When federal public defender Alexander Silvert first met his new client, Gerard Puana, he only knew three things about the case.
He knew Puana had been arrested for allegedly stealing a mailbox.
He knew the mailbox belonged to Honolulu Police Chief Louis Kealoha and his wife, Katherine, who was one of the highest ranking city prosecutors in the state.
And he knew the couple had provided the federal government with a surveillance video of the alleged theft.
It seemed like a slam dunk for the U.S. Attorney’s Office. It almost always is. Federal prosecutors boast a conviction rate north of 90 percent. So for a federal public defender like Silvert the fight is almost never about proving guilt or innocence.
“It looked to me, without knowing anything more about the case, that this was going to come down to a guilty plea and then a fight at sentencing to get the best deal possible,” said Silvert, who’s worked in the federal defender’s office in Hawaii since 1989.
“Because of who the alleged victims were there was obviously going to be strong pressure on a judge to put this guy in jail for a long time.”
And then Puana — Katherine Kealoha’s uncle — told Silvert he was framed.
That’s the kind of statement that makes a veteran defense attorney think he’s going to have a difficult client. But Silvert soon figured out he would need to take this one seriously.
The Kealohas and five police officers would eventually be charged by the U.S. Justice Department for crimes ranging from conspiracy and obstruction to bank fraud and identity theft.
One cop — who had already retired — has pleaded guilty and is cooperating with the feds. Another man who is an alleged victim of Katherine Kealoha has also pleaded guilty to lying to investigators. The Kealohas and the other four officers have pleaded not guilty.
The case is considered by many to be the largest public corruption scandal in Hawaii’s history.
And the Justice Department isn’t done.
A new federal grand jury has been empaneled to continue the corruption probe. The attention now is on Honolulu Prosecuting Attorney Keith Kaneshiro’s office, which still employs Katherine Kealoha.
There’s little doubt Puana faced a strong chance of going to prison before Silvert was able to get the case dismissed. Federal prosecutors in the Hawaii office not only secured a grand jury indictment against Puana, they took the case to trial, charging him with a felony that carries a sentence of up to three years.
So it’s all the more surprising how quickly Silvert and his investigators were able undermine the government’s case.
Officials from the U.S. Attorney’s Office have declined to comment on their actions, citing ongoing court proceedings and investigations.
Puana’s story became believable almost immediately after Silvert received discovery.
It was the surveillance video that stuck out. The guy caught on camera June 21, 2013 plucking the mailbox from its pedestal just didn’t look like Puana, a part-Hawaiian who was in his early 50s.
Silvert said he showed the video to people around his office who had met with Puana to see what they thought about the resemblance. Almost every one of them told him the man in the video wasn’t their guy.
The next ah-ha moment came when Silvert and his investigators began researching the mailbox itself.
Katherine Kealoha told HPD investigators in a written statement that the mailbox her uncle had stolen was a Gaines brand worth $380. An HPD appraiser confirmed the mailbox brand and estimated cost in his own report.
The problem was that wasn’t the mailbox that was in front of the Kealohas’ home.
All Silvert had received from the prosecutors was a photo of the mailbox pedestal. The actual box that was affixed to the top of the pedestal was still missing. So to confirm the brand name and cost, an investigator in the federal public defender’s office reached out to the manufacturer.
He faxed a photo to the company. Within 90 seconds, Silvert said a spokesperson from the business responded and told the investigator it wasn’t theirs, but that it belonged to a competitor. That particular mailbox — one that today can still be seen in front of the Kealohas’ former home on Google Maps — only cost about $150.
And then Silvert asked: “Why would anybody lie about the make and model of their own mailbox?”
At the time of the alleged crime, the difference between misdemeanor and felony theft in state law came down to dollars and cents. The crime became a felony if the cost of the goods stolen exceeded $300. Silvert said Katherine Kealoha, who worked as a prosecutor in the career criminal division, would have known this.
But more than anything, he said, she had a motive.
Puana and his mother had filed a lawsuit against Katherine Kealoha for bilking them out of tens of thousands of dollars as part of a reverse mortgage deal. If the allegations in the lawsuit were true it could ruin Kealoha’s career as a lawyer or worse.
“Literally, in two minutes we knew this was the wrong mailbox,” Silvert said. “This was not brain surgery. This was pretty quick.”
Silvert and his investigators found irregularities throughout HPD’s investigation.
Reports that should have been in the police files were missing. Documents tracking the chain of custody for evidence had been altered. Timelines didn’t match up. Puana also had photos of police officers tailing him days before he was named as the suspect in the alleged theft.
Several of the officers involved in the investigation worked in the Criminal Intelligence Unit, a secretive division in HPD that under Kealoha conducted surveillance and reported directly to the chief.
Other officers came from a specialized crime reduction unit that was assigned to the Waikiki patrol district. Their jobs typically involved taking on street crimes, such as robbery, burglary and patterned car break-ins, not mailbox thefts that originated outside of their district.
There was even a homicide detective working the case.
“As the case unraveled and we looked at more and more evidence it became clear what was going on,” Silvert said.
But it wasn’t as obvious to the U.S. Attorney’s Office.
Les Osborne was an assistant U.S. attorney in charge of the Hawaii office’s criminal division when the case first came in. It was a damaged mailbox case — something he described as “manini” or small — but he said the victims were prominent citizens who seemed willing to cooperate.
And since one of the alleged victims, Katherine Kealoha, worked at the city prosecutor’s office, Osborne said her agency would likely need to recuse itself anyway.
“You can’t allow people to rip off mailboxes,” Osborne said. “It’s a federal crime.”
Although HPD conducted most of the investigation, it was the U.S. Postal Inspection Service that brought the case to the U.S. Attorney’s Office.
Hawaii Postal Inspector Brian Shaughnessy, who handled the case, declined to comment for this story. But according to records, he seemed to rely heavily on the information fed to him by the Kealohas and HPD.
Osborne said his office — then headed by U.S. Attorney Florence Nakakuni — presented the case to a federal grand jury and received an indictment for Puana. After that, Osborne said he didn’t think much about the case because it seemed relatively straightforward.
That all changed during the trial.
Osborne fell ill just before the case was set to be argued in court. Assistant U.S. Attorney Larry Tong stepped in to take his place. In his opening statements, Tong used the script Osborne had prepared for him — it was an open-and-shut case.
He told the jurors that the police chief and his wife, a city prosecutor, were the victims of a scorned family member who decided to steal their mailbox as part of a convoluted fight over money.
What’s more the Kealohas had a video of the purported theft, and they were willing to testify that the man seen plucking the box from its pedestal was Katherine Kealoha’s uncle, Gerard Puana.
But ultimately what the case hinged upon was believability, Tong said. Do you believe the police or Puana?
“Ladies and gentlemen, the case should not take too long,” Tong said. “We ask you to listen to the evidence, to use your independent judgement, to look at the videos, to look at the witnesses and decide whether they are credible.”
Silvert, of course, had a different theory, one the prosecutors weren’t aware of before the trial.
He told the jurors that he would prove that Puana was the victim of a setup, and that the people perpetrating it were none other than the Kealohas and the cops who worked for them.
But Silvert never had a chance. When Louis Kealoha took the witness stand he caused a mistrial by inappropriately revealing details about Puana’s run-ins with the law, something that’s normally not allowed during criminal trials.
Silvert believes Kealoha did it on purpose in an attempt to stop the case from moving forward.
Federal prosecutors, meanwhile, began planning for a second trial, Osborne said. The mistrial was unfortunate, he said, but it didn’t seem to undermine the facts of the case. They still had the surveillance video and the word of the Kealohas.
“There was no reason to suspect at that time that there was any impropriety,” Osborne said.
That’s when Silvert shared the rest of his evidence with prosecutors.
“Some lawyers are very open and candid about their defense. Others don’t trust the government or feel that surprise is important.” — Les Osborne, retired assistant U.S. attorney
It was a strange maneuver, Osborne said, because Silvert had a reputation for keeping a tight lid on his defense tactics.
Osborne said Silvert never asked for a meeting to discuss a plea deal. Osborne also said there was no indication in any of the pre-trial motions that Silvert planned to use a conspiracy defense to undermine the government’s case.
During their meeting, he said, it became clear that the evidence the U.S. Attorney’s Office had was “obviously defective.”
“Ali is a very keep-it-secret-if-you-can type of lawyer,” Osborne said. “Some lawyers are very open and candid about their defense. Others don’t trust the government or feel that surprise is important. And I would say that Ali would fall into that second category.”
Osborne said prosecutors had a moral and ethical obligation to dismiss the charges against Puana after seeing what Silvert brought to them. The case was dismissed with prejudice, meaning it couldn’t be charged again.
The U.S. Attorney’s Office then asked the FBI to investigate Silvert’s allegations. The office also recused itself from any further proceedings, and asked for an outside office to be assigned.
The case was turned over to the U.S. Attorney’s office in San Diego.
Osborne said that in his 39 years as a prosecutor he’s never seen anything like this case; a half-dozen witnesses — all of them law enforcement — working in unison to carry out an alleged frame job against an innocent man.
It’s such an outlandish concept that it didn’t even cross his mind that he was being duped.
“You do not expect to be lied to by a half dozen people,” Osborne said. “Fortunately the system sorted it out, thanks in very great part to Ali and all the work that he did. Had that not happened there might have been a miscarriage of justice.”
The Kealohas, of course, see it differently. They and their alleged co-conspirators have all pleaded not guilty to the charges in the indictment. And Louis Kealoha’s attorney, Rustam Barbee, says the feds were right all along — Puana did it.
“It’s my impression that the U.S. Attorney’s Office and Postal Inspector got it right the first time,” Barbee said.
He added that a jury already sided with Katherine Kealoha in the civil lawsuit filed against her by Puana and his mother.
That case, however, has been appealed and federal prosecutors have relied upon many of the same facts to back up the charges in the criminal indictment against the Kealohas and the four officers.
Katherine Kealoha’s attorney, Cynthia Kagiwada, declined to comment for this story.
But her client had previously made her views of the case known in an eight-page letter to her boss, Honolulu Prosecuting Attorney Keith Kaneshiro. In the letter, she described Osborne as incompetent and said that Tong was unprepared.
She blamed the U.S. Attorney’s Office for allowing the criminal case to get tossed and making it appear as if she, her husband and the officers involved had done something wrong.
“If this kind of monkey business happened in our office the trial prosecutor would have been fired,” Kealoha said.
If the federal government had expressed more skepticism when taking on the case, would anything have changed?
Silvert’s boss, Federal Public Defender Peter Wolff, doesn’t think so.
“When you look at the indictment these officers who participated in this were prepared to lie to the FBI and they were prepared to lie to the grand jury,” Wolff said.
“The system isn’t really geared up to operate based on the assumption that sworn law enforcement officers are going to participate in something like this. So why would the U.S. Attorney’s Office have assumed that there were any real problems with the case?”
He said federal officials were told “a pack of lies” by people who are ordinarily accepted as being credible, people who are just like them — police and prosecutors.
That might be why they didn’t do their due diligence when it came to following up on exactly what type of mailbox Puana allegedly stole. It was that fact that really started sounding the alarm for Wolff and his office. But for law enforcement it was barely a blip.
Even Silvert sees how easy it would be to brush the case aside.
There’s often “blind faith” between law enforcement agencies that they can trust one another. That’s what makes this case all the more shocking, he said. According to the allegations, it was a concerted effort by one law enforcement agency to deceive another.
That’s why Silvert didn’t feel comfortable taking his evidence to the U.S. Attorney’s Office before trial. He didn’t think the prosecutors would believe him.
“We felt that the government wasn’t going to see it our way,” Silvert said. “They just couldn’t.”
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