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The grainy surveillance video is crystal clear to defense attorney Myles Breiner. Gerard Puana stole the police chief’s mailbox. There was no frame job.
“It’s a matter of a self-fulfilling prophecy,” Breiner said. “If you believe you see something and you perceive it to be corrupt, the square peg is going to go into the round hole.”
Breiner represents former Honolulu police chief Louis Kealoha and his wife, Katherine, as the U.S. Justice Department continues its investigation into allegations of corruption and abuse of power.
Katherine Kealoha is a high-ranking city prosecutor. In 2013, she accused Puana, who is her uncle, of stealing her mailbox. He was then charged with a federal crime.
At the center of her accusation is a brief clip of surveillance video showing a man in a baseball cap plucking the Kealohas’ mailbox from its pedestal and throwing it inside his car.
Since then, the mailbox case has unraveled, and the Kealohas have been accused to setting up Puana, so that they could gain the upper hand in a family fight over money.
The corruption probe has already resulted in the conviction of one former Honolulu Police Department officer who admitted taking part in the conspiracy. Louis Kealoha, too, retired after he was named as the target of the investigation, although he insists he has done nothing wrong.
But Breiner says the Justice Department’s investigation is a farce. He believes it’s the product of sloppy police work combined with prosecutorial overreach by Assistant U.S. Attorney Michael Wheat, who has been conducting the grand jury investigation.
Though uncommon, it’s not unheard of for federal prosecutors to be accused of overzealous prosecution of high-profile defendants, especially when they’re politicians or other government officials accused of corruption.
In 2009, for instance, a federal judge in Alaska overturned seven felony counts against the late-U.S. Sen. Ted Stevens, who was accused of failing to report more than $250,000 in gifts he had received from an oil contractor on his government ethics forms.
U.S. District Court Judge Emmet Sullivan excoriated prosecutors for not turning over evidence to Stevens’ defense attorneys and presenting false information to the jury that heard the case. He even appointed a special investigator to address his concerns.
At the time, Sullivan said that, in his 25 years as a judge, he’d “never seen anything approaching the mishandling and misconduct that I’ve seen in this case.”
But the Stevens case isn’t the only one. Just last year, the U.S. Supreme Court overturned the corruption conviction of former Virginia Gov. Robert McDonnell due to concerns about the government’s “boundless interpretation of the federal bribery statute.”
And, in Massachusetts, former U.S. Attorney Carmen Ortiz — whose office took on mobster Whitey Bulger and the Boston Marathon bomber — drew criticism for her attempts to take down mid-level politicians and government officials on obscure charges.
Ortiz, who stepped down from her position in January, was also behind the much-maligned prosecution of computer programmer Aaron Schwartz, a co-founder of Reddit, for downloading millions of academic journal articles from a subscription-based digital library without paying the required fee.
Schwartz, who faced up to 35 years in prison and a $1 million fine, killed himself before the prosecution could proceed.
Boston attorney Harvey Silverglate, a longtime critic of Ortiz, says the problem is that federal prosecutors enjoy a wide latitude in deciding when and how to bring a criminal case, and they often overstep their authority.
“There are situations in which prosecutors come in and they target a particular person that they want to get and then try to find some federal statute or regulation that the person violated,” Silverglate said. “The reason that’s dangerous is because the federal statutes are so voluminous — there are so many federal statutes and then many, many thousands of regulations. Under the statutes, a violation of any one of which can constitute the grounds for prosecution.”
Breiner highlights these cases, particularly the one involving Stevens, when attempting to cast doubt on the investigation into the Kealohas.
It’s a convenient argument, albeit one that’s premature, given the fact that the grand jury has yet to issue an indictment. The investigation is nearly two years old, and no one, Breiner himself included, seems to know just how far the allegations go.
“Do I think there was a deliberate effort to set Gerard Puana up? No,” Breiner said. “Do I think that there was inept handling of the investigation? Absolutely. Am I surprised? No. I win a lot of my cases based upon inept handling of evidence and bad police investigations.”
Breiner said the circumstances surrounding the mailbox investigation, as well as a second alleged attempt to frame Puana for breaking into the Kealohas’ garage and smashing a car taillight with a screwdriver, can be chalked up to a misinterpretation of the evidence.
Breiner, however, was unable to provide clear examples other than to say that it was unlikely that so many officers would be willing to risk their careers — or their potentially lucrative pensions — to take part in such a “silly” scheme.
If the Kealohas really wanted to frame Puana, Breiner said they could have done a much better job of it, considering the access they had to police and prosecutorial resources.
“The chief has access to everything,” Breiner said. “You’re telling me that if they really wanted to set up Gerard Puana that the Kealohas couldn’t have gotten access to the records room, gotten his fingerprints and planted them inside the vehicle somehow? Come on. This is kids’ play here. They could have done that, and this would have been the end of the issue.”
Breiner added that the fact that the investigation has gone on for nearly two years is another sign that prosecutors are grasping at air.
In July, Breiner even filed a secret motion in federal court to get Wheat dismissed from the case because he was “abusing his authority as a special prosecutor.”
Breiner said he was particularly concerned that sensitive information from the grand jury proceedings was being leaked to the press. He pointed at Wheat, saying that the prosecutor was using the media to help coerce witnesses into cooperating.
The motion was denied, and Breiner has refused to discuss the details because it was filed under seal, meaning it’s not available to the public.
Honolulu Prosecuting Attorney Keith Kaneshiro lodged a similar complaint against Wheat in secret court filings. But also like Breiner, Kaneshiro’s concerns were dismissed by the federal court.
Gerard Puana’s defense attorney, Alexander Silvert, warns that Breiner should not be so brazen about the federal investiation.
Silvert usually might share many of Breiner’s concerns. Their jobs, after all, are all about poking holes in police investigations so that they can better defend their clients.
In this case, however, Silvert says he’s in a unique position because he helped uncover some of the evidence of wrongdoing on the part of HPD officers.
“While I echo, in general, Mr. Breiner’s thoughts, he is not privy to or aware of the depth and scope of the investigation,” Silvert said. “He’s on the outside looking in as most defense attorneys usually are. I’m in a somewhat different perspective.
“The fact that the investigation is taking so long is not a sign of the weakness of the investigation, but rather the depth and breadth of the corruption that’s being uncovered.”
Michael Wheat declined to be interviewed for this story. But the federal prosecutor, who has worked in the Justice Department for more than 30 years, has a reputation for winning convictions in complex, high-profile cases involving fraud and public corruption.
In November, Wheat helped secure the conviction of Jeffrey Spanier, the former owner of Amerifund Capital Finance who was involved in a $100 million stock fraud scheme that targeted wealthy investors in the U.S., Canada, Mexico, China, Hong Kong and the Netherlands.
A jury found Spanier guilty of 16 counts, including wire fraud, conspiracy and securities fraud. He was initially indicted in 2012.
The case involved two other co-defendants, who had also been charged with similar counts, as well as money laundering for taking part in the scheme. One of the men was sentenced to 15 years in prison and ordered to pay more than $81 million in restitution, while the other killed himself shortly before trial.
Wheat, who works for the Southern District of California along the U.S.-Mexico border, has also taken on drug smugglers and human traffickers.
In 2014, Wheat was part of a team that brought federal indictments against 11 people, including four airport baggage handlers, in a major drug courier operation in which agents seized nearly 20 pounds each of cocaine and methamphetamine.
The alleged drug runners, working out of San Diego International Airport, flew to several locations across the country — including New York, Detroit, Baltimore and Honolulu — on flights operated by Delta Air Lines, U.S. Airways and Hawaiian Airlines.
But one of Wheat’s biggest cases in recent years involved serious allegations of public corruption, bribery and political favors stretching from Las Vegas to San Diego.
The case — which became known as Operation G-Sting, or Strippergate — centered on a Las Vegas strip-club owner who was funneling cash to elected officials in Nevada and California in an attempt to buy votes that would benefit his business.
Three San Diego city councilmen were indicted for allegedly taking illegal campaign contributions in exchange for repealing “no-touch” rules at strip clubs. One of the defendants died before the case could be adjudicated. But the other two city councilmen, Ralph Inzunza and Michael Zucchet, were convicted in 2005.
Inzunza eventually went to prison. But Zucchet’s conviction was overturned by a federal judge who said there wasn’t enough evidence to support the charges. That decision was upheld by the 9th U.S. Circuit Court of Appeals in 2009.
Michael Berg is a long-time defense attorney in San Diego who can vouch for Wheat’s credentials. Berg often represents clients charged with federal crimes, and estimates he’s gone head-to-head with Wheat more than 100 times over the past several decades.
“He’s tenacious, he’s extremely hard-working and he’s hard-charging,” Berg said. “He has a terrific reputation as being ethical and diligent. I’ve never in my entire career ever had a problem working with him or against him on a case.”
What sticks out about Wheat, Berg said, is his willingness to work with defense attorneys to find an amiable solution that can beneficial to both parties, even if one side is facing criminal charges.
For example, Berg recently had a client who was arrested in California but who also faced charges in Utah. He said Wheat “went to bat for me” to have the Utah case transferred to California so that the two matters could be dealt with simultaneously. Berg described the transfer as a rarity and something that wouldn’t have happened but for Wheat’s involvement.
Although Berg doesn’t know the details of the Kealoha investigation, he said he’s skeptical of the criticisms coming out of Honolulu about Wheat’s approach. He said it’s often a defense attorney’s job to try to sway public perception in their client’s favor, especially in big cases.
Berg also doesn’t buy the suggestion that Wheat is trying to make a name for himself because — as his history of prosecutions shows — he’s already done that.
“I don’t know a prosecutor in that office that is more ethical than he is,” Berg said. “He’s not bringing a case just to take a couple free trips to Hawaii. He’s got plenty of work here. He doesn’t need to make it up. If he’s there working a case there’s a case. Trust me.”
Civil Beat reporter Rui Kaneya contributed to this report.