Com. of Northern Mariana Islands v. Atalig

Citation723 F.2d 682
Decision Date11 January 1984
Docket NumberNo. 83-1094X,83-1094X
PartiesCOMMONWEALTH OF the NORTHERN MARIANA ISLANDS, Plaintiff-Appellant, v. Daniel ATALIG, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Rexford C. Kosack, Saipan, CM, Peter Donnici, San Francisco, Cal., for plaintiff-appellant.

William M. Fitzgerald, Saipan, CM, for defendant-appellee.

Jacques B. Gelin, Washington, D.C., for intervenor, United States.

Appeal from the United States District Court for the Northern Mariana Islands, Appellate Division.

Before WALLACE, SNEED and ANDERSON, Circuit Judges.

SNEED, Circuit Judge:

This case raises issues concerning the appellate jurisdiction of this court and the application of the Sixth and Fourteenth Amendments to a trust territory.

A commonwealth trial court of the Northern Mariana Islands convicted Daniel Atalig of possession of marijuana in violation of local law. The Appellate Division of the District Court for the Northern Mariana Islands reversed the conviction on the grounds that Atalig was denied the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments to the Constitution. We reverse the judgment of the district court.

I. FACTS AND PROCEEDINGS BELOW

Appellee Daniel Atalig is a citizen of the Trust Territory of the Pacific Islands who resides on the island of Rota, one of the Appellant Commonwealth of the Northern Mariana Islands (Commonwealth or NMI) charged Atalig by information with possession of marijuana in violation of 63 Trust Territory Code Sec. 292(3)(c). The maximum penalty for violating this section is one years imprisonment, a $1,000 fine, or both. The NMI provides jury trials in criminal cases only for offenses punishable by more than five years imprisonment or a $2,000 fine. 5 Trust Territory Code Sec. 501(1). A commonwealth trial court denied Atalig's demand for trial by jury and his motion to suppress the marijuana. Atalig subsequently entered a plea of nolo contendere. The trial court convicted Atalig and sentenced him to one year probation with special conditions that he serve thirty days in jail and pay a $1,000 fine.

                Northern Mariana Islands. 1   Atalig rode as a passenger and shipped two boxes as cargo on a commercial airline flight from Rota to Saipan.  When he arrived in Saipan, Atalig recovered the boxes from the cargo claim area and presented them to an agricultural quarantine inspector.  Atalig opened the boxes and the inspector discovered plastic bags filled with approximately five pounds of marijuana
                

Atalig appealed his conviction to the Appellate Division of the United States District Court for the Northern Mariana Islands. 2 The appellate division held that Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886 (1970), require trial by jury in prosecutions in commonwealth courts for serious criminal offenses. Section 501 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant) and 5 Trust Territory Code Sec. 501(1) are unconstitutional, the appellate division held, to the extent that they deny the right to jury trial.

II. ISSUES

This case presents two issues on appeal.

1. Whether this court has jurisdiction to hear an appeal by the NMI in a criminal case reviewed by the appellate division.

2. Whether section 501 of the Covenant and 5 Trust Territory Code Sec. 501(1) violate the Sixth and Fourteenth Amendments to the Constitution.

III. THE RELATIONSHIP BETWEEN THE NMI AND THE UNITED STATES

The resolution of these issues requires an understanding of the unique political relationship between the NMI and the United States. The NMI is part of the Trust Territory of the Pacific Islands, which the United States has administered as a United Nations Trusteeship since 1947. See Gale v. Andrus, 643 F.2d 826, 828-30 (D.C.Cir.1980). 3 The United States exercises powers of administration, legislation, and jurisdiction in the Trust Territory under the general supervision of the United Nations Security Council. See Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, art. 3, 61 Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 189 [hereinafter cited as Trusteeship Agreement]. However, the United States does not possess sovereignty over the Territory. See, e.g., Gale, 643 F.2d at 832; McComish v. C.I.R., 580 F.2d 1323, 1330 (9th Cir.1978). Its authority is circumscribed by the Trusteeship Agreement. See In re Bowoon Sangsa Co., 720 F.2d 595, 599-600 (9th Cir.1983); Gale, 643 F.2d at 830. Article 6 of the Trusteeship Agreement Negotiations to determine the future status of the Trust Territory continued for more than a decade. In 1972, the United States agreed to conduct separate negotiations with the NMI. 5 These negotiations culminated in the signing, on February 15, 1975, of the covenant to grant the NMI commonwealth status. The legislature of the NMI unanimously endorsed the Covenant, and the people of the NMI themselves approved the agreement by a seventy-eight percent vote on June 17, 1975. 6 Congress thereafter enacted the Covenant as law. Joint Resolution of March 24, 1976, Pub.L. No. 94-241, 90 Stat. 263, reprinted in 48 U.S.C. Sec. 1681 note.

                directs the United States to "promote the development of the inhabitants of the trust territory toward self-government or independence," according to the "freely expressed wishes of the peoples concerned."    Trusteeship Agreement, supra, art. 6(1). 4
                

The Covenant consists of ten articles that define the political relationship between the NMI and the United States. Pursuant to Covenant section 101, the NMI will become a self-governing commonwealth under United States sovereignty upon termination of the trusteeship. Although the trusteeship continues, most of the Covenant is already in effect. 7 Since January 9, 1978, a three branch commonwealth government has operated under a locally drafted and ratified NMI constitution. The local constitution and various Covenant provisions took effect on that date pursuant to a presidential proclamation. See Proclamation No. 4534, 42 Fed.Reg. 56593 (1977), reprinted in 48 U.S.C. Sec. 1681 note.

One of the operative Covenant provisions is section 501, which concerns the application of the United States Constitution in the NMI. Section 501(a) provides in pertinent part:

To the extent that they are not applicable of their own force, the following provisions of the Constitution of the United States will be applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several states... Amendments 1 through 9, inclusive; ... Amendment 14, section 1; ... provided, however, that neither trial by jury nor indictment by grand jury shall be required in any civil action or criminal prosecution based on local law, except where required by local law. (emphasis added).

Covenant section 501(b) authorizes Congress to approve section 501(a):

The applicability of certain provisions of the Constitution of the United States to the Northern Mariana Islands will be without prejudice to the validity of and the power of the Congress of the United States to consent to sections 203, 506 and 805 and the proviso in Subsection (2) of this Section.

The sections specified in section 501(b) are an integral part of the agreement defining the political relationship between the NMI and the United States. The drafters of the Covenant noted that without these provisions, "the accession of the Northern Mariana Islands to the United States would not have been possible." Marianas Political Status Commission, Report of the Joint The Covenant leaves to the NMI legislature the determination whether trials under local law will be before juries. This flexibility permits the local legislature to mold the procedures in the NMI courts to fit local conditions and experience. 10 The NMI constitution drafted and approved pursuant to Covenant section 201 similarly declares that "[t]he legislature may provide for trial by jury in criminal or civil cases." NMI Const. art. I, Sec. 8.

                Drafting Committee 3 (1975). 8   The importance of section 501 is underscored by section 105, which provides that section 501 may be modified only if the governments of both the NMI and the United States consent. 9
                

The applicable local law governing trial by jury in criminal cases is 5 Trust Territory Code Sec. 501(1). 11 That statute provides in pertinent part:

Any person accused by information of committing a felony punishable by more than five years imprisonment or by more than two thousand dollars fine, or both, shall be entitled to a trial by jury of six persons.

IV. APPELLATE JURISDICTION

Appellee Atalig challenges the jurisdiction of this court to hear an appeal by the NMI in a criminal case reviewed by the appellate division of the district court. We hold that Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981), and pertinent provisions of the Covenant and local law establish our jurisdiction.

Manypenny considered the statutory authority necessary for a state to appeal in a criminal proceeding removed to federal court pursuant to 28 U.S.C. Sec. 1442(a)(1). The state sought to appeal from an order of acquittal entered after the conviction of the defendant. Although state law would have permitted such an appeal within the state court system, no statute expressly authorized the state to appeal from the federal district court to the federal court of appeals.

In order for the state to appeal, the Court found that two requirements must be satisfied. First, there must be some federal basis for appellate jurisdiction independent of the removal statute. 451 U.S. at 244, 101 S.Ct. at 1665. The Court held that 28 U.S.C. Sec. 1291, the general statutory grant of appellate jurisdiction, provides such a basis. Id. at 249, 101 S.Ct. at 1668. Second, state law must...

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