Petition for Writ of Certiorari — Territory of Guam v. Turner

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92-1922 ee TEeD

MAY 2 4 1993

In The OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1992

PEOPLE OF THE TERRITORY OF GUAM,

Petitioner,

VS.

DANIEL LUCIEN TURNER,

MARTIN M. VILORIA,

JOHN GOKITA MANIBUSAN,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

ELIZABETH BARRETT-ANDERSON

Attorney General

J. ANDREW ARTERO-BONAME

Assistant Attorney General

Counsel of Record

Prosecution Division

Suite 2-200E, Judicial Center Bldg.

120 West O’Brien Drive

Agana, Guam 96910

Il.

IV.

QUESTIONS PRESENTED

Whether the Ninth Circuit’s acceptance of the “two inference”

definition of reasonable doubt, as an accurate expression of

Circuit law, conflicts with the holding of Holland v. United

States, 348 U.S. 121 (1954), and with various Circuits’ con-

struction of Holland?

Whether the Ninth Circuit, by reviewing an ambiguous jury

instruction for prejudice under a “reasonably possible” standard,

rather than for a “reasonable likelihood” thereof, conflicts with

the standard set in Boyde v. California, 494 U.S. 370, (1990),

and with the authority of Circuits construing Boyde?

Whether the Ninth Circuit, by conducting a factual review for

prejudice which did not consider counsel’s use of the trial

court’s instructions, and gave limited consideration to other

matters of context related to the jury’s interpretation of the

questioned instruction, conflicts with the test for consideration

of instructional error stated in Cupp v. Naughten, 414 U.S. 141

(1973), and with authority from other Circuits on this point?

Whether the Ninth Circuit, by replacing the conclusions of law

and fact expressed by the Appellate Division of the District

Court of Guam with its own such conclusions, without according

any deference to either set of determinations, conflicts with the

deferential review doctrine expressed in Bonet v. Texas Compa-

ny, 308 U.S. 463 (1940), and violates Congress’ mandate to the

Appellate Division contained in 48 U.S.C. § 1424-3, to such an

extent that it is a departure from the accepted course of Judicial

proceedings that calls for the exercise of the Supreme Court’s

supervisory power to correct it?

TABLE OF CONTENTS

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FTGEE 6 vc eo RAR RE URESR EDEL es

APPENDIX A Order of the United States Court of Appeals

for the Ninth Circuit (February 24, 1993) .............

APPENDIX B Memorandum of the United States Court of

Appeals for the Ninth Circuit (December 16, 1992) .......

APPENDIX C Opinion of the District Court of Guam,

Territory of Guam, Appellate Division (November 18,

EPPED acc nneeeks am kaos eee,

APPENDIX D Judgment of the Superior Court of Guam,

Territory of Guam (October 23, 1990) ...............

APPENDIX E Organic Act of Guam, 48 U.S.C.

SB arr er en Fe le na

So eee ee re ke

G RGRGS onc ices die een eee

TABLE OF CASES AND AUTHORITIES

Page

CASES:

Agana Bay Dev. Co. (Hong Kong) Ltd v.

Supreme Court of Guam, 529 F.2d 952,

EE ee 26, 27

Aguon v. Calvo, 829 F.2d 845, 847... ...........4.. 24

Bank of Nova Scotia v. United States,

ee twee be ewe ees 22

Bonnet v. Texas Company, 308 U.S. 463,

ee 20, 21, 25, 27, 28

Boyd v. United States, 271 U.S. 104,

ES ee 16

Boyde v. California, 494 U.S. 370, (1990) .......... 10-16

Brown v. Civil Service Com’n, 818

ee is I , BOP gw ec es 23, 24

Cage v. Louisiana, 498 U.S. _, 111 S.Ct

Re I COD wt te ee ees 13

Camacho v. Civil Service Commission, 666

ce Eo rr 27, 28

Cannon v. University of Chicago,

he kk ek ee 28

Cupp v. Naughten, 414 U.S. 141, 147, 94

S.Ct. 396, 400-01, 38 L.Ed.2d. 368

EN EE a 16-18, 20

De Castro v. Board of Com’rs of San Juan,

tw tte teens 21

Diaz v. Gonzales, 261 U.S. 102, 106 (1923) ........... 25

Estelle v. McGuire, _U.S.__, 112 S.Ct.

oS |.) 11-16

Guam v. Borja, et al., 983 F.2d 914

Se ngs a 29

Guam y. Ibanez, 880 F.2d 108 (9th Cir.

1989), cert. den. 496 U.S. 130-31

rr 6, 22, 29

Guam v. Olsen, 431 U.S. 195, 204,

S| eS re ee ee 20, 26, 27

Guam v. Yang, 850 F.2d 507, (en banc)

EE EE ea aos ao x wl ae bw 6, 11, 21-25, 29

Gumataotao v. Guam, 322 F.2d 580, 582

I gla a le ta alm 21, 24

Hill v. Maloney, 927 F.2d 646, 651

oe | ee ee a 13

Holland v. United States, 348 U.S. 121

CU ee re he ee 6 ae eel oe ek a 6-10, 16

In re Sawyer, 360 U.S. 622, 640

ate aaa oan a eae ek an ah ocg bee 4G a 25

Jeffries v. Blodgett, 974 F.2d 1179, 1193

a OO Be i a a a ks a: bine eke ORNS A 13

Karras v. Leapley, 974 F.2d 71

I ee da ok ee a eee ee 13

Laguana v. Guam Visitors Bureau,

725 F.2d 519, 520-21 (9th Cir.

Ng TEMES 1g Ce ee ee ee 24

Matter of McLinn, 739 F.2d 1395

ee en ear oe ae be ten 6 bw 10-0-k A000 ser 21, 23, 24

Monessen Southwestern R.R. v.

Morgan, 486 U.S. 330, 338 (1988) ................. 28

People v. Gould, 54 Cal.2d 621, 7 Cal.

Rptr. 273, 277, 354 P.2d 865 (en banc)

ee en a ae ee ee ee 6

People v. Jernan, 29 Cal.2d 189, 197,

Cee ee ee en bea se Rik ee eo es 8 ee ae ee 9

People v. Wright, 276 Cal.Rptr 731, 755-56

ha et ke aca na el aaa a ok rie See cari ge 6

Pullman-Standard v. Swint, 456 U.S. 273,

5s 0 ate Bel i ea SS oe 19

Rock v. Zimmerman, 959 F.2d 1237, 1247,

eS SR ee ee 13

S.A. Empressa De Viacao Rio Grandense

v. Boeing Co., 641 F.2d 746, 752

Ia NS oe Sh ea is ve ang wk ate 6 ocean 27

Sablan v. Guam, 434 F.2d 837, 839

a GE bb x kk OAS hos ka eC ER TR ee x

Saludes vy. Ramos, 744 F.2d 992

a ds a ak 0 be oe S 21, 22

Sancho Bonet v. Yabucoa Sugar Co., 306

ee hens ida bees we 25

Sandstrom v. Montana, 442 U.S. 510,

Ms ES a ae 17

Stephans v. Zant, 968 F.2d 1076, 1086

ES A a re 13

Taglianti v. United States, 398 F.2d

EE rae 7

United States v. Bagley, 473 U.S. 667, 682,

105 S.Ct. 3375, 3383, 87 L.Ed.2d 481

er a ed a as bk Oe ee 15

United States v. Bordallo, 857 F.2d 519

ey ew a kK an 88 16

United States v. Cobb, 905 F.2d. 784

ee en a eck de wh cus 13, 15

United States v. Coombs, 464 F.2d 842,

Re re 7

United States v. Craigo, 956 F.2d 65

TE Oe eee 13, 15

United States v. Fryer, 419 F.2d 1346, 1350

Ng i RR ee a a 7

United States v. Glass, 846 F.2d 386

en se ko oe we ee 19

United States v. Grayson, 597 F.2d 1225,

Re ee chee ev essere seae 8, 9

United States v. Haggins, 565 F.2d 1009,

ce wee ek cease enee 7

United States v. Hall, 854 F.2d 1036,

EN 7

United States v. Heck, 499 F.2d 778, 790

AER a er 8

United States v. Hildreth, 387 F.2d 328,

ES SESE ee 7

United States v. James, 576 F.2d 223,227 ........... 8, 9

United States v. Johnson, 713 F.2d 633,

en a 7

Aelia

United States v. Koshnevis, 979 F.2d 691

i a tk ako 6 ana a hee ko +e 60d a 14, 16

United States v. McConney, 728 F.2d 1195,

i es 5 es a hack 6 4 ach 6. bees 19, 23

United States v. Merlos, 984 F.2d 1239, 1241

i fe as 5 ea ek oa Gp WAKO NO 60h we. 6 8 Oe 13, 15

United States v. Miller, 688 F.2d 652, 662

So a ae kis Bie ad wd bk hoo 8 6 8 8,9

United States v. Nelson, 419 F.2d 1237

IRE ee Nene ee ena, eee 8

United States v. Rubio-Villareal, 967 F.2d

cee TE Le | 11, 14, 16, 20

United States v. Stone, 748 F.2d 361, 362

i a a a ea ce rks 7

United States v. Stubin, 446 F.2d 457, 465

ania A al Ae a wk i ek gy ib 7

United States v. Sukumolachan, 610 F.2d

oN ne ne oh wb 8

United States v. Valenzuela-Bernal, 458 U.S.

858, 874, 102 S.Ct. 3440, 3450, 73 L.Ed.2d.

EES A Senet Me eee et SE eee are ee 15

United States v. Valle-Valdez, 554 F.2d 911,

Ey REIL SIY RASS Se eget rt eeree ar aren ore 11

United States v. Velasquez, 980 F.2d 1975

ER RR ea 14, 29

United States v. Warren, 453 F.2d 738, 745

a a is ag ee ae we 8 7

United States v. Wilson, 904 F.2d 656

gE OE 12

Wall v. United States, 384 F. 2d 758,

EE ae 7

Wilkerson v. Collins, 950 F.2d 1054, 1060

SE a ae 13

Yates v. Evatt, 500 U.S. 111 S.CT. 1884,

oe Re) ) ee ee et

vii

STATUTES & RULES:

2 ok yk ae ee enw be a we ae we ee 30

ss ss a ee ha eee eee ae eee 29

I oc ok dk eed ee nee bees ee bees 2

ee eg aks kee e cent ee ue oe 23

CE tka ccc ea wee een eenceeban 2, 27

SE og nn te be wb hese 6846 6 eh 22

CE gw Caen een anes sean ee edeke en 2

Be ot ks 4a eee abe ee sewn ys |

ee 2, 20, 27

I nn nt ch eee esac sees eweeen 2

ee 2, 27, 30

ee ek ee eee ee nesses eeuee 22

ee 2

ek ecb e sce eee ees 27

Guam Criminal Procedure Code § 90.19(a) ............ 11

Guam Criminal Procedure Code § 90.23 ............... 2

Guam Criminal Procedure Code § 90.23(a) ............. 4

Guam Criminal Procedure Code § 90.23(b) ............. 4

re 26

ee Dy, 27

Pub. L. 98-454, Title VIII, § 801,

eer ee ae ko Oe AO walk 27

OTHER AUTHORITIES:

1A Sand, Siffert, Loughlin & Reiss,

Mcedern Federal Jury Instructions 4.01

ss ok tc kes ew ew es 7

Arnold Leibowitz, Defining Status:

A Comprehensive Analysis of United

States Territorial Relations 316,

ee eee ood os Cs es ea ww 08 23

California Jury Instruction (CALJIC)

kash heedaeene 5

viii

H.R. Rep. No. 951, 85th Cong., Ist Sess. (1957) ......... 23

S. Rep. No. 1582, 85th Cong., 2d Sess.

(1958), reprinted in 1958 U.S.C.A.A.N. 2623 ........... 23

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

No.

PEOPLE OF THE TERRITORY OF GUAM,

Petitioner,

vs.

DANIEL LUCIEN, TURNER,

MARTIN M. VILORIA,

JOHN GOKITA MANIBUSAN,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

The Territory of Guam (“Guam”) respectfully petitions for a

writ of certiorari to review the judgment of the United States Court

of Appeals for the Ninth Circuit. The Ninth Circuit reviewed a

judgment of the Appellate Division of the District Court of Guam

which had affirmed the judgment of conviction, for aggravated

murder and related offenses, as to all the named respondents. The

Ninth Circuit reversed the convictions. It did so because the trial

judge advised the jury that a statement of law presented by defense

counsel, which propounded a form of the two-inference definition of

reasonable doubt, was “inaccurate”. The Ninth Circuit’s decision

was based on the conclusion that the two-inference formulation of

reasonable doubt correctly expresses the law of that Circuit. After

preliminarily determining that the trial judge’s remark was error the

panel found prejudice using a “reasonable possibility” test for such.

In doing so the Ninth Circuit panel apparently ignored certain facts,

some of which had led the Appellate Division to conclude there was no

prejudice in the trial judge’s comment. In finding prejudice, the panel

rejected the Appellate Division’s conclusion to the contrary, as well as

various factual assessments that had led to that conclusion, with no

indication of deference to the Appellate Division’s determination of fact

or law. The Ninth Circuit’s decision undermines Guam’s judicial

system, and consequently, its independent government.

OPINIONS BELOW

The unpublished order of the Ninth Circuit denying rehearing, and

which amends its prior decision in this matter, is reproduced in

Appendix A. The unpublished memorandum decision reversing the

judgment of conviction is set out at Appendix B. The unpublished

opinion of the District Court of Guam is reproduced at Appendix C.

The Judgment of conviction entered in the Superior Court of Guam is

set forth in Appendix D.

JURISDICTION

The judgment of the United States Court of Appeals for the Ninth

Circuit was entered on December 16, 1993. Petitioner timely

submitted, under a grant of extension, a Petition for Rehearing on

January 20, 1993, which was denied in an order dated February 24,

1993. The Ninth Circuit’s exercise of jurisdiction below was based

upon 48 U.S.C. § 1424-3(c). The Appellate Division of the District

Court of Guam had jurisdiction by virtue of 48 U.S.C. § 1424-3(b).

The jurisdiction of the Supreme Court is invoked under 28 U.S.C. §

1254(1).

STATUTORY PROVISIONS INVOLVED

The principle statutory provision involved is the Organic Act of

Guam, 48 U.S.C. §§ 1421-1428, which establishes a civilian govern-

ment with an independent court system for the Territory of Guam.

The text of §§ 1424, 1424-1, 1424-2 and 1424-3, governing Guam’s

judiciary, is set out in Appendix E.

Section 90.23 of Criminal Procedure Code of Guam states:

§ 90.23. | Reasonable Doubt: Defined; May be

Read to Jury Verbatim.

(a) Reasonable doubt is defined as follows: “It is not

a mere possible doubt because everything relating to human

affairs, and depending on moral evidence, is open to some

possible or imaginary doubt. It is that state of the case,

which, after the entire comparison and consideration of all

the evidence, leaves the mind of the trier of fact in that

condition that he cannot say he feels an abiding conviction

to a moral certainty, of the truth of the charge."

(b) In charging a jury, the court may read Subsection

(a) to the jury and no further instruction defining reasonable

doubt need be given.

STATEMENT

The three Defendants, named as Respondents in this Petition,

were indicted in the Superior Court of Guam on June 1, 1989 for

multiple counts of aggravated murder and for robbery, burglary and

the possession and use of a deadly weapon in commission of a

felony. The first trial conducted in this matter proceeded from

March 19, 1990 through April 17, 1990. It ended in a mistrial’.

The issues presented arise from the second trial which began on

July 9, 1990. They pertain to the jury instructions provided by the

trial court on reasonable doubt. Some background on the proceed-

ings of the case are essential to an understanding of the instructions’

context. Of special importance was the prosecution’s reliance on

direct, as opposed to circumstantial, evidence.

The government’s theory, as supported by testimeay at trial, was

generally as follows: The defendants, along with two others, had

entered the home of a Carlos Bossi and Mari Tanaka, in Old

Perezville, Guam, on the night of November 8, 1986 for the purpose

of robbing the couple. While there the defendants had threatened

' The jury, after returning to the court with verdicts of guilty, was polled. One

of the jurors indicated that the verdict read was not her verdict. Thereafter, the

panel was unable to reach unanimity.

and beaten the two residents to get them to open a safe which was on

the premises. The victims were unable, under the stress of the

circumstances, to open the safe. The robbery was aborted after those

involved received indications, via police band radio, that police were

on the way. Both residents of the house were killed by the defendants

and their accomplices before the robbers fled.

At trial the fact and general circumstances of the Bossi and Tanaka

homicides were largely uncontested. The issue litigated was that of

identity. The Territory of Guam used direct evidence to establish its

case. This included eyewitness testimony from two cooperating

witnesses who had admitted involvement in the killings and testified as

to the participation of all three defendants. A John Nahalowaa, who

had been involved with transporting a vehicle for use after the

murders, but who was never charged criminally, placed the two

cooperating witnesses and the three defendants together at the time of

the crime. There was also corroborative testimony from others that

served to confirm the eyewitness accounts.

At the conclusion of the trial the court instructed the jury on the

law. In charging the jury on the meaning of reasonable doubt, the

court read the provisions of § 90.23(a) of Criminal Procedure Code of

Guam, as is expressly authorized by § 90.23(b) thereof. There was no

objection to this instruction by any defense counsel. There was no

request made for any other instruction on reasonable doubt.

Closing arguments followed. During his argument, counsel for

Defendant Manibusan presented to the jury a chart which listed various

legal doctrines which counsel told the jury it must apply in this case.

One of these “instructions” apparently defined reasonable doubt in

terms of the two-inference rule, which advises jurors to resolve

inferences that support conflicting hypotheses in favor of the accused.

The trial court, recognizing that the definition that counsel was

presenting on “reasonable doubt” was not that which had been

? It should be noted that one of these, Joseph Manibusan, who was the brother

of one defendant and the cousin to another, provided different testimony at this trial

than he had previously. However, his prior testimony was introduced as substantive

evidence and his later version was thoroughly impeached with that and other material.

In any event, his change in testimony does not change the fact that the government's

proof was through the direct evidence of eyewitnesses.

instructed upon, stopped counsel’s argument. The judge then

instructed the jury, by reference to an item on counsel’s chart, that

“counsel’s number 4 is an inaccurate statement of the law”.

The trial judge did not indicate to the jurors what the inaccuracy

was. Counsel for Defendant Manibusan did not make his chart an

exhibit. Neither he, nor any of the other defense counsel present,

read the wording of “number 4” into the record, or took any other

steps to preserve its specific contents for review.

The defendants were subsequently found guilty of aggravated

murder, and sentenced to life imprisonment without parole. On

appeal, all three defendants claimed, among other things, prejudicial

error in the trial court’s comment regarding the counsel’s presenta-

tion of the two-inference rule.

The Appellate Division of the District Court of Guam held that

counsel’s characterization of the law, which the Appellate Division

found similar in substance to California Jury Instruction (CALJIC)

2.01, 44 3-4 (Sth Ed. 1988), was “not incorrect as a matter of

Constitutional law, [but] was not the approved jury instruction for

this jurisdiction or one submitted for this trial.” [Appendix C at 27a

(citation omitted)]. After reviewing the factual circumstances of the

instructions and closing arguments, the Appellate Division found that

the trial court’s negation of the two-inference instruction was without

prejudice in the context of this case. It similarly found that defense

counsel’s conduct, in arguing to the jury an instruction which had not

been approved by the court, was the direct cause of the court’s

interruption of counsel’s argument and the instruction countering

counsel’s representation.

In its review, the Court of Appeals held that the two-inference

instruction was a correct expression of Ninth Circuit law and that the

trial court’s instruction neutralizing it was clear error. It defined the

issue before it as limited to whether the error was harmless. The

panel reviewed the error under a “reasonably possible” standard for

harm. Its opinion gives no indication that it considered various

factors which the Appellate Division found dispositive to the

contrary. It implicitly and explicitly overrode various findings which

the Appellate Division had reached, some without discussion. There

is no indication in the opinion that any form or degree of deference

was accorded the Appellate Division’s conclusions of fact or law.

The Territory of Guam petitioned for a rehearing on the basis that

the Ninth Circuit had applied the wrong body of substantive law in

reviewing the challenged instruction. The court of appeals denied the

petition, re-emphasizing that the two-inference instruction is substan-

tively correct and that the trial judge’s phrasing of his countering

instruction was prejudicial in effect.

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT’S ACCEPTANCE OF THE “TWO

INFERENCE” DEFINITION OF REASONABLE DOUBT,

AS AN ACCURATE EXPRESSION OF CIRCUIT LAW,

CONFLICTS WITH THE HOLDING OF HOLLAND V.

UNITED STATES, 348 U.S. 121 (1954), AND WITH

VARIOUS CIRCUITS’ CONSTRUCTION OF HOLLAND.

It is clear from the Ninth Circuit’s memorandum decision of

December 16, 1992 that it’s finding of error was based on the

conclusion that Ninth Circuit law’ holds the two-inference instruction

to be inherently valid. (Appendix C at p. 4a). It began its analysis

essentially as follows:

> There is no question but that the Ninth Circuit panel erred first when it selected

Ninth Circuit law as the appropriate benchmark. A prior en banc decision of the

Ninth Circuit establishes that Guam incorporated the substance of California's law on

reasonable doubt by adopting, essentially verbatim, California's statute defining the

concept. See Guam v. Yang, 850 F.2d 507, (en banc) (9th Cir. 1988). A panel

decision following Yang reiterated that conclusion. Guam v. Ibanez, 880 F.2d 108

(9th Cir. 1989), cert. den. 496 U.S. 130-31 (1990). Based on California's casclaw,

Guam's law would require a “two inference instruction” where the proof is

predominantly circumstantial, but proscribes such where, as here, the proof is direct.

People v. Gould, 54 Cal.2d 621, 7 Cal. Rptr. 273, 277, 354 P.2d 865 (en banc)

(1960). More recently the California Supreme Court held that where the prosecution

does not "‘substantially rely’ on circumstantial evidence to prove [the] defendant

guilty", defense requests for the two-inference instruction are properly denied by the

court. People v. Wright, 276 Cal.Rptr 731, 755-56 (Cal. 1990). This case was based,

as the Ninth Circuit panel noted, on accomplice testimony. (Appendix B at p. Sa,

n.2).

[Counsel’s}] argument reflected the “two inference instruc-

tion,” which, although criticized, is a correct statement of

Ninth Circuit law. The only question is whether the court’s

error was harmless.

(Id.)(citations omitted)(footnote omitted)

The two inference instruction is not an accurate instruction on

reasonable doubt. It has been criticized by this Court, various

Circuits of the Court of Appeals, and by commentators. This Court

stated in Holland v. United States, 348 U.S. 121, 137-38 (1954) that

an instruction of this type is “confusing and incorrect” and should

not be given where, as here, the jury has otherwise been properly

instructed on reasonable doubt. There is substantial authority for the

proposition that the two-inference instruction is not only confusing

but actually dilutes the concept of reasonable doubt, by encouraging

jurors to engage in a balancing test more akin to a preponderance of

the evidence test. See, e.g. 1A Sand, Siffert, Loughlin & Reiss,

Modern Federal Jury Instructions 4.01 at 4-15 (1992) (cited by the

Ninth Circuit panel in both its memorandum (Appendix B at 4a) and

its order denying rehearing (Appendix A at 2a)).

There is substantial disapproval of the two inference instruction

in other Circuits, which appear to follow Holland with some degree

of consistency*. Even within the Ninth Circuit, the weight of

authority appears to go against the position taken by the panel of the

* Representative examples of cases which follow Holland in approving the

refusal of a two-inference type instruction, include the following: United States v.

Coombs, 464 F.2d 842, 843 (D.C. Cir. 1972), Taglianti v. United States, 398 F.2d

558, 568 (ist Cir. 1968), United States v. Warren, 453 F.2d 738, 745 (2nd Cir.

1972), United States v. Stubin, 446 F.2d 457, 465 (3rd Cir. 1971), United States

v. Hildreth, 387 F.2d 328, 329 (4th Cir. 1967), United States v. Haggins, 565 F.2d

1009, 1012 (Sth Cir. 1977), United States v. Stone, 748 F.2d 361, 362 (6th Cir.

1984), United States v. Fryer, 419 F.2d 1346, 1350 (8th Cir. 1970), Wall v. United

States, 384 F. 2d 758, 762 (10th Cir. 1967), and United States v. Johnson, 713

F.2d 633, 653 (11th Cir. 1983). The Seventh Circuit follows the practice of

providing no definition of the term “reasonable doubt”. See, e.g. United States v.

Hail, 854 F.2d 1036, 1038-39 (7th Cir. 1988).

Court of Appeals below*®. While the panel cites a series of cases

which it indicates to establish the legitimacy the two-inference

instruction, (See Appendix A, p. 2a) these appear to be cases where the

validity of the instruction itself was not litigated®.

While there is some validity in the two-inference instruction under

Guam law, it is a misleading and inaccurate definition of reasonable

doubt in this context and cannot justify the Ninth Circuit’s application

of the doctrine, which it based on its supposed general acceptance

within the Circuit’. The Ninth Circuit considered the

. See, United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969). There the defense

had requested an instruction which would have required that circumstantial evidence

“exclude every hypothesis but that of guilt". Jd. at 1240. The panel noted first that

the Supreme Court in Holland v. United States, 348 U.S. 121 (1954), had criticized

a similar instruction and then interpreted Holland as indicating that no distinction is

to be drawn between circumstantial and direct evidence when considering reasonable

doubt. The Nelson court also indicated that no guidance beyond the basic definition

of reasonable doubt was necessary or appropriate, and stated that the rule adopted

from Holland was consistent with prior Ninth Circuit caselaw. Jd. at 1241-43.

Numerous cases follow Nelson in the Ninth Circuit, including United States v. Heck,

499 F.2d 778, 790 (9th Cir. 1974) and United States v. Sukumolachan, 610 F.2d 685

(9th Cir. 1980). See also, Sablan v. Guam, 434 F.2d 837, 839 (9th Cir. 1970)

(applying the holding in Nelson to a context where the sufficiency of the evidence is

considered).

the two-inference instruction accurately describes reasonable doubt. While the James

decision concededly rejects a challenge to such an instruction, that decision does not

address the propriety of the instruction in itself. James’ attack on the jury charge was

repelled first because he failed to properly request the desired instruction, id. at 226,

and foremost because the instruction given substantially expressed what he had

requested “We believe the substance of James’ desired instruction was more than

adequately given". Id. at 227. The decision passes over, not upon, the relative merits

of such an instruction. The two other decisions cited by the panel go no further than

James. United States v. Grayson, 597 F.2d 1225, 1230, (9th Cir. 1979), declined to

find error in a trial court’s refusal to give the two-inference instruction in view of the

other instructions already provided, although it suggested, in dicta, that the trial judge

would have had the discretion to do so. In United States v. Miller, 688 F.2d 652, 662

(9th Cir. 1982) the panel, without in anyway endorsing the content of the two-

inference instruction, approved its rejection by the trial judge.

7 See note 3, at p. 6, supra.

correctness of the “two-inference” instruction in a vacuum, without

concern for the factual context in which defense counsel sought it

and the court rejected it. The Court of Appeals was apparently

unwilling to consider whether this instruction would be inaccurate or

misleading in a case resting squarely on direct evidence’.

The decisions confronting the two inference instruction generally

do so in the context of circumstantial evidence. (See, e.g. United

States v. Grayson, 597 F.2d 1225, 1230, (9th Cir. 1979); United

States v. Miller, 688 F.2d 652, 662 (9th Cir. 1982); United States

v. James, 576 F.2d 223, 227. See also, Holland v. United States,

348 U.S. 121, 137-38 (1954)). This was not a case that dealt with

such proof to any substantial degree. The Ninth Circuit acknowl-

edged that the government’s case was developed primarily through

accomplice testimony (Appendix B at 5a, n.2), which would

obviously be direct evidence, yet it found prejudice on the basis that

the instruction given “suggested to the jury that if torn between two

equally reasonable hypotheses it could still convict” (/d.) (emphasis

added).

The two-inference instruction has been widely criticized even in

the context where it bears the most logical relevance to the applica-

tion of the reasonable doubt standard: in situations where the jury

is asked to draw inferences from circumstantial evidence. However,

here, in a case which was presented through direct evidence, it was

grossly misleading, and inaccurate. See, e.g. People v. Jernan, 29

Cal.2d 189, 197, 173 P.2d 805 (1946) (noting policy concerns

behind limiting use of the two-inference instruction to include the

danger of misleading and confusing the jury when a case consisting

of primarily direct evidence is put before them.) A jury cannot be

tasked with comparing “hypotheses” , without circumstantial evidence

and inferences to rest them on. Such an instruction misdirects the

* However, the panel did label the prosecutor’s comments, which indicated that

the two-inference instruction applied only to circumstantial evidence, as erroneous.

(Appendix B at Sa, n. 3). This indicates that the panel drew no distinction between

the instruction in one context or the other.

attention and comprehension of the jury in all cases where the issues

for decision rest on direct evidence’.

The Ninth Circuit based its assessment of error using substantive

law which conflicts with this Court’s holding in Holland v. United

States, 348 U.S. 121 (1954), and case authority following it across the

Circuits. The Court should grant the writ in order to resolve the

conflict and to specifically clarify when, if ever, the “two-inference”

test is valid.

II. THE REASONABLE POSSIBILITY TEST APPLIED BY

THE NINTH CIRCUIT IN DETERMINING PREJUDICE

DIRECTLY CONFLICTS WITH DECISIONS OF THE

DISTRICT OF COLUMBIA AND THE FOURTH CIR-

CUIT COURTS OF APPEALS, AS WELL AS WITH

THE AUTHORITY OF THIS COURT IN BOYDE V.

CALIFORNIA, 494 U.S. 370 (1990).

The Ninth Circuit expressly reviewed the record using a “reason-

ably possible” test to determine whether the questioned instruction was

prejudicial. (Appendix B, p. 4a). This standard,

° There are indications in the record that counsel for Defendant Manibusan

deliberately sought the two-inference instruction to use in a misleading manner. It was

apparently used to leverage an argument that the jury could compare, as two

competing scenarios, the government's evidence of the case and that reflected in

statements made by a Cathy Burger and “Person A” (James Leon-Geurrero). See

Appendix C at 17a (quoting counsel’s argument as it related to the two-inference

instruction: Counsel first tells the jury the two-inference instruction applies where

“you look at different sets of facts” and then he goes on to suggest as a possible line

of thought for the jurors during deliberation:

“‘And I listened to the statements made by Cathy Burger and the person

labelled “A”, and it is reasonable that maybe [the Defendants] didn’t do it”.

You don’t have a choice. You have to come back with a not guilty verdict.

So when you're given a choice between two and they're both reasonable

you have to come back with a not guilty verdict.”)

This was misleading because the statements of Cathy Burger and “Person A” were

found to be unreliable hearsay and admitted into evidence for the limited purpose of

impeachment. C.f, Appendix C at 16a (discussing the admission of certain hearsay

statements for impeachment alone). An argument that used the two-inference model

to have these statements compared with the government's case as competing reasonable

hypotheses would appear to be a calculated abuse of the instruction.

which appears questionable generally”, is not applicable to the

issue at bar. The proper standard is whether it is “reasonably

probable” that the instruction in question prevented the jury from

properly applying the reasonable doubt standard to its deliberations.

See Boyde v. California, 494 U.S. 370, (1990) (holding, in the

context of a habeas corpus review, that an ambiguous instruction

bearing on the defendant’s Eighth Amendment rights in a death

penalty case would be reviewed for a “reasonable likelihood” of

prejudice)".

The Boyde standard is appropriate because the instruction at

issue, rather than being erroneous in substance, was ambiguous. The

trial court explicitly instructed the jury verbatim with Guam’s

statutory definition of reasonable doubt. (Guam Criminal Procedure

Code at § 90.19(a)). This was a proper and sufficient explanation

which apprised the jury of the high standard to which the evidence

must be held. C.f. Guam v. Yang, 850 F.2d 507 (9th Cir. 1988) (en

banc) (holding that Guam courts must instruct on reasonable doubt

using this language). Only after defense counsel presented an

unauthorized and misleading definition of reasonable doubt to the

jury did the court intervene to state that counsel’s “number 4 is an

inaccurate statement of law”. The trial court’s comments were not

in substance incorrect because it was proper to remove the two-

inference instruction from the jury’s consideration’.

'© The standard applied here was drawn from a dubious line of Ninth Circuit

cases which holds that instructional errors in criminal proceedings are always

reviewed for a “‘reasonable possibility’” that the error materially affected the

verdict.” Appendix B at 4a. (emphasis in original), citing to United States v. Valle-

Valdez, 554 F.2d 911, 915 (9th Cir. 1977) (which actually indicates that there is

uncertainty in the Circuit as to the appropriate standard of review) and United States

v. Rubio-Villareal, 967 F.2d 294, 296 n.3 (9th Cir. 1992).

"! See also, Estelle v. McGuire, _U.S.__, 112 S.Ct. 475, 482, _L.Ed2d. _

(1991). (citing Boyde for the proposition that “in reviewing an ambiguous instruc-

tion . . . we inquire ‘whether there is a reasonable likelihood that the jury has

applied the challenged instruction in a way’ that violates the Constitution.”)

2 The Ninth Circuit panel appears to acknowledge this much in its decision

denying rehearing. Appendix A at 2a.

Because the court indicated simply that it was inaccurate, without

elaboration, there was no affirmative indication to the jury of how

“number 4” should be regarded, except to be simply ignored (which

was apparently the court’s intention). While ambiguous, the natural

effect of the court’s instruction would have been to cause the jurors to

rely on the explicit definition of reasonable doubt which the court had

already provided.

The specific contents of the trial court’s instruction on this point

remains ambiguous on appeal. The court’s comments, which incorpo-

rated by direct reference the content of defense counsel’s written

“instruction”, are not known in detail because counsel did not preserve

it for the record”.

Any possible prejudice must flow from ambiguity. Thus Boyde,

supra, expressly carves out a distinct standard of review for ambiguous

instructions, must apply. In Boyde v. California, 494 U.S. 370,

(1990), this Court reviewed for prejudice an instruction that advised

jurors how to consider mitigating circumstances in sentencing the

defendant to life or death. The instruction indicated simply that the

jury could consider “any other circumstance which extenuates the

gravity of the crime even though it is not a legal excuse for the

crime”. (494 U.S. 370, , 110 S.Ct. 1190, 1194.) Boyde

claimed that the instruction “did not allow the jury to consider

mitigating evidence of the defendant’s background and character”. (/d.

at 1195.) This Court first resolved that the instruction was not in itself

incorrect and went on determine that “reasonable likelihood” of

prejudicial effect was the appropriate standard of review.

In Estelle v. McGuire, _ U.S.__, 112 S.CT. 475, 482, n.4,

__L.Ed. 2d__, the Court reaffirmed its commitment to the standard set

forth in Boyde, expressly overruling inconsistent tests for

'3 Because the court's interjection was directed to the content of “number 4”

specifically, and counsel for the defense chose not to make the phrasing of “number

4” a part of the record, the import of the court’s guidance to the jury is made all the

more uncertain and ambiguous for the purposes of appeal. It was incumbent on

defense counsel to preserve this. See, e.g. United States v. Wilson, 904 F.2d 656

(11th Cir. 1990), cert. den. U.S.__, 1112 S.Ct. 250, 116 L.Ed2d 205 (1990)

(indicating that the obligation is on appellants to ensure that an adequate appellate

record is compiled).

prejudice that were stated in two cases that had followed it: Cage

v. Louisiana, 498 U.S. __, 111 §.Ct 328, 112 L.Ed.2d 339 (1990)

and Yates v. Evatt, 500 U.S.__, 111 S.CT. 1884, 114 L.Ed. 2d 432

(1991). McGuire indicated that Boyde was to be broadly interpreted.

112 S.CT. 475, 482, n.4 (citation omitted).

Consequently, there is inconsistency in the manner in which the

Circuits have applied Boyde under McGuire; specifically as to

whether the “reasonable likelihood” test is intended for all claims of

instructional error or only those presenting ambiguity, and whether

the standard is employed in direct federal appeals as well as in

reviewing state judgments in habeas proceedings".

The Fourth Circuit, in United States v. Craigo, 956 F.2d 65 (4th

Cir. 1992), applies the standard in a direct appeal from a district

court judgment. See also, United States v. Cobb, 905 F.2d. 784 (4th

Cir. 1990) (same). Craigo also indicates a willingness to apply the

standard, not only where the instruction is ambiguous, but also

where it is “clearly error”. 956 F.2d at 67. The District of

Columbia Circuit has applied the rule in the context of a direct

appeal, United States v. Merlos, 984 F.2d 1239, 1241 (D.C. Cir.

1993). In that case it termed the questioned instruction, which

defined reasonable doubt in terms of the jurors’ “strong belief”, as

ambiguous. (/d.) The Third Circuit, which has not yet addressed

the issue in the context of a direct federal appeal, has suggested that

it may apply the Boyde standard to all claims of instructional error,

ambiguous or otherwise. Rock v. Zimmerman, 959 F.2d 1237, 1247,

n. 3 (3rd Cir. 1992). The Eighth Circuit has so far found the

standard to be applicable to ambiguous instructions. Karras v.

Leapley, 974 F.2d 71 (8th Cir. 1992).

The Ninth Circuit has applied the Boyde test but only in a case

involving habeas review and there to an instruction termed ambigu-

ous. See Jeffries v. Blodgett, 974 F.2d 1179, 1193 (1992). In

'* Some Circuits, such as the Second have not addressed the issue. Both the

Fifth and Eleventh Circuits have acknowledged Boyde without having occasion to

apply it’s holding. See Wilkerson v. Collins, 950 F.2d 1054, 1060 (Sth Cir. 1992)

and Stephans v. Zant, 968 F.2d 1076, 1086 (11th Cir. 1992). See also, Hill v.

Maloney, 927 F.2d 646, 651 (ist. Cir. 1990) (applying Boyde in a factually

analogous setting).

United States v. Koshnevis, 979 F.2d 691 (9th Cir. 1992) and United

States v. Velasquez, 980 F.2d 1975 (9th Cir. 1992) the Ninth Circuit

did not apply Boyde. Koshnevis was a direct appeal involving a

challenge to a jury instruction which permitted the jury to draw an

inference of possession if they found certain facts. The issue is similar

to that in McGuire, supra, except that the Ninth Circuit applied a

“reasonable possibility” test, based on United States v. Rubio-Villareal,

967 F.2d 294 (9th Cir. 1992), and determines after a predominantly

factual analysis of the record, that there was no prejudice.

In United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir.

1992) the Ninth Circuit reviewed, on direct appeal, a challenge to a

jury instruction which defined proof beyond a reasonable doubt as

“proof ‘that leaves you firmly convinced’”. In affirming the convic-

tion the panel applied neither the Boyde test of “reasonable likelihood”

nor the test of “reasonable possibility”, instead simply holding that a

definition of reasonable doubt using “firmly convinced” as an

evidentiary standard was not erroneous.

Boyde’s test of reasonable likelihood should have been applied to

the case at bar, rather than the “reasonable possibility” test advanced

in Rubio-Villareal. The instruction at issue here, which advised the

jury that a confusing statement of law presented by counsel was

inaccurate, but did not describe in what manner, can only be consid-

ered erroneous through ambiguity”.

Although the present case was considered by the Ninth Circuit on

direct appeal, Boyde is not properly limited to proceedings on habeas

petitions. At least two Circuits of the Court of Appeals have interpret-

ed McGuire as extending Boyde to ambiguous jury instructions

15 As discussed above the Ninth Circuit panel does appear to label the instruction

substantively defective under Ninth Circuit law. However, it has been shown that

Ninth Circuit law is inapposite to the question and that, in any event, the pancl’s

construction of Ninth Circuit law is erroneous.

ae +

on direct appeal as well as in habeas proceedings'®. The language

used by the Court in both Boyde and McGuire support the conclusion

that these Circuits are correct in doing so.

When this Court adopted the “reasonable likelihood” test in

Boyde it made reference to other legal contexts where that standard

had previously been used. 494 U.S. at 370, _, 110 S.Ct. 1190,

198, n.4, _L.Ed.2d_. The discussion there identifies various

Constitutional violations; such as ineffective assistance of counsel,

the prosecutor’s suppression of exculpatory evidence, etc.; where

“reasonable likelihood” of prejudice is the standard which a criminal

defendant must meet to obtain relief*’.

The logical underpinnings of the Boyde test, as expressed there,

support its application in all instances where an ambiguous instruc-

tion is in issue. The impact of an ambiguous instruction is necessari-

ly speculative. As this Court noted in Boyde:

The ‘reasonable likelihood’ standard . . . better accom-

modates the concerns of finality and accuracy than does a

standard which makes the inquiry dependent on how a

single hypothetical “reasonable” juror could or might have

interpreted the instruction.

Estelle v. McGuire, _U.S._,112 S.Ct. 475, 482, n. 2

__L.Ed.2d__ (1991) supports even broader application of the Boyde

test; expressing it in terms that seem intentionally far-reaching: “In

'© In United States v. Merlos, 984 F.2d 1239 (D.C. Cir. 1993) the D.C.

Circuit applied the Boyde test, to a direct appeal from a district court judgment, to

determine whether there was error in a reasonable doubt instruction which used the

term “strong belief” as a benchmark. In two instances the Fourth Circuit has

applied the Boyde standard in affirming judgments on direct appeal. See United

States v. Cobb, 905 F.2d 784 (4th Cir. 1990) and United States v. Craigo, 956 F.2d

65 (4th Cir. 1990).

'7 See United States v. Valenzuela-Bernal, 458 U.S. 858, 874, 102 S.Ct. 3440,

3450, 73 L.Ed.2d. 1193 (1982) (applying reasonable likelihood to question of

whether due process is violated by deportation of defense witnesses prior to trial)

and United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d

481 (1985) (applying reasonable probability of prejudice test to prosecution's alleged

suppression of evidence).

Boyde . . . we made it a point to settle on a single standard of review

for jury instructions—the “reasonable likelihood” standard—after

considering the many different phrasings that had previously been used

by this Court.” (Citation omitted). After McGuire, in which the

Court went to considerable lengths to establish what appears to be a

single standard, the Boyde test would arguably apply to the review of

all jury instruction alleged erroneous.

In Holland v. United States, 348 U.S. 121, 140 (1954), this Court

recognized a distinction, for purposes of review, between instructions

causing “confusion” and those leading to “misapprehension”. Boyde

expressly established that ambiguous instructions, are to be reviewed

for a “reasonable likelihood" of prejudice. The Ninth Circuit, which

has indicated in recent opinions that it will always apply a “reasonable

possibility" test when reviewing jury instructions for error’, has

rejected this distinction. The District of Columbia and Fourth Circuits

have embraced it. This Court should grant certiorari to address

apparent conflict between the Ninth Circuit, and the District of

Columbia and the Fourth Circuits, respectively, as to the appropriate

application of the Boyde test.

Il. THE FACTUAL REVIEW CONDUCTED BY THE

NINTH CIRCUIT IN THIS MATTER CONFLICTS

WITH THE STANDARD SET FORTH IN CUPP V.

NAUGHTEN”, BECAUSE THE PANEL BELOW

FAILED TO CONSIDER ALL MATTERS IN THE

RECORD BEARING ON THE JURY’S INTERPRE-

TATION OF THE QUESTIONED INSTRUCTION.

Cupp v. Naughten, 414 U.S. 141, 147 (1973) cites Boyd v. United

States, 271 U.S. 104, 107 (1926) to reiterate the rule that questioned

jury instructions must be evaluated for prejudice in the context of the

entire charge. Cupp is routinely cited for this proposition not only in

habeas proceedings but on direct appeals. See, e.g. United States v.

Bordallo, 857 F.2d 519 (9th Cir. 1988). A reading of Cupp however,

indicates that it requires that the

'* United States v. Rubio-Villareal, 967 F.2d 294, 296-97 (9th Cir. 1992) and

United States v. Koshnevis, 979 F.2d 691, 696 (9th Cir. 1992).

1? 414 U.S. 141, 147, 94 S.Ct. 396, 400-01, 38 L.Ed.2d. 368 (1973).

challenged instruction be placed in the context of the entire trial.

The rule does “recognize that a judgment of conviction is commonly

the culmination of a trial which includes testimony of witnesses,

argument of counsel, receipt of exhibits in evidence, and instruction

of the jury by the judge.” Cupp, 414 U.S. at 147. It would appear

to indicate that, at the very least, all matters in the record that bear

a logical relationship to the jury’s interpretation of the instructions

should be considered in determining its harmfulness.

Regardless of how Cupp is construed it appears certain that the

Ninth Circuit’s factual review so far departed from the accepted and

usual course of judicial proceedings as to call for an exercise of this

Court’s power of supervision. In determining that the trial court’s

Statement to the jury, that “counsel’s number 4 is an inaccurate

statement of law”, was prejudicial, the panel essentially ignored the

fact that the counsel in question did not preserve the content of his

“number 4” so that any prejudice in the court’s comment could be

clearly discerned. The Court of Appeals found that the content of

counsel’s written chart was sufficiently preserved from the argument

on record that counsel made from it”. Given that the court’s

counter to counsel’s "instruction", was to negate it in its own terms

(by reference to its number on the chart) it would appear that the

wording of “number 4” is of considerable importance. The

determination of prejudice from a jury instruction requires “careful

attention to the words actually spoken to the jury”. Sandstrom v.

Montana, 442 U.S. 510, 514 (1979). Where those words incorpo-

rate a written illustration by reference such that they are meaningless

without that reference, the absence of such an illustration is obvious-

ly of great consequence, and should not be overlooked.

® Appendix B, at p. 4a, n. 1: “We reject the States’s contention that this

claim was not properly preserved for appellate review. Appellants did not make a

record of the counsel's exact statement as written on a courtroom blackboard, but

the substance of counsel's statement was repeated to the jury and recorded in the

trial transcript.” It is worth noting first that the medium used by counsel to present

his written statement of the law was noted by the Appellate Division simply to be

a demonstrative chart (Appendix C at p. 17a) and there is no indication in the

record that counsel's was using a “courtroom blackboard” rather than a posterboard

of his own. While this may seem a minor point, it is significant in the sense that

the Ninth Circuit appears, in this and other matters here, to go out of its way to

excuse the defense counsel's contribution to both the error raised, and the difficulty

in reviewing it.

The Ninth Circuit’s memorandum decision silently ignores several

facts which the Appellate Division found to be of major consequence

in finding that no prejudice obtained. Most notable among these was

that, following the trial court’s interruption of Counsel for Defendant

Manibusan, and the interjection of the challenged instruction, all

counsel went on to explain reasonable doubt to the jury. (Appendix C

at 27a). Under Cupp v. Naughten, supra, this would be worth noting

in any case. But in this situation it had special significance. Accord-

ing to the Ninth Circuit’s decision the trial judge’s remark had a

devastating effect because it was made during closing argument.

(Appendix B at Sa). The trial judge interrupted defense counsel sua

sponte to correct a point of law which counsel had presented. It can

be inferred that when the various counsel subsequently presented their

explanations of reasonable doubt without interruption, that a reasonable

jury would see these as being implicitly approved by the court.

The respective panels below assessed defense counsel’s contribu-

tion to the error quite differently. The Appellate Division, in

determining whether there was prejudicial error, found that the trial

court’s interjection of the questioned instruction was “invited” by

defense counsel’s presenting a nonapproved, improper definition of

reasonable doubt. (Appendix C at 27a). The Ninth Circuit, in

expressly overriding the Appellate Division’s conclusion held that

comments made by the prosecutor in rebuttal closing offset the defense

counsel’s misconduct. (Appendix B at 5a, n. 3) However, the

prosecutor’s “fault” went only so far as telling the jury that the two-

inference instruction applied to circumstantial rather than direct

evidence. (/d.) Furthermore, the Ninth Circuit’s minimization of the

invited error here is directly at odds with the Seventh Circuit’s

treatment of very similar case where the defense counsel, though

perhaps less culpable, was held responsible for causing any instruc-

tional error”. It appears from the record that the Ninth Circuit

conducted a factual review which ignored certain matters of signifi-

cance, and minimized others.

The determination of prejudice in this case should have been a

mixed fact-law question in which factual questions predominated”.

See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.

1984), defining the concept, by reference to Pullman-Standard v.

Swint, 456 U.S. 273, 288 (1982), in terms of whether the issue is

essentially factual in nature. Under McConney a district court’s

determination of such issues is subject to review for clear error

only”. Jd. at 1202-03. But there is no indication that the Ninth

Circuit gave real consideration, much less deference, to the Appellate

Division’s factual conclusions.

It appears that the Ninth Circuit applied a limited factual review

and rejected, without consideration, conclusions of fact reached by

the appellate panel whose decision it reviewed. This does not meet

21 In United States v. Glass, 846 F.2d 386 (7th Cir. 1988), that court, which

normally permits no instruction on the definition of reasonable doubt, dealt with a

case where the district court, upon request from defense counsel, allowed argument

on its meaning, but gave no instruction on it. The jury, confused, subsequently

requested an instruction from the court on reasonable doubt, and the trial judge

refused to provide any. In affirming the judgment of conviction the Court of

Appeals noted that it was Glass’ counsel who caused the problem by attempting to

define reasonable doubt, holding him responsible even though he had obtained the

prior approval of the court to argue the point.

In this case the analysis employed by the Ninth Circuit applied a question-

able Ninth Circuit doctrine which assumed error in the challenged instruction and

then sought prejudice using a “reasonable possibility” test. However, the analysis

should have hinged on a factual determination of the probable effect of the words

used on a reasonable jury.

® There is admittedly a question as to whether the Ninth Circuit should treat

the Appellate Division of the District Court of Guam, as a district court for the

purposes of McConney. Here it is sitting as an appellate tribunal rather than trial

court. However, McConney also speaks of concerns of judicial administration and

‘ndicates that the court best positioned to make factual or legal determinations

should be that entrusted to do so. The Appellate Division, as the Appellate panel

first reviewing alleged trial errors, should be given this role and its determinations

reviewed for clear error.

the requirements of Cupp v. Naughten, supra. Under the circum-

stances of this case it is so extreme a departure from the accepted and

usual course of judicial proceedings that this Court should grant the

writ to exercise its powers of supervision to correct this error”.

IV. THE MANNER IN WHICH THE NINTH CIRCUIT

REVIEWED THE JUDGMENT OF THE APPELLATE

DIVISION COMPLETELY NULLIFIED ITS ROLE IN

GUAM’S APPELLATE PROCESS. THIS VIOLATES

THE CONGRESSIONAL MANDATE PROVIDED THE

APPELLATE DIVISION IN 48 U.S.C. § 1424-3 AND

CONFLICTS WITH AN ESTABLISHED LINE OF

DECISIONAL AUTHORITY OF THIS COURT®. THE

COURT SHOULD GRANT THE WRIT TO CORRECT

: AN EXTREME DEPARTURE FROM THE USUAL AND

ACCEPTED COURSE OF JUDICIAL PROCEEDINGS

REFLECTED IN THIS MATTER.

As is discussed above, the Ninth Circuit Court of Appeals

substituted its own body of substantive law for that of Guam in

reviewing the correctness of the jury instruction in question. The panel

reviewed this ambiguous instruction to determine, incorrectly, if it was

“reasonably possible” that prejudice resulted from it. In conducting its

review the Ninth Circuit panel also discounted, without serious

consideration, the legal and factual conclusions

** tn this case the Ninth Circuit accorded no deference to the Appellate Division's

review for prejudice and its finding that none existed, simply ignoring its reasoning

for the most part. There are admittedly questions as to what deference the Appellate

Division is due, since it sits as an intermediate appellate court in a specialized context.

The manner in which the Ninth Circuit treats its own panels, when it sits en banc,

strongly suggests some modicum of deference was due to the Appellate Division. See,

e.g., United States v. Rubio-Villareal, 967 F.2d 294, 300 (9th Cir. 1992) (en banc)

(remanding to three judge panel of Ninth Circuit to permit that court to consider

whether, in light of legal determinations reached in the decision, the instructional error

found was harmless).

5 See Bonnet v. Texas Company, 308 U.S. 463, 470-71 (1940) -and cases cited

therein. Holding that Territorial courts are to be accorded deference in determining

issues of local law. See also, Guam v. Olsen, 431 U.S. 195, 204, n.10 (1977)

(indicating that Guam's judiciary is to be treated like the judiciaries of the other

Territories).

reached by the Appellate Division. The manner in which the review

was conducted amounts to the nullification of the Appellate Divi-

sion’s role in Guam’s Appellate structure. In this respect, the

decision extends Guam v. Yang, 850 F.2d 507, 509-11 (9th Cir.

1988) (en banc). There, the Ninth Circuit resolved that it would no

longer apply a standard of deferential review to the Appellate

Division’s determination of Guam’s local law.

Prior to Yang, the Ninth Circuit would reverse the Appellate

Division’s interpretation of local law only if “clear and manifest

error is shown” Gumataotao v. Guam, 322 F.2d 580, 582 (9th Cir.

1963) (citation omitted). After Yang, the review of such issues is de

novo. 850 F.2d at 509-11. By this transition the Circuit not only

departed from a long line of its own precedent, but from this Court’s

as well. See, e.g. De Castro v. Board of Com’rs of San Juan, 322

U.S. 451 (1944) (requiring clear and manifest error before federal

appellate courts reverse Territorial courts on matters of local law)

and Bonnet v. Texas Company, 308 U.S. 463, 471, (1940) (“To

justify reversal in such cases, the error must be clear or manifest; the

interpretation must be inescapably wrong; the decision must be

patently erroneous").

The Ninth Circuit’s rejection of the rule was based on a three-

fold rationale: That only one of the judges sitting on the Appellate

Division in that case was a “local” judge; that a previous Ninth

Circuit case; Matter of McLinn, 739 F.2d 1395 (9th Cir. 1984) (en

banc), resolved that decisions of district court judges interpreting

State law are reviewed de novo, and because the Third Circuit had

concluded, in Saludes v. Ramos, 744 F.2d 992 (3rd Cir. 1984), that

it would not give deference to the similarly structured Appellate

Division of the District Court of the Virgin Islands. Yang, 850 F.2d

at 509-11.

The Yang Court’s reasoning on these points was not well support-

ed*. The Saludes case did not present an actual conflict because the

panel there relied upon a factor not present in Guam’s circumstances.

In rejecting deferential review for the Appellate Division of the District

Court of the Virgin Islands, the panel emphasized that because the

Virgin Islands has left a substantial portion of local original jurisdiction

to the District Court “it is frequently the District Court in the Virgin

Islands that serves as the trial court and interprets law in the first

instance”. 744 F.2d at 9947’. In fact, Saludes appears to have been

just such a case, where the trial court had been the District Court of

the Virgin Islands. Guam, though having a similar jurisdictional

statute, does not share this situation”.

The Third Circuit also based its rationale on a reading of Supreme

Court authority which restrictively interpreted it as applying the

deference rule only to those Territories having insular courts. Saludes,

744 F.2d at 993-94. As is discussed below, this Court’s deferential

review is based on policy which has equal application to courts such

as the Appellate Division of Guam, which “wear two hats” so to

speak.

clearly using its supervisory authority, reversed the judgment of conviction because

the trial court had given a definition of reasonable doubt based upon “hesitation to act”

instead of Guam’s statutory definition of “moral certainty”. This reversal was done

without a review for harmless error, despite a requirement clearly expressed for such

in Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). The Ninth Circuit had,

in previous (though unpublished) decisions, approved use of the challenged instruction

in Guam’s courts. Yang, 850 F.2d at 512, n.8. Though certiorari was not sought

from this court in Yang, it was sought, and denied, in a subsequent case which

expanded Yang's effect. Guam v. Ibanez, 880 F.2d 108, cert. den., 496 U.S. 930-31

(1990).

7” The panel cited to 48 U.S.C. § 1612, which reserves to the District Court such

original jurisdiction as is not assumed through local legislation.

% While 48 U.S.C. § 1424(c) reserves residual jurisdiction for the District Court

of Guam using similar language, in application it is apparently different because

Guam, having enacted a complete set of codes dealing with criminal and civil matters

has acted to divest the District Court of such original jurisdiction entirely. See, Guam

v. Olsen, 431 U.S. 195, 197-98, nn. 3 and 4 and accompanying text (1977).

The McLinn decision, which Yang portrays as establishing that

District Court judges should not be given deference in their determi-

nations of local law, relied very heavily on the fact that these judges

sit alone rather than in panels and that their determinations lack one

of the major safeguards associated with appellate review:

It stands to reason that the collaborative, deliberative

process of appellate courts reduces the risk of judicial error

on questions of law. Thus, de novo review of questions of

law, like clearly erroneous review of questions of fact,

serves to minimize judicial error by assigning to the court

best positioned to decide the issue the primary responsibility

for doing so.

(Matter of McLinn, 739 F.2d 1395, 1398 (9th Cir. 1984) (quoting

United States v. McConney, 728 F.2d 1195, 1201 (9th Cir. 1984) (en

banc)).

That McLinn’s rationale does not apply to the Appellate

Division, because it is a three judge panel, was expressly stated in

a prior Ninth Circuit decision, Brown v. Civil Service Com’n, 818

F.2d 706, 708 (9th Cir. 1987). The Yang court failed to address that

case law, as it failed to address the string of decisions of this Court

which require deferential review of a Territory’s determination of its

own law.

In justifying its permanent shift to de novo review of the

Appellate Division’s interpretations of local law, the Ninth Circuit

relied on the fact that the panel below included only one local judge,

rather than the two which are permitted under the statutory scheme

for its composition”. The Yang court stated that since a majority

° One of the three judges on the appellate panel is the district court judge from

Guam, 48 U.S.C. § 1423-3(b). Another is typically from the Northern Mariana

Islands. See S. Rep. No. 1582, 85th Cong., 2d Sess. (1958), reprinted in 1958

U.S.C.A.A.N. 2623; H.R. Rep. No. 951, 85th Cong., 1st Sess. (1957) (stating that

Congress’ intent was that judges assigned to Guam's courts be from the general

vicinity of Guam) Guam is geographically part of the Northern Marianas Islands and

the two share a common culture, language and history. See Arnold Leibowitz,

Defining Status: A Comprehensive Analysis of United States Territorial Relations

316, 521-22 (1989).

of the panel were outsiders, they lacked as a group, any presumptive

expertise in the local law. (/d. at 510). The Ninth Circuit noted that

even if an additional member of the panel were from the neighboring

Northern Marianas Islands it would not affect this analysis. This

remark reflects an oversight in the Yang Court’s review of the

deference standard’s policy bases. The rule does not apply simply

because a local judge may better know the local law, but because a

judge situated in the locale may better understand the socio-economic

context in which the law is applied. Given the similarities between

Guam and the Northern Marianas a judge from there would have

substantial expertise in understanding the application of Guam’s law”.

Prior decisions of the Ninth Circuit, applying the deference

standard, acknowledged the broader policies for its application. In

Brown v. Civil Service Com’n, 818 F.2d 706, 708 (9th Cir. 1987), a

panel considered whether the deferential standard for its review of

Guam’s Appeilate Division should survive McLinn. In holding that it

did, Brown noted the court’s previously stated justification that “‘local

Guam needs and customs may differ from those with which federal

courts would otherwise be familiar. . . .”” (quoting Laguana v. Guam

Visitors Bureau, 725 F.2d 519, 520-21 (9th Cir. 1984). See also,

Aguon v. Calvo, 829 F.2d 845, 847 (giving deferential review on

“matters of local law, custom or policy”) and Gumataotao v. Guam,

322 F.2d 580, 582 (1963) (citing as basis of rule that “local needs,

customs and legal systems may differ”).

The policies discussed in Supreme Court opinions bearing on

deferential review of Territorial courts indicate this standard was not

® See n.29, supra. The case at bar presents an example of how an understanding

of culture can make a difference in the application of local law. The Appellate

Division noted in its opinion below that this appeal arose from a retrial after the first

trial had ended with a hung jury. (Appendix C at 14a). However, that panel went on

to note that in the first trial the jury had returned a guilty verdict, but that one juror

when polled indicated that the verdict announced was not her's. (id.) The Ninth

Circuit cited the fact of a prior hung jury, without comment on these circumstances,

as an indication that the evidence was insufficiently strong to make a serious error

harmless. (Appendix B, at Sa, n.2). The Appellate Division, with at least one judge

who was familiar with the effect that a close-knit island community may have on a

juror being polled, was able to see some significance in how the jury became hung.

ot RDN AT dat

intended to apply solely to those Territories having their own insular

courts. The rationales expressed are often similar to those addressed

in the Ninth Circuit cases described above, which express concern

for societal context. In Diaz v. Gonzales, 261 U.S. 102, 106 (1923),

Mr. Justice Holmes, pointed out the profound influence that culture

has in the interpretation of law in this context:

When we contemplate [a system built on Spanish law] from

the outside it seems like a wall of stone, every part even

with all the others, except so far as our own local education

may lead us to see subordinations to which we are accus-

tomed. But to one brought up within it, varying emphasis,

tacit assumptions, unwritten practices, a thousand influenc-

es gained only from life, may give to the different parts

wholly new values that logic and grammar never could have

gotten from books.

The passage above was quoted with both approval and emphasis in

Bonnet v. Texas Company, 308 U.S. 463, 470, n. 17 (1940). Other

decisions of this Court emphasize not only the importance of

respecting the context in which law is interpreted but in permitting

a body of case law to develop that is reflective of the community’s

own values and traditions”.

Yang also failed to take into account Congress’ intent in creating

Guam’s judiciary. Yang expressly stated that the Ninth Circuit is

Guam’s Supreme Court until such time as the Guam legislature

3! «Orderly development of the Government of Puerto Rico as an integral part

of our governmental system is well served by a careful and consistent adherence to

the legislative and judicial policy of deferring to the local procedures and tribunals

of the Island.’” Bonnet v. Texas Company , 308 U.S. 463, 471 (1940) (quoting from

Sancho Bonet v. Yabucoa Sugar Co., 306 U.S. 505, 510 (1939). See, e.g. In re

Sawyer, 360 U.S. 622, 640 (1959) (“this Court and the Courts of Appeals must give

the Territorial Courts freedom in developing principles of local law, and in

interpreting local legislation”).

Pe ee

creates one”. 850 F.2d at 510, n.4. However, this Court’s opinion

in Guam v. Olsen, 431 U.S. 195, 203, suggests that Congress intended

the Appellate Division to serve that function:

It was also envisioned that the district court would serve as an

appellate body once local courts were established. The

apparent reason for eliminating the provision for a local

supreme court was to avoid duplicative judicial machin-

ery. . . . (Quoting from, and expressly adopting, then Judge

Kennedy’s dissenting opinion in Agana Bay Dev. Co. (Hong

Kong) Ltd v. Supreme Court of Guam, 529 F.2d 952, 961

(9th Cir. 1976).

In Olsen this Court considered whether § 22 of the 1950 Organic

Act of Guam permitted the Guam Legislature to create a Supreme

Court that could supplant the Appellate Division of the District Court

of Guam. Olsen concluded that it could not because it found Congress

had mandated a specific role for the Appellate Division which the

Guam Legislature was not authorized, at that time, to eliminate. In

reaching this conclusion the Court specifically noted that Congress had

consistently provided procedures for review of Territorial Courts and

that the available legislative history indicated that Guam was to be

treated no differently. 431 U.S. at 203-04 (text at n.10).

The manner in which the Appellate Division came into being

leaves no doubt that it is, by origin, a local appellate court. It was

created in 1951, under the authority of the Organic Act, by the Guam

Legislature through Public Law 17, which granted exclusive jurisdic-

tion in certain matters to the Island Court of Guam, and provided that

appeals from that forum would be heard by three-judge panels of the

Appellate Division of the District Court of Guam. Guam v. Olsen,

431 U.S. at 197. Seven years later Congress amended § 22 of Guam’s

Organic Act to formally adopt the three-

* Through Public Law 21-147 (signed into law Jan. 14, 1993), the Guam

Legislature has enacted legislation that creates a Supreme Court for the Territory.

However, the rules which will govern its procedures, and the persons who will act as

its judiciary, have yet to be determined. The Ninth Circuit's treatment of the

Appellate Division's decisions should not be discounted because of Guam’s prospects

for a functioning Supreme Court.

TE a TER pe

judge panel appellate division that Guam had fashioned, and defined

the jurisdiction of that forum to be “such appellate jurisdiction as the

[Guam] legislature may determine”. Act of June 4, 1958, Pub. L.

85-444, § 1, 72 Stat. 178 (codified as amended at 48 U.S.C. § 1424-

3). See Guam v. Olsen, 431 U.S. at 197; Agana Bay Dev. Co.

(Hong Kong) Ltd. v. Supreme Court of Guam, 529 F.2d 952, 960

n.2 (9th Cir. 1976) (J. Kennedy dissenting). The Ninth Circuit

continued to review final decisions of the Appellate Division. 48

U.S.C. § 1424-3(c).

Since the Appellate Division has been found the functional

equivalent of Guam’s Supreme Court, it must be accorded deference

in its decisions as such under the line of cases reflected in Bonnet v.

Texas Company, 308 U.S. 463, supra. The relevant legislative

history indicates that, after 1984, Congress affirmatively intended

that this deference be provided.

The Senate explanation of the 1984 amendment® to the judicial

provisions of Guam’s Organic Act referred to the Ninth Circuit’s

decision in Camacho v. Civil Service Commission, 666 F.2d 1257,

1262 (9th Cir. 1982) which applied a deferential review standard to

a decision of the Appellate Division of the District Court of the

Northern Mariana Islands. “‘Interpretations of local law by a district

court sitting in the locality are entitled to great weight. They will

not be disturbed unless clearly wrong’” Jd. (quoting S.A. Empressa

De Viacao Rio Grandense v. Boeing Co., 641 F.2d 746, 752 (9th

Cir. 1981)). Congress equated the judicial system of the Northern

Marianas to that of Guam. See, e.g. 130 Cong. Rec., at 23,791 and

25,746. Compare 48 U.S.C. §§ 1424 to 1424-3 with 48 U.S.C. §§

1694-94c. The Senate explanation also indicates explicit awareness

of, and sensitivity to, Guam’s relationship with the Ninth Circuit as

a reviewing appellate court. In discussing a transition period during

which a future Guam Supreme Court would be subject to Ninth

Circuit review, the Senate Committee notes the following:

The Committee is aware of the long experience which

Guam already has of having appeals taken to the Ninth

% 48 U.S.C. § 1424-2 (originally enacted as Act of Oct. 5, 1984, Pub. L. 98-

454, Title VIII, § 801, 98 Stat. 1742). The amendment authorizes, with some

conditions, the Guam legislature to create a Supreme Court for Guam.

Circuit from the district court of strictly local matters and the

concern that a shorter transition period should be enacted.

(130 Cong. Rec. at 23790)

The reference to Camacho v. Civil Service Commission, supra, and

Congress’ failure to modify that rule indicates “Congress at least

acquiesces in, and apparently affirms, that [interpretation].’” Mones-

sen Southwestern R.R. v. Morgan, 486 U.S. 330, 338 (1988) (quoting

Cannon v. University of Chicago, 441 U.S. at 703). The Senate

Committee’s expressed knowledge of the manner in which Guam’s

“strictly local matters” are reviewed give substance to this presumptive

inference.

It appears certain that the deferential review standard spelled out

in Bonnet v. Texas Co., supra, applies to the Ninth Circuit’s review of

the Appellate Division’s decisions. Even if not, the review undertaken

here by the Court of Appeals violates Congress’ intended role for the

Appellate Division, because it has been reduced essentially to a nullity.

The review discarded, without regard, all significant determinations of

fact and law on this issue. It is certain that Congress intended the

Appellate Division to have a more significant part in the development

of Guam’s law.

This Court should exercise its supervisory authority to determine

what standard of review must be accorded by the Ninth Circuit Court

of Appeals to determinations of local law by the Appellate Division.

Guam requires a consistently evolving body of case law to properly

develop as a Territory. Litigants and trial judges need some sense that

there is a developing body of law that remains consistent under

appellate review. In order to obtain this there needs to be some degree

of deference accorded by the Ninth Circuit to local determinations of

wes — |

law“ Guam’s decisional law must be shaped in a forum that is

institutionally geared to determining the law, customs and traditions

of a pacific island community that was a Spanish colony less than

one hundred years ago and a Japanese colony at half that®.

= Yang and its progeny illustrate the difficulty that Ninth Circuit review

presents. Prior to that decision the Appellate Division was accorded deference and

the Ninth Circuit approved Guam’s use of a nonstatutory reasonable doubt

instruction because it had been approved by the Appellate Division. Yang, 850

F.2d. at 511. In Yang, the court sitting en banc held that even though the defendant

had not objected to the nonstatutory instruction his conviction would be reversed,

in significant part because he had informally requested the statutory instruction.

The Yang court emphasized that its holding was specific to the unique facts of the

case. 850 F.2d at 512, n.9. In Guam v. Ibanez, 880 F.2d 108, 111 (9th Cir.

1989), cert. den. 496 U.S. 130-31 (1990), a panel of the Ninth Circuit extended the

Yang rule to a case where the Appellant had not even requested the statutory

instruction, much less objected to it. In the present case, which the Ninth Circuit

decided «1 Dec. 16, 1992, the trial court instructed the jury using the statutory

instruction required by Yang, and the Ninth Circuit panel deemed it defective under

principles of Ninth Circuit law. Memorandum Decision of Dec. 16, 1992, at 2.

But Cf., Guam v. Borja, et al., 983 F.2d 914 (9h Cir. 1993), affirming

convictions where the appellants had failed to object to nonstatutory instruction,

when jury instruction occurred after date that Ninth Circuit granted rehearing en

banc in Yang. Compare also, United States v. Velasquez, 980 F.2d 1275, 1278 (9th

Cir. 1992), upholding, over defendant’s contemporaneous objection, a jury

instruction which equated proof beyond a reasonable doubt with proof that leaves

one “firmly convinced”.

35 Besides the need to have a forum that incorporates an understanding of local

culture into its decision making, there are logistical problems that disadvantage the

Ninth Circuit institutionally. The number of judges in the Circuit, in conjunction

with district judges sitting by designation, virtually guarantees that the judicial mind

brought to bear on a case, i.e. the particular combination of judges, will not recur

when related cases are considered. This randomness is laudable and generally helps

to ensure fairness by requiring panels to decide issues based on published precedent.

However, it can be a kiss of death to cases from a jurisdiction like Guam, which has

very little of its own published precedent and often presents issues as to what body

of substantive law should be applied. The Ninth Circuit's treatment of Guam cases

may also be impaired by the absence of procedural rules which would allow them

to be processed in a manner procedurally distinct from the Ninth Circuit's usual

fare. The Appellate Division of the District Court of Guam has a complete set of

rules which defines its specialized role in Guam's appellate system. The Ninth

Circuit has one rule that may arguably be considered specialized to this end. Ninth

Circuit Rule 26-1 provides an extension of seven days to most filing deadlines, “in

cases arising from the Districts of Guam and the Northern Marianas Islands”. This

(continued . . .)

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

J. ANDREW ARTERO-BONAME

Assistant Attorney General

Counsel of Record

Prosecution Division

Suite 2-200E, Judicial Center Bldg.

120 West O’Brien Drive

Agana, Guam 96910

5. . .continued)

would apparently include matters arising directly from the district courts.

An example of an area where rules specialized to Guam would be appropri-

ate is in Ninth Circuit rule 11-1.1 which provides that, in all cases, the

reporter's transcript is to be transmitted within 30 days of its designa-

tion/request. The term expressed in the rule is reflected in the Circuit's

briefing schedule as a standard practice, even for cases from the Superior

Court of Guam. But, there is no time needed for transcription in these cases

because the transcript was necessarily prepared for proceedings before the

Appellate Division. The Ninth Circuit has not configured itself in any way,

despite authority to do so in 48 U.S.C. § 1424-3(c), to differentiate its self-

described function as Guam's Supreme Court from its other roles as a United

States Court of Appeals. [This is not stated as criticism of the court or any

of its judges but only to make the point that the Appellate Division is in a

better position institutionally to serve this function.]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.