Probable cause found in case against former TCF guard facing drug charges
Pago Pago, AMERICAN SAMOA — The government's case against former TCF corrections officer Faavae Papatu has been bound over to High Court and his arraignment is set for Monday, Jan. 28 where he is expected to enter a 'not guilty' plea to the charges against him.
A preliminary examination hearing for Papatu was held in District Court yesterday morning, where Judge Fiti Sunia dismissed, without prejudice, the two counts of illegal drug distribution.
Papatu was initially slapped with four felony charges: unlawful possession of methamphetamine, unlawful distribution of methamphetamine, unlawful possession of marijuana, and unlawful distribution of marijuana.
During court proceedings yesterday, prosecutor Assistant Attorney General Laura Garvey called to the stand one witness: DPS Vice and Narcotics Det. Faamanuiaga Areta.
According to Areta's testimony, it was Oct. 17, 2018 that they received a call from the Territorial Correctional Facility (TCF) regarding an inmate (Vincent Toeava) smuggling narcotics to a female inmate (Meriko Lomu) via a jar of hair gel.
Areta said the contraband found in the jar of hair gel included 2 cut-up straws. A subsequent search of Toeava's cell netted a wallet that contained 7 cut-up straws and a baggie of which the contents later tested positive for methamphetamine.
According to Areta, Toeava refused an interview with police but they were able to interview one of Toeava's cellmates who agreed to make a statement.
Areta told the court that based on information from the witness, three TCF guards and inmate Vincent's brother Spencer were involved in the exchange of drugs and money, and Vincent was able to maintain contact with the 3 guards via a cell phone.
The witness told Areta that Vincent would give the three officers an envelope to deliver to his supplier, and they would return with a "reload" of drugs to give to Vincent.
The witness, based on Areta's testimony, informed investigators that the envelopes were brought into the TCF — concealed in groceries that were delivered to Vincent's cell.
Areta told the court that when Papatu was interviewed, he told police that he was conducting an investigation, as he had heard from other inmates that Vincent was supplying drugs in the TCF and he even received 2 marijuana joints from him.
Areta said when asked if anyone was aware of his investigation, Papatu said no.
Papatu was drug tested and later released, according to Areta, who noted that Papatu was not in custody — he had driven to the Tafuna Substation and left in his own private vehicle — and therefore, had the chance to refuse an interview and leave whenever he wanted.
According to Areta, the witness told investigators that ice and weed were involved in the alleged drug operation and the last time Vincent gave Papatu marijuana was in Sept. 2018.
Defense attorney, private counsel Togiola Tulafono asked Areta if he ever witnessed his client delivering any groceries for Vincent. Areta said no, but added that according to the witness, Papatu received a joint from Vincent "as payment" after a "transfer" is made inside his cell; and every time a "reload" was requested by Vincent, the drugs would be brought in with the shopping.
When Togiola inquired about the TCF policy on shopping, Areta said he could not answer.
Prosecutor, Assistant Attorney General Laura Garvey said that based on what the witness told police, Papatu had in his possession, methamphetamine, that was given to Vincent in Sept. 2018 and Vincent would pay Papatu with a marijuana joint.
Based on that, she said, there is probable cause to bind the case over to High Court.
But Togiola argued that Areta was not the officer who interviewed Papatu and the allegations of possession and the elements of distribution are baseless.
"Not there," said Togiola, adding that everything that is brought into the TCF for inmates are considered the inmates' "property". He then moved to dismiss the case against his client.
Garvey however insisted that distribution means a person has to "possess" something in order to "distribute" it. She said there is no need to prove that the illegal drugs are "property". She said ice and weed in bags that are taken to the TCF and delivered is "distribution".
A lengthy recess was taken.
When Sunia returned to the bench, he explained that the government merely has to prove probable cause. He pointed out that under the law, "distribute" means "to deliver".
He said passing envelopes back and forth might seem like enough, EXCEPT, there are two other officers allegedly involved and charged in this same case.
He said there needs to be a "mental state", as there is no probable cause that Papatu delivered the illegal drugs.
"Knowingly", "Purposely", and "Recklessly", said Sunia, are the mental states that are lacking in the government's claims.
He said there is no evidence in the witness' testimony that proves that it was "known" to the defendant, what was being delivered.
Furthermore, the court is unable to determine that the drugs found in Vincent's cell can be attributed to the defendant's conduct. According to Sunia, it is "perceivable" and "quite possible" that it could be attributed to the other two officers.
Papatu is out on $5,000 bond.
The criminal complaint alleges that Papatu and his co-defendants, former DPS officers Jimmy Stanley and Leasi Neulei, and brothers Vincent and Spencer Toeava, were involved in the delivery of ice and marijuana to the TCF.
Papatu allegedly informed investigators that when he was first assigned to the TCF, he heard certain inmates talking about Vincent Toeava supplying drugs to other inmates. He said he took it upon himself to investigate and "he was able to get 2 marijuana cigarettes from Toeava (Vincent), which he later threw away."
When asked if any of his superiors or co-workers were aware of his investigation, he said no.