243 F.3d 1109 (9th Cir. 2001), 99-10552, Commonwealth of the N. Mariana Islands v. US.

Docket Nº:99-10552
Citation:243 F.3d 1109
Party Name:COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS,Plaintiff-Appellee, v. JOSEPH A. BOWIE, Defendant-Appellant.
Case Date:January 10, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1109

243 F.3d 1109 (9th Cir. 2001)



JOSEPH A. BOWIE, Defendant-Appellant.

No. 99-10552

United States Court of Appeals, Ninth Circuit

January 10, 2001

Argued and Submitted November 13, 2000

Amended March 23, 2001

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G.Anthony Long, San Jose, Saipan, MP, for the defendantappellant.

Kevin A. Lynch, Office of the Attorney General, Commonwealth of the Northern Mariana Islands, Saipan, MP, for the plaintiff-appellee.

Appeal from the Supreme Court of the Northern Mariana Islands Ramon G. Villagomez, Associate Justice, Presiding. D.C. No.CR-94-00013

Before: Procter Hug, Jr., Chief Judge, Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.


The Opinion filed January 10, 2001, and appearing at 236 F.3d 1083 (9th Cir. 2001) is amended as follows:

Page 1095, immediately following the last sentence before the heading "CONCLUSION," insert the following language:

The Attorney General argues that without actual proof of perjury in the record as it now stands, it is premature to order a new trial. The Attorney General asks us to remand this matter to the trial court for a full evidentiary hearing to determine whether any of the witnesses actually lied as suggested by the letter. As support for this position, the Attorney General notes that in the controlling cases, the record justified the conclusion that perjury did in fact infect the trial and result in a denial of due process. The Attorney General's argument misses the mark in this case.

First, we cannot help but note the irony in an argument that asks years after a trial for an opportunity to do what the Constitution required of the proponent of the argument before the trial began to ensure that it would be fair. It is the Attorney General who is directly responsible for what he now says is unclear from the record and for the deficiencies in the trial that took place. Given the manifest reason to question the veracity of the prosecution's witnesses, the Constitution required a prompt pretrial investigation of the integrity of the government's evidence before the witnesses were called to the stand. This requirement is not satisfied by a tardy evidentiary hearing after the fact. Although the prosecution had leverage before the trial to get to the truth with its witnesses, it is not unlikely now that the Fifth Amendment will shield them from the inquiry the prosecution wishes to launch. By committing the witness under oath to a certain story, an admission now of untruthfulness might well unveil a crime.

Second, when Reyes's counsel attempted to introduce handwriting evidence to establish that Reyes did not write the letter, the Attorney General's representative objected and blocked evidence on a crucial part of the issue it now says it wants to examine.

Third, the record as it stands establishes bad faith with regard to this issue on the part of the Attorney General's Office prior to and during the trial, i.e., a

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knowing violation of its ethical obligations.

In conclusion, the clear defects in Bowie's trial were the direct result of the prosecutor's pretrial constitutional failure to guard against improbity in the trial process, a failure which rendered the trial itself patently unfair in due process terms. The prosecution saw fit without prophylaxis to call to the stand witnesses whom it had clear reason to believe might have conspired to lie under oath. The manner in which the trial unfolded leaves us with the definite conviction that the process itself lacked fundamental fairness and delivered a palpably unreliable result. In this connection, the principles which compel our decision here are not designed to punish society for the misdeeds of a prosecutor, see United States v. Agurs, 427 U.S. 97, 110 n.17 (1976), but to vindicate the accused's constitutional right to a fair trial, a fundamental right for which the prosecution shares responsibility with the courts.

With this amendment, the panel has voted unanimously to deny the appellee's petition for rehearing. The petition for rehearing is DENIED.


TROTT, Circuit Judge:

Appellant Joseph A. Bowie ("Bowie") appeals a judgment originating from the Superior Court of the Commonwealth of the Northern Mariana Islands ("CNMI") encompassing convictions for the premeditated murder in 1992 of Elaudio Laude ("Laude"), and for the kidnaping of Laude and his friend, Nilo Rivera ("Rivera"). The Supreme Court of the CNMI has signaled its affirmance of the convictions in a pro forma two-paragraph decision dated September 13, 1999, but has not yet published an opinion explaining its rationale.

Bowie asks us to reverse his convictions and to grant him a new trial, citing inter alia the Commonwealth's admitted decision before the trial not to investigate concrete documentary evidence suggesting that the prosecution's accomplice witnesses against Bowie -who had been granted leniency in return for their testimony -were conspiring to testify falsely against him.

Because we conclude that the Commonwealth's unjustifiable refusal to act deprived Bowie of liberty without due process of law in violation of the Fourteenth Amendment of the Constitution, we reverse and remand for a new trial.


We have jurisdiction over final decisions of the CNMI Supreme Court "from which a decision could be had in all cases involving the Constitution, treaties or laws of the United States." 48 U.S.C. S 1824(a). Our jurisdiction over appeals from judgments of the CNMI Supreme Court is similar to the United States Supreme Court's jurisdiction over the final judgments and decrees of the highest state courts in cases involving the Constitution, treaties, or laws of the United States. See 28 U.S.C. S 1257; Sonoda v. Cabrera, 189 F.3d 1047, 1050 (9th Cir. 1999); Santos v. Nansay Micronesia, Inc., 76 F.3d 299, 301 (9th Cir. 1996). Accordingly, we possess jurisdiction to review federal issues presented to or decided by the CNMI Supreme Court. See Milne v. Hillblom, 165 F.3d 733, 735 (9th Cir. 1999). In this case, we have examined Bowie's briefs in that court and determined that the issues raised here were squarely presented in federal constitutional terms to that tribunal.

We have cause to question our jurisdiction, however, because although the CNMI Supreme Court affirmed Bowie's convictions as to all issues raised on appeal, finding no error or abuse of discretion, that court said:

The Court in this appeal has decided to issue its decision at this time and to issue its reasoning and analysis upon its finalization at a subsequent date. The time for reconsideration or further appeal, if permissible, shall not start to run until the reasoning and analysis memorandum is entered and filed.

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The CNMI Supreme Court has not yet issued this reasoning and analysis memorandum, apparently because of turnover on the court. Thus, the jurisdictional question is whether the September 16, 1999 decision of the CNMI Supreme Court is "final."

The Government contends that the September 16th decision is an interlocutory order because the CNMI Supreme Court did not intend its decision to have the finality of a judgment, as indicated by its mandate that the time for appeal would not commence until the reasoning and analysis memorandum was issued. Bowie contends that our jurisdiction is not affected by the CNMI Supreme Court's failure to issue an explanatory memorandum because the September 16th decision conclusively affirms Bowie's conviction. We have jurisdiction to determine our own jurisdiction. See Milne, 165 F.3d at 735; Ferreira v. Borja, 93 F.3d 671, 673 (9th Cir. 1996).

The September 16th decision is not "final" in the strict sense of a "decree that leaves nothing further to be addressed by the [local] courts." American Export Lines, Inc. v. Alvez, 446 U.S. 274, 277 (1980). However, the Supreme Court has chosen not to mechanically interpret the concept of "final judgment," electing instead to recognize certain categories of judgments exhibiting sufficient characteristics of finality to warrant an assertion of appellate jurisdiction. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477-87 (1975). We have interpreted Cox as enabling us to review federal issues in cases from the CNMI Supreme Court even though further proceedings are pending, when (1) the federal issue is conclusive or will survive the further proceedings and require adjudication, or (2) the outcome in that court is preordained. See Wabol v. Villacrusis, 958 F.2d 1450, 1453-54 (9th Cir. 1992) (concluding that appellate jurisdiction existed even though the decision in question was "not final in the strict sense of a decree that leaves nothing further to be addressed").

Here, the outcome is preordained because the CNMI court unequivocally affirmed the conviction and found no error or abuse of discretion. Additionally, the federal issues raised in both courts are conclusive and will survive the further proceedings.

Thus, we conclude that the CNMI Supreme Court's September 16th decision is final for purposes of this appeal.


On November 5, 1992, Bowie and his companion Efrain Reyes became embroiled in an alcohol-fueled dispute with Rivera and Laude over a near collision between their automobiles. All four were intoxicated, and the trouble started when Rivera and Laude almost ran into a vehicle driven by Bowie. Under the pretense that they were police officers, Bowie and Efrain Reyes escorted the inebriated Rivera and Laude toEfrain's brother Mario Reyes's house. Once in the house, Rivera and Laude, who were Filipinos, were savagely beaten apparently by an array of Chamorros consisting of the Reyes...

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