Thursday, March 20, 2003
S.Ct. predictions again
The first case to be argued next week is Nguyen v. US, along with another case presenting the same issue. Nguyen and her co-defendant were convicted, in the U.S. District Court in Guam, of drug offenses. They appealed to the U.S. Court of Appeals for the Ninth Circuit (whose territory covers Guam). Now, many appellate court panels include not only federal appellate judges, but also district judges "sitting by designation" to help out with the appellate court's caseload; and this panel included a U.S. District Judge from the Northern Mariana Islands. The panel affirmed the convictions.
The problem is that U.S. District Judges in territories aren't "Article III" judges (after Article III of the Constitution, governing the judicial branch). They don't have life tenure, etc. The federal bench also includes Article I judges (such as bankruptcy judges); but, in a bit of legal arcana, these folks apparently aren't Article I judges either. They're Article IV judges. And Nguyen's argument is that she was entitled to a panel made up of all Article III judges.
If the convictions had occurred (say) in the U.S. District Court for the District of Hawaii, Nguyen's argument would be a pretty compelling one, I think. We would then talk all about the importance of an independent judiciary, and how Article III's grant of life tenure to Article III judges is what allows that independence, and so on. But it seems very unlikely to me that the Supreme Court would hold that a person convicted in the District Court of a territory has a constitutional right to an all-Article-III appellate panel, when she apparently doesn't even have a right to an Article III District Judge in the first place.
But Nguyen has something besides a constitutional argument; she has a statutory argument, to the effect that the Ninth Circuit had no statutory authority to let a non-Article-III judge sit by designation. And you know what? The government agrees with her, and says that this was a real mistake on the Ninth Circuit's part. If you're interested in the statutory minutiae, read the government's brief at that link.
So why do I predict that the Supreme Court will nevertheless AFFIRM the convictions? Because they will think that Nguyen and her co-defendant did not raise this argument in a timely fashion, and that they were waiting to see whether the panel ruled against them before raising (or waiving) it. And you can't play that sort of wait and see game. They knew at oral argument, before the decision was rendered, that the panel had this non-Article-III judge on it; and they didn't file any motion protesting that, before the panel decision (nor, according to the government, did they seek rehearing in the appellate court). Or maybe (less likely, I think) the Court will say "there's no reason to conclude that the technically-ineligible judge swayed the votes of the two eligible judges, so no harm no foul." Either way, the Supreme Court will have the chance to say, "hey, don't do that again, Ninth Circuit; but you folks go directly to jail."
posted by sam 6:43 AM
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