Hatchett v. Government of Guam

212 F.2d 767

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 29, 1954
• Docket: 13803_1
• Status: Published

Opinions

POPE, Circuit Judge.

Hatchett was found guilty of three •offenses, one of which was the crime of involuntary manslaughter as defined in § 192 of the Penal Code of Guam. On conviction of that offense he was sentenced to imprisonment for a period of one year and one day. Two lesser terms to run concurrently were imposed on account of his conviction of the other two offenses for which he was tried at the same time. Upon this appeal from the judgment of conviction appellant contends that the judgment should be reversed for the reason that he was not afforded a trial by jury in the court below.

The record before us shows that this point was raised by the appellant for the first time in this court. The record in the District Court of Guam fails to disclose any request or demand by the defendant for trial by jury, nor does it disclose any objection to proceeding to trial in the absence of a jury. The record shows that at the appointed time the defendant appeared with his counsel, the case against him was called for trial, his counsel announced that defendant was ready, an opening statement was made on behalf of the prosecution, and witnesses were called and examined, all without any reference to the question of the absence of a jury.

Notwithstanding this state of the record, we are of the view that if the appellant was entitled under the applicable law to a jury trial, the failure to afford him one would constitute a plain error which we might notice notwithstanding the failure of defendant to bring the question to the attention of the court below.¹ Rule 52(b) of the Rules of Criminal Procedure, 18 U.S. C.A., which, as we shall shortly notice, are made applicable to the District Court of Guam, authorizes us thus to notice errors which in our own opinion are plain and which affect the substantial rights of an accused in a criminal case. Such has long been the practice of this court in respect to appeals from criminal convictions. Karrell v. United States, 181 F.2d 981, 986; Morris v. United States, 156 F.2d 525, 527.

We proceed then to a consideration of the merits of appellant’s contention that he should have been tried by jury. He asserts that he was entitled to such trial because of the provision of the Sixth Amendment to the Constitution which requires trial by jury in all criminal prosecutions. In Pugh v. United States, 212 F.2d 761, we had occasion, in dealing with the want of an indictment, to point out that the questions there in issue, namely the effect of want of indictment by grand jury and of trial by jury, raised no constitutional question for the reason that Guam was declared an unincorporated territory of the United States. Therefore appellant’s contentions based on the Sixth Amendment cannot be sustained. Balzac v. Porto Rico, 258 U.S. 298, 304, 42 S.Ct. 343, 66 L.Ed. 627.

Appellant argues that Rule 23(a) of the Rules of Criminal Procedure, which, by § 22(b) of the Organic Act, 48 U.S. C.A. § 1424(b), were made applicable to the District Court of Guam, entitled him to a trial by jury. Rule 23(a), thus incorporated by reference into § 22(b) of the Organic Act, is the only provision expressly dealing with jury trials in Guam. It reads: “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” We inquire; what are the “cases required to be tried by jury”? The only source of such a requirement must be either (a) the Constitution, or (b), some act of Congress, or (c), some act of the Guam legislature. Acts of Congress which could be interpreted as requiring certain cases to be tried by jury are § 3432 of Title 18, which by inference may require a person charged with treason or other capital offense to be tried by jury since it contemplates furnishing them with a list of the veniremen, and §§ 3691 and 3692 of the same Title providing for jury trial of certain charges of contempt. Hatchett is not charged with an offense within any of these .sections. Nor is there any law of the local legislature upon this subject. And, as we have pointed out, there is no constitutional provision requiring a case of this kind, when tried in the Island of Guam, to be tried by jury.

' In this’ connection we note the possibility 'of an argument based upon the fact that § 22(b) provides but a single system of procedure for all criminal prosecutions in the District Court of Guam. Whether the crime be one, as here, arising under the local Criminal Code, or one arising under the laws of the United States,²’ the procedure is that prescribed in the Rules of Criminal Procedure. Then, it has been suggested, since trial by jury is required in those cases involving crimes against the United States, we must deduce a congressional intent to require a jury trial in this case.

Such an argument must fail for its premise is without validity. Unquestionably it is provided that but a single system of procedure is to be followed in respect to both types of eases in the District Court of Guam. Congress has frequently provided for the territories courts having a dual jurisdiction. Characteristic of such arrangements has been provision that procedure should be the same, whether the actions therein were those arising under the laws of the United States, or otherwise, and whether the criminal prosecutions were for offenses against the local laws or for those against the laws of the United States.³

But the assumption that the prosecutions in the District Court of Guam for offenses arising under laws of the United States are “required to be tried by jury” is without foundation. The argument in support of such an assumption is that § 22(a) of the Organic Act,⁴ in providing that the court “shall have, in all causes arising under the laws of the United States, the jurisdiction of a district court of the United States”, is an express requirement of trial by jury. It is argued that since a district court of the United States could not have “jurisdiction” to try such a case without jury trial, or waiver thereof, the reference in § 22(a) to “jurisdiction” was intended to impose a similar requirement on the Guam court. This is the same argument referred to in the Pugh case, supra, and which we there rejected, holding, as we do, that the reference to “jurisdiction” means jurisdiction of the subject matter. Since there is thus no requirement of a trial by jury in such prosecutions for offenses under the laws of the United States, it cannot be argued that the fact of a uniform procedural requirement for criminal prosecutions in the District Court of Guam calls for jury trials in cases of the character of that charged to this appellant.

The committee which framed this legislation was aware of the fact that it had provided a single system of procedure governing all criminal cases in the District Court of Guam. In the analysis of the bill its Senate Report No. 2109 of July 20, 1950, U.S.Code Cong.Serv. 1950, p. 2854, said: “Section 5: Provides for a bill of rights granting the Guamanians protection against infringement of personal freedom. The bill of rights is modeled upon the Bill of Rights in the United States Constitution but does not expressly provide for trial by jury in Guam. Since Guamanians derive their tradition in law from Spain, a civil-law nation, they have little knowledge or experience in trial by jury. The Guam Congress could institute trial by jury if it so desired.”

We find no justification here for an attempt to construe Rule 23(a), as applied to the District Court of Guam, as meaning that cases such as this must be tried by jury. It says no such thing. In legislating with respect to other territories, as in the case of Porto Rico, and the Virgin Islands, Congress was not at a loss for appropriate words to express its requirement of jury trials.⁵ The absence of any such express requirement as to Guam was plainly purposeful.

During the oral argument there was discussion of the question whether the people of Guam were, or were not adapted, by education or experience, to the workings of the jury system. We have noted what was said on this subject in the committee report on the bill which became the Organic Act. We consider the question whether jury trials should be required there not to be one for our determination.

Therefore we hold that appellant’s contention with respect to his asserted right to trial by jury may not be sustained.

The only other particular in which appellant has specified error relates to his claim that the finding of guilt was clearly erroneous. His argument is based upon his claim that numerous discrepancies in the testimony of witnesses for the prosecution disclose that the evidence was insufficient to convict. Our examination of the record fails to disclose any support for this contention.

Notwithstanding we have thus found no merit in any specification of error made by appellant upon this appeal, the question remains whether, in view of the fact that Hatchett was prosecuted upon an information only, we should, notwithstanding no question was raised either here or in the court below with respect to the absence of an indictment, notice such absence as a plain error. Since one of the offenses of which Hatchett was convicted was punishable by imprisonment for a term exceeding one year, Criminal Rule 7(a) would require an indictment. Pugh v. United States, supra. The record shows there was no waiver in the manner specified in Rule 7(b). We think we should notice this failure to proceed by indictment as a plain error, under Rule 52(b), notwithstanding it was not brought to the attention of the court.

Therefore, the judgment upon the first charge, that is, adjudging appellant guilty of involuntary manslaughter, is reversed.

The other two charges upon which Hatchett was convicted, were for violations of the Guam Vehicle Code.⁶ The maximum imprisonment for either was six months. As they were misdemeanors, the court should have transferred the proceeding, as it concerned these charges, to the Island Court for determination. Public Law 17 — First Guam Legislature, §§ 62, 82. The judgment as to those charges is reversed and the proceeding remanded with directions to transfer the proceeding to the Island Court.

1 . No question of waiver of jury trial arises, for if trial by jury had been required, under Criminal Rule 23(a), hereafter cited, such waiver must be in writing.

2 . As, for example, the one in the Pugh case, supra.

3 . Most recent illustration is the Act of July 18, 1949, C. 343, 63 Stat. 445, 48 U.S.C.A. § 103a, making the Rules of Civil Procedure applicable in cases of a civil nature in the district court for the Territory of Alaska, without distinction as to whether the actions arise under laws of the United States, or under local laws. In Summers v. United States, 231 U.S. 92, 34 S.Ct. 38, 58 L.Ed. 137, the court ’ reversed a decision of this court which had held that the grant of a dual jurisdiction to the Alaska court had resulted in the existence of a different procedure in the prosecution of crimes arising out of violations of general acts of Congress from that in the prosecution of crimes defined in the Alaskan Criminal Code. Holding that the existence of such a dual procedure would be “undesirable”, and had not been intended, the court, 231 U.S. at pages 101-102, 34 S.Ct. at pages 40-41, listed a number of its earlier decisions. illustrative of the practice of Congress to provide a single uniform procedure in territories where the courts had similar dual jurisdiction. In addition to those there cited reference may be made to Ex parte Crow Dog, 109 U.S. 556, 560, 3 S.Ct. 396, 27 L.Ed. 1030; United States v. Pridgeon, 153 U.S, 48, 58, 14 S.Ct. 746, 38 L.Ed. 631; In re Terrill, 8 Cir., 144 F. 616, 619; Hornbuckle v. Toombs, 18 Wall. 648, 21 L.Ed. 968; United States v. Bisel, 8 Mont. 20, 19 P. 251.

4 . Ҥ 1424. District Court of Guam; jurisdiction ; rules of procedure

“(a) There is created a court of record to be designated the District Court of Guam’, and the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam. The District Court of Guam shall have, in all causes arising under the laws of the United States, the jurisdiction of a district court of the United States as such court is defined in section 451 of Title 28, and shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine. The jurisdiction of and the procedure in the courts of Guam other than the District Court of Guam shall be prescribed by the laws of Guam.”

5 . Thus the Act of April 32, 1900, 31 Stat. 77, known as the Foraker Act, which was construed in the case of Crowley v. United States, 194 U.S. 461, 467, 24 S.Ct. 731, 783, 48 L.Ed. 1075, provided that the District Court of the United States for Porto Rico should have jurisdiction “in all cases cognizant in the circuit courts of the United States and shall proceed therein, in the same manner as a cú'cmt court.” (Emphasis supplied.) Again, for Porto Rico, express provision was made in the Act of March 2, 1917, 39 Stat. 906 (now Title 48, § 867). For the Virgin Islands, jury trial was provided “In any criminal case originating in said district court” upon demand of either party, by § 1406c of Title 48.

6 . The information referred to Motor Vehicle Code of Guam, §§ 120(a) and 18(c). These sections, prior to the alleged offenses, had been re-enacted as § 23405, Govemment Code of Guam, (driving while under the influence of intoxicating liquor), and § 23115, Government Code.