Unpublished Disposition, 855 F.2d 860 (9th Cir. 1988)

MEMORANDUM^* 

Ismael Magofna ("Magofna") appeals from his conviction of assault and battery in violation of 6 C.M.C. Sec. 1202. At trial, the jury acquitted him of a charge of assault with a dangerous weapon and the lesser included offense of assault and battery. In the same proceeding, the judge convicted Magofna of a different charge of assault and battery. Magofna claims that double jeopardy bars his conviction because the assault and battery charge decided by the judge was, in fact, the same charge submitted to the jury. He also argues for the first time on appeal that under the jury trial statute for the Commonwealth of the Northern Mariana Islands ("NMI"), 7 C.M.C. Sec. 3101(a), once one charge entitles him to a jury trial, all charges tried in the same proceeding must be submitted to the jury. We remand for review of the question of statutory interpretation.

BACKGROUND

On August 11, 1986, Magofna and Angel Fatig ("Fatig") entered a small store in San Antonio, Saipan. The owner, Jose Ulloa ("Ulloa"), was absent. Ulloa's two teenage nieces were tending the store. Magofna and Fatig bought beer, which they began drinking in the store, and tried to engage the young women in conversation.

Soon after, Ulloa returned with a friend. Fatig confronted Ulloa, asked him some questions and cursed Ulloa. Ulloa told Magofna and Fatig to drink their beer outside his store. When they failed to obey, Ulloa tried to walk past Magofna who was standing in front of the store door. Magofna would not move so Ulloa tried to push him out of the way. At that point, Magofna allegedly hit Ulloa in the face with a beer can and pushed him to the floor. Magofna and Fatig then began hitting and kicking Ulloa. Eventually, Ulloa's friend, with the help of two passersby, grabbed Fatig and removed him from the store.

Meanwhile, the nieces left to call the police. One niece returned to the store and saw her uncle and Magofna on opposite sides of the store. As she went to embrace her uncle, she allegedly saw Magofna cross the room and strike Ulloa on the head with a soy sauce bottle. Ulloa remained conscious and told Magofna to leave. Magofna allegedly responded by throwing a whiskey bottle at Ulloa. Fatig then reappeared, and Magofna left the store with him.

At trial, Magofna faced three charges: 1) assault and battery, for smashing Ulloa with a beer can and kicking him, 2) assault, for throwing the whiskey bottle, and 3) assault with a deadly weapon, for hitting Ulloa with the soy sauce bottle.

Only the count of assault with a deadly weapon entitled Ulloa to a jury trial.¹  In accordance with NMI procedures, a jury was impaneled to decide solely this issue. The other two charges, assault and assault and battery, were tried to the judge in the same proceeding.

Prior to closing argument, defense counsel requested and received a lesser included offense instruction of assault and battery on the charge of assault with a dangerous weapon. The jury subsequently acquitted Magofna of the assault with a dangerous weapon charge and the lesser included offense of assault and battery. The judge convicted Magofna of the assault and battery charge stemming from the beer can and kicking incidents, but acquitted Magofna of the assault charge.

On appeal to the U.S. District Court for the Northern Mariana Islands, Appellate Division, Magofna claimed that the judge actually submitted the same assault and battery charge to the jury that was reserved for the judge. Thus, since the jury considered and acquitted him of the same assault and battery charge for which the district court convicted him, Magofna argued that his conviction violated the Fifth Amendment double jeopardy clause.²  He also asserted that NMI's jury trial statute required all charges to be submitted to the jury if any one charge entitled the defendant to a jury trial.

The appellate division denied his appeal. It found that the jury and judge did not consider the same assault and battery charge. It did not address Magofna's statutory argument. Magofna timely appeals to this court. We review the decision of the appellate division de novo. See People of the Territory of Guam v. Yang, No. 85-1252, slip op. at 7341-42 & n. 7 (9th Cir. June 20, 1988) (en banc).

DISCUSSION

I. Submittal of the Assault and Battery Charge

To claim a double jeopardy objection, Magofna must first show that the jury instructions were so defective that they led the jury to believe that it was deciding the assault and battery charge stemming from the beer can and kicking incidents. When, as here, there was no objection to the jury instructions at trial, we review the instructions for plain error. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). In determining the adequacy of jury instructions, we consider the instructions as a whole, United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986), and review them in light of the entire trial. United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824-25 (9th Cir.), cert. denied, 471 U.S. 1139 (1985).

The jury instructions in the present case included these three passages:

(1) There is one charge made against the defendant in the information for the jury to consider, that is assault with a dangerous weapon.

However, if you find that the defendant is not guilty of the offense of assault with a dangerous weapon, you will then consider whether he is guilty or not guilty of the lesser included offense of assault and battery.

If you find that he is guilty of assault with a dangerous weapon, you may not consider whether he is guilty or not guilty of the lesser included offense of assault and battery.

(2) It is charged on Count III of the information that on August 11, 1986, in San Antonio, Saipan, Ismael Magofna did purposely cause bodily injury to Jose Ulloa with a dangerous weapon, that is a soy sauce bottle in violation of 6 CMC Sec. 1204.

An information is but a formal method of accusing a defendant of a crime. It is not evidence of any kind against the accused. Section 1204 ... provides: a person commits the offense of assault with a dangerous weapon if he or she threatens to cause, attempts to cause, or purposely causes bodily injury to another with a dangerous weapon.

Three essential elements are required to be proved in order to establish the charge in the information. No. 1, prove that the defendant did an act. No. 2, the act that the defendant did was to purposely cause bodily injury to Jose Ulloa. And No. 3, the act was done with the use of a dangerous weapon.

Dangerous weapon is defined as any ... thing by which a fatal wound or injury may be inflicted.

(3) A form of verdict has been prepared for your convenience and let me read the verdict at this time.

The verdict reads as follows: We, the jury, in the above entitled action, hereby find the defendant Ismael Magofna, either guilty or not guilty, of the charge of assault with a dangerous weapon....

If you find the defendant not guilty above, then proceed to consider whether he is guilty or not guilty of the lesser included offense below....

The first passage informed the jury that it had but one charge to consider: the assault with a dangerous weapon charge. The judge subsequently referred only to the soy sauce bottle incident and made it clear that the jury was to consider the assault and battery charge only if it first determined that Magofna was not guilty of assault with a dangerous weapon.

Furthermore, the prosecutor repeatedly told the jurors in his opening and closing remarks that they were to consider only the soy sauce bottle incident. He also twice informed the jury that the judge would decide the assault and battery charge stemming from the beer can and kicking allegations. A thorough review of the trial transcript reveals that these were the only instances when the jury was informed that Magofna faced an assault and battery charge based on the beer can and kicking incidents.

Reviewed in light of the entire trial, the jury instructions were not plainly erroneous as they did not have the effect of submitting to the jury the assault and battery charge reserved for the judge.

Magofna contests NMI's current practice of trying different offenses against one defendant to both the judge and jury in one proceeding. He argues that under the NMI jury trial statute, 7 CMC Sec. 3101(a), once one charge in the indictment entitles the defendant to a jury trial, all charges must be submitted to the jury. Therefore, since the charge of assault with a deadly weapon entitled him to a jury trial, Magofna asserts that the two charges decided by the judge should have also been decided by the jury. He thus concludes that he is entitled to a jury trial on the beer can and kicking assault and battery charge.

The Commonwealth maintains that Magofna did not present this issue at trial and is procedurally barred from pursuing it on appeal, for this court will generally not consider issues not raised below. Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985). In rebuttal, Magofna asserts that NMI R.Crim.P. 23(a) requires that a defendant waive his right to a jury trial in writing. Since he did not sign a written waiver of his jury trial right, Magofna reasons that he can raise his claim on appeal.

Magofna's written waiver defense assumes the correctness of his underlying claim, that is, that he in fact had a right to a jury trial on all counts because one count guaranteed him a jury trial. An evaluation of the need for a written waiver, therefore, requires a decision interpreting 7 C.M.C. Sec. 3101(a).

This circuit is entrusted with interpreting NMI law, and our pronouncements bind NMI trial courts. See Camacho v. Civil Service Commission, 666 F.2d 1257, 1259-61 (9th Cir. 1982). However, we recognize that NMI's grant of a jury trial right is intended to accommodate its unique social and cultural conditions. See Atalig, 723 F.2d at 690. We thus refrain from advancing an interpretation of 7 C.M.C. Sec. 3101(a) absent a fully developed record. Accordingly, this court retains jurisdiction but orders a limited remand to give the appellate division an opportunity to consider and decide the question of statutory interpretation.

REMANDED.