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AMERICAN SAMOA GOVERNMENT,v.ZHI GUO WANG

AMERICAN SAMOA GOVERNMENT, Plaintiff
v.
ZHI GUO WANG, Defendant

High Court of American Samoa
Trial Division
CR No. 21-02
June 20, 2002

 

[1] Under the Rules of Criminal Procedure, an information is required to
set forth a plain, concise, and definite written statement of the essential
facts constituting the offense charged.
[2] An information is to be measured by two criteria: 1) whether the facts
stated show the essential elements of the offense charged so as to enable
a defendant to prepare his or her defense; and 2) whether the facts
alleged are sufficient to ensure against double jeopardy in a second
prosecution.
[3] A continuing offense may be charged without specifying individual
acts as a basis for criminal conduct.
[4] The offenses of Promoting Prostitution and Abuse of Child, when
defendant alleged to have encouraged prostitution, are continuing course
of conduct offenses that can be charged without specifying individual
acts.
[5] Where defendant alleged to committed offenses of Promoting
Prostitution and Abuse of Child by encouraging child to engage in
prostitution, jury did not need to agree that victims had committed a
particular act of prostitution in order to convict.
[6] An information using only statutory language is permissible as long
as the statute sets forth fully, directly, and expressly, without any
uncertainty or ambiguity, all the elements necessary to constitute the
offense intended to be punished.
[7] A criminal defendant is expected to look at all of the sources
provided by the government and not simply at the information formally
charging him with the crime.
[8] An individual can be guilty of the offense of “abuse of a child” if he
or she commits one of three categories of offenses, stated in 42 A.S.C.A.
§ 45.2001(a)(1)(B), with regards to a child—sex crimes, prostitution, or
pornography.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
MAMEA, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General
For Defendant, William H. Reardon
220
ORDER DENYING MOTION TO DISMISS
The defendant Wang Zhi Guo Wang (“Wang”) is charged with one count
of Promoting Prostitution in the Second Degree, and two counts of
Abuse of a Child. Defendant moves to dismiss the information on the
ground of vagueness.
[1] Recycling word for word, except for minor factual adjustments, a
Memorandum of Points and Authorities previously filed on June 22,
2000, by the Public Defender’s office in American Samoa Government v.
Faumuina, 4 A.S.R.3d 196 (Trial Div. 2000), Wang argues that the
information fails to conform with the specificity requirements of
T.C.R.Cr.P. Rule 7(c)(1), which requires that “the information shall be a
plain, concise and definite written statement of the essential facts
constituting the offense charged.” He thus challenges the sufficiency of
the information contending a violation of his right to be informed of the
“nature and cause of the accusation” against him under the Sixth
Amendment of the United States Constitution, and under Article I,
Section 6 of the Revised Constitution of American Samoa.
Discussion
I.
[2] The Supreme Court in Russell v. United States, 369 U.S. 749, 763
(1962), set out two criteria by which the sufficiency of the information is
to be measured: 1) whether the facts stated show the essential elements
of the offense charged to enable him to prepare his defense; and 2)
whether the facts alleged are sufficient to ensure against double jeopardy
in a second prosecution.
The information filed in Faumuina charged three separate criminal
offenses, sexual abuse in the first degree, assault in the second degree,
and assault in the third degree. 4 A.S.R.3d at 196. The Court found the
information wanting in “essential facts” sufficient to notify defendant of
the charges filed against him as required by T.C.R.Cr.P. Rule 7. See 4
A.S.R.3d at 197-98. The information there filed not only failed to name
the victims in all three counts, but it also failed to appraise the defendant
of the particular acts for which he was charged. Id. at 197. Instead, the
information simply tracked the generic language employed by the statute
to describe each offense, while at the same time, the two more serious
counts merely alluded to a range of dates, encompassing the span of a
month, within which the offending conduct was said to have been

committed. Id. Under these circumstances, the Court was concerned
with the defendant’s potential exposure to multiple prosecution
possibilities for the same crime on different theories. Id. The Faumuina
Court, did not, however, order dismissal but required the prosecution to
file a bill of particulars. Id. at 198.
[3-5] In contrast, the double jeopardy concerns of Faumuina are not
evident here. The subject offenses before the Faumuina Court were all
single act specific crimes, whereas the crimes charged in the matter at
bar may be based on a continuing course of conduct, and not merely on
any one event. “A continuing offense may be charged without
specifying individual acts as a basis for criminal conduct.” State v.
Elliot, 785 P.2d 440, 444 (Wash. 1990). In Count 1, the offense,
promoting or advancing prostitution, addresses a person, acting other
than as a prostitute, doing something that promotes or aids others to
engage in prostitution. In other words, it is the result of a continuing
course of conduct advancing prostitution and not any particular instance
of prostitution itself that is key. Similarly, in Counts 2 and 3, the charges
of Abuse of Child relate to a continuing course of conduct--permitting or
encouraging a child to engage in prostitution, and not any particular
occasion of prostitution. The subject enactments speak to a continuing
offense that can be charged without specifying individual acts. In both
situations, promoting
prostitution and abuse of child, the jury does not need to agree that the
victims had committed a particular act of prostitution in order to convict.
[6] An information using only statutory language is quite permissible as
long as the statute sets forth “fully, directly and expressly, without any
uncertainty or ambiguity, all the elements necessary to constitute the
offence intended to be punished.” Hamling v. United States, 418 U.S.
87, 117-18 (1974). There is a key difference between a defendant’s
constitutional right to know what offenses he is charged with and his
desire to know the evidentiary details of the prosecution’s case. United
States v. Williams, 679 F.2d 504, 509 (9th Cir. 1982).
[7] In our view, the information sufficiently states the elements of the
offenses, fairly informing the defendant of the charges against him so as
to enable him to plead former jeopardy in a subsequent prosecution.
Moreover, the Affidavit in Support of the Criminal Complaint, filed
March 3, 2002, more than adequately appraises Wang of some of the
underlying facts predicating the charges against him so as to adequately
facilitate the preparation of his defense and avoid prejudicial surprise at
trial. Wang is expected to look at all of the sources provided by the
government and not simply at the information formally charging him

with the crime. Am. Samoa Gov’t v. Wilson, 24 A.S.R.2d 26, 29 (Trial
Div. 1993) (citing C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE §
129, at 437 (1982)).
II.
Wang next claims that even if sufficient facts are alleged for Counts 2 &
3, no violation of the Child Abuse Law is alleged. Wang submits that
under A.S.C.A. § 45.2001(a)(1)(B), when prostitution is the conduct at
issue, the victim must be “subject to the sexual offenses contained in
46.3601 to 46.3617 and 46.3802” in order for Child Abuse to have
occurred. Wang then contends that since the offenses delineated in the
above statute, A.S.C.A. 46.3601 to 46.3617 and 46.3802, all require the
victim to be younger than 17 years of age, the victims in this case being
17 years of age, the sex was consensual and not within the statute.
This is a misreading of the statute by the defendant. A.S.C.A. §
45.2001(a)(1)(B) reads as follows:
(a)(1) “Abuse” or “child abuse or neglect” means an act or
omission in one of the following categories which seriously
threatens the health or welfare of a child:
. . .
(B) when a child is subject to the sexual offenses
contained in 46.3601 to 46.3617 and 46.3802, or is
allowed, permitted, or encouraged by the child’s parents,
legal guardian, custodian, or any other person responsible
for the child’s health and welfare, to engage in
prostitution or be the subject of obscene or pornographic
photographing, filming, or depicting;
. . .
[8] The statutory language of A.S.C.A. § 45.2001(a)(1)(B), is presented
in the disjunctive, dividing the provision into three sections; sex crimes,
prostitution and pornography. As the charges in this matter relate to
prostitution, and not sex crimes, the age provisions of A.S.C.A. 46.3601
to 46.3617 and 46.3802 are irrelevant. What is required is that the
victims be “a person under 18 years of age” and therefore come within
the definition of a “child” under the statute. A.S.C.A. § 45.0103(3). The
facts as alleged in the information put the victims within the definition of
a child, and therefore within A.S.C.A. § 46.3811.
For reasons given, the motion to dismiss is denied.
It is so ordered.