author: GRABER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Ray CAMEZ, aka Badman, aka Doctorsex, Defendant-Appellant.
    No. 14-10251
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 10, 2016, San Francisco, California
    Filed October 17, 2016

      Chris T. Rasmussen (argued), Rasmussen & Rang LLC, Las Vegas, Nevada, for Defendant-Appellant.
    William R. Reed (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Daniel G. Bogden, United States Attorney; United States Attorney’s Office, Reno, Nevada; for Plaintiff-Appellee.
    Before: SUSAN P. GRABER and M. MARGARET McKEOWN, Circuit Judges, and ROSANNA MALOUF PETERSON, District Judge.

       The Honorable Rosanna Malouf Peterson, United States District Judge for the Eastern District of Washington, sitting by designation.

   OPINION

GRABER, Circuit Judge:

Defendant David Ray Camez participated in a criminal enterprise, known as the “carder.su enterprise,” that operated an online trading post for stolen and counterfeit access devices and means of identification. The government indicted him under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) for continuing crimes that, according to the government, spanned Defendant’s eighteenth birthday. The district court instructed the jury that it could not convict Defendant solely for his pre-majority conduct. But the court permitted the jury, over Defendant’s objection, to consider Defendant’s pre-majority conduct as proof of the substantive crimes. Defendant argues that the Juvenile Delinquency Act (“JDA”) prohibits consideration of his pre-majority conduct as proof of the substantive crimes. Reviewing de novo the question of statutory interpretation, United States v. Watson, 792 F.3d 1174, 1177 (9th Cir. 2015), we hold that the district court’s instruction, which comport? ed with the law of most circuits that have addressed this issue, was not erroneous. Accordingly, we affirm the judgment.

The carder.su enterprise engaged in unlawful trafficking of means of identification, real and counterfeit; access devices; and associated equipment. The enterprise’s hierarchy included an administrator, moderators, reviewers, vendors, and members. Defendant was a “member” whose criminal activities in furtherance of the enterprise included production of, and trafficking in, counterfeit identification documents, possession of counterfeit and-unauthorized access devices, and conspiracy to possess device-making equipment.

The government indicted Defendant on two RICO counts: (1) a substantive RICO count of participation in a criminal enterprise, in violation of 18 U.S.C. § 1962(c); and (2) a RICO conspiracy count of conspiring to participate in a criminal enterprise, in violation of § 1962(d). Because the government alleged both pre-majority and post-majority conduct, the district court instructed the jury on the effect of Defendant’s age:

You may not convict Mr. Camez of RICO or RICO conspiracy based solely on his juvenile acts. You may convict him only if you find beyond a reasonable doubt that Mr. Camez continued to participate in the Carder.su organization or the RICO conspiracy after he turned 18 years of age.[]

With respect to his pre-majority conduct, Defendant challenges his conviction on the substantive RICO count only. A “violation of 18 U.S.C. § 1962(c) is established by proof of (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” United States v. Fernandez, 388 F.3d 1199, 1221 (9th Cir. 2004) (internal quotation marks omitted). “A pattern of racketeering activity, in turn, requires at least two predicate acts ....” Id.

The indictment alleged that Defendant committed three predicate acts: one when he was 17 years old, and two when he was 18 years old. In the special verdict form, the jury selected “proven” for the act committed when Defendant was 17; selected “proven” for one of the acts committed when Defendant was 18; but declined to select “proven” or “unproven” for the other act allegedly committed by Defendant when he was 18.

The JDA “creates a special procedural and substantive enclave for juveniles accused of criminal -acts.” United States v. Frasquillo-Zomosa, 626 F.2d 99, 101 (9th Cir. 1980). “The purpose of the Act, as amended in 1974, was to enhance the juvenile system by removing juveniles from the ordinary criminal justice .system and by providing a separate system of ‘treatment’ for them.” Id. “A successful prosecution under the Act results not in conviction of a crime but rather in adjudication of a status.” United States v. Araiza-Valdez, 713 F.2d 430, 432 (9th Cir. 1980) (per curiam) (internal quotation marks omitted). “The Act does not create a substantive offense with its own jurisdictional basis, but rather establishes a procedural mechanism for the treatment of juveniles who are already subject to federal jurisdiction because of the commission of acts cognizable under other federal criminal statutes.” Id. (internal quotation marks and brackets omitted).

Chapter 403 of Title 18, entitled “Juvenile Delinquency,” sets forth the procedures for adjudicating juveniles alleged to have committed acts of juvenile delinquency. “A juvenile who is alleged to have committed an act of juvenile delinquency and who is not surrendered to State authorities shall be proceeded against under this chapter unless [certain requirements are met].” 18 U.S.C. § 5032. Section 5031 defines the terms “juvenile” and “juvenile delinquency”:

For the purposes of this chapter, a “juvenile” is a person who has not attained his eighteenth birthday, or for the purpose of proceedings and disposition under this chapter for an alleged act of juvenile delinquency, a person who has not attained his twenty-first birthday, and “juvenile delinquency” is the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult or a violation by such a person of section 922(x).

In nearly all cases, the application of those definitions is straightforward. We must look first to the defendant’s age at the time of indictment. United States v. Doe, 631 F.2d 110, 113 (9th Cir. 1980). If the defendant is under 18, then the JDA applies. 18 U.S.C. § 5031. If the defendant is 21 or older, then the JDA does not apply. See Araiza-Valdez, 713 F.2d at 433 (holding that the JDA does not apply to a defendant indicted at age 24, even though the crimes were committed when the defendant was 17). If the defendant is 18,19, or 20 at the time of indictment, then we must ask whether the alleged crime occurred “prior to his eighteenth birthday.” 18 U.S.C. § 5031. For most crimes, the age of the defendant is not subject to dispute and the answer to that inquiry is simple. If the defendant was under 18 at the time of the crime, then the JDA applies; if not, then the JDA does not apply. But for continuing crimes alleged to have occurred both before and after the defendant turned 18, the statute provides no clear answer to the question whether the JDA applies. We face that situation here, because Defendant was 20 at the time of indictment and because the government alleged that he committed the crime when he was both 17 and 18.

In these circumstances, courts uniformly have held that adult prosecution is warranted. See, e.g., United States v. Wong, 40 F.3d 1347, 1365 (2d Cir. 1994) (“It is well established that federal courts have jurisdiction over conspiracies [and other continuing crimes] begun while a defendant was a minor but completed after his eighteenth birthday.”); United States v. Cruz, 805 F.2d 1464, 1475 (11th Cir. 1986) (“ ‘The [JDA] does not, of course, prevent an adult criminal defendant from being tried as an adult simply because he first became embroiled in the conspiracy with which he is charged while still a minor.’ ” (ellipsis omitted) (quoting United States v. Spoone, 741 F.2d 680, 687 (4th Cir. 1984))); accord United States v. Strothers, 77 F.3d 1389, 1392 (D.C. Cir. 1996); United States v. Doerr, 886 F.2d 944, 969 (7th Cir. 1989). Indeed, Defendant here does not challenge the fact that he was adjudicated as an adult. Instead, he argues only that the JDA implicitly forbids a jury from considering any of his pre-majority conduct as substantive proof of the crime.

The District of Columbia Circuit has adopted the view advanced by Defendant. In United States v. Thomas, 114 F.3d 228, 265-67 (D.C. Cir. 1997), the court held that the jury may consider only the post-majority acts as proof of guilt; pre-majority acts may be admitted, if at all, only under Federal Rule of Evidence 404(b) to help the jury understand post-majority acts. “[I]t is the adult participation that gives the district court jurisdiction over the eighteen to twenty-one year old defendant Id. at 266. Accordingly, a conviction that rests “in whole or in part on acts committed as a juvenile” -is'-invalid. Id.

Following the lead of most circuit courts to have considered the issue, we disagree with the D.C. Circuit’s analysis and conclusion for at least two reasons. First, as the Tenth Circuit held:

The problem with Thomas ,.. is evident: Any decision denying the admissibility of evidence of an adult defendant’s pre-eighteen conduct to prove his guilt for continuing crimes incorrectly suggests that the JDA changes the substantive standard of criminal liability for a racketeering enterprise or conspiracy spanning a defendant’s eighteenth birthday. We do not read the JDA so broadly-

United States v. Delatorre, 157 F.3d 1205, 1210 (10th Cir. 1998). Similarly, our own caselaw strongly suggests that the JDA does not impose substantive requirements on an adult prosecution. In Frasquillo-Zomosa, 626 F.2d at 101, we rejected the defendant’s argument that the government must prove the defendant’s age: “[N]oth-ing in the legislative history of the [JDA], its purpose or structural scheme suggests that Congress intended to add an additional substantive element to the government’s burden of proof.” Compare also Araiza-Valdez, 713 F.2d at 432 (our holding that the JDA “does not create a substantive offense with its own jurisdictional basis, but rather establishes a procedural mechanism for the treatment' of juveniles who are already subject to federal jurisdiction because of the commission of acts cognizable under other federal criminal statutes” (internal quotation marks omitted)), with Thomas, 114 F.3d at 266 (the D.C. Circuit’s holding that “it is the adult participation that gives the district court jurisdiction”).

Second, we agree with the Eleventh Circuit’s analysis:

Common sense suggests that Congress did not intend to bifurcate the prosecution of any continuing offense which began prior to the defendant’s reaching the age of eighteen and continued thereafter. The rule proposed by [the defendant] would have just this effect. In the instant case, for example, the government would have been required to prosecute [one of the defendants] as an adult for those activities in which he engaged after his eighteenth birthday, and, in a separate proceeding before the juvenile courts, prosecute [him] for those acts which he did before his eighteenth birthday. Neither the efficiency of judicial administration nor the congressional purpose of extending constitutional protections to juveniles would . be served by such a result.

Cruz, 805 F.2d at 1477.

This case, too, illustrates why Congress could not have intended the result for which Defendant advocates. The jury found that Defendant committed two acts of racketeering, proof that ordinarily suffices for a conviction. Defendant committed one act when 17 and another act when 18. Under Defendant’s and the D.C. Circuit’s approach, he would not be guilty as either a juvenile or an adult. He committed only one act as a juvenile and therefore never established a pattern for purposes of a juvenile delinquency proceeding; and he committed only one act as an adult and therefore never established a pattern for purposes of an adult prosecution. Nothing in the JDA or in any other statute'suggests that Congress intended to create a loophole resulting in no rehabilitation or punishment whatsoever for persons who indisputably committed a serious continuing crime, merely because the crime happened to span the defendant’s eighteenth birthday.

Had Congress intended to allow all persons effectively to start with a clean slate on the occurrence of their eighteenth birthday, then the D.C. Circuit’s conclusion might have more support. But we have rejected that reading of the JDA by holding that a person who is indicted after turning 21 must be charged as an adult, even for crimes committed when he was 17. Araiza-Valdez, 713 F.2d at 433. That is, criminal acts committed before turning 18 are not, for that reason alone, necessarily immune from adult prosecution. In sum, we adopt the prevailing view that, for prosecution of a defendant indicted at age 18, 19, or 20, pre-majority acts may be admitted as substantive proof of a continuing crime such as the substantive RICO count here.

Our sister circuits have explained why pre-majority conduct is admissible by analogy to the “contract ‘ratification’ doctrine.” Wong, 40 F.3d at 1366; accord United States v. Welch, 16 F.3d 1202, 1211-12 (1st Cir. 1993); United States v. Maddox, 944 F.2d 1223, 1233 (6th Cir. 1993). “[J]ust as a minor legally incapable of entering a contract may nonetheless be found to have ‘ratified’ a contract by taking actions after attaining majority consistent with an intent to be bound by it, so a defendant may ratify his pre-eighteen participation in a conspiracy [or other continuing crime] by continued participation after attaining majority.” Wong, 40 F.3d at 1366 (citations omitted); see also id. at 1367 (analogizing to the fact that otherwise time-barred acts may be used in a prosecution so long as the defendant has not withdrawn from the conspiracy, during the limitations period).

The sister circuits that, have rejected the D.C. Circuit’s restrictive interpretation of the JDA have offered differing descriptions of what, if any, limitations the JDA imposes on an adult prosecution of a majority-spanning continuing crime. The First Circuit has held that the jury must be instructed that it may convict the defendant only if it finds that the defendant participated in the continuing crime after turning 18. Welch, 16 F.3d at 1211-12; accord Delatorre, 157 F.3d at 1209. This is the most restrictive of the various approaches. The Eleventh Circuit has held that no special jury instruction is required but that the government must introduce sufficient evidence that the defendant continued to participate in the continuing crime after turning 18. Cruz, 806 F.2d at 1476-77 & n.15; accord Doerr, 886 F.2d at 969-70.

The Second Circuit appears to have held that it is enough for a court to “look to the defendant’s age at the time of the offense or offenses charged in the indictment”; no evidentiary inquiry is required by the court or the jury. Wong, 40 F.3d at 1365. That approach finds support in the text of the JDA, which focuses on the government’s allegations and nowhere suggests that Congress intended to impose a post-indictment evidentiary burden. See 18 U.S.C. § 5031 (defining a “juvenile”, “for the purpose of proceedings and disposition under this chapter for an alleged act of juvenile delinquency” (emphasis added)); id. § 5032 (“A juvenile alleged to have committed an act of juvenile delinquency [shall be transferred to state court unless certain conditions are met].” (emphasis added)); id. (“[N]o criminal prosecution shall be instituted for the alleged act of juvenile delinquency except as provided below.” (emphasis added)); id, (“A juvenile who is alleged to have committed an act of juvenile delinquency [shall be prosecuted under the JDA unless certain conditions are met].” (emphasis added)). Our own caselaw, too, is consistent with the Second Circuit’s approach. See Frasquillo-Zomosa, 626 F.2d at 101 (“[Njothing in the legislative history of the [JDA], its purpose or structural scheme suggests that Congress intended to add an additional substantive element to the government’s- burden of proof.”); see also Doe, 631 F.2d at 113 (holding that “it is important” that the juvenile/adult determination “be established at the beginning of a proceeding and that once fixed it endure throughout”).

We need not—and do not—determine which of those approaches is correct. The district court here instructed the jury that it could convict Defendant only if it found that Defendant continued his participation after turning 18, and the jury’s special verdict form makes clear that the jury found that Defendant, in fact, continued his participation after turning 18. Under any of the three approaches used by our sister circuits, Defendant’s conviction must stand.

AFFIRMED.

      . In an unpublished-disposition filed concurrently with this opinion, we reject Defendant’s other challenges to his convictions and sentence.

      . We reject, as foreclosed by the plain wording of the instruction, Defendant's argument that the instruction is confusing or that it allowed the jury to convict Defendant solely for pre-majority acts'.


source: Caselaw Access Project

author: CALLAHAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. XIAOYING TANG DOWAI, Defendant-Appellant.
    No. 14-10277
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 16, 2016, Honolulu, Hawaii
    Filed October 17, 2016
    See also 2016 WL 6071024.

      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.
   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.

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 á 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’ 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. 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, 120 S.Ct. 1740, 146 L.Ed.2d 658 (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. Indeed, the Supreme Court in Nguyen v. United States, 539 U.S. 69, 72-73, 123 S.Ct. 2130, 156 L.Ed.2d 64 (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 Distinct 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, 40 S.Ct. 382, 64 L.Ed. 641 (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 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.” The United States, in return, while recognizing that the people of the CNMI “have the right of local self-government,” agreed to “have complete responsibility for and 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 eases 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.

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. 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, 120 S.Ct. 1740. However, Tang’s challenge to the NMI District Court’s authority fails completely in light of Supreme Court precedent that has rejected chal-lénges similar to hers.

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

In Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (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. Ill of the Constitution.” Id. at 390, 93 S.Ct. 1670. Writing for the Court, Justice White described Pal-more’s position as being “that an Art. Ill 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, 93 5.Ct. 1670. “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. Ill 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.” Id. at 401, 93 S.Ct. 1670. The Court further commented “[n]or, more particularly has the enforcement of federal criminal law been deemed the exclusive province of federal Art. Ill courts.” Id. at 402, 93 S.Ct. 1670. 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. Ill, 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, 93 S.Ct. 1670. The Court noted that “[tjerritorial 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, 93 S.Ct. 1670 (footnotes omitted).

In the final section of its opinion, the Supreme Court reiterated that neither it nor Congress had read the Constitution to require “every criminal prosecution ... to be tried in an Art. Ill court before a judge enjoying lifetime tenure and protection against salary reduction.” Id. at 407, 93 S.Ct. 1670. Rather, the requirements of Art. Ill “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, 93 S.Ct. 1670.

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, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), and possibly O’Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933). However, this argument fails for three reasons. First, Justice Harlan’s opinion was not an opinion joined by a majority of the justices. Second, Glidden precedes and thus is superseded by Palmore, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342, which, as noted, expressly affirms Congress’ authority to create and maintain Article IV courts. Third, and dis-positive, the Court in Glidden was concerned with defining an Article III court, not with limiting the authority of an Article IV court.

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, 82 S.Ct. 1459. 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, 82 S.Ct. 1459. In reaching this conclusion, Justice Harlan noted that Congress had declared that the courts were Article III courts. Id. at 54ÍM3, 82 S.Ct. 1459.

In the course of his opinion, Justice Harlan endorsed Chief Justice Marshall’s opinion in American Insurance Company v. Canter, 26 U.S. 511, 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 business beyond the range of conventional cases and controversies.” Glidden, 370 U.S. at 545, 82 S.Ct. 1459.

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, 82 S.Ct. 1459. 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, 82 S.Ct. 1459 (citing O’Donoghue, 289 U.S. at 536-39, 53 S.Ct. 740). 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 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, 82 S.Ct. 1459. 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, 53 S.Ct. 740. 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, 53 S.Ct. 740. 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, 93 S.Ct. 1670, which, having been decided some forty years after O’Dono-ghue, implicitly limits the Court’s prior opinion.

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, 53 S.Ct. 740. 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 non-Article III court does not implicate the concerns expressed by the Supreme Court in Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (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 • non-Article 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 847-48, 106 S.Ct. 3245 (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 587, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)).

Sehor 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 pone 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 853-54,106 S.Ct. 3245, 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 Sehor, 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, 106 S.Ct. 3245. In sum, the creation of the NMI District Court as a non-Article III court is “purposed” by Article TV 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, 123 S.Ct. 2130, 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 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 Fed.Appx. 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.

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

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

      . 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 fundamen- , tal 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,

      . 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 1368, 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.”

      . 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 süpport its authority to convict Tang as an Article I court.

      . 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 jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.” Cary v. Curtis, 44 U.S. 236, 3 How. 236, 245, 11 L.Ed. 576 (1845). 411 U.S. at 401, 93 S.Ct. 1670.

      . 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.

      . 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, 82 S.Ct. 1459.

      . 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, 82 S.Ct. 1459.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alan David NIXON, Defendant-Appellant.
    No. 16-50097
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 7, 2016—Pasadena, California
    Filed October 17, 2016

      Marri Derby (argued), Newport Beach, California, for Defendant-Appellant.
    Kevin M. Lally (argued), Chief, Organized Crime Drug Enforcement Task Force Section; Lawrence S. Middleton, Chief, Criminal Division; Eileen M. Decker, United States Attorney; United States Attorney’s Office, Los Angeles, California; for Plaintiff-Appellee.
    Before: STEPHEN S. TROTT, JOHN B. OWENS, and MICHELLE T. FRIEDLAND, Circuit Judges.
   OPINION

PER CURIAM:

We must decide whether a congressional appropriations rider that prohibits the Department of Justice from using certain funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws impacts the ability of a federal district court to restrict the use of medical marijuana as a condition of probation. We hold that it does not.

I.

Defendant-Appellant Alan David Nixon pled guilty to aiding and abetting the maintenance of a drug-involved premise in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2(a). The district court sentenced Nixon to a three-year term of probation. As a condition of probation, the district court required that Nixon refrain from unlawful use of a controlled substance and submit to periodic drug testing.

After Nixon had served approximately one year of his probationary term, Congress enacted an omnibus appropriations bill that included the following rider:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235 § 538, 128 Stat. 2130, 2217 (2014). Congress has since enacted a new appropriations bill for the fiscal year ending September 30, 2016, which includes essentially the same rider. Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015) (“Section 542” or the “appropriations rider”).

As relevant to this appeal, Nixon moved the district court to modify his conditions of probation on the ground that the appropriations rider required that he be permitted to use marijuana for medical purposes in compliance with California’s Compassionate Use Act, Cal. Health & Safety Code § 11362.5, during his probationary term. The district court denied that motion, concluding that whatever its impact on the Department of Justice (“DOJ”), the appropriations rider had “no effect on the Court or the Probation Office, which is an arm of the Court.” To the contrary, the district court reasoned that it was statutorily required to prohibit use of federally controlled substances, including marijuana, as a condition of probation:

[P]ossession and use of marijuana are illegal under federal law. 21 U.S.C. § 844(a). There is no medical necessity defense to violation of the statute. United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 494-95 n.7 [121 S.Ct. 1711, 149 L.Ed.2d 722] (2001). By statute, the Court must impose as a condition of probation that a defendant not violate any law. 18 U.S.C. § 3563(a)(1).

Nixon timely appealed.

II.

Nixon argues that the appropriations rider suspended the Controlled Substances Act, 21 U.S.C. § 821 et seq. (“CSA”), with respect to individuals possessing and using marijuana in compliance with the Compassionate Use Act (and similar laws in the states identified in the appropriations rider). Accordingly, Nixon contends that both the DOJ and the federal courts are prohibited from enforcing the CSA against him.

We review a district court’s decision regarding modification of probation conditions for abuse of discretion. See United States v. Bainbridge, 746 F.3d 943, 946, 951 (9th Cir. 2014). We now affirm.

Nixon’s reading is not supported by the plain language of the appropriations rider and is foreclosed by our precedent. On its face, the appropriations rider restricts only the DOJ’s ability to use certain funds on particular prosecutions during a specific fiscal year. See United States v. McIntosh, 833 F.3d 1163, 1179, 2016 WL 4363168, at *11 (9th Cir. Aug. 16, 2016) (observing that the restriction on DOJ’s use of the appropriated funds is “temporal” in nature). Accordingly, we have warned that individuals still face the possibility of prosecution under the CSA:

To be clear, § 542 does not provide immunity from prosecution for federal marijuana offenses. The CSA prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282. Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. ... Nor does any state law “legalize” possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const, art. VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law.

Id. at 1179 n.5, 2016 WL 4363168, at *11 n.5.

As this discussion in McIntosh makes clear, the CSA continues to apply in all 50 states, although the DOJ’s ability to use certain funds to pursue individual prosecutions under that statute remains circumscribed to the extent we explained in McIntosh as long as the appropriations rider is in effect. Accordingly, the district court did not abuse its discretion by refusing to modify the conditions of Nixon’s probation to allow him to possess and use marijuana for medical purposes in violation of federal law.

III.

For the foregoing reasons, we AFFIRM the district court’s denial of Nixon’s motion for modification of his conditions of probation.

      . We address Nixon’s other challenges to the district court's denial of his modification motion in a concurrently filed memorandum disposition.

      . Nixon does not contend that the appropriations rider prohibited the DOJ from opposing the motion for modification of his probation conditions or otherwise participating in post-sentencing proceedings. We therefore need not decide whether the appropriations rider affects the DOJ's ability to participate in post-sentencing proceedings. Indeed, Nixon waived any such claim in the district court by successfully arguing that the district court could not hold a probation revocation hearing without participation by the DOJ. Because the DOJ ultimately participated in his probation revocation hearing, there is no basis for Nixon’s claim that the district court violated the separation of powers doctrine by “proceeding in a probation violation hearing without the presence of the DOJ."