed charging the Defendant with 21
22 Simple Stalking, Harassment, Obstruction of Government Function, and two counts of Official
23 Misconduct. On April 11, 2012, the Defendant filed a motion to dismiss the indictment. The 24 Defendant argues that the first charge, Simple Stalking, should be dismissed because some of 25 the criminal conduct presented to the grand jury falls outside of the three-year statute of 26 limitations. The Defendant also argues that the indictment fails to properly advise her of the 27
28 charges against her as contained in the Second, Third and Fourth Charges. Lastly, the
Page 1 of6 Defendant challenges the indictment asserting that the Second, Third and Fourth Charges are 2 duplicitous. 3 DISCUSSION 4 1. Statute of Limitations for Simple Stalking Charge 5
6 Defendant moves to dismiss the Simple Staling Charge because some of the criminal
7 conduct presented to the grand jury falls outside of the three year statute of limitations. The 8 Simple Stalking charge has a statute oflimitations of three years. 9 GCA §§ 19.70(a) and (d); 8 9 1 GCA § 1O.20(c). Because the grand jury returned the indictment on January 17, 2012, any \0
II conduct occurring prior to January 17, 2009 would fall outside the statute of limitations. The
12 superseding indictment, however, includes conduct occurring as far back as December 1, 2008.
13 The People respond that the indictment is timely alleging that the Simple Stalking 14 charge is a continuing offense. Statutes of limitations generally begin to run when a crime is 15 complete. Toussie v. United States, 397 U.S. 112, 115 (1970). Where there is a continuing 16
17 offense such as a conspiracy, however, the limitations period begins to run at the end of the last
18 act that was part of the offense. United States v. Amirnazmi, 645 F.3d 564, 592 (3d Cir. 2011). 19 The People characterize Count I as a continuing offense because it requires repeated acts by the 20 Defendant, and they argue that the statute of limitations did not begin to run until the 21 continuous commitment of the offense was completed. 22
23 Regardless of whether the Simple Stalking is a continuing offense or whether there was
24 sufficient evidence presented to the Grand Jury, the Court finds that the Simple Stalking charge 25 as stated in the superseding indictment is facially deficient. The first charge reads as follows: 26 On or about the period between December 1, 2008 through December 31, 2011 27
28 IThe Court notes this was the first indictment issued against the Defendant, which was eventually superseded on March 7, 2012. Page 2 of6 inclusive, in Guam, Michele Therese Ungacta did commit the offense of Simple Stalking, in that she did intentionally, willfully, maliciously and repeatedly follow 2 and harass another person, that is, E.U., in violation of 9 GCA §§ 19.70(a) and 3 (d).
4 This charge is facially deficient because the Court cannot determine whether the Grand Jurors 5 relied upon matters to return the indictment which occurred outside the statute of limitations. 6 For instance, all conduct occurring prior to January 17, 2009 falls outside the statute of 7 limitations. Thus, it is possible that the Grand Jury relied upon matters which occurred prior to 8
9 January 17, 2009. It is also possible that the Grand Jury relied upon matters which occurred
10 after January 17, 2009. Because the Court cannot definitively determine what the Grand Jury 11 relied upon, the Court does not expect the Defendant to do so. Thus, the Court must dismiss 12 Count I ofthe indictment without prejudice for such deficiency. 13
14 2. Sufficiency of the Indictment
15 Defendant's next challenge to the indictment alleges that the Second, Third, and Fourth 16 Charges are insufficient under 8 GCA § 55.10. The test by which the sufficiency of an 17 indictment, criminal information or complaint is analyzed does not differ. 8 GCA § 55.10. 18 Section 55.10(a) provides, 19
20 (a) The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall be 21 signed by the prosecuting attorney. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such 22 statement. Allegations made in one count may be incorporated by reference in 23 another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one 24 or more specified means. 25 8 GCA § 55.10(a). An indictment is sufficient where, "it contains the elements of the crime 26 alleged, adequately informs the defendant of the crime to allow him to defend against the 27 charges, and is stated with sufficient clarity to bar subsequent prosecution for the same 28
Page 3 of6 offense." Guam v. Jones, 2006 Guam 13, ~3. When analyzing sufficiency "[i]t is also well 2 established that an indictment should be read in its entirety, construed according to common 3 sense, and interpreted to include facts which are necessarily implied." !d. 4 The language a charging document must constitutionally contain was re-analyzed by the 5
6 U.S. Supreme Court in Us. v. Resendiz-Ponce. 549 U.S. 102, 106 (2007). In Resendiz-Ponce,
7 the defendant was charged with attempted reentry into the United States after having been 8 previously deported. Id. at 102. He challenged the sufficiency of his charging document 9 arguing that was constitutionally deficient because it did not specify the particulars of his IO
II attempts to re-enter the U.S.: that he walked into an inspection area; that he presented a
12 misleading identification card; or that he lied to the inspector. Id. 107-109. Instead, the I3 complaint replicated the statutory language and identified the place and time. Id. Justice 14 Stevens authoring the opinion first explained that there are, "two constitutional requirements 15 for an indictment: 'first, [that it] contains the elements of the offense charged and fairly informs 16
17 a defendant of the charge against which he must defend, and, second, [that it] enables him to
18 plead an acquittal or conviction in bar of future prosecutions for the same offense. '" Id. at 107 19 (internal citations omitted). It then held, after explaining some of the ways the word attempt 20 could be defined, that, "[i]n this case, the use of the word 'attempt,' coupled with the 21 specification of the time and place of respondent's attempted illegal reentry, satisfied both. 22
23 Indeed, the time-and-place information provided respondent with more adequate notice than
24 would an indictment describing particular overt acts." Id. 25 In this case, the indictment language of the superseding indictment was clearly 26 sufficient to allow the Defendant adequate notice under the above standard. The language of 27
28 the superseding indictment viewed in its entirety contains specific allegations of time and place
Page 4 of6 for each charge. Furthermore, the Court is not persuaded that the statutory language in the 2 Second, Third and Fourth Charges are, as was held by Resendiz-Ponce, so frequently uncertain 3 but invariable as to preclude fair notice to Defendant. Id. at 109. Defendant's motion to dismiss 4 for insufficiency of the Second, Third and Fourth Charges will thus be denied because the 5
6 indictment contains the elements of all the offenses and sufficiently gives Defendant notice of
7 the charges. 8 3. Duplicity 9 Lastly, Defendant alleges that the Second, Third, and Fourth Charges of the superseding \0 indictment are duplicitous. She asserts that the duplicity will prejudice her by precluding jury II
12 unanimity. An indictment is duplicitous where a single count joins two or more distinct
13 offenses. United States v. Ramirez-Martinez, 273 F.3d 903, 913 (9th Cir. 2001). The
14 requirement that multiple offenses be charged in separate counts is intended to eliminate the 15 constitutional problems created when two or more offenses are joined in a single count. "A 16 duplicitous indictment compromises a defendant's Sixth Amendment right to know the charges 17
18 against him, as well as Fifth Amendment protection against double jeopardy." United States v.
19 King, 200 F.3d 1207, 1212 (9th Cir. 1999). A duplicitous indictment also carries with it the risk 20 of a non-unanimous verdict on the duplicitous count. United States v. Aguilar, 756 F.2d 1418, 21 1420 (9th Cir. 1985). Even if an indictment is duplicitous, a defendant must be prejudiced to 22 receive relief; the risk of a nonunanimous verdict is one recognized source of prejudice." us. 23
24 v. Miller, 520 F.3d 504, 512 (5th Cir. 2008). It held, "The danger of a nonunanimous jury
25 verdict may be avoided by proper jury instructions." /d. 26 In this instance, however, the Court need not reach the necessity of curative measures. 27 The Charges in question contain a description of single statutory offenses and their necessary 28
Page 5 of6 elements. As such, the Court cannot find that the Grand Jury indictment could have thus 2 prejudiced the Defendant. 3 CONCLUSION 4 Based on the foregoing, the Court concludes that the Second, Third, and Fourth Charges 5
6 of the Superseding Indictment may proceed in the prosecution. However, the First Charge, the
7 Simple Stalking, charge is dismissed without prejudice. Therefore, Defendant's Motion to 8 Dismiss is GRANTED in part. 9 The Court also recognizes that there is a pending Motion to Quash Subpoena and \0
II Subpoena Duces Tecum. A Motion Hearing on the matier shall be heard on~ ;) 31 f1J I 12 at J D~lV~
13 SO ORDERED, this 9th day of August 2012. 14
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