Epa vaapuu, Appellant, V. American samoa government, Appellee


§ 1.0409. Best Hereditary Right: [1]



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§ 1.0409.
Best Hereditary Right:
[1] The candidates were at odds on family history and were thus unable to agree on the identity and lineage of former titleholders. The court thus relied upon the traditional rule for determining hereditary right. As the son of the previous title-holder, Fagaoali`i has ½ Tagoilelagi blood and a significant advantage over Ulimasao who has, at best, a claim to 1/32 Tagoilelagi blood.
The Wish of the Clans:
While Ulimasao claims to have the support of three of the four traditional clans, Fagaoali`i claims that the family has only one traditional clan. The trial court held that even if there was only one clan in the family, “this clan as a whole still supports Ulimasao’s candidacy.” The trial court thus declined to determine the number of clans in the family.


Forcefulness, Character, Personality, and Knowledge of Samoan Customs:
The trial court held that the candidates were equally matched on this criterion. Fagaoali`i has a PhD and is the Director of Education for the public school system of American Samoa. Uliinasao served as a technician in the U.S. Army for 10 years, the American Samoa Government for 2 years, and the FAA for the last 19 years. Fagaoali`i has been a matai in the Tagoilelagi family for 22 years; Ulimasao for 21 years. Ulimasao is currently high talking chief of the family. Both have been active in their respective churches.
Value to Family, Village, and Country:
The trial court held that Ulimasao has “distinct eminence” in this criterion because of his clear commitment to the Village of Vatia. Even though Ulimasao has spent 22 years outside of Samoa working in the United States, whenever he has been in Samoa he has lived in Vatia engaged in the affairs of the Tagoilelagi family. Fagaoali`i has spent most of his life in the Village of Aua. Weighing the four criteria, the trial court decided that Ulimasao’s strengths under the second and fourth prongs outweighed Fagaoali`i’s advantage on the first prong.
Discussion
A. No Clear Error with Trial Court’s Finding That Ulimasao Lived in Samoa For One Year Prior to Filing His Objection.
[2] Fagaoali`i’s first issue on appeal is whether the trial court clearly erred in finding that Ulimasao did not live in Samoa for one year prior to filing his objection. A.S.C.A. § 1.0404(a) requires claimants to a matai title to have “resided in American Samoa for one calendar year immediately preceding the date of the claim or objection.” Fagaoali`i claims that Ulimasao did not meet this requirement. The trial court found that Ulimasao moved back to Samoa in June 1993, more than one year before he filed his objection to Fagaoali`i’s claim in September 1994. In re Matai Title “Tagoilelagi”, 2 ASR3d 230, 232 (Land & Titles Div. 1998). The tria1 court’s findings of fact can be set aside only if clearly erroneous. A.S.C.A. § 43.801(1).
The only argument advanced by Fagaoali`i is Ulimasao’s admission to being stationed in Long Beach, California from November 1994 to May 1996.13 See Fagaoali`i Br. at 6-7, 9-10. This admission by itself does not preclude Ulimasao from meeting the requirement of bona fide residency. Furthermore, the parties have not cited any law making a claimant’s place of residence after filing a claim or objection relevant to A.S.C.A. § 1.0404(a). The trial court’s finding that Ulimasao met the residential requirement is not clearly erroneous.
B. The Trial Court Erred in Concluding Ulimasao Enjoyed the Support of the Majority or Plurality of the Family’s Clans.
The trial court’s determination that Ulimasao prevailed on the “wish of the majority or plurality of the family’s customary clans,” A.S.C.A. § 1.0409(c)(2), was essential to its decision to award the matai title to Ulimasao. The trial court’s determination on this point, however, is contrary to established Samoan law.
Fagaoali`i claims that there is only one family clan remaining, while Ulimasao claims that there are four customary clans extant. The parties do not dispute the trial court’s finding that though the majority of family members support Ulimasao, the family was unable to reach a consensus. In fact, the family eventually decided to award the matai title jointly to Ulimasao and Fagaoali`i to preserve peace. See Tagoilelagi, 2 A.S.R.3d at 234. From these facts, the trial court concluded that Ulimasao prevailed on this criterion regardless of whether the family has one or four clans. Two problems exist with the trial court’s determination.
1. The Court Erred By Not Making Specific Findings Regarding the Composition of the Family’s Customary Clans.
[3] A.S.C.A. § 1.0409(d) requires the trial court’s written decision to “contain findings of fact and conclusions of law on each” of the four statutory criteria. In In re Matai Title “Faumuina”, 26 A.S.R.2d 1 (App. Div. 1994), the Court reversed a trial court matai award because the court did not provide specific findings on the “number, identity and preference of the clans” in the family. Id. at 4. The Court cited In re Matai Title “Gaoteote”, AP. No. 103-75, slip op. (App. Div. 1975), for the proposition that “failure to enter a finding on what the clans of a family are and who they support” is an error of law. Id. at 3. “It makes no difference that this determination [the composition of the family’s clans] is difficult.” Id. at 4. The trial court’s failure to make such a determination necessitates reversal and remand for the necessary findings.
2. If the Family Consists of Only One Clan, Then Ulimasao May Not Prevail
If there is only one clan in the family, as urged by Fagaoali`i, and that clan has not reached a consensus, then the court should have ignored this criteria and awarded the title to Fagaoali`i. Fagaoali`i did not raise this issue in his brief, but one associate judge did dissent on this basis. See Tagoilelagi at 237 (Atiulagi, J. dissenting).
[4-5] The plain language of the statute focuses on the clans, not the individual members of the family: “the wish of the majority or plurality of those clans of the family as customary in that family.” A.S.C.A. § l.0409(c)(2). Case law makes clear that individual preferences are only relevant to determining if a particular clan clearly supports a particular candidate. See In re Matai Title “Atiumaletavai”, 22 A.S.R. 2d 94, 98 (Land & Title Div. 1992). To determine clan support, the court does not look to numerical majorities but traditional rules of consensus. See In re Matai Title “Leaeno”, 24 A.S.R.2d 117, 120-21 (Land & Title Div. 1993). Even if there is only one clan in the family, the court still will not consider majority opinion. If there is no consensus around one candidate, the court will instead disregard this criteria altogether. See Reid v. Talalele, 4 A.S.R. 458, 462-63 (Trial Div. 1964)
Under the above line of case law, the trial court committed an error of law when it concluded that Ulimasao would prevail even if the family has only one clan. The family as evidenced by the kava ceremony failed to reach a consensus around Ulimasao’s candidacy. Although the trial court did state that the family “as a whole” supported Ulimasao, it is unclear whether the trial court was referring to traditional rules of consensus or Western norms of majority rule. This issue, therefore, must be remanded for a determination by the trial court.
C. The Trial Court Did Not Err On the Character and Value Prongs.
Fagaoali`i argues that the trial court did not adequately penalize Ulimasao on the character and value prongs for the 22 years he spent working outside of Samoa. Fagaoali`i Br. at 8-9, 11-12.
As for the criteria of “forcefulness, character and personality . . . and . . . knowledge of Samoan customs,” § 1.0409(c)(3). Ulimasao’s absence from Samoa seems only relevant to his knowledge of Samoan customs. The trial court concluded, however, that Ulimasao is “well-versed in Samoan customs” based on its in-court observations, his 21 years of service as a matai, and his current position as high talking chief of the family. See Tagoilelagi, 2 A.S.R.3d at 236. The court’s determination that the candidates are equally fit to assume the matai title is supported by substantial evidence.
Fagaoali`i also asserts that Ulimasao’s absence resulted in his being of less “value . . . to family, village, and country,” A.S.C.A. § 1.0409(c)(4). In concluding that Ulimasao prevailed on this prong, the trial court relied heavily on the fact that whenever Ulimasao has been in Samoa he has lived in the village of Vatia and participated actively in family affairs. See Tagoilelagi, 2 A.S.R.3d at 236. Fagaoali`i, by contrast, has spent most of his adult life away from the family, in Aua. The court’s conclusion that Ulimasao would be of greater value to this family and village than Fagaoali`i is supported by substantial evidence.
D. Failure to Recuse Associate Judge.
Finally, Fagaoali`i argues that one of the associate judges should have recused himself because the judge’s wife is Ulimasao’s wife’s first cousin and that as a result, the judge and Ulimasao participate in the same family affairs.14 Ulimasao claims that Fagaoali`i’s counsel is also closely related to the same judge. See Ulimasao Br. at 11. The trial court found that recusal was not required. Without details of the nature of the social relationship between the judge and Ulimasao, which Fagaoali`i failed to provide, the first cousin relationship of the wives alone would not mandate recusal. The trial court noted that the associate judge in question did fail to volunteer the details of his relationship to Ulimasao as required by the CODE OF JUDICIAL CONDUCT FOR AMERICAN SAMOA, Canon 3(A)(6)(b). See Tagoilelagi, 2 A.S.R.3d at 233 n.2.
[7-9] Under the Canons of Judicial Ethics, “a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.” CODE OF JUDICIAL CONDUCT FOR AMERICAN SAMOA, Canon 3 (A)(6). The test is “whether a disinterested observer would entertain significant doubt that justice would be done.” In re Matai Title “Faumuina”, 26 A.S.R.2d 1, 5 (App. Div. 1994) citing Pepsico v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985). Because it appears that the trial court applied the correct legal standard,15 we would in the normal course review the trial court’s conclusion for clear error. See In re Matai Title “Faumuina”, 26 A.S.R.2d at 6. However, in that the Court has found that remand is required on the clans issue, we decline to reach the merits of the recusal issue but mandate recusal on remand in an “abundance of caution.”
It is so ordered.
**********





AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
FA`ATOIAALEMANU VAGAVAO, Defendant.
High Court of American Samoa

Trial Division


CR No. 78-98
February 4, 1999

[1] The provisions of the Revised Constitution of American Samoa as relates to searches and seizures by the government are exactly the same as the rights guaranteed by the Fourth Amendment to the U.S. Constitution; and the Supreme Court of the United States has made it clear that a “border search” may be subject to a significantly less demanding standard than required for searches within the interior.


[2] The law regarding a border pat down search is unsettled, but at most it requires only the articulation of some facts which would lead a reasonable and objective customs officer to believe a search is necessary.
[3] Observations made by a trained customs officer which, in sum, indicate that a pat down search was not conducted arbitrarily, include that the defendant deviated from his typical travel patterns, that his baggy clothing could enable concealment of contraband, and that he initially refused to comply fully with the request that he lift his shirt for visual inspection of his waistband.
[4] As with border pat down searches, the requirements for a border strip search vary from circuit to circuit, but require a heightened level of suspicion because of the increased intrusiveness of this type of search.
[5] Coupled with observations which support a border pat down search, the discovery during the pat down of unusual bulges, and the defendant’s plaintive “please” would lead a rational person and a trained customs officer to reasonably conclude that a person was likely to be smuggling contraband into American Samoa.
[6] Except as required to determine whether a minimum threshold level of suspicion is met, the court will not as a general rule attempt to substitute its own judgment for that of trained, experienced customs officers.
[7] Where a defendant repeatedly responds that he understands the Miranda rights being read to him, the police cannot be required to look beyond his own words and presume that he does not comprehend the plain language of Miranda.
Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General

For Defendant, Tautai A.F. Fa`alevao, Public Defender


ORDER DENYING MOTION TO SUPPRESS EVIDENCE
On the morning of October 15, 1998, defendant Fa`atoiaalemanu Vagavao (“Vagavao”) was arrested, and was subsequently charged with one count of possession of marijuana, a controlled substance, in violation of A.S.C.A. §§ 13.1022 and 13.1006, a class D Felony punishable by imprisonment for up to five years and/or a fine of up to five thousand dollars. Following waiver of the preliminary examination, Vagavao was arraigned in the High Court on December 1, 1998, and a jury trial was scheduled for March 16, 1999. On January 11, 1999, defendant filed a motion to suppress evidence pursuant to Rule 12(b)(3) of the Trial Court Rules of Criminal Procedure, seeking to suppress both the physical evidence obtained in, the search and the subsequent sworn statement made by the defendant. A hearing was held on the motion on January 26, 1999, with the defendant and all counsel present.
Facts
On the morning of October 15, 1998, Vagavao was a passenger on the inter-island ferry Queen Salamasina, entering the Territory from Apia, Independent Samoa. Customs Agent Pauulu Lagai, who testified at the January 26 hearing, was on duty that morning. (While the defendant challenges the legal implications of the basic facts regarding his search, he did not at the hearing dispute the particulars of Agent Lagai’s account of events leading up to his arrest.)
According to Agent Lagai, Vagavao approached his customs counter at approximately 7:30 a.m. and presented his carry-on baggage for inspection. Agent Lagai testified that the defendant typically visited the Territory, frequently, with family members for the purpose of selling agricultural products, and would invariably depart on the Salamasina’s return voyage the very same day. On the day in question, however, agent Lagai noted that the defendant was traveling alone with only a hand bag and apparently without cargo for sale. Agent Lagai also noticed that Vagavao was wearing oversized clothing in the way of baggy shorts and an untucked t-shirt, clothing he knew to be typical for concealing contraband. Based primarily on these two factors, Agent Lagai asked the defendant to raise his shirt to allow for visual inspection of the waistband.16 When Vagavao complied only partially, failing to lift his shirt sufficiently for the stated purpose, Agent Lagai then directed him to a private secondary search area.
In the secondary search area, Vagavao removed his shirt without instruction to do so, and Agent Lagai conducted a “pat down” search involving a frisk of defendant’s outer clothing. While doing so, he felt several unusual bulges throughout the crotch area. Upon discovery of the bulges, defendant whispered the word “fa`amolemole” (please) to Agent Lagai, who nonetheless instructed the defendant to remove the remainder of his clothing. The strip search then revealed that Vagavao was wearing two pairs of shorts in addition to his underwear. Furthermore, in the course of conducting the search, Agent Lagai ultimately uncovered approximately thirty small bundles of what was later confirmed to be marijuana. The police were duly summoned to the scene, and Vagavao was taken into custody shortly thereafter.
As with the search discussed above, the basic facts surrounding Vagavao’s statement to the police remain essentially uncontested. At the hearing, Captain Va`aomala Sunia testified that the defendant was fully advised of his constitutional rights twice prior to taking him to the police station. At the station, immediately prior to offering his written statement, Vagavao was advised of his constitutional rights for a third time. As Captain Sunia walked him through the standard police form, defendant placed his initials next to each statement to indicate that he understood those rights and nevertheless wished to proceed with his statement. Both the verbal and written warnings of defendant’s constitutional rights were in Samoan, which the defendant does not dispute to be his native language.
Discussion
A. Evidence Seized in Border Searches
[1] Article I, Section 5 of the Revised Constitution of American Samoa affords, to all individuals certain protections against unreasonable searches and seizures by the government. Those exact same protections are, in relevant part, also guaranteed by the Fourth Amendment to the U.S. Constitution. The United States Supreme Court has made it clear that a “border search” of the type at issue in this case may be subject to a significantly less demanding standard than that required for searches within the interior. United States v. Montoya de Hernandez, 473 U.S. 531 (1985). To conclude that a given search is legal—and therefore the evidentiary “fruits” of that search admissible—a court must determine that the inspecting officer met a certain threshold level of suspicion supportable by objective facts confronting that officer at the time of the search. To further complicate matters, the court is here faced with two distinct searches, each with its own varying standards of suspicion as articulated by different federal circuit courts. The first consisted of the “pat down” search over the defendant’s clothing; the second, of course, was the strip search which followed Agent Lagai’s discovery of the unusual bulges.
[2-3] The law regarding a border pat down search remains unsettled, with circuit courts requiring anything from little or no suspicion whatsoever (analogizing the pat down to a routine search of luggage) to “minimal suspicion” to “some suspicion.” United States v. Sandler, 644 F.2d 1163 (5th Cir. 1981); United States v. Vance, 62 F.3d 1152 (9th Cir. 1995); United States v. Dorsey, 641 F.2d 1213 (7th Cir. 1981). We agree with the government, however, in concluding that the instant case does not require us to parse the fine distinctions posed by these assorted standards. In our opinion, all of the above suggest a very low standard, requiring only the articulation of some facts which would lead a reasonable and objective customs officer to believe the search to be necessary. Agent Lagai certainly met this minimal standard, noting the defendant’s deviation from his typical travel patterns,17 his baggy clothing which could enable the concealment of contraband,18 and his initial refusal to comply fully with the request that he lift his shirt for visual inspection of the waistband. All of these factors indicate that the pat down search was not conducted arbitrarily, but rather was based on the sum of these several observations made by a trained customs officer.
[4-5] Like the standards for a pat down, the requirements for a border strip search vary from circuit to circuit, although all agree that the increased intrusiveness of this type of search requires a heightened level of suspicion. The Ninth Circuit favors a showing of “real suspicion”; the Fifth requires “reasonable suspicion.” United States v. Vance, 62 F.3d 1152 (9th Cir. 1995); United States v. Adekunle, 980 F.2d 985 (5th Cir. 1992). See also United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. 1970) (requiring a showing that “objective, articulable facts must bear some reasonable relationship to suspicion that something is concealed on the body of the person to be searched”). However, we again do not find it necessary to adopt one or the other, as we believe the facts in this case satisfy even the most stringent of those accepted tests. In addition to those facts already mentioned, the discovery during the pat down search of unusual bulges, coupled with the defendant’s plaintive “please,” all would lead a rational person—much less a trained customs officer—to reasonably conclude that Vagavao was likely to be smuggling contraband into American Samoa.19
[6] We conclude that both the pat down and strip searches of Vagavao were legal and not violative of the defendant’s rights against unreasonable search. We take this opportunity to emphasize the important role that territorial customs officials play in protecting our islands from the infusion of illegal drugs and other such undesirable imports. Except as required by law in determining whether a minimum threshold level of suspicion is met, this court will not as a general rule attempt to substitute its own judgment for that of trained, experienced customs officers., The Searches of, the defendant in this case are held to be valid, and any evidence obtained therefrom may properly be introduced at trial.
B. Defendant’s Sworn Statement
The landmark case of Miranda v. Arizona set forth the constitutional requirements for advising a defendant of his legal rights prior to custodial interrogation. 384 U.S. 436, 444-5 (1966). While a line of subsequent cases has further refined those procedures, none have required anything beyond the steps taken by Captain Sunia on the morning of October 15, 1998. At the hearing he testified that he advised Vagavao of his rights a total of three times, including the last which was acknowledged in writing by the defendant.
[7] Each time the Miranda warnings were administered, the defendant responded that he understood his rights. The defendant has made no attempt to refute these basic facts. Instead, he merely hinted via cross-examination that Vagavao perhaps had not actually fully understood his rights—particularly his right to have an attorney present during interrogation—despite his answer to the contrary. Much as we may support a criminal defendant’s absolute right to counsel, however, we cannot impose upon the police the requirement that they look beyond a defendant’s own words and presume that he does not comprehend the plain language of Miranda. We therefore hold that Vagavao’s statements were properly obtained and such statements will, accordingly, be deemed admissible at trial.
Order
For the foregoing reasons, defendant’s motion to suppress evidence is denied.
It is so ordered.
**********

AMERICAN SAMOA GOVERNMENT, Plaintiff
v.
TUITUAOLO OLENE TOGIAILUA, Defendant.
High Court of American Samoa

Trial Division


CR No. 10-99
June 2, 1999

[1] Unless provided by statute or constitutional provision, privileges in American Samoa are governed by the principles of common law.


[2] The spousal immunity privilege protects one spouse from testifying against the other concerning conduct or other facts of which he or she has personal knowledge.
[3] The spousal communications privilege shields private communications between husband and wife.
[4] The spousal immunity privilege does not apply in cases where a crime has been committed by one spouse against another spouse or against a child of the family.
[5] A defendant’s right to a speedy trial in a criminal prosecution is protected by Article I Section 6 of the Revised Constitution of American Samoa.
[6] Accused’s right to a speedy trial had not been abridged where jury trial was set for a time nearly seven (7) months post-arraignment, where defendant did not object to trial date at original trial setting, where defendant was charged with a homicide-related offense requiring substantial preparation and where criminal caseload of court was significant.
Before RICHMOND, Associate Justice, TUA`OLO, Chief Associate Judge, and ATIULAGI, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General

For Defendant, Tautai A. F. Faalevao, Public Defender


ORDER DENYING MOTION TO SUPPRESS STATEMENTS

BY DEFENDANT’S WIFE, TO PROHIBIT HER TESTIMONY,

AND TO SCHEDULE EARLIER JURY TRIAL


This matter involves the alleged murder of a young woman by her father, defendant Tuituaolo Olene Togiailua (“Togiailua”). The chief eyewitness for the prosecution is Tuituaolo’s wife, who has asserted that she does not wish to testify, purporting to invoke the privilege of spousal immunity. A formal motion to suppress her statements and to prevent her from testifying was filed on April 17, 1999. The motion also requested an earlier trial date. Hearings were held on April 19 and May 3, 1999, with Togiailua and both counsel present. The court has reviewed the wife’s testimony, written submissions, and oral arguments on the issue of the spousal privilege.
Discussion
A. Spousal Immunity Privilege

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