United States v. Seagraves, Cr. No. 7-51.

• Decision Date: 09 October 1951
• Docket Number: Cr. No. 7-51.
• Citation: 100 F. Supp. 424
• Parties: UNITED STATES v. SEAGRAVES.
• Court: U.S. District Court — District of Guam

100 F. Supp. 424

UNITED STATES v. SEAGRAVES.

Cr. No. 7-51.

District Court of Guam.

October 9, 1951.

James G. Mackey, U. S. Atty., Agana, Guam, for U. S.

E. R. Crain, Finton J. Phelan, Jr., Agana, Guam, for defendant.

SHRIVER, Judge.

This case presents the following questions:

1. Does this court have jurisdiction to proceed without indictment and trial by jury?

2. Was it proper to permit the information to be amended?

3. Does the evidence introduced by the government show entrapment?

4. Does the evidence show a violation of 18 U.S.C.A. § 201 under the wording of the amended information?

I. Indictment and Jury Trial.

The court, over the objections of the defendant and pursuant to its order entered July 17, 1951 allowed the government to proceed to trial on the basis of an information without trial by jury. The question is presented as to whether the court has jurisdiction to try defendants accused of felonies against the United States without indictment by grand jury and trial by petit jury unless waived.

Guam is declared to be an unincorporated territory of the United States in its organic act. The United States Congress made no provision for trial by jury in its bill of rights, 64 Stat. 384-385, 48 U.S.C.A. §§ 1421a, 1421b. This was not an oversight. S.R. 2109, 81st Cong.2d Sess. under date of July 20, 1950 incorporated at p. 3, Appendix 1, analysis of H. R. 7273:

Section 5. Provides for a bill of rights granting the Guamanians protection against infringement of personal freedom. The bill of rights is modeled upon the Bill of Rights in the United States Constitution but does not expressly provide for trial by jury in Guam. Since Guamanians derive their tradition in law from Spain, a civil-law nation, they have little knowledge or experience in trial by jury. The Guam Congress could institute trial by jury if it so desired.

Any earlier doubt as to the constitutional authority of the United States Congress to eliminate trial by jury in unincorporated territories was disposed of by Chief Justice Taft, speaking for a unanimous court, in Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627. The Balzac case is particularly applicable to Guam as Guam was acquired from Spain under the Treaty of Paris just as Puerto Rico was. It is believed that insofar as the present question is concerned the Balzac case holds:

1. There is no constitutional right to indictment and trial by jury in unincorporated territories.

2. The jury system needs citizens trained to the exercise of the responsibilities of jurors, a responsibility which it is hard for people not brought up in fundamentally popular governments at once to acquire.

3. The United States District Court in Puerto Rico (and of course the District Court of Guam) is a territorial court created by virtue of the sovereign congressional faculty, granted under Article IV, Sec. 3 of the Constitution, rather than a true United States court established under Article III of the Constitution to administer the judicial power of the United States.

4. Neither the United States citizen who is a Puerto Rican nor the citizen of the United States residing in Puerto Rico can enjoy a constitutional right to trial by jury as it is locality that is determinative of the application of the Constitution in such matters as judicial procedure and not the status of the people who live in the territory.

The reasoning in the Balzac case and also in the case of Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128, clearly demonstrates that the procedural right to indictment and jury trial need not apply to unincorporated territories until the legislative bodies of those territories see fit to confer them after their emergence into the realm of popular government and the building of experience for their proper use.

The responsibility for governing Guam was vested in the Secretary of the Navy by the Executive Order of President McKinley dated December 23, 1898, No. 108A. The Secretary of the Navy carried out his functions through Naval Governors. The Naval Governor had to all intents and purposes almost complete powers. His authority was exemplified in a proclamation dated May 30th, 1946, by the then Naval Governor.

Par. I. The Naval Government of Guam is hereby re-established, and all powers of Government and jurisdiction in Guam and adjacent waters and over the inhabitants thereof, and final executive, legislative and judicial responsibility are vested in me as Naval Governor of Guam and will be exercised through subordinate commanders by my direction.

Although such authority existed it was exercised with beneficence and understanding, looking toward the time when the Guamanians would be self-governing and culminating in the passage of the Organic Act. The influence of the Spanish Civil Law was lessened by the adoption in 1933 of local codes patterned on the California codes. The 9th Circuit Court of Appeals held in United States v. Johnson, 181 F.2d 577, that it would construe the Guam codes in the light of California decisions when the provisions are the same. This development, however, did not embody the adoption of a jury system and original trial was and is by a judge, Ch. III Codes of Civil Procedure of Guam.

The District Court of Guam was created by the Organic Act of Guam and its jurisdiction set forth, 64 Stat. 389-390, 48 U.S. C.A. §§ 1424-1424a.

"§ 1424. District Court of Guam; jurisdiction; rules of procedure

"(a) There is created a court of record to be designated the `District Court of Guam', and the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam. 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, and shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine. The jurisdiction of and the procedure in the courts of Guam other than the District Court of Guam shall be prescribed by the laws of Guam.

"(b) The rules heretofore or hereafter promulgated and made effective by the Supreme Court of the United States pursuant to section 2072 of Title 28, in civil cases; section 2073 of Title 28, in admiralty cases; sections 3771 and 3772 of Title 18, in criminal cases; and section 53 of Title 11, in bankruptcy cases; shall apply to the District Court of Guam and to appeals therefrom. Aug. 1, 1950, c. 512, § 22, 64 Stat. 389.

"1424a. Appeals; jurisdiction of Court of Appeals for Ninth Circuit; appeals to Supreme Court

"(a) The United States Court of Appeals for the Ninth Circuit shall have jurisdiction of appeals from all final decisions of the District Court of Guam in all cases involving the Constitution, laws, or treaties of the United States or any authority exercised thereunder, in all habeas corpus proceedings, and in all other civil cases where the value in controversy exceeds $5,000, exclusive of interest and costs.

"(b) Any party may appeal to the Supreme Court of the United States from an interlocutory or final judgment, or order of the District Court of Guam, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies or any officer or employee thereof, as such officer or employee, is a party. A party who has received notice of appeal under this section shall take any subsequent appeal or cross appeal to the Supreme Court. All appeals or cross appeals taken to other courts prior to such notice shall be treated as taken directly to the Supreme Court. Aug. 1, 1950, c. 512, § 23, 64 Stat. 390."

28 U.S.C.A. Ch. 121 which deals with the selection, qualifications, etc., of grand and petit jurors was not made specifically applicable to the District Court of Guam as were the provisions of chapters 21, 41, 43, 49 and 57, 64 Stat. 390, 48 U.S.C.A. § 1424b (c).

Rule 7(a), F.R.Cr.P., 18 U.S.C.A., requires indictment for an offense which may be punished by death and for an offense which may be punished by imprisonment for a term exceeding one year or at hard labor. Indictment may be waived by the defendant in the latter case and the United States may proceed by information.

Rule 23(a) provides that:

"Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government."

Rule 7(a) was intended to give effect to the Fifth Amendment to the Constitution of the United States and Rule 23(a) to Article III, Sec. 2, Par. 3 of that instrument. (Notes of Advisory Committee on Rules.)

An analysis of the laws affecting other jurisdiction prior to the promulgation of the F.R.Cr.P. show:

1. In Puerto Rico the qualifications of jurors to serve in the United States District Court were set forth by statute, 39 Stat. 966, 48 U.S.C.A. § 867.

2. In the Canal Zone the judge of the District Court provided for the selection, summoning and serving of jurors from among the citizens of the United States subject to jury duty and either party could demand a jury trial, 48 U.S.C.A. § 1347.

3. In the Virgin Islands in any criminal case originating in the District Court the right to trial by jury in criminal cases was granted on the demand of either party, but if no jury was demanded the case was tried by the court without a jury unless the judge ordered a jury trial, 49 Stat. 1814, 48 U.S.C.A. § 1406c.

While it is recognized that the District Court of Guam is bound by the Federal Rules of Criminal Procedure under the Organic Act to the same extent as if it had been mentioned in Rule 54 of such rules, in other territorial...