694 F.2d 565 (9th Cir. 1981), 80-1233, People of the Territory of Guam v. Okada

Docket Nº:80-1233.
Citation:694 F.2d 565
Party Name:PEOPLE OF THE TERRITORY OF GUAM, Plaintiff-Appellant, v. Concepcion OKADA, Defendant-Appellee.
Case Date:April 19, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 565

694 F.2d 565 (9th Cir. 1981)



Concepcion OKADA, Defendant-Appellee.

No. 80-1233.

United States Court of Appeals, Ninth Circuit

April 19, 1981

Argued and Submitted Nov. 13, 1980.

Withdrawn July 15, 1981.

Decided Dec. 9, 1982.

Page 566

R. Barrie Michelson, Acting Criminal Deputy, Agana, Guam, for plaintiff-appellant.

Howard Trapp, Trapp, Cayle, Teker, Lacy, Yamaoka & Schnabel, Agana, Guam, for defendant-appellee.

Appeal from the District Court of Guam, Appellate Division.

Before SKOPIL, FLETCHER and PREGERSON, Circuit Judges.

FLETCHER, Circuit Judge:

Concepcion Okada was convicted in the Superior Court of Guam on charges of delivering heroin. The Appellate Division of the District Court of Guam (District Court) reversed the conviction and dismissed the indictment, holding that the Government's failure to preserve certain discoverable evidence violated Okada's due process rights. The People of the Territory of Guam brought this appeal. Okada moved to dismiss, on the ground that Guam lacks statutory authority to appeal from the reversal of a conviction by the Appellate Division of the District Court of Guam. We postponed consideration of Okada's motion until the appeal was heard on the merits.

Our previous opinion, filed April 19, 1981, has been vacated. We now conclude that Guam's appeal is not authorized by statute. Accordingly, we grant Okada's motion and dismiss the appeal.


It has long been established that the Government may not appeal in a criminal case in the absence of express statutory authority. United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975); Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442 (1957); United States v. Sanges, 144 U.S. 310, 318, 12 S.Ct. 609, 612, 36 L.Ed. 445 (1892). The Supreme Court has explained that " 'appeals by the Government in criminal cases are something unusual, exceptional, not favored,' ... at least in part because they always threaten to offend the policies behind the double jeopardy prohibition." Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967) (quoting Carroll, 354 U.S. at 400, 77 S.Ct. at 1336). But the rule prohibiting Government appeals except where expressly authorized by statute extends "over and above the constitutional protection against double jeopardy." DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962). Although Guam's appeal would not violate the double jeopardy clause, 1 we must nevertheless dismiss unless Guam can show that its appeal is expressly authorized by statute.

Page 567

Pursuant to 28 U.S.C. Sec. 1291 (1976), this court has jurisdiction over "all final decisions of ... the District Court of Guam ... except where a direct review may be had in the Supreme Court." However, section 1291 alone does not provide the necessary authority for Government appeals in criminal cases. Arizona v. Manypenny, 451 U.S. 232, 246, 101 S.Ct. 1657, 1666, 68 L.Ed.2d 58 (1981); DiBella, 369 U.S. at 130, 82 S.Ct. at 659-60; Umbriaco v. United States, 258 F.2d 625, 626 (9th Cir.1958); Virgin Islands v. Hamilton, 475 F.2d 529, 531 (3d Cir.1973).

Hamilton provides a close parallel to the present case. The District Court of the Virgin Islands had reversed a criminal conviction, and the Government of the Virgin Islands brought an appeal in the Third Circuit. The Third Circuit rejected the suggestion that section 1291, standing alone, authorized the Virgin Islands' appeal. Finding no other statutory authorization for the appeal, the court dismissed for lack of jurisdiction. After reaching this result, the court noted that its conclusion was

reinforced by the fact that under the local law of the Virgin Islands the defendant alone has the right in a criminal case to appeal to the district court from a judgment of the municipal court. 4 V.I.C. Sec. 33.

475 F.2d at 531. Guam contends that this case is distinguishable from Hamilton because Guam, unlike the Virgin Islands, has authorized the Government to appeal from some superior court judgments in criminal cases. See Guam Crim.Proc.Code Sec. 130.20(a) (1977). 2 In Guam's view, section 130.20(a) provides authority for appeals to this court, as well as for appeals to the district court.

In Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981), the Supreme Court discussed the statutory authority necessary for a Government appeal in a criminal case. The defendant in Manypenny was a federal officer charged with a state crime, who had removed his case to federal court pursuant to 28 U.S.C. Sec. 1442(a)(1) (1976). The officer was convicted, but the trial court entered a judgment of acquittal. Although state law would have permitted an appeal by the state within its own court system, no statute expressly authorized the state to appeal from federal district court to the federal court of appeals. 3

The Supreme Court held that the statute authorizing an appeal within the state court system provided sufficient authority for the state's appeal in federal court. The Court reasoned that "[t]he need to restrict appeals by the prosecutor reflected a prudential concern that individuals should be free from the harassment and vexation of unbounded litigation by the sovereign." 451 U.S. at 246, 101 S.Ct. at 1666...

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