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By Steve Limtiaco

HAGATNA, Guam (Pacific Daily News, June 11) - It was improper
for a federal judge from the Commonwealth of the Northern Mariana Islands to sit
on a three-judge appeals panel that upheld a Guam drug conviction, U.S. Supreme
Court justices ruled Monday in Washington.

Justices decided 5-4 to send the case back to the 9th U.S.
Circuit Court of Appeals, to be heard by a properly formed panel.

The decision gives the two defendants one more chance to have
their drug convictions overturned.

Guam attorney Howard Trapp took the case to the nation's highest
court, arguing the appeals panel was improperly formed because territorial
judges have a different status than other federal judges. Territorial judges
serve 10-year terms while other federal judges serve for life.

Most Supreme Court justices agreed with that position, rejecting
the government's argument that the presence of two qualified judges on the panel
was enough to uphold the panel's decision.

"The decision affirming her conviction has been vacated and
sent back down for further proceedings," said Trapp, who represents
defendant Khanh "Lora" Phuong Nguyen.

"They're saying that a wholly new panel of 9th Circuit
judges, who haven't sat on this case, will hear the appeal. They could then go
and argue that appeal before these three judges and hopefully win it this time

There have been at least nine Guam-related cases that have been
argued in the Supreme Court dating back to the 1950s, according to Pacific Daily
News files.

In July 2000, Guam District Court Judge John Unpingco sentenced
co-defendants Tuyet Mai Thi Phan and her niece, Nguyen, to serve about 18 years
each in prison.

After a weeklong trial in March that year, a jury found Phan and
Nguyen guilty of criminal conspiracy to import, importation of and attempted
possession with intent to distribute 443 grams of crystal methamphetamine,
commonly known as ice.

A government dog detected the drugs in a package at the U.S.
Post Office in Tamuning in November 1999. The package was monitored and Phan
picked it up, Pacific Daily News files state. Police raided a Tamuning apartment
and arrested Phan and Nguyen, who were in possession of the drugs.

The appeal

Trapp has challenged the government's position that his client
was involved in a criminal conspiracy, saying there is nothing to prove who
mailed the package to Guam or that his client knew the person or what was in the

The case was appealed to the 9th Circuit, which upheld the
conviction in March 2002. The appeals panel included CNMI District Judge Alex R.
Munson, a limited-term territorial judge.

Attorney Jeffrey Green, who represented the defendants before
the Supreme Court in March, noted a split among justices, pointing out that
justices during oral arguments were interested in whether Munson's presence
would alter the nature of the appeals court.

That turned out to be the case, as justices narrowly overturned
the 9th Circuit action.

Justices Sandra Day O'Connor, John Paul Stevens, Anthony
Kennedy, David Souter and Clarence Thomas were in favor of overturning the 9th
Circuit decision.

Dissenting were Chief Justice William Rehnquist and justices
Ruth Bader Ginsburg, Antonin Scalia and Stephen Breyer.

In his dissenting opinion, Rehnquist acknowledged the appeals
panel was improperly formed but said there is no proof the mistake affected the
fairness or integrity of the proceedings.

Rehnquist also noted the defendants did not object to Munson
being on the panel until after the appeals court made its decision.

"Petitioners Nguyen and Phan learned before oral argument
that Chief Judge Munson was a member of their Court of Appeals panel. They
nonetheless failed to object at oral argument or in a petition for rehearing en
banc," Rehnquist wrote.

June 11, 2003

Pacific Daily News: www.guampdn.com 

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