AMENDING SECTION 22 OF THE ORGANIC ACT OF GUAM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP58-00453R000100300003-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 9, 2016
• Document Release Date: July 31, 2000
• Sequence Number: 3
• Publication Date: July 2, 1954
• Content Type: REGULATION

Approved For Release 2001/08/28 : CIA-RDP58-00453R000100300003-9
Callendar No.2025
83D CONGRESS SENATE REPORT
2d Session No. 2006
Mr. KUCHEL, from the Committee on Interior and Insular Affairs,
submitted the following
REPORT
The Committee on Interior and Insular Affairs, to whom was
referred the bill (11. R. 8634) to amend section 22 of the Organic Act
of Guam, having considered the same, report favorably thereon with-
out amendment and recommend that the bill do pass.
A hearing was held by the Subcommittee on Territorial and Insular
Affairs, and a number of communications from citizens of Guam and
other interested persons considered.
H. It. 8634 would amend subsection (b) of section 22 of the Organic
Act of Guam (64 Stat. 389; found in 48 U. S. C., sec. 1424) to make
indisputably clear the intent of Congress that the jury system should
not be imposed upon the people of Guam without their consent as
manifest by action of their popularly elected legislature.
Enactment of this measure, in the form approved by the House, has
been urgently requested by the Governor of Guam, by the judge of the
District Court of Guam in a personal visit to the chairman, by the
Judicial Council of Guam, by Hon. Albert 13. Marts, judge of the
Third Circuit Court of Appeals, who has made a special study of the
situation on Guam, and by the Department of the Interior. A
report also has been received from the Department of Justice in which
no objections to the measure were raised. Amendments recom-
mended were adopted by the House and have been approved by
your committee.
Guam had been Spanish for nearly three centuries prior to coming
under the American flag in 1898 as a result of the war with Spain (30
Stat. 1754). The legal system at that time was of course based on
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 2 AMEND SECTION 22 OF THE ORAPRwmelftG ease 2001/08/28: CIA-RDP58-0( 664` Oat= E ORGANIC ACT OF GUAM 3
Spanish code law, of which our Anglo-Saxon jury system was not a
part.
The Navy, under the administration of which Guam was placed,
disturbed as little as possible the established Guamanian ways of
life, and the legal system continued as before. When the organic act
for Guam was under consideration in the 81st Congress, this com-
mittee held extensive hearings on the measure and the advisability
of extending the jury system to Guam received specific attention.
Upon the urging of members of the Guam Legislature and. other spokes-
men for the people of the Territory, requirement for indictment by
grand jury and trial by petit jury were omitted from the act. In its
report to the Senate, the committee stated:
The bill of rights is modeled upon the Bill of Rights in the United States Consti-
tution but does not expressly provide for trial by jury in Guam. Since Guam-
anians derive their tradition in law from Spain, a civil-law nation, they have little
knowledge or experience in trial by jury. The Guam Congress could institute
trial by jury if it so desired (S. Rept. 2109, to accompany H. R. 7273, 81st Cong.).
Your committee is informed that the popularly elected Guam
Legislature has in fact considered adoption of the jury system, but
after deliberation took no action. From the date of enactment of the
organic act to the present, an accused has been placed on trial on an
information rather than on grand jury indictment.
The urgent need for enactment of H. R. 8634, as pointed out in the
cablegram of the Governor of Guam to the chairman, set forth below,
is to prevent a wholesale jail delivery of Guamanian convicts, and to
permit the continued administration of criminal justice on Guam in
accordance with established procedures and the will of the people.
The situation arises out of two very recent decisions of the United
States Court of Appeals for the Ninth Circuit in the cases of Pugh v.
United States and Hatchett v. Government of Guam. In opinions filed
February 26, 1954, and March 30, 1954, respectively, the court
reversed two felony convictions for the reason, in each case; namely,
that the conviction was based upon an information and not upon an
indictment. The Pugh case involved the violation of a law of the
United States, while the Hatchett case concerned the violation of a
law of Guam. The court so ruled assertedly because the Federal
Rules of Criminal Procedure, made applicable to the District Court
of Guam by section 22 (b), the section that would be amended by
H. R. 8643, require in rule 7 that certain crimes be prosecuted by
indictment unless indictment is waived.
The effect of the court's holding appears to be that all convictions
of felonies heretofore had in the District Court of Guam may be set
aside, upon appropriate motion of the defendant, unless indictment
was earlier waived by him. A general jail delivery is therefore immi-
nent unless H. R. 8634 is enacted. The subcommittee was informed
that 35 convicted felons, now imprisoned pursuant to either Federal
or local law, are potentially affected by the Pugh and Hatchett deci-
sions; one of these convicted felons has had to be incarcerated in
Alcatraz.
REPORTS OF, EXECUTIVE AGENCIES
The reports of the Bureau of the Budget, the Department of the
Interior, and the Department of Justice are set forth below. Also set
forth are the communications of .the Governor of Guam and of the
Honorable Albert B. Maris, judge of the United States Court of Ap-
peals, for the Third Circuit.
EXECUTIVE OFFICE OF THE PRESIDENT,
BUREAU OF THE BUDGET,,
Hon. Guy CORDON, Washington 25, D. C., July 20, 1954.
Chairman, Committee on Interior and Insular Affairs,
United States Senate, Washington 25, D. C.
MY DE,.R MR. CHAIRMAN: This is in response to your request for the views of
the Bureau of the Budget on H. R. 8634, a bill to amend section 22 of the Organic
Act of Guam.
The amendments to the Organic Act of Guam contained in the bill are proposed
because of two recent decisions of the court of appeals for the ninth circuit
holding that grand jury indictments are necessary in felony cases, and because one
of the judges took the view that petit juries are also necessary.
The legal traditions of Guam are of Spanish origin, and the jury system has
never been employed in the Territory. The legislative history of the Guam Organic
Act seems to indicate clearly that Congress did not intend to require the use of
juries, but wished to leave the matter entirely up to the Guamanian Legislature.
The recent court decisions appear to render invalid all felony convictions here-
tofore obtained in the District Court of Guam unless trial by jury was waived
by the defendant. The effect. will be a general jail delivery unless H. R. 8634 is
enacted.
The Bureau of the Budget would have. no objection to the enactment of this
legislation.
Sincerely yours,
DONALD R. BELCHER,
Assistant Director.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THEt SECRETARY,
Washington, D. C., May 11, 1954.
Dr. A. L. MILLER, .
Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, D. C.
MY DEAR DR. MILLER: This will reply further to your request for the views of
this Department on H. R. 8634, a bill to amend section 22 of the Organic Act of
Guam.
I recommend that the bill be promptly enacted, with the amendments herein-
after indicated.
Section 22 of the Organic Act of Guam (48 U. S. C., sec. 1424) provides that
the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure,
among others, shall apply to the district court of Guam and to appeals therefrom.
Section 1 of H. R. 8634 would amend that section to provide that no provision of
any such rules which authorizes or requires indictment by a grand jury or trial by
jury shall be applicable to the district court of Guam, unless and until made so
applicable by the Legislature of Guam. Section 2 of H. R. 8634 provides that
section 1 shall be deemed to be in effect as of August 1, 1950, the date of enact-
ment of the Organic Act of Guam (64 Stat. 384, 48 U. S. C., sec. 1421 et seq.).
Section 3 provides that no conviction of a defendant in a criminal proceeding in
the district court of Guam. prior to the date of enactment of the bill shall be
reversed or set aside on the ground that the defendant was not indicted by a
grand jury or tried by a petit jury.
Also, the Legislature of Guam would be forced to enact legislation system is virtually unknown to the Guamanian people. Since juries have never
adopting a jury system foreign to their >lkp*o ed(For16 tease 2001/08/28 : CIA-Kf3P'Sdda'4#tFg0#o1gg9t9g9bgL?I; R. 8634 would do no more than per-
 AMEND SECTION 22 OF THE ORGANIC or I-leease 2001/08/28
petuate the situation which now exists, and, in my opinion, clarify the intent of
the Congress with respect to the use of juries in Guam.
Immediate enactment of the bill is required in the light of two recent, decisions
of the United States Court of Appeals for the Ninth Circuit. Very recently, in
the cases of Pugh v. United States and Hatchett v. Government of Guam, in opinions
filed February 26, 1954, and March 30, 1954, respectively, the Court of Appeals
for the Ninth Circuit reversed two felony convictions for the reason, in each case,
that the conviction was based upon an information and not upon an indictment.
The Pugh case involved the violation of a law of the United States, while the
Hatchett case concerned the violation of a law of Guam. Both cases arose in the
District Court of Guam, which has certain local as well as Federal jurisdiction
(48 U. S. C., sec. 1424 (a)). The court so ruled because the Federal Rules of
Criminal Procedure, made applicable to the District Court of Guam by section
22 (b) of the organic act, require in rule 7 that certain crimes be prosecuted by
indictment unless indictment is waived. The effect of the court's holding appears
to be that all convictions of felonies heretofore had in the District Court of Guam
may be set aside, upon appropriate motion of the defendant, unless indictment
was earlier waived by him. A general jail delivery is therefore imminent unless
H. R. 8634 is enacted. We are informed that 35 convicted felons, now imprisoned
pursuant to either Federal or local law, are potentially affected by the Pugh and
Hatchett decisions. It is clearly of critical importance that their release be pre-
vented.
It is my view that the legislative history of the bill which became the Guam
Organic Act (H. R. 7273, 81st Cong.), shows that the Congress, with the full
concurrence of this Department, did not intend to provide for the use of grand
juries or petit juries in Guam. This intention is shown, among other things, by
the failure to provide for a jury trial in the organic act's bill of rights, or to provide
for the application to the District Court of Guam of chapter 121 of title 28, United
States Code, relating to the qualifications and manner of selecting jurors. The
House and Senate committees considering the organic act appear to have con-
sidered that juries would not be used in Guam, for in their reports (H. Rept.
1677, 81st Cong., p. 13; S. Rept. 2109, 81st Cong., p. 13), they stated that:
"The bill of rights is modeled upon the Bill of Rights in the United States
Constitution but does not expressly provide for trial by jury in Guam. Since
Guamanians: derive their tradition in law from Spain, a civil-law nation, they
have little knowledge or experience in trial by jury. The Guam Congress could
institute trial by jury if it so desired."
Because doubt subsequently arose as-to whether this result had clearly been
achieved, a section was included (sec. 35 (b)) in H. R. 6808 of the 82d Congress,
the Guam omnibus bill, which would have clarified this point. Section 35 (b)
of H. R. 6808 carried precisely the provision of section 1 of H. R. 8634. This
Department reported favorably upon the bill in a letter to former Chairman
Murdock, of the House Interior and Insular Affairs Committee, dated May 9,
1952, in which particular note was taken of section 35. H. R. 6808 failed of
enactment, however.
Because of the Guamanians' civil-law heritage, it seems to me entirely desirable
to refrain from requiring jury trials in the Territory. This is especially so, I
think, so long as it is made clear, as H. R. 8634 would do, that jury trials could be
instituted in the District Court of Guam at whatever time the Guam Legislature
should choose. It should be noted that the constitutional guaranties of indict-
ment by grand jury and trial by jury do not apply to Guam, since it is an unin-
corporated Territory. We have examined the bill in the light of other constitu-
tional questions which might be raised with respect to it and have concluded that
it is unobjectionable on any such ground.
I appreciate that the Pugh and Hatchett cases do not hold that petit juries are
required in the District of Guam. It is therefore not of as pressing importance
that the law be clarified in this respect as it is in the case of grand juries. I think,
it desirable, however, for H. R. 8634 to make reference to both grand and petit
juries, in order to avoid any subsequent argument on this point.
I suggest, however, that H. R. 8634 be amended in two particulars. First,
there is a danger that the Hatchett decision may be interpreted to exclude attor-
neys for the Government of Guam from prosecuting persons in the District Court
of Guam for violations of the laws of Guam. It has thus far been the practice in
the District Court of Guam for the United States attorney or his assistant to
prosecute in Federal cases, but for attorneys for the Government of Guam to
prosecute for violations of Territorial law. This arrangement, in my opinion, is
efficient and sound. But the statement in the Hatchet se that "but a s~~'rr~ e o
system of procedure is to be followed in respec00R erbl`rc it eI$uiii 108/28: CIA-fi no
CIA-RDP58-00 KU0%03F9THE ORGANIC ACT OF GUAM 5
Court of Guam," casts doubt upon the correctness of such a division of the case-
load, as do references in the Federal Rules of Criminal Procedure to the "United
States attorney" and "attorneys for the government," the latter term being
defined in rule 54 (c) so as to exclude attorneys for the Government of Guam. In
order that Territorial legal officers may continue to act with respect to Territorial,
as opposed to Federal, matters, I recommend that the bill be amended by striking
out the words "Legislature of Guam.' ", on page 1, line 11, and inserting in lieu
thereof the following:
"Legislature of Guam, and except further that the terms `attorney for the
government' and `United States attorney', as used in the Federal Rules of Criminal
Procedure, shall, when applicable to cases arising under the laws of Guam, mean
the Attorney General of Guam or such other person or persons as may be au-
thorized by the laws of Guam to act therein."
Secondly, although this Department considers that no serious question exists
concerning the validity of H. R. 8634, I nonetheless believe that it would be
desirable to add a separability clause. I therefore recommend that a new section
4 be added on page 2 of the bill, immediately following lire 6, such section to
read as follows:
"SEC. 4. If any particular provision of this Act, or the application thereof to
any person or circumstance, is held invalid, the remainder of the Act and the
application of such provision to other persons or circumstances shall not be
affected thereby."
I hope very much that your committee will adopt these two amendments and
th
t H
a
. R. 8634 will be enacted promptly.
The Bureau of the Budget has advised
mission of this report.
Sincerely yours,
ORME LEWIS,
Assistant Secretary of the Interior.
DEPARTMENT OF JUSTICE,
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, May 26, 1954.
Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, D. C.
DEAR MR. CHAIRMAN: This is in response to your request for the views of the
Department of Justice relative to the bill (H. R. 8634) to amend section 22 of the
Organic Act of Guam.
Section 1 of the bill would amend section 22 of the Organic Act of Guam so as
to make unnecessary trial by jury or the prosecution of offenses by indictment by
a grand jury in the District Court of Guam unless and until so authorized by
laws enacted by the Legislature of Guam.
Section 2 of the bill would make the amendment provided for in section 1
effective as of August 1 1950.
Section 3 would provide that no conviction of a defendant in a criminal proceed-
ing in the District Court of Guam heretofore had shall be reversed or set aside on
the ground that the defendant was not indicted by a grand jury or tried by a
petit jury.
The use of juries in Guam is not required by the Constitution. The Supreme
Court has held that Congress may deny the right to grand jury indictment and
petit jury trial in courts for unincorporated territories of the United States (see
Balzac v. Porto Rico, 258 U. S. 298). Guam has not been incorporated into the
United States. The bill of rights for Guam, contained in the organic act (48
U. S. C. 1421-1424), is modeled on the Bill of Rights of the United States Con-
stitution, but deliberately excludes the provisions guaranteeing grand and petit
juries. The explanation given for this in the legislative reports on the organic
act was that "* * * Guamanians derive their tradition in law from Spain, a civil
law nation, Land hence] they have little knowledge or experience in trial by jury.
The Guam Congress could institute trial by jury if it so desired" (S. Rept. 2109,
81st Cong., 2d seas., p. 13). The inference that it was not intended to have juries
in Guam is strengthened by the fact that there was no adoption of the provisions
of the Judicial Code for selecting grand and petit jury panels, although other
-+;...,.. ..C+l,., T.. ~_-_-i c . i .. ...
WaMM,
A
ir&anic Act Of Guam contained in the bill
15f two recent decisions of the Court of
 6 AMEND SECTION 22 OF THE OH 1`O\Q F9& aSe 2001/08/28 : CIA-RDP58-004di1 0003-y THE ORGANIC ACT OF GUAM 7
Appeals for the Ninth Circuit holding that grand jury indictments are necessary
in felony cases, and because one of the judges of that court (Chief Judge Denman)
took the view that petit juries are also necessary (Pugh v. United States, and
Hatchett v. Guam, decided March 30, 1954). The basis for the court's decision
is that the Organic Act of Guam provides for a district court with jurisdiction of
a district court of the United States as such court is defined in section 451 of
title 28, United States Code, and original jurisdiction in all other.causes in Guam
which has not been transferred by the legislature to other court or courts estab-
lished by it (48 U. S. C. 1424). The organic act also provides that the rules
promulgated by the Supreme Court of the United States for the trial of ? civil,
criminal, admiralty, and bankruptcy cases (28 U. S. C. 2072; 18 U. S. C. 3771,
3772; 28 U. S. C. 2073; 11 U. S. C. 53) shall apply to the District Court of Guam.
The Court of Appeals determined that since the rules to be applied in the District
Court of Guam were the Federal Rules of Criminal Procedure, and those rules
explicitly require indictments in felony cases, it is necessary to proceed in felony
cases in the District Court of Guam by way of grand jury indictment. Although
the majority of the court ruled that a petit jury must be provided only when
"required by law," Chief Judge Denman took the separate view that so long
as the District Court of Guam was given the "jurisdiction" of a United States
district court, it was required to' be in all major respects the same as any other
such court, which meant that grand and petit juries were mandatory in felony
cases if the defendant chose.
The first section of the proposed amendment would make clear that the decision
of the ninth circuit in this matter would not have prospective effect. The use of
grand and petit juries would not be mandatory in Guam, but if the Legislature
of Guam desires to institute those procedures it can do so.
Section 2 of the bill would provide, in effect that persons who have already
committed offenses but have not been charged, may be proceeded against by
information, as has been the practice in Guam. Section 3 would provide, on the
other hand, that those who have already been proceeded against by way of
information and trial without a jury, rather than indictment and jury trial, cannot
use such fact as a basis for attack on their convictions by appeal or collaterally.
Thus sections 2 and 3 have retrospective effect.
Whether the bill should be enacted involves a question of policy concerning
which this Department prefers to make no recommendation. However, with
respect to sections 2 and 3, in view of the doubt that may be raised as to their
validity because of their retrospective effect, the committee, if it gives favorable
consideration to the n ns nns in question May desire to include a severability
clause in the bill. The Bureau of the Budget has advised that there is no objection to the sub-
mission of this report.
Sincerely,
WILLIAM P. ROGERS,
Deputy Attorney General.
WASHINGTON, D. C., July 25, 1954.
Senator Guy CORDON,
United States Senate, Washington, D. C.
Would appreciate knowing status of H. R. 8634, grand jury bill, passage in
Senate before adjournment. Most important here. If it fails of passage I am
forced to call special session to enact grand-jury legislation with many attendant
problems involved, making administration of this government very difficult.
Furthermore, failure will operate to open jail to indefinite number of prisoners.
Hope you can give matter personal attention. Thank you.
FORD Q.ELVEDGE,
Governor of Guam, the Marianas.
system upon the island except by action of the insular legislature. This was
expressly stated in the committee reports in both Houses in identical language, as
follows:
"The bill of rights is modeled upon the Bill of Rights in the United States
Constitution but does not expressly provide for trial by jury in Guam. Since
Guamanians derive their tradition in law from Spain, a civil-law nation, they
have little knowledge or experience in trial by jury. The Guam Congress could
institute trial by jury if it so desired" (H. Rcpt. 1677, 81st Cong., 2d sess., p. 13;
S. Rcpt. 2109, 81st Cong., 2d sess., p. 13).
Section 22 (b) of the organic act, however, made the Federal Rules of Criminal
and Civil Procedure applicable to the District Court .of Guam. Among these is
criminal procedure rule 7 which requires felonies to be prosecuted by indictment
by a grand jury unless indictment is waived.
Likewise there are a number of provisions in both the civil and criminal rules
which at least contemplate trial by jury. It seems clear that in applying these
procedural rules to the District Court of Guam, Congress did not intend by impli-
cation to impose the jury system in Guam, in the face of the contrary intent
expressed in the committee reports. However, a doubt on this point has arisen.
The District Court of Guam in United States v. Seagraves (1951, 100 F. Supp. 424)
and United States v. Pugh (1952, 106 F. Supp. 209; appeal dismissed, 197 F. 2d
509) held that the organic act does not require indictment by grand jury or trial
by petit jury in that court. Quite recently, however, the United States Court of
Appeals for the Ninth Circuit has reversed the denial by the district court of a
motion under section 2255 of title 28 by the defendant in the Pugh case to set
aside his conviction of a felony, holding, as I am informed, that the defendant
whose prosecution was begun by information should have been indicted by a
grand jury under criminal procedure rule 7. One of the judges of the court of
appeals also held, I understand, that trial by jury should have been given. This
means, of course, if the decision stands, that it will be necessary to empanel grand
juries in the island hereafter and that convictions of felonies heretofore had in the
district court must all be set aside unless indictment was waived by the defendant.
My investigation of the judicial affairs of Guam made on the island at the request
of the Government of Guam during 7 weeks in the summer of 1951 fully convinced
me that Congress was entirely right in not desiring to impose the jury system in
Guam at this time. I would, therefore, suggest the urgent importance of enacting
a clarifying amendment of section 22 (b) of the organic act to remove the present
ambiguity and carry out the congressional intent in this matter. I believe that
the Dower of Congress to do so is clear, For in Balzac v. People of Porto Rico
(1922, 258 U. S. 298), it was settled that the constitutional guaranties of indictment
by grand jury and trial by jury do not apply to an unincorporated territory.
Indeed the Balzac case is peculiarly applicable to Guam since both Puerto Rico
and Guam were acquired from Spain by the Treaty of Paris and both had the same
civil-law background. Accordingly in Guam prosecution by information rather
than by indictment and trial by the court rather than by a jury are simply matters
of criminal procedure optional with Congress, of remedy and not of right. It
follows, I believe, that since Congress could (as it undoubtedly thought that it did)
authorize the prosecution of felonies in Guam upon information and their trial
by the court it can now amend the law retrospectively so as to eliminate these
alleged procedural defects in the case of felonies heretofore tried (see Charlotte
Harbor Ry. v. Welles (1922, 260 U. S. 8, 11)) by declaring the failure to prosecute
by indictment and to try by jury in these cases to be immaterial to the validity
of a conviction. (See Mattingly v. District of Columbia (1878, 97 U. S. 687) ;
Goddard v. Frazier (10 Cir. 1946, 156 F. 2d 938, cert. den. 329, U. S. 765.))
A draft bill to accomplish this object is enclosed for your consideration.
Sincerely yours,
ALBERT B. MARIS.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT, Hon. GUY CORDON
UNITED STATES COURT OF APPEALS,
FOR THE THIRD CIRCUIT,
Philadelphia 7, Pa:,:April 5, 1954.
Philadelphia 7, Pa., March ,?L9, 1954. Chairman, Subcommittee on Territories and Insular Affairs;,
Hon. GUY CORDON, Committee on Interior and Insular Affairs,
Chairman, Subcommittee on Territories and Insular Affairs, United States Senate, Washington, D. C.
Committee on Interior and Insular Affairs, DEAR SENATOR CORDON: Sup lementing my letter of March 29 transmitting
United States Senate, Washington, D. C. CA p 1,,,,,, l~~ns Act of Guam'with respect to indictment
DEAR SENATOR CORDON: When the Orgal wcbveAsF~IQ1'v.tRe6aae WOM08/28 : CIA-R "~~f Off ~ tII~v I have now had?onnrrtunity to examinp.
 $ AMEND SECTION 22 OF THE OAPWWv*rM& ase 2001/08/28: CIA-RDP58-004 Oi O40M_' THE ORGANIC ACT OF GUA-V 9
the opinions of the Court of Appeals for the Ninth Circuit in the cases of
Bartholomew Moffett Pugh, Jr. v. United States of America, decided February 26,
1954, and George B. Hatchett v. The Government of Guam, decided March 30, 1954.
In the Pugh case the defendant had been convicted in.the District Court of
Guam upon an information charging a felony under the laws of the United
States. The majority opinion filed by Judge Pope -holds that the constitutional
right to indictment by a grand jury does not apply to Guam, since it is an unin-
corporated territory, and that the "requirement of a grand jury is simply a
statutory provision, brought about by section 22 (b) [of the organic act] incor-
porating by reference criminal rule 7 (a)." Holding that the lack of indictment
was a matter which could be raised on a motion under section 2255 of title 28,
United States Code, the court of appeals reversed the judgment of conviction
and remanded with directions to dismiss the information.
In the Hatchett case the defendant had been convicted in the district court
after a trial by the court upon an information charging a felony under the local
law of Guam. The defendant contended on appeal that he was entitled to be
tried by a jury under the sixth amendment. The majority opinion, also filed
by Judge Pope, held that the sixth amendment did not apply to Guam and that
there is no requirement either in the organic act or any other act of Congress
or in the Federal Rules of Criminal Procedure that criminal cases, whether
arising under Federal or local law, must be tried by jury in the District Court
of Guam. However, since the prosecution of the felony had been begun by
information instead of by indictment the conviction was reversed.
In both cases Chief Judge Denman, while concurring in the holding that
indictment by a grand jury was required, placed his conclusion upon a different
ground, taking the view that the district court was without jurisdiction to pro-
ceed by information. In the Hatchett case he dissented from the holding that
jury trial is not required in Guam in criminal cases, his. view being that the
district court is without jurisdiction to try a criminal case except with a jury,
unless waived.
It thus appears that the court of appeals has definitely held that felonies must
be prosecuted in Guam by indictment by a grand jury, unless waived, but that
trial by petit jury is not required by existing law. The effect of the court's holding
is that all convictions of felonies heretofore had in the District Court of Guam may
now be set aside on motion of the defendant under section 2255 of title 28, unless
he has expressly waived indictment. A general jail delivery is thus imminent
unless legislation is promptly passed by Congress to eliminate the present inad-
vertent requirement of indictment. In view of the court's holding that petit
juries are not required the establishment of grand jury procedure in Guam would
certainly be useless, burdensome, and indefensible. Also in view of that holding
it may well be that the last six words of the draft bill submitted to you with my
letter of March 29-"or tried by a petit jury"-are unnecessary and should be
omitted.
CORDON RULE (CHANGES IN EXISTING LAW)
In compliance with the Cordon rule (subset. (4) of rule XXIX of
the Standing Rules of the Senate), changes in existing law made by
the bill, as reported, are shown as follows (existing law proposed to
be omitted is enclosed in black brackets, new matter is printed in
italics, existing law in which no change is proposed is shown in roman):
SECTION 22 (b) OF THE ORGANIC ACT OF GUAM (64 STAT. 389)
(b) The rules heretofore or hereafter promulgated and made effective by the
Supreme Court of the United States pursuant to section 2072 of title 28, United
States Code, in civil cases; section 2073 of title 28, United States Code, in admi-
ralty cases; sections 3771 and 3772 of title 18, United States Code, in criminal
cases; and section 30 of the Bankruptcy Act of July 1, 1898, as amended (title 11,
U. S. C., sec. 53), in bankruptcy cases; shall apply to the District Court of Guam
and to appeals therefrom [.]; except that no provisions of any such rules which
authorize or require trial by jury or the prosecution of offenses by indictment by a
grand jury instead of by information shall be apb gaol ~ystr gourt o q ,/08/28
H4td
unless and until made so applicable by laws en ~'t~i r-Re i~l~t ~9 94,
except further that the terms "attorney for the government" and "United States attor-
ney", as used in the Federal Rules of Criminal Procedure, shall, when applicable to
cases arising under the laws of Guam, mean the Attorney General of Guam or such
other person or persons as may be authorized by the laws of Guam to act therein.
Affairs Committee (attention of Senator Guy
To: Senate Interior and Insular
Cordon).
Subject: H. R. 8634.
Guam is an unincorporated territory (64 Stat. 384; 48 U. S. C. 1421a). It was
governed by Spanish civil law prior to its acquisition by the United States. It
has never used and is not required by the Constitution of the United States to
employ the jury system, either with respect to indictment by grand jury or trial
by petit jury (Balzac v. Porto Rico (1922), 258 U. S. 298, 304-313; United States v.
Seagraves (D. C. Guam, 1951; 100 F. Supp. 424, 425); Government of Guam v.
Pennington (D. C. Guam, 1953; 114 F. Supp. 907, 909); see also Ocampo v. United
States (1914), 234 U. S. 91, 98; Dorr v. United States (1903), 195 U. S. 138, 149.)
Congress did not intend that the Organic Act of Guam (64 Stat. 384, et seq.;
48 U. S. C. 1421 et seq.) would require the use of the jury system (H. Rept. 1677,
81st Cong., p. 13; S. Rept. 2109, 81st Cong., p. 13, cf. p. 3; 96 C. R. 11382 (July 31,
1950)). The bill of rights in the act did not include any mention of a right to a
grand or petit jury (48 U. S. C. 1421b). Nor did the act provide for juries being
selected or convened. The bill (H. R. 7273, 81st Cong.) as passed by the House
provided for a Guam judicial system headed by a supreme court subject to Guam
law (96 C. R. 7576). At least partly for reasons of economy (Senate Report,
supra, p. 3), Senate committee amendments, which were concurred in by the
Senate, substituted for that court a United States district court (subject to the
Rules of Criminal Procedure), "doing away with two judges" (96 C. R. 11382).
However, in two as yet unreported cases, the United States Court of Appeals
for the Ninth Circuit held felony convictions in Guam invalid unless based on
graa.iu J jury ~r+ n..., V ,. w h v Un4ited tales I%TT - S. ~. A - . O r , Febru ry 26 1954)
uau u~ u -
reviewing United 1States v. Pugh (D. C. Guam 1952), 106 F. Supp. 209, and
Hatchett v. Government of Guam (U. S. C. A. 9 C, March 30, 1954); contra: United
States v. Seagraves, supra, and Government of Guam v. Pennington, supra).
A letter dated May 11, 1954 to the chairman; House Committee on Interior
and Insular Affairs, printed in House Report 1764, 83d Congress,. page 3, states:
"The court so ruled because the Federal Rules of Criminal Procedure, made ap-
plicable to the District Court of Guam by.section 22 (b) of the organic act [48
U. S. C. 1424 (b)], require in rule 7 that certain crimes be prosecuted by indictment
unless indictment is waived. The effect of the court's holding appears to be that
all convictions of felonies heretofore had in the District Court of Guam may be
set aside, upon appropriate motion of the defendant, unless indictment was
earlier waived by him."
(Because the chief judge expressed an opinion not necessary to the decision in
the Hatchett case that a jury trial was also necessary, the curative bill (H. R.
8634) is so drawn as to authorize convictions without petit juries as well as those
not based on grand jury indictments.)
In order to validate criminal proceedings conducted since the enactment of
the organic act, August 1, 1950, the bill is retrospective as well as prospective. If
the Pugh and Hatchett decisions are allowed to stand in spite of the arguments
against their correctness (see Hawaii v. Mankichi (1903), 190 U. S. 197, at 209,
212), the question may be raised in other cases whether or not this statute would
be invalid as an ex post facto law.
The prohibition against such laws contained in the Guam Organic Act (64
Stat. 385; 48 U. S. C. 1421b (j)) obviously does not restrict the Congress of the
United States.
The Federal Constitution's protection against ex post facto laws (art. 1, see. 9,
clause 3) has been said to apply even where juries have been held not to be con=
stitutionally required (Darr v. United States (1904) 195 U. S. 138, 142, and cases
CIA-RDR d#h0~11~ee fit to incorporate territory ceded by treaty
into the United ES ates, we regard it as settled * * * that the territory is to be
APPENDIX
THE LIBRARY OF CONGRESS,
LEGISLATIVE REFERENCE SERVICE,
AMERICAN LAW DIVISION,
Washington, 25, D. C., June 22, 1954.
 10 AMEND SECTION 22 OF THE ORGANIC ACT OF GUAM
governed under the Approved For Release 2001/08/28
and subject to such co
power existing in nstitutional restrictions iosupto make laws on the powers rof such that ebody as
are applicable to the situation" (Id., 143: see Balzac v. Porto Rico, supra, At p. 312,
and Alton v. Alton (C. C. A. 3, 1953) 207 F. 2d 667 670, note 8).
An ex post facto law was defined by Mr. Justice dhase in the much cited case
of Calder v. Bull ((1798) 3 Dall. 386, 390) as "First, every law that makes an
action done before the passing of the law, and which was innocent when done,
criminal; and punishes such action. Second, every law that aggravates or makes it greater than it was, when committed. Third, every lw that changes
the punishment, and inflicts a greater punishment, than the law annexed to the
crime, when committed. Fourth, every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law required at the time of the
commission of the offense, in order to convict the offender * * * Every ex ost
facto law must necessarily be retrospective,- but every retrospective laws not an
ex post facto law." In Kring v. Missauri((1882) 107 U. S. 221), the court, in
reversing a first-degree-murder conviction on the ground that under a prior law
defendant had been in jeopardy when he pleaded guilty to second degree murder
and could not have been tried again, extended this definition perhaps farther than
the cases support, saying at pages 228-229:
"An ex post facto law is one * * * in short, which in relation to the offense
or its consequences, alters the situation of a party to his disadvantage."
Where the constitutional guaranty of a jury trial in a State or in an incorporated
territory means a right to a jury of 12, a law made after the crime which reduced
the jury to 8, was an invalid ex post facto law (Thompson v. Utah (1898), 170
U. S. 343; see also Springville v. Thomas (1897), 166 U. S. 707, American Pub-
lishing Co. v. Fisher (1897), 166 U. S. 464).
However, a statute changing an absolute right to severance, after joint indict-
ment, to a privilege resting in the discretion of the trial court was held not to be
an ex post facto law (Beazell v. Ohio (1925), 269 U. S. 163). As Mr. Justice
Stone said, at pages 170-171:
"But the statute of Ohio here drawn in question affects only the manner in
which the trial of those jointly accused shall be conducted. It does not deprive
the plaintiffs in error of any defense previously available, nor affect the criminal
quality of the act charged. Nor does it change the legal definition of the offense
or the punishment to be meted out. The quantum and kind of proof required to
establish guilt, and all questions which may be considered by the court and
jury in determining guilt or innocence, remain the same.
`Expressions are to be found in earlier judicial opinions to the effect that the
Constitutional limitation may be transgressed by alterations in the rules of evidence
or procedure. (See Calder v. Bull, 3 Dall. 386, 390; Cummings v. State of Missouri,
4 Wall. 277, 326; Kring v. Missouri, 107 U. S. 221, 228, 232.) And there may be
procedural changes which operate to deny to the accused. a defense available under
the laws in force at the time of the commission of his offense, or which otherwise
affect him in such a harsh and arbitrary manner as to fall within the constitutional
prohibition (Kri, g v. Missouri, 107 U. S. 221; Thompson v. Utah, 170 U. S. 343).
But it is now well settled that statutory changes in the mode of trial or the rules
of evidence, which do not deprive the accused of a defense and which operate only
in a limited and unsubstantial manner to his disadvantage, are not prohibited.
A statute which, after indictment, enlarges the class of persons who may be wit-sses at
e trial, by isCnot an ex post facto removing (Hopt the Utah, 110 U. S. 574). Nor is aista ut felony'
changes the rules of eviaence after the indictment so as, to render admissible
against the accused evidence previously held inadmissible (Thompson v. Missouri,
171 U. S. 380); or which changes the place of trial (Gut v. The State, 9 Wall. 35);
or which abolishes a court for hearing criminal appeals, creating a new one in its
stead. (See Duncan v. Missouri, 152 U. S. 377, 382.y
"Just what alterations of procedure will be held to be of sufficient moment to
transgress the constitutional prohibition cannot be embraced within a formula
or stated in a general proposition. The distinction is one of degree. But the con-
stitutional provision was intended to secure substantial personal rights against
arbitrary and oppressive legislation (see Malloy v. South Carolina, 237 U. S. 180,
183) and not to limit the legislative control of remedies and modes of procedure
which do not affect matters of substance. (See Gibson v. Mississippi, 162 U. S.
565, 590; Thompson v. Missouri, supra, 386; Mallett v. North Carolina, 181 U. S.
589, 597.)"
And the majority rule is that a statute retrospectively substituting an informa-
tion for an indictment which
: CIA-RDP58-0045 ( Jp 9p9 & THE ORGANIC
59 Calif. 243, 43 Am. Rep. 257; Sage v. State (1891), 127 Ind. 15, 26 N. E. 667;
State v. Kyle (1901), 166 Mo. 287, 56 L. R. A. 115, 65 S. W. 763; State v. Parks
(1901); 165 Mo. 496, 65 S. W. 1132 (4); Lybarger v. State (1891), 2 Wash. 552, 27
Pac. 449 (rehearing denied, 27 Pac. 1029; appeal dismissed under rule 10 (1895),
163 U. S. 693 (1)); State v. Hoyt (1892), 4 Wash. 818, 30 Pac. 1060; In re Wright
(1891), 3 Wyo. 478, 13 L. R. A. 748, 31 Am. St. Rep. 94 27 Pac. 565. Contra:
State v. Kingsly (1891), 10 Mont. 537, 26 Pac. 1066; darnsey v. State (1910),
4 Okla. Crim. Rep. 547; 38 L. R. A. (N. L.) 600, 112 Pac. 24; State v. Rock (1899),
20 Utah 38, 57 Pac. 532). In these three contra cases, the ex post facto clause of
the Federal Constitution was clearly applicable because the territory had been
incorporated into the United States.
Guam is not an incorporated territory. The Congress did not intend it to have
a jury system. An unexpected application of a jury requirement among general
procedural rules (referred to by the organic act) is the only basis for the retro-
active right to a jury system. Congress may be free to apply an ex post facto
law to Guam to correct the error. Such a statute substituting retroactively an
information for a grand jury indictment does not appear to be an ex post facto
law under the majority rule.. Consequently, it appears unlikely that H. R. 8634
could be successfully attacked in the courts.
NOTE.-It is suggested that section 2 be revised so as to refer, not to "August 1,
1950" but to the effective date of section 22 of the Organic Act of Guam (64 Stat.
384, 389-390). Besides making clear the reason for the retrospective feature of
the act, this change would dovetail with the organic act which, although approved
August 1, 1950 (64 Stat. 393), contains the following provision concerning the
act's coming into effect:
"SEc. 34. Upon the 21st day of July 1950, the anniversary of the liberation of
the island of Guam by the Armed Forces of the United States in World War II,
the authority and powers conferred by this Act shall come into force. However,
the President is authorized, for a period not to exceed one year from the date of
enactment of this Act, to continue the administration of Guam in all or in some
respects as provided by law, Executive order, or local regulation in force on the
date of enactment of this Act. The President may, in his discretion, place in
operation all or some of the provisions of this Act if practicable before the ex-
piration of the period of one year (Id., 383)."
It is just possible that there was a defendant charged by information during the
period July 21 to August 1, 1950, and that he might otherwise be able to set aside
his conviction.
CARLILE BOLTON-SMITH.
O
Won caiamiGtod) le not invalid as utw ox t obtquir roooduro who o wa
; facto law ~cecX' 9;j& 2001/08/ 8 : CIA-RDP58-00453R000100300003-9
 Approved For Release 2001/08/28 : CIA-RDP58-00
Public Law 229 - 83d Congress
Chapter 383 - 1st Session
S. J. Res. 6
JOINT RESOLUTION
To provide for a continuance of civil government: for the Trust Territory of the
Pacific Islands.
Whereas, pursuant to the authority of Public Law 204, Eightieth
Congress, of July 18, 1947, the President approved the trusteeship 61 Stat. 397.
agreement for the Trust Territory of the Pacific Islands between
the United States and the United Nations, effective July 18, 1947;
and
Whereas responsibility for civil administration of the Trust Terri-
tory was vested in the Secretary of the Navy by Executive Order 3 cFR, 1947
Numbered 9875 of July 18,1947; and
Whereas responsibility for such civil administration was transferred Supp., p. 160.
to the Secretary of the Interior, effective July 1, 1951, by Executive note
Order Numbered 10265 of June 29,1951; and 48 use note
1no
Whereas organic legislation for the Trust Territory is now pending prop
before the Congress : It is hereby 67 stet. 494.
Resolved by the Senate and House of Representatives of the United 6 Stat. 9 .
States of America in Congress assembled, That until June 30, 1954, Trust Terri-
all executive, legislative, and judicial authority necessary for the tors of Paoifio
civil administration of the Trust Territory of the Pacific Islands shall Islands.
continue to be vested in such person or persons and shall be exercised Civil govern-
in such manner and through such agency or agencies as the President
of the United States may direct or authorize.
SEC. 2. There are hereby authorized to be appropriated for a period Appropriation.
not to exceed one year such sums, not to exceed $7,500,000, as may be
necessary to carry out the provisions of this joint resolution: Pro-
vided, however, That no new activity requiring expenditures of Fed-
eral funds shall be initiated without specific prior approval of the
Congress.
SEC. 3. Notwithstanding the provisions of the Interior Department Island Trading
Appropriation Act, 1953 (Public Law 470, Eighty-second Congress, Moo ran sof
second session, 66 Stat. 445), the Island Trading Company of Micro-
nesia shall not have succession after December 31, 1954.
Approved August 8, 1953.
Approved For Release 20015/ge$/~~ : CIA-RDP58-00453R000100300003-9