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United States v. Shiraishi

United States District Court, D. Hawaii

April 2, 2019

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

          ORDER AFFIRMING MAGISTRATE JUDGE ORDER DENYING DEFENDANT GORDON SHIRAISHI'S REQUEST FOR GRAND JURY TRANSCRIPT

          MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         Defendant 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.

         I. BACKGROUND

         A. Procedural Background

         On 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.

         B. Factual Background

         Grand 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.

         The FSI 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;[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.

         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). 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, 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 ...

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