The People of the Territory of Guam, Plaintiff-appellee, v. Jae Hung Yang, Defendant-appellant, 850 F.2d 507 (9th Cir. 1988)

Jae Hung Yang was indicted on July 12, 1982 for kidnapping and first degree criminal sexual conduct, in the territory of Guam. At the conclusion of his trial in the Superior Court of Guam, the trial court instructed the jury on reasonable doubt, giving an instruction that differed from the one set out in the Guam Criminal Procedure Code Sec. 90.23(a).¹  Following his conviction on both counts, Yang appealed to the Appellate Division of the District Court of Guam, alleging, inter alia, that the reasonable doubt instruction given by the trial court was erroneous under Guam law. The Appellate Division upheld Yang's conviction, relying on its own unpublished decisions as well as unpublished decisions of this court. A divided three-judge panel of this circuit subsequently affirmed the decision, giving substantial deference to the Appellate Division's interpretation of Guam law. Guam v. Yang, 800 F.2d 945 (9th Cir. 1986), opinion withdrawn by, 833 F.2d 1379 (9th Cir. 1987). Rehearing en banc was granted to determine: (1) the appropriate standard of review for interpretations of Guam law made by the Appellate Division; (2) whether the courts of Guam may properly rely on unpublished decisions of this court; and (3) whether the reasonable doubt instruction given by the trial court was sufficient under Guam law.²  We have jurisdiction pursuant to 48 U.S.C. § 1424-3(c).

The three-judge panel of this court that initially heard Yang's appeal applied a deferential standard of review to the Appellate Division's construction of local law. It held that the decisions of the Appellate Division must be affirmed "if they are based upon a tenable theory and are not manifestly erroneous." Yang, 800 F.2d at 946. We disagree. The statutory scheme establishing the system of courts in Guam, 48 U.S.C. §§ 1421 et seq., and the reasoning of our decision in Matter of McLinn, 739 F.2d 1395 (9th Cir. 1984) (en banc), compel the adoption of a strict de novo standard of review for determinations of Guam law by the Appellate Division. Moreover, the use of this standard would be consistent with the Third Circuit's treatment of a similar system of courts in the Virgin Islands. See Saludes v. Ramos, 744 F.2d 992 (3d Cir. 1984).

The statute establishing the role of the federal courts in Guam provides that, until such time as Guam establishes its own appellate court, all appeals from local courts--including the Superior Court of Guam--are to be heard by a three-judge panel serving as the Appellate Division of the District Court of Guam. 48 U.S.C. § 1424-3. The presiding judge of the Appellate Division must be a local district court judge, who in turn designates the two remaining judges from among the judges either serving on or assigned to the district court. Id.³  This pool of eligible judges includes district court judges from outside Guam.⁴ 

In this case, only the Presiding Judge is a local judge. The other two judges are not from Guam. In such situations there is simply no basis for assuming that visiting judges--even when from the nearby Northern Mariana Islands--have any greater familiarity with local Guam law and/or custom than do the judges of this court who hear the subsequent appeals. Thus, deference to the Appellate Division's determinations of local law is unwarranted.⁵ 

Moreover, Congress has specifically required that relations between the federal courts and Guam's local courts be the same as those between the federal and state courts. 48 U.S.C. § 1424-2.⁶  Our reasoning in Matter of McLinn is thus instructive here. In McLinn, we held that interpretations of state law by local district court judges would be reviewed de novo. That holding was based in part on the recognition that the Ninth Circuit's determination of state law issues has substantial precedential value. 739 F.2d at 1401 ("de novo review of questions of law is dictated in part because of the precedential effect of those questions on future litigants. While the trial courts' factual determinations bind only the parties, the determination of legal issues affects the rights of future litigants."). Since interpretations of Guam law by this court and the United States Supreme Court are the only published precedent for the Appellate Division of Guam, they carry even greater weight than do federal court interpretations of state law, which are binding on only the federal courts and not on state (local) courts.

We also noted in McLinn that the use of a deferential standard assumes that the judge making the determination "has some particular knowledge or experience in the field of law [at] issue." Id. at 1400. We found that this assumption invites exploration into the judge's actual experience which is neither a proper nor efficient part of the decisional process. Id. Such an inquiry would be equally inappropriate in determining the level of deference to be accorded decisions of Guam's Appellate Division.

Moreover, adopting de novo review is preferable here because it prevents our applying a standard of review in conflict with that applied by the Third Circuit in its review of Appellate Division decisions of the District Court of the Virgin Islands. The Third Circuit, after specifically considering and rejecting a deferential standard of review, concluded that de novo review was required for questions of local law. Saludes v. Ramos, 744 F.2d at 994 (while " [t]he district court's reading of local law should be respected ... we will not accord it any greater deference than we would in a diversity action."). Since the statutory provisions establishing the judicial system in the Virgin Islands--and thus the function of the district courts and the rules for determining the composition of its Appellate Division--are virtually identical to those establishing the Guam courts, compare 48 U.S.C. § 1613a, with, 48 U.S.C. § 1424-3, a uniform standard of review for both courts would be appropriate.⁷ 

Thus, based on the statutory indicia, our reasoning in McLinn, and the treatment given by other circuits to the decisions of district courts in other territories, we hold that the proper standard of review for questions of law is a de novo standard, which accords no deference to interpretations of local law by the Appellate Division of the District Court of Guam.

The Appellate Division indicated in its opinion that, in reviewing the propriety of the reasonable doubt instruction given at Yang's trial, it was bound by two of its unpublished decisions and this Circuit's unpublished affirmance of those decisions. Because the Appellate Division concluded that these decisions were controlling, it failed to look beyond them for guidance in determining the sufficiency of the instruction. We hold that the courts of Guam may not rely on unpublished decisions of this court.

The Ninth Circuit prohibits the citation or use of its unpublished memorandum dispositions:

Any disposition that is not an opinion or an order designated for publication under Circuit Rule 36-5 shall not be regarded as precedent and shall not be cited to or by this court or any district court of the Ninth Circuit, either in briefs, oral argument, opinions, memoranda, or orders, except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

9th Cir. R. 36-3. Thus, unpublished decisions of the Ninth Circuit have no precedential authority.

The Appellate Division therefore erred in relying on a Ninth Circuit unpublished decision in deciding this case. In particular, it erred in its determination of the propriety under Guam law of the reasonable doubt instruction given at Yang's trial.

The trial court twice defined reasonable doubt for the jury.

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

and,

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

These definitions are based on the standard federal instruction, taken from 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, Sec. 11.14. Since this instruction differs markedly from the one set forth in the Guam Code, the question before us is whether the instruction given by the trial court nonetheless adequately conveys the meaning embodied in the statute, and pays sufficient respect to the judgment of the Guam legislature. We conclude that it does not.⁸ 

The use of a reasonable doubt standard "is indispensable to command the respect and confidence of the community in applications of the criminal law." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970). Different jurisdictions in the United States generally employ one of three distinct approaches to defining reasonable doubt. They include the "hesitate to act" standard, widely used in the federal courts, the "moral certainty" standard, and finally the practice of refusing to provide any definition at all. See Yang, 800 F.2d at 950 (Ferguson, J., dissenting), and cases cited therein. Since the preferred instruction on reasonable doubt in one jurisdiction might constitute error if given in another jurisdiction, the resolution of these differences is a matter of local law.

Recognizing that reasonable minds may differ, the Guam legislature selected the "moral certainty" approach to defining reasonable doubt. Guam Code Annot. Sec. 90.23(a) (Criminal Procedure Code). The significance of its having chosen this specific approach cannot be overstated.

The Guam legislature clearly has both the right to incorporate such a definition of reasonable doubt into its criminal justice system, and to require that instructions to the jury in a criminal case convey the meaning embodied in the statutory definition. The statute does not, however, by its terms, require that the jury be instructed in its exact language. Instead, like the California statute it is rooted in, the Guam statute provides that the court "may" use the statute's language, in which case "no further instruction defining reasonable doubt need be given." Guam Code Annot. Sec. 90.23(b); see also Cal.Penal Code Sec. 1096a.⁹ 

In the instant case, the trial court chose not to use the statutory definition of reasonable doubt. The instruction which it gave, however, is erroneous under Guam law for several reasons. First, the language used by the trial judge defines doubt in terms of the behavior of a reasonable person in important affairs, rather than in terms of the state of mind associated with the absence of reasonable doubt ("moral certainty"). Thus the instruction given was substantially at odds with the meaning of the statutory definition.

Second, if a California trial court gave the instruction used in the instant case, reversal would be required. See People v. Bemmerly, 87 Cal. 117, 121, 25 P. 266 (1890) (similar instruction held to be reversible error). This is significant because the definition of reasonable doubt chosen by the Guam legislature is virtually identical to the definition found in 1 CALJIC No. 2.90 (4th ed. 1979),¹⁰  which in turn is identical to the definition found in California Penal Code Sec. 1096.¹¹  In fact, whenever there is a question concerning the interpretation of civil or criminal provisions of Guam law which have been adopted from California statutes, reliance on California law is proper. Guam Econ. Dev. Auth. v. Ulloa, 841 F.2d 990, 992 (9th Cir. 1988); Guam v. Ojeda, 758 F.2d 403, 406 (9th Cir. 1985); Roberto v. Aguon, 519 F.2d 754, 755 (9th Cir. 1975).¹²  Thus, faced with the identical statute in Guam, we take our cue from the California courts.

We recognize that however much we may disagree with the judgment section 90.23(a) expresses--and however strongly we may be inclined to side with those jurisdictions that reject the "moral certainty" language--this court has neither the duty nor the right to substitute its judgment for that of the Guam legislature. The instruction given by the trial court is erroneous under Guam law and therefore we must reverse.

The proper standard for this court's review of interpretations of Guam law made by the Appellate Division of the District Court, is the de novo standard. In the instant case, the Appellate Division improperly relied upon an unpublished decision of this court in assessing the propriety of the reasonable doubt instruction given at trial. Moreover, that instruction is erroneous under Guam law.

The decision of the Appellate Division is REVERSED and the case REMANDED for a new trial.