v.
AFUOLA KALASA, MELOMA AFUOLA,
and TOFAU P. GAOTEOTE, Defendants.
High Court of
Trial Division
CR No. 66-99
CR No. 67-99
CR No. 85-99
March 28, 2000
[1] T.C.R.Cr.P. 7(e) grants the
Court discretion to permit the prosecution to amend an
information if no additional or different offense is charged.
[2] A.S.C.A. § 46.3410 prevents the government from
prosecuting criminal defendants for both conspiracy and the underlying offense
if they arise out of the “same course of conduct.”
[3] Government’s attempt to charge both forgery and
conspiracy for a single forgery constituted multiplicitous
charging and was not allowed.
[4] The proper remedy for a multiplicitous information is an election or consolidation
of the offending counts, and dismissal of the surplus counts.
[5] Where the Government improperly charges multiplicitous counts in its information, the entire
indictment need not be dismissed, but leave should be granted to amend the
information.
Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and
SAGAPOLUTELE, Associate Judge
Counsel: For Plaintiff, Frederick
O’Brien, Assistant Attorney General
For Defendant Afuola Kalasa, Arthur Ripley,
Jr.,
For Defendant
For Defendant Tofau
P. Gaoteote, Aitofele T. Sunia
ORDER GRANTING PLAINTIFF’S MOTION
TO AMEND INFORMATION [4ASR3d111]
Facts and Procedural History
Plaintiff American Samoa Government (“ASG”) charged each
defendant with 7 counts of conspiracy and 7 counts of forgery jointly in an information filed November 9, 1999, on grounds that they
provided forged voter identification cards to 7 Vatia
cricket team members. Meloma Afuola (“Meloma”) is alleged to have transferred the cards from the
Voting Office to the players.
Co-defendants Afuola Kalasa
(“Afuola”), Meloma’s
husband, and Tofau P. Gaoteote
stand accused of having made the allegedly forged cards.
Afuola submitted a motion to dismiss on January 10, 2000, that
asserted, inter alia, that the charges should
be dismissed because they were vague and ambiguous. ASG requested leave to file an amended information on January 25, 2000, in order to
clarify the charges and correct two defects.
The first was a simple oversight in that Count 2 failed to name a specific
defendant. The second defect was that
ASG had charged all three defendants with both conspiracy and the underlying
offense of forgery with regards to each of the seven cards, an exercise clearly
forbidden by A.S.C.A. § 46.3410. ASG
claims to have cured this defect by amending the information to charge the
forgery counts based on the making of the cards and charge the conspiracy
counts based on the transfer of the cards.
ASG, however, neglected to move for a hearing on its motion to amend and
as a result was required to resubmit its motion to amend the information.
ASG moved to amend the information again on March 6,
2000. This amendment was identical to
that tendered earlier, except for the removal of Counts 6 and 13. This leaves, at present, an
information charging each defendant with six, rather than seven, counts
of both forgery and conspiracy. Counsel for Afuola
reiterated his objection to the information at a hearing held on March 14,
2000, arguing that the amended information continued to violate A.S.C.A. §
46.3410.
Discussion
A. Amendment under TCRCrP
7(e)
[1] T.C.R.Cr.P. 7(e)
grants the Court discretion to permit the prosecution to amend an information if no additional or different offense is
charged. The Court agrees with the
prosecution that it has not charged any additional or different offenses. The forgery and conspiracy counts in the
original and proposed amended informations are
identical, aside from the facts used to support them. The original forgery counts were based on the
use, possession, or transfer of the cards, whereas the new counts instead
allege that defendants made the cards. [4ASR3d112]
ASG has, however, made yet another error in that the
amended forgery counts are erroneous in citing A.S.C.A. § 46.4115(a)(3) as the basis for these counts. This subsection makes it a crime to use or
transfer forged documents, whereas the allegations supporting these counts in
the amended information state that the defendants made the documents. The making of forged documents is properly
prosecuted under A.S.C.A. § 46.4115(a)(1) or (2). ASG should have substituted subsections 1 or
2 for subsection 3 in counts 7 through 12 of the amended information.
Discussion of the amended information before us is,
however, moot because it violates both A.S.C.A. § 46.3410 and the prohibition
on multiplicitous charging.
B. Conspiracy and
Multiplicitous Charging
[2] A.S.C.A. § 46.3410 prevents the government from
prosecuting criminal defendants for both conspiracy and the underlying offense
if they arise out of the “same course of conduct.” It appears obvious that the applicable course
of conduct in this case is the forgery of the cards, and thus A.S.C.A. §
46.3410 requires that ASG make a choice between the
conspiracy and forgery counts.
[3] Even in the absence of A.S.C.A. § 46.3410, ASG’s attempt to charge both forgery and conspiracy for a
single forgery constitutes multiplicitous
charging. ASG’s
attempt to charge conspiracy under ASCA § 46.4115(a)(3)
for using or transferring a card and forgery under ASCA § 46.4115(a)(1) for
making the same card creates, in effect, two counts out of one offense. The Ninth Circuit has held that each separate
act (in that case each filing of papers) in furtherance of a bank fraud scheme
may not be separately charged.
[4-5] In sum, ASG’s amended information is rejected because it improperly
charges both conspiracy and forgery for the same conduct. The proper remedy for a multiplicitous
indictment is an election or consolidation of the offending counts, and
dismissal of the surplus counts. See generally United States v. Universal Corp, 344
U.S. 218 (1952). The entire
indictment need not be dismissed. See
id. ASG is accordingly granted leave
to amend the information to cure the A.S.C.A. § 46.3410 and multiplicitous
charging defects.[4ASR3d113]
Conclusion and Order
For the foregoing reasons, Plaintiff ASG’s
motion to amend the information is granted, but not with the amended
information it has submitted. ASG is
directed to submit a new amended information that complies with this order to
the Court within 10 days of entry hereof.
It is so ordered.
**********