Pago Pago, AMERICAN SAMOA — District Court Judge Fiti Sunia has dismissed without prejudice the felony count of tampering with public records against DPS prison guard Mosese Lomu, after the court was unable to find probable cause to bind the charge over to High Court for arraignment.

However, the remaining felony count of criminal fraud was bound over after Sunia found that the government has presented sufficient evidence.

Lomu appeared in court this week for two separate hearings — a status hearing for the court to deliver its decision on a preliminary examination (PX) conducted last week, and his second PX for the new case the government filed against him, where he’s charged with one count of tampering with a witness, a felony.

Lomu is represented by Assistant Public Defender Ryan Anderson, while prosecuting the case is Assistant Attorney General, Woodrow Pengelly.

COURT DECISION ON THE FIRST PX

Before Judge Sunia delivered his decision, both parties presented their final arguments to the court.

The government argued that the evidence presented proved that Lomu instructed other officers at the Territorial Correctional Facility (TCF) to stick to one story so they can cover up what happened with inmate Manu Lefatia. The government also believes Lomu was involved in a criminal scheme at the TCF.

The government pointed to the TCF log where head counts are recorded, including  the night of Aug. 11, 2018 at 11p.m; and claims that Lomu instructed one of the TCF officers to make changes to the log, to show that they conducted head counts every 30 minutes, instead of just once. Lomu’s actions, according to the prosecutor, resulted in DPS prison guard, Viopapa Vitolio making changes to the log.

When it was his turn, defense attorney Anderson asked for a dismissal of both charges against his client.

For the charge of tampering with public records, Anderson said the TCF log is not a public record, it’s for prison use only — not for public access.

For the count of criminal fraud, Anderson argued that the government failed to present a single piece of evidence to prove their claim. He said Lomu did not instruct any prison guards or officers at the TCF to cover up Lefatia's escape.

According to Anderson, one of the elements of criminal fraud is when a group of people work together to set up something that’s against the law. He said his client was never involved in any criminal scheme or set up.

In delivering his decision, Sunia said that while both parties mentioned something about a “possible scheme”, he wanted to make it clear that the court does not want to be part of the 'scheme'.

“The court’s duty is to determine whether there is sufficient evidence to find probable cause to bind the case over to High Court. The court also has to determine from the totality of the circumstances of what happened,” Sunia said.

For count 2 of tampering with public records, Sunia said one of the elements of the charge is when a person knowingly makes a false entry to a public record.

Sunia said that according to the government’s case, there were entries reflected inside the TCF log, and some of them were false. The government also claimed that the defendant instructed another officer to make false entries in the log.

According to Sunia, tampering with public records means any false information added to a public record that was approved by law. For this case, the TCF log was not approved by law, it is just an operating manual. Therefore, the court is unable to find probable cause to bind that charge over to High Court and it is dismissed without prejudice.

For the charge of criminal fraud, the court is satisfied that there was sufficient evidence presented by the government during the preliminary examination and finds probable cause to bind the charge over to High Court.

Sunia said there was evidence that Lomu instructed other officers to stick to the story and lied to the police that inmate Lefatia was inside his cell.

SECOND PX

When Lomu’s case was called in court for his second PX, he opted to waive his right to a hearing. Lomu entered a not guilty plea to the charges against him when he appeared in High Court this week for arraignment.

He is scheduled to appear in court again on Nov. 30 for his first pretrial conference.