USA v. Xiaoying Dowai

Filing

FILED OPINION (SIDNEY R. THOMAS, CONSUELO M. CALLAHAN and MARY H. MURGUIA) AFFIRMED. Judge: CMC Authoring, FILED AND ENTERED JUDGMENT. [10161053]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 14-10277

v.

D.C. No.
1:13-cr-00014-RVM-1

XIAOYING TANG DOWAI,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief Judge, Presiding
Argued and Submitted June 15, 2016
Honolulu, Hawaii
Filed October 17, 2016
Before: Sidney R. Thomas, Chief Judge, and Consuelo M.
Callahan and Mary H. Murguia, Circuit Judges.
Opinion by Judge Callahan

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UNITED STATES V. DOWAI
SUMMARY*

Criminal Law
The panel affirmed convictions in a case in which the
defendant asserted that she was deprived of her constitutional
right to an independent judiciary because the Northern
Mariana Islands District Court – which was created by statute
and whose judges lack the secure tenure required by Article
III of the Constitution – is not properly established under the
Constitution.
The panel explained that the language of 48 U.S.C.
§§ 1821 and 1822 shows that Congress intentionally created
the NMI District Court and gave it criminal jurisdiction over
criminal prosecutions; that Congress did so based on the
authority conferred on it by Article IV, Section 3, Clause 2 of
the Constitution; and that this may well be sufficient to defeat
the defendant’s heavy burden of showing that Congress
exceeded its constitutional bounds.
The panel wrote that the defendant’s challenge to the
NMI District Court’s authority fails completely in light of
Supreme Court precedent that has rejected challenges similar
to hers.
The panel rejected the defendant’s other challenges to her
conviction in a memorandum disposition.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Joseph E. Horey (argued), O’Connor Berman Dotts & Banes,
Saipan, Commonwealth of the Northern Mariana Islands, for
Defendant-Appellant.
Garth R. Backe (argued) and Ross K. Naughton, Assistant
United States Attorneys; Alicia A.G. Limtiaco, United States
Attorney; United States Attorney’s Office, Saipan,
Commonwealth of the Northern Mariana Islands; for
Plaintiff-Appellee.

OPINION
CALLAHAN, Circuit Judge:
Xiaoying Tang Dowai (“Tang”), a native of China,
appeals her convictions for visa fraud, making a false
statement, and conspiracy to defraud the United States. On
appeal, she asserts she has been deprived of her constitutional
right to an independent federal judiciary because the Northern
Mariana Islands District Court (“NMI District Court”) is not
properly established under the Constitution. We hold that
Tang was properly tried in the NMI District Court and affirm
her conviction.1
I
Tang came to Saipan from China in 2002 and worked in
several garment factories. When her employment contract
1

We reject Tang’s other challenges to her conviction in a
memorandum disposition filed concurrently with this opinion.

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expired in 2009, Tang was unable to find another contract
employer. In order for Tang to remain in Saipan, her
boyfriend, Shahadat Hossain (known as Chico), approached
Jesse Dowai, a native of Saipan, and asked him if he would
help out by marrying a Chinese woman. Chico told Dowai he
would pay him $500. Dowai agreed to the proposition and
married Tang in September 2009. Chico was present at the
marriage and gave Dowai $500.
Following the marriage ceremony, Tang and Dowai never
lived together and never spent any time together in the
absence of Chico. Tang’s marriage to Dowai made her
eligible for an “immediate relative” (“IR”) entry permit under
Commonwealth of the Northern Mariana Islands (“CNMI”)
law, pursuant to which she could reside and work on Saipan
without a contract. Tang secured work as a cashier in a poker
room through November 2011.
At that time there was a change in the law and Tang’s IR
status no longer allowed her to work. She was advised that if
she wanted to keep working she would have to apply for
lawful permanent resident status. Accordingly, she applied
for a green card. Tang’s application asserted that she was
married to Dowai and that they had lived together since
October 2009.
Tang was initially indicted in October 2013 in the NMI
District Court. Her motion to dismiss the indictment on
constitutional grounds was denied and a superseding
indictment issued on January 21, 2014, charging her with
conspiracy to defraud the United States (18 U.S.C. § 371),
visa fraud (18 U.S.C. § 1546(a)), and making a false
statement (18 U.S.C. § 1001(a)(2)). The jury found Tang
guilty on all three charges.

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After the NMI District Court denied Tang’s post-trial
motion for judgment of acquittal and arrest of judgment, she
was sentenced to a term of two years’ probation. Tang filed
a timely notice of appeal.
II
Tang’s most serious contention on appeal, at least in
terms of its potential consequences, is that because the judges
of the NMI District Court lack the secure tenure required by
Article III of the Constitution, her trial for violations of
Title 18 in that court violates Article III.2 In support of her
position, Tang notes that the NMI District Court is created by
statute, 48 U.S.C. § 1821(b), and objects that NMI District
Court judges serve ten-year terms and can be removed by the
President alone.
The constitutionality of a statute is a question of law that
we review de novo. United States v. Godinez-Ortiz, 563 F.3d
1022, 1032 (9th Cir. 2009); United States v. Harris, 185 F.3d
999, 1003 (9th Cir. 1999). However, Tang has the
considerable burden of making a plain showing that Congress
exceeded its constitutional bounds in creating the NMI
District Court. United States v. Morrison, 529 U.S. 598, 607
(2000) (“Due respect for the decisions of a coordinate branch
of Government demands that we invalidate a congressional
enactment only upon a plain showing that Congress has
exceeded its constitutional bounds.”).
Tang is correct that the NMI District Court is not an
Article III court and its judges are not Article III judges.
2

Tang does not allege that being tried in the NMI District Court
otherwise violated any of her constitutional rights.

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Indeed, the Supreme Court in Nguyen v. United States,
539 U.S. 69, 72–73 (2003), stated that the NMI District Court
“is not an Article III court but an Article IV territorial court
with subject matter substantially similar to the jurisdiction of
the District Court of Guam.” But it does not follow that the
NMI District Court lacked authority to try Tang.
A. The NMI District Court was established by
Congress pursuant to its authority under Article
IV of the Constitution.
Despite the Supreme Court’s statement, Tang asserts that
the NMI District Court is not a territorial court created
pursuant to Congress’ authority under Article IV of the
Constitution, but an Article I treaty court. Tang explains that
Article II of the Constitution gives the President the power to
make treaties, and the terms of a treaty are implemented by
Congress under its Article I powers, including its power
under the Necessary and Proper Clause and its power to
“constitute Tribunals inferior to the supreme Court.” See
Missouri v. Holland, 252 U.S. 416, 432 (1920). Article IV,
Section 3 of the Constitution grants Congress the power “to
dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the
United States.” (emphasis added).
We have recognized the “unique political relationship
between the [Northern Mariana Islands] and the United
States.” Com. of N. Mariana Islands v. Atalig, 723 F.2d 682,
684 (9th Cir. 1984). From 1947 until 1975, the United States
exercised “powers of administration, legislation, and
jurisdiction” over the CNMI under a United Nations
Trusteeship. Id. However, in 1975, the people of the CNMI

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chose to become a self-governing commonwealth under
United States sovereignty. Id. at 685.
Whatever the initial authority for the United States
exercising authority over the CNMI, the Covenant to
Establish a Commonwealth of the Northern Mariana Islands
in Political Union with the United States, coupled with
Congress’ approval of the Covenant in Joint Resolution of
March 24, 1976 (Pub. L. No. 94-241, 90 Stat. 263, reprinted
in 48 U.S.C. § 1681), established Congress’ authority over
the CNMI under Article IV of the Constitution. The
Covenant states that the people of the CNMI, exercising
“their inalienable right of self-determination, . . . have clearly
expressed their desire for political union with the United
States.”3 The United States, in return, while recognizing that
the people of the CNMI “have the right of local selfgovernment,” agreed to “have complete responsibility for and
3

Section 105 of the Covenant further states:
The United States may enact legislation in accordance
with its constitutional processes which will be
applicable to the Northern Mariana Islands, but if such
legislation cannot also be made applicable to the
several States the Northern Mariana Islands must be
specifically named therein for it to become effective in
the Northern Mariana Islands. In order to respect the
right of self-government guaranteed by this Covenant
the United States agrees to limit the exercise of that
authority so that the fundamental provisions of this
Covenant, namely Articles I II and III and Section 501
and 805, may be modified only with the consent of the
Government of the United States and the Government
of the Northern Mariana Islands.

Reprinted in Pub. L. 94-241, 90 Stat. 263 (1976). Title 48 U.S.C. § 1821
specifically names the CNMI as required by Section 105.

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authority with respect to matters relating to foreign affairs
and defense affecting the Northern Mariana Islands.” Pub. L.
No. 94-241 (Sections 103 and 104).
In conjunction with the Covenant to Establish a
Commonwealth of the Northern Mariana Islands in Political
Union with the United States of America, Congress, in
November 1977, passed legislation that has been codified in
Title 48 U.S.C. § 1821. See Pub. L. 95-157, 91 Stat. 1265
(1977). Title 48 U.S.C. § 1821(a) establishes “for and within
the Northern Mariana Islands a court of record to be known
as the District Court for the Northern Mariana Islands.”
Subsection (b) provides for the President to appoint, with the
advice and consent of the Senate, a judge for the NMI District
Court “who shall hold office for a term of ten years and until
his successor is chosen and qualified, unless sooner removed
by the President for cause.” Section 1822 states that:
The district court shall have original
jurisdiction in all causes in the Northern
Mariana Islands not described in subsection
(a) of this section jurisdiction over which is
not vested by the Constitution or laws of the
Northern Mariana Islands in a court or courts
of the Northern Mariana Islands.
Moreover, Congress clearly intended that the NMI District
Court have jurisdiction over criminal cases as the legislation
provided that “[i]n causes brought in the district court solely
on the basis of this subsection, the district court shall be
considered a court of the Northern Mariana Islands for the
purposes of determining the requirements of indictment by
grand jury or trial by jury.” See id.

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The language of 48 U.S.C. §§ 1821 and 1822 clearly
shows that Congress intentionally created the NMI District
Court and gave it jurisdiction over criminal prosecutions.
Congress did so based on the authority conferred on it by
Article IV, Section 3, Clause 2 of the Constitution.4 This,
indeed, may well be sufficient in itself to defeat Tang’s heavy
burden of showing that Congress “exceeded its constitutional
bounds.” Morrison, 529 U.S. at 607.5 However, Tang’s
challenge to the NMI District Court’s authority fails
completely in light of Supreme Court precedent that has
rejected challenges similar to hers.

4

None of the cases cited by Tang compels a different conclusion. In
Atalig, we implied that Congress administers the CNMI under Article IV.
723 F.2d at 689 (noting that the doctrine of incorporation “is designed to
limit the power of Congress to administer territories under Article VI of
the Constitution”). In Ngiraingas v. Sanchez, 858 F.2d 1369, 1371 n.1.
(9th Cir. 1988), we noted that the “CNMI has a unique relationship with
the United States” and commented on the relationship under the
Trusteeship, but not under the Joint Resolution. In Morgan Guaranty
Trust Co. v. Republic of Palau, 924 F.2d 1237, 1244 (2d Cir. 1991), the
Second Circuit, after describing the unique nature of a trust territory, took
“judicial notice of the fact that the United Nations Security Council has
approved the termination of the trusteeship arrangement as to the Northern
Mariana Islands, which has acquired the status of commonwealth.”
5

Moreover, Tang has failed to show that it makes any difference
whether Congress’ creation of the NMI District Court derives from its
authority under Article IV or Article I of the Constitution. The grounds
for holding that the NMI District Court has authority to convict Tang as
an Article IV court also support its authority to convict Tang as an Article
I court.

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B. The Supreme Court has rejected similar
challenges to non-Article III courts.

In Palmore v. United States, 411 U.S. 389 (1973),
Palmore challenged his conviction of a felony under the
District of Columbia Code because the District of Columbia
judge did “not have protection with respect to tenure and
salary under Art. III of the Constitution.” Id. at 390. Writing
for the Court, Justice White described Palmore’s position as
being “that an Art. III judge must preside over every
proceeding in which a charge, claim or defense is based on an
Act of Congress or a law made under its authority.” Id. at
400. “At the very least, [Palmore] asserts that criminal
offenses under the laws passed by Congress may not be
prosecuted except in courts established pursuant to Art. III.”
Id. This is precisely Tang’s position.
But the Supreme Court was not impressed. It held that
Congress “was not constitutionally required to create inferior
Art. III courts to hear and decide cases within the judicial
power of the United States, including those criminal cases
arising under the laws of the United States.”6 Id. at 401. The
6

The Supreme Court continued:
Nor, if inferior federal courts were created, was it
required to invest them with all the jurisdiction it was
authorized to bestow under Art. III. “[T]he judicial
power of the United States . . . is (except in enumerated
instances, applicable exclusively to this court)
dependent for its distribution and organization, and for
the modes of its exercise, entirely upon the action of
Congress, who possess the sole power of creating the
tribunals (inferior to the Supreme Court) . . . and of
investing them with jurisdiction either limited,
concurrent, or exclusive, and of withholding

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Court further commented “[n]or, more particularly has the
enforcement of federal criminal law been deemed the
exclusive province of federal Art. III courts.” Id. at 402. The
Supreme Court then specifically addressed Article IV courts:
It is also true that throughout our history,
Congress has exercised its power under Art.
IV to ‘make all needful Rules and Regulations
respecting the Territory or other Property
belonging to the United States’ by creating
territorial courts and manning them with
judges appointed for a term of years. These
courts have not been deemed subject to the
strictures of Art. III, even though they
characteristically enforced not only the civil
and criminal laws of Congress applicable
throughout the United States, but also the laws
applicable only within the boundaries of the
particular territory.
Id. at 402–03. The Court noted that “[t]erritorial courts,
therefore, have regularly tried criminal cases arising under the
general laws of Congress, as well as those brought under
territorial laws.” Id. at 403 (footnotes omitted).
In the final section of its opinion, the Supreme Court
reiterated that neither it nor Congress had read the

jurisdiction from them in the exact degrees and
character which to Congress may seem proper for the
public good.” Cary v. Curtis, 3 How. 236, 245,
11 L.Ed. 576 (1845).
411 U.S. at 401.

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Constitution to require “every criminal prosecution . . . to be
tried in an Art. III court before a judge enjoying lifetime
tenure and protection against salary reduction.” Id. at 407.
Rather, the requirements of Art. III “must in proper
circumstances give way to accommodate plenary grants of
power to Congress to legislate with respect to specialized
areas having particularized needs and warranting distinctive
treatment.” Id. at 408.
C. Tang’s challenge to the NMI District Court
misreads Supreme Court precedent.
In response to this approach, Tang argues that Article IV
does not apply because the “CNMI is not so remote and its
relation to the United States is not so impermanent that an
exception to the requirements of Article III is justified.” She
appears to extract this suggested limitation on Congressional
authority under Article IV from an observation in Justice
Harlan’s opinion in Glidden v. Zdanok, 370 U.S. 530 (1962),
and possibly O’Donoghue v. United States, 289 U.S. 516
(1933). However, this argument fails for three reasons. First,
Justice Harlan’s opinion was not an opinion joined by a
majority of the justices.7 Second, Glidden precedes and thus
is superseded by Palmore, 411 U.S. 389, which, as noted,
expressly affirms Congress’ authority to create and maintain
Article IV courts. Third, and dispositive, the Court in
Glidden was concerned with defining an Article III court, not
with limiting the authority of an Article IV court.

7
Only Justices Brennan and Stewart joined Justice Harlan’s opinion.
Justice Clark wrote a concurring opinion which was joined by Chief
Justice Warren. Justice Douglas wrote a dissent that was joined by Justice
Black. Justice Frankfurter and Justice White took no part in the decision
in the case.

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The issue in Glidden was whether the United States Court
of Customs and Patent Appeals and the United States Court
of Claims were Article III courts or “had been created by
virtue of other substantive powers possessed by Congress.”
Glidden, 370 U.S. at 531. The Court held that the courts were
created under Article III and that their judges “have been
constitutionally protected in tenure and compensation.” Id.
at 584. In reaching this conclusion, Justice Harlan noted that
Congress had declared that the courts were Article III courts.8
Id. at 540–43.
In the course of his opinion, Justice Harlan endorsed
Chief Justice Marshall’s opinion in American Insurance
Company v. Canter, 1 Pet. 511, 7 L. Ed. 242 (1828). In
Canter, the Court rejected a challenge to the Superior Courts
of Florida based on the fact that their judges were appointed
for only four years. The Court concluded that Article III did
not apply in the territories because they were “legislative
Courts, created in virtue of the general right of sovereignty
which exists in the government, or in virtue of that clause
which enables Congress to make all needful rules and
regulations, respecting the territory belonging to the United
States.” 1 Pet. at 546. In Glidden, Justice Harlan explained
that Chief Justice Marshall’s opinion established “that in the
territories cases and controversies falling within the
enumeration of Article III may be heard and decided in courts
constituted without regard to the limitations of that article;
that is, having judges of limited tenure and entertaining

8

Justices Clark and Douglas agreed that the Court of Claims and the
Court of Customs and Patent Appeals were Article III courts. 370 U.S. at
586–87.

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business beyond the range of conventional cases and
controversies.” Glidden, 370 U.S. at 545.9
Justice Harlan noted that “Article III has been viewed as
inapplicable to courts created in unincorporated territories
outside the mainland” as well as “to the consular courts
established by concessions from foreign countries.” Id. at
547. While discussing these courts, Justice Harlan did
observe that when “the peculiar reasons justifying investiture
of judges with limited tenure have not been present, the
Canter holding has not been deemed controlling.” Id. at 548
(citing O’Donoghue, 289 U.S. at 536–39). However, this
observation was made in support of the determination that the
Court of Claims and Court of Custom and Patent Appeals
were Article III courts. In context, Justice Harlan’s
observation cannot be read as suggesting that the authority of
a non-Article III court established by Congress might
somehow erode with the passage of time or because of
changes in the local setting. Indeed, in Glidden, Justice

9

Justice Harlan further noted:
It would have been doctrinaire in the extreme to deny
the right of Congress to invest judges of its creation
with authority to dispose of the judicial business of the
territories. It would have been at least as dogmatic,
having recognized the right, to fasten on those judges a
guarantee of tenure that Congress could not put to use
and that the exigencies of the territories did not require.
Marshall chose neither course; conscious as ever of his
responsibility to see the Constitution work, he
recognized a greater flexibility in Congress to deal with
problems arising outside the normal context of a federal
system.

370 U.S. at 546–47.

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Harlan noted that it was not necessary to “explore the extent
to which Congress may commit the execution of even
‘inherently’ judicial business to tribunals other than Article
III courts.” Id. at 549. Thus, Glidden offers no support for
Tang’s suggestion that an Article IV court may somehow,
over the passage of time, lose its authority.
O’Donoghue, like Glidden, was concerned with defining
an Article III court, not with limiting the authority of an
Article IV court, and thus does not apply to the NMI District
Court. O’Donoghue addressed an effort by Congress to
reduce the salary of the judges of the Court of Appeals and
the Supreme Court of the District of Columbia. O’Donoghue,
289 U.S. at 525. The Court held that the judges had been
appointed under Article III of the Constitution and therefore
their remuneration could not be diminished. In doing so, the
Court took pains to distinguish the District of Columbia from
territories of the United States, noting that Congress’
authority over the District is set forth in a separate clause of
the Constitution (Article 1, section 8, clause 17), and that the
District “is as lasting as the states from which it was carved
or the union whose permanent capital it became.” Id. at 538.
Here, there is no contention that the judges of the NMI
District Court are Article III judges. Rather, Tang’s
contention is that because the judges of the NMI District
Court are not Article III judges—serving for good behavior
and without diminution of compensation—the NMI District
Court lacks jurisdiction to try her. However, as noted, the
Supreme Court rejected such an argument in Palmore,
411 U.S. at 401–02, which, having been decided some forty
years after O’Donoghue, implicitly limits the Court’s prior
opinion.

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Even if O’Donoghue or Glidden were read to suggest that
contingencies or the passage of time might somehow affect
the authority of an Article IV court, there has been no change
with regard to the NMI District Court. Indeed, O’Donoghue
seems to envision that the operative change is becoming a
state. 289 U.S. at 537. However, the CNMI’s relationship
with the United States continues to evolve and the CNMI
remains geographically remote. Despite the fact that the
United States has exercised control over the CNMI since
World War II, the Covenant to Establish a Commonwealth of
the Northern Mariana Islands in Political Union with the
United States of America was not approved until 1976. We
know of nothing subsequent that might have eroded the
authority of the NMI District Court.
D. Nothing in Commodity Futures Trading
Commission v. Schor, 478 U.S. 833 (1986),
undermines the authority of the NMI District
Court.
Our recognition of the NMI District Court as a nonArticle III court does not implicate the concerns expressed by
the Supreme Court in Commodity Futures Trading
Commission v. Schor, 478 U.S. 833 (1986). There, in holding
that Congress could constitutionally give the Commodity
Futures Trading Commission authority to adjudicate state law
counterclaims in reparation proceedings, the Court set forth
the broad standard that “the constitutionality of a given
congressional delegation of adjudicative functions to a nonArticle III body must be assessed by reference to the purposes
underlying the requirements of Article III” and this inquiry
“is guided by the principle that ‘practical attention to
substance rather than doctrinaire reliance on formal
categories should inform application of Article III.’” Id. at

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847–48 (quoting Thomas v. Union Carbide Agric. Prods. Co.,
473 U.S. 568, 587 (1985)).
Schor concerned legislation that gave an agency authority
over matters that would otherwise have been adjudicated in
state court or an Article III court. Here, however, we address
Congress’ creation of a United States judicial forum where
none had previously existed. As noted, Congress’ authority
to do so is clearly set forth in Article IV. Moreover, there is
no danger of encroachment on the judicial power by the
executive or legislative branch, see 478 U.S. at 853–54, as
decisions by the NMI District Court are reviewed by the
United States Court of Appeals for the Ninth Circuit, an
Article III court. Furthermore, we note that in Schor, the
Supreme Court rejected Schor’s “novel theory” that “Article
III should be read to absolutely preclude any adjudication of
state law claims by federal decisionmakers that do not enjoy
the Article III salary and tenure protections.” Id. at 858. In
sum, the creation of the NMI District Court as a non-Article
III court is “purposed” by Article IV of the Constitution and
Tang has not shown that any constitutional interest has been
improperly infringed by it exercising jurisdiction over her
criminal trial.
III
In Nguyen, 539 U.S. at 72–73, the Supreme Court stated
that the NMI District Court “is not an Article III court but an
Article IV territorial court.” In light of the Covenant to
Establish a Commonwealth of the Northern Mariana Islands
in Political Union with the United States, coupled with
Congress’ approval of the Covenant in Joint Resolution of
March 24, 1976, we agree. Reviewing the guidance provided
by the Supreme Court in Palmore and Glidden, we affirm

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what we previously stated in an unpublished memorandum:
the NMI District Court was properly established by Congress
under Article IV and is empowered to hear federal criminal
cases. See United States v. Wei Qin Sun, 399 F. App’x 319,
320 (9th Cir. 2010) (unpublished).
Accordingly, we reject Tang’s challenge to the authority
of the NMI District Court to try her for violations of United
States Code Title 18. In conjunction with our concurrently
filed memorandum disposition, Tang’s conviction is
AFFIRMED.