Pugh was prosecuted in the District Court of Guam and there found guilty of stealing property of the United States in violation of § 641, Title 18, U.S.C.A. His attempted appeal to this court from the judgment of conviction was dismissed as not having been taken in time, 197 F.2d 509. He then moved in the court below D.C., 106 F.Supp. 209, under § 2255 of Title 28 for an order vacating the sentence as void, for the reason that he was prosecuted upon an information only, with no indictment by a grand jury, and none waived, and also because he was denied trial by jury.
The information was filed, and the-case was tried, in conformity with a general order or rule of the District Court of Guam, made July 17, 1951, as-follows: “It is herewith ordered that in prosecutions before the District Court, of Guam, wherein the accused is charged with an offense against the United States, the United States may proceed by information, rather than by indictment. It is further ordered that trials, criminal and civil, shall be conducted before the court without a jury.”
Clearly enough, the contention that Pugh should have been prosecuted by indictment of a grand jury, or tried by petit jury, raises no constitutional question, for § 3 of the Organic Act of Guam, Title 48, U.S.C.A., § 1421a, recites that “Guam is declared to be an unincorporated territory of the United States”. Thus Congress took cognizance of the doctrine of territorial incorporation as first expounded by Mr. Justice White in Downes v. Bidwell, 182 U.S. 244, 287, 21 S.Ct. 770, 45 L.Ed. 1088, and thereafter developed in a series of decisions by the Supreme Court in eases having to do with the question as to the extent to which the Constitution followed the flag.1 As Guam has not been incorporated into the United States, neither § 2 of Article III, relating to trial by jury, nor the Fifth, Sixth nor Sev*763enth Amendments, relating to grand or petit juries, have any application to the Island of Guam or to the courts therein in the absence of some act of Congress extending their application there.2
Section 5 of the Organic Act, 48 U.S.C.A. § 1421b, contains a “bill of rights” for Guam. It contains no provision for indictment or trial by jury. However, § 22 of that Act, Title 48, § 1424, which creates the District Court of Guam, and defines its jurisdiction, provides in subdivision (b) thereof:
§ 1424(b). “The rules heretofore or hereafter promulgated and made effective by the Supreme Court of the United States pursuant to * * sections 3771 and 3772 of Title 18, in criminal cases * * * shall apply to the District Court of Guam and to appeals therefrom.” Aug. 1, 1950, c. 512, § 22, 64 Stat. 389.
Rule 7(a) of the Rules of Criminal Procedure, 18 U.S.C.A., thus made applicable, provides:
“An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. * * #«
The offense here involved was one so punishable. There was no waiver of indictment here. Therefore through the Act’s provision that Rule 7 (a) “shall apply to the District Court of Guam”, there exists a statutory requirement of indictment by grand jury. In United States v. Seagraves, D.C., 100 F.Supp. 424, the judge of the District Court of Guam stated at length his reasons for holding an indictment not required, and disclosing reasons why, in his view, the use of grand and petit juries in Guam was not practical. The most serious obstacle there stated was the failure of Congress, at least expressly, to make Chapter 121 of Title 28, relating to the qualifications and manner of selecting jurors, applicable to the District Court of Guam. If, as we assume, Chapter 121 does not apply there, then provision for jurors must be made by the territorial legislature as it is in Alaska.3 See Alaska Compiled Laws Ann.1949, §§ 55-7-1 to 55-7-56 and § 66-8-1. Cf. Hauptman v. United States, 9 Cir., 43 F.2d 86. What the judge there said might well be brought to the attention of Congress, but in our view the language of Rule 7(a), so incorporated in the Organic Act, is so explicit and unqualified that no considerations of expediency can warrant our disregarding it.
The question remains whether the lack of an indictment, while an error which would require a reversal upon appeal, is also a matter which can be raised in a § 2255 proceeding. It has been suggested that the language used in the Organic Act in setting up the court below is such that it imports a requirement that in respect to its trial of causes arising under the laws of the United States, the district court of Guam shall proceed under the same restrictions as are imposed by Constitutional limitations upon a district court of the United States. Such a court in the United States proper is subject to the constitutional mandate with respect to requiring indictment by a grand jury and affording a trial by jury in criminal cases. § 22(a), creating the district court of Guam, is set *764forth in the margin.4 The suggestion just mentioned is predicated upon the words: “The District Court of Guam shall have, in all causes arising under the laws of the United States, the jurisdiction of a district court of the United States as such court is defined in section 451 of Title 28”. Under familiar rules, a district court of the United States may lose jurisdiction if and when it denies an accused person rights which he has under the Constitution. Johnson v. Zerbst, 804 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. But we think the use of the word “jurisdiction” in the language just quoted has no such connotation here. Plainly this refers to the jurisdiction of the subject matter. It states what cases the court may try. Since Congress carefully saw to it that Guam be not incorporated in the United States, and hence that the constitutional provisions relating to grand and petit juries did not extend there, there is no occasion for a holding that since indictment by grand jury and trial by petit jury were lacking here, the court was without jurisdiction for the same reason that a district court in continental United States would lack jurisdiction in such cases.
The reference to the court having “the jurisdiction of a district court of the United States” does not stamp the failure to procure an indictment as a defect stemming from something akin to a constitutional requirement. The requirement of a grand jury is simply a statutory provision, brought about by § 22(b) incorporating by reference criminal rule 7(a). Yet we think the defect in this respect, that is, in regard to the lack of indictment, is a matter which can be raised in a § 2255 proceeding.5 For this reason the judgment must be reversed. And since the failure to make use of a grand jury requires this result, we have no occasion to consider the other quite different questions that have been argued here with respect to failure to afford a jury trial.
The judgment is reversed and the cause is remanded with directions to vacate the sentence and to dismiss the information.
. Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016; Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128, (Philippine Islands); Rassmussen v. United States, 197 U.S. 516, 25 S.Ct. 514, 49 L.Ed. 862, (Alaska); Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753, (Philippine Islands); Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231, (Philippine Islands); and Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627. The Mankichi, Dorr, Rassmussen, Ocampo and Balzac cases had to do with the question of the necessity of an indictment or trial by jury. The Rassmussen case held Alaska had been “incorporated into the United States”. [197 U.S. 516, 25 S.Ct. 520.]
. Contrast Title 48, § 495, and Title 48, § 23, relating to Hawaii and Alaska, with the absence of any such enactment with respect to Guam.
. The commission appointed to report as to the application of statutes of the United States to Guam (Organic Act, § 25, Ch. 512, Laws of the 81st Cong. 2nd Sess., 48 U.S.C.A. § 1421c) expressed the view that Chapter 121, with the remainder of Part V of Title 28, was designed for “courts of the United States”, and hence “the courts of Alaska, the Virgin Islands, and Guam were intentionally excluded.” (Resource Material Used in the Report of the Commission on Application of Federal Laws to Guam, Gov’t. Printing Office, 1952.)
. Title 48, § 1424(a): “There is created a court of record to be designated the ‘District Court of Guam’, and the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam. The District Court of Guam shall have, in all causes arising under the laws of the United States, the jurisdiction of a district court of the United States as such court is defined in section 451 of Title 28, and shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine. The jurisdiction of and the procedure in the courts of Guam other than the District Court of Guam shall be prescribed by the laws of Guam.”
. It would appear to be as open to collateral attack as is a conviction based on an indictment which states an offense not punishable by the United States or defined in any federal statute. See Toois-gah v. United States, 10 Cir., 186 F.2d 93; semble, Barnes v. Hunter, 10 Cir., 188 F.2d 86, 89.