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United States v. Farrar

United States District Court, D. Hawaii

September 25, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DOUGLAS S.K. FARRAR, JR., Defendant.

          ORDER NUMBER ONE ON GOVERNMENT'S PRETRIAL MOTIONS

          HELEN GILLMOR STATES DISTRICT JUDGE

         Defendant 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 isomers;
and
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).

         The 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.

         Defense 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).

         Defense 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.

         The Government's MOTION IN LIMINE (ECF No. 29) is GRANTED AS TO ARGUMENTS ABOUT ALLEGED IMPROPER PROSECUTION AND PRE-INDICTMENT DELAY.

         I. Defense Counsel May Not Make Statements Or Arguments To The Jury About The Prosecution's Discretionary Decisions, Any Alleged Improper Prosecution Or Pre-Indictment Delay

         Defense 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 the jury.

         The 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 discretion.
United States v. Armstrong 517 U.S. 456

         A 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.

         The 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 ...


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