Counsel for Appellees Danail M. Mizinov
Appeal from the Trial Division, the Honorable Kathleen M. Salii, Associate Justice, presiding.
[ 13] The Sperial Act is an a an additional remedy to prevent unnecessary delay in criminal prosecutions which augments the constitutional
right to a speedy trial, Palau Conrt. IV, § 7, and the court&;s authorithority purs pursuant to ROP R. Crim. P. 48(b) to dismiss
cases for prosecutorial delay. It establishes statutorily mandated time frames upon which a defendant in a criminal case must be
brought to trial. As relevant here, a criminal defendant’s trial “shall begin within seventy days . . . from the date
a defendant has appeared before a judge or justice of the court in which the charge is pending.” 18 PNC § 403(he statute
also sets outs out periods of time which should be excluded from the seventy-day calculation including, as relevant here “a
reasonable period oay when waiting for the results of laboratory testing or peor persons or substances essential to the case,”
18 USC § 403(h)(5), and “any period of delay resulting from a continuance granted by any judge . . . if the judge granted
such continuance based on findings that the ends of justice served by taking such action outweigh the best interest of the public
and the defendant in a speedy trial,” 18 PNC § 403(h)(9)(A).[ 1160;14] Under the Speedal rial Act, if “seventy
days, less excludable time periods, elapse without a trial, [the Trial Division] has no choice but to grant a defendant̵imelyd
motion to dismidismiss.” United States v. Rushinushin, 642 F.3d 1299, 1303 (10th Cir. 2011); see also 18 PNC § 404(a)(2) (“If andantndant is not brought to trial within the time limit required by section 403(c)[,] as extended
by section 403(h), the information of complaint shall be dismissed on motion of the defendant.” (emphasis added)). However, after weighing the factors listed in the statute, the Trial Division
maintains the discretion to dismiss the case with or without prejudice. 18 PNC § 404(a)(2).
[ ]0;15] Appellant contests both the Trial Division’s finding that the Speedy Trial Act was violated and its dismissal with
prejudice of the information against Appellees. We address eachention in turn. I. Was the Speedy Trial Act Violated?
[ 16] Appellant first argues that there was no violation of the Speedy Trial Act because Appellees waived their speedy trial rights
by agreeing to a status conference after the seventy-day deadline. This argument is easilmissed. After reviewing theg the language
of the Speedy Trial Act and the public interest served by the Act, the United States Supreme Court has held that “a defendant
may not prospectively waive the application of the Act.” Zedner v. United States, 547 U.S. 489, 500–01 (2006). Because there is no indication that the OEK intended for a different interpretation of the waiver provisions
here, we presume the interpretation adopted by the United States Supreme Court applies. See Mengeolt, 2017 Palau 17 7. Therefore, a deft cannotannot waive his right to a speedy trial; instead “the Act demands that defense continuance requests
fit within one of the specific exclusions set out in subsection (h). Subsectio([9]), which permits ends-onds-of-justice continuances,
was plainly meant to cover” such defense continuance requests.[4] Zedner, 547 U.S. at 500; see also 18 PNC § 403(h)(9)(A) (to excludey rlay resulting from a continuance—even one “granted . . . at the request of the
defendant or his counsel”he Trial Division must find “that the ends of justice served . . . outweigh the #160;best
est of the publicublic an defendant in a in a speedy tria21;).<1;).[5]
[ 17] Appellaxt arthat therenwas no violation of the Speedy Trial Aial Act because the statute permits the exhe exclusion of reasonable
delay while waiting he results of laboratory testing. See 18 PNC § 403(h As an initial maal maal matter, Appellant failed to raise this at the trial court[6] and therefore, this argument is waived on appeal. See Kotaro irchechol, 11 ROP 235, 235, 237 (2004) (“No axiom of law is better settled than that a party who raises an issue for the first time on
appeal will be deemed to have forfeited that issue . . . .”); Chieh-Chun Tsai v. Republic of Palau, 9 ROP 142, 144 (2002) (noting that a criminal defendant who fails to raise an argument at the trial court has waived it on appeal).
[ 18] However, ef we were to e to consider this argument, it fails on the merits. Appellant argues that one of the elements it must
prove at trial is that the substance Appellees were trafficking is a controlled substance and to do so, it must provide laboratory
testing. Because Palau does not have a laboratory to test controlled substances, evidence is taken to Guam for testing. And, according
to Appellant, the time and cost of transporting such evidence to Guam justifies the transportation of such evidence in batches. Two
such trips were made in 2018—one on January 24th and one on June 11th. Appellees first appeared in court on January 18, 2018
(Appellee Kangichi) and January 17, 2018 (Appellee Kochi), making their seventy-day speedy trial deadline March 29th and March 28th,
respectively. Appellant did not send the evidence to Guam for testing until June 11th. Therefore, the issue is whether the delay
in sending evidence to be tested is excludable under 18 PNC § 403(h)(5).
[& 19]0;19] “The first step in statutory interpretation is to look at the plain language of a statute. . . . It is wellblished
that if statutory language is clear and unambiguous, the courts should not look beyk beyond the plain language of the statute and
should enforce the statute as written.” Pamintuan v. Republic of Palau, 16 ROP 32, 42 (2008). Section 403(h)(5) excludes from the seventy-day speedy trial calculation “a reasonable period of delay
when waiting for the results of laboratory testing . . . essential to the case.” (emphasis added). It is a narrow exclusion designed to cover only reasonable
delays arising from the procedures surrounding actual testing of evidence. The delay resulting from failure to send evidence to the
laboratory for testing is not the same as the delay resulting from waiting for laboratory testing results. Therefore, delay resulting
from failure to send evidence for testing is not excludable under § 403(h)(5). Under the plain language of the statute, only
a delay resulting from the testing of the evidence after June 11th is properly excludable.[7]
[ 20] We agree whe Trial Divi Divisionision’s conclusion that none of the excludable periods of delay listed in 18 PNC §
403(h) applyppellees. As suAs such, the Speedy Trial Act mandated that lee Kangichi’s trial rial begin no later than March
29, 2018, and Appellee Kochi’s trial begin no later than March 28, 20s neither trial began by thby the statutorily mandated
deadline, the Trial Division correctly dismissed the information against Appellees.
[ 21] We tow to whether the Tthe Trial Division abused its discretion in dismissing the information with prejudice.
II. Did the Trial Division Abuse its Discretion?
[ 22] “peedy Trial Act Act does not indicate a preference as between dismissals with and dismissals without prejudice.”
United States v. Giambrone, 920 F76, 180 (2d Cir. 1990) (citing Taylor, 487 U.S. at 3 at 334–35). To determine whether a dismissal under the Speedy Trial Act should be with or without prejudice,
“the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances
of the case which led to the dismissal; and the impact of a reprosecution on the administration of sections 403 and 404 and on the
administration of justice.” 18 PNC § 404(a)(2).[8] In addition to the factors articulated within the statute, prejudice to the defendant should be considered. Taylor, 487 U.S. at 334.
[ 23]iscuss the analytnalyticlytical framework for these factors before considering, in turn, the Trial Division’s analysis
of each. Here, the Trial Division stated that it had “considehe factors whether dismissamissal in this case should be with
or without prejudice.” Kangichi Dismissal Order at 4; Kochi Dismissal Order at 4. But, this alone is not enough; the Trial Division must “clearly articulate” its analysis of each
factor “as applied to the particular case.” Taylor, 487 U.S. at 336. Because the Trial Division failed to provide a clearly articulated analysis identifying the relevant considerations
for each factor and weighing the separate factors against each other, its analysis was incomplete. And by basing its dismissal with
prejudice on an incomplete analysis, the Trial Division abused its discretion.
A. Seriousness of the offense
[ 24] In consng whether a vioa violation of the Speedy Trial Act should result in a dismissal with or without prejudice, the Trial
Division must consider the seriousness of harged offense. 18 PNC § 401). The Trial Divl Divisiivision can determine the seriousness
of an offense by looking to the length of the sentence established by the statute. Koerber, 813 F.3d at 1276. “If the court determines the offense committed by the defendant is serious, this factor weighs in favor
of a dismissal without prejudice.” Id. at 1274 (citation omitted).
[ 2re, the Trial Division corn correctly noted that the charges in these cases “are, in fact, serious felony charges.”
Kangichi Dismissal Order at 4; Kochi Dismissal Order at 4. And while it did not explicitly say that such a factor weighs against a dismissal with prejudice, the context
in which the statement occurs clearly indicates that the Trial Division treated it as such. Although succinct, we conclude the Trial
Division did not ignore or slight this factor. On remand, the Trial Division should again weigh the seriousness of these offenses
in favor of a dismissal with prejudice.
B. Facts and circumstances leading to dismissal
[ 26] The second factor that the Trial Division must consider is the facts and circumstances leading to the dismissal of the case.
18 PNC § 404(a)(2). &;In determiningining whether the facts and circumstances wa dismissal with prejudice wice we focus on the
culpability of the conduct that led to the delay.” Koerber, 813 F.31283 (citation omitted). Ho). However, “we are mindful that [the legislature] mandated courts to consider the facts
and circumss of the case which led to the dismissal, not just the facts and circumstances whichwhich led to the delay.” Id. at 1277 (internal quotation marks omitted). This factor “focuses equally on the impact of the court’s conduct and the
impact of the government’s conduct on any judicial delay.” United States v. Bert, 814 F.3d 70, 80 (2d Cir. 2016) (citing United States v. Pringle, [1985] USCA11 7; 751 F.2d 419, 429 (1st Cir. 1984)). “Where the delay is the result of intentional dilatory conduct[] or a pattern of neglect on the part
of the Government, dismissal with prejudice is the appropriate remedy.” United States v. Jones, [2000] USCA10 131; 213 F.3d 1253, 1257 (10th Cir. 2000). We note, however, that “a finding of ‘bad faith’ is not a prerequisite to dismissal with
prejudice.” Bert, 814 F.3d at 80 (citing Taylor, 487 U.S. at 339). A “demonstrably lackadaisical attitude on the part of the government attorney in charge of the case”
can be indicative of a “disregard for the responsibility to bring criminal cases to trial expeditiously.” Giambrone, 920 F.2d at 180 (citing Taylor, 487 U.S. at 338–39). Conversely, while “a defendant has no duty to bring himself to trial and has no duty to bring any
delay to the court’s attention,” “[d]efendants who passively wait for the speedy trial clock to run have a lesser
right to dismissal with prejudice than do defendants who unsuccessfully demand prompt attention.” United States v. Moss, [2000] USCA6 215; 217 F.3d 426, 431 (6th Cir. 2000) (internal quotation marks omitted). Finally, the length of the delay can be used to measure the seriousness
of the speedy trial violation and should be included in the facts and circumstances evaluation as well as in determining any prejudice
to the defendant. Bert, 814 F.3d at 81 (citing Taylor, 487 U.S. at 340).
[ 27e, the Trial Division indn indicated that at least part of the delay was caused by Appellant. See Kangichi Dismissal Order at 4; Kochi Dismissal Order at 3 (“[T]he fhat there may be staffing iing issues at the Office of the Attorney General should not be held
against Defendant, particularly when an attorney from the Office of the Public Defender appeared at all scheduled conferences in
this case.”). However, it did not indicate how much of the delay was attributable to Appellant and how much, if any, was attributable
to Appellees. Additionally, the Trial Division made no findings regarding whether any delay attributable to Appellant was the result
of “intentional dilatory conduct[] or a pattern of neglect on the part of the Government.” See Jones, 213 F.3d at 1257.
[ 28] As to the length e dela delay, approximately three weeks[9] is a relatively short delay that would normally weigh in favor of a dismissal without prejudice. However, there are several factors
the Trial Division should consider in evaluating the weight to afford the short delay. First, the record indicates that the delay
was the result of repeated status conferences. No trial date was set, no plea deal was being considered, and no continuances were
requested. There is no indication that even a cursory attempt was made to comply with the requirements of the Speedy Trial Act. Furthermore,
Appellant concedes that, because of the delay in sending the evidence for testing, it would not have been able to prove all of the
elements of the offenses charged (and thus, could not proceed to trial) until sometime after June 11, 2018—nearly two months
after the seventy-day deadline. And while an ends-of-justice continuance might have been warranted had it been requested, the findings
needed to grant such a continuance cannot be made on remand. United States v. Ammar, 842 F.3d 1203, 1212 (11th Cir. 2016) (citing Zedner, 547 U.S. at 506).
[ 29] The Trial Diviabused ited its discretion in failing to consider which party caused the delay, whether any delay attributable
to Appellant was intentional or indicative of a pn of a neglectful or lackadaisical attitude, and the lengthength of the delay in
weighing this factor. On remand, the Trial Division must decide whether, after evaluating the above considerations, this factor weighs
in favor of a dismissal with or without prejudice.
C. Impact of a reprosecution on the Speedy Trial Act and the administration of justice
[ 30] The final statutory factor requires the Trial Division to consider the impact of a reprosecution on the administration of the
Act and on the administration of justice. 18 PNC § 4(2). Because the Act iigneiigned to protect a defendanendant’s constitutional
right to a speedy trial and the public’s interest in prompt criminal pdings, “[w]henever the ‘government—for
whor whatever reasons—falls short of meeting the Act’s requirements, the administration of justice is adversely affected.’”
Moss, 217 F. 432 (qu2 (quoting United States v. Ramirez, [1992] USCA1 430; 973 F.2d 36,1st Cir. 1992))992)). However, the administration of justice also incorporates the public&#s interest in prosecuting criminal offenses.
As a result, <, “there is almost always some tension between the administration of the Act and the administration of justice.”
United States v. Williams, [2002] USCA11 382; 314 F.3d 552, 559 (11th Cir. 2002) (internal quotation marks omitted). Defendants often contend that “dismissal without prejudice takes
the teeth out of the Act’s requirements” while the government argues that “reprosecution furthers the public’s
interest in bringing criminals to trial.” Ii>at 559–60 (inte(internal quotation marks and alterations omitted). This tension is especially pronounced in Palau.
[ 31] In the United States220#8220;[a] dismissal without prejudice requires the government to re-indict, may work to the disadvantage
of the government on limitations grounds, and may make reprosecution less likely.Jones, 213 F.3d at 1 at 1257. Thus, while prosecutors are often able to obtain a new indictment after a dismissal without prejudice, it
is not without some costs to the prosecution and the courts. Bert, 814 F.3d at 82 (quoting Zedner, 547 U.S. at 499). Contrarily, Palau does not require the Attorney General’s Office to seek an indictment from a grand jury
and consequently, it does not bear the cost or inconvenience of seeking a new indictment following a dismissal without prejudice.
Instead, the Attorney General’s Office effectively “gains successive 70-day periods in which to bring the defendant to
trial.” Bert, 814 F.3d at 82 (internal quotation marks omitted).
[ 32] A dismissal with prejudice sends a strong message about the importance of complying with the Act and “is more likely
to induce salutary changes in prres, reducing pretrial delays.” Id. (citation omitted). But, barring reprosecuosecution is a severe sanction, and it is clear that the OEK did not intend for all cases
to be dismissed with prejudice. Taylor, 487 U.S. at 342 (“If the greater deterrent effect of barring reprosecution could alone support a decision to dismiss with
prejudice, the consideration of the other factors identified in [§ 404(a)(1)] would be fluous,uous, and all violations would
warrant barring reprosecution.”). Thus, while not every case should be dismissed with prejudice, such a sanction “gives
the prosecution a poweincentive to be careful abol about compliance,” Zedner, 547 U.S. at 499, and the comparatively negligible consequence of a dismissal without prejudice is an important consideration the
Trial Division must weigh when looking at this factor.
[ 33] In addition to the rchiarching policy concerns regarding a defendant’s right to a speedy trial and the public’s
interest in prompt criminal proceedings, this factor requires the Trial Division to consider the case-specific “aggravating
and mitigating factors[, such] as the length of the delay and the prejudice to the defendant.” Williams, 314 F.3d at 560. Prejudice to the defendant is separated into two types: “(1) trial prejudice, i.e., prejudice in the defendant’s
ability to mount a defense at trial; and (2) non-trial prejudice.” Bert, 814 F.3d at 82. Non-trial prejudice refers to “the restrictions on [a defendant’s] liberty, for ‘whether he is
free on bail or not, the delay may disrupt his employment, drain his financial resources, curtail his associations, subject him to
public obloquy, and create anxiety in him, his family and his friends.’” Giambrone, 920 F.2d at 180–81 (quoting Taylor,;4870;487 U.S. at 340).
[ 34] Here, the Trial Divisinn concluded that, because “dismissal without prejudi re-file the charges would be punishing the
Defendant for the Republic’s violations oons of the Speedy Trial Act,” each Aee “has demonstrated ated prejudice
resulting from the delay in bringing him to trial.” Kangichi Dismissal Order at 3; Kochi Dismissal Order at 4. While this statement can be interpreted as a conclusion that the administration of justice would be negatively
affected by dismissing the case without prejudice, the Trial Division has provided no analysis of how it reached such a conclusion.
Nor is there any discussion of the potential impact of a dismissal with prejudice on the public’s interest in the prosecution
of serious drug offenses. It is entirely possible that the Trial Division weighed these factors and determined that a dismissal with
prejudice was warranted based on Appellant’s attitude toward the delay or the potential deterrent effect of the sanction. But
we cannot assume the Trial Division evaluated these considerations without an explanation as to its conclusion.
[ 35] Furthermots broad statestatement fails to identify the prejudice that it concluded Appellees suffered from as a result of
the Appellant’s violation of the Act. While it is clear the Trial Divisioieves Appellees were prejudrejudiced in some way,
there is no indication that the Trial Division weighed this prejudice (and any deterrent effect a dismissal with prejudice could
have on future compliance with the Act) against the administration of justice and the public’s interest in seeing Appellees
face trial. Again, it is possible the Trial Division weighed these considerations in making its conclusion. But, without providing
an analysis explaining its reasoning, we have no way to review whether its consideration was properly balanced.
[ 36] The Division abused ited its discretion in failing to identify and consider what, if any, specific trial and non-trial prejudice
Appellees suffered. Additionally, the Trial Division failed to dete whether Appellant’s217;s delay-causing behavior was intentional
or “truly neglectful” and how a dismissal with prejudice could affect future administration of the Act and the public’s
interest in speedy trials of criminal defendants. We leave determining whether, after reweighing these considerations, this factor
weighs in favor of a dismissal with or without prejudice to the sound discretion of the Trial Division on remand.
[ 37] Althoughonclude the Trie Trial Division abused its discretion in dismissing the information against the Appellees with prejudice,
we cannot conclude that the appropriatction in these cases is a dismissal without prejudice. It i It is not the role of the appellate
court to decide in the first instance whether the statutory factors weigh in favor of a dismissal with or without prejudice; such
a task is properly the province of the Trial Division. See Jones, 213 F.3d at 1257 (“Of course, an appellate court cannot exercise discretion for the [trial] court.”). Given the dearth
of evidence in the record, we simply cannot undertake any meaningful appellate review of the Trial Division’s analysis. As
such, a remand is necessary for the Trial Division to make the relevant factual findings and properly exercise its discretion in
weighing whether the factors support a dismissal with or without prejudice. See Bert, 814 F.3d at 86; Koerber, 813 F.3d at 1286–87.
CONCLUSION
[ 38] We AFFIRM the Trial Division’s judgment that Appellant violated the Speedy Trial Act and Appellees are entitled to dismissal of the information
against them. We REVERSE the Trial Division’sment that the dismissals shls should be with prejudice and REMAND for reconsideration whether the information against Appellees should be dismissed with or without prejudice.
[ 39] If, after further consideration, the Trial Division again concludes that a dismissal with prejudice is appropriate, it shall
enter an opinion and judgment embodying that disposition. If rial Division instead concludes that a dismissal without prut prejudice
is appropriate, it shall enter an order to that effect. We intimate no view as to the decision the Trial Division should reach on
remand.
[ 4ther party may file a time timely appeal from the Trial Division’s new order or judgment.
[1]
[2]
The ̶“Speedy Trial Act” is a colloquial reference to Sections 403 through 405 of Title 18 of the Paationde.
[3] Furthermore, the parties in this case have already treated the two cases as intertwined. Appellant has filed an identical brief in
each case, including references to Appellee Kochi in Appellee Kangichi’s filing, and vice versa. And while Appellees do not
refer to each other in their filings, the argument sections of the two briefs are identical.
[4] The confusion over the defendant’s ability to waive his speedy trial rights appears to stem from the sentence: “Unless
the defendant consents in writing to the contrary, the trial shall not begin less than thirty days from the date on which the defendant
first appears through counsel or expressly waives counsel and elects to proceed pro se.” 18 PNC § 403(c). Howea close
readingading shows that the defendant is allowed to consent, in writing, to a trial beginning within thirty days of the defendant’s
first appearan court. It says nothing about the defendant’s abilityility to consent to a trial beginning after the statutorily
mandated seventy days. Indeed, the statute indicates only one way that a defendant may waive his speedy trial rights: “Failure
of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of
the right to dismissal under this section.” 18 PNC § 4(2).
[5] To the extent that Appellant asserts that the time between the March 16, 2018 conference and the April 16, 2018 conference shouldxcluded
under § 4160;403(h)), such an argumargument fails. The statute precludes any exclusion of time under this section “unless
the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served
. . . outweigh the best interest of the publi# and the defendant in a y trial.” 18 PNC8 PNC § 403(h)(9)(A). As no findings were made here, exclusion of this delay is
prohibited as a matter of law.
nB6">[6] As noted above, Appellapellant dint did raise this issue for the first time in its Motions for Reconsideration. Appellees argue that
the issue is waived on appeal because “[t]he ROP Rules of Criminal Procedure do not allow for motions to reconsider in criminal
cases.” Appellees’ Brs. 10. We need not determine whether such a motion is permissible under the Rules because, even
assuming that a motion for reconsideration could be raised in a criminal case, it “does not provide a vehicle for a party to
undo its own procedural failures, and it certainly does not allow a party to advance arguments that could and should have been presented
to the trial court prior to judgment.” See Dalton v. Borja, 8 ROP Intrm. 302, 304 (2001) (quoting Aghar v. Crispin-Reyes, [1997] USCA1 204; 118 F.3d 10, 16 (1st Cir. 1997) (alterations omitted)). Appellant’s failure to raise this issue in its initial response to Appellees’
Motions to Dismiss constitutes a waiver.
[7] While Appellant’s failure to send the evidence in a timely manner cannot be excluded under § 403(h)had Appellant informeformed
the Trial Division at any of the status conferences of the delay in sending the evidence for testing, the Trial Division could have
determined whether a continuance was appropriate under § 409)(A). As it stands, Appe Appellant failed to even notify the Trial
Division that such evidence had not been sent for testing, mess request for a continuance until such testing could be completed.
Nor has Appellant prov provided even a cursory explanation as to why the evidence in these cases (which was seized no later than
November 29, 2018) could not have been sent to Guam on January 24th or any indication to this Court or the Trial Division how long
such testing would take. We are not unsympathetic to the difficulties Appellant faces in prosecuting drug trafficking crimes; however,
we encourage Appellant to be more diligent in future cases.
[8] Appellant cites to Republic of Palau v. Sisior, 4 ROP Intrm. 152 (1994) and Republic of Palau v. Decherong, 2 ROP Intrm. 152 (1990) for the assertion that this Court has “embraced the four-part balancing test developed by the United
States Supreme Court in Barker v. Wingo, [1972] USSC 146; 92 S. Ct. 2182, 2186–95 (1972).” Appellant’s Brs. 9. This is only partially correct. We have embraced the Barker test only for determining whether a defendant’s constitutional speedy trial right has been violated. Appellees have not asserted a violation of their constitutional right to a speedy trial; they
allege only a violation of their statutory right to a speedy trial. As such, we evaluate the factors as articulated by the OEK.
[9] Appellee Kangichi’s delay was 18 days at the time of his oral motion to dismiss and 22 days at the time of his written motion.
Appellee Kochi’s delay was 19 days at the time of his oral motion to dismiss and 23 days at the time of his written motion.
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