People of the Territory of Guam, Plaintiff-appellant, v. Concepcion Okada, Defendant-appellee, 642 F.2d 287 (9th Cir. 1981)

Concepcion Okada was convicted in the Superior Court of Guam on a charge of delivering heroin. The appellate division of the District Court of Guam reversed the conviction and dismissed the indictment, holding that Okada's due process rights had been violated by the government's failure to preserve certain discoverable evidence. The People of the Territory of Guam brought this appeal, and Okada moved to dismiss on the ground that Guam lacks statutory authority to appeal from the appellate division of the District Court of Guam's reversal of a conviction. We postponed consideration of Okada's motion until such time as the case was heard on the merits. We now grant Okada's motion and dismiss this appeal for lack of jurisdiction.

* It has long been established that the government may not appeal in a criminal case in the absence of express statutory authority. United States v. Wilson, 420 U.S. 332, 336, 95 S. Ct. 1013, 1018, 43 L. Ed. 2d 232 (1975); Carroll v. United States, 354 U.S. 394, 400, 77 S. Ct. 1332, 1336, 1 L. Ed. 2d 1442 (1957); United States v. Sanges, 144 U.S. 310, 318, 12 S. Ct. 609, 612, 36 L. Ed. 445 (1892). The Supreme Court has explained that " 'appeals by the Government in criminal cases are something unusual, exceptional, not favored,' ... at least in part because they always threaten to offend the policies behind the double jeopardy prohibition." Will v. United States, 389 U.S. 90, 96, 88 S. Ct. 269, 274, 19 L. Ed. 2d 305 (1967) (quoting Carroll, 354 U.S. at 400, 77 S. Ct. at 1336). The rule prohibiting government appeals except where expressly authorized by statute extends "over and above the constitutional protection against double jeopardy," however. DiBella v. United States, 369 U.S. 121, 130, 82 S. Ct. 654, 659, 7 L. Ed. 2d 614 (1962). Although Guam's appeal would not violate the double jeopardy clause,¹  we must nevertheless dismiss for lack of jurisdiction unless Guam can show that its appeal is expressly authorized by statute.

II

28 U.S.C. § 1291 (1976) grants this court jurisdiction over "all final decisions of ... the District Court of Guam ... except where a direct review may be had in the Supreme Court." However, section 1291 alone does not provide necessary authority for government appeals in criminal cases. DiBella v. United States, 369 U.S. 121, 130, 82 S. Ct. 654, 659, 7 L. Ed. 2d 614 (1962); Umbriaco v. United States, 258 F.2d 625, 626 (9th Cir. 1958); Virgin Islands v. Hamilton, 475 F.2d 529, 531 (3d Cir. 1973). Hamilton provides a close parallel to the present case. The District Court of the Virgin Islands had reversed a criminal conviction, and the Government of the Virgin Islands brought an appeal to the Third Circuit. The Third Circuit rejected the suggestion that section 1291, standing alone, authorized the Virgin Islands' appeal. Finding no other statutory authorization for the appeal, the court dismissed for lack of jurisdiction.

Guam points out that the Third Circuit, after reaching this result, noted that its conclusion was

reinforced by the fact that under the local law of the Virgin Islands the defendant alone has the right in a criminal case to appeal to the district court from a judgment of the municipal court. 4 V.I.C. § 33.

475 F.2d at 531. Guam contends that this case is distinguishable from Hamilton because Guam, unlike the Virgin Islands, has authorized the government to appeal from some superior court judgments in criminal cases. See Guam Crim.Proc. Code § 130.20(a) (1977).²  In Guam's view, once the government has received statutory authority to appeal certain judgments to the District Court of Guam, no further authority is required for similar appeals to this court.

We disagree. First, Guam Crim.Proc. Code § 130.20(a) (1977) purports only to authorize appeals to the District Court of Guam. Guam concedes that section 130.20(a) does not expressly authorize appeals from orders of the District Court. Section 130.20(a) thus does not provide the "express statutory authority" required for a government appeal in a criminal case.

Furthermore, we find that the Guam Legislature has no power to authorize appeals from orders of the District Court. Congress has explicitly delegated to the Guam Legislature the power to determine the appellate jurisdiction of the District Court of Guam. 48 U.S.C. § 1424(a) (Supp.1979); see Guam v. Olsen, 431 U.S. 195, 200-01, 97 S. Ct. 1774, 1777-78, 52 L. Ed. 2d 250 (1977). The Guam Legislature has exercised this power by enacting Guam Crim.Proc. Code § 130.20(a) (1977), authorizing the government to bring appeals to the District Court in certain limited classes of cases. Congress has not, however, delegated to the Guam Legislature any power to determine the jurisdiction of the Ninth Circuit Court of Appeals. Section 130.20(a) thus could not provide authority for the government's appeal, even if the Guam Legislature intended it to do so.³  Our jurisdiction over appeals from the District Court of Guam, as over other matters, can be determined only by Congress. Corn v. Guam Coral Co., 318 F.2d 622, 627 (9th Cir. 1963). Because Congress has not expressly authorized Guam's appeal in this case,⁴  we must dismiss for lack of jurisdiction.

Guam argues that decisions of the District Court of Guam should, as a matter of policy, be reviewable in this court. Guam correctly points out that its District Court is a territorial court, created under the authority of article IV, section 3 of the Constitution rather than under the authority of article III. Guam v. Olsen, 431 U.S. at 196 n.1, 97 S. Ct. at 1776 n.1.⁵  We recognize that the Supreme Court has been reluctant to find "foreclos(ure of) appellate review by Art. III courts ... of decisions of territorial courts that may turn on questions of federal law." Id. at 201, 97 S. Ct. at 1778. In cases which do not raise double jeopardy concerns, this consideration clearly weighs in favor of allowing Guam to appeal from the reversal of a conviction. But

(i)f there is a serious need for (such) appeals ..., it is the function of the Congress to decide whether to initiate a departure from the historical pattern of restricted appellate jurisdiction in criminal cases. We must decide the case on the statutes that exist today ...

Carroll v. United States, 354 U.S. 394, 407-08, 77 S. Ct. 1332, 1340, 1 L. Ed. 2d 1442 (1957); see Arizona v. Manypenny, 608 F.2d 1197, 1200 (9th Cir. 1979), cert. granted, 445 U.S. 960, 100 S. Ct. 1644, 64 L. Ed. 2d 234 (1980). Guam's appeal is not authorized by statute, and must be dismissed.⁶ 

APPEAL DISMISSED.