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

AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
AMOSA ROPATI, Defendant
High Court of American Samoa

Trial Division

CR No. 54-99
October 28, 1999

[1] Statement, made by defendant, that his uncle was taking a large risk in shipping the drugs through the mail was not offered to prove the truth of the matter asserted, but instead to show defendant’s knowledge that he was picking up drugs. Therefore, it was not hearsay and it could be used against him at trial.

[2] Although statement, when viewed under a strictly literal truth of the matter asserted standard, did not constitute hearsay, its proffered use to implicate codefendant rendered it hearsay, and was properly considered such.
[3] Neither a casual admission nor idle conversation constitute a declaration made in furtherance of a criminal conspiracy and therefore are not immune from the hearsay rule under such exception.
[4] When right to confrontation problems may be caused by hearsay statements of a codefendant to be used in joint trial, a court must consider remedial action, including severance.
[5] Separate trials are essential when incriminating out-of-court statements of a codefendant, admissible against the declarant but not against codefendant, would be presented in evidence.
Before KRUSE, Chief Justice, LOGOAI, Associate Justice, SAGAPOLUTELE, Associate Justice.
Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General

For Defendant, Katopau T. Ainu`u

ORDER DENYING PLAINTIFF’S MOTION FOR JOINDER
On August 23, 1999, plaintiff American Samoa Government (“ASG”) filed a motion to join this case with ASG v. Mekiafa Tupua, Jr., CR No. 35-99. A hearing on the issue was held on September 23, 1999, at which counsel for all parties were present. Mekiafa Tupua, Jr. (“Tupua”) expressed no objection to joinder, whereas Amosa Ropati (“Ropati”) opposed joinder. We directed briefing from the parties. On October 1, 1999, Ropati filed his Memorandum in Opposition to Motion to Join and ASG responded with a Reply on October 5, 1999, whereupon the matter was taken under advisement. After weighing the arguments for and against separate trials, we deny the motion for joinder.
[1] We first examine whether Tupua’s declaration will be admissible at trial for use against him or codefendant Ropati. Tupua’s statement does not constitute hearsay when used against him because the declaration is not being offered to prove the truth of the matter it asserts, namely, that his uncle was in fact taking a large risk in shipping the drugs through the mail. Rather, the remark is being offered to prove Tupua’s knowledge that he was picking up drugs. Tupua’s declaration being offered to prove his state of mind, it is not covered by T.C.R.Ev. 801, and is admissible against Tupua.
[2] ASG argues that Tupua’s statement is not hearsay with respect to Ropati. Under a strictly literal truth of the matter asserted standard, it is not, because ASG is not using the statement to prove that Ropati was in fact “taking a big chance bringing methamphetamine to the Territory by post.” Rather, ASG seeks to introduce this statement against Ropati in order to prove identity, namely, that Ropati was the intended recipient of the package. Notwithstanding the literal meaning of the remark, its use to implicate Ropati constitutes hearsay because the remark effectively asserts that Ropati was the intended recipient of the package, and it is being offered by ASG to prove the truth of this matter. Thus, the declaration, as hearsay, cannot be used against Ropati unless it comes under an exception to the hearsay rule. T.C.R.Ev. 802.
[3] Plaintiff ASG appears to assert that Tupua’s declaration can be admitted against Ropati under the co-conspirator exception to the hearsay rule. T.C.R.Ev. 801(d)(2)(E). This argument fails because the declaration was not offered “in furtherance of the conspiracy.” At the time Tupua allegedly made the declaration, he was not seeking assistance from witness Lilio, nor was he attempting to involve Lilio in the conspiracy. Rather, his words were a casual admission and idle conversation, neither of which can be used against a co-conspirator. See U.S. v. Layton, 720 F.2d 548 (9th Cir. 1983); U.S. v. Shores, 33 F.3d 438 (4th Cir. 1994). Tupua’s remark to Lilio is thus inadmissible hearsay with respect to Ropati. Tupua’s declaration thus being admissible against him, but not Ropati, we turn to the issue of whether Ropati would be denied a fair trial if the cases are joined.
Judicial economy speaks for joinder. The defendants have been arraigned on similar charges, and are allegedly part of the same conspiracy to import and sell illegal drugs. The prosecution also presents a good case for joinder. The trials of both defendants require the same witnesses and exhibits, and ASG may be calling an off-island witness from San Francisco, California for both cases.
[4-5] To facilitate joinder, ASG proposes that the jury be instructed to limit consideration of Tupua’s remarks to the case against Tupua. Granted, the integrity of the judicial process depends on “the almost invariable assumption of the law that jurors follow their instructions,” Richardson v. Marsh, 481 U.S. 200, 206 (1987), nevertheless, when right to confrontation problems may be caused by hearsay statements of a codefendant to be used in joint trial, a court must consider remedial action, including severance. U.S. v. Truslow, 530 F.2d 257 (1975). Persuasive authority holds that separate trials are essential when incriminating out-of-court statements of a codefendant, admissible against the declarant but not against codefendant, would be presented in evidence. U.S. v. Corbin Farm Service, 444 F.Supp. 510 (1978).
In weighing the matter before us, we conclude that Ropati’s rights should supersede considerations of economy. ASG’s needs may be accommodated to some extent. To alleviate the burden to ASG presented by separate trials, the court, for example, is open to scheduling the two trials during the same week, but separately, to minimize the expense and logistical difficulties involved with off-island witnesses. This option can be further explored at the forthcoming pretrial conference.
Order
For the foregoing reasons, plaintiff’s joinder motion is hereby denied.

It is so ordered.

**********
AMERICAN SAMOA GOVERNMENT, Plaintiff
v.
ROY MOE, Defendant
High Court of American Samoa

Trial Division

CR No. 53-99
October 28, 1999

[1] An arrest warrant must be issued by a neutral and detached magistrate.

[2] A magistrate impermissibly lacks neutrality where he or she is involved in law enforcement activities, has a pecuniary interest in the outcome of his decision, or has ‘wholly abandoned’ his judicial role.
[3] Justice’s action in alerting Attorney General to possible violation of statutory rape law by forwarding marriage waiver form to A.G.’s attention for such action as he “may deem appropriate” did not constitute law enforcement nor did it advocate prosecution, and justice was not prohibited from later reviewing and granting application for warrant of arrest of individual named in waiver form..
[4] Judges are the only officials authorized to issue arrest warrants in American Samoa
Before RICHMOND, Associate Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Suzanna Tiapula, Assistant Attorney General

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

ORDER DENYING MOTION TO DISMISS
On September 8, 1999, defendant Roy Moe (“Moe”) moved to dismiss the statutory rape charge against him. Plaintiff American Samoa Government (“ASG”) contested the motion at a hearing held on October 28, 1999, with Moe and both counsel present.
Facts
Pursuant to A.S.C.A. § 42.0105, two couples, one involving Moe, applied to this court for waivers to permit their respective marriages to take place before the end of the 30-day waiting period usually required after issuance of a marriage license. Both applications revealed that the female applicants were under the age of 16 when they had sexual intercourse with the male applicants, resulting in the pregnancies incident to the waiver applications. The Chief Justice rejected both applications and returned them to the Registrar of Vital Statistics with a memorandum expressing concern over instances of statutory rape. The Chief Justice also sent copies of the applications and memorandum to the Attorney General’s office for such action as the Attorney General “may deem appropriate.”
The Attorney General charged Moe with rape, in violation of A.S.C.A. § 46.3604(a)(1), by lodging a complaint in the District Court on August 10, 1999. On that day, a Tuesday, the District Court Judge was outside American Samoa on official business, and the Associate Justice was presiding at a jury trial in the High Court. The Chief Justice was handling matters before the District Court, which included the usual heavy traffic calendar. Thus, this prosecution was initially presented to the Chief Justice, and after reviewing the police officer’s supporting affidavit, he signed the warrant for Moe’s arrest.
Discussion
Moe seeks to dismiss the charges against him on the grounds that the arrest warrant was not signed by a “neutral and detached judicial officer” and was therefore invalid. Moe alleges that the Chief Justice’s role in calling attention to the possible statutory rape violation rendered him unable to be neutral and detached when approving and signing the arrest warrant.
[1] Moe states a correct principle of law. An arrest warrant must be issued by a “neutral and detached magistrate.” See Sheldon R. Shapiro, Annotation, Requirement, Under Federal Constitution, that Person Issuing Warrant for Arrest or Search be Neutral and Detached Magistrate--Supreme Court Cases, 32 L. Ed. 2d 970, 972. Judges generally qualify as neutral and detached magistrates.
Moe, however, attacks the Chief Justice’s neutrality and detachment in this case because he denied Moe’s application for a waiver of the marriage waiting period and sent a memorandum to the Attorney General alerting him to Moe’s possible statutory rape violation. Moe argues that the Chief Justice was thus inextricably linked to the actions of the Attorney General’s office and police in prosecuting and arresting Moe for statutory rape.
[2] The facts in the present situation and legal authority indicate otherwise. “The Supreme Court has found an impermissible lack of neutrality in cases where the particular magistrate was also involved in law enforcement activities, had a pecuniary interest in the outcome of his decision, or had ‘wholly abandoned’ his judicial role.” United States v. Heffington, 952 F.2d 275, 278 (9th Cir. 1991). None of these situations applies to the present case.
Clearly, the Chief Justice has no pecuniary interest in the outcome of this case, and Moe does not suggest otherwise. See Connally v. Georgia, 429 U.S. 245, 250 (1977).
It also cannot be reasonably said that the Chief Justice was involved in law enforcement activities. Examples of impropriety are found in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) and Coolidge v. New Hampshire, 403 U.S. 443 (1971). In Lo-Ji, the magistrate issuing a search warrant became a member of the search party. In Coolidge, the court held that a state attorney general, having the responsibility to investigate criminal activity, could not issue a valid search warrant.
[3] In this case, the Chief Justice was not participating as a prosecutor, investigator, or in another law enforcement capacity when he brought the marriage waiver application to the Attorney General’s attention. Nor was he advocating prosecution. Rather, he merely alerted the Attorney General to a possible violation of criminal laws and left the prosecutorial decision to the Attorney General’s discretion.
Moreover, the Chief Justice did not abandon his judicial role in any sense. On the contrary, as required of a judicial officer, the Chief Justice considered the police officer’s affidavit setting forth facts constituting the offense and, on that basis, found probable cause that Moe committed the offense of statutory rape before he issued the arrest warrant.
[4] There is also an element of practical necessity in this case. Judges are the only officials authorized to issue arrest warrants in American Samoa. A.S.C.A. §§ 46.0801-.0803; see also T.C.R.Cr.P. 4. The Chief Justice presided at the District Court on August 10, 1999, in the District Court Judge’s absence and the Associate Justice’s preoccupation. Under these circumstances, the Chief Justice routinely handled the application for the arrest warrant. He might have delayed action on the application until the Associate Justice was available. However, there is no indication that the Chief Justice even had in mind, let alone was improperly influenced by, his earlier referral of the matter to the Attorney General when he issued the arrest warrant.
Moe’s contrary assertions notwithstanding, there is nothing of record that reasonably supports any finding that as a matter of fact or appearances, the Chief Justice’s referral to the Attorney General and later issuance of the arrest warrant were anything but independent acts. We conclude, therefore, that the Chief Justice performed his obligations as a neutral and detached magistrate and properly issued the warrant for Moe’s arrest.
Order
Moe’s motion to dismiss is denied.
It is so ordered.
**********

AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
MICHAEL AGASIVA, Defendant.
High Court of American Samoa

Trial Division

CR No 50-99
November 15, 1999

[1] The public peace disturbance statute, A.S.C.A. § 46.4501(a)(2), is not facially invalid for being overbroad—it narrowly tailors it’s required element of “intent to cause public annoyance or alarm, or recklessly creating a risk of it.”

[2] The public peace disturbance statute, A.S.C.A. § 46.4501(a) (2), does not apply to protest actions which are meant to express a viewpoint rather than to “cause public inconvenience, annoyance, or alarm,” and by judicially limiting the application of the statute to non-protected speech, there are no residual overbreadth problems.
[3] The “unreasonable noise” provision of the public peace disturbance statute, A.S.C.A. § 46.4501(a) (2), is an objective standard set by community practices, and so is not invalid for being vague; mathematical precision is not required in defining levels of noise, and as a member of the community, the defendant should have been aware that shouting in a public restaurant was unreasonable noise for purposes of the statute.
[4] Application of the statute by law enforcement personnel need not be automatic under explicit standards, and so the decision to arrest can be properly made on an individualized basis.
[5] A police officer is authorized to make a warrantless arrest of a person who commits a misdemeanor in his presence, or to prevent a future breach of the peace; and the defendant was properly arrested under the valid public peace disturbance statute.
[6] Article I, Section 5 of the Revised Constitution of American Samoa being essentially identical in content regarding search and seizure to the Fourth Amendment of the United States Constitution, caselaw decided under the Fourth Amendment provides guidance in determining whether a warrantless search is unreasonable, and a search can be valid for multiple reasons.

[7] Where an officer is legitimately within a vehicle being impounded incident to arrest, and inadvertently comes across an incriminating object by feeling it, the “plain feel” variation of the “plain view” doctrine applies.

[8] The discovery of a rifle in a pickup truck provides probable cause to search the rest of the vehicle under the warrantless search “automobile exception.” There being no exigent circumstances requirement, the lesser expectancy of privacy in vehicle allows search at the time of seizure or at any time thereafter.
[9] An inventory search of an impounded vehicle reasonably conducted in good faith under standard procedures of the Department of Public Safety is a valid search.
Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge
Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General

For Defendant, Patricia Penn, Assistant Public Defender

ORDER DENYING MOTIONS TO DISMISS

COUNT AND SUPPRESS EVIDENCE

Plaintiff American Samoa Government (“ASG”) accuses defendant Michael Agasiva (“Agasiva”) of committing the offenses of disturbing public peace, resisting arrest, and possession of an unlicensed firearm in this action. On October 1, 1999, Agasiva filed three separate motions to: dismiss the charge of public peace disturbance; suppress physical evidence; and suppress statements. The motions were heard on October 10, 1999, with both counsel and Agasiva present. After considering and weighing the evidence and arguments, the court denies all three motions.
Facts
At approximately 2:10 a.m. on July 11, 1999, Special Agent David Snow (“Snow”) and police officer Faimasasa Malaefono (“Malaefono”) responded to a call reporting an indecent exposure at the Krystal Burger restaurant in Nuu`uli. After being directed to Agasiva by some customers, Snow observed that Agasiva’s pants were unbuttoned and unzipped. Snow repeatedly ordered Agasiva to zip his pants before Agasiva complied, and then only after he loudly challenged Snow’s authority. Snow told Agasiva to lower his voice as he was likely disturbing other customers and the staff at the restaurant, but Agasiva only became louder and more belligerent, shouting at one point for his food order. Snow requested Agasiva to be quiet numerous times to no avail and became concerned about the safety of others present, particularly the identified informant who called the police. Then Snow and Malaefono arrested Agasiva for disturbing the peace and to prevent further disturbance. Agasiva physically resisted arrest, and the officers took him down to the ground to subdue and handcuff him.
Agasiva asked about his kingcab pickup. The keys were inside. Snow told Malaefono to take the pickup to the police Substation West. He then drove Agasiva to this substation in the police unit, and Malaefono drove the impounded pickup to the same location. Upon arriving at the station, Malaefono noticed that his flashlight was missing. He reached around the floor of the cab and touched what he thought was the stock of a rifle. Malaefono reported his finding to the watch commander, who instructed him to retrieve this item, which turned out to be a 30.06 caliber, bolt-action rifle, an illegal firearm.
Upon examining the rifle, Malaefono found a live round in the chamber and three more in the magazine. Concerned about the possible presence of other firearms and ammunition, Malaefono further searched the pickup. He found six more bullets for the rifle in the console. When Snow saw the rifle, he added the weapon possession charge and prepared to question Agasiva. However, Agasiva refused to sign the form advising him of his Miranda rights regarding interrogation, and Snow did not attempt to question Agasiva about the incident then or at any other time before or after the arrest.
Early the next morning, Snow conducted an inventory search of Agasiva’s pickup, pursuant to police policy. Under this policy, an inventory search is done in the vehicle owner’s presence. However, Agasiva refused to witness the search, and the search was then made in the watch commander’s and shift sergeant’s presence. The search yielded one more live round for the rifle in the glove compartment, four ejected shell casings, another live round in the console, and 33 .22 caliber bullets and a spent casing in the cup holder.
Discussion
A. Dismissal on Grounds of Unconstitutional Vagueness and

Overbreadth
[1] We first examine whether the public peace disturbance statute, A.S.C.A. § 46.4501(a) (2), under which Agasiva was arrested passes constitutional muster. Agasiva alleges that the law is vague and overly broad, and is thus facially invalid as violative of the constitutional right of free speech under Article I, Section 1 of the Revised Constitution of American Samoa.
The overbreadth doctrine can invalidate laws that chill the exercise of free speech. We note that facial invalidation is an extreme remedy, however, one that has been employed by the Supreme Court only sparingly and as a last resort. Broadrick v. Oklahoma, 413 U.S. 601, 613, 37 L. Ed. 830, 841 (1973). “Equally important, overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” Id.
To support an overbreadth claim, Agasiva must show that the instances in which the statute could intrude on free speech are not outweighed by the valid application of the statute. Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). He has not met this burden. First, “even protected speech is not equally permissible in all places and at all times.” Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 799, 87 L. Ed. 2d 567, 578 (1985). More specifically, the Supreme Court has said that government “has a substantial interest in protecting its citizens from unwelcome noise.” Ward v. Rock Against Racism, 491 U.S. 781, 798, 105 L. Ed. 2d 661, 678 (1989).
Although the statute in question runs the risk of chilling speech, the requirement of “intent to cause public annoyance or alarm, or recklessly creating a risk of it,’ as an element of the offense, saves the statute from facial invalidation. Similar to the narrow tailoring of the statute in Grayned v. City of Rockford, 408 U.S. 104, 33 L. Ed. 2d 222 (1972), this requirement of proof tailors this statute to protect the compelling interest in providing others with peace and quiet. The statute punishes only conduct that is likely to disturb other persons, and of itself is completely content-neutral. Thus, its legitimate application far exceeds any chance of chilling speech.
[2] Furthermore, we hold that the statute does not apply to protest actions, the intent of which is to express a viewpoint rather than to “cause public inconvenience, annoyance, or alarm.” In so judicially limiting the application of the statute to non-protected speech, we cure any residual overbreadth problems. See Eroadrick, 413 U.S. at 613, 37 L. Ed. at 841.
Moving on to vagueness, a statute is unconstitutionally vague if “its prohibitions are not clearly defined.” Grayned, 408 U.S. at 108, 33 L. Ed. 2d at 227. More specifically, if a person of reasonable intelligence cannot determine from the statute what is prohibited, so that he can conform his conduct accordingly, it is impermissibly vague. In addition, the statute must provide explicit standards in order to prevent arbitrary and discriminatory enforcement. Id at 108-109, 227-228.

Download 0.95 Mb.

Share with your friends: