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United States v. Shiraishi

United States District Court, D. Hawaii

March 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GORDON SHIRAISHI (5), Defendant.

          ORDER GRANTING UNITED STATES' MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY, ECF NO. 394

          J. Michael Seabright, Chief United States District Judge

         The 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 is GRANTED.

         I. BACKGROUND

         The 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;[1] 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.[2] 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.

         During 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).[3]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 (80:1-2).

         The 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.

         On 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 house
- understands he must have been made aware of stolen mbx before that

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.

         On 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?
A Yes.
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).

         Later, 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.[4] Would you take ...

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