IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Transcription

1 Case 1:17-cr JMS-RLP Document 322 Filed 01/16/19 Page 1 of 2 PageID #: 2133 CYNTHIA A. KAGIWADA, HSBA # 7969 ATTORNEY AT LAW P.O. Box 368 Kaneohe, Hawaii Telephone: (808) c_kagiwada@hotmail.com Attorney for Defendant KATHERINE P. KEALOHA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII UNITED STATES OF AMERICA, Plaintiff, vs. KATHERINE P. KEALOHA (1), LOUIS M. KEALOHA (2), DEREK WAYNE HAHN (3), MINH-HUNG NGUYEN (4), GORDON SHIRAISHI (5), and DANIEL SELLERS (6), CR NO JMS DEFENDANT KATHERINE P. KEALOHA S MOTION TO CONTINUE TRIAL; MEMORANDUM OF LAW; DECLARATION OF COUNSEL; CERTIFICATE OF SERVICE Defendants. DEFENDANT KATHERINE P. KEALOHA S MOTION TO CONTINUE TRIAL COMES NOW the defendant, KATHERINE P. KEALOHA, by and through counsel, Cynthia A. Kagiwada, and hereby moves this Honorable Court to continue the trial date, currently set for March 18, 2019.

2 Case 1:17-cr JMS-RLP Document 322 Filed 01/16/19 Page 2 of 2 PageID #: 2134 This motion is based upon the Due Process Clause, the Sixth Amendment, the memorandum of law, the declaration of counsel, the underlying record herein, and such other evidence and argument as the Court may consider at a hearing on the instant motion. DATED: Kaneohe, Hawaii, January 16, Respectfully submitted, /s/ Cynthia A. Kagiwada CYNTHIA A. KAGIWADA Attorney for Defendant KATHERINE P. KEALOHA 2

3 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 1 of 6 PageID #: 2135 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII UNITED STATES OF AMERICA, Plaintiff, CR NO JMS MEMORANDUM OF LAW vs. KATHERINE P. KEALOHA (1), LOUIS M. KEALOHA (2), DEREK WAYNE HAHN (3), MINH-HUNG NGUYEN (4), GORDON SHIRAISHI (5), and DANIEL SELLERS (6), Defendants. MEMORANDUM OF LAW Defendant Katherine P. Kealoha seeks a continuance of trial based on the federal government shutdown, now in its twenty-sixth day and fourth week. See Declaration of Counsel. The Due Process Clause of the Fifth Amendment guarantees a criminal defendant the right to a fair trial. See U.S. CONST., amd. V. The Fifth Amendment Due Process Clause guarantees that a criminal defendant will be treated with the fundamental fairness essential to the very concept of justice. United States v. Juan, 704 F.3d 1137, (9th Cir. 2013) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982)). At its core, the right to

4 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 2 of 6 PageID #: 2136 due process is the right to fairly present a defense. Id. at 1141 (quoting Webb v. Texas, 409 U.S. 95, 98 (1972)(per curiam) (internal quotations omitted)). In addition the Sixth Amendment provides a criminal defendant with the right to the effective assistance of counsel. See U.S. CONST., amd. VI; Strickland v. Washington, 466 U.S. 668, (1984). Defense counsel has an overarching duty to advocate the defendant s cause, to consult with the defendant on important decisions, and to keep the defendant informed of important developments. See id. at 688. In addition, defense counsel owes the defendant a duty of loyalty and a duty to avoid conflicts of interest. See id. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. See id. (citing Powell v. Alabama, 287 U.S. 45, (1932)). Further, under the Criminal Justice Act, counsel for a person who is financially unable to obtain expert services necessary for adequate representation may request them. See United States v. Chase, 499 F.3d 1061, 1065 (9th Cir. 2007) (quoting 18 U.S.C. 3006A (e)(1) (internal markings omitted)). Upon a timely request by an indigent defendant, the statute requires the district judge to authorize [expert] defense circumstances in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them. Id. at 1066 (quoting United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973) (internal markings omitted)). The 2

5 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 3 of 6 PageID #: 2137 purpose of the Criminal Justice Act is to put indigent defendants as nearly as possible in the same position as nonindigent defendants. See United States v. Pete, 819 F.3d 1121, 1130 (9th Cir. 2016) (quoting United States v. Sanders, 459 F2d 1001, 1002 (9th Cir. 1972) (internal markings omitted)). Regrettably, the current shutdown of the federal government is impinging on Ms. Kealoha s constitutional rights to a fair trial and effective assistance of counsel. See U.S. CONST., amd. V and VI. Now in its fourth week, the federal shutdown is impacting Ms. Kealoha s defense team s ability to provide effective assistance and Ms. Kealoha s right to fairly present a defense. See Strickland, 466 U.S. at ; Juan, 704 F.3d at No one on the defense team will be compensated for any work performed to date or in the future until after the shutdown ends. See Declaration of Counsel. In addition, the majority of expenses for travel, trial preparation, and trial will need to be advanced by members of the defense team, without any assurance as to when reimbursement may occur. See id. Further, the inability to pay experts and other witnesses for fees and expenses, is severely hampering the ability of the defense team to provide Ms. Kealoha with an adequate defense. See id. Given the longevity of this federal shutdown and the uncertainty as to when it will end, Ms. Kealoha seeks a continuance of her trial in Pete, 819 F.3d 1121, 1130 order to provide her with a fair trial and an adequate defense. See Strickland, 466 U.S. at ; Pete, 819 F.3d at 1130; Chase, 499 3

6 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 4 of 6 PageID #: 2138 F.3d at As recently as this year, the Ninth Circuit has recognized that a justifiable request for a delay may overcome the need for an expeditious resolution of the case. Failure to grant a motion for a continuance of trial may violate the Sixth Amendment, if there is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay. See United States v. Turner, 897 F.3d 1084, 1102 (9th Cir. 2018) (quoting Houston v. Schomig, 533 F.3d. 1076, 1079 (9th Cir. 2008) (internal quotations and markings omitted)). Where a denial of a continuance implicates a defendant s Sixth Amendment right to counsel, [the court should] consider the following factors: (1) whether the continuance would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimate reasons exist for the delay; (4) whether the delay is the defendant s fault; and (5) whether a denial would prejudice the defendant. See id. (quoting United States v. Thompson, 587 F.3d 1165, 1174 (9th Cir. 2009) (internal quotation omitted)). Here, the majority, if not all five factors weigh in favor of a continuance. See id. While there may be some inconvenience to the witnesses, the court, and the government, this issue will only increase as the trial date approaches. Further, it appears that several if not the majority of witnesses are local witnesses, which 4

7 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 5 of 6 PageID #: 2139 will decrease the inconvenience to the witnesses. Second, while other continuances have been granted, the defense team has been preparing for trial on the bank fraud, identity theft, and other obstruction charges ( The 2018 Case ), following the court s scheduling order on May 24, From late May 2018 until late October 2018, the defense team worked predominantly on the 2018 case, until the court continued trial in that case on October 25, Thus, the defense team only returned to focus on the charges for the instant trial in late October Third, legitimate reasons exist for the delay. See id. The defense team is hampered by the federal shutdown from preparing an adequate defense. The defense is experiencing difficulties in obtaining necessary expert witnesses and bearing the burden of having to advance expenses, as well as experiencing delays in payment for work. The uncertainty as to the longevity of the shutdown further impacts the defense team s ability to provide an effective defense. Fourth, the delay caused by the federal shutdown is not Ms. Kealoha s fault. See id. Finally, the denial of a continuance will prejudice Ms. Kealoha. See id. Under the current circumstances, Ms. Kealoha cannot receive a fair trial nor effective assistance from her defense team. See Strickland, 466 U.S. at ; Pete, 819 F.3d at 1130; Chase, 499 F.3d at // // 5

8 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 6 of 6 PageID #: 2140 // Accordingly, Ms. Kealoha respectfully requests that the court grant the motion to continue trial. DATED: Kaneohe, Hawaii, January 16, Respectfully submitted, /s/ Cynthia A. Kagiwada CYNTHIA A. KAGIWADA Attorney for Defendant KATHERINE P. KEALOHA 6

9 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 1 of 4 PageID #: 2141 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII UNITED STATES OF AMERICA, Plaintiff, CR NO JMS DECLARATION OF COUNSEL vs. KATHERINE P. KEALOHA (1), LOUIS M. KEALOHA (2), DEREK WAYNE HAHN (3), MINH-HUNG NGUYEN (4), GORDON SHIRAISHI (5), and DANIEL SELLERS (6), Defendants. DECLARATION OF COUNSEL I, CYNTHIA KAGIWADA, hereby declare as follows: 1. I am counsel for defendant, KATHERINE P. KEALOHA, having been appointed pursuant to the Criminal Justice Act by the Honorable Richard L. Puglisi, on November 13, The facts and statements set forth in the foregoing document are true and correct to the best of my knowledge, information, and belief. 3. I am representing Ms. Kealoha pursuant to the Criminal Justice Act, 18 U.S.C. 3006A. In addition, all of the defense team, including a paralegal, who is

10 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 2 of 4 PageID #: 2142 based in California, investigators, and a jury consultant are assisting in the defense pursuant to the Criminal Justice Act. 4. On December 22, 2019, the federal government shutdown began and is now the longest federal shutdown on record at twenty-six days and in its fourth week. See The Government Shutdown: Where Things Stand, The New York Times (Jan. 16, 2019). Since the shutdown, I have been actively monitoring the shutdown, which has historically never lasted longer than twenty-one days. In addition, as of today, there is no apparent proposed resolution for the shutdown. See id. 5. Today, I spoke to Kristine Fox, CJA Circuit Case Managing Attorney for the United States Court of Appeals. Ms. Fox confirmed that no one will be compensated under the Criminal Justice Act until the shutdown ends. This lack of funding includes attorney s fees, paralegal hours, investigator hours, and other defense team hours. In addition, she confirmed that although airfare may still be booked through the government s National Travel Center, the majority of other travel-related expenses including accommodations, miscellaneous other travel expenses, and per diem expenses will not be paid until the shutdown ends. She further confirmed that defense counsel or other members of the defense team will have to advance those expenses and seek reimbursement when the shutdown ends. 2

11 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 3 of 4 PageID #: In addition, Ms. Fox confirmed that other trial-related expenses such as copying and preparing exhibits, and witness travel expenses and fees will not be paid until the shutdown ends. Again, defense counsel or other members of the defense team will have to advance those expenses and seek reimbursement when the shutdown ends. 7. I have been attempting to secure expert witnesses and other vendors to assist with trial preparation and trial. At least one vendor has definitely stated that his company cannot provide work, with no assurances as to when payment will be made. Additionally, I am not able as CJA counsel to advance all of the costs necessary for trial preparation and trial under these circumstances. 8. I am a sole practitioner with no additional office personnel such as a secretary, a legal assistant or a paralegal. I am expending an extraordinary amount of time managing the budgeting aspects of this case and seeking to resolve the financial aspects of trial preparation. These additional burdens are impacting the time that I need to spend on the legal and strategic phases of trial preparation. 9. I have been a member of the Criminal Justice Act Panel in this district since While I and my defense team are striving to provide an effective defense for Ms. Kealoha pursuant to the Criminal Justice Act and the Sixth Amendment of the United States Constitution, the shutdown is affecting our abilities and severely hampering our efforts. 3

12 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 4 of 4 PageID #: This motion is not being presented for any improper purpose such as to harass or cause needless delay but is intended to further the fair administration of justice. I hereby declare under penalty of perjury that the foregoing statements are true and correct, to the best of my knowledge, information, and belief. DATED: Kaneohe, Hawai i, January 16, Respectfully submitted, /s/ Cynthia A. Kagiwada CYNTHIA A. KAGIWADA Attorney for Defendant-Appellant KATHERINE P. KEALOHA _ 4

13 Case 1:17-cr JMS-RLP Document Filed 01/16/19 Page 1 of 1 PageID #: 2145 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served electronically through CM/ECF on the following at their last known addresses: Michael G. Wheat michael.wheat@usdoj.gov January 16, 2019 Eric J. Beste Eric.Beste@usdoj.gov January 16, 2019 Janaki S. Gandhi Janaki.Gandhi@usdoj.gov January 16, 2019 Colin M. McDonald Colin.McDonald@usdoj.gov January 16, 2019 Rustam Barbee rustam@honoluluattorney.com January 16, 2019 Birney B. Bervar bbb@bervar-jones.com January 16, 2019 Randall K. Hironaka randy@808-law.com January 16, 2019 Lars R. Isaacson hawaii.defender@earthlink.net January 16, 2019 Richard H.S. Sing ricksing@hawaii.rr.com January 16, 2019 DATED: Kaneohe, Hawai i, January 16, /s/ Cynthia Kagiwada CYNTHIA KAGIWADA