Pago Pago, AMERICAN SAMOA — District Court Judge Fiti Sunia has dismissed the felony charge of unlawful possession of a controlled substance, to wit; methamphetamine, against former Customs Agent Fiatupu Tavai, after the government did not present any witnesses during a preliminary examination on Thursday morning.

However, immediately after the court dismissed the felony charge, prosecutor Robert Morris informed the court that the government has filed a new criminal complaint against Tavai, where he has been charged with conspiracy to import drugs to the territory, a class A misdemeanor, punishable by a term of imprisonment of not more than 1 year, or a fine of nor more than $1,000, or both.

Morris appeared on behalf of the government while private attorney Marcellus T. Uiagalelei represented Tavai, who was released on a $5,000 surety bond while waiting for his PX hearing last Thursday.

When the case was called, Sunia asked the government to bring their witnesses to the stand. In response, Morris informed the court that the government did not wish to call any witnesses.

“Well, because the government does not wish to call any witnesses, there is no reason for the court to determine if there is any probable cause to bind the case over to the High Court. So, the criminal case against Mr. Tavai is now being dismissed,” Sunia said.

He then acknowledged receiving a new complaint filed by the government against Tavai, and ordered the Clerk of the Court to file the new complaint.

After a brief recess, Tavai’s case was called back for his initial appearance, where his attorney informed the court that they have received the copy of the criminal complaint, and asked to waive formal reading of the charge against his client. He also entered a not guilty plea for his client to the single charge filed against him.

Morris then informed that the court that both sides had now reached a resolution in this case.

When asked to explain, Uiagalelei informed the court that his client wished to enter a plea of no contest to the charge against him.

Sunia noted the defendant’s plea of no contest and ordered Tavai to appear on Aug. 10 at 10:30 a.m. for sentencing.

The judge then set Tavai’s bond for this new criminal case in the amount of $1,000. His bond will be deducted from the $5,000 he posted in his previous case that has now been dismissed by the court. The balance will be refunded to him.

Sunia also ordered his Probation Officer to prepare a Pre-Sentence Report for this case.

BACKGROUND

According to the court affidavit, the DPS Vice and Narcotics Unit was contacted by a Customs K9 officer on Apr. 6 regarding a package that Customs canine Benny alerted to during a routine inspection at the Post Office.

The parcel, addressed to Tavai, allegedly "contained two large clear bags containing what appeared to be green leafy substances," according to the court affidavit, which further states that Tavai allegedly told Customs officers that the box belonged to Tigilau, who picked him up and drove him to the Post Office to claim the shipment.

The green leafy substance tested positive for marijuana.

The court affidavit notes that Tigilau was standing next to Tavai when the contents of the parcel was laid out and Tigilau allegedly attempted to place the bags back into the box and take off with it. When told that neither the box nor Tavai could leave the Post Office, Tigilau allegedly admitted that the box was a transit from Apia, and it belonged to him.

According to the court affidavit, Tigilau tried to talk the Customs agent into letting him go, saying he "won't do it again."

A police search of Tigilau's vehicle allegedly uncovered a black pouch Tigilau denied any knowledge of. The pouch allegedly contained a clear glass pipe with what appeared to be a white crystalline substance and “Zigzag” rolling papers, which Tigilau said belonged to his cousin. The white substance tested positive for meth.

When questioned by police, Tavai said Tigilau approached him two weeks earlier at his home in Vailoa to ask if he could use his post office box to receive a parcel, but the contents of the package were never disclosed.

Tavai told police he saw a glass pipe containing a white substance inside Tigilau's truck when they were heading to the Post Office that day.