Lt. Gov. Faoa Aitofele Sunia’s defense team yesterday asked the federal court in Washington D.C. to preclude the U.S. government from offering evidence and argument regarding the oath of office he allegedly took upon assuming his position within the Executive Branch of ASG.

The defense motion was filed after prosecutors “declined” to agree to the defense’s request not to offer evidence and argument regarding the American Samoa Oath of office in light of a recent decision by U.S. District Court Judge A. Ellis in a similar case.

In its introductory “General Allegations” section, the Superseding Indictment in this case alleges that Faoa, “upon his swearing in as Lt. Gov.” and “[u]pon his appointment” as ASG “Treasurer” was “required by law” to take the oath of office, the defense motion states.

At trial, the government “intends to introduce evidence and argument related to [Faoa’s alleged] failure to comply with ... [the American Samoa Oath] ... to demonstrate [his purported] intent, motive, and state of mind with respect to the allegations of conspiracy, fraud and bribery in this case,” the defense notes.

ARGUMENT

For the same reasons that Judge Ellis precluded evidence and argument regarding the oath of office taken by a Member of Congress in the Jefferson case, the defense says the D.C. Court should preclude evidence and argument regarding the American Samoa Oath allegedly taken by Mr. Sunia.

In the Jefferson case, the indictment quoted in full the Oath each Member is required to take at the beginning of a new Congress and “the government [sought] to introduce [the Congressional Oath] in the course of its case-in-chief.”

As with the American Samoa Oath, the Congressional Oath was “contained verbatim in the introductory General Allegations section” of the indictment against Faoa, the defense argued.

The government’s attempted use of the American Samoa Oath in this case should be treated no differently from the attempted use of the Congressional Oath in the Jefferson case, the defense argued.

In the Jefferson case, the government agrued that the Congressional Oath was “relevant as background and to show materiality, motive, and intent.” The defense added that the government argues in the Faoa case that the American Samoa Oath is relevant to “intent, motive, and state of mind.”

As with the Congressional Oath in the Jefferson case, the government has failed to explain—as it is required to do as the proponent of the evidence—how the American Samoa Oath has “any tendency to” effect the existence of any fact or consequence of action “than it would be without the evidence,” (in this case the Oath), the defense says.

The defense also outlined in its argument both the complete contents of the Congressional and American Samoa oaths to show their similarity.

According to the defense, the government has not identified any difference, let alone a material one, between the Congressional and American Samoa oaths.

Similarly, the government has not offered any reason why the “very different facts” in the two cases could warrant different rulings under Federal Rule of Evidence 402—exclusion of the Congressional Oath in Jefferson, but admission of the American Samoa Oath here, the defense states.

While the government asserts that the oaths administered to both Faoa and co-defendant Sen. Tulifua Tini Lam Yuen, and “their primary [purported] coconspirators in this case are central to the charges in the indictment” that assertion is undermined by the government’s request that Faoa stipulate that he took the American Samoa Oath on the alleged dates to avoid the “inconvenience” that “high government officials” in American Samoa would experience if they were forced to “travel to Washington, DC to provide testimony” regarding the American Samoa Oath, agrues the defense.

Like the Congressional Oath, the American Samoa Oath imposes no additional legal duties, said defense attorneys, and cited another federal case noting that oaths of office such as the American Samoa Oath do not “create specific responsibilities” or “impose obligations of specific, positive action on oath takers.”

Construing such oaths as subjecting oath-takers to additional criminal liability would present “serious” due process concerns, it says.

According to the defense, the American Samoa Oath is taken as “a matter of routine and tradition and it does not impose criminal liability independent of any applicable statute or regulation”. 

“A public official who violated an applicable criminal law without ever having taken an oath of office would be just as guilty as a violator who had taken an oath of office,” the defense contends. “The office-holder’s oath simply has no bearing on whether the person has violated applicable laws.”

Likewise, the fact that a person has taken an oath to “well and faithfully uphold the laws of the United States applicable to American Samoa” does not make him more or less likely to violate those federal laws, said defense teams.

Nor does having taken such an oath affect a person’s likelihood of having a state of mind relevant to the specific crimes with which Faoa is charged with violation of federal law, it says.

“The fact that a person has taken the American Samoa Oath does not make it more or less likely that he knowingly joined an illegal agreement, that he intended to commit federal programs fraud or bribery, or that he intended to mislead or deceive federal agents,” it argued.

Whether Faoa “took the American Samoa Oath has no bearing on whether he committed any of the charged crimes,” the defense said. “ “Accordingly, the American Samoa Oath has no tendency to make any fact of consequence more or less likely, and it is inadmissible.”

“If the government were allowed to introduce evidence and argument regarding the American Samoa Oath, such evidence would focus the jury’s attention on a broad range of non-criminal conduct that, in the minds of jurors, might breach the pledge to “faithfully uphold the...laws of American Samoa,” the defense says.

“Such evidence and argument would confuse and mislead the jury” which could lead to convicting Faoa if it finds simply that he didn’t “faithfully uphold” the laws of the territory, it says.

Additionally such evidence and argument would also create a serious risk of the jury convicting Faoa of federal crimes based on an alleged violation of American Samoa law.

According to the defense, a jury hearing that Faoa purportedly violated the American Samoa Oath “could create a sense of moral outrage” regardless of whether the government proves beyond a reasonable doubt that Faoa committed any of the charged crimes.

In concluding, the defense said “the danger of unfair prejudice” to Faoa “would substantially outweigh any probative value of the American Samoa Oath even if any such value existed, and the proffered evidence has no probative value in the first place.”