999 F.2d 397 (9th Cir. 1993), 92-10580, People of Territory of Guam v. Muna

Docket Nº:92-10580.
Citation:999 F.2d 397
Party Name:PEOPLE OF TERRITORY OF GUAM, Plaintiff-Appellee, v. Benjamin Meno MUNA, Defendant-Appellant.
Case Date:July 13, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 397

999 F.2d 397 (9th Cir. 1993)

PEOPLE OF TERRITORY OF GUAM, Plaintiff-Appellee,

v.

Benjamin Meno MUNA, Defendant-Appellant.

No. 92-10580.

United States Court of Appeals, Ninth Circuit

July 13, 1993

Argued and Submitted June 15, 1993.

Page 398

James Michael Maher, Maher & Thompson, P.C., Agana, Guam, for defendant-appellant.

John N. Glang, Asst. Atty. Gen., Prosecution Div., Agana, Guam, for plaintiff-appellee.

Appeal from the United States District Court for the District of Guam, Appellate Division.

Before: LAY, [*] HUG, and SCHROEDER, Circuit Judges.

HUG, Circuit Judge:

Benjamin Meno Muna appeals the judgment of the Appellate Division for the District Court of Guam affirming his jury conviction in the Guam Superior Court for robbery, attempted robbery and criminal sexual assault. Muna contends that the Guam Superior Court made a variety of legal errors both prior to and during his trial. The Appellate Division had jurisdiction under 48 U.S.C. § 1424-3(b). We have jurisdiction under 48 U.S.C. § 1424-3(c), and we affirm.

I.

FAILURE TO DISMISS THE INDICTMENT

Muna argues that the trial court erred by failing to dismiss the indictment against him on the ground that the prosecutor failed to present certain exculpatory evidence

Page 399

to the grand jury, in violation of 8 Guam Code Ann. § 50.46. Specifically, Muna contends that the prosecutor failed to inform the grand jury of (1) a photographic lineup in which the victims were unable to identify Muna, and (2) an initial alibi he gave police during his interrogation.

The Guam statute upon which Muna relies, 8 Guam Code Ann. § 50.46, provides: "The grand jury shall receive only evidence presented to it by the prosecuting attorney but the prosecuting attorney shall submit any evidence in his possession which would tend to negate guilt and the grand jury shall weigh all the evidence submitted." Although the statute addresses the prosecutor's duty to present exculpatory evidence, it does not specify the conditions under which dismissal of the indictment or any other action would be appropriate to remedy a breach of that duty. Accordingly, we turn to federal law to determine whether dismissal of the indictment was required in this case. 1

Dismissal of an indictment is considered a "drastic step" and is generally disfavored as a remedy. See United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir.1985). The standard for determining whether error in the grand jury proceedings justifies dismissal of the indictment differs when it is considered prior to or after the conclusion of a trial. When the trial judge considers the issue prior to the conclusion of the trial, the inquiry is whether the defendant has been prejudiced by the error. Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988). Prejudice is demonstrated " 'if it is established that the violation substantially influenced the...

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