Putty v. United States

• Decision Date: 10 March 1955
• Docket Number: No. 13778.,13778.
• Citation: 220 F.2d 473
• Parties: Edward D. PUTTY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

220 F.2d 473 (1955)

Edward D. PUTTY, Appellant, v. UNITED STATES of America, Appellee.

No. 13778.

United States Court of Appeals, Ninth Circuit.

March 10, 1955.

Finton J. Phelan, Jr., Agana, Guam, Thomas Jenkins, San Francisco, Cal., for appellant.

Herbert G. Homme, Jr., U. S. Atty., Agana, Guam, Robert H. Schnacke, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and POPE, Circuit Judge, and HAMLIN, District Judge.

DENMAN, Chief Judge.

Putty appeals from a conviction for conspiracy and theft of federal property, based on an information filed by the prosecuting attorney. He urges as his grounds of appeal (A) that he was tried on an information filed by the prosecuting attorney and was not granted the consideration of an impartial grand jury, and that at the time of the commission of the charged acts and at the time of his trial, Rules 7 and 6 of the Rules of Criminal Procedure, 18 U.S.C., made applicable by Congress to Guam, gave no power to its District Court to prosecute him except by indictment, unless waived — which it was not; (B) that the amendment of the Organic Act of Guam, enacted after Putty's commission of the charged acts, to make his conviction legal without an indictment is invalid as an ex post facto law; (C) that because the proceedings of his trial and conviction are void, the amendment is a bill of attainder; and (D) that the information fails in two counts to state an offense and as to two other counts, the evidence fails to support the convictions.

(A) Putty's conviction on January 27, 1953, based on an information, was then without the power of the Guam District Court.

Section 1424(b) of the Organic Act of Guam then provided, so far as pertinent, that

"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." 48 U.S.C.A. § 1424(b).

Rule 7 of the Code of Criminal Procedure required the prosecution of the crime charged against Putty to be initiated by indictment.¹ Rule 6 provided for a grand jury of not less than 16 nor more than 23 jurors.²

This court has held in two cases that Congress in making these rules applicable to the Territory of Guam, gave no power to its District Court to prosecute on a mere information one accused of a federal crime. In each the sentence was vacated and the information dismissed. One was a 28 U.S.C. § 2255 proceeding, Pugh v. United States, 9 Cir., 212 F.2d 761. The other, as here, was a direct appeal from the conviction, Hatchett v. Guam, 9 Cir., 212 F.2d 767. These cases hold that while the constitutional provision for a grand jury does not apply to such a territory as Guam, Congress had created that right for the Territory in making applicable there the criminal rules.

Certiorari was sought in our Hatchett case and we delayed action in the instant Putty case, which then was ready for hearing. The petition for certiorari was withdrawn, after Congress on August 17, 1954, had amended the Organic Act in a manner hereafter considered.

It is thus apparent that if we had decided the Putty appeal when it was ready for hearing, we would have held the District Court had no jurisdiction to prosecute and would have dismissed the information.

(B) The amendment of the Organic Act of the unincorporated Territory of Guam, purporting to create in its District Court jurisdiction in the Putty and other similar cases by retroactively denying the right to indictment existing at the time the crime was committed, is invalid as an ex post facto law.

The Constitution specifically creates power in Congress to legislate for a territory in Article IV, Section 3, as follows:

"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

The Supreme Court holds the power to legislate for such unincorporated territories as the Philippine Islands rests on this Article IV, Section 3. Hoover and Allison Co. v. Evatt, 324 U.S. 652, 673, 65 S.Ct. 870, 89 L.Ed. 1252.

Limiting all its legislative power over a territory, Congress is prohibited by Article I, Section 9, to enact an ex post facto law as follows: "No Bill of Attainder or ex post facto Law shall be passed."

In Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 810, 49 L.Ed. 128, the Supreme Court, after holding that the Philippines were not then an incorporated territory of the United States, states that in governing such a territory Congress is restricted by the Constitution from passing an ex post facto law, quoting Mr. Justice Curtis' statement in Dred Scott v. Sanford, 19 How. 393, at page 614, 15 L.Ed. 691, that "`If, then, this clause Art. IV, Sec. 3 does contain a power to legislate respecting the territory, what are the limits of that power?

"`To this I answer that, in common with all the other legislative powers of Congress, it finds limits in the express prohibitions on Congress not to do certain things; that, in the exercise of the legislative power, Congress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution.'" (Emphasis supplied.)

So also in Downes v. Bidwell, 182 U. S. 244, 268, at pages 276, 277, 21 S.Ct. 770, at page 783, 45 L.Ed. 1088, the court, in discussing the laws applicable to the unincorporated Territory of Porto Rico stated:

"To sustain the judgment in the case under consideration it by no means becomes necessary to show that none of the articles of the Constitution apply to the island of Porto Rico. There is a clear distinction between such prohibitions as go to the very root of the power of Congress to act at all, irrespective of time or place, and such as are operative only `throughout the United States\' or among the several states.

"Thus, when the Constitution declares that `no bill of attainder or ex post facto law shall be passed,\' and that `no title of nobility shall be granted by the United States,\' it goes to the competency of Congress to pass a bill of that description."

The statement regarding the limitation against ex post facto laws in unincorporated territories is repeated at page 292 of 182 U.S., 21 S.Ct. 770, in the concurring opinion of Mr. Justice White and at page 383 of 182 U.S., 21 S.Ct. 770, in the dissenting opinion of Mr. Justice Harlan.

The amendment of the Organic Act of Guam enacted August 27, 1954, provides:

"Public Law 679 — Chapter 1017 H.R. 8634

"An Act to amend section 22 of the Organic Act of Guam.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That subsection (b) of section 22 of the Organic Act of Guam (64 Stat. 389), is amended by striking out the period at the end of such subsection and inserting in lieu thereof the following: `; except that no provisions of any such rules which authorize or require trial by jury or the prosecution of offenses by indictment by a grand jury instead of by information shall be applicable to the District Court of Guam unless and until made so applicable by laws enacted by the Legislature of Guam, and except further that the terms "attorney for the government" and "United States attorney", as used in the Federal Rules of Criminal Procedure, shall, when applicable to cases arising under the laws of Guam, mean the Attorney General of Guam or such other person or persons as may be authorized by the laws of Guam to act therein.\'

"Sec. 2. The amendment made by section 1 shall be deemed to be in effect as of August 1, 1950.

"Sec. 3. No conviction of a defendant in a criminal proceeding in the District Court of Guam heretofore had shall be reversed or set aside on the ground that the defendant was not indicted by a grand jury or tried by a petit jury." 68 Stat. 882.

This attempt by Congress to confer jurisdiction on the Guam District Court where it did not exist at the time of the commission of the crime is the deprivation of a substantial right of persons convicted of felonies in that court and not a mere minor matter. The vital contrast is clear between the proceeding on the information of the single prosecuting attorney and on the deliberate and detached judgment of at least 18 grand jurors in whose action at least 12 must concur.

In Kring v. State of Missouri, 107 U.S. 221, at page 232, 2 S.Ct. 443, 452, 27 L.Ed. 506, where the court was discussing what procedural rights are sufficiently substantial not to be taken away by ex post facto laws, it stated that the right to indictment by a grand jury was one of them, as follows:

"Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed to the disadvantage of the prisoner by State legislation after the offense was committed, and such legislation not held to be ex post facto because it relates to procedure, as it does according to Mr. Bishop?

"And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot." (Emphasis supplied.)

In Beazell v. State of Ohio, 269 U.S. 167, at page 170, 46 S.Ct. 68, 69, 70 L.Ed. 216, in discussing those procedural changes which are so substantial that they cannot be affected by an ex post facto law, the court, referring to Kring v. Missouri, states:

"And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary

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