7ASR3d61

Series: 7ASR3d | Year: () | 7ASR3d61
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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).