Question of recusal comes up in retirement fund embezzlement case

Pago Pago, AMERICAN SAMOA — A status hearing on the government’s case against former executive director of the Retirement Fund Luatua Filisouauga Taafua was held before Associate Justice Fiti Sunia this week.

The defendant is charged with 28 criminal counts, including 14 counts of stealing and 14 counts of embezzlement, all class C felonies, punishable by imprisonment for up to seven years, a $5,000 fine, or pursuant to A.S.C.A 46.2101, a fine equal to twice the amount of gain from the commission of said crime, up to a maximum of $20,000, or both such fine and imprisonment.

Private attorney Macellus Talaimalo Uiagalelei appeared for the defendant, who is out on a $30,000 surety bond while Assistant Attorney General, Kristine Soule appeared for the government.

When the case was called, Sunia informed both parties that the status hearing is to advise counsels that the court has discovered that there is a recusal in the case file.

He said it was such a long time ago that it is difficult to think back that far but apparently while he (Judge Sunia) was conducting a private practice the defendant approached him regarding this case. Sunia said that he did not participate in this case and to the best of his knowledge, he referred the case to another attorney to represent the defendant.

He told both parties that he is unable to give dates because he doesn’t remember the exact dates but it was some time in 2016 when he took on his role in District Court and that’s why he referred that file to another attorney.

According to the court, the recusal stated that he participated and represented the defendant in that matter and to the best that he recalls, that’s why he referred this defendant to another attorney.

“I wanted to put this on record because the court wants to know what your position is regarding this matter,” Sunia told both parties, adding that, he can recuse himself from handling this case. Furthermore, he stated that he wants to go on record that he disclosed this information regarding his contact with the defendant in this matter.

Sunia told both parties that he is unable to answer any questions regarding his representation during the time when the defendant contacted him to represent him. “I don’t remember and I don’t even know what this case is about really,” Sunia said.

In response to the court’s statement, Uiagalelei said that his client does not object to Sunia sitting on this case. He said that the Chief Justice has already recused himself from this case and the previous case. That means, Acting Associate Justice Elvis P. Patea would be the only judge left to preside over this case.

The prosecutor informed the court that the government has no objection to Judge Sunia hearing the case. Uiagalelei echoed Soule’s statement and told the court that defense also has no objection regarding this matter.

The court noted the statements from both parties. Then the court informed the attorneys that the defense’s motion to dismiss is still pending.

Chief Associate Judge, Mamea Sala Jr and Associate Judge Tunupopo Alalafaga Tunupopo assisted Sunia on the bench.

BACKGROUND

The charges against the defendant came about after he was accused of misappropriating funds from the ASGERF. The government stated that it was July 20, 2015, Governor Lolo Matalasi Moliga directed then Police Commissioner Save Liuato A. Tuitele to initiate an investigation into allegations of fraud, stealing and misappropriation of ASGERF assets.

The investigation came about after an employee of ASGERF (who's name is mentioned in the court affidavit) notified the former and now deceased board chairman of ASGERF, Fanene Scanlan, of questionable vendor payments, which were signed by the defendant.

Aside from the DPS investigation, a forensic auditor from Utah carried out a separate probe and an audit report found evidence that Luatua allegedly misappropriated about $112,000 of the Fund's money for his personal use. Luatua was placed on leave with pay for several months after the case surfaced at the beginning of 2015 and was he was later terminated in Jan. 2016.

The late Fanene Morris Scanlan, who was the Fund's board chairman when Luatua was executive director, initiated the probe to look at claims that Luatua approved travel and per diem payments for himself and other members of the staff, and issued checks to a janitorial company with which he was affiliated.

In February 2019, the case against Luatua was dismissed by the Court without prejudice after the court granted a motion filed by the government’s attorney to dismiss the case, without prejudice, almost 3 years after it was filed. No further explanation was offered. The defense attorneys did not voice any opposition.

Almost two years after the government case against Luafua was dismissed, the government re-filed it in District Court on Aug. 7, 2020, which was 17 months after the court granted the government’s motion to dismiss the case without prejudice.

In March of this year, 2021, Uiagalelei again filed a motion to the court to dismiss the case against his client. The court took the motion under advisement and the motion is still pending.

The defense attorney asked the court to take a close look at the case and how it has affected his client’s whole life. He cited cases to support his motion and then asked the court to dismiss the government’s case against his client.

Prosecutor Soule strongly opposed the motion. She told the court the defense is not asking the court to delay the trial date nor to continue the case to a later date, but asking for a dismissal.

Sunia wanted to know if the government’s witnesses are on island ready for the trial. Soule replied, yes. She told the court that the reason the government moved previously to dismiss the case against the defendant, was because the government’s primary witness was off island at the time. That witness is now on island and she’s prepared for the trial.