Here’s a lesson for all of us who aren’t lawyers. When used by prosecutors, “conspiracy” is a trump card that can ratchet up criminal penalties and extend the reach of criminal laws.
Criminal conspiracies occur when one or more people get together and agree to do something illegal, and then take specific concrete actions intended to move toward their shared goal. Those acts don’t necessarily have to be crimes in themselves, but when they are, watch out.
Take the high-profile case of former Honolulu Police Chief Louis Kealoha and his wife, Katherine, a high-ranking city prosecutor.
The couple is facing multiple charges of bank fraud, obstruction, making false statements and conspiracy, all spelled out in a 42-page federal indictment. Four HPD officers are named as co-defendants along with the Kealohas, and another has already pleaded guilty in the case.
Many of the charges revolve around allegations the Kealohas and co-defendants engaged in a conspiracy to frame her uncle, Gerard Puana, for the theft of the mailbox at the Kealohas’ home in Kahala in order to discredit him in a family financial dispute that was heading to court. Other charges stem from Katherine Kealoha’s alleged diversion of funds from family members and others to pay for the couple’s personal living expenses.
A pair of little-noticed procedural motions filed in court in early December by new attorneys assigned to defend the Kealohas highlight the outsized impact of the conspiracy count included among the other charges they face.
Nearly identical legal motions were filed by Rustam Barbee on behalf of Louis Kealoha, and Cynthia Kagiwada, representing Katherine Kealoha.
The two experienced federal defense attorneys were assigned to their respective clients just a month previously when the Kealohas’ original lawyers were challenged by prosecutors, and then voluntarily withdrew, ostensibly because the couple is now unable to afford the legal fees.
Barbee and Kagiwada are both court appointed and will be paid by public funds.
Their legal motions asked that prosecutors be required to provide a “bill of particulars” disclosing additional details about several pending charges.
Three of the charges, referred to as Counts 5-7, allege the Kealohas (and others) obstructed an official proceeding and made false statements to a federal officer. But the grand jury indictment spelling out the basis for these charges refers only to false statements made by Minh-Hung Nguyen, one of four HPD co-defendants. At the time, Nguyen was married to Katherine Kealoha’s niece. No actions by either Kealoha related to any of these charges were identified.
Both attorneys argued they have a right to know exactly what their clients were believed to have done relative to these particular charges, since nothing of the sort was disclosed in the indictment. They wanted to know the exact acts of their clients tied to those charges, the date, time and place of each act, and the name and address of any other person who might have been present.
“A Bill of Particulars provides the defendant details of the charges necessary to prepare a defense, to avoid prejudicial surprise at trial and to protect against a second prosecution based upon the same facts,” Barbee’s motion argued.
Kagiwada raised the same questions regarding Count 2 against Katherine Kealoha, which referred only to allegedly false testimony given by Louis Kealoha in Puana’s 2014 mailbox theft trial.
If their clients had done something to warrant these charges, their attorneys wanted to know. But while they asked for specifics, what they received instead is a concise review of the vagaries of the laws of conspiracy. It’s a legal lesson that is also helpful to public understanding of the Kealoha case.
The reply filed by federal prosecutors got right to the point.
No, there were no direct ties of those defendants to these particular charges. Nonetheless, the requests for a “bill of particulars” are “without merit,” prosecutors said, because these particular charges against the Kealohas are based on the legal concept of “co-conspirator liability.”
The co-conspirator liability principle dates to a 1946 U.S. Supreme Court decision in the case of Pinkerton v. United States.
In that case, the Supreme Court held that members of a criminal conspiracy are liable for crimes committed by their co-conspirators in furtherance of the broader conspiracy.
Prosecutors quoted from model jury instructions used in the 9th U.S. Circuit Court of Appeals, of which Hawaii is a part: “If one member of a conspiracy commits a crime in furtherance of a conspiracy, the other members have also, under the law, committed that crime.”
“Consequently,” according to the prosecutors, “defendants are criminally liable for the false statement and testimony provided by codefendant Minh-Hung Nguyen (Counts 5, 6, and 7) and defendant K. KEALOHA is criminally liable for the false testimony provided by codefendant L. KEALOHA (Count 2).”
If prosecutors are able to prove that an illegal conspiracy existed, those involved face criminal penalties not only for the conspiracy, but also for any specific criminal acts they or any other conspirator committed.
In their memo, prosecutors also suggested any further answers sought by defense attorneys will be found in the estimated 250,000 pages of investigative records being turned over to the defense teams.
The document dump, produced in readily searchable digital format, includes a detailed index “that provides the source and general description of each item included in the discovery.” As a result, prosecutors argued, “the defendants are more than amply armed to respond to the allegations and prepare a defense, obviating the need for a bill of particulars.”
Following a hearing Dec. 19, federal Magistrate Judge Richard Puglisi denied the Kealohas’ motions for additional details. Although the review of conspiracy law wasn’t specifically mentioned in Puglisi’s brief ruling, it likely played a major role in the ruling.
In that WWII-era Pinkerton case, two brothers were found to have been part of a conspiracy to make and sell moonshine. They were charged with violations of the Internal Revenue Code. Both were convicted of conspiracy. One brother was convicted of nine substantive crimes, presumably not paying taxes on their product. The other brother was convicted of six, even though he wasn’t directly involved, probably didn’t know about them, and was actually in jail during the time those offenses took place.
If that sounds like a stretch to you, you’re not alone. On the one hand, conspiracy charges have been useful in prosecuting groups planning clearly criminal acts, such as terrorist attacks, while still in the planning stages and before any crime has been committed. On the other hand, the idea that a person can be prosecuted for crimes committed by others that they aren’t connected to, and may have no knowledge of, feels like it goes against the grain of justice.
Conspiracy charges were used back in the 1960s and 1970s to attack Vietnam War protesters, and their use against political opponents of the sitting president continue to this day.
The latest example of the dangers of conspiracy charges is the criminal prosecution of more than 150 people who participated in protests against Donald Trump held on Jan. 20, 2017, inauguration day in Washington, D.C. Prosecutors have charged the so-called J20 defendants with conspiracy to riot, felony rioting, inciting or urging others to riot and destruction of property using the same “co-conspirator liability” theory first spelled out in the Pinkerton case more than 70 years ago.
The J20 prosecutions are widely seen as an attempt to criminalize dissent, and to allow prosecutions based on guilt by association. The dangers to civil liberties are evident.
The first six defendants to face trial were acquitted on all charges just before Christmas, an outcome applauded by the ACLU and others, but charges are still pending against more than 150 participants in the inauguration protests.
These cases are extremely controversial because they attempt to apply the theory of conspiracy to cases involving constitutionally protected rights to freedom of speech and dissent.
The alleged Kealoha mailbox conspiracy, on the other hand, appears to present no similar complicating First Amendment considerations.
Prosecutors have disclosed they can tie defendants together in the conspiracy through cell phone records and text messages, as well as the testimony of one officer who has pleaded guilty and is now cooperating.
The latest development in the case of Katherine Kealoha has added yet another conspiracy into the mix. Last week, Ransen Taito, the former beneficiary of a family trust administered by Kealoha, pleaded guilty to conspiracy to obstruct an official proceeding by lying to the federal grand jury investigating the Kealohas.
Taito, in a detailed plea agreement, admitted he conspired with Katherine Kealoha to cover-up her theft of about $150,000 from trusts set up to benefit himself and his sister. He admitted that with Kealoha’s assistance he lied to the grand jury and signed documents falsely stating that he had received all the funds to which he was entitled — documents that were intended to deceive both a state court and the federal investigation.
And with a new grand jury continuing the investigation, it’s likely this will not be the last conspiracy to become part of the case. Knowing more about how the conspiracy laws operate, this is certainly not good news for the Kealohas and other defendants in this case.