v.
ABE SAMANA, Defendant-Appellant
High Court of
Appellate Division
AP No. 20-97
[1]
A trial court’s factual determinations are reviewed for clear error.
[2]
The reviewing court gives weight to the trial judge’s assessment of conflicting
and ambiguous facts.
[3]
When considering whether probable cause exists based on information provided by
a confidential informant, the issuing judge should consider the basis for
informant’s alleged knowledge and whether the information and the informant are
reliable.
[4]
A defendant may challenge statements made in an affidavit supporting a warrant,
but must meet three conditions in order to obtain a Franks hearing: (1)
he must allege that specific statements in the affidavit were made with
reckless disregard for the truth, and must provide reliable, sworn statements
of supporting witnesses; (2) he may[3ASR3d28]challenge
the statement of the affiant only, not of the informant; (3) he must show that
the remaining information in the warrant, apart from the information the
defendant alleges to be false, would not support a finding of probable
cause.
[5]
Whether an informant, cited in application for a warrant, has an adequate basis
for his knowledge should be addressed in a direct challenge to the probable
cause finding.
[6]
Where a defendant makes a showing that identification of the government’s
confidential informant may be relevant and helpful to a possible defense at
trial, a district court abuses its discretion if it fails to hold an in camera
hearing on disclosure.
[7]
The burden is on appellant to produce a record which shows the court abused its
discretion.
[8]
There is sufficient evidence to support a conviction if, viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
[9]
Whether the court’s instructions to the jury correctly state the elements of a
crime or adequately covered a defendant’s proffered defense is reviewed de
novo.
[10]
Where the government seeks an enhanced sentence based on allegations of
recidivism, due process requires that the defendants be given adequate notice
and an opportunity to be heard on the recidivism issue prior to sentencing.
[11]
Where criminal defendant had moved to exclude evidence of his prior conviction,
and motion was heard prior to sentencing, he had received notice and been
afforded an opportunity to be heard in accordance with the requirements of due
process and his enhanced sentence was therefore constitutional.
Before GOODWIN,* Acting
Associate Justice; MUNSON,** Acting
Associate Justice; and TUA`OLO and AFUOLA, Associate Judges. [3ASR3d29]
Counsel: For Appellant, Tautai Fa`alevao, Public Defender
For Appellee, John W. Cassell, for the
Attorney General
OPINION
GOODWIN,
Acting Associate Justice:
Abe Samana appeals his conviction for Unlawful Production of a
Controlled Substance (ASCA § 13.1020) and Unlawful Possession of a Controlled
Substance (ASCA § 13.1022). He was
sentenced to a 20-year term on the offenses, with an additional ten years added
pursuant to ASCA 13. 1023, a recidivist statute. Samana is presently serving his sentence, and
his appeal challenges the judgment on a number of grounds.
The charges arose out of an incident that occurred in April of 1997.
Officers of the Department of Public Safety procured a search warrant
authorizing them to search certain premises, allegedly occupied by Samana, for
cut and growing marijuana. When the
officers arrived to serve the warrant, Samana engaged in an armed standoff with
the officers, ultimately shooting at one of the officers. After several hours, Samana surrendered.
After Samana was removed from the premises, officers executed the
warrant and found cut and growing marijuana in and around the premises, in
addition to some drug paraphernalia, and expended and live ammunition. No
handgun was recovered at the scene.
[1-2] Samana
contests the validity of the search warrant, the court’s denial of his
pre-trial motions concerning the warrant, the jury instructions, the verdict,
and the sentence. A trial court’s factual determinations are reviewed for clear
error. The reviewing court affords
particular weight to the trial judge’s assessment of conflicting and ambiguous
facts, especially where the findings are based in part on the trial court’s
evaluation of conflicting evidence and live testimony. Questions of law or
mixed questions of law and fact are reviewed de novo. Roman
Catholic Diocese of Samoa Pago Pago v. Avegalio, 20
A.S.R.2d 70, 73 (App. Div. 1992).
Analysis
A. Search Warrant
1. Probable
Cause
[3] The Revised Constitution of American Samoa provides
that “no warrants shall issue, but upon probable cause. . . .” Art. I, § 5. When[3ASR3d30]considering whether probable
cause exists based on information provided by a confidential informant, the
issuing judge should consider whether the circumstances suggest that the
informant had some basis for his alleged knowledge, and whether the information
and the informant are reliable. See ASG v. Samana,
8 A.S.R.2d 1, 6 (Trial Div. 1988). Review of the initial probable cause
assessment is deferential. Id. at 7 (The reviewing court “may only
address whether the evidence viewed as a whole provided a substantial basis for
the magistrate’s finding of probable cause as opposed to an after the fact de
novo assessment of probable cause.”)
In this
case, Agent Sunia, of the Office of Territorial and International Criminal
Intelligence and Drug Enforcement, submitted an affidavit to a magistrate in
support of his application for a warrant.
Samana argues that the affidavit was insufficient to support the search
warrant. We have examined the warrant, and on its face, it supports probable
cause to believe that marijuana is growing at the place described in the
affidavit. Samana offers only conclusory assertions about the possible motives
of law enforcement officers involved in this case, and speculation about facts
apparently not contained in the affidavit, in the absence of some specific
offer of proof by Samana, that the affidavit is false, his argument fails.
2. Error
to deny Franks hearing?
[4] A criminal
defendant may challenge the accuracy of the statements made in the affidavit
supporting a request for a warrant, but must meet a high standard to show he is
entitled to a hearing on the issue. The defendant may be entitled to a hearing
if he meets three conditions: (1) defendant must allege that specific
statements in the affidavit were made with reckless disregard for the truth,
and must provide reliable, sworn statements of supporting witnesses; (2)
defendant may challenge the statement of the affiant only, not of the
informant; (3) defendant must also show that the remaining information in the
warrant, apart from the information the defendant alleges to be false, would
not support a finding of probable cause. Franks v.
[5] Samana argues that he was entitled to a Franks hearing because
(a) the affidavit did not contain an adequate statement of the confidential
informant’s basis of knowledge, and (b) the affidavit failed to inform the
magistrate that an informant used in the past by Lt. Leuma had provided false
testimony. [Brief at 15-16] The first argument is clearly off base—in a request
for a Franks hearing, a defendant may challenge only the veracity of
statements made by the affiant. Whether
the informant has an adequate basis for his alleged knowledge should be
addressed in a direct challenge to the probable cause finding. See, e.g.,
American[3ASR3d31] Samoa Gov’t
v. Samana, 8 A.S.R. 2d at 6.
The second
argument concerns parties entirely unrelated to this proceeding, and is
therefore irrelevant. Samana seems to
argue that the affiant in this case, Officer Sunia, was merely a puppet of Lt.
Leuma. He therefore suggests that it was
materially misleading for the affidavit to omit any discussion of a prior
incident involving Lt. Leuma, who was not the affiant in this case, and a
confidential informant who provided false testimony in a different case, and
who is not alleged to be the informant in this case. Samana has not provided any case law
suggesting that this information is remotely relevant to the proceedings in
this case, He also has not come forward with any evidence that he presented to
the trial court at the time of his request for a Franks hearing. In the absence of supporting evidence
contradicting the affidavit, this argument also fails.
3. Error
to deny in camera hearing?
[6] “Where a
defendant makes a showing that identification of the government’s confidential
informant may be relevant and helpful to a possible defense at trial, a
district court abuses its discretion if it fails to hold an in camera hearing
on disclosure.”
Samana argues that he presented information to the trial division, in
his pretrial motion for an in camera hearing on the identity of the
informant, demonstrating that the identity of the informant would be relevant
to his defense at trial. It appears,
from the Government’s brief, that the court heard testimony from Samana’s wife
in support of his request for an in camera hearing. The court initially granted the motion, but
vacated the decision after reconsideration of the facts.
[7] Samana’s
failure to provide a transcript of the relevant testimony, a copy of the court
order granting the motion or vacating same, or any other evidence in the record
pertaining to this issue, makes it virtually impossible to evaluate this
argument. While the standard a defendant must meet to receive an in camera hearing
is relatively low, see Spires, 3 F.3d at 1238, and it is conceivable
that the record could support such an argument, the burden is on the appellant
to produce a record which shows that the court abused its discretion. Samana
has provided this court nothing upon which this court can base a conclusion
that trial court abused its discretion.
B. Was the
evidence sufficient to support the jury’s verdict?
[8] There is sufficient evidence to support a conviction if, viewing the
evidence in the light most favorable to the prosecution, any rational trier [3ASR3d32]of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Samana contends, without any supporting evidence or documentation, that
(1) the prosecution failed to establish a proper chain of custody for the
marijuana introduced into evidence at trial; (2) he was denied the opportunity
to fully cross-examine the prosecution’s witness concerning the chain of
custody; (3) the prosecution failed to establish that he occupied or controlled
the land from which the marijuana was seized. Without some support for these
allegations in the record, Samana fails to present this court with sufficient
grounds to overturn the jury’s verdict in this case.
C. Did the
trial division err by denying Samana’s request to give the jury a specific
instruction concerning the degree of knowledge necessary for conviction under
the offense charged?
[9] Whether a court’s instructions correctly state the elements of a crime
or adequately covered a defendant’s proffered defense is reviewed de novo.
Samana contends that the trial division erred by failing to give the
jury one of his proposed instructions. The Government has provided copies both
of Samana’s proposed instruction and the instruction actually given.[1]
A plain
reading of the instruction given to the jury does not support Samana’s
contention that the jury was “free to find appellant guilty regardless of
whether he knowingly possessed or cultivated marijuana.”[3ASR3d33][Samana Brief at 23].
The instruction required the jury to find not only that Samana knew of
the marijuana’s presence, but also that he knew its nature and had either
direct physical control over it, or had the ability and intent to do so. The instruction given by the court is nearly
identical to the Ninth Circuit model instruction, with the additional
requirement that the defendant must “know the nature” of the contraband. Ninth
Circuit Manual of Model Jury Instructions § 3.16 (1997). Samana’s
assertions on this point are without merit.
D. Should the defendant’s
sentence be reduced by this court?
Samana was sentenced to 20 years of incarceration for Unlawful
Production of a Controlled Substance, and a second 5-year sentence for Unlawful
Possession, to run concurrently. The 20-year sentenced was enhanced by ten
years pursuant to A.S.C.A. § 13.1023, which provides:
(a) Any person convicted of a second or
subsequent offense under this chapter may be imprisoned for a term up to twice
the term otherwise authorized, fined an amount up to twice that otherwise
authorized, or both.
(b) An offense is considered a second or
subsequent offense if, prior to his conviction of the offense, the offender has
at any time been convicted under this subchapter or under any statute of the
United States or of any state relating to narcotic drugs, marijuana,
depressant, stimulant or hallucinogenic drugs.
Samana
argues in a conclusory fashion that (1) A.S.C.A. § 13.1023 is unconstitutional
because it does not require notice and hearing on the issue of recidivism; (2)
the judge was unfairly biased and prejudiced, as evidenced by the punitive
sentence; (3) the sentence is clearly excessive, did not conform to the
sentencing recommendation, and exceeds the boundaries of fundamental fairness;
(4) the prior conviction should not be held against him because it is more than
15 years old.
We address only the first of these arguments, as the last three are
essentially not argued nor supported by citation. The sentence imposed is ten
years less than the maximum permitted by A.S.C.A. § 13.1023.
[10] Federal law requires pre-trial notice to a defendant of the
government’s intent to use a prior drug conviction to seek a sentence
enhancement, see 21 U.S.C. § 851, and courts applying this procedural
requirement have held the government to a strict standard. See, e.g.,
[11] Assuming that Samoan law will follow the general due process
requirement discussed in Qyler, rather than the statutory requirements
of 2l U.S.C. § 851, Samana was entitled to receive notice of the government’s
intent to use his prior conviction for enhancement purposes only at some time
prior to the sentencing hearing. The
record shows that Samana received such notice because he submitted a motion to
exclude proof of the prior conviction.
He was afforded an opportunity to be heard on the recidivism issue.
AFFIRMED.
**********
* Honorable Alfred T. Goodwin, Senior Circuit Judge,
** Honorable Alex R. Munson, Chief Judge, District Court of Northern Mariana Islands, serving by designation of the Secretary of Interior.
[1] Samana requested that the following instruction be
given:
A person may not be convicted of illegal possession or cultivation
unless he knows contraband is present and is capable of exercising dominion and
control over the contraband, mere proximity to the contraband and presence on
the property where it is found is insufficient to establish constructive
possession.
The court instructed the jury
on the issues of possession as follows:
A person has possession of marijuana if the person knows of its
presence and its nature and has physical control of it, or has the power and
intention to control it. More than one person can be in possession of marijuana
if the each knows of its presence and its nature and has the power and
intention to control it. [Govt. Brief at 24.]