USA v. Cruz

OCR transcription for search; preserved printed pages are authoritative

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AUTHENTICA
U.S. GOVERNM
INFORMATIO

Heather Martinez Quitugua

Law Offices of Heather Martinez Quitugua PC
238 Archibishop Flores Street, Suite 706
Hagatna, GU 96910

T: 671-486-3850

hmq@quitugualaw.com

Attorneys for Gregorio Pinaula Cruz

IN THE DISTRICT COURT OF GUAM

UNITED STATES OF AMERICA, No. 26-cr-00014
Plaintiff,
VS.
DEFENDANT’S MOTION TO DISMISS
GREGORIO PINAULA CRUZ, CHARGES ONE AND THREE OF THE
INDICTMENT
Defendant.

G

PLEASE take notice that defendant Gregorio Pinaula Cruz moves to dismiss a) Count 1 on
the ground it constitutes an impermissible duplicative charge as that in the case previously filed
and currently pending in the Superior Court of Guam arising out of the same transactions at issue
here; and b) Count 3 on the ground it violates the Second Amendment.

FACTUAL ALLEGATIONS!

According to discovery produced to date, on or about April 2, 2026 Mr. Cruz was found
asleep in a car parked at a gas pump at a gas station in Guam. Mr. Cruz’ vehicle had been there
for several hours. Guam Police Department officers arrived at the location at some point; when
they looked through the vehicle window, they saw a baggie of crystalline substance in plain view
which they believed to be methamphetamine. GPD officers had Mr. Cruz exit the car. At some
point GPD officers learned the car had been reported stolen; they conducted a search of the

vehicle and found a gun in a box in the back seat area.

1 This factual recitation is based on allegations contained in the discovery produced to date.
Mr. Cruz does not admit the veracity of any of the facts and reserves the right to amend this
factual recitation as more information is discovered.

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Mr. Cruz was charged in the Superior Court of Guam in Criminal Case No. CF0255-26
(“local case”) on April 3, 2026. See Exh. A to Declaration of Counsel. Mr. Cruz was indicted in
the Superior Court of Guam on April 27, 2026. See Exh. B to Declaration of Counsel. Among the
charges in the Indictment, Mr. Cruz was charged with Possession of a Schedule II Controlled
Substance With Intent to Deliver as a first-degree felony. The local case remains pending.

On June 3, 2026, an Indictment was returned in the instant case arising out of the same
events as alleged in the Superior Court case. Charge One of the Indictment here charges Mr. Cruz
with Possession of Intent to Distribute Five (5) grams of More of Methamphetamine
Hydrochloride. See Indictment (ECF No. 1).

ARGUMENT
1.
COUNT ONE MUST BE DISMISSED AS IMPERMISSIBLY DUPLICATIVE
OF THE PRIOR-FILED CHARGE CURRENTLY PENDING
IN THE SUPERIOR COURT OF GUAM

Count One in the instant case is duplicative of Count One in the prior-filed local case. Mr.
Cruz is charged here with possession of methamphetamine with intent to distribute in violation of
21 USC § 841. The statute makes it “unlawful for any person knowingly or intentionally ... to
manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense,
a controlled substance”, 21 USC § 841(a)(1). That he is charged with having five grams or more
of methamphetamine as a Schedule II controlled substance speaks to the penalty he faces rather
than the elements of the crime itself. In the Superior Court case, Mr. Cruz is charged with
possessing an amphetamine-based substance with intent to deliver in violation of 9 GCA §
67.401.1(a)(1). The statute makes it unlawful for a person to “knowingly or intentionally
...manufacture, deliver or possess with intent to manufacture, deliver or dispense a controlled

substance”. 9 GCA § 67.401.1(a)(1). The punishment is twenty to thirty years for the offense, or

up to life in prison. 9 GCA § 67.401.4(a), . Deliver and distribute are synonyms as both mean to

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provide. See Merriam-Webster.com/thesaurus/deliver; thesaurus.plus/related/deliver/distribute. In both cases, Mr. Cruz is being charged with possessing a Schedule II controlled substance for the purpose of putting it into the possession of someone else. Though these charges are not contained in the same charging document, they are nonetheless duplicative and improper.
While generally federal prosecution will not be barred by a state prosecution, the permissibility does not exist where, as here, there is a single sovereign charging the same charge twice. In such an instance the Double Jeopardy Clause is violated. The Double Jeopardy Clause of the Fifth Amendment provides, "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause prohibits multiple trials, multiple convictions, and multiple punishments for the same offense. United States v. Martinez, No. 22-cr-00019, 2024 WL 3028442 at *5 (D. Guam June 11, 2024) (cleaned up). The protection against multiple prosecutions is intended to protect the defendant's "valued right to have his trial completed by a particular tribunal", i.e., to have his case decided by the originally empaneled jury or assigned judge. Arizona v. Washington, 434 U.S. 497, 503 (1978). The protection also is intended to prevent "the State with all its resources and power" from making "repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88 (1957).
A. The U.S. Government and Guam are the same sovereign.
The Double Jeopardy Clause is not offended where a single act that gives rise to distinct offenses violates the laws of two separate sovereigns, i.e. state and federal; in such an instance the individual may face successive prosecutions. Commonwealth of Puerto Rico v. Sanchez Valle, 579 U.S. 59, 62, 66-67 (2016). The determination of what constitutes a "sovereignty" does not concern itself with "common indicia" of sovereignty, however: it does not examine the extent of
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control the one prosecuting authority wields over the other, the extent to which an entity exercises self-governance, or a government's ability to enact and enforce its own criminal laws. Id. at 67. Instead, the inquiry is the "ultimate source" of the power undergirding the respective prosecutions. Id. at 62, 68 (cleaned up). As early as 1907 the Supreme Court held that in contrast to the relationship between the federal government and different states, the then-U.S. territory of the Philippines was not a sovereign distinct from the United States:
The government of a state does not derive its powers from the United States, while the government of the Philippines owes its existence wholly to the United States, and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount. So that the cases holding that the same acts committed in a state of the Union may constitute an offense against the United States and also a distinct offense against the state do not apply here, where the two tribunals that tried the accused exert all their powers under and by authority of the same government, that of the United States.
Grafton v. United States, 206 U.S. 333, 354-55 (1907). Grafton held that a soldier who had been acquitted by a federal court martial in the Philippines could not subsequently be tried for the same offense in a Philippine territorial court because both courts derived their authority from the United States. Id.
Cases since Grafton have upheld the lack of sovereignty of territories. In 2016, the Supreme Court held that Puerto Rico and the United States are not separate sovereigns for double jeopardy purposes as Puerto Rico ultimately derives its prosecutorial authority from Congress: "the dual-sovereignty rule test we have adopted focuses on a different question: not on the fact of self-rule, but on where it came from". Sanchez Valle, supra, at 74, 78. The Court noted the history of Puerto Rico, including the fact that it had been a colony under Spanish sovereignty at the time it was acquired by the United States, and could only exercise such power as was delegated to it by Congress. Id. at 75. While recognizing Puerto Rico's right to enact and enforce criminal law derived from Puerto Rico's Constitution, the Court again noted the ultimate source of power nonetheless remained the U.S. Congress. Id. at 76.
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Guam is an unincorporated territory of the United States. 48 USC § 1421a. The territory was created through an act of the United States Congress, and the Organic Act of Guam dictates how Guam is to run itself including for example, setting forth different branches of government, and establishment of public bodies and offices. Id. at 1421a, 1421g. The Congress of the United States has the right to annul any bills enacted by the Guam Legislature. 48 U.S. § 1423i. Following the logic of Sanchez Valle and Grafton, Guam is not a sovereign for double jeopardy purposes because, as with Puerto Rico, its authority comes from Congress. Indeed, the same has been found in other contexts. See, e.g., Ngiralngas v. Sanchez, 858 F.2d 1368 (9th Cir. 1988) (addressing § 1983 cases; unlike states Guam has no sovereign status); Sakamoto v. Duty free Shoppers, Ltd., 764 F.2d 1285 (1985) (addressing Commerce Clause; limitations on state governments to burden commerce inapplicable to Guam as Guam is not a state).
B. Count One in the Indictment is the same as Count One in the Superior Court Indictment and therefore must be dismissed.
Because the federal government is not a separate sovereign, it cannot pursue the same charge here as already is being pursued in the Superior Court of Guam. Cases addressing multiplicitous charges provide some insight as to what appears to be a unique situation here.
A charging document that charges a single offense in two counts violates the rule against multiplicity. United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976), cert. denied sub nom. UCO Oil Co. v. United States, 430 U.S. 966 (1977). It has long been understood that separate statutory crimes need not be identical either in constituent elements or in actual proof in order to be "the same" within the meaning of the constitutional prohibition. Brown v. Ohio, 432 U.S. 161, 164 (1977).
A multiplicitous charging document is considered improper because it may "allow multiple punishments for a single criminal offense." United States v. Patterson, 760 F. Supp. 2d 1116, 1120 (D.N.M. 2009). Moreover, the inherent dangers and impropriety of multiplicitious charging
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documents include but are not limited to increased bail amounts and inflation of maximum possible sentence so that defendants cannot make a fully-informed decision regarding their case. The appropriate remedy for a multiplicitous Information is for the Court to exercise its discretion and require the prosecution to choose between multiplicitous counts before trial and dismiss the remaining counts. United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990). See also United States v. Roy, 408 F.3d 484, 492 n. 4 (8th Cir. 2005) ("This method of procedure would adequately inform the defendant of each allegation that he must defend against while solving any potential multiplicity problems."); United States v. Phillips, 962 F. Supp. 200, 201 (D.D.C. 1997) (within court's discretion to require prosecution to choose between multiplicitous counts before trial). United States v. Johnson, supra, 130 F.3d at 1426 (within court's discretion to require prosecution to choose between multiplicitous counts before trial).
To resolve whether the counts are multiplicitous, courts look to legislative intent to impose multiple punishments for the same conduct, applying the test set forth in Blockburger v. United States, 284 U.S. 299 (1932) ("Blockburger"). Under Blockburger, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, supra, 284 U.S. at 304. Nonetheless, separate statutory crimes need not be identical either in constituent elements or in actual proof in order to be the same within the meaning of the constitutional prohibition. Brown v. Ohio, supra, 432 U.S. at 164. As noted previously, the elements of both charges are the same. Based on the Blockburger analysis, the two counts which both charge Mr. Cruz with possession with intent to deliver/distribute are the same offense arising out of the same transaction. If these same charges were in one court, they would be considered multiplicitous and one would have to be dismissed.
Though hee the same counts are contained in different charging documents, the impropriety is still present. Mr. Cruz is being held to answer to the same charges arising out of
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the same event in two different courts. Advancing these same two duplicative charges in two different courts is impermissible. While could be considered as forum shopping or one prosecution hedging its bet as against the other, as set forth above the same charge cannot be asserted by both the federal and local prosecutors as both are instrumentalities of the same sovereign. Accordingly, the court should exercise its discretion and dismiss Count One in the instant case in favor of Count One in the previously filed Superior Court case.
II. COUNT 3 VIOLATES THE SECOND AMENDMENT AND MUST THEREFORE BE DISMISSED
Mr. Cruz is charged with violating 18 USC 922(g)(3) which makes it unlawful for a drug user to be in possession of a firearm. The unconstitutionality of § 922(g)(3) recently was addressed in United States v. Hemani, No. 24-1063, 608 U.S. _ , 2026 WL 1751710 (S. Ct. June 18, 2026). For the same reasons asserted in Hemani, § 922(g)(3) is unconstitutional as applied here because the statute bans Mr. Cruz from possessing a gun automatically from the moment he became an unlawful user of any controlled substance, regardless of the substance, the amounts, whether his drug use has ever made him a danger to himself or others, why he keeps a gun, and how safely he does so.
The Second Amendment protects the right of all Americans to keep and bear firearms. District of Columbia v. Heller, 554 U.S. 570, 581 (2008). The Supreme Court has expressly rejected the notion that the right to bear arms belongs only to law abiding, responsible citizens. United States v. Rahimi,602 U.S. 680 (2024). Where, as with § 922(g)(3), the government infringes on the Second Amendment, the Court's analysis examines whether the Second Amendment covers the conduct in question and if so, the Constitution presumptively protects it. New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 24 (2022). To overcome the presumption, the government bears the burden of showing its regulatory efforts are consisting with historical traditions in the United States. Id. at 28-30.
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In Hemani, the defendant and his family were suspected of terrorism activities, his house was searched, he turned over a gun, and revealed to law enforcement he used marijuana a few times a week. Id. at *4. He was then charged with being a drug user in possession of a gun in violation of § 922(g)(3). Id. Hemani moved to dismiss the charge as an unconstitutional infringement of his Second Amendment rights. Id. Specifically, Hemani argued the government could not justify § 922(g)(3)'s regulation by demonstrating it is consistent with the Nation's historical tradition of firearm regulation as required by New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 24 (2022). Id. The government agreed the statute burdened a class of people from possessing any firearm for any purpose but pointed to laws addressing regulation of firearms for habitual drunkards to demonstrate a tradition of firearm regulation; however, the Court found such laws uncompelling as the laws targeted different kinds of people, and did so for different reasons, and operated in different ways. Id. at *12. In particular, the Court noted the laws focusing on habitual drunkards targeted that ground because those individuals' drinking rendered them practically incapacitated and incapable of managing their affairs. Id. at *7. In rejecting the analogy, the Court noted the statute "sweeps in large numbers of people without regard to whether their substance use has the kind of incapacitating effect on them that historical habitual drunkard laws normally required." Id. Justice Thomas invited facial challenges to § 922(g) on the basis it exceeds Congress's enumerated power to regulate interstate commerce. Id. at *12 (Thomas, J. concurring).
The same rationale of Hemani is present here. Even assuming arguendo the gun found belonged to Mr. Cruz, the government cannot justify criminalizing his gun possession simply based on the fact Mr. Cruz allegedly uses drugs. Accordingly, Count 3 must be dismissed. In the alternative, should the government assert it intends for its prosecution to have individualized proof Mr. Cruz's alleged drug use renders himself a danger to himself or others or proof that a certain drug always renders its users dangerous, Mr. Cruz requests the government be
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required to file a motion for a Bill of Particulars, as such evidence does not appear to have been

produced.

CONCLUSION

For the foregoing reasons, as well as any as may be advanced at a hearing, Counts 1 and 3

should be dismissed.

Dated: July 14, 2026

Respectfully submitted,

LAW OFFICES OF HEATHER MARTINEZ QUITUGUA PC

By: | C6 | YAS y Alu ? bee

Heather M. Quitugua
Attorneys for Defendant Gregorio Pinaula Cruz

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