Appeal from the United States District Court for the District of Guam, Appellate Division. Appeal from the United States District Court for the District of Guam, Appellate Division. Appeal from the United States District Court for the District of Guam, Appellate Division. Appeal from the United States District Court for the District of Guam, Appellate Division. D.C. No. CR-88-00026A. Rafeedie, Munson, and Jones, Judges, Presiding. D.C. No. CR-88-00034A. Rafeedie, Munson, and Jones, Judges, Presiding. D.C. No. CR-85-00025A. Rafeedie and Jones, Judges, Presiding. D.C. No. CR-88-00004A. Rafeedie, Munson, and Jones, Judges, Presiding.
Before: Arthur L. Alarcon, Robert Boochever, and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Boochever.
BOOCHEVER, Circuit Judge:
The government of Guam appeals the decision of the Appellate Division reversing and remanding for new trials the convictions of Juan Borja, Ignatius Smithers, Henry Santos, and Anthony Taimanglo on the basis of an erroneous jury instruction defining "reasonable doubt." The questions presented in these consolidated cases are (1) whether an order granting a new trial in a criminal case is a final, appealable decision subject to this court's jurisdiction, and (2) whether the Appellate Division erred in reviewing an unobjected-to jury instruction for reversible error, rather than for plain error. We reverse the Appellate Division's decisions in all four cases.
This is a consolidated appeal from four separate criminal trials. Each of the defendants, Juan Borja, Ignatius Smithers, Henry Santos, and Anthony Taimanglo, was tried separately for unrelated offenses, found guilty, and sentenced. Borja, Smithers and Santos were tried before the same trial Judge who presided over the cases of Guam v. Yang, 800 F.2d 945 (9th Cir. 1986) (" Yang I ") and Guam v. Ignacio, Cr. App. No. 79-00036A (D. Guam App. Div.), aff'd, 673 F.2d 1339 (9th Cir. 1982). Those cases upheld the giving of a nonstatutory reasonable doubt instruction. In Guam v. Yang, 850 F.2d 507 (9th Cir. 1988) (" Yang II ") (en banc), we held that the use of a reasonable doubt instruction "substantially at odds" with Guam's statutory definition was reversible error so that we reversed and remanded for a new trial. Similarly, nonstatutory jury instructions were given in the four cases at issue here. All four defendants appealed their convictions to the District Court of Guam Appellate Division, claiming that the trial court committed reversible error by giving a nonstatutory reasonable doubt jury instruction. The Appellate Division held that the facts in these four cases could not be distinguished from the facts in Yang II. Thus the Appellate Division reversed the convictions and remanded for new trials on the merits.
To establish jurisdiction, Guam "must show that it has the right to appeal and that the order appealed from comes within the terms of a statutory grant of appellate jurisdiction." United States v. Dior, 671 F.2d 351, 354 (9th Cir. 1982). The government's right to appeal is narrow, and it "'may not appeal in a criminal case in the absence of express statutory authority.'" Guam v. Estrebor, 848 F.2d 1014, 1015 (9th Cir. 1988) (quoting Guam v. Okada, 694 F.2d 565, 566 (9th Cir. 1982), amended, 715 F.2d 1347 (9th Cir. 1983), cert. denied, 469 U.S. 1021 (1984)). Guam has the authority to appeal to this court from an adverse final decision or order of the Guam Appellate Division. 48 U.S.C. §§ 1424-3(c), 1493(c) (1988).
The defendants argue that an order for a new trial is not a final and appealable order within the meaning of § 1424-3(c). We reject this argument. The defendants misapprehend the fundamental difference between a trial court's grant of a new trial and an appellate court's remand for a new trial. A trial court's grant of a new criminal trial is not a final, appealable order because "it does not resolve the ultimate question of the guilt or innocence of the accused . . ., much less determine a sentence." Dior, 671 F.2d at 354. Rather, "'final judgment in a criminal case means sentence. The sentence is the judgment.'" Id. (quoting Berman v. United States, 302 U.S. 211, 212 (1937)). In this case the district court sentenced each of the defendants, and each judgment was a final order appealable to the Appellate Division.
As to the Appellate Division's remand for a new trial, this court assesses the finality of the decision in roughly the same way that the Supreme Court determines the finality of state court judgments for purposes of its jurisdiction. Guam v. Kingsbury, 649 F.2d 740, 742 (9th Cir. 1981), cert. denied, 454 U.S. 895 (1981). Accordingly, Appellate Division decisions requiring further proceedings in the trial court are considered final and appealable if the party seeking review would not have a right to appeal an adverse outcome of those subsequent state proceedings. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 481 (1975); Miranda v. Arizona, 384 U.S. 436, 498 n.71 (1966); see also Estrebor, 848 F.2d at 1015 (Appellate Division decision affirming defendant's right to withdraw guilty plea was an appealable, final decision). Here, Guam would not have the right to appeal the defendants' acquittals on retrial. See 48 U.S.C. § 1493 (a), (b) (1988) (territorial prosecution's right to appeal trial court decisions limited to dismissals of indictments and suppression orders). Therefore the Appellate Division's decisions are final and appealable, and this court has jurisdiction.
At the Borja, Smithers, and Santos trials, the court instructed the ...