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United States v. Dowai

United States Court of Appeals, Ninth Circuit

October 17, 2016

United States of America, Plaintiff-Appellee,
v.
Xiaoying Tang Dowai, Defendant-Appellant.

          Argued and Submitted June 15, 2016 Honolulu, Hawaii

         Appeal from the United States District Court for the District of the Northern Mariana Islands Ramona V. Manglona, Chief Judge, Presiding D.C. No. 1:13-cr-00014-RVM-1

          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.

          Before: Sidney R. Thomas, Chief Judge, and Consuelo M. Callahan and Mary H. Murguia, Circuit Judges.

         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.

          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 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.

         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' ...


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