Motion to Disqualify

JEFFERSON B. SESSIONS III
United States Attorney General
ALANA W. ROBINSON
Acting United States Attorney
MICHAEL G. WHEAT, CBN 118598
ERIC J. BESTE, CBN 226089
JANAKI S. GANDHI, CBN 272246
COLIN M. MCDONALD, CBN 286561
Special Attorneys to the Attorney General
United States Attorney’s Office
880 Front Street, Room 6293
San Diego, CA 92101
Tel: 619-546-8437/6695/8817/9144
Email: michael.wheat@usdoj.gov
Attorneys for the United States
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
v.
KATHERINE P. KEALOHA (1),
aka Katherine E. Kealoha,
aka Kathy Kealoha,
aka Kat,
aka Alison Lee Wong,
LOUIS M. KEALOHA (2),
DEREK WAYNE HAHN (3),
MINH-HUNG NGUYEN (4),
aka Bobby Nguyen,
GORDON SHIRAISHI (5), and
DANIEL SELLERS (6),
Defendants.
Case No. CR 17-00582 JMS-RLP
UNITED STATES’ MOTION TO
DISQUALIFY DEFENSE ATTORNEYS
MYLES S. BREINER AND
KEVIN P.H. SUMIDA
Case 1:17-cr-00582-JMS-RLP Document 74 Filed 11/03/17 Page 1 of 27 PageID #: 294

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I
INTRODUCTION
Attorneys Myles S. Breiner and Kevin P.H. Sumida (collectively “Defense
Counsel”) each have a serious potential conflict of interest due to their simultaneous
representation of co-defendants KATHERINE P. KEALOHA (“K. KEALOHA”)
and LOUIS M. KEALOHA (“L. KEALOHA”). Although they now seek to
represent only K. KEALOHA, their continuing obligations of loyalty and
confidentiality towards both clients conflicts with their duty to provide K.
KEALOHA with a vigorous defense.
Separately, Mr. Breiner also labors under an actual conflict of interest that
precludes him from representing either defendant. Until he was disqualified – or, in
one case, withdrew his representation – earlier this year, Mr. Breiner simultaneously
represented L. KEALOHA in the federal investigation of this matter and multiple
plaintiffs suing L. KEALOHA for civil rights violations. As District Judge Watson
found when ordering Mr. Breiner off one such case, “Mr. Breiner’s divided loyalties
present irreconcilable conflicts, and threaten a quagmire of additional conflicts, that
prevent him from reasonably believing he could provide competent and diligent
representation to each client . . . .” Mr. Breiner’s representation of K. KEALOHA
poses similar concerns: he has previously, and recently, represented a plaintiff suing
K. KEALOHA as well. Furthermore, striking at the heart of this Court’s
“independent interest in ensuring that criminal trials are conducted within the ethical

2
standards of the profession and that legal proceedings appear fair to all who observe
them,” Wheat v. United States, 486 U.S. 153, 160 (1988), Mr. Breiner
simultaneously represented a criminal defendant being prosecuted by K. KEALOHA
while representing her in this federal investigation. Mr. Breiner’s dueling and
simultaneous representations—and the resulting divided loyalties and ethical
responsibilities due his former and current clients—raise a host of ethical and
constitutional concerns about his ability to operate free from impermissible conflict,
and preclude him from representing either L. KEALOHA or K. KEALOHA.
Finally, Mr. Sumida faces an additional, serious potential conflict of interest
because he is a witness to events that will likely be relevant at trial. As someone
who previously discovered facts indicating that “Alison Lee Wong” was not a real
person, and as the owner of a law office where K. KEALOHA allegedly engaged in
obstructive conduct, Mr. Sumida likely possesses probative evidence for one side or
the other. Because Mr. Sumida cannot ethically serve as both an advocate and a
witness at trial, prudence counsels in favor of avoiding such a pitfall at this time by
disqualifying him as counsel.
Recognizing the sensitivity of the issues involved and the importance of
ensuring their clients’ Sixth Amendment rights, the United States raised its concerns
with Defense Counsel in writing on October 25, 2017. In addition to requesting any
facts or legal authority that might bear upon the question, the United States asked
Defense Counsel to evaluate whether they could ethically continue with the

3
representation. The next day, Defense Counsel responded that there was “no legal
basis” for the United States’ concerns, and requested that a motion to disqualify them
be filed promptly. This motion follows.
II
STATEMENT OF FACTS
A. Background
The Indictment in this case alleges an expansive conspiracy that involved
L. KEALOHA, former Chief of Police for the Honolulu Police Department
(“HPD”), his wife K. KEALOHA (a senior prosecutor with the Department of the
Prosecuting Attorney for the City and County of Honolulu (“DPA”)), and several
current and former police officers assigned to HPD’s elite Criminal Intelligence
Unit. See generally Indictment ¶¶ 1-8. According to the Indictment, for many years
the KEALOHAs have lived well beyond their civil-servant means by defrauding
individuals and financial institutions out of more than $1 million through fabricating
documents, misrepresenting facts in loan documents, forging signatures, using
aliases such as “Alison Lee Wong,” stealing a police officer’s identity, and other
deceptive means. Id. ¶¶ 12-25. Some of the alleged victims are K. KEALOHA’s
elderly grandmother (F.P.), her uncle (G.K.P.), and two minor children under K.
KEALOHA’s guardianship. Id. When G.K.P. and F.P. raised questions about funds
they had given K. KEALOHA, she and the other conspirators undertook a series of
unlawful steps to undermine the credibility of the victims, and obstruct any

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investigation into the conspirators’ activities. Id. ¶¶ 27-42. In furtherance of the
conspiracy, the defendants accused G.K.P. of stealing the KEALOHAs’ mailbox,
fabricated evidence in support of the false accusation, and provided false information
to federal investigators in order to support a criminal prosecution of G.K.P. Id.
¶¶ 36, 39, 42. The Indictment also alleges that the conspirators took steps to obstruct
the subsequent federal grand jury investigation into the failed prosecution of G.K.P.
Among the methods used to obstruct federal proceedings and investigations included
concealing and destroying video evidence, id. ¶¶ 36(n)-(o) and (cc), creating false
documents, id. ¶ 36(y), harmonizing false testimony about G.K.P.’s involvement in
the alleged mailbox theft, id. ¶¶ 36(ee), (hh) and (kk), and providing false and
misleading statements and testimony about the mailbox theft and G.K.P., id.
¶¶ 36(j)-(m), (s), (aa), (dd)-(ff), (nn)-(pp), 39, 42.
B. Messrs. Breiner and Sumida’s Representation of the Kealohas
On May 4, 2016, Mr. Breiner sent a letter to the Special Attorneys for the
United States stating, in pertinent part, “Please be advised that my office represents
Honolulu Police Department Chief Louis Kealoha and Ms. Kealoha. Please direct
any and all communication and/or correspondence regarding Chief Kealoha or Ms.
Kealoha to my office.” Exhibit A.
On July 20, 2016, Mr. Breiner, on behalf of L. KEALOHA and
K. KEALOHA, filed a 151-page motion to “dismiss the Grand Jury” and “disqualify

5
the Special Prosecutor” for alleged violations of Fed. R. Crim. P. 6(e). See 16-MC-
00208-DKW-KSC. (This opening brief was stricken due to its length.)
On August 3, 2016, Mr. Sumida, on behalf of L. KEALOHA and
K. KEALOHA, filed an “amended memorandum” in support of the motion to
“dismiss the Grand Jury” and “disqualify the Prosecutor.” See 16-MC-00208-DKW-
KSC. Notwithstanding Mr. Sumida’s entrance into the case, Mr. Breiner continued
representing the KEALOHAs. See Exhibit B (Email from Mr. Breiner confirming
his “joint representation of the Kealohas” with Mr. Sumida).
On September 23, 2016, United States District Judge Watson held a hearing
on the KEALOHA’s Motion to Dismiss and Disqualify. At the hearing, Messrs.
Breiner and Sumida appeared on behalf of both L. KEALOHA and K. KEALOHA.
At the conclusion of the hearing, the Court denied the Motion.1
C. Mr. Breiner represents, opposes, and sues K. KEALOHA
While attempting to have the federal grand jury investigating K. KEALOHA
dismissed, Mr. Breiner simultaneously represented a criminal defendant in a case
prosecuted by K. KEALOHA. See Exhibit J (excerpts of case docket in State of
Hawaii v. Alan Ahn and Tiffany Masunaga, Case No. 1PC151001338 (Hawaii. Cir.
1
The pleadings and orders in 16-MC-00208-DKW-KSC remain under seal. To
allow these matters to be considered part of the record for the instant Motion to
Disqualify, the United States will be requesting to file under seal the transcript of
the hearing in that matter. If necessary to assist the Court is deciding this matter, the
United States is prepared to lodge in this proceeding all of the parties’ briefs filed in
the sealed matter.

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Ct.)). According to the docket for that case, Mr. Breiner and K. KEALOHA
appeared in court on behalf of their respective clients and engaged in substantive
discussions about the case. For example, on September 2, 2016 (during the grand
jury litigation described above), the two lawyers appeared for a status hearing before
Judge Rom A. Trader, and had an “off the record” discussion “regarding [the] status
of [Masunaga’s] case.” Id. (9/2/2016 docket entry).2
This was not the first time Mr. Breiner had opposed K. KEALOHA in state
criminal cases – indeed, at least one previous state prosecution actually resulted in
Mr. Breiner suing K. KEALOHA for actions she allegedly took as a prosecutor in
the case. In 2014, Tracy Yoshimura was indicted by the State of Hawaii on hundreds
of counts of gambling-related charges. See Exhibit K (excerpts of case docket in
State of Hawaii v. Yoshimura, et al., Case No. 1PC141000717 (Hawaii Cir. Ct.)).
The lead prosecutor on the case was K. KEALOHA; Mr. Breiner was Yoshimura’s
defense attorney.3
On behalf of Yoshimura, Mr. Breiner accused K. KEALOHA and
2
K. KEALOHA also had “off the record” conversations with Masunaga while
this this state defendant’s case was being prosecuted by K. KEALOHA. Between
May 2016 and September 2016, K. KEALOHA (the prosecutor) exchanged
hundreds of text messages and phone calls with Masunaga (the defendant) using
Signal, a supposedly encrypted communication platform.
3
In a media appearance published on January 7, 2015, Mr. Breiner favorably
described Yoshimura: “He’s a former paramedic, he’s decorated, he’s received
commendations for [his] work as a paramedic for years and years; he’s a legitimate
businessman, always paid his taxes. Doesn’t have a single thing against his name;
no misdemeanors, no crimes, whatsoever, but he’s been characterized, and vilified
by the prosecutor’s office, you know, as a dangerous individual who wants to
introduce illegal gambling to Hawaii.” See Gambling with Misconduct with Myles

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her co-counsel of prosecutorial misconduct. See id., Sept. 26, 2014 docket entry
(“Motion to Dismiss Indictment Due to Prosecutorial Misconduct”). While litigating
that motion, which included examination of the prosecutors involved, K.
KEALOHA failed to appear in court. See id. Nov. 19, 2014 docket entry (“Mr.
Breiner addressed the non-appearance of DPA Ms. Kealoha . . . The Court took the
issuance of the bench warrant under advisement or an order to show cause why Ms.
Kealoha should not be held in contempt.”).4
Ultimately, the state court granted
Yoshimura’s motion and dismissed the case. See id. Nov. 21, 2014 docket entry.
On December 30, 2014, Mr. Breiner filed a civil lawsuit on behalf of
Yoshimura against K. KEALOHA, alleging that she had violated Yoshimura’s civil
rights in the gambling prosecution. See Exhibit C (Complaint filed in Civil Case No.
14-1-2651-12 VLC (Haw. Cir. Ct.)). The allegations in the Complaint frequently
referenced K. KEALOHA; indeed, her name appears at least fifty-one times in the
twenty-three page Complaint. Among other allegations, Mr. Breiner claimed (1)
K. KEALOHA knew certain grand jury testimony was false “and did nothing to
correct this statement to the grand jury” (¶ 22); (2) K. KEALOHA “acted with malice
Breiner, ThinkTech Hawaii, (published Jan. 7, 2015), available at
https://youtu.be/AKN6pqjU3io?t=26m55s.
4
In an article published the following day, Mr. Breiner stated: “According to
[another DPA handling the case] . . . despite his texting her, calling her and telling
her to come to court, [K. KEALOHA] flat-out refused. I think that’s speaks volumes
about the nature of this case and why the indictment should be dismissed with
prejudice.” Exhibit D at 1-2 (Nelson Daranciang, Deputy Prosecutor Absent From
Court in Arcade Case, Honolulu-Star Advertiser (Nov. 20, 2014)).

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in the initiation of the criminal indictment proceedings against [Yoshimura] before
the grand jury” (¶ 36); (3) K. KEALOHA was “liable to [Yoshimura] under the tort
of malicious prosecution” (¶ 38); and (4) K. KEALOHA’s actions amounted to an
“abuse of process” in that she “ma[de] certain that [Yoshimura] was subjected to
unwarranted criminal process.” (¶ 56). In a news media interview about the lawsuit,
Mr. Breiner opined that K. KEALOHA was incompetent.5
On May 28, 2015, the
Hawaii state court dismissed Yoshimura’s Complaint without prejudice; Yoshimura
did not filed an amended complaint.
That was not, however, the end of Yoshimura’s case. He was indicted anew
in February 2016, on 47 charges this time. See State of Hawaii v. Yoshimura, et al.,
1PC161000288. Although K. KEALOHA was not the assigned prosecutor, she
apparently discussed the substance of the case with Mr. Breiner. In a sworn
statement given on July 27, 2016, Yoshimura claimed that Mr. Breiner provided him
with confidential information obtained from K. KEALOHA about his new case.
Yoshimura believed Mr. Breiner made this disclosure to “make me [Yoshimura]
comfortable with and accept the situation where he’d be representing
[K. KEALOHA] and me.” Exhibit E (Sworn Statement of Yoshimura) at 26.
Yoshimura agreed that he “wanted to continue a relationship with Myles Breiner
5
Exhibit D at 3 (Rick Daysog, Kaneshiro sued for malicious prosecution,
Hawaii News Now (last updated December 31, 2014) (“‘Clearly, assigning this case
in our opinion to frankly incompetent prosecutors who did not do their
homework . . . . is ridiculous,’ said attorney Myles Breiner.”).

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because [Mr. Breiner] was going to use [his] representation of Ms. Kealoha to benefit
[Yoshimura].” Id. at 28-29.6
After some time, however, Yoshimura realized that
there was “a lot that [he could] . . . no longer share with [Mr. Breiner],” and he
instead confided in the other attorney representing him. Id. at 33.7
D. Mr. Breiner represents and sues L. KEALOHA
In addition to actively representing L. KEALOHA and K. KEALOHA during
the investigation of this case, Mr. Breiner also represented several plaintiffs who
were separately suing L. KEALOHA for separate alleged violations of state and
federal law. After Mr. Breiner’s conflict was brought to the attention of the court in
these cases, he was either disqualified or voluntarily withdrew from the
representation.
In Kaahu v. Randall, Case No. CV14-00266 HG-RLP (D. Hawaii), Mr.
Breiner filed suit on behalf of certain plaintiffs against several HPD officers, the City
and County of Honolulu and L. KEALOHA (both individually and in his capacity
as Chief of Police), based on an unlawful assault of the plaintiffs and later cover-up
6
For a time, that hope seemed well placed. According to Yoshimura, the DPA
obtained an indictment for him on February 24, 2016, but “sat on the indictment for
three months without . . . executing the arrest warrant.” Id. at 43. According to
Yoshimura, Mr. Breiner told him “that he felt that [K. KEALOHA] was doing it as
a way of helping us”; “she was trying to convince [Mr. Breiner] or butter up [Mr.
Breiner] to . . . agree to represent her.” Id.
7
Despite his continuing duties of loyalty and confidentiality to Yoshimura, Mr.
Breiner later attacked his former client’s credibility when attempting to dismiss the
grand jury investigating K. KEALOHA. See Case No. 16-MC-00208-DKW-KSC,
Reply Brief of L. KEALOHA and K. KEALOHA filed on 9/12/16, at 17-19.
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of the incident (which included creating false police reports). Id. Dkt. # 1. On
August 1, 2016, District Judge Gillmor entered an Order to Show Cause directing
Mr. Breiner to file a memorandum explaining how he could continue representing
these plaintiffs at the same time he was representing L. KEALOHA and his wife K.
KEALOHA in the federal criminal investigation. Id. Dkt. #88. In response, Mr.
Breiner attempted to file his response under seal, claiming that it included attorney-
client privileged information. Id. Dkt. #89, 90. The Court denied the request (as the
filing did not contain any privileged information), id. Dkt. # 93, and soon thereafter
stayed the proceedings. Id. Dkt. # 96. On February 6, 2017, before the Court ruled
on the question of his disqualification, Mr. Breiner moved to withdraw from
representing the plaintiffs. Id. Dkt. # 99, 100, 102, 109.
Mr. Breiner’s decision to withdraw in Kaahu came just twelve days after
District Judge Watson disqualified him in a separate civil case due to his
representation of the KEALOHAs. In Franson v. City and County of Honolulu, Case
No. CV-16-00096 DKW-KSC (D. Hawaii), Mr. Breiner sued L. KEALOHA, as
Chief of Police, for the deprivation of his client’s civil rights. The Complaint was
filed less than two months before Mr. Breiner notified the United States that he
represented K. KEALOHA and L. KEALOHA in the federal investigation. See
Exhibit A. Although Mr. Breiner later filed an amended complaint that removed
L. KEALOHA as a defendant, the City and County of Honolulu nonetheless filed a
Motion to Disqualify Mr. Breiner based on his simultaneous representation of L.
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KEALOHA in the instant criminal investigation.8
On January 25, 2017, District
Judge Watson disqualified Mr. Breiner from representing these plaintiffs, observing
that “[e]ven where there is no direct adversity of interest, a conflict of interest exists
if there is a significant risk that a lawyer’s ability to consider, recommend, or carry
out an appropriate course of action for the client will be materially limited as a result
of the lawyer’s other responsibilities or interests.” Franson v. City and County of
Honolulu, Civil No. 16-00096 DKW-KSC, 2017 WL 372976, at 11 (D. Hawaii Jan.
25, 2017) (quoting commentary to Hawaii R. Prof. Conduct (“HRPC”) 1.7(a)(2)).
Given that Mr. Breiner had already removed L. KEALOHA from the amended
complaint “after having the propriety of his representation questioned by Judge
Gillmor,” the Court concluded that Mr. Breiner’s ability to effectively represent the
plaintiffs had been materially limited by his duty of loyalty to L. KEALOHA. Id.
The Court also found that it was not reasonable for Mr. Breiner to believe that he
8
Notably, shortly after responding to Judge Gillmor’s show cause order (which
Mr. Breiner filed in both Kaahu and Franson), Mr. Breiner submitted a letter to the
Court which he contended bore “directly on the issues the Court” had raised
regarding the Hawaii Rules of Professional Conduct. See Exhibit L (Franson Dkt.
# 36). Mr. Breiner informed the Court that he had just “received a copy of the
enclosed letter” from Mr. Sumida (who was Mr. Breiner’s co-counsel in the federal
grand jury litigation before District Judge Watson). Mr. Sumida’s letter was
addressed to the Deputy Corporation Counsel, and stated that he represented the
KEALOHAs in a 2016 lawsuit involving the Honolulu Ethics Commission. Id.
Tellingly, Mr. Sumida demanded that Corporation Counsel withdraw as counsel for
L. KEALOHA in all civil matters, reasoning that “[s]ince your office cannot be both
adverse counsel to him in one case and his counsel in another, we demand that your
office immediately withdraw as his counsel and appoint independent and separate
counsel to represent him in all pending litigation against him as Chief of Police.” Id.
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could competently and diligently represent both parties, and that the waivers he
proffered were neither “meaningful” nor “informed” within the meaning of
HRPC 1.7. Id. at *12-14.
E. Sumida as a Witness to K. KEALOHA’s alias, Alison Lee Wong
Prior to representing K. KEALOHA in this criminal case, Mr. Sumida and his
firm represented her in a separate civil case filed by one of her victims. See Puana
v. Kealoha, Case No. 1CC13-1-000686. One of the issues in that case was whether
K. KEALOHA properly acted as an agent for G.K.P. in the course of purchasing a
condominium for him, in which she purportedly acted pursuant to a “Revocable
Living Trust Agreement” allegedly signed by G.K.P. and notarized by “Alison Lee
Wong.” During the course of that representation, G.K.P. requested the Trust
Agreement in discovery from Mr. Sumida and his firm. Mr. Sumida’s firm located
the Trust Agreement, representing that they “received [it] from First American
Title.” Exhibit F (Letter from Kevin Sumida & Associates, LLC, dated September
18, 2014) at 1. The name of the notary on this Trust Agreement – “Alison Lee
Wong” – is the same name used as an alias by defendant K. KEALOHA when
attempting to conceal her fraudulent activities. See Indictment ¶¶ 16, 65. Mr.
Sumida’s firm represented that they examined the Trust Agreement and “found the
document somewhat puzzling so [they] sought to confirm its provenance by
examining the notary book of the notary who notarized the signatures.” Exhibit F
at 1. According to Mr. Sumida’s firm:
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Much to our surprise, the Attorney General [of the State of Hawaii] is
unable to locate any notary with the same or similar name to that on the
putative trust document.
Id. at 1. The discovery of the Trust Agreement, and the purported confusion it
created for Mr. Sumida’s firm, was discussed during a court hearing in the civil
case. Id.
During K. KEALOHA’s deposition in that civil case – some eight days after
Mr. Sumida’s firm disclosed the Trust Agreement to G.K.P. – K. KEALOHA
testified that the signature on the Trust Agreement was hers, she purportedly knew
an “Alison Wong,” but she could not recall this particular document. K. KEALOHA
further testified that she had seen the Trust Agreement in Mr. Sumida’s office, but
claimed not to know who had provided it to her attorney. Exhibit I (Excerpts of
Deposition Testimony from September 26, 2014).
Given this history, and the allegations concerning “Alison Lee Wong” in the
Indictment, Mr. Sumida is potentially a witness to the fabrication of a document used
in state court proceedings. See HRPC 3.7 (lawyer as witness). Additionally, this
circumstance could place Mr. Sumida in the untenable position of having to abide
by his responsibilities under HRPC 3.3 (requiring “candor toward the tribunal” and
obligating an attorney who “has offered material evidence and comes to know of its
falsity . . . [to] take remedial measures to the extent reasonably necessary to rectify
the consequences”), and his duty of loyalty and confidentiality to K. KEALOHA.
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F. Mr. Sumida as Potential Witness to K. KEALOHA’s Obstruction
As alleged in the Indictment, K. KEALOHA and her co-conspirators have
attempted to obstruct the federal grand jury investigation into the conspiracy and
related activities. Among the acts of obstruction were attempts to persuade
witnesses to provide false evidence to investigators and the grand jury. As outlined
below, one of those efforts took place in Mr. Sumida’s law office.
During the course of the grand jury investigation, K. KEALOHA would meet
with grand jury witnesses, before and after their appearances, to instruct them on
what to say and to learn what they had been asked and what they had told the grand
jury. On a date shortly after April 21, 2016, K. KEALOHA met with at least one
such witness and learned that he/she had been asked about a certain document that
had been filed in a Hawaii guardian proceeding. Using this information,
K. KEALOHA contacted another person (“Witness 1”) whose name appeared on
that document and asked him/her to download “Signal” (a supposedly secure
encrypted communications application). See Exhibit G (Redacted FD-302 for
Witness 1). In June 2016, K. KEALOHA sent Witness 1 a message through Signal
and requested that they meet on a Saturday. On the appointed day, K. KEALOHA
picked up Witness 1 in her car and drove him/her to Mr. Sumida’s law office.
Although the office was closed, K. KEALOHA was able to gain entry on the
weekend because she had a key. During their meeting in Mr. Sumida’s law office,
K. KEALOHA showed Witness 1 a document that appeared to bear his/her
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signature, but was in fact a forgery. Exhibit H (Redacted copy of document allegedly
signed by Witness 1). Understandably, Witness 1 became upset at seeing his/her
forged signature on a legal document of which he/she had no previous knowledge.
K. KEALOHA professed ignorance on how Witness 1’s name and signature ended
up on the document, but told Witness 1 that if he/she received a subpoena to testify
before the federal grand jury, then K. KEALOHA would provide him/her with an
attorney. Although Witness 1 did not see Mr. Sumida during this clandestine
meeting in his law office, he/she did meet another person who came into the office
on that day.
G. Indictment and Appearances by Defense Counsel
On October 19, 2017, a federal grand jury returned an Indictment charging
Defendants K. KEALOHA and L. KEALOHA with conspiring to commit the
offenses of (1) deprivation of civil rights, (2) obstruction of federal proceedings, (3)
making false statements to federal officers, and (4) falsifying records in an FBI
investigation, all in violation of 18 U.S.C. § 371 (Count 1). Dkt. # 18. Both
defendants were also charged with three counts of obstructing official proceedings,
in violation of 18 U.S.C. § 1512(c) (Counts 2, 5, and 6); one count of making false
statements to a federal officer, in violation of 18 U.S.C. § 1001 (Count 7); eight
counts of bank fraud, in violation of 18 U.S.C. § 1344 (Count 9-16); and criminal
forfeiture. Defendant K. KEALOHA was also charged in three counts of aggravated
identity theft, in violation of 18 U.S.C. § 1028A (Counts 17-20).
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On October 20, 2017, both defendants appeared before Magistrate Judge
Puglisi represented by Messrs. Breiner and Sumida. Dkt. #48. Both defendants
entered pleas of not guilty, and were released on bond.
On October 27, 2017, Messers. Breiner and Sumida filed a Request for
Discovery on behalf of both K. KEALOHA and L. KEALOHA. Dkt. # 65. On the
same day, Mr. Breiner filed a Notice of Appearance for K. KEALOHA and
withdrew from representing L. KEALOHA. Dkt. #66. On October 30, 2017, Gary
Modafferi filed a Notice of Appearance as counsel for L. KEALOHA. Dkt. # 67.
III
ARGUMENT
A. Sixth Amendment Right to Conflict-Free Counsel
The Sixth Amendment guarantees every criminal defendant the right to
counsel in all felony cases. U.S. Const. amend. VI. This right generally entitles an
individual “[t]o choose who will represent him.” United States v. Gonzalez-Lopez,
548 U.S. 140, 144 (2006). Indeed, a presumption exists that individuals may have
counsel of their choice. Wheat v. United States, 486 U.S. 153, 164 (1988).
The right to counsel of choice, however, is not absolute. It is “circumscribed
in a number of important respects,” Wheat, 486 U.S. at 159, and must be balanced
against other important interests in the judicial system, such as the Sixth Amendment
right to conflict-free counsel, see Wood v. Georgia, 450 U.S. 261, 271 (1981);
United States v. Morrison, 449 U.S. 361, 365 (1981); United States v. Moore, 159
310

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F.3d 1154, 1157 (9th Cir. 1998). And because “the essential aim of the [Sixth]
Amendment is to guarantee an effective advocate for each criminal defendant rather
than to ensure that a defendant will inexorably be represented by the lawyer whom
he prefers,” Wheat, 486 U.S. at 159, a defendant’s right to counsel of his choice can
be overcome in cases where he has chosen an attorney with an actual conflict of
interest, id. at 164; see also United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.
1992) (“Although a defendant who raises an ineffective assistance of counsel claim
is ordinarily required to show prejudice, prejudice is presumed if the alleged
violation is based on an actual conflict of interest.”).
An attorney has an actual conflict of interest “when, during the course of the
representation, the attorney’s and the defendant’s interests diverge with respect to a
material factual or legal issue or to a course of action.” United States v. Baker, 256
F.3d 855, 860 (9th Cir. 2001) (quotation omitted). As every court to consider the
issue has concluded, a lawyer’s simultaneous representation of both a defendant and
a government witness constitutes an actual conflict of interest. United States v.
Henke, 222 F.3d 633, 636 (9th Cir. 2000) (per curiam) (finding an actual conflict of
interest where the defendants’ attorney had entered into a joint defense agreement
with a government witness); United States v. Ross, 33 F.3d 1507, 1523 (11th Cir.
1994) (“The need for fair, efficient, and orderly administration of justice overcomes
the right to counsel of choice where an attorney has an actual conflict of interest,
311

18
such as when he has previously represented a person who will be called as a witness
against a current client at a criminal trial.”).
The Supreme Court and Ninth Circuit have also found that the mere potential
for a conflict of interest is sufficient to require disqualification. See Wheat, 486 U.S.
at 163-64 (because “[t]he likelihood and dimensions of nascent conflicts of interest
are notoriously hard to predict,” the presumption may be overcome by a showing of
a serious potential for such a conflict); United States v. Kenney, 911 F.2d 315, 321
(9th Cir. 1990) (unless the attack is on appeal or habeas, the potential for a conflict
of interest is sufficient to justify disqualification).
Courts should be vigilant in addressing conflicts, as their existence may result
in an attorney’s assistance being deemed ineffective. See Strickland v. Washington,
466 U.S. 668, 692 (1984). As a result, a trial court has an independent duty to ensure
that criminal defendants receive a trial that is free from conflicts of interest that
would contravene the Sixth Amendment. See, e.g., Wheat, 486 U.S. at 161, and
Holloway v. Arkansas, 435 U.S. 475, 484-85 (1978); see also Fed. R. Crim. P. 44(c)
(discussing the court’s duty to inquire into conflicts involving joint representation).
And as the Supreme Court has explained, “a court confronted with and alerted to
possible conflicts of interest must take adequate steps to ascertain whether the
conflicts warrant separate counsel.” Wheat, 486 U.S. at 160; United States v. Kliti,
156 F.3d 150, 153 (2d Cir. 1998) (when informed of a possible conflict, the court
“has a threshold obligation to determine whether the attorney has an actual conflict,
312

19
a potential conflict, or no conflict”). The trial court has “broad discretion in
determining whether disqualification is required in a particular case.” Schloetter v.
Railoc of Ind., Inc., 546 F.2d 706, 710 (7th Cir. 1976).9
“Moreover, in resolving this
question, any doubt is resolved in favor of disqualification.” United States v. Tocco,
575 F. Supp. 100, 102 (N.D. Ill. 1983).
B. Successive Representation of Co-Defendants
Both Messrs. Breiner and Sumida are at serious risk of violating a cardinal
rule of joint representation – that is, not allowing the duties to one client impair the
duties owed to another client. See HRPC 1.7. Specifically, since both attorneys
have represented both L. KEALOHA and K. KEALOHA for approximately
seventeen months – during the criminal investigation, ancillary litigation, and until
just last week, the pending criminal case – they now face the insurmountable
problem of successive representation. “[A]n attorney must be disqualified if he or
she formerly represented an adverse party in a manner ‘substantially related’ to the
current representation.” United States v. Koon, 34 F.3d 1416, 1437 (9th Cir. 1994),
overruled on other grounds, 518 U.S. 81 (1996). “If there is a reasonable probability
that confidences were disclosed which could be used against the former client in the
9
Trial courts are afforded substantial latitude in determining whether there is
a conflict and whether to accept a waiver. See Wheat, 486 U.S. at 164; see also
United States v. Frega, 179 F.3d 793, 800 (9th Cir. 1999); United States v. Stites,
56 F.3d 1020, 1024 (9th Cir. 1995) (“Substantial latitude is necessary to avoid the
district court being whipsawed – damned if it does and damned if it doesn’t.”).
313

20
later adverse representation . . . a substantial relationship between the two cases will
be presumed.” Thomas v. Mun. Court of Antelope Valley Judicial Dist., 878 F.2d
285, 288 (9th Cir. 1989). The mere fact that an attorney possesses client confidences
relevant to the interests of other clients often “poses . . . [the] potential for conflict.”
Id. at 289. This is because the most important facet of the professional relationship
is the preservation of client secrets and confidential communications. Trone v.
Smith, 621 F.2d 994, 998 (9th Cir. 1980). The duty of confidence is so important
that the Ninth Circuit has held that “[i]t is the possibility of the breach of confidence,
not the fact of the breach, that triggers disqualification.” Id. at 999 (emphasis added).
K. KEALOHA and L. KEALOHA are charged together in almost all of the
counts of the Indictment in which they are named. While they currently present a
unified defense, it may well be in their individual best interest to adopt divergent
defenses. For example, in many of the bank fraud counts the defendants are alleged
to have signed and submitted false loan applications. K. KEALOHA’s attorney may
decide to take the position that she relied on L. KEALOHA – holder of a Ph.D.
degree and 30-year veteran of the HPD – to accurately disclose his assets and
liabilities on their loan application, and claim that she just signed a loan application
that he filled out. Alternatively L. KEALOHA may decide to defend against the
charge by arguing that K. KEALOHA handled all of the discussions with the victim
financial institution, and convinced him that the loan applications were accurate.
Either way, Messrs. Breiner and Sumida will be forced to decide whether to defend
314

21
K. KEALOHA (their current client) at the peril of L. KEALOHA (their former
client) – an untenable situation given their ethical and constitutional obligations.
Moreover, both defendants are entitled to effective representation of counsel
in determining which pretrial motions to file. Yet Defense Counsel currently risks
undermining their own credibility if they file certain motions. For example, during
the investigation of this case, Defense Counsel alleged that media coverage proved
that there had been improper leaks of grand jury information in violation of Fed. R.
Crim. P. 6(e). As demonstrated by Yoshimura’s unrefuted sworn statement,
K. KEALOHA and Defense Counsel were actually the source of “leaks”; the United
States is prepared to prove that K. KEALOHA was behind other leaks as well.
Defense Counsel would therefore be in a compromised position if they attacked the
case by alleging grand jury “leaks.”
Finally, should L. KEALOHA decide to testify at trial, neither Defense
Counsel will be in a position to effectively cross-examine him because of the
extended period of time during which they represented him and (presumably) had
confidential, attorney-client communications. See Fitzpatrick v. McCormick, 869
F.2d 1247, 1252 (9th Cir. 1989) (“Among the dangers in a successive representation
situation is that the attorney who has obtained privileged information from the
former client may fail to conduct a rigorous cross-examination for fear of misusing
that confidential information.”); United States v. Algee, 309 F.3d 1011, 1014 (7th
Cir. 2002) (affirming disqualification where the district court “reasonably concluded
315

22
that ethical constraints would prohibit [counsel] from cross-examining [former
clients] in any meaningful way”). This fact alone – coupled with the difficulties of
predicting the twists and turns of a multi-defendant complex public corruption and
fraud trial – counsels in favor of disqualification at this stage.
C. Successive Representation of Adverse Clients
Mr. Breiner has previously represented clients adverse to K. KEALOHA and
L. KEALOHA, to whom he still owes a duty of loyalty and confidentiality.
HRPC 1.9, cmt. n.1 (“After termination of a client-lawyer relationship, a lawyer has
certain continuing duties with respect to confidentiality and conflicts of interest and
thus may not represent another client except in conformity with this Rule.”).10
Accordingly, in his attempt to continue representing K. KEALOHA, he creates a
serious risk that he will violate duties to his former clients. See HRPC 1.7; United
States v. Gaitan-Ayala, No. CR 07-0268-JMS, 2008 WL 1752678, *4-5 (D. Hawaii)
(“In addition to constitutional considerations, the ethical standards embodied in the
HRPC weigh against Breiner’s continued representation of Gaitan–Ayala in this
case.”) (disqualifying Mr. Breiner from simultaneously representing a defendant and
two cooperating witnesses expected to testify at trial).
10
“A lawyer who has formerly represented a client in a matter . . . shall not
thereafter . . . use information relating to the representation to the disadvantaged of
the former client except as these Rules would permit or require with respect to a
client . . . [or] reveal information relating to the representation except as these Rules
would permit or require with respect to a client.” HRPC 1.9(c).
316

23
As in the Franson litigation before District Judge Watson, this Court is faced
with a situation in which Mr. Breiner’s decision to represent K. KEALOHA conflicts
with this obligations to former clients who sued K. KEALOHA and her husband,
L. KEALOHA. The fact that Mr. Breiner is no longer representing the Franson
plaintiffs is of no moment, just as it did not matter in District Judge Watson’s
analysis that Mr. Breiner had dropped L. KEALOHA from that case.11
D. Mr. Sumida’s Representation Will Violate the Advocate-Witness Prohibition
Should this Court permit Mr. Sumida to continue representing K. KEALOHA,
there is a serious risk that during trial he would be forced to violate the prohibition
on acting as an advocate and a witness in the same proceeding. See HRPC 3.7;
United States v. Travis, No. CR. 07-00354 HG, 2007 WL 2746835, at *3 (D. Haw.
Sept. 19, 2007) (disqualifying defense counsel because “[a]llowing an attorney to
continue as counsel of record when his representation violates Rule 3.7(a) would
unduly hinder the fair administration of justice”). For example, the Indictment
alleges that K. KEALOHA used the alias “Alison Lee Wong” to convey false and
misleading information in furtherance of her schemes. See, e.g., Indictment
¶¶ 16(a), 16(b), 16(c), 16(d). In proving these allegations, the United States intends
11
Mr. Breiner has already conceded this reality. See Exhibit D at 12 (Nick
Grube & Rui Kaneya, Can One Attorney Sue The Chief And Defend Him At The
Same Time?, Civil Beat (January 26, 2017) (“Even as Breiner insisted that he does
not have conflicts of interest, he conceded that, if the chief and his wife are indicted,
he’ll likely have to drop them both as clients.”).
317

24
to show that K. KEALOHA used this alias in a variety of circumstances, including
during the prior civil case between her and G.K.P. and F.P. Given that Mr. Sumida
unearthed powerful evidence indicating that “Alison Lee Wong” was not a real
person, it is likely that either the United States or K. KEALOHA (or perhaps
L. KEALOHA) will seek to elicit this evidence at trial.
Similarly, Mr. Sumida may well be a percipient witness in connection with
K. KEALOHA’s attempt to influence Witness 1’s testimony before the federal grand
jury. Given the timing and context of K. KEALOHA’s questioning of Witness 1,
and offer to provide Witness 1 with an attorney if he/she was subpoenaed to testify
before the federal grand jury, her conduct appears calculated to dissuade Witness 1
from providing truthful testimony to the grand jury about the document purportedly
bearing his/her signature. Although there is no indication that Mr. Sumida had any
knowledge of K. KEALOHA’s attempts to influence Witness 1, because the
obstruction took place at his law offices, it is likely that either the United States or
K. KEALOHA may seek to call him as a witness to establish pertinent facts (e.g.,
whether K. KEALOHA was provided with a key to the office). Because such an
eventuality would place Mr. Sumida at risk of violating HRPC 3.7, this Court should
take precautionary measures now to ensure the viability of the proceedings.
318

25
IV
CONCLUSION
The United States has no interest in impairing the defendants’ right to counsel
of choice, or to favor one defense attorney over any other. But the Supreme Court
and the Ninth Circuit have urged district courts to disqualify counsel faced with
conflicts much less severe than the ones presented here. Following this unambiguous
authority, the United States respectfully submits that this Court should disqualify
both Defense Counsel from representing K. KEALOHA. In the alternative, if
immediate disqualification is not warranted, the United States requests that this
Court conduct an examination of K. KEALOHA and L. KEALOHA to ensure that
both defendants understand the serious potential conflicts of interest at play.
Dated: November 3, 2017 Respectfully submitted,
JEFFERSON B. SESSIONS III
United States Attorney General
ALANA W. ROBINSON
Acting United States Attorney
/s/ Eric J. Beste
MICHAEL G. WHEAT
ERIC J. BESTE
JANAKI S. GANDHI
COLIN M. MCDONALD
Special Attorneys to the Attorney General
319

26
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
v.
KATHERINE P. KEALOHA (1), et al.,
Defendants.
Case No. CR 17-00582-JMS
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that:
I, Eric J. Beste, am a citizen of the United States and am at least eighteen years
of age. My business address is 880 Front Street, Room 6293, San Diego, CA 92101-
8893.
I am not a party to the above-entitled action. I have caused service of the
foregoing on all parties in this case by electronically filing the foregoing with the
Clerk of the District Court using its ECF System, which electronically notifies them.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on November 3, 2017.
s/ Eric J. Beste
ERIC J. BESTE
320

EXHIBIT A
Case 1:17-cr-00582-JMS-RLP Document 74-1 Filed 11/03/17 Page 1 of 2 PageID #:
321

ATTORNEY AT LAW
A LAW CORPORATION
~ ::
MYLES S. BREINER
841 Bishop Street,Suite 2115
Honolulu, Hawaii 96813
Tel:(808)526-3426
Fax:(808)521-7680
e-mail• myles~a biei~erlaw.net
Web: hawaiic~iminaLdefense.net
May 4,2016
Via U.S. Mailand e-mailatMichael.Whea~,usdoj.gov
Michael G. Wheat
Special Attorney
Office ofthe U.S. Attorney/Southern
880 Front Street,Room 6293
San Diego,California 92101
Re: Louis and Katherine Kealoha
Dear Mr. Wheat:
Please be advised that my office represents Honolulu Police Department Chief
Louis Kealoha and Katherine Kealoha. Please direct any and all communication
and/or correspondence regarding ChiefKealoha or Ms.Kealoha to my office.
Your prompt attention to this matter is greatly appreciated.
S S.BREWER
322

EXHIBIT B
323

From: Myles Breiner <myles@breinerlaw.net>
Date: September 7, 2016 at 7:48:05 PM PDT
To: "McDonald, Colin (USACAS)" <Colin.McDonald@usdoj.gov>
Cc: Kevin Sumida <ksumida@hawaiilaw4l 1.com>
Subject: RE: In Re GJ Proceeding; MC 16-00208 DKW-KSC
Mr. McDonald
Thank you for the courtesy copy. Henceforth, please include both Mr. Sumida and my
office in any communication as it pertains to our joint representation ofthe Kealohas.
Regarding Tracy Yoshimura's entertaining partial transcript, please provide a complete
copy, absent which we will file a motion to compel.
Myles Breiner
From: McDonald, Colin (USACAS) [mailto:Colin.McDonald@usdoj.gov]
Sent: Wednesday, September 07, 2016 I:58 PM
To: Myles Breiner <myles@breinerlaw.net>
Cc: Ellie Elento <elinor@breinerlaw.net>
Subject: FW: In Re GJ Proceeding; MC 16-00208 DKW-KSC
Mr. Breiner,
Please find attached a courtesy copy ofthe United States' response in opposition to your
clients' motion.
Best regards,
Colin M. McDonald
Assistant U.S. Attorney
Southern District of California
619-546-9144
Colin.McDonald@usdoj.gov
From: McDonald, Colin (USACAS)
Sent: Friday, August 26, 2016 12:49 PM
To: 'Kevin Sumida'
Subject: In Re GJ Proceeding; MC 16-00208 DKW-KSC
Mr. Sumida,
Please find attached a courtesy copy ofthe United States' response in opposition to your
clients' motion.
324

EXHIBIT C
325

326

327

328

329

330

331

332

333

334

335

336

337

338

339

340

341

342

343

344

345

346

347

348

EXHIBIT D
349

Deputy prosecutor absent from court in arcade case
D001
350

D002
351

11/2/2017 Kaneshiro sued for malicious prosecution - Hawaii News Now - KGMB and KHNL
http://www.hawaiinewsnow.com/story/27734525/kaneshiro-sued-for-malicious-prosecution 1/2
By Rick Daysog, Reporter
HONOLULU (HawaiiNewsNow) -
Kaneshiro sued for malicious prosecution
Published:Tuesday, December 30th 2014, 10:55 pm PDT
Updated:Wednesday, December 31st 2014, 8:50 am PDT
It was one of the largest white-collar crime cases in Hawaii history. But one month after a state judge tossed the
case, the main defendant is suing.
In a Circuit Court lawsuit led today, Tracy Yoshimura accuses Honolulu Prosecutor Keith Kaneshiro of malicious prosecution. His suit also alleges
that Kaneshiro placed the high-pro le case in the hands of inexperienced deputies who not only bungled it but abused their authority.
"Clearly, assigning this case in our opinion to frankly incompetent prosecutors who did not do their homework ... is ridiculous," said attorney Myles
Breiner.
"It's incumbent upon us to stop this, stop the abusive process, to stop Mr. Kaneshiro from further proceeding with abusive prosecution."
Breiner represents Yoshimura, who is one of nine defendants charged in a sweeping 414-count indictment for racketeering, gambling promotion
and money laundering.
Yoshimura was hit with 250 of those counts because prosecutors said his company Game Zone Arcades distributed the sweepstakes gaming
machines that were becoming popular at local arcades and local strip malls.
But the case quickly unraveled over allegations of prosecutorial misconduct. During trial, defense attorneys were able to show that Yoshimura was
in fact not the owner of Game Zone but that prosecutors didn't take steps to check that and went ahead and indicted him.
Prosecutors also relied heavily on gaming expert witness John-Martin Meyer of Nevada, when he wasn't an expert in the sweepstakes machines
seized by prosecutors.
Last month, Circuit Judge Randal Lee dismissed the case, saying the prosecution presented "absolutely no evidence of gambling."
Although he's allowing prosecutors to bring a new indictment, Lee barred two of the deputies -- Katherine Kealoha and Jake Delaplane -- from
taking part in any new proceeding.
A spokesman for Kaneshiro could not be reached.
Yoshimura's lawsuit names Kealoha -- who is married to Honolulu Police Chief Louis Kealoha -- and Delaplane, who left his previous job at the
Kauai prosecutor's o ce under a cloud.
Delaplane served as First Deputy for the Kauai Prosecutor's o ce, when it was sued in 2012 by former Councilman Tim Bynum for malicious
prosecution. Bynum's suit was eventually settled out of court, with the county agreeing to pay him more than $250,000.
Delaplane also was the Kauai o ce's rst deputy when it indicted the county's Human Resource Manager Janine Rapozo with theft in 2012, even
though the grand jury didn't have enough votes to do so.
That indictment, which many said was politically motivated, was thrown out.
"(This case) was awed from the beginning, awed with the people they assigned to the case and awed in prosecution and presentation before
the grand jury and quite frankly it speaks volumes of the failure of Mr. Kaneshiro to properly supervise his o ce," Breiner said.
Copyright 2014 . All rights reserved.
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11/3/2017 Can One Attorney Sue The Chief And Defend Him At The Same Time?
http://www.civilbeat.org/2017/01/can-one-attorney-sue-the-chief-and-defend-him-at-the-same-time/ 1/10
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EXHIBIT E
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RALPH ROSENBERG COURT REPORTERS, INC.
Honolulu, Hawaii (808) 524-2090
1
---o0o---
SWORN STATEMENT OF TRACY T. YOSHIMURA
---o0o---
Taken at the U.S. Attorney's Office, District of Hawaii,
PJKK Federal Building, 300 Ala Moana Boulevard, Room
6-100, Honolulu, Hawaii, commencing at 3:24 p.m.
on Wednesday, July 27, 2016.
Reported By: CYNTHIA A. GARDUQUE, CSR NO. 251
Certified Shorthand Reporter
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PERSONS PRESENT:
MICHAEL G. WHEAT, ESQ.
Assistant U.S. Attorney
United States Department of Justice
Southern District of California
880 Front Street, Room 6293
San Diego, California 92101
CARYN ACKERMAN, FBI SPECIAL AGENT
NICOLE VALLIERES, FBI SPECIAL AGENT
TRACY T. YOSHIMURA, WITNESS
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INDEX
EXAMINATION BY: PAGE
MR. WHEAT 5
EXHIBITS MARKED FOR IDENTIFICATION AND ATTACHED:
1 - E-mail from Keith M. Kiuchi to 51
Wheat, Michael (USACAS)
Sent: Friday, June 03, 2016 2:38 PM
Subject: Tracy Yoshimura
2 - Complaint, Re: Keith Kaneshiro, 51
Jake Dela Plane, Katherine Kealoha,
13 pages
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MR. WHEAT: This is Michael Wheat. I'm a
Special Attorney for the District of Hawaii from the
United States Department of Justice. It's Wednesday,
July 27th at approximately 3:24 p.m. We're at the
United States Attorney's Office in the District of
Hawaii. Present are Special Agents Caryn Ackerman and
Nicole Vallieres from the FBI and we're taking a sworn
statement from Tracy Yoshimura.
Is that correct, sir?
MR. YOSHIMURA: Correct.
MR. WHEAT: And do you have your driver's
license here with you today?
MR. YOSHIMURA: Yeah.
MR. WHEAT: Show that to the court reporter.
THE COURT REPORTER: Thank you.
MR. WHEAT: Mr. Yoshimura, you reached out to
the FBI and indicated that you wanted to come in and
make a statement. Is that correct?
MR. YOSHIMURA: Correct.
MR. WHEAT: And you're here voluntarily?
MR. YOSHIMURA: Yes.
MR. WHEAT: Of your own free will?
MR. YOSHIMURA: Yes.
MR. WHEAT: The record should reflect that
we're in a conference room. Mr. Yoshimura is sitting in
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a chair closest to the door. The door is ajar.
And you should know, sir, the door's not
locked and you're certainly free to leave at any time
and you're free to not answer any question that you
choose.
Do you understand that?
MR. YOSHIMURA: Correct. Yes, I understand.
MR. WHEAT: It's a completely voluntarily
statement on your part to provide a statement to us.
MR. YOSHIMURA: Yes, sir. I understand.
MR. WHEAT: At this time I'd ask the court
reporter to swear the witness.
TRACY T. YOSHIMURA,
having been first duly sworn, was examined and testified
as follows:
EXAMINATION
BY MR. WHEAT:
Q. Can you state your name and spell your full name?
A. Tracy, T-r-a-c-y. Toshio, T-o-s-h-i-o.
Yoshimura, Y-o-s-h-i-m-u-r-a.
Q. What's your date of birth, please?
A.
Q. Okay. And what do you do for a living?
A. I'm self-employed.
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Q. Okay. You indicated that you wanted to come
forward and make a statement. What did you want to make
a statement about, sir?
A. The first one would be a phone call that I had
listened to with a co-defendant in my case --
Q. Now, let me -- before we ask anything about that,
let me show you what I've marked as Exhibit No. 1, sir.
A. Uh-huh.
Q. Do you see that?
A. This?
Q. Yes.
A. Yes.
Q. And that appears -- do you recognize that to be
an e-mail that you were copied on from an individual by
the name Keith Kiushi (phonetic)?
A. Kiuchi.
Q. Kiuchi?
A. Yes.
Q. And who is that, sir?
A. That is one of my attorneys.
Q. Okay. And it's an e-mail from Keith to me
regarding you. Is that correct?
A. Correct.
Q. And in that e-mail -- did you get a copy of it?
A. Yes, I did.
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Q. It's dated on June 3rd, 2016.
A. Right.
Q. And what do you understand that e-mail to be?
A. That he gives you permission to speak with me and
that I was interested in speaking with you.
Q. Okay. And you understand that you could be
represented by counsel here if you chose?
A. Yes.
Q. Do you want to have a lawyer present here?
A. Uh-uh.
Q. Is that no?
A. Yes. No.
Q. No, you don't want a lawyer.
A. Yes.
Q. Correct? Is that correct?
A. Correct. Correct.
Q. Okay. Make sure the record's made clear on that.
You said that Keith Kiuchi was one of your
lawyers. Do you have another lawyer?
A. Myles Breiner.
Q. And is Mr. Breiner still your lawyer?
A. Yes, he is.
Q. And does Mr. Breiner know that you're here today?
A. No, he doesn't.
Q. And did you choose not to tell him?
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A. Yes.
Q. Did you tell Keith that you did not tell Mr.
Breiner?
A. Yes.
Q. Okay.
A. And like I said, there was a meeting where we
discussed whether or not Myles should remove himself
from the case, so --
Q. And when you say we, to whom do you refer?
A. Keith Kiuchi, Myles Breiner and myself.
Q. Okay.
A. And in that meeting when we decided that Myles
would continue as my counsel, along with Keith as
co-counsel, I did indicate to Myles at the time that
there's a lot of things I'm not going to be able to
discuss with him any longer.
I did indicate to him that I'm going to go very
hard after Kathy Kealoha, but I would no longer, you
know, privy him to the actions that I'm taking.
Q. And what matter is it that Keith and Mr. Breiner
represent you on?
A. Alleged gambling. Promotion of gambling case and
racketeering case.
Q. And is that a case that's currently pending in
the Circuit Court here in Hawaii?
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A. Yes, it is.
Q. And you were indicted in that case?
A. Twice, yes.
Q. Okay. And there's a pending case right now?
A. Yes, there is.
Q. What's the status of that case? Is it set for
motions or --
A. Yes. But right now we're waiting for a July --
an August 9th court date where we've submitted a Rule 48
motion for a violation of the right to speedy trial.
Q. Okay. And you understand you have that matter
presently and you don't have to talk about anything
regarding that if you choose not to.
A. Yes, I understand.
Q. Were you privy to some communications between
Kathy Kealoha and Myles Breiner?
A. Yes. Privy in the sense that --
Q. Did you learn --
A. -- Myles --
Q. -- of them in some way?
A. Yes.
Q. How did you learn of them?
A. Myles relayed the information to us.
Q. What did Myles tell you about Kathy Kealoha?
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A. He -- there was information that she was giving
of upcoming Grand Jury and indictments. She gave us
the -- gave him the names of the people who were -- they
were going to be taking the Grand Jury and seeking
indictments on. She gave him the dates of when it would
be.
Q. Now, when you say Grand Jury indictments, were
those Grand Juries that would be returned in the State
court?
A. Yes.
Q. Not a Federal Grand Jury?
A. Not a Federal Grand Jury, no.
Q. And Ms. Kealoha -- when you say Kathy Kealoha,
you're referring to Kathy Kealoha, Deputy Prosecutor?
A. Yes.
Q. And do you know her by some other name?
A. I know her real name is Katherine, yeah.
Q. But you call her what?
A. I refer to her as Kathy.
Q. Why do you call her Kathy?
A. That's what the attorneys address her as, Kathy.
Q. Do you know her personally?
A. Not personally. But during the first -- back
when I was first indicted along with eight other people,
when we would appear at the hearings, she would actually
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come up and give me hugs, you know, prior to the
proceedings or after the proceedings.
Q. She would hug you in court?
A. You know, as a way of greeting. I mean, locally
we do do that, and she treated me in that manner, so --
But outside of -- or any previous relationship or
outside of the case, no. No type of relationship.
Q. Was it unusual for her to hug you?
A. Hmm. I would say I -- sort of, yeah. I mean,
like I said, locally we're here -- I mean, it's
something, a custom that we do to friends and so --
Q. Did you regard her as a friend?
A. I wouldn't say that, no.
Q. What would you say?
A. I mean, I knew she was -- from comments or things
that were coming out, that she presented to be acting
like a friend. But based on what I knew and the actions
that she was taking, no, I didn't consider her as a
friend.
Q. And when you say comments, who was making
comments?
A. The information I was receiving from Myles that
was being relayed from her.
Q. What did Myles tell you that Kathy said?
A. Like I said, she gave him information on upcoming
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Grand Jury indictments -- Grand Juries. Who the
suspects they were looking at.
At one time, she gave him the name of a -- I
don't know what the difference is between a confidential
informant or a cooperating witness. She released the
name to him. It's somebody that I know that I actually
had previously been really good friends with, but had a
big falling out with as far as business-wise. And when
that information came to me, I mean -- I mean, I have a
background in working in law offices as a legal
investigator or paralegal. I mean, I've worked on
murder cases, assaults, personal injury, accidents
cases, stuff like that. So, I kind of know some stuff.
And it just blew me away to know that she would
go as far as releasing the name of a CI when I know that
people can get murdered for that.
Q. Did you hear her tell Myles --
A. No.
Q. -- the name?
A. No, I did not.
Q. How did you get the information?
A. Myles gave me the name and said that this
person -- if you want me to mention the name, it's Glenn
Haraguchi was cooperating in my case.
And personally, I just took it as her trying to
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bait me into going out and doing something to him.
Which I had no interest in doing it because this guy has
a long history of getting involved in all kinds of
crimes and flipping over and cooperating, so --
Q. So, the information that Katherine Kealoha was
passing to Myles Breiner related to cases that were not
associated with you?
A. It's -- these are cases related to me.
Q. Case that are related?
A. It is related to my case directly, yeah.
Q. Okay. Did you --
A. And my co-defendants.
Q. Did you think it was part of plea negotiations?
A. No. Me and others, we felt that what she was
trying to do -- because Myles had mentioned to me that
she had contact him, you know, on several cases asking
him to represent her and her husband, Louis, for the
investigation that's going on with you guys.
And first thing I told him was, I says Myles,
does she not understand Rule No. 1 of conflicts, and he
goes -- he laughed and he said evidently not.
And I mean, that's basically -- what was your
question again?
Q. How you got the information.
A. Yeah. I mean, so through -- it was through him
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relaying information to us. And like I said, we felt
that she was doing that as a way to butter him up or get
his confidence or whatever, so that he would come on and
represent her. And then we discussed that.
And Myles, knowing that I want -- I feel that the
prosecutor in this case, her boss, you know, has been
taking vindictive, malicious-type action against me, you
know, selectively, said that he felt that his
relationship with the communication channel he had with
her would be able to assist me in ultimately taking
Keith Kaneshiro down.
Q. In you taking Keith Kaneshiro down?
A. Yeah. You know, getting -- getting people in the
position where they reveal things going on in the
Prosecutor's Office that they knew that we probably
didn't know or would help to prove things that we
suspected was going on.
Q. So, let me see if I understand you. You're
saying that Myles' position was that he was going to
represent Kathy --
A. Uh-huh.
Q. -- so that she would then be able to assist
you --
A. He said he would be able to get -- through that
relationship, he would be able to get valuable
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information that could help me to ultimately get the
target that I wanted.
Q. And the target you wanted was Keith Kaneshiro?
A. There's a few of them, but I said if I had to
pick and choose, the ultimate one that I know is pulling
the strings is Keith. And I said, you know, in that
sense -- I mean, that's how the relationship went.
Q. Why do you believe that there is a Federal
investigation of Kathy Kealoha?
A. From what we hear on the news and --
Q. And when you say we, to whom do you refer?
A. Well, for me, it's like from what I hear on the
news and from like various other sources.
Q. What other sources?
A. Like news reporters and --
Q. Do you talk to news reporters?
A. -- it's on the news.
Yes, I do.
Q. Anyone in particular?
A. If I don't need to say, I'd rather not say.
Q. Did there come a time -- so, you're saying all of
your information initially came from news reports?
A. No. Myles.
Q. From Myles?
A. Yes.
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Q. What did Myles tell you about the investigation?
A. Wait, now. If you ask me how I initially found
out, I can't remember if it was through the news or
through Myles. I couldn't tell you that specifically.
Q. Did there come a time, though, that you talked to
Myles about this?
A. About --
Q. When Myles told you something about an alleged
Federal investigation of Kathy Kealoha.
A. Well, he discussed it with me and discussed the
chance or scenario that he may take on the
representation. That, you know, she's been trying to --
numerous times approached him to represent her and the
Chief. And he, you know, asked my feelings about it and
he told me that --
Q. Well, did you already have an attorney-client
relationship with him at that stage?
A. Yes. Yes.
Q. And did you agree to waive any conflict?
A. After the meeting with Keith Kaneshiro -- I mean,
Keith Kiuchi, myself and Myles, I ended up signing a
waiver of conflict.
Q. A waiver of conflict --
A. For him to represent me and Kathy at the same
time. Representing me in my case, which is technically
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not related to the case that Kathy's going through. But
the conflict being that she also is involved in my case.
She's the prosecutor in the case.
Q. She's the prosecutor in your case?
A. She's conducting the Grand Jury, yes.
Q. And has she been making court appearances in your
case?
A. No. From what I understand, she's been removed
from the case.
Q. She's not on the case any more?
A. From what I understand.
Q. How do you understand that?
A. From Myles again.
Q. When did he tell you that?
A. Exactly -- exact date, I don't know. But the
pretrial hearings that we've been going through, the
arraignment and so forth, she has no longer been on
there.
And I think if I remember correctly, the
prosecutor that was -- that did appear did mention that
Kathy is not on the case.
Q. Did you receive any information from Mr. Breiner
regarding potential witnesses that were appearing in the
Federal Grand Jury?
A. No.
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Q. Did you learn at some stage that Keith Kaneshiro
was going to go to the Federal Grand Jury?
A. Yes. Actually, yes, I did.
Q. So, when you said no before, that was not
correct?
A. Yes. No, I learned from Myles that Keith -- the
day that Keith was going to appear in the Grand Jury, I
learned it from him and he had heard that from Kathy.
Q. So tell me how that went.
A. I believe we were sitting in a meeting. That
might have been the meeting where -- oh, I can't
remember that exactly. We were talking -- I believe I
was sitting in the office with him at that time.
Q. And when you say we --
A. I'm not sure.
Q. -- does that mean Mr. Breiner and you?
A. Mr. Breiner and myself.
Q. Was Keith there?
A. No. I can't exactly recall, but I know Keith was
apprised of that pretty much right away.
And I mean, I'll just wide open tell you because
I know that they're making allegations against you
leaking information.
And I immediately called the media to let them
know that Keith was going to be going to Grand Jury
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because what I was trying to do is get into his head of
him looking at that and saying there's rats in his
office.
Q. So, let's see if we can flesh this out a little
bit.
A. Uh-huh.
Q. You were present with Mr. Breiner and he told you
that Keith Kaneshiro was going to the Federal Grand
Jury?
A. That morning.
Q. And did he tell you where he got that information
from?
A. Kathy.
Q. And Kathy is --
A. Kealoha.
Q. -- Kathy Kealoha.
A. Yes.
Q. And do you know, did he tell you where Kathy
Kealoha got that information?
A. No. But one of the other things that came up on
that date is the day that Keith -- that first time that
Keith got called into the Grand Jury, I was also told
that's how it came about, is Myles informed me that
before he left the office, he ordered Kathy Kealoha to
make sure that our arrest warrants were executed that
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day. That day was like -- I believe it was May 24th,
around there.
Because on February 24th is when the indictment
happened. For whatever reason, they sat on the
indictment for three months.
And the morning that he got summoned to the Grand
Jury, for whatever -- it really strikes me very hard
because like through all of that, with all of that going
on, he thinks of me. To go out and execute the arrest
warrants on us. And he gave Kathy a direct order that
he wants it done today and --
Q. How do you know that Keith gave the order to
Kathy?
A. This is what Myles told us. And in that
conversation, he mentioned -- like I said, he mentioned
that Keith would be appearing in the Grand Jury that
day.
Q. And when you learned that from Myles, that Kathy
had told him that Keith Kaneshiro was coming to the
Federal Grand Jury, what did you do?
A. I notified Keith Kiuchi, my attorney and I
also -- like I said, I called the media to let them
know. Like I said, I was playing a game to -- that when
he sees the cameras there waiting for him, that he knows
that there's somebody leaking information to them and I
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just -- like I said, I wanted to cause discord within
his office.
Q. You said you wanted to get into his mind?
A. Yeah.
Q. That there was a rat in his office?
A. Yes. Yes.
Q. Who did you view as the rat?
A. I don't know.
Q. Okay.
A. Oh, I mean, I do know. But like I said, whether
he would have been able to figure out or not didn't
matter to me at the time. It's just to cause that
disruption in his brain.
Q. And who did you view as the rat?
A. Well, I knew who that was.
Q. Who was that?
A. Kathy Kealoha.
Q. And how many media outlets did you contact?
A. One.
Q. Okay. And did that contact with the media outlet
bear any fruit?
A. Yes, they got him one time coming in.
Q. And did you see --
A. Well, they got kind of a bad shot because he
had -- that's the day he snuck into the car and came in
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through the downstairs.
Q. And did you discuss how Mr. Kaneshiro was going
to come into the building or did anybody tell you that?
A. No, we didn't -- we didn't know that and the
media didn't realize that. And like I said, they said
we got a pretty, you know, weak or bad shot of him
because he snuck in with a car.
Q. And do you know whose car he came in?
A. No.
Q. And after it occurred, did you have a discussion
with anybody about this?
A. Furthermore with Keith and more than likely with
my parents.
Q. With your parents?
A. Yeah.
Q. Did you discuss any other witnesses who might be
coming to the Grand Jury?
A. No, but I --
Q. Did --
A. But I do know -- I did hear that Deputy Chief --
whatever her name is -- McCauley. The reason they knew
that she was going to be in there is because she had
gone around the office and talked to various people at
HPD telling them that she was going to be appearing.
Q. How did you learn that information?
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A. Honestly, I can't exactly remember where that
source came from, but I got -- I mean, I got a lot of --
I know quite few people.
Q. So, are you saying that before Deputy Chief
McCauley appeared in the Grand Jury, you had heard that
she was around her office talking about that?
A. Yes, she made it known that she was going to be
appearing in Grand Jury.
Q. And so somebody that you have contact with at the
police department told you that?
A. It wasn't from HPD, it was from somebody else
that I had contacts there. I mean, I have numerous, but
it wasn't directly from them.
Q. It wasn't direct from police to you, but some
other contact you had?
A. Yeah.
Q. Why were you monitoring what was happening at the
Federal Grand Jury?
A. Because I was -- I'm hoping that it would --
because of you guys looking at civil rights violations
and Kathy being involved in so much of it, and the ties
and some of the things that we've heard of the
relationship between Keith and Kathy, that sooner or
later things would mesh together and spill over here.
And like I said, you know, ultimately I'd like to
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see Kaneshiro go down for the action that he's taken
against me.
Q. You have animosity against Keith Kaneshiro.
A. Yeah. I mean, whether you guys know or not, I
mean, this is the largest indictment in Hawaii's history
and it got tossed. I mean, there's indisputable
evidence of wrongdoing, criminal wrongdoing by Kathy,
the Deputy Jake Delaplane, as well as some of the
officers in HPD and --
Q. And you said that there's a relationship between
Kathy and Keith. What did you mean by that?
A. Again, it comes from inside information in the
Prosecutor's Office that Kathy was in the case -- I
believe in our case was going to take -- going to be the
fall guy for Keith, and that Keith -- I mean, Kathy gets
assigned a lot of the dirty work such as, you know,
going in to get the case dismissed for the speeding
tickets. But her and Keith -- you know, she gets
special favors from him for the work that she does.
Q. Like what do you mean by that?
A. Like going in and lying in our Grand Jury to get
our indictments, presenting false evidence, proffering
perjury from her from the witnesses.
From what I understood from Myles, Kathy had a
written letter authorizing her to go into court to have
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that individual's speeding ticket dismissed.
Q. What do you mean she had a written letter?
A. One of the things Myles discussed to me about,
you know, the strategic relationship or -- excuse me --
I may be able to get valuable information that would
ultimately lead to -- hopefully, lead to Keith getting
indicted also, he mentioned that the case where Kathy
went into court to ask to have a defendant's speeding
ticket dismissed claiming that there was some career
criminal that was impersonating the driver.
And that he mentioned that Kathy had told him
that she had a written letter from Keith authorizing --
I don't know if it was directing her or authorizing her
to go do -- my thinking, that it was a letter
authorizing her to go into the court to take that
action.
And the reason I say that is because from what I
understand, that the defendant had business ties to
Kathy, not Keith.
Q. Why would Keith write such a letter?
A. In my opinion -- I mean, he does a lot of things
that he shouldn't do, that anybody with any sense
wouldn't be doing. So, really, I don't know.
Q. Why did Myles tell you this?
A. I guess -- my gut feeling is that he was trying
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to convince me to allow him to represent her while
representing me. And I don't know why it is where they
have some type of, you know, special friendly
relationship, but --
Q. What do you mean by that?
A. But I think it was being -- the information was
being relayed to me to convince me to -- like I say, I
can get this. This is stuff I can get.
Q. You think Mr. Breiner was trying to convince you
of that?
A. To make me comfortable with and accept the
situation where he'd be representing Kathy and myself.
Q. And you said you signed a waiver. Were you
comfortable with that?
A. At that time I hadn't signed the waiver yet.
Q. Okay. But then at some stage you did become
comfortable.
A. Because at that point he hadn't made the official
announcement that he was actually counsel. I mean, that
he had gone on record as counsel for the Chief and his
wife.
Q. When did Mr. Breiner first tell you that he was
contemplating representing the Kealohas?
A. I would say probably close to two months before
he actually leaked it and became publicly known where he
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basically filed his notice of appearance.
Q. And did he disclose to you what his conversations
were with Katherine Kealoha?
A. Some of the stuff that I'm telling you now, yes.
Q. Anything else that you recall?
A. No. So, some of it was relayed to me, that it
was coming through as text messages to her and like I
had relayed to -- I can't remember which one of them --
that, you know, with the text messages there wasn't much
need for witnesses because the retrieval of text
messages would speak for itself.
Q. And when you just said which one of them, you
gestured towards the two FBI agents --
A. Yes.
Q. -- who are here?
A. Caryn and Nicole. I can't remember which.
Q. That's fine. But you had mentioned to them that
there were text messages?
A. I think there's both of you on the call, right?
Q. The telephone conversation? The telephone
conversation?
A. Yeah.
Q. And Myles told you that his communications with
Katherine were by text?
A. A lot of them were.
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