People of Territory of Guam v. Yang

• Decision Date: 24 March 1986
• Docket Number: No. 85-1252,85-1252
• Citation: 800 F.2d 945
• Parties: The PEOPLE OF the TERRITORY OF GUAM, Plaintiff/Appellee, v. Jae Hung YANG, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 945

800 F.2d 945

The PEOPLE OF the TERRITORY OF GUAM, Plaintiff/Appellee, v. Jae Hung YANG, Defendant/Appellant.

No. 85-1252.

United States Court of Appeals Ninth Circuit.

Submitted March 24, 1986. ^*

Decided Sept. 25, 1986.

Vance J.I. Guerena, Asst. Atty. Gen., Agana, Guam, for plaintiff/appellee.

Howard Trapp, Trapp & Untalan, Agana, Guam, for defendant/appellant.

Appeal from the District Court of Guam (Appellate Division).

Before FERGUSON, CANBY and HALL, Circuit Judges.

CANBY, Circuit Judge:

Jae Hung Yang appeals the decision of the Appellate Division of the District Court of Guam affirming his conviction for kidnapping and first degree criminal sexual conduct. Yang challenges the trial court's jury instructions. We have jurisdiction pursuant to 48 U.S.C.A. Sec. 1424-3(c) (Supp.1985). We affirm.

FACTS

On July 12, 1982, Jae Hung Yang was indicted for kidnapping and first degree criminal sexual conduct in violation of 9 Guam Code Ann. Sec. 22.20(a)(2) and 9 Guam Code Ann. Secs. 25.15(a)(6) & (b). Yang was tried by jury in the Superior Court of Guam. At the conclusion of trial, the trial court gave the jury the following instruction concerning the nature of reasonable doubt:

The test is one of reasonable doubt. And reasonable doubt is a doubt that's based upon common sense and reason and it's a kind of doubt that would make a reasonable person hesitate to do a certain act. Proof beyond a reasonable doubt, therefore, is prove [sic] of such a convincing character that would make a reasonable person, without hesitation, rely and act upon it in the most important of his or her own affairs.

The trial court also gave the following instruction concerning the weighing of conflicting evidence:

As jurors you are not bound to decide in conforming [sic] with the number of witnesses [sic] which doesn't produce a conviction in your mind as against the testimony of lesser number. There are [sic] other evidence which appeals to your mind with more convincing force. This doesn't mean you're at liberty to disregard the testimony of the greater number of witnesses merely from caprice or prejudices or from a desire to favor one side or the other, as against the other. But it does not mean that you're not to decide an issue by a simple process of counting the number of witnesses who have testified on the opposing side. It simply means that the final test is not in the relative number of witnesses, but in the relative convincing force of the evidence.

(Emphasis added.) Yang did not object contemporaneously to either instruction.

Following conviction on both kidnapping and criminal sexual conduct counts, Yang appealed to the Appellate Division of the District Court of Guam. Yang alleged that the trial court's jury instructions were erroneous under Guam law. ¹ The District Court affirmed Yang's conviction relying on, inter alia, this court's decision in Guam v. Ignacio, 673 F.2d 1339 (9th Cir.1982). Yang now appeals.

DISCUSSION

I. Standard of Review

When reviewing the District Court of Guam's constructions of local law, we must affirm the District Court's determinations "if they are based upon a tenable theory and are not manifestly erroneous." Laguana v. Guam Vistors Bureau, 725 F.2d 519, 520 (9th Cir.1984) (quoting Chase Manhattan Bank v. Gems-by-Gordon, 649 F.2d 710, 712 (9th Cir.1981)). See also Electrical Construction & Maintenance Co. v. Maeda Pacific Corp., 764 F.2d 619, 620 & n. 1 (9th Cir.1985).

II. Reasonable Doubt Instruction

Yang contends that the district court erred in finding that the instructions on reasonable doubt given by the trial court did not constitute plain error. He argues that because the Guam provision defining reasonable doubt, 8 Guam Code Ann. Sec. 90.23 (1980) is modeled on Cal. Penal Code Sec. 1096 (West 1977), California case law strictly interpreting Cal. Penal Code Sec. 1096 controls the construction of 8 Guam Code Ann. Sec. 90.23. We reject this argument.

Although "[a]bsent controlling Guam authority ... it [is] appropriate to look to California law for guidance," Smith v. Lujan, 588 F.2d 1304, 1306 (9th Cir.1979), there is no need in the present case to look beyond the decisions of the Guam courts. In Guam v. Hilton, Cr.App. No. 82-00055A (D.Guam App.Div.1984), aff'd, 760 F.2d 276 (9th Cir.1985) (unpublished memorandum), the Appellate Division of the District Court of Guam held that section 90.23 permitted trial judges to vary from the reasonable doubt instruction set forth in subsection (a). In Guam v. Ignacio, Cr.App. No. 79-00036A (D.Guam App.Div.1980), aff'd, 673 F.2d 1339 (9th Cir.1982), the District Court approved a reasonable doubt instruction nearly identical with the one given by the trial court in this case. Yang does not attempt to distinguish these cases. They control. ²

III. Weighing of Conflicting Evidence Instruction

Yang next asserts that the trial court's instruction on the weighing of conflicting evidence was plain error. Yang argues that by directing the jury that "the final test is ... the relative convincing force of the evidence," the trial court contradicted its earlier instruction concerning the requirement of proof beyond a reasonable doubt. Contradictory or confusing instructions, Yang concludes, are grounds for reversal.

We disagree. The trial court's latter statement did not contradict its earlier instruction.

First, the trial court clearly established that the challenged statement was made in a context distinct from its earlier discussion of reasonable doubt. Having concluded its definition of reasonable doubt, the trial court declared, "And now we come to the question of credibility." Thus, we find it is unlikely that the jury misinterpreted the trial court's latter statement as redefining the nature of reasonable doubt.

Second, considered in context, the challenged statement merely asserted a truism about the importance of credibility. Rather than instructing the jury on the proper degree of belief--beyond a reasonable doubt--the challenged statement instructed the jury on the proper basis of belief--"convincing force." Having remarked "you're not to decide an issue by a simple process of counting the number of witnesses on the opposing side," the trial court stated the correct basis for deciding an issue: " ... the final test is not in the relative number of witnesses, but in the relative convincing force of the evidence." The point of the challenged statement is simply that beliefs should be based on the convincing force of the evidence, not the number of witnesses. We find this statement neither confusing nor objectionable.

CONCLUSION

The trial court's earlier instruction on the nature of reasonable doubt was a permissible formulation of the government's burden of proof, at least in the absence of objections. This instruction was neither contradicted nor obfuscated by the trial court's later statement concerning the weighing of conflicting evidence. Thus, the District Court did not err in finding that the trial court's instructions did not constitute plain error.

AFFIRMED.

FERGUSON, Circuit Judge, dissenting:

I dissent because the Appellate Division of the District Court of Guam based its decision on the erroneous belief that two Ninth Circuit unpublished memorandum dispositions controlled this case. Moreover, I do not believe that the Appellate Division specifically decided that it was bound by the previous Appellate Division's decisions; nor could these previous decisions bind the Appellate Division. Thus, the district court and the majority erred in affirming Yang's conviction without considering the merits of whether the reasonable doubt jury instruction's deviation from the Guam Legislature's definition of reasonable doubt constituted reversible error.

I.

I disagree with the majority's conclusion that the Appellate Division relied on its prior decisions in concluding that it was bound by prior case law. The court stated:

While Judge Ferguson sets forth an appealing argument [in dissent in Guam v. Ignacio, No. 81-1107 (9th Cir. Feb. 19, 1982) ], the decisions of this Court in Ignacio and Hilton and of the Ninth Circuit in Ignacio have held otherwise. This panel must affirm based on these previous decisions. Any change in the decisions in this line of cases should more properly come from the Ninth Circuit.

Guam v. Yang, Cr.App. No. 84-0005A, slip op. at 7 (D.Guam App.Div. July 24, 1985) (citing Guam v. Hilton, Cr.App. No. 82-00055A (D.Guam App.Div.1984), aff'd, 760 F.2d 276 (9th Cir.1985) (mem.); Guam v. Ignacio, Cr.App. No. 79-00036A (D.Guam App.Div.1980), aff'd, 673 F.2d 1339 (9th Cir.1982)).

My reading of the opinion is that the court felt bound by the Ninth Circuit's unpublished affirmances of those decisions, rather than the decisions themselves. This conclusion is underscored by the court's belief that only this court can change the law of this circuit. Furthermore, the Appellate Division apparently would otherwise have found that the instruction was reversible error.

I contend that we must reverse because the Appellate Division thought that the Ninth Circuit's unpublished decisions were controlling. The Ninth Circuit prohibits citing or using unpublished memorandum dispositions:

A disposition that is not for publication shall not be regarded as precedent and shall not be cited to or by this Court or any district court of the Ninth Circuit, either in briefs, oral argument, opinions, memoranda, or orders, except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

9th Cir.R.21(c). Thus, these prior Ninth Circuit memorandum decisions have no precedential authority. See Demarest v United States, 718 F.2d 964, 967-68 (9th Cir.1983), cert. denied, 466 U.S. 950, 104 S.Ct. 2150, 80 L.Ed.2d 536 (1984); United States v. Kinsley, 518 F.2d 665, 670 n. 10 (8th Cir.1975); United States v. Fox, 473 F.2d 131, 136 n. 11 (D.C.Cir.1972). The Appellate Division therefore erred in presuming...