Attorney Alexander Silvert, author of “The Mailbox Conspiracy,” joins producer/host Coralie Chun Matayoshi to discuss why former prosecutor Keith Kaneshiro, businessman Dennis Mitsunaga, three Mitsunaga employees (Terri Ann Otani, Aaron Fujii, Chad McDonald) and Mitsunaga’s attorney Sheri Tanaka were all found not guilty.
Q. Two years ago, Keith Kaneshiro, Dennis Mitsunaga, three Mitsunaga employees and their attorney were indicted on a bribery conspiracy to prosecute a former Mitsunaga employee in exchange for campaign contributions. Ater less than 2 days of deliberations, the jury came back with a not guilty verdict on all counts. Some people were surprised by the verdict. What do you make of this?
First, although we may disagree with the jury's verdict, we must respect it. While some could use this case as an example of why the justice system is flawed, attacking the criminal justice system or the jury verdict as being flawed or corrupt does nothing but needlessly erode confidence in our courts. Second, to understand the outcome in this case we need to understand the jury instructions given to the jury which assist them in reaching a verdict. Just recently, MSNBC spent an entire day broadcasting the jury instruction hearing in the Trump case. I've never seen that done before, ever, but it demonstrates just how important jury instructions are in a criminal trial even though many pay no attention to them other than the lawyers.
In any criminal court case, jury instructions are critical in that they tell the jury what the legal elements of a crime are that need to be proven by the prosecution beyond a reasonable doubt. They also give the jury definitions of legal concepts like “knowledge” “intent,” or “willfulness,” and other key concepts and words used throughout the instructions. These are all critical in how the jury is to understand and interpret the evidence that was produced during the trial. Jury instructions are often contested by the parties, with individual words being fought over as how each concept or word is used and defined in a jury instruction could sway the jury’s ultimate verdict. While many jury instructions are standardized, many are not and it’s up to the judge to decide which instructions will be given and the exact wording of those instructions.
Q. Let’s talk about the charges and jury instructions in this case.
- Count 1 - Conspiracy to commit offenses against the United States:
(1) Honest Services Wire Fraud – devised and intended to devise a material scheme to defraud the City & County of Honolulu and its citizens of the right to the honest services of Kaneshiro through a quid pro quo bribery to transmit in interstate commerce by means of wire communications for the purpose of executing and in furtherance of such scheme in violation of 18 U.S.C. §1343 and §1346;
(2) Federal Program Bribery (giving a bribe) – corruptly gave, offered, and agreed to give things of value to any person, with intent to influence and reward Kaneshiro, and agent and employee of the City & County of Honolulu (C&CH) in connection with any business or transaction of C&CH during the years that C&CH received benefits in excess of $10,000 under a Federal program in violation of § 666(a)(2); and
(3) Federal Program Bribery (receiving a bribe) – corruptly solicited, demanded, accepted and agreed to accept things of value of from any person intending to be influenced or rewarded in connection with any business or transaction of C&CH during the years that C&CH received benefits in excess of $10,000 under a Federal program in violation of § 666(a)(1)(B).
- Count 2 – Conspiracy against Rights
Conspired to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States. The rights implicated in Count 2 are the right under the Fourth and Fourteenth Amendment to be free from unreasonable seizures by one acting under color of law; and the right to file a lawsuit in federal court alleging claims under Title VII and the Age Discrimination in Employment Act (ADEA).
Although there were two conspiracy counts charged in the indictment, under each count there were separate crimes listed, any one of which could be found to have been the object of the conspiracy. So even though there were two overall counts, there were five separate crimes the jury had to consider in determining whether the defendants were guilty. Under conspiracy law, the jury had to find that two or more defendants committed one of the crimes listed under each count. For example, for Count One which charged, in general, the bribery conspiracy, there were three distinct crimes listed which the government alleged the conspiracy violated. Dishonest Services, Attempt to Bribe a Public Official, and Receiving a Bribe by a Public Official. For each crime listed under Count One, the jury instructions spelled out the elements of each crime along with the instructions that defined the meaning of the terms used for each crime alleged. As a result, the jury instructions were very long, complicated and possibly hard to follow.
The most important jury instruction given relating to the crimes alleged in Count One was that the government had to prove, beyond a reasonable doubt, that there was "clear and unambiguous" evidence of a quid pro quo to bribe Kaneshiro: “A clear and unambiguous quid pro quo means there is no uncertainty about the terms of the agreement. When a contributor and a public official understand the terms of an agreement to exchange official action for money, they have engaged in a clear and unambiguous quid pro quo. This understanding need not be verbally explicit. You may consider both direct and circumstantial evidence, including the context in which a conversation took place, to determine if there was a meeting of the minds on a quid pro quo.”
Another jury instruction defined campaign contributions as bribes: “The solicitation or acceptance by a public official of a campaign contribution, or the giving or offering of a campaign contribution to a public official by a donor does not, in itself, constitute a federal crime even though the donor has business pending before the official, and even if the contribution is made shortly before or after the official acts favorable to the donor. However, if a public official demands or accepts money in exchange for a specific requested exercise of official power, such a demand or acceptance, or the giving or offering of a campaign contribution to a public official by a donor, does constitute a federal crime regardless of whether the payment is made in the form of a campaign contribution. The intent to exchange may be established by circumstantial evidence, based on the defendant’s words, conduct, acts, and all the surrounding circumstances disclosed by the evidence and the rational or logical inferences that may be drawn from them. The agreement must be clear and unambiguous but there is no requirement that it be verbally explicit.”
Q. When people commit crimes, it’s usually done in secret. Like when you murder someone, there are usually no witnesses. And when you conspire, you don’t tend to leave a paper trail. So, prosecutors must often rely on circumstantial evidence to prove their case. What is circumstantial evidence and what kind of circumstantial evidence was there in this case?
Circumstantial evidence relies on an inference to connect it to a conclusion of fact—such as a fingerprint at the scene of a crime. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need for any additional evidence or inference. If a witness testifies that he saw a defendant fire a bullet into the body of a person who then died, this is direct testimony of material facts in murder, and the only question is whether the witness is telling the truth. Many cases are proven by circumstantial evidence.
In this case, two senior Deputy Prosecuting Attorneys (DPA) refused to prosecute the case due to lack of probable cause, yet Kaneshiro continued to insist on prosecuting Laurel Mau, a former employee of Mitsunaga’s company. Ultimately, a third DPA, Jacob Delaplane, charged Mau with four felony counts of theft and testified that he believed there was probable cause. He testified that his belief was based solely upon information provided by Mitsunaga’s attorney, Sheri Tanaka, and there was no independent investigation of the allegation either by HPD or his office. Mau was charged via a complaint and affidavit which does not require putting evidence before an independent grand jury. Delaplane could not remember which of his supervisors told him not to pursue a grand jury but acknowledged that it could have been Kaneshiro. And Investigator Vernon Branco, who signed the affidavit, testified that he was not personally aware of any of the facts in the affidavit; he simply signed it as being true and correct because Delaplane told him to sign it. And while a judge did initially sign off on the felony information, the charges were later dismissed by another judge with prejudice, calling it “highly unusual,” “irregular” and a “threat to the judicial process,” which could imply that the case shouldn’t have been prosecuted in the first place.
Q. According to the jury foreperson, there wasn’t enough evidence circumstantial or otherwise to convict. What does it take to get a conviction in public corruption cases?
Federal prosecutors were able to convict former Senator Kalani English and former House Representative Ty Cullen of taking bribes because they secured the cooperation of the person who actually offered the bribes, Milton Choy. Mr. Choy knew he was facing jail time and wore a wire to help collect evidence against English and Cullen. Former Representative Cullen, in turn, agreed to cooperate to lighten his own sentence which is substantially less than former Senator English’s sentence. Prior to Cullen’s sentence, Prosecutors filed a “motion for downward departure” to explain their support for leniency because Cullen provided substantial information concerning other possible acts of public corruption by public officials in Hawaii and has agreed to continue his cooperation as our investigation continues. Apparently, Cullen’s cooperation has resulted in a chargeable offense, and assisted in creating helpful leverage against other subjects as our covert investigation continues. Here, none of the defendants pleaded guilty and agreed to cooperate. So, the government was left to rely solely on circumstantial evidence provided by other people who witnessed or heard things relating to the alleged conspiracy.
Q. What other tactics did the defense use to win a not guilty verdict for their clients?
The defense played the “local card” very effectively, pointing out where some of the defendants went to high school and how they'd built a name for themselves from these humble beginnings. Several of the jurors went to those same high schools. The defense clearly understood how important high school relations are to us here in Hawaii and used that knowledge to their benefit. The defense argued that the jury shouldn't let "outsider's corrupt Hawaii's aloha spirit and take away our culture" by misinterpreting “simple omiyage” as public corruption. Some jurors may have seen their verdict as a defense against outsiders misunderstanding how we do things here in Hawaii.
Q. Might other charges be filed against some of the defendants like Sheri Tanaka and Dennis Mitsunaga for alleged illegal acts committed during the trial?
Mitsunaga & Associates attorney Sheri Tanaka was being investigated for hiring a hitman to “knock off” Judge Michael Seabright (who recused himself from the trial) and Dennis Mitsunaga was jailed for part of the trial after allegations of witness tampering.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.