The Eastern District traditional leaders are scheduled to meet today to select their district governor for the next four years. Last week, Satele Galu Satele was appointed by the governor as the Western District Governor.
Also this weekend, at least three counties are meeting to select their respective senators.
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Feds oppose expert witnesses in Faoa and Tulifua case
Monday; December 1, 2008
By Fili Sagapolutele
fili@samoanews.com
The U.S. government has raised opposition with the federal court in Washington D.C. over Lt. Gov. Faoa Aitofele Sunia and Sen. Tulifua Tini Lam Yuen's two proposed expert witnesses that include Henry W. Kappel, legal counsel of the Fono.
The other proposed expert witness, according to the government's 28-page motion filed last Wednesday, is Bradd Shore, Ph.D., a professor of Anthropology at Atlanta-based Emory University.
Accompanied by the motion are 43 pages of exhibits which include a Sept. 12 letter to the Justice Department from Lanny A. Breuer, lead attorney for Faoa; and Michelle Peterson, lead counsel for Tulifua. The 5-page letter outlines qualifications of the two witnesses and what they are expected to testify on if/when called during trial set for June next year.
The government incorporated into its motion several points of information from the Sept. 12 letter and provided explanation as to why it opposes testimonies from both possible expert witnesses.
According to the government, the proposed testimony of both witnesses extends beyond the permissible limits of the Federal Rules and should be excluded altogether or limited accordingly. In the alternative, further discovery and hearings should be ordered.
LEGAL STANDARD
The government argued Federal Rules of Evidence permit testimony of an expert if "scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."
"Put another way, expert testimony is admissible if the expert is qualified and the testimony is both reliable and relevant."
The government also points out that in determining whether proposed expert testimony has a proper "fit" in a case, courts have looked to a variety of factors, including: whether the testimony is relevant; whether it is within the juror's common knowledge and experience; and whether it will usurp the juror's role of evaluating a witness's credibility.
HENRY KAPPEL
The prosecutor argued that Kappel's expert testimony is objectionable on several grounds and noted four specific reasons why.
Firstly, Kappel was a member of the law firm (Rose, Joneson and Vargas) that represented Fa'au Seumanutafa, during his American Samoa case in this matter. According to the prosecutor, federal government witness Seumanutafa, who is anticipated to be called as a government witness during Faoa and Tulifua's trial, has been and is still represented by David Vargas of this law firm.
Kappel, therefore, has a potential conflict of interest or at least an appearance of conflict that precludes his participation as an expert, said the prosecutor.
According to the defense, it is anticipated Kappel will testify among other things that American Samoa law incorporates principles of separation of powers between the Legislature and Executive Branches.
He is further expected to testify that American Samoa law and practice delineate the duties and powers of certain positions in the Legislature and Executive branches of ASG, including (but not limited to) positions held or formerly held by persons whose acts allegedly or actually pertain to matters at issue in this case.
But the government argues in its motion that the "particulars of American Samoa law are simply facts, and do not require an expert witness to be introduced."
"Moreover, any testimony going beyond the facts of relevant American Samoa laws to the interpretation of those laws would be improper, as it would call for legal conclusions and invade the province of the Court as the jury's legal advisor," the government said. "This is precisely what Defendants seek from Mr. Kappel's testimony."
According to the defense, Kappel is also anticipated to testify that the ASG Treasurer does not participate directly or indirectly in a 'procurement' as that term is defined and/or understood in American Samoa. Instead the Treasurer performs or supervises the performances of “mere ministerial acts” related to payment, while procurement decisions are made by the Chief Procurement Officer or his designee.
The government disagrees saying "the obvious intent of this opinion is to suggest to the jury, under the guise of an 'expert' witness that defendant Sunia did not violate the explicit conflict of interest laws in American Samoa."
The third reason the government believes Kappel should be excluded is because it's "irrelevant and improper" and noted Kappel’s proposed opinions "are not a 'fit' to this case and are meant solely to confuse the jury and suggest the Government must prove additional elements beyond those required by law which are not at issue here."
"Finally, while no specific basis in law or fact has been provided for his opinions, many of the proposed opinions are contrary to common sense and common legal principles. Therefore the basis for such opinions, if the Court considers allowing them at all, must be the subject of much greater discovery notice as well as close scrutiny in a pre-trial hearing," the government said.
Prosecution also notes the opinions proposed by the defendants are meant to address an element of proof that does not exist in the statute or the law.
"The government will prove that these two defendants were agents of the government who had influence over and official responsibilities relating to the integrity of the funds of American Samoa," prosecutor said. "The government will also prove that the defendants have demonstrated a total lack of integrity or concern when it came to the funds of American Samoa."
"They are exactly the type of corrupt stewards that this statute directs the federal government to protect its funds and its citizens or nationals against," said the Prosecution.
BRADD SHORE, Ph.D
Shore will testify as an expert on Samoan culture. The defense disclosed four specific opinions on which they may ask Shore to testify:
- "that creating and maintaining smooth and harmonious social relationships is very important to Samoans and that no relationships are more important for Samoans than those based on kinship;
- "that Samoan family relationships are grounded in blood ties but extend beyond strict genealogical criteria;"
- "that the modern political system of Samoa is a hybrid of traditional Samoan institutions and important Western institutions;" and
- "that, from everyday greetings to elaborate formal ceremony, Samoan life is orchestrated by the give-and-take of reciprocal exchange."
According to the government, Shore's testimony should be excluded because it will not "assist the trier of fact to understand the evidence or to determine a fact in issue" and because the value of his testimony is outweighed by the "danger of unfair prejudice, confusion of the issues or misleading the jury."
To back up its argument, the government first points out Shore's purported opinions regarding gift-giving fall well within the province of the average juror’s knowledge and experience and will not assist the jury.
"A careful review of Dr. Shore's opinions reveal that there is nothing unique about the gift-giving tradition in American Samoa that will assist the jury in understanding the evidence or determining the issues in this case," the government argued and noted the main thrust of Dr. Shore's testimony appears to be that gift-giving is a common and essential aspect of Samoan culture.
A footnote in the government's motion said it agrees that some testimony about the Samoan matai system will be necessary, and is confident such factual evidence will come in. It also notes that the Samoan witnesses, including several chiefs, are personally familiar with and knowledgeable about their culture and are competent to testify regarding the matai system and how it affects their lives.
(Samoa News understands that a local Paramount Chief has been subpoenaed as a government witness)
According to the government, the question of what constitutes a gift does not and should not require an expert opinion.
In its second point of argument, the government said underlying situations in Dr. Shore's opinions about gifts "are not relevant to the facts of this case".
"To the extent Dr. Shore discusses gift-giving by chiefs in order to assert and maintain their status, he (Shore) states that these gifts are bestowed upon 'family members far and wide'," the government said that neither of the defendants are related by blood, marriage or adoption to Seumanutafa or the [former] director of Education [Sili Sataua].
Additionally, the government is aware of no facts – nor does Dr. Shore proffer any – to establish there is any history whatsoever of reciprocal gift-giving among various chiefs, among government officials, or among these Defendants and the Chief Procurement Officer or Director of Education.
In its third point of argument, the government said testimony about the "economy of reciprocal gift-giving" poses a serious risk of confusion to the jury in the context of a bribery case where only the Court's legal instructions and the jury's application of those instructions to the facts ultimately matter.
Lastly, "if Dr. Shore intends to opine on the things of value alleged in the Indictment then his disclosure is inadequate and his testimony would improperly usurp the jury's role in assessing witness credibility and state of mind," the government argued.
According to the defense, Shore spent several years of his life living in Samoa, has studied Samoan culture for over 40 years and speaks fluent conversational Samoan.
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Challenge to awarding of Satele title denied
Court explains limited use of "Sotoa rule" in determining 'best hereditary right'
by La Poasa
Samoa News Staff
The Land and Titles Division of the High Court has denied a request from Mosooi Soonata'u Mapu for a reconsideration or a new trial over the awarding of the paramount chief title "Satele" to Galu T. Satele.
Mosooi was one of five men who vied for the Satele title of Vailoatai, and when the Court awarded the Satele title to Galu in April, Mosooi petitioned the Court for reconsideration, citing that the Court erred in its decision.
Mosooi's request was denied in a 10-page ruling in which the judges look into the "Sotoa rule" of determining best hereditary right to a title, and revealed concerns of the Appellate and Land and Titles divisions of the High Court in its application.
The ruling was issued on Monday and signed by Associate Justice Lyle L. Richmond, Chief Associate Judge Logoai Siaki, and associate judges Mamea Sala Jr., Saole Mila and Suapaia E.C. Pereira.
BACKGROUND
The Land and Titles Division's decision was, by law, based on four criteria established many years ago by the Fono. The four criteria (priority is given to the four criteria in the order listed) are: 1) hereditary right; 2) support from family clans; 3) forcefulness, character, personality and knowledge of Samoan customs; and 4) value to family, village and country.
Regarding the first criterion "hereditary right", the Court decided to apply the so-called "traditional rule" as opposed to the optional alternate known as the "Sotoa rule".
Under the traditional rule, which was the only legally recognized option until 1984, hereditary right is determined by a candidate's relation (blood tie) to his nearest ancestor holding the title in question.
Under the Sotoa rule, hereditary right is determined by tracing a candidate's lineage to the original titleholder, not to any of the later titleholders.
In the April ruling, the Court determined that Galu, utilizing the "traditional rule", prevailed over the first criterion, and also the third criterion of "forcefulness, character, personality and knowledge of Samoan customs". No candidate prevailed over the second criterion of "support from family clans" while on the fourth criterion of "value to family, village, and country", the candidates were equal.
SOTOA RULE
In his motion, Mosooi argued that the Court should have used the "Sotoa rule" (instead of the "traditional rule") in determining which candidate prevailed as having the best hereditary right. He argues that the "traditional rule" is unconstitutional.
The Court did not review Mosooi's argument that the traditional rule is unconstitutional as it was not an issue raised during the Satele title trial (which by law is a prerequisite for motions for reconsideration), but the Court did look at his argument about the Sotoa rule because it was raised at trial, though not by Mosooi but by another candidate.
The Court explained that when the contestants agree on the identity of the original titleholder or common ancestor in the family, the Sotoa rule can be less arbitrary than the traditional rule in determining which candidate has the best hereditary right.
The judges said that the Sotoa rule has been criticized by both the Appellate and the Land and Titles divisions.
For example, one case raised the problem of applying the Sotoa rule when there's a disagreement as to the original titleholder while another case suggested that the Sotoa rule was based solely on the particular customs of the Sotoa family in determining best hereditary right and therefore should not be broadly applied to matai title determinations of all families, since customs and traditions differ from family to family.
In another matai case in 1987, the judges noted that the Court then "injected even more uncertainty into the [best hereditary right] inquiry" and announced a rule, which the parties had merely stipulated should apply to their particular family, "purporting to apply to all cases" when it should have simply accepted the stipulation for purposes of that case only.
Consequently, the judges say the Land and Titles Division has limited the use of the Sotoa rule to situations where: the candidates trace their ancestry back to the same original titleholder or a common ancestor, thereby agreeing on a largely harmonious family history; and a special consideration is presented, such as when some clans of the family have not held the title for several generations even though its members are entitled to have the opportunity to hold the title.
In his motion, Mosooi argues that the Sotoa rule should have been applied in this case because his part of the family has been deprived of the Satele title for many generations. However, the Court rejected his argument.
First, the judges say that the justification for the Sotoa rule when clans have not held the title for generations appears to have been raised by the Court in "dicta" (nonprecedential editorializing by the Court) as an equitable remedy left to the Court's discretion.
Therefore, the judges say the Court is under no obligation to use the Sotoa rule in this case for this equitable purpose.
Additionally, the judges say Mosooi's argument is "fundamentally flawed". They say it is based on the fact that his immediate family has not held the matai title in the Satele family for several generations.
"However, equitable use of the Sotoa rule is justified when clans of a family have not held the title," wrote the judges. "Mosooi and his immediate family are members of the Taeotafa clan, the same clan to which Galu belongs and the same clan from which the previous Satele titleholder was chosen."
The judges noted that granted no one from Mosooi's immediate family has held the Satele title since Satele Talili (Mosooi's great-great-grandfather), but other members of his clan have.
Therefore, the judges say conditions justifying the equitable use of the Sotoa rule are absent in this case.
According to Mosooi, had the Sotoa rule been applied, he would have prevailed in the best hereditary criterion.
The judges say this is the very situation that gave the Appellate Court pause concerning the use of Sotoa rule for equitable purposes, namely where a candidate prevailing on the best hereditary right criterion is not ultimately awarded the disputed title.
The judges say that in this case, no candidate prevailed over the second criterion (family support) but Galu did have consensus support of one of the three clans of the Satele family while Mosooi did not have the consensus support of any clan.
The judges say that considering Mosooi's failure to prevail in any of the other three criteria and Galu's strong showing in both family support and overall leadership characteristics, "Mosooi likely would not have received the Satele title anyway had he prevailed on the best hereditary right."
JUDGE BIAS
Mosooi also argued that one of the associate judges who presided over the case was biased in Galu's favor. He contends that Galu is the uncle of Fagaoali'i Satele Sunia, whose husband, former Gov. Tauese P.F. Sunia, appointed this particular associate judge.
Besides the fact that Mosooi failed to raised this issue at trial , the Court said that his argument "is tenuous at best and fails to show actual or even apparent bias on the part of any of the sitting judges in this case."
Galu was represented by Sharron Rancourt and Mosooi by Marshall Ashley.
Reach the reporter at la@samoanews.com.
© Osini Faleatasi Inc. dba Samoa News reserves all rights.
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Del Monte expects sale of StarKist to be finalized by fall 2009
by Fili Sagapolutele
Samoa News Correspondent
Del Monte Foods Co., expects the sale of StarKist and its subsidiary StarKist Samoa to be completed by the fall of 2009, a company official said yesterday.
The sale is subject to a working capital adjustment and regulatory approval and is expected to be completed in the fall, around September of 2009, which is the second quarter of the company's 2009 financial year.
Upon the closing of the deal, "all direct plant employees" of StarKist Samoa will join Dongwon's workforce, said the off-island official, who added that Del Monte has no plans at this point to make any changes (in workforce or production) to current StarKist Samoa operations.
The official said StarKist Samoa management was informed Sunday night about the sale of StarKist to Dongwon.
Del Monte said in a statement on Sunday that all direct plant employees related to the seafood business and about 34 other salaried positions are expected to join Dongwon. The company said the sale of StarKist is expected to generate net after-tax cash proceeds of $300 million and the proceeds will be applied toward debt reduction to de-leverage the balance sheet and reduce projected year-end fiscal 2009 Debt.
Additionally, the sale is expected to improve overall margin structure and reduce earnings volatility.
Besides StarKist operations in American Samoa, other plants affected are the two in Educador and certain manufacturing assets associated with StarKist seafood located on Terminal Island, California.
Reach the reporter at fili@samoanews.com.
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