7ASR3d61
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
SEFO TUILAGI, Defendant.
High
Court of American Samoa
Trial
Division
CR
No. 74-02
February
10, 2003
[1] Any
constitutional attack on a particular punishment is normally not ripe for review
before the punishment has been given.
[2] The court
will rule on the constitutionality of a criminal statute if: (1) the issue is
fit for judicial consideration, and (2) withholding of consideration will cause
substantial hardship to the parties.
[3] The taking
of depositions in criminal cases is generally disfavored.
[4] T.C.R.Cr.P.
15 allows depositions in cases of exceptional circumstances.
[5] The court
looks to several factors in determining whether a party in a criminal case has
demonstrated exceptional circumstances warranting the taking of a
deposition. Such factors include: (1)
whether the desired witness is unavailable to testify at trial, (2) whether the
witness’ testimony is material to the moving party’s case and (3) whether the
taking of the deposition would cause injustice to the nonmoving party.
Before
RICHMOND, Associate Justice, ATIULAGI, Associate Judge, and TUPUIVAO, Associate
Judge.
Counsel: For Plaintiff, John W.
Cassell, Assistant Attorney General
For Defendant, Bentley C. Adams III, Asst.
Public Defender
ORDER
DENYING MOTIONS TO DISMISS
AND
TO TAKE DEPOSITIONS
Defendant brings before us a motion to dismiss the
prosecution and to take depositions pursuant to T.C.R.Cr.P. 15. We deny both motions as premature.
Background
Defendant is charged with violating A.S.C.A. §
13.1022.[1] He was arrested at the port facilities in
Fagatogo after authorities discovered what is alleged to be approximately 8
pounds of marijuana in a box defendant carried.
At the time, he told the authorities that he had no knowledge of what
was in the box. Instead, he insisted
that he was bringing it as a favor to an acquaintance from the
Independent State of Samoa (“Samoa”). He
alleges that there are witnesses currently residing in Samoa that can
corroborate his statements.
I. Motion to Dismiss Prosecution
Defendant moves to dismiss the prosecution on the
basis that the statute in question violates the territorial and U.S.
constitutional prohibitions against cruel and/or unusual punishments.[2] We decline to rule on the motion since the
issue is not ripe for adjudication.
[1-2] Any constitutional attack on a particular punishment is normally not ripe
for review before the punishment has been given, indeed, before the trial has
even commenced. See United States v.
Quinones, 313 F.3d 49, 58 (2d Cir. 2002).
However, courts will rule if “(1) the issues are fit for judicial
consideration, and (2) withholding of consideration will cause substantial
hardship to the parties.” Id. (quoting
Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967)). While a facial attack on the statute may be
fit for judicial consideration, the second requirement has not been met in this
case. Unlike Quinones, defendant’s
strategy will not change by invalidating the punishment portion of A.S.C.A.
13.1022; nor will the procedures in his trial vary. Cf. id. at 58-61. Instead, only the sentencing stage would be
affected.[3]
Furthermore, review of the punishment scheme involved
in this case would be more complete if undertaken after trial. At that time, we could not only entertain a
facial attack on the statute but also review the constitutionality of the
punishment as applied to this specific defendant. Additionally, it is likely
that the United States Supreme Court will have issued an opinion further
delineating the scope of the cruel and unusual clause. See Andrade v. Attorney Gen., 270 F.3d
743 (9th Cir. 2001), cert. granted, 535 U.S. 969 (April 1, 2002)
(No. 01-1127); People v. Ewing, 2001 WL 1840666 (Cal. App. 2d
Dist. April 25, 2001), cert. granted, 535 U.S. 969 (April 1,
2002) (No. 01-6978).
II. Motion to Take Depositions
Defendant also requests us to order depositions of
potential witnesses currently residing in Samoa. Defendant’s main contention is that these
witnesses will not be able to afford the trip to American Samoa to testify at
trial. At this stage of the proceedings,
however, defendant has failed to meet his burden under T.C.R.Cr.P. 15.
[3-5] Though “the taking of depositions in
criminal cases is generally disfavored,” United States v. Des Marteau,
162 F.R.D. 364, 367 (M.D. Fla. 1995), T.C.R.Cr.P. 15 allows them in cases of
“exceptional circumstances.” It is
within our discretion to grant such an order, but only if the moving party has
met his burden. Id. We look to several factors: “[1] whether
the desired witness is unavailable to testify at trial, [2] whether the
witness’ testimony is material to the moving party’s case and [3] whether the
taking of the deposition would cause injustice to the nonmoving party.” Id.; see 2 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure §§ 241, 242 (3d ed. 2000).
At the very least, defendant has not shown that the witnesses here will
be unavailable.
Our
ruling does not preclude defendant from making this showing at some point later
in the proceedings. We only decide that
he has not yet done so.
Conclusion
For the foregoing reasons, both motions are denied.
It is so ordered.
**********
[1] 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;
(2) for a second offense, a fine not less than $20,000
and not more than $30,000 or not less than 10 years and not more than 20 years
in prison, or both; and
(3) for a
third offense, a fine not less than $30,000 and not more than $40,000 or not
less than 15 years and not more than 30 years in prison, or both;
There shall be no parole for a
conviction under this section.
(c) The above penalties are mandatory.
[2] The Eighth Amendment of the U.S. Constitution
provides, “Excessive bail shall not be required. Nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”
(emphasis added). Article 1,
Section VI of the Revised Constitution of American Samoa states in part,
“Excessive bail shall not be required.
Nor excessive fines imposed, nor cruel or unusual punishments
inflicted.” (emphasis added).
At this
juncture, we need not comment on whether the grammatical difference between the
two clauses—that the U.S. Constitution is in the conjunctive and the Revised
Constitution of American Samoa is in the disjunctive—provides for different and
greater protections or rather is merely a matter of semantics. Compare People v. Anderson, 493 P.2d
880 (Cal. 1972) (holding that the “cruel or unusual” language of the California
Constitution provides greater protection than the Federal Constitution), superseded
by Cal. Const. art. I,
§ 27, and People v. Bullock, 485 N.W.2d 866 (Mich. 1992) (same
with regards to Michigan Constitution), with Thomas v. State, 634 A.2d
1, 10 n.5 (Md. 1993) (finding no distinction between the two phrases).
[3] Defendant’s attack on the entire statute sweeps too
broadly. We do not believe that a
successful constitutional attack on the punishment portion of the statute would
invalidate the entire statute. If
successful, his motion would not result in immunity from prosecution or, if
brought after trial, require reversal of the underlying conviction. Instead it would require different
considerations at the sentencing stage or, if after trial, resentencing. See Quinones, 313 F.3d at 60-61. Therefore, we treat defendant’s motion as
simply attacking the constitutionality of A.S.C.A. § 13.1022(b) and (c).