Pugh v. United States

• Decision Date: 01 June 1954
• Docket Number: No. 13506.,13506.
• Citation: 212 F.2d 761
• Parties: PUGH v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

212 F.2d 761 (1954)

PUGH v. UNITED STATES.

No. 13506.

United States Court of Appeals Ninth Circuit.

February 26, 1954.

As Amended May 20, 1954.

Rehearing Denied June 1, 1954.

Crain & Phelan, Finton J. Phelan, Agana, Guam, Schofield, Hanson & Jenkins, Thomas M. Jenkins, San Francisco, Cal., for appellant.

John P. Raker, U. S. Atty., Agana, Guam, Robert H. Schnacke, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and HEALY and POPE, Circuit Judges.

POPE, Circuit Judge.

Pugh was prosecuted in the District Court of Guam and there found guilty of stealing property of the United States in violation of § 641, Title 18, U.S.C.A. His attempted appeal to this court from the judgment of conviction was dismissed as not having been taken in time, 197 F.2d 509. He then moved in the court below D.C., 106 F.Supp. 209, under § 2255 of Title 28 for an order vacating the sentence as void, for the reason that he was prosecuted upon an information only, with no indictment by a grand jury, and none waived, and also because he was denied trial by jury.

The information was filed, and the case was tried, in conformity with a general order or rule of the District Court of Guam, made July 17, 1951, as follows: "It is herewith ordered that in prosecutions before the District Court of Guam, wherein the accused is charged with an offense against the United States, the United States may proceed by information, rather than by indictment. It is further ordered that trials, criminal and civil, shall be conducted before the court without a jury."

Clearly enough, the contention that Pugh should have been prosecuted by indictment of a grand jury, or tried by petit jury, raises no constitutional question, for § 3 of the Organic Act of Guam, Title 48, U.S.C.A., § 1421a, recites that "Guam is declared to be an unincorporated territory of the United States". Thus Congress took cognizance of the doctrine of territorial incorporation as first expounded by Mr. Justice White in Downes v. Bidwell, 182 U.S. 244, 287, 21 S.Ct. 770, 45 L.Ed. 1088, and thereafter developed in a series of decisions by the Supreme Court in cases having to do with the question as to the extent to which the Constitution followed the flag.¹ As Guam has not been incorporated into the United States, neither § 2 of Article III, relating to trial by jury, nor the Fifth, Sixth nor Seventh Amendments, relating to grand or petit juries, have any application to the Island of Guam or to the courts therein in the absence of some act of Congress extending their application there.²

Section 5 of the Organic Act, 48 U.S. C.A. § 1421b, contains a "bill of rights" for Guam. It contains no provision for indictment or trial by jury. However, § 22 of that Act, Title 48, § 1424, which creates the District Court of Guam, and defines its jurisdiction, provides in subdivision (b) thereof:

§ 1424(b). "The rules heretofore or hereafter promulgated and made effective by the Supreme Court of the United States pursuant to * * sections 3771 and 3772 of Title 18, in criminal cases * * * shall apply to the District Court of Guam and to appeals therefrom." Aug. 1, 1950, c. 512, § 22, 64 Stat. 389.

Rule 7(a) of the Rules of Criminal Procedure, 18 U.S.C.A., thus made applicable, provides:

"An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. * * *"

The offense here involved was one so punishable. There was no waiver of indictment here. Therefore through the Act's provision that Rule 7(a) "shall apply to the District Court of Guam", there exists a statutory requirement of indictment by grand jury. In United States v. Seagraves, D.C., 100 F.Supp. 424, the judge of the District Court of Guam stated at length his reasons for holding an indictment not required, and disclosing reasons why, in his view, the use of grand and petit juries in Guam was not practical. The most serious obstacle there stated was the failure of Congress, at least expressly, to make Chapter 121 of Title 28, relating to the qualifications and manner of selecting jurors, applicable to the District Court of Guam. If, as we assume, Chapter 121 does not apply there, then provision for jurors must be made by the territorial legislature as it is in Alaska.³ See Alaska Compiled Laws Ann.1949, §§ 55-7-1 to 55-7-56 and § 66-8-1. Cf. Hauptman v. United States, 9 Cir., 43 F.2d 86. What the judge there said might well be brought to the attention of Congress, but in our view the language of Rule 7(a), so incorporated in the Organic Act, is so explicit and unqualified that no considerations of expediency can warrant our disregarding it.

The question remains whether the lack of an indictment, while an error which would require a reversal upon appeal, is also a matter which can be raised in a § 2255 proceeding. It has been suggested that the language used in the Organic Act in setting up the court below is such that it imports a requirement that in respect to its trial of causes arising under the laws of the United States, the district court of Guam shall proceed under the same restrictions as are imposed by Constitutional limitations upon a district court of the United States. Such a court in the United States proper is subject to the constitutional mandate with respect to requiring indictment by a grand jury and affording a trial by jury in criminal cases. § 22(a), creating the district court of Guam, is set forth in the margin.⁴ The suggestion just mentioned is predicated upon the words: "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". Under familiar rules, a district court of the United States may lose jurisdiction if and when it denies an accused person rights which he has under the Constitution. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. But we think the use of the word "jurisdiction" in the language just quoted has no such connotation here. Plainly this refers to the jurisdiction of the subject matter. It states what cases the court may try. Since Congress carefully saw to it that Guam be not incorporated in the United States, and hence that the constitutional provisions relating to grand and petit juries did not extend there, there is no occasion for a holding that since indictment by grand jury and trial by petit jury were lacking here, the court was without jurisdiction for the same reason that a district court in continental United States would lack jurisdiction in such cases.

The reference to the court having "the jurisdiction of a district court of the United States" does not stamp the failure to procure an indictment as a defect stemming from something akin to a constitutional requirement. The requirement of a grand jury is simply a statutory provision, brought about by § 22(b) incorporating by reference criminal rule 7(a). Yet we think the defect in this respect, that is, in regard to the lack of indictment, is a matter which can be raised in a § 2255 proceeding.⁵ For this reason the judgment must be reversed. And since the failure to make use of a grand jury requires this result, we have no occasion to consider the other quite different questions that have been argued here with respect to failure to afford a jury trial.

The judgment is reversed and the cause is remanded with directions to vacate the sentence and to dismiss the information.

DENMAN, Chief Judge, concurring in the dismissal of the action but dissenting from the grounding of the court's opinion on the Federal Rules of Criminal Procedure instead of 48 U.S. C.A. § 1424(a) creating the jurisdiction of the District Court of Guam, which the Rules do no more than implement.

A. The right to indictment is conferred by the statute creating the jurisdiction of the court and not by its rules which merely implement its jurisdiction.

All the court's discussion of the Constitution following the flag in Guam is way by the mark, that contention not being seriously pressed at the hearing. Such discussion is no more than brutum fulmen about the obvious fact that the Constitution does not follow the flag, thus obscuring the single issue in the case and at the same time ignoring the principal contention made at the hearing.

That single issue is, has Congress created in the Guam district court by the express language of 48 U.S.C.A. § 1424 (a) the jurisdiction to try persons accused of felonies only by indictment unless waived, as in the district courts of the United States and as it has created such limited jurisdiction in the district courts of Puerto Rico and the Virgin Islands.

The pertinent portions of 48 U.S.C. A. § 1424(a) and 28 U.S.C.A. § 451, to which the former refers, expressly confer on the Guam district court the same jurisdiction as that of a continental district court of the United States in such a case as this of a federal felony. They are:

"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 * * *." (Emphasis supplied.)

and

"§ 451. Definitions

"As used in this title:

"The term `court of the United States\' includes the Supreme Court of the United States, courts of appeals, district courts constituted by chapter 5 of this title, including the district courts of the United States for the districts of Hawaii and Puerto Rico * * *." (Emphasis supplied.)

As early as Ex parte Wilson, 114 U.S. 417 at page 429, 5 S.Ct. 935 at page 941, 29 L.Ed. 89, it was held that to proceed to try an accused for felony without an indictment was without the "jurisdiction" of district courts of the United States, stating:

"Deciding nothing beyond what is required by the facts of

...