United States v. Kaneshiro
| Docket Number | Cr. 22-00048 JMS-WRP |
| Decision Date | 02 May 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. KEITH MITSUYOSHI KANESHIRO (1), DENNIS KUNIYUKI MITSUNAGA (2), TERRI ANN OTANI (3), AARON SHUNICHI FUJII (4), CHAD MICHAEL MCDONALD (5), SHERI JEAN TANAKA (6), Defendants. |
| Court | U.S. District Court — District of Hawaii |
ORDER DENYING DEFENDANT SHERI J. TANAKA'S MOTION TO DISMISS COUNT TWO OF FIRST SUPERSEDING INDICTMENT, ECF NO 165, AND DENYING RELATED SUBSTANTIVE JOINDERS, ECF NOS. 179 180, 181, 182, & 183
The court addresses three legal issues that Defendant Sheri Jean Tanaka raises in her Motion to Dismiss Count Two of the First Superseding Indictment (“FSI”), ECF No. 165. One, does 18 U.S.C. § 241[1] encompass the right to file a lawsuit in federal court? Two, is § 241 unconstitutionally vague, as applied to Defendant Tanaka? And three, does the FSI sufficiently allege a seizure under the Fourth Amendment? As set forth below, the court DENIES the Motion as to issues one and three but determines that it is premature at this time to rule on issue two.
The FSI alleges two counts against Defendants Keith Mitsuyoshi Kaneshiro (“Kaneshiro”), Dennis Kuniyuki Mitsunaga (“Mitsunaga”), Terri Ann Otani (“Otani”), Aaron Shunichi Fujii (“Fujii”), Chad Michael McDonald (“McDonald”), and Sheri Jean Tanaka (“Tanaka”) (collectively, “Defendants”). First, the FSI alleges that Defendants conspired to commit honest services fraud and federal program bribery under 18 U.S.C. § 371, and second, that they conspired against civil rights in violation of 18 U.S.C. § 241. ECF No. 70.
In sum, the FSI alleges as follows: from the years 2012 to 2017, Defendants Mitsunaga, Otani, Fujii, McDonald, and Tanaka, were agents of Mitsunaga and Associates, Inc. (“MAI”) (collectively referred to as “MAI Defendants”), and Kaneshiro was the elected Prosecuting Attorney for the City and County of Honolulu. Id. at PageID.168-169. The MAI Defendants contributed, and Kaneshiro accepted, over $45,000 in campaign contributions, id. at PageID.171, and in return Kaneshiro agreed to use his official position to investigate and prosecute former MAI employee, LJM. Id.
According to the FSI, MAI hired LJM as a project architect. Id. at PageID.169. In November 2011, after voicing disagreements with Mitsunaga, MAI terminated LJM. Id. LJM filed a discrimination claim with the United States' Equal Employment and Opportunity Commission (“EEOC”)-and later in federal court-alleging violations of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”). The FSI alleges in part that the MAI Defendants engaged in acts of bribery so that Kaneshiro would maliciously investigate and prosecute LJM as a form of retaliation against her for suing MAI in federal court, and as an effort to interfere with her rights to litigate those claims in federal court. See ECF No. 70.
On September 8, 2022, the grand jury charged Defendants in the FSI in Count 1 with conspiracy, under 18 U.S.C. § 371, to commit Honest Services Wire Fraud in violation of 18 U.S.C. §1343 and 18 U.S.C. § 1346, as well as Federal Program Bribery in violation of 18 U.S.C. § 666(a)(2) and 18 U.S.C. § 666(a)(1)(B). ECF No. 70 at PageID.173-174. The grand jury also charged Defendants in Count Two as follows:
Beginning in or around October 2012, and continuing through in or around October 2017, within the District of Hawaii and elsewhere, [Defendants] did knowingly and intentionally conspire and agree with each other, and with others known and unknown to the grand jury, to injure, oppress, threaten, and intimidate L.J.M., who was at that time present in the State of Hawaii, in the free exercise and enjoyment of rights secured to her by the Constitution and laws of the United States, and because of her having so exercised the same, namely, the right under the Fourth and Fourteenth Amendment to be free from unreasonable seizures by one acting under color of law, and the right to file a lawsuit in federal court alleging claims under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, in violation of Title 18, United States Code, Section 241.
On February 24, 2023, Tanaka filed-and all other Defendants subsequently joined-the present Motion to Dismiss Count Two of First Superseding Indictment “for failure to state an offense pursuant to Federal Rule of Criminal Procedure 12(b)(3)(A).” ECF No. 165 at PageID.703. The United States filed a Response on April 3, 2023, and Tanaka filed a Reply on April 17, 2023. ECF Nos. 171 & 189. A hearing was held on April 27, 2023.
Federal Rule of Criminal Procedure 12(b)(3) permits “defenses, objections, and requests” “raised by pretrial motion” if “the motion can be determined without a trial on the merits.” A motion to dismiss is generally “‘capable of determination' before trial if it involves questions of law rather than fact.” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986).
Rule 12(b)(3)(B)(v) provides that a party may object to the indictment due to a “failure to state an offense.” “On a motion to dismiss an indictment for failure to state an offense, the court must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002) (citing United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996)).
Although the court accepts the allegations in the indictment as true, it is not entitled to make additional factual determinations.
Under this standard, the district court must decide the issue raised in the pretrial motion before trial if it is entirely segregable from the evidence to be presented at trial. If the pretrial claim is substantially founded upon and intertwined with evidence concerning the alleged offense, the motion falls within the province of the ultimate finder of fact and must be deferred. Finally, if an issue raised in a pretrial motion is not entirely segregable from the evidence to be presented at trial, but also does not require review of a substantial portion of that evidence, the district court has discretion to defer decision on the motion.
Shortt Accountancy Corp., 785 F.2d at 1452 (internal citations and quotation marks omitted). See also Fed. R. Crim. P. 12(d); Notes of Advisory Committee on Fed. R. Crim. P. 12(b)(4).
The court addresses the three issues raised by Tanaka in turn.
Section 241 states that a “conspiracy against rights” occurs when “two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State . . . in the free exercise or enjoyment of any right or privilege secured to him [or her] by the Constitution or laws of the United States.” 18 U.S.C. § 241. Tanaka argues that the “right to file a lawsuit in federal court”-as alleged in the FSI-is not a “substantive right” but rather a “judicial remedy” that is not covered by § 241. See ECF No. 165-1 at PageID.715-725. The court disagrees and finds that § 241 protects against conspiracies involving the right to bring a lawsuit under both Title VII and the ADEA.
Although the plain language of § 241 protects the free exercise or enjoyment of “any” right secured by the constitution or laws of the United States, the Supreme Court has limited the scope of what constitutes a recognized right under § 241 to rights made specific by the express terms of the constitution or laws of the United States, or by...
To continue reading
Request your trial