6ASR3d

6ASR3d

YRT, INC., an American Samoa Corporation,v.PROGRESSIVE INSURANCE COMPANY (Pago Pago) et al


 

YRT, INC., an American Samoa Corporation, Plaintiff,
v.
PROGRESSIVE INSURANCE COMPANY (Pago Pago) et al., Defendants.
High Court of American Samoa
Trial Division
CA No. 92-00
March 27, 2002

 

[1] A court deciding a motion for summary judgment must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party.
[2] A.S.C.A. § 27.1002(a) dictates that all merchandise and baggage brought into American Samoa from any foreign country be inspected by a customs officer.
[3] Federal customs law is applied here as practicable under A.S.C.A. § 27.1030.
[4] Items which must be declared before a customs officer examines baggage and are not so declared are subject to forfeiture.
[5] In order for goods to fall under an exception to the excise tax that the goods were imported for export sale for consumption outside American Samoa, the goods must be packaged and stored according to the requirements under A.S.C.A. § 11.1002(c).
[6] One has no insurable interest in property obtained by unenforceable contracts or illegal activity.
Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Chief Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendants Dean Haitsell and Daniel M. Whitley, Pro Hac Vice, and William H. Reardon

ORDER GRANTING DEFENDANT
PARTIAL SUMMARY JUDGMENT
Defendant Progressive Insurance Co. (Pago Pago), Ltd. (“Progressive”) filed two separate motions for partial summary judgment and a motion to compel discovery. The motions were heard on February 11, 2002, with all counsel present. Progressive asserts as the basis for the first partial summary judgment motion that the claim of plaintiff YRT, Inc. (“YRT”) to recover damages for computer chips allegedly destroyed in a fire, under insurance coverage issued to YRT by Progressive, fails as a matter of public policy. Progressive maintains that there is no issue of material fact as to whether YRT’s allegedly destroyed chips were illegal contraband, in which YRT could not have had an insurable interest. We will grant summary judgment on this motion. Hence, we need not rule on Progressive’s second motion for summary judgment or discovery motion.
Standard of Review
[1] A court deciding a motion for summary judgment must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party. Plaza Dep’t Store, Inc. v. Duchnak, 26 A.S.R.2d 82, 83 (Trial Div. 1994); Lokan v Lokan, 6 A.S.R.2d 44, 46 (Trial Div. 1987); D. Goka1 & Co., Ltd. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989). Summary judgment is only appropriate when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Plaza Dep’t Store, 26 A.S.R.2d at 83; T.C.R.C.P. 56(c).
Background and Undisputed Facts
In early January 2000, YRT obtained an insurance policy from Progressive. On February 23, 2000, a fire occurred in a building leased by YRT. Yu Chun Yung (“Yu”), YRT’s president and principal shareholder, filed a claim with Progressives alleging that there were $5.9 million worth of computer chips in the building destroyed by the fire. Yu produced only one invoice as evidence of the chips’ existence. Progressive claims that its investigation shortly after the fire produced no evidence of the destroyed chips at the fire location. A few days after the fire, Francis Forrna`i, currently vice president with YRT, removed what materials remained in the burned building and took them to a landfill- The parties do not agree as to whether Forma`i was an agent for YRT at the time he removed the materials, but this issue is at the crux of Progressive’s second motion for summary judgment.

When questioned as to why there was so little evidence of the computer chips’ existence, Yu revealed the means YRT had used to bring the chips to American Samoa. The chips were brought into the Territory in the luggage, containing personal possessions, of passengers from South Korea. Other parts were then to be assembled with the chips, and the finished components were to be exported for sale. Because the chips were brought in as undeclared personal possessions, YRT had no documentation concerning their importation or any excise taxation they might have warranted.
Discussion
Progressive’s legal argument is quite simple. Progressive alleges that if YRT brought the computer chips into American Samoa, it was done in violation of territorial importation law. Public policy, Progressive continues, dictates that a party has no insurable interest in illegally obtained property.
Progressive concludes that it owes YRT nothing for the allegedly destroyed chips as YRT held no insurable interest in said property in the first place.
YRT responds that its importation of the computer chips violated no particular territorial laws. It seems to take particular offense to the term “smuggle.” YRT does not, however, refute the factual allegations that their agents brought computer chips into the Territory in personal luggage, without claiming them as goods or paying any applicable excise tax upon importation, and that YRT intended to use the chips to manufacture goods for export.
[2-4] A review of the Territory’s importation and excise tax laws is necessary to further this discussion. Regarding customs, the territorial code dictates that “[a]ll merchandise and baggage imported or brought into American Samoa from any foreign county shall be unladen in the presence of, and inspected by, a customs officer.” A.S.C.A. § 27.1002(a). Federal law, applied here as is practicable via A.S.C.A. § 27.1030, dictates that items not declared before the examination of baggage are subject to forfeiture. 19 U.S.C. § 1497. Items which must be declared, including items subject to the excise tax, clearly must be made known to customs officers beyond allowing inspection of baggage. YRT’s claim that its agents fulfilled the law’s requirements by allowing search of their bags is myopic. If a party were to hide controlled materials in a secret compartment in a piece of luggage, and customs agents were unable to find them, the materials would most certainly not magically become legally imported.

[5] The computer chips are subject to an excise tax, as described in A.S.C.A. § 11.1002, and thus should have been declared during importation. YRT claims that an exception found in A.S.C.A. § 11.1002(a)(7) and (c) should have rendered the chips exempt from taxation, namely, that the chips were imported for export sale for consumption outside the Territory. This argument is disingenuous, as the statute requires “separate storage of these items clearly identified for export sale and a system of delivery to the purchaser ensuring their exportation” as qualifications for the exception to apply. A.S.C.A. § 11.1002(c). YRT asserts that because it allegedly planned on eventually exporting the chips, it should qualify for this exception, but fails to even address the statutory requirements. The exception clearly does not apply.
The undisputed facts show, according to territorial law, that YRT illegally imported, or smuggled, the chips into American Samoa. They were, in fact, smuggled. Tomplain v. United States, 42 F.2d 203, 204 (5th Cir. 1930) (the secret introduction of goods, whose importation requires payment of a duty, is “smuggling”); Hill v. United States, 42 F.2d 812, 814 (4th Cir. 1930) (to “smuggle” means to bring on shore goods or merchandise for which duty has not been paid, or goods which are illegal to import).
[6] The majority view declares that there is no insurable interest in property obtained by unenforceable contracts or illegal activity. See generally 43 AM. JUR. 2D Insurance § 973 (2000); 9 A.L.R. 2d 181, 194, 2 (1950); 9 COUCH ON INSURANCE 2d 39:24, 26-28 (1985); see also A.S.C.A. § 29.122(a) (“A mere contingent or expectant interest in anything, not founded upon an actual right to or in the thing, nor upon any valid contract for it, is not insurable.”). Mere possession of property is in and of itself insufficient to constitute an insurable interest. Splish Splash Waterslides v. Cherokee Ins. Co., 307 S.E.2d 107, 109 (Ga. Ct. App. 2983) (insured must have a lawful interest in property before he can insure the interest).
As the allegedly insured goods were, by YRT’s own admitted facts, illegally smuggled goods, YRT had no insurable interest in the goods. Based on full consideration of all the filed papers and authorities submitted by both parties, as well as oral argument, we find that there is no genuine issue as to any material fact concerning an insurable interest in the allegedly insured computer chips, and that Progressive is entitled to summary judgment as a matter of law with respect to YRT’s damage claim for any loss of the chips under the fire insurance policy issued to YRT by Progressive.

Order
Progressive’s motion for partial summary judgment as to the computer chips is granted. Judgment shall enter in Progressive’s favor and against YRT.
It is so ordered.

 

VIRGINIA L. GIBBONS,v.AMERICAN SAMOA GOVERNMENT


 

VIRGINIA L. GIBBONS, Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP. No. 13-01
October 3, 2002

 

[1] An appellate court reviews questions of law de novo.
[2] The common law rules of joint and several liability are subject to judicial modification in American Samoa, provided the modification is consistent with American Samoan law.
[3] The trial court’s modification of the common law rules of joint and several liability to apportion damages across multiple joint tortfeasors was entirely consistent with American Samoan law.
[4] Because no statute in American Samoa requires application of the common law rules of joint and several liability, the trial court’s apportioning of damages across muliple joint tortfeasors was proper.
[5] A trial court’s decision to bifurcate resolution of issues is reviewed for abuse of discretion.
[6] A trial court does not abuse its discretion by considering apportionment during the damages phase of the trial rather than the liability phase.
[7] Bifurcation can be at any point of a trial that will minimize the overlap in evidence between the segmented phases or otherwise promote economy and accuracy in adjudication.
[8] A trial court may consider income taxes when determining past and future income damages, since a person’s income tax is a relevant factor in determining his or her actual monetary loss.
[9] An award or settlement can be exempt from government taxation only if: (1) the claim was based on tort or tort type rights and (2) the

damages were received on account of personal physical injuries or physical sickness.
[10] Even if an award for lost wages is not subject to post-judgment taxation, a court may still properly reduce the award by such taxes as the court has a reasonable basis for finding the victim would have owed on those wages.
OPINION AND ORDER
Before RICHMOND, Associate Justice, WALLACE,* Acting Associate Justice, MOLLWAY,** Acting Associate Justice, MAMEA, Associate Judge, SAGAPOLUTELE, Associate Judge.
Counsel: William H. Reardon, Esq., for Appellant Virginia Gibbons.
Fiti A. Sunia, Esq., for Appellee American Samoa Government.
Introduction
Appellant Virginia L. Gibbons (“Gibbons”) came to American Samoa from the United States in 1989 on a contract to serve as an environmental attorney with American Samoa’s Attorney General. On February 16, l992 she was attacked and sexually assaulted by Maosi Fuala`au, a prisoner who had escaped from the American Samoa Correctional Facility. Fuala`au had been previously convicted of sexual assault in the very housing complex in which Gibbons lived. Bringing no claim against Fuala`au, Gibbons sued the American Samoa Government (“ASO”) claiming that ASG had negligently allowed Fualaau to escape and that ASG’s negligence caused her injuries. Gibbons won at trial but appeals the damage award issued by the High Court of American Samoa, Trial Division (the “trial court”). We affirm.
Gibbons identifies two errors in the damage award. First, she says the trial court erred in apportioning only a percentage of fault to ASG and in reducing her damage award against ASG accordingly. We disagree. The doctrine of joint and several liability has developed in the trial courts in this jurisdiction. Under the circumstances of this case, the trial court correctly abrogated that common law in a manner consistent with
* The Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation of the
Secretary of the Interior.
** The Honorable Susan Oki Mollway, District Judge, United States
District Court for the District of Hawaii, sitting by designation of the
Secretary of the Interior.

existing Samoan law.
The second error Gibbons assigns concerns the trial court’s reduction of her lost wage damages to account for taxes. We hold that the trial court properly took taxes into account in determining what Gibbons would actually have earned had she not been assaulted.
Analysis

A. The Trial Court Properly Apportioned the Damages Assessed Against ASG
[1] The trial court found ASG one-third at fault and held ASG liable for only one-third of Gibbons’ total damages. This is the first time that an appeal to this court has squarely raised the issue of whether courts may apportion damages between or among joint tortfeasor defendants.1 In the absence of any appellate pronouncement on the subject, our trial courts have expressed their belief that, in their search for fairness, they may indeed apportion damages. See, e.g., Masania`i v. Tendrick, CA 121-95, slip op. (Trial Div. Jan. 9, 1995); Fiaui v. Faumuina, 27 A.S.R.2d 36 (Trial Div. 1994) (declining to aportion damages in that instance but noting that the court could apportion in appropriate circumstances). Whether the trial court in this case had the power to apportion damages turns on whether apportionment may be imposed by a court or whether it may only be imposed by statute. This court reviews questions of law de novo. Anderson v. Vaivao, 21 A.S.R. 95, 98 (App. Div. 1992). We hold that the trial court had the power to order apportionment.2
1 In Saufo`i v. American Samoa Government, 19 A.S.R.2d 54 (App. Div.
1991), this court had before it an appeal from a damage award in which
the proportional fault of each defendant had been determined, with
damages correspondingly apportioned among the defendants. However,
the propriety of apportionment among the defendants was not an issue on
appeal. See id. at 56 (identifying as issues on appeal only whether
claims against the government in its proprietary capacity should have
been dismissed and whether the plaintiffs should have been found
comparatively negligent). After addressing the issues raised by the
appeal, this court affirmed the damage award, including the
apportionment, without examining the issue of whether apportionment
was appropriate. Thus, Saufo`i cannot be said to constitute appellate
approval of apportionment.
2 Gibbons’ appeal presents the purely legal question of whether a court
may order apportionment. Gibbons does not challenge the actual
percentage assigned to ASG by way of apportionment. To have
challenged whether the record supported that percentage by a reasonable

The rule widely recognized in American common law was that damages would not be apportioned between or among joint tortfeasors. See, e.g., Roche v. Egan, 433 A.2d 757, 760 (Me. 1981) (“Maine adheres to the widely recognized common law rule that a jury may not apportion damages for a single injury caused by joint, or concurrent, tortfeasors”); Hogan v. City-County Hosp. of LaGrange, 221 S.E.2d 796, 801 (Ga. Ct. App. 1976) (“In Georgia we follow the common law rule that there is no percentage of fault (i.e. no division of liability nor apportionment of damages among joint tortfeasors)”); Mary J. Cavins, Annotation, Propriety & Effect of Jury’s Apportionment of Damages as Between Tortfeasors Jointly & Severally Liable, 46 A.L.R.3d 801, 806 (1972) (“The common-law rule . . . was that a jury had no right to apportion damages as between defendant joint tortfeasors”).
Joint tortfeasors were held jointly liable for all of a plaintiff’s damages because it was thought that plaintiffs should not be denied the possibility of collecting the full amount of their judgments when one of the defendants was unable to pay its share of the judgment. 74 AM JUR. 2D Torts § 69 (2001); Cavins, supra, 46 A.L.R.3d at 806.
[2-3] American Samoa’s trial courts have applied the common law of joint and several liability. See, e.g., Fiaui, 27 A.S.R.2d at 40-42 (applying joint and several liability when concurrent intentional torts caused damage to a vehicle); Euta v. Etimani, 24 A.S.R.2d 139, 144 (Trial Div. 1993) (holding defendants jointly and severally liable for personal injury damages and noting that American Samoa’s comparative negligence statute did not alter the common law of joint and several liability). No appellate decision expressly adopts or rejects this common law, and no statute in this jurisdiction codifies it. This court holds that this judicially created doctrine is subject to judicial modification, provided the modification is consistent with American Samoan law. The trial court’s modification in this case was entirely consistent with American Samoan law.
Abolition of joint and several liability and adoption of a more equitable scheme is in keeping with the adoption of comparative negligence. See, e.g., Laubach v. Morgan, 588 P.2d. 1071, 1075 (Okla. 1978) (“Holding a defendant tortfeasor, who is only 20 percent at fault, liable for [the] entire amount of damages is obviously inconsistent with the equitable principles of comparative negligence”), superseded by statute as stated in Smith v. Jenkins, 873 P.2d 1044, 1047 n.15 (Okla. 1994). American Samoa has implemented comparative negligence by statute. See
certainty, Gibbons would have had to provide a record of the evidence
showing that there was no such reasonable certainty. Gibbons provides
no record of the evidence actually before the trial court.

A.S.C.A. § 43.5101 (contributory negligence by a claimant does not bar recovery, but “damages shall be diminished by the court in proportion to the amount of negligence attributable” to the claimant). That does not mean that apportionment among defendants may only be accomplished in this jurisdiction by statute.
We recognize that, in other jurisdictions, joint and several liability has usually been abolished by statute. Statutory modifications of the common law of joint liability have taken many forms. See, e.g., STEIN ON PERSONAL INJURY DAMAGES § 14:25 (Gerald W. Boston, ed., West Group, 3d ed. 1997) (listing various statutory modifications to joint and several liability). It is perhaps the wealth of different apportionment schemes that has led some to conclude that apportionment is an issue best left to the give and take of the legislative process, not to judicial decision. See Battle v. Morris, 93 So.2d 428, 432 (Ala. 1957) (“In the absence of a statute providing otherwise, damages against jointtortfeasors [sic] are not apportioned. Joint tortfeasors are jointly and severally liable for the entire damage sustained”); Grober v. Capital Transit Co., 119 F. Supp. 100, 107 (D.D.C. 1954) (“The rule is well settled that in the absence of a statute authorizing a jury to sever or apportion damages against joint tortfeasors, an assessment of damages against those sued jointly for a wrong must be for one sum against all those found liable, and a verdict which attempts to apportion the liability among the several defendants by directing the amount each shall pay is irregular”); 74 AM. JUR. 2D Torts § 69 (2001) (“In the absence of statutory authorization, no apportionment of compensatory damages may be incorporated in the judgment establishing the liability of joint tortfeasors”); Cavins, supra, 46 A.L.R.3d at 808 (“The traditional and overwhelming weight of authority is to the effect that joint tortfeasors . . . may not, in the absence of statute having a different effect, have apportioned among them the compensatory damages”).
The view that it is the legislature that must adopt apportionment, however, is by no means universal. American Samoa’s trial courts are not alone in developing the law of apportionment through court rulings. In Oklahoma, for example, it was the Oklahoma Supreme Court that abolished joint liability among defendants, concluding that it was “inconsistent with the equitable principles of comparative negligence.” Laubach, 588 P.2d at 1075. The court stated that, in so doing, it was augmenting Oklahoma’s comparative negligence statutes, furthering their intent and the underlying principle of equity. Id. at 1074. The court reasoned that doing away with joint liability allowed a plaintiff to “collect his damages from the defendant who is responsible for them,” not a defendant who is only partially responsible for them. Id. From the various models available to it, the Oklahoma court chose a system under

which each defendant was liable for only the percentage of the award attributable to him or her.
Similarly, in Reichert v. Atler, 875 P.2d 379 (N.M. 1994), a case with many similarities to the present one, New Mexico’s Supreme Court approved the judicial imposition of apportionment between defendant tortfeasors.3 Id. at 382. Reichert involved a negligent tortfeasor seeking to avoid having to pay damages caused by an intentional tortfeasor. Id. at 380. Similarly, here, ASG argues that, as a negligent tortfeasor, it should not be liable for all of the damages that Gibbons suffered through Fuala`au’s intentional acts. The New Mexico court held that apportionment was not limited to situations involving only negligent tortfeasors. Id. at 382. The court also permitted apportionment when damages were caused by both a negligent tortfeasor and an intentional tortfeasor. Id. The court found no reason to expose a negligent tortfeasor to a greater damage award when a joint tortfeasor acted intentionally than the negligent tortfeasor would have been exposed to had the joint tortfeasor acted only negligently. See id.
More than a decade before it judicially abrogated joint and several liability among defendants who were tortfeasors, New Mexico had judicially adopted the doctrine of comparative negligence with respect to negligent plaintiffs. In Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981), the Supreme Court of New Mexico had before it the question of whether New Mexico “should judicially declare that the existence of contributory negligence be no longer a complete bar against a plaintiff’s recovery, but that it be replaced by a system of comparative negligence which would assess damage liability directly proportionate with fault.” Id. at 1236. The court examined the argument that comparative negligence could only be adopted by the legislature. See id. at 1238-39. Rejecting what it called this “separation-of-powers” argument, the court noted that contributory negligence had “originated with a judicial decision” and therefore could be changed by a subsequent judicial decision.4
3 After the complaint was filed in Reichert, New Mexico adopted a
statute limiting the doctrine of joint and several liability. See N.M. Stat.
Ann. § 41-3A-1 (1989). Because the statute was passed after the lawsuit
was filed, it was inapplicable to the action. See Reichert v. Atler, 875
P.2d 384, 391 (N.M. Ct. App. 1992), aff’d, 875 P.2d 375 (N.M. 1994).
4 The holding in Rizzo was subsequently limited by the New Mexico
legislature. See Reichert v. Atler, 875 P.2d 384, 391 (N.M. App. 1992)
(“Following our Supreme Court’s decision in Scott . . . our legislature
enacted legislation continuing the doctrine of joint and several liability in
certain situations”), aff’d, 875 P.2d 379 (N.M. 1994).

That was precisely the conclusion that courts in Tennessee and California reached in judicially abolishing the concept that a plaintiff’s contributory negligence barred that plaintiff from any recovery. The reasoning of those decisions applies to the present judicial amendment of the common law.
In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Supreme Court of Tennessee concluded that it was “time to abandon the outmoded and unjust common law doctrine of contributory negligence and adopt in its place a system of comparative fault.”5 Id. at 56. The court implemented a. “49 percent rule” holding that, “so long as a plaintiff’s negligence remains less than the defendant’s negligence[,] the plaintiff may recover.” Id. at 57. The court recognized that the Tennessee legislature could have abolished the inequitable common law doctrine of contributory negligence. Id. at 56. However, because the doctrine of contributory negligence was “conceived in the judicial womb,” the court reasoned that the judiciary could abrogate the doctrine. Id. The court noted that ‘legislative inaction has never prevented judicial abolition of obsolete common law doctrines.” Id. Having addressed a plaintiff’s comparative negligence, McIntyre went on in dicta to examine comparative liability among defendant tortfeasors. The court reasoned that comparative liability among defendants would promote fairness and complained that joint and several liability could “fortuitously impose a degree of liability that is out of all proportion with fault.” Id. at 58.
California’s Supreme Court reached the same conclusions in Li. v. Yellow Cab Company of California, 532 P.2d 1226 (Cal. 1975). Rejecting charges of judicial activism and violation of “separation of powers,” the court declined to abstain on the issue of a plaintiff’s comparative negligence, recognized the practical difficulties and complexities facing a court creating a comparative negligence scheme, and imposed the rule that a plaintiff’s recovery would be reduced in proportion to the plaintiff’s negligence. See generally id. The court opined that the California legislature had left for “further judicial development” the issue of how to treat a plaintiff’s negligence. Id. at 1233.
[4] We hold that, in this jurisdiction, apportionment is a proper subject for judicial development. The trial court’s apportionment decision in this case is consistent with the law of American Samoa. This jurisdiction has no statute requiring joint and several liability in all cases. The trial
5 This system varied from Tennessee’s common law of contributory
negligence which barred a plaintiff’s recovery when the plaintiff had any
fault in bringing about his or her damages. See McIntyre, 833 S.W.2d at


court’s method of apportionment mirrors the statutory method for determining the effect of a plaintiff’s negligence. See A.S.C.A. § 43.5101 (1992). The legislature, having had ample opportunity to react to trial court decisions from several years ago apportioning damages among defendant tortfeasors, has seen fit to do nothing, thereby allowing the further judicial application and development of apportionment principles. The parties have presented no record of any legislative interest in taking the matter away from the judicial arena. Under these circumstances, the trial court in this case correctly imposed apportionment.
At least one trial court decision suggests that intentional tortfeasors like Fuala`au may not benefit from apportionment. See, e.g., Fiaui, 27 A.S.R.2d at 40-42 (holding that, even if damages could have been ascertained with reasonable certainty, apportionment would not have been appropriate because “joint and several liability remains the rule for intentional torts”). It may be that there are other situations in which apportionment will be found inappropriate. We need not flesh out the law of apportionment here to address such situations. We do not declare that all judicial permutations of the common law are permissible. We say only that the apportionment ordered by the trial court here was well within what is allowed by the law of American Samoa.
[5-6] Gibbons also claims error in the trial court’s decision to consider apportionment during the damages portion of her trial, rather than during the liability phase. A trial court’s bifurcation decision is reviewed for abuse of discretion. Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996). We conclude that the trial court did not abuse its discretion in choosing to consider apportionment during the damages phase of the trial.
[7] Gibbons cites to United States v. Alcan Aluminum Corporation, 964 F.2d 22 (3d Cir. 1992), for the proposition that the issue of joint and several liability should be resolved during the initial liability phase of the trial. However, Alcan only suggests in dicta that apportionment of fault “is best resolved at the initial liability phase and not at the [damages] phase since it involves precisely relative degrees of liability.” Id. at 270 n.29. While we appreciate the Third Circuit’s logic, we conclude that the better view is that bifurcation can be at any point that “will minimize the overlap in evidence between the segmented phases or otherwise promote economy and accuracy in adjudication.” Hydrite Chem. Co. v. Calumet Lubricants Co., 47 F.3d 887, 891 (7th Cir. 1995). Furthermore, Gibbons has cited no evidence in the record that the trial court’s decision was so contrary to these concerns of judicial economy and efficiency that it raised to the level of an abuse of discretion. Accordingly, we reject her claim on this issue.

B. The Trial Court Properly Taxed Gibbons’ Damages
Gibbons argues that the trial court erred by deducting taxes from her award of lost past and future wages. She contends that these wages arose from a tort-type physical injury award, and therefore are excludable from her taxable gross income. We agree that ASG may not tax Gibbons’ award for lost wages. The post-judgment taxability of an award, however, is a matter distinct from the proper calculation of that award in the first instance. We hold that the court properly reduced the award for lost wages so that Gibbons would be accurately compensated for her losses.
American Samoa’s tax laws incorporate by reference the United States Internal Revenue Code, Title 26 of the United States Code. A.S.C.A. § 11.0403(a) (2000) (“The income tax and the income tax rules, in force in the United States of America and those which may hereafter be enacted or adopted, where not clearly inapplicable or incompatible with the intent of this section, are adopted by American Samoa, and shall be deemed to impose a separate territorial income tax, payable to the government”).
[8] The trial court correctly considered income taxes when determining Gibbons’ past and future income damages. Damages for personal injuries are imposed to compensate victims for the losses, expenses, and suffering caused by their injuries. See, e.g., 2 Dan B. Dobbs, Dobbs Law of Remedies § 8.1(1) (2d ed. 1993). A person’s income tax is certainly a “relevant factor” in determining his or her actual monetary loss. See Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 493-94 (1980). When a court fails to reduce a victim’s damage award for lost wages by taxes that he or she would have paid, the victim is overcompensated. Accordingly, we follow those jurisdictions in which the fairer rule of deducting taxes from lost wage awards when practicable is applied. See, e.g., Furumizo v. United States, 245 F. Supp. 981, 1014 (D. Haw. 1965), aff’d, 381 F.2d 965 (9th Cir. 1967). This rule compensates the victim for damages actually suffered.
Had Gibbons not been raped, she would have continued in her employment and her earnings would have been taxed. Had the trial court not deducted for taxes, Gibbons would never have been taxed on her wages, as the award would not have been included in her “gross income.” In the version of 26 U.S.C. § 104(a)(2) applicable to this case, taxable gross income does not include “the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness.” 26 U.S.C. § 104(a)(2)

(1999).6
[9] The Supreme Court in Commissioner v. Schleier, 515 U.S. 323, 337 (1995), emphasized two guidelines for exclusion under § 104(a)(2). The Court held that an award or settlement could be exempt from taxation under § 104(a)(2) only if: (1) the claim was based on “tort or tort type rights” and (2) the damages were received on account of “personal [physical] injuries or [physical] sickness.” Id. (incorporating the 1996 amendments to 104(a)(2)). That case involved a claim that an employee had been fired in violation of the Age Discrimination in Employment Act of 1961. At issue was the question of whether a “backpay” settlement for age discrimination was entirely “independent of the existence or extent of any personal injury.” The Court held that the “backpay” settlement was attributable to the discrimination, was not on account of personal injury or sickness, and was therefore taxable. Id. at 330-31. In discussing that issue, the court, in dicta, stated that, if a plaintiff were injured in an automobile accident, any settlement compensating that plaintiff for those injuries would not be taxed under § 104(a)(2). Not even the payment for wages lost as a result of the accident would be included in “gross income,” as they would be on account of personal injuries. Id. at 329-30.7
6 In pertinent part, the prior version of § 104(a)(2) was amended in 1996
to limit damage exclusions to those awarded for “personal physical
injuries or physical sickness.” 26 U.S.C. § 104, Historical & Statutory
Notes for 1996 Amendments (noting that “physical” was added before
the words “injuries” and “sickness”).
Pursuant to Landgraf v. USI Film Productions, 511 U.S. 244, 273
(1994), we apply a two-step analysis to determine which version of a
statute applies. We first examine whether Congress has pronounced an
amended statute’s proper reach. If it has not, then we apply the “judicial
default rules” and examine whether the statute would have an improper
retroactive effect, “i.e., whether it would impair rights a party possessed
when he acted, increase a party’s liability for past conduct, or impose
new duties with respect to transactions already completed.” Id. at 280.
Congress explicitly stated that the 1996 amendment was applicable in
tax years after August 20, 1996, to amounts received. Small Business
Job Protection Act of 1996, Pub. L. 104-188, § 1605 (Aug. 20, 1996).
Accordingly, we apply the amended version of 104(a)(2) to this action,
although we note that the result would be the same under either version.
7 In 1996, the Supreme Court was again called upon to examine the
scope of 104(a)(2). This time, the issue before the Court was whether
punitive damages received in a tort suit for personal injuries were
excludable under § 104(a)(2). O’Gilvie v. United States, 519 U.S. 79, 81
(1996). In the course of its discussion, the Court noted that physically

Gibbons satisfies the two-part test set forth in Schleier. Her award for lost wages was based on “tort or tort type rights,” as her claim for damages was based on ASG’s negligence in allowing Fuala`au to escape. Moreover, the lost wages were clearly on account of physical injuries arising from her rape by Fuala`au. Accordingly, the lost past and future wages awarded to Gibbons are excludable from Gibbons’ “gross income” under § 104(a) (2). The trial court’s consideration of taxes in setting the award was therefore the only way to ensure that Gibbons was awarded only what she would have received in wages had she not been raped.
We recognize that many jurisdictions hold, at least in wrongful death actions, that the income tax consequences of an award should not be taken into account. See, e.g., Johnson v. Manhattan & Bronx Surface Transit Operating Auth., 519 N.E.2d 326, 328-29 (N.Y. 1988); Grand Trust Corn Exch. Bank v. Phila. Trans. Co., 190 A.2d 293, 298 (Pa. 1983). These courts reason that a determination of after-tax or net income is too speculative. Johnson, 519 N.E.2d at 328-29. Other courts hold that a deduction of taxes is too speculative for future earnings, but allowable for past lost wages because taxes can actually be determined for past lost wages. See, e.g., Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 178 (3d Cir. 1977) (applying Virgin Islands law). The reasoning in Norfolk & Western Railway Company v. Liepelt is particularly instructive on this point.
[10] Norfolk held that a trial court in a wrongful death suit under the Federal Employers’ Liability Act should have given a requested instruction informing the jury that a victim would not pay taxes on any damage award. Norfolk, 444 U.S. at 498. In so holding, the Court reasoned that determining a victim’s after-tax earnings was not too speculative or complex for a jury. Id. at 494. Determining after-tax earnings was similar to figuring out future employment itself, future health, future personal expenditures, future interest rates, and future inflation. Id. All involved some measure of guesswork for which experts could provide guidance. Id. When an award for lost wages is
injured persons with judgments or settlements were in a better position
from a tax perspective than they would have been in had they not been
injured. The Court characterized this as an “anomaly.” Id. at 87.
Applying Schleier and O’Gilvie, other courts have recognized that lost
wages are excluded from “gross income” under § 104(a)(2). See Ervin v.
Comm’r of Internal Revenue, TC Memo 2002-134 (United States Tax
Court 2002); Collins v. Comm’r of Internal Revenue, T.C. Memo 2002-
115.

not subject to post-judgment taxation, we hold, consistent with Norfolk, that a trial court may properly reduce an award for lost wages by such taxes as the court has a reasonable basis for finding the victim would have owed on those wages. Gibbons’ award for lost wages was not subject to post-judgment taxation, and the trial court had before it sufficient evidence on which to base its determination of the taxes Gibbons would have had to pay on her earnings had she continued to be employed. Therefore, the trial court’s reduction of Gibbons’ lost wages to reflect taxes was proper.

Conclusion

Because we find no error in the apportionment of damages or the reduction of Gibbons’ lost wages by her estimated taxes, we AFFIRM.
It is so ordered.

 

ULUFALEILUPE SAFUE,v.UIAGALELEI IONA


 

ULUFALEILUPE SAFUE, Appellant,
v.
UIAGALELEI IONA, Appellee
High Court of American Samoa
Appellate Division
AP No. 25-98
Consolidated Cases:
LT No. 31-91
LT No. 46-92
LT No. 17-94
LT No. 17-95
November 22, 2002

 

[1] Collateral estoppel, or issue preclusion, bars the relitigation of issues actually adjudicated in previous litigation between the same parties.
[2] To foreclose relitigation of an issue under collateral estoppel: 1) the issue at stake must be identical to the one alleged in the prior litigation;
2) the issue must have been actually litigated in the prior litigation; and 3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action.
[3] The party claiming issue preclusion has the burden of proving each element necessary to bar relitigation of the issue.
[4] Credibility determinations are the prerogative of the trial court and an appellate court will not upset those determinations.
[5] Family history and tradition, standing alone, does not constitute substantial evidence when there is direct evidence to the contrary.
Before WALLACE,* Acting Associate Justice, MOLLWAY,** Acting Associate Justice, MAMEA, Associate Judge, TUPUIVAO, Associate Judge.
Counsel: For Appellant Ulufaleilupe Safue, Gata E. Gurr, Esq.
For Appellee Uiagalelei Iona, Katopau T. Ainu`u, Esq.
OPINION AND ORDER
Introduction
This appeal arises out of numerous consolidated cases involving land disputes between Ulufaleilupe Safue, the representative of the Ulufale Family, and Uiagalelei Iona, the representative of the Uiagalelei family. One of the disputes, LT No. 31-9l, concerns a half-acre property that the trial court found belongs to the Uiagaleiei family. The Ulufale family appeals, arguing that the trial court should have found that the Ulufale family owned the property based on issue preclusion. We disagree, as prior litigation did not dispose of the Uiagalelei family’s ownership claim.
The Ulufale family next argues that the trial court lacked substantial evidence on which to base its decision that the Uiagalelei family owns the half-acre property. We disagree, as the trial court received evidence that supported its decision.
* The Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeal for the Ninth Circuit, sitting by designation of the
Secretary of the Interior.
** The Honorable Susan Oki Mollway, District Judge, United States
District Court for the District of Hawaii, sitting by designation of the
Secretary of the Interior.

The other cases, LT. No 46-92, LT No. 17-94, and LT No. 17-95, involve a dispute over the ownership of approximately ten acres of land. The Ulufale family argues that, with respect to these ten acres, the trial court’s decision in favor of the Uiagalelei family was not supported by substantial evidence. Again, we disagree, as there was evidence supporting the award of the property to the Uiagalelei family.
Accordingly, this court affirms the trial court’s decision that the properties in dispute belong to the Uiagalelei family.
Analysis
A. The Trial Court’s Award of the Half-Acre Property to the Uiagalelei Family is Affirmed.
1. Issue Preclusion Does Not Apply to this Case
The Ulufale family first argues that the trial court’s decision awarding the half-acre property to the Uiagalelei family should be reversed in light of the decision in an earlier case. We do not read the appellate decision in the earlier case as disposing of the ownership issue.
The earlier action was brought by the Uiagalelei family to evict the Ulufale family from the half-acre property in issue here. The trial court denied the eviction request on the ground that the Ulufale family had established its ownership of the half-acre property. On appeal, this court affirmed the denial of the eviction request but noted that the trial court’s findings were “not dispositive of the question of title to the land.” Uiagalelei v. Ulufale, 26 A.S.R.2d 118, 119 (App. Div. 1994). This court further stated that the “true holder of title will have to be left to further determination.” Id.
The Ulufale family argues that the earlier appellate decision should be read as providing that the eviction action resolved the issue of ownership only as between the Ulufale family and the Uiagalelei family leaving open the possibility that other persons not party to the eviction action might object to the Ulufale family’s claim of ownership in a separate title dispute. If that were all that had been intended by the earlier decision, this court need never have stated that the issue of title was left to further determination. It went without saying that persons who were not party to the eviction action could not have their ownership claims determined by the eviction ruling in which they had no opportunity to participate. This court’s 1994 decision clearly means something more than that.
The 1994 decision was limited to an affirmance of only the eviction

issue. This court said, “The trial court’s opinion, as it specifically decides the eviction action, however, is hereby AFFIRMED.” Id. at 119 In its specific reference to the eviction action, this court was affirming the result, which was only the denial of the eviction request. A ruling on ownership was not necessary to the appellate decision, and had not been necessary to the trial court’s decision. The trial court had only needed to determine whether, as the plaintiff, the Uiagalelei family had met its burden of showing entitlement to eviction by a preponderance of the evidence. If the Uiagalelei family failed to meet its burden, eviction had to be denied. It was not necessary for the trial court to go further and determine that the Ulufale family owned the property. Thus, any statement by the trial court in the eviction action that the Ulufale family owned the half-acre property was dicta. Affirmance did not turn on ownership. Affirmance was justified on the ground that the Uiagelelei family had failed to meet its burden in seeking eviction. Thus, while affirming the denial of eviction, the earlier appellate decision did not determine that the Ulufale family’s ownership claim prevailed over the Uiagalelei family’s ownership claim.
[1-2] The “relitigation of issues actually adjudicated in previous litigation between the same parties” is barred by issue preclusion, also known as collateral estoppel.1 Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th Cir 1995) (quoting Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992)), as amended on rehearing, 75 F.3d 1391 (9th Cir. 1996). To foreclose relitigation of an issue under collateral estoppel: “(1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action.” Offshore Sportswear, Inc. v. Vuarnet Int’l, B.V., 114 F.3d 848, 850 (9th Cir. 1997) (quoting Clark, 966 F.2d at 1320).
1 The parties have spoken of the issue as being one of res judicata. That
term, while sometimes used for claim preclusion, is sometimes used to
refer to both claim preclusion and issue preclusion. See Migra v. Warren
City Sch. Dist. Bd. of Educ., 45 U.S. 75, 77 n.1 (1984) (“Res judicata is
often analyzed further to consist of two preclusion concepts: ‘issue
preclusion’ and ‘claim preclusion’”). Claim preclusion provides that a
final judgment on the merits of an action precludes the parties from
relitigating all issues connected with the action that were raised or could
have been raised in that action. Rein v. Providian Fin. Corp., 270 F.3d
895, 898-99 (9th Cir. 2001). The Ulufale family did not argue that title
to the half-acre property could have been litigated in the eviction action.
Accordingly, we do not address whether claim preclusion applies.

[3] The Ulufale family argues that the “very issue of ownership was raised” in the eviction action and that the court in the eviction action “held that the land involved belonged to the Ulufaleilupe family by a preponderance of the evidence.” As the party claiming issue preclusion, the Ulufale family has the burden of demonstrating that ownership of the land was actually litigated and necessarily determined in the eviction action. See Clark, 966 F.2d at 1321. While ownership was clearly raised in the earlier case, the prior decision does not, on its face, show that a determination as to ownership was necessary to the eviction decision. For that reason, the Ulufale family may not rest its argument on the prior decision alone. The Ulufale family had to introduce a sufficient record of the prior proceeding to allow the court to determine not only the exact issues previously litigated, but also the necessity in the earlier case of the determination on which the Ulufale family now relies. Id. Given the absence of such a record, this court cannot conclude that the trial court in the eviction action necessarily decided ownership of the half-acre property. Accordingly, the Ulufale family has not demonstrated that the trial court erred in declining to apply issue preclusion.
2. Substantial Evidence Supports the Trial Court’s Decision to Award the Half-Acre Property to the Uiagalelei Family
Appellants who seek to overturn a trial court’s findings of fact on appeal bear the “heavy burden of showing that these findings were ‘clearly erroneous.’” Toleafoa v. Tiaipula, 12 A.S.R.2d 56, 57 (App Div. 1989); see also A.S.C.A. § 43.0801(b). A finding of fact is clearly erroneous “when the entire record produces the definite and firm conviction that the court below committed a mistake.” E.W. Truck & Equip. Co. v. Coulter, 20 AS.R.2d 88, 92 (App. Div. 1992).
In reviewing for clear error, “the question is whether there was substantial evidence to support the trial court’s conclusions.” Moea`i v. A1ai’a, 12 A.S.R.2d 91, 93 (App. Div. 1989). The appellate court will not disturb the trial court’s findings when they are supported by substantial evidence, even if the appellant’s position is also supported by substantial evidence. Afoa v. Asi, 20 A.S.R.2d 81, 83 (App. Div. 1992). “It is not within the province of the appellate court to reweigh the evidence and interfere with a decision based on the lower court’s choice of one version of the facts over another.” Utuutuvanu v. Mataituli, 12 A.S.R.2d 88, 90 (App. Div. 1989). Credibility of witnesses is “uniquely the prerogative of the trial court.” Id.; accord Afoa, 20 AS.R.2d at 83. In other words, substantial evidence exists to support a finding of fact when a reasonable person could reach the factual determination based on the evidence presented.

The Ulufale family claims that the trial court’s decision awarding title to the half-acre property to the Uiagalelei family is clearly erroneous because it is not supported by substantial evidence. We disagree. In addition to considering family history testimony from both sides, the trial court noted that the disputed land was entirely surrounded by Uiagalelei family land and buildings. The trial court relied on this as evidence that the disputed land was owned by the Uiagalelei family. This was proper.2 While the Ulufale family also points to its occupation of the disputed land as evidence of ownership, occupation of land by one family is not inconsistent with ownership by another family. The occupation may have been with the permission of the owning family. Leota v. Faumuina, 4 A.S.R.2d 11, 12 (App. Div. 1997). A reasonable person could have concluded from this evidence that the half-acre parcel belongs to the Uiagalelei family despite other evidence indicating that the property belongs to the Ulufale family. This Court therefore affirms the trial court’s decision to award title to the property to the Uiagalelei family.
B. Substantial Evidence Supports the Trial Court’s Decision to Award the Ten-Acre Property to the Uiagalelei Family
The Ulufale family next contends that the trial court’s decision to award the ten-acre property to the Uiagalelei family was clearly erroneous because it was not supported by substantial evidence. Again, we disagree.
[4] The trial court’s finding that the Uiagalelei family owns the ten acres of land was supported by substantial evidence. This included testimony from Uiagalelei concerning both personal knowledge he had about the land as well as family history relayed by his late father, the family’s previous senior matai. Uiagalelei testified as to various landmarks and monuments establishing the boundaries of his survey, as well as to his family’s historic and recent use and control of the land. The trial court
2 The Ulufale family relies on Ifopo v. Siatu`u, 10 A.S.R.2d 66, 74 (Land
& Titles Div. 1989), for the proposition that this was not persuasive
evidence. This reliance is misplaced. In Ifopo, the plaintiff claimed that
the disputed land was communal land, even though it had been
registered, as individual land more than forty years earlier. See id. at 68.
The court declined to overturn the registrar’s records based on the
plaintiff’s argument that, because the disputed land was surrounded by
communal land, the disputed land must also be communal land. See id.
at 74. Ifopo does not stand for the proposition that the character of
surrounding land may never be used as evidence of ownership of a
parcel of land.

deemed this testimony credible. As credibility determinations are “uniquely the prerogative of the trial court,” Utuutuvanu, 12 A.S.R.2d at 90, this Court will not upset that determination.
[5] The Ulufale family contends that Uiagalelei’s testimony does not constitute substantial evidence because it is based on hearsay. While it is true that “family history and tradition . . . hardly, without more, affords substantial evidence in the face of direct evidence to the contrary,” see Tupuola v. Tu`ufuli, 1 A.S.R.2d 80, 81 (App. Div 1983), the trial court’s finding was supported by additional evidence. Monuments, family houses, graves, a pigsty wall, and other traditional boundary markers corroborated the testimony of Uiagalelei. The trial court accepted the Uiagalelei family’s position on boundaries, noting that the Ulufale family’s survey did not rely on any ascertainable monuments and that the Ulufale family was claiming land containing Uiagalelei family members’ homes and graves. Finally, the court relied on the Uiagalelei family’s continuing open use and occupation of the disputed land as evidence of ownership by that family. This evidence certainly supports the trial court’s determination that the ten-acre property belongs to the Uiagalelei family.
While the Ulufale family points to other evidence supporting its claim, the test in any review for clear error is not whether the appellant’s position is also supported by substantial evidence, but simply whether the appellee’s position is supported by substantial evidence. As the Uiagalelei family’s position is supported by substantial evidence, the trial court decision is affirmed.
It is so ordered.

 

TUSI PASI TIAPULA, SAVALIGA MASUNU, and KOLOPA P.and LEAPAGATELE FAMILIES, et al., Plaintiffs,v.ISUMU LEAPAGATELEÆS CHILDREN, et al


 

TUSI PASI TIAPULA, SAVALIGA MASUNU, and KOLOPA P.
TUIASOSOPO, for themselves and on behalf of the PAEPAEULI
and LEAPAGATELE FAMILIES, et al., Plaintiffs,
v.
ISUMU LEAPAGATELE’S CHILDREN, et al., Defendants.
High Court of American Samoa
Land and Titles Division
LT No. 10-91
LT No. 33-95
LT No. 35-95
May 17, 2002

 

[1] The doctrine of res judicata holds that a final judgment on the merits
in an action bars a later action involving the same parties, or their
privies, and the same issues.
[2] In American Samoa there is a presumption favoring communal
ownership of land.
[3] A family member usually cannot adversely possess an assigned
portion of his family’s communal land and acquire individual title to the
land; however, a family member can acquire title to his family’s
communal land by adversely possessing it for 30 years, pursuant to
A.S.C.A. § 37.0120.
[4] Possession is adverse if it is exclusive, continuous, open, notorious,
and hostile to another person’s ownership for the 30-year statutory
period.

[5] A family member cannot adversely possess his family’s communal
land unless he first gives actual notice to other family members that he
claims individual ownership of the land.
[6] Where family member made it clear to family sa`o that he claimed
the land as his individually owned property, such action constituted
actual notice to the family of his ownership claim.
[7] Where family member and his immediate family occupied and used
communal land without any contrary occupancy or other interference by
other members of the family and possessed land exclusively,
continuously, openly, notoriously, and hostilely to family’s claim of
ownership for a period of approximately 41 years, family member
acquired title to the land by adverse possession.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Plaintiffs, Gata E. Gurr
For Defendants Isumu Leapagatele’s Children, S. Salanoa
Aumoeualogo
For Defendants Vaiga Logo and Lagiula Kaleuati, Afoa L.
Su`esu`e Lutu
For Defendants Sesilla Vollrath, Seigfried Vollrath, Jr. and
Gisela Vollrath, Marie A. Lafaele
OPINION AND ORDER
(Trial Phase I)

Leapagatele Kesi (“Leapaga”), as the sa`o (head chief) of plaintiff
Leapagatele Family (“Leapaga family”), commenced this prolonged
litigation in 1991 when he filed LT No. 10-91. Leapaga later died and
was replaced by the three family members, the plaintiffs now named as
individuals in the case caption. Isumu Leapagatele (“Isumu”) and
defendant Isumu’s Children (“Isumu’s children”), along with several
other individuals, were the original defendants in LT No. 10-91. Isumu
also died, leaving his children as the defendants representing his and
their interests.
LT No. 33-95 and LT No. 35-95 were also filed, and the three actions
were consolidated. Thus, as the litigation progressed, numerous other
individuals and entities were added as defendants in LT No. 10-91 or as
parties to the other two actions.
Leapaga initiated LT No, 10-91 to set aside the registration by the

Territorial Registrar on January 11, 1972, of land named “Leatuvai,”
consisting of approximately 12.696 acres, in the Village of Nu`uuli,
American Samoa, as individually owned land of Isumu and Isumu’s
children, and to quiet title to the same land, surveyed as approximately
13.190 acres and registered on October 15, 1950, as the communal land
of the Paepaeuli family. The 1950 registration was ordered by this Court
in Maluia v. Isumu, 2 A.S.R. 557 (Trial Div. 1950). The title issue
framed in LT No. 10-91 is central to the full determination of these
actions. Isumu and Isumu’s children entered numerous transactions
involving the land with other persons, whose rights in the land are
dependent on the title held by Isumu or Isumu’ s children at the time of
their respective transactions.
The transactions by Isumu and Isumu’s children with third persons are
appropriately included in this litigation. However, they made
management of the trial complex and unwieldy. Therefore, we ordered a
separate trial on the underlying title issue. The parties and their counsel
identified in the counsel section at the head of this decision were the
active participants in the trial.
Facts
Isumu began to clear and cultivate this land in support of his immediate
family many years ago. In Maluia, Isumu maintained that he started to
work the land in 1929. He also admitted that he was on the land with his
father Leapaga Tapili’s permission. Leapaga Tapili was the Leapaga
family’s sa`o from 1906 until 1940. He claimed, in Maluia, that he
authorized Isumu to cultivate the land but not until 1947. However,
Leapaga Tapili was elderly and feeble at the time of Malula. He had
also resigned from the Leapaga title and been replaced by Leapaga
Masunu in 1940. Some evidence in Maluia also indicated that Isumu’s
grandfather Faitala, evidently an untitled member of the Leapaga family,
acquired the land and gave it to Leapaga Tapili at some earlier time.
This at least suggests that Leapaga Tapili had individual ownership of
the land to pass on to Isumu. In light of all these factors, however, we
are persuaded that Isumu first went on the land by permissive
occupancy, at some juncture during the portion of Leapaga Tapili’s
tenure as the Leapaga family’s sa`o from 1929 until 1940.
In 1949, Isumu had the land surveyed and offered to register it as his
individually owned land. Six objectors came forth. The matter was
adjudicated in Maluia. Isumu emphatically testified during the trial in
Maluia that he individually owned the land. The Court found, however,
that the land was communal land, and that Isumu was on the land under
the authority of his father Leapaga Tapili as the sa`o of the Leapaga

family. The Court also found the existence of the Paepaeuli family of
Nu`uuli, comprised of six matai (chiefs) who participated in the action
and were identified as the Lavata`i, Maluia, Leapaga, Fagaima, Taumua,
and Tonu titles. On this basis, the Maluia Court held that the land was
communal land of the Paepaeuli family. On October 15, 1950, the land
was registered as the Paepaeuli family’s communal land by court order.
Clearly, however, based on the evidence in the present case, there is no
Paepaeuli family of Nu`uuli. The Lavata`i, Maluia, and Leapaga are
matai titles from Nu`uuli. The Fagaima title is from the Village of
Tafuna. Taumua and Tonu are not known matai titles, and apparently the
persons so named in Maluia were actually untitled members of presently
unknown families. “Paepaeuli” is the name associated with the site of the
Leapaga guest house.
We also note that in Maluia, the holder of the Puailoa title of Nu`uuli
claimed the land through cultivation by his family’s members. The
Court found, however, that the Puailoa cultivation was outside the land,
but noted that the Puailoa family probably had communally owned land
nearby. This fact, along with evidence in this case, is indicative of
communal land surrounding the land. On the other hand, there is also
other adjacent individually owned land.
Because of Leapaga Tapili’s assignment to Isumu, the Court in Maluia
also permitted Isumu to maintain his plantations on the land. Isumu
continued to occupy and use the land without objection or interference
by the sa`o or members of the Leapaga or any other family for the next
20 years. While the evidence in Maluia showed that the persons held to
be the matai of the fictitious Paepaeuli family cultivated portions of the
land along with Isumu prior to 1950, no one else from the families in the
Paepaeuli group, or any other family, used the land between 1950 and
1970. It appears that Isumu and his family exclusively used the land
during this period.
In 1971, Isumu again had the land surveyed and, this time, offered it for
registration as the individually owned land of himself and his children.
The offer underwent the statutory registration process, no one objected,
and the land was registered on January 11, 1972, as the individually
owned land of Isumu and Isumu’s children.
The parties contested whether Isumu had identical lands surveyed in
1950 and 1971. They presented considerable evidence on this issue. We
are persuaded that both surveys are of the same land and will not dwell
on this evidence in great detail. The total areas of each survey are
certainly not quite the same, approximately 13.190 acres in 1950 and

approximately 12.696 acres in 1971, a difference of about 0.494 of an
acre. However, each survey was done by a different surveyor who may
have used slightly different techniques. Moreover, Magnetic North was
used in surveys prior to 1962, when the present Datum system and True
North were introduced in the territory. These factors can readily result in
somewhat different surveys of the same land. In addition, the land in
each survey has substantially the same boundary configuration and is in
the same location in the field. The only significant difference is the jog
appearing along the portion of the southerly boundary near the
southwesterly corner in the 1950 survey, as distinguished by a generally
straight southerly boundary in the 1971 survey. Finally, the only
professional surveyor who testified opined that the land was essentially
the same in each survey, and we find that he used sound methods and
analysis in reaching this opinion.
Clearly, following the registration in the name of Isumu and Isumu’s
children as individually owned land in 1972, Isumu and his family
continued to occupy and use the land consistently with the authority
purportedly established by the registration. He sold subdivided portions
of the land to third parties, who or whose successors are parties to this
litigation. He actually began this activity as early as 1950 and continued
to enter these transactions up to 1999. One of his daughters entered
additional transactions even after LT No. 10-99 was filed. The specific
circumstances of these transactions are not relevant, however, to
determination of the immediate title issue and, therefore, are not yet in
evidence. Those findings will wait until trial of the separated issues
becomes necessary.
Isumu also permitted other persons in his family to live on the land. In
1973, he allowed his then wife’s relatives to live there, and in 1977, he
signed a separation agreement for their residence. However, after his
wife died and he remarried, his new wife and former wife’s relatives
could not get along harmoniously, and eventually Isumu successfully
evicted the relatives on the ground that they were on the land under a
terminable license. See generally Isumu v. Palaia, 12 A.S.R.2d 98 (Land
& Titles Div. 1989). The evidence even indicates that Leapaga himself
sought Isumu’s permission on occasion to harvest produce from the land.
Again, following Isumu’s registration in early 1972, no other Leapaga
family member, or anyone else without Isumu’s permission, ever
occupied and used the land. Also, no one carried out any objection to
the recorded title and presence of Isumu and Isumu’s children, or to
others’ occupancy and use of the land by Isumu’s subdivision sales or
authorizations until LT No. 10-91 was filed in 1991, approximately 20
years later. Only one aborted effort was made when, in 1978, Leapaga

and another family member made but then abandoned an objection to a
separation agreement signed by Isumu. See generally Isumu v. Leapaga,
LT No. 40-78, slip op. (Land & Titles Div. 1978).
Finally, we point out that Isumu did not provide much, if any, tautua
(traditional service) to the Leapaga title for many years. Based on the
evidence in Maluia, he ceased to render tautua in 1948 or 1949. It also
appears that after 1938 or 1939, Isumu no longer extensively participated
in the Leapaga family’s affairs, and may not even have served his father
Leapaga Tapili, or Leapaga Masunu, who ascended to the title in 1940,
according to Samoan traditions. Isumu certainly did not serve his
brother Leapaga, who took over the title in 1958. Leapaga and Isumu
had a particularly confrontational personal relationship. See generally
Randall v. Leapaga, 25 A.S.R.2d 90 (Land & Titles Div. 1993).
Discussion
Based on the foregoing findings of fact and the discussion on the
following legal issues genuinely raised by these proceedings, we
conclude that the Isumu and Isumu’s children originally, and now
Isumu’s children, own the land as individually owned land.
A. Maluia is not Res Judicata
[1] The doctrine of res judicata is a primary issue in this case. Res
judicata holds that a final judgment on the merits in an action bars a later
action involving the same parties, or their privies, and the same issues.
See Taulago v. Patea, 4 A.S.R.2d 186-87 (Land & Titles Div. 1987);
Te`o v. Estate of Sotoa, 5 A.S.R.2d 80, 97 (Land & Titles Div. 1987),
aff’d Estate of Sotoa v. Te`o, 8 A.S.R.2d 165, 169 (App. Div. 1988). The
policy is aimed at curtailing multiple, vexatious and expensive litigation
and wasted judicial resources. 46 AM. JUR. 2D Judgments § 515 (2000).
The judgment in Maluia held that the land then at issue was the
communal land of the Paepaeuli family of Nu`uuli and directed that the
title be so registered. The parties in this action strenuously put at issue
whether ownership of the land adjudicated in Maluia was the same land
at issue in this action. The land as litigated in 1950 in Maluia and then
registered was not exactly the same size as the land litigated in this
action. The land in the survey presented in Maluia and registered in
1950 was approximately 0.494 of an acre greater in area than the land
registered by Isumu without objection in 1972 and now litigated for
ownership in this action. However, the configuration of the land, except
partially along one boundary, was virtually the same in both lawsuits. A
professional surveyor studied available surveys and related information

and is certain that both registrations are of essentially identical land
areas. The physical differences are, therefore, immaterial for purposes of
applying the res judicata doctrine. We conclude that issue preclusion is
present.
The common identity of the parties or their privies, however, is another
matter. Isumu was a party in both Maluia and the present action. His
children, parties in this action, are his privies for res judicata purposes.
The opposing parties in both cases are, however, a different matter.
The Court in Maluia adjudicated title to the land as the communal land
of the Paepaeuli family of Nu`uuli, comprised of six matai who had
cultivated portions of the land. The Court appeared to hold that the six
identified members of this family owned undivided shares in the land in
the nature of tenancy-in-common interests. Three of the named matai
were sa`o of distinct families in Nu`uuli. One was the sa`o of a family
from Tafuna. The remaining two persons were not titleholders. The
Paepaeuli family does not exist in fact. In essence, the Court created a
fictitious family that was inconsistent with usual Samoan customs
pertaining to families and villages. While it is true that the holder of the
Leapaga title was one of the six members, the court did not recognize his
claim over the land, except in common with the other five members.
The interests of the six members in common in Maluia were distinct
from the interests of the Leapaga family in this case. We therefore
conclude that the judgment in Maluia does not provide party preclusion
for purposes of the issue of ownership of the land in the present
litigation.
B. Isumu Adversely Possessed the Land
[2] The Leapaga family, represented by the three named plaintiffs who
are family members replacing the deceased Leapaga, claims that the land
is the Leapaga family’s communal land. Their claim is entitled to a
presumption favoring communal ownership of land in American Samoa.
Leota v. Faurnuina, 4 A.S.R.2d 11, 13 (App. Div. 1987).
The presence of surrounding communal land is sometimes mentioned in
support of the presumption. Avegalio v. Leatuinauga, 18 A.S.R.2d 9, 11
(Land & Titles Div. 1991). In this case, however, both communal land
and individually owned land are adjacent to the land.
Beyond the presumption, the named plaintiffs’ claim is based in part on
Maluia, even though the judgment in that case held that the fictitious
Paepaeuli family, not the Leapaga family, owned the land as communal
land. The resulting title registration is still in the name of the Paepaeuli

family. Nonetheless, the court in Maluia found that Isumu occupied and
cultivated the land under Leapaga Tapili’s authority, indicative of the
Leapaga family’s communal ownership. Moreover, though Isumu
claimed in Maluia that he cleared the land from virgin bush, he also
admitted that he occupied the land by his sa`o’s designation.
Additionally, the present holder of the Maluia title testified that the land
is the Leapaga family’s communal land.
[3] It appears that the Leapaga family has a legitimate claim to
communal ownership of the land. We acknowledge that a family
member usually cannot adversely possess an assigned portion of his
family’s communal land and acquire individual title to the land in this
manner. See Reid v. Puailoa, 1 A.S.R.2d 85, 88 (Land & Titles Div.
1983) (stating that a family member cannot adversely possess communal
land). The Reid pronouncement, however, was dictum. This Court has
recognized that a family member can acquire title to his family’s
communal land by adverse possession for 30 years, as provided by
A.S.C.A. § 37.0120. Ava v. Logoai, 19 A.S.R.2d 75, 77 (Land & Titles
Div. 1991); Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54, 74 (Land
& Titles Div. 1989).
[4-5] Possession is adverse if it is exclusive, continuous, open, notorious,
and hostile to another person’s ownership for the 30-year statutory
period. Magalei v. Atualevao, 19 A.S.R.2d 86, 92, 94-95 (Land & Titles
Div. 1991). However, a family member cannot adversely possess his
family’s communal land unless he first gives actual notice to other
family members that he claims individual ownership of the land.
Tuanaitau v. Paogofie, 4 A.S.R. 875, 881 (Trial Div. 1963).
[6-7] During the trial in Maluia, if not before, Isumu through his
testimony made it abundantly clear to his father Leapaga Tapili and
Leapaga Masunu, then the family sa`o, that he claimed the land as his
individually owned land. He thus gave actual notice to the Leapaga
family of his ownership claim. Both before the trial, and certainly from
that time forward, Isumu and his immediate family occupied and used
the land without any contrary occupancy or other interference by other
members of the Leapaga family. He and his family possessed the land
exclusively, continuously, openly, notoriously, and hostilely to the
Leapaga family’s claim of ownership. Isumu adversely possessed the
land far in excess of the required 30-year period—approximately 41
years from 1950 until LT No. 10-99 was filed in 1991. This is a classic
case of adverse possession of the land by Isumu and his family as
individually owned land against the Leapaga family’s claim to the land
as communal land. We conclude that as opposed to the Leapaga family,
Isumu acquired title to the land by adverse possession, and Isumu’s

children as his successors retain that title.
C. Separate Issue: The Surveyor’s Compensation
Lawrence P. French (“French”), a professional surveyor, was retained by
the plaintiffs presently named in LT No. 10-99 to perform necessary
professional survey services in the preparation for the trial of this action.
On the day trial began, French requested postponement until the unpaid
balance of his professional fees were paid. We denied the request but
indicated we would order the named plaintiffs to pay the outstanding
amount.
French charged $2,840.00 for his services. His work was substantial and
well done, and his fee is reasonable. As of the time of the trial, the
named plaintiffs had paid him $1,805.00, leaving an unpaid balance of
$1,035.00. Mr. French is entitled to payment of the unpaid balance.
Order
1. Isumu Leapagatele and his children own the land named “Leatuvai,”
consisting of approximately 12.696 acres, in the Village of Nu`uuli, as
their individually owned land.
2. The registration of the land in the name of “ISUMU LEAPAGA &
CHILDREN (AS THEIR INDIVIDUALLY-OWNED LAND)” on
January 7, 1972, in the Territorial Registrar’ Office, is validated and
remains in full force and effect.
3. The registration of the land named “Leatuvai” and consisting of
approximately 13.190 acres in the Village of Nu`uuli in the name of the
“Paepaeuli Family”, as that fictitious family’s communal land, on
October 15, 1950; in the Territorial Registrar’s Office, is voided.
4. The named plaintiffs, Tusipasi Tiapula, Savaliga Masunu, and Kolopa
P. Tuiasosopo shall pay $1,035.00, the unpaid fees for professional
surveyor services, to L.P. French Professional Services, Inc. Payment
shall be made immediately, unless there is agreement on an alternative
payment plan. Payment of the surveyor’s fee is in addition to payment of
usual costs of suit.
It is so ordered.

 

Anoa`i v. Lai


[1] The sa`o has pule or the authority to make decisions about family lands, whereas an untitled family member has no pule or authority to unilaterally deal in family property.

[2] Under Samoan custom, family lands are under the jurisdiction of the matai. 

[3] A unilateral and secret attempt by a matai to give his daughter sole authority over family land to the exclusion of his successors in title is inconsistent with Samoan tradition, and is contrary to statutory law of American Samoa with regard to the alienation of family land.

[4] Under the provisions of A.S.C.A. § 37.0221(a) and (b), native or communal land may, with the approval of the Governor, be leased to any person for any term not exceeding 55 years for any purpose, except for the mining of minerals and cutting of timber.

[5] The term “native proprietor” as used in A.S.C.A. § 37.0221 means the family sa`o or senior matai.

[6] Even if a building located on communal land is considered separate property, the owner of said building must still satisfy the requirements of 307 the Alienation of Land Act in order to lease it.
[7] Under the Alienation of Land Act, the Land Commission is required to meet periodically and make recommendations regarding instruments affecting possession of communal land, including leases.
[8] Communal land on which a structure is located is necessarily encumbered.
[9] The Separation of Structures from Communal Land Act, A.S.C.A. §§ 37.1501 et seq., provides a vehicle for treating what would otherwise be realty into personalty for the sole statutory aim of facilitating secured financing for family members who build on communal land.
[10] The Separation of Structures from Communal Land Act does not repeal the mandates of the Alienation of Land Act with regard to the leasing of native land.
[11] Samoan custom recognizes that an untitled person does not have the right to permit strangers to live on communal land.
[12] The Alienation of Land Act limits the leasing of communal land to terms of 55 years. A.S.C.A. § 37.0221(a).
[13] The 55 year term limitation on leases, included in the Alienation of Land Act, does not have a “house-lease” exception.
[14] Civil penalties assessed pursuant to A.S.C.A. § 37.0230 apply equally to private individuals and public officials whose acts thwart the Governor’s statutory duties.
[15] Leases and subleases in violation of the Alienation of Land Act are mere nullities and where concluded between competent contracting parties, neither can be heard to complain.
[16] In aid of its jurisdiction, the Land and Titles Division of the High Court may invoke the procedural flexibility permitted by A.S.C.A. § 3.0242(b) where it finds it most consistent with natural justice and convenience to continue the case and remand it to the Land Commission.

Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Tumua Anoa`i, Katopau T. Ainu`u
For Michael Lien Shu Lai, Jennifer L. Joneson
For Ta`amuvaigafa T. Iakopo, Asaua Fuimaono
308
OPINION AND ORDER CONTINUING PROCEEDINGS AND
REMANDING MATTER TO LAND COMMISSION
Introduction

This matter concerns a small commercial building in Fagatogo,
commonly known as the BP Building (“the building”), located on land
claimed by the Ta`amuvaigafa (“Ta`amu”) family. The building was
built by the Burns Philip (South Seas) Co. Ltd. (“BP”), in the early
1950s and it was used as one of BP’s merchandizing outlets. At the
time, BP had leased the site from the then sa`o of the Ta`amu family,
Ta`amu Faiumu. The lease term was originally for twenty years but it
was subsequently extended in May 1972, for an additional ten years, by
Ta`amu Iosefo Elisara. In both instances of lease and renewal, the lease
process was handled strictly in accordance with the statute governing the
alienation and leasing of native (communal) land, A.S.C.A. §§ 37.0221
et seq., (the “Alienation of Land Act”). That is, the lease agreement was
routed through the Land Commission and approved by the Governor.
BP’s tenancy finally ended in 1982. In accordance with the terms of the
lease, the building became part of the lessor’s property. Thereafter, the
building remained under the control and direction of the family sa`o up
until the demise of Ta`amu Iosefa Elisara. Following the death of
Ta`amu Iosefa Elisara, the family’s matai title remained vacant for many
years until the succession of defendant Ta`amu Ta`alolo Iakopo in June
1998. In the interim, however, Le`ala Pili (“Le`ala”), a member of the
Ta`amu family, took it upon herself to rent the building out to thirdparties.
She initially let the premises out to Mrs. Nive Reed for an
unspecified rent and term, applying the rental proceeds derived from that
tenancy to the use of her immediate side of the family; namely, the heirs
of Ta`amu Ma`alona.
Le`ala subsequently entered into another lease agreement, again on
behalf of “the Ta`amu Ma`alona heirs,” with plaintiff/cross-defendant
Tumua Anoa`i (“Anoa`i”) for a term of 10 years at a monthly rental of
$800. This instrument, dated April 25, 1995, was accepted by the
Territorial Registrar for recording as a “House Lease,” without regard to
the requirements of the Alienation of Land Act, as more fully discussed
below.
According to Le`ala, she has never received any rents from Anoa`i, but it
was also evident that she did not pursue the unpaid rents with any vigor.
Anoa`i in turn sublet the building to defendant/cross-claimant Michael
309
Lienshui Lai (“Lai”), a “nonnative.” A.S.C.A. § 37.0201(e). This
sublease, executed with Lai on June 15, 1996, provided for a term of 5
years with a graduated monthly rental rate of $2,100 during the first
year, $2,200 during the second, and $2,300 for the remaining years.
Shortly after the current Ta`amu took office, he intervened on the
family’s behalf making a demand upon Lai, who then decided to deal
with the Ta`amu family’s matai. Consequently, Ta`amu, on behalf of
the Ta`amu family, and Lai, as “President Evergreen Corporation, Inc.,”
entered into an entirely separate lease agreement commencing January 1,
1999, for a term of 5 years, at a monthly rental of $2,300.
Findings and Discussion
The proceedings now before the Court first arose with Anoa`i filing suit
against Lai on their sublease agreement. Lai responded with a
counterclaim seeking damages against Anoa`i, alleging the latter’s
failure to renovate the building with rental advances made to him for that
purpose. Additionally, Lai filed an interpleader action joining both
Anoa`i and Ta`amu. Pending final disposition of the matter, the Court
earlier issued an interim order requiring Lai to deposit into registry of the
Court the rental proceeds on interpleader.
Le`ala was called by Anoa`i to explain her dealings with the building.
She testified that the building was not on Ta`amu land, but on communal
land of the Tiumalu family, of which she is also a member. According
to her understanding, Ta`amu Ma`alona, who was also a member of the
Tiumalu family, dealt with BP not as sa`o of the Ta`amu family but as a
member of the Tiumalu family. Le`ala thus, somehow, claims
entitlement to lease the building on behalf of Ta`amu Ma`alona’s
immediate descendants.1
The evidence, however, quite clearly shows that the former Ta`amu
titleholders who dealt with BP were dealing as Ta`amu titleholders rather
than as some dubious sort of agent for the Tiumalu family. The
alienation process giving rise to the BP’s leases, which included
proceedings before the Land Commission and approval by the Governor,
is conspicuously void of any suggestion whatsoever that the demised
1 Le`ala’s legal theory escapes us. Even if the land is the communal
property of the Tiumalu family as claimed, we fail to see how the land
could have possibly devolved to the issue of Ta`amu Ma`alona, as the
territory’s law on descent and distribution does not apply to “communal
land.” See A.S.C.A. § 40.0106 and § 40.0206.
310
premises in question was anything but Ta`amu family property. We
further find that the Ta`amu titleholders who dealt with the Land
Commission in 1953 and 1972 were Ta`amu Faiumu and Ta`amu Elisara
respectively. Also conspicuous over the years to this day is the lack of
any objection or adverse claim to the leasehold site from any of the
Tiumalu titleholders.
We find that the building is the property of the Ta`amu family.
A. Le`ala-to-Anoa`i Lease, Anoa`i-to-Lai Sublease
[1-3] It is black letter law that the sa`o has pule or the authority to make
decisions about family lands. See generally Sagapolutele v.
Sagapolutele, 20 A.S.R.2d 16 (Land & Titles Div. 1991); Lutu v.
Taesaliali`i, 11 A.S.R.2d 80 (Land & Titles Div. 1989); Gi v. Temu, 11
A.S.R.2d 137 (Land & Titles Div, 1989); Coffin v. Mageo, 4 A.S.R. 14
(Trial Div. 1970); Lutu v. Fuimaono, 4 A.S.R. 450 (Trial Div. 1964);
Tiumalu v. Scanlan, 4 A.S.R. 194 (Trial Div. 1961). Conversely, an
untitled family member has no pule or authority to unilaterally deal in
family property. Malaga v. Alaga, 4 A.S.R. 735, 737 (Trial Div. 1966)
(“‘Who can act as a matai?’ The law in American Samoa is quite clear . .
. only a matai has the powers, the authority, the pule of the matai”); Lolo
v. Heirs of Sekio, 4 A.S.R. 477, 481 (Trial Div. 1964) (“[U]nder Samoan
custom, family lands are under the jurisdiction of the matai. . . . A young
man has no authority to permit strangers to live on communal family
lands”). See also Gi v. Temu, 11 A.S.R.2d 137, 141 (Land & Titles Div.
1989) (“A unilateral and . . . secret attempt by [a matai] to give his
daughter sole authority over family land to the exclusion of his
successors in title would seem to have been inconsistent with Samoan
tradition, and would certainly have been contrary to statutory law of
American Samoa with regard to the alienation of family land”).
[4] Quite clearly, Le`ala had no authority, cognizable either in law or in
custom, to lease out Ta`amu family property to Anoa`i. As she was
without right to convey a leasehold estate to Anoa`i, the latter equally
had nothing in the way of a leasehold interest to sublet. Moreover, the
building, as we have found, is a part of the communal property of
Ta`amu family. As such, any lease thereof is subject to the requirements
of the Alienation of Land Act, which in pertinent part provides:
(a) Native [or communal] land may, with the approval of the
Governor, be leased to any person for any term not exceeding
55 years for any purpose, except for the working of minerals
and cutting timber.
(b) Provisional agreements for the leasing of native land as
311
provided in subsection (a) may be entered into with the
native proprietor or proprietors. Every such provisional
agreement, stating in full its terms and conditions, shall
be submitted with a plan showing the situation of the land
to
the Governor for approval, and it shall have no validity
until such approval has been signified in writing.
A.S.C.A. § 37.0221 (emphasis added).
[5] None of the lease instruments presented to the Court are in
compliance with statute. The documents pertaining to the lease and
sublease involving Anoa`i are not even in contemplation of § 37.0321(b)
so as to at least qualify as “provisional agreement[s]” pending
gubernatorial approval. That is because the claimed lessor Le`ala does
not qualify as a “native proprietor,” as that term appears in the
enactment. From the cases above discussed, the term “native proprietor”
necessarily references in this instance the family sa`o or senior matai
Ta`amu.
[6-10] Even if the building was the separate property of the heirs of
Ta`amu Ma`alona, and it is clearly not, we fail to see how calling a lease
a “house lease” thereby excludes the transaction from the requirements
of the Alienation of Land Act, applicable to native land leases. First, the
Alienation of Land Act requires the Land Commission to meet
periodically for purposes of “making recommendations respecting the
approval or disapproval of instruments affecting . . . possession of
[communal] land.” A.S.C.A. § 37.0203(b). Leaseholds clearly come
within the reach of this enactment. Moreover, the house-lease stratagem
too conveniently ignores the reality that the communal land on which a
structure is located, is necessarily encumbered. Buildings do not exist in
a vacuum, notwithstanding the Separation of Structures From Communal
Land Act, A.S.C.A. §§ 37.1501 et seq., (the “Separation Act”). This
statute provides a vehicle for treating what would otherwise be realty
into personalty for the sole statutory aim of facilitating secured financing
for family members who build on communal land. The Separation Act
does not purport to do anything more. It certainly does not attempt to in
any way to repeal the mandates of the Alienation of Land Act as it
regulates the leasing of native land.2
2 Cf. Tiumalu v. Levi, 4 A.S.R.3d 272, 274 (Land & Titles Div. 2000)
(“Lease for buildings or portions of a building . . . are not subject to the
requirement that leases of communal land be approved by the
Governor”).
312
The Separation Act clearly does not facilitate the automatic encumbrance
of the situs realty without the agreement of the landowner (that is, the
sa`o of the landowning family). For instance, a mortgagee who takes a
mortgage on a separated structure has, without more, only the salvage
value of the separated structure in the event of foreclosure. Nothing
more. The mortgagee has no interest in the underlying land without
agreement of the landowner (the Samoan family through its sa`o)
properly transferred in accordance with Land Alienation Act.
Similarly with a leasehold situation, it cannot be sensibly suggested that
the lease of a separated house or building does not involve the situs
realty. To the contrary, the lease of a house or building also inextricably
involves the transfer of “possession,” A.S.C.A. § 37.0203(c), of the situs
realty. This hard and fast reality simply cannot be blissfully ignored on
some vague assumption that the Separation Act has somehow otherwise
adjusted property rights.
Moreover, the functionality of any house or building is meaningful only
in context that include such real property incidents such as rights of
ingress/egress and access to a certain curtilage area for parking and other
attendant needs. Again, buildings do not exist in a vacuum, and there is
absolutely nothing in the Separation Act that remotely suggests that
these sort of rights are part and parcel of the fictional statutory state of
separation.
[11-13] Furthermore, and from a policy3 point of view, it does not take
too much imagination to picture the sort of mischief potential with the
“house-lease” ruse. Among other things, this stratagem is anti-fa`a
3 AM. SAMOA REV. CONST. art. 1, § 3 provides:
It shall be the policy of the Government of American Samoa to
protect persons of Samoan ancestry against alienation of their
lands and the destruction of the Samoan way of life and
language, contrary to their best interests. Such legislation as
may be necessary may be enacted to protect the lands, customs,
culture, and traditional Samoan family organization of persons
of Samoan ancestry, and to encourage business enterprises by
such persons. No change in the law respecting the alienation or
transfer of land or any interest therein shall be effective unless
the same be approved by two successive legislatures by a twothirds
vote of the entire membership of each house and by the
Governor.
313
Samoa. It is in derogation of Samoan custom that recognizes that an
untitled person does not have the right to permit strangers to live on
communal land. Heirs of Sekio, 4 A.S.R. at 481. It thus has the potential
for eroding the notion of matai pule, and hence a “cornerstone” of the
fa`a Samoa (the Samoan way of life). Fairholt v. Aulava, 1 A.S.R.2d 73,
78 (Land & Titles Div. 1983) (“The Samoan way of life has twin
cornerstones, the matai system and communal land tenure”). It opens the
door to the extended encumbrance of communal lands (situs realty) to
the exclusion of the matai and family. The Alienation of Land Act limits
the leasing of communal land to terms not exceeding 55 years. A.S.C.A.
§ 37.0221(a). If these limits are not applicable to a “house-lease,” such
would appear to be without any limits as to term. Additionally, the
house-lease ruse would open the door to communal property dealings
which bypass legislative policy regulating the leasing of communal
property, see A.S.C.A. § 37.0221, and it would open the door for
unsupervised “improvident” communal land dealings, A.S.C.A. §
37.0203(c).4
B. Ta`amuvaigafa-to-Lai Lease
[14] With respect to the Ta`amu and Lai lease, this instrument, although
seemingly dated—it was executed February 22, 1999—qualifies as a
“provisional agreement” pending gubernatorial approval in
contemplation of the Alienation of Land Act, A.S.C.A. § 37.0221(b).
The evidence shows that the contracting parties, Ta`amu and Lai with
capacity to enter into a lease of communal land submitted their
concluded, but provisional, lease agreement, together with a plan of the
demised premises as required by § 37.0221(b), to the Land Commission
for approval processing in accordance with the requirements of §
37.0203(b). Notwithstanding this statutory mandate, the Land
Commission inexplicably altered the whole statutory process by
withholding the parties’ leasehold instrument from the Governor solely
on the unelaborated observation that the “Taamuvaigafa matter is being
removed because this is a house lease.” (See Land Comm’n Minutes,
Feb. 18, 2000.) This exceptionary treatment appears even less merited
given the actual terms of the proposed lease agreement which refer to the
demised premises as “that pieces (sic) of land situated in the village of
Fagatogo,” followed by a detailed description of that land in metes and
4 This enactment charges the Land Commission with the duty of
preventing the “improvident alienation” of communal lands. It goes
without saying that the provision in the Ta`amu-to-BP lease that kept the
building part of the lessor’s property upon the expiration of the lease,
was a critical term of the lease that would have featured in the Land
Commission’s favorable deliberations and the Governor’s approval.
314
bounds. The Land Commission thus committed gross error with its
apparent theory that land is not land if you call it something else. We
remind the Land Commission of the civil penalties that flow from any
violations of Chapter 02, of Title 37 (see A.S.C.A. § 37.02305), which
apply equally to private individuals and public officials whose acts
thwart the Governor’s statutory duties.
Conclusions
A. Le`ala-to-Anoa`i Lease, Anoa`i-to-Lai Sublease
[15] We conclude that the Anoa`i lease and sublease are nullities, being
in violation of Alienation of Land Act, A.S.C.A. § 37.0221(b), and being
nullities concluded between competent contracting parties, neither can be
heard to complain. Anoa`i having had nothing to lease to Lai, he has no
claim upon which relief can be based and his complaint should,
therefore, be dismissed. Equally, Lai’s counterclaim against Anoa`i
must also be dismissed. As a nonnative failing to comply with the
mandatory provisions Alienation of Land Act, he is without a remedy.
Specifically, A.S.C.A. § 37.0230 provides in pertinent part provides:
[A]ny nonnative failing to conform to [Title 37] [] chapter
[02] . . . shall be liable to the forfeiture to the owner of land, of
all improvements he may have erected or made on the land
and no action shall lie for recovery of any payment he may
have made or other expenditure he may have incurred in
respect thereof.
Emphasis added.
B. Ta`amuvaigafa-to-Lai Lease
[16] We conclude on Lai’s interpleader action that Ta`amu, on behalf of
the Ta`amu family, has clearly shown superior rights to the land, and
hence the building, over Anoa`i’s claim. We note, however, from the
Land Commission’s file on the Ta`amu and Lai proposed lease, in
evidence as Ex. “8,” that there were a number of objections lodged with
the Land Commission, besides Anoa`i’s. While Anoa`i has had his day
in court, it is not clear to us on the record before us that the other
objectors have. Presumably with the tact taken by the Land Commission
to avoid meeting on the merits of the Ta`amu and Lai proposed lease, the
5 This enactment in pertinent part provides that “any person committing,
or attempting to commit, a breach of a provision of [Title 37] [] chapter
[02] . . . shall be liable to a fine not to exceed $200.”
315
claims of the other objectors, if not voluntarily withdrawn, still remain
pending. Without any of the other objectors before us, full and final
relief sought here by Lai’s interpleader action is not available at this
time. In aid of our jurisdiction, this matter should be continued. We
invoke the procedural flexibility permitted the Land and Titles Division
by A.S.C.A. § 3.0242(b), and find it “most consistent with natural justice
and convenience,” to continue and remand to the Land Commission.
Order
For reasons given, and in aid of our jurisdiction in this matter, the
following orders are entered:
1) Anoa`i’s complaint against Lai on the sublease is dismissed and
Anoa`i shall take nothing thereby.
2) Lai’s cross-complaint against Anoa`i on the sublease is dismissed and
Lai shall take nothing thereby.
3. The Ta`amu/Lai proposed lease is remanded to the Land Commission
and Governor for approval processing in accordance with the
requirements of Land Alienation Act.
4. This matter is continued sine die pending proceedings before the Land
Commission and Governor.
It is so ordered.

 

TUILEPA TUILEATA (TELESIA) FIAME and PALE FE`A (for the TUILEATA FAMILY),v.TUIOLEMOTU FAMILY and DOES I through X


 

TUILEPA TUILEATA (TELESIA) FIAME and
PALE FE`A (for the TUILEATA FAMILY), Plaintiffs,
v.
TUIOLEMOTU FAMILY and DOES I through X, Defendants.
322
High Court of American Samoa
Land and Titles Division
LT No. 11-02
March 27, 2002

 

[1] When the sa`o’s position is vacant, an action for injunctive relief
concerning communal land must be brought by at least two blood male
matai members of the family, over age 18, or if the family does not have
such members, by at least two blood members, over age 18.
[2] The Secretary of Samoan Affairs must issue a certificate of
irreconcilable dispute, following at least two appearances by the parties
for dispute resolution proceedings, before the High Court has jurisdiction
to judicially determine an action relating to a controversy over
communal land.
[3] Where party on contested activities on disputed communal land,
Court could issue interim order, including preliminary injunction, and
stay further proceedings despite the fact that jurisdictional certificate of
irreconcilable dispute had not yet been issued.
[4] If a preliminary injunction applicant demonstrates a legitimate issue
to litigate with more deliberate consideration, the criterion of likely
success on the merits at trial is sufficiently met.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and MAMEA, Associate Judge.
Counsel: For Plaintiffs, Jeffrey Waller
For Defendants, Aitofele Sunia
PRELIMINARY INJUNCTION
On March 19, 2002, plaintiffs Tuilepa Tuileata (Telesia) Faime and Pale
Fe`a for the Tuileata family (“Tuileata family”)1 filed this action to
enjoin defendant Tuiolemotu Family (“Tuiolemotu family”) from
1 The third named plaintiff in the complaint, Fe`afe`aga Tauama II,
advised the court, through the Tuileata Family’s counsel, at the
beginning of the order to show cause hearing on March 26, 2002, that he
was withdrawing from this action.
323
excavation, construction, or work of any kind on, and from other uses of,
land owned by the Tuileata family, known as Olovalu, in the Village of
Malaeloa. The Court denied the Tuileata family’s application for a
temporary restraining order, but we issued an order to show cause for a
hearing the family’s request for a preliminary injunction. The hearing
was held on March 26, 2002. Both counsel were present.
[1] In this action, the Tuileata family seeks injunctive relief in a
controversy involving communal land claimed by both the Tuileata
family and the Tuiolemotu family. Presently, neither family has a sa`o
in office. When the sa`o’s position is vacant, an action for injunctive
relief concerning communal land must, under A.S.C.A. § 43.1309(b), be
brought by at least two blood male matai members of the family, over
age 18, or if the family does not have such members, by at least two
blood members, over age 18. Apparently, the two named plaintiffs
qualify to bring this action under the last alternative, but it is not entirely
clear that the Tuileata family lacks at least two adult blood male matai
members. The Tuiolemotu family did not, however, challenge
compliance with the qualification statute, and for present purposes at
least, we accept the named plaintiffs’ qualifications. Though not free of
doubt, we find the named plaintiffs qualified for immediate purposes in
the absence of definitive contrary evidence.
[2-3] In addition, pursuant to A.S.C.A. § 43.0302, the Secretary of
Samoan Affairs must issue a certificate of irreconcilable dispute,
following at least two appearances by the parties for dispute resolution
proceedings, before this Court has jurisdiction to judicially determine the
dispute. At the time the complaint was filed, one appearance had taken
place, but the second meeting had not yet been scheduled. Resolution
was not achieved at the first meeting before the Secretary, and when the
Tuiolemotu family continued to carry on the activities at issue on the
land, the Tuileata family brought this action. In accordance with
A.S.C.A. § 43.0304, we can, under these circumstances, issue an interim
order, such as a preliminary injunction, when such action is appropriate,
but stay further proceedings unrelated to the necessary interim action
until the jurisdictional certificate of irreconcilable dispute is issued.
Tupua v. Faleafine, 5 A.S.R.2d 131, 133 (Land & Titles Div. 1986).
The Tuiolemotu family’s immediate activates, particularly the cinder
excavation, are resulting in irreparable injury to the land before a trial
can be fairly held on whether a permanent injunction should issue. The
Tuiolemotu family does not contest this fact. Thus, one of the two
criteria forming the basis for a preliminary injunction is met. A.S.C.A. §
43.1301(j) (2).
324
The second criterion, a substantial likelihood that the Tuileata family
will prevail at trial on the merits, A.S.C.A. § 43.1301(j)(1), is not so
readily apparent. As requested by the parties, however, we have
examined the files of several previous cases before this court concerning
the titles to portions of Olovalu.
The file in Tuileata Family v. Amituana`i, 4 A.S.R.2d 168 (Land &
Titles Div. 1987), aff’d 8 A.S.R.2d 173 (App. Div. 1988), is especially
significant for present purposes. The trial court’s decision in that case
determined the ownership of most of Olovalu. However, in light of
overlapping claimed areas, the decision left the area where the cinder pit
is apparently located open to the parties’ negotiated settlement of their
respective boundaries in this area. There is no follow through regarding
these negotiations of record in the file. Moreover, when comparing the
decision with the surveys on file, both the defining boundaries of
Olovalu as a whole and the exact location and sizes of the awarded
Tuileata and Tuiolemotu family lands are not entirely clear to us.
[4] It appears, therefore, that ownership of the land now at issue is an
open issue, and the Tuileata family has made a sufficient factual showing
a good chance of prevailing on the merits. If a preliminary injunction
applicant demonstrates a legitimate issue to litigate with more deliberate
consideration, the criterion of likely success on the merits at trial is
sufficiently met. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101, 103-
104 (Trial Div. 1985).
Accordingly, we will issue the following preliminary injunction.
Order
1. During the pendency of this action, the Tuiolemotu family, its family
members, officers, agents, servants, employees, and attorneys, and those
persons in active concert or participation with them are enjoined from all
new construction of any kind and further excavation of cinders or other
natural materials on the portion of Olovalu claimed by the Tuileata
family as its communal land.
2. A hearing is scheduled on April 8, 2002, at 9:00 a.m. for the purpose
of clearly defining the exact land area affected by this preliminary
injunction. The parties shall come to this hearing prepared to show this
area on existing surveys as precisely as is presently possible.
3. Further proceedings in this action, except as may be related to this
order or other necessary interim orders, are stayed pending compliance
with A.S.C.A. § 43.0302 (a).
It is so ordered.

 

TUILEFANO M. VAELA`A,v.VALENTINO TAUFA`ASAU, UTAIFEAU T. MAUGAASUEGA, FANENE F. KAVA SEALI`ITU F. MAUGA,and MAILO ATONIO


 

TUILEFANO M. VAELA`A, Claimant
v.
VALENTINO TAUFA`ASAU, UTAIFEAU T. MAUGA
ASUEGA, FANENE F. KAVA SEALI`ITU F. MAUGA,
and MAILO ATONIO, Counter-claimants
____________________
[In re Matai Title “MAUGA” of the Village of Pago Pago]
High Court of American Samoa
Land and Titles Division
MT No. 12-98
April 3, 2002

 

[1] At the court’s discretion, it may grant a stay, pending appeal, of the
execution of judgment in a civil action.
[2] The court’s discretion to grant the stay pending appeal should be
exercised only for cause shown and a stay should not be granted
casually.
[3] In order to demonstrate good cause for a stay pending appeal, the
moving party must establish: 1) failure to grant the stay would cause
irreparable harm; 2) a likelihood of success on appeal; and 3) the public
interest would be harmed by not granting the stay.
[4] Monetary loss does not constitute irreparable harm.
[5] Part of assessing irreparable harm when considering a stay involves
the balancing of equities.
[6] Where Appellant sought stay of investiture ceremony pending appeal
of matai title decision, equities weighed against stay, as investiture
ceremony would not affect outcome of appeal and Appellant could
nonetheless attend ceremony and avoid family unrest. Contrarily,
granting stay would negatively impact a significantly greater number of

people which could result in more family turmoil.
[7] A civil appeal is limited to the issues which were raised in the motion
for new trial. The appellate court has no jurisdiction to consider any
other issues.
[8] An appeal which merely suggests that the losing party’s arguments
and factual position were better and should have prevailed, without
showing clear error on the part of the trial court, is not likely to succeed.
[9] Although public interest tends to favor simple solutions without
controversy, where court believed that discord would result if the
investiture ceremony was delayed, where vast majority of family
supported court-sanctioned candidate and were already investing in title
investiture ceremony, and where family had previously delayed matai
selection process for many years, court determined that public interest
could be equally or more greatly harmed by delaying investiture
ceremony as by allowing it to continue.
Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge,
ATIULAGI, Associate Judge and TAUANU`U, Temporary Associate
Judge.
Counsel: For Tuilefano M. Vaela`a, Afoa LS. Lutu and Arthur Ripley,
Jr.
For Utaifeau T.M. Asuega, Asaua Fuimaono
ORDER DENYING MOTION TO STAY
JUDGMENT PENDING APPEAL

On December 14, 2001, this Court entered judgment awarding the matai
title Mauga of Pago Pago to Uta`ifeau T.M. Asuega (“Uta`ifeau”).
Claimant Tuilefano M. Vaela`a (“Tuilefano”) filed a motion for a new
trial, which was denied, and then filed for an appeal. None of the other
candidate-claimants, and hence their respective supporters, have taken
further issue with the trial court’s decision. Claimant Tuilefano now
moves this court to stay the judgment pending his appeal. As Uta`ifeau
has already procured registration of the title, Tuilefano is essentially
asking the court to enjoin the title investiture ceremony that Uta`ifeau
and remaining members of the Mauga family have already begun
planning to take place later this month.
[1-3] The court may grant a stay of execution pending appeal, beyond
the ten days after an order is issued, at the court’s discretion. T.C.R.C.P.
62. The court’s discretion to grant the stay, however, should be

exercised only for cause shown and a stay should not be granted
casually. Asifoa v. Faoa, 71 A.S.R. 10, 12 (App. Div. 1990). The
moving party must establish: 1) failure to grant the stay would cause
irreparable harm; 2) a likelihood of success on appeal; and 3) the public
interest would be harmed by not granting the stay. In re Matai Title
Mulitauaopele, 17 A.S.R.2d 71, 73 (Land & Titles Div. 1990).
Discussion
1. Irreparable Harm
Tuilefano’s arguments for irreparable harm focus on the potential for
disharmony in the family if a title investiture ceremony takes place
without his and his supporter’s participation. As we understand the
argument, there are family members who still support Tuilefano’s
candidacy pending appeal, and who will not be able to exercise their
rights as family members to participate in the investiture ceremony while
the appeal is pending. It is also claimed that these family members who
support his appeal will be ostracized for non-participation. Hence, it is
claimed, disharmony will result.
Tuilefano further argues that if he wins on appeal, and title investiture
has already taken place, there would be disharmony and confusion
concerning the title, and monetary expenses would have been wasted on
the pending ceremony.
[4] First, we reject Tuilefano’s wasted-money argument as constituting
irreparable harm. Monetary loss is the very prototype of reparable harm.
Whether the expense of a Samoan title investiture ceremony might later
prove to be a colossal waste of money, because of a subsequent appellate
ruling, the economic harm resulting would hardly inure to the irreparable
harm of the Mauga family, as a Samoan institution, and to those
members who choose to participate. There is simply no evidence to
suggest this. To the contrary, experience teaches otherwise. There have
been, albeit infrequently, instances whereby the cost of an investiture
ceremony has been for naught, because of a later appellate ruling. But in
these instances, the fa`a Samoa and the traditional institutions of matai
and family have nonetheless continued to endure notwithstanding the
outward economic waste.
Second, the claim to ostracism is just that, a claim (in part attributable to
“golf course” rumors). When Uta`ifeau was confronted with these
claims, he assured under oath that such claims had no basis in fact.
[5-6] Part of assessing irreparable harm when considering a stay involves

the balancing of equities. T.C.R.C.P. 62 (a), (c); Asifoa, 71 A.S.R.2d at
12, 13. If Tuilefano’s motion is denied, he and his supporters would
have a choice—to either attend the investiture ceremony or not attend.
Whether they attend or not has absolutely no prejudicial effect
whatsoever on the merits of Tuilefano’s appeal. Choosing not to attend
would potentially have a negative impact on the harmony of the family.
Choosing to attend, however, while it might be seen by some as a sign of
acquiescence, could equally be viewed by others as a noble effort to
maintain honor, and family harmony, while the appeal is pending.
If the motion is granted, the investiture ceremony, for which the entire
family besides Tuilefano’s supporters is preparing, would be put on hold
until the appeals process is complete. The title would remain
symbolically unfulfilled, and the great majority of the family would
likely be unhappy with the delay, inevitably creating significant discord.
Balancing the equities produces a result in favor of allowing the
investiture to continue as planned. While either result could lead to
discord, granting the stay negatively impacts a significantly greater
number of people which could result in as much or more unrest as not
granting the stay. Additionally, if the stay is not granted, Tuilefano and
his supporters still would have the option to attend, avoiding most of the
potential for discord while not affecting his legal claims in the slightest.
2. Likelihood of Success on Appeal
[7-8] The likelihood of success on appeal is also a factor that weighs in
favor of denying the motion. Tuilefano’s appeal is limited only to those
issues which were raised in his motion for new trial, since the appellate
court has no jurisdiction to consider any issues not raised on his motion
for new trial. See Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 149-50
(App. Div. 1988). A review of Tuilefano’s appeal, combined with his
arguments, submitted both orally and in writing, has hardly shown a high
likelihood of success on appeal. In fact, the thrust of his appeal seems
principally to be in the way of a quarrel with this court’s factual
assessments, void of substantive legal argument. An appeal which
merely suggests that the losing party’s arguments and factual position
were better and should have prevailed, without showing clear error on
the part of the trial court, is not likely to succeed. See Moea`i v. Alai`a,
12 A.S.R.2d 91, 92 (App. Div. 1989); Utuutuvanu v. Mataituli, 12
A.S.R.2d 88, 90 (App. Div. 1989) (“It is not within the province of the
appellate court to reweigh the evidence and interfere with a decision
based on the lower court’s choice of one version of the facts over
another”).
3. Public Interest

[9] Like his arguments concerning irreparable harm, Tuilefano’s efforts
to show that the public interest demands a stay of execution focuses on
the potential discord of allowing an investiture ceremony to take place
while the appeal could still be granted. While it is true that the public
interest would favor a simple solution without controversy, discord
would also result if the pending ceremony is delayed because of the
interests of one faction of the family. None of the other candidates for
this title have challenged the appointment of Uta`ifeau, and they
represent the vast majority of the family, which is apparently already
investing in the title investiture ceremony.
Lastly, as Tuilefano acknowledges, the title Mauga has national and
historical significance. But the title has been vacant for many, many
years while the Mauga heirs struggled with the vicissitudes of a
traditional decision making process that promotes indefinite
postponement in the absence of consensus. In the meantime, Mauga’s
extended family, the Tei ma Anoalo, Matua ma Nofofanau, ma
Anoaloifale, and the village of Pago Pago, have had to sit by patiently
throughout this inordinate time frame. The solidarity of their presence in
court at the hearing of the motion to stay did not escape the attention of
Associate Judges. Undoubtedly, these third-parties no less demand
continuity with their traditional institutions now long held in abeyance
while a successor Mauga titleholder was being sought. These
countervailing factors must, at least for the historically significant
Mauga title, enter into the public interest assessment.
In our view, the public interest could be equally or more greatly harmed
by delaying the investiture ceremony at this point as by allowing it to
continue.
Order
We conclude that claimant has not shown sufficient cause to warrant this
court staying execution of judgment or imposing an injunction on a title
investiture ceremony pending appeal. Accordingly, the motion to stay
execution, and/or for injunctive relief, is denied.
It is so ordered.

 

TOLI TAVITA FUIMAONO,v.AMERICAN SAMOA GOVERNMENT


 

TOLI TAVITA FUIMAONO, Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 05-01
63
November 26, 2002

 

[1] A trial court’s determination as to whether a criminal defendant’s double jeopardy rights have been violated is reviewed de novo.
[2] American Samoa’s double jeopardy clause affords the same protections as does the Federal Constitution.
[3] The double jeopardy clause of American Samoa’s constitution protects an accused against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.
[4] Determination of the “same offense” is the cornerstone of any double jeopardy analysis.
[5] American Samoa utilizes the same-elements test, otherwise known as the ‘Blockburger test,’ which inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars additional punishment and successive prosecution.
[6] A.S.C.A. § 46.3107(4) does not speak to subsequent prosecutions, but is applicable only when determining whether one specific statute allows for multiple convictions arising out of one transaction.
[7] A single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause.
[8] A.S.C.A. § 46.3107(4) did not apply to case where defendant had been charged under three separate statutes, and none of the charges arose out of the same statute.
[9] Trial judge’s findings of facts at a suppression hearing are reviewed for clear error.
[10] A trial judge’s determination that reasonable suspicion existed sufficient to justify a stop is reviewed de novo.
[11] Police officers may conduct a temporary investigative stop of an individual, or his/her vehicle, if the stop is based upon reasonable suspicion.
[12] Reasonable suspicion is based on an objective standard that looks to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant the stop.
[13] Where officer’s stop was based solely on tip from reliable informant that suspect had recently been engaged in a criminal activity, such information was sufficient to warrant a brief investigatory traffic stop.
[14] Where government’s expert witness performed 2 of the 3 standard forensic tests to determine whether substance was marijuana, was unable to perform the third due to the fact that the substance was no longer in plant form, but nonetheless concluded that the substance was marijuana, there was sufficient evidence to support jury’s finding that the substance in defendant’s possession was marijuana.
Before RICHMOND, Associate Justice, WALLACE,* Acting Associate Justice, MOLLWAY,** Acting Associate Justice, MAMEA, Associate Judge, and TUPUIVAO, Associate Judge.
Counsel: For Appellant, Bentley C. Adams III, Asst. Public Defender
For Appellee, John W. Cassell, Asst. Attorney General
OPINION AND ORDER
Fuimaono was convicted by a jury of unlawful possession of the controlled substance of marijuana and possession of prohibited weapons. On appeal, he argues that his convictions should be reversed because 1) his prosecution was barred by double jeopardy; 2) evidence seized from an illegal Terry Stop was used as the basis of the prosecution; and 3) the evidence was insufficient to sustain a guilty verdict. We affirm Fuimaono’s conviction.
I. Factual Background
This case arose out of a traffic stop by police officers Aitasi Samoa and Abel Penitusi. On March 10, 2000, around 9:15 a.m., the two officers were patrolling the Fagatogo marketplace area. The officers received a radio dispatch from the Central Police Station in Fagatogo directing them to investigate a public peace disturbance at Tufono’s Laundromat and relaying the following information: an argument had occurred
* The Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation of the
Secretary of, the Interior.
** The Honorable Susan Oki Mollway, District Judge, United States
District Court for the District of Hawaii, sitting by designation of the
Secretary of the Interior.

between a commercial bus driver and the complainant, the manager of the laundromat; two other men were drinking alcohol inside the bus; and the license number of the bus. The dispatch did not include the complainant’s name, but she had identified herself when she called the police headquarters.
Moments after receiving the dispatch, the two officers spotted a bus entering the main public highway from a direction consistent with having come from the laundromat. The license plate number and the number of occupants matched the complainant’s description, so they pulled the bus over. The officers did not witness the bus driver commit any traffic infractions and stopped the bus based solely on the dispatch information.
Fuimaono was driving the bus. When stopped, he was wearing a waist pouch, and a briefcase was at his left side. Officer Samoa smelled alcohol coming from Fuimaono. Police officers Liusila Brown and Timali Polasi arrived a few minutes later and also smelled alcohol. Officer Brown became the lead investigator. Fuimaono, wearing the waist pouch, was still in the driver’s seat of the bus, and the briefcase was at the same location. After Fuimaono failed a field sobriety test, Brown arrested him for driving under the influence of alcohol or other drugs and cited him for licensing violations. During a pat-down search, Brown retrieved a plastic bag protruding from Fuimaono’s pocket containing a substance the officer recognized as marijuana. Brown also removed what he believed to be a marijuana cigarette from the same pocket. Brown kept the removed items in his possession.
Fuimaono resisted further search, was handcuffed, and taken to the Central Police Station. Brown brought along the briefcase. At the station, he removed the waist pouch from Fuimaono and, while putting back the two items taken at the arrest scene into the pouch, he noticed another apparent marijuana cigarette inside. He then turned Fuimaono, the waist pouch and its contents, and the briefcase over to Sgt. Tauama T. Fe`a, Jr., a police vice and narcotics officer.
Sgt. Fe`a searched the waist pouch and found the two apparent marijuana cigarettes, the plastic bag containing apparent marijuana, other bags, cigarette rolling paper, and rolled up brown paper commonly used to smoke nearly consumed marijuana cigarettes. Sgt. Fe`a also searched the briefcase and found a plastic bag containing apparent marijuana, live bullets for an unlicensable firearm, and 62 explosives known locally as “cherry bombs,” and a long wallet containing an empty plastic bag. He turned over all of these items to the police evidence custodian.

On June 15, 2000, police Lt. Vaito`elau Laumoli performed forensic analysis by microscopic and chemical testing and determined the substances found in the waist pouch and briefcase to be marijuana. Lt. Laumoli is a specially trained drug analyst for the police department.
On April 4, 2000, in the District Court, Fuimaono pled guilty to the misdemeanor offense of reckless driving, A.S.C.A. § 22.0702, in lieu of the driving under the influence charge. The American Samoa Government (“the government”) also dismissed the two vehicular licensing charges. The District Court had jurisdiction over these lesser charges. A.S.C.A. § 3.0302.
On April 28, 2000, the government commenced Fuimaono’s prosecution on the present felony charge of unlawful possession of the controlled substance of marijuana, A.S.C.A. §§ 13.1022, 13.1006, and misdemeanor charge of possession of prohibited weapons, A.S.C.A. §§ 46.4202(a), 46.4220. After Fuimaono was bound over to the High Court, Fuimaono moved in the trial court to dismiss the information on the ground that the charges were barred by double jeopardy. The trial court denied the motion to dismiss, and Fuimaono then moved to suppress the evidence obtained as a result of the vehicle stop and his arrest. The trial court also denied this motion, and the action proceeded to trial by jury.
II. Double Jeopardy
[1] Fuimaono argues that A.S.C.A. § 46.3107(4) barred his prosecution for both possession charges since he had already pled guilty to a crime which arose out of the same course of conduct.1 The trial court rejected his argument. We review de novo whether Fuimaono’s double jeopardy rights were violated. United States v. Stoddard, 111 F.3d 1450, 1454 (9th Cir. 1997).
[2-3] Article I, Section 6 of the Revised Constitution of American Samoa provides in part that “[n]o person shall be subject for the same offense to be twice put in jeopardy of life or liberty.” Similarly, the Fifth Amendment of the United States Constitution provides in part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” We acknowledge what has been implicit in our previous cases: American Samoa’s double jeopardy clause affords the same protections as does the Federal Constitution. See Am. Samoa Gov’t v.
1 The government does not dispute that “jeopardy normally attaches
when the court unconditionally accepts a guilty plea.” United States v.
Baggett, 901 F.2d 1546, 1548 (11th Cir. 1990).

Meleisea, 24 A.S.R.2d 32, 35 (Trial Div. 1993); Am. Samoa Gov’t v. Schuster, 24 A.S.R.2d 15, 16 (Trial Div. 1993); Am. Samoa Gov’t v. Fealofa`i, 24 A.S.R.2d 10, 11 (Trial Div. 1993); Am. Samoa Gov’t v. A.famasaga, 17 A.S.R.2d 145, 150 (Trial Div. 1990); Am. Samoa Gov’t v. Moafanua, 4 A.S.R.2d 33, 34-35 (Trial Div. 1987). Both double jeopardy clauses thus protect the accused against “a second prosecution for the same offense after acquittal[;] . . . a second prosecution for the same offense after conviction[;] . . . [and] multiple punishments for the same offense.” Commonwealth v. Arriaga, 691 N.E.2d 585, 587 (Mass. App. Ct. 1998) (emphasis removed) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
[4-5] Determination of the “same offense” is the cornerstone of any double jeopardy analysis. The federal and territorial constitutions embrace “[t]he same-elements test, sometimes referred to as the ‘Blockburger’ test, [which] inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932); Fealofa`i, 24 A.S.R.2d at 11. However, other tests abound.
The short-lived “same conduct” test provides that, in addition to the Blockburger test, “Double Jeopardy bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady v. Corbin, 495 U.S. 508, 521 (1990), overruled by Dixon, 509 U.S. at 704.
Additionally, the “same transaction” test “requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U.S. 436, 453-54 (1970) (Brennan, J., concurring). While some states have adopted these more stringent tests under their constitutions, they are not the federal standard and not necessarily the standard in American Samoa under Article I, Section 6.
Fuimaono maintains, however, that A.S.C.A. § 46.3107 shows a conscious decision by the Legislature of American Samoa to afford an accused more protection in American Samoa than the federal Constitution. A.S.C.A. § 46.3107 provides in part:
When the same conduct of a person may establish the commission of more than 1 offense, he may be prosecuted for each offense. He may not, however, be convicted of more than 1 offense if:

* * * *
(4) the offense is defined as a continuing course of conduct and the person’s course of conduct was uninterrupted unless the law provides that specific periods of that conduct constitute separate offenses.
The essence of Fuimaono’s claim is that A.S.C.A. § 46.3107(4) encompasses the “same transaction” test. He urges that his second prosecution was barred because the offenses charged were committed during the “same course of conduct” previously prosecuted, which was “uninterrupted,” and the law does not provide “that specific periods of that conduct constitute separate offenses.” He concludes that the government could have avoided this problem by charging all the offenses in one prosecution in one tribunal.
The government counters that A.S.C.A. § 46.3107(4) pertains to the common law doctrine of “continuing offenses.” Furthermore, it interprets Fuimaono’s argument as applying the “same conduct” test and dismisses it as having been overruled in Dixon. While we disagree as to how the government classifies Fuimaono’s argument, we agree with its interpretation of A.S.C.A. § 46.3107(4).
A.S.C.A. § 46.3107(4) is identical to Model Penal Code § 1.07(1)(e). The Comment to section 1.07 of the Model Penal Code explains:
(e) Continuing Course of Conduct. Subsection (1)(e) deals with a continuing course of conduct prohibited by a single statute. It provides that only one conviction is proper based upon a single uninterrupted course of such behavior, unless the statute prescribes that specific periods constitute separate offenses. For example, a person violates an unlawful cohabitation statute only once, no matter how long his unlawful cohabiting continues, where the conduct was not interrupted by the issuance of process or otherwise.
Another good example of when A.S.C.A. § 46.3107(4) is implicated is in the context of sexual offenses. It is possible that a person could violate A.S.C.A. § 46.3611, Sodomy, more than once in a single transaction if he performs a sexual act with the victim on more than one of the defined offending body parts. See A.S.C.A. § 46.3601. In that case, we would rely on A.S.C.A. § 36.3107(4) to determine whether there was an uninterrupted, continuing course of conduct or whether two separate crimes had been committed. See, e.g., Commonwealth v. Arriaga, 691 N.E.2d at 590.
In interpreting Haw. Rev. Stat. § 701-109(1)(e) (1993), which is also

identical to Model Penal Code § l.07(1)(e), State v. Caprio, 937 P.2d 933 (Haw. Ct. App. 1997), observed:
Unlike the double jeopardy clause, which protects a defendant from successive prosecutions after acquittal or conviction, for the “same offense,” and from multiple punishments for the “same offense,” HRS § 701-109 [and A.S.C.A. § 46.3107 are] a multiple offense limitation that protects a defendant from being convicted for certain combinations of offenses arising from the same conduct. 1 P. Robinson, Criminal Law Defenses § 68(a) at 328-29 (1984).
* * * *
The foregoing Commentary and Comments indicate that HRS § 701-109(l)(e) [and A.S.C.A. § 46.3107(4) were] intended to prohibit the State from dividing a crime, defined by statute as a continuing offense, into separate temporal or spatial units, and then charging a defendant with committing several counts of
the same statutory offense, each count based on a separate temporal or spatial unit of the continuing offense.
937 P.2d at 944-45 (emphasis removed).
[6-7] It is clear from this discussion that A.S.C.A. § 46.3107(4), contrary to Fuimaono’s argument, does not speak to subsequent prosecutions.2 Indeed, “the performance of a Blockburger analysis completes the judicial task in a successive prosecution case.” United States v. Morris, 99 F.3d 476, 480 (1st Cir. 1996); see also Arriaga, 691 N.E.2d at 587-88 (explaining appropriate state and federal tests applicable when analyzing prohibition against multiple prosecutions and multiple punishments). Instead, A.S.C.A. § 46.3107(4) is applicable only when determining whether one specific statute allows for multiple convictions arising out of one transaction. In this respect, “[i]t is well settled that a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause.” Morris, 99 F.3d at 480, (quoting Albernaz v. United States, 450 U.S. 333, 344 n.3 (1981) (emphasis added)); accord Missouri v. French, 79 S.W.3d 896, 898-99 (Mo. 2002); Caprio, 937 P.2d at 944.
In applying the foregoing analysis to the case at bar, it is clear that Fuimaono’s second prosecution was not barred by double jeopardy. We
2 We do not here decide what bearing, if any, A.S.C.A. § 46.3107(4) has
upon multiple punishment cases, which is afforded different legal
treatment.

first apply the Blockburger test and determine that each offense charged in the successive prosecution, unlawful possession of a controlled substance and possession of a prohibited weapon, clearly contain elements not found in the offense of reckless driving. Both possession charges require the government to prove, for example, that Fuimaono possessed a prohibited contraband, irrespective of whether or not he was operating a motor vehicle. See A.S.C.A. §§ 13.1022, 46.4202, 22.0702. On the other hand, the charge of reckless driving requires the government to prove that Fuimaono was operating a motor vehicle, irrespective of whether or not he possessed a prohibited substance. Id. The Blockburger test is easily satisfied.
[8] Furthermore, A.S.C.A. § 46.3107(4) is wholly inapplicable to this case. As discussed, that section speaks to multiple convictions arising out of the same statute. In this case, however, Fuimaono was charged under three separate statutes.3
III. The Terry Stop
[9-10] Fuimaono argues that the officers lacked a reasonable articulable suspicion to pull his bus over and, consequently, the evidence obtained subsequent to the arrest should be suppressed as fruit of the poisonous tree.4 We review the trial judge’s findings of facts for clear error. United States v. Michael R., 90 F.3d 340, 345 (9th Cir. 1996). On the other hand, we review de novo whether reasonable suspicion existed justifying the stop. Ornelas v. United States, 517 U.S. 690, 699 (1996).
[11-12] Under Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a temporary investigative stop “if the stop is based upon reasonable suspicion . . . .” United States v. Lopez-Gonzalez, 916 F.2d 1011, 1013 (5th Cir. 1990). “The Terry rationale also permits the investigatory detention of a vehicle.” Id. Reasonable suspicion is based on an objective standard that looks to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the stop].” Terry, 392 U.S. at 21.
[13] The trial judge’s findings in regards to the informant’s tip were not
3 We note that none of the other provisions of A.S.C.A. § 46.3107 are
applicable.
4 In the trial court, the defendant argued not only that the Terry Stop was
invalid but also that the arrest, the search incident to arrest, and
incriminating statements should all have been suppressed. He did not
renew these additional arguments on appeal.

clearly erroneous.5 Because the informant’s tip was reliable, it gave the police officers enough information to warrant a brief investigatory traffic stop. Lopez-Gonzalez, 916 F.2d at 1013. The officers had reasonable suspicion that Fuimaono, who was driving the bus, had recently been engaged in a criminal activity. See A.S.C.A. §§ 27.0532 (Prohibited Places of [Alcohol] Consumption), 46.4501 (Disturbing Public Peace). Because the stop was lawful, nothing found should be suppressed as fruit of a poisonous tree.
IV. Sufficiency of the Evidence
Fuimaono argues that the evidence was insufficient to convict on the count of unlawful possession of a controlled substance because (1) the evidence obtained as a result of the traffic stop should have been suppressed and (2) the government never proved that Fuimaono possessed Cannabis Sativa L, better known as marijuana, but instead only proved he possessed a substance which contained Tetrahydrocannabinols (“THC”). We have already discussed why the evidence obtained from the traffic stop should not be suppressed. We now briefly address Fuimaono’s second contention.
The thrust of Fuimaono’s argument is that the government’s expert, Lt. Laumoli, testified only that his analysis detected the presence of THC in the confiscated substances, and not that the substances themselves were marijuana. We have already held that “the claim that what was found was only [THC] and not marijuana is a distinction this court does not accept.” Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10, 21 (App. Div. 2002). Even more importantly, Fuimaono overlooks the entirety of Lt. Laumoli’s testimony.
[14] Lt. Laumoli testified that there are three tests performed in the forensic analysis to identify marijuana. First, the analyst does a visual examination, separating the plants that are clearly not marijuana. Among other things, the analyst looks at the shape and number of leaves on the plant. Second, the analyst performs a microscopic test. This test involves a close examination of the “glandular hairs,” found in the seeds of the plant, to see if their shape is consistent with the glandular hairs found in marijuana. Lastly, the analyst performs a chemical test to detect whether the substance contains THC, a chemical found in marijuana.
5 The trial judge’s findings were based on the testimony from the
suppression hearing of Officers Samoa, Penitusi, and Poloai, and the
former testimony of Officer Brown, who was unavailable to testify.

In this case, it appears that because the substances seized were not in plant form, the initial visual test was not performed. However, Lt. Laumoli testified that he performed both the microscopic and chemical tests. Therefore, Fuimaono’s claim that the evidence proved, at best, the mere presence of THC fails. Lt. Laumoli’s testimony showed that the chemical test, when conducted in conjunction with the microscopic test, proved that the substance was marijuana. Given the evidence presented in this case, a rational trier of fact could have found Fuimaono guilty beyond a reasonable doubt. Id. at 18 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
V. Conclusion
For the reasons stated above, Fuimaono’s conviction is affirmed.
It is so ordered.

 

TIMU LEVALE, on behalf of the TIMU FAMILY,v


 

TIMU LEVALE, on behalf of the TIMU FAMILY, Plaintiffs,
v.
RAY McMOORE, SESE McMOORE,
and IOANE FE`AFE`AGA ENE, Defendants.
High Court of American Samoa
Appellate Division
AP No. 14-99
Consolidated Cases:
LT No. 14-93
LT No. 20-93
LT No. 10-95
LT No. 20-96
LT No. 01-98
October 3, 2002

 

[1] An appellate court will not set aside a trial court’s findings of fact in the absence of clear error.
[2] Credibility of witnesses is uniquely the prerogative of the trial court.
[3] This court will not disturb the trial court’s findings when they are supported by substantial evidence, even if a contrary finding would also be supported by substantial evidence.
[4] The Cession of Tutuila and Aunu`u (April 17, 1900) and the American Samoa Revised Constitution create a government duty to protect American Samoan land only when it is taken from American Samoans and given to foreigners.
Before KRUSE, Chief Justice, WALLACE,* Acting Associate Justice, MOLLWAY,** Acting Associate Justice, ATIULAGI, Associate Judge.
Counsel: Asaua Fuimaono, Esq. for Appellant
* The Honorable J. Clifford Wallace, Senior Circuit Judge United States
Court of Appeals for the Ninth Circuit, sitting by designation of the
Secretary of the Interior.
** The Honorable Susan Oki Mollway, District Judge, United States
District Court for the District of Hawaii, sitting by designation of the
Secretary of the Interior.

Timu Levale, on Behalf of the Timu Family.
Charles Alailima, Esq., for Appellee Ioane Fe`afe`aga Ene.
Jeffrey J. Waller, Esq, for the Fe`a family.
OPINION AND ORDER
Introduction
This appeal, which arises out of numerous consolidated cases involves a land dispute between the Estate of Ioane Fe`afe`aga Ene (“Ioane Fe`a”) and Timu Levale, who is acting on behalf of the Timu family (“Timu family”).
“Palatoga,” the property allegedly belonging to the Timu family and “Tualepipi,” the property Ioane Fe`a claims as his own, overlapped in surveys by the Timu family and Ioane Fe`a. Ioane Fe`a claimed ownership of 10.37 acres. The Timu family claimed ownership of 3.7879 acres in the southwest portion of the 10.37 acres claimed by Ioane Fe`a. Faced with evidence supporting both claims to the disputed 3.7879 acres, the trial court determined that the disputed land belonged to Ioane Fe`a. The Timu family has appealed that decision, arguing that the court’s determination was clearly erroneous and against public policy. We affirm.
Standard of Review
[1] Appellants who seek to overturn a trial court’s findings of fact on appeal bear the “heavy burden of showing that these findings were ‘clearly erroneous.’” Toleafoa v. Tiapula, 12 A.S.R.2d 56, 57 (App. Div. 1989); A.S.C.A. § 43.0801(b). A finding of fact is clearly erroneous “when the entire record produces the definite and firm conviction that the court below committed a mistake.” E.W. Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992).
[2] In reviewing for clear error, “the question is whether there was substantial evidence to support the trial court’s conclusions.” Moea`i v. Alai`a, 12 A.S.R.2d 91, 93 (App. Div. 1989). The appellate court will not disturb the trial court’s findings when they are supported by substantial evidence, even if the appellant’s position is also supported by substantial evidence. Afoa v. Asi, 20 A.S.R.2d 81, 83 (App. Div. 1992). “It is not within the province of the appellate court to reweigh the evidence and interfere with a decision based on the lower court’s choice of one version of the facts over another.” Utuutuvanu v. Mataituli, 12 A.S.R.2d 88, 90 (App. Div. 1989). Credibility of witnesses is “uniquely the prerogative of the trial court.” Id.; accord Afoa, 20 A.S.R.2d at 83. In other words, substantial evidence exists to support a finding of fact

when a reasonable person could reach the factual determination based on the evidence presented.
Analysis
A. The Court’s Findings of Fact are not Clearly Erroneous Because They are Supported by Substantial Evidence.
The Timu family first argues that the court’s finding that the land belonged to Ioane Fe`a was clearly erroneous because it was not supported by substantial evidence. We disagree, as the trial court had evidence in the record from which it could have reasonably reached that finding. There was testimony that, since 1955, Ioane Fe`a, his brother, and their families cultivated and lived on the land, which was previously virgin bush. Moreover, there was no evidence that the Timu family objected to this occupancy or cultivation over the years.
[3] The Timu family does not argue on this appeal that the evidence supporting Ioane Fea’s claim to the land was false. Instead, the Timu family merely argues that the trial court should have weighed the evidence differently and made contrary credibility determinations. This court will not disturb the trial court’s findings when they are supported by substantial evidence, even if a contrary finding would also be supported by substantial evidence. Afoa, 20 A.S.R.2d at 83. This court will not reweigh the evidence and interfere with a decision based on the lower court’s choice of one version of the facts over another.1 Utuutuvanu, 12 A.S.R.2d at 90.
B. The Trial Court’s Decision is Not Against Public Policy
[4] Based on the Cession of Tutuila and Aunu`u (April 17, 1900) and the American Samoa Revised Constitution, the Timu family argues that the
1 Before trial, the Fe`a family claimed ownership of the 10.37 acres that
Ioane Fe`a said belonged to him individually. However, the Fe`a family
withdrew its claim before trial. The trial court found that the 10.37 acres
had been virgin bush that was cleared, cultivated, and continuously used
by bone Fe`a. his brother, and their immediate families. This finding
supported Ioane Fe`a’s individual claim. See Sese v Leota, 9 A.S.R.2d
25, 32 (Land & Titles Div. 1988) (citing Leuma v. Willis, 1 A.S.R.2d 48
(Land & Titles Div. 1980)). That finding is not before this court, as the
Fe`a family is not challenging it and the Timu family lacks standing to
challenge it. This court recognizes that, when faced with the issue, it
must examine individual claims of ownership carefully to ensure that
families do not agree to apportion their communal lands for short-term
gains and thereby wrongfully deprive future generations of these lands.

government has a duty to protect American Samoan land. The Timu family argues that the court’s decision to award the lands to Ioane Fe`a violates this duty. We disagree. The government’s duty applies when land is taken from American Samoans and given to foreigners. Here, the lands are remaining in the hands of American Samoans. Accordingly, the government did not violate its duty to protect the land of American Samoa when the court ruled that the land belonged to Ioane Fe`a.
It is so ordered.

 

TAUAILAUTI FALETOGO, JR.,v.AMERICAN SAMOA GOVERNMENT


 

TAUAILAUTI FALETOGO, JR., Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 17-00
February 20, 2002

 

[1] An appellate court will not set aside a trial court’s findings of fact in the absence of clear error.
[2] To apply the excited utterance exception to a hearsay statement, the trial court must make a preliminary factual determination that the declarant was so excited or distraught at the moment of the statement that he or she did not reflect or have opportunity to reflect on what was said.
[3] The trial court’s ruling on an excited utterance exception will not be disturbed on appeal unless the facts on which it relied are not supported by a preponderance of the evidence.
[4] For a statement made at the scene of the crime to be admissible under the excited utterance exception, it must relate to a “startling event,” be instinctive, and spontaneous, and not be deliberate or retrospective.
[5] Circumstances supported trial court’s admission of appellant’s wife’s under the excited utterance exception where wife had frightened demeanor, had recently been involved in confrontation, and had made excited call to the police.

[6] Circumstances supported trial court’s decision not to admit appellant’s self-serving statement under the excited utterance exception where the statement came several minutes after he knew he was “in trouble,” and where appellant’s statement was not entirely “spontaneous” but rather in response to questioning.
[7] The speaker’s mental state, not the nature of the statement, is the crucial factor in applying the excited utterance exception to the hearsay rule.
[8] There is only one species of Marijuana for the purposes of criminal possession statutes.
[9] The legislative intent of A.S.C.A. § 13.1001 was to criminalize possession of any type of marijuana.
[10] Where Appellant’s self-serving statement was kept out of evidence as hearsay, he was properly prevented from arguing such evidence during closing argument. However, he nonetheless could argue the absence of any confession or admission.
[11] If, upon review of the facts, it is determined that a rational trier of fact could find guilt beyond reasonable doubt, the verdict must stand.
Before: RICHMOND, Associate Justice, WARD,* Acting Associate Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate Judge.
Counsel: For Appellant, Bentley C. Adams III, Asst. Public Defender
For Appellee, John W. Cassell, Assistant Attorney General
OPINION AND ORDER
Procedural History
Appellant was tried by jury in the Trial Division of the High Court from August 22 to 25, 2000, for the charge of possession of a controlled substance. The jury returned a guilty verdict. On October 13, 2000, appellant was sentenced to 18 years in prison. Appellant moved for a new trial on October 3, 2000, and this motion was denied on November 28, 2000. On December 1, 2000, appellant filed a notice of appeal. Oral
* Hon. John L. Ward II, District Court Judge, District Court of American
Samoa, by designation of the Secretary of the Interior.

argument was heard on December 5, 2001.
Standard of Review
[1] An appellate court will not set aside a trial court’s findings of fact in the absence of clear error. A.S.C.A. § 46.2403(b); Toleafoa v. Am. Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994). The test is not whether facts in the record may support a decision for the appellant, but whether sufficient evidence supported the decisions in the trial court. Toleafoa, 26 A.S.R.2d at 21.
Discussion
Appellant has raised five points of alleged error in his appeal. The first two involve hearsay statements. The third involves the court’s decision not to allow expert testimony concerning variants of the contraband. The fourth involves the court not allowing discussion in closing arguments concerning the hearsay statement excluded in point two. The final point is a challenge as to whether sufficient evidence was produced to convict beyond a reasonable doubt.
Appellant’s first two points of alleged error are challenges to Trial court decisions concerning hearsay statements. In the first, appellant argues that a police officer’s testimony as to a specific statement made by appellant’s wife concerning possession of contraband was allowed under the excited utterance exception in error. In the second, appellant argues that a police officer’s testimony as to the statements made by appellant at the time of the arrest was not allowed under the excited utterance exception in error.
[2-4] To apply the excited utterance exception to a hearsay statement, the trial court must make a preliminary factual determination that the declarant was so excited or distraught at the moment of the statement that he or she did not reflect or have opportunity to reflect on what was said. United States v. McLennan, 563 F.2d 943, 948 (9th Cir. 1977). The trial court is vested with “reasonable discretion” in determining whether statements come within the excited utterance exception. People v. Farmer, 765 P.2d 940, 950 (Cal. 1989); People v. Provencio, 258 Cal. Rptr. 330, 336 (Cal. App. 1989) (the trial court’s ruling on an excited utterance exception will not be disturbed on appeal unless the facts on which it relied are not supported by a preponderance of the evidence). Of course, the facts upon which the trial court relies must support its acceptance or denial of the exception, based upon the exception’s requirements. Lovett v. State, 491 So. 2d 1034, 1037 (Ala. 1986) (for a statement made at the scene of the crime to be admissible under excited

utterance, it must relate to a “startling event,” “be instinctive and spontaneous, and not be deliberate or retrospective”).
[5] Regarding appellant’s first point of contention, as discussed above, the standard of review requires that the preponderance of the evidence support the facts upon which the trial court relied. Showing the facts could plausibly have supported another finding will not overturn the trial court’s previous decision. The trial court allowed the testimony as to the hearsay statement of appellant’s wife upon the evidence of the surrounding circumstances—the wife’s frightened demeanor, a recently occurred violent confrontation, an excited call to the police. The preponderance of the evidence supports these facts and the trial court was within its discretion to rely upon them in applying the excited utterance exception.
[6] Regarding appellant’s second point of contention, the trial court denied application of the exception upon two factors: (1) appellant’s statement to the police came several minutes after he knew he was “in trouble” while the police were searching the premises, giving him time and motive to fabricate, and (2) appellant’s statement was in a sense a response to questioning, and not entirely “spontaneous” in the sense of being purely self-generated.
As to the first factor, the trial court did not act outside of its discretion in holding that the notice appellant was on from the moment the police arrived provided time to reflect and fabricate. Appellant can plausibly argue that a “startling occurrence” was continuing throughout the police visit, but the trial court held otherwise, and the evidence does not clearly outweigh the trial court’s finding. In fact, the preponderance of the evidence supports the trial court’s theory that appellant had sufficient time and motive to fabricate his response. Certainly, the evidence supports this theory and this likelihood removes the inherent reliability of the statement, which is necessary for the excited utterance exception to apply.
[7] As to the second factor, the fact that a statement was made in response to questioning suggests deliberation, though it does not preclude applying the excited utterance exception. Farmer, 765 P.2d at 950. Appellant’s statement was self-serving, given the circumstances under which it was made. However, the speaker’s mental state, not the nature of the statement, is the crucial factor in applying the exception. Id.; People v. Hughey, 240 Cal. Rptr. 269, 272 (Cal. App. 1987) (“spontaneous” does not mean the statement was made at the time of the incident, merely that it was made in circumstances such that it was made without reflection).

While appellant’s argument that his response to being confronted with the bag was made without reflection—and sprung from his startled mental state—is certainly plausible, the preponderance of the evidence supports the facts on which the trial court reasonably relied. Appellant’s statement was made in response to questioning (confronting him with the bag), evidence of reflection. The trial court was within its discretion to base its decision on this evidence.
Appellant’s third point arguing alleged error concerns the trial court’s refusal to allow expert testimony as to the different species of marijuana, and that the police tests could not distinguish one species from another. Appellant argues that this information as relevant as the statute under which he was charged mentions only one species of marijuana—Cannabis Sativa L. A.S.C.A. § 13.1001(h). Accordingly, appellant urges that the prosecutor’s failure to establish which species of marijuana was found in his possession should cause failure of the government’s case, and that testimony establishing this position should have been allowed.
[8-9] Appellant’s argument has been raised and rejected in the past. The Trial Division ruled on the issue of marijuana “species” in Am. Samoa Gov’t v. Tavili (aka) Stucka, 1 A.S.R.2d 72 (Trial Div. 1983). As that court made clear, “the United States Supreme Court has flatly held that there is only one species of Marijuana” for the purposes of possession statutes. Id. at 72 (citing Leary v. United States, 395 U.S. 689 (1957)). “The term Cannabis Sativa L. must be construed as a general term which includes all plants popularly known as Marijuana that contain the toxic agent THC.” Id. at 72; see also United States v. Walton, 514 F.2d 201, 203 (D.C. Cir. 1975); United States v. Honneus, 508 F.2d 566, 575 (1st Cir. 1974). The Tavili court correctly pointed out that the legislated intent of A.S.C.A. § 13.1001 was to criminalize possession of any type of marijuana. Accordingly, the testimony of appellant’s witness was irrelevant and properly excluded.
Appellant’s fourth point of alleged error is tied closely to the second. Appellant argues that the trial court erred when it did not allow discussion of appellant’s hearsay statement during the closing argument. The discussion and authorities discussed above address the statement itself—the trial court properly prevented the hearsay statement from coming into evidence. Accordingly, as the statement was not in evidence, appellant did not have the right to discuss the statement in argument to the jury.
[10] Appellant was not prevented from arguing the absence of any confession or admission, and was certainly not prevented from

challenging the sufficiency of the government’s proof. However, in arguing whether there was ample proof of a connection between appellant and the contraband, appellant was certainly not free to discuss facts not properly introduced into evidence. To allow such argument would flaunt the very purpose of the rules of evidence.
Appellant’s fifth, and final argument of reversible error is the catchall assertion that insufficient evidence was presented to prove guilt beyond a reasonable doubt. The most telling evidence indicates otherwise. Appellant was found alone at home. Marijuana was found next to where he had been sitting. More marijuana was found in a bag in the yard. Appellant’s driver’s license was found in this bag.
[11] Beyond a reasonable doubt should not be treated as an impossible hurdle—it is not “beyond all doubt.” See generally Am. Samoa Gov’t v. Sale Uo, 4 A.S.R.2d 14 (Trial Div. 1987) (burden of proof beyond a reasonable doubt in criminal cases does not prohibit trier of fact from drawing inferences from the evidence). If, upon review of the facts, it is determined that a rational trier of fact could find guild beyond reasonable doubt, the verdict must stand. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Contraband was found both where appellant had been in the living room and in appellant’s yard—with his driver’s license in tow. A rational review of these facts could certainly lead to a finding of guilt without reasonable doubt. The jury as the finder of fact did not err.
Conclusion
The trial court determined that the appellant’s wife’s statement to the police met the requirements of the excited utterance exception, and that the defendant’s statement did not. It follows that the trial court did not err in disallowing appellant’s discussion of the excluded statement during closing argument. The trial court also determined that the appellant’s expert witness testimony was irrelevant according to application of the relevant law. These decisions were within the trial court’s discretion, and sufficient evidence supported these findings. Finally, the jury had sufficient evidence to rationally determine there was no reasonable doubt as to the essential elements of the crime. Accordingly, appellant’s conviction is affirmed.
It is so ordered.

 

SUAFALA WILLIAMS,v.AMERICAN SAMOA GOVERNMENT


 

SUAFALA WILLIAMS, Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
30
Appellate Division
AP No. 4-00
March 13, 2002

 

[1] An appellate court will not set aside a trial court’s findings of fact in the absence of clear error.
[2] In reviewing a trial court’s findings of fact, the test is not whether facts in the record may support a decision for the appellant, but whether sufficient evidence supported the trial court’s decision.
[3] A.S.C.A. § 13.1022 excludes probation from the court’s sentencing options.
[4] The standard of beyond a reasonable doubt is not treated as an impossible hurdle.
[5] If, upon review of the facts, it is determined that a rational trier of fact could find guild beyond reasonable doubt, the verdict must stand.
[6] Where officer-witness testified regarding his many years of experience in narcotics investigations, including over sixty narcotics cases, and his training in visual, microscopic and chemical identification of marijuana, such was sufficient to establish witness’ expertise in illicit drug identification and testing, and the reliability of his testimony.
[7] Credibility of witnesses is uniquely a matter for determination by the trier of fact.
Before RICHMOND, Associate Justice, WARD,* Acting Associate Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate Judge.
Counsel: For Appellant, Bentley C. Adams III, Asst. Public Defender
For Appellee, John W. Cassell, Assistant Attorney General
OPINION AND ORDER
Appellant Suafala Williams appeals his convictions of two felony counts
* Honorable John L. Ward, II, Judge, District Court of American Samoa,
serving by designation of the Secretary of the Interior.

of possession of a controlled substance, one involving methamphetamine, the other marijuana, in violation of A.S.C.A. § 13.1022, and of one misdemeanor count of discharge of a firearm, in violation of A.S.C.A. § 46.4231. Appellant petitions this Court to review two issues: (1) whether the trial court has discretion to consider different sentencing options under the drug possession statute, A.S.C.A. § 13.1022; and (2) whether the evidence was sufficient to convict appellant of the marijuana possession and of discharge of a firearm.
Standard of Review
[1-2] An appellate court will not set aside a trial court’s findings of fact in the absence of clear error. A.S.C.A. § 46.2403(b); Toleafoa v. Am. Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994). “[T]he test is not whether facts in the record may support a decision for the appellant, but whether sufficient evidence supported the trial court’s decision.” Toleafoa, 26 A.S.R.2d at 21.
Factual and Procedural Background
Shortly before 2:00 A.M. on August 21, 1999, outside the Koreana Lounge near Atu`u, police officers observed the appellant raise his hand into the air holding an object and then saw a flash of light and heard a gun shot. The appellant fled on foot from the police and was caught and apprehended with a .22 caliber automatic pistol in his possession. A lawful search subsequent to appellant’s arrest found him in possession of marijuana and methamphetamine, two controlled substances.
Appellant was charged on August 25, 1999, with possession of methamphetamine (Count I), possession of marijuana (Count II), assault in the first degree (Count III), and discharge of a firearm (Count IV). The case was tried before a jury on February 9th, 10th, and 11th, 2000. The jury convicted appellant on Counts I, II, and IV. On February 23, 2000, appellant was sentenced to 10 years’ imprisonment as to Count I, 10 years’ imprisonment as to Count II to be served concurrent with the sentence on Count I, and one year imprisonment as to Count IV to be served consecutively. On March 7th, 2000, appellant filed a motion for reconsideration or new trial. On April 22, 2000, the motion was denied. Appellant filed a notice of appeal on May 1, 2000.
Discussion
A. Trial Court’s Sentencing Options under A.S.C.A. § 13.1022
Appellant alleges error by the trial court in its construction of the

mandatory sentencing provision of A.S.C.A. § 13.1022, the possession of a controlled substance statute. He urges this Court to interpret the amended sentencing language of this statute in light of the standard court dispositional options as outlined under A.S.C.A. § 46.1902, thereby allowing a person convicted under the possession of controlled substance statute to receive a term of conditional and revocable probation rather than a mandatory minimum term of imprisonment.
[3] We addressed the identical legal argument earlier in this term as raised and decided in Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10, 14-17 (App. Div. 2002). We are of the same opinion in this case and affirm the trial court’s decision that A.S.C.A. § 13.1022 excludes probation from the court’s sentencing options as both mandated and limited by this statute.
B. Sufficiency of the Evidence
[4-5] The evidence presented at trial was sufficient to support a finding of guilt beyond a reasonable doubt for appellant’s convictions of possession of a controlled substance (marijuana) and for discharge of a firearm. Beyond reasonable doubt is not treated as an impossible hurdle. See generally Am. Samoa Gov’t v. Uo, 4 A.S.R.2d 14 (Trial Div. 1987) (burden of proof beyond a reasonable doubt in criminal cases does not prohibit trier of fact from drawing inferences from the evidence). If, upon review of the facts, it is determined that a rational trier of fact could find guild beyond reasonable doubt, the verdict must stand. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Appellant challenges admission of police Sgt. Ta`ase Sagapolutele’s testimony as an expert and the introduction of the results of his forensic analysis of the marijuana seized as reversible error. Admission of this evidence was not reversible error. We note that appellant has not challenged the sufficiency of evidence for his conviction for possession of methamphetamine.
Appellant claims the trial court erred in admitting the results of the Duquenois-Levine Field Test conducted by Officer Sagapolutele upon the substance seized from appellant. This court was also presented with nearly identical arguments on this issue by the appellant in Faifaiese, differing only in the identity of the police officer administering the field test. Based upon the standard of review set forth in Faifaiese as applied to the facts of the instant appeal, we affirm the admissibility of the Duquenois-Levine Field Test results into evidence at appellant’s trial as being well within the confines of the trial court’s discretion.

[6] We also apply the same standard as set forth in Faifaiese with respect to the trial court qualifying Sgt. Sagapolutele as an expert witness and admitting the results of his forensic analysis. The trial court was within its discretion to qualify Officer Sagapolutele as an expert witness and to allow his expert opinion testimony. Sgt. Sagapolutele had a particular expertise in this field and testing procedure, as demonstrated through his many years of experience in narcotics investigations, having been involved in over sixty narcotics cases, having been trained in visual, microscopic and chemical identification of marijuana on numerous occasions since 1987, including a recent training course in 1997. These factors establish the reliability of the testimony. Therefore, the trial judge’s determination allowing his expert testimony was well within the granted discretion under T.C.R.Ev. 702 and the test established by U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993).
Appellant’s next claim of insufficient evidence that appellant was knowingly in possession of marijuana also fails. Again, this identical issue was raised in Faifaiese, and we determined that the demonstrable presence of Tetrahydrocannabinol (“THC”) in the substance possessed was sufficient to prove that substance to be marijuana. We so hold here.
Appellant’s final claim was that there was insufficient evidence to support a conviction on Count IV (discharge of a firearm), under A.S.C.A. § 46.4231, which provides that: “It is unlawful for any person to discharge, explode, or set off any arms within 30 yards of any public road or highway, house, building, or airport in American Samoa.” Under the provisions of A.S.C.A. § 46.3203(b), a defendant must act with the requisite mens rea, either “purposely or knowingly or recklessly,” to be guilty.
[7] Credibility of witnesses is uniquely a matter for determination by the trier of fact. See Nat’l Pac. Ins. Co. v. Oto, 3 A.S.R.2d. 94, 95 (App. Div. 1986). The jury chose to believe Officer Seva`aetasi’s testimony as to appellant’s discharging of the firearm. We will not substitute our judgment for that of jury and weigh the credibility of this testimony. Id. We only need to determine whether the evidence, as presented, supported the jury’s finding. The officer’s testimony supports the finding that appellant acted with the required mens rea to commit this offense. Therefore, this court will not find that the jury’s decision on this charge was “clearly erroneous” as would be needed to find reversible error.
The evidence as presented at trial was sufficient to support the jury’s findings.

Order
For reasons stated above, the judgment in the trial court is affirmed.
It is so ordered.

 

SU`ESU`EMANOGI WILLIAMS, ET AL.,v.TUPUOLA PETELO, ET AL


 

SU`ESU`EMANOGI WILLIAMS, ET AL., Appellants,
v.
TUPUOLA PETELO, ET AL., Appellees.
High Court of American Samoa
Appellate Division
AP No. 14-00
October 3, 2002

 

[1] Trial court’s decision to grant or deny continuance will only be overturned upon clear showing of abuse of discretion.
[2] Findings of fact of trial court may not be set aside by appellate court unless clearly erroneous, i.e., not supported by substantial evidence in record.
[3] Standard of clear error applies to lower court’s evaluation of witnesses’ credibility.
[4] Trial court did not abuse its discretion in granting substitution of parties and in denying continuance. There was ample evidence that change caused unfair surprise and no prejudice was demonstrated.
[5] When factual issue comes down to credibility of witnesses, appellate court must defer to trial court’s judgment.

[6] Presence of family graves tends to indicate communal ownership of burial site.
[7] Permission defeats permittee’s claim of adverse possession and grants only personal license.
Before KRUSE, Chief Justice, WALLACE,* Acting Associate Justice, MOLLWAY,** Acting Associate Justice, MAMEA, Associate Judge, TUPUIVAO, Associate Judge.
Counsel: For Appellant, Salanoa S. Aumoeualogo
For Appellee, Asaua Fuimaono
OPINION AND ORDER
Appellants, members of the extended Alo family of Fagasa village, and Appellees, the Tupuola family also of Fagasa, each lay claim to substantially overlapping parcels of land within the village. This is an appeal from a judgment of the Land and Titles Division awarding the overlap to appellees.
Background
The factual backdrop to these proceedings is as follows: On December 12, 1993, Tupuola Petelo, then the sa`o (senior chief) of the Tupuola family, filed LT No. 42-93 against appellants Su`esu`emanogi Williams and Mary Keleti to enjoin them from constructing a house and trespassing on the disputed land. Shortly thereafter, Tupuola Petelo moved to dismiss the case, asserting that the parties had settled their differences. On January 11, 1994, the court thereupon dismissed LT No. 42-93 without prejudice.
Two weeks later, Petelo filed LT No. 7-94, for the very same purposes he had filed LT No. 42-93. The Land and Titles Division ordered both parties to survey their respective land claims. The Tupuola family completed their first survey of 2.322 acres in March 1994 and offered to register this parcel of land as their communal land. The appellants duly filed their objection with the Territorial Registrar, and subsequently
* The Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, serving by designation of the
Secretary of the Interior.
** The Honorable Susan Oki Mollway, United States District Court
Judge, District of Hawaii, serving by designation of the Secretary of the
Interior.

completed their own survey of 2.819 acres in December 1994. They in turn sought to register title to their surveyed parcel.
On January 9, 1995, the Territorial Registrar referred the matter to the Secretary of Samoan Affairs. The requisite statutory mediation effort failed and the Secretary of Samoan Affairs accordingly certified, on March 10, 1995, an irreconcilable dispute for referral to the High Court, where it became docketed as LT No. 12-95. Subsequently, LT No. 12-95 and LT No. 7-94 were consolidated.
In 1997, the Tupuola family completed another survey, this one for 5.22 acres, which completely engulfed the area claimed by appellants. The matter then lay dormant until October 1999, when appellees moved for trial date. After two further continuances at appellants’ request, trial was finally held on April 25 and 26, 2000, albeit over appellants’ objection and request for yet another continuance. Just prior to trial, Tupuola Satete had, by affidavit dated April 19, 2000, notified the court that he was now the sa`o replacing Tupuola Petelo, who had died. At trial, he moved to be substituted in lieu of his predecessor-in-title, Tupuola Petelo. Appellants, however, argued that this substitution request warranted a further continuance. The court granted the substitution request and denied the motion for continuance, citing, among other things, the longstanding dormancy of the matter on its docket.
At trial, each party put on witnesses and introduced their respective surveys. Appellees asserted that they had occupied the entire area of their approximately 5-acre survey since before 1900, and that appellants’ presence in the area was only intermittent and by permission of various Tupuola titleholders. Appellants, on the other hand, argued that they had been on the land since time immemorial and without any permission from the Tupuola family.
In its order dated July 6, 2000, the trial court found appellees’ evidence in support of their claim to be credible. It also found that appellants’ presence on the land had not only been intermittent but was with the Tupuola family’s permission. Pointing to the corroborating presence of a Tupuola cemetery and the lack of an Alo cemetery on the contested land, the history of Fagasa village, as well as to its assessment of credibility of the testimony, the court found for appellees. It ordered, inter alia, registration of title to the overlap as part of Tupuola communal land, and enjoined appellants from building on the land without the Tupuola sa`o’s permission.
Standard of Review
[1-3] The decision to grant or deny a continuance is in the discretion of

the trial court and will only be overturned upon a clear showing of abuse of that discretion. Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1102 (9th Cir. 1998). The findings of fact of the trial court may not be set aside by the Appellate Division unless clearly erroneous. A.S.C.A. § 43.0801(b). The trial court’s findings of fact are not clearly erroneous where supported by substantial evidence in the record. Suapilimai v. Faleafine, 9 A.S.R.2d 16, 19 (App. Div. 1988). The test for clear error is not whether appellant presented substantial evidence, but whether there was substantial evidence to support the trial court’s findings. Moea`i v. Alai`a, 12 A.S.R.2d 91, 93 (App. Div. 1989). The clear error standard applies to the lower court’s evaluation of witnesses’ credibility. Paolo v. Utu, 26 A.S.R.2d 18, 19 (App. Div. 1994); In re Matai Title Tauaisafune, 6 A.S.R.2d 59, 61 (App. Div. 1987) (appellate court must defer to the trial court on factual determinations turning on the credibility of witnesses).
Discussion
Appellants claim error in the trial court’s refusal to grant a continuance and in allowing appellees to substitute party names just before trial. Secondly, they contend that the court’s findings were in error and not substantially supported. In the alternative, appellants submit that they have established title through adverse possession.
A. Substitution of Parties
Appellants argue that the trial court’s order allowing appellees to substitute Tupuola Satete for the deceased Tupuola Petelo, and its denial of their continuance request after allowing the substitution, was an abuse of discretion. Appellants specifically point to the different surveys presented by the two sa`os as being prejudicial to their claims.
[4] The trial court noted that the death of Tupuola Petelo was first indicated on the record of these proceedings when Tupuola Satete filed his motion seeking sanctions against the appellants, for alleged dilatory and delaying tactics. In his affidavit in support, dated April 19, 2000, Tupuola Satete averred that he was the family sa`o succeeding Tupuola Petelo, who had passed away. In addition, the trial court further noted that appellee’s second survey in 1997 was commissioned by Tupuola Satete, who was thus known to appellants as the new sa`o of the Tupuola family for several years before the trial. In light of this early notice well before trial, the trial court was not persuaded on appellants’ claim of prejudice.
Appellants, notwithstanding direct questions by members of this Court to

counsel during oral argument, have neither been able to articulate nor demonstrate just what that prejudice might be.1 In our view, the trial court did not abuse its discretion in granting the substitution of parties and in denying the proposed continuance. There was ample evidence that the change was not a surprise and no prejudice has been demonstrated by appellants.
B. Trial Court’s Factual Findings
Appellants challenge the trial court’s factual findings as being in clear error. The findings below specifically challenged by appellants are that the Alo use of the land has only been with the permission of the Tupuola family, that the Alo presence on the land has been intermittent, and that the Tupuola family has established ownership of the entirety of their survey.
Appellants urge that these findings were based “solely on the hearsay testimony of Tupuola Satete.” The main thrust of the argument here is that the Tupuola testimony was based primarily on family history, and that acts of dominion, such as controlling and cultivating the land, are a better indicator of ownership than family history.
Ironically, appellants’ evidentiary support likewise rested in part on the hearsay value of oral tradition and family history, with their claim to ownership from time immemorial and in their reference to a Alo Taisi as the original cultivator of the disputed land. In the same manner, appellants’ case was also principally footed on the testimony of one man, Alo Sila Williams.
[5] Be that as it may, when a factual issue comes down to credibility of the witnesses, the appellate court must defer to the trial court’s judgment. See also Reine v. Taotoai, 25 A.S.R.2d 136, 138 (App. Div. 1994) (it is for the trial court to resolve conflicts in the evidence, and to judge the credibility of witnesses); Utuutuvanu v. Mataituli, 12 A.S.R.2d 88, 90 (App. Div. 1989) (the credibility of witnesses is uniquely the prerogative of the trial court); Nat’l Pac. Ins. Co. v. Oto, 3 A.S.R.2d 94, 95 (App. Div. 1986). Here, the trial court clearly stated in its opinion that it found
1 Appellants’ argument tends to overlook the legal and Samoan reality
that in American Samoa, communal lands are not actually owned by the
sa`o, but by the family. See, e.g., Lutu v. Taesaliali`i, 11 A.S.R.2d 80,
87 (Land & Titles Div. 1989). A matai merely acts as a trustee of family
land, not as an owner. The substitution of the named party sa`o in the
family’s efforts to maintain communal land is really of no import in this
matter.

appellees’ claim to be credible; conversely, the court clearly did not believe appellants’ version of the facts.
[6] Contrary to appellants’ position, the trial court’s findings were also supported by factors that went beyond family history and oral tradition—the presence of a Tupuola graveyard and the absence of Alo family burials on the disputed area. Under local law, family graves tend to indicate ownership of the burial site. See, e.g., Malaepule v. Fa`agau, 29 A.S.R.2d 152, 155 (Land & Titles Div. 1996) (the significance of family graves is a traditional indicia of land ownership); Uiagalelei v. Fuimaono, 14 A.S.R.2d 49, 50 (Land & Titles Div. 1990) (“the general and long standing custom is to place family graves on family land . . . and to rely on them as evidence of land ownership”). While the Alo family has claimed that their lack of graves was due to their use of a graveyard outside the contested land, the court found that the Alo family did attempt to bury a family member on the contested land but withdrew when the Tupuola family objected.
[7] Finally, there was no error in the trial court’s finding that the Alo family’s use of the land was by the permission of the Tupuola family. Because appellants’ claim that the Alo family owns the land due to adverse possession was therefore not reached by the trial court, we will not consider it now. However, even if the trial court believed that the Alo family had continuous use and possession of the land, its acceptance of the appellee’s testimony that the Alo members’ occupation of land was founded on the permission of various Alo titleholders simply renders the Alo family’s actions insufficient to establish ownership. Permission defeats a permittee’s claim of adverse possession and grants him only a personal license. Utu v. Fuata, 17 A.S.R.2d 104, 106-07 (Land & Titles Div. 1990).
In our view, the trial court considered the full set of circumstances and weighed the credibility of the testimony in reaching its decision, and its findings are substantially supported on the record. Under the applicable standard of review, we must uphold these findings. These findings establish title for appellees to the disputed land.
For reasons discussed, we affirm.
It is so ordered.

 

STANCRIS SALES COMPANY,v.J.J. YONG aka JUM-YONG CHUM aka Mr. Chungaka YUNG CHUNG KIM, PETELO UTI andSO KUN JOO dba MALAEIMI VALLEY MART


 

STANCRIS SALES COMPANY, Appellants,
v.
J.J. YONG aka JUM-YONG CHUM aka Mr. Chung
aka YUNG CHUNG KIM, PETELO UTI and
SO KUN JOO dba MALAEIMI VALLEY MART, Appellees.
High Court of American Samoa
Appellate Division
AP No. 12-99
August 2, 2002

 

[1] Where statute of limitations defense was premised upon when plaintiff knew of should have known the evidentiary basis of his claim, triable issue of fact existed and trial court’s grant of summary judgment was improper.
Before KRUSE, Chief Justice, WALLACE,* Acting Associate Justice, MOLLWAY,** Acting Associate Justice, MAMEA, Associate Judge, TUPUIVAO, Associate Judge.
Counsel: For Appellant, Katopau Ainu`u
For Appellees, Paul F. Miller
* The Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeal for the Ninth Circuit, serving by designation of the
Secretary of the Interior.
** The Honorable Susan Oki Mollway, United States District Court
Judge, District of Hawaii, serving by designation of the Secretary of the
Interior.

OPINION AND ORDER
The trial court awarded summary judgment to appellees finding that appellant’s cause of action for fraud was barred by the statute of limitations. Specifically, the court found that appellant “knew or should have known” the evidentiary basis of his claim by a certain time frame. Stancris Sales Co., v. Yong, CA No. 47-99, slip op. at 4 (Trial Div. Sept. 9, 1999) (Order Granting Defense Motion for Summary Judgment).
[1] We find that the statute of limitations presents a triable issue of fact and therefore conclude that summary judgment is not appropriate. T.C.R.C.P. Rule 56. We accordingly reverse and remand.
Appellee’s motion for T.C.R.C.P. Rule 11 sanctions is denied.
It is so ordered.

 

SOA`IMAILE A. SILILA, v.ASOFA`AFETAI AILUA MAGA


 

SOA`IMAILE A. SILILA, Claimant
v.
ASOFA`AFETAI AILUA MAGA, Counter-claimant
[In re Matai Title “UTOFILI” from the Village of Fagaitua]
High Court of American Samoa
Land and Titles Division
MT No. 04-01
October 23, 2002

 

[1] The Utofili family consists of two distinct family branches, or clans.

[2] Where matai candidate received favorable decision from family, but
sought reconciliation with other candidate before offering title for
registration, such actions illustrated conciliatory character of candidate
and personal trait valuable under third prong of statutory test.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, MAMEA,
Associate Judge, and TUPUIVAO, Associate Judge.
Counsel: For Claimant, Soli S. Aumoeualogo
For Counter-claimant, Tauivi Tuinei
DECISION AND ORDER
This matter came on regularly for trial on September 26, 2002, with both
parties appearing with counsel.
Findings
The court having heard the evidence and examined the proofs presented
makes the following A.S.C.A. § 1.0409(c) findings:
1. Best Hereditary Right
There is no dispute that claimant Soa`imaile A. Silila (“Soa`i”) here
prevails; her grandfather was a past titleholder. On the other hand,
counter-claimant Asofa`afetai Ailua Maga (“Aso”) had to trace his
bloodline back several generations since most of the immediately past
matai have come from Soa`i’s side of the family. While satisfied that
both candidates are blood connected to the Utofili title, we find, using
the traditional rule, that Soa`i prevails on this consideration.
2. Wish of the Clans
[1] Both sides acknowledge the existence of two clans as customary
today in the Utofili family. While the parties were not particularly clear
on clan definition and while not in exact agreement as to family labels
assigned to the clans,1 the parties were clearly in accord as to the
existence of two distinct family branches. These clans respectively gave
past Utofili titleholders such as Mativa, Soa`i’s paternal grandfather, and
Vaimauga, Aso’s paternal uncle. Soa`i is from Mativa’s branch while
Aso hails from Vaimauga’s side of the family. For the sake of
convenience, we refer, for these purposes only, to the two family
1 Soa`e labels the clans as Fa`atauva`a and Vaimauga while Aso refers to
the clans as Mativa and Iela.

branches as being Soa`i’s side on the one part and Aso’s side on the
other.
The evidence alluded to a number of family meetings called to address
the matai vacancy and that these meetings invariably resulted in favor of
Aso succeeding to the title. Soa`i, on the other hand, testified and
maintained that these meetings only involved Aso’s side of the family
and not her’s.
We find that notice reasonably calculated to reach Soa`i was given for at
least two family meetings which she did not attend. We further find that
there was at least one family gathering that was publicly noticed through
the media and was attended by members of both clans, including
members of Soa`i’s immediate family. We find that this meeting
concluded in a family consensus to not only appoint Aso as the successor
matai but to present him the `ava cup as well. There, the `ava cup was
indeed presented to Aso before the assembled clans, significantly
without objection.
We are satisfied on the evidence that Aso’s candidacy enjoys the support
of all of the family’s clans.
3. Forcefulness, Character and Personality, and Knowledge of Samoan
Customs
While these factors tend to lend themselves to subjective assessment, we
find that the parties’s personal achievements demonstrably favor a
finding in favor of Aso in terms of forcefulness. His education, career,
and positions held within his church speak somewhat louder in terms of
ambition and personal accomplishment. Judging by the number of
important government commissions to which Aso has been appointed,
his achievements have also apparently weighed with the American
Samoa Government.
[2] On matters of character and personality, we were differently
impressed with the parties’ respective reaction to the family’s decision
on Aso’s succession. Rather than immediately offering the matai title
for registration with the Territorial Registrar’s Office, following the
family’s favorable decision, Aso delayed doing so first seeking
reconciliation with Soa`i. The latter’s response, however, was
confrontational in essence, as she then offered the title herself for
registration, absent any indication of family endorsement, and in effect
attempting to by-pass the family altogether. In terms then of character
and personality, we find Aso to be more conciliatory in tone and outlook.
These are valuable personal traits showing the more promising aptitude

for enhancing family harmony.
With regard to knowledge of Samoan customs, we find that Aso’s
experience and responses to the Associate Judges’ questions,
demonstrated better familiarity with matters of Samoan customs.
In terms of this third criterion, we conclude that Aso prevails.
4. Value to government, village, and family
We have already alluded above to Aso’s demonstrated value to the
Government on the basis of his membership on a number of important
government commissions. These include membership on the Board of
Higher Education; HIV-AIDS Committee; Department of Health’s
Executive Committee; Tobacco Control Committee; the Data
Committee; Preventive Health Committee; Dog Control Program
Committee; and the hospital’s Disciplinary Actions Committee. While
both parties have served the local government admirably in their
respective career positions, Aso emerges ahead on this factor with his
appointment to the various government commissions he has been called
to serve on.
With regards to value to the village, Aso’s involvement with village
affairs has been more pronounced in terms of his service as a lesser
matai of the Utofili family, his attendance to village council gatherings
and participation in village fund raising. As a lesser matai, and since
assuming the mantle of family spokesman by his being awarded the `ava
cup, Aso has enjoyed some measure of recognition and stature as
spokesman on inter-family occasions. At the same time, since he enjoys
strong family support and following, he is, therefore, better situated to
lead the family and take on the burdens and responsibilities of family
sa`o. Coupled with his conciliatory strengths, Aso quite clearly shows
the stronger potential to serve the family more effectively.
We also find that Aso prevails on this criteria.
Conclusions
On the foregoing, we conclude that Aso is qualified to hold the title
Utofili. While Soa`i prevails on hereditary considerations, Aso prevails
over Soa`i on the second, third, and fourth criteria. The Territorial
Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the
matai title Utofili, attached to the Village of Fagaitua, in candidate
Asofa`afetai A. Maga.
It is so ordered.

 

SEFULUTASI SULUAI as beneficiary of SIPU SULUAI,v.NATIONAL WESTERN LIFE INSURANCE COMPANY 1


SEFULUTASI SULUAI as beneficiary of SIPU SULUAI,
Plaintiff,
v.
NATIONAL WESTERN LIFE INSURANCE COMPANY,
Defendant.
High Court of American Samoa
Trial Division
CA No. 134-00
May 10, 2002

 

[1] “Misrepresentation” in the insurance context is a 1) statement or
representation by omission, made by an insured, that is untrue; 2) is
either made with intent to deceive or without knowing it to be true; 3)
that misleads or has tendency to mislead by causing reliance by insurer;
and 4) is material to the insured risk.
[2] Decedent’s representation of good health was misrepresentation
when decedent knew he was afflicted with diabetes for five years
preceding application for insurance and was fully aware of condition at
time of his application.
[3] Untrue statement regarding matter materially affecting health of

applicant for life insurance, made by one who knows statement is untrue,
allows insurer to avoid policy.
[4] If misrepresentation causes insurer to assume risk it otherwise would
not have taken, or would not have taken at rate of premium charged,
there is legal ground for avoidance.
[5] Where insurance contract was initiated, signed, and enforceable in
American Samoa, where insured lived in American Samoa, where claim
originated in American Samoa, and where plaintiff sought to collect on
claim in American Samoa, law of American Samoa law controlled the
rights and duties of the parties.
Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendant, Roy J.D. Hall, Jr.
OPINION AND ORDER
Sipu Suluai (“Sipu” or “decedent”), deceased, and his wife Sefulutasi
Suluai (“Sefulutasi” or “plaintiff”) applied for life insurance from the
defendant National Western Life Insurance Co. (“NWL”), a corporation
with headquarters in Texas. Sipu and Sefulutasi were initially
interviewed on July 7, 1997, by NWL’s American Samoa agent Afa
Roberts (“Roberts”). Based on answers given by Sipu and Sefulutasi at
these interviews, Roberts filled out an application form, a NWL standard
form document, which sought, among other things, certain information
on each applicant’s medical history. This form required applicants to
indicate whether they had been treated for any of a variety of illnesses
over the previous five years. NWL delivered a policy on December 15,
1997, on Sipu’s life designating plaintiff as the primary beneficiary.
Plaintiff’s application, on the other hand, was denied. Sipu died nine
months after, on September 26, 1998, within the policy’s “contestability
clause” period of two years.
Testimony at trial and a series of letters and faxes exchanged between
the parties illuminate how this case developed. On September 8, 1999,
plaintiff filed a claim with NWL, enclosing copies of the decedent’s
death certificate and insurance policy, demanding the face amount of the
policy, $50,000. On September 16, 1999, NWL wrote back requesting
additional documents to process the claim, including copies of all
medical records from July 1992 until the date of death. NWL pointed
out that death had occurred within the contestable period. On October

14, 1999, plaintiff’s counsel responded and advised, among other things,
that he was attempting to locate the decedent’s medical records, and that
the documents would be forwarded immediately upon receipt. On
October 26, 1999, NWL requested the decedent’s medical records
directly from LBJ Medical Center. On December 3, 1999, plaintiff’s
counsel wrote NWL that he had tried unsuccessfully to verify that the
medical records were sent, and asked NWL if it had yet received the
records. He then raised the suggestion that the records were unnecessary
for NWL to process the claim because in his opinion the medical
problems admitted on the insurance application were the same problems
resulting in the death of the decedent.
NWL’s December 13, 1999, response indicates where the working
relationship between the parties was clearly taking a turn for the worse.
In this response, NWL mentioned that plaintiff’s counsel had recently
told one of NWL’s staff members that the medical records were either
lost or destroyed, but that LBJ had not confirmed this. NWL also
informed plaintiff’s counsel that it was plaintiff, and not the decedent,
who had indicated she had diabetes at the time of the application. Once
again, NWL then stated it needed the decedent’s medical records before
the claim could be further processed.
On March 29, 2000, NWL, citing a lack of communication from
plaintiff, offered to refund the premiums paid on the policy. On April
10, plaintiff’s counsel responded by citing Texas Insurance Code § 21.21
and asking for payment of the policy in full. No mention was made of
the medical records. On April 12, NWL raised their position that the
Texas Insurance Code requires an insurer to reject or accept a claim
within fifteen business days after the date the insurer receives all forms
and documents necessary to secure proof of loss—not simply within
fifteen days of the filed claim. NWL also indicated that according to
decedent’s employer, he had been treated at LBJ prior to the issue date
of the policy. Again, NWL requested that the medical records be
provided if located.
Discussion
It is NWL’s theory that the decedent committed a misrepresentation by
failing to notify NWL, at the time of application, of what should have
been recognized as a major medical condition. Such a misrepresentation
would absolve NWL of liability under the insurance contract. See, e.g.,
Skinner v. Aetna Life and Cas., 804 F.2d 148, 149 (D.C. Cir. 1986).
A. Misrepresentation

[1] A “misrepresentation” in insurance is 1) a statement or representation
by omission, made by the insured, that is untrue; 2) that is either made
with the intent to deceive or made without knowing it to be true; 3) that
misleads or has a tendency to mislead by causing reliance by the insurer;
and 4) that is material to the risk insured. See Mut. Life Ins. Co. v.
Hilton-Green, 241 U.S. 613, 621 (1916);Union Bankers Ins. Co. v.
Shelton, 889 S.W.2d 278, 282 (Tex. 1994); Hollinger v. Mut. Ben. Life
Ins. Co., 560 P.2d 824, 827 (Colo. 1977); 43 AM. JUR. 2D Insurance §
1011 (2000).
Roberts, agent of NWL who took decedent’s and plaintiff’s applications
for life insurance and filled out their applications, testified before this
court that he asked decedent whether he had any diseases or had been
hospitalized in the five years preceding application. Roberts also
testified that while he did not originally recall whether it was decedent or
plaintiff who told him about having diabetes at that time, after reviewing
the application it was his testimony that only the plaintiff admitted to
having diabetes. This testimony is certainly more compelling than
plaintiff’s counsel’s personal intimation while cross-examining Roberts
that the latter had at a later date admitted knowledge of decedent’s
diabetes, a conversation Roberts did not recall. A review of the
insurance application form itself shows that a box is checked indicating a
history of illness, and in the “Details” section it is revealed that plaintiff
had diabetes. Roberts’ explanation of how the “Details” section would
necessarily include any indication of decedent’s condition, if mentioned,
is obviously accurate and, accordingly, the form itself comports with
Roberts’ testimony. Additionally, when plaintiff’s own insurance was
rejected because of her diabetes, neither she nor decedent made any
mention of the latter’s diabetes to Roberts.
The insurance application itself was signed by decedent, and while the
application clearly indicates that plaintiff suffered from diabetes it
conspicuously makes no mention of decedent’s condition. From this
signed answer to the application’s inquiries concerning health, we can
conclude that decedent made the representation to NWL at the time of
application that he did not knowingly suffer from any disease or illness
at the time of application, and had not suffered from such for five years
preceding application. See, e.g., Phoenix Mut. Life Ins. Co. v. Raddin,
120 U.S. 183, 189-90 (1886); Prudential Ins. Co. v. Barden, 424 F.2d
1006, 1010 (4th Cir. 1970); 43 AM. JUR. 2D Insurance § 1008 (2000)
(where an answer of the applicant to a direct question purports to be a
complete answer to the question, any substantial omission in the answer
avoids a policy issued on the faith of the application). The signed
insurance application indicating that only the plaintiff had diabetes, as
well as the later rejection of plaintiff’s, but not decedent’s, insurance

application because of her diabetes, clearly contradict plaintiff’s
unconvincing suggestion that the decedent told Roberts about his
diabetes. No facts support this claim; in fact they all run counter to this
testimony.
[2] As evidence of decedent’s knowing affliction with diabetes, NWL
has provided evidence that the decedent was treated at the LBJ Medical
Tropical Center during the time period relevant to the purposes of the
insurance application. The testimony authenticating and commenting on
the decedent’s medical records was convincing, as were the records
themselves. It is clear that the decedent was knowingly afflicted with
diabetes during the relevant time period, the five years preceding
application for insurance. It is also clear from the extensive medical
treatments decedent underwent that he was fully aware of his condition
at the time of application. Decedent’s representation of good health was,
then, a misrepresentation.
[3-4] An untrue statement in regard to a matter materially affecting the
health of an applicant for life insurance, made by one who knows the
statement is not true, allows the insurer to avoid the policy. See 43 AM.
JUR. 2D Insurance § 1056 (2000) (the rule is “unanimous”). If a
misrepresentation causes the insurer to assume a risk it otherwise would
not have taken, or would not have taken at the rate of premium charged,
there is a legal ground for avoidance. See Bagwell v. Canal Ins. Co., 663
F.2d 710, 711 (6th Cir. 1981); Allstate Ins. Co. v. Winnemore, 413 F.2d
858, 861-62 (5th Cir. 1969); 43 AM. JUR. 2D Insurance § 1015 (2000).
The testimony presented at trial, and logic, both show that the insured
risk would change with knowledge of an applicant’s diabetes. An
altered risk would alter the chances of approval of the application, and
certainly affect the premium rate if the application were granted.
Accordingly, decedent’s misrepresentation of his medical condition was
a material misrepresentation, and justifies NWL’s avoiding of the policy.
As far as reliance is concerned, it is quite clear from the testimony that
NWL relies upon the representations concerning medical condition
contained within their potential client’s applications. If no conditions are
indicated on the application, and the applicant signs the form, the
company relies upon the applicant’s representation of good health and
issues the policy accordingly. Because decedent represented to NWL
that he was in good health, and he knowingly was withholding
information contrary to this representation, and this misrepresentation
was material and relied upon by NWL, decedent committed a
misrepresentation rendering the policy voidable by NWL, and NWL
were thus justified in voiding the policy and denying plaintiff’s claim.

2. Article 21.55 of the Texas Insurance Code
Plaintiff points to Article 21.55 of the Texas Insurance Code and its
requirement that insurers accept or reject all claims within 15 business
days of receiving all necessary items, statements, and forms required.
We conclude that the Texas law does not apply to the situation at hand.
There currently are two major approaches to conflict of laws in contract
cases: the “significant relationship” rule, promulgated in the Restatement
(Second) of Conflict of Laws, and the more traditional conflict-of-laws
rules focusing on place of contracting and place of performance. See,
e.g., 16 AM. JUR. 2D Conflict of Laws § 86 (1998).
[4] Under the significant relationship rule, the rights and duties of the
parties are determined by the local law of the jurisdiction that has the
most significant relationship to the transaction and the parties. Id.;
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188(1). In the case at
hand, the contract was applied for and paid for in American Samoa. The
contract claim was made in American Samoa. The insurer’s agent is
permanently located in American Samoa, as was the insured. The
insured’s health was a central issue in this case, and the insured was
physically located, and his health was assessed, in American Samoa.
The only relationship this case had to Texas was the location of insurer’s
headquarters. While the application was assessed at those headquarters,
the decedent’s misrepresentation, a central issue to this case, was made
in American Samoa.
Under the more traditional place of contract and place of performance
standards, the case for applying Territorial law is even stronger. As
discussed, the contract was initiated, signed, and enforceable in
American Samoa. The claim originated in American Samoa, and plaintiff
sought to collect the payout of the claim in American Samoa. NWL was
to insure Sipu’s life, and Sipu lived in American Samoa, not Texas. The
place of contract and place of performance was American Samoa.
American Samoa law controls the rights and duties of the parties.
NWL argued that Texas law does not apply and, even if it did, until the
medical records in question were produced, the 15 days cannot begin to
toll. The Texas Insurance Code itself shores up NWL’s argument, as §
21.55, Sec. 2(a) provides that investigation and acknowledgement of the
claim must begin within the 15 days, it is not a requirement for payment
or denial within that period of time. NWL produced extensive evidence
that it was actively engaged in attempting to obtain the records necessary
to assess plaintiff’s claim, evidence which included correspondence with
plaintiff’s counsel, where plaintiff’s counsel first appeared to be assisting
in obtaining the documents and later claimed they were destroyed.

Decedent’s death was well within the period of contestability in which
the NWL could contractually request medical information before paying
a claim. Even if we found that Article 21.55 of the Texas Insurance
Code applied, we would be compelled to conclude that NWL was not in
violation of Texas law because of NWL’s diligent efforts to obtain
relevant information—clearly behavior antithetical to the sort of abuse
that Texas law was intended to prevent.
For reasons given, judgment will enter for defendant NWL.
It is so ordered.

 

SEFULUTASI SULUAI as beneficiary of SIPU SULUAI,v.NATIONAL WESTERN LIFE INSURANCE COMPANY


SEFULUTASI SULUAI as beneficiary of SIPU SULUAI,
Plaintiff,
v.
NATIONAL WESTERN LIFE INSURANCE COMPANY,
Defendant.
High Court of American Samoa
Trial Division
CA No. 134-00
July 8, 2002

 

[1] In order to properly bring motion for new trial, party must fully
apprise trial court of asserted errors in its judgment so that it may
consider for itself whether any such errors occurred and make
appropriate corrections, thereby obviating obvious appeals.
[2] If no timely motion for reconsideration or new trial conforming to the
“particularity” requirement of T.C.R.C.P. 7(b)(1) is filed within statutory
ten-day deadline, then Appellate Division lacks jurisdiction to entertain
appeal.
[3] In reviewing its previous decision on motion for reconsideration or
new trial, court is not required to guess at or construct legal theory upon
which moving party opposes original decision.
[4] Requirements of procedural due process are not fixed but vary with
circumstances and particular requirements of case, minimally demanding
notice and opportunity to be heard.
[5] When counsel’s examination of party opponent’s employee raised
collateral issue of his own unethical contact with witness, in violation of
rules of professional conduct, it was not improper for court to interrupt
such examination and to take brief recess so that opposing counsel could
inquire with witness as to scope of improper communications between
witness and examining counsel.

Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendant, Roy J.D. Hall, Jr.
ORDER DENYING PLAINTIFF’S MOTION
FOR NEW TRIAL/RECONSIDERATION

On May 10, 2002, this Court filed its decision and order in this matter
entering judgment in favor the defendant National Western Life
Insurance Company (“NWL”) and against plaintiff Sefulutasi Suluai
(“Suluai”). Suluai filed her motion for new trial and/or reconsideration
on May 21, 2002.
The motion is not grounded on anything of substantive import going to
the merits. Rather, the motion generally asserts reversible error (1) in
allowing defense counsel the opportunity to talk to a witness, Afa
Roberts (“Roberts”), in the midst of his being examined by Suluai’s
counsel, in derogation of Suluai’s rights to a fair trial and to due process;
and (2) that as a result, the appearance of partiality of the panel of judges
was thereby reasonably put into question. Consequently, Suluai believes
that recusal is warranted.
A. Fair Trial and Due Process
[1-3] Suluai asserts that the Court’s action in allowing defense counsel to
consult with Roberts, “in private,” somehow deprived her of her “rights
to a fair trial and to due process.” (See Pl.’s Mot. for Recons. or New
Trial and Mem. of Supp. Points and Authorities 1). Without articulating
the argument, or providing any elaboration whatsoever, Suluai is simply
content to direct us to “U.S. CONST. Amends. V & VI; AMERICAN
SAMOA CONST. Art. sec. 2; 75 AM. JUR. 2D Trial § 191 (1991),” and to
“Executive Order 11222, signed by President Johnson, circa 1968.” (See
Pl.’s Mot. for Recons. or New Trial and Mem. of Supp. Points and
Authorities 2). In essence, the Court is left to guess as to what the
argument might be. As we have said countless times in these matters:
What is essential to a motion for a new trial is that it . . . fully
apprises the court of the asserted errors in the judgment . . . so
that the trial court may consider for itself whether any such
errors occurred and make appropriate corrections thereby
obviating obvious appeals.

Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 119-20 (Trial Div.
1990). Thus, the Appellate Division has said:
All motions [for new trial] must “state with particularity the
grounds therefor.” T.C.R.C.P. Rule 7. This is particularly
important in the case of a motion for new trial, whose purpose
is to avoid unnecessary appeals by alerting the trial court to
possible errors or omissions in its opinion.
Kim v. Star-Kist, 8 A.S.R. 146, 150 (App. Div. 1988). Additionally,
[i]f no timely motion for reconsideration or new trial
conforming to the “particularity” requirement of T.C.R.C.P.
7(b)(1) is filed within the statutory ten-day deadline, then the
Appellate Division lacks jurisdiction to entertain an appeal.
Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990). Moreover, this
Court recently had cause to sternly warn Suluai’s counsel, Mr. Miller, in
another matter that “this Court, [is] . . . ‘not paid . . . to do legal research
that should be done by the attorneys, nor to guess at or construct the
legal theory upon which a losing party might oppose our decision.’”
Progressive Ins. Co., Ltd. v. Southern Star Int’l, 6 A.S.R.3d 112, 129
(Trial Div. 2002) (quoting G.M. Meredith and Assocs. v. Blue Pac.
Mgm’t Corp., 28 A.S.R.2d 1, 2 (Trial Div. 1995)).
[4] The requirements of procedural due process are not fixed but vary
with circumstances and the particular requirements of the case,
minimally demanding notice and an opportunity to be heard. Ferstle v.
Am. Samoa Gov’t, 7 A.S.R.2d 26, 49 (Trial Div. 1988) (citing Parratt v.
Taylor, 451 U.S. 527 (1981); Mathews v. Eldridge, 424 U.S. 319
(1976)). As the motion is not clear on the asserted ground of “fair trial”
and “due process,” and as we are not inclined to guess or construct a
legal theory for movant, the motion will be denied on this ground.
B. Appearance of Partiality and Recusal
As Suluai’s second ground—the appearance of partiality claim—this is
even more nebulous than the first and appears to be nothing more than a
normative submission. The Court, in allowing defense counsel the
opportunity to consult with his client, interrupting his examination by
Suluai’s counsel, was not unmindful of its duty to maintain the
appearance of impartiality.1 Quite the contrary, the Court was in fact
1 See H.C.R. 103, incorporating Canons of Judicial Ethics, Canon 3(C)(1);
In re Matai Title Faumuina, 26 A.S.R.2d 1, 5-7 (App. Div. 1994).

motivated in its action by its very cognizance of that duty.
The factual backdrop to the Court’s course of action is as follows: Suluai
is a local resident, while NWL is an off-island corporate entity with
headquarters in Texas selling certain classes of insurance in the
Territory.2 Roberts, who was simply characterized in Plaintiff’s
memorandum of points and authorities as “a material witness,” also
happens to be NWL’s general agent in American Samoa. Roberts, on
behalf of NWL, actually dealt with Suluai and her late husband
culminating in NWL’s issuance of a certain policy of life insurance that
became the subject of proceedings before the Court. While Roberts was
on the stand under examination by counsel Miller on direct, in the
manner of a hostile witness with leading questions, counsel sought to
impeach NWL by asking Roberts whether he recalled a conversation
with him whereby Roberts had in effect admitted to counsel knowledge
of the insured’s diabetic condition at the time of latter’s application for
insurance. At that point in the examination, defense counsel Hall
strongly objected to the question on grounds of inappropriate contact by
Counsel Miller with his client.3 Mr. Hall expressed surprise and concern
at the possibility of confidential communication between he and Roberts
being delved into by counsel Miller.
The Court thereupon, in its informed discretion, decided to take
ameliorative action as best as the circumstances allowed, without
needlessly having to delay trial by getting bogged down in a separate and
collateral hearing, by taking a short recess in order to afford counsel Hall
the opportunity to immediately ascertain from Roberts the nature and
extent of any contact with Suluai’s counsel outside of Mr. Hall’s
knowledge.
The Court was very much concerned about a fair trial—that the defense
2 There is no federal district court in the United States Territory of
American Samoa. In every other jurisdiction under the American flag, the
defendant would have access to a federal district court under its diversity
jurisdiction. 28 U.S.C. § 1332. The customary rationale given for diversity
jurisdiction in the federal courts is the fear of parochial bias against a citizen
from out of state. See, e.g., United States v. Deveaux, 5 Cranch 61, 87, 3
L.Ed. 38 (1809).
3 A.B.A. Model Rule of Professional Conduct (1983) 4.4, adopted by
H.C.R. 104, reads:
[A] lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be represented
by another lawyer . . . unless the lawyer has the consent of the
other lawyer.

be not unfairly comprised by an inappropriate contact by opposing
counsel. As it turned out, counsel Miller had indeed contacted Roberts a
week before trial, but the Court opted to leave the collateral issue of
professional misconduct for another day.4 After the recess, Mr. Miller
was allowed to have his question answered without further objection
from defense counsel.
[5] It goes without saying that “fairness” here is a two-way street, in
demand by all parties. The intervening ado would not have arisen in the
first place, had Suluai’s counsel paid closer attention to appropriate rules
governing professional conduct, while taking advantage of pre-trial
discovery measures available in this jurisdiction to properly speak with
Roberts. Under the circumstances, Suluai, as well as NWL, each had
their day in Court. The motion for recusal on the grounds of appearance
of partiality is utterly without merit.
For reasons given, Suluai’s motion for new trial/reconsideration is,
therefore, denied.
It is so ordered.

 

RDL, INC.CIDA, INC., dba PACIFIC DESIGN BUILD COLLABORATIVE, v.AMERICAN SAMOA COMMUNITY COLLEGE


 

RDL, INC./CIDA, INC., dba PACIFIC DESIGN
BUILD COLLABORATIVE, Plaintiffs
v.
AMERICAN SAMOA COMMUNITY COLLEGE, Defendant
High Court of American Samoa
Trial Division
CA No. 113-01
October 31, 2002

 

[1] Where opposing party has already answered pleading, leave of the
court is necessary to amend it.
[2] Whether to grant a motion to amend the pleadings lies within the
court’s sound discretion.
[3] The Rules of Civil Procedure require the court to freely grant
amendments when justice so requires. However, leave to amend will be
denied when factors such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, or futility of amendment are
present.
[4] When a motion to amend concerns the addition of a party, the
movant bears the burden of demonstrating whether the third party they
seek to join satisfies the requirements of being a necessary joinder or a
permissive joinder under the rules.
[5] A necessary party is defined as a person whom in whose absence,
and among the already existing parties, complete relief cannot be
accorded.
[6] Joint and several liability does not make a party “indispensable” for
purposes of Rule 19 of the Rules of Civil Procedure.
[7] Multiple parties may, but need not be, joined if claims against them
(1) arise out of the same transaction, occurrence, or series of transactions
or occurrences and (2) will present some question of law or fact in
common.
Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and
ATIULAGI, Associate Judge.
267
Counsel: For Plaintiffs, Charles V. Ala`ilima
For Defendant, Paul F. Miller
ORDER GRANTING MOTION TO AMEND
COUNTER-CLAIM TO ADD A PARTY

[1] The defendant, American Samoa Community College (“ASCC”),
moves to amend its pleadings to add another party, JCW, Inc., to its
counterclaim. Because plaintiffs, RDL, Inc./CIDA, Inc., d.b.a. Pacific
Design Build Collaborative (“PDBC”), have filed a responsive pleading
and answered ASCC’s counterclaim, leave of the court is therefore
required to add a new party. T.C.R.C.P. Rule 15(a); 3 JAMES WM.
MOORE ET AL., MOORE’S FEDERAL PRACTICE, § 15.16(1) (3d ed. 1999).
Rule 15(a) applies equally to plaintiffs and defendants. Id.
[2-3] Whether to grant a motion to amend the pleadings lies within the
court’s sound discretion. Ape v. Am. Samoa Gov’t, 25 A.S.R.2d 106,
108 (Trial Div. 1993). In the exercise of its discretion, T.C.R.C.P. Rule
15(a) requires the court to grant amendments “freely when justice so
requires.” Leave to amend will, however, be denied upon the finding of
“such factors as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, and futility of amendment.” Vera v. Bush,
980 F. Supp. 255, 256 (S.D. Tex. 1997).
[4-6] Moreover, when a motion to amend concerns the addition of a
party, the movant bears the burden of demonstrating whether the third
party they seek to join satisfies the requirements of either T.C.R.C.P.
19(a) (necessary joinder) or T.C.R.C.P. 20 (permissive joinder). See
Inman v. Comm’r, 871 F.Supp. 1275, 1276 (E.D. Cal. 1994); 4 JAMES
WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE, § 20.02(2)(a)(ii) (3d
ed. 1999). ASCC argues that JCW, Inc. is a necessary party to the
litigation. It is unclear, however, whether JCW, Inc. actually is.
T.C.R.C.P. 19(a) defines a necessary party as a person whom “in his
absence complete relief cannot be accorded among those already
parties.” Here, ASCC has not shown why failing to join JCW, Inc.
would frustrate recovery of complete relief, in the form of money
damages, they seek from PDBC. See Perrian v. O’Grady, 958 F.2d 192,
196 (7th Cir. 1992) (distinguishing between being a necessary party and
an indispensable party). That they have claims against JCW, Inc. in the
form of joint and several liability is of no avail. See Shon v. Mollerup
Moving & Storage Co., 24 A.S.R.2d 50, 52 n.4 (Trial Div. 1993) (joint
and several liability does not make a party “indispensable” for purposes
268
of T.C.R.C.P. 19).
[7] Nonetheless, at the very least, we see no reason why JCW, Inc.
cannot be made a party under T.C.R.C.P. 20. Multiple parties may, but
need not be, joined if claims against them “(1) ‘aris[e] out of the same
transaction, occurrence, or series of transactions or occurrences’ and (2)
will present some ‘question of law or fact [in] common.’” 4 JAMES WM.
MOORE ET AL., MOORE’S FEDERAL PRACTICE, § 20.02(1)(a)(3d ed. 1999)
(citing Fed. R. Civ. P. 20(a)). Both of these prongs are satisfied here.
ASCC’s claims against JCW, Inc. arise out of the same transaction,
namely the construction of the library. And they present issues of
common fact and law: whether JCW, Inc., as a partner, is liable for
damages arising out of an alleged breach of contract. See Acme Elec.
Corp. v. Sigma Instrument, Inc., 121 F.R.D. 26, 28 (S.D.N.Y. 1988).
Furthermore, PDBC has presented no substantial reason why they would
be prejudiced by the inclusion of JCW, Inc. In this respect, we do not
attribute any bad faith motives or tactics on ASCC’s part in moving to
amend the pleadings nor have they unnecessarily delayed in making the
motion. Finally, ASCC has not presented any different factual
allegations which may have complicated PDBC’s defense. See Ryan,
Inc. v. Vaka, 5 A.S.R.2d 31, 32 n.1 (Trial Div. 1987).
Therefore, in the interest of justice, judicial economy, and finality, we
exercise our discretion in favor of ASCC’s motion to amend the
pleadings to include JCW, Inc. The motion is granted. It is so ordered.

 

RDL, INC.,CIDA, INC., dba PACIFIC DESIGN BUILD COLLABORATIVE,v.AMERICAN SAMOA COMMUNITY COLLEGE_2


 

RDL, INC.,/CIDA, INC., dba PACIFIC DESIGN BUILD COLLABORATIVE, Plaintiffs,
v.
AMERICAN SAMOA COMMUNITY COLLEGE, Defendant.
High Court of American Samoa
Trial Division
CA No. 113-01
April 15, 2002

 

[1] In a motion for summary judgment the Court must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party.
[2] Where a contract requires notice before a party can withhold payment for deficiencies, and there is a factual dispute as to whether this notice was given, the court cannot grant partial summary judgment to the defendant as to the legitimacy of withholding a payment under the contract.
[3] On a motion for summary judgment, it does not matter whether the weight of the evidence eventually supports the non-moving party’s position. What matters is that the non-moving party can point to some evidence to support its position(s).
Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and

ATIULAGI Associate Judge.
Counsel : For Plaintiffs, Charles V. Ala`ilima and Marie A. Lafaele
For Defendant, Paul F. Miller
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT
In part, this case involves alleged breach of contract on the part of defendant for failure to make a payment to plaintiff. Defendant's response is that plaintiff first breached the contract thus freeing defendant of the obligation to make the payment in question. Defendant filed for partial summary judgment concerning this payment, alleging that there is no issue as to any material fact as to whether plaintiff breached first, further arguing that judgment should be given in favor of defendant.
Standard of Review
[1] In a motion for summary judgment the Court must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party. Plaza Department Store, Inc. v. Duchnak, 26 A.S.R. 2d 82, 83 (Trial Div. 1994); Lokan v. Lokan, 6 A.S.R. 2d 44 (Trial Div. 1987); D. Gokal & Co., Ltd. v. Daily Shoppers Inc., et al., 13 A.S.R. 2d 11, 12 (Trial Div. 1989). Summary judgment is only appropriate when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Plaza Dep't Store at 83; T.C.R.C.P. 56(c).
Discussion
Defendant's motion makes four allegations of breach of contract on the part of plaintiff. The allegations include: a failure by plaintiff to obtain a general contractors license; a failure by plaintiff to obtain a performance bond; and a failure by plaintiff to maintain construction plans on the job site. Defendant claims a contractual right to withhold any payments due as a result of plaintiff's alleged breaches. The contract itself outlines the basis for withholding payments, including a notice requirement giving parties an opportunity to correct alleged deficiencies.
[2] Before delving into the four alleged breaches, we first note that there is a factual dispute as to whether defendant gave plaintiff sufficient notice of its intent to withhold payment, in this case what has been

referred to as "Payment #4." Defendant claims that notice was sent by facsimile to plaintiff at the end of August, 2001, while plaintiff denies receiving such notice. Plaintiff does admit to receiving notice of the three alleged deficiencies in early August, but plaintiff also puts forth evidence that a good faith effort was made to correct the deficiencies well before defendant's alleged notice of withholding payment date. The exact meaning of this earlier notice remains in dispute. As the contract requires notice before a party can withhold payment for deficiencies, and there is a factual dispute as to whether this notice was given, this court cannot grant partial summary judgment to the defendant as to the legitimacy of its withholding Payment #4.
As to the specific allegations of deficiencies constituting breach, the plaintiff has introduced evidence that indicates factual dispute in each case. Plaintiff flatly disagrees with defendant's allegation that construction plans were not maintained on the job site. Plaintiff has presented evidence that a general contractor's license was posted at the job site before defendant's alleged notice of intent to withhold payment. Finally, plaintiff points to the contract itself in response to the alleged deficiency of failing to obtain bonding, obtaining a personal surety, as plaintiff has presented evidence that it has done, is described in the contract as an alternative to bonding. Plaintiff also argues that negotiations between the parties had been taking place to find a mutually beneficial alternative to bonding.
[3] Whether the weight of the evidence eventually supports plaintiff's positions on these issues is one thing. What matters for the time being is that plaintiff can point to some evidence to support its positions. As noted, the legal standard for summary judgment requires the court to consider the evidence in the light most favorable to the non-moving party. We find that there are genuine issues as to material facts and conclude therefore that the defendant is not entitled to judgment as a atter of law.
m
Order
The motion is denied.
It is so ordered.

 

RDL, INC.,CIDA, INC., dba PACIFIC DESIGN BUILD COLLABORATIVE,v.AMERICAN SAMOA COMMUNITY COLLEGE


 

RDL, INC.,/CIDA, INC., dba PACIFIC DESIGN BUILD COLLABORATIVE, Plaintiffs,
v.
AMERICAN SAMOA COMMUNITY COLLEGE, Defendant.
High Court of American Samoa
Trial Division
CA No. 113-01
February 26, 2002

 

[1] The statute creating a state agency or state office may authorize, expressly or implicitly, engagement of counsel other than Attorney General.
[2] The American Samoa Community College has the power and responsibility to sue and be sued.
[3] The American Samoa Community College has the power to enter into contracts.
[4] Governmental agencies are not directly forbidden from employing attorneys other than the Attorney General, and the Attorney General is not anointed as the only option the government has for legal counsel.
[5] The statute creating the American Samoa College implies the power to hire outside counsel.
Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiffs, Charles V. Ala`ilima
For Defendant, Paul F. Miller
ORDER DENYING MOTION TO DISMISS
ANSWER AND COUNTERCLAIM
Plaintiff has moved to “dismiss” defendant’s answer and counterclaim, arguing that defense counsel is a private attorney thus improperly representing defendant, a government agency. Plaintiff submits that only the Attorney General can properly represent a government agency. Citing to U.S. mainland caselaw, plaintiff contends that it is the role of the Attorney General to prosecute and defend legal actions involving agencies of state governments.
[1] While this is generally true, Attorneys General are by no means exclusive actors in the field of governmental representation. The statute creating a state agency or office may authorize, expressly or implicitly, the engagement of counsel, other than the Attorney General. Shute v. Frohmiller, 90 P.2d 998, 999 (Ariz. 1939); State Comp. Ins. Fund v. Riley, 69 P.2d 985, 987 (Cal. 1937) (agency’s power to appoint counsel can be implied from general provisions of the statute creating agency); 7 AM. JUR. 2D Attorney General §§ 19-20 (1997, 2000). The specific grant of power to a state agency to “sue and be sued” has been held to constitute authority for it to appoint its own counsel. Watson v. Caldwell, 27 So. 2d 524, 528 (Fla. 1946).
[2-5] The statute authorizing the creation of the American Samoa Community College imbues the school with the power and responsibility to “sue and be sued.” A.S.C.A. § 16.2002. The American Samoa Community College also has the power to enter into contracts. Id. We see no provision in the Territory’s Constitution directly contrary to this interpretation. Agencies are not directly forbidden to employ attorneys other than the Attorney General, and the Attorney General is not anointed as the only option the government has for legal counsel. We therefore hold that the statute creating the college implies, in this instance, the power to hire outside counsel.
It is so ordered.

 

PROGRESSIVE INSURANCE COMPANY PAGO PAGO LTD Plaintiff,v.SOUTHERN STAR INTERNATIONAL, INC. dba HONG KONG RESTAURANT, KENNY AND HELEN YOUNG, AINOAMA FATAdba NOFOS STORE, AND DOES I V


 

PROGRESSIVE INSURANCE COMPANY (PAGO PAGO) LTD., Plaintiff,
v.
SOUTHERN STAR INTERNATIONAL, INC., dba HONG KONG RESTAURANT, KENNY AND HELEN YOUNG, AINOAMA FATA dba NOFO’S STORE, AND DOES I-V, Defendants.
High Court of American Samoa
Trial Division
CA No. 129-99
April 3, 2002

 

[1] To have the capacity to insure against property damage, the insured must have an insurable interest in the covered property.
[2] Without an insurable interest, a contract for property insurance will be considered void.
[3] An “insurable interest” is broadly defined in A.S.C.A. § 29.1522(a) as encompassing every interest in property, any relation thereto, or liability in respect thereto.
[4] An interest that is merely contingent or expectant in something, not founded upon an actual right to or in the thing, nor upon any valid contract for it, is not insurable.
[5] The legal status of an insured with respect to property is instructive as to whether or not that person has an insurable interest in the subject

property; however, it is not conclusive.
[6] Generally speaking, a person has an insurable interest in property whenever he would profit by or gain some advantage by its continued existence and suffer some loss or disadvantage by its destruction.
[7] Interpreting American Samoa’s insurable interest statute in pecuniary terms is appropriate in the case of property insurance policies.
[8] Property insurance policies are indemnity policies that provide the insured with the right to be compensated to be made whole after a loss has been sustained.
[9] An interest in a building solely because it housed a place of employment for one’s sponsored foreigners cannot be said to be a reasonable expectation of the pecuniary benefit derived from the continued existence of the subject of insurance. Such an interest is merely contingent, or expectant and not a sufficient interest to be insurable.
[10] An insurance policy is construed like other contracts.
[11] An application or proposal for an insurance policy becomes a part of the contract if it is made a part thereof by the express terms of the policy.
[12] Even if a writing is not specifically referenced in another writing as being part of the contract, but the two were written as part of the same transaction, they should be read together as forming the contract.
[13] A court may reform an insurance contract upon proof of a mutual mistake, which is reciprocal and common to both parties.
[14] A statement is a misrepresentation acting to nullify an insurance policy only if it regards a fact material to be known for estimating the risk.
[15] A representation relates to a fact actually material to the risk which the insurer is asked to assume. If the statement does not relate to a fact material to the risk it is not a “representation” within the sense that if it is false it affords the insurer a basis for avoiding the contract.
[16] A.S.C.A. § 29.1577 is a penalty statute, imposing a 12% mandatory

penalty upon a dilatory insurer.
[17] A.S.C.A. § 29.1577 prescribes that an insurer pay a legitimate claim within the time specified in the policy.
[18] A.S.C.A. § 29.1577 provides that an insurer’s duty to pay is triggered only after an insured has made a demand to the insurer.
[19] Where insureds failed to submit a written demand, they were precluded from complaining that insurer was untimely in paying such unspecified claims.
[20] A.S.C.A. § 29.1577 is meant to provide a mandatory penalty against a late paying insurer, not to curtail an insurer’s right to seek court intervention in situations where a claim is reasonably disputed.
[21] An insurer must resort to court action only after having made a good faith attempt to resolve a disputed claim.
[22] An insurer that fails to make a good faith attempt to resolve a disputed claim, and abuses the judicial process by filing an interpleader complaint to deliberately avoid payment of a legitimate claim will be found in violation of A.S.C.A. § 29.1577.
[23] A tort cause of action exists in American Samoa for bad faith delay in paying insurance claims.
[24] To prevail on a bad faith claim, the insured must demonstrate: (1) the absence of a reasonable basis for denying benefits of the policy, and (2) the insured’s knowledge or reckless disregard for denying the claim.
[25] The tort of bad faith can only succeed upon a showing of the absence of a reasonable basis for denying the claim, i.e., would a reasonable insurer under the circumstances have denied or delayed payment of the claim under the facts and circumstances.
[26] A.S.C.A. § 29.1533 requires insurance companies to include the conditions of insurance, as well as other pertinent information, in their insurance policies.
[27] Under the doctrine of respondeat superior, one expressly promises to incur liability, regardless of his own fault, for the negligent or intentional conduct of his agents or employees.

[28] A.S.C.A. § 29.1539 requires that policies written on real property for fire insurance must be valued policies.
[29] If a total loss occurs under a valued policy, the stated value of the policy is conclusive, and the insured is entitled to such full value.
[30] A building need not be totally annihilated before constituting a total loss.
[31] To assist in its fact finding mission, a trial court may rely upon scientific, technical, or other specialized knowledge in the form of an expert’s opinion.
[32] Expert opinion testimony, in order to be properly admitted, must assist the trier of fact in understanding the evidence or determining a fact at issue.
[33] To meet the reliability requirement, an expert’s opinion must be premised upon a technique which is scientifically valid. To be scientifically valid, a trial court must determine whether the technique has been tested, subjected to peer review and publication, has a known or potential rate of error, and, finally, has been generally accepted by recognized experts in the field.
Before KRUSE, Chief Justice, and LOGOAI, Chief Associate Judge.
Counsel: For Plaintiff, Roy J.D. Hall, Jr.,
For Defendant Ainoama Fata, Katopau T. Ainu`u
For Defendants Southern Star International, Inc., dba Hong
Kong Restaurant, and Kenny and Helen Young, Paul F. Miller
OPINION AND ORDER
This case arose as the result of fire damage sustained to a commercial building containing the Hong Kong restaurant (the “restaurant building”) that was insured against the loss by plaintiff Progressive Insurance Company (“Progressive”).
Procedural History
On December 8, 1999, Progressive filed this interpleader complaint, joining defendants Southern Star International (“SSI”), Kenny and Helen Young (“the Youngs”), and Ainoama Fata dba Nofo’s Store (“Fata”) as parties having adverse claims against Progressive and each other for

proceeds from a $100,000 fire/material damage policy for the restaurant building.1 At the time, Progressive determined $64,300 to be its liability under the insurance policy at issue, depositing this amount with the Clerk of Courts. Later, as these proceedings advanced, Progressive repudiated any liability for the loss, on the changed legal theory that none of the parties had an insurable interest in the property, as mandated by A.S.C.A. §§ 29.1520 et seq.
SSI and the Youngs answered the complaint on December 30, 1999, and, Fata responded to the interpleader on March 30, 2000. In their answer, SSI and the Youngs counter-claimed against Progressive asserting claims of breach of contract, indemnification, statutory violation, and breach of the duty of good faith. Fata cross-claimed against SSI and the Youngs on a related claim asserting indemnification in accordance with the terms of a June 24, 1998, lease agreement. On April 7, 2000, the court found that the interpleader requisites had been met, and certified the complaint as one for interpleader. Although a disinterested stakeholder in interpleader is customarily released at the certification stage of interpleader, the Court declined to discharge Progressive from the case given the counter-claims lodged against it by SSI and the Youngs. In any event, Progressive is no longer a disinterested stakeholder given its changed theory that none of the parties were legally entitled to the court deposited money.
Trial was held on May 11, and 14 through 16, 2001, with all counsel for the parties present. Written closing arguments were submitted, as ordered by the court, on or before June 1, 2001, and the matter was taken under advisement.2
Facts
At the heart of this dispute is the interest that each defendant holds in the restaurant building, and ultimately in the restaurant building $100,000 fire/material damage insurance policy issued by Progressive. The
1 Progressive also joined High Chief Falemalama Vaesa`u, the matai of the
communal landowning family, as a co-defendant. However, the Court
dismissed Falemalama, who requested dismissal, on his renouncing any
interest in the policy and, therefore, in the subject matter of this suit.
2 The Court will not consider an untimely supplementary bad faith
argument by SSI and the Youngs filed on June 4, 2001. Counsel for SSI
and the Youngs were present and agreed in open court to the June 1, 2001
filing deadline. Furthermore, counsel failed to request the requisite leave of
this Court to submit a pleading beyond the June 1, 2001 established
deadline.

$100,000 restaurant building policy is one component of Policy No. 000600720 (“Policy 720”), which provided fire/material damage insurance for various other personal and real property owned or leased by the Youngs including: 1) the restaurant contents valued at $50,000; 2) an adjacent building used as a residence and general store, commonly referred to as the Nu`uuli store (“Nu`uuli store”), owned by the Youngs and valued at $150,000; 3) another building leased by the Youngs, used as a fast food shop, and valued at $75,000; and 4) the fast food shop contents valued at $25,000. Policy 720 included an extensions clause, which clause will be more specifically described in a subsequent section.
A. The Parties
Fata owned the restaurant building, which was situated on the communal land of the Falemalama family whose sa`o (senior matai), with pule (authority) over the land, is High Chief Falemalama Vaesa`u (“Falemalama”).
On June 24, 1998, Fata and the Youngs entered into a lease for the restaurant building (the “Lease”), which was drawn up by the Youngs, and subsequently registered with the Territorial Registrar.3 The Lease provided, inter alia, that the Youngs or their agents would indemnify Fata in the event of damage or loss to the building.
The Youngs formed SSI, a closely-held corporation which they solely owned and directed with their minor son, to allegedly manage the Hong Kong restaurant. However, at trial, Kenny Young admitted that SSI was created for the purpose of obtaining corporate sponsorship of the Hong Kong restaurant’s alien workers.4
B. The Assignment
The Youngs claim that they had assigned their leasehold interest in the restaurant building to SSI and that a written document evidencing this assignment was consumed by the fire. We, however, are unconvinced that an assignment ever existed. Apparently, Kenny Young, the author of the alleged assignment, was also the sole witness to its existence. Yet,
3 While not specifically discussed at trial, it appears that the Youngs
occupied the premises prior to this date, having maintained a fire/material
damage insurance policy with Progressive for the restaurant building’s
contents as early as 1996.
4 A.S.C.A. § 41.0408(b)(2) allows a corporation authorized to do business
in American Samoa to act as an immigration sponsor.

Kenny, when queried, could not remember its wording. Furthermore, we are inclined to believe that had there been a written assignment, Kenny would have taken the pains to register and record such an important document just as he had done with the Lease itself.
C. The Policy
In May 1999, Helen contacted Progressive requesting fire/material insurance coverage for the restaurant building, and for the Young’s two other business premises. Helen dealt primarily with Progressive underwriter Tavita Taumua (“Taumua”). She testified that she had explained to Taumua that the Youngs leased the restaurant building, that Fata owned the building, and that she expected that Taumua would reflect their respective interests in the building accordingly.
Taumua must have initially noted Helen’s representation as the first insurance documents referenced the Youngs appropriately. However, for reasons unknown, the Young’s names were later omitted from subsequently written policy papers. In addition, Fata’s name and interest in the restaurant building never appeared in any of the policy documents. At trial, Progressive General Manager Julian Ashby (“Ashby”) allowed that had the true facts been known to the company prior to the loss, the Policy could have been rewritten to reflect the building owner Fata as “loss payee.”
Before issuing coverage, Taumua visually inspected the premises to be insured, after which he issued the Youngs a written quote, dated May 18, 1999, outlining the requested coverage (“the Quote”). The Quote, which specifically addressed the Youngs, without mention of SSI, outlined the coverage requested and provided an estimate. Taumua quoted the Youngs the $100,000 fire/material damage building policy, and $50,000 fire/material damage contents policy, with an estimated premium of $525 for the $150,000 total restaurant building and contents coverage. Helen agreed to the terms of the quoted coverage, after which Taumua completed an insurance proposal (“the Proposal”), detailing the coverage as listed in the Quote.5
The Proposal mirrored the Quote insofar as the amounts of coverage remained the same, with the Youngs listed as an applicant for insurance. However, SSI was included with the Youngs as a co-applicant,6 with
5 The proposal form, a Progressive pre-printed document, is worded to
reflect the insurance applicant as the “proposer”.
6 Although the term insured is not used in the Proposal, it was undisputed
that the listing of the Youngs as an additional party and SSI as “proposer”

Falemalama, not Fata, listed as the restaurant building owner. Other provisions of coverage that were not included in the Quote were further described in the Proposal. The Proposal included extensions on coverage as “including Architects Surveyor’s and Consulting Engineer’s fees for estimates, plans, specifications, quantities, tenders and supervision necessarily incurred in the reinstatement of the insured property following the destruction by any peril hereby insured against.” It also explained that the contents coverage included leasehold improvements.
After the Proposal was issued, Ashby and Taumua, with Helen present, made a second inspection of the buildings Progressive proposed to insure. Ashby testified that as they stood in the Nu`uuli store, adjacent to the restaurant building, he asked Helen about the Youngs’ interest in the restaurant building and that Helen had responded that she and her husband owned the restaurant building. Helen, on the other hand, denies ever making such a statement, or dealing directly with Ashby in regards to the issuance of Policy 720.
Soon thereafter, on or about June 2, 1999, Progressive issued the Youngs a certificate of insurance for Policy 720 (“the Certificate”). The Certificate neither included the Youngs as insured nor Fata as an interested party, naming only SSI as sole insured. Otherwise, the Certificate terms substantially mirror those included in the Quote and Proposal. More specifically, the Certificate lists the same premium payments as initially quoted to the Youngs. In addition, the language of the Certificate’s last paragraph explicitly references the Proposal as a controlling descriptive document.7 A standard form three-page policy conditions statement (“the Conditions”), detailing the conditions of coverage, was issued to the Youngs either together with the Certificate or at some later unspecified date.
Approximately three weeks after the Youngs received the Certificate, they received a summary of coverage for Policy 720 (“the Summary”). Ashby explained that the Summary detailed the coverage received under Policy 720. The Summary listed the same requested coverage as listed in the Quote, Proposal, and Certificate, but again named only SSI as insured.
described both SSI and the Youngs as insurance applicants.
7 The final clause of the Certificate of insurance states in bold lettering:
This certificate is issued in advance of the formal policy
document and confirms that insurance coverage has been written
on the abovementioned interest which is more particularly
described in the proposal.

Additionally, the Summary noted for the first time in Policy 720 documentation, that Policy 720 was subject to Progressive’s average clause, which is described in the Conditions document. By utilizing the “subject-to-average clause,” Progressive sought to contractually narrow its liability so that it would be responsible only for the value of damage to the property proportional to the sum insured. That is, if at the time that damage occurred to the insured property, the value of the property is greater than the value of the sum insured, the insured is responsible for the difference.8 The Summary also summarized the extensions clause. At trial, Ashby explained that the extensions clause obligated Progressive, within certain limits, to: 1) reimburse the insured for architectural-type fees; 2) pay the costs of demolition and removal of debris; 3) pay for the temporary removal of inventory items to another location following the destruction of a premises; and 4) reinstate the insurance coverage without the payment of any additional premium. The designation of property provision, an old English phrase, allowed Progressive to designate inventory in accordance with its records. Ashby stated that the extensions provision did not substitute for a loss of use policy, a distinct type of insurance policy.
D. The Fire and the Appraisal
On August 11, 1999, a fire, undisputedly started by an inattentive restaurant employee, engulfed the restaurant building, destroying the restaurant’s contents and most, if not all, of its edifice. The only remnants or building standing after the fire were the building’s concrete made foundation, floor slabs and walls. While the fire smoldered, Ashby appeared at the scene, where he met amicably with Kenny Young, and casually perused the damage. Kenny walked Ashby through the Nu`uuli store, showing him the peripheral damage sustained by that building. While standing on the second floor of the Nu`uuli store, and overlooking the restaurant building, Ashby commented on the destruction sustained to the restaurant building and assured Kenny that Progressive would
8 The Conditions document described the subject-to-average clause as
follows:
In all cases where an Insurance is declared to be subject to
average, the following clause shall apply:
If the property hereby insured shall, at the time of loss or
damage, be collectively of greater value than the sum insured
thereon then the Insured shall be considered as being his own
insurer for the difference, and shall bear a rateable proportion of
the loss accordingly. Every item, if more than one, of this Policy
shall be separately subject to this Condition.

send an adjuster from Apia to appraise the damage to the building.
Soon thereafter, Progressive enlisted Hammish G. Thew (“Thew”), a licensed “quantity surveyor,” to prepare a formal evaluation of the damage. Thew’s credentials include his passing a “quantity surveyor” examination in 1965, and being certified in 1983 as a quantity surveyor by the Royal Institute of Chartered Surveyors. Although Thew had assessed a number of fire claims prior to his review of the fire claim in question, his expertise as a “quantity surveyor” is specifically limited to gauging work and material needed on a given construction undertaking. He described himself as a technical accountant for the construction industry, measuring quantities of building or construction work and material. He is neither an architect nor a structural engineer.
Thew appraised the damage and ultimately concluded that the building was not a total loss, basing his conclusion on the fact that the existing foundation, concrete floor slabs, and cinder block walls could be reused to rebuild the restaurant building to its original condition. Elaborating on the method he used to reach this conclusion, Thew explained that he scratched the surface of the burned concrete with a steal nail to uncover superficial damage. Thew explained that he acquired this technique observing someone else assessing a fire loss claim in Fiji.
After his on-site review of damage, Thew produced reports reflecting the adjusted loss value of the property, or amount for which he opined Progressive was liable. To arrive at his adjusted loss figure, Thew used two methods to quantify the loss, the residual value,9 and repair estimate methods.10 He depreciated both values to account for the age of the building at the time of the fire. In addition, he averaged the resulting depreciated value in accordance with Progressive’s subject to average clause.
Initially, in an August 23, 1999 report, Thew valued the damage at adjusted loss values of $93,605 and $86,000, using the residual value, and repair estimate methods, respectively. He also noted in his report that “[i]t would of course be an easy matter to ‘massage’ the figures to make them identical.”
9 According to Thew, the residual value method calculates the loss by
subtracting the salvageable portions of the restaurant building from its
depreciated value.
10 Thew explained that the repair estimate method takes into account the
approximate cost of materials and labor needed to repair the building to its
original condition.

In an undated addendum report, using only the repair estimate method, Thew significantly reduced the adjusted loss value, from $86,000 to $65,045.11 According to Thew, the residual value remained the same.
In a final report, dated November 29, 1999, by increasing the applicable depreciation factor, Thew reduced his repair estimate adjusted loss value yet again from $65,045 to $64,300.
D. The Policy 720 Claims
Shortly after the fire, Progressive attended to various claims for fire/material damage caused by the fire and covered by Policy 720.
1. The $100,000 Restaurant Building Claim
On August 25, 1999, Fata submitted a written claim to Progressive to include her as loss payee on the $100,000 fire/material damage coverage for the restaurant building. Concerned that Fata may have an interest in the $100,000 restaurant building coverage, and in an attempt to resolve its payment, Progressive scheduled a meeting sometime in September 1999 with Ashby, Fata, the Youngs, and their respective counsel present. After this meeting, the parties agreed to compromise that $64,300 represented their loss in the restaurant building, and agreed to divide this amount with Fata receiving $49,300, and the Youngs getting $15,000. However, just prior to executing written documentation of the agreement, the Youngs rescinded the settlement arguing that they were entitled to the $100,000 value of the restaurant building coverage. Because of this dispute, Progressive did not make any payment to the parties and, instead, sought resolution of the dispute with this Court.
2. The $50,000 Restaurant Contents Coverage
On or about September 14, 1999, SSI submitted on an insurer provided claim form, a detailed demand for the restaurant contents $50,000 fire/material damage portion of Policy 720. SSI’s claim particularized the contents and improvements damaged, and specifically stated that all items “were burned beyond repair.” On or about September 29, 1999, Progressive paid SSI $50,000 for its contents claim without incident.
3. The $150,000 Nu`uuli Store Coverage
11 Thew explained that he reached the altered and substantially decreased
amount of $65,045 after excluding the air conditioning system valued at
$12,000 plus installation costs, which had been paid out with the building
contents policy.

On August 18, 1999, SSI submitted a written claim to replace three damaged windows to the Nu`uuli store in the amount of $2,265. Because Progressive estimated a significantly lower cost to replace the damaged windows, Ashby questioned Kenny regarding the unexpectedly high cost of the replacement windows. Nonetheless, concerned that the Nu`uuli store interior be protected from the elements, Progressive issued the $2,265 payment to SSI’s proposed window vendor on August 23, 1999, thus ensuring that the windows were immediately replaced. At the same time, unbeknown to the Youngs, Ashby asked Thew to review and appraise the damage sustained by the Nu`uuli store. Thew estimated a $2,842 adjusted loss value sustained by the Nu`uuli store, which included, amongst other things, the replacement cost of the damaged windows. Ashby did not provide Thew’s appraisal to SSI and the Youngs, nor did SSI and the Youngs submit any other written claims to Progressive for other damage sustained to the Nu`uuli store.
4. The Extensions Clause
Neither SSI nor the Youngs made any claim with Progressive for coverage under the terms of the extensions clause. Without a written claim, Progressive did not propose to reimburse them for any of these costs. Additionally, Progressive considered that its obligation to remove debris had been satisfied by its payment in full of the $50,000 contents claim.
E. The Aftermath
Meanwhile, without consulting Fata, the Youngs levelled and cleared the remains of the restaurant building. After demolishing the remaining foundation and walls of the building, the Youngs built a structure of larger dimension than the original building on the same site. The Youngs and Falemalama have since entered into a twenty year lease of the property.
Subsequent to the failed settlement of the $100,000 restaurant building coverage claim, Progressive filed this case with the Court, and deposited $64,300 with the Court’s registry. However, as discussed earlier, after discovering the relationship between the party defendants, the existence of Fata as lessor, and the Youngs as lessee, and learning for the first time that the alleged assignment between SSI and the Youngs was at issue, Progressive disputed its liability in the $64,300 that it deposited with the Court. At trial, Progressive rescinded its claimed indifference, and asserted that the Policy was invalid for lack of an insurable interest in all

three party defendants.
Discussion
Progressive argues that SSI, the Youngs, and Fata lack an insurable interest in the restaurant building. At this time, we merely note with interest one court’s enunciated rule that an insurer waives its requirement for the necessity of an insurable interest in the beneficiary of an insurance policy through its payment of insurance proceeds into Court with the announcement that it stands indifferent as between the claimants. See Lawrence v. Traveler’s Ins. Co., 6 F. Supp. 428, 430 (Penn. 1934). Adopting this blanket principle of waiver may well conserve limited judicial resources, and further promote judicial efficiency. On the other hand, such a rule may create an excessively cautious insurer reluctant to seek judicial resolution of an insured’s policy, resulting in further delay of policy payment to the detriment of the insured. In any event, we need not consider the viability of this rule with regards to this case, because we find that an insurable interest exists with respect to the Youngs and Fata.
A. Insurable Interest
[1-4] To have the capacity to insure against property damage, the insured must have an insurable interest in the covered property. A.S.C.A. § 29.1521. Without an insurable interest, a contract for property insurance will be considered void. See A.S.C.A. § 29.1522(c). An “insurable interest” is broadly defined in A.S.C.A. § 29.1522(a) as encompassing every interest in property, any relation thereto, or liability in respect thereto.12 This expansive definition is circumscribed only by the last sentence which negates as non-insurable an interest that is a “mere contingent or expectant interest in anything, not founded upon an actual right to or in the thing, nor upon any valid contract for it.” A.S.C.A. § 29.1522(a). The interest defined by A.S.C.A. § 29.1522(a) appears synonymous with title. However, this interest is also something less then title where A.S.C.A. § 29.1522(a) speaks of “every interest in property, or any relation thereto, or liability in respect thereto.” A.S.C.A. § 29.1522(a) (emphasis added). On the other hand, an insurable interest is
12 A.S.C.A. § 29.1522(a) states:
Every interest in property, or any relation thereto, or any
liability in respect thereto, of such a nature that a contemplated
peril might directly damage the insured, is an insurable interest.
A mere contingent or expectant interest in anything, not founded
upon an actual right to or in the thing, nor upon any valid
contract for it, is not insurable. (emphasis added).

something more than a “mere contingent or expectant interest in anything.” A.S.C.A. § 29.1522(a).
[5] Progressive urges that we adopt the rule developed by a Georgia court and define an insurable interest as requiring that the insured have some lawful interest in the property. See Splish Splash Waterslides v. Cherokee Ins. Co., 307 S.E.2d 107, 110 (Ga. App. 1983). “While title may not always be the determinative factor, . . . the insured must have some lawful interest in the property before he can have an insurable interest in the property . . . although that interest may not be ‘slight or contingent, legal or equitable.’” Id. at 110 (citations omitted). Although the legal status of an insured with respect to property is instructive as to whether or not that person has an insurable interest in the subject property, we do not think it is conclusive.
As a general rule, because property insurance policies are indemnity policies, authorities have identified this nebulous lesser-than-title, but more-than-a-contingent interest in property, in terms of a pecuniary relationship to the insured.
[6] Generally speaking, a person has an insurable interest in property whenever he would profit by or gain some advantage by its continued existence and suffer some loss or disadvantage by its destruction. 3 GEORGE J. COUCH, ET AL., COUCH CYCLOPEDIA OF INSURANCE LAW 2d § 24.13 (2d ed. 1984) [hereinafter COUCH].
[7-8] We adopt this interpretation of an insurable interest for purposes of construing that nebulous area of A.S.C.A. § 29.1522(a). Interpreting American Samoa’s insurable interest statute in pecuniary terms is appropriate in the case of property insurance policies, which policies are indemnity policies that provide the insured with the right to be compensated to be made whole after a loss has been sustained.
[9] SSI alleges that it was the entity that did business as the Hong Kong restaurant, and as such had a pecuniary interest in its occupation of the demised premises. To the contrary, we find that SSI was merely a corporate anomaly, questionably established to exclusively serve as an immigration conduit for the restaurant’s alien workers. Even assuming its validity as an entity, the only interest SSI could have had in the building was an expectant interest in the continued employment of its sponsored aliens. An interest in a building solely because it housed a place of employment for one’s sponsored foreigners cannot be said to be a reasonable expectation of the pecuniary benefit derived from the continued existence of the subject of insurance. Such an interest is merely contingent, or expectant and not a sufficient interest to be

insurable.
On the other hand, we find that the Youngs, as lessees of the restaurant building had an insurable interest in the building’s preservation insofar as they covenanted in the Lease to indemnify Fata for loss or damage to the building. See Part E, “Fata’s Cross Claim for Indemnification,” infra. Because of their contractual promise, they suffered a pecuniary loss when the property was destroyed by fire. See generally Simon v. Truck Ins. Exchange, 757 P.2d 1123 (Colo. App. 1988) (finding lessee held an insurable interest in leased premises where he promised to surrender the same in the same condition); COUCH, supra, at § 24:60.
Finally, Fata, lessor and owner of the demised building, clearly had a pecuniary advantage in the building’s preservation, and suffered loss accordingly by its destruction. See generally id. at § 24:59. Her interest is further evidenced in the fact that she maintained a right to be indemnified by the Youngs in the event of the building’s destruction.
B. Named Beneficiary of Policy 720
Progressive further argues that even if the Youngs and Fata held insurable interests in the building, they are not named insured or beneficiaries of Policy 720, and, therefore, may not recover under the Policy. The Youngs and Fata contend that they were intended beneficiaries under the explicit terms of Policy 720. We must, therefore, look to the true intention of the parties to Policy 720.
[10] Before we can construe the terms of Policy 720 to determine who was intended to benefit under the contract, we must first determine which writings, amongst the numerous policy documents, comprise the contract for insurance. A few rules of contract construction are applicable. See Milwaukee Mechs. Ins. Co. v. Davis, 198 F.2d 441, 444-45 (5th Cir. 1952) (construing an insurance policy like other contracts).
[11-12] An application or proposal for an insurance policy becomes a part of the contract if it is made a part thereof by the express terms of the policy. See Harris v. State Farm Mut. Auto. Ins. Co., 232 F.2d 532, 537 (6th Cir. 1956). Furthermore, even if a writing is not specifically referenced in another writing as being part of the contract, but the two were written as part of the same transaction, they should be read together as forming the contract. See Hutson v. Chambless, 300 S.W.2d 943, 946 (Tex. 1957).
In this case, the Proposal is part of Policy 720 where it is specifically referenced in the Certificate, and was written together with the

Certificate, and the Summary as part of the same transaction. When read together, these documents seemingly contain conflicting descriptions of the insured; the Proposal referencing both SSI and the Youngs, and the Certificate and Summary naming only SSI.
The Certificate, however, unequivocally refers to the proposal as “more particularly” describing the interest upon which the coverage was written. Construing the language in these writings together, and the emphasis given the interest described in the Proposal, we find that the Proposal governs whom the parties intended to be insured under Policy 720. Clearly, the Youngs, who are listed as co-applicants for insurance in the Proposal, are an intended insured under the Policy.
Although the Proposal references the building owner, Fata is not named as the owner. Instead, the Proposal erroneously names Falemalama as the building owner. In telling Progressive agent Taumua that Fata owned the building, Helen expected that Progressive would accurately reflect Fata’s interest in the Policy as the lessor and owner of the restaurant building. However, Progressive’s agent inadvertently erred in filling out the Proposal naming Falemalama as building owner, rather than Fata.
[13] Another applicable rule of contract construction provides that a court may reform an insurance contract upon proof of a mutual mistake between the parties. Woodruff v. O’Dell, 701 P.2d 112, 114 (Colo. App. 1985). Such a mistake must be one which is reciprocal and common to both parties. Id. In contracting for Policy 720, neither party intended that Falemalama, the land owner, be named as building owner, and therefore, mutually erred in writing the Policy. To reflect the true intent of the parties to the Policy, we reform Policy 720 to reflect that Fata, rather than Falemalama, owned the restaurant building, and maintained a right to be indemnified for damage to, or loss of, the building.
Moreover, we reform Policy 720 to reflect Fata as a loss payee beneficiary of the Policy. Any interest that the Youngs have in the restaurant building is inextricably tied to their duty to indemnify Fata in the event of damage or loss to the building. Had all the relevant facts been known in the first instance, the fact that the Youngs’ interest as insured under the policy was premised on their duty to indemnify Fata in the event of damage or loss to the property, would have undoubtedly been noted on Policy 720.
C. Misrepresentation
Without specificity, Progressive argues that Helen’s misstatement to Ashby that the Youngs owned, rather than leased the restaurant building,

nullified the contract. We construe Progressive’s argument as one to void the contract for misrepresentation in accordance with the terms of the Policy.
The Conditions document provides that Progressive shall not be liable on the contract “if there be any material misdescription of the property . . . or any misrepresentation as to any fact material to be known for estimating the risk.”
[14-15] As stated, a statement is a misrepresentation acting to nullify Policy 720 only if it regards a fact material to be known for estimating the risk. Otherwise, it is not a misrepresentation within the meaning of Policy 720.
As the representation is a statement made to furnish the insurer the information necessary to decide whether to accept the risk and what premium to fix, it is apparent that by definition a representation relates to a fact actually material to the risk which the insurer is asked to assume. If the statement does not relate to a fact material to the risk it is not a “representation” within the sense that if it is false it affords the insurer a basis for avoiding the contract.
COUCH, supra, at § 35.80 (citations omitted).
Clearly, Helen’s statement did not pertain to a fact material to be known for estimating the risk. Her statement did not affect Progressive’s decision to insure the restaurant building, nor its decision to charge the proposed premium. After Ashby was told that the Youngs’ owned the building, Progressive subsequently issued SSI the Certificate and attendant schedule of payments without any change in the premium amount or payment schedule. Had Progressive truly relied on Helen’s statement, Progressive would have logically continued to name the Youngs in subsequent policy documentation since Ashby testified that he then believed the Youngs to be the true owners of the restaurant building. Instead, they subsequently omitted the Youngs’ names from the Certificate and Summary. Because Helen’s statement was not material to be known for estimating the risk, it was not a misrepresentation within the meaning of Policy 720.
Furthermore, the evidence suggests that Helen unintentionally erred when she informed Ashby that the Youngs owned the building. Helen seemingly placed minimal significance on her discussion with Ashby, stating that she never dealt with Ashby directly. Except for that single encounter with Ashby, Helen negotiated Policy 720 with Taumua, to

whom she maintained the true nature of the Youngs interest in the building. Additionally, because the discussion took place while they stood in the Nu`uuli store, a building the Youngs did own, Helen most likely adverted mistakenly to the Young’s interest in the store building rather than their interest in the restaurant building.
D. SSI and the Youngs’ Counter-Claims
SSI and the Youngs presented their counter-claims without organized theories of law, or supporting case law, apparently considering it this Court’s duty to decipher their arguments for them. As aptly stated in a previous decision of this Court, “[we are] . . . not paid to be an advocate for either side, nor to do legal research that should be done by the attorneys, nor to guess at or construct the legal theory upon which a losing party might oppose our decision.” G.M. Meredith and Assocs. v. Blue Pac. Mgm’t Corp., 28 A.S.R.2d 1, 2 (Trial Div. 1995). Nonetheless, in an attempt to do substantial justice, we construe the pleadings liberally and to this extent read the claims lodged by SSI and the Youngs against Progressive as follows:
1. Statutory Claim
SSI and the Youngs complain that Progressive delayed in paying portions of Policy 720 in violation of A.S.C.A. § 29.1577. First, SSI and the Youngs seemingly complain that Progressive delayed in making payment under certain unspecified provisions of Policy 720. Second, SSI and the Youngs argue that Progressive delayed in paying the restaurant building $100,000 fire/material damage coverage by filing this interpleader action. We treat each contention in turn.
[16-18] A.S.C.A. § 29.1577 is a penalty statute, imposing a 12% mandatory penalty upon a dilatory insurer.13 A.S.C.A. § 29.1577 prescribes that an insurer pay a legitimate claim within the time specified in the policy.14 The statute also provides that an insurer’s duty to pay is
13 In a summary judgment decision in Paisano’s Corporporation v. N.P.I.,
we spoke of A.S.C.A. § 29.1577, in dicta, as a strict liability statute. 30
A.S.R.2d 139, 141 (Trial Div. 1996). However, unlike the question
presently before us, the interpretation of A.S.C.A. § 29.1577 was not
directly before us in Paisano’s. Rather, our decision in Paisano’s focused
on whether a separate tort cause of action existed for bad faith delay in light
of the enactment of A.S.C.A. § 29.1577.
14 A.S.C.A. § 29.1577 reads, in pertinent part:

triggered only after an insured has made a demand to the insurer.
Policy 720 allows an insured a 15-day time-frame for filing a damage claim. The Policy further outlines that the insured must provide the insurance company with notice, and a written particularized accounting of the loss.
[19] The evidence indicates that SSI and the Youngs were familiar with the written claim requirement, having submitted the Nu`uuli store damaged windows claim, and a detailed restaurant contents claim. However, for no apparent reason, other than their own folly, SSI and the Youngs failed to file the requisite written demand or claim for other coverage under Policy 720. Because they failed to submit a demand or claim, as prescribed by statute, and outlined in their agreement, SSI and the Youngs are precluded from complaining that Progressive was untimely in paying such unspecified claims under Policy 720.
[20] Additionally, SSI and the Youngs argue that Progressive violated A.S.C.A. § 29.1577 by filing this interpleader action, rather than paying them the $100,000 fire/material damage policy on the restaurant building. While the legislature intended that A.S.C.A. § 29.1577 provide a mandatory penalty against a late paying insurer, they did not mean to curtail an insurer’s right to seek court intervention in situations where a claim is reasonably disputed. The indeterminate nature of insurance policies, written in the present-day to protect against the risk of loss or damage upon the happening of a future possibility, renders such contracts especially susceptible to challenge. Given the potentially contentious nature of such contracts, court action, especially in the form of an interpleader action, is often the most efficient method for resolving such disputes.
[21-22] On the other hand, court resolution of any dispute is often a lengthy and expensive process, resulting in further injury to the already injured or damaged insured. An insurer must, therefore, proceed cautiously, and resort to court action only after having made a good faith attempt to resolve a disputed claim. Otherwise, an insurer that fails to make a good faith attempt to resolve a disputed claim, and abuses the judicial process by filing an interpleader complaint to deliberately avoid
In all cases where loss occurs and the insurer liable therefor fails
to pay the same within the time specified in the policy, after
demand made therefor, the insurer is liable to pay the holder of the
policy, in addition to the amount of such loss, 12% damages upon
the amount of the loss, together with all reasonable attorney’s fees
for the prosecution and collection of the loss.

payment of a legitimate claim will be found in violation of A.S.C.A. § 29.1577.
The question then is whether Progressive was warranted in filing this interpleader action, instead of paying SSI and the Youngs the restaurant building $100,000 fire/material damage policy. The short answer is yes.
Faced with multiple claims of interest in the $100,000 proceeds, and a failed good faith effort at reaching an independent settlement of the Policy funds, Progressive was justified in filing this interpleader action. In fact, Progressive accurately questioned the interest that SSI, the Youngs, and Fata shared or, as the case is with SSI, did not share, in the $100,000 proceeds. Progressive’s act of depositing with the Court the Policy 720 proceeds it then considered undisputed further supports the reasonableness of their conduct in this case.
2. Bad Faith
[23] We have previously acknowledged that, in addition to the statutory remedy afforded in A.S.C.A. § 29.1577, a tort cause of action exists in American Samoa for bad faith delay in paying insurance claims. Paisano’s Corp. v. Nat’l Pac. Ins., 30 A.S.R.2d 139 (Trial Div. 1996). However, due to the limited nature of the question before us in the Paisano’s case, we did not address the applicable standard of care in bad faith cases.
[24] A leading case on the standard of care in bad faith actions is Anderson v. Continental Insurance Company, 271 N.W.2d 368 (Wis. 1978). See Braesch v. Union Ins. Co., 464 N.W.2d 769, 778 (Neb. 1991). To prevail on a bad faith claim, the Anderson court concluded that the insured must demonstrate twofold “the absence of a reasonable basis for denying benefits of the policy[,] and the . . . [insured’s] knowledge or reckless disregard for denying the claim.” Anderson, 271 N.W.2d at 376.
[25] In discussing the first prong of the test, the Anderson court emphasized that the tort of bad faith can only succeed upon a showing of “the absence of a reasonable basis for denying the claim, i.e., would a reasonable insurer under the circumstances have denied or delayed payment of the claim under the facts and circumstances.” Id. at 377.
We favorably adopt the Anderson standard as it “strikes the proper balance between the respective rights of the insurer and the policyholder.” Braesch, 464 N.W.2d at 778.

SSI and the Youngs, in uncertain terms, allege that Progressive failed to reasonably investigate and settle coverage within the policy limits, and, more generally, were indifferent to the insured’s interests. After the fire, there was undoubtedly a great deal of confusion regarding Policy 720 coverage. Progressive’s custom of providing the insured with a piecemeal policy, and failing to explain the meaning of the coverage terms contained in each document certainly did nothing to alleviate the confusion. For example, rather than explain to the Youngs that Policy 720 was subject to average, the subject to average clause was merely included in the last received Summary document.
[26] Insurance companies legitimately, and commonly limit their liability by including certain clauses in their policies, like the subject to average clause. However, an insurance company is required to include the conditions of insurance, as well as other pertinent information, in its policy of insurance. See A.S.C.A. § 29.1533. Providing the insured with a piecemeal policy, even one which outlines all the requisite information, does not promote the underlying intent of A.S.C.A. § 29.1533, a law designed to ensure that the insured know exactly what coverage they are paying for. Notwithstanding that Progressive’s untidy policy issuance procedures may provide a basis to avoid later slipped-in contract clauses, there was no showing in this case that Progressive’s method of issuing Policy 720 amounted to bad faith delay in paying on the Policy.
Furthermore, upon review of Progressive’s conduct in handling the various claims after the fire, we find that Progressive promptly investigated all demands properly brought to its attention, and paid the legitimate claims in accordance with the terms of Policy 720. The only claim delayed was the present claim, which Progressive promptly filed with the Court.
Progressive paid SSI and the Youngs the Nu`uuli store windows claim, and the restaurant contents claim without dispute. Other unspecified claims, such as an alleged claim for coverage under the extensions clause, and an alleged claim for damage to other portions of the Nu`uuli store, were never brought to Progressive’s attention as prescribed by the Policy. As discussed in the preceding section, the terms of Policy 720 require that SSI and the Youngs notify Progressive in writing, and provide Progressive with a particularized accounting of the damage. SSI and the Youngs may not now complain that Progressive failed to pay these claims in bad faith after it failed to comply with these basic policy requirements.
With regards to the restaurant building $100,000 fire/material damage

Policy, the evidence before us demonstrates that Progressive employed Thew, to investigate and evaluate the damage to the restaurant building, and denied extended coverage upon Thew’s opinion and conclusion, which opinion it made known to the parties.
While we question Thew’s credibility, and a quantity surveyor’s ability to assess structural damage in general, as we discuss further below, there was no evidence to show that Progressive purposefully employed Thew to deny the Youngs coverage. Prior to Progressive’s employment of Thew, to assess the restaurant building damage, Progressive was only aware that Thew had been employed on previous occasions to perform the same type of work.
Furthermore, there is no evidence to suggest that Progressive attempted to leverage payment of the restaurant building $100,000 fire/material damage policy portion of Policy 720 with settlement of other unspecified coverage under the Policy. Instead, when it became obvious that payment of the restaurant building coverage under Policy 720 could not be amicably resolved amongst the parties, Progressive resorted to this interpleader course of action, and seasonably deposited what it considered to be the disputed amount, $64,300, with the Court.
E. Fata’s Cross Claim for Indemnification
Fata avers that she is entitled to indemnification from the Youngs for the damage to the restaurant building under the terms of the Lease agreement. The applicable provision of the June 24, 1998 Lease agreement provides:
Lessee hereby covenants and agrees to indemnify and hold harmless the Lessor for losses and/or injury to Lessor’s property, or any liability assessed against Lessor as owner of the building, by reason of negligence or intentional acts of Lessee or its agents, or by reason of the violation of the Lessee’s warranties herein described.
[27] Premised upon the doctrine of respondeat superior, the Youngs expressly promised to incur liability, regardless of their own fault, for the negligent or intentional conduct of their agents or employees. We have previously acknowledged the reasoning in support of the doctrine of respondeat superior.
“The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as
131
a required cost of doing business. They are placed on the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance to the public, and so to shift them to society, to the community at large.”
Garcia v. Galea`i d.b.a. Paradise Travel Inc., et al., 15 A.S.R.2d 14, 18 n.2 (Trial Div. 1990) (quoting PROSSER AND KEATON ON TORTS 500-01 (5th ed. 1984)).
The Youngs tenuously try to avoid liability under the indemnification clause of the Lease, arguing that the restaurant employee that caused the fire was not employed by the Youngs, since SSI was the entity doing business as the Hong Kong restaurant. Their argument is entirely without merit.
The Youngs contracted with Fata to indemnify her, and cannot now avoid responsibility by contending that SSI, not the Youngs, employed the restaurant workers. As discussed supra, SSI is a questionable entity created solely to sponsor the Hong Kong Restaurant’s alien employees. Even if the Youngs created SSI to run the restaurant business and take over the leased premises, SSI and its employees remain the Youngs’ agents or employees for purposes of the indemnification clause in the Lease.
We, therefore, find that the building was razed owing to a negligent agent or employee of the Youngs, and now Fata no longer has a building. Therefore, in accordance with their promise to indemnify Fata, the Youngs must pay Fata the value of the entire building as it stood prior to the fire.
At trial, Fata’s counsel inexplicably offered no independent evidence as to the value of the building. Furthermore, as discussed below, given our serious reservations respecting Thew’s reported conclusions, we do not find his estimate of the building value useful, other than for the limited purpose of determining whether or not a total loss was sustained.
Nonetheless, the Youngs admitted, and Progressive agreed, that prior to the fire, the building was worth at least $100,000, as they proceeded to write insurance for this amount. Therefore, the Youngs are liable to reimburse Fata in the amount of the proceeds recoverable from the

$100,000 restaurant building policy.
F. Recoverable Amount
[28-30] The applicable statute in American Samoa, A.S.C.A. § 29.1539, requires that policies written on real property for fire insurance must be valued policies.15 If a total loss occurs under a valued policy, the stated value of the policy is conclusive, and the insured is entitled to such full value. See COUCH, supra, at § 54:104. While the courts differ on the extent of destruction required to constitute a total loss, they generally concur that a building need not be totally annihilated before constituting a total loss. Id. at § 54:57. A number of courts take the position that there cannot be a total loss so long as the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the fire. Id. at § 54:62. Furthermore, the question of whether it is so adapted depends upon whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before the fire, would in proceeding to restore it to its original condition utilize such remnant as such basis. Id.; see also Div. of Gen. Servs. v. C.E. Ulmer, 183 S.E.2d 315, 317 (S.C. 1971) (economic feasibility of reconstructing building, utilizing remains as basis for reconstruction, sustains finding that loss was partial).
Regardless of the method used to determine the extent of damage to a building, the question of the existence of total loss is a question of fact. See id.; Bennett v. Imperial Ins. Co., 606 S.W.2d 7, 9 (Tex. 1980). The only expert evidence tendered in this case was that of Hammish Thew, a “quantity surveyor.” Thew concluded that the remnants of the Hong Kong restaurant building could be used to rebuild upon, and therefore opined that the loss sustained was partial. He then assessed various costs for the reconstruction, using different methods to itemize the materials and labor needed to build the restaurant to its original condition. While we do not doubt Thew’s ability to measure quantities of work and material for construction projects, we are not convinced that a quantity surveyor, and Thew, in particular, has the requisite expertise to determine the structural soundness of a building’s remains after the building has been destroyed by fire.
15 A.S.C.A. § 29.1539 reads:
A policy is either an open policy, which is one wherein the value
of the subject matter is not agreed upon but is left to be
ascertained in case of loss, or a valued policy, which is one
containing on its face an expressed agreement that the thing
insured shall be valued at a specified sum. An open policy must
not be written on real property for fire insurance.

[31-32] To assist in its fact-finding mission, a trial court may rely upon scientific, technical, or other specialized knowledge in the form of an expert’s opinion. However, the opinion must necessarily “assist the trier of fact to understand the evidence or to determine a fact in issue.” T.C.R.Ev. 702. Obviously, an irrelevant and unreliable opinion will not aid the Court in making its decision.
[T]he Rules of Evidence—especially Rule 702—do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993) (leading case interpreting F.R.E. 702, which is paralleled by T.C.R.Ev. 702).
Thew is neither an architect nor a structural engineer with the requisite training and expertise to credibly evaluate and assess the state of a cement building’s remnants after having been cooked in a conflagration of the magnitude that destroyed the restaurant building. Although Thew attested to having previously appraised other fire damage claims, he did not elaborate on the methodology he used during those evaluations. Nor did he otherwise convince us that he had accumulated sufficient experience that would qualify him to evaluate the structural integrity of what remained of the restaurant building.
[33] In addition, we are not satisfied that Thew’s methodology met with T.C.R.Ev. 702 requisites. In Daubert, the Supreme Court explained that in order to meet the rule’s reliability requirement, an expert’s opinion must be premised upon a technique which is scientifically valid. To be scientifically valid, a trial court must determine whether the technique has been tested, subjected to peer review and publication, has a known or potential rate of error, and, finally, has been generally accepted by recognized experts in the field. Daubert, 509 U.S. at 593-94.
Thew premised his partial loss conclusion upon a nail scoring technique he acquired from an anecdotal experience in Fiji. There was no evidence that Thew’s nail scratching methodology had been tested, reviewed or otherwise accepted as a scientific basis for assessing structural damage done by a fire. A fire that destroys a building and all of its contents, leaving behind only concrete-made walls, slab, and foundation, is undoubtedly intense. One would naturally expect that any technique used to determine whether such cooked concrete may be used to rebuild the same structure would necessarily involve more than Thew’s superficial evaluation.

Without Thew’s partial loss assessment, the only evidence we have before us regarding the extent of damage to the building is Thew’s calculations regarding the rebuilding costs of the restaurant building. We are not, however, without serious reservations as to the objectivity of Thew’s conclusions given his explicit inclination to “massage” figures in his client’s favor. Some of the figures were, in fact, modified at least three times to the benefit of Progressive. With these reservations in mind, we evaluate Thew’s calculations for the limited purpose of determining the extent of the loss sustained to the restaurant building.
In light of Thew’s acknowledged bias, and thrice modified repair estimate values, we find Thew’s repair estimate values suspect. However, while the repair estimate value changed, the residual value remained estimated at $93,605. Depending upon the estimated total building value applied,16 the residual value, translated into percentages, shows that at least 84% to 77% of the building had been turned to ash, with the remaining 16% to 23% having been subjected to a destructive fire.
With this in mind, we find that a reasonably prudent owner, uninsured, desiring a restaurant building as the one in question was before the fire, would not in proceeding to restore it to its original condition utilize its remnant as such basis. Notably, the Youngs did not rebuild upon the remaining concrete parts, razing them and building a new, albeit larger, structure from scratch. We find that the restaurant building was totally destroyed, and, therefore, conclude that Progressive is liable to pay the value of the $100,000 fire/material damage restaurant building policy.
Order
In accordance with the Youngs’ promise to indemnify Fata for the loss of the Hong Kong restaurant building, and Progressive’s $100,000 contract for insurance on said property, Progressive shall pay Fata the total value of the $100,000 fire/material damage restaurant building policy.
Accordingly, the Court shall issue Progressive’s deposited funds of
16 Again, the total value of the building was modified at least twice in favor
of Progressive. According to Thew’s first report, the total value of the
building was $121,000. However, in a subsequent report, the value of the
building was decreased to $111,000.

$64,300 to Fata, and Progressive must pay Fata the difference of
$35,700. Any accumulated interest on the $64,300 court deposited proceeds shall be paid to Fata.
The payment to Fata of the insurance proceeds releases the Youngs from any and all liability on their promise to indemnify Fata. Judgment will enter accordingly.
It is so ordered.

 

LITARA LANGKILDE, Plaintiff,v


LITARA LANGKILDE, Plaintiff,
v.
NATIONAL WESTERN LIFE INSURANCE COMPANY and
SOUTH SEAS FINANCIAL SERVICES, INC., Defendants.
High Court of American Samoa
Trial Division
CA No. 55-01
April 30, 2002

 

[1] Court deciding motion for summary judgment must assume truth of
evidence presented by non-moving party and draw inferences from
evidence most favorable to non-moving party.
[2] Summary judgment is only appropriate when no genuine issue as to
material fact exists and moving party is entitled to judgment as matter of
law.
[3] Even if references in defendants’ letter and statement to medical
records were insufficient foundation to consider medical records as
evidence, each of these sources is evidence of contents of medical
record.
[4] As decedent represented that he did not have, or take medication for,
medical condition other than hypertension for five years preceding date
of application, and there is uncontested evidence that decedent in fact
had knowledge of another medical condition and had been medicated for
medical condition, decedent in fact misrepresented his medical condition
when he applied for life insurance.

[5] Untrue statement regarding matter materially affecting health of life
insurance applicant, made by one who knows statement is not true,
allows insurer to avoid policy.
[6] If misrepresentation causes insurer to assume risk it otherwise would
not have taken, or would not have taken at rate of premium charged,
there is legal ground for avoidance.
Before RICHMOND, Associate Justice, and SAGAPOLUTELE,
Associate Judge.
Counsel: For Plaintiff, David P. Vargas
For Defendant, Katopau T. Ainuu
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Plaintiff Litara Langkilde is the named beneficiary of a life insurance
policy issued to deceased Marcus Langkilde (“decedent”) by defendant
National Western Life Insurance Company (“NWL”), and purchased
through defendant South Seas Financial Services, Inc. (“South Seas”).
Plaintiff submitted a claim for the insurance proceeds to NWL upon
deceased’s death. NWL denied the insurance claim because decedent
allegedly withheld information concerning his health at the time of
application—a misrepresentation that would void the policy.
Plaintiff subsequently brought suit against NWL and South Seas. NWL
and South Seas moved for summary judgment, and at the hearing on the
motion on March 11, 2002, the issue was submitted on the parties’
briefs.
Standard of Review
[1-2] A court deciding a motion for summary judgment must assume the
truth of the evidence presented by the non-moving party and draw from
the evidence the inferences most favorable to the non-moving party.
Plaza Dep’t Store, Inc. v. Duchnak, 26 A.S.R.2d 82, 83 (Trial Div.
1994); D. Gokal & Co., Ltd. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12
(Trial Div. 1989). Summary judgment is only appropriate when no
genuine issue as to any material fact exists and the moving party is
entitled to judgment as a matter of law. Plaza Dep’t Store, 26 A.S.R.2d
at 83; T.C.R.C.P. 56(c).
Discussion
Based on the legal arguments at hand, we raise two questions to decide
205
this motion. First, what did decedent represent to NWL as his medical
condition at the time of the application? Second, was this a
misrepresentation based on the evidence at hand?
A. Decedent’s Representations to NWL
In April 1999, decedent met with South Seas’ employee Afa Roberts
(“Roberts”) to fill out his application for life insurance. The application
sought information pertaining to decedent’s medical condition at that
time. This line of inquiry, according to Roberts, involved the oral
question of whether decedent had been hospitalized for any reason over
the previous five years and whether he had any illnesses. The
corresponding written questions on the application itself asked if
decedent, in the past five years, had received any diagnostic medical test,
had taken medication for any disease, or knowingly had any disease not
listed in the earlier portion of the application. Decedent’s answer to
these questions was that he suffered from high blood pressure. Decedent
then signed the application.
Plaintiff, who applied for life insurance with decedent and attended this
meeting, claims that Roberts did not ask her or decedent to review the
application before signing it. Plaintiff points out that Roberts never
specifically asked decedent if he had diabetes or heart disease. She also
does not remember Roberts specifically asking decedent if he had any
illnesses, other than those inquired about earlier in the application. In
fact, according to plaintiff, in conjunction with questions four and five of
the application, Roberts only orally asked decedent if he was taking any
medication and if decedent had been hospitalized within the previous
five years. Plaintiff claims that she had no knowledge of decedent’s
diabetes or heart condition at the time of application.
As discussed above, we must accept the evidence that sheds the best
light on the non-moving party’s case. This leaves us with the written
application, signed by both decedent and plaintiff, and Roberts’ oral
questions on whether decedent had been hospitalized in the previous five
years and whether decedent was taking any medication, to which
decedent admitted to being medicated for high blood pressure, but did
not admit to having diabetes or a heart condition.
First, we consider decedent’s oral representations. As information about
the high blood pressure medication was the only response by decedent,
even according to plaintiff’s statement, we can conclude that decedent
orally represented to Roberts that he was not taking medication for
diabetes or anything other than high blood pressure. See, e.g., Phoenix
Mut. Life Ins. Co. v. Raddin, 120 U.S. 183, 189 (1886) (where an answer

of the applicant to a direct question purports to be a complete answer to
the question, any substantial omission in the answer avoids a policy
issued on the faith of the application); Gillan v. Equitable Life Assur.
Soc., 10 N.W.2d 693, 696-97 (Neb. 1943); 46 AM. JUR. 2D Insurance §
1008 (2000). Also based on plaintiff’s statement, we can conclude that
decedent orally represented to Roberts that he was not hospitalized in the
five years previous to the date of application.
Next, we consider decedent’s written representations, made by signing
the insurance application. Questions four and five of the insurance
application demanded of decedent whether, in the past five years, he had
been given a blood or urine test, or had taken any medication for any
condition, or even had any disease or condition not indicated earlier in
the application. While the boxes for each question are marked yes, the
application indicates that decedent was treated for, and taking
medication for, hypertension. This comports with plaintiff’s oral
testimony. Accordingly, by signing the application, we can conclude
decedent made the written representation that the only disease decedent
had in the preceding five years was hypertension, and the only
medication he had taken in the past five years was for hypertension. See
Phoenix Mut., 120 U.S. at 189.
B. Decedent’s Misrepresentations
Plaintiff has not produced evidence that decedent was not diabetic or did
not have knowledge of his diabetes, only that she did not have
knowledge of his condition at the time of the application. Plaintiff also
argues that decedent was not taking medication for diabetes at the time
of the application. However, she did not claim that decedent did not take
any medication for diabetes in the preceding five years. Of course, the
burden is on the moving party to establish the facts that would cause
decedent’s representations to be misrepresentations.
NWL and South Seas point to decedent’s medical records submitted with
the motion. Plaintiff objects to the admissibility of these records for lack
of foundation, failure to authenticate, and hearsay. NWL and South Seas
also submitted their letter to plaintiff of October 19, 1999, denying
plaintiff’s claim, and the statement of NWL’s employee Al Steger
(“Steger”). Each of these submissions accuse decedent of having
concealed a busy medical history in the five years preceding application,
a medical history substantiated by the medical records submitted. This
history included treatment for diabetes and other problems, including the
prescription of diabetes medication. The letter asserts that decedent was
noncompliant with his medical regime for treatment of diabetes. The
letter also asserts decedent was referred to a medical center for cardiac

arrest.
[3] As noted above, plaintiff has not contradicted this evidence. Even if
the references in the letter and statement to the medical records were
insufficient foundation to consider the medical records as evidence, each
of these sources is evidence of the contents of the record. It is true that
we must look at the evidence in the best light possible for the nonmoving
party. However, when the moving party introduces evidence of
a set of facts and the non-moving party fails to contradict this evidence,
even with a simple statement disagreeing with their truth, it is difficult to
find a positive light for the non-moving party.
[4] As decedent represented that he did not have any medical condition
other than hypertension, and did not take medication for any medical
condition other than hypertension, for the five years preceding his date
of application, and there is uncontested evidence that decedent in fact
had knowledge of another medical condition or conditions and had been
medicated for a medical condition, decedent in fact misrepresented his
medical condition to NWL and South Seas when he applied for life
insurance.
C. Effect of Misrepresentations
[5-6] An untrue statement in regard to a matter materially affecting the
health of a life insurance applicant, made by one who knows the
statement is not true, allows the insurer to avoid the policy. See 43 AM.
JUR. 2D Insurance § 1056 (2000) (the rule is “unanimous”). Plaintiff
challenges the evidence presented by NWL and South Seas indicating
that NWL would not have issued the life insurance policy if full
information had been disclosed, apparently asserting any alleged
misrepresentation would be immaterial. However, NWL and South Seas
need not prove the policy would not have been issued at all to show
materiality. If a misrepresentation causes the insurer to assume a risk it
otherwise would not have taken, or would not have taken at the rate of
premium charged, there is a legal ground for avoidance. See Bagwell v.
Canal Ins. Co., 663 F.2d 710, 711 (6th Cir. 1981); Allstate Ins. Co. v.
Winnemore, 413 F.2d 858, 862 (5th Cir. 1969); 43 AM. JUR. 2D
Insurance § 1015 (2000). Plaintiff has not introduced any evidence to
counter Steger’s statement, and the logical assumption, that the rate of
premiums would have been different if the insurer had known decedent’s
true medical condition. To suggest the premiums would have remained
unchanged even if NWL had knowledge of decedent’s diagnosed
diabetes is absurd. Thankfully plaintiff has not made this suggestion.
Accordingly, decedent’s misrepresentations were material to the risk,
and justify avoiding the policy.
208
Order
Even when viewing the submitted evidence in the best light for
plaintiff’s case, decedent materially misrepresented the conditions of his
health when he applied for life insurance. Accordingly, NWL and South
Seas properly denied plaintiff’s claim for the insurance proceeds.
The motion of NWL and South Seas for summary judgment against
plaintiff is therefore granted.
It is so ordered.

 

LAUMATA LAFOGA FAIFAIESE,v.AMERICAN SAMOA GOVERNMENT


 

LAUMATA LAFOGA FAIFAIESE, Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 13-99
February 15, 2002

 

[1] Appellate court will not set aside trial court’s findings of fact in absence of clear error.
[2] In determining whether the trial court committed clear error, the test is not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.
[3] The meaning of a statute must be ascertained in light of its purpose.
[4] The penalty provisions for Possession of a Controlled Substance (A.S.C.A. § 13.1022) include a required minimum sentence of imprisonment without parole and a requirement that such penalties are mandatory.
[5] The Exclusionary rule is explicitly established in the Revised Constitution of American Samoa.
[6] Where police obtained voluntary and intelligent consent of appellant’s wife, a person with apparent rights to use or occupy the property equal to those of the appellant, appellant had no grounds to

contest the warrantless search of his home.
[7] Under A.C.R. 10(b)(2), the appellant is required to provide the Appellate Division with record adequate to permit a fair and adequate review.
[8] Beyond a reasonable doubt should not be treated as an impossible hurdle.
[9] Upon review of facts, verdict must stand if it is determined that rational trier of fact could find guilt beyond reasonable doubt.
[10] The determination whether an expert witness has sufficient qualifications to testify is a matter within the trial court’s discretion.
[11] A trial court’s decision to admit expert opinion is reviewed for abuse of discretion.
[12] An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.
[13] Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors.
[14] Determination of whether expert witness has sufficient qualifications to testify is matter within trial court’s discretion, and reviewing court cannot reverse for abuse of discretion unless it has definite and firm conviction that court below committed clear error of judgment in conclusion reached upon weighing of relevant factors.
[15] Since T.C.R.Ev. 702 mirrors the language of Fed. R. Evid. 702, T.C.R.Ev. is likewise controlled by Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993).
[16] Under Daubert test, trial judge is to decide whether evidence rests on reliable foundation and is relevant to task at hand.
[17] When assessing the reliability of any expert’s testimony, the trial court may consider the Daubert factors to the extent relevant, which will depend upon the nature of the issue, the expert’s particular expertise and the subject of his testimony.

[18] Trial judge’s determination allowing expert testimony was not abuse of discretion under T.C.R.Ev. 702 and Daubert test where reliability of testimony had been established by witness’s training, expertise and experience in narcotics investigations.
[19] The trial judge is granted wide latitude in making a determination whether technique qualifies as scientific knowledge under Daubert. The inquiries to determine whether a technique qualifies as scientific knowledge under Daubert are whether the technique has been tested, whether it has been subject to peer review and publication, the known or potential rate of error, and its general acceptance.
[20] The Duquenois-Levine test has been used by law enforcement for many years, has been tested for reliability and has been the subject of scholarly review. While test is not free of error and its use has been matter of scholarly dispute, neither factor rises to level of being abuse of discretion for its acceptance by a trial judge.
Before RICHMOND, Associate Justice, WARD,* Acting Associate Justice, ATIULAGI, Associate Judge, and LOGOAI, Associate Judge.
Counsel: For Appellant, Bentley C. Adams III, Asst. Public Defender
For Appellee, John W. Cassell, Asst. Attorney General
OPINION AND ORDER
Appellant Laumata Lafoga Faifaiese appeals his conviction for Possession of a Controlled Substance, in violation of A.S.C.A. § 13.1022 (1992), amended by P.L. No. 25-34 (1998). Appellant petitions this Court to review three issues: (1) the Trial court’s discretion to consider different sentencing options under the drug possession statute, A.S.C.A. § 13.1022; (2) the failure to suppress appellant’s statements to the police; and (3) his guilt beyond a reasonable doubt.
Standard of Review
[1] An appellate court will not set aside a trial court’s findings of fact in the absence of clear error. A.S.C.A. § 46.2403(b); Toleafoa v. Am. Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994). “[T]he test is not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.” Id.
* Honorable John L. Ward II, Judge, District Court of American Samoa,
serving by designation of the Secretary of the Interior.
7
Factual and Procedural Background
On April 24, 1999, at about 9:30 a.m. two police officers, Lt. Leuma and Sgt. Clemens, responded to a call to the Department of Public Safety’s Substation West in Tafuna from Alice Faifaiese (“Alice”), appellant’s wife, reporting that she had been beaten up by appellant. The officers arrived in the village of Vaitogi and observed Alice approximately 10 minutes after the phone call had been made. She was crying and shaking. Her face was reddened and she told the officers that appellant had slapped her several times and ripped her shirt. While talking to Alice the officers observed the appellant emerging from his home. Lt. Leuma approached the appellant and asked him to remain with Sgt. Clemens while he continued to talk with Alice. Lt. Leuma, accompanied by Alice, then proceeded inside the appellant’s home. Lt. Leuma asked and received permission to search the house from Alice.
Lt. Leuma entered the appellant’s bedroom and saw what appeared to be a marijuana cigarette and appellant’s passport in a plastic bag on a night table. Alice picked up and handed these items to Lt. Leuma. The cigarette was later tested and found to contain marijuana. Alice then pulled out a bag from under the bed. Inside the bag Lt. Leuma found seven ziplock baggies containing what appeared to be marijuana and a package of Zig-Zag rolling papers. Forensic testing established the substance inside the baggies to be marijuana.
Lt. Leuma then left the house and had appellant placed under arrest. Appellant was taken to Substation West and advised of his Miranda rights using the Samoan language printed departmental form. Appellant indicated that he understood his rights and was willing to waive them, both verbally and in writing at appropriate places on the form. Appellant, in his statement, said that Alice had “begged [him] to go and buy marijuana,” and that he had “rolled four cigarettes and used three of them, and one cigarette remained and it is now in the hands of the police,” and that these were “marijuana cigarettes.”
Alice arrived at the police station that same day at approximately 12:20 p.m. and submitted a “voluntary statement” form to Sgt. Clemens. Sgt. Clemens interviewed her regarding the full details of the incident, and as a result an additional written statement was given by Alice, which included details of the assault and her consent to the search of the house. Sgt. Clemens then obtained an immediate arrest warrant for appellant.
The following day, April 25, 1999, and thereafter, Alice tried to have the

case dropped. Later, at trial, Alice testified to engaging in a “war of words” with appellant and denied any physical contact. She also denied giving consent to Lt. Leuma to search the house, and claimed she went to
the police station against her will and that Sgt. Clemens made her write the additional written statement at the police station.
Appellant was charged on April 30, 1999 with possession of a controlled substance and assault in the third degree. The case was tried on August 18 and 19, 1999 before a jury. The jury found the appellant guilty of unlawful possession of the controlled substance of marijuana and not guilty as to the assault. On September 10, 1999, the Trial court denied probation as a sentencing option for a defendant convicted of possession of a controlled substance. On October 5, 1999, appellant was sentenced to five years in prison. On November 8, 1999, the Trial court denied appellant’s motion for reconsideration or new trial. Appellant filed a notice of appeal on November 10, 1999, and an amended notice of Appeal on November 17, 1999. This appeal was heard on December 5, 2001.
Discussion
A. Trial Court’s Sentencing Options under A.S.C.A. § 13.1022
Appellant alleges error by the Trial court in its construction of the mandatory sentencing provision of A.S.C.A. § 13.1022, the possession of a controlled substance statute. He urges this Court to interpret the much amended sentencing language of this statute in light of the standard court dispositional options as outlined under A.S.C.A. § 46.1902, thereby allowing a person convicted under the possession of controlled substance statute to receive a term of conditional and revocable probation rather than a mandatory minimum term of imprisonment.
[2-3] The meaning of a statute must be ascertained in light of its purpose. Am. Samoa Gov’t v. Gatoloai, 23 A.S.R.2d 65, 68 (Trial Div. 1992). Absent contrary legislative intention, a statute should be interpreted according to its plain meaning. Am. Samoa Gov’t v. Alo, 2 A.S.R.3d 91, 92 (Trial Div. 1998) (citing United States v. Turkette, 452 U.S. 576 (1981)). An interpretation should be avoided which construes a statutory provision to be meaningless or nugatory. Id. at 92 (quoting 73 AM. JUR. 2D Statutes § 249 (1974)).
The statute under which appellant was convicted, and is at issue before this Court, reads as follows in pertinent part:
13.1022 Possession of controlled substance unlawful.

(a) Except as authorized by the director, it is unlawful for a person to possess a controlled substance.
(b) A person who violates this section is guilty of a felony and shall be punished as follows:
(1) for a first offense, a fine not less than $5,000 and not more
than $20,000 or not less than 5 years and not more than 10 years in prison, or both;
* * *
There shall be no parole for a conviction under this section.
(c) The above penalties are mandatory.
The current wording of the statute was enacted in P.L. No. 25-34 (1998). The amendment doubled the maximum possible penalties for a first-time offense and explicitly denied parole to one convicted thereunder. These changes are reflective of a legislative intent to toughen the punishment for possession of controlled substances.1
1 The legislative history on this subject illustrates this intent. The crime
of possession of a controlled substances was first enacted in P.L. 13-56
(1974), codified at 21 A.S.C. § 2553, and punishable as a misdemeanor
by imprisonment for not more than one year or a fine of $500.00.
Additionally, 21 A.S.C. § 2555 allowed for “deferred proceedings”
treatment for first offenders. The crime of possession was upgraded by
amendment in 1984 to a Class D felony for the first offense, a Class C
felony for the second offense, and a Class B felony for a third or more
offenses. P.L. 18-40 (1984), codified at A.S.C.A. § 13.1022. Deferred
proceedings, however, remained permissible in 1984, codified at
A.S.C.A. § 13.1024.
The Legislature did away with deferred proceedings by repealing
A.S.C.A. § 13.1034 in P.L. 25-19 (1998). The Legislature made the
following findings in the preamble to P.L. 25-19:
Some 23 years ago, the Legislature did not realize that
possession of controlled substances such as marijuana can
threaten the health and natural attributes of our children. In
1974, our lawmakers were conceived with the notion that mere
possession of a small amount of illegal drugs could affect just
the user. Present day possession of controlled substance no
longer consists of a small amount but contains a large quantity
and are dispersed regularly to our people, and has found its way
to our younger population. A serious threat to the well being of
our children is clearly manifested.
The preamble then concluded:
The “deferred proceedings” provisions of section 13.1024 has
definitely outlived its purpose if there was one. The Court must
proceed to enter its judgment and impose sentencing regularly

Appellant submits that the statute allows the Court to punish a guilty defendant by imposing a fine and probation, with a term of detention, or such other appropriate provisions, as conditions of probation. Appellant points to the use of the disjunctive “or” and “or both” in the statute to justify this interpretation and to allow the application of A.S.C.A. § 46.2203 (defining eligibility for probation) and A.S.C.A. § 46.2206 (allowing detention as a condition of probation).
The sentencing court’s general sentencing options under A.S.C.A. § 46.1902 for criminal case disposition are limited to “any appropriate combination” (emphasis added). The language “appropriate” as used in that section limits the trial court’s dispositional options in criminal cases arising under A.S.C.A. Title 46 to those term limits, definitions, and classifications which generally apply to most criminal cases. It is true that where not otherwise specifically directed by the Legislature in the penalty enactments of Title 46, the sentencing court may, in its sound discretion, find that an appropriate disposition of a particular case should involve probation rather than only imprisonment. See A.S.C.A. § 46.1902.
[4] However, the instant case falls outside of this general dispositional approach because the possession statute is codified outside of Title 46. The possession statute’s specific penalty provisions include a required minimum sentence of imprisonment without parole and a requirement that such penalties are mandatory. With respect to “appropriate” dispositional treatment of non-Title 46 convictions, A.S.C.A. § 46.1901(a) specifically provides:
46.1901 Authorized Dispositions
(a) Every person found guilty of an offense, whether defined in this title or in the American Samoa Code Annotated in accordance with the classifications in this chapter, shall be dealt with by the court in accordance with the provisions of this chapter, except that for offenses defined outside this title and not in accordance with the classifications of this chapter and not repealed, the term of imprisonment or the fine that may be imposed is that provided in the statute defining the offense.
An “appropriate” disposition of a conviction under the possession statute therefore requires the sentencing court to impose at least a mandatory minimum fine of $5,000.00 or a mandatory minimum prison term of five years, or both. The prison term is to be served without parole, as
pursuant to 13.1022 A.S.C.A. [Emphasis added.]

specified by the Legislature. Reiterating its intent that at least a substantial minimum fine or prison term be imposed, the Legislature concludes the penalty section of that statute with “(c) The above penalties are mandatory.”
The legislative intent and the language of the qualifying and applicable statutes clarify the language utilized in this drug possession statute. The result makes it sufficiently clear to impart a specific and substantial limitation upon the sentencing court’s general dispositional options under A.S.C.A. § 13.1022. Under this statutory scheme, probation is not an “appropriate” disposition. See also Preamble to P.L. 25-19 (1998).
B. Evidentiary Admission of Appellant’s Statements
Appellant argues that his statements to the police were improperly admitted at trial. This argument is based upon the assertion that appellant was subject to an illegal warrantless arrest and that, therefore, the fruits of that unlawful arrest are excludable. See Costello v. United States, 365 U.S. 265 (1961).
[5] The exclusionary rule allows the suppression of evidence obtained through the use of unreasonable searches and seizures. Mapp v. Ohio, 367 U.S. 643 (1961). The Revised Constitution of American Samoa, Article 1, Sec 5, prohibiting unreasonable searches and seizures, tracks the language of the Fourth Amendment to the United States Constitution but then includes the following:
Evidence obtained in violation of this section shall not be admitted in any court.
[6] This last sentence explicitly entrenches the exclusionary rule in the American Samoa Constitution. Am. Samoa Gov’t v. Samana, 8 A.S.R.2d 1, 3 (Trial Div. 1988). This provision is implemented through A.S.C.A. §§ 46.080l-.0807. To arrest a suspect, an arrest warrant is generally required, however, the statute describes a number of situations in which a warrant is unnecessary. See Am. Samoa Gov’t v. Gotoloai, 23 A.S.R.2d 65, 67 (Trial Div. 1992). One of these instances is when there is a felony committed in the presence of the arresting officer. A.S.C.A. § 46.0805(1). Oddly, appellant does not contest the warrantless search of the premises where the drugs were found. Regardless, it would have been a fruitless claim as the police had the voluntary and intelligent consent of appellant’s wife Alice, a person with apparent rights to use or occupy the property equal to those of the appellant. See United States v. Matlock, 415 U.S. 164, 171 (1974); Frazier v. Cupp, 394 U.S. 731, 740 (1969).

With the consent to the warrantless search being judged to surpass the objective standard required in such an instance, see Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the police in this matter were properly and legally inside the appellant’s residence. When Alice gave the narcotics to the police officer, he was immediately presented with the commission of a felony, possession of a controlled substance, in violation of A.S.C.A. § 13.1022. Therefore, under the exception of A.S.C.A. § 46.0805(1), the appellant’s warrantless arrest was proper and his statements once in custody were not “fruit of the poisonous tree.” Rather, they were voluntary and informed statements relevant to the police investigation, and were hence properly admitted into evidence by the Trial court.
[7] The Government puts forth two further procedural arguments to justify the denial of suppression of appellant’s statements to police. First, that the appellant failed to provide the Appellate Division with an adequate record permitting fair and adequate review under A.C.R. 10(b)(2). Second, that the appellant’s motions to suppress his statements were correctly denied as being untimely under T.C.R.Cr.P 12(b)(3). These claims are both, in our opinion, meritorious. However, with this claim being denied on the merits, we will not delve any deeper into these matters.
C. Sufficiency of the Evidence
[8-9] The evidence presented at trial was sufficient to support a finding of guilt beyond a reasonable doubt. Beyond a reasonable doubt should not be treated as an impossible hurdle. See generally Am. Samoa Gov’t v. Uo, 4 A.S.R.2d 14 (Trial Div. 1987) (burden of proof beyond a reasonable doubt in criminal cases does not prohibit trier of fact from drawing inferences from the evidence). If, upon review of the facts, it is determined that a rational trier of fact could find guilt beyond reasonable doubt, the verdict must stand. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Appellant claims reversible error in two particulars. First, he points out that he was charged with possessing a controlled substance “on or about March 21, 1999,” but convicted of possessing the substance “on or about April 24, 1999.” Appellant makes a technically correct assertion. The information filed against appellant does allege in Count I commission of the offense of possession of a controlled substance “on or about March 21, 1999.”
However, Count II of the information, charging a related misdemeanor offense, lists “[o]n or about April 24, 1999,” as the date of incident.

Furthermore, the criminal complaint that initiated the prosecution against appellant, as filed in District Court on April 26, 1999, listed “[o]n our [sic] about April 24, 1999,” as the date the alleged unlawful possession occurred. Relevant testimony and statements of counsel at trial all reflect the “April 24, 1999,” date of when the charged offense occurred.
Appellant has provided no threshold showing of prejudice by what the record reveals as a typographical error in the information. No objections are apparent in the record as to the relevancy of testimony concerning appellant’s actions on or about April 24, 1999, and appellant did not otherwise raise and preserve this issue at trial. This Court may not presume prejudice where the appellant has failed to demonstrate any.
Appellant next challenges admission of Sgt. Clemens’ testimony as an expert and the introduction of the results of his forensic analysis of the substance seized as reversible error. Admission of this evidence was not reversible error.
[10-14] The determination whether an expert witness has sufficient qualifications to testify is a matter within the trial court’s discretion. United States v. Garcia, 7 F.3d 885, 889 (9th Cir. 1993). A trial court’s decision to admit expert opinion is reviewed for abuse of discretion. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); United States v. Burdeau, 168 F.3d 352, 357 (9th Cir. 1999); United States v. Cruz, 127 F.3d 791, 800 (9th Cir. 1997); United States v. Webb, 115 F.3d 711, 713 (9th Cir. 1997); United States v. Ortland, 109 F.3d 539, 542 (9th Cir. 1997); United States v. Cordoba, 104 F.3d 225, 229 (9th Cir. 1997). An abuse of discretion is “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Wing v. Asarco Inc., 114 F.3d 986, 988 (9th Cir. 1997); Int’l Jensen, Inc. v. Metrosound U.S.A. Inc., 4 F.3d 819, 822 (9th Cir. 1993). Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors. Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998) (sanctions); Solomon v. N. Am. Life and Cas. Ins. Co., 151 F.3d 1132, 1138-39 (9th Cir. 1988) (motion to amend complaint); In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir. 1996) (sanctions); Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir. 1996) (denial of attorney’s fees).
The standard for admission of expert testimony is governed by T.C.R.Ev. 702:
If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
[15] This rule mirrors the language of Fed. R. Evid. 702, and as such on this issue this Court will apply the law as applicable to a federal trial. The application of Fed. R. Evid. 702 is controlled by the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993), which established the test to be employed by a trial judge in deciding on the admission of expert scientific testimony and evidence.
[16-17] Under the Daubert test, the trial judge is to decide whether the evidence offered both rests on a reliable foundation and is relevant to the task at hand. Id. at 590. The reliability standard comes from the Rule 702 requirement that an expert’s testimony pertain to “scientific . . . knowledge,” since the adjective “scientific” implies a grounding in the methods and procedures of science, and the term “knowledge” connotes a body of known facts or of ideas inferred from such facts or accepted as true on good grounds. Id. The Rule then examines relevance by insisting that the testimony “assist the trier of fact to understand the evidence or to determine a fact in issue,” which therefore requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Id. When assessing the reliability of any expert’s testimony, not just a scientific expert’s, the trial court may consider the Daubert factors to the extent relevant, which will depend upon the nature of the issue, the expert’s particular expertise and the subject of his testimony. Kumho Tire, 526 U.S. at 151.
[18] This inquiry is a flexible one. Daubert, 509 U.S. at 594. The Trial court was within its discretion to admit Sgt. Clemens as an expert witness, to allow his expert opinion testimony, and to include the results of the Duquenois-Levine Field Test. Sgt. Clemens had a particular expertise in this field and testing procedure as demonstrated through his over six years of experience in narcotics investigations, having been involved in over sixty narcotics cases, having been trained in visual, microscopic and chemical identification of marijuana by the Drug Enforcement Administration, U.S. Customs, and the Federal Bureau of Investigation, and having been previously admitted by the High Court as an expert in forensic analysis. These factors establish the reliability of the testimony. Therefore, the trial judge’s determination allowing his expert testimony was well within the granted discretion under T.C.R.Ev. 702 and the Daubert test.

[19-20] As to allowing the results of the Duquenois-Levine Field Test that was conducted by Sgt. Clemens, the Trial court was again within its discretion. The inquiries to determine whether a technique qualifies as scientific knowledge under Daubert are whether the technique has been tested, whether it has been subject to peer review and publication, the known or potential rate of error, and the old common law test of general acceptance.2 Daubert, 509 U.S. at 593-94. The trial judge is granted wide latitude in making this determination. Kumho Tire, 556 U.S. at 152. The Duquenois-Levine test is one of the conventional tests for the identification of marijuana. See In re Robert B., 218 Cal. Rptr. 337, 342 (Cal. Ct. App. 1985). It has been used by law enforcement for many years, has been tested for reliability and is the subject of scholarly review.3 While the test is not completely free of error and its use has been a matter of scholarly dispute, neither of these factors rises to the level of being an abuse of discretion for its acceptance by the trial judge. Further, Sgt. Clemens performed visual and microscopic tests on the substance, which in conjunction with the forensic analysis results rises above the rational trier of fact standard on appeal.
Appellant’s final claim also fails as there was sufficient evidence the Faifaiese was knowingly in possession of marijuana. Appellant’s claim that the evidence fails to prove that the substance seized was in fact marijuana does not overcome a clear error standard. The substance seized was subject to forensic analysis and the results of this analysis were admitted through the testimony of a Sgt. Clemens. Appellant’s claim that what was found was only Tetrahydrocannabinol (“THC”) and not marijuana is a distinction this court does not accept. See United States v. Barton, 995 F.2d 931, 936 (9th Cir. 1993) (including male marijuana plants that do not contain THC as drugs in order to calculate a defendant’s offense level under the Sentencing Guidelines). Additionally, A.S.C.A. § 13.1006 includes THC as a controlled substance prohibited under the statute, possession of which is therefore a crime. The evidence as present at trial was sufficient to support the
2 Evidence of scientific test is admissible when the technique has
received general acceptance by recognized experts in the field, with the
determination of general acceptance being a question of fact for the trial
court, which we review on an abuse of discretion standard, as above.
People v. Marx, 54 Cal. App. 3d 100, 109 (Cal. Ct. App. 1975).
3 See, e.g., comments in Stein, Laessig, and Indriksons, An Evaluation of
Drug Testing Procedures Used by Forensic Laboratories and the
Qualifications of Their Analysts, WIS. L. REV. 727 (1973); Fochtman and
Winek, A Note on the Duquenois-Levine Test for Marijuana, 4 CLINICAL
TOXICOLOGY 287 (1971); see also State v. Wind, 208 N.W.2d 357, 360-
61 (Wis. 1973).
16
jury’s findings of fact.
Conclusion
For the reasons stated above, appellant’s conviction and the judgment are affirmed.
It is so ordered.

 

JOE PEDRO,v.AMERICAN SAMOA GOVERNMENT


 

JOE PEDRO, Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 18-00
March 13, 2002

 

[1] The double jeopardy clause of the Fifth Amendment applies to alterations in sentencing.
[2] At the core of the double jeopardy clause is the principle that a defendant must not be punished more than once for the same offense.
[3] Misconduct by a probationer who has served a period of detention but not completed his full term of probation may be sanctioned by the supervising court, and may be required to serve all or part of the remaining probation term in detention.
[4] The “term” of probation is the length of a defendant’s probation as determined by the sentencing court within the maximum limits established by statute.
[5] “Conditions” of probation are those requirements established by the court for the defendant to follow during part or all of the term of probation.
[6] Detention during the term of probation is designated by statute as a permissible condition of probation.
[7] Conditions of probation may generally be revoked or modified at any time by the court.
[8] Where a defendant violates a condition of probation prior to the expiration or termination of his probation term, the court may revoke probation and either require execution of a previously suspended sentence, impose an authorized sentence upon a defendant, or continue the defendant on probation with existing, modified or enlarged

conditions of probation.
[9] The statutes do not provide any clear grant of authority for the courts to enlarge a probation terms.
[10] Unless earlier terminated by the court, the term of probation generally expires at the end of its duration.
[11] The law authorizes the court under certain circumstances to discharge a defendant from the conditions of probation prior to the expiration of his term of probation.
[12] A.S.C.A. § 46.2209 only allows modification or enlargement of conditions of probation, not the length of the term of probation.
[13] The statutory powers of the court to enforce conditions of probation must be initiated (or made manifest) prior to the expiration of the term of probation.
[14] Probation cannot remain “conditional” beyond the maximum term.
[15] Where parole has been revoked, the parole violator serves not only the balance of his unexpired prison term but also, as an additional prison term, all of his or her parole term.
Before RICHMOND, Associate Justice, WARD,* Acting Associate Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate Judge.
Counsel: For Appellant, Bentley C. Adams III, Asst. Public Defender
For Appellee, John W. Cassell, Asst. Attorney General
ORDER AND OPINION
Procedural History
On June 3, 1997, appellant pled guilty to one count of rape in violation of A.S.C.A. § 46.3604(a)(2), as a Class B felony. As such, the offense is punishable by a sentence of imprisonment of not less than five years and not more than 15 years, in accordance with A.S.C.A. § 46.3604(b) and A.S.C.A. § 46.2301(2). On June 27, 1997, appellant was sentenced to 10 years’ imprisonment. Execution of the sentence was suspended, and
* Hon. John L. Ward II, District Court Judge, District Court of American
Samoa, by designation of the Secretary of the Interior.

appellant was placed on a five-year term of probation.
The probation was under certain conditions. Appellant was to serve the first 30 months in detention, at the end of the detention period depart and remain outside of the Territory during the balance of the probation term, and conduct himself as a law-abiding citizen.
Appellant departed the Territory in August of 1999 after completing the 30-month detention period. However, he was found in the Territory on July 28, 2000, in violation of the “remain outside” condition of his probation. On August 11, 2000, appellant admitted to violating the conditions of his probation. On September 7, 2000, the trial court modified or enlarged the detention condition of appellant’s probation by requiring him to serve an additional 30 months of detention.
On September 18, 2000, appellant moved for reconsideration or new trial with respect to the September 7 modification. The trial court denied this motion on December 5, 2000, and this appeal followed.
Discussion
Appellant raises two issues of error. He first argues that the imposition of additional detention time within his term of probation constitutes a double jeopardy violation of the Fifth Amendment of the U.S. Constitution and the comparable provision set forth in Article I, Section 6 of the Revised Constitution of American Samoa. Appellant also contends that application of the September 7, 2000 modification will create a period of detention beyond the original five-year term of probation, purportedly a statutory violation.
A. Double Jeopardy
[1-2] As both parties agree, the double jeopardy provision of the U.S. CONST. AMEND. V applies to alterations in sentencing. United States v. Benz, 282 U.S. 304, 356 (1930). At the core of the double jeopardy clause, however, is the principle that a defendant must not be punished more than once for the same offense. See, e.g., Brown v. Ohio, 432 U.S. 161, 164 (1977); North Carolina v. Pearce, 395 U.S. 711, 718 (1969). Appellant’s argument fails this test. The trial court’s order of September 7, 2000, did not alter the punishment for appellant’s conviction for rape, and thus he was not punished more than once for the same offense.
We characterize the arguments advanced by appellant’s counsel in his opening brief as “good paper spoilt” and are left to speculate as to why and how he perceives that the double jeopardy prohibitions apply to the

facts of this case. We suspect counsel was intending to argue that because a prisoner who has served his term of imprisonment has constitutional protection against that sentence being later expanded by the sentencing court, a probationer under a court monitored revocable and conditional term of probation may reasonably expect his condition of detention, once served, will likewise not be expanded by the sentencing court.
[3] We find the facts of this case do not support appellant’s novel legal position. Rather, a closer analogy would be to that of a defendant who has served the prison term of his sentence of imprisonment and was released on parole subject to certain conditions, and who then violated the conditions of his release from confinement. In response to such violations, the parole board may revoke the defendant’s parole and reincarcerate him to serve out the balance of his original sentence of imprisonment. Under the applicable statutes, misconduct by a probationer who has served a period of detention but not completed his full term of probation may likewise be sanctioned by the supervising court, and the probationer may be required to serve all or part of the remaining probation term in detention.
We agree with and therefore affirm that part of the trial court’s holding the double jeopardy provisions of the U.S. Constitution and the Revised Constitution of American Samoa do not apply to the facts of this case. We next consider appellant’s claim that a condition of probation may not extend beyond completion of appellant’s maximum legal probation term of five years.
B. Detention Beyond the Probation Term
Appellant next ascribes error to the trial court’s decision to impose an additional 30 months’ detention, the completion of which will extend five months and some days beyond the end of the original five-year term of probation imposed by the trial court.
[4-9] Before discussing this issue, we note that the continuing use of the inexact phrase “terms and conditions of probation” has caused some confusion among defendants, the general public, and the bar. The “term” of probation is the length of a defendant’s probation as determined by the sentencing court within the maximum limits established by statute. “Conditions” of probation are those requirements established by the court for the defendant to follow during part or all of the term of probation. Detention during the term of probation is designated by statute as a permissible condition of probation. By statute, conditions of probation may generally be revoked or modified at any time by the court. In those specific cases where a defendant violates a

condition of probation prior to the expiration or termination of his probation term, the court may revoke probation and either require execution of a previously suspended sentence or impose an authorized sentence upon a defendant, or may continue the defendant on probation with existing or modified or enlarged conditions of probation. The statutes do not provide any clear grant of authority for the court to enlarge the probation term, which, unless earlier terminated by the court, generally expires at the end of its duration. A more detailed analysis follows.
The statutes governing the trial court’s authority to impose a term of probation upon a defendant convicted of a crime in the Territory are found in A.S.C.A. §§ 46.2201-.2215. Only one section in the probation statutes—A.S.C.A. § 46.2206 Detention condition of probation—has been amended by the Legislature since enactment in 1979. Originally, § 46.2206 authorized a 60-day maximum period of detention as a condition of probation in felony cases. The Legislature increased the maximum period in 1983 from 60 days to one year. The Legislature in 1987 enacted the present language of the statute, which now limits detention of a defendant on probation for a felony conviction to no more than one-third of the maximum term of imprisonment which could be imposed by the trial court for that particular felony, or 15 years when the maximum term prescribed is life imprisonment. A.S.C.A. § 46.2206(2).
Appellant bases this allegation of error on the language in A.S.C.A. § 46.2206 as last amended, which allows the trial court to impose “a condition of probation that the defendant submit to a period of detention in an appropriate institution at whatever time or intervals within the period of probation, consecutive or nonconsecutive, the court shall designate.” A.S.C.A. § 46.2206 (emphasis added). Appellant argues that because the original five-year term of probation was not altered by the trial court, the enlargement of the detention period to extend beyond his original five-year term of probation is prohibited by this language.
[10] The applicable sections of the probation statutes, for the purpose of this inquiry, may be grouped under two main and one minor heading. A.S.C.A. §§ 46.2204-.2207 contain provisions generally applicable when the trial court imposes a probated sentence. A.S.C.A. § 46.2208 specifically authorizes the court under certain circumstances to discharge a defendant from the conditions of probation prior to the expiration of his term of probation. A.S.C.A. §§ 46.2209-.22l5 address the powers and procedures of the trial court in those situations where, as in the instant case, the defendant has violated a condition of his probation.
Appellant’s position implicitly relies upon the statutory language in the

first group of statutes addressing the imposition of the probated sentence, particularly A.S.C.A. § 46.2204(a)(1) which, standing alone, appears to limit a term of probation for a felony conviction to “a term of years not less than 1 year and not to exceed 5 years for a felony.” This maximum term limit of probation must, however, be interpreted in light of the preceding subsection which modifies its application. A.S.C.A. § 46.2204(a) prefaces subsection (1), stating that “[u]nless terminated under 46.2207 through 46.2215, the terms during which probation shall remain conditional and be subject to revocation are.” (emphasis added).
[11] Because this case does involve probation violation proceedings under A.S.C.A. §§ 46.2209-.2215, we need not fully consider the balance of subsection (a) above except to note it facially limits conditional and revocable terms of probation to not more than five years for felonies. Whether or not this language would therefore preclude a trial court from imposing a term of probation in excess of five years for a felony, that was either non-conditional or non-revocable after its fifth year, must await a case presenting those particular facts to be determined.
This case must be reviewed under the beginning clause of A.S.C.A. § 46.2204(a), “[u]nless terminated under 46.2207 through 46.2215.” The Legislature’s use of the word “terminated” and reference to the last nine sections of the probation statutes do not present, on their face, a clear exception to the limits of probation terms found in the balance of that subsection. Although “termination” is used in a specific sense in A.S.C.A. § 46.2208, under which the trial court, with good cause, may truncate the term of probation prior to the expiration date of the imposed term of probation, the Legislature obviously intended “terminated,” as used in § 46.2204(a), to have a broader meaning than the “termination and discharge” provision of § 46.2208. Otherwise, only that section, rather than nine other sections of law, would have been referenced. This strongly indicates the Legislature intended “terminated” to be used in its broader sense to include both “termination and discharge,” which relieves a defendant from his probation with no further punishment, and “revocation” of probation, which subjects the defendant to regular institutional confinement to serve any balance owing on his sentence from the trial court.
[12] As we understand the trial court’s decision in this matter, the court relied upon the special procedures and powers of the sentencing court in conducting hearings with respect to defendants arrested for violations of probation, found in A.S.C.A. § 46.2213, when enlarging appellant’s period of detention to the maximum statutory limit of five years for this offense. Although that language does provide for somewhat different

procedures for a trial court presented with a probation violator, we do not find that these procedures alter the limited options facing the court in probation revocation hearings as set forth in A.S.C.A. § 46.2209. Under § 46.2209 the trial court may continue the probationer “on the existing conditions, with or without modifying or enlarging the conditions, or, if the continuation, modification or enlargement is not appropriate, may revoke probation and order that any sentence previously imposed be executed.” Notwithstanding the special proceedings under § 46.2213, § 46.2209 only allows modification or enlargement of conditions of probation, not the length of the term of probation.
As originally imposed by the trial court on June 27, 1997, execution of appellant’s 10-year sentence for felony rape was suspended, and appellant was placed on the five-year maximum period of a conditional and revocable term of probation. Appellant was required by conditions of probation imposed by the court to serve a 30-month detention period (well within the maximum period of one-third of the maximum 15-year prison sentence authorized by statute for this offense), to depart the Territory immediately after the detention period (which, with credit for time served, occurred in August 1999) and not return to the Territory during the balance of the five-year probation term, and to be a law abiding citizen.
Appellant served his detention period and departed the Territory in August 1999, only to return some months later and be arrested on July 28, 2000, well before the five-year period of conditional and revocable probation was to expire on June 26, 2002. After a hearing conducted under A.S.C.A. § 46.2213, the trial court modified or enlarged appellant’s condition of detention to an additional 30 months with credit for time served since the arrest in July 2000. As this action does not involve an imposition of sentence of imprisonment, the trial court correctly denied appellant’s demand to reduce the period of the probation detention condition for all or part of the time appellant had been on probation. A.S.C.A. § 46.2209.
Clearly, the trial court sought the delicate balance between punishing this probation violator while showing leniency by enlarging or modifying the detention condition of his term of probation rather than revoking probation and requiring appellant to serve the balance of his 10-year sentence of imprisonment. However, under the specific facts of this case, the particular sentence and probationary term, and the conditions imposed, the enlarged detention condition of probation may not exceed the lawful expiry date of appellant’s five-year term of probation.
[13-14] The trial court imposed the maximum felony term of probation

of five years “during which probation shall remain conditional and subject to revocation.” A.S.C.A. § 45.2204(a). The statutory powers of the court to enforce conditions of probation must be initiated (or made manifest) prior to the expiration of the term of probation. See A.S.C.A. § 46.2215. Because the trial court may not extend the maximum term of appellant’s five-year probation, it will lose statutory authority to enforce the enlarged condition of detention at the conclusion of the term of probation. As a matter of law, appellant’s probation cannot remain “conditional” beyond the maximum term.
[15] The trial court, on remand, may either limit its enlargement of appellant’s period of detention condition to the expiration date of the probationary term or earlier, or may revoke his probation and require execution of the imposed but suspended sentence of 10-years’ imprisonment, which with time served credited, would afford appellant mandatory parole sometime in September 2004, unless earlier paroled by the parole board. We note, however, and draw appellant’s attention to the fact that unlike the case of a probation violator, the Legislature has specifically provided that upon revocation of parole, the parole violator serves not only the balance of his unexpired prison term but also, as an additional prison term, all the parole term. A.S.C.A. § 46.2308(e).
Order
Appellant’s appeal claiming double jeopardy is denied. His appeal based on the probation statutes is granted. The portion of the additional 30 months’ detention period extending beyond the five-year probation term is set aside, and this case is remanded to the trial court to impose consequences of appellant’s violation of the departure condition of his probation consistent with this opinion and order.
It is so ordered.

 

JIANG SHUNZHE, et al.,v.DAEWOOSA SAMOA, LTD. and KIL-SOO LEE


 

JIANG SHUNZHE, et al., Plaintiffs,
v.
DAEWOOSA SAMOA, LTD. and KIL-SOO LEE, Defendants.
____________________
NGUYEN THI NGA, et al., Plaintiffs,
v.
DAEWOOSA SAMOA, LTD., KIL-SOO LEE,
TOURISM COMPANY 12, and IMS, et al., Defendants,
and
TOURISM COMPANY 12, Cross-Claimant/Counterdefendant,
v.
DAEWOOSA SAMOA, LTD. and KIL-SOO LEE,
Cross-Defendants/Counterclaimants,
____________________
NEW STAR TRADING COMPANY, LTD., Plaintiff/Counterdefendant,
v.
DAEWOOSA SAMOA, INC., and KIL-SOO LEE, Defendants/Counterdefendants.
____________________
AMERICAN SAMOA POWER AUTHORITY,
SEUNG KYU MOON, IN SAENG LEE, JElL VENTURES CO., LTD., and SAMOAN EMPLOYEES, Intervenors.
____________________
AMERICAN SAMOA GOVERNMENT, Necessary Party.
High Court of American Samoa
Trial Division
CA No. 68-99
CA No. 133-99
CA No. 93-00
88
January 4, 2002

 

[1] For purposes of particular issues, an individual may so dominate a corporation that the individuality of the person and corporation cease to exist, and recognition of their separate existence would promote the person’s unjust evasion of contractual obligations.
[2] In a consignment, the consignor retains ownership, as well as the powers of recall and setting the sale price.
[3] In a consignment, the consignee receives a commission but not the profits of the sale.
[4] In a true consignment, the consignee possesses no interest in the consigned property that may be obtained by creditors.
[5] Using contract terms that give the alleged consignor the right of reclamation if goods remain unsold, without further development of the consignment relationship, does not create a consignment.
[6] Simply holding a right of reclamation if payments are not met does not create a consignment.
[7] A conditional sale, which is not a consignment, leaves the seller with a security interest.
[8] A security interest or mortgage is not valid against another creditor unless that creditor is put on actual notice of the transaction or the interest is properly recorded with the Territorial Registrar.
[9] Review of a final administrative decision for errors of law is a matter ordinarily within the exclusive jurisdiction of the Appellate Division of the High Court.
[10] The Trial Division of the High Court is not bound by an erroneous salary calculation determined by the American Samoa Government Wage and Hour Board.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate Judge.
Counsel: For Vietnamese Plaintiffs, Virginia L. Sudbury and Christa
Tzu-Hsiu Lin

For Chinese Plaintiffs, Afoa L. Su`esu`e Lutu and Deanna
Sanitoa
For Plaintiff/Counterdefendant New Star Trading Company,
Ltd., Marshall Ashley
For Intervenor American Samoa Power Authority, Roy J.D.
Hall, Jr.,
For Intervenors Seung Nyu Moon and In Saeng Lee, Pro Se
For Intervenor Jeil Ventures Co., Ltd., Charles V. Ala` ilima
For Necessary Party American Samoa Government, Henry
Kappel, Legal Counsel to the Governor
For Defendants/Cross-Defendants/Counterclaimants Daewoosa and Kil Soo Lee, Aitofele T. Sunia and Marie A. Lafaele
For Defendant/Cross-Claimant/Counterdefendant Tourism
Company 12, Paul F. Miller
For Defendant IMS (no appearance)
OPINION AND ORDER ON SECURED PROPERTY INTERESTS AND ON ADJUDICATION OF INTERVENOR CLAIMS
The Court consolidated CA No. 93-00 with CA No. 133-99 and CA No. 68-99 and permitted the several interventions and necessary party joinder in special procedural twists after the trial of CA No. 133-99 and CA No. 68-99 in order to resolve the host of issues related to the business demise of defendant Daewoosa Samoa, Ltd. (“Daewoosa”) in American Samoa.
Although the claims and counterclaims in CA No. 93-00 involve both property interest and money claims between plaintiff New Star Trading Company, Ltd. (“New Star”) and Daewoosa and defendant Kil Soo Lee (“Lee”), by the parties’ stipulation, trial of this action on October 15 and 19, 2001, was limited to the property interest issues, and trial of other issues was deferred. Trial of the claims of intervenors Seung Nyu Moon (“Moon”), In Saeng Lee (“In Saeng”), and Jeil Ventures Co., Ltd. (“Jeil”), and necessary party American Samoa Government (“ASG”) also proceeded on October 15 and 19. Moon and In Saeng presented money claims, Jeil and ASG claimed only property interests.
As of October 15, a stipulated judgment on account for unpaid utility services had been entered in favor of intervenor American Samoa Power Authority against Daewoosa, and the wage claims of intervenors Samoan employees had been separated for later trial.
Discussion
A. The Parties, Business Relationships and Present Claims
[1] Daewoosa is a corporation organized under the laws of American Samoa, principally to produce clothing. Lee is the president and principal owner of Daewoosa. Based on the evidence introduced at the earlier trial of CA No. 133-99 and CA No. 68-99 and the present trial, Lee controlled and manipulated Daewoosa’s operations to achieve his personal ends, essentially to the exclusion of any other shareholder’s interests. For purposes of particular issues, an individual may so dominate a corporation that the individuality of the person and corporation cease to exist, and recognition of their separate existence would promote the person’s unjust evasion of contractual obligations. See Katenkamp v. Superior Court, 108 P.2d 1, 3-4 (Cal 1940); Minifie v. Rowley, 202 P. 673, 676 (Cal. 1921); Kohn v. Kohn, 214 P.2d 71, 76-77 (Cal. Ct. App. 1950). Daewoosa was clearly Lee’s alter ego with respect to the present issues under this test. New Star is a business entity organized under the laws of the Republic of Korea. New Star has engaged in business in American Samoa by providing raw materials and manufacturing equipment, specifically fabric, sewing machines, and related sewing machine equipment, to Daewoosa—and Lee. New Star has been engaged in a business relationship with Daewoosa and Lee at least since late 1999. The recent legal and financial problems of Daewoosa and Lee have led to a cessation of business and a failure to pay outstanding debts and rents. New Star claims that four containers of fabric and 92 sewing machines, along with related equipment, still in the former Daewoosa factory compound in ASG’s industrial park in Tafuna, American Samoa, were delivered to Daewoosa—and Lee—under a consignment contract rather than sale, and accordingly, it has a right to have these items returned under the theory of replevin.
Jeil, another corporation organized under the laws of the Republic of Korea, was also contractually involved with Daewoosa—and Lee. It claims possession of certain property, namely, four containers of unfinished fabric at ASG’s main dock and certain garments in various stages of completion at the former Daewoosa factory compound, as consigned property.
On January 1, 1997, ASG leased to Daewoosa—and Lee—real property for the Daewoosa factory compound. The lease was signed and then properly recorded with the Territorial Registrar on February 3, 1997. Daewoosa and Lee failed to keep up with rent according to the lease terms and owed ASG $177,007.41, unpaid rent in the amount of $160,915.65 plus 10% late charges (excluding the amount waived by ASG of an additional 50% late charge for payments more than 30 days’ delinquent) when the lease was terminated on January 30, 2001.
Under the terms of the lease, ASG held a lien on Daewoosa’s personal

property constructed or installed on the premises for unpaid rent or other debts owed to ASG. The lease also required that the premises be kept free from other liens in connection with Daewoosa’s operations. In order to satisfy the rental and other debts of Daewoosa and Lee, ASG claims ownership of all property still on the former Daewoosa lot, other than the personal property claimed by Jeil. ASG’s assertion extends to the property to which New Star also claims title.
Moon had a business relationship with Daewoosa—and Lee—from 1994 to 1999. He alleges that he was employed by Daewoosa and Lee, and was not paid. He filed a claim with the Wage and Hour Board (“the Board”), and the Board issued a finding in Moon’s favor in the amount of $250,000.
In Saeng also had a business relationship with Daewoosa—and Lee. He filed a claim for repayment of a cash loan, reimbursement of the cost of foods supplied for Daewoosa’s employees, and compensation for services rendered.
B. Jeil’s Property Interest Claim
Jeil’s claim to personal property by means of a consignment contract with Daewoosa—and Lee—has not been challenged by ASG, New Star, or Daewoosa and Lee. Moon and In Saeng have also not specifically challenged the validity of Jeil’s claims. Review of this contract confirms that the items were in fact consigned by Jeil to Daewoosa and Lee, and not sold. Jeil therefore has title to and the right to recover possession of personal property it claims.
C. Property Interest Claims of New Star and ASG
Title to the remainder of the personal property on Daewoosa’s factory compound turns on the competing claims of ASG and New Star. The ASG claim is based on both the debt of Daewoosa—and Lee—for unpaid rents and the language of the recorded lease granting ASG title to chattels remaining on the premises if Daewoosa and Lee cease to be paying tenants. New Star claims that title to the garments and machinery was never in Daewoosa’s name in the first place, that Daewoosa—and Lee—were only a consignee of the property until final payment was made to New Star per the parties’ contract.
[2-5] The line between what is legally a sale of goods and a consignment of property can be difficult to discern. A true consignment leaves the consignor with ownership, and the powers of recall and setting sale price—the consignee receives a commission but not the profits of the

sale. See Manger v. Davis, 619 P.2d 687, 691 (Utah 1980). In this type of relationship the consignee has no interest in the consigned property that may be obtained by creditors. Id. Using contract terms that give the alleged consignor the right of reclamation if goods remain unsold, without further development of the consignment relationship, does not create a consignment. See Edgewood Shoe Factories v. Stewart, 107 F.2d 123, 125-26 (5th Cir. 1939) (when an obligation arises for the alleged consignee to buy and pay for delivered goods, such that a suit could be maintained by the alleged consignor as creditor, the transaction is a sale or agreement to sell and not a consignment for sale). Though not adopted in American Samoa, where the Uniform Commercial Code is applicable, it is even more difficult to show a consignment. Bukfor, Inc. v. Star Jewelry Co., Inc., 552 S.W.2d 522, 523-24 (Tex. 1977) (there is a policy preference in permitting parties to deal with debtors on assumption that all property in debtor’s possession is unencumbered unless the contrary is on public record).
[6] The relationship between New Star and Daewoosa and Lee concerning the garments, sewing machines, and related sewing machine equipment is contested. New Star relies mainly on its written agreement with Daewoosa—and Lee, titled “General Contract for Production,” dated September 26, 1999. The language of this agreement does appear to preserve title to the property in New Star. However, closer examination of how the agreement is actually worded provides a different picture. Daewoosa and Lee did not have the option to return unsold materials to New Star by the terms of the contract. Even more telling are the terms of the transfer of the sewing machines and related sewing machine equipment. Daewoosa and Lee were bound to pay for the machines and equipment, with interest, in accordance with a payment schedule. Simply holding a right of reclamation if payments are not met does not create a consignment. See Edgewood, 107 F.2d at 125-26. Rather, these terms are more in line with a sale with a security interest. In addition, two weeks later, on October 10, 1999, New Star and Lee, on Daewoosa’s behalf, signed a document on New Star’s letterhead confirming that New Star “sold” the sewing machines and related sewing machine equipment to Daewoosa and Lee, and then outlining the payment terms.
[7-8] New Star’s property interest claim also fails before those of ASG for another reason. New Star did not record its interest in the property. A conditional sale which is not a consignment leaves the seller with a security interest. See Shantilal Brothers, Ltd. v. KMST Wholesale, 15 A.S.R.2d 115, 118 (Trial Div. 1990). A security interest or mortgage is not valid against another creditor unless that creditor is put on actual notice of the transaction or the interest is properly recorded with the

Territorial Registrar. See A.S.C.A. § 27.1510. The documents upon which New Star depends to establish its interest are unrecorded security interests.
We also note that New Star failed to obtain a foreign corporation permit to transact business in the Territory, in violation of A.S.C.A. § 30.0305, and annual business licenses, in violation of A.S.C.A. § 27.0219(a). This failure compounded the notice problem. Without this permit and license,
New Star has even more difficulty of establishing that ASG was or should have been aware of New Star’s security interest.
As ASG did not have either constructive notice by recordation or actual notice of New Star’s interest, New Star’s property interest is inferior to ASG’s claim. Therefore, except for the property properly belonging to Jeil, ASG has title to the personal property remaining on the former Daewoosa factory compound in satisfaction of its lien for unpaid rent and other debts owed by Daewoosa and Lee.
D. Moon’s Money Claim
Moon’s claim is for unpaid salary, founded on a written contract signed partially after-the-fact in June 1996. Heung-Soo Ju, by his authority as the president of Daewoosa in 1996, and Moon signed the contract. The contract provides Moon as Daewoosa’s public relations officer with a salary of $2,000 per month from June 1994 through May 1996, and with additional duties as vice-president/treasurer, $25,000 per year from June 1996. Moon was terminated by Lee or resigned his position, or both, on March 27, 1999. Thus, Moon earned, under the terms of his contract, and was not paid, $48,000 from June 1994 through May 1996, and $70,625 from June 1996 to March 27, 1999, a total of $118,625.
Moon supported his claim with the decision of ASG’s Wage and Hour Board, issued on March 10, 2000, awarding Moon $250,000 in unpaid wages. Even though the award far exceeds the terms of Moon’s employment contract, the Board apparently accepted at face value the $250,000 claim submitted by Moon. Perhaps the Board took into account Daewoosa business expenses advanced and the value of unreturned personal property provided by Moon, which he put into evidence. Even if so, however, these amounts are not salary, and Moon has not provided a contractual basis for any reimbursement of expenses or return of property.
[9-10] In any event, this Court is not being asked to judicially review a

final administrative decision for errors of law, a matter ordinarily within the exclusive jurisdiction of the Appellate Division of this Court, see A.S.C.A. §§ 4.1040, 4.1041, & 4.1044, but rather to award money damages for breach of contract and, perhaps, as enforcement of the Wage and Hour Board decision. As such, the Trial Division has jurisdiction and is not bound by the erroneous salary calculation determined by the Board. See A.S.C.A. § 4.1040(b); see also MODEL STATE ADMIN. PROCEDURE ACT § 5-101 (1981).
Moon is accordingly entitled to recover $118,625 from Daewoosa and Lee.
E. In Saeng’s Money Claim
In Saeng’s claim is for $12,658.58 in reimbursement of the cost of food and materials he supplied to Daewoosa and Lee for Daewoosa’s operations, $15,000 for the unpaid balance of a loan that he made to Daewoosa and Lee, and $16,900 as compensation for services rendered to Daewoosa and Lee, a total of $44,558.58, Lee confirmed the nature and amount of these debts in December 2000, and did not contest them during trial of In Saeng’s claim. The claim is supported by evidence and is unrefuted.
In Saeng is accordingly entitled to recover $44,558.58 from Daewoosa and Lee.
Order
1. New Star’s claim to any right to take possession of the fabric, 92 sewing machines, and related sewing machine equipment is denied.
2. Jeil is awarded title and possession of the personal property as it claims.
3. Based on the lien provided in the ASG lease to Daewoosa and Lee, ASG is awarded title and possession to all other items of personal property remaining on the premises of Daewoosa’s former factory compound in Tafuna, including but not limited to the fabric, 92 sewing machines, and related sewing machine equipment claimed by New Star, to satisfy its claim of $177,007.41 against Daewoosa and Lee.
4. Moon is awarded judgment against Daewoosa and Lee, jointly and severally, in the amount of $118,625, plus post-judgment interest at the rate of 6% per annum.
95
5. In Saeng is awarded judgment against Daewoosa and Lee, jointly and severally, in the amount of $44,448.58, plus post-judgment interest at the rate of 6% per annum.
It is so ordered.

 

ILAISA TAPENI,v.AUSAGE TAPENI


 

ILAISA TAPENI, Appellant,
v.
AUSAGE TAPENI, Appellee.
High Court of American Samoa
Appellate Division
AP No. 12-00
December 16, 2002

 

[1] Trial court’s decision on child custody issues will not be disturbed on appeal unless court has abused its discretion.
[2] When child custody dispute is between natural parents, no presumption arises as to who should get custody and court must determine which arrangement is in best interest of child.
[3] When child custody dispute is between parent (or parents) and third party, court must determine which arrangement is in best interest of child. However, fit natural parent is prima facie entitled to custody.
[4] Where American Samoa courts confront the issue of child custody in marital dissolution proceedings, the best-interests test should be applied.
[5] When custody dispute is between natural parents and a third party, fit

parents are entitled to rebuttable presumption of custody. If parent’s fitness is not rebutted, third party has burden of proof upon issue of best interests of child.
[6] A trial court can properly resort to out-of-court information in reaching its child custody decision subject to the requirements that what is so considered be made available to all involved counsel for challenge, impeachment, criticism or refutation.
[7] A person responsible for providing out-of-court information, relevant to the issue of child custody, should ordinarily be available for cross-examination.
[8] Legal basis for considering out-of-court information in determining issue of child custody in marital dissolution proceedings exists under A.S.C.A. § 45.0130 and the Court’s inherent authority.
[9] Trial court’s consideration of out-of-court information without advising parties that it was considering this information or giving them opportunity to challenge it was error.
Before RICHMOND, Associate Justice, WALLACE,* Acting Associate Justice, MOLLWAY,** Acting Associate Justice, MAMEA, Associate Judge, and TUPUIVAO, Associate Judge.
Counsel: For Appellant, Virginia Lynn Sudbury & David M. Wagner
For Appellee, Deanna S.F. Sanitoa
OPINION AND ORDER
Appellant Ilaisa Tapeni (“Ilaisa”) is appealing an order concerning the custody of three of the parties’ children. Ilaisa, the mother of the three children, contends that the trial court abused its discretion in finding that the three children should remain in Hawaii in the custody of the sister of Appellee Ausage Tapeni (“Ausage”), the father, without a formal finding of Ilaisa’s incompetence as a parent. Ilaisa also contends that the court considered several school records and accompanying letters from Hawaii that were not properly entered as evidence. Ausage filed his brief on the day of the appellate argument. However, we chose to accept the filing
* The Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, serving by designation of the
Secretary of the Interior.
** The Honorable Susan Oki Mollway, United States District Court
Judge for the District of Hawaii, serving by designation of the Secretary
of the Interior.

and allow his attorney to argue because of the greater importance of the children’s well-being.
For the reasons discussed below, we remand this action to the trial court.
Factual Background
The parties were married in 1982. Ilaisa petitioned for a legal separation in 1992 and for divorce later the same year. She was granted a divorce in 2000. The parties were then given joint legal custody of their children until the custody issue was determined. After further hearings, the trial court made its determination on July 20, 2000. Ilaisa appeals this order as it pertains to the custody of the parties’ three children given to Ausage’s sister and her husband in Hawaii.
Five children are the issue of the marriage. The parties permitted Ausage’s brother in Hawaii to raise the youngest child from shortly after the child’s birth. In 1992, the four other children resided with Ausage and his new female companion. The parties agreed, however, to a shared custody arrangement between Ilaisa and Ausage’s parents for these four children. Ilaisa then changed her separation petition to one for divorce. The parties reconciled and apparently lived together with the four children. However, in 1997, Ilaisa elected to pursue the divorce due to Ausage’s extramarital affairs.
By the time of the trial in March 2000, it appears that Ausage’s parents were exclusively caring for the second youngest child in American Samoa. The remaining three older children were then living with Ausage’s sister and her husband in Hawaii. Ilaisa went there, planning to stay in Hawaii with the three children and her new male companion. However, as a citizen of independent Samoa without proper documentation, she was denied entry or was soon expelled by U.S. immigration officials. She left the children with her new friend. The friend, however, was accused of sexually molesting one of the three children a short time later. Since then, Ausage’s sister and her husband have cared for these children in Hawaii.
On July 20, 2000, the trial court concluded that the five children’s interests were best served by the existing custodial situations and ordered the status quo continued. The parties agreed, and the court found, that the second youngest child’s best interests were served by maintaining his living arrangement with Ausage’s parents. The court also found that the three children with Ausage’s sister and her husband and the one with Ausage’s brother in Hawaii lived in securely settled circumstances. The court reasoned that the children’s present situation had been entirely of their parents’ own making, as the parties had either surrendered their

children to, or shared their care with, relatives. Furthermore, the court found that the three older children and the youngest had become well ensconced in their off-island surroundings. Although the court did not find either party unfit to have custody, it expressed reservations about either party’s fitness to assume exclusive custody. Finally, the court found that the only purpose served by returning the children in Hawaii to American Samoa would be to accommodate Ilaisa’s important but not overriding right of access to her children.
The court mentioned that Ilaisa’s access concerns could be alleviated through the exercise of reasonable visitation rights, but that “such options” needed further development by the parties or by further evidentiary inquiry.1
Standard of Review
[1] Child custody issues are within the trial court’s discretion, and its decision will not be disturbed on appeal unless it has abused that discretion. See, e.g., Thorpe v. Jensen, 817 P.2d 387, 389 (Utah 1991); 24A AM. JUR. 2D Divorce and Separation § 929 (1998) (and cases cited therein).
Discussion
A. Applicability of the Parental Custody Right Doctrine
[2] The cornerstone of any custody proceeding is the determination of what is in the best interest of the child. See Brooks v. State Dep’t of Human Res., 526 So. 2d 593, 594 (Ala. Civ. App. 1988); In re Custody of Townsend, 427 N.E.2d 1231, 1234 (Ill. 1981); Johnson v. Pinder, 269 A.2d 511, 512 (Pa. Super. Ct. 1970). When the dispute over custody is between the two natural parents, no presumption arises as to who should get custody; both parents “start[ ] out on equal footing.” Townsend, 427 N.E.2d at 1235. Indeed, “[a]lthough a mother is the natural custodian of her young,” a court must weigh many factors to determine which arrangement would best suit the child. Aumavae v. Aumavae, 27 A.S.R.2d 164, 167 (Trial Div. 1995) (citations omitted).
[3] When the custody dispute over the child arises between a parent, or parents, and a third party, the test remains the same—which custody arrangement would most nurture the best interest of the child. A court is
1 On December 1, 2000, the trial court ordered, upon the parties’
stipulation, a program for Ilaisa’s weekend visitations with the second
youngest child residing with Ausage’s parents in American Samoa.

not without guidance though. The Due Process Clause of the Constitution protects parents’ fundamental liberty interest “in the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion); see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Due process requires a presumption that the “natural bonds of affection lead parents to act in the best interests of their children.” Troxel, 530 U.S. at 68 (quoting Parham v. J.R., 442 U.S. 584, 602 (1979)). A natural parent is presumed to be fit, and the burden lies on the third party to prove the contrary. Townsend, 427 N.E.2d at 1235; Matter of Welfare of A.J.C., 556 N.W.2d 616, 619-20 (Minn. Ct. App. 1996); In Interest of K.R.A.G., 420 N.W.2d 325, 327 (N.D. 1988); Patrick v. Byerley, 325 S.E.2d 99, 101 (Va. 1985). Therefore, a fit natural parent is prima facie entitled to custody of his or her child. See Stanley v. Illinois, 405 U.S. 645, 652 (1972); Brooks, 526 So. 2d at 594; Townsend, 427 N.E.2d at 1236.
There is a split of authority, however, as to whether a fit parent’s entitlement to custody may be rebutted. The parental custody right doctrine, simply stated, instructs that “[o]nce the natural parent is deemed fit, the issue of custody is decided.” Moore v. Moore, 386 S.E.2d 456, 458 (S.C. 1989) (quoting Kay v. Rowland, 331 S.E.2d 781, 782 (S.C. 1985)); see also Roche v. Roche, 152 P.2d 999, 1000 (Cal. 1944). On the other hand, there is authority that the presumption created in favor of fit parents, and the rights incident to them, must nonetheless yield to the best interest of the child. See Townsend, 427 N.E.2d at 1236; De La Hoya v. Saldivar, 513 S.W.2d 259, 261 (Tex. Civ. App. 1974) (citing Duckworth v. Thompson, 37 S.W.2d 731 (Tex. Civ. App. 1931)). The issue is of first impression at the appellate level in American Samoa.
Ilaisa urges us to adopt the parental custody right doctrine and require a finding that the parents are unfit before a child’s custody can be properly given to a third party. This doctrine, however, has been severely criticized. See Roche, 152 P. 2d at 1000 (Schauer, J., dissenting). The thrust of the criticism is that by presumptively treating the rights of fit parents as paramount as against any third party, this approach tends to treat a child as a chattel and insulate the practical and proper emphasis on the child’s welfare from fully open consideration. Id. “[E]ven a fit parent is capable of treating a child like a mere possession.” Troxel, 530 U.S. at 86 (Stevens, J., dissenting). Our trial courts have implicitly embraced this reasoning and have regularly applied a pure best-interests test, recognizing that custody is always immediate and subject to change, and taking into account the full range of current circumstances. See generally In re a Minor Child, 28 A.S.R.2d 33 (Trial Div. 1995) (applying California law); In re Two Minor Children, 26 A.S.R.2d 117

(Trial Div. 1994); In re a Minor Child, 26 A.S.R.2d 105 (Trial Div. 1994). Indeed, the statute applicable for determining child custody in marital dissolution proceedings states that the court “may . . . order for the custody . . . of the minor children of the parties,” A.S.C.A. § 42.0210, and may be broadly interpreted as supporting a best-interests test without resort to the parental custody right doctrine.
[4-5] We are persuaded by the criticism voiced against the parental custody right doctrine. We therefore approve the trial court’s approach to child custody issues generally and in this case particularly. That is, we sanction application of the best-interests test in child custody issues in marital dissolution proceedings. Nevertheless, when the custody dispute is between the natural parents and a third party, fit parents are entitled to a presumption of custody. This presumption, however, is rebuttable. If the parent’s fitness is not rebutted, “[t]he burden of proof upon the issue of the best interest of the child is upon the one seeking to deprive the natural parents of custody.” Hoya, 513 S.W.2d at 262 (quoting Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex. 1966)); accord Townsend, 427 N.E.2d at 1237.
Ilaisa’s concern over the importance of children being near their natural parents is understandable, but her concerns do not override consideration of the entire surrounding circumstances in determining the three children’s best interests when awarding custody. The value of having a child’s natural mother or father as an active participant in the child’s upbringing is always an important aspect of the best-interests analysis. When a third party is given custody of a child, parental visitation rights become important. A parent’s interest in keeping a child must not allow a court to overlook what is truly in that child’s best interests.
In this case, the trial court seems to have applied a best-interest standard. It is not clear, however, whether it properly applied the burdens of proof and persuasion we have articulated. While there may have been enough evidence to overcome the presumption of the parent’s right to custody, we cannot make that finding for the first time on appeal. Therefore, we will remand the case for a rehearing.
B. The Evidence Considered
There is another issue in this case we should address since it is likely to arise at the rehearing. Ilaisa argues that the trial court utilized evidence inappropriately to make a custody order in favor of the three children’s aunt and uncle. The present circumstances of the lives of the children in Hawaii was virtually unknown outside of a collection of school records found in a notarized letter, apparently sent by the aunt to the court by

facsimile on May 9, 2000. The trial court relied heavily on these records in reaching its July 21, 2000, custody decision, stating that the records were “very encouraging and attest to a stable and nurturing environment provided the three older children.” (Order at 3) Following this observation, the court commented that, “throughout their marriage, the parties had either surrendered their children to, or shared their care with, relatives. Thus the children’s present situation has been entirely of their parents own making, such that the three older [children] and the youngest have become well ensconced in their off-island surroundings.” (Order at 4)
[6-7] It is imperative that a trial court have complete information in making a best-interest determination on child custody issue. In this light, a trial court can properly “resort to a wide range of out-of-court information in reaching its decision subject to the requirements that what is so considered be made available to all involved counsel for challenge, impeachment, criticism or refutation.” Sabol v. Sabol, 624 P.2d 1378, 1382 (Haw. Ct. App. 1981). The person or persons responsible for the report should ordinarily be available for cross-examination. Cf. id. Upon objection, evidence otherwise inadmissible would be admissible only on the custody and certainly not on other issues. Id.
American Samoa does not have an express statutory authorization for judicial consideration of out-of-court information applicable to child custody issues between private parties in marital dissolution proceedings. It does have express statutory authorization to use such information in proceedings under the juvenile justice laws. A.S.C.A. § 45.0130(b) & (c). The statute states the principle in language to the same substantive effect as before framed by the court in Sabol.2
2 A.S.C.A. § 45.0130(b) & (c) reads:
(b) For the purpose, of determining proper disposition of a
child, written reports and other material relating to the child’s
mental, physical, and social history may be received and
considered by the court along with other evidence; but the
court, if so requested by the child, his parent or guardian, or
other interested party, shall require that the person who wrote
the report or prepared the material appear as a witness and be
subject to both direct and cross-examination. In the absence of
the request, the court may order the person who prepared the
report or other material to appear if it finds that the interest of
the child, his parent or guardian, or other party to the
proceedings so requires.
(c) The court shall inform the child, his parent or legal guardian,
or other interested party of the right of cross-examination

[8] It might be argued that section 45.0130(b) and (c) apply to child custody issues in marital dissolution proceedings. However, given the language detailing the trial court’s original jurisdiction in juvenile proceedings involving a minor child who is allegedly delinquent, in need of supervision, or neglected or dependent, under specific and rigid definitions not readily applicable in the marital dissolution context, A.S.C.A. § 45.0115, we decline to interpret the applicability of section 45.0130(b) and (c) so broadly. Nonetheless, apparently as the Sabol court did in construing Hawaii statutes, we interpret section 45.0130 as sufficiently broad to enable the trial court to consider out-of-court information subject to the safeguards for challenge. Even without any statutory authority, we hold that the trial court has inherent authority to consider such information in this manner for child custody issues in marital dissolution proceedings.
[9] During the trial of this case, the court invited the submission of other information from Hawaii. (Trial Tr. 38) In due course, the court received and considered this information. The information from Hawaii was clearly a critical factor underlying the trial court’s present custody determination. The court did not, however, advise the parties that it was considering this information nor give them opportunity to challenge, impeach, criticize, or refute it by cross-examination or other means. The court’s consideration of this out-of-court information in this fashion was error.
Order
We remand this action to the trial court for a rehearing to be conducted consistently with this opinion.
It is so ordered.
concerning any written report or other material as specified by
subsection (b).

 

Purcell v. Schirmer


[1] Subject matter jurisdiction, rights of actions, and causes of action are three very different concepts.

[2] Subject matter jurisdiction speaks to a court’s power to adjudicate a case.

[3] Without jurisdiction, a court cannot proceed at all in any cause.

[4] A right of action grants a plaintiff the right to pursue a judicial remedy.

[5] A cause of action refers to recognized legal rights upon which a litigant bases his claim for relief.

[6] Federal courts do not have exclusive jurisdiction over federal civil rights actions such as 42 U.S.C. § 1981, but instead have concurrent jurisdiction.

[7] The Trial Division of the High Court is not a court of limited jurisdiction; rather, it is a court of general jurisdiction with the power to hear any matter not otherwise provided by statute.

[8] The Legislature of American Samoa has the power to define the jurisdiction of the High Court as long as it is consistent with the laws and treaties of the United States and American Samoa.

[9] A.S.C.A. § 3.0208 clearly grants the High Court jurisdiction to hear claims brought under 42 U.S.C. § 1981.

[10] 42 U.S.C. § 1981 applies to United States Territories, including American Samoa.

[11] The word “Territory” in a statute is presumed to apply to American Samoa unless, had the acquisition of that insular dependency been foreseen, Congress would have varied its comprehensive language so as to exclude it from the operation of the act. [6 A.S.R.3d 289]

[12] 42 U.S.C. § 1981 applies against both private and state actors.

[13] 42 U.S.C. § 1981 protects rights arising both under the Thirteenth and Fourteenth Amendments to the United States Constitution.

[14] The federal Constitution applies in American Samoa only insofar as its tenets restate those fundamental limitations in favor of personal rights that are the basis of all free government.

[15] Judicial review of a procurement decision lies in the first instance before the Office of the Administrative Law Judge.

[16] Where complaint went beyond alleging of noncompliance with administrative regulations to state intentional racial discrimination, it did not belong at the administrative level.

[17] 42 U.S.C. § 1981 creates an enforceable cause of action in American Samoa for claims of intentional racial discrimination.

[18] 42 U.S.C. § 1981 does not apply to claims based on sex discrimination.

[19] For actions under § 1981, a plaintiff must specifically plead “intentional discrimination on account of race,” otherwise known as “racial animus.”

[20] Claims of conspiracy to deprive someone of their constitutional rights are properly brought under 42 U.S.C. § 1985(3), not 42 U.S.C. § 1981.

[21] In order to properly state a claim under 42 U.S.C. § 1985(3), a complaint must allege that the defendants did (1) conspire (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws. It must then assert that one or more of the conspirators (3) did, or caused to be done, any act in furtherance of the object of the conspiracy, whereby another was (4a) injured in his person or property or (4b) deprived of having and exercising any right or privilege of a citizen of the United States.

[22] In order to facilitate a proper decision on the merits of the case, the Court may allow a plaintiff leave to amend the pleadings where they are legally deficient and when justice so requires.

 

Before RICHMOND, Associate Justice, LOGOAI, Chief Associate [6 A.S.R.3d 290] Judge, and SAGAPOLUTELE, Associate Judge.

Counsel: For Plaintiffs, Paul F. Miller

For Defendants Seugogo H.B. Schirmer and W.T. (Bill) Andrew, Fiti A. Sunia, Attorney General

For Defendants Fulton Hogan Holdings, Ltd. Fulton Hogan, Ltd., Jennifer L. Joneson

 

ORDER GRANTING TIME TO FILE AMENDED COMPLAINT CORRECTING PLEADING DEFICIENCIES

Before us is the motion of defendants Seugogo H.B. Schirmer (“Seugogo”) and W.T. (Bill) Andrew (“Andrew”) to dismiss for failure to state a claim under T.C.R.C.P. 12(b)(6). Defendants Fulton Hogan Holdings, Ltd., Fulton Hogan, Ltd., and Mark Keane (“Keane”), later joined in the motion.[1] The legal issues involved are novel, and present important questions concerning the status of certain civil rights in the Territory.

Background

Plaintiffs Havila Magalei Purcell and Duke Purcell are United States Nationals and residents of American Samoa who own plaintiff Island Builders Architects, Consultants & Engineers.[2] They are also self-described “minority contractors.” Seugogo and Andrew are both employees of the American Samoa Government (“ASG”) in ASG’s Department of Port Administration (“DPA”). Seugogo is the Director of DPA. Fulton Hogan Holdings, Ltd., a New Zealand Corporation, and Fulton Hogan, Ltd., an American Samoa Corporation, are both engaged in business in the Territory.[3] Keane is an agent of Fulton Hogan. For purposes of this motion, we must assume the factual allegations to be true.[4] The dispute arose out of a contract awarded by ASG to Fulton [6 A.S.R.3d 291] Hogan for a DPA capital improvement project at the Pago Pago International Airport. The plaintiffs claim that they were unlawfully prevented from bidding on portions of the contract. They brought suit against the defendants, claiming the defendants acted as part of a civil conspiracy to deny the plaintiffs their constitutionally protected rights to make and enforce contracts on account of their race and sex as codified under 42 U.S.C.A. § 1981.[5] They also brought suit against Seugogo and Andrew individually, acting under color of law as employees of ASG, alleging the same deprivations of rights. They assert that our jurisdiction over the suit is found in A.S.C.A. § 3.0208. The defendants counter that the plaintiffs do not have a legally cognizable claim or, at the very least, that they have not properly pled the claim of civil conspiracy.

Discussion

With that relatively simple background, we proceed to the wholly complex question of whether § 1981 is applicable in American Samoa and, if so, to what extent.

A. Legal Framework

The plaintiffs and the defendants have misconstrued the differences between subject matter jurisdiction, rights of action, and causes of action [6 A.S.R.3d 292] as these terms relate to this case. The plaintiffs began their pleadings by noting that their action was brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); it seems they were relying on Bivens as granting them the right of action for their suit. The defendants counter that Bivens “recognized a new basis of federal court jurisdiction, namely, a federal private cause of action that can arise under the Fourth Amendment.” Therefore, because the plaintiff’s allegations did not implicate the Fourth Amendment, and because a Bivens claim is strictly a cause of action available in the federal courts, they argue we lack jurisdiction to hear this suit. Neither contention is exactly right.

[1-3] Subject matter jurisdiction, rights of actions, and causes of action are three very different concepts. Subject matter jurisdiction speaks to a court’s “power to adjudicate a case.” Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998) (emphasis in original); see also Merrell Dow Pharms. v. Thompson, 478 U.S. 804, 807 (1986). Without jurisdiction, a court “cannot proceed at all in any cause.” Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 7 Wall 506, 514 (1869)). Whether a court has the power to hear a case is different from whether a plaintiff has a right to bring the case or is claiming a legally recognized right. See Steel Co., 523 U.S. at 89 (citing Bell v. Hood, 327 U.S. 678, 682 (1946)) (a court can have subject matter jurisdiction over a claim yet not be able to grant the relief sought because no right or cause of action exists).

[4-5] Courts often confuse the terms “right of action” and “cause of action.” See generally Davis v. Passman, 442 U.S. 228, 237-44 (1979) (discussing the various applications of a “cause of action”); 1 AM. JUR. 2D Actions § 2 (2d ed. 1994). A right of action grants a plaintiff “the right to pursue a judicial remedy.” 1 AM. JUR. 2D Actions § 2; see also Davis, 442 U.S. at 239 (right of action “is employed specifically to determine who may judicially enforce the statutory [or Constitutional] rights and obligations.”); Bivens, 403 U.S. at 396 (finding United States Constitution implicitly allows citizen to bring suit for violations of Fourth Amendment rights); 42 U.S.C.A. § 1983 (statutory right of action for deprivation of constitutional rights under color of law). On the other hand, “a cause of action is based on the substantive law of the legal liability.” 1 AM. JUR. 2D Actions § 2. That is, a cause of action refers to “recognized legal rights upon which a litigant bases his claim for relief.” Davis, 442 U.S. at 237 (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693 (1949)).

B. Subject Matter Jurisdiction

[6 A.S.R.3d 293] As noted, simply because a right of action may exist does not mean we automatically have jurisdiction to hear the case. We must first make that determination. See supra note 4.

[6] There is a substantial amount of case law, at the federal level, discussing the issue of subject matter jurisdiction in civil rights cases. Jurisdiction to hear suits arising under § 1981 (and other civil rights statutes) is usually based on 28 U.S.C.A. §§ 1343, 1331. See Tripati v. U.S.I.N.S., 784 F.2d 345, 346 n.1 (10th Cir. 1986); Mummelthie v. Mason City, Iowa, 873 F. Supp. 1293, 1304 (N.D. Iowa 1995). That is not to say that state or territorial courts cannot entertain these types of suits. Federal courts do not have exclusive jurisdiction in this area. Instead, they have concurrent jurisdiction. See DeHorney v. Bank of Am. Nat. Trust & Sav. Ass’n, 879 F.2d 459, 463 (9th Cir. 1989); 15 AM. JUR. 2D Civil Rights § 33 (2d ed. 1994); see also Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980) (state courts can hear § 1983 claims). Therefore, we must evaluate our own jurisdictional grant to determine whether the High Court is a proper forum for § 1981 claims.

[7-9] Unlike federal courts, the Trial Division of the High Court is not a court of limited jurisdiction; rather, it is “a court of general jurisdiction with the power to hear any matter not otherwise provided by statute.” A.S.C.A. § 3.0208 (emphasis added). This broad grant expanding our jurisdiction was added in 1979. P.L. 16-28 (1979). The statute was passed by the Legislature as a valid exercise of its power to define the High Court’s jurisdiction. See generally Swift v. Trial Division, 4 A.S.R. 983, 986-88 (1975) (noting that Congress has delegated, through the Executive, to our Legislature the power to define our jurisdiction as long as it is consistent with the laws and treaties of the United States and American Samoa); Meaamaile v. Am. Samoa, 550 F. Supp. 1227, 1235- 36 (D. Haw. 1982). While it may have been a close question before that amendment, we have no doubt that § 3.0208 clearly grants us the power, i.e. the jurisdiction, now to hear claims brought under § 1981. See Meaamaile, 550 F. Supp. at 1235-36 (assuming High Court can entertain § 1981 suits).

C. Right of Action under § 1981

Having determined we have jurisdiction, we must decide whether § 1981 creates a private right of action so that the plaintiffs may enforce their claim.

Bivens arose out of a citizen suit against federal agents for violations of Bivens’ constitutional rights under the Fourth Amendment of the United States Constitution. Congress had created a right of action for such a [6 A.S.R.3d 294] suit arising against state (and territorial) agents, see 42 U.S.C.A. § 1983, but had not created one for suits against federal agents. Bivens, 403 U.S. at 429 (Black, J., dissenting). The Court in Bivens found that notwithstanding the lack of an explicit grant by Congress, the United States Constitution provided for an implied right of action in federal courts to enforce Fourth Amendment violations by federal agents.[6] Bivens, 403 U.S. at 400-02 (Harlan, J., concurring).

Defendants are correct, then, that Bivens has no application to this case. A Bivens action is applicable only in federal courts. The plaintiffs’ reference to Bivens was thus misplaced; but more importantly, it was unnecessary. Section 1981 itself creates a right of action, explicitly created by Congress, for the enforcement of certain civil rights violations. See generally Patterson v. McLean Credit Union, 491 U.S. 164 (1989); Runyon v. McCrary, 427 U.S. 160 (1976); Giles v. Equal Employment Opportunity Comm’n, 520 F. Supp. 1198, 1199 (1981) (Section 1981 “provide[s] a remedy in cases in which jurisdiction is present.”).

[10-11] Furthermore, on its face, § 1981 applies to United States Territories. 42 U.S.C. § 1981 (“All persons . . . shall have the same right in every State and Territory . . . .”). We have no doubt that, even though § 1981 was passed before American Samoa became a Territory of the United States, by using such clear language, Congress intended that § 1981 apply to this Territory. The word “Territory” in a statute is presumed to apply to American Samoa unless, had “the acquisition of that insular dependency . . . been foreseen, Congress would have so varied its comprehensive language as to exclude it from the operation of the act.” United States v. Standard Oil Co., 404 U.S. 558, 559 (1972); see also Ferstle v. Am. Samoa Gov’t, 4 A.S.R.2d 160, 162-63 (Trial Div. 1987) (Section 1983, on its face, applies to American Samoa); Tuivai v. Suiava, 2 A.S.R.2d 35, 36 (Trial Div. 1984) (same); Fleming v. Dep’t of Pub. Safety, 837 F.2d 401, 404-05 (9th cir. 1988) (Sections 1981 and 1983 apply to Northern Mariana Islands); Bunyan v. Camacho, 770 F.2d 773 (9th Cir. 1985) (implying § 1983 applies to Territory of Guam). But see Temengil v. Trust Territory of Pac. Islands, 881 F.2d 647, 651-52 [6 A.S.R.3d 295] (9th Cir. 1989) (Sections 1981 and 1983 do not apply to the Trust Territory of the Pacific Islands).

[12] This right of action clearly extends to private actors. Patterson, 491 U.S. at 171-75; Runyon, 427 U.S. at 168-75. The portion of the suit against Fulton Hogan and Keane is properly before us. Similarly, § 1981 creates a right of action for lawsuits against state actors. See Fed’n of African Am. Contractors v. Oakland, 96 F.3d 1204, 1210-14 (9th Cir. 1996).[7] Therefore, the portion of this suit against Seugogo and Andrew, acting under color of law, is also properly before us.

D. Cause of Action

We now come to the crux of this case—what is the plaintiffs’ cause of action? That is, do they have a legally recognizable claim in American Samoa for the conduct they now complain was committed?

[13] Section 1981 protects rights arising both under the Thirteenth and Fourteenth Amendments of the United States Constitution.[8] See Jett, 491 U.S. at 722 (plurality opinion); Patterson, 491 U.S. at 197-99 (Brennan, J. concurring and dissenting in part); Runyon, 427 U.S. at 190 (Stevens, J., concurring); Vietnamese, Etc. v. Knights of K.K.K., 518 F. Supp. 993, 1008 (S.D. Tex. 1981). It was passed, in part, “under [6 A.S.R.3d 296] Congress’ Thirteenth Amendment power to identify and legislate against the badges and incidents of slavery.” Patterson, 491 U.S. at 197 (Brennan, J. concurring in part and dissenting in part). It also derived, however, from the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and was “intended to secure ‘the full and equal benefit of all laws and proceedings for the security of persons and property . . . .’” McLaughlin v. Florida, 379 U.S. 184, 193 (1964); see also Runyon, 427 U.S. at 195-205 (White, J., dissenting) (arguing § 1981 was passed solely under Congress’ Fourteenth Amendment powers).

The problem facing us is that this court has never determined whether or not the Thirteenth Amendment of the United States Constitution, its implementing federal law, and the protections they afford, have been incorporated into the law of American Samoa. Additionally, we have said that “[t]he extent to which the equal protection clause of the Fourteenth Amendment applies in the territory is unclear . . . .” Macomber v. Am. Samoa Gov’t, 12 A.S.R.2d 29, 30 (Trial Div. 1989); see also Banks v. Am. Samoa Gov’t, 4 A.S.R.2d 113, 123-28 (Trial Div. 1987). The resolution of these uncertainties is paramount to the outcome of the decision on the present motion; if the rights are incorporated, then § 1981 is enforceable in American Samoa and the plaintiffs have claimed a valid cause of action.

[14] The test for incorporation has been stated by this Court as follows: “the federal Constitution applies here only insofar as its tenets restate ‘those fundamental limitations in favor of personal rights’ that are ‘the basis of all free government . . . .’” Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 129 n.9 (Trial Div. 1990) (quoting Dorr v. United States, 195 U.S. 138, 146 (1922)). It has been stated somewhat differently at the federal appellate level: “whether the claimed right is one which would be impractical or anomalous in [the Territory].” Wabol v. Villacrusis, 958 F.2d 1450, 1461 (9th Cir. 1990); see also King v. Morton, 520 F.2d 1140, 1147 (D.C. Cir. 1975); STANLEY K. LAUGHLIN, JR., THE LAW OF UNITED STATES TERRITORIES AND AFFILIATED JURISDICTIONS §§ 10.5, 10.7 (1st ed. 1995) (commending this approach). We will address both tests.

It can hardly be doubted that the prohibition against slavery, and against its badges and incidents, is a fundamental right of any free society. In enforcing the Thirteenth Amendment, [Congress] undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible form; and to secure to all citizens of every race and color, and without regard to previous servitude, [6 A.S.R.3d 297] those fundamental rights which are the essence of civil freedom, namely: the same right to make and enforce contracts, to sue, be parties, [and] give evidence . . . as is enjoyed by white citizens . . . [In passing § 1981, Congress acted] only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery.”

Civil Rights Cases, 109 U.S. 3, 22 (1883) (emphasis added); see also Jones v. Alfred H. Mayor Co., 392 U.S. 409, 440-41 (1968). Given that these rights are so fundamental, it is no surprise that they are safeguarded by our own Constitution. AM. SAMOA REV. CONST. art. I, § 10 (“Neither slavery, nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in Ameri-can Samoa.”); see also Banks, 4 A.S.R.2d at 125, n.5 (when determining whether or not a right is fundamental, it is relevant whether or not our own Constitution contains a similar clause).

As for the interplay of the Equal Protection Clause, we see no reason why the fundamental rights arising out of the Thirteenth Amendment would be any less fundamental if they derived from the Fourteenth Amendment. It cannot be said, for example, that the rights under § 1981 are incorporated into American Samoa only to the extent that they abolish the incidents and badges of slavery but not to the extent that they provide for the equal protection of laws. It is a distinction without a difference.

Furthermore, it would not be impractical or anomalous to apply these rights in the Territory. Section 1981 speaks to intentional or purposeful racial discrimination. Albert v. Carovano, 851 F.2d 561, 571-72 (2d Cir. 1988) and cases cited. No part of the laws or culture of American Samoa promotes or relies on racial classifications in terms of employment, contracts, or access to the courts—all of which fall under the ambit of § 1981. Banks is not inapposite.

In Banks, albeit in dicta, this Court upheld the residential hiring preference, codified in A.S.C.A. § 7.0205, against constitutional attack. We noted that to the extent that the preferences conflicted with the Equal Protection Clause, those rights were not incorporated into American Samoa. Banks, 4 A.S.R.2d at 121-28. This Court was careful to state, however, that the “American Samoa preference is not a racial classification at all . . . . Although the preference has an obvious racial effect . . . [it] is essentially a preference for permanent residents rather than for ethnic Samoans . . . .” Id. at 128; see also A.S.C.A. 12.0210 [6 A.S.R.3d 298] (Local Preference statute for government contracts). In making that determination, the Court relied in part on Appendix A to A.S.A.C. § 4.1108, the implementing regulations for A.S.C.A. § 7.0205. The Appendix, still in force, contains a policy statement that states, inter alia, “[i]t is the policy of the ASG to provide and promote equal opportunity in employment to people without discrimination because of race, creed, color, [or] national origin . . . .” Appendix A to A.S.A.C. § 4.1108 (emphasis added); see also A.S.A.C. §§ 4.1101-.1108. Clearly this is evidence that some of the rights encompassed by § 1981 have already been embraced by ASG. Moreover, it is evidence that applying § 1981 to American Samoa, because it protects fundamental rights arising out of the Thirteenth and Fourteenth Amendments of the United States Constitution, would not be inconsistent or anomalous with the laws and customs of American Samoa.[9]

[15-18] The defendants are right that judicial review of a procurement decision lies in the first instance before the Office of the Administrative Law Judge. See A.S.C.A. § 4.0604(e)-(g); see also A.S.A.C. § 10.0282. But the plaintiffs’ complaint goes beyond allegations of noncompliance with administrative regulations; the complaint alleges intentional racial discrimination, a claim that does not belong at the administrative level. Therefore, we conclude that § 1981 creates a cause of action enforceable here in American Samoa, for claims of intentional racial discrimination. Section 1981 does not, however, apply to claims based on sex discrimination. See Runyon, 427 U.S. at 167; Taylor v. Shell Offshore, Inc., 700 F. Supp 314, 315 (M.D. La. 1988). To the extent that any of the claims here are based on sexual discrimination, they are dismissed.

E. Pleadings

[6 A.S.R.3d 299] [19] Notwithstanding the foregoing discussion, the plaintiffs’ pleadings are still deficient. For actions under § 1981, a plaintiff must specifically plead “intentional discrimination on account of race,” otherwise known as “racial animus.” Evans v. McKay, 869 F.2d 1341, 1344, 1345 n.3 (9th Cir. 1989). While the plaintiffs have alleged intentional discrimination, they have not pleaded any facts that would tend to show the actions by the defendants were racially motivated. See Yusuf v. Vassar College, 827 F. Supp. 952, 954-56 (S.D.N.Y. 1993) (causal link between defendant’s conduct and plaintiff’s race too conclusory). Overt acts coupled with some direct evidence, such as, for example, racial slurs, would suffice. Evans, 869 F.2d at 1345. The plaintiffs have not pled any such direct evidence.

[20-21] Furthermore, the plaintiffs’ claim that the defendants conspired to deprive them of their constitutional rights is likewise defective. Claims of conspiracy to deprive someone of their rights are properly brought under 42 U.S.C. § 1985(3).[10]

[A] complaint must allege that the defendants did (1) ‘conspire . . .’ (2) ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.’ It must then assert that one or more of the conspirators (3) did, or caused to be done, ‘any act in furtherance of the object of [the] conspiracy,’ whereby another was (4a) ‘injured in his person or property’ or (4b) ‘deprived of having and exercising any right or privilege of a citizen of the United States.’

 Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (quoting Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971)).

[22] Nonetheless, in order to “facilitate a proper decision on the merits of the case,” Thomsen v. Bank of Haw., 28 A.S.R.2d 86, 87 (Trial Div. [6 A.S.R.3d 300] 1995), or at the very least, to assure that dismissal is based on the failed factual allegations and not inartful pleading, we are allowing the plaintiffs leave to amend the pleadings to conform with this opinion. T.C.R.C.P. 15(a) (party may amend pleadings by leave of court when justice so requires).

Order

The plaintiffs shall have 30 days to file an amended complaint that corrects the deficiencies in the present complaint. If the plaintiffs fail to adequately correct the deficiencies in the complaint within this time period, the motion to dismiss will be granted.

It is so ordered.

********



[1] We will refer to all defendants collectively as “the defendants.”

[2] We will refer to all plaintiffs collectively as “the plaintiffs.”

[3] We will refer to them collectively as “Fulton Hogan.”

[4] While Seugogo and Andrew argue that we do not have jurisdiction in this case, their motion is one for failure to state a claim under T.C.R.C.P. 12(b)(6). Lack of jurisdiction is governed by T.C.R.C.P. 12(b)(1). To be fair, there is some overlap between jurisdiction and a right of action in this case. “Where the defendant’s challenge to the court’s jurisdiction is also a challenge to the existence of a [right] of action, the proper course of action . . . is to find that jurisdiction exists and deal with the objections as a direct attack on the merits of the plaintiff’s case.” Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981). This also benefits a plaintiff in that under the law of 12(b)(6), we must consider the allegations in the complaint as true. Id. at 412. We apply this standard now because we do have jurisdiction to hear this suit. See Part II.B, infra.

[5] Section 1981, entitled Equal rights under the law, provides in relevant part:

(a) Statement of equal rights All person within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . .

(b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

[6] Implied rights of actions have also been found under the United States Constitution, Fifth Amendment, Davis v. Passman, 442 U.S. 228, and Eighth Amendment, Carlson v. Green, 446 U.S. 13 (1980). See Bush v. Lucas, 426 U.S. 367, 374 (1983) (noting that in some cases, the United States “Constitution itself supports a private [right] of action for damages against a federal official”).

[7] In Jett v. Dallas Ind. School Dist, 491 U.S. 701 (1989), the Supreme Court held that while state actors could violate § 1981, it did not create a right of action to sue; instead, § 1983 created the exclusive right of action in that situation. Id. at 731. Subsequently, § 1981 was amended to add subsections (b) and (c). Civil Rights Act of 1991, Pub.L. 102-166 § 101. In effect, the new amendments overruled this holding of Jett. See Fed’n, 96 F.3d at 1210-14 (finding that 1991 amendment to § 1981 created right of action against state actors); Dennis v. County of Fairfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995); Philippeaux v. N. Cent. Bronx Hosp., 871 F. Supp 640, 653-56 (S.D.N.Y. 1994). Jett also held that § 1983 provides the exclusive right of action for suits against municipalities. The appeals courts are split as to whether the amendments overruled this aspect of Jett. Compare Fed’n, 96 F.3d at 1214-15, with Philippeaux, 871 F. Supp at 654-56. This issue is not before us and thus we need not resolve it.

[8] The Thirteenth Amendment states in part, “Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The Fourteenth Amendment states in part, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

[9]  Nothing in this opinion should be interpreted as overruling or altering at all the current state of our land alienation laws. We are cognizant that 42 U.S.C. § 1982, which took root also from the Thirteenth and Fourteenth Amendments, seemingly conflicts with the explicit racial requirements for land ownership codified in A.S.C.A. §§ 37.0201-.0230. While the right to land ownership may be a fundamental right, Congress has “carefully preserve[d] for the Samoan people the exclusive right to determine by local statute how their culture and land tenure system will be regulated.” Craddick Dev., Inc. v. Craddick, 2 A.S.R.3d 20, 39 (App. Div. 1998) (Ward, J., concurring). At the very least, incorporation of this specific fundamental right would be impractical and anomalous in American Samoa. See Wabol, 958 F.2d at 1461-62 (applying analysis and upholding land alienation restrictions of the Northern Mariana Islands).

[10] Section 1985(3) prohibits, “two or more persons in any State or Territory [from] conspir[ing] . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws[.]” This section creates a right of action to enforce existing federal laws, such as § 1981. See Great Am. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 383 (1979) (Stevens, J., concurring) (private conspiracies to deprive individuals of their right to be free from the badges of slavery are actionable under § 1985(3)); Nieto v. United Auto Workers Local 598, 672 F. Supp. 987, 991-92 (E.D. Mich. 1987).

FOTU TUPUOLA LEUTA, Claimant,v.LEATUALOA FUAMOLI MANAEA, Counter


 

FOTU TUPUOLA LEUTA, Claimant,
v.
LEATUALOA FUAMOLI MANAEA, Counter-claimant.
[In re the Matai Title “MANAEA” of the Village of Amouli]
High Court of American Samoa
Land and Titles Division
MT No. 03-00
December 10, 2002

 

[1] In matai title dispute, A.S.C.A. § 1.0409(c) provides that criteria to
be considered are best hereditary right; clan support; forcefulness,
character and personality, and knowledge of Samoan customs; and value
to family, village, and country.
[2] Applying traditional formula for evaluating and measuring heredity,
candidate showing shortest descent path to past titleholder prevails.
[3] When claim to family support was based on family meetings that
were sub-family gatherings, not meetings of whole family, neither
candidate enjoyed total support of family’s two clans.
[4] Court may look to demeanor; personality; presence of mind; the
clarity, speed and correctness with which answers were given; and selfconfidence
and other qualities reflected from speech and behavior in
assessing personal attributes.
[5] Retirement income is relevant factor in assessing value to family.

[6] Candidate who has lived with family in village and actively
participated in family and village affairs shows greater awareness of
family matters and has fostered better rapport with village council.
Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge,
SAGAPOLUTELE, Associate Judge and TUPUIVAO, Associate Judge.
Counsel: For Claimant, Asaua Fuimaono
For Counter-claimant, Charles V. Ala`ilima
OPINION AND ORDER
On April 26, 1999, Fotu F. Manaea filed his claim to succession with the
Office of the Territorial Registrar to the matai title “Manaea” pertaining
to the village of Amouli. Malaetia T. Manaea and Leatualoa F. Manaea
subsequently filed objections and their respective counter-claims to
succession. After the Secretary of Samoan Affairs issued a certificate of
irreconcilable dispute pursuant to A.S.C.A. § 43.0302, the matter was
referred for determination to the Lands and Titles Division of the High
Court in accordance with A.S.C.A. § 1.0409. Malaetia T. Manaea
subsequently withdrew his objection and counter-claim in open court.
We proceeded to trial upon the remaining claims to succession.
Discussion
[1] In these matters, the Court is guided by the four criteria set out in
A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3)
forcefulness, character and personality, and knowledge of Samoan
customs; and (4) value to family, village, and country.
1. Best Hereditary Right
Claimant Fotu Tupuola Leuta (“Fotu”) claims 12.5% hereditary
entitlement tracing his roots to Manaea Petero,1 his great-grandfather.
Counter-claimant Leatualoa F. Fuamoli (“Fuamoli”) claims 50%
entitlement through her father Manaea Fa`aloloi Vaimaona.
1 Manaea Petero was a Wallis Islander who apparently held the title by
virtue of his family membership through marriage. Petero was married to
Siv, the daughter of a prior titleholder. See Tuitui v. Leuma, 2 A.S.R. 418,
421 (Trial Div. 1948). Since we find that Fuamoli clearly prevails on the
issue of heredity, we need say no more on the exact degree of Fotu’s blood
entitlement.

[2] We find that both parties are blood related to the title Manaea.
Applying the traditional formula for evaluating and measuring heredity,
we further find that Fuamoli prevails because she can show the shortest
descent path to a past titleholder.
2. Clan Support
The only semblance of common ground between the parties on this issue
is that the family’s clans number two and the parties are not from the
same clan. Beyond that, the parties’ divisiveness on clan identity and
make-up is total. Fotu, who does not command the support of Fuamoli’s
side of the family, feels that he can claim complete support of all the
clans by simply ignoring Fuamoli’s side as Manaea family members.2
The apparent deep-seated contention between Fotu’s side of the family
and Fuamoli’s side of the family is more far-reaching. The evidence
clearly points to factional rivalry beyond the affairs of the Manaea
family itself. The ill will between the parties is enveloped in a
longstanding controversy between the principal families of Amouli,
engendered by their competing, and apparently ongoing, claims to
historical prominence and supremacy in the village. This inter-family
controversy has been the bane of village discord and root of many land
disputes from Amouli. See e.g. Utu v. Fuata, 17 A.S.R.2d 104 (Land &
Titles Div. 1990).
As Fotu’s side of the family is related to the Gogo title, while Fuamoli’s
side of the family is akin to the Utu title, the matai dispute before us took
on the unmistakable flavor of the extended inter-family rivalry. In terms
of oral tradition, for example, the parties’ respective versions were
appropriately slanted. Where both had agreed that the Manaea title had
its origins in a pigeon hunting excursion with High Chief Liufau, the
parties disagreed as to the identity of the village founding father involved
and, hence, the progenitor of the first Manaea titleholder. Fotu’s side
naturally claimed that Liufau’s hunting partner was Gogo while
Fuamoli’s side unsurprisingly said it was Utu.
[3] We find that while meetings were called to consider the issue of
2 This obdurate claim is erroneous. In prior litigation, the Court in Tuitui v.
Leuma, 2 A.S.R.2d 418 (Trial Div. 1948), not only found that Fuamoli’s
father, Vaimaona Leuma, was a blood member of the Manaea family, but
concluded that he was also the most eligible claimant then to hold the
family’s title. Vaimaona Leuma was duly certified by the Court and he
held the Manaea title for many, many years.

matai succession, these meetings were in essence sub-family gatherings
and not meetings of the Manaea family as a whole. The evidence
showed, for instance, that while a Manaea family meeting was called by
Gogo to discuss matai succession, it also showed that Gogo’s timing
strategically coincided with the off-island medical evacuation of the
ailing Utu titleholder. This particular meeting opportunity was,
therefore, hardly calculated to attract a strong showing from the Utu
aligned faction of the Manaea family.
In our view, the claim to family support on the basis of these so-called
family meetings translates at best to mere blessings from one’s own side
of the family. We find that neither candidate enjoyed the total support of
the Manaea family’s two clans, and, therefore, conclude that neither
candidate prevails on this consideration.
3. Forcefulness, Character and Personality, and Knowledge of Samoan
Customs
In our evaluation of the parties, we find from our observation of the
candidates and from our review of personal background and
achievements that Fotu prevails on this consideration. Fotu’s career path
has been more impressive; primarily he was a professional law
enforcement officer, retiring as Captain from the Department of Public
Safety, while Fuamoli, who has also retired, has largely been involved
with employment of a clerical nature. Additionally, Fotu in his early
years served with United States Marine Corp. He continues to utilize his
law enforcement background in a private business. We feel that these
resultant career achievements signify a greater measure of ambition and
drive.
[4] Moreover, in assessing personal attributes under this criterion, the
Court may look to “demeanor, personality, presence of mind, the clarity,
speed and correctness with which the answers were given, the selfconfidence
and other qualities reflected from . . . speech and behavior.”
See Reid v. Talalele, 4 A.S.R. 458, 463-64 (Land & Titles Div. 1964).
Under this heading, Fotu stood out as the more forceful personality, selfassured
and assertive. We also rate him ahead of Fuamoli in terms of
knowledge of Samoan custom.
Fuamoli, on the other hand, urges us to view Fotu’s aggressive posture
towards her side’s entitlement as a serious character flaw bespeaking
haughtiness. While the submission is appealing at first blush, we are
inclined to believe, however, that Fotu’s apparent obduracy is more
reactive in nature rather than inherent. As with the Gogo and other
principal families of Amouli, Fotu’s stance seems atypically reactive to a

continuing claim of the Utu titleholders to suzerainty, as alluded to in the
testimony of Fuamoli’s witness Fainu`ulelei, and as previously
advanced, and opposed, in Utu v. Fuata, 17 A.S.R.2d 104, 107 (Land &
Titles Div. 1990). That is, the Utu family has maintained, over the
vigorous opposition of other families, that Amouli is a one family village
with the Utu as the village headman. Suffice it to say that the evident
continuing ill will between the family’s factions is something that
requires reciprocal effort towards a resolution.
We find that Fotu prevails under this consideration.
4. Value to Family, Village, and Country
[5-6] We also find in favor of Fotu under this criterion. In terms of value
to the country, both candidates have creditably served, and retired from,
the territorial government. But as alluded to above, Fotu’s career path
has been more impressive. This is reflected in his greater retirement
income, a relevant factor to account hereunder in assessing value to
family. Tuinei v. Ieriko, 2 A.S.R. 117, 123 (Trial Div. 1940)
(recognizing income as factor in determining candidate’s value). Also in
terms of value to family and village, we find that unlike Fuamoli, whose
family ties primarily keeps her focus in Lauli`i serving the Vaimaona
title, Fotu’s heart and involvement has been service to the Manaea
family and the village of Amouli. Fotu has lived with the Manaea family
in Amouli serving and actively participating in Manaea fa`alavelave
(family affairs), acting as family spokesman on numerous occasions. He
has also participated in Amouli village affairs, including service to the
church and ongoing village projects. As such, Fotu has accumulated
greater awareness with Manaea family matters and has naturally fostered
better rapport with the Amouli village council. By contrast, Fuamoli’s
contact with Amouli village has only been intermittent through her
tautua (service) to the Utu family, not the Manaea family. She is
therefore not as familiar with family needs, nor knows the members of
the family. See Aano v. Sitau, 2 A.S.R. 107, 110 (Trial Div. 1940).
Furthermore, the Manaea title’s prestige and influence in village affairs
has necessarily waned over the years. The family was left leaderless for
many, many years with the extended off-island absence of one of its
former titleholders, who was subsequently removed for dereliction of
duty. Coupled with the vicissitudes of village politics and intrigue
among Amouli’s principal matai, the Manaea family today has much
need of strong leader. We find that Fotu better fits the bill; he prevails
under this heading proving to offer the greater potential to family, village
and country.

Conclusion and Order
On the foregoing, we conclude that Fotu is qualified to hold the title
Manaea. While Fuamoli prevails on hereditary considerations, Fotu
prevails over Fuamoli on the third and fourth criteria, with neither
prevailing on the issue of clan support. The Territorial Registrar shall, in
accordance with A.S.C.A. § 1.0409(b), register the matai title Manaea,
attached to the village of Amouli, in candidate Fotu Tupuola Leuta.
It is so ordered.

 

FOGAVA`A FONOTI a.k.a. ENOKA,v.AMERICAN SAMOA GOVERNNENT


 

FOGAVA`A FONOTI a.k.a. ENOKA, Appellant,
v.
AMERICAN SAMOA GOVERNNENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 08-01
November 26, 2002

 

[1] Whether a trial court’s instructions adequately present a defendant’s theory of the case is a question of law reviewed de novo.
[2] A trial court’s formulation of jury instructions is reviewed for an abuse of discretion.
[3] When reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury’s deliberation.
[4] Generally, a defendant is entitled to an instruction on any defense for which sufficient evidence exists for a jury to find in his favor, but is not entitled to a particular form of an instruction so long as the jury is adequately instructed on the defendant’s theory of the defense.
[5] Probation cannot be granted for a conviction of possession of a controlled substance under A.S.C.A. § 13.1022.
[6] The test for determining if there is sufficient evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
[7] A jury has the the exclusive province of determining the credibility of witnesses and an appellate court must assume that the jury resolved all credibility matters in a manner which supports the verdict.
Before RICHMOND Associate Justice; WALLACE,* Acting Associate
* The Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit sitting by designation of the

Justice; MOLLWAY,** Acting Associate Justice; SAGAPOLUTELE, Associate Judge; MAMEA, Associate Judge.
Counsel: Bentley C. Adams, III, Esq., for Appellant Fogava`a
Fiti A. Sunia, Esq., for Appellee American Samoa Government
Fonoti appeals from his conviction for possession of a controlled substance under A.S.C.A. § 13.1022, asserting reversal is required due to the trial court’s denial of his requested “blind mule” jury instruction, the courts failure to sentence him to probation instead of six years in prison, and the insufficiency of the evidence against him. The trial court had jurisdiction pursuant to A.SC.A § 3.0208(a)(2) and we have jurisdiction over this timely appeal under A.S.C.A. § 3.0208(c). We affirm.
In August 2000, Fonoti was stopped by a customs officer as he disembarked a ferry running between Apia, Samoa and Pago Pago, American Samoa. During a search of a locked compartment of a waist pouch Ponoti was wearing, Territorial Customs Officer Pau`ulu Lagai discovered a small amount of marijuana, Fonoti’s expired passport, rubber bands, and his boarding pass for the trip. Despite a “stop order” issued against him to prevent him from leaving American Samoa, Fonoti obtained a travel permit and left the territory. He later returned to American Samoa in October of 2000 for a dentist visit, and was arrested and charged with possession of a controlled substance.
At his trial, Fonoti testified that while he was waiting to board the vessel in Apia, an individual named “Sefo” approached him and gave him the pouch with the marijuana locked out of sight. Fonoti said that Sefo asked him to take the pouch to a person named “Lotu” who would be waiting for it. He stated that Sefo also gave him a beige hat to wear, so that Lotu would recognize him. He emphasized that he had no knowledge of the marijuana, and did not even know where the key to the pouch was. Fonoti testified that he did not even see the contents until a customs agent stopped him before Officer Lagai’s search, found the key, opened the pouch and put Fonoti’s passport into the pouch. Because the marijuana was in an opaque bag, he did not suspect what it was. He testified that he had carried the pouch because he had a “good heart” and did not know of the bag of marijuana until Officer Lagai’s search. As the pouch was opened, he told Officer Lagai the contents were not his.
Officer Lagai testified that to his knowledge he was the only agent who
Secretary of the Interior.
** The Honorable Susan Oki Mollway, District Judge, United States
District Court of the District of Hawaii, sitting by designation of the
Secretary of the Interior.

stopped Fonoti that day and that he discovered the marijuana with the other items. He stated that no other customs agents were in the area that could have performed the acts of the customs officer that Fonoti described.
Fonoti submitted requested jury instructions, the first of which read: “A ‘blind mule’ is a person used by criminals to carry contraband across a border, who does not know that he is carrying the contraband.” Fonoti based this instruction on a definition statement in United States v. Artero, 121 F.3d 1255, 1259 (9th Cir. 1997). The trial judge ruled at the jury instruction conference that he would not give this instruction, but would instruct the jury that the prosecution bears the heavy burden of proving beyond a reasonable doubt every element in its case, including that the defendant “knowingly” transported the marijuana.
II.
[1-4] Fonoti first complains that it was error for the trial judge to refuse to give his “blind mule” instruction. Whether the trial court’s instructions adequately presented Fonoti’s theory of the case is a question of law reviewed de novo, United States v. Pierre, 254 F.3d 872, 875 (9th Cir. 2001), and a trial court’s formulation of jury instructions is reviewed for an abuse of discretion. United States v. Vallejo, 237 F.3d 1005, 1024 (9th Cir. 2001). “In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury’s deliberation.” United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000). “As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Matthews v. United States, 485 U.S. 58, 63 (1988). However, as long as the jury is adequately instructed on a defendant’s theory of defense, that “defendant is not entitled to any particular form of an instruction.” United States v. Faust, 850 F.2d 575, 583 (9th Cir. 1988).
Fonoti presented no testimony explaining the “blind mule” concept to the jury. Moreover, the jury had ample instructions on Fonoti’s theory that his transportation of the marijuana was unknowing. The jury was instructed as to the government’s burden of proving each element beyond a reasonable doubt and as to the concept of acting “knowingly.” Both instructions alerted jurors that they had to find, beyond a reasonable doubt, that Fonoti knowingly brought the marijuana to American Samoa. The trial court did not abuse its discretion in refusing to add the “blind mule” instruction to its instructions on the prosecution’s burden and the concept of “knowingly” committing an act.

III.
Fonoti also asserts error in the trial court’s interpretation of A.S.C.A. § 13.1022 as not permitting a sentence of probation as a sentencing option. He argues that because the statute expressly prohibits parole, it must be interpreted to permit probation.
[5] Section 13.1022 states that possession of a controlled substance is unlawful, and that “(b) A person who violates the section is guilty of a felony shall be punished as follows; (1) for a first offense, a fine not less than $5,000 and not more than $20,000 or not less than 5 years and not more than 10 years in prison, or both . . . . There shall be no parole for a conviction under this section . . . . (c) The above penalties are mandatory.” We have already rejected the argument that probation is an option under section 13.1022. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10, 14-17 (App. Div. 2002); Isaia v. Am. Samoa Gov’t, 6 A.S.R.3d 3, 5-8 (App. Div. 2002).
IV.
Finally, Fonoti argues that the government did not prove his guilt beyond a reasonable doubt because the government showed neither that Fonoti knew the contraband was present nor that Fonoti knew the identity of the contraband. This is so, he argues, because he testified that another customs agent had searched him before Officer Lagai and had placed his passport in the locked pouch, which could lead to an inference that Fonoti never opened the pouch and that the presence of his passport next to the marijuana was the result of the first officer’s conduct. Thus, he contends, the Lagai search result could not lead to an inference that he knowingly carried the marijuana.
[6-7] There is sufficient evidence to support a conviction if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential, elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Fonoti’s argument essentially is that the jury should have believed his testimony instead of the testimony of Officer Lagai. But our test is whether “any rational trier of fact” could have believed the elements of the crime were proven beyond a reasonable doubt. The jury chose to believe Officer Lagai rather than Fonoti, and infer that Fonoti knew he was carrying marijuana in the same locked pouch as his passport. “An appellate court must respect the exclusive province of the jury to determine the credibility of witnesses . . . by assuming that the jury resolved all such matters in a manner which supports the verdict.”

United States v. Nguyen, 284 F.3d 1086, 1090 (9th Cir. 2002) (quoting United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989)). Fonoti has offered no persuasive reason why we should hold that the jury’s finding was irrational. He testified, and the jury considered his testimony and presumably rejected it. A rational jury could and did find that all the elements of the possession charge were proved beyond a reasonable doubt.
AFFIRMED.
It is so ordered.

 

FIASILI HALECK, RAYMOND M. McMOORE, v.TRT, INC., AMERICAN SAMOA 2000, INC


FIASILI HALECK, RAYMOND M. McMOORE, SESE
McMOORE, on behalf of themselves and as shareholders of TRT,
Inc., Plaintiffs,
v.
TRT, INC., AMERICAN SAMOA 2000, INC., AGAOLEATU C.
TAUTOLO, AGAESE ACE TAGO, MURRAY R. DRAKE,
RAYMIE P. SNOW, and DOES I-XX, Defendants.
High Court of American Samoa
Trial Division
CA No. 20-02
September 16, 2002

 

[1] Complaint is interpreted in light most favorably to plaintiff in

deciding motion to dismiss for failure to state cause of action.
[2] Great specificity is not required to survive motion to dismiss as long
as pleadings give notice of nature of claims.
[3] Motions to dismiss are viewed with disfavor and are rarely granted.
[4] Fundamental incident of corporate ownership is right of shareholders
to inspect books and records of corporation whose stock they hold.
[5] In derivative action to inspect books and records of corporation, to
withstand motion to dismiss for failure to state cause of action, plaintiffs
need only plead that they are stockholders, they made demands to
examine records, they have proper purpose, and their demands were
refused.
[6] Complaint must be amended when each count of complaint fails to
incorporate previous paragraphs detailing allegations of action.
[7] Shareholder derivative actions are governed by T.C.R.C.P. 8-12 and
T.C.R.C.P. 23.1. Rule 23.1 requires that complaint be verified and allege
(1) that plaintiffs were shareholders at time of transactions about which
they complain; (2) that action is not collusive one to confer jurisdiction
on court of American Samoa; (3) efforts made to obtain relief requested
from directors of corporation and, if necessary, from shareholders; and
(4) reasons for failure to obtain such relief or for not making the effort.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Plaintiffs, Charles V. Ala´ilima
For Defendants TRT, Inc., American Samoa 2000, Inc., and
Agaoleatu C. Tautolo, William H. Reardon
ORDER DENYING MOTION TO DISMISS
Plaintiffs Fiasili Haleck (“Haleck”), Raymond McMoore and Sese
McMoore (together “the McMoores”) filed a five-count complaint styled
primarily as a shareholder’s derivative suit. Though the prayer suggests
that the first count is a derivative action, Haleck and the McMoores
developed this count for relief in their personal capacities. In the last
count, Haleck clearly asserts relief in her personal capacity. Defendants
TRT, Inc. (“TRT”), American Samoa 2000, Inc. (“AS2000”), and
Agaoleatu C. Tautolo (“Agaoleatu”) moved, pursuant to T.C.R.C.P.

12(b)(6), to dismiss the complaint on the ground that each of the five
counts failed to state a claim upon which relief can be granted.1 The
Court has considered counsel’s arguments and will deny the motion.
Standard of Review
[1-3] In deciding a motion to dismiss for failure to state a cause of
action, the complaint is interpreted in light most favorably to the
plaintiff. See Beaver v. Cravens, 17 A.S.R.2d 6, 8 (Trial Div. 1990);
T.C.R.C.P. 8(f). The facts as alleged in the complaint are accepted as
true. Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir. 1990). Great
specificity is not required to survive a motion so long as “the pleadings
give the defendant notice of the nature of the claims against him.”
Morse v. Regents of University of Colorado, 154 F.3d 1124, 1127 (10th
Cir. 1998); see also ASG Employees Federal Credit Union v. Gurr, 26
A.S.R.2d 87, 94 (Trial Div. 1994); T.C.R.C.P. 8(e)(1) (pleading shall be
simple, concise and direct). Indeed, when read in conjunction with
T.C.R.C.P. 8, motions to dismiss are “viewed with disfavor and [are]
rarely granted.” 5A CHARLES A. WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTIVE AND PROCEDURE § 1357 (1990); compare Pene v.
Am. Samoa Power Auth., 4 A.S.R.2d 152, 154 (Trial Div. 1987)
(dismissing without prejudice).
I. Sufficiency of the Pleadings
In light of this liberal standard, we conclude that all five counts of the
complaint properly put forth causes of actions.
A. Misrepresentation
In the first cause of action, Haleck and the McMoores claim that
Agaoleatu and Tago intentionally or negligently misrepresented to them
the interest that TRT would acquire in the McDonald’s franchise.
Drawing all reasonable inferences in favor of Haleck and the McMoores,
their pleadings, both explicitly and implicitly, support such a claim.2
1 As of the date of entry of this order, defendants Agaese Ace Tago,
Murray R. Drake, and Raymie P. Snow have not been served of record
with process, and have not answered the complaint or otherwise
appeared in this action.
2 In their opposition to the motion to dismiss, Haleck and the McMoores
frame their argument in terms of promoter liability for nondisclosure.
Technically, promoter liability applies to preincorporation activities. See
18 AM. JUR. 2D Corporations §§ 98-149 (1985). Under this theory,
Agaoleatu and Tago might be liable if their conduct were related to the

B. Injunctive Relief
In the second cause of action, Haleck and the McMoores on behalf of
themselves and similarly situated shareholders seek an injunction barring
Agaoleatu, Tago, Drake, and Snow from continuing to represent
themselves as TRT’s current board. This stems from the allegations that
Agaoleatu, Tago, Drake, and Snow do not constitute a duly appointed
board. Assuming this to be true, all acts of this new board are unlawful
and void. See Beaver v. Cravens, 19 A.S.R.2d 14, 26 (Trial Div. 1991).
An injunction may therefore be the appropriate remedy. See Lutali v.
Foster, 24 A.S.R.2d 39, 41 (Trial Div. 1993).
C. Audit
[4] By the third cause of action, Haleck and the McMoores on behalf of
themselves and similarly situated shareholders also seek access to the
records of TRT and AS2000 for purposes of conducting a pretrial
independent audit. “One of the basic incidents of corporate ownership is
the right of shareholders . . . to inspect the books and records of the
corporation whose stock they hold.” Fleisher Dev. v. Home Owners
Warranty Corp., 856 F.2d 1529, 1530 (D.C. Cir. 1988); see also
A.S.C.A. § 30.0160(b).3 The right was originally recognized under the
common law but most jurisdictions, including American Samoa, have
enacted statutes that should be read as enlarging or, at the very least,
codifying that right. See, e.g., Schwartzman v. Schwartzman Packing
Co., 659 P.2d. 888, 891 (N.M. 1983); 18 AM. JUR. 2D Corporations §
348 (1985). Despite the arguments to the contrary put forward by
Agaoleatu, TRT, and AS2000, we therefore conclude that a right to
incorporation of AS2000. However, if liability stems from their conduct
in soliciting money for TRT, then the tort of misrepresentation seems to
better suit their legal theory of recovery. In either case, we will not
dismiss as long as the pleadings contain “allegations respecting all the
material elements to sustain recovery under some viable legal theory.”
Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 406 (6th Cir. 1998)
(emphasis added; citations omitted).
3 A.S.C.A. § 30.0160(b) provides, in part:
Any corporation organized under the laws of American Samoa
shall be subject to the right of . . . any person who is a
stockholder of record of any such corporation, to call for the
production of and to examine, in person or by duly authorized
agent or attorney, at any reasonable time or times and for
proper purpose, the stock records, minutes and records of
stockholders meetings, and the books and records of accounts,
and to make extracts therefrom.

inspection does exist in the Territory.
[5] In order to proceed at this stage in the lawsuit, Haleck and the
McMoores need only plead that they are stockholders, that they made
demands to examine the records, and that their demands were refused.
See generally 18 AM. JUR. 2D Corporations § 411, n.28 (1985).
Additionally, A.S.C.A. § 30.0160(b), as do most statutes, requires a
showing of proper purpose. The allegations of Haleck and the
McMoores meet these requirements and, within the facts of these
pleadings, their motives for inspection are indeed proper. See In re LTV
Secs. Litigation, 89 F.R.D. 595, 610 (N.D. Tex. 1981) (investigation of
improper corporate management deemed proper purpose); Hagy v.
Premier Mfg. Corp., 172 A.2d 283, 286 (Pa. 1961) (same).
D. Breach of Fiduciary Duty
In the fourth cause of action, Haleck and the McMoores for themselves
and similarly situated shareholders claim that Agaoleatu, as a director
and controlling shareholder of TRT, has breached his fiduciary duty to
the corporation. This cause of action has been properly plead and is
supported by our own case law. See Haythornwaite v. Transpac Corp., 6
A.S.R.2d 110, 111 (Trial Div. 1987).
E. Guarantee
In the fifth and last cause of action, Haleck in her personal capacity
claims that as guarantor of the bank loan to TRT, she is entitled to
payment of guarantee fees and that these payments have been withheld.
It appears that Haleck means to state that, in consideration for
undertaking to guarantee the loan, TRT agreed to pay Haleck guarantee
fees, and she therefore has a cognizable claim. The lack of an express
allegation to this effect is probably oversight. However, Haleck and the
McMoores should amend their pleadings to include a reference to the
basis for Haleck’s fees.
II. Pleading Amendments
Despite our ruling, there are certain deficiencies in the pleadings that
need to be corrected. The deficiencies are not, however, fatal to the case
pled by Haleck and the McMoores.
[6] First, in addition to matters noted above, each count of the complaint
failed to incorporate the previous paragraphs detailing the allegations of
the suit. Also, though the first count seeks redress for misrepresentation
against Agaoleatu and Tago, the reference in paragraph 11 to paragraph

6 seems to inadvertently point the finger at Drake. Both matters are
easily remedied.
[7] More important, however, is the fact that counts two, three, and four
are framed in terms of a shareholder derivative suit. Shareholder
derivative suits are governed not only by T.C.R.C.P. 8-12 but also by
T.C.R.C.P. 23.1. Rule 23.1 requires that the complaint be verified and
allege (1) that Haleck and the McMoores were shareholders at the time
of the transactions about which they complain; (2) that the action is not a
collusive one to confer jurisdiction on a court of American Samoa; (3)
the efforts made to obtain the relief requested from the directors of TRT
and AS2000 and, if necessary, from the shareholders; and (4) the reasons
for the failure to obtain such relief or for not making the effort. Haleck
and the McMoores must fairly and adequately represent the interests of
the shareholders or members similarly situated.4
Haleck and the McMoores have met most of these requirements. They
have not, however, alleged that the action is not a collusive one to confer
jurisdiction,5 or alleged whether or not it was necessary to request relief
from the shareholders.6 Haleck and the McMoores should make these
allegations explicit in their pleadings so as to be in conformity with
T.C.R.C.P. 23.1.
Order
For these reasons stated above, the motion to dismiss is denied.
4 Haleck and the McMoores do not have to plead this requirement,
however, as the burden is on the defendant to prove the conflict. See
Abeloff v. Barth, 119 F.R.D. 332, 335 (D. Mass. 1988).
5 The genesis for this requirement seems to come from the Federal Rules
of Civil Procedure. Those rules, in turn, stem from the pre-Erie days
where federal courts sitting in diversity jurisdiction may have provided a
more favorable forum for a plaintiff. After Erie, the rule has declined in
importance and a “conclusory allegation phrased in the language of the
rule normally will suffice.” 7C CHARLES A. WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1830 (1990).
6 Whether a demand on the shareholders is necessary is a question of
local law. Regardless, a demand is unnecessary “when the majority
shareholders are the alleged wrongdoers, are controlled by the alleged
wrongdoers, or have interest that would be adversely affected if the
corporation brought suit.” 7C CHARLES A. WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1832 (1990); see also
Brody v. Chem. Bank, 482 F.2d. 1111, 1114 (1973) (proper remedy is
not to dismiss but to allow plaintiff to replead).
241
However, Haleck and the McMoores must correct by amendment the
matters in their complaint noted above.
It is so ordered.

 

FAUMUINA SUAFA`I SATELE,v.TAUTOLO GAOSA and AMERICAN SAMOA POWER AUTHORITY


 

FAUMUINA SUAFA`I SATELE, Plaintiff,
v.
TAUTOLO GAOSA and AMERICAN SAMOA POWER
AUTHORITY, Defendants.

High Court of American Samoa
Land and Titles Division
LT No. 09-95
LT No. 31-95
March 18, 2002

ORDER DENYING MOTION FOR RECONSIDERATION OR NEW
TRIAL, CONTINUING STAY OF RENT PAYMENTS, AND
SETTING ASIDE TITLE REGISTRATION
1 In a nutshell, it looks like the services of a qualified surveyor might be
in order to assist the court in resolving the dispute as to situs. Indeed,
Alai`asa had resorted to calling a surveyor in Alai`asa v. Te`o, 5
A.S.R.3d 266 (Land & Titles Div. 2001), a matter not unlike the one
now before us in factual issues.

 

[1] Where two families mutually, peacefully and harmoniously, occupied
and used land in a manner so irregularly intermingled that any areas of
separately owned land could not be defined, Court determined that land
could not be registered as only one family’s communal land.
Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge,
and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Charles V. Ala`ilima
For Defendant Tautolo Gaosa, Arthur Ripley, Jr.
For Defendant Am. Samoa Power Authority, Roy J.D. Hall, Jr.
 
I. Motions for Reconsideration or New Trial and Stay of Judgment
On December 13, 2001, defendant Tautolo Gaosa (“Tautolo”) timely
moved for reconsideration or new trial with respect to the court’s opinion
and ordered entered on November 30, 2001. Tautolo also moved to stay
execution of the judgment, pending the outcome of the first motion and
the existing and any further appeal of this action. The court heard the
motions on January 25, 2001. All three counsel were present.
During the hearing, we granted by bench order the motion to stay
execution of the judgment with respect to payment by defendant
American Samoa Power Authority (“ASPA”) of the rentals for its leases
of the well site and waste disposal site on the total land at issue. We
have now considered the issues raised by Tautolo’s motion for
reconsideration or new trial. Tautolo’s concerns are without merit. This
motion will therefore be denied. However, the present stay of execution
of the judgment will remain in effect pending the existing appeal and any
subsequent appeal. We will also address two other matters.
319
II. Ownership of Land “Lepue”
We need to clarify our decisions regarding ownership of the land called
“Lepue.” For purposes of the discussion of this and the second matter,
we will refer to three parcels of land by name: “Agaoleatu,” “Lepue,”
and “Anaoleatu.” “Agaoleatu” consists of approximately 6.301 acres at
the western end of the total land at issue. ASPA’s well site is within
“Agaoleatu” but outside of the portion of this parcel now determined, as
noted below, to be the Faumuina family’s communal land. “Lepue”
embraces approximately 3.291 acres immediately east of “Agaoleatu.”
Part of the disposal site is within “Lepue.” “Anaoleatu” covers
approximately 23.333 acres and encompasses the entire land in dispute,
including both “Agaoleatu” and “Lepue.” The disposal site is entirely
within “Anaoleatu.”
Plaintiff Faumuina Safa`i Satele (“Faumuina”) offered to register the title
to both “Agaoleatu” and “Lepue” as the Faumuina family’s communal
land. Both offers went through the formal registration process, which
generated Tautolo’s objections and claim to “Anaoleatu.” The
unresolved title disputes to “Agaoleatu” and “Lepue” were sent to this
court for judicial determination. Though surveyed as of the trial in July
2000, Tautolo had not offered to register the title to “Anaoleatu” as
Tautolo family’s communal land.
Our original decision entered on August 3, 2000, expressly adjudicated
title to “Agaoleatu” in Tautolo’s favor. We directed the Territorial
Registrar to register the title to “Agaoleatu” as the Tautolo family’s
communal land. We also held that as between Faumuina and Tautolo,
the portion of “Anaoleatu” outside of “Agaoleatu” was also the Tautolo
family’s communal land. This portion also encompasses “Lepue.”
However, because Tautolo had not offered “Anaoleatu” for registration,
we advised the parties that Tautolo must offer the area in “Anaoleatu”
outside of “Agaoleatu” for registration in order to provide notice to other
potential claimants before the title to this area could be adjudicated.
“Lepue” is located within “Anaoleatu,” and though properly before us
for title determination, we clearly, in hindsight, but inadvertently
overlooked definitively deciding this title issue, except implicitly with
respect to Faumuina and Tautolo, in our August 3, 2000 decision.
We modified our decision on ownership of “Agaoleatu” in the order of
November 6, 2000, partially granting reconsideration, to hold that a
portion of the western side of “Agaoleatu” is the Faumuina family’s
communal land. This modification was confirmed in our decision of
November 30, 2001.
320
In the decision of November 30, 2001, we also modified our findings
with respect to the title to “Anaoleatu” outside of the portion in
“Agaoleatu” held to be the Faumuina family’s communal land, deciding
that we could not determine by a preponderance of the evidence
presented the titleholder(s) to this entire area as between Faumuina and
Tautolo, and for that matter any other still unidentified claimants not yet
before the court. This change was based on out inspection of the land
and other abundantly clear evidence showing that, for many years, the
Tautolo family and Fa`i family, a subfamily of the extended Faumuina
family, had mutually, peacefully and harmoniously, occupied and used
“Anaoleatu,” outside of the portion of “Agaoleatu” now recognized as
the Faumuina family’s communal land, and in a manner so irregularly
intermingled that any areas of separately owned land by the Tautolo
family and, as the case may be, the Fa`i family or Faumuina family could
not be defined.
[1] “Lepue” is within “Anaoleatu” outside of the portion of “Agaoleatu”
owned by the Faumuina family as communal land. Thus, under the
modification now in effect, we have still implicitly held that “Lepue”
could not yet be registered as between Faumuina and Tautolo. We stand
by that implicit finding.
III. Territorial Registrar’s Registration of October 25, 2000
The Territorial Registrar registered title to land as the Tautolo family’s
communal land, and recently an amended version, both dated October
25, 2000. In the present motion for reconsideration or new trial and
during the hearing on the motion, Tautolo expressly noted the Registrar’s
initial registration. We advised counsel that we would examine the
Registrar’s registration files.
Tautolo states that the initial registration pertains to approximately
23.333 acres, the area contained in “Anaoleatu.” Apparently, Tautolo
justifies this interpretation on the timing of the registration. He followed
our admonition and offered his survey of “Anaoleatu” for registration
shortly after entry of our decision of August 3, 2000, and the required
60-day notice period expired shortly before the registration was issued
on October 25, 2000. However, Tautolo’s conclusion ignores the facts
that three timely objections, one by Faumuina, were filed with the
Registrar, and the controversy thus framed has not yet gone through the
dispute resolution proceedings before the Secretary of Samoan Affairs,
let alone ultimate judicial determination.
Recently, the Territorial Registrar recognized the ambiguity in the first
registration issued on October 25, 2000, and reissued an amended
321
registration, specifically for the 6.301 acres in “Agaoleatu.” The
amended registration is consistent with our original adjudication of
August 3, 2000, and the Registrar’s corrective action is understandable.
The Registrar has not yet received official notice of the revision of our
original adjudication to recognize that a portion of “Agaoleatu” is the
Faumuina family’s communal land, and that title to “Anaoleatu,”
including “Lepue,” outside of the portion of “Agaoleatu” held by the
Faumuina family as communal land, is presently undeterminable. The
corrective action is, of course, insufficient in light of the revision.
Accordingly, we will set aside the initial and amended registrations,
pending final determination of the title to areas within “Agaoleatu.” We
will also keep the Registrar fully informed about judicial developments
in this action.
Order
1. Tautolo’s motion for reconsideration or new trial is denied.
2. The stay of execution of the judgment shall remain in effect pending
the existing and any subsequent appeal. The stay applies specifically
and only to ASPA’s payment of rentals for the leases of the well site and
waste disposal site on the land at issue.
3. The original and amended versions of the Territorial Registrar’s
registration of Tautolo’s title, both dated October 25, 2000, are set aside
pending final resolution of the title to the areas within “Agaoleatu.”
4. The clerk of the court shall cause delivery to the Territorial Registrar
of certified copies of the court’s orders: (a) order partially granting
motion for reconsideration and denying new trial of November 6, 2000;
(b) order granting motion for reconsideration or new trial of March 1,
2001; (c) opinion and order of November 30, 2001; and (d) this order.
When appropriate, we will direct the clerk to transmit to the Registrar
future court orders in this action.
It is so ordered.

 

FANENE S. SCANLAN, v.FANENE FETAIAIGA KAVA and DOES I-X


 

FANENE S. SCANLAN, Plaintiff,
v.
FANENE FETAIAIGA KAVA and DOES I-X, Defendants.
High Court of American Samoa
Land and Titles Division
LT No. 13-00
September 6, 2002

 

[1] The fa`a Samoa or the Samoan way life has twin cornerstones, the
matai system and communal land tenure.
[2] The highest authorities in the territory are the Treaties of Cession and
the Constitution. These resources dictate that we respect the right to
property according to custom.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendant, Charles V. Ala`ilima
ORDER DENYING MOTION FOR NEW TRIAL

This dispute concerns land Lalopua in the village of Pago Pago
belonging to the Fanene extended family. As the consequence of prior
court decisions, the once unitary Fanene family has been split into two
factions who have been fighting ever since for dominion over real family
assets. The latest round in this enduring inter-factional rivalry concerns
the attempt by one faction to altogether oust the other from communal
land, and thereby, effectively disenfranchise the defendants' side not only
as Fanene family members, but as an extended Samoan family unit.1 We
denied the petition for eviction and refused to perpetuate a travesty on
the fa`a Samoa, as it concerns the defendants.
We are cognizant of the fact that the land Lalopua has been fought over
and previously litigated. In fact, our Order & Opinion deals quite
extensively with the previous litigation and contains our related analysis.
As explained in detail in our opinion, the 1945 Lalopua land decision,
Taofi v. Fanene, 2 A.S.R. 197 (Trial Div. 1945), was misinterpreted by
the court in 1971, LT Nos. 1089 and 1154 (Land & Titles Div. 1971),
and this misinterpretation was applied as controlling precedent by later
courts without close review of the substance of the decision. We found,
among other things, that the defendants are in fact members of the
extended Fanene family, the same family that was found to be entitled to
Lalopua in 1945. The problem, essentially, is that the 1945 decision
treated the Fanene family as one, but the 1971 decision treated the 1945
case as precedent in favor of only one side of the by then divided Fanene
family.
1 [1] The fa`a Samoa or the Samoan way life has twin cornerstones, the
matai system and communal land tenure. Fairholt v. Aulava, 1 A.S.R.2d
73, 78 (Land & Titles Div. 1983); Tavai v. Silao, 2 A.S.R.2d 1, 2 (Land
& Titles Div. 1983); Lavata`i v. Pen, AP No. 08-94, slip op. at 8 (App.
Div. 1996). Thus, without communal land, the defendant's side of the
family would simply cease to exist as a Samoan family unit.
[2] Res judicata is, of course, a concern in a situation where the same
land has been previously contested. However, the previous cases not
only misapplied the 1945 decision, they also never addressed the issue of

eviction. It is our opinion that the issue of eviction casts a new light
upon all the issues revolving around the disagreement over this piece of
land. The questions of who is entitled to live on Lalopua and who has
pule over it cannot be properly addressed without considering the full
ramifications of the 1971 decisionC-including possible evictions. The
highest authorities in the territory are the Treaties of Cession and the
Constitution. These resources dictate that we respect the right to
property according to custom. See April 17, 1900 Cession of Tutuila and
Aunu`u (February 20, 1929); July 16, 1904 Cession of Manu`a Islands
(May 22, 1929); REV'D CONST. OF AM. SAMOA art. I, ' 2. We cannot in
good conscience respect the customs and traditions of the Samoan
people and continue to apply the previous wrongly footed decisions
concerning this property. With the issue of eviction, we were forced to
consider fundamental issues, which we outlined in our detailed opinion
and order.
Order
We see no manifest error of law or mistake of fact required to order a
new trial. Accordingly, we deny plaintiff's motion.
It is so ordered.

 

FANENE S. SCANLAN, Plaintiff v.FANENE FETAIAIGA KAVA and DOES I-X


 

FANENE S. SCANLAN, Plaintiff
v.
FANENE FETAIAIGA KAVA and DOES I-X, Defendants
High Court of American Samoa
Land and Titles Division
LT No. 13-00
July 8, 2002

 

[1] The subservient obligation of tautua normally runs from a family
member to the family sa`o or senior matai.
[2] The Samoan way of life has twin cornerstones, the matai system and
communal land tenure.
[3] Where court decisions recognized split title in family but awarded
land solely to one of the titleholders, resulting in disenfranchisement of
one branch of family and requiring said branch to render tautua to other
family branch, such decision was wrongly decided, inconsistent with
Samoan custom and contrary to the Treaties of Cession.
[4] The Treaties of Cession require respect and protection of the people
to their lands and the recognition of property rights according to Samoan
custom.
[5] A family’s entitlement to communal land is a proprietary right within
the due process clause of the territorial constitution.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendant, Charles V. Ala`ilima
OPINION AND ORDER
This case is but yet another sad chapter in what unfortunately has been
an ongoing, longstanding contest between two family factions,
apparently unrelated by blood but tied to a common matai title, Fanene,
attached to the village of Pago Pago. The Fanene title today has two

holders, one from each faction; however, the village of Pago Pago has
been neither prepared to recognize nor accept the Fanene title as a split
title. Consequently, this state of affairs has begotten its own parade of
practical problems since there is only one Fanene title cognizant within
the traditional village polity.1
To compound difficulties, court decisions have declared that certain
Fanene family land known as Lalopua, at issue before us now, is
exclusively owned by one of these Fanene factions, although in part
occupied by the other for many years. The faction asserting ownership is
seeking to oust or evict the other.
Discussion
The modern day situation with the Fanene family of Pago Pago has in
large part been the product of a tortuous evolutionary process generated
not through customary Samoan development, but by operation of law
within the imported legal framework.
A. Split Matai Titles & Communal Factionalism
For reasons now clouded with time, two persons were permitted to first
register the Fanene matai title in 1906, when the then newly established
U.S. Naval government first began to regulate matai title registration.
The origin of dual Fanene titleholders was alluded to in testimony given
and discussed in Taofi v. Foster, 1 A.S.R. 464 (Trial Div. 1932). It
appears that at some time prior, there were two factions that had also
emerged within the Mauga family of Pago Pago, each with its own
titleholder—a Mauga Manuma and a Mauga Lei. Id. at 465. Each of
these Mauga appointed his own Fanene. Fanene Tavai and Fanene
Mataumu respectively. Id. It further appears that from this precedent,
dual Fanene title-holders have persisted. Our review of the cases reveals
that principally because of the fact of dual registration in 1906, the Court
in 1965 determined that the Fanene title was a “split title” between two
unrelated Fanene family groups, and thereby affirmed the registration of
1 Plaintiff Fanene Scanlan claims that the Fanene holders from his family
branch are the only legitimate reference in the village honorifics, or
salutation, “tei ma anoalo.” However, he readily admits to present day
realities that not only recognizes but admits his co-holder Fanene Kava to
be seated at the village council and be deferred to as the Fanene. Plaintiff
explained that the defendant and he have operated under an informal
understanding that whomever arrives first at a village council meeting
assumes the Fanene’s seat and post. It goes without saying that plaintiff’s
claim to singular legitimacy is vigorously opposed by the defendant’s side.

a second titleholder in Fanene Filo v. Vaoalii K. Fanene, 4 A.S.R. 603
(Trial Div. 1965), hereafter “the 1965 split title decision.”2 Ironically,
however, the Court early arrested the notion, and any development, of
dual Mauga titleholders. Thus in 1913, the Court in Mauga v. Taelase, 1
A.S.R. 276 (Trial Div. 1913), declared that the Mauga title was not a
split title for division among multiple titleholders because it would,
among other things, destroy the prestige and dignity of the great title.
This was later affirmed in In re Matai Title Mauga, 4 A.S.R. 132, 140
(Lands & Title Div. 1971) (“We are reversing our decision in
Tauvevematalilo [sanctioning split titles] since upon reconsideration it
was ill-advised and in substantial derogation of Samoan custom”).
The upshot of these court decisions is undeniably the following: the
attempted splitting of the Mauga title, which in turn gave rise to the
creation of split Fanene titles, was stifled by judicial fiat while its Fanene
split-title spin off was not only left undisturbed, but given the Court’s
imprimatur. The Court has thus seemingly given inconsistent effect to
fa`a Samoa.
B. Land Lalopua
We next note that in 1932 the Court, in Taofi v. Foster, had awarded the
Fanene title to Filo Foster, plaintiff Fanene Scanlan’s predecessor in
title. See generally 1 A.S.R. 464 (Trial Div. 1932). Filo then singularly
held the Fanene title for a period of thirty-three years until, as we have
seen, the Court in the 1965 split title decision allowed a Vaoali`i K.
Fanene (defendant Fanene Kava’s predecessor in title) to be registered as
a second Fanene titleholder.
While Filo alone held the Fanene title, he offered Lalopua for
registration, on October 11, 1944, as the communal property of “the
Fanene family.” This offer to register not only attracted a third-party
counter-claim, from the Mauga family, but also a counter-claim from
within the Fanene family from one Taofi, the same individual who vied
with Filo for the Fanene title in the 1932 case. Taofi attempted to claim
Lalopua as his “individually-owned” land, and the resulting land dispute
came before the Court in 1945 as Taofi v. Fanene, 2 A.S.R. 197 (Trial
Div. 1945), hereafter “the 1945 Lalopua land case.” The Court, not
surprisingly, found in favor of the extended family and against the
2 The Court here observed that “[t]he matai name register shows that Pulu
Saofeatalai was registered as the holder of the Fanene title on October 10,
1906, and that on October 30, 1906, Vaomalo was also registered as a
Fanene.” 4 A.S.R. at 604. It then concluded that “the Fanene title is a split
title.” Id.

individual family member (as well as against the third-party claimant).3
C. Split Titles & Factional Communal Ownership
In 1971, the Land and Titles Division further took up the issue of
Lalopua and redefined the scope of the 1945 Lalopua land case’s
holding—that the land belonged to the Fanene family—by declaring that
Lalopua was owned by the Fanene Filo faction of the family, to the
exclusion of Fanene Tauveve’s (defendant Fanene Kava’s predecessor in
interest) faction. Fanene Foster for Herman Scanlan v. Fetaiaiga T.
Fanene, LT No. 1089 & Fanene Foster & Richard Foster v. Tauveve
Fanene, LT No. 1154 (Consolidated), (Land & Titles Div. 1971)
(Findings of Facts and Judgment, entered Nov. 1, 1971) (hereinafter LT
Nos. 1089 & 1154). The Court therefore further held that pule lay with
the matai of Fanene Filo’s branch.
Without regard to Samoan realities, the 1971 Court in its cursorily
worded opinion simply arrived at these conclusions by first taking
“judicial notice” of and then “re-affirm[ing],” without elaboration,
“pertinent portions of the Court’s decision in the 8-1932 (Foster, 1
A.S.R. 464) and 20-1945 (the Lalopua land decision) cases between
these two families.” LT Nos. 1089 & 1154, slip op. at 4. Seven months
after, and apparently realizing that parts of Lalopua were being occupied
by Fanene Kava’s side of the family, the 1971 Court felt constrained to
add, by way of separate addendum, that those members of the other side
of the family occupying Lalopua—viz., Fetaiaiga Kava, now the present
defendant Fanene F. Kava, and her children—could nonetheless remain
on Lalopua as long as they rendered tautua (the obligation of rendering
traditional service) to the holder of pule. See generally Fanene Foster
for Herman Scanlan v. Fanene, 4 A.S.R. 66 (Land & Titles Div. 1972).
The only attempt at explanation given by the Court for the addendum
was “inadvertence and clerical error.” Id. at 67. Otherwise the reader is
provided neither rhyme nor reason for this belated amendment.
Intuitively, at least, the result seems only fair, but the underlying
reasoning is conspicuously absent while the Court’s premise remains
baffling. Quite clearly, the Court, after apparently realizing the
3 Taofi’s claim to title was simply that, a mere claim to title. In order to
establish a claim to individually owned land, a party must couple his claim
with a showing that the land was (1) cleared in its entirety or substantially
so from the virgin bush by him through his own initiative and not by, for, or
under the direction of his aiga or its senior matai; (2) cultivated entirely or
substantially so by him; and (3) occupied by him or his family or his agents
continuously from the time of the clearing of the bush. Fanene v. Magalei,
LT No. 64-77 (1977).

harshness of disentitling family members from family lands, had
effectively attempted to mitigate matters by ready resort to equity
without explanation. But by doing so, the Court has also effectively
turned Samoan custom on its head, with the cumulative outcome of case
development being the anomaly of a Samoan family split into two,4 each
with its own titleholder, and with one branch declared landless and
owing tautua to the other. This incongruent state of affairs has, not
surprisingly, proven to be a recipe for enduring turmoil and discontent.5
D. LT No. 1089 and 1154 Holdings and Land Ownership
The 1971 Court, in our view, read too much into 8-1932 (Taofi v. Foster,
1 A.S.R. 464) and 20-1945 (the Lalopua land decision) in order to find a
basis for its conclusion that Lalopua was owned only by the Fanene Filo
faction of the family. First, Taofi v. Foster was a matai title contest.
The issue here had nothing to do with landholding and the matai court
had absolutely nothing to do with Lalopua.
Second, the 1945 Lalopua land case Court specifically found that “the
true owner of the property in question is the Fanene family and Fanene
Filo, as the matai of this family is entitled to register this land as
communal land owned by him as the matai of the family.” 2 A.S.R. at
200 (emphasis added).
Noteworthy with the Lalopua land case is the fact that the land Lalopua
was offered for registration by Filo not as the communal land of Fanene
Filo’s side of the family, but as the communal land of the Fanene family.
Additionally, and to put the 1945 case in proper perspective, there was,
at the time, only one Fanene family—the family was not split until the
1965 split title decision—and one Fanene titleholder, Fanene Filo who
represented the whole Fanene family. Support for this finding—that
Fanene Filo was representing the whole Fanene family, as opposed to
only one faction of the family—is to be found in the records of the 1965
split title decision as well as in Fanene Filo v. Tauveve L. Fanene, LT
No. 1035 (Trial Div. 1970), wherein both instances Fanene Filo
vigorously objected to the proposition that the Fanene title was a split
4 The fact that the two branches of the Fanene family are not blood related
does not ipso facto render a family split into two. Indeed, the Mauga family
itself, the derivative source of the Fanene split, is comprised of three clans
who are not blood related. See In re Matai Title Mauga, MT No. 12-98
(Land & Titles Div. 2001). But as we have seen the cases have declared
that the Mauga title is not a split title.
5 See Fanene v. Fanene, 26 A.S.R.2d (Land & Titles Div. 1994), for a
sketch of the Fanene factions’ litigation history.

title. Therefore, when Filo offered Lalopua for registration in 1944, he
was operating under the premise that the family was not a split family,
and thus in 1944, he was representing all of the Fanene family. The
issue of factionalism was neither before the court in 1945 nor anywhere
within its contemplation. Nowhere within the 1945 Court’s judgment is
there even the slightest hint of factional ownership of Lalopua.
Moreover, the 1971 Court’s conclusions in LT Nos. 1089 and 1154 are
in stark contrast with our treatment of other, albeit isolated, “split” title
cases, where family lands were accorded corresponding “split” effect in
accordance with factional usage. For example, the matai title
Mulitauaopele of Lauli`i has had two titleholders from two unrelated
family groups “for at least a hundred years.” In re Matai Title
Mulitauaopele, 16 A.S.R.2d 63, 69 (Land & Titles Div. 1990). In
rejecting an attempt by one of the Mulitauaopele family lines to unify the
title by seeking to abolish the other line’s claim, the Court not only gave
effect to the fact that “the two families have different lands,” but went on
to say that “it would be contrary to Samoan custom for them to . . .
choose a single title holder with pule over both families’ lands.” Id. at
68.
[1-2] Lastly, the consequence of the holdings in LT Nos. 1089 and 1154
is the rather peculiar, if not farcical, situation of a matai title co-holder
owing his peer the subservient obligation of tautua, an obligation which
in the normal course runs from a family member to the family sa`o or
senior matai. An even more curious consequence of the LT Nos. 1089
and 1154 holdings is the resulting situation of a Samoan family
cognizant at law with a registerable matai title, but no communal lands; a
state of affairs which simply cannot be reconciled with the truism that
“the Samoan way of life has twin cornerstones, the matai system and
communal land tenure.” Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land &
Titles Div. 1983) (emphasis added).
The twin cornerstones of the Samoan way of life are communal
land tenure and the matai system. Each is essential to the other.
Without the matai system to administer it, the communal land
system becomes anarchy. Without the communal land system,
there is no reason for the matai.
Lavata`i v. Pen, 30 A.S.R.2d 10, 15 (App. Div. 1996) (quoting Tavai v.
Silao, 2 A.S.R.2d 1, 2 (Land & Titles Div). 1983)) (emphasis added). In
Lavata`i, the Appellate Division further alluded to the constitutionally
mandated policy of protective legislation requiring the courts to interpret
statutes in a way which is protective of the Samoan custom. Id. at 16;
see also AM. SAMOA REV. CONST. art. I, § 3. What we have seen here,

however, is that the matai registration enactment has been, at least as far
as the Fanene family has been concerned, somehow given effect to
divide a once united family to the point that with subsequent case
development, one branch of that family has been disenfranchised with
respect to family land. Thus without communal land, or entitlement to
land, what essentially befalls the defendant’s side of the family is the
suggestion that one of its traditional foundations—cornerstones—is
rendered legally non-existent.
[3-4] We are loath to continue upholding this aberrant view of Samoan
custom. Although other decisions of this Court have seemingly upheld
the 1971 Court’s holdings in LT Nos. 1089 and 1154,6 we note that these
decisions, citing to the doctrine of res judicata, were grounded on mere
acceptance of the holdings in LT Nos. 1089 and 1154, without comment
or critical evaluation. Because we are of the view that the holdings of
the 1971 Court were not only wrongly footed but simply inconsistent
with the customs of the Samoan people, we decline to follow, and in lieu
of the doctrine of res judicata, we cite to the provisions of the Treaties of
Cession which require, among other things, “respect and protect[ion] . . .
of all people dwelling in Tutuila to their lands,”7 and that “the rights of . .
. all people concerning their property according to their customs shall be
recognized.”8
Findings and Conclusion
The evidence here shows that defendant’s side of the family has
occupied and shared Lalopua with members of plaintiff’s side for
generations. With the Court’s visit to view the land in question, we
noted not only shared burial ground with members of plaintiff’s branch,
but a defined area of settled occupation by defendant’s side of the family
in the way of permanent structures with subsistence plantations toward
the mauga side, consistent with longstanding and settled occupation.
This settled occupation exists side by side with a sub-faction within the
Fanene Filo branch, Johnny Foster’s family, who have been quite
content to co-exist in harmony side by side with the defendant and her
family.9 The evidence further suggests that the animosity been the
6 See generally Fanene v. Fanene, 19 A.S.R.2d 69 (Land & Titles Div.
1991); Fanene v. Fanene, 26 A.S.R.2d 8, 12 (Land & Titles Div. 1994).
7 April 17, 1900 Cession of Tutuila and Aunu`u (February 20, 1929, ch. 45
Stat. 1253.)
8 July 16, 1904 Cession of Manu`a Islands (May 22, 1929, ch. 6, 46 Stat. 4.)
9 Plaintiff has also encountered familial estrangement within his own
branch of family. See In re Petition to Remove Fanene Title, MT No. 04-95
(Land & Titles Div. 1995).

plaintiff and the defendant in this matter, as evident by the number of
times they have appeared before the Court in recent times, predates to
the 1971 litigation, when Fanene Filo signed a separation agreement on
Lalopua in favor of Herman Scanlan, now Fanene Scanlan, which was
objected to then by the present defendant. According to the defendant,
plaintiff had at the time wanted to put up a structure on Lalopua, in
anticipation of a lease to the one of the canneries and in derogation of
her family’s use of the land.
Since both parties have each assumed the matai title Fanene, the discord
appears to have magnified. Plaintiff has variously complained about
defendant’s unwarranted intrusion into his sphere of pule, as upheld by
the Courts, while defendant has countered with claims of capriciousness
on the part of plaintiff in the exercise of pule.10 Defendant claims, for
example, that plaintiff has resisted her obtaining requisite government
permits to allow her side of the family to do necessary repairs and
renovations to their deteriorating homes.
Quite clearly, the resultant and atypical state of affairs with the once
unitary Fanene family of Pago Pago persists to date with the plainly
unworkable principle of two families, two matai, but one pule. From the
evidence, and from our review of Fanene family history, we conclude
that the 1971 Court’s interpretation of the 1945 Court’s holding in the
Lalopua land case, viz., that land Lalopua is exclusively owned by only
one branch of the Fanene family, was not only unnecessary but, as noted
above, in derogation of defendant’s branch’s rights to “their lands” in
accordance with Samoan custom. See April 17, 1900 Cession of Tutuila
and Aunu`u (February 20, 1929, ch. 45 Stat. 1253.)
In our reading of the 1945 Lalopua land decision, all that the Court
decided was that the land Lalopua was the communal property of the
Fanene family—nothing more, and nothing less. In rejecting Taofi’s
individually owned claim, the 1945 Court did not thereby throw out the
communal entitlement of those family members who are not members of
Fanene Filo’s branch, as the 1971 Court has necessarily implied.
10 The Samoan concept of pule, not to be confused with the notion of
“ownership,” is the power or trust vested in the senior matai to administer
family lands. Lutu v. Taesaliali`i, 11 A.S.R.2d 80, 87-88 (Land & Titles
Div. 1989). However, a matai’s authority or pule over family lands is not
unfettered when it comes to dealing with the rights of family members;
rather, it must be used for the benefit of family members justly and fairly.
It must not be used unreasonably and unjustly. Pen v. Lavata`i, 25
A.S.R.2d 164, 168 (Land & Titles Div. 1994), aff’d Lavata`i v. Pen, AP
No. 08-94 (App. Div. 1996).

[5] Having regard to fundamental precepts of Samoan custom, as
enunciated in Fairholt v. Aulava, Tavai v. Silao, and Lavata`i v. Pen,
discussed supra, and taking into account Fanene family history as it
evolved incongruously within the courts, we opt to follow the literal
holding of the 1945 Lalopua land decision and decline to follow the
unnecessary interpretation of the 1971 Court in LT Nos. 1089 and 1154.
To the present panel of Samoan Associate Judges, a landless Samoan
family with a legally recognized matai, especially with a longstanding
history as communal land occupants, does not add up. To the contrary,
the Court here is satisfied, and finds, that defendant’s branch of the
family are also members of the Fanene extended family attached to the
Village of Pago Pago, and as such are accordingly entitled to Fanene
communal family holdings Lalopua, as they have been occupying, in
accordance with the 1945 Lalopua land decision. As such, the defendant
and her branch of the family’s entitlement to communal land is a
proprietary right within the due process clause of the territorial
constitution. AM. SAMOA REV. CONST. art. I, § 2; Fairholt, 1 A.S.R.2d at
74; Lutu v. Taesaliali`i, 11 A.S.R.2d 80, 87 (Land & Titles Div. 1989).
We further conclude, consistent with fundamental precepts of Samoan
custom that pule, at least with regard to those portions of Lalopua, under
occupation and cultivation by defendant’s family, lies in their sa`o, or
senior matai, viz., Fanene F. Kava.
Plaintiff’s petition for eviction on the basis of pule must be, and it is
hereby denied. Judgment will enter for defendant.
It is so ordered.

 

FA`ATUI ISAIA,v.AMERICAN SAMOA GOVERNMENT


FA`ATUI ISAIA, Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 16-99
January 17, 2002

 

[1] A statute should be interpreted according to its plain meaning, avoiding any construction that would render a provision to be meaningless or nugatory.
[2] Unless otherwise provided in penalty enactments of Title 46, sentencing court in its discretion may find that appropriate disposition of particular case should involve probation rather than simply imprisonment.
[3] The offense of Possession of a Controlled Substance (A.S.C.A. § 13.1022) is codified outside of Title 46 and upon conviction requires a mandatory minimum sentence of imprisonment without parole, or mandatory minimum fine, or both.
[4] The sentencing court’s dispositional options under A.S.C.A. § 13.1022 are substantially limited, and probation is not an appropriate disposition there.
[5] Under the plain-error standard there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings.
[6] Use of defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt at trial does not violate privilege against self-incrimination or right to due process.
[7] In order to demonstrate ineffective assistance of counsel, a criminal defendant must show specific unreasonable errors and a reasonable likelihood that the absence of such errors would have changed the result of the case.

Before KRUSE, Chief Justice, WARD,* Acting Associate Justice, and ATIULAGI, Associate Judge.
Counsel: For Appellant, Bentley C. Adams, Assistant Public Defender
For Appellee, John W. Cassell, Assistant Attorney General
OPINION AND ORDER
Appellant Fa`atui Isaia (“Isaia”) appeals his conviction for Possession of a Controlled Substance, in violation of A.S.C.A. § 13.1022 (1992). Isaia petitions this Court to review four issues: (1) the trial court’s discretion to consider different sentencing options under the drug possession statute, A.S.C.A. § 13.1022; (2) the propriety of the prosecutor’s in-court statements concerning Isaia’s pre-Miranda silence; (3) the ineffective assistance of trial counsel; and (4) his guilt beyond a reasonable doubt.
Factual and Procedural Background
On the evening of December 15, 1998, Isaia arrived in the Territory via Samoa Air flight 4175, en route from the Independent State of Samoa. A customs officer, Patrick Tuvale (“Tuvale”), noticed Isaia acting agitated and proceeded to search his luggage at the customs counter. Isaia responded to primary questions at customs inspection. (Trial Tr. 11) During the search of his belongings two aluminum foil packages were found containing what appeared to be marijuana. Tuvale asked Isaia if he “knew the things that had fallen out?” Isaia appeared “nervous” and “scared.” Isaia made no other reaction. (Trial Tr. 12) He remained silent. Isaia was then escorted into the custom’s office. (Trial Tr. 13)
In the course of conducting their preliminary investigation, Tuvale and Detective Fe`a of the Department of Public Safety (“Fe`a”) performed the Duquenois-Levine field tests on the seized substance. These tests indicated the presence of tetrahydrocannibinols (THC), the active ingredient of marijuana. Isaia was taken into custody and was charged with unlawful possession, pursuant to A.S.C.A. §§ 13.1022 and 13.1006.
On August 11, 1999, the seized substances were submitted to a forensic analysis, consisting of both microscopic and chemical examination, by a Lieutenant Laumoli. (Trial Tr. 70-72) The substance was identified as marijuana. (Trial Tr. 71-72) This case was tried on September 14 and 15, 1999, before a jury.
On September 15, 1999, the jury in this cause returned a verdict finding
* Honorable John L. Ward, II, Judge, District Court of American Samoa,
serving by designation of the Secretary of the Interior.

Isaia guilty of unlawful possession of the controlled substance, marijuana, in violation of A.S.C.A. § 13.1022 (1992) (amended by P.L. No. 25-34 (1998)). Isaia was sentenced to imprisonment for five years on October 15, 1999.
A Motion for Reconsideration (New Trial) was denied on December 14, 1999, and Isaia filed a Notice of Appeal on December 17, 1999.
Discussion

A. Trial court’s Sentencing Options Under A.S.C.A. § 13.1022 (1992)
Isaia alleges error by the trial court in its construction of the mandatory sentencing provision of A.S.C.A. § 13.1022 (possession of a controlled substance). He urges this Court to interpret the much amended sentencing language of this statute in light of the standard court dispositional options as outlined under A.S.C.A. § 46.1902, thereby allowing a person convicted under the possession of controlled substance statute to receive a term of conditional and revocable probation rather than a mandatory minimum term of imprisonment.
[1] The meaning of a statute must be ascertained in light of its purpose. Am. Samoa Govt v. Gatoloai, 23 A.S.R.2d 65, 68 (Trial Div. 1992). Absent contrary legislative intention, a statute should be interpreted according to its plain meaning. Am. Samoa Govt v. Alo, 2 A.S.R.3d 91, 92 (Trial Div. 1998) (citing United States v. Turkette, 452 U.S. 576 (1981)). An interpretation should be avoided which construes a statutory provision to be meaningless or nugatory. Id. (quoting 73 AM. JUR. 2D, Statutes § 249 at p.492 (1974)).
The Statute under which Isaia was convicted, and is at issue before this Court, reads as follows in pertinent part:
13.1022 Possession of controlled substance unlawful.
(a) Except as authorized by the director, it is unlawful for a person to possess a controlled substance.
(b) A person who violates this section is guilty of a felony and shall be punished as follows:
(1) for a first offense, a fine not less than $5,000 and not more than $20,000 or not less than 5 years and not more than 10 years in prison, or both;
* * *
There shall be no parole for a conviction under this section.
(c) The above penalties are mandatory.

This statute was amended to its current form by the Fono in 1998.1 This amendment doubled the maximum possible penalties for a first time offense and explicitly denied parole to one convicted thereunder. These changes are reflective of a legislative intent2 to toughen the punishment for possession of controlled substances.
Isaia submits that the statute allows the Court to punish a guilty defendant by imposing a fine and probation, with a term of detention, or such other appropriate provisions, as conditions of probation. (Appellant’s Br. 6) Isaia points to the use of the disjunctive “or” and “or both” in the statute to justify this interpretation and to allow the
1 P.L. 25-34, 25th Legislature of American Samoa, 4th Regular Session
(July 13, 1998).
2 A brief overview of legislative history on this subject matter is
illustrative of this legislative intent. The crime of possession of
marijuana originally appeared in the Territory’s law books as 21 A.S.C.
§ 2553, with the enactment of P.L. 13-56, § 3, effective Nov. 5, 1974.
As originally enacted, possession was a misdemeanor punishable by a
term of imprisonment of up to one year or a fine of not more than $500.
Additionally, 21 A.S.C. § 2555 allowed for “deferred proceedings”
treatment of first offenders. In 1984, the Fono amended the law
upgrading the crime of possession to a Class D Felony for the first
offense, a Class C Felony for a second offense, and a Class B Felony for
a third or more offenses. See 1984 P.L. 18-40, § 1. Deferred
proceedings, however, were nonetheless maintained at this time. See
A.S.C.A. § 13.1024.
In 1998, the Fono repealed § 13.1024, doing away altogether with
“deferred proceedings.” See 1998 P.L. 25-19, § 1. In the preamble to
this repealer, the Fono made the following legislative findings:
Some 23 years ago, the Legislature did not realize that
possession of controlled substances such as . . . marijuana . . .
can threaten the health and natural attributes of our children. In
1974, our lawmakers were conceived [sic] with the notion that
mere possession of a small amount of [sic] illegal drugs could
affect just the user. Present day possession of controlled
substance no longer consists of a small amount but contains a
large quantity and are dispersed regularly to our people, and has
found its way to our younger population. A serious threat to the
well being of our children is clearly manifested.
The preamble then concluded:
The “deferred proceedings” provisions of section 13.1024 has
definitely outlived its purpose if there was one. The Court must
proceed to enter its judgment and impose sentencing regularly
pursuant to 13.1022 A.S.C.A.
(Emphasis added.)

application of A.S.C.A. § 46.2203 (defining eligibility for probation) and A.S.C.A. § 46.2206 (allowing detention as a condition of probation).
[2] The sentencing court’s general sentencing options under 46 A.S.C.A., § 46.1902 for criminal case disposition are limited to “any appropriate combination.” (Emphasis added) The term “appropriate” as used in that section limits the trial court’s dispositional options in criminal cases arising under the criminal code, A.S.C.A. §§ 46.0101 et seq. (“Title 46”), to those term limits, definitions, and classifications which generally apply to most criminal cases. Where not otherwise specifically directed by the Fono in the penalty enactments of Title 46, the sentencing court may, in its sound discretion, find that an appropriate disposition of a particular case should involve probation rather than a straight sentence of imprisonment. See A.S.C.A. § 46.1902.
[3] The instant case falls outside of the general dispositional approach, in that the underlying possession statute is codified outside of Title 46. The possession statute’s specific penalty provisions include a mandatory minimum sentence of imprisonment without parole and a requirement that such penalties are mandatory. With respect to “appropriate” dispositional treatment of non-Title 46 convictions, A.S.C.A. § 46.1901 specifically provides:
Every person found guilty of an offense, whether defined in this title or in the American Samoa Code Annotated in accordance with the classifications in this chapter, shall be dealt with by the court in accordance with the provisions of this chapter, except that for offenses defined outside this title and not in accordance with the classifications of this chapter and not repealed, the term of imprisonment or the fine that may be imposed is that provided in the statute defining the offense.
An “appropriate” disposition of a conviction under the possession statute therefore requires the sentencing court to impose at least a mandatory minimum fine of fine of $5,000.00 or a mandatory minimum prison term of 5 years or both. The prison term is to be served without parole, as specified by the Fono. Reiterating its intent that at least a substantial minimum fine or prison term be imposed (as an “appropriate” disposition for a conviction of this offense), the Fono concludes the penalty section of that statute with: “(c) The above penalties are mandatory.”
[4] Although the Fono has utilized other terms of art in establishing specific, mandatory prison sentences for other offenses which preclude the sentencing court from imposing probation as an “appropriate” disposition, the language utilized in this drug possession statute is sufficiently clear to impart a specific and substantial limitation upon the

sentencing court’s general dispositional options under A.S.C.A. § 13.1022. Under this statutory scheme, probation, is not an “appropriate” disposition. See also 1998 P.L. 25-19, Preamble.
B. Propriety of Prosecutor’s Statements
Isaia was taken into custody by customs officials and later read his rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966). Prior to being taken into custody, and while he was being searched by a customs agent at the airport, Isaia chose to remain silent when questioned. Additionally, he did not testify at trial. During the prosecuting attorney’s closing arguments, the following statement was made to the jury:
Now, when Officer Tuvale picked up this package, this package wrapped in the shorts, he told you that some green material fell out. And he turned to the defendant and said, what’s this? Now, put yourself, Ladies and Gentlemen, in the position of an innocent person confronted with this situation. I submit there are all sorts of answers that this innocent person could give, but he definitely would give an answer. What did the defendant do? Silence.
(Trial Tr. 109) Isaia argues that the Trial court erred by admitting evidence of his silence during the government’s case.
[5] We review Isaia’s claim of misuse of his silence under the plain-error standard, because trial counsel did not properly object during trial. See United States v. Whitehead, 200 F.3d 634, 638 (9th Cir. 2000) (citing United States v. Plunk, 153 F.3d 1011, 1019 (9th Cir.), amended by 161 F.3d 1195 (9th Cir. 1998)). Under the plain-error standard there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s] substantial rights.” If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error “seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.” Whitehead, 200 F.3d at 638 (quoting Plunk, 153 F.3d at 1019)). We note that Isaia’s silence occurred pre-arrest and pre-Miranda and was not protected as a Fifth Amendment privilege, therefore the Trial court did not commit plain error in allowing its use.
[6] Use of a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt at trial does not violate defendant’s privilege against self-incrimination nor his right to due process. United States v. Oplinger, 150 F.3d 1061, 1066 (9th Cir. 1998). The rule of Oplinger applies to the period of time “prior to custody,” id., “when a citizen is under no official compulsion whatever, either to speak or to remain silent.” Id. (quoting Jenkins v. Anderson, 447 U.S. 231, 241 (1980) (Stevens, J.,

concurring)). Applying Oplinger, we find that Isaia’s silence was pre-arrest, pre-Miranda and not made at time where there was “official compulsion” to speak or remain silent. As such, use of the silence as substantive evidence of guilt at trial does not violate Isaia’s privilege against self-incrimination and as it was not “error,” it can clearly not be “plain error.”
C. Ineffective Assistance of Counsel
[7] In order to demonstrate ineffective assistance of counsel, a defendant must show (1) specific unreasonable errors, and (2) a reasonable likelihood that absence of those errors would have changed the result of the case. Suisala v. Moaali`itele, 6 A.S.R.2d 15, 20-21 (Trial Div. 1987). The Court there cited to Strickland v. Washington, 466 U.S. 668 (1984).1
We find that this claim of appellant has no merit as Counsel Penn’s representation was neither deficient nor prejudicial. See Pua`a v. Am. Samoa Gov’t, 3 A.S.R.3d 39, 46 (App. Div. 1999). She cross-examined witnesses when she deemed it necessary to do so, she engaged in proper voir dire of the government’s expert and made a tactical decision not to extensively cross-examine this witness. She properly conducted trial based on her experience and the result was certainly not a “breakdown in the adversarial process”2 such as to warrant a finding of error. Additionally, with the Court satisfied that Isaia’s privilege against self-incrimination was not violated, see above, counsel’s failure to object to the use of Isaia’s silence as substantive evidence of guilt by the prosecutor was not in error. As such, this Court finds no error based upon Counsel’s actions.
D. Sufficiency of the Evidence
The evidence presented at trial was sufficient to support a finding of guilt. There was sufficient evidence that Isaia was “knowingly” in possession of marijuana. In addition, there was sufficient evidence that the substance Isaia possessed was marijuana. (Trial Tr. 32-53, Lt. Laumoli’s testimony)
1 Strickland put forth the basic test that defendant must show (1)
counsel’s performance was deficient, in other words, he made “errors so
serious that counsel was not functioning as the counsel guaranteed by the
Sixth Amendment” and (2) that the errors were so serious that defendant
was denied a fair trial.
2 Strickland v. Washington, 466 U.S. 668, 696 (1984).

Conclusion

For reasons stated above, the judgment appealed from will be AFFIRMED.
It is so ordered.

 

FA`AMAUSILI POLA,v.AMERICAN SAMOA GOVERNMENT and THE SENATE


 

FA`AMAUSILI POLA, Plaintiff,
v.
AMERICAN SAMOA GOVERNMENT
and THE SENATE, Defendants.
High Court of American Samoa
Trial Division
CA No. 88-02
November 20, 2002

 

[1] To determine whether a case is justiciable, two determinations must
be made: First, the court must decide whether the claim presented and

the relief sought are of the type which admit of judicial resolution;
Second, the court must determine whether the structure of the
government renders the issue presented a ‘political question’—that is, a
question which is not justiciable in the High Court because of the
separation of powers.
[2] The High Court will not entertain a claim for declaratory relief which
asks the Court to declare that a person is a duly selected and sworn
Senator, as the Constitution of American Samoa reserves such matters to
the Senate, and such claims are of the type that admit of legislative,
rather than judicial, resolution.
[3] The High Court has the power to interpret the constitutional
provisions governing the exclusion and expulsion of Senators, and
whether the Senate’s actions conformed to its constitutionally mandated
powers.
[4] If the powers of any branch of the government, and even those of the
Legislature in the enactment of laws, have not been exercised in
conformity to the Constitution, the Court can properly treat such acts as
null and void.
[5] To exercise it powers under Article II, § 22, the Senate must make its
judgment before the individual or Senator is sworn-in, and the Senate
can consider only the qualifications enumerated in Article II, § 3.
[6] Once a Senator has been sworn in, his subsequent removal is an
expulsion, and the Senate’s power to act is governed by Article II, § 11,
and all the protections it affords.
[7] A Senator can only be expelled for cause, either because he has
become disqualified to serve or has committed an offense against the
Senate.
[8] Under the Due Process Clause, a Senator has a constitutionally
protected property interest in serving his term.
[9] Before an individual is finally deprived of a property interest, due
process requires at a minimum notice of the grounds and opportunity to
be heard at a meaningful time and in a meaningful manner.
Before RICHMOND , Associate Justice, SAGAPOLUTELE, Associate
Judge, and TUPUIVAO, Associate Judge.
270
Counsel: For Plaintiff, Charles V. Ala`ilima
For Defendant Senate, Robert K. Maez, Assistant Legislative
Counsel
For Defendant American Samoa Government, Fiti Sunia,
Attorney General
OPINION AND ORDER
The court is asked in this case to decide important issues of
constitutional dimensions: whether the Senate has the power to expel a
Senator, after having been duly sworn-in, because of possible
irregularities in his selection or because the Senate deemed he did not
meet the qualifications of Article II § 3 of the Revised Constitution of
American Samoa. We undertake this task with the utmost respect to the
coordinate branches of government while cognizant that we must fulfill
our mandate as the arbiter of the law of the land.
We hold that plaintiff Fa`amausili Pola (“Fa`amausili”) is a member of
the Senate as a Senator in office.
Procedural and Factual Background
On March 5, 2002, one of two Senate seats from Senate District # 11
became vacant upon the passing of Senator Fa`afetai Lefiti.
The next regular election scheduled for that seat was in November 2004.
Therefore, pursuant to Article II, § 13 of the Revised Constitution of
American Samoa, the Governor of American Samoa issued a writ of
election to fill the vacancy.2 Fa`amausili was selected.3 His selection
1 Senate District #1 is comprised of three counties on the Manu’a Island
of Ta’u: Fitiuta, Faleasao, and Ta’u. A.S.C.A. § 2.0202. A village
having the same name is located within each county. The entire
Territory of American Samoa is divided into three political districts,
Eastern, Western, and Manu`a. Am. Samoa Rev. Const. Art. V, § 10.
The Manu’a District includes the three counties on the Island of Ta’u
and the counties of Olosega and Ofu. Id. The counties of Olosega and
Ofu are on two islands in the Manu’a group bearing the same name.
2 Article II § 13 reads in its entirety:
When vacancies occur in either House, the Governor or the
person exercising the functions of Governor shall issue writs
of election to fill such vacancies except that if any such
vacancy shall occur within three months of the next regular
election, no special election shall be held and the Governor

was certified to the Governor on August 5, 2002, by the “Fa`alupega”
(“County Chiefs”) of the Counties of Fitituta, Faleasao and Ta’u.4 On
August 8, 2002, the Secretary of Samoan Affairs confirmed the selection
to the President of the Senate.5 The Governor confirmed the selection,
also on August 8, 2002, to the President of the Senate.
Fa`amausili was sworn-in as the second Senator for Senate District #1 in
a ceremony at the Senate Chambers on August 9, 2002. He assumed his
duties as a Senator and represented his district during sessions of the
Senate. While serving, Fa`amausili did not commit any offense against
the Senate during the course of conducting his duties as a Senator to
warrant any punishment or sanction.
On September 9, 2002, two chiefs from Si’ufaga and Luma, both
subvillages of the Village of Ta’u, complained to the President of the
Senate about the procedure used for Fa`amausili’s selection as Senator.
In response to this letter, on September 13, 2002, the Senate Committee
of the Whole voted to send the matter back to the three county councils
of Senate District No. 1 to conduct a new selection pursuant to Article II,
§ 4. The Committee referred the matter to the entire Senate. On
shall appoint a qualified person to fill such vacancy. Prior to
appointing such person, the Governor shall in the case of a
representative consult with the county chief or county chiefs in
the representative district concerned; and in the case of a
senator, with the District Governor and county chiefs in the
district concerned. A person elected to fill a vacancy or
appointed by the Governor to fill a vacancy shall hold office
during the remainder of the term of his predecessor.
3 The parties have spilled much ink in this case as to whether or not
Fa`amausili’s selection was in accordance with Samoan custom. But
given the relief sought, this point is irrelevant to our decision. See Part
II.A, infra.
4 County chiefs are required to certify the senatorial election results.
AM. SAMOA REV. CONST. Art. II, § 4.
5 While protocol has a role, no confirmations other than by the county
chiefs’ certifications are constitutionally or statutorily required.
Nonetheless, a return of the writ of election by the District Governor of
Manu’a to the Governor of American Samoa was also prepared
contemporaneously with Secretary of Samoan Affairs’ confirmation.
Though the return was submitted to the Governor with the County
Chiefs’ certification, it was not signed by the District Governor due to
his absence from the Territory beginning in July 2002 until September
22, 2002. Upon his return, the District Governor separately confirmed
Fa`amausili’s selection directly to the President of the Senate.

September 16, 2002, the Senate voted in favor of the Committee’s
recommendation and suspended Fa`amausili with pay.
Shortly thereafter, the Senate received another letter, this time from the
Ta’u County Chief and one of the two authors of the first letter. The
letter claimed that Fa`amausili was removed from the village council and
was no longer a recognized matai in the village. On September 30,
2002, the Senate voted to remove Fa`amausili from office principally on
the allegation in the second letter that he was not qualified to be a
Senator under Article II, § 3.6 The Senate is comprised of 18 members
under Article II, § 2, and the expulsion vote, as were the two earlier
votes, passed by less than two-thirds of the entire membership.
Fa`amausili, at all relevant times, including at the time of trial, held the
matai title “Fa`amausili,” duly registered with the Territorial Registrar of
the American Samoa Government (“ASG”). He also testified, without
any contravening evidence, that he fulfills his obligations as required by
Samoan custom in the counties from which he was selected, the second
aspect of the registered matai qualification under Article II, § 3.
Fa`amausili also alleges that all the Senate votes were taken without any
formal investigation, notice to him, or written resolution.
Fa`amausili brought this suit against both the Senate and ASG7 seeking
declaratory relief that he is the duly selected and sworn Senator from
Senate District #1 and that the various Senate votes were a nullity.
Furthermore, he seeks a writ of mandamus compelling the Senate to
accord him all the rights and privileges of a Senator. The Senate filed a
motion to dismiss the suit arguing that our review of the Senate actions
was barred by the political question doctrine. We deferred ruling on that
6 Article II, § 3 states in part:
A Senator shall--
(a) be a United States National;
(b) be at least 30 years of age at the time of his election;
(c) have lived in American Samoa at least 5 years and have
been a bona fide resident thereof for at least 1 year next
preceding his election; and
(d) be the registered matai of a Samoan family who fulfills
his obligations as required by Samoan custom in the county
from which he is elected.
. . .
7 Even though the relief sought is directed at the Senate, Fa`amausili
stated that he joined ASG as a party merely out of precaution. ASG,
represented by the Attorney General, graciously agreed to stay on and
cooperate to the fullest extent possible and appropriately participate.

motion so that we could proceed expeditiously to the merits. Trial was
held on October 18 and 21, 2002.
Discussion
A. Matters Not at Issue
We begin by noting what is not at issue in this case. There is no question
that we have jurisdiction over the subject matter. See Mauga v. Lutu, 10
A.S.R.2d 115, 118 n.1 (Trial Div. 1989); Tuitasi v. Lualemaga, 4 A.S.R.
798, 808-09 (Trial Div. 1973); Meredith v. Mola, 4 A.S.R. 773, 776-77
(Trial Div. 1973). In this respect, the only question we must address is
whether the “cause over which [we have] subject matter jurisdiction is
‘justiciable.’” Powell v. McCormack, 395 U.S. 486, 512 (1969).
The parties also suggested the need for us to elaborate on the proper
procedures and differences, if any, between the election of a Senator
under the constitutional provisions for a regular biennial election, under
Article II, § 4, and for filling a vacant Senate seat, under Article II, § 13.
Indeed, even the Attorney General, in his limited appearance, expressed
his desire that we give some guidance in this area, but as challenged by
the two chiefs, the crux of this dispute arose over whether Fa`amausili
was selected according to Samoan custom, and not whether the Governor
acted properly in fulfilling his Article II, § 13 duties. Thus, absent full
briefing, and because it is unnecessary to our decision, we leave this
matter for another day.
Finally, as previously alluded to, we need not decide whether
Fa`amausili’s selection did in fact conform with Samoan custom. We
will only decide the real question raised: whether the Senate had the
power to expel Fa`amausili from the Senate after having been duly
sworn-in. In making that decision, Fa`amausili has not asked us to
declare that the Senate’s conclusions, if any, about how he was selected
were erroneous. Additionally, the Senate, in its answer and motions, has
likewise not urged us to delve into the substance of its decision.
B. Justiciability
[1] Having concluded we have jurisdiction over this matter, we must still
determine whether the case is justiciable.
Two determinations must be made in this regard. First, we
must decide whether the claim presented and the relief sought
are of the type which admit of judicial resolution. Second, we
must determine whether the structure of [our government]
274
renders the issue presented a ‘political question’—that is, a
question which is not justiciable in [the High Court] because
of the separation of powers provided by the Constitution.
Powell, 395 U.S. at 516-517.
1. Relief Which Admits of Judicial Resolution
[2] Fa`amausil’s first claim for declaratory relief asks us to find that he is
the duly selected and sworn Senator from Senate District #1. It is clear
that our Constitution reserves to the Senate “the right to judge the
elections and qualifications of its ‘members.’” Tuitasi, 4 A.S.R. at 810.
It follows that this claim is “of the type that admit[s] of legislative
adjudication rather than judicial resolution.” Id; see also Mola, 4 A.S.R.
at 778. We cannot therefore make such a determination. However, as
will be seen, this determination is not germane to the resolution of this
controversy.
[3-4] Fa`amausili also seeks a determination that the Senate did not have
the power to expel him from the Senate by way of its votes on
September 16 and September 30, 2002. In essence, he is asking us to
interpret the constitutional provisions governing the exclusion and
expulsion of Senators, and whether the Senate’s actions conformed with
its constitutionally mandated powers. This court has the power to grant
such relief:
Especially is it competent and proper for this court to consider
whether its [the Legislature’s] proceedings are in conformity
with the Constitution and laws, because, living under a written
constitution, no branch or department of the government is
supreme; and it is the province and duty of the judicial
department to determine in cases regularly brought before
them, whether the powers of any branch of the government,
and even those of the [L]egislature in the enactment of laws,
have been exercised in conformity to the Constitution; and if
they have not, to treat their acts as null and void.
Powell, 395 U.S. at 506 (quoting Kilbourn v. Thompson, 103 U.S. 168,
199 (1881)); see also Vessel Fijian Swift v. Trial Div., 4 A.S.R. 983, 991
(App. Div. 1975) (judicial power is the power to “declare what the law
is.”); Mola, 4 A.S.R. at 778.
Finally, Fa`amausili seeks a writ of mandamus compelling the Senate
and Senate staff to accord him the rights and privileges of a Senator. A
writ of mandamus is normally issued “to compel the performance of a

ministerial act or mandatory duty where: the petitioner has a specific,
well defined legal right; the respondent has a corresponding specific,
well defined duty; and there is a want of any other appropriate and
adequate remedy.” Siofele v. Shimasaki, 3 A.S.R.2d 3, 11 (Trial Div.
1988). Nevertheless, whether or not these requirements are met, it is not
clear that we have the power to issue coercive relief against members of
the Senate and, thus, whether “protection for the right asserted can be
judicially molded.” Powell, 395 U.S. at 517 (avoiding decision of this
issue). The Senate did not present a position, one way or another, as to
the propriety of this type of relief.
At this stage, however, it is unnecessary to decide whether we can, or
even should, issue a writ of mandamus compelling the Senate to act one
way or another. It is enough to note that “the government, like everyone
else, is bound by court orders in proceedings to which it is a party.” Am.
Samoa Gov’t v. Satele, 7 A.S.R.2d 154, 156 (Trial Div. 1988). While the
Executive Branch is the contextual reference of this quote, we see no
reason why it should not be equally applicable to the Senate, an entity
which has itself sought relief from this Court in the past. See, e.g., The
Senate v. Lutali, 27 A.S.R.2d 126 (Trial Div. 1995); The Senate v. Lutali,
26 A.S.R.2d 125 (Trial Div. 1994). We are confident that the Senate
will abide by our ruling on the counts for declaratory relief.
2. Political Question
Having established that two of the counts for declaratory relief are
justiciable, we must determine whether or not they present a political
question which would bar us from reviewing them. The scope of the
political question doctrine is vast, but a full exposition of its parameters
is unnecessary. See generally Baker v. Carr, 396 U.S. 186 (1962);
RONALD ROTUNDA AND JOHN NOWAK, TREATISE ON CONSTITIONAL
LAW § 2.16 (2d Ed. 1992). The main thrust of the Senate’s argument is
that Article II § 22 of the Revised Constitution of American Samoa vests
full power in the Senate to judge the “elections, returns, and
qualifications of its own members” and that once the Senate has spoken
the Court must wholly defer to its judgment.8 Basically, the Senate is
reviving an old theme, already played out in this Court, that Article II, §
22 “is a ‘textually demonstrated constitutional commitment’ to the
Senate of the ‘adjudicatory power’ to determine the issues now before
8 Article II, § 22 reads in its entirety: “Each House of the Legislature
shall be the judge of the elections, returns, and qualifications of its own
members and shall choose its officers.” Because this provision speaks to
“each House of the Legislature,” whatever powers and duties we
attribute to the Senate applies as well to the House of Representatives.
276
us.” Mola, 4 A.S.R. at 779.
a. SCOPE OF ARTICLE II, § 22
A brief overview of the Senate’s power is relevant. We have before
elaborated on the powers committed to the various branches of
government with respect to the election of Senators. Article II, § 22
merely provides that Congress is the judge of whether its
members meet the qualifications set forth specifically in
[Article II § 3]. Additionally, the Senate is the judge when ‘all
that is at stake is a determination of which candidates attracted
a greater number of lawful ballots.’ The issues of what need
be done for the selection of a senator to conform to Art. II, § 4,
and whether those requirements were met in the matter at bar
are matters of constitutional interpretation. Such a
determination falls within the traditional role accorded courts
to interpret the law, and does not encroach on the Senate’s
power to judge specific qualifications or determine plurality of
votes.
Mola, 4 A.S.R. at 779 (citations and footnotes omitted). What we must
address now for the first time is when the Senate may invoke its Article
II, § 22 powers.
In Powell, the Supreme Court reviewed the actions of the House of
Representatives in refusing to seat the petitioner, who had been duly
elected to serve in the 90th Congress. The Court was adamant in
distinguishing between the House’s powers to exclude and their powers
to expel, noting that the distinction was not “merely one of form.”
Powell, 395 U.S. at 508. “Powell was ‘excluded’ [because] he was not
administered the oath of office and was prevented from taking his seat.
If he had been allowed to take the oath and subsequently had been
required to surrender his seat, the House’s action would have constituted
an ‘expulsion.’” Id. at 507 n.27.
The House had excluded Powell, not for reasons arising out of his
qualifications or number of votes received, but for “[m]atters of. alleged
official misconduct.” Id. at 490. The Court declared that the House’s
actions were unconstitutional because a person could only be excluded
under the United States equivalent, in Article I, § 5 of the U.S.
Constitution, of the Revised Constitution of America Samoa, Article II, §
22. Id. at 522. The House’s actions in Powell were, in a sense,
premature. The reasons the House cited, whether or not meritorious,
277
were grounds for expulsion once in office, and expulsion required a
distinct set of procedures under the United States equivalent, also in
Article I, § 5 of the U.S. Constitution, of the Revised Constitution of
American Samoa, Article II, § ll.9 Id. at 506-512. For further discussion
of the procedures constitutionally required in an expulsion hearing, see
Part II.C.2, infra.
b. TUITASI V. LUALEMAGA
[5] To be sure, there is language in Tuitasi that seemingly conflicts with
this reading of Powell. Indeed, both sides have cited Tuitasi as
supporting their claim. Tuitasi arose out of the Senate elections of 1972.
Tuitasi, 4 A.S.R. at 799. Initially, the Election Commissioner
(“Commissioner”) certified Tuitasi as the duly elected Senator for his
district. Id. Lualemaga, Tuitasi’s opponent, filed a timely petition in
this Court to order the Commissioner to certify his name instead. Id.
While the case was pending, Tuitasi was sworn in by the Senate.
When this Court took up Lualemaga’s case, the only issue before the
Court was whether the Commissioner certified the proper candidate in
conformity with Article II, § 4 of the Revised Constitution of American
Samoa. Relying on the scant evidence, the Court held that indeed
Lualemaga should have been certified and the Commissioner had no
discretion to act otherwise. See Faliu v. Fofo, CA. No. 2504-72, slip op.
at 1-2 (Trial Div. Jan. 8, 1973) (Opinion and Order). The Court ordered
the Commissioner to certify Lualemaga and, in effect, void his original
certification of Tuitasi. Id. Tuitasi moved to intervene in that matter
claiming that he had in fact received more votes than Lualemaga and,
furthermore, Lualemaga did not meet the residency requirements under
Article II, § 3. The Court denied Tuitasi’s motion to intervene because it
was untimely. See Faliu v. Fofo, CA. No. 2504-72, slip op. at 1 (Trial
Div. Feb. 9, 1973) (Memorandum and Order).
The Court also noted that the issues Tuitasi raised were not issues the
Court could decide. Id. at 2. Citing Mola and Powell, the Court
declared that whether a candidate meets the requirements under Article
II, § 3 and/or received more votes in an election were non-justiciable
issues which must be resolved by the Senate under Article II, § 22. Id.
In a footnote, the Court added that Tuitasi had already petitioned the
9 Article II, § 11 reads in part: “Each house shall keep a journal of its
proceedings and publish the same, determine its rules of procedure,
punish members for disorderly behavior, and, with the consent of twothirds
of its entire membership, may expel a member, but not a second
time for the same offense.”
278
Senate concerning the same allegations. Id. n.2. That action
strengthened the reasoning that this Court cannot be involved in such a
determination. The Senate apparently made its choice because a few
days after the Court’s order was issued, it swore-in Lualemaga.10
Tuitasi, 4 A.S.R. at 800.
Thereafter, Tuitasi brought his own motion in this Court for a
declaratory judgment declaring him the duly elected Senator of that
district. The Court again declared that it could not issue such an order
because it “would be a clear usurpation of the Legislature’s
constitutional right [under Article II, § 22].” Tuitasi, 4 A.S.R. at 810.
The analysis could have ended there, as the result was consistent with the
Court’s order on February 9, leaving the issue for the Senate. However,
the Court added: “At this point, Respondent [Laulemaga] is clearly a
‘member’ of the Senate; and, consequently, it is the Senate that has the
express constitutional right to adjudicate any dispute over his election or
qualification. Meredith v. Mola, is not inopposite [sic] to this
conclusion.” Id.
This language could be viewed as declaring the Senate can exercise its
Article II, § 22 powers to judge the qualifications of its members even
after a Senator has been sworn-in. However, we do not attribute such a
broad reading to this wording. This language was dicta. The Court had
already declared, before Lualemaga was ever sworn-in, that it did not
have the power to review Tuitasi’s claim. Logically, that result would
not change after Lualemaga had been sworn-in.
But furthermore, we think that this language was just an inartful attempt
to restate what was already explicit in Powell and implicit in Mola. In
essence, this Court’s review of Senate action is barred by the political
question doctrine only if the Senate actually renders a constitutional
judgment pursuant to its Article II, § 22 powers. To do so, the Senate
must make its judgment before the Senator is sworn-in and can consider
only the qualifications enumerated in Article II, § 3. The proper exercise
of this power renders the Senator-elect a “member” and thereby insulates
the Senate’s actions from review by the courts. See generally Morgan v.
United States, 801 F.2d 445 (D.C. Cir. 1986); State ex rel. Turner v.
Scott, 269 N.W.2d 828 (Iowa 1978); State v. Evans, 735 P.2d 29 (Utah
1987).11
10 Because of the court’s order to the Commissioner to certify Lualemaga
and void his initial certification of Tuitasi, we assume, as did the parties
in that action, that Tuitasi’s initial swearing-in was a legal nullity.
11 In any event, to the extent that our reading of Tuitasi is inaccurate, we
are not bound by another decision of the Trial Division if there is a
279
c. POWERS TO EXPEL
[6-7] The Senate claims, however, that it cannot be precluded from
judging the qualifications of a Senator even after he has been sworn-in.
The Senate argues that it is possible a Senator may lose his matai status
while in office, thereby making him ineligible to serve. If that were to
happen, the Senate urges that it would have to remove him. The Senate
did not take note that a Senator may also become ineligible in other
ways: if he becomes an employee or public officer of the Government or
if he is convicted of a felony. See AM. SAMOA REV. CONST. art. II, § 3.
To the extent that our Constitution requires a Senator to have met certain
residency requirements “at the time of,” or “preceding” his election,
similar to the qualifications relied on in Powell, we are confident that our
reading of Powell is correct: those qualifications are not reviewable by
the Senate once they have chosen to seat a Senator. Compare AM.
SAMOA REV. CONST. art. II, § 3, with U.S. CONST. art. I, § 2. But our
Constitution also mandates that a Senator be a registered matai, that he
not be a public officer, and that he cannot have been convicted of a
felony. Our Constitution places no restriction that these qualifications
are applicable only at the time a Senator is elected. Thus, we agree with
the Senate that it has continuing jurisdiction over these aspects of
qualification, even after a Senator has been sworn-in.
The issue then is which constitutional provisions and procedures are
necessary to remove a Senator, already sworn-in, for reasons arising out
of his qualifications. We have found only one case in which a court
reviewed the actions of the Senate in regards to a sitting Senator. In
Raney v. Stovail, 361 S.W.2d 518 (Ky. Ct. App. 1962), the court
reviewed whether or not a Senate resolution declaring that a sitting
Senator was duly qualified to serve, even after accepting a political
appointment, was proper. The court there said that “the right of a
legislative body to judge the qualifications of its members includes the
right to decide finally whether or not one of them has become
disqualified during his term of office, and this decision is not subject to
court review.” Id. at 521-22. But because in that case the Senate voted
to allow the Senator to continue serving, this is the first case we know of
where a court must review the procedures for removing a sitting Senator
compelling reason not to follow it. See Sw. Marina of Samoa v. S & S
Contracting, 5 A.S.R.2d 70, 74 (1987). In Tuitasi, the issue presented in
this case was not before the court and any decision regarding the present
issues was made without proper briefing. Furthermore, stare decisis is
weaker in cases involving constitutional interpretation. Id.
280
because he may have become disqualified.
Contrary to the Senate’s position, Article II, § 22 does not control.
Instead, as we have already discussed, once a Senator has been sworn-in,
his subsequent removal is an expulsion—whether he has become
disqualified or has committed an offense against the Senate. Therefore,
the Senate’s power to act is governed by Article II, § 11, and all the
protections it affords. See Powell, 395 U.S. at 506-12.
Because Fa`amausili was sworn-in, it is clear then that he was not
excluded from the Senate but rather expelled. With that in mind, we
review the Senate’s votes to determine whether they were constitutional
and whether they present a political question beyond our review.
C. Senate Votes
1. September 16th
The evidence adduced at trial clearly established that the September 16th
vote was based on the Senate’s belief that the method for selecting
Fa`amausil was not conducted in accordance with Samoan custom as
provided by Article II, § 4.12 As already noted, the power to determine
whether an election conformed with Article II, § 4 falls within this
court’s jurisdiction, not the Senate’s. See Mauga v. Lutu, 10 A.S.R.2d
115, 118 (Trial Div. 1989); Faiivae v. Mola, 4 A.S.R. 834 (Trial Div.
1975); Tuitasi, 4 A.S.R. at 809; Mola, 4 A.S.R. at 780. The Senate has
no authority to review the election process itself, whether it undertakes
to do so before or after a Senator has been sworn-in.13 The September
16 vote does not represent a political question beyond our review
because it was unconstitutional. Thus, we determine that the vote was in
effect null and void.
2. September 30th
The evidence adduced at trial established that the September 30th vote
was also principally based on the Senate’s belief that Fa`amausili was no
longer recognized as the holder of a matai title, and therefore did not
12 Article II, § 4 provides in part, “Senators shall be elected in
accordance with Samoan custom by the county councils of the counties
they are to represent …
13 If ever the Senate questions the method of election of one of its
Senator elects, it could seek a declaratory judgment from this court
before swearing him in.
281
meet the qualifications to be a Senator under Article II § 3.14 Had the
Senate complied with Article II, § 11, the substance of their decision
would have constituted a political question beyond our review. The
record is clear that the Senate did not obtain the consent of two-thirds of
its members, an explicit constitutional prerequisite for the expulsion of a
Senator. Based on this alone, the Senate’s actions on September 30th
were unconstitutional and the vote thus null and void.
The record before us shows that Fa`amausili is a registered matai who is
fulfilling his obligations under Samoan custom in the counties in Senate
District No. 1. Nonetheless, it is possible that the Senate will choose to
hold another hearing after we issue our opinion and order in this action.
We caution it now that the expulsion of a Senator would not be proper
by merely obtaining the consent of two-thirds of the Senate membership.
Article II, § 11 encompasses certain constitutional due process rights
beyond the two-thirds’ requirement. For example, “a member whose
expulsion is contemplated may as a matter of right address the House
and participate fully in debate while a member-elect apparently does not
have a similar right.15 Powell, 395 U.S. at 510 n.30. Additionally, in
certain situations a member might be “allowed to cross-examine other
members during the expulsion debate.” Id. Furthermore, any action
taken by the Legislature is always subject to review in this court for
violations of another constitutional clause. See generally Bond v. Floyd,
385 U.S. 116 (1966) (State House of Representatives’ exclusion of
member-elect violated First Amendment); see also Luse v. Wray, 254
N.W. 2d 324, 328 (Iowa 1977) (“Iowa courts have power to adjudicate
substantial claims of deprivation of federal or Iowa constitutional rights
by the houses of the Iowa General Assembly in the exercise of the
houses’ election contest powers.”).
[8-9] We also think it clear that under the Due Process Clause of the
Revised Constitution of American Samoa, Article I, § 2, a Senator can
only be expelled for cause, either because he has become disqualified to
serve or has committed an offense against the Senate. He, therefore, has
a constitutionally protected property interest in serving his term. See
14 The Senate has conceded that Fa`amausili has not committed an
offense against the Senate which would subject him to expulsion. We
therefore need not address now what would constitute an expellable
offense. The Senate has not raised any disqualification issue other than
Fa`amusili’s mataiship. As pointed out, infra at 4, that under the
evidence, Fa`amausili is a duly registered matai and fulfills his
obligations under Samoan custom in Ta`u County.
15 It is clear that Fa`amausili, not having been allowed to be present
during the vote, was denied this right.
282
Gilbert v. Homer, 520 U.S. 924, 928-29 (1997) (citing Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564 (1972)). “[T]he requirements of
due process contextually vary with the circumstances and the particular
demands of the case.” Ferstle v. Am. Samoa Gov’t, 7 A.S.R.2d 26, 49
(Trial Div. 1988). However, “before an individual is finally deprived of
a property interest,” due process requires at a minimum notice of the
grounds and opportunity to be heard “at a meaningful time and in a
meaningful manner.” Id. (quoting Matthews v. Eldridge, 424 U.S. 319,
333 (1976)) (emphasis added).16 Whatever other procedures are due, we
leave for discussion and decision when the issue is squarely before us.
Conclusion and Order
Fa`amausili’s expulsion from the Senate of the Legislature of American
Samoa, after he was sworn-in as a Senator, was not constitutionally
valid. He remains a sitting Senator and is entitled to all rights and
privileges of his office, including but not limited to full pay and
allowances accruing and unpaid after he was sworn-in on August 9,
2002.
It is so ordered.

 

ESTATE OF ROSE F


 

ESTATE OF ROSE F.S. TURNER, Deceased.
High Court of American Samoa
Trial Division
PR No. 11-01
December 10, 2002

 

[1] Damages for the breach of a lease are determined by the general
principles reflected in the contract.
[2] American Samoa statutes unequivocally exclude communal land
from testamentary devise, intestate succession, and estate administration.
16 Once again, Fa`amausili was not afforded this right at the September
30th vote.

[3] Communal land is the land ownership concept at the very core of the
Samoan land tenure system.
[4] Communal land tenure precludes fee simple ownership in favor of
extended family control over land, under the occupancy and use
directions of the family’s sa`o.
[5] Leases of communal land may not wholly conform to the traditional
occupancy and use of communal land. However, they are statutorily
authorized.
[6] Once a leasehold is created, the parties to the lease, and their
executors, administrators, successors and assigns are entitled to have the
contractual terms of the lease respected and upheld.
[7] The American Samoa Government’s constitutional duty to protect
communal lands from alienation pertains to alienation from American
Samoans to foreigners.
[8] Court was without authority to award attorney’s fees where estate’s
attorney had asked for them in defending estate from objection to
passing leasehold interest, which was purportedly frivolous and made in
bad faith.
[9] Where individual, acting as objector in probate action, had actually
raised objection contrary to his authority as objector, said attorney lacked
standing to object and reasonable attorney’s fees were properly awarded
to the estate for the unnecessary expense caused by the objection.
Before RICHMOND, Associate Justice, and ATIULAGI, Associate
Judge.
Counsel: For Administrator, David P. Vargas
For Objector, Tautai A.F. Faalevao, Pro Se
ORDER DENYING PETITION AGAINST
ESTATE AND ADMINISTRATOR OF ESTATE

On October 15, 2002, objector Tautai A.F. Faalevao (“Tautai”)
petitioned the Court to exclude a certain parcel of the Fano family’s
communal land from the estate of the intestate decedent, Rose F.S.
Turner. Tautai file his petition as a blood member representing the
interest of the Tautai clan of the Fano family.
284
Tautai’s petition was first heard on November 18, 2002, the same day
scheduled for the hearing on the motion of administrator Rene L.F.
Clemens (“Clemens”) for approval of his final account and reporting and
for distribution of the estate. The Court continued the hearing until
November 25, 2002, to afford Tautai and Clemens the opportunity to
further research and file briefs on the objection issue.
The issue is over Clemens’ inclusion in the inventory of the estate’s
assets the decedent’s leasehold interest in the Fano family’s communal
land. We hold that the leasehold is an asset of the estate.
Discussion
The leased land is a portion of communal land, known as “Matautu
Ridge at Tulutulu,” containing approximately 4.755 acres, plus a 40 foot
right of way for ingress and egress, containing approximately 1.065
acres, in the Village of Faga`alu, American Samoa. The lease was
executed on July 19, 1990, approved by the Governor, as required by
A.S.C.A. § 37.0221(a), on December 7, 1990, and recorded with the
Territorial Registrar on December 10, 1990. The lease was signed by
Fano Salilo, the Fano family’s sa`o, for himself and on behalf of the
Fano family, as the lessor, and by the decedent, as the lessee. Both
parties committed “their executors, administrators, successors and
assigns” to perform the lease. The term is for 55 years, the maximum
period permitted under A.S.C.A. § 37.0221(a). The rent is $1.00 per
year.
Tautai claims that the parties entered into the lease to provide collateral
for bank financing, a common purpose of communal land leases, and
argues that in the existing absence of any outstanding mortgage, the
lease expired upon the decedent’s death. In this regard, Tautai also
points to paragraph 9 of the lease that provides options for lease
termination upon full satisfaction of a mortgage debt. He asserts that
under the circumstances, termination upon the decedent’s death is
consistent with Samoan custom for the use of family communal land.
[1] Fundamentally, the lease provided the decedent the right to long-term
occupancy and use of the lease premises. The mortgage financing
authorization is simply permissive and a secondary purpose. Both
parties’ rights and responsibilities under the lease terms are contractual.
Cf. Lindgren v. Betham, 20 A.S.R.2d 98, 101 (App. Div. 1990)
(Damages for breach of lease are determined by general principles of
contract). Both parties clearly intended those rights and obligations to be
binding on their executors, administrators, successors, and assigns. On a

contractual basis alone, therefore, the leasehold is properly included in
the decedent’s estate, and her heirs are entitled to succeed as lessees
under the lease, under the laws of intestate succession. See Hunkin v.
Grisard, 13 A.S.R.2d 38, 40 (Trial Div. 1989).
[2-4] Tautai correctly points out that territorial statutes unequivocally
exclude communal land from testamentary devise, intestate succession,
and estate administration. A.S.C.A. §§ 40.0106, 40.0206, and 40.0302.
Communal land is the land ownership concept at the very core of the
Samoan land tenure system. As an alternative to the prevailing means of
land ownership in fee simple by individuals and other legal entities
generally prevailing in United States jurisdictions, communal land tenure
precludes fee simple ownership in favor of extended family control over
land, under the occupancy and use directions of the family’s sa`o (“head
chief”).
[5-6] Tautai’s argument, however, widely misses the mark. The concept
of communal land ownership deals with the land itself, not with lesser
interests, such as leasehold, easements, and licenses, having readily
identifiable rights and obligations of a contractual nature. As Tautai
asserts, leases of communal land may not wholly conform to traditional
occupancy and use of communal land, unlike the more customary sa`o
assignment to family members of occupancy and use of areas within the
family’s communal lands. However, leases of communal land are
statutorily authorized. A.S.C.A. § 37.0221. Moreover, the statute does
not prevent either members or nonmembers of the family from becoming
lessees of the family’s communal lands. Once the leasehold is created,
the parties to the lease, and their executors, administrators, successors
and assigns, are entitled to have the contractual terms of the lease
respected and upheld. See Miller & Desatnik Mgmt. Co. v. Bullock, 221
Cal. App. 3d Supp. 13, 17 (Cal. Ct. App. 1990) (fixed termed tenancy
not terminated by death); RESTATEMENT (SECOND) OF PROPERTY § 1.5
cmt. F (same). This result is not fatal in any sense to the integrity of the
communal land system. The underlying land itself does not lose its
character as communal land.
[7] The family, in this case the Fano family, retains the land as the
family’s communal land. Contrary to Tautai’s contention, our holding is
not violative of the American Samoa Government’s constitutional duty
to protect communal lands from alienation. Timu v. McMoore, 6
A.S.R.3d 41, 43-44 (App. Div. 2002). The duty pertains to alienation
from American Samoans to foreigners. Id.
[8-9] Clemens requests an award of attorney’s fees against Tautai for his
failure to provide any genuine legal authority for excluding the leasehold

from the estate and has caused the estate unnecessary expense. In other
words, the objection is frivolous and not made in good faith. We would
be inclined to agree but for the absence of any High Court decision
directly on point and the need to clearly address it. However, Fano’s
affidavit states that Tautai’s authority to represent him and the Fano
family was limited to ensuring that communal land was not included in
the estate and that Fano wanted the leasehold to pass on to the decedent’s
heirs. Fano’s statement puts in question Tautai’s standing to take on the
objector’s role and certainly establishes that Tautai exceeded his
authority, whether in his own right or on Fano’s behalf, by challenging
inclusion of the leasehold in the estate contrary to Fano’s direction.
Tautai made no effort to contradict Fano’s statement during the hearing.
Under these circumstances, an award of reasonable attorney’s fees,
which we assess at $500.00, to offset the unnecessary expense Tautai’s
action has caused the estate, is in order.
Order
1. The lease of a portion of the Fano family’s land known as “Matautu
Ridge at Tulutulu” to the decedent is included in the decedent’s estate.
2. Tautai shall pay to Clemens, the administrator of the decedent’s
estate, $500.00 as reasonable attorney’s fees to offset the unnecessary
expense of defending against Tautai’s inappropriate objection to
inclusion of the lease in the estate.
It is so ordered.

 

CUMMINS ENGINE COMPANY, LTD.,v.BAY AREA DIESELS, INC., JAMES LEDOUX,and LILIAN LEDOUX


 

CUMMINS ENGINE COMPANY, LTD., Plaintiff,
v.
BAY AREA DIESELS, INC., JAMES LEDOUX,
and LILIAN LEDOUX, Defendants.
High Court of American Samoa
Trial Division
CA No. 105-01
February 8, 2002

 

[1] In American Samoa, the court must scrutinize the evidence before a default judgment may be entered.
[2] Before default judgment may be granted, the evidence on file must satisfy the court that the calculation of the debt in question is accurate.
[3] Where default judgment on a debt is sought, direct evidence of the debt, such as invoices and receipts, is necessary to sufficiently establish the amount—a conclusory affidavit will not suffice.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Jeff Waller
ORDER DENYING PLAINTIFF’S MOTION
FOR DEFAULT JUDGMENT
Defendants were served with the Summons and Complaint in this matter on November 27, 2001. Defendants have not answered, appeared, or otherwise defended against this action. On December 21, 2001, Plaintiff

moved for default judgment against Defendants, jointly and severally, in the amount of $5,945.33, together with interest, court costs, and attorney’s fees.
On January 24, 2002, the motion came on regularly for hearing. Neither Defendants appeared. Plaintiff submitted the motion on the filed papers, noting particularly the affidavit of Robert Paul Wyeth. This Court took the matter under advisement at that time.
Standard of Review
[1] In this jurisdiction, the court must scrutinize the evidence before a default judgment may be entered. AV Bingo Supplies v. Pac. Rim Enters., 5 A.S.R3d 101, 102 (Trial Div. 2001); E-C Rental Servs. v. Pedro, 26 A.S.R.2d 65, 67 (Trial Div. 1994); Scalise v. Gorniak, 26 A.S.R.2d 85, 86 (Trial Div. 1994); see generally Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177 (Trial Div. 1988). When T.C.R.C.P. Rule 55 was amended in 1986, default judgments without judicial assessment could no longer be issued by the Clerk’s office. AV Bingo Supplies, 5 A.S.R.3d at 102; T.C.R.C.P. 55. The court must look at “direct evidence, beyond conclusory affidavits . . . , to determine for itself whether the claimed indebtedness has been correctly calculated.” AV Bingo Supplies, 5 A.S.R.3d at 102; Ieremia, 8 A.S.R.2d at 178.
Discussion
In the matter at hand, Plaintiff relies upon the affidavit of Robert Paul Wyeth, the regional manager of Plaintiff’s operation, to establish the amount in controversy. Also on file, Plaintiff has provided a “Settlement Agreement” purporting to establish the amount in controversy. While this agreement ostensibly appears to have been signed by defendant Lilian Ledoux, it was neither executed by the defendant James Ledoux nor by anyone representing defendant Bay Area Diesels, Inc.
[2-3] As above noted, before default judgment may be granted, the evidence on file must satisfy the court that the calculation of the debt in question has been accurate. Direct evidence of the amount of debt, such as invoices, receipts, and the like, must sufficiently establish the amount; a conclusory affidavit is not sufficient. See id. Plaintiff’s agent’s affidavit is not direct evidence and is self-serving. As to the “Settlement Agreement,” unless Ms. Ledoux has been granted special authority, and this court has not seen evidence of such, James Ledoux must sign the settlement document for himself and Bay Area Diesels, as its president, for the document to legally define the total debt of all the defendants.

Given the insufficiency of showing beyond a conclusory affidavit and an incompletely authenticated agreement, the authorities point us to the conclusion that the evidence available for ordering a default judgment is insufficient.
Accordingly, the Plaintiff’s motion is hereby denied.
It is so ordered.

 

Kruse v. Am. Samoa Gov't.


[1] Basic rights at the heart and soul of the American way of life, having

an explicit or implicit constitutional foundation, are fundamental and are
entitled to have laws impacting them strictly scrutinized.
[2] The hierarchial matai title and communal land systems, along with
the Samoan language, are pillars of fa`a Samoa.
[3] The holder of the sa`o matai title heads the family, the key unit of
Samoan society.
[4] The sa`o of a family is entrusted with grave responsibilities for the
protection and management of the family’s communally-owned lands
and the family’s affairs.
[5] Neither a matai title nor the aspiration to attain the title is a property
right, or any other constitutional right of fundamental importance.
[6] A.S.C.A. § 1.0403(b), which sets forth qualifications of eligibility to
succeed to a matai title does not establish, or deal with, fundamental
rights so as to be subject to strict scrutiny by a reviewing court.
[7] Where territorial statute discriminates against individuals based on
their national origin, Court will apply strict scrutiny in reviewing it.
[8] A.S.C.A. § 1.0403(b) does not exclude individuals based on national

origin.
[9] Under the rational basis test, a statute passes constitutional muster if
it is rationally related to a legitimate territorial interest.
[10] Matai titles are of central importance in Samoan customs, and
maintaining a proper selection process is important to preserve fa`a
Samoa.
[11] A.S.C.A. § 1.0403(b), which sets forth qualifications for candidates
to matai titles, was enacted with the purpose of ensuring that titleholders
possess close relationships with American Samoa. Such purpose is
related to the government’s duty to preserve fa`a Samoa, and the
statute’s restrictions constitute a rational way to ensure that a titleholder
has a close association with the territory.


Counsel: For Plaintiff, Marie A. Lafaele and Charles V. Ala`ilima
For Defendants, Marcellus T. Uiagalelei, Asst. Atty General


Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.


OPINION AND ORDER


Plaintiff Christine Kruse (“Kruse”) brought this action to enable her participation as a claimant to the “Fanene” matai title of the Village of Nu`uuli. Kruse contends that the Territorial Registrar and Secretary of Samoan Affairs, as agents officiating on behalf of defendant American Samoa Government (“ASG”), denied her constitutional right to compete for the title. Both parties moved for summary judgment, and the hearing was scheduled on February 19, 2002.

After this action was filed, concomitant claims to the “Fanene” title were submitted for judicial determination in the now pending action, In re Matai Title “Fanene”, MT No. 11-01. On January 28, 2002, at the hearing on Kruse’s motion to intervene and stay proceedings in MT No. 11-01, we deferred acting on the motion pending the outcome of this action.

The essential facts are undisputed and the legal issues are primary in this action. It can be, and should be, expeditiously decided to avoid undue delay of the proceedings in MT No. 11-01. Thus, counsel were advised that the trial in this action, rather than a summary judgment hearing, would proceed on February 19, 2002, and that the parties should present  witnesses and other evidence to confirm and supplement the facts set forth in the affidavits supporting the summary judgment motions. The trial began on February 19th and concluded on February 21, 2002. All counsel were present.

Factual Background

Kruse is a naturalized citizen of the United States and has been a resident of Nu`uuli for over 10 years. She was born in [Western] Samoa in 1942 where her parents then resided. Her father was a citizen of Samoa and her mother was a United States National born in American Samoa. Her mother was a member of the Fanene family. Kruse moved to American Samoa with her mother when she was approximately three years old. She has served the Fanene family from 1968 until the present time.

In early June of 2001, the Fanene family decided that a member of its Taffeta clan, to which Kruse is a member, would be the next holder of the vacant “Fanene” title leading the family. This clan nominated three people, including Kruse, as candidates. On June 6, 2001, one nominee, not Kruse, offered to register the Fanene title with the Territorial Registrar. In late June, 2001, Kruse and the third nominee filed counterclaims to register the title. A member of another family clan also filed a counterclaim to the title.

The Territorial Registrar then forwarded the names of three of the claimants, excluding Kruse, to the Secretary of Samoan Affairs for dispute resolution proceedings, pursuant to the mandate of A.S.C.A. § 43.0302(a). The Territorial Registrar informed Kruse that she was excluded from the list because of the birthplace requirement in A.S.C.A. § 1.0403(b). Though the Secretary of Samoan Affairs was advised by Kruse of her disagreement with the omission of her name, the Secretary proceeded with the dispute resolution process and, on October 22, 2001, issued a certificate of irreconcilable dispute. The “Fanene” title controversy was then referred to this court for judicial determination and is pending as MT No. 11-01.

Discussion

Kruse disputes the constitutionality of A.S.C.A. § 1.0403(b). This statute prescribes one of the necessary qualifications of eligibility to succeed to a matai title as follows:

(b) He must have been born on American soil; provided that a person born of parents who were inhabitants of American Samoa, but temporarily residing outside of American Samoa or engaged in foreign travel, at the date of birth of such child, may, for the purposes of this subsection, be considered as having been born on American soil if:

(1) while actually residing in American Samoa, and at any time within one year after he attains the age of 18 years, he files with the territorial registrar a renunciation, under oath, of allegiance to the country of his birth, or

(2) he has resided in American Samoa for a continuous period of not less than 10 years prior to the time of filing his application to be registered as the holder of a matai title.

Kruse challenges the statute on three fronts: (a) as violating a fundamental right, (b) as discriminatory against individuals on the basis of national origin, and (c) as violating the duty of the Legislature of American Samoa to preserve fa`a Samoa, the Samoan way of life.[1]

[1] Kruse correctly asserts that this Court has applied the standard developed under the equal protection clause of the 14th Amendment of the United States Constitution to a substantive due process challenge under Article I, Section 2 of the Revised Constitution of American Samoa. See generally Am. Samoa Gov’t v. Macomber, 8 A.S.R.2d 182 (Trial Div. 1988). Kruse argues that holding a matai title is a fundamental property right and aspiring to hold a matai title is a fundamental liberty right in the Samoan culture entitled to constitutional protection. Basic rights at the heart and soul of the American way of life, having an explicit or implicit constitutional foundation, are fundamental and are entitled to have laws impacting them strictly scrutinized. See, e.g., Plyer v. Doe, 457 U.S. 202, 221 (1982); San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973).

[2-4] The hierarchial matai title and communal land systems, along with the Samoan language, are pillars of fa`a Samoa. The holder of the sa`o matai title heads the family, the key unit of Samoan society. The family ideal is a close-knit group of loyal and dedicated members, with a well-defined structure of lesser matais, overseen by the sa`o. The sa`o is entrusted with grave responsibilities for the protection and management of the family’s communally owned lands, the single most important tangible family asset, and the family’s affairs. See Pen v. Lavata`i, 25 A.S.R.2d 164, 167-69 (Land & Titles Div. 1994).

An individual does not hold the matai title of a family sa`o simply by birth as a blood member of the family. A sa`o matai title, or any other matai title for that matter, and the matai selection process are neither property rights nor privileges having constitutional origin, nor liberty rights of the same dimension. In most families, a matai title is traditionally granted to an individual by consensus of the family, usually based on blood connection with and service to the family. The recipient does not have the freedom to use the title as a personal possession, but rather must carry out the fiduciary duties of the position. Pen v. Lavata`i, 25 A.S.R.2d at 168.

[5-6] To assign possession of a matai title status as a fundamental right would be akin to recognizing the status of an elected office as a fundamental right. It would even elevate a mere potentiality to the level of elemental standing for the person aspiring to hold the title. Neither a matai title nor the aspiration to attain the title is a property right, or any other constitutional right of fundamental importance, so to require strict scrutiny of A.S.C.A. § 1.0403(b).

[7-9] We would still apply strict scrutiny in reviewing A.S.C.A. § 1.0403(b) if the law discriminated on the basis of national origin. However, this Court already decided this issue. See, e.g., In re Matai Title “I`aulualo”, 25 A.S.R.2d 155, 158 (Land & Titles Div. 1994). An individual born outside of American or American Samoan soil can still qualify as a candidate for a matai title as long as the parents were then bona fide inhabitants of American Samoa. Id. at 158 (even an individual who is not a U.S. national may qualify). Because A.S.C.A. § 1.0403(b) does not exclude individuals based on national origin, we will not apply the strict scrutiny test, but will instead apply the rational basis analysis to review A.S.C.A. § 1.0403(b). This means that the statute passes constitutional muster if it is rationally related to a legitimate territorial interest. See, e.g., Heller v. Doe, 509 U.S. 312, 319-20 (1993).

Kruse also argues that A.S.C.A. § 1.0403(b) violates the duty of the American Samoa Government or the Legislature of American Samoa to preserve fa`a Samoa. That duty is prescribed in various direct and indirect ways. See Cession of Tutuila and Aunu`u of April 17, 1900; AM. SAMOA REV. CONST. art. I, § 3 & art. II, §§ 1, 9; A.S.C.A. § 1.0202. Her argument is premised on the concept that no traditional rule requires a potential matai to be born on American soil. If the law were subject to strict scrutiny, this argument might be enough. As the law need only be rationally related to a legitimate territorial purpose, Kruse must go further to succeed.

[10] Matai titles are of central importance in Samoan customs, and maintaining a proper selection process is important to preserve fa`a Samoa. However, Kruse fails to establish that the restriction of A.S.C.A. § 1.0403(b) is not rationally related to the very legitimate purpose of preserving Samoan culture. In fact, this statute works towards that very purpose.

Samoan culture is dynamic. The basic tenets of matai leadership and communal land ownership must stand tall and firm for the Samoan way of life to survive. However, this does not mean that the culture cannot endure after accommodating changes in custom. Fa`a Samoa, like all living cultures, finds constructive ways to adapt to the times and evolve. The fateful decisions leading the acceptance of political division of once unified Samoa and allegiance of American Samoans to the United States created a situation of adaptation as well the need to preserve fa`a Samoa. The new political identity would surely lead to changes in the matai system. The matai system today is not exactly the same as it was 100 years ago.

[11] The constitutional and statutory protections of fa`a Samoa do not prevent the Legislature of American Samoa from enacting and the Governor of American Samoa from approving rational laws designed to preserve changed attitudes and practices, including new ways of keeping .fa`a Samoa in tune. Close identification with American Samoa as a qualification to hold a matai title was a logical and legitimate historical development. Clearly, the Legislature and Governor held the view that requiring a foreign born candidate for a matai title to have parents who retained American Samoa as their permanent home and were abroad for a transitory purpose was, and is, a rational way to ensure that a titleholder has close association with the territory. It is not the Court’s function to second guess this legislative judgment. While there are other, and perhaps even better, ways that the Legislature and Governor might have chosen, and may yet choose, to achieve the objective of close attachment to the territory, the one selected rationally serves that purpose.

Order

Because the statute is rationally related to the legitimate purpose of recognizing accepted criteria for the selection of a matai, in an effort to preserve fa`a Samoa, Kruse’s challenge of the constitutionality of A.S.C.A. § 1.0403(b) falls short. Her claim fails, and this action is dismissed. We will also deny Kruse’s motion to intervene and stay proceedings in MT No. 11-01.

It is so ordered.

**********



[1] Kruse also argues that if A.S.C.A. § 1.0403(b) is not constitutionally void, she still has an alternative remedy under the federal civil rights statutes, in particular 42 U.S.C. §§ 1981, 1983, and 1985. These statutes are expressly applicable to the territory. 42 U.S.C. § 1981. This Court has held, however, that if the particular right, privilege, or immunity at issue is not secured in the territory by the U.S. Constitution, the parallel remedy provided by the federal civil rights statutes is also unavailable. Banks v. Am. Samoa Gov’t, 4 A.S.R.2d 113, 128 n.7 (Trial Div. 1987).

BRUCE DAMEWORTH and FE`OFA`AKI DAMEWORTH,v.AMERICAN SAMOA GOVERNMENT


BRUCE DAMEWORTH and FE`OFA`AKI DAMEWORTH,
Plaintiffs,
v.
AMERICAN SAMOA GOVERNMENT, Defendant.
High Court of American Samoa
Trial Division
CA No. 24-02
October 3, 2002

 

[1] If the party moving for summary judgment makes a prima facie case
that would entitle the movant to a directed verdict if uncontroverted at
trial, the burden shifts to the adverse party, who must set forth specific
facts showing that there is a genuine issue for trial.
[2] American Samoa has adopted certain income tax laws and rules of
the United States through A.S.C.A. § 11.0403(a).
[3] The Samoan Income Tax Act consists of chapters 4 and 5 of the
American Samoa Code and the provisions of the United States Internal
252
Revenue Code adopted by § 11.0403(a).
[4] By rejecting the Governor’s several proposals to remove the child tax
credit from the Samoan Income Tax Act, the Legislature has evidenced
clear intent to recognize the child tax credit as the law of American
Samoa.
[5] Neither the Governor nor any other member of the Executive Branch
may undo what the Legislature of American Samoa has put in place as
law without having a statutory basis for such action.
[6] The Legislature has enacted the child tax credit as the law of
American Samoa and only the Legislature may remove the credit from
the Samoan Income Tax Act.
[7] Tax credit refunds need not be expressly funded by appropriations
since the government does not have, and cannot obtain, any ownership
interest in monies representing tax refunds.
[8] The government holds tax credit refund monies with a fiduciary duty
to account for and refund those monies to the taxpayers as the rightful
owner, with interest if not timely paid.
[9] Because legislative appropriations to pay tax refunds are
unnecessary, the entire appropriation process is irrelevant to an action
seeking payment of tax refunds.
[10] For a taxpayer claiming the child tax credit and having one or two
children, the credit is nonrefundable, meaning the taxpayer can only
offset income tax liability in excess of the mandated alternative
minimum tax for all American Samoa taxpayers, but not recover any
refund for the amount of the credit over the amount of tax liability.
[11] For a taxpayer claiming the child tax credit and having three or
more children, a portion of the credit is treated as refundable.
[12] Taxpayers that prevailed in action against government for recovery
of tax refund entitled to court costs and reasonable attorney fees.
Before RICHMOND Associate Justice, SAGAPOLUTELE, Associate
Judge, and MAMEA, Associate Judge.
Counsel: For Plaintiffs, Daniel R. King
For Defendant, Benton H. Walton IV, Asst. Attorney General
253
ORDER GRANTING PLAINTIFFS AND DENYING
DEFENDANT SUMMARY JUDGMENT

Plaintiffs Bruce Dameworth and Fe`ofa`aki Dameworth (“the
Dameworths”) filed a complaint for an additional refund of income taxes
for the year 2000 in the amount of $2,429.00. Defendant American
Samoa Government (“ASG”) answered, denying any additional refund
liability. First, the Dameworths, and then, ASG moved for summary
judgment. The Court heard these motions of July 12, 2002. Counsel for
both parties were present.
Discussion
A. Summary Judgment Standard of Review
[1] Summary judgment is appropriate when there is “no genuine issue as
to any material fact” and “the moving party is entitled to judgment as a
matter of law. T.C.R.C.P. 56(c). If the moving party makes a prima
facie case that would entitle the movant to a directed verdict if
uncontroverted at trial, the burden shifts to the adverse party, who must
set forth specific facts showing that there is a genuine issue for trial.”
T.C.R.C.P. 56(e). The court must view the pleadings and supporting
papers in the light most favorable to the non-moving party. Amerika
Samoa Bank v. United Parcel Serv., 25 A.S.R.2d 159, 161 (Trial Div.
1994); Ah Mai v. Am. Samoa Gov’t (Mem.), 11 AS.R.2d 133, 136 (Trial
Div. 1989).
B. Undisputed Facts
The Dameworths timely filed a joint American Samoa income tax return,
Form 390, for the tax year 2000. They reported a tax liability of
$7,384.00 and credits of $10,307.00, which resulted in an overpayment
of $2,923.00. The stated tax credits consisted of $8,307.00 of income
tax withheld from wages and $2,000.00 as the child tax credit ($500.00
for each of four qualifying children). The Dameworths also timely filed
an amended tax return, Form 390X, for the tax year 2000 to report
reduced wages and an additional overpayment of $379.00, which
decreased their actual tax liability to $7,005.00. The two added
overpayments are $3,302.00. ASG paid the Dameworths a refund of
$873.00 for tax year 2000 after deducting a $50.00 penalty for not
supplying a tax identification number for a dependent listed on their
1999 income tax return. The Dameworths accepted the penalty
assessment. Thus, the stated net overpayment amount still outstanding is
$3,302.00 less $923.00, or $2,379.00.
ASG does not contest the Dameworths’ calculations. However, it

disputes the applicability of the child tax credit in American Samoa. On
March 21, 2000, the Governor of American Samoa ordered the Treasurer
of American Samoa to cease recognition and payment of any child tax
credit claims. Then, on August 5, 2001, the Governor confirmed the
earlier directive and ordered the Treasurer to pay the additional child tax
credit only to the extent federal funds are received to pay the credit. In
both directives, he cited the lack of locally appropriated funds as the
reason for the directive. The Legislature of American Samoa has not
appropriated funds for the payment of refunds for the basic child tax
credit.
C. Legal Basis of the Child Tax Credit
[2] American Samoa has adopted the income tax laws and rules of the
United States through A.S.C.A. § 11.0403(a), which reads:
(a) The income tax and the income tax rules in force in the United
States of America and those which may hereafter be enacted or
adopted, where not clearly inapplicable or incompatible with the
intent of this section, are adopted by American Samoa, and shall be
deemed to impose a separate territorial income tax, payable to the
government. These laws include, but are not limited to, the
following provisions of the United States internal Revenue Code of
1986; subtitle A; chapters 24 and 25 of subtitle C, with reference to
the collection of income tax at sources on wages; and all
provisions of subtitle P which apply to the income tax, including
provisions as to crimes, other offenses and forfeitures contained in
chapter 75.1
[3] The provisions of A.S.C.A. chs. 11.04 and 11.05 and of the United
States Internal Revenue Code (“IRC”) adopted by § 11.0403(a)
constitute the Samoan Income Tax Act (“SITA”). A.S.C.A. §
11.0403(b).
1 The original reference in A.S.C.A. § 11.0403(a) was to the United
States Internal Revenue Code of 1954. In 1988, the reference was
changed to the Internal Revenue Code of 1985. P.L. No. 20-51. In
2001, the Legislature froze the automatic adoption of congressional
changes in the Internal Revenue Code to those in effect on December 31,
2000. P.L. No. 27-15. In other words, any subsequent congressional
changes do not become law in American Samoa unless the Legislature
sees fit to first enact them as positive territorial law. The basic child tax
credit was the law of American Samoa prior to P.L. No. 27-15, and the
freeze of this legislation did not impact the application of the credit in
the territory.
255
At issue is the child tax credit in the IRC, 26 U.S.C.A. § 24 (“SITA §
24”). The statute in part reads:
§ 24. Child tax credit
(a) Allowance of credit--There shall be allowed as a
credit against the tax imposed by this chapter for the
taxable year with respect to each qualifying child of the
taxpayer an amount equal to $500 . . . .
Subtitle A of the IRC includes 26 U.S.C.A. § 24, and the child tax credit
is therefore at face value a provision of the American Samoa income tax
laws as SITA § 24.
ASG argues that the exception in A.S.C.A. § 11.0403(a) “where not
clearly inapplicable or incompatible with the intent of this section”
comes into play in this regard. The exception provides an ultimate safety
valve, as ASG argues, to ensure that provisions contrary to the territory’s
public interest are not enacted into law. ASG then attempts to illustrate a
basis for finding an implicit legislative intent to disallow the credit
We disagree with ASG. The Legislature has not, as is discussed further
below, enabled the Governor to enact laws, specifically for purposes of
this action to repeal income tax laws, without legislative approval.
Though not needed at all, as is also discussed further below, the lack of
legislated appropriations for child tax credit refunds does not equate with
any legislative intent to disallow the credit.
[4] The Governor’s several proposals to remove the child tax credit from
the SITA and the Legislature’s several rejections of the proposals, which
we judicially notice as a matter of common knowledge, demonstrate just
the opposite. Contrary to ASG’s reasoning, the Legislature has
evidenced clear intent to recognize the child tax credit as the law of
American Samoa. Moreover, ASG fails to articulate, let alone prove,
any specific public interest rendering the basic child tax credit clearly
inapplicable or incompatible with the intent of AS.C.A. § 11.0403.
We hold that the child tax credit is not clearly inapplicable or
incompatible with the intent of A.S.C.A, § 11.0403(a), and therefore, the
credit is the law of American Samoa.
D. Governor’s Non-Payment Directive
ASG contends that even if the basic child tax credit is the law in
American Samoa, the Governor’s directive prohibiting any payment of
the child tax credit was still a lawful exercise of the Governor’s authority
as ASG’s chief executive.
256
ASG characterizes the Governor’s action as comparable with the
Treasurer’s regulatory authority under the SITA. It rationalizes that the
Governor, as the Treasurer’s superior, may fill the Treasurer’s role,
denoted in AS.C.A. § 11.0401,2 in administering American Samoa’s
income tax laws. As examples, ASG cites SITA § 481, 42, and 1502,
which make reference to the Treasurer’s authority to prescribe
regulations that further the implementation of the tax laws. It also notes
the Governor’s constitutional authority to issue executive regulations not
in conflict with laws of the United States applicable to American Samoa,
laws of American Samoa, or with [the] Constitution.” AM. SAMOA REV.
CONST., art. IV, § 6.3 All of the cited statutory and constitutional
regulatory authority relate to the power to provide administrative
guidance to carry out, not effectively annul as does the Governor’s
directive of non-payment of the child tax credit, the income tax or for
that matter any other laws.4
[5-6] The underlying principle in point is the time-honored doctrine of
the separation of executive and legislative powers for sound
government—a legislature makes the laws, and the executive branch
undertakes the public role in the execution of those laws. See The Senate
v. Lutali, 27 A.S.R.2d 126, 135 (Trial Div. 1995) (hereinafter Lutali I).
Neither the Governor nor any other member of ASG’s Executive Branch
may undo what the Legislature of American Samoa has put in place as
law without having a statutory basis for such action. The Legislature has
enacted the child tax credit as the law of American Samoa and only the
Legislature may remove the credit from the SITA.
2 ASG equates the phrase “except where it is clearly otherwise required”
in A.S..C.A. § 11.0401 as somehow granting the Executive Branch
legislative authority to limit the application of the IRC provisions on
American Samoa taxpayers. The statute only pertains to sensible
substitution of terms for purposes of the SITA. It has nothing to do with
any regulatory power, whether legislative or administrative in nature.
3 ASG’s comment on this constitutional power is a gross non sequitur.
The lack of appropriated funds to pay the basic child tax credit refunds
simply does not remove the bald-faced conflict of the Governor’s
directive with the existence of the credit as statutory law.
4 We point out, as further examples, that the Legislature has given the
Governor statutory authority to legislate, in effect, by imposing import
excise taxes, A.S.C.A § 11.1003, or by suspending the operation of laws
and administrative regulations to cope with an existing or imminent
natural disaster, A.S.C.A. § 26.0105, as short-term emergency measures
(emphasis added). We stress that this gubernatorial authority is
statutorily based.

Therefore, we hold that as a matter of law the Governor’s directive to not
pay the child tax credit abrogated neither the credit in American Samoa
law, nor its benefit to the taxpayers of the territory.
E. Non-Appropriation of Funds
ASG next asserts that even if basic child tax credit is the law in
American Samoa, and the Governor did not have authority to direct nonpayment
of credit refunds, the lack of appropriated funding to pay credit
refunds, the reason for the Governor’s action cited in the two directives,
legally justified non-payment of the refund to the Dameworths.
This argument first focuses on the anti-deficiency statute, A.S.CA. §
10.0601. This statute prohibits any ASG officer or employee from
making or authorizing expenditures or obligations in excess of the
amount of appropriated funds available for the purpose of the
expenditure, or from expending before appropriations are made for the
purpose of the expenditure unless authorized by law. See id. The
argument proceeds with recognition of the constitutional prohibition on
legislative appropriations in excess of available revenues. AM. SAMOA
REV. CONST. art. II, § 1(c). It concludes with the assertion that tax
refunds are outlays of funds for which legislative appropriations are
essential and have not been made.
ASG’s argument is abstractly valid. See Lutali I, 27 A.SR.2d at 133-35.
Normally, the Executive Branch develops an annual budget, assessing
projected revenues and anticipated expenditures, and the Legislature
approves the final budget, enacting the necessary appropriations. Id. at
135-137. The Legislature did not appropriate funds for payment of basic
child tax credit refunds during the fiscal year in which the Dameworths’
claimed refund would become payable (fiscal year 2001 from October 1,
2000, to September 30, 2001). It actually appears that no consideration
was even made of past experience with the funding requirements for
child tax credit refunds when the Executive Branch prepared the annual
budget, or when the Legislature acted upon the Executive Branch’s
annual budget submission. If anything, the Executive Branch can be
faulted for the miscalculated shortfall of funds earmarked, within or
without the annual budget, for payment of the credit.
[7-8] However, tax credit refunds need not be expressly funded by
appropriations. “ASG does not have, and cannot obtain, any ownership
interest in monies representing tax refunds.” See The Senate v. Lutali,
27 A.S.R.2d 157, 159 (Trial Div. 1995) (hereinafter Lutali II). “ASG
holds these monies with a fiduciary duty to account for and refund those
monies to the taxpayers as the rightful owner, with interest if not timely
paid.” Id. If the Legislature has neither authority to appropriate these
258
private funds [owed as refunds] nor any legal role in the payment of the
refunds.” Id
In short, we hold that as a matter of law, the absence of appropriated
funds for the payment of the basic child tax credit refunds does not, and
cannot, excuse ASG from its fiduciary obligation to pay the credit
refunds.
F. Impracticality and Futility of Ordering Compliance
Finally, ASG argues that ordering compliance with the child tax credit
provision would be an impractical and futile act.5
ASG again refers to the appropriations process to underpin the claimed
impractical and futile nature of the relief requested by the Dameworths.
First, ASG points out that unless obligated by the end of the applicable
fiscal year, in this case September 30, 2001, any funds appropriated by
the Legislature to pay refunds for the child tax credit would have lapsed
at the end of that year and would no longer be available to ASG to
expend in payment of the credit. See Lutali I, 27 A.S.R.2d at 13l-33.
ASG then returns to the actual lack of appropriated funds for basic child
tax credit refund purposes for the tax year 2000 during fiscal year 2001
(October 1, 2000, to September 30, 2001). Hence, for both reasons,
ASG argues that a court order requiring ASG to pay the child tax credit
to the Dameworths would be an impractical and futile act.
5 The “impractical and futile” terminology comes from ASG’s cited case,
Golden v. Virgin Islands Gov’t, CA No. 2001-0162 (V.I. Dist. Ct. Nov.
30, 2001) (order granting plaintiffs declaratory relief and granting
defendants summary judgment). Golden is an unpublished case, and
ASG has been unable to provide the complete document containing the
order or other information about the case. It appears that the Golden
court declared that U.S. taxpayers in the United States Virgin Islands
were entitled to refunds from the Virgin Islands Government related to
an advance credit on 2001 taxes under the Federal Economic Growth and
Tax Relief Act of 2001, Pub. L. 107-16, but then awarded the
government summary judgment, holding that it would be “impractical
and futile” to grant the “equitable relief” sought by the plaintiffs when
the government could not issue refund checks before a mandated
deadline. The Golden decision is not very helpful in our case without
having detailed information on the facts and issues, before the Virgin
Islands court. Moreover, the District Court order has been vacated and
the case remanded to that court for further proceedings on the plaintiffs’
standing. Golden v. Virgin Islands Gov’t, No. 02-1068, slip op. (3d Cir.
July 19, 2002).
259
[9] ASG ignores once again the fact that tax refund monies ware never
its property, and it holds the funds merely in a fiduciary capacity for the
taxpayers. Lutali II, 27 A.S.R.2d at 159. As a fiduciary, ASG owed a
duty to make sure this money was returned to those to whom it was
owed. Id. Appropriations to pay tax refunds are unnecessary. Id. Thus,
the appropriation process is irrelevant to the issue in this action.
It is not an equitable solution to find that as a result of ASG’s own
breach of its fiduciary duty, ASG is now excused from making
restitution as a matter of impracticality and futility. Such a holding
would open up a slippery slope where ASG could conceivably refuse to
pay any income tax refunds, and if it battled long enough in or out of
court until payment was impracticable, it would be entitled to keep all
the unpaid funds. The court has no role to instruct ASG on how to meet
its responsibilities, rather it is to advise ASG as to what the law requires.
In this instance, the law requires ASG to honor the child tax credit.
Generally speaking, tax credits fall into two categories: nonrefundable
and refundable credits. See SITA § 21-26, 31-35. Nonrefundable tax
credits “can only be used to offset tax that would otherwise be owed.”
Sorenson v Sec’y of Treasury, 475 U.S. 851, 854 (1986); see also In re
Dever, 250 B.R. 701, 706 (2000). On the other hand, “if an individual’s
[refundable tax credits] exceeds his tax liability, the excess amount is
considered an overpayment of tax under [SITA] § 6401(b).” Sorenson,
475 U.S. at 854. “Subject to specified setoffs, [SITA] § 6402(a) directs
the [Treasurer of America Samoa] to credit or refund ‘any overpayment’
to the person who made it.” Id.
[10] The child tax credit, SITA § 24, is codified within subtitle A of the
IRC, and hence within that part of the SITA, that lists nonrefundable tax
credits. A taxpayer having one or two children and claiming the credit is
only able to offset income tax liability, in excess of the mandated
alternative minimum tax for all American Samoa taxpayers (2 of
adjusted gross income in tax year 2000), A.S.C.A. § 11.0503, but not
recover any refund for the amount of the credit over the amount of tax
liability. See In re Steinmetz, 261 B.R. 32, 33-34 (2001).
[11] However, SITA § 24(d) provides, with certain limitations, that “if a
taxpayer’s family has three or more children, a portion of the child tax
credit is treated as refundable credit.” In re Steinmetz, 261 B.R. at 34.
The Dameworths have four qualifying children, making them eligible for
a refund under this additional child tax credit provision. Aside from
ASG’s fruitless claim that it need not comply with the child tax credit
provision at all, it does not dispute the Dameworths’ eligibility for the
additional credit of $2,000.00 ($500.00 for each child) as the amount of
the Dameworths’ credit entitlement.
260
[12] The Dameworths are therefore entitled to recover by way of
summary judgment $2,379.00 from ASG. They are also entitled to, in
accordance with SITA §§ 6611 and 6621, interest on the outstanding
principal amount and to, in accordance with SITA § 7430, reasonable
court costs, which we find to be the ordinary local costs of suit, and
reasonable attorney’s Fees not to exceed $125.00 per hour. ASG is not
entitled to a summary judgment against the Dameworths.
Order
1. The Court grants summary judgment to the Dameworths against ASG,
and denies summary judgment to ASG against the Dameworths. ASG
shall pay the judgment to the Dameworths in the amount of $2,379.00,
plus interest on the unpaid balance in accordance with SITA § 6611,
6621, and ordinary local costs of suit and reasonable attorney’s fees, not
to exceed $125.00 per hour, in accordance with SITA § 7430.
2. It the Dameworths seek the court’s adjudication of the amounts of the
interest, ordinary court costs, or reasonable attorney’s fees owed to them
by ASG, they may file with the Court and serve on ASG one or more
affidavits of their counsel or other suitable person(s) setting forth the
amounts claimed.
If ASG contests the amounts, the Court will conduct an evidentiary or
other appropriate hearing and determine the issues.
It is so ordered.

 

BORAL GAS OF AMERICAN SAMOA, INC.,v.FAAFETAI IAULUALO, ACTING TREASUREROF AMERICAN SAMOA


 

BORAL GAS OF AMERICAN SAMOA, INC., Petitioner,
v.
FAAFETAI IAULUALO, ACTING TREASURER
OF AMERICAN SAMOA, Respondent.
High Court of American Samoa
Trial Division
CA No. 87-01
October 3, 2002

 

[1] The High Court, Trial Division, has exclusive, original jurisdiction
over all judicial proceedings in American Samoa, both criminal and
civil, with respect to the Samoan Income Tax Act.
[2] Actions pertaining to improperly assessed tax deficiencies and
penalties in American Samoa are subject to the statutory requirements
applicable to such actions brought in a Tax Court under the United States
internal revenue code.
[3] Disputed legal questions present nothing for trial and are
appropriately resolved on a motion for summary judgment.
[4] The limitation period for the government to bring an action seeking
assessment of additional income taxes, penalties, or interest under the
Samoan Income Tax Act is three years from the date that the taxpayer
files the tax return.
[5] Statutory interpretation is purely a question of law to be decided by
the court.
[6] The purpose of statutory interpretation is to effectuate the intention of

the legislature.
[7] The first step in statutory interpretation is determining whether the
language at issue has a plain and unambiguous meaning with regard to
the particular dispute in the case.
[8] When the words are either reasonably susceptible to different
meanings, conflict with the overall statutory purpose, or cause absurd
results, a court must look beyond literal statutory language.
[9] Where a statute is ambiguous, the court analyzes the design of the
statute as a whole and its object and policy.
[10] The court may examine sources other than the statute’s language for
evidence of legislative intent.
[11] A.S.C.A. § 11.0403 does supplant federal tax laws, but it merely
creates an additional, territorial tax modeled on the federal tax.
[12] While hiring an attorney or accountant does not insulate the
taxpayer from negligence penalties, good faith reliance on professional
advice concerning tax laws is a defense.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Petitioner, Daniel R. King
For Respondent, Benton H. Walton, IV, Assistant Attorney
General, and Henry W. Kappel, Legal Counsel to the Governor
ORDER GRANTING PARTIAL SUMMARY JUDGMENTS
TO PLAINTIFF AND DEFENDANT

Petitioner Boral Gas of American Samoa, Inc. (“Boral”) brought this
action to redetermine tax deficiencies, penalties, and interest assessed by
respondent Faafetai Iaulualo (“Iaulualo”), as the Acting Treasurer of
American Samoa and Commissioner of Internal Revenue under the
Samoan Income Tax Act (“SITA”), for Boral’s 1994, 1996, 1997, 1998,
and 1999 tax years, respectively ending June 30, 1995, 1997, 1998,
1999, 2000. Both parties filed motions for summary judgment. The
motions were heard on April 29, 2002, with all counsel present.
Jurisdiction
[1-2] This court has exclusive, original jurisdiction over all judicial

proceedings in American Samoa, both criminal and civil, with respect to
SITA. A.S.C.A. § 11.0408. Actions pertaining to improperly assessed
tax deficiencies and penalties are subject to the statutory requirements
applicable to such actions brought in a Tax Court under the United States
internal revenue code (“IRC”). Klauk v. Am. Samoa Gov’t, 13 A.S.R.2d
52, 55 n.2 (Trial Div. 1989) (the High Court sits as a Tax Court in
deficiency proceedings); see also A.S.C.A. § 11.0401; 26 U.S.C.A. §§
7441-7478 (2002). In this case, the court’s jurisdiction properly attached
when a notice of deficiency was mailed to Boral, the taxpayer, and it
filed this action contesting the deficiency within 90 days. See Stephens
v.
Comm’r of Revenue, 15 A.S.R.2d 87, 88 (Trial Div. 1990) (citing 26
U.S.C.A. § 6213(a)).
Summary Judgment Standard
[3] Summary judgment is appropriate when there is “no genuine issue as
to any material fact.” T.C.R.C.P. 56(c); Plaza Dep’t Store v. Dunchnak,
26 A.S.R.2d 82, 83 (Trial Div. 1994). The pleadings and supporting
documents are viewed in the light most favorable to the non-moving
party. Plaza Dep’t Store, 26 A.S.R.2d at 83. Furthermore, as in this
case, “disputed ‘legal questions . . . present nothing for trial and [are]
appropriately resolved on a motion for summary judgment.’” Flair
Broad. Corp. v. Powers, 733 F. Supp. 179, 184 (S.D.N.Y. 1990)
(quoting Holland Indus. v. Adamar of New Jersey, Inc., 550 F. Supp.
646, 648 (S.D.N.Y. 1982)).
Discussion
A. Statute of Limitations Bar on Tax Years 1994 and 1996
[4] Boral points out, and Iaulualo concedes, that the assessment of any
additional income taxes, penalties, or interest for Boral’s 1994 and 1996
tax years, ending June 30, 1995, and June 30, 1997, are barred by the
statute of limitations. The limitation period is three years after the tax
return is filed. SITA § 6501(a). Boral’s tax returns for these two tax
years were filed more than three years before Iaulualo asserted the
assessed tax deficiencies, penalties, and interest for those tax years.
Therefore, Boral is clearly entitled to summary judgment for these two
tax years.
B. Undisputed Calculations
Boral’s calculations on the taxes owed for the remaining tax years in

question, 1997, 1998, and 1999, ending June 30, 1998, 1999, and 2000,
and Iaulualo’s calculations on the assessed tax deficiencies, penalties,
and interest owed for the same years are undisputed. There is no
genuine issue of material fact regarding the essential legal issue: whether
the applicable corporate income tax rates are set forth in § 11(b) of the
United States income tax law (“IRC”) through adoption by reference in
A.S.C.A. § 11.0403(a), or in A.S.C.A. § 11.0533. The action is therefore
ripe for summary judgment with respect to the corporate income tax rate
issue.
C. Applicable Tax Rates
In 1963, American Samoa adopted by reference the IRC of 1954, as it
was then in effect and may be later modified, as the income tax law of
the territory. A.S.C.A. § 11.0403(a). Excepted were: (1) IRC provisions
clearly inapplicable or incompatible with the intent of § 11.0403(a), id.,
and (2) amendments enacted by the Legislature of American Samoa.
A.S.C.A. § 11.0501.
IRC § 11(b) sets forth the IRC income tax rates in general on
corporations. This section is included in IRC’s subtitle A, which was
specifically adopted as part of the SITA. A.S.C.A. § 11.0403(a). The
corporate tax rates in IRC § 11(b) were substantially reduced by the
federal Tax Reform Act of 1986, effective for tax years beginning on or
after July 1, 1987. U.S. Pub. L. No. 99-514 (effective Oct. 22, 1986).
Initially, the reduced tax rates automatically became the effective tax
rates in the territory under A.S.C.A. § 11.0403(a). See, e.g., Patu v.
Westervelt, 4 A.S.R. 812, 819-822 (Trial Div. 1974) (acknowledging
amendment to Tax Court rules contained in the IRC as applicable in a
High Court deficiency hearing under SITA).
The Legislature of American Samoa responded by enacting the
“Revenue Recoupment Act of 1987,” adding A.S.C.A. § 11.0533 as a
new amendment to the SITA. Am. Samoa P.L. No. 20-51 § 3 (approved
by the Governor Feb. 29, 1988 and effective. June 4, 1988). The new
amendment added a fourth tax bracket to SITA that was deliberately
removed from IRC § 11(b).1 The rates established in the “Revenue
1 26 U.S.C.A. § 11(b), as amended by U.S. Pub. L. 99-514, reads:
(b) Amount of tax.--
(1) In general. –The amount of tax imposed by subsection (a)
shall be the sum of--
(A) 15 percent of so much of the taxable income as does
not exceed $50, 000,
(B) 25 percent of so much of the taxable income as

Recoupment Act of 1987” were to remain in effect until July 1, 1989.
A.S.C.A. § 11.0533(b); P.L. No. 20-51 § 3. However, in the following
year, the Legislature amended § 11.0533 and removed this sunset
provision by deleting subsection (b) in its entirety. Am. Samoa P.L. No.
21-8 § 1 (effective July 22, 1989). Thus, the corporate income tax rates
created by the “Revenue Recoupment Act of 1987” in A.S.C.A. §
11.0533 effectively became permanent statutory law.
Boral argues, however, that when IRC § 11(b) was once again amended
in 1993, see U.S. Pub. L. 103-66 (effective Aug. 10, 1993), it was
reincorporated into the SITA through A.S.C.A. § 11.0403(a) and
implicitly repealed A.S.C.A. § 11.0533. Needless to say, the current
IRC corporate tax rates, enacted in 1993, are substantially less than the
corporate rates found in A.S.C.A. § 11.0533.2 Iaulualo on the other hand
exceeds $50,000 but does not exceed $75,000, and
(C) 34 percent of so much of the taxable income as
exceeds $75,000.
In the case of a corporation which has taxable income in
excess of $100,000 for any taxable year, the amount of tax
determined under the preceding sentence of such taxable year
shall be increased by the lesser of (i) 5 percent of such excess,
or (ii) $11,750.
A.S.C.A. § 11.0533(b) reads:
11(b) Amount of tax.
The amount of tax imposed by subsection (a) shall be the sum
of--
(1) 15 percent of so much of the taxable income as does not
exceed $50,000,
(2) 25 percent of so much of the taxable income as exceeds
$50,000 but does not exceed $75, 000,
(3) 34 percent of so much of the taxable income as exceeds
$75,000 but does not exceed $650,000, and
(4) 44 percent of so much of the taxable income as exceeds
$650,000.
In the case of a corporation which has taxable income in
excess of $100,000 for any taxable year, the amount of tax
determined under the preceding sentence for such taxable year
shall be increased by the lesser of (a) 5 percent of such excess
or (b) $11,750.
2 26 U.S.C.A. § 11(b) currently reads:
(b) Amount of tax.--
(1) In general. –The amount of tax imposed by subsection (a)
shall be the sum of--
(A) 15 percent of so much of the taxable income as does not
246
counters that A.S.C.A. § 11.0533 is, and has been since it was passed,
the corporate tax rate of American Samoa notwithstanding any
subsequent changes to the IRC. Both parties make valid points.
Standing alone, A.S.C.A. § 11.0403 presently adopts the 1993 version of
IRC § 11(b), which has not been subsequently modified by enactment of
a local statute. Standing alone, A.S.C.A. § 11.533 presently eliminates
the 1986 version of IRC § 11(b).
[5-7] The decision in this case, therefore, is one of statutory
interpretation, which is purely a question of law to be decided by the
court. United States v. Blue Cross Blue Shield of Mich., 859 F. Supp.
283, 286 (E.D. Mich. 1994). The purpose of statutory interpretation is to
effectuate the intention of the legislature. Id. We begin, as always, by
determining “whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute in the case.” Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). We do so because “[o]ften
these words are sufficient in and of themselves to determine the purpose
of the legislation.” United States v. Am. Trucking Ass’ns, 310 U.S. 534,
543 (1940). In this case, however, the two resulting sets of distinct
corporate income tax rates established by reading the plain language of
the two statutes creates an ambiguous and irreconcilable impasse at face
value.
[8-10] When the words are either reasonably susceptible to different
meanings, conflict with the overall statutory purpose, or cause absurd
results, a court must look beyond literal statutory language. Int’l Tel. &
Tel. Corp. v. General Tel. & Elecs.Corp., 518 F.2d 913, 917 (9th Cir.
exceed $50,0000,
(B) 25 percent of so much of the taxable income as exceeds
$50,000 but does not exceed $75,000,
(C) 34 percent of so much of the taxable income as exceeds
$75,000 but does not
exceed $10,000,000, and
(D) 35 percent of so much of the taxable income as exceeds
$10,000,000.
In the case of a corporation which has taxable income in
excess of $100,000 for any taxable year, the amount of tax
determined under the preceding sentence for such taxable year
shall be increased by the lesser of (1) 5 percent of such excess,
or (ii) $11.750. In the case of a corporation which has taxable
income in excess of $15,000,000, the amount of the tax
determined under the foregoing provisions of this paragraph
shall be increased by an additional amount equal to the lesser
of (i) 3 percent of such excess, or (ii) $100,000.

1975). We analyze “the design of the statute as a whole and . . . its
object and policy.” Crandon v. United States, 494 U.S. 152, 158 (1990).
In this respect, it is “proper to examine sources other than [the statute’s]
language for evidence of legislative intent, and the legislative history of
the statute in question is, of course, relevant.” Kennedy Bros. v.
Property Tax Appeal Bd., 510 N.E.2d 1275, 1279 (Ill. App. Ct. 1987).3
[11] A.S.C.A. § 11.0403 only adopts the income tax and income tax
rules that are “not clearly inapplicable or incompatible with the intent of
[that] section.” It does “not purport to supplant federal tax laws, but it
merely creates an additional, territorial tax modeled on the federal tax.”
Alamoana Recipe Inc. v. Am. Samoa Gov’t, 24 A.S.R.2d 156, 157 (Trial
Div. 1993). This intent to create two different statutory schemes was
evident in the adoption of § 11.0533.
The Legislature stated in the preamble to the act that its purpose was
“[t]o restore tax revenues lost by American Samoa as a consequence of
the enactment by the United States Congress of the Tax Reform Act of
1986.” The Legislature found that the economic considerations that led
the U.S. Congress to reduce the corporate tax rates were “not applicable
across the board to American Samoa’s island economy.” Am. Samoa
P.L. No. 20-51 § 2(3). Such a reduction would “be expected to result in
a substantial loss of tax revenues and in substantial budgetary deficits.”
Id. at § 2(4). Therefore, “in order to secure the welfare of the Territory
and its inhabitants,” the Legislature found it desirable to retain higher tax
rates for “large corporate enterprises.” Id. at §§ 2(6), (7).4
Also compelling is the fact that the Legislature originally intended for §
11.0533 to last for one year, presumably to allow the government to
adjust their budget to the expected losses in revenue. As already noted,
the very next year the Legislature repealed the sunset provision. Am.
Samoa P.L. No. 21-8 § 1. The Legislature could not have known at the
3 Boral also argues that revenue-raising acts should be construed strictly
against the government and in favor of the taxpayer. See United States v.
Merriam, 263 U.S. 179, 187-88 (1923). While generally true, Boral’s
contention sweeps too broadly. This canon of construction applies “only
when there is doubt as to whether a statue or ordinance imposing or
increasing a tax applies to certain taxpayers.” Kennedy Bros., 510
N.E.2d at L279. At issue here is not whether the corporate tax applies to
Boral, but, rather, what rate Boral should pay. The rule of leniency is
not invoked.
4 The Legislature, also replaced all references in the SITA to the IRC of
1954 with references to the IRC of 1986. Am. Samoa P.L. No. 20-51 §
5.

time that the U.S. Congress would eventually readjust IRC § 11(b). We
glean from this that when our Legislature repealed the sunset provision
they intended to keep the higher corporate tax rate until they saw fit to
change it. When IRC § 11(b) was amended in 1993, it therefore became
a provision that was “incompatible” with the intent of A.S.C.A. §
11.0403 to create a “separate territorial income tax” as manifested
through § 11.0533.
We cannot accept the interpretation Boral urges that whenever the IRC is
amended, it automatically becomes the law of the territory. Citing
A.S.C.A. § 11.0403, Boral latches onto the phrase that “the income tax
and the income tax rules . . . enacted or adopted [under the IRC] shall be
deemed to impose a separate territorial tax.” (emphasis added). Boral’s
interpretation fails to look at the word “shall” in its proper context. As
we have noted, IRC provisions “shall” become the law of the territory
only when they are not “inapplicable or incompatible” with SITA.5
5 Boral argues that interpreting § 11.0533 in the manner we have, if
applied to other SITA sections, will lead to absurd results. It notes that
A.S.C.A. §§ 11.0504 and 11.0506 are incompatible with the current IRC
provisions that those sections modified and to therefore uphold them as
good law would create similar conflicts. For example, A.S.C.A. §
11.0504 amended IRC § 38, which applied to an “investment credit” for
depreciable property. That section was repealed in 1984 and replaced
with a general business credit. See U.S. Pub. L. No. 98-369, §§ 473(m)
(1) & 612 (E)(1). Boral argues that the only logical course is to find that
all these SITA provisions have been implicitly repealed by subsequently
enacted IRC amendments.
Because the interpretation of these sections is not an issue before us,
we are cautious to comment on Boral’s argument. We do note that we
have not merely accepted § 11.0533 at its face value. Rather, we have
reached our decision only after undertaking an exhaustive analysis, of all
the relevant statutory provisions and legislative history. Were we ever to
confront the seeming conflicts of § 11.0504 or § 11.0506, we would
apply the same mode of analysis to reach a result that would be
consistent with this court’s methodology and the Legislature’s intent.
We also note that in 2001, the Legislature froze the incorporation of
the IRC as of December 31, 2001. Am. Samoa P.L. No. 27-15
(approved by the Governor and, as emergency legislation, effective on
October 22, 2001). That amendment would surely affect our
interpretation of any conflicting statutes. But that aside, because the
Territory’s income tax laws are no longer subject to IRC amendments, it
would behoove the Legislature to clean up Title 11 and delete the
provisions, if any, that have been implicitly or explicitly repealed by
their actions.

We conclude that the corporate income tax rates in effect in American
Samoa are the tax rates set forth in A.S.C.A. § 11.0533. ASG is
therefore entitled to payment of the assessed deficiencies for Boral’s tax
years 1997, 1998, and 1999.
D. Penalties
Iaulualo also assessed an accuracy-related penalty of 20% against Boral
for “negligence or disregard of rules or regulations” and/or a “substantial
understatement of income tax.” SITA § 6662 (a)-(b). Iaulualo moved
for summary judgment on this issue. Boral did not make a cross-motion
for summary judgment on this point but instead opposed Iaulualo’s
motion claiming that a material issue of fact existed.
In support of its opposition to Iaulualo’s motion for summary judgment,
Boral submitted an affidavit from their vice president, Richard Young,
Jr., who stated that he was in charge of filing Boral’s tax returns for the
pertinent years. He stated that he engaged Daniel R. King (“King”) to
prepare and file Boral’s returns and that he relied on King’s advice
concerning which tax rate was applicable. Additionally, Boral submitted
an affidavit by King, a Certified Public Accountant, who acknowledged
that he prepared Boral’s tax returns for the pertinent years. Furthermore,
King himself relied on advice from an ASG employee and tax advisor to
the ASG Tax Office.
[11] We need not dwell on this point. We agree with Boral that a
material issue of fact remains. “While hiring an attorney or accountant
does not insulate the taxpayer from negligence penalties, good faith
reliance on professional advice concerning tax laws is a defense.”
Betson v. C.I.R. Serv., 802 F.2d 365, 372 (9th Cir. 1986) (citing United
States v. Boyle, 469 U.S. 241, 250-252 (1985)); see also SITA § 6664(c).
But see Stroud v. United States, 906 F. Supp. 990, 997 (D.S.C. 1995)
(plaintiffs failed to carry burden that IRS’s finding of negligence was
erroneous when nothing in the record offered evidence that they relied
on their attorney’s advice).
Clearly, Boral has alleged facts sufficient to survive a motion for
summary judgment on the assessed penalties for Boral’s tax years 1997,
1998, and 1999.6 ASG is therefore not entitled to a summary judgment
for payment of those assessed penalties.
6 Boral’s uncontroverted reliance of professional advice stated under
oath appears, however, sufficient to support summary judgment in
Boral’s favor on the penalties issue should it remain undisputed upon
Boral’s motion for summary judgment on this issue.
250
E. Interest
SITA §§ 6601, 6621 provides for payment of interest on underpayment
of income taxes owed. ASG is therefore also entitled to summary
judgment requiring payment of interest on assessed deficiencies, but not
on the assessed penalty amounts, for Boral’s tax years 1997, 1998, and
1999, in accordance with SITA §§ 6601, 6621.
F. Costs
SITA § 7430 provides for payment of reasonable litigation costs,
including reasonable court costs and attorney’s fees, to the prevailing
party. However, ASG is not a “prevailing party” by definition, SITA §
7430(c)(2)(A), and is therefore not entitled to recover reasonable
litigation costs on its favorable summary judgment for Boral’s tax years
1997, 1998, and 1999.
On the other hand, Boral is a “prevailing party” by the same definition.
It may therefore be entitled to recover reasonable litigation costs against
ASG on its favorable summary judgment for Boral’s tax years 1994 and
1996. See SITA § 7420(b)(2). We do not, however, have enough
information to make a proper determination as to the amount of those
costs owed. We leave it to Boral to file in a timely manner appropriate
supporting documentation of its reasonable litigation costs.
Order
1. ASG’s motion for summary judgment is granted as the motion
pertains to the income tax deficiencies assessed against Boral in the
amounts of $40,849.56 for its tax year 1997, $55,010.00 for its tax year
1998, and $52,599 for its tax year 1999, plus interest accrued to date and
continuing to accrue on each of the deficiency amounts, in accordance
with SITA §§ 6601, 6621, until its summary judgment is paid in full.
ASG’s summary judgment shall not include litigation costs.
2. ASG’s motion for summary judgment is denied as the motion pertains
to the penalties assessed against Boral for its tax years 1997, 1998, and
1999. Genuine issues of material facts are triable as to the penalties
assessed and interest on the penalties for Boral’s tax years 1997, 1998,
and 1999.
3. Boral’s motion for summary is granted as the motion pertains to the
income tax deficiencies, penalties, and interest assessed against Boral for
its tax years 1994 and 1996, and is denied, as the motion pertains to the
251
income tax deficiencies and interest assessed on each of the deficiency
amounts for its tax years 1997, 1998, and 1999.
4. Either party may request the court to adjudicate the amounts of its
respective entitlement to interest or reasonable litigation costs, including
reasonable attorney’s fees, by filing with the court and serving on the
opposing party one or more affidavits of its counsel or other suitable
person(s) setting forth the amounts claimed. If the other party contests
the amounts, the court will conduct an evidentiary or other appropriate
hearing and determine the issues.
It is so ordered.

 

BILL TEDRECK,v.POUFA NOGA and NIKO NOGA,a.k.a. FALANIKO NOGA


 

BILL TEDRECK, Plaintiff,
v.
POUFA NOGA and NIKO NOGA,
a.k.a. FALANIKO NOGA, Defendants.
High Court of American Samoa
Trial Division
CA No. 81-00
February 27, 2002

 

[1] The common law of contracts applies in American Samoa.
[2] The parol evidence rule is part of the common law of contracts and applies in American Samoa.
[3] Under the parol evidence rule, extrinsic evidence is inadmissible to contradict clear contract terms.
[4] A court should look to extrinsic evidence only if the contract is ambiguous on its face.
[5] A contract that provides that it may be canceled at any time still requires reasonable notice for its cancellation.
Before RICHMOND, Associate Justice, and LOGOAI, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendants, Marie A. Lafaele
OPINION AND ORDER
Facts
On January 11, 1999, plaintiff Bill Tedreck (“Tedreck”) entered into a loan agreement with defendant Poufa Noga (“Poufa”) for $8,000.00. The loan agreement was for purchase of equipment and travel and was part of an arrangement for the Penina Boyz Band to be the regular band at Tedreck’s night club, the Country Club, beginning on January 14, 1999. Poufa and her husband, defendant Niko Noga (“Niko”), organized the band. The agreement called for an interest free loan that was to be repaid through a $50.00 deduction from the band’s wages for each of the three weekly shows to be performed. The equipment purchased was to remain under Tedreck’s ownership and in his possession until the loan

was paid off.
On the same day, January 11, 1999, Tedreck and Poufa entered into another written agreement memorializing the employment terms of the Penina Boyz Band. This agreement contained, among other details, specific language providing that the nature of the employment was “at-will” and that either party could end the relationship at any time. The agreement also indirectly referenced the loan agreement.
Between January 11, 1999, and May 6, 1999, Poufa made repayments totaling $2,425.00 to Tedreck. On May 6, 1999, Tedreck and Poufa entered into a third agreement adding $1,250.00 to the amount owed in exchange for an advance of $600.00 and Poufa’s assumption of her parents’ debt of $650.00 owing to Tedreck. This third agreement called for Poufa to maintain loan payments under the terms of the original loan agreement. The agreement also stated that “should either party terminate the relationship or the country club be sold, all agreements remain binding.” Sometime in mid-June 1999, the ownership of the Country Club passed from Tedreck to the American Samoa Government (“ASG”). Poufa and Niko received a letter from ASG on June 18, 1999, terminating their services at the Country Club. Poufa continued to make payments to Tedreck until July 2, 1999 at which point the outstanding balance on the loan agreement was $5,975.00.
On July 12, 1999, the parties entered into an amended contract. Niko was an additional signatory to this agreement and became an obligor to repay the balance owed on the January 11 loan transaction. This agreement allowed Poufa and Niko to take control of, and responsibility for maintaining, the music equipment purchased with the money from the original loan agreement. In exchange, Poufa and Niko agreed to make payments on the remaining $5,975.00 loan at a rate of $100.00 or more a week until the loan was repaid. Tedreck retained ownership of the equipment until full payment of the loan.
Discussion
A. The Original Loan Agreement Contained No Guarantee of Continued Employment and The Parol Evidence Rule Prohibits Introduction of Any Evidence of an Oral Agreement Changing Those Terms.
[1-4] The common law of contracts applies in American Samoa. Dev. Bank of Am. Samoa v. Ilalio, 5 A.S.R.2d 1, 5 (Trial Div. 1987). The parol evidence rule is part of the common law of contracts and applies to matters before this court. Id. This rule seeks to, “preserve integrity of

written agreements by refusing to permit contracting parties to attempt to alter import of their contract through use of contemporaneous oral declarations.” BLACK’S LAW DICTIONARY 1117 (6th ed. 1990). As a general rule, extrinsic evidence is inadmissible to contradict clear contract terms. Audit Servs. v. Rolfson, 641 F.2d 757, 761 (9th Cir. 1981). The court should look to extrinsic evidence only if the contract is ambiguous on its face. United States v. Johnson, 43 F.3d 1308, 1310 (9th Cir. 1995); Pierce County Hotel Employees & Rest. Employees Health Trust v. Elks Lodge, B.P.O.E. No. 1450, 827 F.2d 1324, 1327 (9th Cir. 1987).
The two written agreements of January 11, 1999, are interwoven through their terms and should be read together. The loan was certainly part of the employment package. However, the employment agreement clearly creates an at-will employment situation. The employment term is unambiguous. Tedreck was not obligated to employ Poufa and Niko, and their band, for any specific length of time, and we will not examine parol evidence to find otherwise.
B. Poufa and Niko Were Entitled to Reasonable Notice of Cancellation of The Employment Contract.
[5] Poufa and Niko counterclaim for loss of expected income and costs incurred with the employment contract. This claim would only succeed if there was a contractual obligation that was breached by Tedreck. As discussed above, the contract was at-will and contained no continuing obligation on Tedreck. However, a contract that provides that it may be canceled “at any time” still requires reasonable notice for its cancellation. JOHN D. CALAMARI & JOSEPH M. PERILLO, THE LAW OF CONTRACTS § 4.12 (4th ed. 1998). In this matter, Poufa and Niko received constructive notice of the cancellation of the contract through receipt of ASG’s letter terminating their services. Poufa and Niko certainly knew, upon receiving ASG’s letter, that Tedreck was no longer the owner of the Country Club and that the new owner did not require their services. When looking at the totality of the circumstances surrounding the termination of the contract, including the preclusion of advanced notice because of the sale of the club, we find that the notice given was reasonable and that the counterclaim is without merit and should be dismissed.
C. The Obligations of Poufa and Niko are Controlled by the Agreement of July 12, 1999.
After the Country Club had been sold and after Poufa and Niko received notice that their band services were no longer needed, Poufa and Niko

entered into a new agreement with Tedreck on July 12, 1999, to pay off the debt incurred in the original loan agreement. Therefore, in addition to the employment contract being at-will, and in addition to that contract being terminated with reasonable notice, this new agreement, requiring them to repay $5,975.00 at a rate of at least $100.00 a week, created an obligation for repayment. While Poufa and Niko already owed this debt, the transferring of possession of the music equipment by Tedreck constituted consideration for the new agreement. Poufa and Niko made three $100.00 payments to Tedreck on the new agreement, but then defaulted on further payments. As such, Poufa and Niko are in default on their loan obligations to Tedreck in the principal amount of $5,675.00.
Order
The counterclaim filed by Poufa and Niko against Tedreck is dismissed. Poufa and Niko shall pay Tedreck the sum of $5,675.00 on his claim against them. As the loan was interest free, so will be the judgment until the date of this decision. Interest shall accrue at the judgment rate of 6% per annum beginning with the entry date of this judgment. Payment of this judgment in full transfers title of the musical equipment to Poufa and Niko.
It is so ordered.

 

AMITUANAI IOSEFA, v.SATAOA KALEUATI, TUIAGAMOA TAVAI TOMASI, and KERETA VAILI


 

AMITUANAI IOSEFA, Plaintiff,
v.
SATAOA KALEUATI, TUIAGAMOA TAVAI TOMASI, and
KERETA VAILI, Defendants.
High Court of American Samoa
Land and Titles Division

LT No 19-00
July 15, 2002

 

[1] Where plaintiff possessed actual knowledge of land claim, failed to
take any steps to counter said claim during pendency of earlier case and
in fact did not act until 13 years after court had ordered registration of
land in other party’s name, the doctrine of laches applied.
[2] Laches is the unreasonable delay in one party’s assertion of its rights
resulting in another party’s undue prejudice.
[3] Claimant to land ownership is charged with actual notice upon
receiving information that would put person of ordinary prudence to
inquiry that would lead to knowledge of adverse title.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and ATIULAGI, Associate Judge.
Counsel: For Plaintiff, Katopau T. Ainu`u
For Defendants, Marie A. Lafaele
OPINION AND ORDER
Plaintiff Amituanai Iosefa (“Amituanai”) brought this action to evict
defendants Sataoa Kaleuati (“Sataoa”), Tuiagamoa Tavai Tomasi
(“Tuiagamoa”), and Kereta Vaili (“Kereta”) from certain land. The
secretary of Samoan affairs held unsuccessful mediation hearings on the
dispute on August 9 and September 27, 2000, and issued a certificate of
irreconcilable dispute on September 28, 2000. Amituanai served a 30-
day eviction notice, dated October 4, 2000, on Tuiagamoa, Sataoa, and
Kereta, and on November 22, 2000, when they did not vacate the land,
he filed this action.
Discussion
Amituanai is the sa`o (head chief) of the Amituanai family of the Village
of Malaeloa, American Samoa. Tuiagamoa is the sa`o of the Tuiagamoa
family of the same village. Sataoa and Kereta are members of the
Tuiagamoa family.
The land at issue is approximately 4.7 acres in Malaeloa, American
Samoa. Kereta constructed a residence on the land in 1990 (“the Kereta
house”). Sataoa and his family presently reside in the Kereta house.
Amituanai claims that the Kereta house is on the Amituanai family’s
communal land named “Olovalu.” Tuiagamoa claims that the Kereta
house is on the Tuiagamoa family’s communal land named “Lefiso.”

A. The Holding of Tuileata v. Amituanai
In Tuileata v. Amituanai, 4 A.S.R.2d 168, 170 (Land & Titles Div.
1987), aff’d, 8 A.S.R.2d 173 (App. Div. 1988), this Court held that the
Amituanai family owned and could register approximately 36.62 acres of
“Olovalu” as the family’s communal land. The approximately 4.7 acres
at issue lie within the 36.32 acres of “Olovalu.” Complying with the trial
Court’s decision in Tuileata, the territorial registrar registered this
portion of “Olovalu” as the Amituanai family’s communal land on June
3, 1987. The boundaries of the registered portion are established by
Amituanai’s survey of November 16, 1985, presented in Tuileata, except
for a small area in the southeast corner not relevant to the present case.
Amituanai discovered that the Kereta house was erected within the
registered portion as a result of a resurvey in 1998.
None of the witnesses during the trial, including two professional
surveyors, contested the location in the field of either the survey of the
approximately 36.62 acres of “Olovalu” registered as the Amituanai
family’s communal land, or of the approximately 4.7 contested acres
within the registered land.
After hearing the testimony and receiving other evidence, the Court
inspected the land in the presence of Amituanai, Tuiagamoa, and their
respective counsel. Clearly, the Kereta house, or a substantial portion of
it, is situated within the registered 36.62 acre portion of the “Olovalu.”
Tuiagamoa has held the sa`o title of the Tuiagamoa family since 1978.
Significantly, Tuileata was initiated when Tuileata Mu Manumaleuga
(“Tuileata”) attempted to register another portion of “Olovalu” as the
Tuileata family’s communal land in 1984. The land Tuileata claimed
was located a considerable distance from the land Tuiagamoa now
claims. The 1984 registration offer was duly noticed, and Amituanai,
Tuiolemotu Fa`aopega (“Tuiolemotu”), and others, but not Tuiagamoa,
objected to the registration. The matter was eventually referred to this
Court for judicial resolution. The Court had several surveys, including
Amituanai’s survey now at issue, to consider. The Court held that the
Amituanai family owned all but a small portion of the land included in
Amituanai’s survey and authorized registration of the land owned as the
Amituanai family’s communal land. Amituanai’s registration, however,
was accomplished without following formal notice and other statutory
requirements.
B. Tuiagamoa’s Claims on Legal Issues

Tuiagamoa asserts that he was not party to Tuileata and is therefore not
bound by that decision as a matter of res judicata. We note at this point
that Malaeloa is divided into two distinct sub-villages. Amituanai
resides in one named Ituau. Tuiagamoa resides in the other named
Aitulagi. The Tuiolemotu title is also appurtenant to the Aitulagi subvillage.
The Tuiagamoa and Tuiolemotu families are related, though no
precise connections are in evidence. Tuiolemotu’s claim in Tuileata was
to land remote from Tuiagamoa’s present land claim. Moreover, in
Tuileata, Amituanai and Tuiolemotu claimed distinct, adjacent lands,
except for part of the same small area in Amituanai’s survey noted
above, which was not included in the Court’s registration authorization
because Amituanai, Tuiolemotu, and other claimants to this small area
asked the court to allow them to settle the boundaries in this area. In
essence, Amituanai and Tuiolemotu were not adversaries with each other
in Tuileata.
Tuiagamoa further maintains that he had no reason to respond to the
notice of Tuileata’s offer to register land remote from his family’s land
claim, and had neither actual nor constructive knowledge of Amituanai’s
land claim in 1984, unnoticed survey in 1985, and unnoticed registration
in 1987. Tuiagamoa argues that he is therefore not prevented from
pursuing his family’s land claim by any notice preclusion.
We agree with Tuiagamoa’s position on the res judicata issue but
disagree with his position on the notice issue.
C. The Res Judicata Issue
Tuiagamoa was not a party to Tuileata. Even though the Tuiagamoa and
Tuiolemotu families are apparently related, Tuiagamoa had no interest in
the land claimed by Tuiolemotu. The connection between the two
families does not constitute privity for res judicata purposes. The
Tuileata decision constitutes neither issue nor party privity preclusion to
Tuiagamoa’s land claim in this case.
D. The Title Registration Notice Issue
Amituanai’s title registration of 32.62 acres of “O1ovalu” in 1987, made
pursuant to judicial authorization, is conclusive as between Amituanai,
on one hand, and Tuileata, Tuiolemotu and other parties to Tuileata, on
the other hand. Tuileata offered to register a large portion of “Olovalu”
in 1984. The offer was processed, in compliance with the notice and
other statutory requirements, but the court’s decision in Tuileata went
largely against him. Tuileata’s offer to register, however, could not
adversely effect Tuiagamoa’s claim to land remotely located from the

land claimed by Tuileata.
Amituanai’s 1985 survey and 1987 judicially authorized registration of
most of his surveyed land were done without compliance to the notice
and other prescribed statutory procedures with respect to non-parties to
Tuileata. Therefore, Tuiagamoa is not precluded, on the basis of
constructive notice of Amituanai’s registration, from claiming that the
Tuiagamoa family is the true owner of the land occupied by the Vaili
house. See Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles
Div. 1988).
Tuiagamoa’s claim that he was without actual knowledge of Amituanai’s
survey or title registration, however, borders on the incredible. Sataoa
has cultivated areas within the land surveyed by Amituanai for many
years, first alongside of his parents beginning in 1962, and then in his
own right beginning in 1968 after his marriage to the daughter of
Tuiagamoa’s predecessor to the sa`o title. As a perennial planter in the
area, Sataoa must have known about the survey that Amituanai had made
of the portion of “Olovalu” now registered as the Amituanai family’s
communal land and Tuileata while that case was pending. As a loyal
member of the Tuiagamoa family, providing tautua (traditional service)
to the sa`o of the family, Sataoa would have informed Tuiagamoa of
Amituanai’s survey and the Tuileata judicial proceedings.
[1] Tuiagamoa must have known about the survey and the Tuileata
judicial proceedings, at least from Sataoa as his informant, and most
likely from other sources as well. Involving the families of several
Malaeloa matai, the Tuileata case would have been common knowledge
in the village while the case was ongoing. Tuiagamoa failed in his duty
to timely investigate the impact of the Tuileata case on his perception of
the Tuiagamoa family’s communal land interests. He did not take any
steps to counter Amituanai’s claim during the Tuileata proceedings,
which were commenced in 1984, approximately 16 years before the
current action was filed, and were not concluded until 1987, about three
years later. Despite his inaction, Tuiagamoa more than likely knew at
the time of the Tuileata decision, and we find he did know, that the
Tuileata court authorized Amituanai to register the surveyed 32.62 acres
as the Amituanai family’s communal land and that the territorial registrar
then complied with Amituanai’s request to register this land in this
manner. Tuiagamoa also did not take any steps to invalidate the
registration until he was called upon to defend this action some 13 years
later. A classic example of laches is presented.
[2-3] Laches is unreasonable delay of one party’s assertion of rights
resulting in the other party’s undue prejudice. Siofele v. Shimasaki, 9

A.S.R.2d 3, 14-15 (Trial Div. 1988); see also Simmons Creek Coal Co.
v. Duran, 142 U.S. 417 (1892). A claimant to land ownership is charged
with actual notice upon receiving information that would put a person of
ordinary prudence to an inquiry that would lead to knowledge of adverse
title. See Faleatua v. Tauiliili, 19 A.S.R.2d 122, 123-24 (Land & Titles
Div. 1990).
Tuiagamoa had actual knowledge of Amituanai’s claim. He did not
exert his own claim for a time period of at least 13 years and as much as
16 years. This time frame constituted unreasonable delay under the
circumstances. The delay injured Amituanai by forcing multiple
litigation of the same issue, as well as leading to Amituanai’s reliance on
Tuiagamoa’s non-assertion of alleged rights.
Based on Tuiagamoa’s actual knowledge, the registration, pursuant to
the Court’s decision in Tuileata, of approximately 32.92 acres, including
the approximately 4.7 acres at issue, as the Amituanai family’s
communal land is also valid as against Tuiagamoa and his family.
Order
1. As between Amituanai and all other Amituanai family members of the
Amituanai, on one hand, and Tuiagamoa, Sataoa, Kereta, and all other
Tuiagamoa family members, on the other hand, the registration on June
3, 1987, of approximately 32.62 acres of “Olovalu,” encompassing the
approximately 4.7 acres at issue, as the Amituanai family’s communal
land is valid and effective.
2. Tuiagamoa, Sataoa, Kereta, and all other Tuiagamoa family members
are evicted from the approximately 4.7 acres.
3. Tuiagamoa, Sataoa, and Kereta shall remove the Kereta house from
the 4.7 acres within 90 days after the entry date of this order. The Kereta
house shall become the property of the Amituanai family if it is not
removed from the 4.7 acres within the 90-day period.
4. Tuiagamoa, Sataoa, Kereta, and all other Tuiagamoa family members
shall cease farming any portion of the 4.7 acres after 90 days from the
entry date of this order, unless Amituanai permits them to continue this
activity. During the 90-day period, they may harvest their agricultural
produce. After the 90-day period, the agricultural crops and trees
planted by them within the 4.7 acres shall become the property of the
Amituanai family.
It is so ordered.

 

AMERICAN SAMOA GOVERNMENT,v.ZHI GUO WANG


AMERICAN SAMOA GOVERNMENT, Plaintiff
v.
ZHI GUO WANG, Defendant

High Court of American Samoa
Trial Division
CR No. 21-02
June 20, 2002

 

[1] Under the Rules of Criminal Procedure, an information is required to
set forth a plain, concise, and definite written statement of the essential
facts constituting the offense charged.
[2] An information is to be measured by two criteria: 1) whether the facts
stated show the essential elements of the offense charged so as to enable
a defendant to prepare his or her defense; and 2) whether the facts
alleged are sufficient to ensure against double jeopardy in a second
prosecution.
[3] A continuing offense may be charged without specifying individual
acts as a basis for criminal conduct.
[4] The offenses of Promoting Prostitution and Abuse of Child, when
defendant alleged to have encouraged prostitution, are continuing course
of conduct offenses that can be charged without specifying individual
acts.
[5] Where defendant alleged to committed offenses of Promoting
Prostitution and Abuse of Child by encouraging child to engage in
prostitution, jury did not need to agree that victims had committed a
particular act of prostitution in order to convict.
[6] An information using only statutory language is permissible as long
as the statute sets forth fully, directly, and expressly, without any
uncertainty or ambiguity, all the elements necessary to constitute the
offense intended to be punished.
[7] A criminal defendant is expected to look at all of the sources
provided by the government and not simply at the information formally
charging him with the crime.
[8] An individual can be guilty of the offense of “abuse of a child” if he
or she commits one of three categories of offenses, stated in 42 A.S.C.A.
§ 45.2001(a)(1)(B), with regards to a child—sex crimes, prostitution, or
pornography.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
MAMEA, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General
For Defendant, William H. Reardon
220
ORDER DENYING MOTION TO DISMISS
The defendant Wang Zhi Guo Wang (“Wang”) is charged with one count
of Promoting Prostitution in the Second Degree, and two counts of
Abuse of a Child. Defendant moves to dismiss the information on the
ground of vagueness.
[1] Recycling word for word, except for minor factual adjustments, a
Memorandum of Points and Authorities previously filed on June 22,
2000, by the Public Defender’s office in American Samoa Government v.
Faumuina, 4 A.S.R.3d 196 (Trial Div. 2000), Wang argues that the
information fails to conform with the specificity requirements of
T.C.R.Cr.P. Rule 7(c)(1), which requires that “the information shall be a
plain, concise and definite written statement of the essential facts
constituting the offense charged.” He thus challenges the sufficiency of
the information contending a violation of his right to be informed of the
“nature and cause of the accusation” against him under the Sixth
Amendment of the United States Constitution, and under Article I,
Section 6 of the Revised Constitution of American Samoa.
Discussion
I.
[2] The Supreme Court in Russell v. United States, 369 U.S. 749, 763
(1962), set out two criteria by which the sufficiency of the information is
to be measured: 1) whether the facts stated show the essential elements
of the offense charged to enable him to prepare his defense; and 2)
whether the facts alleged are sufficient to ensure against double jeopardy
in a second prosecution.
The information filed in Faumuina charged three separate criminal
offenses, sexual abuse in the first degree, assault in the second degree,
and assault in the third degree. 4 A.S.R.3d at 196. The Court found the
information wanting in “essential facts” sufficient to notify defendant of
the charges filed against him as required by T.C.R.Cr.P. Rule 7. See 4
A.S.R.3d at 197-98. The information there filed not only failed to name
the victims in all three counts, but it also failed to appraise the defendant
of the particular acts for which he was charged. Id. at 197. Instead, the
information simply tracked the generic language employed by the statute
to describe each offense, while at the same time, the two more serious
counts merely alluded to a range of dates, encompassing the span of a
month, within which the offending conduct was said to have been

committed. Id. Under these circumstances, the Court was concerned
with the defendant’s potential exposure to multiple prosecution
possibilities for the same crime on different theories. Id. The Faumuina
Court, did not, however, order dismissal but required the prosecution to
file a bill of particulars. Id. at 198.
[3-5] In contrast, the double jeopardy concerns of Faumuina are not
evident here. The subject offenses before the Faumuina Court were all
single act specific crimes, whereas the crimes charged in the matter at
bar may be based on a continuing course of conduct, and not merely on
any one event. “A continuing offense may be charged without
specifying individual acts as a basis for criminal conduct.” State v.
Elliot, 785 P.2d 440, 444 (Wash. 1990). In Count 1, the offense,
promoting or advancing prostitution, addresses a person, acting other
than as a prostitute, doing something that promotes or aids others to
engage in prostitution. In other words, it is the result of a continuing
course of conduct advancing prostitution and not any particular instance
of prostitution itself that is key. Similarly, in Counts 2 and 3, the charges
of Abuse of Child relate to a continuing course of conduct--permitting or
encouraging a child to engage in prostitution, and not any particular
occasion of prostitution. The subject enactments speak to a continuing
offense that can be charged without specifying individual acts. In both
situations, promoting
prostitution and abuse of child, the jury does not need to agree that the
victims had committed a particular act of prostitution in order to convict.
[6] An information using only statutory language is quite permissible as
long as the statute sets forth “fully, directly and expressly, without any
uncertainty or ambiguity, all the elements necessary to constitute the
offence intended to be punished.” Hamling v. United States, 418 U.S.
87, 117-18 (1974). There is a key difference between a defendant’s
constitutional right to know what offenses he is charged with and his
desire to know the evidentiary details of the prosecution’s case. United
States v. Williams, 679 F.2d 504, 509 (9th Cir. 1982).
[7] In our view, the information sufficiently states the elements of the
offenses, fairly informing the defendant of the charges against him so as
to enable him to plead former jeopardy in a subsequent prosecution.
Moreover, the Affidavit in Support of the Criminal Complaint, filed
March 3, 2002, more than adequately appraises Wang of some of the
underlying facts predicating the charges against him so as to adequately
facilitate the preparation of his defense and avoid prejudicial surprise at
trial. Wang is expected to look at all of the sources provided by the
government and not simply at the information formally charging him

with the crime. Am. Samoa Gov’t v. Wilson, 24 A.S.R.2d 26, 29 (Trial
Div. 1993) (citing C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE §
129, at 437 (1982)).
II.
Wang next claims that even if sufficient facts are alleged for Counts 2 &
3, no violation of the Child Abuse Law is alleged. Wang submits that
under A.S.C.A. § 45.2001(a)(1)(B), when prostitution is the conduct at
issue, the victim must be “subject to the sexual offenses contained in
46.3601 to 46.3617 and 46.3802” in order for Child Abuse to have
occurred. Wang then contends that since the offenses delineated in the
above statute, A.S.C.A. 46.3601 to 46.3617 and 46.3802, all require the
victim to be younger than 17 years of age, the victims in this case being
17 years of age, the sex was consensual and not within the statute.
This is a misreading of the statute by the defendant. A.S.C.A. §
45.2001(a)(1)(B) reads as follows:
(a)(1) “Abuse” or “child abuse or neglect” means an act or
omission in one of the following categories which seriously
threatens the health or welfare of a child:
. . .
(B) when a child is subject to the sexual offenses
contained in 46.3601 to 46.3617 and 46.3802, or is
allowed, permitted, or encouraged by the child’s parents,
legal guardian, custodian, or any other person responsible
for the child’s health and welfare, to engage in
prostitution or be the subject of obscene or pornographic
photographing, filming, or depicting;
. . .
[8] The statutory language of A.S.C.A. § 45.2001(a)(1)(B), is presented
in the disjunctive, dividing the provision into three sections; sex crimes,
prostitution and pornography. As the charges in this matter relate to
prostitution, and not sex crimes, the age provisions of A.S.C.A. 46.3601
to 46.3617 and 46.3802 are irrelevant. What is required is that the
victims be “a person under 18 years of age” and therefore come within
the definition of a “child” under the statute. A.S.C.A. § 45.0103(3). The
facts as alleged in the information put the victims within the definition of
a child, and therefore within A.S.C.A. § 46.3811.
For reasons given, the motion to dismiss is denied.
It is so ordered.

 

AMERICAN SAMOA GOVERNMENT,v.VAÆA KITIONA


 

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
VA’A KITIONA, Defendant.
High Court of American Samoa
Trial Division
CR No. 17-02
July 28, 2002


4 Counsel Miller attempted to diffuse his predicament by subsequently
stating on the record that the contact with Roberts that he was referencing
had in actuality taken place in December 1999, a month before he filed his
client’s complaint. Roberts, on the other hand, testified that he could not
recollect having such contact with Miller back in December 1999, as it was
some time ago, but he definitely remembered his being contacted by
counsel Miller “last week.”
Astonishingly, Miller also submitted that witness Roberts was not a client
of counsel Hall’s. Counsel Miller would do well to revisit or appraise
himself of A.B.A. Model Rule of Professional Conduct (1983), Rule 4.4,
Comment (“In the case of an organization, the Rule prohibits
communications by a lawyer for one party concerning the matter in
representation with . . . any person whose act or omission in connection
with that matter may be imputed to the organization for purposes of civil . .
. liability.”). Miller’s whole purpose in asking Roberts about their contact
was to get Roberts to admit knowledge as to the policyholder’s pre-existing
medical condition prior to issuance of the life insurance policy at issue.

 

[1] The exclusionary rule is not the proper remedy for a failure to warn a
defendant of his rights under the Vienna Convention.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
MAMEA, Associate Judge.
Counsel: For Plaintiff, Marcellus T. Uiagalelei, Assistant Attorney
General
For Defendant, Curtis Sherwood, Assistant Public Defender
ORDER DENYING MOTION TO SUPPRESS
Defendant moves to suppress a written statement that he had given to the
police on February 6, 2002. Both sides submitted briefs. The Court
heard evidence and oral argument on this motion on July 25, 2002.
Discussion
A. Involuntary Confession
Defendant argues, even though he was read his Miranda rights in
Samoan (his native language) and signed a form indicating his waiver of
those rights that he was unaware of his rights and the waiver was not
given voluntarily. Two police officers testified that defendant was held
only as long as necessary to take his statement, that defendant was not
prevented from using the bathroom or denied water, and that no
promises or deals were made with defendant.
Defendant, without producing any supporting evidence, requests the
Court to imply that he was held by the police for an inordinate period of
time before giving his statement, that he was not offered water or
bathroom breaks, and that the officers had enticed him to give a
statement on a promise to let him go home if he gave a statement.
Because of these alleged violations of his rights, defendant has moved

the Court to exclude his statement.
After listening to the testimony and considering the submitted briefs, the
Court is satisfied that defendant did in fact waive his rights and that he
did so without any form of coercion on the part of the officers. We find
no reason to doubt the testimony of the officers and no contradictory
evidence was offered. Although defense counsel elicited testimony from
the officers on cross examination that defendant appeared nervous when
he gave his written statement, nervousness per se does not necessarily
translate into coercion on the part of the officers. The sort of unnerving
factors that would have at the time prayed on the defendant's mind,
includes his being turned in by an eye witness--the defendant's travelling
companion apparently troubled with pangs of conscience--and his
prospects, therefore, of facing serious criminal consequences on a hit and
run scenario involving the death of another.
In proper perspective, the exclusionary rule developed as a prophylactic
measure against police excessiveness. Am. Samoa Gov’t v. Afamasaga,
17 A.S.R.2d 145, 148 (Trial Div. 1990). Here, we find no evidence of
police excessiveness.
B. Vienna Convention
Defendant also argues that, as he is a citizen of (Independent) Samoa, the
officers were obligated to read him his rights under Article 36 of the
Vienna Convention, including the right to speak with his nation's consul
before being questioned.
[1] This Court dealt with this issue in Am. Samoa Gov’t v. Fonoti. CR
No. 99-00, ORDER DENYING MOTION TO SUPPRESS, slip op. (April 23,
2001). There, we chose to apply the decided law of the 9th and 7th
Circuits in holding that the exclusionary rule is not the proper remedy for
a failure to warn a defendant of his rights under the Vienna Convention.
See Id.; United States v. Lombera-Camorlina, 206 F.3d 882 (9th Cir.,
2000); United States v. Lawal, No. 001104v2, slip.op. (7th Cir., Nov. 1,
2000). Save for the public defender's continuing position of
disagreement, we have been provided no reason, nor do we see any, to
reverse that decision today.
Order
Defendant waived his rights after being properly Mirandized and has
failed to show that he was coerced by the police in either waiving his
rights or in giving his written statement. The law is well established that
failure to read a witness his rights under the Vienna Convention is not
230
properly remedied by the exclusionary rule. Accordingly, defendant's
motion to suppress is hereby denied.
It is so ordered.

 

AMERICAN SAMOA GOVERNMENT,v.SUI SAPE TAVETE


AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
SUI SAPE TAVETE, Defendant.
High Court of American Samoa
Trial Division
CR No. 14-02
May 8, 2002

 

[1] Under the Juvenile Justice Act, Title 45, A.S.C.A., statements made
by a child during interrogation are not admissible unless, "a parent,
guardian, or legal custodian of the child was present at the interrogation,"
and they were made aware of the child's rights. A.S.C.A. ' 45.0204 (c).
[2] Proceedings under the Juvenile Justice Act, are not criminal

proceedings but juvenile delinquency proceedings, and a "delinquent
child" is defined by ' 45.0103(9)(A) as "any child 10 years or age or
older, who . . . has violated federal, state, or territorial law."
[3] The Juvenile Justice Act does not change the common law
applicable to children who allegedly commit crimes of violence.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
MAMEA, Associate Judge.
Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General
For Defendant, Bentley C. Adams, III, Assistant Public
Defender
ORDER DENYING MOTIONS TO SUPPRESS STATEMENTS AND
FOR MENTAL EXAMINATION
We deny the motion to suppress statements made by the defendant and
the motion seeking a mental examination of the defendant, both of which
were submitted by the defendant, Sui Sape Tavete, on March 11, 2002,
and heard by this court on March 28, 2002. Defendant and both counsel
were present at the hearing.
[1-2] We first deal with defendant's motion to suppress his statements
made to the police during interrogation. Defendant is being charged
with 1st Degree Burglary, 1st Degree Assault, and attempted 1st degree
Robbery. He was seventeen years old at the time of his arrest for these
crimes. Defendant was apprised of his rights Miranda rights which he
voluntarily waived before making his statements to the police during
interrogation. Under a provision of the Juvenile Justice Act, Title 45,
A.S.C.A., statements made by a child during interrogation are not
admissible unless, "a parent, guardian, or legal custodian of the child was
present at the interrogation," and they were made aware of the child's
rights. A.S.C.A. ' 45.0204 (c). However, in this matter the Attorney
General's Office not has charged defendant as a juvenile under the
Juvenile Justice Act, but as an "adult" under the Criminal Justice Act,
Title 46 A.S.C.A. This action is within the Attorney General's unfettered
prosecutorial discretion, preserved under A.S.C.A. ' 45.0115(c)(2).
American Samoa Government v. Julio, 9 A.S.R.2d 128 (1988).
Proceedings under the Juvenile Justice Act, are not criminal proceedings
but juvenile delinquency proceedings, see A.S.C.A. ' 45.0115(a)(1), and
a "delinquent child" is defined by ' 45.0103(9)(A) as "any child 10 years
or age or older, who . . . has violated federal, state, or territorial law."
However, the Juvenile Justice Act goes on to make clear that the term
"delinquent child" did "not apply to children 14 years of age or older

who allegedly commit crimes of violence." ' 45.0103(9)(B).
[3] Therefore, we conclude that at least in terms of children who
allegedly commit crimes of violence, the Juvenile Justice Act does not
change the common law applicable in these matters. Therefore, the
defendant's motion does not present a question of law to the court and we
find that it is not dispositive on this matter.
A juvenile's waiver of Miranda rights, like an adult's waiver of Miranda
rights, is reviewed on the totality of the circumstances, including the
background, experience, and conduct of the defendant. United States v.
Doe, 155 F.3d 1070, 1073 (9th Cir.1998). Lack of parental notification
is one factor to consider. Id. While an important factor to consider, it is
only one of the many factors the court would examine if presented with
the issue. However, the defendant did not present this issue to us and we
decline to examine it at this time.
Next we consider the defendant's motion seeking a mental examination
to determine his competency to stand trial for the offenses charged.
Defendant has not put forth sufficient evidence for the court to fully
consider whether a mental examination would be desirable in this
instance. Defendant's counsel's concerns about his client and some brief
reference to familial trauma do not rise to a level that would compel this
court to act. To the contrary, statute dictates that the defendant is
presumed mentally competent. A.S.C.A. ' 46.1306. Furthermore,
competency to stand trial goes to the issue of whether a defendant has a
"sufficient and present ability to consult with his lawyer with a
reasonable degree of rational understanding or a rational as well as
factual understanding of the proceedings against him." American Samoa
Government v. Taylor, 18 A.S.R.2d 42, 44. (Trial Div. 1990). We have
had nothing to suggest that the defendant is presently unable to assist
counsel in the defense.
Order
Because we find the defendant's arguments lacking in merit, we deny the
motion to suppress defendant's statements and the motion for mental
examination.
It is so ordered.

 

AMERICAN SAMOA GOVERNMENT,v.MATAIO VAAI


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
MATAIO VAAI, Defendant.
High Court of American Samoa
Trial Division
CR No. 12-02
September 6, 2002

 

[1] Generally speaking, every person is considered competent to be a
witness.
[2] Any given witness is presumed competent to testify. However, the
presumption is a rebuttable one.
[3] In determining whether a child is competent to testify, there is no
precise cut-off age. Instead, the court determines whether the child has:
(1) an understanding of the obligation to speak the truth on the witness
stand; (2) the mental capacity at the time of the occurrence concerning
which he is to testify to receive an accurate impression of it; (3) a
memory sufficient to retain an independent recollection of the
occurrence; (4) the capacity to express in words his memory of the
occurrence; and (5) the capacity to understand simple questions about it.
[4] The court must determine the competency of witnesses, and such
decision will not be disturbed unless it is clear the judge abused his or
her discretion.

[5] Inconsistencies in a child’s testimony do not speak to the child’s
competency but, instead, go to her credibility.
[6] Matters of credibility are within the exclusive function of the jury.
[7] A lesser-included offense is one whose elements are a subset of the
charged offense.
[8] When there are overlapping statutes providing different penalties no
lesser offense instruction need be given.
[9] When some statutory provisions expressly mention a requirement,
the omission of that requirement from other statutory provisions implies
that the legislature intended both the inclusion of the requirement and the
exclusion of the requirement.
[10] The language of American Samoa’s penal statutes evidences an
intent not to punish “sexual contact” with a child under 12 as severely as
“deviate sexual intercourse” or “sexual intercourse” with a child under
12.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and MAMEA, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General
For Defendant, Curtis E. Sherwood and Bentley C. Adams III,
Assistant Public Defenders
ORDER DENYING MOTION FOR
RECONSIDERATION OR NEW TRIAL

On May 14, 2002, the jury in this action convicted defendant Mataio
Vaai (“Vaai”) of three counts of child molesting, in violation of
A.S.C.A. § 46.3618, each a class A felony punishable by a minimum
term of imprisonment of 10 years, without probation or parole. On June
14, 2002, the Court adjudicated Vaai guilty of the three offenses and
sentenced him to 10 years’ imprisonment on each count, the counts 2 and
3 terms of imprisonment to be served concurrently with each other and
consecutively to the count 1 term of imprisonment.
Vaai moved for reconsideration or new trial on June 24, 2002. The
Court heard the motion on July 18, 2002. Vaai was present with
counsel. Plaintiff American Samoa Government’s counsel was also
present. The Court, having considered counsel’s argument, will deny the
motion, with the following comments on two of the issues raised by the

motion.
Discussion
A. Admissibility of the Child Witness Testimony
The victim was eight years of age when she testified at the trial about
events that occurred when she was five years of age and again when she
was seven. Vaai now claims that the victim was incompetent because of
certain flaws in her testimony.
[1-6] Generally, “[e]very person is competent to be a witness.”
T.C.R.Ev. 601. This rule raises a presumption of competence that,
nonetheless, can be rebutted. Vaai tried doing so at trial, and we held a
voir dire to determine whether the child could testify.1 When
determining a child’s competency, there is no precise cut-off age.
Instead, we determine whether the child has:
(1) an understanding of the obligation to speak the truth on the
witness stand; (2) the mental capacity at the time of the
occurrence concerning which he is to testify to receive an
accurate impression of it; (3) a memory sufficient to retain an
independent recollection of the occurrence; (4) the capacity to
express in words his memory of the occurrence; and (5) the
capacity to understand simple questions about it.
Jenkins v. Snohomish County Pub. Util., 713 P.2d 79, 81 (Wash. 1986).
This determination is a matter of law, for the trial judge, and will not be
disturbed unless it is clear the judge abused his discretion. See State v.
Stewart, 641 So.2d 1086, 1089 (La. Ct. App. 1994). After reviewing the
record, we affirm that our ruling was proper. Inconsistencies in the
child’s testimony do not speak to the child’s competency but, instead, go
to her credibility. See Feleke v. State, 620 A.2d 222, 226 (Del. 1993);
Hesler v. State, 431 S.E.2d 139, 140 (Ga. Ct. App. 1993); People v. Dist.
Court, 791 P.2d 682, 685 (Colo. 1990) (under state statute, child need
not be able to understand what it means to take an oath and tell the truth
to be declared competent). Matters of credibility, of course, are within
the exclusive function of the jury. Am. Samoa Gov’t v. Tauala, 25
A.S.R.2d 179, 180 (Trial Div. 1994).
1 A second child witness, age nine, testified during the trial. Vaai is not
challenging this witness’ competency in his present motion. However,
we note that we followed the same voir dire procedure and found this
child was also competent to testify under the applicable standards.

B. Jury Instruction on Sexual Abuse in the First Degree
At trial, Vaai requested an instruction on sexual abuse in the first degree
as a lesser-included offense of child molesting. We refused to give such
an instruction. Vaai now claims that it was reversible error.2 Vaai’s
contention, however, hinges on his argument that we should infer that
the crime of child molestation implicitly requires an intent to gratify
sexual desire.3 That language, in turn, comes from the statutory
definition of “sexual contact.”4 Sexual abuse in the first and second
degree are the only offenses to date that include sexual contact as an
element.5
2 Indeed, a “Court has no discretion to refuse to give a lesser-included
instruction if the evidence warrants the instruction and the defendant
requests it.” United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993).
See also A.S.C.A. § 46.3108.
3 That language is not found within the statute, A.S.C.A. § 46.3618,
which reads:
46.3618 Child molesting
(a) Notwithstanding any other provision of this chapter, a person
commits the crime of child molesting if he engages in sexual
intercourse or deviate sexual intercourse with a minor of the age of
12 years or under.
4 The statute, A.S.C.A. § 46.4601, reads:
46.4601 Definitions:
(b) “Sexual contact” means any touching of the genitals or
anus of any person, or the breast of any female person, or any
such touching through the clothing, for the purpose of
arousing or gratifying sexual desire of any person.
(emphasis added).
5 The statutes, A.S.C.A. §§ 46.3615 and 46.2616, read:
§ 46.3615 Sexual abuse in the first degree.
(a) A person commits the crime of sexual abuse in the first
degree if:
(1) he subjects another person to whom he is not married
to sexual contact without that person’s consent or by the
use of forcible compulsion; or
(2) he subjects another person who is 14 years of age or
less to sexual contact.
§ 46.3616 Sexual Abuse in the second degree.
(a) A person commits the crime of sexual abuse in the second
degree if he subjects another person to whom he is not married
to sexual contact without that person’s consent.
(emphasis added).

[7] Vaai’s argument is illogical. Were we to infer such an intent, sexual
abuse in the first degree would still not be a lesser-included offense of
child molestation. A lesser-included offense is one whose elements are a
subset of the charged offense. See Schmuck v. United States, 489 U.S.
705, 716 (1989); A.S.C.A. § 46.3108. Under Vaai’s argument, sexual
abuse in the first degree would not be a subset but, rather, it would be an
independent offense with its own penalty provision. Granted, there
would be substantial overlap between the two statutes; but we have
upheld such overlap in the past. See generally Am. Samoa Gov’t v.
Whitney, 20 A.S.R.2d 29 (Trial Div. 1991) (finding that the sodomy,
A.S.C.A. § 46.3611, and deviate sexual assault, A.S.C.A. § 46.3612,
statutes did not violate due process even though they both punished
identical conduct); Am. Samoa Gov’t v. Macomber, 8 A.S.R.2d 182
(Trial Div. 1988); see also United States v. Stanley, 928 F.2d 575, 581
(2d Cir. 1991) (government can choose between different statutory
penalty schemes applicable to the same conduct).
[8] In such a situation, when “there are overlapping statutes providing
different penalties . . . no lesser offense instruction need be given.” 26
JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 631.10(4)(c)
(3rd ed. 1999) (citing Sansone v. United States, 380 U.S. 343, 351-353
(1965)); see also Schmuck, 489 U.S. at 716 n.8 (lesser included offense
instruction only given if facts of case allow jury to find defendant guilty
of lesser included offense but acquit him of the greater). “To hold
otherwise would invite the jury to pick between the two offenses in order
to determine the punishment to be imposed, a duty traditionally left to
the judge.” 3 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND
PROCEDURE § 515 (1982).
[9-10] Nonetheless, in any event, we will not infer such an intent
requirement in the face of legislative clarity. See Whitney, 20 A.S.R.2d
at 32 (no ambiguity in statutory language of very similarly worded
criminal provisions). “When some statutory provisions expressly
mention a requirement, the omission of that requirement from other
statutory provisions implies that Congress intended both the inclusion of
the requirement and the exclusion of the requirement.” West Coast
Truck Lines v. Arcata Comm, Recycling, 846 F.2d 1239, 1244 (9th Cir.
1988) (emphasis in original). Clearly the Legislature intended the
exclusion of “sexual contact” as an element of child molesting as
evidenced by their inclusion of “sexual contact” as an element of other
offenses. See Am. Samoa Gov’t v. Masaniai, 4 A.S.R.2d 156, 159 (Trial
Div. 1989) (refusing to infer intent to sexually gratify into sodomy
statute, A.S.C.A. § 46.3611). The language also reflects a rational
decision to not punish “sexual contact” of a child under 12 as severely as
“deviate sexual intercourse” or “sexual intercourse” with a child under

12.
Additionally, we find no merit to Vaai’s argument that without the
element of “sexual contact,” the child molestation statute is
unconstitutionally broad. Vaai argues that it will lead to prosecutions of
parents who, for any reason, touch the genitals of their child while
exercising their constitutionally protected right of caring for that child.
This rhetoric sweeps too broadly. Child molesting is limited to
situations where an adult engages in “deviate sexual intercourse” or
“sexual intercourse” with a minor of 12 years or under. Deviate sexual
intercourse is defined as any “sexual act involving the genitals of one
person and the mouth, tongue, hand, or anus of another person.”
A.S.C.A, § 46.3601 (emphasis added). Sexual Intercourse is defined as
“any penetration, however slight, of the female sex organ by the male
sex organ, whether or not an emission results.” Id. Clearly these
definitions do not apply, for example, when a parent changes his child’s
diaper or when a doctor performs a gynecological examination. See
Masaniai, 4 A.S.R.2d at 159. Indeed, they would never apply to
ordinary, everyday parent/child or doctor/child interactions.
The motion for reconsideration or new trial is denied.
It is so ordered.

 

AMERICAN SAMOA GOVERNMENT,v.KIFI TOILOLO and FA`AFO`I SOI


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
KIFI TOILOLO and FA`AFO`I SOI, Defendants,
High Court of American Samoa
Trial Division
CR No. 92-01
CR No. 93-01
March 15, 2002

 

[1] If a criminal defendant has had sufficient time to prepare for the
amended information such that he is not considered to be taken by surprise, he is not prejudiced and the amendment is permitted.
[2] A key to determining whether a proposed change in an information will result in prejudice to the criminal defendant is consistency in the underlying factual accusations.
[3] Where original information included factual allegations of all the elements of the additional charge in amended information, where defendants were provided three months to prepare for trial, and where defendants failed to show prejudice from new charge, aside from greater probability of conviction, amendment to information was proper.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Asst. Attorney General
For Defendant, Bentley C. Adams, III, Asst. Public Defender
ORDER GRANTING PLAINTIFF’S
MOTION TO AMEND COMPLAINT
Defendants have been charged with Murder in the First Degree according to the Information filed by Plaintiff on November 30, 2001. On February 1, 2002, Plaintiff moved to amend the information, adding an alternative charge of Assault in the First Degree. Defendants argue that the proposed amendment would prejudice their rights. Plaintiff argues that the filing is not prejudicial to defendants’ rights and is in compliance with T.C.R.Cr.P. Rule 7(e).
[1] A review of federal experience with the federal counterpart of Rule 7(e) is informative in understanding what constitutes prejudice under our identical rule. If the defendant has enough time to prepare for the amended information that he is not considered to be taken by surprise, he is not prejudiced and the amendment is permitted. Tiliman v. Cook, 855 P.2d 211, 214-15 (Utah 1993) (defendant had three months to prepare his defense to additional aggravating circumstances); State v. McCowan, 602 P.2d 1363, 1371 (Kan. 1979) (allowing amendment is not reversible error in absence of any reasonable showing that the interests of the defendant were prejudiced); U.S.A.C. Transp. v. United States, 203 F.2d 878, 880 (10th Cir. 1953) (where defendant did not move for time to prepare for any surprise caused by amendment, defendant was not prejudiced by the amendment).
[2] Another key to determining whether the change results in prejudice is

consistency in the underlying factual accusations. If the underlying factual accusations remain the same, amending the information to a different charge has been found proper. United States v. Smith, 107 F. Supp. 839, 839 (D.C.Pa. 1952). Also, changing the charge in an information to a lesser included offense of the original charge has been held harmless. Gov’t. of Canal Zone v. Burjan, 596 F.2d 690, 693 (5th Cir. 1979)
[3] In the current situation, the original information included factual allegations of all the elements of assault. In fact, these allegations are the basis of the murder charge. While assault may not technically be a “lesser included charge” of murder, amending the information to include assault is not inconsistent with the original factual allegations. Also, defendants will have had over three months to prepare for the new charge by the time the trial occurs, assuming it is not held at an even later date than currently scheduled. Finally, defendants have failed to show any evidence of how the new charge prejudices their rights.
It might be argued that including the new charge of assault prejudices defendants’ rights in that they seem now more likely to be convicted of something than before the amendment. However, the case law makes it apparent that relative likelihood of conviction is not the test for prejudice—rather, whether the change itself produces an unfair disadvantage is the central issue. If the prosecutor in the case at hand were to throw in a possession charge, or robbery, it would be a different situation; new factual allegations would have arisen, possibly taking defendant by surprise. But that is not the case here.
Defendants are not prejudiced by the amended information. The plaintiff’s motion to amend is granted.
It is so ordered.

 

AMERICAN SAMOA GOVERNMENT, v.PUNEFU TUAOLO


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
PUNEFU TUAOLO, Defendant.†
High Court of American Samoa
Trial Division
CR No. 30-98
January 31, 2000

 

[1] An expert witness who is qualified by knowledge, skill, experience,
training, or education is permitted to testify by giving an opinion on a
matter involving scientific, technical, or other specialized knowledge
that will assist the trier of fact to understand the evidence or to determine
a fact in issue.
[2] The standard for the admissibility of DNA evidence is governed by
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
[3] The court must determine, preliminarily in a jury trial, that the basis
of proposed expert opinion testimony is reliable and relevant.
† This case was inadvertently omitted from 4 A.S.R.3d (2000). Due to
its importance it is being published at this time.

[4] In evaluating the admissibility of expert testimony under T.C.R.Ev.
702, the trial court must look for such factors as: (a) whether the theory
or technique in question has been or can be tested and has been subjected
to peer review and publication; (b) the known or potential rate of error of
the particular theory or technique and whether operational control means
exist for it; and (c) the extent to which the theory or technique has been
accepted.
[5] Evidence must be sufficiently related to the facts at issue to assist the
trier of fact.
[6] The probative value of evidence must substantially outweigh the
dangers of unfair prejudice, confusion of the issues, or misleading the
trier of fact.
Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge
and TAUANU’U, Temporary Associate Judge.
Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General
For Defendant, Tautai A.F. Faalevao, Public Defender
OPINION AND ORDER
Plaintiff American Samoa Government ("ASG") charged defendant
Punefu Tuaolo ("Tuaolo") with the crimes of robbery in the first degree
(Count 1), felonious stealing (Count 2), felonious restraint (Count 3), and
assault in the second degree (Count 4) by the information filed on May
11, 1998. A Daubert hearing on the admissibility of certain expert
opinion evidence was conducted on December 1-2, 1999. Tuaolo then
waived his right to a jury trial. The bench trial commenced on the same
date and concluded on December 10, 1999. Tuaolo and both counsel
were present throughout the hearing and trial.
The Daubert Hearing and the Court's Rulings
This criminal prosecution presented evidentiary issues of first impression
in this jurisdiction: the admissibility of the results of forensic
deoxyribonucleic acid ("DNA") comparisons with questioned items of
evidence. The DNA examinations, as well as other forensic testing,
were done at the Federal Bureau of Investigation ("FBI") laboratory in
Washington, D.C. Five members of the FBI laboratory staff were
required to present this evidence by testimony before the court. Hence,
pursuant to T.C.R.Ev. 104(a) - (c), the parties proposed, and we agreed,

that a pretrial hearing on the admissibility issues be conducted during the
week before the trial.
[1-2] T.C.R.Ev. 702 applies to expert opinion testimony. Rule 702
permits a witness who is qualified by knowledge, skill, experience,
training, or education to testify by giving an opinion on a matter
involving scientific, technical, or other specialized knowledge that will
assist the trier of fact to understand the evidence or to determine a fact in
issue. F.R.Ev. 702 is identical to our local Rule 702. Thus, the parties
also agreed, and we concur, that the standard for the admissibility of
DNA evidence is governed by Daubert v. Merrill Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).
[3-6] The court must determine, preliminarily in a jury trial, that the
basis of the proposed expert opinion testimony is reliable and relevant.
Daubert, 509 U.S. at 590-91, 594. The Supreme Court held that Federal
Rule 702 rejects the traditional test of general acceptance in the relevant
scientific community as the basis for admitting novel scientific evidence,
as required by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Under Rule 702, the trial court must still look for such reliability factors
as: (a) whether the theory or technique in question has been or can be
tested and has been subjected to peer review and publication; (b) the
known or potential rate of error of the particular theory or technique and
whether operational control means exist for it; and (c) the extent to
which the theory or technique has been accepted. Daubert, 509 U.S. at
593-94. Once reliability is satisfactorily established, the court must
determine that the evidence is sufficiently related to the facts at issue to
assist the trier of fact, and that its probative value substantially
outweighs the dangers of unfair prejudice, confusion of the issues, or
misleading the trier of fact. Id., at 595; see T.C.R.Ev. 401-403.
Following receipt of the FBI laboratory reports, and prior to the Daubert
hearing, the parties filed two written stipulations. In essence, the parties
stipulated to the admissibility in evidence by way of expert opinion
testimony of the results of DNA testing of certain evidence in this case
performed by Julie Ann Kidd ("Kidd") and Dr. John E. Stewart
("Stewart"), both FBI laboratory personnel.
However, as part of our learning process, we agreed with ASG's strategy
to have Stewart and Kidd testify about their professional qualifications,
DNA theory and practice, and the results of their DNA analyses in this
case. Based upon the parties' stipulations and particularly the testimonial
amplification, we specifically made and reiterate the following findings.
First, Stewart and Kidd are qualified by education, training and
experience to provide expert opinion testimony in the DNA field.

Second, DNA examinations and the DNA analytical protocols applied to
the evidence in this case have a scientific basis and are reliable under the
Daubert standard. Third, Stewart properly performed the DNA
procedure called mitochondrial. Kidd properly performed the DNA
procedures called restriction fragment length polymorphism ("RFLP")
and polymerase chain reaction ("PCR"). Fourth, Stewart's and Kidd's
expert opinions on the results of their examinations are relevant, and will
assist the trier of fact to understand the DNA evidence and to determine
identity of the perpetrator(s) of the crimes charged. The probative value
of this evidence substantially outweighs any prejudice and other dangers
of unfairness.
During the Daubert hearing, ASG also called Monica Knuckles
("Knuckles") of the FBI laboratory to testify as a forensic chemist with
respect to her comparative analyses of items of masking tape recovered
as evidence in this case. Based upon her testimony, we found and still
find the following facts. Knuckles is qualified as a forensic chemist by
education, training and experience. The types of analyses she made of
the items of masking tape are scientifically reliable under the Daubert
standard. The results of Knuckles' examinations are relevant to assist the
trier of fact to identify the perpetrator(s) of the crimes charged and
significantly exceed any prejudicial effects.
The Trial and the Court’s Findings and Conclusions
A. Jury Waiver and Further Stipulations
Shortly after the Daubert hearing was concluded, Tuaolo filed a written
waiver of his right to trial by jury. On December 6, 1999, before the trial
commenced, we again admonished Tuaolo of his right to trial by jury.
Tuaolo orally reaffirmed his written decision to waive that right and
proceed with a bench trial.
The parties also provided three more stipulations for purposes of the
trial. First, before filing the written jury waiver, they stipulated that the
statement of Aukusitino Fanene ("Fanene") given to Sgt. Lavata’i T.
Sagapolutele ("Sagapolutele") on or about October 26, 1999 may be read
to the jury. During the bench trial, without objection, Sagapolutele read
Fanene' s statement to the court.
During the first day of the bench trial, December 6, 1999, the parties
stipulated that the court may take judicial notice of the testimony given
by Stewart and Kidd during the Daubert hearing in lieu of taking further
testimony from them. We take judicial notice of this evidence.

Lastly, during the second day of the bench trial, December 7, 1999, the
parties stipulated that based upon Fanene's statement to Sagapolutele, the
FBI's DNA analyses, and other evidence, ASG would seek an arrest
warrant for Fanene as a principal or accessory to the charges in this case
after the bench trial concluded.
B. The Crimes
Well beyond any reasonable doubt, the four crimes charged in this case
were committed. At least two accomplices directly participated. A third
accomplice was possibly involved either as a principal or abettor.
The offenses occurred at the poker machine center in the Tautua Hall
during nighttime, shortly after 3:00 a.m. on April 30, 1998. Tautua Hall
is located near the northwesterly side of Pago Park in the Village of Pago
Pago. Two victims were present, Ho Min, an owner and the operator of
the center, and Beam Fa'alogo (“Fa'alogo"), one of his employees. Both
heard noise at one of the entrance doors to the center, just as someone
turned off the lights in the center. Two perpetrators wearing black masks
entered the center. One of them, a large male, struck Ho Min's head with
a shotgun. He pushed Ho Min to the floor and kicked him several times.
He demanded money and threatened to kill Ho Min. Ho Min told
Fa'alogo to give the perpetrators all the money in the center. The large
perpetrator bound Ho Min's hands, feet and face with masking tape. Ho
Min heard three shotgun shots. He probably then lost consciousness for
a short time. Upon waking, Ho Min was able to remove the tape. He
called the police from a telephone outside the center.
The second masked perpetrator went to Fa'alogo. She was in the
cashier's office at the center. He had a flashlight and held a shiny
handgun on her. She heard Min being struck and scream. Fa'alogo tried
to close the door to the office, but her attacker kicked or pushed open the
door. He told Fa'alogo, who had fallen to the floor, to kneel and put all
the money in the knapsack he threw in front of her. After Fa'alogo put
the money in the knapsack, this perpetrator bound her hands, feet and
mouth with masking tape. Fa'alogo heard two gun blasts and feared for
her life. However, the perpetrators suddenly left the center. She
unbound herself and went to help Ho Min. She saw that Ho Min was
bleeding from a head injury and appeared to be unconscious. After Ho
Min regained consciousness, the police were called.
Three poker machines were damaged by the shotgun blasts.
Approximately $1,500 in United States quarter coins were taken from
these machines. United States currency in other denominations, totaling
approximately $500.00, was taken from the cashier's office. Ho Min's

wallet, containing about $650.00 and a VISA credit card, was taken from
his person. His and his wife’s cellular telephones were also stolen.
C. The Perpetrators’ Identities
We must still solve beyond a reasonable doubt the genuine puzzle of the
perpetrators' identities. On May 1, 1998, almost immediately after the
crimes were committed, Tuaolo was arrested for the crimes charged. He
is, of course, the only accused presently on trial. Fa'alogo identified
Tuaolo as her masked attacker, and ASG initiated his prosecution
principally on this basis. At the trial, Fa'alogo maintained that Tuaolo is
that culprit. This is the strongest evidence of Tuaolo's guilt. Certain
factors tend to corroborate Fa'alogo's identification of Tuaolo. Other
factors raise questions about her identification. We will review the
evidence in substantial detail in analyzing her identification.
1. The Surrounding Circumstances
Tuaolo was also employed at the poker machine center. He first worked
there during the weekend before the crimes were committed and knew
the layout of the premises. However, he did not come to work the night
of the charged offenses. On his first night on the job, Tuaolo had a shiny
handgun, which he showed to Ho Min and identified as a .38 caliber gun.
He took the handgun with him when he left work that night. The
handgun was similar to the gun Fa'alogo's attacker held on her.
Fa'alogo's attacker was similar to Tuaolo in height, build, and voice.
During the attack, she called her attacker "Punefu" and said she was
surprised at his conduct.
According to Fa'alogo, her attacker wore the off-white shirt and
camouflaged "army" pants in evidence. She said that the shirt was
yellow, but Fa'alogo saw the shirt by the yellow lens or bulb of her
attacker's flashlight. The police arrived at the crime scene within
minutes after they were called. A short time later, Tuaolo drove up to
the scene in a red pickup. Bobby Tuiletufuga ("Tuiletufuga") is the
registered owner of this pickup. Tuaolo was then wearing the off-white
shirt and "army" pants.
Tuaolo, Tuiletufuga, and Fanene are long-standing friends. Tuaolo is
also a former employee, perhaps as long as eight to 10 years, of ASG's
Emergency Medical Service ("EMS") and a long-term friend of EMS
employees Teofilo Mageo ("Mageo"), Aukusitino Fruean ("Fruean"),
and Christy Moa ("Moa"). Tuaolo attended Mageo's birthday party in
Aua during the evening of April 29, 1998. He was driven to the party by
Tuiletufuga, who also picked him up there in the early morning of April

30. Fruean and Moa were also at the party. Mageo, Fruean, and Moa
consumed considerable quantities of beer at the party.
According to Mageo, Fruean, and Moa, they went to Tuaolo's pool hall
in Pago Pago about 2:00 a.m. on April 30. Tuaolo and his wife Mina
Tuaolo ("Mina") live in a two-story building behind the pool hall. These
two buildings are located very near, not more than a five-minute walk to,
Tautua Hall. Tuaolo and Mina were in the pool hall when Mageo,
Fruean, and Moa arrived there. They consumed more beer and played
pool with Tuaolo. Two other EMS employees stopped by briefly but did
not join the pool game. They were on their way to StarKist Samoa for a
training exercise involving EMS personnel. At some point during the
pool game, Mina retired to her home.
Again according to Mageo, Fruean, and Moa, after Mina and the other
EMS visitors left, and some time after 3:00 a.m., Tuiletufuga and Fanene
arrived at the pool hall in Tuiletufuga' s pickup. Tuiletufuga was
screaming or crying out for help and asking Tuaolo to take him and
Fanene to the ASG's LBJ Tropical Medical Center ("LBJ") in Faga'alu.
They told Tuaolo that they had been shot. Despite their EMS training
and experience, Mageo, Fruean, and Moa were not asked to assist
Tuiletufuga and Fanene. Instead, Tuaolo drove off with them.
Tuaolo drove Tuiletufuga and Fanene to the LBJ and left them there for
medical treatment. Tuaolo then drove the pickup back to Pago Pago and
stopped at Tautua Hall during the ongoing initial police investigation at
the crime scene. It was then that Fa'alogo observed Tuaolo wearing
"army" pants and an off-white shirt.
Mina was also there, apparently having been awakened by crying or
other noise from the direction of Tautua Hall. After Tuaolo arrived, he
instructed Mina to drive Tuiletufuga's pickup to their home. She did so.
Mina claimed that a roll of new masking tape fell outside when she
exited the pickup, and that she took the tape inside, later used it to repair
a hand fan, and left it in the bedroom used by Tuaolo and her.
2. The Physical Evidence
Police Captain Vaaomalo Sunia ("Sunia"), the head of the Criminal
Investigation Division and as such in ultimate charge of the investigation
of this case, seized the roll of masking tape from Tuaolo's and Mina's
bedroom during the course of the execution of a search warrant on May

1, 1998.1
There are numerous other items of physical evidence. We take note of
the police investigators' observations and recovery of those items that are
particularly significant to this discussion. At the crime scene, they
observed Ho Min's injuries, the three damaged poker machines, and a
blood stain on the floor near the door to the cashier's office. They
recovered from the customer area of poker machine premises, among
other items, three empty shotgun cartridges, strips of masking tape near
the one entry door to the center, and strips and a roll of masking tape
within the cashier's office.
The investigators impounded Tuiletufuga's pickup from Tuaolo's
residence. Inside the pickup, they found and took for evidence a black
mask from the front right floor, a tee shirt and black pants on the seat,
and another black mask underneath this clothing. A cellular telephone
was inside the right back pocket of the pants. A pocket knife and two
bullets were also found in the pickup. The police also seized the "army"
pants and off-white shirt worn by Tuaolo when he returned to the crime
scene.
Body samples were also taken, using proper procedures, to provide
known submissions for the FBI's DNA analyses. These samples
included blood, hair, and saliva from Tuaolo; blood, hair, and saliva
from Tuiletufuga; blood and hair from Fanene; and blood from Ho Min.
In addition, fingerprints from Tuaolo, Tuiletufuga, Fanene, Ho Min, and
Fa'alogo were imprinted and sent to the FBI for comparison.
3. The Statements by Tuaolo and Fanene
After he drove to the crime scene, Tuaolo made oral statements to the
police at the crime scene and, later on April 30, a written statement to the
police at the central police station. Both statements were admitted into
evidence without objection. Tuaolo's statements were essentially
consistent with the other evidence in the case.2
1 Sunia also interviewed Mina on May 6, 1998. During that interview,
she told Sunia that Tuaolo owned a stainless steel revolver, which she
last saw on April 28, 1998, and that she did not know where Tuaolo may
have “hid” the gun. Mina put her credibility at serious issue during
cross-examination when she denied that Tuaolo owned a gun and denied
that she made the prior inconsistent statement to Sunia that Tuaolo
owned a stainless steel revolver.
2 There are two noteworthy inconsistencies between Tuaolo's written
statement and Mina's testimony. First, Tuaolo wrote that Tuiletufuga

Fanene and Tuaolo appear similar in height and build. ASG intends to
charge Fanene with the same offenses for which Tuaolo in now on trial.3
Fanene's statement to the police is one basis for this intended action. On
October 26, 1999, police Lt. Sagapolutele wrote what Fanene told him
about the offenses. Fanene then signed this document. This statement
was admitted into evidence pursuant to the parties' pretrial stipulation.
We will set forth the presently important aspects of Fanene's statement.
Fanene claimed that Tuiletufuga, threatening him with a shiny handgun,
forced Fanene to join Tuiletufuga's plan to commit the offenses. Both
wore masks at Tautua Hall. Fanene then had the handgun and a
flashlight, and wore black pants and a white shirt, all furnished by
Tuiletufuga. Tuiletufuga turned off the lights in the poker machine
center and beat the Korean. Fanene admitted that he had the female
cashier put money in a bag, and then tied her hands and mouth with
masking tape, as Tuiletufuga had instructed him to do. While tying the
cashier, he became afraid when the cashier called him Punefu and said
she was surprised at what he had done to her, but he finished tying her.
A third person appeared, locked the front door, and opened the back door
(apparently but not clearly Tautua Hall rather than the center's doors).
This third person wore "army" pants and a shirt Fanene said he could not
drove him to Mageo's birthday party in Aua at about 11:00 p.m. on April
29. Mina testified that Tuaolo went to the party at about 6:00 or 7:00
p.m. Second, Tuaolo wrote that after he was picked up at the party,
Tuiletufuga drove him to and dropped him off at Tautua Hall. Tuaolo
stated he walked into the poker machine center and was there briefly to
tell a person identified as Boy Faumuina to look after the center. Then
he walked home. Mina, on the other hand, testified that shortly after
Tuaolo came to the pool hall from the party, at about 1:00 a.m. on April
30, and before Mageo, Fruean, and Moa arrived, Tuaolo walked to the
poker machine premises and returned about 10 minutes later, around
1:30 a. m. Like her prior inconsistent statement to Sunia, Mina' s
credibility is put at issue by these inconsistencies. At the very least, they
indicate that Mina was prepared to stretch the truth in her effort to help
her husband Tuaolo. In fact, Fa'alogo testified that she did not see
Tuaolo at the poker machine premises at any time during the evening
before the crimes were committed. Tuaolo's visit to the poker machine
premises about 90 minutes before the offenses were committed, if it
happened, may have been in preparation for commission of the crimes.
However, under the evidence, such a finding would be highly
speculative.
3 ASG has charged Tuiletufuga with these crimes. A warrant for his
arrest is outstanding.

describe. Fanene claimed that he heard five gunshots, one before and
four after he left Tautua Hall with the bag of money. A short time later,
he and Tuiletufuga met at their car parked near the Mauga guesthouse at
the easterly side of Pago Park. He first and then Tuiletufuga drove the
car through the park. As they reached Korea House near the far easterly
end of the park, Tuiletufuga tried to put on the handgun's safety, but the
car hit a cement block. When Fanene grabbed the steering wheel, the
gun discharged. Fanene's left arm and Tuiletufuga's right hand were
wounded by the discharge. They then headed west. At the Seagull store,
Tuiletufuga drove up the hill into that part of Pago Pago village and
threw their two guns and the bag of money into a stream bed.
Tuiletufuga then drove to Tuaolo's pool hall and asked Tuaolo to take
them to the hospital. Fanene denied receiving any money from the
robbery, and claimed that Tuiletufuga told him three days later that
Tuiletufuga had instructed Tuaolo to recover the guns and bag of money
from the stream bed.
C. Evaluation of Fa’alogo’s Eyewitness Identification
The evidence supporting Fa'alogo's eyewitness identification of Tuaolo
is significant. She knew Tuaolo as a fellow employee. He was familiar
with the premises at Tautua Hall and the poker machine center. She saw
him in possession of a shiny handgun, like the gun her attacker held, a
few days before the crimes were committed. Her attacker had Tuaolo's
height, build, and voice. She believed that her attacker wore "army"
pants and, by a yellow light, a yellow shirt. She saw Tuaolo at the crime
scene a short time later when he drove there in Tuiletufuga's pickup. He
was then wearing "army" pants and an off-white shirt.
Tuaolo, Tuiletufuga, and Fanene were friends. Tuaolo and Tuiletufuga
were companions at times during the evening before the crimes occurred.
Tuaolo operated a pool hall and lived nearby Tautua Hall. Though not
then seen by Fa'alogo, he may have been at the hall, and perhaps in the
poker machine center, for a short time about 90 minutes before the
crimes were committed. Fanene implicated a third person wearing
"army" pants who assisted in committing the crimes. After the crimes
took place, Tuiletufuga drove the pickup, with Fanene the passenger, to
the pool hall and sought Tuaolo' s assistance to take him and Fanene to
LBJ for medical treatment of their self-inflicted gunshot wounds.
Fanene suggested that Tuaolo was later instructed by Tuiletufuga to
retrieve the perpetrators' guns and the stolen money from the hiding
place in the stream bed. Tuaolo certainly had opportunity to directly
participate in the crimes.

On the other hand, Fa'alogo's attacker wore a mask and was similar in
height and build to both Tuaolo and Fanene. Thus, we consider her
eyewitness identification of Tuaolo with caution. Fanene clearly admits
that he was Fa'alogo's attacker, while he possessed a shiny handgun and
flashlight. He claimed that he wore a white shirt and black pants. Such
clothing was found in the pickup. He also clearly identified Tuiletufuga
as the second perpetrator who beat Ho Min and suggested that Tuaolo
was present as a third culprit. Fanene recited details which only
participants in the crimes would likely know. However, Fanene is an
accomplice, and we must also evaluate his statement connecting others
in the commission of the crimes with caution. Fanene's credibility, to
some extent, is also put in question by his unconvincing claim that
Tuiletufuga forced him to participate in the crimes.
Despite his physical proximity to the crime scene, Tuaolo's friends and
former EMS associates placed Tuaolo at the pool hall at the time of the
crimes. Mina, Tuaolo's wife, corroborated the presence of these friends
at the pool hall. These witnesses are clearly biased in Tuaolo's favor.
Mina's credibility is also doubtful by her prior inconsistent statement
concerning Tuaolo's ownership of a shiny handgun. Tuaolo could easily
have fabricated this story with Mina and his friends later. However,
their testimony still provided an alibi at least for Tuaolo's direct
participation in the crimes.
In sum, the accuracy of Fa'alogo's identification of Tuaolo as her attacker
must be questioned.
D. The Expert Opinion Testimony
It is the considerable and varied expert opinion evidence in this case that
provides the most satisfactory basis for deciding Tuaolo's guilt or
innocence. The DNA evidence is particularly illuminating. Using the
mitochondrial protocol, Stewart compared the DNA in a hair found in
one of the masks recovered by the police from Tuiletufuga's pickup with
DNA in the blood samples obtained from Tuaolo, Tuiletufuga, Fanene,
and Ho Min. Fanene and Ho Min were excluded as the source of the
hair. Tuiletufuga cannot be excluded as the source. The results were
inconclusive as to Tuaolo being the source.
Kidd applied both the RFLP and PCR testing procedures. With the
RFLP method, she compared the DNA in four blood stains on the tee
shirt and several blood stains on the pants recovered by the police from
Tuiletufuga's pickup with the DNA in the four known blood samples.
Ho Min was the source of one blood stain on the tee shirt. Tuiletufuga

was the source of another blood stain on the tee shirt and one blood stain
on the black pants. Fanene was the source of two blood stains on the tee
shirt and the remaining blood stains on the pants. Because of these
matches, Tuaolo was excluded as the source of any of the blood stains on
the tee shirt and pants.
Kidd used the PCR procedure to compare the DNA in several samples of
substance found in both masks with the DNA in the four known blood
samples. This substance from both masks could be saliva, perspiration
and/or nasal secretion. Four samples of this substance were found in the
same mask where the hair was found. The results were totally
inconclusive with respect to two of these four samples. However, the
results showed that there were both major and minor contributors to the
other two samples. Fanene is the potential major contributor. Tuaolo,
Tuiletufuga, and Ho Min cannot be either determined or excluded as the
minor contributor.
Three samples of the substance were removed from the second mask.
The testing results showed that Tuiletufuga was the potential major
contributor to a reasonable degree of scientific certainty. Because of this
finding, Tuaolo, Fanene, and Ho Min are excluded as the sources of the
samples in the second mask.
Kidd also used the PCR technique to compare the DNA in a blood stain
on the masking tape removed from Tuaolo's bedroom with the four
known blood samples. The results showed that both Tuiletufuga and Ho
Min are potential sources of this blood stain, but excluded Tuaolo and
Fanene as the source.
Knuckles examined the masking tape items recovered by the police at
the crime scene. She compared the strips of masking tape found on the
floor of the customer area and on the floor of the cashier's office at the
poker machine center with the roll of masking tape found in the cashier's
office. The strips were different in color, width, and texture from the roll
and thus did not originate from the roll. She asked if any other roll of
masking tape was seized and later received the roll recovered from
Tuaolo's bedroom. The strips of masking tape and this second roll of
masking tape are of consistent color, texture, and other physical
characteristics, and in chemical composition. However, there was no
identifiable tear match between the strips and the second roll. Thus,
Knuckles concluded that the strips could have originated from the
second roll or tape of similar manufacture.
Terry G. Amburgey ("Amburgey"), also employed in the FBI laboratory,
was qualified as an expert in comparative fingerprint identifications. He

used several methods most likely to be productive in lifting latent
fingerprints on the two strips of masking tape, the three shotgun shells,
the cellular telephone, and the roll of masking tape recovered from
Tuaolo's bedroom. He found only one latent fingerprint, the extreme tip
of a finger on one set of masking tape strips, but none of probative value
on the other items. Amburgey compared the one latent fingerprint with
the submitted fingerprints of Tuaolo, Tuiletufuga, Fanene, Ho Min, and
Fa'alogo and determined that it was not the fingerprint of any of these
persons.
Robert Fram ("Fram"), another FBI laboratory employee, was qualified
as an expert in trace evidence comparisons of questioned hair with
known hair. Hair comparisons are not a basis for absolute identification
of persons. They only determine that for identification purposes, the
hairs examined are similar or dissimilar with each other, based on
consistent or inconsistent characteristics, or are insufficient for this
purpose, due to the presence of both similar and dissimilar
characteristics. Fram compared the hair removed from the masks with
known hair samples of Tuaolo, Tuiletufuga, and Fanene. The removed
hair is similar to Tuaolo's hair and dissimilar to Tuiletufuga's and
Fanene's hairs.
The expert opinion testimony concerning fingerprints does not connect
Tuaolo to the crimes charged and, in fact, is not helpful in this particular
case. The expert opinion testimony concerning trace and DNA
mitochondrial examinations of the hair found in the mask is essentially
inconclusive with respect to Tuaolo. Even though Tuaolo could be the
source of this hair, it is also known that he was in Tuiletufuga's pickup at
least after the crimes were committed. The expert opinion testimony
concerning the masking tape comparisons shows that the tape apparently
used to tie Ho Min or Fa'alogo, or both, may have originated from the
roll of masking tape seized at Tuaolo's bedroom or may have only been
produced by the same manufacturer. We know that this roll was in
Tuiletufuga's pickup after the crimes were committed, but Mina,
Tuaolo's wife, explained, reasonably and innocently if believed, how the
roll happened to be in the bedroom.
However, the results of the DNA RFLP and PCR examinations are
telling. The RFLP testing positively identified Tuiletufuga and Fanene
as the sources of the blood stains on the white tee shirt and black pants
recovered from Tuiletufuga's pickup and, by his admission, worn by
Fanene during the criminal acts. This testing excluded Tuaolo and Ho
Min as sources of these blood stains. The PCR process showed that
Fanene was potential major contributor of the saliva, perspiration and/or
nasal secretion substance removed from one of the masks found in the

pickup, and did not exclude Tuaolo, Tuiletufuga, or Ho Min as the minor
contributor of the substance. The same process demonstrated that
Tuiletufuga was the potential major contributor of the same type of
substance taken from the second mask. The examination supported this
finding to a reasonable degree of scientific certainty and thus excluded
Tuaolo, Fanene, and Ho Min as sources of the substance in the second
mask. The PCR technique also identified Tuiletufuga and Ho Min as
potential sources of the blood stain on the roll of masking tape found in
Tuaolo's bedroom, and at the same time, excluded Tuaolo and Fanene as
sources of this blood stain.
E. Reasonable Doubt
The DNA connections of Tuiletufuga and Fanene with the two masks
leads us to have reasonable doubt about Tuaolo's guilt as a principal.
This evidence strongly points to them as the certain principal
perpetrators of the crimes charged. When coupled, in particular, with
Fanene's admissions of committing the crimes with Tuiletufuga, recited
in explicit detail, our doubt is reinforced. However, Fanene's implication
of Tuaolo's participation in the crimes is questionable and adds to our
doubt. In this light, Tuaolo's alibi is also plausible. The evidence
certainly falls far short of proving beyond a reasonable doubt that Tuaolo
was an accessory to the crimes.
DECISION
We find Tuaolo not guilty of the four crimes charged in the information.
It is so ordered.

 

AMERICAN SAMOA GOVERNMENT, v.MICHAEL AGASIVA, aka JAMES FRANKLIN SATELE


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
MICHAEL AGASIVA, aka JAMES FRANKLIN SATELE,
Defendant.
High Court of American Samoa
Trial Division
261
CR No. 30-02
October 21, 2002

 

[1] To find a child competent to testify, court must evaluate child’s voir
dire examination to find that, based on child’s demeanor and answers as
whole, child understood obligation to testify truthfully and had mental
capacity to accurately perceive events at issue when they occurred, to
recollect those events at time of trial, and to understand and answer
questions about those events.
[2] Report of emergency medical technician was inadmissible as
evidence where it had not been certified as public record in accordance
with T.C.R.Ev. 902(4).
[3] Defendant’s matai status in village and status of child victim’s
family, standing alone, did not establish basis for reasonable inference
that defendant had disciplinary authority over child victim. It was not
error to reject proposed jury instructions amounting to defense of
justification as person entrusted with care, discipline, or safety of minor
because defense was not fairly raised by evidence.
[4] Concepts of “normal parental discipline” (A.S.C.A. § 45.0103(20))
and “accepted child-rearing practices of culture” (A.S.C.A. §
44.2001(a)(2)) do not have direct application to prosecutions under
criminal code.
[5] Where victim was struck by defendant, jury instruction on third
degree assault committed when actor attempts to cause physical injury to
another person (A.S.C.A. § 46.3522(a)(1)) was only appropriate
instruction for lesser included offense of third degree assault. Offenses
under A.S.C.A. § 46.3522(a)(3), (4), and (5) focus more on mental
effects that result when victim is put in fear or at risk of injury, or
experiences offensive or provocative contact.
[6] Disturbing private peace is not lesser-included offense of second
degree assault in that commission of second degree assault does not
require finding on nature of location of incident.
[7] Second degree assault is always class D felony regardless of
circumstances constituting offense set forth in A.S.C.A. § 46.3521(a).
Before RICHMOND, Associate Justice, MAMEA, Associate Judge, and
TUPUIVAO, Associate Judge.
262
Counsel: For Plaintiff, Frederick J. O’Brien, Asst. Attorney General
For Defendant, Bentley C. Adams III, Asst. Public Defender
ORDER DENYING MOTION FOR NEW TRIAL
On August 22, 2002, defendant was convicted by jury of the crimes of
trespass, a class A misdemeanor, and assault in the second degree, a
class D felony. On September 4, 2002, defendant was adjudicated guilty
of the two offenses and sentenced to concurrent terms of imprisonment
of one year for the misdemeanor conviction and five years for the felony
conviction. On September 10, 2002, defendant moved for a new trial.
The Court heard and took under advisement the motion on October 11,
2002. Both counsel were present and submitted the motion on their
written arguments.
Discussion
Defendant alleges as error entitling him to a new trial: (1) incompetent
children were allowed to testify; (2) the report of the attending
emergency medical technician was not admitted into evidence; (3)
proposed defense instructions were not given to the jury; (4) the sentence
exceeded the statutorily authorized period; and (5) the evidence was
insufficient to sustain beyond a reasonable doubt the jury’s verdict of
defendant’s guilt.
A. Child Witness Competency
[1] Three children, ages 9, 10 and 11, were allowed to testify. Outside
the jury’s presence, each child was questioned on voir dire examination,
which included cross-examination by defendant’s counsel. The Court
evaluated each child’s examination, using the standard recently
enunciated in American Samoa Government v. Va`ai, 6 A.S.R.3d 223
(Trial Div. 2002). Based on each child’s answers as a whole and witness
demeanor, we found that each child understood the obligation to testify
truthfully, and had the mental capacity to accurately perceive the events
at issue when they occurred, to recollect those events at the time of trial,
and to understand questions about those events and express in words
from memories of them. Defendant has not provided any persuasive
challenge to our findings that each child was competent to testify.
B. The Emergency Medical Technician’s Report
[2] We did not disallow as evidence the report of the emergency medical
technician because, as defendant claims, of its hearsay content. Rather,
263
the report was inadmissible as evidence because it was not certified as a
public record in accordance with T.C.R.Ev. 902(4). Moreover, the
emergency medical technician was available but was not called to testify.
We stand by our ruling that the report was inadmissible without a proper
foundation.
C. The Proposed Defense Jury Instructions
Defense of Justification and Use of Force by Persons
Responsible for Another’s Care, Discipline, or Safety—
Requested Instruction No. 3 (A.S.C.A. § 46.3311 in part)
Definition of “Normal Parental Discipline”—Requested
Instruction No. 11 (A.S.C.A. § 45.0103(20))
Cultural Child Rearing Practices—Requested Instruction No.
12 (A.S.C.A. § 44.2001(a)(2))
[3] Defendant sought to interject with these three instructions the defense
of justification as a person entrusted with the care, discipline, or safety of
a minor. We rejected these instructions principally because this defense
was not fairly raised by the evidence. Defendant’s matai status in the
village and the child victim’s family standing alone did not establish any
basis for a reasonable inference that he had any disciplinary authority
with respect to the child victim. No other evidence was presented of any
such entrustment in his matai capacity.
[4] Proffered instruction No. 3 also omitted the statutory restraints in
A.S.C.A. § 46.3311(a)(2) on the acceptable extent of force imposed.
Furthermore, the concepts of “normal parental discipline” and “accepted
child-rearing practices of the culture” are expressly applicable to child
abuse or neglect proceedings under the juvenile code for the guidance to
authorities handling such matters. They do not, at face value, have direct
application to prosecutions under the criminal code. Besides, defendant
was not the child victim’s parent. Finally and most importantly, the
instructions on the second and third degree assaults adequately informed
the jury on the standards for their factual findings at issue.
Lesser Included Offense of Assault in the Third Degree—
Requested Instruction No. 6 (A.S.C.A. § 46.3522(a)(1), (3),
(4), and (5))
[5] Defendant sought to interject, as lesser-included offenses of second
degree assault, several alternative means of committing third degree
assault. The jury was instructed on the lesser offense of third degree
264
assault committed when the actor attempts to cause physical injury to
another person, as set forth in A.S.C.A. § 46.3522(a)(1). Under the
evidence, defendant clearly struck the child victim. The evidence fit this
means of committing third degree assault as a lesser-included offense of
second degree assault, alleged as attempting to cause physical injury to
another person by means of a dangerous weapon. The element of using
a dangerous weapon, a bamboo stick in this case, was the difference
between the two degrees of assault. Thus, under the evidence, the
instruction given was the only appropriate third degree assault lesserincluded
offense instruction.
The evidence was not in keeping with assault in the third degree under
A.S.C.A. § 46.3522(a)(3), (4), and (5). Those offenses focus more on
the mental rather than physical effects that result when the victim is put
in fear or at risk of injury, or experiences offensive or provocative
contact. Defendant’s conduct in this case went substantially beyond the
commission of a third degree assault in any of these three ways. None of
these ways was raised by the evidence.
Lesser Included Offense of Disturbing Private Peace—
Requested Instruction No. 8 (A.S.C.A. § 46.4502(a)(1) and
(2))
[6] Defendant also sought to interject private peace disturbance as a
lesser offense of second degree assault. This offense does not appear to
be a lesser-included offense. The commission of second degree assault
does not require any finding on the nature of the location of the incident.
The element of location on “private property” makes second degree
assault and private peace disturbance apparently distinct offenses rather
than greater and lesser included offenses.
In any event, as worded, the instruction included fighting on private
property, which in no sense occurred in this case. The incident did not
involve any fight between an adult male and nine-year-old female.
Again, the emphasis in the offense of private peace disturbance is on the
mental effect of causing the alarm, not the actual physical contact shown
by the evidence in this case. This proffered instruction was clearly
inapplicable under the evidence.
D. The Authorized Sentence
[7] Defendant asserts that the sentences of imprisonment, totaling five
years, imposed on him exceeded statutory authority. He points out that
the accusation in the information of second degree assault solely charges
that he “attempted to cause physical injury” to the child victim by means
265
of using a bamboo stick as a dangerous weapon. Second degree assault
is a class D felony carrying a maximum punishment of five years’
imprisonment and a $5,000 fine. See A.S.C.A. §§ 46.3521(c),
46.2301(4), 46.2101(a)(1). Defendant argues, however, that the word
“attempt” necessarily brings into play the statutes that reduce an attempt
to commit a class D felony to a class A misdemeanor carrying the
maximum punishment of one year’s imprisonment and a $1,000 fine.
A.S.C.A. §§ 46.3401, 46.3404(3), 46.2301(5), 46.2102(a)(1).
Defendant disregards the “[u]nless otherwise provided” introductory
language in A.S.C.A. § 46.3404. Second degree assault is always a class
D felony, as provided in A.S.C.A. § 46.3521(c), regardless of the
circumstances constituting the offense set forth in A.S.C.A. §
46.3521(a). The sentence imposed on defendant simply did not exceed
statutory authority.
E. Sufficiency of the Evidence
Defendant claims that the evidence was insufficient to convict him
beyond a reasonable doubt. He bases this claim on his assertion that the
child witnesses, who were the only eyewitnesses to the incident, were
incompetent to testify and testified contradictorily.
As discussed above, we found, and still find, the three child witnesses
competent to testify. The jury, as the trier of the facts, could believe
their testimony, and the testimony of other witnesses, entirely, partially,
or not at all. In doing so, the jury could resolve any contradictions in the
testimony. The jury clearly believed the child witnesses’ testimony and
resolved any contradictions in their testimony. On the basis of the
evidence, the jury could, and clearly, did find beyond a reasonable doubt
each and every element of the crimes of trespass as a lesser included
offense of burglary in the second degree and assault in the second
degree, and therefore defendant’s guilt of committing those crimes. The
evidence was sufficient to sustain defendant’s convictions.
Order
Defendant’s motion for a new trial is denied. It is so ordered.

 

AMERICAN SAMOA GOVERNMENT v.NTV ELECTRONICS,PROGRESSIVE INSURANCE COMPANY


 

AMERICAN SAMOA GOVERNMENT and BRENNAN ISAAKO
for AASU AND AOLOAU CATHOLIC CHOIR, Plaintiffs,
v.
NTV ELECTRONICS, MANAGER NING TAN,
KENNY AND HELEN YOUNG, and
PROGRESSIVE INSURANCE COMPANY, Defendants.
______________________________
NTV ELECTRONICS and MANAGER NING TAN,
Cross-Claimants/Cross-Defendants,
v.
OXFORD/PROGRESSIVE GROUP, et al.,
Cross-Defendants/Cross-Claimants.
High Court of American Samoa
Trial Division
CA No. 74-00
June 13, 2002

 

[1] The court has discretion to stay execution or other process to enforce
a judgment pending disposition of a motion for new trial upon
appropriate conditions to secure the interests of the prevailing party at
trial.

[2] The court has discretion to grant a stay pending appeal upon the
filing of a supersedeas bond approved by the court.
[3] Factors to consider in deciding whether a stay should be granted
include: (1) the likelihood of the movant would prevail on the motion or
appeal; (2) irreparable harm to the movant if a stay is not granted; (3)
irreparable harm to the other party if a stay is granted; and (4) a stay’s
effect on the public interest.
[4] Where court is considering a stay of a money judgment, the
judgment-debtor’s ability to pay, the availability of funds to him or her,
and other difficulties in the collection process are relevant to the court’s
deliberations.
[5] Stay of both judgment and order of garnishment was proper where
insurance company judgment-debtor raised serious questions of the
sufficiency of evidence in motion for new trial, where garnishment
would impede insurance company judgment-debtor’s normal business
operations and ability to meet its insurer obligations, and where
insurance company was willing to post bond in the amount of the
judgment.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Plaintiffs, Fiti Sunia, Attorney General, and Tala
Uiagalelei, Assistant Attorney General
For Defendants/Cross-Claimants/Cross-Defendants NTV
Electronics and Manager Ning Tan, and Defendants Kenny
and Helen Young, Paul F. Miller
For Defendant/Cross-Defendant/Cross-Claimant Progressive
Insurance Company (Pago Pago), Ltd., Roy J.D. Hall, Jr.
ORDER GRANTING MOTIONS TO STAY EXECUTION OF
JUDGMENT PENDING DECISION ON MOTION

FOR NEW TRIAL AND APPEAL
The decision of the Court on the cross-claim of cross-claimant NTV
Electronics (“NTV”) and Manager Ning Tan (“Tan”) against crossdefendant
Progressive Insurance Company (Pago Pago), Ltd.
(‘Progressive”) was entered on March 18, 2002. The Court has under
advisement the motion of Progressive for reconsideration or new trial
regarding the Court’s decision.
Meanwhile, NTV and Tan served a writ of garnishment to reach

Progressive’s funds deposited with the Bank of Hawaii and Amerika
Samoa Bank to enforce their judgment against Progressive. In response,
Progressive moved to stay execution of the judgment pending the
Court’s ruling on the reconsideration or new trial motion and, if
necessary, pending appeal. On June 12, 2002, we heard the stay motion
and, having considered counsel’s arguments, will grant the motion.
[1-2] The court has discretion to stay execution or other process to
enforce a judgment pending disposition of a motion for new trial upon
appropriate conditions to secure the interests of the prevailing party at
trial. T.C.R.C.P. 62(b). Similarly, the court has discretion to grant a stay
pending appeal upon the filing of a supersedeas bond approved by the
court. T.C.R.C.P. 62(d); see also A.S.C.A. § 43.0803. Progressive is
prepared to post a bond in the principal amount of the judgment,
$54,506.80.
[3-4] Factors to consider in deciding whether a stay should be granted
include: (1) the likelihood of the movant would prevail on the motion or
appeal; (2) irreparable harm to the movant if a stay is not granted; (3)
irreparable harm to the other party if a stay is granted; and (4) a stay’s
effect on the public interest. See Asifoa v. Lualemana, 17 A.S.R.2d 100,
102 (App. Div. 1990). Ability and availability of funds to pay the
judgment, and other difficulty in the collection process are particularly
relevant to money judgments. See Euta v. Etimani, 25 A.S.R.2d 54, 55
(Trial Div. 1993).
[5] The motion for reconsideration or new trial raises serious questions
concerning the sufficiency of the evidence and other legal matters that
we must resolve in deciding the motion, or that the appellate court must
resolve if we deny the motion and Progressive appeals. The judgment is
for money. If the stay is granted, NTV and Tan will lose the immediate
financial benefit of the judgment, but post-judgment interest will provide
adequate compensation for the delay. The bank garnishments impede
Progressive’s normal business operations. Moreover, should Progressive
ultimately prevail, it may not be readily able to recover funds already
paid on the judgment. On balance, the harm to Progressive outweighs
the harm to NTV and Tan by a significant margin. The public interest in
Progressive’s ability to readily meet its insurer obligations is also
apparent. Related to the public interest, the amount of the proposed
bond adequately protects NTV and Tan should they ultimately prevail.
We will, therefore, grant Progressive’s motion for a stay of execution of
judgment pending decision on the motion for new trial, subject to
Progressive filing a bond in the amount of $54,506.80.
Strictly speaking, Progressive’s motion for a stay of execution of

judgment pending appeal is premature. However, if eventually the
motion for reconsideration or new trial is denied and Progressive
appeals, it would be appropriate in this case to keep the bond
continuously in effect and replace the stay of execution of judgment
pending decision on the motion for new trial with a stay of execution of
judgment pending appeal. See Wolfgang v. Mid-American Motorsports,
Inc., 914 F. Supp. 434, 440-441 (D.C. Kan. 1996).
Order
1. We grant Progressive’s motion for a stay of execution of judgment.
2. Execution of the judgment is stayed pending the court’s decision on
the motion for reconsideration or new trial. The stay shall apply to the
ongoing garnishment proceedings and any future garnishment or other
execution proceedings when the stay becomes effective. The stay shall
become effective upon the court’s approval of a bond in the amount of
$54,506.80 to be filed by Progressive in this action.
3. The foregoing stay applies to the ongoing garnishment proceedings.
When the stay become effective, the writ of garnishment issued on April
26, 2002, is quashed, and Progressive’s funds held by the Bank of
Hawaii and Amerika Samoa Bank are released from garnishment.
4. Should we deny Progressive’s motion for reconsideration or new trial
and Progressive appeals, execution of the judgment is stayed pending
appeal, replacing the execution of the judgment pending decision on the
motion for new trial, and the bond posted in the amount of $54,506.80
shall automatically remain in effect as security for the stay pending
appeal. Any party may, however, then move for termination or
appropriate modification of the stay pending appeal.
It is so ordered.

 

AMERICAN SAMOA GOVERNMENT and BRENNAN ISAAKO v.NTV ELECTRONICS, MANAGER NING TAN


 

AMERICAN SAMOA GOVERNMENT and BRENNAN ISAAKO
for AASU and AOLOAU CATHOLIC CHOIR, Plaintiffs,
v.
NTV ELECTRONICS, MANAGER NING TAN,
KENNY AND HELEN YOUNG, and PROGRESSIVE
INSURANCE COMPANY, Defendants.
__________________________________
NTV ELECTRONICS and MANAGER NING TAN,
Cross-Claimants/Cross-Defendants,
v.
OXFORD/PROGRESSIVE GROUP, et al.,
Cross-Defendants/Cross-Claimants.
__________________________________
High Court of American Samoa
Trial Division
CA No. 74-00
300
December 24, 2002

 

[1] Although the rules of the courts of American Samoa are based on,
and in many instances identical to, federal court rules, American Samoa
courts are not bound to interpret their own rules in conformity with every
judicial gloss that has been written on the federal rules.
[2] The common practice of American Samoa courts is to consider their
orders—which often contain a recitation of the facts, procedural history,
and legal reasoning—as judgments for purposes of filing post-judgment
motions.
[3] The new trial motion and appellate deadlines may begin to run
despite the fact that no written judgment has issued.
[4] Where the court issues a judgment separate from its order, such is
made clear in the court’s order, and the time to move for a new trial, and
to appeal, begins running when the separate judgment is entered into the
docket.
[5] Where court clerk stamped order amending judgment and docketed
the same as court’s amended judgment pursuant to longstanding practice
of court, such filing did not violate T.C.R.C.P. 58 or T.C.R.C.P. 54(a)
and motion for reconsideration filed fourteen days later was properly
considered tardy and dismissed.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Cross-Claimants NTV Electronics and Manager Ning Tan,
Paul F. Miller
For Cross-Defendants Oxford/Progressive Group, Roy J.D.
Hall, Jr.
ORDER DISMISSING MOTION FOR RECONSIDERATION
On March 18, 2002, this court issued its opinion and order in favor of
cross-claimants NTV Electronics and Manger Ning Tan (“crossclaimants”).
On September 16, 2002, we granted the motion for
reconsideration by cross-defendant Oxford/Progressive Group
(“Progressive”), and ordered entry of judgment in Progressive’s favor.
Cross-claimants filed a motion for reconsideration with respect to that
second decision on September 30, 2002, 14 days after the new judgment
had been entered. Progressive now moves to dismiss that motion
301
because it was filed more than 10 days after the judgment was
announced. A.S.C.A. § 43.0802. We agree.
Discussion
Cross-claimants argue in opposition to the motion to dismiss that in
making our decision of September 16, we did not set forth the judgment
in a separate document as required by T.C.R.C.P. 58.1 They argue that
therefore the time to file their motion did not begin to toll; indeed, under
their theory, it has yet to start. Furthermore, they assert that the
judgment did not conform with the requirements of T.C.R.C.P. 54(a).2
The scope of these requirements are issues of first impression.
Under Fed. R. Civ. P. 58, on which our Rule 58 is based, the Supreme
Court has said the separate-document requirement must be
“mechanically applied.” United States v. Indrelunas, 411 U.S. 216, 221-
222 (1973). Yet the Supreme Court and various federal courts of appeal
have retreated somewhat from such a strict application. See, e.g.,
Bankers Trust Co. v. Mallis, 435 U.S. 381, 386-388 (1978) (separate
document not needed when parties waive the requirement); Hollywood v.
Santa Maria, 886 F.2d. 1228, 1231-32 (9th Cir. 1989) (separate
document not needed for order denying motion for new trial); United
States v. Clearfield State Bank, 497 F.2d 256, 258-59 (10th Cir. 1974)
(separate document only necessary when uncertain whether final
judgment has entered). The softening of this requirement is justified as
long as the result ensures that the purpose of the rule is effectuated: “to
eliminate uncertainty as to whether and when a judgment has been
rendered and entered.” 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER,
& MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2781 (2d
ed. 1995); see also Fed. R. Civ. P. Rule 58 (advisory committee’s note to
1963 Amendment).
[1] While T.C.R.C.P. 58 is virtually identical to the federal equivalent,
“this court is not bound to interpret its own rules in conformity with
every judicial gloss that has been written on the federal rules[.]” Wray v.
Wray, 5 A.S.R.2d 34, 45 (Trial Div. 1987). This is especially so since, at
the federal level, Congress promulgates the rules whereas in American
1 Rule 58 states in part, “Every judgment shall be set forth on a separate
document. A judgment is effective only when so set forth and when
entered as provided in 23 HCR.” (emphasis added)
2 Rule 54(a) states, “Definition; Form. ‘Judgment’ as used in these rules
includes a decree and any order from which an appeal lies. A judgment
shall not contain a recital of pleadings or the record of prior
proceedings.”
302
Samoa, the High Court “makes its own rules.” Am. Samoa Gov’t v. Jue,
8 A.S.R.2d 120, 123 (Trial Div. 1988). Thus, the problem sometimes
arises where “verbatim importation” of the federal rules is “inappropriate
or impossible.” Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 120
(Trial Div. 1990). This being one of those situations, we will follow the
spirit, and not the letter, of the federal rules.
[2] The problems that plagued the federal system are not, and never
were, problems in American Samoa. For some time, it has been the
common practice of this court to consider its orders—which often
contain a recitation of the facts, procedural history, and legal
reasoning—as judgments. The clerk stamps a date on the order, which is
then entered in the docket. It is the ordinary understanding among those
who practice law here that our order is the judgment for purposes of
filing all post-judgment motions. If we were to accept cross-claimants’
argument, then every case denying post-judgment relief because the
motion was untimely filed would have been wrongly decided. Such a
result is absurd.
[3] The most striking example of the non-application of the separate
document requirement can be found in Judicial Memorandum No. 2-87,
4 A.S.R.2d 172, 173 (1987). There, Chief Justice Rees, joined by then
Associate Justice Kruse, declared that even though a judgment must be
in writing to be effective (citing T.C.R.C.P. 58), under H.C.R. 23, the
date of entry of the judgment for all purposes, including filing a postjudgment
motion, is the day a written judgment is filed or an oral
judgment is pronounced from the bench, whether or not the clerk dockets
the result. Id. at 173-74. This judicial declaration reconciled the
procedural requirements under H.C.R. 23 and A.S.C.A. § 43.0802 for
filing a new trial motion within 10 days after a judgment is announced.
Thus, the new trial motion and appellate deadlines may begin to run
despite the fact that no written judgment has issued, let alone a separate
one.
[4] We acknowledge that, from time to time, we may issue a judgment
on a separate document. In those cases, we make it clear in our order
that a judgment will enter separately. In that limited situation, the time
to move for a new trial and to appeal does begin to run when that
separate document is entered into the docket. Otherwise, we usually
declare that judgment will enter as set out in the order. This is how the
order on the first motion for reconsideration was styled in this case.
The order entered on September 16, 2002, as the judgment in this action
reads:
303
We grant Progressive’s motion for reconsideration, set aside
the judgment in favor of NTV and Tan, and reverse our
original decision. NTV and Tan take nothing against
Progressive. A new judgment shall enter accordingly.
[5] The wording of the written judgment set forth in this order is
unequivocal. It satisfied any legitimate concerns about the certainty of
whether and when the judgment was issued and entered. The judgment
was clearly announced for the procedural filing purposes of post-trial
motions. Therefore, the time for filing a motion for reconsideration or a
new trial began to run the day the judgment in the order was entered, and
the deadline expired well before cross-claimants filed their motion.
Finally, T.C.R.C.P. 58 is to be read in conjunction with T.C.R.C.P.
54(a). For the same reasons we hold Rule 58 inapplicable in this case,
we hold cross-complainants’ reference to Rule 54(a) unpersuasive. Rule
54, like Rule 58, is intended to clarify whether and when a judgment has
entered. Because, however, local practice differs from the federal level,
we will also not needlessly incorporate the strict requirements of Rule
54(a). We further note that the judgment paragraph contained in the
order of September 16, 2002, does not recite any pleadings, but of
necessity refers to prior proceedings. It stands alone from the discussion
of the issues and, as a practical matter, does not of itself violate the spirit
of Rule 54(a)—or Rule 58. Cf. Dev. Bank of Am. Samoa v. Ilalio, 5
A.S.R.2d 110, 112-113 (Trial Div. 1987) (Opinion which was divided
into sentences, paragraphs, and general areas of discussion was sufficient
to conform with T.C.R.C.P. 52 which requires findings of facts to be
stated separately from legal conclusions).
Order
Cross-claimants’ motion for reconsideration is dismissed.
It is so ordered.

 

ALO LUPEMATASILA WILLIAMS, v.CARL STEFFANY and ISABEL STEFFANY


 

ALO LUPEMATASILA WILLIAMS, Plaintiff,
v.
CARL STEFFANY and ISABEL STEFFANY, Defendants.
High Court of American Samoa
Land and Titles Division
LT No. 10-98
August 1, 2002

 

[1] Under A.S.C.A. ' 41.1309, the sa`o is the only person authorized to
bring injunctive actions on behalf of a Samoan family.
[2] Where a dispute over communal lands involves factional rivalry and,
therefore, pule, the court will grant a preliminary injunction to maintain
the status quo even if the action is not brought by the sa`o.
[3] The Attorney General does not have jurisdiction to direct the
registration of a matai title over the objection of the Territorial Registrar.
[4] Just because the Territorial Registrar’s office has, in practice,
functioned administratively under the supervision of the Attorney
General, it does not follow that the Attorney General may thereby
assume the statutory authority specifically vested by the Fono in the
Registrar.
[5] A.S.C.A. ' 4.1104, gives the Territorial Registrar, not the Attorney
General, the authority to reject registration attempts appearing "to be
illegal or not entitled under the law to be registered, filed or recorded."
In the matai registration process, the Registrar, and not the Attorney
General, is charged with maintaining the title register, A.S.C.A. '
1.0401, and may register successors to vacant titles.
[6] When the Attorney General unilaterally asserted jurisdiction and
ordered registration, he intruded on the court's statutorily mandated
authority to resolve the dispute. Such action is an impermissible

extension of executive power in derogation of not only the court's
judicial function but the legislature's law making function as well.
[7] The law of this Territory regulates matai titles. Any matai title
bestowed on any person contrary to the provisions of Title 1, Chapter 4
of the American Samoa Code Annotated may not in any way be
recognized.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Katopau T. Ainu`©
For Defendants, Roy J.D. Hall, Jr.
ORDER DISMISSING COMPLAINT AND DISSOLVING
PRELIMINARY INJUNCTION

The parties are members of the Alo family of Fagasa. Plaintiff Alo
Lupematasila Williams ("Williams") holds himself out as the sa`o
(senior matai) of the Alo family and has filed suit seeking injunctive
relief to enjoin the defendants Carl Steffany and Elizabeth Steffany (the
"Steffanys") from certain activity, preparatory to building, on communal
lands of the Alo family.
[1-2] On November 4, 1998, both parties appeared with counsel at a
hearing on Williams's motion for preliminary injunction. An issue arose
at the interlocutory hearing as to the Williams's status as sa`o, and,
therefore, his standing to sue. Under A.S.C.A. ' 41.1309, the sa`o is the
only person authorized to bring injunctive actions on behalf of a Samoan
family. However, we granted a preliminary injunction to maintain the
status quo and exhorted the parties to talk, noting that the dispute
appeared to have little, if any, to do with the Steffanys' entitlement to the
land, but all to do with factional rivalry and, therefore, pule.
The parties however returned to court, apparently unable to resolve
anything through discussion. The Steffanys filed a motion to not only
dissolve the interlocutory injunction issued by the court but to also
dismiss the complaint on the contention that Williams lacked ' 41.1309
standing to sue in the capacity of sa`o. They argue that the registration
of the Alo title in Williams' name was procured unlawfully, at the
direction of the Attorney General, over the objection of the Registrar.
The Registrar had thus initially attempted to deny Williams' registration
application not satisfied as to Williams' eligibility to hold a matai title in

American Samoa, since he was born in Western Samoa.1 Williams
apparently went directly to the Attorney General who intervened and
demanded the Registrar to register the Alo title in Williams' name.2
The Steffany's argue that the Attorney General overstepped the bounds
of his authority in overruling the Registrar's decision to deny Williams'
matai registration application. Williams, on the other hand, contends
that since the Registrar's office is a part of the Department of Legal
Affairs, the Registrar is therefore under the competence of the Attorney
General, who is the director of that department. He argues that the
Attorney General as the head of the department had the authority to
1 A.S.C.A. ' 1.0403(b) requires, among other things, that a claimant to
a matai title "must have been born on American soil." This substantive
requirement has been upheld, US nationality through naturalization
notwithstanding, in In re Matai Title "I`aulualo," 10 A.S.R.2d 116;
recons den. 10 A.S.R.2d 155 (Land & Titles Div. 1994); aff'd In re
Matai Title "I`aulualo," AP No. 06-94 (App. Div. 1995). See also In re
Matai Title Patea, 25 A.S.R.2d 139 (Land & Titles Div. 1994); In re
Matai Title Mulitauaopele, MT No. 04-94 (Land & Titles Div. 1996).
2 The Registrar also alluded to other instances of intervention by the
Attorney General resulting the registration of multiple holders to a single
matai title and the addition of new titles to the register despite the
mandate of A.S.C.A. ' 1.0401(b) closing the matai register as of 1
January 1969 and prohibiting the future adding of titles not previously
registered.

direct registration accordingly, notwithstanding the Registrar's contrary
position on the matter.
Discussion
[3-4] We hold that the Attorney General had no jurisdiction to direct the
registration of the matai title Alo in Williams' name, over the objection
of the Registrar. Statutorily, the Registrar does not appear to be a part of
the Department of Legal Affairs nor under the sort of supervisory
authority necessarily claimed by the Attorney General. Just because the
Registrar's office has, in practice, functioned administratively under the
supervision of the Attorney General, it does not follow that the Attorney
General may thereby assume the statutory authority specifically vested
by the Fono in the Registrar.
Both the Department of Legal Affairs and the Territorial Registrar's
office were separately created by statute, A.S.C.A. '4.0301 and
A.S.C.A. ' 4.0325 respectively. Being separately created at the same
level of lawmaking and within the same chapter of the code, we fail to
see why the Department of Legal Affairs should therefore occupy an
encompassing or more primary role to that of the Registrar, Williams's
allusion to cabinet positions notwithstanding.

[5] Additionally, we could not find any source, whether within the
American Samoa Code Annotated or the American Samoa
Administrative Code, which places the Registrar within or under the
authority of the Department of Legal Affairs. Rather, the Fono has
clearly proscribed the Registrar's role and duties under Title 4, Chapter
11 of the American Samoa Code Annotated, A.S.C.A. '' 4.1101 et seq.,
and, more specifically in the context of matai title registration, under
Title 4, Chapter 4, A.S.C.A. '' 1.0401 et seq. The role is not that of
mere "rubber stamp." Among other things, A.S.C.A. ' 4.1104, gives the
Registrar, not the Attorney General, the authority to reject registration
attempts appearing "to be illegal or not entitled under the law to be
registered, filed or recorded." In the matai registration process, the
Registrar, and not the Attorney General, is charged with maintaining the
title register, A.S.C.A. ' 1.0401, and may register successors to vacant
titles. See A.S.C.A. ' 1.0405-0408. In the course of this process, the
Registrar "if not satisfied with the validity of information offered in the
petition," may require further information from the petitioner. A.S.C.A.
' 1.0405(c). In addition, conditions the public advertisement of a
succession claim upon "the territorial registrar [being first] satisfied
[that] the claim, certificate, and petition are in proper form." A.S.C.A. '
1.0406. There is no mention of the Attorney General in either chapter 11
or chapter 4 of Title 4.
[6] Furthermore, the statutory scheme clearly intends for disputes
regarding matai registration to proceed directly from the Registrar to the
High Court. A.S.C.A. ' 4.1106 unambiguously provides that anyone
taking issue with a decision of the Registrar can at any time apply to the
High Court for "redress." In addition, ' 4.1106 also states that "the
Registrar . . . may at any time, apply to the High Court for direction."
Likewise, with the matai registration process, A.S.C.A. ' 1.0409
provides that "[t]he High Court shall hear and determine any disputed
claim." Thus, when the Attorney General unilaterally asserted
jurisdiction and ordered registration in this case, he intruded on the
court's statutorily mandated authority to resolve the dispute. Such action
is an impermissible extension of executive power in derogation of not
only the court's judicial function but the legislature's law making
function as well.
[7] Matai titles are regulated by law. A.S.C.A. ' 1.0401-0414; In re
Matai Title Mulitauaopele, MT No. 04-94 (Land & Titles Div. Feb. 6,
1996). The registration of the Alo title in Williams' name was not in
accordance with law. "[A]ny matai title bestowed on any person
contrary to the provisions of [chapter 4] may not in any way be
recognized." A.S.C.A. ' 1.0413 (emphasis added). We accordingly
conclude that Williams does not have ' 41.1309 standing to sue in the
capacity of sa`o.


Order
For reasons given, we grant the motion to dismiss and dissolve the
interlocutory injunction heretofore entered.
It is so ordered.

 

ALAI`ASA FILIFILI,v.SEUFALE SEIULI


 

ALAI`ASA FILIFILI, Plaintiff,
v.
SEUFALE SEIULI, Defendant.
High Court of American Samoa
Land and Titles Division
LT No. 30-92
February 11, 2002

 

[1] T.C.R.C.P. Rule 56(c) requires the court to not only treat the adverse
party's evidence as true but that the adverse party must also be given the

benefit of all inferences reasonably deducible from the evidence.
Before KRUSE, Chief Justice, and ATIULAGI, Associate Judge.
Counsel: For Plaintiff, Tautai Aviata F. Fa`alevao
For Defendant, Afoafouvale L.S. Lutu
ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND
DIRECTING TRIAL SETTING

This matter came on regularly for hearing on February 11, 2002, upon
plaintiff Alai`asa's motion for summary judgment. Alai`asa contends the
absence of triable issues of fact and that he is entitled, as a matter of law,
to summary judgment. T.C.R.C.P. Rule 56.
The dispute concerns a house site, on land located in Faleniu village
which Alai`asa claims to be "Toa," and the subject of previous litigation
before this court in Moea`i v. Te`o, 8 A.S.R.2d 85 (Land & Titles Div.
1988); aff'd sub nom. Moea`i v. Alai`a, 12 A.S.R.2d 91 (App. Div.
1989). In that matter, an area of land known as "Toa" was awarded to
the Alai`asa's family, while other portions of immediately adjacent land
were awarded to the Moea`i family.
In support of his motion for summary judgment, Alai`asa filed his
affidavit averring, inter alia, that: 1) defendant Seiuli's house lies within
"Toa" as awarded him in Moea`i v. Te`o, supra; and that 2) Seiuli's claim
to entitlement is derivative based, upon the competing title claims of
Moea'i and/or Te'o, which claims the Moea`i v. Te`o court had resolved
in his favor. Alai`asa thus argues a res judicata bar to defendant's
derivative claims, citing to Alai`asa v. Te`o, 5 A.S.R.3d 266, (Land &
Titles Div. 2001).
With regard to Alai`asa's contention that Seiuli's claim is derivative
based, we find that Seiuli had admitted as much in her deposition taken
July 2, 2001. Seiuli had indeed deposed that she was brought onto the
land in question by Moea`i in 1970. Dep. Tr. 4.
Seiuli, however, argues triable issues of fact. In her deposition, Seiuli
also deposed that the land she was living on is Moea`i family land
known as "Vaivai." Dep. Tr. 11. She moreover contends that Alai`asa's
averment as to the location of her house is merely self-serving and that
Alai`asa ought to be put to proof. (See Def.'s Opp'n To Pl.'s Mot. Summ.
J. at 2.)
[1] We agree with Seiuli that there are triable issues of fact precluding

summary judgment. In essence, she says "Vaivai," he says "Toa." But
T.C.R.C.P. Rule 56(c) requires the court to "not only treat the adverse
party's evidence as true but [that] [s]he must also be given the benefit of
all inferences reasonably deducible from the evidence." D. Gokal & Co.
Ltd., v. Daily Shoppers, Inc., 13 A.S.R.2d 11, 12 (Tr. Div. 1989), citing
Lokan v. Lokan, 6 A.S.R.2d 44, (Tr. Div. 1987). See also Plaza
Department Stores v. Duchnak, 26 A.S.R.2d 82. (Tr. Div. 1994) ("the
court must . . . resolve all doubts as to the existence of genuine issues of
fact against the moving party, and view all inferences from the facts in
the light most favorable to part[y] opposing the motion"). On this basis,
Alai`asa's motion for summary judgment must fail.
Order
Accordingly, plaintiff's motion for summary judgment is hereby denied.
Counsel are directed to confer with the Clerk of Courts as to the earliest
available trial date.1
It is so ordered.

 

JIANG SHUNZHE, et al., v. DAEWOOSA SAMOA, LTD. and KIL-SOO LEE


 

JIANG SHUNZHE, et al., Plaintiffs,

v.
DAEWOOSA SAMOA, LTD. and KIL-SOO LEE, Defendants.
____________________
NGUYEN THI NGA, et al., Plaintiffs,
v.
DAEWOOSA SAMOA, LTD., KIL-SOO LEE,
TOURISM COMPANY 12, and IMS, et al., Defendants,
and
TOURISM COMPANY 12, Cross-Claimant/Counterdefendant,
v.
DAEWOOSA SAMOA, LTD. and KIL-SOO LEE,
Cross-Defendants/Counterclaimants,
____________________
NEW STAR TRADING COMPANY, LTD., Plaintiff/Counterdefendant,
v.
DAEWOOSA SAMOA, INC., and KIL-SOO LEE, Defendants/Counterdefendants.
____________________
AMERICAN SAMOA POWER AUTHORITY,
SEUNG KYU MOON, IN SAENG LEE, JElL VENTURES CO., LTD., and SAMOAN EMPLOYEES, Intervenors.
____________________
AMERICAN SAMOA GOVERNMENT, Necessary Party.
High Court of American Samoa
Trial Division
CA No. 68-99
CA No. 133-99
CA No. 93-00
April 16, 2002

[1] Certification of a class action under T.C.R.C.P. 23(b)(3) is appropriate where questions of law and fact common to members of the class predominate over any questions affecting only individual members, and a class action would be superior to other available methods for fair and efficient adjudication of the controversy.
[2] In order to maintain a class suit, each plaintiff must recover damages at the same rate.
[3] The primary function of the service of process rules is to bring notice of the commencement of an action to a defendant’s attention and to provide a ritual that marks the court’s assertion of jurisdiction over the lawsuit.
[4] The Jurisdictional Immunities of Foreign States Act contains provisions for the service of process upon foreign governmental instrumentalities and agencies.
[5] The Jurisdictional Immunities of Foreign States Act was enacted to provide access to courts of the United States, its states and territories, for resolution of ordinary legal disputes involving a foreign sovereign, their subdivisions, agents, and instrumentalities.
[6] With regard to application of the Jurisdictional Immunities of Foreign States Act, the High Court of American Samoa constitutes a court of the United States.
[7] Service in accordance with the Jurisdictional Immunities of Foreign States Act is made upon a foreign state’s agency or instrumentality by delivery of a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States.
[8] Individual who served as authorized representative for two foreign government-related entities, who regularly reported to such entities, and who was specifically entrusted to deal with legal matters pertaining to employment of workers from such foreign country, was an “agent” under the Jurisdictional Immunities of Foreign States Act and authorized to receive process on behalf of such entities in employment-related case.
[9] Under the Jurisdictional Immunities of Foreign States Act, a court has subject matter jurisdiction to adjudicate suits against foreign
140
government-related agencies so long as the activity concerned is not covered by the JIFSA’s immunity provisions.
[10] A foreign sovereign is not immune from a court’s jurisdiction in any case in which the action is based upon a commercial activity carried on in the United States by the foreign state.
[11] In order to satisfy the exception to immunity under the Jurisdictional Immunities of Foreign States Act, the alleged conduct must be a commercial activity, in which a private actor could take part; and there must be a nexus between the plaintiffs’ action and the commercial activity.
[12] Where foreign, government-related entities recruited, exported, and employed workers in a for-profit garment manufacturing company in American Samoa, such actions clearly constituted commercial activity in which a private actor could equally participate and was the premise of the workers’ lawsuit. Therefore, such entities were not immune to suit under the Jurisdictional Immunities of Foreign States Act.
[13] Under the Fair Labor Standards Act, employees are provided with a civil right of action against any employer who violates certain provisions of the act.
[14] Under the Fair Labor Standards Act, the Secretary of Labor is authorized to sue on behalf of aggrieved employees for injunctive or equitable relief.
[15] Once the Secretary of Labor files a complaint under section 217 the Fair Labor Standards Act, the Secretary’s suit takes precedence over any employee’s private suit brought under the act.
[16] The preclusive effect of a Fair Labor Standards Act suit filed by the Secretary of Labor is limited to those suits filed under § 217 of the FLSA or which are filed in a federal district court.
[17] The term “employ” in the FLSA should be interpreted expansively and the term “employer” covers some parties who might not qualify as such under a strict application of traditional agency law principles.
[18] Whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records are factors which provide guidance for courts in determining whether a party constitutes an
141
“employer” under the Fair Labor Standards Act, yet they are neither exclusive nor conclusive factors.
[19] Foreign, government-related entities constituted “employers” within the meaning of the Fair Labor Standards Act where such parties had the power to hire and fire workers; were instrumental in screening and selecting the workers; possessed authority to threaten workers and their families with penalties; utilized supervisors to control workers’ everyday work-place situation; helped determine the workers’ rate of pay, method of payment, and hours of work; and maintained employment records.
[20] Section 216(b) of the Fair Labor Standards Act requires employees similarly situated with named plaintiffs to provide the court with affirmative notice of their intentions to be part of the lawsuit.
[21] In order to “opt in” to a Fair Labor Standards Act lawsuit, one need only file a written consent with the court where the suit is pending.
[22] The Fair Labor Standards Act provides minimum substantive rights to employees which may not be waived by agreement.
[23] Section 206(a) of the Fair Labor Standards Act prescribes that no employee employed in American Samoa may be paid less than American Samoa’s established minimum wage.
[24] In order to calculate the hourly rate paid under the Fair Labor Standards Act, the court multiplies the monthly salary by 12 to obtain the total pay for the year and divides by 52 to obtain the pay per week, and again by 40 to determine the hourly rate.
[25] Overtime must be paid at the rate of one and one-half times the employee’s regular rate of pay.
[26] Any agreed-upon deduction from overtime pay that effectively diminishes such pay below the statutory requirement is invalid.
[27] Under the Fair Labor Standards Act, it is unlawful for an employer to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under the act, or has testified or is about to testify in any such proceeding.
[28] Remedies under the Fair Labor Standards Act include, but are not limited to, back-wages, attorneys’ fees, costs, and liquidated damages.
142
[29] Liquidated damages of an amount equal to unpaid minimum and overtime wages are recoverable against an employer, unless there is evidence that an employer acted in good faith and attempted to comply with Fair Labor Standards Act requirements.
[30] An employer’s knowledge that an employee might be covered by the Fair Labor Standards Act, and failure to further inquire into the status of that employee is sufficient to establish the employer’s lack of good faith.
[31] Absent the parties’ agreement on the governing law, or an American Samoa statutory or common-law choice of law standard, the Court will turn to common law generally to provide guidance in determining the choice of law applicable to a contract.
[32] The general rule is that the law of the place of performance governs the interpretation of a contract for services, and will only be trumped if another state has a more significant relationship with the transaction or parties.
[33] Although a corporate officer or owner is normally not subject to personal liability for the acts of the corporation, the corporate shroud of protection from liability may be pierced, and the corporate officer or owner held personally liable for the conduct of the corporation, if the corporation is nothing more than his alter ego.
[34] A party is an alter ego of a corporation when there is such a unity of interest and ownership that the individuality, or separateness, of said person and corporation has ceased and the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.
[35] The alter ego doctrine treats the corporation and the dominating person as one person, so that any act committed by one is attributed to both, and if either is bound, by contract, judgment, or otherwise, both are equally bound.
[36] Where defendant was the sole real shareholder and owner of corporation during the majority of the time at issue, did not adhere to corporate formalities, siphoned off corporate funds for his own use, and left corporate bank accounts barren of funds, court rightly determined that alter ego doctrine applied.
143
[37] To determine whether an employment relationship exists between two parties the court must look beyond the terms of the contract.
[38] In determining whether an employment relationship exists, the traditional common-law rule focuses the inquiry on the alleged employer’s degree of control over the alleged employee.
[39] A principal will be bound and liable for the acts of his agent performed with actual or apparent authority from the principal, and within the scope of the agent’s employment.
[40] Where employment contracts were illegal under the Fair Labor Standards Act, court possessed the ability to modify the illegal terms to make them conform to the law.
[41] The court may modify an illegal contract term without invalidating the entire contract.
[42] Contract requirement that workers pay sums of money up front was determined to be an illegal ploy to defraud workers and their families of money, and to obligate workers to term of their employment contracts and said contract term was properly stricken—thereby obligating employer to repay said amounts.
[43] When a class action is brought on behalf of multiple aggrieved employees against employer, where possible individualized remedies should be utilized because it will compensate the claimants without unfairly penalizing the employer.
[44] Where court was unable to make individual back pay awards for certain workers due to lack of payroll records, court properly employed a class-wide method to ascertain the workers’ damages by calculating the average overtime earned and payments received of the named and identifiable members of each corresponding worker’s group.
[45] Where live-in workers, who were promised room and board as part of their employment contracts, were given substandard meals and accommodations, including a total lack of fresh fruits or vegetables, such workers were not required to pay for room or board and were instead entitled to compensation for being subjected to such poor living conditions.
[46] American Samoa law requires that every alien carry their registration card on their person at all times.

[47] Where court determined that company illegally retained workers’ passports, and registration cards, without any legal right, and as a means of limiting the workers’ egress and ingress from the compound, such conduct warranted an independent assessment of damages.
[48] The immigration laws allow an alien worker’s sponsor almost unlimited discretion to revoke sponsorship, the only requirement being that the sponsor provide written notice to the immigration board and the person sponsored of his or her intent to end the alien’s sponsorship.
[49] Where workers were required to pay a substantial initial fee as part of their employment such clause of employment contract was held to be unconscionable.
[50] Generally, a contract to indemnify against the consequences of a wrongful act, or a contract of indemnity growing immediately out of, and connected with, an illegal or immoral act is void and will not be enforced by a court of justice.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate Judge.
Counsel: For Vietnamese Plaintiffs, Virginia L. Sudbury and Christa
Tzu-Hsiu Lin
For Chinese Plaintiffs, Afoa L. Su`esu`e Lutu and Deanna
Sanitoa
For Plaintiff/Counterdefendant New Star Trading Company,
Ltd., Marshall Ashley
For Intervenor American Samoa Power Authority, Roy J.D.
Hall, Jr.
For Intervenors Seung Kyu Moon and In Saeng Lee, Pro Se
For Intervenor Jeil Ventures Co., Ltd., Charles V. Alai`ilima
For Necessary Party American Samoa Government, Henry
Kappel, Legal Counsel to the Governor
For Defendants/Cross-Defendants/Counterclaimants Daewoosa
Samoa, Ltd. and Kil-Soo Lee, Aitofele T. Sunia and Marie A.
Lafaele
For Defendant/Cross-Claimant/Counterdefendant Tourism
Company 12, Paul F. Miller
For Defendant IMS (no appearance)
OPINION AND ORDER
A class of immigrant workers from China in CA No. 68-99 (“the Chinese workers”) filed suit against defendants Daewoosa Samoa, Ltd. (“Daewoosa Samoa”) and Kil-Soo Lee (“Lee”) for allegedly breaching

terms of their employment contracts, and committing other civil wrongs, all stemming from their employment at the Daewoosa Samoa garment factory in American Samoa.
Later, a class of immigrant workers from Vietnam in CA No. 133-99 (“the Vietnamese workers”) filed suit against Daewoosa Samoa and Lee for allegedly violating the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C.A. §§ 201-219,1 breaching terms of their employment contracts, and committing other civil wrongs, in connection with their employment at the same Daewoosa Samoa facility. Initially, the American Samoa Government (“ASG”) and other individuals were also named as defendants in CA No. 133-99, but they were dismissed from the action at various junctures during the pretrial proceedings.
CA No. 68-99 and CA No. 133-99 were consolidated in due course. Still later, defendants IMS2 and Tourism Company 12 (“TC12”) were added, with the court’s permission, as defendants in CA No. 133-99.
Plaintiff New Star Trading Company, Ltd. (“New Star”) filed a separate action, CA No. 93-00, against Daewoosa and Lee to recover certain property allegedly owned by New Star, but in the possession of Daewoosa Samoa and Lee. Daewoosa Samoa and Lee counterclaimed for monetary damages in this action. We consolidated CA No. 93-00 with CA No. 68-99 and CA No. 133-99, and permitted intervention by the American Samoa Power Authority, Seung Kyu Moon, In Saeng Lee, Jeil Ventures Co., Ltd., and the Samoan employees, and joinder of necessary party ASG, in an effort to resolve all issues involving Daewoosa Samoa and Lee in the same bundle. These additional procedural events, however, took place after the trial of CA No. 68-99 and CA No. 133-99. We therefore made it clear that in the absence of an unexpected compelling reason, we would not necessarily issue our decisions in CA No. 93-00 and on the intervenor and necessary party issues simultaneously with our decision in CA No. 68-99 and CA No. 133-99. As it turned out, we actually disposed of CA No. 93-00 and the intervenor and necessary party claims earlier in this manner.
On January 10, 2000, under the American Samoa injunction laws, A.S.C.A. §§ 43.130l-.l313, the U.S. Secretary of Labor filed a suit in this court, CA No. 2-00, against Daewoosa Samoa and Lee to permanently
1 All citations in this opinion and order to FLSA generally and to specific
FLSA sections include reference to 29 U.S.C.A.
2 Though joined by this name, IMS is actually the acronym for
International Manpower Supply. IMS will be identified by the acronym
throughout this opinion and order.

enjoin Daewoosa Samoa and Lee from violating FLSA §§ 206, 207, 211(a)(1), and 215(a)(1), (a)(2), and (a)(5). This action was brought in connection with the investigation by the Department of Labor of nonpayment of minimum and overtime wages owed with respect to 71 of the Daewoosa Samoa foreign workers. IMS and TC12 were not parties. Pursuant to the parties’ stipulation, Daewoosa and Lee were preliminarily enjoined on February 10, 2000, from violating the FLSA as set forth by the terms of a proposed consent judgment signed by the parties on August 2, 1999, and filed with the stipulation. Since then, the action has stood still and remains unresolved. The impact of CA No. 2-00 on CA No. 68-99 and CA No. 133-99 is discussed below.
Introduction
The combined CA No. 68-99 and CA No. 133-99 cases are made more complicated by the diverse language and culture of the parties and witnesses involved. The plaintiffs originate from either China or Vietnam. Daewoosa Samoa’s owners hail from Korea. Contract performance took place in American Samoa. However, the negotiation and finalization of the employment contracts transpired in either China or Vietnam.3
The social barriers between the parties was evident before and during trial. Throughout the proceedings, testimony was, as became necessary or appropriate, translated into five different languages, English, Samoan, Korean, Vietnamese, and Chinese. For the most part, amateur translators were necessarily employed, and unsurprisingly, the translations were difficult and at times ineffective.
Counsel did little to abridge this complexity. The pretrial maneuvering was intricate and exhaustive. During the trial, perhaps one of lengthiest in the recent history of this court, they complicated our fact-finding mission by introducing heaps of unmarked, seemingly irrelevant evidence, leaving us with the task of filtering through and searching for relevant documents and records amid these piles. Nonetheless, we were ultimately able to assemble the relevant facts—and apply applicable legal principles to them.
The major entities on the defense side of this case include two corporations, two Vietnamese employment-recruiting agencies, and several individuals. Both corporations are similarly named. Daewoosa
3 The contracts were initially written in either English or Vietnamese,
and accompanied by their Vietnamese or English translations,
respectively.
147
Samoa, which was incorporated in American Samoa, was the operational employer of the Chinese workers and the Vietnamese workers. U.S.A. Daewoosa, Ltd. (“Daewoosa USA”), which was established in Korea, appeared as the named employer to the Vietnamese workers’ employment contracts. Individuals affiliated with these corporations include Lee, a Korean national, the primary owner and apparent manager of Daewoosa Samoa, and Um Sang Hee (“Hee”), a Korean national, the president of Daewoosa USA, shareholder and vice-president of Daewoosa Samoa, and primary negotiator for and signatory to the Vietnamese workers’ employment contracts.
IMS and TC12 are Vietnamese government-connected agencies arranging overseas employment of Vietnamese nationals. They assisted in recruiting, negotiating, and implementing the Vietnamese workers’ employment with Daewoosa Samoa. TC12 is organized under a general directorate, which is governed by the government of Vietnam. Because both IMS and TC12 operate Vietnamese labor export organizations, all of their labor contracts must be approved and authorized by the Vietnam Department of Administration of Foreign Employed Labour Force, the Vietnam government agency empowered to oversee all foreign labor contracts. Nguyen Viet Chuyen (“Chuyen”), a Vietnamese national employed by TC12, became charged with supervisory responsibility over the IMS and TC12 Vietnamese workers at the Daewoosa Samoa factory.
Procedural History
The complaints in CA No. 68-99 and CA No. 133-99 were filed, respectively, on July 2, 1999 and December 23, 1999. After the complaint was filed in CA No. 133-99, this action became a tangled web of preliminary filings and orders. On December 29, 1999, the court issued a stipulated preliminary injunction preventing Daewoosa Samoa: (1) from removing or causing the removal of the Vietnamese workers from American Samoa or from otherwise disturbing the Vietnamese workers; and (2) from terminating any immigration sponsorships of the Vietnamese workers without affording them opportunities to consult with the Law Office of Virginia Sudbury and to have a hearing before ASG’s Immigration Board.
On January 27, 2000, the Vietnamese workers requested class action certification under T.C.R.C.P. 23, in connection with their amended complaint filed on January 14, 2000 and certain proposed amendments to the amended complaint. On February 24, 2000, we ruled out certification of a Rule 23 class action under the purview of the FLSA,
148
but left open the certification as to non-FLSA claims.4 In the same ruling, we granted the workers leave to amend their complaint to allege their statutory claims under the FLSA.
On April 11, 2000, we consolidated CA No. 68-99 and CA No. 133-99, and certified the class action status of all the workers’ claims alleged in these cases, except those rooted in the FLSA, which were later amended. Accordingly, on January 12, 2001, counts 6 and 7 were amended to allege violations of FLSA §§ 206(a) and 207(a)(1), respectively, and counts 13 and 19 were amended to allege violations of FLSA § 215(a) (3). On January 17, 2001, approximately 168 Vietnamese workers filed signed consents to the FLSA litigation.
Certain named defendants were dismissed and added in CA No. 133-99. On January 25, 2000, ASG was dismissed as a party defendant. We dismissed as defendants Moon Seung Kyu on February 18, 2000, and Mary and Togiola Tulafono on April 4, 2000. Jo Heung Soo was dismissed as a defendant on February 6, 2001. On December 15, 2000, IMS and TC12 were added as defendants with the court’s permission. An amended complaint reflecting this addition of parties was filed, and on December 21, 2000, TC12 answered and cross-claimed against Daewoosa Samoa for contractual specific performance and monetary damages. IMS did not answer or otherwise in any manner appear or participate in the proceedings of CA No. 133-99.
Since the filing of CA No. 133-99, the Vietnamese workers called upon the court numerous times to adjudicate pretrial contempt filings against Daewoosa Samoa and Lee for violating the court’s orders and harassing the Vietnamese workers because of the their involvement in this lawsuit.
On February 18, 2000, we held Daewoosa Samoa and Lee in contempt for attempting to withhold the identification cards of one of the Vietnamese workers and for threatening to send five of them back to Vietnam unless they returned to work. We also required Daewoosa Samoa and Lee, or their agents: (1) to return passports to the Vietnamese workers; (2) to not confiscate their identification cards when the workers leave the compound; (3) to provide copies of Immigration Board decisions affecting the workers to their attorneys; and (4) to furnish the workers nutritious meals.
On April 4, 2000, we held Daewoosa Samoa and Lee in contempt for attempting to send at least one more of the Vietnamese workers out of the territory without consulting their attorney in compliance with the
4 The order slightly amended an earlier order dated February 22, 2000.
149
December 29, 1999, preliminary injunction. Additionally, we enjoined Daewoosa Samoa and Lee from preventing any of the Vietnamese workers from working at Daewoosa Samoa because of their involvement as plaintiffs in this lawsuit.
On July 14, 2000, we enjoined Daewoosa Samoa and Lee: (1) from imposing overcrowded living conditions on the Vietnamese workers, including but not limited to situations in which any of the workers must share single beds; (2) from pressuring any of the workers to terminate or in any other manner prevent or discourage them from prosecuting these actions; and (3) from in any manner preventing the workers from exercising their choice of associates in American Samoa outside of Daewoosa Samoa’s premises.
On September 22, 2000, we ordered Daewoosa Samoa and Lee to immediately put back to work 38 of the Vietnamese workers. Daewoosa and Lee listed these 38 workers in a letter to ASG’s Immigration Board, citing unsubstantiated reasons for returning them to Vietnam. On September 26, 2000, we ordered Daewoosa Samoa and Lee to return all of the Vietnamese workers to work, including specifically eight workers named as “troublemakers” and prevented from working by Lee because
they attended the September 22, 2000, court hearing, no later than the following Monday, October 2, 2000.
On October 23, 2000, we denied the motion by Daewoosa Samoa and Lee to terminate several of the Vietnamese workers who were pregnant, in the absence of any established safety or other legitimate concern, and ordered that the pregnant workers be returned to appropriate work, with retroactive pay from October 2, 2000. We further held Daewoosa Samoa and Lee in contempt for failing to heed earlier orders.
On December 14, 2000, we issued orders on several matters. Included were: (1) directions to Daewoosa Samoa and Lee to fully pay the wages, less authorized tax deductions, of the Vietnamese workers for the period from October 2 to November 28, 2000, without any limitation on other unpaid wage obligations; (2) directions to Daewoosa Samoa and Lee, in accordance with their commitment on December 7, 2000, to arrange and pay for transportation of the Vietnamese workers desiring to return to Vietnam, the first 35 within three weeks, and the remaining workers thereafter in groups of varying size at reasonable intervals; (3) permission by stipulation to preserve the testimony of returning Vietnamese workers by pretrial videotaped depositions; and (4) denial as impractical of a requested order preventing Daewoosa Samoa and Lee from contacting the Vietnamese workers.
150
The requested no-contact order was prompted by the altercation between several Samoan employees and Vietnamese workers on November 28, 2000. This event arose out of arguments between Daewoosa Samoa’s floor manager and the Vietnamese workers who were not working and Lee’s directions to the floor manager to remove the workers. One of the Vietnamese workers, Truong Thi Le Quyen, lost an eye during the ensuing melee. We did not make detailed findings on this event and responsibility for it because the evidence presented was inconclusive and the liability issue was not then before us. Clearly, however, many of the Vietnamese workers feared returning to work after this incident and were motivated to return to Vietnam.
On January 10, 2001, we granted the Vietnamese workers’ application to establish a receivership over Daewoosa Samoa, based on its apparent financial instability, to secure Daewoosa Samoa’s remaining assets, oversee the provision of food to the workers and their repatriation, and evaluate Daewoosa Samoa’s ability to continue business operations. On January 12, 2001, we appointed Southwest Marine of Samoa, Inc. as the receiver.
When the need no longer existed, we terminated the receivership and discharged the receiver on June 27, 2001. At that time, the garment factory had been inoperable since January 2001 and had no prospect of resuming operations, most of Daewoosa Samoa’s immigrant workers had departed American Samoa, and ASG had completed an initial inventory of property on the Daewoosa Samoa premises and agreed to assume custody of and security responsibility for the factory compound and property located there.
Well after class certification, in August of 2000, one of the representative workers, Nu Thi Nga, who was recruited by IMS and arrived in American Samoa on March 8, 2000, died from causes unrelated to this lawsuit.5 Although the Vietnamese workers did not seek a substitute for the deceased representative plaintiff in accordance with T.C.R.C.P. 25(a), this cause of action with regards to the remaining named and unnamed Vietnamese workers was not extinguished, because class certification had been court approved prior to the representative plaintiff’s death, and other named representative plaintiffs remained.6
5 Nu Thi Nga died together with another Vietnamese worker, Dung Kim
Thi Vu. However, at the time of her death, Dung Kim Thi Vu was not a
representative plaintiff in this lawsuit.
6 Generally, when a class action has been certified, it acquires a legal
status separate from the interest of the named representative plaintiff.
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Finally, on January 18, 2001, trial began and, after 18 trial days, concluded on February 22, 2001. Counsel Virginia L. Sudbury and Christa Tzu-Hsiu Lin for the Vietnamese plaintiffs, Marie A. Lafaele for Daewoosa Samoa and Lee, and Paul F. Miller for TC12 were present throughout the trial. Counsel Afoa L. Su`esu`e for the Chinese plaintiffs was present at proceedings immediately pertaining to his clients. The remaining counsel did not attend the trial. IMS was not represented by counsel and did not present any evidence.
Facts
A. Workers’ Recruitment
This saga apparently originated in Korea. Events then revolved around travel to China and Vietnam, and all the while traversing back and forth between these countries and American Samoa.
Sometime in September 1998, Lee traveled to China and enlisted workers to do miscellaneous jobs at the Daewoosa Samoa garment manufacturing facility in American Samoa. A total of 18 Chinese nationals, now comprising the Chinese workers, were enlisted. They arrived in American Samoa in two separate groups. An initial group of 13 arrived in October 1998, and began working on October 14, 1998. The remaining five arrived sometime in February 1999, and began working on March 1, 1999.
At about the same time, Lee sought employees from Vietnam to work at the Daewoosa Samoa garment factory. He specifically authorized Hee, president of Daewoosa USA, to enter into contracts on behalf of Daewoosa Samoa for this purpose. Hee, in turn, engaged IMS and TC12 to assist in recruiting Vietnamese nationals to work for Daewoosa Samoa. Contract negotiations went back and forth between the parties. IMS and TC12 representatives either traveled to Daewoosa USA headquarters in Korea or Daewoosa USA representatives, Hee and Song Dae Lee, traveled to Vietnam to negotiate and finalize the terms of the contracts for Vietnamese nationals, most of whom now comprise the Vietnamese workers. Daewoosa USA representatives, with IMS and TC12 representatives, screened the prospective Vietnamese applicants identified by IMS and TC12. They eventually recruited more than 250 Vietnamese nationals to work at the Daewoosa Samoa garment factory.
See Sosna v. Iowa, 419 U.S. 393, 399 (1975); see also Jones v. Jones,
148 F.R.D. 196 (W.D.KY. 1993) (allowing the unorthodox pursuit of a
class action complaint although representative plaintiff died a year
before class certification).
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Although most of the Vietnamese workers were recruited by either IMS or TC12, approximately 6 Vietnamese workers were independently recruited by Daewoosa Samoa and Lee.
The Vietnamese workers arrived in American Samoa in groups throughout the years 1999 and 2000. Groups of IMS recruited workers arrived on February 8, 1999, March 8, 1999, May 14, 1999, and June 12, 1999. TC12 recruited workers arrived in groups arriving on July 15, 1999, July 19, 1999, July 22, 1999, July 26, 1999, August 3, 1999, August 10, 1999, August 24, 1999, October 1, 1999, January 1, 2000, May 18, 2000, and May 25, 2000. The independently recruited Vietnamese workers arrived on December 20, 1999.
B. Employment Contracts
Both the Chinese workers and Vietnamese workers entered into employment contracts with their prospective employers. Upon their arrival in American Samoa, each of the Chinese workers executed contracts with Daewoosa Samoa, which provided eight hour workdays and $390.007 in monthly basic wages. The contracts also provided Daewoosa Samoa would supply room and board, for which the workers were required to pay a monthly fee of between $100.00 to $150.00.
The Vietnamese workers initially signed individual contracts to work at Daewoosa Samoa with either their respective recruiting agency in Vietnam, or Daewoosa USA. Then, when the workers arrived at the Daewoosa Samoa factory, Daewoosa Samoa attempted to have each Vietnamese worker sign an altered contract. Each IMS recruitee signed a contract with IMS (“IMS-worker contracts”), and each TC12 recruitee executed an employment contract with TC12 (“TC12-worker contracts”). Each independent worker also entered into individual contracts to work at Daewoosa Samoa as evidenced by an employment contract between one of the independent workers, Ha Thi Huong, and Daewoosa USA (“independent worker-Daewoosa USA contracts”). Another set of contracts that outlined the terms of the TC12 recruited Vietnamese workers’ employment, was executed by TC12, and Hee, on behalf of Daewoosa USA (“TC12-Daewoosa USA contracts”).
Two TC12-Daewoosa USA contracts were entered. The first contract, dated June 6, 1999, concerns the recruitment of 150 “machinists.” The other, dated July 15, 1999, involves the employment of 100 “machinists.”
7 This amount and all amounts stated below are expressed in U.S. money
terms.
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Although Hee’s stamped signature appears on the TC12-Daewoosa USA contracts, and Hee occupied the table at which the formal execution of the contracts took place, Hee incredibly repudiates the use of her signature stamp, or in any way consenting to the agreements. In addition, Hee incredibly disavows any relationship between Daewoosa USA and Daewoosa Samoa. The close affiliation of both corporations was clearly established at trial.
Daewoosa USA directed substantial sums of money, including one payment of at least $20,000, in investments and loans to Daewoosa Samoa. Furthermore, Daewoosa USA acted as the conduit for the Vietnamese workers’ employment, including transferring the workers’ initial fees received from IMS and TC12 to Daewoosa Samoa. Also, several documents, including the TC12-Daewoosa USA, the independent worker-Daewoosa USA contracts, and Hee’s business card, list Daewoosa USA with Daewoosa Samoa’s American Samoa address, telephone number, and fax number.
The terms of the IMS-worker, TC12-worker, independent worker-Daewoosa USA, and TC12-Daewoosa USA employment contracts state that the employer will provide the workers’ with free suitable housing and food. The TC12-Daewoosa USA, and the independent worker-Daewoosa USA contracts further allowed for continuous compensation for the workers when work was interrupted for no fault of their own. The IMS workers understood their contracts to include the continuous wage provision.
The TC12-Daewoosa USA contracts further provided an “arbitration” clause. However, rather than the customary interpretation of arbitration, it was understood that the clear meaning of the term “arbitration,” translated from a Vietnamese writing, was judicial resolution of any contract dispute.
At some time after the Vietnamese workers arrived in American Samoa, Daewoosa Samoa attempted to execute yet another contract with each of the Vietnamese workers (“Daewoosa Samoa-worker contracts”). According to Daewoosa Samoa and Lee, the Daewoosa Samoa-worker contracts, written only in English, eliminated Daewoosa Samoa’s responsibility to pay for the workers’ food and lodging, and to compensate the Vietnamese workers when work was interrupted. Some members of the earlier arriving IMS groups had the benefit of a Vietnamese translation of the new contracts and refused to sign them. However, without having any translation in their language, members of the subsequently arriving Vietnamese groups executed the new contracts.
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While the workweeks for the Vietnamese workers were similarly expressed in their contracts as 40-hour workweeks, the monthly salaries of some of the Vietnamese workers initially differed. The TC12-worker contracts, and independent worker Daewoosa USA contracts guaranteed each employee monthly wages of $408.00 per month, whereas the IMS-worker contracts provided monthly wages at $390.00 per month. Apparently, these two amounts were premised upon the parties’ mistaken belief that the amounts complied with lawful U.S. minimum wage applicable to American Samoa. In any event, when the IMS recruits received their first paychecks their earnings reflected basic monthly wages of $408.00 rather than $390.00.
The Chinese workers’ contracts and Vietnamese workers’ contracts were similar in some respects. Overtime wages for both the Chinese workers and Vietnamese workers were calculated at 150% of their regular wages and then subjected to a varying deduction. The TC12-Daewoosa USA contracts contain reference to a 50% deduction from the Vietnamese workers’ overtime wages to cover items identified as board, lodging, and security. In practice, however, overtime deductions were applied to the foreign Daewoosa Samoa workers across the board. The amount of the overtime deduction was inconsistent and wide-ranging from 40% to 60% of the workers’ overtime pay, resulting in irregular and substantially reduced overtime wages.
It was agreed that payroll deductions of 7.65% and 2% would be taken from the workers wages for the mandatory payment of U.S. Social Security contributions and American Samoa income taxes, respectively. Although Daewoosa Samoa and Lee withheld these amounts from the workers’ salaries, they failed to pay the withheld contributions to the Social Security Administration, or the withheld taxes to ASG except for a short period beginning in January and ending in May 2000.
Prior to employment, the Chinese workers and Vietnamese workers were required to pay their employers substantial initial fees for various purposes. The Chinese workers each paid Daewoosa Samoa and Lee an initial fee of $7,683. Each of the Vietnamese workers recruited by IMS paid IMS $3,000.00, and those recruited by TC12 paid TC12 $4,000.00, portions of which IMS and TC12, in turn, transferred to Daewoosa Samoa and Lee. Each of the independently recruited Vietnamese workers paid Daewoosa Samoa and Lee, through an independent employment recruiter, approximately $5,000. The monies paid by the workers were said to cover government fees, airfare to American Samoa, a security deposit, and ASG immigration and employment fees. The workers borrowed money for this purpose. At least one Vietnamese
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worker sold her home to make the requisite payment.
Out of the fees that TC12 collected from the Vietnamese workers, it transferred approximately $450,000.00 to Daewoosa Samoa and Lee for the workers’ deposit, immigration fees, and other miscellaneous fees. Two hundred and fifty thousand dollars was specifically earmarked for the workers’ immigration bonds. However, ASG allowed Daewoosa Samoa and Lee to post a lump-sum immigration bond for all of the workers in the total amount of $10,000.
C. Retention of Passports, and ID Cards
Upon their arrival in American Samoa, or soon thereafter, the Chinese workers were required to relinquish their passports and airline tickets to Lee. Similarly, the Vietnamese workers tendered their travel documents and tickets to an IMS or TC12 representative, if they traveled with one, or to Lee, if they did not. Lee allegedly took these documents for the purpose of immigration processing. However, even after the workers’ immigration papers were completed and their identification cards were issued, Lee continued to retain their travel documents. Up until the time of trial, Lee had not returned at least three Vietnamese workers’ passports.
A curfew was enforced on all the Chinese workers and Vietnamese workers. On weekdays, the workers were required to be in the compound before 9:00 p.m. On weekends, the curfew was slightly extended to 10:00 p.m. Apparently, the curfew was initiated upon the advice of Daewoosa Samoa’s former counsel, who also happened to be the head of the aumaga, or village police, of the nearby village of Nu`uuli, to have workers return to the compound by these times, corresponding with the nightly Nu`uuli village sa, or curfew. However, at least some workers who violated the curfew were unexpectedly kicked, slapped, or punched by Daewoosa Samoa’s security guards upon returning to the compound.
The workers’ egress from and ingress to the compound was further limited by a Daewoosa Samoa policy requiring each worker to leave their ASG issued identification cards, formally named certificates of alien registration receipt cards, at the compound’s main gate before leaving. As a result, workers remained within the compound fearful of traversing beyond its perimeters without their ID cards on their person, an American Samoa immigration law requirement.
D. IMS and TC12 Supervision of the Vietnamese Workers
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While IMS and TC12 remained distinctly responsible for their respective recruits, during the summer or fall of 1999 these agencies jointly engaged Chuyen, who had initially been hired by TC12, to supervise all the Vietnamese workers. In reality, Chuyen served as more than a mere supervisor of the employees.
In an October 23, 2000 letter, the Vietnam government’s Department of Administration of Foreign Labour Force confirmed to Lee that Chuyen served as both the IMS and TC12 representative in charge of managing the workers sent by both IMS and TC12 to American Samoa. The letter also delegated Chuyen the authority to discuss and settle the workers’ legal disputes with Daewoosa Samoa and Lee.
Chuyen did more than merely oversee the Vietnamese workers. He was also given broad authority to discipline the workers, including sending regular reports of the workers’ comportment with management policies to IMS and TC12. His reports recommended adverse actions against the workers, including employment suspension or termination. Chuyen’s reports clearly kept IMS and TC12 appraised of all that transpired in American Samoa regarding the Vietnamese workers, including the filing of this lawsuit. At one point in April 2000, TC12 wrote directly to the Vietnamese workers, instructing them to drop this lawsuit. IMS and TC12 also threatened workers or their Vietnam based families with penalties if their protests continued.
Chuyen also served as the communicator between the Vietnamese workers and Lee. All of Lee’s instructions to the workers were translated through Chuyen. In addition, Chuyen performed other managerial-type duties for Daewoosa Samoa, such as distributing the Vietnamese workers’ paychecks.
E. Living Conditions
The living quarters of the Chinese workers and Vietnamese workers consisted of approximately eight rooms with an estimated holding capacity of 36 people to each room. The typical room was furnished with two-tiered bunk beds equipped to hold one person per tier. The bunk beds were aligned close to each other in approximately two rows, which rows were opposite each other. A narrow corridor space was provided between the two rows of beds. At any given time, there were an insufficient number of beds to the number of workers, requiring that two workers share some beds.
Each room was equipped with a shared bathroom facility, consisting of showers and toilets. There were approximately one to two showers, and
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two to five toilets in each bathroom facility. The showers and toilets were not maintained, and some remained permanently broken. Toilet paper, and hot water were not provided.8
Workers testified that the meals prepared by Daewoosa Samoa and Lee were at times barely edible. The food principally consisted of a starch and a type of vegetable, usually cabbage soup. Fresh vegetables and fruits were not provided. Meat and chicken, or similar food, were not regularly provided, but given in only two to three meals a week.
Dr. Heather Margaret, who testified as an expert on behalf of the Vietnamese workers, reviewed the nutritional value of the food served the workers. Dr. Margaret holds an M.D. from the Medical College of Pennsylvania, spent most of her medical career practicing family medicine, or comprehensive health care, and is currently employed at the LBJ Tropical Medical Center. After reviewing menus of Daewoosa prepared foods, Dr. Margaret was unable to form an opinion as to the nutritional value of meals because the menus did not provide corresponding portion sizes. However, she did opine that the meals failed to meet U.S. Department of Agriculture intake requirements regarding fresh vegetables and fruits because of the total lack of such foods.
F. Payment of Wages
From the outset, the Chinese workers and Vietnamese workers were paid irregularly, and at times were not paid at all.
To the dismay of the Chinese workers, Lee failed to pay them for several months. Finally, sometime in May 1999, the Chinese workers retained an attorney to assist in getting their back earnings paid. In retaliation, Lee refused to allow the workers back to work. It is unclear what then immediately transpired. However, within two months, seven workers returned to work, and the remaining 11 were sent back to China. An accountant computed the pay still owed to the Chinese workers, deriving the hours worked from the workers’ personal diaries or records.
The Vietnamese workers suffered similar experience, all being paid sporadically. However, confusing evidence was adduced at trial
8 In 1999, the Department of Labor’s Occupational Health and Safety
Administration cited Daewoosa Samoa for a number of safety and health
violations, including its failure to maintain the men’s bathroom facilities,
equip the toilets with toilet paper, and provide running hot water, in
accordance with federal regulations.
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regarding the hours that the workers worked, and the payments that they actually received. While an accountant testified as to the Chinese workers’ unpaid wages, compiled from the workers’ detailed records, the Vietnamese workers did not present a similarly comprehensive accounting of their unpaid wages. The Vietnamese workers’ videotaped depositions were admitted into evidence. However, given the lack of any personally kept documentary corroboration, we did not find this evidence very reliable with respect to the number of hours that the workers worked. Also, the videotaped recordings were at times indistinct so that the witnesses’ testimonies could not be reliably discerned. Confusion over the Vietnamese workers’ payroll was further exacerbated when Daewoosa Samoa and Lee delayed producing the requested payroll summaries.
While the late produced payroll summaries provided individualized payroll information on the majority of the Vietnamese class members, summaries for some IMS and TC12 recruited Vietnamese workers were missing. Furthermore, while it appears that the Vietnamese workers’ agreed with Daewoosa Samoa’s figures as to the amount of wages already paid the workers, the provided summaries conflicted significantly with the Vietnamese workers’ closing argument presentation of the number of regular and overtime hours that they worked. Apparently, the Vietnamese workers’ computation of their regular hours was based on their understanding that they were entitled to compensation for periods of time when they did not work, basically entitling them to salary for the length of their stay in American Samoa. The workers’ presentation of the amount of overtime hours worked was less obvious. They presented varying testimonies regarding these hours. Yet, in their closing argument, they utilized the overtime hours recorded by Daewoosa Samoa and Lee to formulate their overtime hours worked, seemingly disregarding their testimonial evidence.
Clearly, there were several periods when the Vietnamese workers did not work. Earlier arriving IMS groups went unpaid for many weeks. By March 27, 1999, tension mounted amongst them, and a confrontation ensued between an uncompromising Lee and a large group of the IMS Vietnamese workers. For two days, March 27 and 28, 1999, the workers refused to work until Lee paid them. In reprisal for striking, Lee refused to feed them. By the third day, Lee provided food and asked them to return to work. The workers refused, insisting that their wages be paid first. When the workers persisted to strike, Lee unsuccessfully attempted to confiscate their ID cards. Insistent that the workers return to work, Lee had the representative workers arrested. They were incarcerated for three days, and eventually returned to Vietnam. It appears that tensions
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were finally appeased, however, and on April 26, 1999, the Vietnamese workers received their first paychecks of $709.00 for the pay period February 11 through March 27, 1999.
Soon after the Vietnamese workers’ March 1999 strike, in May of 1999, the U.S. Department of Labor began investigating the workers’ allegations of mistreatment. In September 1999, the Secretary of Labor and Lee reached a settlement, requiring that Daewoosa Samoa and Lee compensate workers for sums of up to $2,274 as back wages due for the period October 13, 1998 to May 13, 1999. However, after releasing the employees’ back pay, Lee secretly forced them to return the money. Three Daewoosa Samoa management representatives accompanied at least 20 Vietnamese workers by bus to a local bank to cash their settlement checks. The workers were threatened that they would not be allowed to work if they failed to comply. Four out of the 20 Vietnamese workers relented, and relinquished their cashed earnings back to Daewoosa Samoa. These four were allowed back to work.
Lee continued to restrict the remaining 16 from returning to work until they paid back their settlement proceeds. On December 18, 1999, nine of the 16 workers sought legal advice. Three days later, Lee retaliated and had the nine sent back to Vietnam. By December 21, 1999, all, except one, of the remaining seven returned to work. The one remaining, Nguyen Thi Nga, was not allowed to work until January 29, 2000.
During a brief span, from January through the end of May 2000, Daewoosa Samoa entered into an agreement with New Star Trading Co., Ltd. and Jakor Trading Co., Ltd., both of Seoul, Korea to manage the factory operations. During their management tenure, the joint management team regularly paid each worker the agreed upon wage of $408 per month.
Soon thereafter, working conditions at the factory rapidly deteriorated. During the month of June 2000, the Vietnamese workers laid idle, as the factory lay dormant because of a lack of materials. Workers were not paid. Work resumed in July and into August 2000, but the Vietnamese workers were still not paid. In September 2000, again there was no work because of a lack of materials. The workers returned to work in October and November 2000. However, the workers’ paychecks for these months were for insignificant small amounts.
Throughout the time that the Chinese workers and Vietnamese workers
were employed at Daewoosa Samoa, Daewoosa Samoa and Lee
deducted various amounts from their salaries. Varying amounts were
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deducted from the workers’ overtime pay. Also, the Chinese workers
were charged additional amounts for room and board. Room and board
fees were deducted from the Vietnamese workers’ wages as well,
notwithstanding the Vietnamese workers’ contract provision providing
that accommodations would be free.
On November 28, 2000, after the tragic melee at the factory that resulted in physical injury to several of the Vietnamese workers, including one employee’s loss of an eye, the workers refused to return to work. Weary of endless months of fighting for their basic wages, and frightened of Lee, many of the Vietnamese workers requested that they be returned to Vietnam. Most of the workers departed American Samoa for Vietnam or elsewhere during the period from January to March 2001. Many of the workers returned to their homeland. However, a significant number went to Hawaii and various parts of the continental U.S. under the new federal relief program designed to protect victimized immigrants.
G. Unrelated Death of Two Vietnamese Workers
In August of 2000, Nguyen Thi Nga, and Dung Kim Thi Vu, two IMS recruited Vietnamese workers, who arrived in American Samoa on March 8, 1999, died of drowning during a swimming excursion. Prior to her death, Nguyen Thi Nga remained employed with Daewoosa Samoa. However, as captured in a video taped production of the workers’ experiences at the Daewoosa Samoa factory, Dung Kim Thi Vu explained that she voluntarily left Daewoosa Samoa after 20 days of work. She further explained that Daewoosa Samoa paid her $200.00 for this period.
H. Daewoosa Samoa’s Corporate History
Daewoosa Samoa was incorporated in 1994, with its board of directors comprised of Heung Soo Jo as president, Seung Kyu Moon as vice-president and treasurer, and Mary Tulafono as secretary. Lee testified that these three ended their relationship with Daewoosa Samoa at various junctures in 1998 and 1999. Their positions remained vacant until June 2000 when Daewoosa Samoa’s articles of incorporation were amended showing the selection of three new board members. Lee replaced Heung Soo Jo as president, Um Sang Hee replaced Seung Kyu Moon as vice-president and treasurer, and Ui Seuk Jung replaced Mary Tulafono as secretary.
It appears that for the most part, Daewoosa Samoa failed to follow corporate formalities. No organizational meeting was held, no bylaws kept, nor board of directors meetings recorded. In fact, no evidence exists that any board meetings actually took place.
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The evidence on Daewoosa Samoas financial condition was equivocal at best. According to Lee, he invested $5 million of his own money in the Daewoosa Samoa corporation.9 Additionally, the company’s November 1999 balance sheet showed assets worth more than $8 million. Although TC12 provided a portion of the Vietnamese workers initial fees, several thousands of dollars, either directly or indirectly to Daewoosa Samoa bank accounts in American Samoa, the company’s bank records evidenced a pattern of negative funding reflecting the use or misuse of funds from TC12 or other sources.
Discussion
I. Jurisdictional Issues
A. Class Action and Standing
[1-2] In our April 11, 2000 order, we allowed these consolidated cases to proceed as a class action, and certified the class pursuant to T.C.R.C.P. 23(b)(3). The certification of the class under T.C.R.C.P. 23(b)(3) is appropriate as the “questions of law and fact common to the members of the class predominate over any questions affecting only individual members, and . . . a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” The adjudication of the Chinese workers and Vietnamese workers unpaid wages may necessarily involve somewhat individualized questions as to damages since each worker was employed for varying lengths of time. However, the common questions in this case predominate. The myriad of civil wrongs alleged against Daewoosa Samoa, Lee, TC12, and IMS stem from similar employment at the Daewoosa Samoa facility. The Chinese workers shared the same type of contract. For the most part, the Vietnamese workers shared the same type of contract. All workers were uniformly fed and housed at the Daewoosa Samoa compound, and were required to abide by the same working and boarding conditions implemented by Daewoosa Samoa and Lee. In addition, the differences in the measure of damages are not inconsistent with the requirement that in order to maintain a class suit, each plaintiff must recover damages at the same rate. See Kainz v. Anheuser-Busch, Inc., 194 F.2d 737, 741 (7th Cir. 1952).
9 Although Lee testified that he invested $5 million, no corporate stock
was issued to reflect this investment. In fact, the stock was not
distributed until June 2000 when a total of $10,000 one-dollar shares of
common stock were distributed amongst the corporate directors, namely
Lee acquired 6,000 shares, Ui Seuk Jung 2,000, and Hee 2,000.
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Initially, while reserving our right to redefine the class, we described the class as all non-Samoan garment workers who presently work and formerly worked at Daewoosa Samoa. The class excluded, and still excludes, all Daewoosa Samoa managers. We now further classify the class into sub-classes, a sub-class of all Chinese workers, and a sub-class of all Vietnamese workers.
The sub-class of Vietnamese workers is further diversified, in that some were recruited by IMS, others were recruited by TC12, and six were independently recruited by Daewoosa Samoa and Lee. Therefore, for purposes of delineating the responsibility that Daewoosa Samoa, Lee, IMS and TC12 had with respect to the Vietnamese workers that each recruited, we classify the Vietnamese workers’ sub-class into three groups, a sub-class of Vietnamese workers recruited by IMS, a sub-class of Vietnamese workers recruited by TC12, and a sub-class of independently recruited Vietnamese workers. Finally, for purposes of determining class-wide damages for those IMS recruited Vietnamese workers and those TC12 recruited Vietnamese workers for whom Daewoosa Samoa did not provide individualized payroll information, we further classify the IMS recruited Vietnamese workers’ sub-class, and the TC12 recruited Vietnamese workers’ sub-class into groups, corresponding with the date that each group arrived in American Samoa.
IMS group 1 consists of all those Vietnamese workers recruited by IMS that arrived in American Samoa on February 8, 1999. IMS group 2 consists of all those Vietnamese workers recruited by IMS that arrived in American Samoa on March 8, 1999. IMS group 3 consists of all those Vietnamese workers recruited by IMS that arrived in American Samoa on May 14, 1999. IMS group 4 consists of all those Vietnamese workers recruited by IMS that arrived in American Samoa on June 12, 1999. TC12 group 1 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on July 15, 1999. TC12 group 2 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on July 19, 1999. TC12 group 3 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on July 22, 1999. TC12 group 4 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on July 26, 1999. TC12 group 5 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on August 3, 1999. TC12 group 6 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on August 10, 1999. TC12 group 7 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on August 24, 1999. TC12 group 8 consists of all those Vietnamese workers recruited by TC12 that arrived in American
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Samoa on October 1, 1999. TC12 group 9 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on January 1, 2000. TC12 group 10 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on May 18, 2000. Finally, TC12 group 11 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on May 25, 2000.
In compliance with our April 11, 2000 order, notice of these proceedings was posted at conspicuous locales at the Daewoosa Samoa compound, and the same was mailed to as many off-island workers and former Daewoosa Samoa employees as possible. The notice adequately explained the nature of these proceedings and the requirement that uninterested members of the class must affirmatively opt-out by filing a written exclusion form with the court. Counsel for the Vietnamese workers provided a proper form. To date, the court has received no exclusion request.
B. Jurisdiction over IMS
IMS is a named party defendant to this lawsuit. However, IMS did not answer the amended complaint or otherwise appear at any stage of these proceedings. On December 15, 2000, service of process of the amended complaint, and accompanied summons was made upon Chuyen, the supervising manager of the Vietnamese workers in American Samoa, including those engaged by IMS. The question, therefore, is whether service upon Chuyen sufficiently notified IMS of this pending lawsuit.
[3] Consistent with our constitutional notions of due process, service of process is a notice-giving device. The primary function of the service of process rules is to bring notice of the commencement of an action to a defendant’s attention and to provide a ritual that marks the court’s assertion of jurisdiction over the lawsuit. 4 CHARLES ALAN WRIGHT & ARTHUR P. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1063 (2d ed. 1987) (discussing the function of Fed. R. Civ. P. Rule 4, which is paralleled by T.C.R.C.P. 4) [hereinafter WRIGHT &MILLER].
[4-6] Although IMS is a government related entity, it is unclear whether IMS is also a corporate entity or unincorporated association, making service appropriate under T.C.R.C.P. 4(d)(3). In 1976, Congress enacted the Jurisdictional Immunities of Foreign States Act (“JIFSA”), 28 U.S.C.A. §§ 1602-1611,10 which contains provisions for the service of process upon foreign governmental instrumentalities and agencies. The
10 All citations in this opinion and order to the JIFSA generally and to
specific JIFSA sections include reference to 28 U.S.C.A.
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JIFSA was enacted to provide access to courts of the United States, its states and territories, for resolution of ordinary legal disputes involving a foreign sovereign, their subdivisions, agents, and instrumentalities. JIFSA § 1602. The JIFSA defines the term “United States” to “[include] all territory and waters, continental or insular, subject to the jurisdiction of the United States.” JIFSA § 1603 (c). Clearly, for the limited purpose of applying the JIFSA in cases before it, this court is a court of the United States, as that term is broadly defined in JIFSA § 1603 (c).
Whichever provision is applicable, both T.C.R.C.P. 4(d)(3) and the JIFSA notice provisions contain similar language allowing service upon an authorized agent of a foreign entity.
T.C.R.C.P. 4(d)(3) provides in pertinent part:
Service shall be made . . . [u]pon a domestic or foreign corporation . . . or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to a managing or general agent, or other agent authorized by appointment or by the law to receive service of process.
[7] Similarly, service in accordance with the JIFSA is made upon a foreign state’s agency or instrumentality “if no special arrangement exists, by delivery of a copy of the summons and complaint . . . to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States.” JIFSA § 1608 (b)(2).
[8] Chuyen was the authorized representative for both IMS and TC12 in American Samoa. He regularly reported to and communicated with IMS and TC12 regarding Daewoosa Samoa’s employment of the Vietnamese workers. Moreover, he was specifically entrusted to deal with legal matters that pertained to the Vietnamese workers’ employment, including disputes such as is the subject matter of this lawsuit. Insofar as Chuyen was a general agent for IMS and TC12, and more specifically authorized to deal with legal matters concerning the subject matter of this litigation, he was an “agent” authorized to receive process on behalf of IMS within the meaning of T.C.R.C.P. 4(d)(3) or JIFSA § 1608(b)(2).
C. Subject Matter Jurisdiction over TC12 and IMS
The parties did not raise the question of our jurisdiction to adjudicate and render judgment upon the foreign government-related entities IMS and TC12. However, since a decision rendered without appropriate
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jurisdiction would not be binding on the parties, and would literally be a waste of judicial time, we address the question of our subject matter jurisdiction over the foreign parties sua sponte.
[9] Under the JIFSA, a court has subject matter jurisdiction to adjudicate suits against foreign government-related agencies so long as the activity concerned is not covered by the JIFSA’s immunity provisions. See JIFSA § 1605. In short, the immunity provisions codify the policy that immunity should be limited to a government’s public or sovereign acts and specific internal agreements, and should not cover private or commercial activities. WRIGHT &MILLER, supra, at § 1111.
[10-11] The particular JIFSA provision applicable to this case provides that a foreign sovereign is not immune from a court’s jurisdiction in any case “in which the action is based upon a commercial activity carried on in the United States by the foreign state.” JIFSA § 1605(a)(2). This exception requires a two-fold analysis: 1) the alleged conduct must be a commercial activity, in which a private actor could take part; and 2) there must be a nexus between the plaintiffs’ action and the commercial activity. See Velidor v. L/P/G Benghazi, 653 F.2d 812, 820 (3d Cir. 1981) (requiring a nexus between the plaintiff’s grievance and the sovereign’s commercial activity).
[12] The claims against IMS and TC12 originate from their role in recruiting, exporting, and employing the Vietnamese workers in a for-profit garment manufacturing company in American Samoa, clearly commercial activity in which a private actor could equally participate. Furthermore, the alleged commercial activity of IMS and TC12 is the premise of the Vietnamese workers’ lawsuit. The conduct of IMS and TC12, if proven, is therefore not excepted by sovereign immunity within the meaning of JIFSA § 1605(a)(2), and both IMS and TC12 would be subject to our jurisdiction.
D. Jurisdiction over FLSA Claims
Daewoosa Samoa, Lee, and TC12 dispute our jurisdiction to adjudicate the action of the Chinese workers and Vietnamese workers under FLSA § 216(b), claiming that the individual workers’ complaint is precluded by the Secretary of Labor’s complaint under the FLSA in this court, CA No. 2-00.
[13-14] Employees are provided by FLSA § 216(b) with a civil right of action against any employer who violates FLSA §§ 206(a), 207(a), and 215(a)(3). Additionally, the Secretary of Labor is authorized to sue on behalf of aggrieved employees for injunctive or equitable relief.
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Bureerong v. Uvawas, 922 F. Supp. 1450, 1464 (C.D. Cal. 1996) (citations omitted). Under this scheme, once the Secretary of Labor files a complaint, FLSA § 216(b) provides that the Secretary’s suit shall take precedence over an employee’s suit. Id.; see also Equal Opportunity Employment Comm’n v. AT&T, 365 F. Supp. 1105, 1120 (E.D.Pa. 1973) (finding Secretary has exclusive right to bring FLSA § 217 action for equitable relief); Wirtz v. W.G. Lockhart Const. Co., 230 F. Supp. 823 (N.D. Ohio 1964) (filing of Secretary’s suit preempts rights of employees to FLSA relief); Wirtz v. Robert E. Bob Adair, Inc., 224 F. Supp. 750, 756 (W.D. Ark. 1963) (filing of the Secretary’s suit terminates the FLSA § 216(b) rights of employee); Jones v. Am. Window Cleaning Corp., 210 F. Supp. 921, 922 (E.D. Va. 1962) (dismissing employee’s suit as precluded by Secretary’s complaint).
[15] The plain language of FLSA § 216(b) clearly limits the preclusive effect of suits filed by the Secretary of Labor to suits he files under the FLSA § 217, a provision that grants federal district courts jurisdiction to restrain FLSA violations. FLSA § 216(b) reads in pertinent part: “The right to bring an action by or on behalf of any employee . . . shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 217 of [the FLSA]. . .” Id. (emphasis added).
[16] In enacting this part of § 216 (b), Congress may have intended to prevent employees’ double recovery or protect courts and employers from multiple suits concerning the same subject matter. See Floyd v. Excel Corp., 51 F.Supp. 931, 933-934 (C.D. Ill. 1999).11 However, for whatever reason, Congress clearly intended, as evidenced by the plain language of the statute to limit the preclusive effect of an FLSA suit filed by the Secretary to those he files under § 217 or files in a federal district court. If the desired effect of § 216(b) was to preclude all FLSA suits filed by the Secretary, Congress would have surely included such language rather than the limiting language it did employ in the current version of § 216(b).12 Therefore, since the Secretary’s FLSA complaint in CA 2-00 was not filed under § 217, nor within a federal district court, it is within our jurisdiction to adjudicate the action of the Chinese
11 The Floyd court distinguished § 216(b) on other grounds, but generally
discussed congressional history regarding § 216(b) including a cite to
Sen. Rep. No. 145, 87th Cong. 1st Sess., reprinted in 1961 U.S.C.A.N.
1620, 1659.
12 Interestingly, after obtaining a preliminary injunction against
Daewoosa Samoa and Lee in CA No. 2-00 on January 10, 2000, the
Secretary of Labor failed to pursue the permanent injunctive relief
requested by his action. The case has since languished as an open file on
our docket.
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workers and Vietnamese workers under FLSA § 216(b).
E. IMS and TC12 as Employers under the FLSA
TC12 further argues that it is not subject to the provisions of the FLSA because it is not an employer as defined by FLSA § 203(d). FLSA § 203(d) defines the term “employer” as including “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . but does not include any labor organization (other than when [acting] . . . as an employer) or anyone acting in the capacity of officer or agent of such labor organization.”
[17] Consistent with congressional direction, the Supreme Court has instructed courts to interpret the term “employ” in the FLSA expansively. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992); see also Hale v. Arizona, 993 F.2d 1387, 1393 (9th Cir. 1993). The definition has “‘striking breadth [and] stretches the meaning of ‘employer’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles.” Nationwide Mut., 503 U.S. at 326.
[18] Several factors have been judicially identified to guide the analysis, such as “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Bonette v. Calif. Health and Welfare Agency, 704 F.2d 1465, 1469 (9th Cir. 1983); see also Bureerong, 922 F.2d at 1467; Donovan v. Sureway Cleaners, 656 F.2d 1368, 1370 (9th Cir. 1981) (discussing whether the workers’ service is an integral part of the alleged employer’s business). But see Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir. 1992) (declining to apply Bonette factors in determination of prisoners’ employment status). While these factors provide guidance for the “employer” determination, they are neither exclusive nor conclusive. Bonette, 704 F.2d at 1470.
[19] We apply this common-law framework of practical employment circumstances to determine the role IMS and TC12 had in the employment of the Vietnamese workers. Most significantly, IMS and TC12 had the power to hire, and wielded an overwhelming power to fire the Vietnamese workers. IMS and TC12 were instrumental in screening, and ultimately selecting the workers. They also had the power to fire the workers, which authority was leveraged with the threat of imposing hefty penalties against fired workers or their Vietnam-based family. The workers and their Vietnam-based families were, in fact, threatened with penalties when IMS and TC12 learned of the Vietnamese workers’
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expressed discontentment with their Daewoosa Samoa employment.
IMS and TC12 utilized Chuyen, and other supervisors, to further control the Vietnamese workers’ everyday work-place situation. Chuyen, who acted as a sort of watchdog over the workers, ensured that the workers continued working regardless of the distressful conditions they faced.
Furthermore, although IMS and TC12 did not pay the workers directly, they were instrumental in determining the Vietnamese workers’ rate of pay, method of payment, and hours of work.
Finally, it appears that IMS and TC12 maintained employment records, specifically the contracts entered into between the parties. When all of these employment factors are considered in light of the entire employment situation at issue in this case, IMS and TC12 functioned as employers within the meaning FLSA § 203(d).
F. FLSA Opt-In Requirement
[20] Although the Chinese workers and Vietnamese workers are not precluded by the Secretary of Labor’s filing of CA No. 2-00 from bringing this action under FLSA § 216(b), FLSA § 216(b) explicitly requires that each member of the class of eligible workers affirmatively consent to be a party to the FLSA action. T.C.R.C.P. 23(b)(3) requires class members to affirmatively “opt-out” of a class action suit. In contrast, FLSA § 216(b) requires employees similarly situated with the named plaintiffs to provide the court with affirmative notice of their intentions to be part of the lawsuit. See D’Anna v. M/A-COM, Inc., 903 F. Supp. 889, 892 (D. Md. 1995).
[21] A similarly situated employee may “opt in” by filing a written consent with the court where the suit is pending. Id. FLSA § 216(b) does not prescribe a particular format for an employee’s consent to suit, and requires only that the consent must be in writing and filed in the court in which the action is brought. See Kuhn v. Phila. Elec., Co., 475 F. Supp. 324 (E.D. Pa. 1979) (notarization not required); Burgett v. Cudahy Co., 361 F. Supp. 617, 622 (D.C. Kan. 1973) (requiring only written consent). For the consent to be “in writing” the employee need only sign the document. See Kulik v. Superior Pipe Specialities Co., 203 F. Supp. 938, 941 (N.D. Ill. 1962).
On January 17, 2001, approximately 168 purported members of the Vietnamese workers’ class filed a signed document demonstrating their consent to bring their FLSA claims. The writing demonstrates the affirmative “opt-in” of those 168 workers. Furthermore, the Chinese
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workers and Vietnamese workers specifically named as plaintiffs to the suit clearly demonstrate their consent to the FLSA litigation. However, because the FLSA requires an affirmative showing of consent to suit, the failure of other class members to file written consents or be named as plaintiffs in this suit necessarily precludes them from FLSA redress.
II. Liability for FLSA Claims
In enacting the FLSA, Congress intended to create a uniform compensation system for all work or employment engaged in by employees covered by the Act.13
[22] The FLSA provides minimum substantive rights to employees subject to its mandates, which rights may not be waived by agreement. Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 740 (1981). In Barrentine, the Supreme Court reiterated the requisite recognition that the FLSA provides non-waivable baseline employment standards:
This Court’s decisions interpreting the FLSA have frequently emphasized the non-waivable nature of an individual employee’s right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would ‘nullify the purposes’ of the statute and thwart the legislative policies it was designed to effectuate.
450 U.S. at 740 (1981) (citations omitted).
The Chinese workers and the Vietnamese worker contend that their respective employers amongst Daewoosa Samoa, Lee, IMS and TC12 violated the non-waivable baseline employment standards set out in FLSA §§ 206(a) and 207(a), and discriminated against them for raising these issues in violation of FLSA § 215(a)(3). We treat each alleged violation in turn.
A. Minimum Wage Violations
[23] FLSA § 206(a) prescribes that no employee employed in American Samoa may be paid less than American Samoa’s established minimum wage. American Samoa’s effective minimum wage for the garment
13 The Chinese workers and Vietnamese workers, who worked in the
manufacture of clothing for export, are unquestionably covered by the
FLSA, which sets out minimum wage standards for all employees
“engaged in commerce.” See 29 U.S.C.A. § 206.
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manufacturing industry, pursuant to the FLSA, was $2.55 an hour between October 27, 1998 through September 19, 2000, and $2.60 an hour from September 20, 2000. See 29 C.F.R. § 697(o)(1).14
[24] The Chinese workers earned $390.00 per month, and the Vietnamese workers earned $408.00 per month. In order to calculate the hourly rate paid, we multiply the monthly salary by 12 to obtain the total pay for the year. The sum is then divided by 52 to obtain the pay per week, which is then divided by 40 hours to determine the hourly rate worked each week. See 29 C.F.R. § 778.113(b); McCloskey & Co. v. Dickinson, 56 A.2d 442, 446 (D.C. App. 1947) (using this method to determine the hourly rate from monthly salary). Under this formula, the contracts in this case allow for an hourly rate clearly below the minimum required for garment factory employees. At $390.00 a month, the hourly rate is $2.25; at $408.00 a month the hourly rate is $2.35.
B. Overtime Wage Violations
Under FLSA § 207(a)(1):
[N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one-half times the regular rate at which he is employed.
Similar provisions are set forth 29 C.F.R. § 778.107, stating:
Overtime must be compensated at a rate not less than one and one-half times the regular rate at which the employee is actually employed. The regular rate of pay at which the employee is employed may in no event be less than the statutory minimum.
[25-26] While employers are free to establish the regular rate of pay, under the overtime provision of FLSA § 207(a)(1), minimum hourly rates established by FLSA § 206 must be respected. Walling v. Younerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945). Thus,
14 29 CFR § 697(o)(1) reads:
The minimum wages for [the garment. manufacturing] . . .
industry is $2.55 an hour effective October 27, 1998, and
$2.60 an hour effective September 20, 2000.
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in garment manufacturing, overtime must be paid at the rate of one and one-half times the employee’s regular rate of pay, which is, at the very least, American Samoa’s effective minimum wage for the garment manufacturing industry at the time—$ 2.55 an hour between October 27, 1998 through September 19, 2000, and $2.60 an hour from September 20, 2000. Furthermore, any agreed-upon deduction from overtime pay that effectively diminishes such pay below the statutory requirement is invalid. See F.W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493, 497 (6th Cir. 1952) (agreeing to pay for only part of hours worked violates the FLSA and is invalid); see also Donovan v. Brown Equip. and Serv. Tools, Inc., 666 F.2d 148, 152 (5th Cir. 1982); Johnson v. Dierks Lumber & Coal Co., 130 F.2d 115, 118 (5th Cir. 1962); Walling v. Lippold, 72 F. Supp. 339, 346 (D. Neb. 1947); Chepard v. May, 71 F. Supp. 389, 392-93 (S.D.N.Y. 1947).
Because the regular rate of pay of the Chinese workers and Vietnamese workers was the statutorily required minimum wage, they were entitled an overtime rate of one and one-half times the effective minimum wage in accordance with FLSA § 207(a)(1). Therefore, the workers were entitled to an overtime pay rate of $3.83 per hour between October 28, 1998 through September 20, 2000, and $3.90 per hour from September 20, 2000 onwards. Since the employers deducted varying amounts from the workers’ overtime wages, the evidence was inconclusive as to the actual overtime rate of pay the employers utilized to calculate overtime wages. Nonetheless, even if overtime wages were calculated at one and one-half times the effective minimum wage, the employers’ deductions illegally reduced the workers’ overtime wages far below the statutory limit in violation of FLSA § 207(a)(1). The workers are therefore entitled to the difference in the lawful overtime rate and the overtime compensation actually received.
C. Discrimination for Raising Wage Issues
[27] Under FLSA § 215(a)(3), it is unlawful for an employer “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding.”
Daewoosa Samoa and Lee, with respect to the Chinese workers and Vietnamese workers, and IMS and TC12, with respect to their recruited Vietnamese workers only, clearly violated FLSA § 215(a)(3). They continuously threatened to discharge and deport workers because they were plaintiffs in this lawsuit. Several workers were, in fact, terminated from employment and sent back to their homelands because they actively participated in pursuing their rights under the FLSA.
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D. FLSA Damages
[28] FLSA § 216(b) explicitly affords aggrieved employees comprehensive redress, including but not limited to back-wages, attorneys’ fees, costs, and liquidated damages.
[29-30] Liquidated damages of an amount equal to unpaid minimum and overtime wages are recoverable against an employer, unless there is evidence that an employer acted in good faith and attempted to comply with FLSA requirements. An employer’s knowledge that an employee might be covered by the FLSA, and failure to further inquire into the status of that employee is sufficient to establish the employer’s lack of good faith. See 29 C.F.R. § 790.15; see also Bankston v. Illinois, 60 F.3d 1249, 1255 (7th Cir. 1995).
Daewoosa Samoa and Lee, with respect to the Chinese workers and Vietnamese workers, and IMS and TC12, with respect to the majority of the Vietnamese workers, knew or had reason to know that the workers were being paid in violation of the law, but failed to make a good faith effort to comply with the law. Even if Daewoosa Samoa, Lee, IMS and TC12 erroneously believed that the Vietnamese workers’ contractual monthly wage was in compliance with the FLSA minimum wage requirements, having allegedly premised the contractual monthly wage of $408.00 by multiplying the minimum wage of $2.55 by a four week month working 40 hours per week, there is no similar explanation for the calculation of or deductions from the workers’ overtime wage. Furthermore, Daewoosa Samoa, Lee, IMS, and TC12 were at least on constructive notice that the validity of the workers’ regular and overtime wages was questionable and potentially in non-compliance with wage law when the Department of Labor began investigating Daewoosa Samoa’s operations as early as May 1999. At that time, Daewoosa Samoa, Lee, IMS, and TC12 actually knew of the conditions at the factory, and their failure to pay the workers’ lawful wages. However, rather than inquire about or rectify the situation, they threatened the workers to continue working under the same conditions or suffer certain consequences. More specifically, Daewoosa Samoa and Lee defiantly forced workers to return Department of Labor assisted settlement monies, or suffer termination or deportation.
III. Specific Liability Issues
A. The General Context of the Workers’ Claims
The Chinese workers assert that Daewoosa Samoa and Lee breached the
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terms of their bargained-for employment contracts by charging illegal initial fees, and failing to pay lawful standard and overtime wages. The Vietnamese workers’ claims are twofold. First, the IMS-recruited Vietnamese workers, and the TC12-recruited workers claim that Daewoosa Samoa, Lee, IMS, and TC12 jointly employed them under terms of their employment contracts. Secondly, all the Vietnamese workers allege that their respective employers charged them illegal initial fees, failed to continuously pay lawful basic wages when work was interrupted, improperly charged them for room and board, and failed to pay them their legal wages.
B. Choice of Law
[31] As a threshold matter, since the contracts were negotiated, contracted, and performed in various jurisdictions, we must determine whether the law of Vietnam, Korea, China, or American Samoa governs the interpretation of the various contracts at issue. Absent the parties’ agreement on the governing law, or an American Samoa statutory or common-law choice of law standard, we turn to common law generally to provide guidance in determining the choice of law applicable to the contracts at issue.
The RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 196 (1971) codifies U.S. common law and provides a standard to determine the governing law for interpretation of contracts for the rendition of services. It states in pertinent part:
§ 196 Contract for the Rendition of Services
The validity of a contract for the rendition of services and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the contract requires that the services, or a major portion of the services, be rendered, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.15
15 The relevant portions of the authors’ comment provides:
The rule [of this Section] applies if the major portion of the
services called for by the contract is to be rendered in a single
state and it is possible to identify this state at the time the
contract is made. It is necessary that the contract should state
where the major portion of the services is to be rendered or
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[32] As stated, the general rule is that the law of the place of performance governs the interpretation of a contract for services, and will only be trumped if another state has a more significant relationship with the transaction or parties as set forth in § 6. Id.
In this case, the parties explicitly agreed that performance of the three-year employment contracts was to take place entirely at the Daewoosa Samoa factory principally located in American Samoa. In fact, the Chinese workers and Vietnamese workers rendered their services under the employment contracts at issue entirely in American Samoa. Although the parties hail from China, Vietnam, and Korea, and some of the contracts were initially negotiated in these various countries, such contacts do not override the contacts that American Samoa had with the transaction and parties, as the place of contract performance. Accordingly, since services were rendered in American Samoa, and no other jurisdiction has more significant contacts with the transaction and the parties in the case, we find that American Samoa law applies to interpret the various contracts at issue in this case.
C. Lee’s Individual Liability
[33] Although a corporate officer or owner is normally not subject to personal liability for the acts of the corporation, this corporate shroud of protection from liability may be pierced, and the corporate officer or owner held personally liable for the conduct of the corporation if the corporation is nothing more than his alter ego.
[34-35] A party is an alter ego of a corporation when:
[T]here is such a unity of interest and ownership that the individuality, or separateness, of said person and corporation has ceased . . . [and] the facts are such that an adherence to the fiction of the separate
that this place can be inferred either from the contract’s terms
or from the nature of the services involved or from other
circumstances.
. . . .
The importance in the choice-of-law process of the place
where the service, or a major portion of the services, are to be
rendered depends somewhat upon the nature of the services
involved. This place enjoys greatest significance when the
work is to be more or less stationary and is to extend over a
considerable period of time. This is true of a contract for
employment on the ordinary labor force of a particular factory.
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existence of the corporation would, under the
particular circumstances, sanction a fraud or promote injustice.
Amerika Samoa Bank v. Adams, 22 A.S.R.2d 38 (Trial Div. 1992) (quoting Minifie v. Rowley, 202 P. 673, 676 (Cal. 1921)). The applied effect of the alter ego doctrine treats the corporation and the dominating person as one person, so that any act committed by one is attributed to both, and if either is bound, by contract, judgment, or otherwise, both are equally bound. See also Dudley v. Smith, 504 F.2d 979, 982 (5th Cir. 1974) (citing Shamrock Oil v. Gas Co. v. Ethridge, 159 F. Supp. 693, 697 (D. Colo. 1958)).
[36] Lee clearly acted as Daewoosa Samoa’s alter ego. Lee was the sole real shareholder and owner of Daewoosa Samoa during the majority of the time in question. He did not adhere to corporate formalities, except for one late and hurried attempt to distribute shares for substantially limited amounts. He clearly siphoned off corporate funds for his own use, leaving the corporate bank accounts too barren to meet employee payroll and other corporate expenses. In sum, adherence to the fiction of a separate existence between Lee and Daewoosa Samoa would promote injustice under the particular circumstances of this case.
D. IMS and TC12 as Joint Employers of the Vietnamese Workers
The IMS and TC12-recruited Vietnamese workers contend that IMS and TC12 were their joint employers with Daewoosa Samoa and Lee under the terms of the IMS-worker contracts, TC12-worker contracts, and TC12-Daewoosa contracts, and therefore, are jointly responsible with Daewoosa Samoa and Lee to pay for their contractually agreed upon wages. TC12 opposes the workers’ claim, arguing that it functioned merely as a go-between or broker responsible for securing the Vietnamese workers’ employment with Daewoosa Samoa and Lee, not an employer.
[37-38] To determine whether an employment relationship exists between two parties we must look beyond the terms of the contract. See Todd v. Benal Concrete Constr. Co., 710 F.2d 581, 584 (9th Cir. 1983) (“[c]ontractual language alone cannot transform a contractor/ independent contractor relationship into an employer/employee relationship”); see also Adele’s Housekeeping v. Dep’t of Employment Sec., 757 P.2d 480, 483 (Utah Ct. App. 1988) (citing Singer Sewing Mach. Co. v. Indus. Comm’n, 134 P.2d 479 (Utah 1943)) (looking
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beyond the contract to determine whether an employer/employee relationship exists). Rather, the traditional common-law rule focuses the inquiry on the alleged employer’s degree of control over the alleged employee. See generally Mares v. Marsh, 777 F.2d 1066 (5th Cir. 1985) (Title VII case); Ill. Conf. of Teamsters and Employers Welfare Fund v. Mrowicki, 44 F.3d 451 (7th Cir. 1994) (stating common law test as premised on alleged employer’s right to control).
IMS and TC12 acted as more than mere brokers responsible for securing the employment of their respective groups of Vietnamese workers, and functioned as employers of these workers for purposes of the workers’ employment at the Daewoosa Samoa garment-manufacturing factory. We reiterate that IMS and TC12 exerted significant control over their workers’ employment situation, including but not limited to, the hiring and firing of the workers. Furthermore, IMS and TC12 controlled the everyday workplace activities of the workers by employing Chuyen, and other supervisors to oversee the workers’ employment, supervision that was all encompassing.
E. Breach for Charging the Vietnamese Workers Room and Board; Discontinuing Wage Payments
Unlike the employment of the Chinese workers unquestionably detailed in a single set of contracts executed upon the workers arrival in American Samoa, the Vietnamese workers’ employment is enumerated in several separate sets of contracts. According to the IMS-worker contracts executed by some Vietnamese workers and IMS, the TC12-worker contracts executed by some Vietnamese workers and TC12, the independent worker-Daewoosa USA contracts executed by other Vietnamese workers, and the TC12-Daewoosa USA contracts signed by TC12 and Daewoosa USA, the Vietnamese workers were to be provided with free suitable room and board. Additionally, the workers understood that these contracts provided that they would be paid continuous basic wages regardless of the lack of work. In contrast, the Daewoosa Samoa-worker contracts, which Lee attempted to have all the Vietnamese workers execute, excluded these terms.
Daewoosa Samoa, Lee, and TC12 do not dispute the language of the contracts, nor their interpretation by the Vietnamese workers. Instead, Daewoosa Samoa, and Lee contend that they did not assent to employment terms providing free room and board, and continuous pay, nor authorized IMS, TC12, or Daewoosa USA to agree to such terms. Daewoosa Samoa and Lee urge that the Daewoosa Samoa-worker contracts, apparently excluding the free room and board and continuous salary provisions, evidence the bargained-for agreement between the
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parties.
[39] The well-established rule derived from the basic structure of agency law provides that a principal will be bound and liable for the acts of his agent performed with actual or apparent authority from the principal, and within the scope of the agent’s employment. See Hoffman v. John Hancock Mut. Life Ins. Co., 92 U.S. 161, 164 (1875) (an agent’s act performed within the sphere of the authority conferred is as binding upon the principal as if it had been done by the principal himself).
Daewoosa Samoa and Lee clearly authorized IMS, TC12, and Daewoosa USA to recruit labor for its garment manufacturing factory operations. Therefore, the contracts entered into by these entities for that purpose are binding upon Daewoosa Samoa as if Daewoosa Samoa entered into them on its own account. Even if the contracts were unauthorized, Daewoosa Samoa and Lee ratified the contracts by subsequently accepting the Vietnamese workers for employment, thus manifesting their assent to the agreements. See generally RESTATEMENT (SECOND) OF AGENCY § 83 (1958).
Any argument that the Daewoosa Samoa-worker contracts validly amended the IMS-worker, TC12-worker, independent worker Daewoosa USA, and TC12-Daewoosa USA contracts is also flawed, where there was no consideration for any such amendment. In fact, the Daewoosa Samoa-worker contracts appear glaringly unconscionable where Daewoosa Samoa induced non-English speaking workers to sign amended English written contracts, without the benefit of a translation, and offered the workers no consideration for excluding the previously promised benefits. See Dev. Bank of Am. Samoa v. Ilalio, 5 A.S.R.2d 110, 122 (Trial Div. 1987) (voiding contract as unconscionable for offering grossly inadequate consideration).
We therefore hold that, rather than the Daewoosa-worker contracts, the IMS-worker contracts, TC12-worker contracts, independent worker-Daewoosa USA, and TC12-Daewoosa USA contracts reflect the bargained-for agreement between the Vietnamese workers and their respective employers. As evidenced from the plain language of the contracts, and the testimony of the workers, the agreements provide that these Vietnamese workers should receive free room and board, and continuous wages regardless of the lack of work. Daewoosa Samoa, Lee, IMS, and TC12 breached both of these terms by charging the Vietnamese workers various fees for room and board, and failing to pay them when work was interrupted.
F. Breach of Contract for Back Wages
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The Chinese and Vietnamese workers allege, as an additional basis to the FLSA for the payment of unpaid wages, that Daewoosa Samoa, Lee, with respect to the Chinese and Vietnamese workers, and they together with IMS, and TC12, with respect to the IMS and TC12-recruited Vietnamese workers, breached the terms of their respective contracts regarding their salary and overtime payments.
[40] The contract terms covering the wage and overtime payments to the Chinese workers and Vietnamese workers illegally fall below the floor established by FLSA §§ 206 and 207(a)(1). However, rather than entirely invalidate the contracts at issue in this case for containing terms contrary to the FLSA, we are empowered to modify the illegal contract terms to make them conform to the law. See Am. Samoa Gov’t v. Samoa Aviation, Inc. (Hem), 13 A.S.R.2d 65, 67 (Trial Div. 1989); see also Ilalio, 5 A.S.R.2d at 110 (stating that court has option to refuse to enforce the contract, enforce the remainder of the contract without the unconscionable provisions, or so limit the application of the unconscionable provisions as to avoid any unconscionable result); see generally RESTATEMENT (SECOND) OF CONTRACTS § 208 (1981). Therefore, to validate these contracts, we replace the minimum and overtime wage provisions of the contracts for the Chinese workers and Vietnamese workers with the baseline wage and overtime requirements of FLSA §§ 206 and 207(a)(1). See generally Nw. Yeast Co. v. Broutin, 133 F.2d 628 (6th Cir. 1943); Fletcher v. Grinnell Bros., 64 F. Supp. 778 (E.D. Mich. 1946); Adair v. Ferst, 45 F. Supp. 824 (N.D. Ga. 1942) (stating that employee covered by FLSA is a creditor of his employer for any unpaid portion of the minimum wage regardless of any agreement between the parties).
As stated in the FLSA discussion, pursuant to FLSA § 206, the employers were required to pay the Chinese workers and Vietnamese workers engaged in garment manufacturing in American Samoa an hourly minimum wage of $2.55 from October 27, 1998 through September 19, 2000, and $2.60 per hour from September 20, 2000. Also, FLSA § 207(a)(1) required that each garment worker be paid overtime wages at a rate of $3.83 per hour from October 27, 1998 through September 19, 2000, and $3.90 per hour from September 20, 2000. However, contrary to these FLSA provisions, and in conspicuous breach of the employment agreements, the Chinese workers and Vietnamese workers received hourly wages of only $2.25, and $2.35, respectively. Additionally, the contracts of the Chinese workers and Vietnamese workers allowed for deductions from overtime wages, bringing these wages below that prescribed by FLSA § 207(a)(1). Accordingly, in order to compensate the Chinese workers and
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Vietnamese workers for the breach of their contracts, the employers must reimburse them for the difference in the hourly and overtime wages earned and those actually paid.
G. Breach of Contract for Charging Illegal Initial Fees
The Chinese workers and Vietnamese workers further contend that the employers breached their employment contracts by charging the workers illegal initial fees. As a condition of each worker’s employment at the Daewoosa Samoa factory, each worker was required to pay exorbitant initial fees, ranging from $3,000.00 to $7,683.00, allegedly to pay a security deposit, the workers’ airfare, and various government fees or taxes.
[41-42] We reiterate that we are empowered to modify an illegal contract term without invalidating the entire contract. See Samoa Aviation, Inc., 13 A.S.R.2d at 67. The contract requirement that the Chinese workers and Vietnamese workers pay sums of money up front was clearly an illegal ploy to defraud the workers and their families of their money, and obligate the workers to the term of their employment contracts or suffer loss of the fees, and deposit. Though already essentially destitute, the workers and their families were further impoverished in their attempts to secure the requisite funds, doing it nevertheless for the promise of employment in American Samoa. However, the employers never provided the Chinese workers and Vietnamese workers their promised-for employment. Instead, the workers lived in substandard conditions, went underpaid for months, and on one occasion at least some workers were unfed for at least two days. Accordingly, the contract clause requiring that the workers pay varying initial fees is invalid and must be struck from the contracts, and the employers are responsible to reimburse their respective workers these monies.
IV. Computation of Back Wages
[43] The availability of individualized payroll evidence for all of the Chinese workers, and the majority of the Vietnamese workers make individual back pay and liquidated damages awards possible as to these workers. However, because individual awards for those Vietnamese workers for whom payroll summaries were not provided are unascertainable, class-wide awards are provided for such workers. An individualized remedy should be utilized when possible because it will compensate the claimants without unfairly penalizing the employer. Stewart v. Gen. Motors Corp., 542 F.2d 445, 452 (7th Cir. 1976) (citing
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United States v. United States Steel Corp., 520 F.2d 1043, 1055 (5th Cir. 1975)) (awarding individualized and class-wide Title VII back pay awards).
A. Chinese Workers’ Individual Back Wages
Rather than utilizing the monthly wage rate of $390.00 per month, the Chinese workers’ accountant determined the amount of regular and overtime wages owed, less deductions for FICA contributions, ASG income taxes, and less any payments already received.16 We accept the accountant’s calculation of the Chinese workers’ back-wages. Although Daewoosa Samoa submitted payroll summaries regarding the Chinese workers back wages, we find the calculations of the Chinese workers’ accountant more credible. The Chinese workers’ accountant premised his report upon the diaries and records of the individual workers, and Daewoosa Samoa admitted to owing equivalent amounts at least prior to June 24, 1999.17
B. Vietnamese Workers’ Individual Back Wages
At trial, Daewoosa Samoa and Lee submitted payroll summaries regarding the amounts owed the Vietnamese workers. These figures contrasted significantly with the Vietnamese workers’ analysis in c1osing arguments. We are reluctant to wholeheartedly accept either side’s summaries of the back wages owed the Vietnamese workers for several reasons.
The Vietnamese workers’ summary was not presented as evidence at trial, thereby depriving Daewoosa Samoa, Lee, and TC12 the benefit of cross-examination. For example, as TC12 accurately points out, some of the Vietnamese workers’ mathematical calculations as to the number of months within a given range of months are in error, a point that would have been best brought to light and fully examined during the trial.
On the other hand, while the employers’ records appear to be the best evidence available regarding certain amounts, Daewoosa’s records are otherwise inaccurate with regards to the regular hours worked by the
16 Deductions were not taken out for the Chinese workers’ room and
board given our finding that the Daewoosa Samoa provided room and
board was substandard. See Part VI.B, “Substandard Room and Board,”
infra.
17 In a June 24, 1999 letter to the Chinese workers’ counsel, Daewoosa
Samoa agreed to owing an amount of wages equivalent to the
accountant’s calculated amount.
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Vietnamese workers. They deducted amounts for room and board in violation of these workers’ agreements. Furthermore, they failed to calculate the time that the Vietnamese workers lay idle.
As discussed earlier, the Vietnamese workers’ are contractually entitled to be compensated for their idle time if there is no work for no fault of their own. The weight of the evidence indicates that the Vietnamese workers would have worked the entire time that they were in American Samoa but for the unavailability of work caused by the employers. The times that the Vietnamese workers lay idle were caused by either factory shutdowns or the employers’ failure to pay them. The Vietnamese workers are therefore entitled to be compensated their regular wage for this idle time.
Accordingly, we calculated the total amount of basic wages the Vietnamese workers earned based upon the total amount of regular working days that each such worker spent in American Samoa.18 We multiplied this time by the relevant legal minimum rate to arrive at the gross amount of regular wages earned.
Given the substantial inconsistencies between the overtime records and the Vietnamese workers’ testimony, and the varying deductions from overtime earnings taken by their employers, owed overtime wages are more difficult to determine. Nonetheless, utilizing payroll records submitted by Daewoosa Samoa and Lee, we were able to determine the amount of overtime wages owed the Vietnamese workers. Without better contrary evidence, we find that these hours are the best evidence of the overtime hours worked. Using these provided numbers, we
18 Except for the working days of the two deceased IMS Vietnamese
workers, the Vietnamese workers’ regular working days were calculated
from the first full workweek day after each worker arrived in American
Samoa to January 12, 2001. By January 12, 2001, Daewoosa Samoa was
non-operational, most of the workers had requested to return to Vietnam
or to leave for elsewhere, and a court appointed receiver had assumed
full responsibility of the Daewoosa Samoa operation. As for Nguyen
Thi Nga, and Dung Kim Thi Vu, their regular working days necessarily
ended on the approximate date of their deaths or the last date of their
employment, whichever occurred sooner. Accordingly, we calculated
Nguyen Thi Nga’s owed back wages to the approximate date of her
death, or August 31, 2000. However, because Dung Kim Thi Vu worked
only 20 days, and was compensated for these days, she is not entitled to
any owed back wages. Our finding does not, however, preclude Dung
Kim Thi Vu from entitlement to other class-wide damages in accordance
with this decision.
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derived the total amount of overtime wages earned by multiplying the total amount of overtime hours presented by Daewoosa Samoa and Lee by the applicable overtime rate.
We then determined the total amount of owed back wages by deducting the applicable FICA contributions and ASG income taxes, and the amount the Vietnamese workers received from the gross amount earned.
C. Class-wide Back Pay and Liquidated Damages
[44] Individual back pay awards were unidentifiable for members of the IMS-recruited and TC12-recruited Vietnamese workers’ classes for whom Daewoosa Samoa and Lee failed to submit payroll summaries. Therefore, we must utilize a class-wide method to ascertain these workers’ damages. Although a class-wide method of computing back wages is basically an estimation that oftentimes results in unequal awards, creating a windfall for some, and under-compensating others, “[a]ny method is simply a process of conjectures.” Stewart, 542 F.2d at 453 (citing Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 261 (5th Cir. 1974)). An estimate of the measure of damages is better than no damages at all. Id.
The amount of total regular wages for each unidentified IMS-recruited Vietnamese worker and each unidentified TC12-recruited Vietnamese worker is ascertainable based on the amount of time that they spent in American Samoa. Furthermore, since it appears that these workers worked and were compensated at approximately the same rate as those identified Vietnamese workers, we derived an estimation of overtime wages and payments received for each unidentified Vietnamese worker by calculating the average overtime earned and payments received of the named and identifiable members of each corresponding IMS-recruited Vietnamese worker’s group or TC12-recruited Vietnamese worker’s group. Using the same formula utilized to derive the named and identifiable workers’ individualized awards, we determined each unidentified workers’ back pay by deducting FICA contributions, ASG taxes, and payments received from the total regular and overtime wages earned.
VI. Other Related Claims
A. NRLB Exclusive Jurisdiction Issue
Before dealing with the merits of the Vietnamese workers’ other related claims, we first discuss TC12’s contention that the overall theme of these claims falls outside our jurisdiction because they are directly within the
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exclusive jurisdiction of the Labor Relations Management Board (“NLRB”). See Labor Mgm’t Relations Act, 1947, 29 LT.S.C.A. § 141 et seq. TC12 cites the case of Suki v. Star Kist Samoa, Inc., 4 A.S.R.2d 135 (Trial Div. 1987), as authority for its proposition that the workers’ discrimination and related claims are within the NLRB’s exclusive jurisdiction.
In Suki, the court held that the NLRB exercised exclusive jurisdiction over unfair labor practice complaints filed in the High Court of American Samoa if they were within the NLRB’s jurisdiction, and the NLRB had not declined jurisdiction. See generally id. The court dismissed for lack of jurisdiction the employee’s claim of work-place discrimination for attempting to organize a labor union finding that “[e]mployment discrimination on account of union activity is perhaps the single most obvious example of conduct committed to the regulatory authority of the NLRB.” Id. at 137. However, unlike the claim presented in Suki, the resolution of employees’ assorted claims are not related to any foiled attempt to organize a labor union, and are not otherwise specifically reserved to the NLRB’s jurisdiction. Therefore, these claims remain within our jurisdiction.
B. Substandard Room and Board
The Chinese workers and Vietnamese workers contend that Daewoosa Samoa and Lee failed to provide them with adequate housing and food as promised in their employment contracts. Daewoosa Samoa and Lee admit that they owe the workers a duty to provide them with suitable housing and nutritional meals. However, they contend that the provided lodging and food satisfied their contractual obligations.
It is clear that the housing and meals at the Daewoosa facility fell short of Daewoosa Samoa and Lee’s representations, and the workers’ expectations. The rooms were overcrowded, and the bathroom facilities inadequate and ill-equipped. In addition, the workers’ meals did not meet the asserted standard for nutritional food set forth by the United States Department of Agriculture (“USDA”) nutritional guidelines. The USDA Food and Nutrition Center recommends a daily intake of and variety from the five basic food groups: 1) carbohydrates; 2) vegetables; 3) fruits; 4) dairy products; and 5) protein.19
Dr. Margaret credibly explained that Daewoosa Samoa and Lee did not
19 The Food and Nutrition Center is an information branch of the
National Agricultural Library, which is part of the U.S. Department of
Agriculture, Agricultural Research Service.
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comply with these basic guidelines by failing to provide fresh vegetables and fruits in the workers’ daily meals. Although Dr. Margaret was unable to determine whether the meals satisfied other USDA nutritional requirements, evidence elicited from the workers suggested that the meals were overall below USDA standards.
[45] In addition to our finding that the Vietnamese workers are contractually entitled to free room and board, we further find that due to the substandard quality of the Daewoosa provided meals and accommodations, none of the boarding workers, including the Chinese workers, should be required to pay for such accommodations. In addition, the Chinese workers, and Vietnamese workers are entitled to compensation for being subjected to such poor living conditions in the amount of $1,500 each.
C. Withholding of Passports and Identification Cards
The Chinese workers and Vietnamese workers also assert that Daewoosa Samoa and Lee illegally withheld their passports and certificate of alien registration receipt cards. Daewoosa Samoa and Lee argue that they held on to the workers’ passports and other identification documents for immigration processing purposes.
[46] A passport, or any other document purporting to show one’s identity, is perhaps one’s most personal possession, especially sacred to one traveling to a foreign country. In addition, American Samoa law requires that every alien carry their registration card on their person at all times. According to A.S.C.A. § 41.0310(a), “[e]very alien . . . shall at all times carry with him and have in his personal possession any certificate of alien registration receipt card issued him.” Id. (emphasis added). Failure to comply with A.S.C.A. § 41.0310 subjects the registered alien to criminal penalty, a $500 fine, or, for most aliens the worst consequence, deportation. See A.S.C.A. § 41.03l0(b)-(c).
[47] Rather than taking the workers’ identification documents to further any immigration purpose, it is apparent that Daewoosa Samoa and Lee illegally maintained workers’ passports, and registration cards, without any legal right, and as a means of limiting the workers’ egress and ingress from the compound. For this transgression, the Chinese workers and Vietnamese workers are entitled to compensation in the amount of $1,000 each.
D. Returning Workers to China and Vietnam
The workers allege that Daewoosa Samoa and Lee violated their due
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process rights under the Revised Constitution of American Samoa Article I § 2, by having them deported without an opportunity to consult an attorney or have a deportation hearing. The workers provide no legal premise for holding a private employer subject to the Article I § 2 due process requirement, and without such an explanation their due process claim necessarily fails.
The workers also claim that Daewoosa Samoa and Lee violated an alleged statutory right under A.S.C.A. § 41.0408(i) to remain in American Samoa for up to 10 days after the revocation of their sponsorship.
[48] When read in its entirety, A.S.C.A. § 41.0408(i) governs the conduct of the immigration board, which is empowered with the authority to deport, not the alien’s sponsor or employer. While a sponsor or employer may be instrumental in initiating the process of deportation by revoking sponsorship or terminating employment, it is ultimately the immigration board that makes the finding of deportation. Furthermore, the immigration laws allow an alien worker’s sponsor almost unlimited discretion to revoke sponsorship, the only requirement being that the sponsor provide written notice to the immigration board and the person sponsored of his or her intent to end the alien’s sponsorship. See A.S.C.A. § 41.0408(g).20 We, therefore, cannot find that Daewoosa Samoa and Lee, or any other employer defendant, violated any right allegedly granted aliens under A.S.C.A § 41.0408(i).
VII. Indemnification
TC12 asserts that Daewoosa Samoa and Lee are liable to reimburse TC12 approximately $450,000.00, the portion of the initial fees collected by TC12 from the recruited Vietnamese workers and transferred by TC12 to Daewoosa Samoa and Lee. Basically, TC12 requests that Daewoosa Samoa and Lee indemnify it an amount of the initial fees for which we have found them jointly and severally liable.
[49-50] Admittedly, a large portion of the money TC12 gave Daewoosa Samoa and Lee was earmarked to pay for the Vietnamese workers’ individual immigration bonds, for which Daewoosa Samoa and Lee posted only a lump-sum immigration bond in the amount of $10,000.
20 In effect, the broad discretion provided a sponsor by American
Samoa’s immigration laws may allow a sponsor with an opportunity to
take advantage of their sponsored worker, as became evident in this case.
However, immigration law reform is a matter for legislative review, not
judicial interpretation.
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However, as discussed in a previous section, the contract requirement that the Vietnamese workers pay initial fees, and, for purposes of this discussion, that the TC12-recruited Vietnamese workers pay initial fees, in the first instance, was unlawful as an unconscionable contract clause. “Generally, a contract to indemnify against the consequences of a wrongful act, or a contract of indemnity growing immediately out of, and connected with, an illegal or immoral act is void and will not be enforced by a court of justice.” 41 AM. JUR. 2D Indemnity § 11 (1995); see also Kansas City Operating Corp. v. Durwood, 278 F.2d. 354, 359 (8th Cir. 1960); 8 SAMUEL WILLISTON ET AL., A TREATISE ON THE LAW OF CONTRACTS § 19:18 (4th ed. 1998). Because TC12 together with Daewoosa Samoa and Lee were joint parties to the unlawful contract clause requiring that the Vietnamese workers pay initial fees, we leave them as we find them, and accordingly, we refuse to enforce any implied right of indemnification as between TC12 and Daewoosa Samoa and Lee.
Order
A. Individual Back Wages and Liquidated Damages
1. Chinese Workers. Daewoosa Samoa, and Lee are jointly and severally liable to remunerate the Chinese workers listed back wages and an equal amount as liquidated damages as indicated in the “Total Owed to the Chinese Workers” column in the following table. In addition, Daewoosa Samoa, and Lee shall pay the applicable federal and ASG government agencies the amounts deducted from each Chinese workers’ earned income respectively for FICA withholdings and ASG taxes, except for those amounts already paid during the Spring of 2000.


2. IMS Recruited Vietnamese Workers. Daewoosa Samoa, Lee, and IMS are jointly and severally liable to pay each IMS recruited Vietnamese worker back wages, and, if opted-in, an equal amount as liquidated damages as indicated in the “Total Owed to IMS Workers” column in the following table. In addition, Daewoosa Samoa, Lee, and IMS shall pay the applicable federal and ASG government agencies the amounts deducted from each IMS recruited Vietnamese workers’ earned
income respectively for FICA withholdings and ASG taxes,
except for those amounts already paid during the Spring of 2000.


* Nguyen Thi Nga’s owed back wages award, and any other damages she
is entitled to, as well as any class-wide damages Dung Kim Thi Vu is
entitled to, shall be made payable to their respective estates, or their
equivalents.


3. TC12 Recruited Vietnamese Workers. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay each TC12 recruited Vietnamese worker back wages, and, if opted-in, an equal amount as liquidated damages, as indicated in the “Total Owed to TC12 Workers” column in the following table. In addition, Daewoosa Samoa, Lee, and TC12 shall pay the applicable federal and ASG government agencies the amounts deducted from each TC12 recruited Vietnamese workers’ earned income respectively for FICA withholdings and ASG taxes, except for those amounts already paid during the Spring of 2000.


4. Independent Vietnamese Workers. Daewoosa Samoa, and Lee are
jointly and severally liable to remunerate the independent Vietnamese
workers listed back wages and an equal amount as liquidated damages as
indicated in the “Total Owed to the Independent Workers” column in the
following table. In addition, Daewoosa Samoa, and Lee shall pay the
applicable federal and ASG government agencies the amounts deducted
from each independently recruited Vietnamese workers’ earned income
respectively for FICA withholdings and ASG taxes, except for those
amounts already paid during the Spring of 2000.


B. Class-wide Back Wages
1. IMS Group 1. Daewoosa Samoa, Lee, and IMS are jointly and
severally liable to pay each IMS-recruited Vietnamese worker, not listed
above, that arrived in American Samoa on February 8, 1999 back wages
in the amount of $4,847.88. In addition, Daewoosa Samoa, Lee, and
IMS shall pay the applicable federal government agency the amount of
$967.01, minus any amount paid during the Spring of 2000, as monies
deducted from each IMS group 1 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and IMS shall pay the
applicable ASG agency the amount of $252.98, minus any amount paid
during the Spring of 2000, as monies deducted from each IMS group 1
worker’s income to pay his or her ASG taxes.
2. IMS Group 2. Daewoosa Samoa, Lee, and IMS are jointly and
severally liable to pay each IMS-recruited Vietnamese worker, not listed
above, that arrived in American Samoa on March 8, 1999, back wages in
the amount of $4,590.97. In addition, Daewoosa Samoa, Lee, and IMS
shall pay the applicable federal government agency the amount of
$894.96, minus any amount paid during the Spring of 2000, as monies
deducted from each IMS group 2 worker’s income to pay his or her
FICA contributions. Also, Daweoosa Samoa, Lee, and IMS shall pay the
applicable ASG agency the amount of $233.98, minus any amount paid
during the Spring of 2000, as monies deducted from each IMS group 2
worker’s income to pay his or her ASG taxes.
3. IMS Group 3. Daewoosa Samoa, Lee, and IMS are jointly and
severally liable to pay each IMS-recruited Vietnamese worker, not listed
above, that arrived in American Samoa on May 14, 1999, back wages in
the amount of $3,622.61. In addition, Daewoosa Samoa, Lee, and IMS
shall pay the applicable federal government agency the amount of
$841.05, minus any amount paid during the Spring of 2000, as monies
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deducted from each IMS group 3 worker’s income to pay his or her
FICA contributions.
Also, Daewoosa Samoa, Lee, and IMS shall pay the applicable ASG
agency the amount of $219.88, minus any amount paid during the Spring
of 2000, as monies deducted from each IMS group 3 worker’s income to
pay his or her ASG taxes.
4. IMS Group 4. Daewoosa Samoa, Lee, and IMS are jointly and
severally liable to pay each IMS-recruited Vietnamese worker, not listed
above, that arrived in American Samoa on June 12, 1999, back wages in
the amount of $3,237.37. In addition, Daewoosa Samoa, Lee, and IMS
shall pay the applicable federal government agency the amount of
$789.68, minus any amount paid during the Spring of 2000, as monies
deducted from each IMS group 4 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and IMS shall pay the
applicable ASG agency the amount of $206.45, minus any amount paid
during the Spring of 2000, as monies deducted from each IMS group 4
worker’s income to pay his or her ASG taxes.
5. TC12 Group 1. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each-TC12 recruited Vietnamese worker, not
listed above, that arrived in American Samoa on July 15, 1999, back
wages in the amount of $3,320.32. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the
amount of $741.68, minus any amount paid during the Spring of 2000, as
monies deducted from each TC12 group 1 worker’s income to pay his or
her FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall
pay the applicable ASG agency the amount of $193.90, minus any
amount paid during the Spring of 2000, as monies deducted from each
TC12 group 1 worker’s income to pay his or her ASG taxes.
6. TC12 Group 2. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on July 19, 1999, back
wages in the amount of $3,507.06. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the
amount of $726.82, minus any amount paid during the Spring of 2000, as
monies deducted from each TC12 group 2 worker’s income to pay his or
her FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall
pay the applicable ASG agency the amount of $190.02, minus any
amount paid during the Spring of 2000, as monies deducted from each
TC12 group 2 worker’s income to pay his or her ASG taxes.
7. TC12 Group 3. Daewoosa Samoa, Lee, and TC12 are jointly and
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severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on July 22, 1999, back
wages in the amount of $3,554.20. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the
amount of $720.75, minus any amount paid during the Spring of 2000, as
monies deducted from each TC12 group 3 worker’s income to pay his or
her FICA contributions. Also Daewoosa Samoa, Lee, and TC12 shall
pay the applicable ASG agency the amount of $188.43, minus any
amount paid during the Spring of 2000, as monies deducted from each
TC12 group 3 worker’s income to pay his or her ASG taxes.
8. TC12 Group 4. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, th