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CJ denies dismissal in case involving theft at Post Office

reporters@samoanews.com

Chief Justice Michael Kruse, accompanied on the bench by Associate Judge Fa’amausili Pomele, has denied a dismissal motion in the case of Nikolao Fa’asala, a retired Post Office employee accused of stealing money and postage stamps belonging to the Post Office in 2009.

The defendant’s motion, filed by his lawyer Mark Ude last month, was heard in court yesterday morning. Fa’asala is charged with embezzlement, stealing and responsibility for the conduct of another to commit forgery. He’s out on bond of $5,000.

In the dismissal motion Ude moved to have the charges dismissed, noting lack of matter jurisdiction, double jeopardy, duplicitous charges and statute of limitations. Ude told the court yesterday morning that the High Court of American Samoa does not have the jurisdiction to prosecute crimes that occur in the Post Office.

He added that 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.

He said any crime that is committed on Federal property is subject to Federal prosecution and comes under the exclusive jurisdiction of the Federal court system. 

Ude noted the United States Post Office in the territory is considered Federal property, and if a crime is committed on Federal property, Federal courts have jurisdiction to prosecute to the exclusion of state courts.

Ude told the court that double jeopardy is applicable in this matter. He said the “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.

On the duplicitous charges, Ude said 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.

He said that embezzlement, stealing and falsifying documents all relate to the same offense, and should be merged.

Regarding the statute of limitation, Ude said the defendant is accused of committing three felonies from a shortfall that was determined by the defendant’s Supervisor, the late Smitty McMoore in February 2009.

Ude said the statute of limitations begins to run from the time of the alleged commission of the offense and given that the incident was uncovered in January 2009,  the three years for  the statute of limitation for felonies has run out because the matter was only filed this year.

Assistant Attorney General Cecilia Reyna noted that while the Post Office falls under the federal government’s jurisdiction, the defendant has failed to provide evidence that the location of the Post Office is federally owned property.

Ms Reyna said many post offices in the States are on state owned property, and the same goes for this matter, therefore the court of American Samoa does have jurisdiction over case.

In Reyna’s response to the possibility of double jeopardy, she noted that the Defense counsel provided no case law that says that an employer’s disciplinary action creates double jeopardy. She added that defense counsel provided no evidence that the defendant has faced any criminal charges under this case in any court in the nation, the territory or any other territory. 

 Regarding the statute of limitations, Reyna said the time begins once the charges are filed.

Chief Justice denied the motion and scheduled a pre-trial conference for this matter on July 19, 2012.

According to the government’s case, the investigation into this matter was conducted by the federal government and 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 did not comply.

According to the government’s case McMoore filled out an audit report reflecting the defendant’s cash was over by $0.67, and this report was signed by the defendant and  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 separate audits discovered a shortage of $2,977.06 in the defendant’s drawer, according to court filings.

Court filings say Fa’asala explained that he handed out stamps to his friends and he was repaid at a later time. He stated that he would pocket some of the money and place the remainder 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 his shortage in full to the Post Office.



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