United States District Court, D. Hawaii
ORDER NUMBER ONE ON GOVERNMENT'S PRETRIAL
GILLMOR STATES DISTRICT JUDGE
Douglas S.K. Farrar, Jr. is charged in the Indictment (ECF
No. 1), filed April 19, 2018, with one count, as follows:
Beginning at a date unknown to the grand jury, but not later
than May, 2013, and continuing up to and including July 22,
2014, in the District of Hawaii and elsewhere, Defendant
DOUGLAS S.K. FARRAR, JR. did knowingly and intentionally
combine, conspire, confederate and agree with Douglas S.
Farrar, Sr. and Stephen Shigemoto, both charged elsewhere,
and others known and unknown to the grand jury,
to distribute and possess, with intent to distribute, fifty
(50) grams or more, to wit: approximately 14, 404 grams, of
methamphetamine, its salts, isomers, and salts of its
five hundred (500) grams or more, to wit: approximately 3,
998 grams, of a mixture or substance containing a detectable
amount of cocaine, its salts, optical and geometric isomers,
and salts of isomers,
in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A) and 841(b)(1)(B).
Government has filed a number of Motions seeking pre-trial
rulings including Government's Motions in Limine (ECF No.
29), which requests, in part, that the Court issue pretrial
rulings on the Defendant's claims regarding alleged
improper prosecution and alleged pre-indictment delay.
Counsel argues that “the fact that law enforcement and
the Government chose not to indict Defendant Farrar Jr. until
years had passed, and only did so on the eve of Douglas
Farrar Sr.'s trial, is relevant as it reflects law
enforcement's assessment of the veracity of what Stephen
Shigemoto told them about Defendant Farrar Jr. and the
strength of the case against him.” (Def.'s Response
at p. 3, ECF No. 31).
Counsel seeks to make arguments at trial regarding the
Government's decision-making with respect to the
prosecution of this case and the timing of the Indictment
against the Defendant Farrar, Jr.
Government's MOTION IN LIMINE (ECF No. 29) is
GRANTED AS TO ARGUMENTS ABOUT ALLEGED IMPROPER
PROSECUTION AND PRE-INDICTMENT DELAY.
Defense Counsel May Not Make Statements Or Arguments To The
Jury About The Prosecution's Discretionary Decisions, Any
Alleged Improper Prosecution Or Pre-Indictment
Counsel states that he wishes to make statements and
arguments about the prosecution's delay in filing the
Indictment in this case. He also seeks to raise issues with
respect to the prosecution's decisions regarding when to
indict the Defendant in the charged conspiracy. Such
arguments are improper at trial and may not be made before
Attorney General and the United States Attorneys retain
“broad discretion” to enforce the Nation's
criminal laws. Wayte v. United States, 470
U.S. 598, 607 (1985).
As a result, the presumption of regularity supports their
prosecutorial decisions and, in the absence of clear evidence
to the contrary, courts presume that they have properly
discharged their official duties. In the ordinary case, so
long as the prosecutor has probable cause to believe that the
accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in his
United States v. Armstrong
517 U.S. 456
prosecutor's discretion is subject to constitutional
constraints that may be challenged in a motion to the Court
before trial. Id. The burden to establish a
constitutional error in the Government's institution of
prosecution is demanding and requires a criminal defendant to
present clear and convincing evidence. Id.
United States Supreme Court has explained that challenges to
alleged improper conduct by the Government in instituting a
prosecution are “not a defense on the merits of the
criminal charge itself, but an independent assertion that the
prosecutor has brought the charge for reasons forbidden by
the Constitution.” Armstrong, 517 U.S. at 463.
As the challenges are “not a ...