Opposition Brief — Gill v. Territory of Guam

Supreme Court, US

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MAR 28 1996

No. 95-1375 | CLERK

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In The

Supreme Court of the United States

October Term, 1995

e-—

Francis L. Gill,

Petitioner,

vs.

Territory of Guam,

Respondent

e

On Petition For Writ of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

3s

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

s

Calvin E. Holloway, Sr.

Attorney General of Guam

*Charles H. Troutman III

Compiler of Laws

Department of Law

238 F.C. Flores St., Suite 701

Agana, Guam 96910-5185

Telephone: (671) 475-3206

*Counsel of Record for

The Territory of Guam

QUESTION PRESENTED

The Respondent wishes to point out that the premise in the

Question Presented by the Petitioner has no basis in the Record of

this Case. There is no evidence in the Record that the land in

question into which Petitioner attempted to expand his property was

ever owned by any private interest. Appendix A at p. *8. Further,

the Appellate Division determined that the Record showed that the

Petitioner knew that the land into which he was expanding his land

was government land. Appendix A at p. *8, 45.

OPINION BELOW

The July 18, 1995 Decision of the United States Court of

Appeals for the Ninth Circuit, entitled People of the Territory of

Guam v. Francis L. Gill, is reported at 61 F.3d 688.

While mentioned in the above opinion, the Respondents wish

to point out that the Ninth Circuit Opinion was not directly

reviewing the Judgment of Conviction of the trial court. Rather, the

Ninth Circuit was reviewing the Opinion of Guam’s intermediate

appellate court, the Appellate Division of the District Court of

Guam. That Opinion, People of the Territory of Guam v. Francis

L. Gill, D.Guam Appellate Div., Cr. No. 92-00099A, April 15,

1994, is reported at 1994 WL 150934 (D.Guam). That Opinion is

reproduced in this Brief at Appendix A.

il

STATEMENT OF THE CASE

Petitioner's Statement of the Case is misleading in material

parts. The Petitioner never presented the issue of the Treaty of

Paris to the Trial Court. Therefore, this question was not addressed

by that, or any later, court, and should not be a part of the “Case”.

Petitioner further misstates the record where he states that the

land in question was both unregistered and untitled. Nowhere does

Guam law equate registration with ownership. 21 GCA § 29105.

Further, it is not correct to state that there was no evidence of

title in the Government of Guam. See Appendix A at p, *8.

Judge Weeks, in answering the Petitioner’s Motion to Acquit,

did not hold that the Government had an interest “short of title”, as

stated by Petitioner. Rather, Judge Weeks, in explaining that

Registration was not necessary to title statea, on p. 3 of Petitioner's

Appendix “D”:

The Government of Guam need not have had a

Certificate of Title in order to have an interest in the

land. The evidence put forward by the People was

sufficient for the jury to conclude that the Government

did have a property right in the land. This interest need

not be one of absolute title to sustain a conviction under

the theft statutes. (Emphasis added)

TABLE OF CONTENTS

Page

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TARE Ge CAR ae 6 SCS i VI Se iv

TABLE OF CASES AND AUTHORITIES ............. vi

BRIEF IN OPPOSITION TO PETITION

Ph A OUD Ge GOED 6S hn hace wb dich womewee 8 l

SS as I a op OR Sete re eee Pe as l

l. The Question Presented was never presented below. .. 1

y Petitioner failed to provide any recognized reasons for the

guuang Gr Wi PO i ia Ek cs 2

a The Petitioner relies on an erroneous statement of the facts

to support his Petition.

a. Erroneous statement of the Record ........ 3

b. This Petition presents erroneous statements about

the state of Guam land law. ............. 4

4. The Petitioner’s legal analysis is without foundation. . 5

3 Even if Petitioner's argument over the civil status had

merit, it is irrelevant to his conviction. ........... 5

eee ET Oe SE POET Per Te Pierre re ee 6

CERTIFICATE OF SERVICE

TABLE OF CASES AND AUTHORITIES

Page

CASES

In re application of Anderson Iglesias, et al.,

RED CAP CRUD 0 0-0 d H.ole-0 io <gie oeue wee en 4,5

In Re Application of Yamashita, 59 F.3d 114

UE, o's. hs 05a gS 0-6 ww 4k ee Oa aa 5

Kentucky v. Stincer, 482 U.S. 730, n.22, 107 S.Ct. 2658,

es ee es OE, CEOUED 0b cc cecktseedebdwadee ee:

Tenorio v. Government of Guam, 527 F.2d 1095

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TAT S

oe ees Coes Ammoteies BEMe ccc nce cv evetucccccdwin 5

21 Guam Code Annotated §29105 .................06. 4

Treaty of Paris of 1696, 30 Stat. 1758 ... 1... ee cee a

OTHER AUTHORITIES

Wharton's Criminal Law §390 (1980) .................. 6

vi

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

The Territory of Guam (“Respondent”) hereby responds to

the Petition for Writ of Certiorari (“Petitioner”), filed by Petitioner

Francis L. Gill. Respondent respectfully requests that this Court

deny the Petition.

Review by this Court is unnecessary because (a) the

Question Presented to this Court has not been presented, nor ruled

upon, below, (b) the Petitioner fails to identify any of the reasons

stated in the rules of this Court, why this case merits certiorari, (c)

the Petitioner relies upon erroneous facts, and (d) even if the

Petitioner's legal analysis were correct, it would not act to relieve

him of criminal liability for his acts.

ARGUMENT

1. The Question Presented was never presented below.

The claim that the Treaty of Peace bars the Territory of

Guam from exercising jurisdiction over the land in question was

never raised below. This failure is reflected in the decisions of the

Appellate Division of the District Court of Guam and the Ninth

Circuit Court of Appeals, both of which have now been provided

to the Court. See Appendix A, p. *1.

This Court has consistently indicated that it will decline to

consider issues, in its review of state cases, where that issue was

not “pressed or passed upon in the courts below”. Kentucky v.

Stincer, 482 U.S. 730, 747, n.22, 107 S.Ct. 2658, 2668, n.22, 96

L.Ed.2d 631, (1987) (quoting McGoldrick v. Compagnie Generale

Tranatlantique, 309 U.S. 430, 434, 60 S.Ct. 670, 672, 84 L.Ed.2d

l

849 (1940). The Stincer decision indicates that even in federal

cases the High Court will not review an issue that was not pressed

below absent “exceptional circumstances”. Id. at n.22. This failure

in itself should lead the Court to reject the Petition.

2. Petitioner failed to provide any recognized reasons for

the granting of his Petition.

The issue identified is narrow, if not unique. Petitioner

urges this Court to consider whether the Treaty of Paris of 1898

(also known as the Treaty of Peace) prevents the Territory of Guam

from exercising jurisdiction over Petitioner's attempted theft of real

property. This issue does not rise from a claim that he was not

guilty of attempting to steal property, only that Guam should be

deemed lacking authority to enforce its criminal law as to the

parcels in question.

Not surprisingly, the Petitioner has failed to identify a split

in Circuit authority over this issue, which is stated as arising from

Treaty provisions bearing on Guam. He has not claimed that the

decision determines an important federal question in a manner at

odds with the decision of a state supreme court, or vice versa, for

that matter. Nor does he argue that the decision below represents

a departure form the "accepted and usual course of judicial

proceedings . . . as to call for an exercise of this Court's

supervisory power." This would be a difficult point to claim

because, as is discussed below, the issue he frames was not raised

below in the course of the appeal and was, therefore, not

considered by the Ninth Circuit Court of Appeals. Nowhere below

was the 1898 Treaty with Spain ever addressed.

3. The Petitioner relies on an erroneous statement of the

facts to support his Petition.

a. Erroneous statement of the Record

Evidence was presented at trial that the property in issue

was transferred from the United States government to the Territory

of Guam. What is missing form the record is any evidence to the

contrary. The Petitioner adduced no evidence at trial that this

property belonged to any private person or other entity than the

Territory of Guam. Of this, the Appellate Division of the District

Court of Guam stated:

Appellant's argument fails for the primary reason

that the government indeed presented evidence that

the land in question was government land. The

government elicited testimony from Frank Castro,

Director of Land Management, that the land in

question was government land. (Tr. II] pp. 18-20).

The Director of Land Management based his

conclusion on the fact that the land in question in

this case was transferred to the government of

Guam by the United States. (Tr. II pp. 16-17) The

government also presented testimony of

Department of Land Management worker Jimmy

Camacho that the land being claimed was

government land. (Tr. IV p. 114). While the

evidence that it was government land was not

supported by the document creating title in the

government of Guam, there was nonetheless

adequate and compelling evidence that it certainly

did not belong to appellant and that the land was

government land. And, this evidence was never

contradicted. Appendix A, p. *8.

3

There is nothing in the records showing any effect upon the

properties in question by the Japanese occupation during World

War II.

b. This Petition presents erroneous statements

about the state of Guam land law.

Petitioner incorrectly states that the Land Registration Act

was first enacted in 1953 “due to the unreliability of land titles on

Guam.” A comprehensive history of United States efforts to assure

that private lands were protected (and taxed) is contained in the

District Court of Guam, Appellate Division decision of /n re

application of Anderson iglesias, et al., 1 Guam Reports 129

(1963). Of the current Land Registration Law, that court stated, at

p. 139:

It should be further noted that the Guam Land

Title Registration Act, lacking one of the essentials

of a true Torrens system as noted above, is effect

provides merely a system of quieting title which is

essentially an equity matter and in which equitable

matters must be considered.

Likewise, Petitioner is in error when he equates registration

with title. The present Act provides, in part:

21 GCA §29105. Land Brought Under the Law

by Filing Petition: Contents, etc. All land may be

brought under the operation of this Law by the

owner or owners of any estate or interest therein,

whether legal or equitable (other than an individual

share or an easement) by filing with the clerk . . .

This section is permissive, allowing owners of land to register or

not to register their land as they see fit. Nothing in this law

4

IF at 18 BRT aa ET A he

ili ts

(Chapter 29) states that non-registration equates to non-title. It has

long been held that government land cannot be acquired by a

private interest by adverse possession. Tenorio v. Government of

Guam, 527 F.2d 1095 (9th Cir. 1974); In Re Application of

Yamashita, 59 F.3d 114 (9th Cir. 1995).

4. The Petitioner’s legal analysis is without foundation.

An essential component of the Petitioner's challenge

appears to focus on the statute which makes land in the Ternitory

of Guam, having no other owner, the property of Guam. 21 GCA

§1202. He appears to urge that the application of this provision

usurps the interests of private property owners in a manner which

is contrary to the Treaty of Paris. He apparently has not read the

statute he harps upon. It is as clear as it is short. It applies when

there is no known private owner. For the entire length of the

United States occupation of Guam, no private person has been

permitted to claim land for which there is no previous owner. See,

generally, In Re Application of Anderson Iglesias, above.

It is fairly obvious that lands having a private owner are

not included in its embrace. By its own terms the statute avoids

encroaching on private property interests. The issue that the

Petitioner seeks to raise is illusory.

5. Even if Petitioner’s argument over the civil status had

merit, it is irrelevant to his conviction.

As the Ninth Circuit noted in its decision, the offense of

attempted theft of property merely requires proof beyond a

reasonable doubt that the property being taken is the “property of

another”. Petitioner's argument that the land does not legitimately

belong to the Territory of Guam does not change the fact that it did

not belong to him.

This point aside, his argument would still be moot as to its

effect on his conviction. It is well settled that a thief can steal from

a thief. See, e.g., §390 of Wharton's Criminal Law (1980) (text

accompanying note 81 and case authority cited in that note). Even

had Guam unlawfully taken this property, this circumstance would

not excuse Gill's criminality.

CONCLUSION

For the foregoing reasons, Respondent respectfully requests

the Court to deny the Petition for Writ of Certiorari.

Dated: March 27, 1996.

Respectfully submitted,

PR 5 ff Ff /

. Pa ‘ihe aoe Ie AKG’

Charles H. Troutman III

Compiler of Laws

Territory of Guam

Attorney for Respondents

APPENDIX “A”

Copr. (C) West 1996 No claim to orig. U.S. govt. works

1994 WL 150934 (D.Guam)

(Cite as: 1994 WL 150934 (D.Guam))

PEOPLE OF the TERRITORY OF GUAM,

Plaintiff-Appellee,

v.

Francis L. GILL,

Defendant-Appellant.

Cr. No. 92-00099A.

District Court of Guam, Appellate Division.

Argued and Submitted Oct. 8, 1993.

Re-Submitted Dec. 14, 1993.

Decided April 15, 1994.

Appeal from the Superior Court of Guam, Superior Court

Case No. CF-119-90; Janet Healy Weeks, Presiding.

Elizabeth Barrett-Anderson, Atty. Gen. of Guam by Andrew

Artero-Boname, Asst. Atty. Gen., Prosecution Div., Agana, Guam,

for plaintiff-appellee.

Howard Trapp, Howard Trapp Inc., Agana, Guam, for

defendant-appellant.

Before: EDWARD RAFEEDIE [FN1], ALEX R.

MUNSON [FN2] and JOHN S. UNPINGCO, District Judges.

OPINION

UNPINGCO, Judge:

*1 This is an appeal from Appellant's March 27, 1992

conviction for one count of Conspiracy to Commit Theft of Immovable

Property, three counts of Attempted Theft of Immovable Property, and

one count of Conspiracy to Tamper with Records. Appellant urges

reversal on the basis of insufficiency of the evidence, and several other

grounds.

First, Appellant argues that there was insufficient evidence

adduced at tnal to sustain his five convictions for Conspiracy to

Commit Theft of Immovable Property, Attempted Theft of Immovable

Property and Conspiracy to Tamper with Records. Second, Appellant

argues that the evidence was insufficient to establish that the disputed

land belonged to the Guam government. Third, Appellant raises a

series of grounds for overturning the theft convictions, namely: (1) that

Appellant never had a fiduciary relationship with the property, (2) that

an attempt to commit an act which is not a crime cannot be the basis of

a criminal conviction, and (3) that Appellant was not empowered to

dispose of the land. Finally, Appellant argues that the tampering

conviction cannot stand because the maps were not public records when

created.

PROCEEDINGS BELOW

The defendant was indicted with co-defendants Thomas

Anderson ("Anderson") and Joseph B. Cruz ("Cruz") by the territorial

grand jury on September 12, 1990, which eventually led to a

superseding indictment on September 4, 1991. Defendant Frances Gill

("Gill") was charged with Conspiracy to Commit Theft, Attempted

Theft and Conspiracy to Tamper with Public Records. Co-defendant

Cruz was indicted for those same crimes, as well as Tampering with

Public Records and Official Misconduct. Defendant Anderson pled

guilty and testified against defendants Gill and Cruz, who were tned

together. Both defendants were found guilty of all counts on March 27,

1992.

FACTS

The convictions resulted from Appellant's participation in the

creation and recordation of maps for four parcels of property on Guam.

It was proved at trial that defendants re-drew maps of four parceis to

encompass government land adjacent to Appellant's parcels.

Appellant's lot located in Piti, consisting of 1.6 hectares on one map,

[FN3] (or possibly three hectares according to another source), grew to

3.9 hectares on a later map. Appellant's Umatac lot grew from 3

hectares on one map to 10 hectares on a later map, and Agua & Gumoje

(Merizo), once 32 and 33 hectares respectively on earlier maps, became

A-2

SG Me Oe a cee

over 300 hectares on the new maps. The transactions went sequentially

as follows:

Piti

Frances Gill, a practicing attomey on Guam, was interested in

purchasing a parcel of property in Piti from an elderly person, Ms.

Emilia Pangelinan. A purchase was arranged, and in December 1988

Ms. Pangelinan executed a Grant Deed to Guam Landvest, Ltd., Gill's

corporation. (Exhibit 15). The Grant Deed's property description stated

that "Lot No. 215 and place name of Atantano, Piti" was being

conveyed. There was no indication of the size of the land being

conveyed.

*2 Gill requested Anderson, a registered land surveyor on

Guam, to come to his office to talk about surveying the lot in

anticipation of a land registration proceeding. At their first meeting,

Anderson showed Gill documents that his co-worker had discovered at

Land Management which indicated that Lot 215 was 1.6 hectares, but

Anderson also told Gill that according to the 1941 tax rolls, the place

of "Atantano” showed to be 3 hectares. (Tr. VII p. 112). [FN4]

Anderson also showed Gill a map prepared by a Robert Beam,

who did not testify at trial. The map was not introduced into evidence.

(Tr. VII p. 112). He told Gill that according to that map, a large parcel

of unsurveyed government land stood between Gill's Lot 215 and

Marine Drive. Gill asked Anderson, “Can | claim it?" to which

Anderson replied "I don't know." Gill then offered Anderson

$20,000.00, four times his normal fee, and instructed Anderson to

prepare the map claiming the unsurveyed government land. (Tr. VII p.

115-116).

Anderson instructed one of his workers to prepare the map to

create a new lot, encompassing Atantano, and including the

unnumbered unsurveyed government land. Anderson then received

new Lot Number 285 for the lot upon verbal request to Land

Management. (Tr. VII p. 119).

Gill instructed Anderson to consolidate Lot 215 and Lot 285

into new Lot 285, comprised of 3.9 hectares and to subdivide it. When

the map was ready, Anderson went to Gill's office for signature on the

"checkprint." [FN5] (Tr. VII p. 122). The checkprint was sent to Land

Management and sent back with comments. None of the comments on

A -3

the checkprint noted any irregulanty with respect to the unsurveyed

government land encompassed by the map. Anderson's office made the

necessary corrections and re-submitted the map, which was then

approved. (Tr. VII p. 126). There is no direct testimony as to how the

approval was obtained, though Jimmy Camacho, a draftsman in the

Survey Division of Land Management, testified that he notified Roy

Aguilar, the draftsman who prepared the map for Anderson, that it

encroached on government land. (Tr. IV p. 114). Aguilar, in turn,

testified that he reported this comment to Anderson, but that Mr.

Anderson had instructed him to keep the map the way it was. (Tr. IV

pp. 137-149).

Anderson went to Gill's office to show him the approved map.

Gill is reported to have said "no shit--maps approved?" and then

laughed. (Tr. VII p. 126). He then told Anderson that he had some

other survey work for him to do.

Umatac

After the Piti project was completed, Anderson told Gill that

some land was available near Cetti Bay, Umatac, but Anderson warned

Gill that the title to the land was "no good." By "no good" he was

referring to the fact that he and Mr. Jose Taimanglo Garcia had, in an

elaborate plot, created the title to this lot themselves.

Testimony of Anderson and Garcia revealed a scheme whereby

they created new title to unsurveyed government land. Garcia found the

names of recently deceased people and forged their names to fictitious

deeds to create lots. In actuality, the lots contained unsurveyed

government land. Then Anderson went to his cousin, Joe Cruz, who

worked at Land Management as the territory's Land Administrator

[FN6], and asked for (1) a lot number for the lot, and (2) an "escaped

assessment” [FN7] tax record for the lot from the Department of

Revenue and Taxation.

*3 Joe Cruz in tum asked the Department of Revenue and

Taxation for an escaped assessment on the lots. Testimony established

that Vicente Cruz of the Real Property Tax branch of Revenue and

Taxation, (no relation to Joe Cruz), was asked for the escaped

assessment on the new lots. Vicente Cruz was uncertain as to the basis

of the request, so he went to his supervisor, Ray Blas, to ask if he

should comply with the request. (Tr. VI p. 78).

A-4

eta tho “ABS Sier bb ec a “s “

Ray Blas testified that because the request came from the Land

Administrator of the Territory of Guam, there was no reason not to

comply with the request. (Tr. VI p. 94-95). The tax records were

created for the lots and Anderson then paid the taxes on the lot, and that

created the chain oftitle.

At the same time as creating a tax record for the land, Cruz also

obtained lot numbers for the land. He was given Lot Number 154A for

the Umatac lot and Lot Numbers 521 and 522 for the Merizo lots. (Tr.

VIII p 76-78). Anderson and Garcia intended to first register the land,

and then sell it.

The registration was important, because testimony was that the

Japanese developers who were investing in Guam land at that time were

not comfortable buying land that was not registered under Guam's Land

Registration Act, s 1157 et seq. of the Civil Code. [FN8] (Tr. VII p.

31). To obtain a decree of ownership at a land registration proceeding,

one needed only to produce a map, supported by some evidence of title.

If no one appeared to object, the decree issued by the Superior Court

was deemed conclusive evidence of title.

When Anderson told Gill that title to the Umatac lot was "no

good,” Gill is reported to have responded "It's okay. I'm a lawyer.” (Tr.

VII p. 133). Gill was interested in buying the lot from Anderson and

went to view the property at Cetti Bay. After he walked the property,

he instructed Anderson to map the lot, but to include in the map of Lot

154A all the land “all the way to the existing paved road that leads

down to the beach area." (Tr. VIII p. 20).

The maps for Lot 154A Umatac show the development of this

transaction: Exhibit 3A shows Lot 154A containing approximately 3

hectares. That map shows the adjacent land as "government of Guam

land, unsurveyed." The subsequent map for Lot 154A, shown in

Exhibit 3B and drawn by Anderson at Gill's request just four months

later, shows an area of 10.4 hectares. When Anderson presented these

maps, a checkprint was not presented to Land Management.

Nonetheless, the maps were approved.

Though normally a map cannot be approved without the

approval of the Territorial Surveyor, there was testimony that during the

months in which these events unfolded, the Director of Land

Management had delegated to Joseph Cruz the authority to act as the

A-5

Director of Land Management. (Tr. III p. 76). Anderson testified that,

for instance, the map for Lot 154A Umatac was approved without a

checkprint because he had told a friend at Land Management, Bernie

Ortega, that "Roy [Aguilar] would be giving him a map that he could

sign for me." ;

*4 Jimmy Camacho, an employee of the Survey Division, also

testified about documents that would normally have to clear his office

which in fact did not cross his desk but nonetheless bore the initials

"JC" on them. Camacho reviewed the "JC" that appeared on Exhibits

3B, (the lot showing 154A to be 10.4 hectares for the first time), 4A,

SA, 6A, 7A, 8, (all maps wherein Gill's Lot 154A was subdivided), 9A,

10A, (both maps of Lot 521 Merizo) and 2C (the checkprint for Lot 285

Piti). He testified that the "JC" appearing on all those exhibits was not

his (Jimmy Camacho's) initials, but were of another "JC" at Land

Management. (Tr. IV p. 118-123). There were two other "JC" 's who

worked at Land Management at that time, James Cruz in Planning

Division, (which never is involved in the map approval process), and

Joe Cruz, who, as Land Administrator is involved in the map approval

process. (Tr. IV p. 122).

Testimony indicated that whenever a lot number is requested,

both the requesting surveyor and the Land Management employee

assigning the lot number must appear on the lot-number log. (Tr. IV p.

17). When Lot Numbers 521 and 522, Merizo, were assigned, there is

no record of who asked for or who gave the lot numbers. (Tr. IV p. 17).

Anderson testified that he obtained the new lot numbers for Umatac and

Merizo by meeting in person with Joe Cruz, who picked up the phone,

asked for new lot numbers, and then gave them to Anderson. (Tr. VIII

p. 78-80). There was also testimony that Joe Cruz’ sister, an employee

of the Land Registry Division, gave Thomas Anderson the lot numbers

on Anderson's verbal request. (Tr. VIp. 111).

Having secured a map to the Umatac lots, Gill and Anderson

then proceeded to their most ambitious project, the Merizo land.

Merizo

Gill became acquainted with a former lawyer by the name of

Yokozeki who represented Japanese corporate interests. Yokozeki

testified that some Japanese clients were looking for land on Guam

suitable for a golf course, and that Yokozeki and Gill were trying to

A-6

find land for them. (Tr. VII p. 33) The suitability depended on the

terrain and the proximity of water. (Tr. VII p. 33).

Meanwhile, Gill had asked Anderson if there was any other

property "on this kind of a situation," that is, where title to the land was

"no good.” (Tr. IX p. 9). Anderson told Gill of Lots 521 & 522

Merizo, and Gill knew the lots were "no good.” (Tr. VIII p. 82).

Anderson showed Gill a topographical map of Merizo Lots 52!

& 522. Exhibits 63A, 63B and 63C. Anderson reported the

conversation that occurred while viewing these maps as follows:

Anderson: This is the sketch (Exhibit 63A) that I took over to Francis

Gill's office. I present it to him that he would like to increase the area

that he wants to claim from what's showing on the tax roll area to be 32

and 33 hectares. He asked me to draw a line that would increase this

size around here for his proposed boundary of place name (sic) Agua

and Gumoje. After we sit down and discuss this, he said, "I need this

area because I have about five clients who are interested in golf course

area." *5 Gill then marked the area of government land on Exhibit 63A

in yellow which he wished Anderson to include in a survey map.

Mr. Anderson: Yes, we started--] told him that the area your

[sic] trying to claim is just beyond anybody's control. (Indicating). The

portion here showing contains an area of 91 hectares. The other portion

here containing an area of 41 hectares, and the other portion nght here

contains an area of 164 hectares.

Mr. Ramey: And what did he say?

Mr. Anderson: He asked me to do a survey work and | said, "!

can't do this no ways; impossible to claim that much."

Mr. Ramey: Why? Why would it be impossible?

Mr. Anderson: The--based on the tax roll area from thirty two

to--it increases so much.

***

Mr. Ramey: Okay. And what did he say?

Mr, Anderson: And he said, "Okay then let's come back and

what about if we take the best land out of it."

Mr. Ramey: Take the what land?

Mr. Anderson: The best portion out of it, which in the

topography map, the closer the line together it would show a .. like a

cliff or a very steep hill. The lines that ... further apart shows the area

A-7

on ground that would be a nice slope or level area. (Tr. VIII p. 84-85).

When Anderson refused to perform this survey for $75,000.00, Gill

offered him $150,000.00 and Anderson agreed. (Tr. VIII p. 86).

Anderson mapped the property as directed by Gill and

submitted the map to Land Management without prior checkprnnt

approval. Lot 521 was subdivided into Lot 503-NEW and 521-1. The

map for this lot was approved in September 1989. It showed an area of

192.05 hectares, or 1.8 million square meters. Exhibit 11A. The prior

map of the exact same lot showed an area of 33 hectares. Exhibit 10A.

On that evidence, the jury returned verdicts of guilty on each

count.

ARGUMENT ON APPEAL

Defendant Gill argued in the initial briefing that there was

insufficient evidence. In Appellant's Opening brief, there was almost

no discussion in support of the argument. The brief consisted mainly

of extensive excerpts of the transcript relating to the following

testimony: (a) Frank Castro's testimony that recording a map does not

guarantee ownership of the property but is a step required in a land

registration proceeding. (b) Frank Castro's testimony that there is no

land registration decree stating that the claimed parcels of land were

government of Guam land. (c) Frank Castro's testimony that the

government of Guam does not know exactly how much land it owns.

(d) Thomas Anderson's testimony that Gill himself never falsified any

public records, and that the maps were not recorded as public

instruments before Anderson manipulated them to encompass

government land. (e) Joseph B. Cruz’ testimony that he never met

defendant Gill until the time of trial.

Because of the inadequacy of the initial briefing, the Court

issued an Order that for each count of conviction, Appellant was to

specify the grounds upon which the appeal is based. If the appeal was

based on insufficiency of the evidence with respect to any count,

Appellant's counsel was directed to discuss with specificity the

deficiencies in the proof which requires reversal of each such count. If

the appeal of any count of conviction was based on other grounds, those

were to be stated with specificity, with full discussion and legal

A-8

authorities to support such ground. The Panel ordered, "each count

should be stated and discussed separately.”

*6 Accordingly, by this Court's Order of November 10, 1993,

Defendant's pre-argument brief in this case was vacated and counsel for

Appellant was directed to submit new briefing. The government of

Guam was permitted to file an Opposition to the Supplemental Bnef.

Defendant filed his Supplemental Brief on November 29, 1993.

The Territory of Guam filed their Opposition Brief on December 14,

1993. The November 10, 1993 Order stated that there would be no

further oral argument. The case now stands submitted before the

Appellate Panel on the Supplemental Briefs.

In his Supplemental Brief, the grounds for appeal appear to be:

1. Under Guam's "Theft of Property” statute, 9 G.C.A. § 43.30(b), one

must be in a fiduciary relationship with the property owner in order to

commit that offense. 2. "An attempt to commit an act which is not a

crime cannot be the basis of a criminal conviction." 3. There is no

evidence that Gill was empowered to dispose of land. 4. Gill did not

falsify anything that was already a "record" and therefore cannot be

guilty of falsifying public records. 5. There is no evidence that Gill

falsified a record.

STANDARD OF REVIEW

When a criminal defendant asserts that there is insufficient

evidence to sustain the conviction, this Court reviews the evidence in

a light most favorable to the prosecution to ascertain whether any

rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. U.S. v. Necoechea, 986 F.2d 1273

(9th Cir.1993). The Ninth Circuit has noted that this is a highly

deferential standard. U.S. v. Rubio- Villareal, 967 F.2d 294 (9th Cir.

en banc 1992).

Appellant has also raised issues of statutory interpretation and

impossibility. Issues of statutory construction are reviewed de novo.

United States v. Martinez-Jiminez, 864 F.2d 664 (9th Cir.1989).

Certain of the issues presented as "subsidiary issues" to his sufficiency

of the evidence argument were presented in a motion to dismiss, Tr. I,

Il, IX p. 175, and as such receive de novo review. These are: the issue

whether it was necessary for Gill to have been in a fiduciary capacity

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to the property in question, whether he can be guilty of an Attempt if

the underlying conduct could not have constituted a crime, and whether

Gill acted in a fiduciary capacity with respect to the property.

The argument with respect to the Tampering with Public

Records conviction, (that Appellant did not tamper with anything not

already a record) does not appear in the record below. Therefore, this

Court reviews under the plain error standard. United States v. Benny,

786 F.2d 1410 (9th Cir.1986), cert. den. 479 U.S. 1017 (1986).

DISCUSSION

1. Sufficiency of the Evidence

Gill was charged and convicted of (1) Conspiracy to Commit

Theft, (2) Three counts of Attempted Theft (one for Piti, one for

Umatac, one for Merizo) and (3) Conspiracy to Tamper with Public

Records. [FN9] Appellant argues that there was insufficient evidence

to sustain these convictions.

A. Conspiracy to Commit Theft of Immovable Property

*7 The elements of Conspiracy to Commit Theft of Immovable

Property are, in § 13.30 and § 43.30(b) respectively, (1) a conspiracy

(2) on the part of the defendant to transfer immovable property of

another or any interest therein with intent to deprive him thereof. A

conspiracy consists of an agreement with one or more persons that one

of them will engage in conduct which constitutes a crime, with the

intention of engaging in, promoting or assisting in the conduct which

constitutes such crime, and that one perform an overt act in pursuance

of the agreement. 9 G.C.A. § 13.30.

While drawing a map alone does not constitute the crime of

theft, fabrication of such maps and the taking of significant steps to

legitimize such fabrication, coupled with intent to take government

land, constitute the crime Conspiracy to Commit Theft. There was

evidence that he meant to hold out to the public that he owned these

lands by recording the maps. (Tr. VII p. 125). He was aware of

Anderson's "good contacts" at Land Management. (Tr. VII p. 70). He

was aware and in one instance was surprised at how well Anderson's

contacts performed. ("No shit, maps approved?" followed by laughter;

Tr. VII p. 126). He took title to land whose title Anderson had told him

was "no good" as the title had been manufactured by Anderson and his

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“contacts.” (Tr. VII & VIII passim ). There is evidence that Gill

intended to sell the Umatac and Merizo land that he was purchasing

from Anderson to Japanese investors. (Tr. VII p. 33). There was a

great deal of evidence that Gill exercised ownership rights over land he

knew was not his, i.e.; subdividing the land. Exhibits 4A, SA, 6A, 7A

and 8. There was evidence of a conspiracy between he and Anderson

to steal government land. (Tr. VII pp. 119, 126; Tr. VIII pp. 84- 85).

Intent can be inferred, and government's counsel is correct that

otherwise innocent acts, when viewed in context, can justify a jury's

determination of guilt. U.S. v. Calabrese, 825 F.2d 1342, 1348 (9th

Cir.1987). Evidence in this case revealed that Anderson and Gill

agreed to include government land in their maps, and that they did so

with the intention of registering the land and selling it. The evidence

of recordation of the maps, as required by Guam's land registration

laws, satisfies the overt element requirement of conspiracy.

Accordingly, there was sufficient evidence to sustain that conviction.

B. Attempted Theft of Immovable Property

The elements of Attempted Theft of Immovable Property,

found in § 13.10 and § 43.30 respectively, are (1) an attempt (2) on the

part of the defendant to transfer immovable property of another or any

interest therein with intent to deprive him thereof. An Attempt under

Guam law is defined as when, with intent to engage in conduct which

would constitute a crime were the circumstances as he believes them to

be, one performs an act which constitutes a substantial step toward

commission of the crime. Although the record is clear that the transfer

never occurred, that is, that the Land Registration proceeding was never

completed, there was sufficient evidence of the attempt. Among the

many acts which would constitute a substantial step toward the

completion of theft of immovable property, one of the most obvious

was the recordation of maps as required by the Land Registration Act,

§ 1157.4, § 157.5. With respect to the Piti lot, the evidence shows that

a Map was recorded as document number 414584 showing Gill's lot to

be 3 hectares (instead of 1.3 hectares). With respect to the Umatac lot,

a map of Lot 154A showing the size of the lot to be 10 hectares (instead

of 3 hectares) was recorded at Land Management as document number

417952. Gill's map showing Lot 503NEW Merizo to consist of 182.05

hectares (instead of 32 and 33 hectares) was recorded at Land

A- 1]

Management as document number 424063. Each recordation

constituted a substantial step toward each crime which, if completed by

a Land Registration proceeding, would have constituted the crime of

theft of immovable property.

of Government Ownership of the Land as an Element of

the Crime of Theft of the Immovable Property of

Another.

*8 One of the grounds for reversal argued by Appellant's

counsel is that the government did not prove that the land obtained

through the false maps was indeed government land. The Panel notes

that the conviction is for theft of the immovable land "of another,” and

therefore, the government would have to prove that defendant Gill did

not own the land in order to prove the elements of § 43.30(b). [FN 10]

Appellant's argument fails for the primary reason that the

government indeed presented evidence that the land in question was

government land. The government elicited testimony from Frank

Castro, Director of Land Management, that the land in question was

government land. (Tr. III pp. 18-20). The Director of Land

Management based his conclusion on the fact that the land in question

in this case was transferred to the government of Guam by the United

States. (Tr. Ill pp. 16-17) The government also presented testimony of

Department of Land Management worker Jimmy Camacho that the land

being claimed was government land. (Tr. IV p. 114). While the

evidence that it was government land was not supported by the

document creating title in the government of Guam, there was

nonetheless adequate and compelling evidence that it certainly did not

belong to appellant and that the land was government land. And, this

evidence was never contradicted.

As to defendant's contention that Castro later testified that the

government of Guam was uncertain as to how much land they own, the

issue of whether the land belonged to the government was a fact issue.

As such, it was up to the trier of fact to decide whether the government

proved that it was government land. Because Castro testified that the

land was government land, there is a factual basis for the jury's

determination that is was government land. We decline to disturb the

finding of the jury.

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Further, it is clear from the record that Appellant knew that the

land he sought was government land. because he knew the size of his

own land before the Anderson maps were begun. (Tr. VII pp. 112-13;

Tr. VIII pp. 26-32; pp. 82- 83). The record is replete with evidence

that the purpose of the scheme was to obtain land which he did not own.

This conclusion is supported by Guam law. The Panel takes

judicial notice of Title 21 Guam Code Annotated § 1202, where it is

provided that all land not owned by another owner belongs to the

government of Guam: Government Property. The government of Guam

is the owner of all land below tidewater, and below ordinary high-water

mark, bordering on tidewater within Guam; of all land below the water

of a navigable lake or stream; of all property lawfully appropriated to

its own use; of all property dedicated to the government; and of all

property of which there is no other owner.

D. Conspiracy to Tamper with a Writing or Record

A conviction for Conspiracy to Tamper with Public Records

requires that the prosecution prove (1) a conspiracy (2) on the part of

the defendant to falsify, destroy, remove or conceal, (3) knowing that

he has no privilege to do so, (4) any writing or record, (5) with intent to

deceive or injure anyone or to conceal any wrongdoing. The evidence

established that there was an agreement between Anderson and Gill to

falsify maps. Once falsified, the maps were recorded at Land

Management, thus becoming public records. Anderson and Gill knew

that the land being claimed by them in the maps was public land and

that they had no right to claim the land as their private land in a later

land registration proceeding. There was sufficient evidence to sustain

the conviction for Conspiracy to Tamper with Records.

II. Issues of Statutory Interpretation

A. Statutory Interpretation of § 43.30

*9 The first issue raised in Appellant's Supplemental Brief is

whether one can be found guilty of theft of immovable property of

another without having first been in a fiduciary capacity to that

property. This argument does not compel reversal. Neither 9 G.C.A.

§ 43.30(b) nor the Model Penal Code section from which § 43.30 was

derived contain the limitation proposed by counsel. The comments to

MPC § 223.2 [FN11] confirm that that section is designed to impose

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criminal liability regardless of the relationship between the accused and

the land, though certain exceptions are noted in that comment which do

not apply in this case. There is simply no requirement in the law that

the person charged with the crime must stand in a fiduciary relationship

to the property.

Since empowerment to dispose of the land is not an element of

the crime, lack of such evidence is not relevant.

B. An Attempt to Commit an Act which is not a Crime

The second argument posited by Appellant is that one cannot

be found guilty of attempt if the completed conduct would not

constitute a crime. In the Supplemental Brief, Appellant offers only

excerpts from the case of Commonwealth v. Henley, 474 A.2d 1115

(Pa.1985), the same legal authority argued to the trial court, stating that

if it is legally impossible to commit the crime, there cannot be criminal

culpability. The Henley case cites the example where the fisherman

believes that he is fishing illegally because he has no license, while in

fact, no license is required on the lake on which the fisherman is

fishing.

The Panel rejects this argument because the act, if completed,

would have been a crime, as is the attempt. The Guam Legislature

defined Theft of Immovable Property to be a crime when it adopted this

section of the Model Penal Code in 1978.

Cc. Whether there is a requirement that the writing

tampered with must have been a "record."

The next issue is whether Gill falsified a "record" because the

maps were not yet public records when they were created. This

argument was alluded to in the original brief, in Anderson's quoted

testimony that Gill himself never touched the maps, and that the maps

were not public records when they were being produced.

We again find Appellee's argument persuasive that the

language of the statute imposes criminal culpability for falsifying a

“writing or record." 9 G.C.A. ss 46.25 [emphasis added]. Despite the

title of the statute, there is no requirement in the statute that the writing

be a matter of public record before the falsifying is accomplished. The

falsification is in the making of the maps.

Therefore, Appellant's contention that "there is no evidence that

Gill conspired to falsify anything that was already a record," is

A- 14

irrelevant to the analysis because the statute does not require that the

falsified document only be a record or first be recorded. There was a

statutory basis for the conviction, and sufficient evidence to support it.

*10 The convictions are AFFIRMED.

UNPINGCO, Judge, concurring.

To the extent that the argument presented also supports the

contention that it was impossible to complete the crime, whether legally

or factually, I further note that impossibility, whether legal or factual

[FN 12], is not available as a defense to Attempt under Guam law. The

Guam Criminal and Correctional Code, 9 G.C.A. § 13.15, provides:

Same [Attempt]: Impossibility No Defense. In a prosecution for an

attempt, it is no defense that it was impossible to commit the crime.

This code section was derived from Model Penal Code § 5.01, which

focuses on the accused's state of mind as he believed the circumstances

to be. United States v. Allen, 27 M.J. 234 (C.M.A.1988). Therefore,

| therefore reject any corollary argument that there it was impossible to

complete the crime, as Guam law, like the M.P.C., is designed to

impose culpability for criminal intent.

FN1. The Honorable Edward Rafeedie, United States District

Judge for the Central District of California, sitting by designation.

FN2. The Honorable Alex R. Munson, United States District

Judge for the District of the Northern Mariana Islands, sitting by

designation.

FN3. A hectare is equal to 2.471 acres.

FN4. The Reporter's Transcript will be designated herein by the

notation "Tr." followed by the volume of Reporter's Transcript in which

the reference is contained, followed by the page number.

FNS. A "checkprint" is a paper copy of the original Mylar draft

map that is submitted to Land Management before the Mylar map is

submitted. Surveyors submit this so that Land Management can mark

the corrections that need to be made and the surveyor can modify the

A-15

map to Land Management's specifications before the original is

submitted. (Tr. III Part Two p. 111).

FN6. There was testimony that Anderson and Joe Cruz had

frequent contact as cousins, and that Anderson had lent him up to

$15,000.00 to pay his debts, and that Cruz paid him back only a couple

of hundred dollars of that sum. (Tr. VII p. 138).

FN7. An escaped assessment is provided for in the Guam

Government Code § 19319: Property not previously assessed. If any

property has escaped assessment in one or more prior years and is

owned or claimed by the same person who claimed it or owned it

during such prior year or years, the assessor shall assess the property at

its value on the first Monday in March of every such year. Property

which has previously escaped assessment shall be treated as property

regularly assessed on the roll on which it is entered, but the entry of the

assessment shall be followed with "escaped assessment for year

FN8. The Panel takes judicial notice of the fact that Land

Registration is not the only method by which one acquires secure title

to real property on Guam. Guam's Land Registration law was borrowed

from the California Civil Code in 1953. California has since eliminated

its land registration law, and title in that state is normally secured by

title insurance, as in any other state without the land registration system.

In Guam, the two systems exist side by side, with some parcels

registered while much real estate remains un-registered, its owners

protected by the security of title insurance. Nonetheless, one can assert

title with a valid deed in the chain of title. If the dimensions of the lot

as shown in the deed are reflected in a map, this strengthens one's claim

to title to the lot. Therefore, a completed land registration proceeding

is not a prerequisite to asserting ownership in a quiet title action.

However, once adjudicated in a land registration proceeding, one's

registered title can only be set aside upon a showing of fraud.

FN9. The statutes under which Gill was charged were: 9

G.C.A. § 13.30 "Conspiracy: Definition"; 9 G.C.A. § 13.35, "Same:

A - 16

Multiple Criminal Objectives"; 9 G.C.A. § 13.40, "Same: Scope"; 9

G.C.A. § 13.60, "Attempt, Solicitation, Conspiracy: Degree of Offense

Stated"; 9 G.C.A. § 43.20(a), "Theft; Defined and Punishment

Classified"; 9 G.C.A. § 43.30(b), "Theft of Property; Defined"; and

9 G.C.A. § 46.25, "Tampering with Public Records to Deceive or

Conceal; Defined and Punished."

FN10. § 43.30. Theft of Property Defined.

sess

(b) A person is guilty of theft if he unlawfully transfers

immovable property of another or any interest therein with intent to

deprive him thereof.

FN11. The Commentary notes, The inclusion of real estate

within the definition of "property" also has the effect of extending the

theft provisions to situations where the actor secures title or other

interest in real property by deception or threat.

s*

[I}t seems clear that criminal liability for theft is appropriate in

cases where a person seeks to benefit himself or another through the

illegitimate transfer of interests in real property. There is little to

distinguish such cases from any other attempt to secure economic

benefit at the expense of another. American Law Institute Model Penal

Code Commentary, p. 167-173.

FN12. Eg.; a defendant is convicted of rape of a person who

the defendant did not know was dead at the time of the rape, thus

creating a factual impossibility, as in United States v. Thomas, 32

C.M.R. 278, 1962 WL 4490 (C.M.A.)). This is distinct from the

situation described in Henley where there was no legal requirement for

a fishing license, thus creating a legal impossibility for the crime to be

completed. Both are examples of impossibility, because the completed

conduct would have been criminal if the legal or factual impossibility

had not existed.

A-17

CERTIFICATE OF SERVICE

I, Charles H. Troutman III, a member of the Bar of the

Supreme Court of the United States and counsel of record for the

Territory of Guam, Respondent herein, hereby certify that on

March 28, 1996, pursuant to Rule 29, Rules of the Supreme Court,

I served three copies of the foregoing Brief in Opposition to

Petition for Writ of Certiorari on the other party herein, as follows:

On Francis L. Gill, Petitioner herein, by depositing such

copies in the United States Post Office or mail box, Agana, Guam,

with first class postage prepaid, properly addressed to the post

office address of Jerry E. Hogan. The above-named Petitioner's

counsel of record, at HOGAN & LINK, P.C., 104 Reflection

Center, 222 Chalan Santo Papa, Agana, Guam 96910.

All parties required to be served have been served.

Dated: March 28, 1996.

AX IG A a a, ‘Cz ud

CHARLES H. TROUTMAN III

Compiler of Laws

Department of Law

238 F.C. Flores St., Suite 201

Agana, Guam 96910-5185