[30ASR2d110]
v.
SAMMY LAFOGA, FAGA`ALU PATU,
and TOLO BERNARD, Defendants
High Court of
Trial Division
CR No. 35-96
CR No. 36-96
CR No. 37-96
[1] Prison discipline does not preclude a
subsequent criminal prosecution based on double jeopardy.
[2] Criminal procedure in the High Court
must conform as nearly as practical to the Federal Rules of Criminal Procedure.
The High Court will consider
interpretations of the federal rules by federal courts to be highly persuasive
in the interpretation of the local rules, which mirror the federal rules.
[3] A prisoner already in custody who is
merely returned to custody following an escape does not possess the liberty
interest protected by T.C.R.Cr.P. 5.
[4] To prevail under the defense of
selective prosecution, a defendant must show that his prosecution was
deliberately based upon an unjustifiable standard such as race, religion, or
other arbitrary classification, and that others similarly situated have not
been prosecuted.
[5] Selective prosecution claims are
reviewed under ordinary equal protection standards.
[6] A claim for selective prosecution
based on the publicity in a case is analyzed under the rational basis standard.
[7] Under the rational-basis test, the
government need only show that its actions are rationally related to a
legitimate state interest.
Before KRUSE, Chief Justice,
BETHAM, Associate Judge, and SAGAPOLUTELE, Associate Judge.[30ASR2d111]
Counsel: For
Plaintiff, Frederick J. O'Brien, Assistant Attorney
General
For
Defendants Sammy Lafoga and Faga`alu
Patu, David P. Vargas
For
Defendant
Order Denying Motions to
Dismiss:
INTRODUCTION
Three prisoners escaped from
the Tafuna Correctional Facility ("TCF"),
where they had been confined following conviction. On
Following their respective
returns to custody, all three were removed from the general population and
placed in maximum security. On
DISCUSSION
I. Double
Jeopardy
The defendants first claim that their criminal prosecution
constitutes double jeopardy. They claim
that, having already been subjected to punishment by prison officials, in that
they were moved from the general prison population into maximum security, they
cannot now be tried by the government.
[1] Article I, Section 6 of the Revised
Constitution of American Samoa, which mirrors the Fifth Amendment of the United
States Constitution, provides that "No person shall twice be subject for
the same offense to be twice put in jeopardy of life or liberty." Federal law interpreting the Fifth Amendment
is persuasive in our interpretation of our Double Jeopardy Clause.1 The defendants have not
cited a single case to support their [30ASR2d112] argument of double jeopardy,
which is sparse. This is not surprising,
because the law is firmly against them.
Every U.S. Circuit Court of Appeal that has examined the question has
ruled that prison discipline does not preclude a subsequent criminal
prosecution. See, e.g., United States
v. Rising, 867 F.2d 1255, 1259 (10th Cir. 1989); Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir. 1982); Fano v. Meachum,
520 F.2d 374, 376 n.1 (1st Cir. 1975), rev'd
on other grounds, 427 U.S. 215 (1976); United States v. Herrerra, 504 F.2d 859, 860 (5th Cir. 1974); United
States v. Stuckey, 441 F.2d 1104, 1105-06 (3rd Cir. 1971); United States
v. Apker, 419 F.2d 388 (9th Cir. 1969); United
States v. Shapiro, 383 F.2d 680, 683 (7th Cir. 1967); Hamrick v. Peyton,
349 F.2d 370 (4th Cir. 1965); Gibson v. United States, 161 F.2d 973, 974
(6th Cir. 1947). We agree that this is
the rule under our Double Jeopardy Clause.
Thus, disciplinary actions by prison officials do not constitute
jeopardy to preclude a subsequent criminal trial.
II. Rule
5(a)
The defendants next argue that the prosecution should be
dismissed as a violation of T.C.R.Cr.P. 5(a). Rule 5(a) reads, in pertinent part: "An officer making an arrest under a
warrant issued upon a complaint or any person making an arrest without a
warrant shall take the arrested person without unnecessary delay before the
next sitting of the district court."
The first time the defendants were taken before a court was at their
arraignment on
[2] Criminal procedure in the High Court
must conform as nearly as may be
practical to the Federal Rules of Criminal Procedure. See A.S.C.A. § 46.0501. We consider interpretations of the federal
rules by federal courts to be highly persuasive in our interpretation of the
local rules, which mirror the federal rules.
See American Samoa Gov't
v. Isaia, CR No. 65-95, slip op. (Trial Div. March
28, 1996); Fanene v. American Samoa Gov't, 4 A.S.R. 957 (Appellate Div. 1968). Unfortunately, the federal cases cited by
the defendant have almost nothing to do with the present situation. See United States v. Jernigan,
582 F.2d 1121 (9th Cir. 1978) (holding that dismissal is appropriate if officer
delays executing arrest warrant until such time as arrestee cannot be brought
before magistrate until serving long weekend in jail); United States v. Osunde, 638 F. Supp. 171, 176-77 (N.D. Cal. 1986) (holding
that Rule 5(a) applies to criminal charges while a person is being held by
immigration officials). The cases cited
by the government are even less relevant.
See United States v. Lovasco,
431 U.S. 783 (1977) (dealing with the Sixth Amendment right to a speedy trial);
United States v. Marion, 404 U.S. 307 (1971) (same).
[3] On the other hand, we were
able to locate immediately with very little research effort the appropriate
interpretation of Federal Rule 5(a).
"The provisions of Rule 5 . . . may not be availed of by a prisoner
in escape status." Rush v.
United States, 290 F.2d 709, 710 (5th Cir. 1961); see 1
[30ASR2d113] Charles Alan Wright, Federal
Practice & Procedure § 71, at 77 (2d ed. 1982 & Supp. 1994)
("Rule 5 does not apply . . . to a prisoner who has escaped . . .
."); see also Redinger v. United States,
404 F.2d 310, 312 (10th Cir. 1968); Government of Virgin Islands v. Lovell,
378 F.2d 799 (3rd Cir. 1967); Wakakshan v.
United States, 367 F.2d 639 (8th Cir. 1966), cert. denied, 386 U.S.
994 (1967); Rademach v. United States,
285 F.2d 100 (5th Cir. 1960); Edmonds v. United States, 273 F.2d 108
(D.C. Cir. 1959), cert. denied, 362 U.S. 977 (1960); cf. United
States v. Carignan, 342 U.S. 36, 42 (1951)
(holding that Rule 5 does not apply where confession was made before arrestee
was presented to magistrate when he was arrested for a different crime). A prisoner already in custody who is merely returned to custody following an escape does
not possess the liberty interest protected by Rule 5. Therefore, he is not denied any liberty
interest where Rule 5 is not followed.
Thus, the local application
of Rule 5 should follow the clear federal application of Rule 5, which does not
apply to an escaped prisoner.
III. Selective
Prosecution
[4-5] The defendants' final argument
is as ill-constructed as their first two.
They claim that their prosecutions must be dismissed because they have
been selectively chosen for prosecution.
However, mere selectivity in prosecution does not present a
problem. Oyler v. Boles, 368
[6] The defendants have not claimed
that they belong to a suspect or quasi-suspect class, let alone that their
prosecutions are based upon their membership in this class. Nor have they claimed that they have had a
fundamental right violated. They claim
that they have been selected out for prosecution because their escapes were
publicized in the newspaper. Assuming
this is true, it is of no consequence in determining the level of scrutiny to
be applied. Furthermore, their attempt
to analogize their case to United States v. Steele, 461 F.2d 1148 (9th
Cir. 1972), is entirely misplaced. In Steele,
the court stated explicitly and at length that the defendants had been singled
out for prosecution because they exercised their fundamental [30ASR114] First
Amendment right of freedom of speech. See
id. at 1151-52.
The defendants have absolutely no claim that they are being prosecuted
because they exercised a constitutionally guaranteed right like that in Steele.
[7] Thus, the defendants' claim is
properly analyzed under the rational-basis test. Under this test, the government need only
show that its actions are rationally related to a legitimate state interest. F.C.C. v. Beach
Communications, Inc., 508
The defendants have not even
presented an argument that the government cannot meet this test. Clearly, the government has a legitimate
interest in preventing and deterring prison escapes. This is particularly true where prisoners
commonly walk out the front gate of the prison, as the defendants allege. We cannot say that the decision to prosecute
only the most-publicized cases is unrelated to the interest of deterring
escape. Even if the defendants could
prove every other element of this claim, they could not prevail.
CONCLUSION
The motions to dismiss are
denied.
It is so ordered.
*********