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Motion to dismiss filed in retired USPS Fa’asala case

 A retired post office employee accused of stealing money and postage stamps belonging to the Post Office back in 2009 has filed a motion to dismiss the charges against him, noting lack of matter jurisdiction, double jeopardy, duplicitous charges and statute of limitations.

Nikolao Fa’asala’s motion was filed through his lawyer Mark Ude, last week. The defendant is charged with embezzlement, stealing and responsibility for the conduct of another to commit forgery.

The defendant, who is out on bond of $5,000, appeared in the High Court before Chief Justice Michael Kruse, who was accompanied on the bench by Associate Judge Fa’amausili Pomele, last week Friday.


 For the lack of jurisdiction, the dismissal motion has it that the High Court of American Samoa has to have territorial jurisdiction in order to prosecute crimes that occur in a place where the crime was committed in accordance with American Samoa Code Annotated (“A.S.C.A.”) § 3.0103(c): Jurisdiction of court.

In this case, the crimes alleged to have been committed by the defendant occurred in the Post Office; and the Post Office is not subject to the jurisdiction of the High Court, as the United States has exclusive jurisdiction over the Post Office, as per the Constitution of the United States, the dismissal motion states.

According to the motion, any crime that is committed on Federal property is subject to Federal prosecution and comes under the exclusive jurisdiction of the Federal court system. This includes crimes committed in government buildings, airports, national wildlife refuges, national forests, military installations, and Veteran Affairs medical centers. 

The High Court is not an Article III Court, the motion states; and the High Court is not allowed to exceed its jurisdiction without written authority from the Fono.

The dismissal motion cites the case of Vessel Fijian Swift v.Trial Division of the high court 1975, and which expresses no opinion as to the validity of this narrow limitation but notes that generally and in point of fact, the exact status of the laws and Constitution of the United States in an unorganized and unincorporated territory such as American Samoa is uncertain. As such, the High Court cannot assert jurisdiction over Federal property without explicit authorization from the Fono. 

Here in Pago Pago, the United States Post Office is considered Federal property, and thus the jurisdiction is exclusive, not concurrent. If a crime is committed on Federal property, Federal courts have jurisdiction to prosecute to the exclusion of state courts. 

Ude noted that the government is enforcing local statutes based upon a Federal Agency’s investigation.


According to the motion if the Court believes that the American Samoa Government has Concurrent Jurisdiction over this matter, then Defendant also believes that double jeopardy is applicable.

“Courts of concurrent jurisdiction in the same state are “creations emanating from the same sovereignty,” the concept of dual sovereignty does not apply and successive prosecutions for the same offense in different courts of the same jurisdiction constitute double jeopardy. 

By reviewing disciplinary actions through the Post Office Management, and the reference by parties that such review constituted his “Day in Court”, any further prosecution by another jurisdiction would constitute double jeopardy.


According to the motion the defendant suggests that the crimes contained in the information are duplicitous, and should be re-filed as alleged by the investigating officer on the single count of Embezzlement. Embezzlement and Stealing and falsifying documents all relate to the same offense, and thus the offenses should merge says the motion.

The motion explains that the defendant was a Postal Employee, and was found to have a shortfall in his cash drawer. 

“The disposal of stamps and cash, by way of either embezzlement or theft, and the alleged hiding of said acts stem from the same event, and thus Defendant should not be facing three different crimes for the same act. 

“As someone who was authorized to handle funds and stamps entrusted to him, any shortfall would not constitute stealing, and any allegations to hide the crime is the element of embezzlement (documentation of the misappropriation).


The dismissal motion has it the defendant is accused of committing three Felonies, all pending from a shortfall determined by the Defendant’s Supervisor, Smitty McMoore in February 2009, more than three years prior to the filing of any criminal charges against Defendant. 

“Statute of Limitations should be liberally construed in favor of the accused." The Statute of Limitation begins to run from the time of the commission of the alleged offense. 

“By producing the “Memorandum for Postmasters and Managers, Customer Service” on 2 March 2006, the Post Office by way of Daryl Ishizaki, District Manager, the memo expressed concerns regarding the integrity of District Reports.  Specifically, “Suspect Financial Audit Reports” were the issue, i.e., shortfalls. 

“The Post Office became aware of the shortfalls in Defendant’s cash drawer in February 2009. The Statute of Limitations for Felonies alleged by Plaintiff are for three years, and thus the matter should be dismissed for having been filed beyond the Statute of Limitations.


 Court documents in this case say that the investigation was conducted by the Federal government, which was referred to the Attorney General’s office for prosecution.

Documents state that around May 2009, the late Smitty McMoore then Postmaster falsified an audit report to conceal the acts of theft for the accused. The then postmaster had conducted two audits, which allegedly revealed the defendant removed cash and stamps from his drawer. It’s alleged McMoore asked the defendant to pay back the money, but Fa’asala didn’t comply.

 It’s alleged McMoore filled out an audit report reflecting the defendant’s cash was over $0.67, this report was signed by the defendant and was submitted to the USPS Honolulu District Office.

The US Postal Service District Manager in Honolulu Hawaii was concerned and assigned another postmaster to conduct visits and audits with the local post office. The audits discovered a shortage of $2,977.06 in the defendant’s drawer, state court filings.

Court filings say Fa’asala explained that he handed out stamps to his friends and he was paid at a later time and he would pocket some of the money and place the reminder back in his drawer.

On September 11, 2009 an agent with the Office of the Inspector General initiated the investigation and a letter of demand was handed to the defendant on the same day to pay his shortage of $2,977.06.  The following month the defendant paid in full his shortage to the post office.