United States v. Xiaoying Dowai , 839 F.3d 877 ( 2016 )


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  •                    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,               No. 14-10277
    Plaintiff-Appellee,
    D.C. No.
    v.                    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
    2                   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.
    UNITED STATES V. DOWAI                      3
    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.
    4                UNITED STATES V. DOWAI
    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.
    UNITED STATES V. DOWAI                          5
    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.
    6                 UNITED STATES V. DOWAI
    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
    UNITED STATES V. DOWAI                          7
    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 self-
    government,” 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.
    8                UNITED STATES V. DOWAI
    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.
    UNITED STATES V. DOWAI                                9
    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.
    10                    UNITED STATES V. DOWAI
    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
    UNITED STATES V. DOWAI                     11
    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
    .
    12                  UNITED STATES V. DOWAI
    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.
    UNITED STATES V. DOWAI                           13
    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.
    14                      UNITED STATES V. DOWAI
    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.
    UNITED STATES V. DOWAI                      15
    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.
    16               UNITED STATES V. DOWAI
    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 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
     (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
    UNITED STATES V. DOWAI                     17
    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
    18               UNITED STATES V. DOWAI
    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.