United States District Court, D. Hawaii
ORDER DENYING KATHERINE AND LOUIS KEALOHAS'
MOTION TO DISMISS THE INDICTMENT, ECF NO. 312, AND DENYING
RELATED JOINDERS, ECF NOS. 364, 365
Michael Seabright Chief United States District Judge
Katherine Kealoha and Louis Kealoha (collectively,
“Kealohas”) filed a Motion to Dismiss the
Indictment on January 11, 2019, based on allegations
of prosecutorial misconduct in grand jury proceedings. ECF
Nos. 312, 312-1. The government filed its Response in
Opposition to the Motion to Dismiss the Indictment on January
25, 2019. ECF No. 344. On January 31, 2019, both Defendant
Derek Wayne Hahn (“Hahn”) and Defendant Minh-Hung
Nguyen (“Nguyen”) filed Joinders in the Motion to
Dismiss the Indictment. ECF Nos. 364, 365. A hearing was held
on February 11, 2019.
the court finds no prosecutorial misconduct that would
warrant dismissal of the Indictment, the court DENIES: (1)
Kealohas' Motion to Dismiss the Indictment; (2)
Hahn's Joinder; and (3) Nguyen's Joinder.
federal court may dismiss an indictment for either: (1)
constitutional error; or (2) under the exercise of its
inherent supervisory authority, based on (with some
limitations) its own “procedural rules not specifically
required by the Constitution or the Congress.” Bank
of Nova Scotia v. United States, 487 U.S. 250, 254
(1988) (internal citation and quotation marks omitted);
see also United States v. Caruto, 663 F.3d 394, 397
(9th Cir. 2011). Generally, however, an indictment valid on
its face cannot be challenged on the ground that the grand
jury acted on inadequate or incompetent
evidence. United States v.
Calandra, 414 U.S. 338, 343-45 (1974); United States
v. Renzi, 651 F.3d 1012, 1027 (9th Cir. 2011).
ground for dismissal of an indictment for constitutional
error is a due process violation based on outrageous
government conduct, which requires that “defendants . .
. show conduct that violates due process in such a way that
it is so grossly shocking and so outrageous as to violate the
universal sense of justice.” United States v.
Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011) (internal
citation and quotation marks omitted). “The defense is
therefore limited to extreme cases in which the
government's conduct violates fundamental
fairness.” Id. (internal citation and
quotation marks omitted).
of an indictment under the court's inherent supervisory
authority “is appropriate only if it is established
that the violation substantially influenced the grand
jury's decision to indict, or if there is grave doubt
that the decision to indict was free from the substantial
influence of such violations.” Bank of Nova
Scotia, 487 U.S. at 256 (citation and internal editorial
marks omitted); see also United States v. Navarro,
608 F.3d 529, 539 (9th Cir. 2010). This standard requires a
harmless-error inquiry unless “the structural
protections of the grand jury have been so compromised as to
render the proceedings fundamentally unfair, allowing the
presumption of prejudice.” Bank of Nova
Scotia, 487 U.S. at 257 (listing two examples of
structural error: Vasquez v. Hillery, 474 U.S. 254
(1986), where there was racial discrimination in grand juror
selection; and Ballard v. United States, 329 U.S.
187 (1946), where women were excluded from the grand jury).
Kealohas argue that an Assistant United States Attorney
(“AUSA”) engaged in misconduct during grand jury
proceedings by having an FBI agent inform the grand jury that
Gerard Puana (“Puana”) had passed a polygraph
examination. ECF No. 312-1 at 2. The Kealohas also
essentially argue that the AUSA engaged in misconduct when
the AUSA “allowed” a grand juror to ask whether
Katherine Kealoha's grandmother's home was foreclosed
upon. See ECF No. 312-1 at 3. In his joinder, Hahn
further argues that the government perpetuated its misconduct
by including information about the polygraph results in
Hahn's and Nguyen's Criminal Complaints. ECF No. 364
the test first articulated in Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), the Ninth Circuit has
historically “expressed [its] hostility to the
admission of unstipulated polygraph evidence . . . [which]
culminated in the adoption of a ‘bright line rule'
excluding all unstipulated polygraph evidence offered in
civil or criminal trials.” United States v.
Cordoba, 104 F.3d 225, 227 (9th Cir. 1997)
(“Cordoba I”) (citations omitted).
However, after Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) found that Federal Rule of
Evidence 702 (and not Frye) governed admission of
scientific expert testimony, the Ninth Circuit held that
“[t]he per se Brown rule excluding
unstipulated polygraph evidence [was] inconsistent with the
‘flexible inquiry' assigned to the trial judge by
Daubert.” Cordoba I, 104 F.3d at 227.
Subsequently, a number of district courts have conducted this
“flexible inquiry” and excluded polygraph
evidence at trial, and the Ninth Circuit has affirmed those
rulings. See, e.g., United States v.
Seideman, 485 Fed.Appx. 190, 194 (9th Cir. 2012)
(unpublished); United States v. Benavidez-Benavidez,
217 F.3d 720, 725 (9th Cir. 2000); United States v.
Cordoba, 194 F.3d 1053, 1063 (9th Cir. 1999)
said, the Federal Rules of Evidence do not apply in the
context of grand jury proceedings, except for privilege
protections. See Fed. R. Evid. 1101(d)(2).
Accordingly, neither the old “bright line” rule
nor Daubert applies here. See Brown v.
Darcy, 783 F.2d 1389, 1394, 1396 n.13 (9th Cir. 1986),
overruled by Cordoba I; Daubert, 509 U.S.
at 587-88. Further, federal courts have, at least in some
instances, allowed the results of polygraph examinations to
be presented to grand juries. See 1 Fed. Grand Jury
§ 7:14 (2d ed.) (“[A] grand jury can hear evidence
that could not be admitted at trial. ...