United States District Court, D. Hawaii
ORDER GRANTING UNITED STATES' MOTION IN LIMINE TO
EXCLUDE EXPERT TESTIMONY, ECF NO. 394
Michael Seabright, Chief United States District Judge
United States seeks an order in limine excluding Dr.
Elizabeth Loftus (“Loftus”) from testifying as an
expert witness regarding the corruption of memory and related
topics, pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993)
(“Daubert I”). ECF No. 394. On March 6,
2019, the court held an evidentiary hearing, with Loftus as
the sole witness. For the reasons set forth below, the motion
First Superseding Indictment (“FSI”) charges
Defendant Gordon Shiraishi (“Shiraishi”) with
several offenses alleging that he provided material false
statements concerning the time of day on June 22, 2013 that
former Honolulu Police Department (“HPD”) Chief
Louis Kealoha (“Kealoha”) telephoned him and
reported that his home mailbox had been stolen. In
particular, Shiraishi is alleged to have repeated the same
general false statement - that he received a phone call from
Kealoha around 9 a.m. on June 22, 2013 and then called HPD
Lieutenant Derek Hahn and directed Hahn to send a technician
to the Kealoha residence - on four separate occasions: 1) on
April 30, 2015 before the Honolulu Ethics Commission
(“Ethics Commission”), FSI at ¶ 37uu, ECF
No. 164; 2) on November 16, 2015 to the FBI, FSI at
¶ 37vv & count 10; 3) on January 6, 2016 to the FBI,
FSI at ¶ 37yy; and 4) on January 7, 2016 to a federal
grand jury, FSI ¶ 37zz & count 3. Shiraishi now
seeks to introduce expert testimony concerning the
malleability of memory. The court begins with a description
of the specific statements allegedly made by Shiraishi on
each of these four dates.
the April 30, 2015 Ethics Commission interview, Shiraishi
stated that his phone call with Kealoha “was in the
morning time, I think, about around 9 or after; 9 a.m[.],
sorry.” ECF No. 445-2 at Page ID # 3827
(79:22-23).When subsequently asked, “[t]he Chief
called you about 9 a.m.?” Shiraishi responded,
“[a]round there or maybe after. Wasn't like early
in the morning.” Id. at Page ID # 3828
November 16, 2015 FBI interview is memorialized in an FBI
302, which states in part that “[o]n June 22, 2013,
SHIRAISHI learned the mailbox was stolen. SHIRAISHI was at
home, as it was a Saturday. [Kealoha] called SHIRAISHI about
9:00AM to inform him about the mailbox . . . .” ECF No.
445-3 at PageID # 3832.
January 6, 2016, the day prior to his scheduled grand jury
appearance, FBI special agent Nicole Vallieres
(“Vallieres”) interviewed Shiraishi. Although no
FBI 302 appears to have been generated, the government
submitted Vallieres' handwritten notes from that
interview. ECF No. 477-1. At the very beginning of the notes
(that is, on the top of the first page), Vallieres wrote:
First aware of alleged mbx theft
- Sat morning - contacted by Chief thru cell [phone number
redacted] @ home watering lawn - @ 9:00 ish
Id. at PageID # 4162. On the third page of her notes
(that is, later during the interview), she wrote:
[form shown (Niall Silva)]
- recovered footage on 6/22/13 at 0859 hrs at Chief's
- understands he must have been made aware of stolen mbx
Id. at PageID # 4164. The parties agree that the
Niall Silva “form” shown to Shiraishi on January
6, 2016 refers to a July 1, 2013 “Honolulu Police
Department Follow Up Report” completed by former HPD
Corporal Niall Silva (“Silva follow-up report”).
In that report, Silva states he recovered video footage from
the Kealoha residence “on 06/22/13 at about 0859
hours.” ECF No. 445-4. The parties also agree that the
Silva follow-up report is false. Specifically, the parties
agree that Silva lied on this report, and in fact he did not
recover video footage from the Kealoha residence “at
about 0859 hours” on June 22, 2013.
January 7, 2016, Shiraishi testified before Grand Jury 15-1,
and was again shown Silva's follow-up report. ECF No.
445-10. But before being shown the Silva follow-up report,
Shiraishi testified as follows:
Q Did there come a time on or about the 22nd day of June,
2013, a Saturday, when you became aware of an incident that
occurred at Chief Kealoha's house?
Q Tell us about that.
A I was - it was a Saturday, so I was off duty. And this was
in the morning time, 9:00 - after 9:00 or before 9:00 I
can't tell you the exact time. But it was in the morning,
and I was watering my yard. I remember that, and I received a
phone call from the Chief.
Id. at PageID # 4052 (11:13-22).
after Shiraishi was shown the Silva follow-up report,
Shiraishi testified in the grand jury as follows:
Q I'm now showing you what's been previously marked
as a Grand Jury Exhibit as NS-2. Would you take ...