People of Guam v Diaz [2007] GUSC 3; 2007 Guam 03 (29 June 2007)

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Appeal from the Superior Court of Guam
Argued and submitted on May 15, 2006
Hagåtña, Guam

Appearing for Defendant-Appellant:
F. Randall Cunliffe, Esq.
Cunliffe & Cook, P.C.
210 Archbishop Flores St.
Hagåtña, Guam 96910

Appearing for Plaintiff-Appellee:
William C. Bischoff
Marianne Woloschuck
Assistant Attorneys General
Office of the Attorney General
287 West O’Brien Dr.
Hagåtña, Guam 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; FRANCES M. TYDINGCO-GATEWOOD, Associate Justice[1]; ROBERT J. TORRES, JR., Associate Justice.

[1] Defendant-Appellant, Antonio M. "Tony" Diaz was convicted on felony and misdemeanor charges of Theft of Property and misdemeanor charges of Official Misconduct and received a sentence which included five years of incarceration, three years of parole and 1,000 hours of community service. On appeal, Diaz alleges numerous errors arising from the charges of Official Misconduct; specifically, he challenges: (1) the amendment to the indictment which charged the Official Misconduct counts in the disjunctive rather than the conjunctive as in the original indictment; and (2) the sufficiency of the amended indictment with respect to the Official Misconduct charge. In addition, Diaz challenges the sufficiency of the evidence related to both the Official Misconduct charges and the Theft of Property charges. He contends that the crime of Official Misconduct is one continuing course of uninterrupted conduct rather than twenty-three (23) separate counts. Diaz argues that the trial court committed error when it punished him separately for official misconduct and theft instead of merging the two crimes and punishing him concurrently. Finally, he asserts that the Superior Court imposed a harsher sentence in order to punish him for exercising his right to a trial. We reject each of the arguments advanced by Diaz and affirm.

[2] This case arises from Diaz’s use, for personal purchases, of a Guam Mass Transit Authority ("GMTA") Bank of Guam MasterCard issued in his name. Diaz obtained the GMTA credit card while employed as the agency’s Assistant General Manager. In July 2000, Diaz purchased three plane tickets using the GMTA credit card; two round-trip tickets for him and his wife and a one-way ticket for his daughter. The trip served two purposes: first, to accompany Diaz’s daughter to college in California and second, to allow Diaz to attend training in Portland, Oregon for which he had received prior approval. While Diaz was on the mainland, he made numerous personal charges on the GMTA credit card at various restaurants, hotels, and stores. Shortly after his return to Guam, Diaz purchased a computer for his daughter using the credit card.

[3] After the initial personal charges were made, he was questioned about the charges. He acknowledged that the charges were personal in nature, but made no payments to GMTA to cover the personal charges. In January 2001, GMTA closed its account with the Bank of Guam, the issuer of the GMTA credit cards, including the one issued in Diaz’s name. At the time that the account was closed, Diaz had not reimbursed GMTA for the personal charges made on the card.

[4] In May 2001, the Public Auditor’s Office began an investigatory audit into the use of credit cards at GMTA. Shortly after the Public Auditor Doris Flores Brooks began examining the matter, then-Senator Felix P. Camacho’s office began its own investigation after receiving an anonymous tip regarding potential abuse and called for a legislative oversight hearing regarding the use of credit cards at GMTA.

[5] On July 17, 2001, Diaz wrote two checks to GMTA for an amount covering all the personal charges he made on the GMTA card.[2]

[6] On February 5, 2003, Diaz was indicted by a Superior Court grand jury. The original indictment included the following: First Charge, three counts of Theft of Property (As a 2nd Degree Felony); Second Charge, three counts of Unauthorized Use of a Credit Card (As a 3rd Degree Felony); Third Charge, seventeen Counts of Theft of Property (As a Misdemeanor); Fourth Charge, four counts of Theft of Property (As a Petty Misdemeanor); Fifth Charge, twenty-one counts of Unauthorized Use of a Credit Card (As a Misdemeanor); and Sixth Charge, twenty-four counts of Official Misconduct (As a Misdemeanor). Appellant’s Excerpts of Record ("ER"), p. 1 (Indictment, Feb. 5, 2003). The People later filed a motion requesting the dismissal of Count 17 of the Third Charge of Theft of Property (As a Misdemeanor), and Count 23 of the Sixth Charge of Official Misconduct (As a Misdemeanor), as well dismissal of both charges of the Unauthorized Use of a Credit Card. The trial court granted this motion.

[7] Subsequently, the People filed an application to amend the original indictment to expand the jurisdictional allegation in each charge. For the Theft of Property charges, the People moved to remove the phrase "to personally benefit himself and others" and to clarify that Diaz was accused of depriving the Government of Guam of the money, and not of the item purchased. For the Official Misconduct charges, the People moved to change the phrase to "with the intent to benefit himself and another person" in order to more closely track the language of the statute. Diaz objected to each of these changes, but failed to object to anything else contained in the original indictment. Over Diaz’s objection, the Application to Amend was granted and an amended indictment was issued on January 25, 2005. The Amended Indictment included the following charges: First Charge, three counts of Theft of Property (As a 2nd Degree Felony); Second Charge, sixteen counts of Theft of Property (As a Misdemeanor); Third Charge, four counts of Theft of Property (As a Petty Misdemeanor); Fourth Charge, twenty-three counts of Official Misconduct (As a Misdemeanor). Appellant’s ER, pp. 37-52 (Amended Indictment).

[8] A jury found Diaz guilty of one count of Theft of Property (As a 2nd Degree Felony); one count of Theft of Property (As a Misdemeanor); and twenty-three counts of Official Misconduct (As a Misdemeanor). Appellant’s ER, pp. 53-55 (Judgment). Diaz was sentenced to a total of five years of incarceration, a special parole for a term of three years, and 1,000 hours of community service. Diaz timely filed this appeal.

[9] This court has jurisdiction over a final judgment of conviction. 48 U.S.C. § 1424-1(a) (West, Westlaw through Pub. L. 109-482 approved Jan. 15, 2007); 7 GCA § 3107(b) (2005) and 8 GCA § 130.15(a) (2005).

[10] We review the amendment of an indictment de novo. People v. Salas, 2000 Guam 2 ¶ 10. When there has been no objection below, we review the sufficiency of an indictment for plain error. People v. Chung, 2004 Guam 2, ¶¶ 8-9; People v. Jones, 2006 Guam 13 ¶ 8. A claim of fatal variance will be treated as an attack on the sufficiency of the evidence. People v. Campbell, 2006 Guam 14; United States v. Antonakeas, 255 F.3d 714, 721 (9th Cir. 2001). When reviewing the sufficiency of the evidence, this court must decide whether, from the evidence presented at trial, "any rational trier of fact could have found the essential elements" of each charge of conviction proven "beyond a reasonable doubt." People v. Guerrero, 2003 Guam 18 ¶ 13; see also People v. Maysho, 2005 Guam 4 ¶ 14. Whether or not an offense is defined as a continuing course of conduct involves issues of statutory interpretation. People v. San Nicolas, 2001 Guam 4 ¶¶ 23-26. Whether one offense "merges with another for purposes of punishment is a question of statutory interpretation." United States v. Cedar, 437 F.2d 1033, 1036 (9th Cir. 1971). Issues of statutory interpretation, such as defining a continuing course of conduct and merger of offenses, are reviewed de novo. People v. Flores, 2004 Guam 18 ¶ 8 (quoting Ada v. Guam Tel. Auth., 1999 Guam 10 ¶ 10). Finally, the trial court’s imposition of a sentence is reviewed for an abuse of discretion. People v. Super. Ct. (Chiguina), 2003 Guam 11 ¶ 12.

[11] In the instant appeal, Diaz challenges various aspects of the Amended Indictment, the evidence and the sentence. We examine each of the issues in turn.

[12] Diaz challenges numerous aspects of the Official Misconduct charges. He argues first, that the Official Misconduct charge should have been pled in the conjunctive rather than the disjunctive; and second, that the Amended Indictment failed to allege an essential element of the Official Misconduct charge.

[13] Diaz asserts that the Amended Indictment, which used the disjunctive, charged a new and different offense, permitted a non-unanimous determination by the jurors, and failed to protect him from being placed in double jeopardy.

[14] The People filed an application to amend the Indictment, which requested, among other changes, that the court amend all of the Official Misconduct charges to read "with intent to benefit himself or another person" in place of "with intent to benefit himself and another person." Appellee’s ER, tab 1, p. 2 (Application to Amend Indictment). The People moved to amend the Indictment in order to track the language of 9 GCA § 49.90, the Official Misconduct statute.[3] Over Diaz’s objection, the trial court granted the motion to amend the indictment pursuant to 8 GCA § 55.20.[4]

[15] We review the amendment of the indictment de novo. People v. Salas, 2000 Guam 2 ¶ 10. Amendments to indictments are governed by 8 GCA § 55.20, which provides: "[t]he court may permit an indictment or information to be amended upon the application of the prosecuting attorney at any time before verdict or finding if no additional [or] different offense is charged and if substantial rights of the defendant are not prejudiced." 8 GCA § 55.20 (2005) (emphasis added). In People v. Salas, 2000 Guam 2, in examining an amendment to an indictment, we noted that this statute:

[P]rovides the court with a flexible tool to allow parties to change easily small errors in their pleadings. Guam courts have followed this law verbatim. Unless a judge has been able to point to an added charge of which the defendant and his or her counsel had no knowledge or a substantial way in which a defendant has been prejudiced, judges have consistently allowed the prosecution to make this amendment.

Id. ¶ 13. Accordingly, we examine the amendment to ascertain whether the Amended Indictment charged a new or different offense and whether the amendment prejudiced the defendant. Section 55.20 limits the trial court’s ability to allow amendments to those situations in which: 1) "no additional [or] different offense is charged"; and 2) the "substantial rights of the defendant are not prejudiced." 8 GCA § 55.20 (2005). We examine each of these requirements in turn.

[16] The People’s application to amend the indictment did not, on its face, attempt to charge Diaz either with a new or additional offense. Both the original and the Amended Indictment refer to the offense of Official Misconduct pursuant to 9 GCA § 49.90(a) (2005), which provides:

A public servant commits a misdemeanor if, with intent to benefit himself or another person or to harm another person or to deprive another person of a benefit:

(a) he commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized, or

(b) he knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.

The Amended Indictment contains no factual allegations that are new or different from the original indictment. An amendment to an indictment which alleges no new facts and cites no new statutory citation has been held not to charge an additional or different offense. United States v. Stone, 954 F.2d 1187, 1191 (6th Cir. 1992). Here, the same statute is referenced and the same facts are alleged in both indictments. We find that the change of "and" to "or" was of one word to track the language of the statute and does not rise to the level of charging an additional or different offense. Therefore, under the first prong of the two-part analysis of 8 GCA § 55.20, Diaz has not shown the trial court erred in allowing the amendment.

[17] Having determined that no additional or different offense was charged, we must next examine whether the amendment prejudiced Diaz. This analysis is necessary even where an amendment does not charge an additional or new offense, as this type of amendment to an indictment may prejudice a defendant in "a substantial way." Salas, 2000 Guam 2 ¶ 13. The Third Circuit articulated the standard for concluding if a defendant is prejudiced as follows:

The test as to whether the defendant is prejudiced by an amendment to an indictment has been said to be whether a defense under an indictment as it originally stood would be equally available after the amendment is made, and whether any evidence the defendant might have would be equally applicable to the indictment in the one form as in the other.

United States v. Fawcett, 115 F.2d 764, 767 (3rd Cir. 1940). Diaz fails to allege prejudice which would satisfy the test as expressed in Fawcett, nor do we find any. The amendment did not eliminate any defense available to Diaz or make any evidence inapplicable. In the instant case we find, as the Supreme Court of South Dakota has held, that "[u]se of ‘or’ rather than ‘and’ left appellant neither less nor more certain of the charge against him; and use of ‘and’ would have given him no additional practical benefit in the preparation of his defense." State v. Strauser, 63 N.W.2d 345, 348 (S.D. 1954). Finding no prejudice under the standard set forth by the Third Circuit, we turn to the other arguments advanced by Diaz.

[18] Instead of asserting prejudice concerning the preparation of his defense, Diaz alleges the amendment allowed the jury to reach a non-unanimous decision and insufficiently protected him from double jeopardy in the future. Diaz relies on the general rule that pleading in the conjunctive is preferred where a statute specifies several means by which a crime can be committed. Heflin v. United States, 223 F.2d 371, 373 (5th Cir. 1955).

[19] Title 9 GCA § 49.90 does, in fact, specify alternative means by which a person may commit the offense of Official Misconduct, stating that a person may either "commit[] an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized" as set forth in subsection (a), or may "knowingly refrain[] from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office" as set forth in subsection (b). There are multiple uses of the disjunctives in the statute: (1) those contained in the introductory paragraph dealing with intent, "to benefit himself or another person or to harm another person or to deprive another person of a benefit"; and (2) another which separates the means by which the crime of official misconduct may be committed, "committing an act" or "refraining from performing a duty." Section 49.90 contains multiple intents: to benefit himself or another person,[5] to harm another person, and to deprive another person of a benefit. It also contains alternative methods of committing the crime of Official Misconduct by either committing an act, or knowingly refraining from performing a duty. The Amended Indictment pleads neither multiple intents nor multiple means of committing the act in the disjunctive.

[20] However, Diaz’s reliance on the general rule against disjunctive pleading is misplaced. United States ex rel. Bradley v. Hartigan, 612 F. Supp. 795 (C.D. Ill. 1985), addressed the sufficiency of an information which alleged various mental states using the disjunctive "or." Id. The court found the information to be sufficient stating:

Bradley additionally argues that the information was void because it uses the disjunctive conjunction "or," thereby making it uncertain whether he was charged with committing the act with the intent to satisfy the desires of the victim or the desires of himself. Bradley, however, was charged at trial with but one act of lewd fondling. The use of the disjunctive conjunction "or" in setting apart the differing mental states did not render the charge uncertain in the indictment.

As the information charged only one physical act, the petitioner's conviction serves as a double jeopardy bar despite the disjunctive pleading of the mental state element.

Id. at 805; see also United States v. Scott, 884 F.2d 1163, 1166 (9th Cir. 1989) (finding an indictment to be sufficient which, like the statute, disjunctively charged a defendant with intending to extort money or some other thing of value because the indictment specified the act that constituted the violation and a single method of committing the offense). Nearly all of the Official Misconduct counts contained in the Amended Indictment allege one discrete act by Diaz, namely, the single use of the GMTA credit card issued in his name. Counts 1 and 2 allege specific charges made to the GMTA credit card, namely, the purchase of airline tickets in Count 1 and hotel accommodations in Count 2. Appellant’s ER, pp. 45-46 (Amended Indictment). The use of the disjunctive "or" in Counts 1 and 2 did not render the counts uncertain as both allege the purchase of specific items on the GMTA credit card. Just as in Bradley, 612 F. Supp. 795, the use of the disjunctive conjunction "or" in setting apart the differing mental states did not render the charge uncertain in the indictment. Because the counts charge only one physical act, Diaz’s conviction serves as a double jeopardy bar despite the disjunctive pleading of the mental state. Accordingly, Diaz suffered no prejudice by the amendment.

[21] Finding that Diaz was not prejudiced is consistent with the purpose behind the general rule against disjunctive pleading. "The most substantial reason against disjunctive pleading relates to statutes where the use of either or any of two or more accusatory words creates uncertainty as to which of two or more offenses created by the one statute, is charged, and conviction had in event of conviction." Strauser, 63 N.W.2d at 347. Accordingly, we hold that the amendment allowed by the trial court did not prejudice Diaz.

[22] Diaz argues the Amended Indictment omits an essential element of the crime of Official Misconduct, specifically, knowledge that the act committed was unauthorized, which therefore renders the charging document constitutionally defective. Although he asserts that the Amended Indictment should be reviewed de novo, Diaz failed to object to the Amended Indictment for failure to charge an offense during the trial court proceedings. Although the Application to Amend the Indictment did not include a request to rephrase, the amendment nonetheless occurred before trial, and Diaz had an opportunity to object to the Amended Indictment prior to trial. See Gov’t of Canal Zone v. Burjan, 596 F.2d 690, 693 (5th Cir. 1979) (finding the defendant had waived his objections to the amendment of the indictment by his failure to object prior to trial).

[23] Generally, failure to object to an indictment prior to trial results in waiver. Title 8 GCA § 65.15 (2005) states:

Any defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following shall be raised prior to trial:

(a) Defenses and objections based on defects in the institution of the prosecution;

(b) Defenses and objections based on defects in the indictment, information or complaint (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings);

(d) Requests for discovery pursuant to Chapter 70 (commencing with § 70.10); or

As set forth above, there are two exceptions to the general rule: lack of jurisdiction and failure to plead essential elements are objections which may be raised at any time. 8 GCA § 65.15(b). Diaz asserts that the amendment to the indictment removed an essential element of the crime; he does not allege that the court lacked jurisdiction.

[24] We review objections raised for the first time on appeal for plain error. People v. Chung, 2004 Guam 2 ¶ 9. In order to reverse for plain error, the defendant must demonstrate (1) there was error; (2) the error was clear or obvious under current law; (3) the error affected the defendant’s substantial rights. Id. Furthermore, our discretion will be employed only "when necessary to prevent a miscarriage of justice or to maintain the integrity of the judicial process." People v. Demapan, 2004 Guam 24 ¶ 5.

[25] The charge of Official Misconduct in the original indictment asserted that "Diaz did . . . commit an act relating to his office but constituting an unauthorized exercise of his official function" by charging an item on his GMTA credit card "with knowledge that such use of the credit card was unauthorized, in violation of 9 GCA § 49.90(a)." Appellant’s ER, pp. 24-34 (Indictment). The Amended Indictment, however, phrased the Official Misconduct charges differently, and alleged that "Diaz did . . . knowingly commit an act relating to his office but constituting an unauthorized exercise of his official function" by charging an item on his GMTA credit card "in violation of 9 GCA § 49.90(a)." Appellant’s ER, pp. 45-52 (Amended Indictment) (emphasis added).

[26] Diaz asserts that when the indictment was amended, the People removed an essential element from the Official Misconduct charges, by not including the phrase "with knowledge that such use of the credit card was unauthorized." Appellant’s ER, pp. 45-52 (Amended Indictment). The Amended Indictment did not include this phrase, but instead charged that Diaz did "knowingly commit an act relating to his office but constituting an unauthorized exercise of his function." Appellant’s ER, pp. 45-52 (Amended Indictment).

[27] The indictment, as originally drafted, clearly charged Diaz with knowing that the use of his GMTA card was unauthorized. The Amended Indictment did not. We find that there was error in failing to track the language of the statute, which sets forth the element of knowledge.

[28] However, we do not find the error was plain. Indictments will be broadly construed in favor of the government following a verdict. United States v. Laverick, 348 F.2d 708, 714 (3d Cir. 1965). Furthermore, "[t]the indictment should be read in its entirety, construed according to common sense." United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1985). "When sufficiency of an indictment is challenged after trial, it is only required that ‘the necessary facts appear in any form or by fair construction can be found within the terms of the indictment.’" United States v. James, 980 F.2d 1314, 1317 (9th Cir. 1992) (quoting Kaneshiro v. United States, 445 F.2d 1266, 1269 (9th Cir. 1971)).

Supreme Court of Guam

People of Guam v Diaz [2007] GUSC 3; 2007 Guam 03 (29 June 2007)