United States District Court, D. Hawaii
ORDER AFFIRMING MAGISTRATE JUDGE ORDER DENYING
DEFENDANT GORDON SHIRAISHI'S REQUEST FOR GRAND JURY
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
Gordon Shiraishi (“Shiraishi”) appeals an order
of Magistrate Judge Richard L. Puglisi denying his motion to
unseal the grand jury transcript of FBI Special Agent Nicole
Vallieres (“Vallieres”) before Grand Jury 17-1.
Shiraishi claims that disclosure of the transcript may show
that the grand jury was never informed that a document shown
to him before a prior grand jury was later determined to be
false. And, if so, presumably Shiraishi would file a motion
based on allegations of prosecutorial misconduct that may be
grounds to dismiss the First Superseding Indictment
(“FSI”). Because Shiraishi cannot demonstrate the
particularized need required to overcome the presumption of
secrecy that attaches to grand jury proceedings, the
Magistrate Judge's order denying Shiraishi's motion
to compel disclosure of Vallieres' testimony before Grand
Jury 17-1 is AFFIRMED.
January 24, 2019, Shiraishi filed a Second Motion to Compel
(“Motion”). ECF No. 336 (sealed version); ECF No.
350 (redacted version). The government filed a Response on
January 25, 2019. ECF No. 346. Shiraishi filed a Reply on
February 13, 2019. ECF No. 404. The government filed a
Supplemental Response on February 15, 2019, to which
Shiraishi filed a Sur-Reply on February 19, 2019, ECF Nos.
415, 417. On February 22, 2019, Magistrate Judge Richard L.
Puglisi held a hearing and, upon the conclusion of that
hearing, denied the Motion. ECF No. 427. Shiraishi filed this
Appeal on March 8, 2019, ECF No. 491, and the government
filed a Response on March 18, 2019. ECF No. 509. A hearing on
the Appeal was held on March 25, 2019.
jury records filed with the clerk of court and available to
the public show that the initial Indictment against Shiraishi
and others was returned by Grand Jury 15-1 on October 19,
2017. But the operative Indictment, the FSI, was returned on
March 22, 2018 by a different grand jury, Grand Jury 17-1.
charges 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 Shiraishi and reported
that Kealoha's 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.
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 (80:1-2).
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, 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
@ 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