A federal judge said that the case can proceed, rejecting accusations of prosecutorial misconduct against Assistant U.S. Attorney Michael Wheat and his team.

The case against Honolulu’s former prosecutor, accused of pursuing a criminal case in exchange for campaign cash, is set to continue after a federal judge declined to dismiss it on Friday. 

Former Honolulu prosecuting attorney Keith Kaneshiro faces federal felony charges of carrying out a vendetta on behalf of a campaign donor, Dennis Mitsunaga. 

Prosecutors say Kaneshiro brought forth a meritless case against an ex-employee of Mitsunaga & Associates. Around the same time, Mitsunaga, his business associates, and his former lawyer contributed tens of thousands of dollars to Kaneshiro’s election campaign. 

Mitsunaga and his co-defendents had tried to get the case thrown out by accusing San Diego-based Special Attorney Michael Wheat of prosecutorial misconduct. But U.S. District Court Judge Michael Seabright didn’t buy that argument, according to a ruling issued late on Friday

Dennis Mitsunaga appeared in federal court on Nov. 7, 2023 with his attorney Nina Marino. (Christina Jedra/CivilBeat/2023)
Dennis Mitsunaga appeared in federal court on Nov. 7 with his attorney Nina Marino. (Christina Jedra/CivilBeat/2023)

“These allegations are—separately and collectively—overblown,” the judge wrote.

Mitsunaga’s attorney, Nina Marino, made several arguments during a hearing on Nov. 7. 

For one, she said, the government interfered with the attorney-client relationship by pursuing a case against Sheri Tanaka, an attorney for Mitsunaga & Associates, without informing the prospective defendants that Tanaka was the target of the investigation. 

Tanaka was therefore rendered ineffective at a July 2021 meeting she had with Wheat’s team on behalf of Mitsunaga, Marino argued. 

In his ruling, Seabright said the defense failed to show that the government “deliberately intruded into such a relationship.” And even if it had, there is no evidence that Mitsunaga was harmed as a result, according to the ruling. 

In fact, the judge wrote, Tanaka created her own ethical issues by simultaneously representing multiple members of the Mitsunaga firm who may have had conflicting interests. 

“These allegations are—separately and collectively—overblown.”

Hawaii District Court Judge Michael Seabright

Marino also took issue with the prosecution’s performance before the grand jury. Prosecutors repeatedly asked witnesses why they donated to Kaneshiro’s campaign on the same day. The question suggested a conspiratorial arrangement, the defense said. 

However, the questions were based on a faulty premise. The dates, taken from Hawaii Campaign Spending Commission data, reflect the day on which the checks were deposited, not the date they were written or submitted to the campaign, according to the defense. 

Nevertheless, at least 25 witnesses were asked some form of this question, according to Mitsunaga’s legal team. 

But Judge Seabright said other witnesses made the distinction clear to the grand jury, and there is no evidence the grand jurors were confused. 

Marino further argued the prosecutors’ decision to recall the same witnesses repeatedly to ask the same questions amounted to an “interrogation” technique. In her view, it was meant to convince the jury the witnesses were not trustworthy.

But the judge said it wasn’t improper.

“There are many reasons why a witness may be re-called over a long grand jury (especially during COVID-19 protocols),” Seabright wrote. “As more information unfolds, it could be natural for a grand jury or prosecutor to want to hear again from witnesses whose testimony may become more important.”

Prosecutor Keith Kaneshiro leaves District Court.
Former Prosecuting Attorney Keith Kaneshiro is awaiting trial alongside his co-defendents, including Dennis Mitsunaga (Cory Lum/Civil Beat/2017)

The judge also ruled that inconsistent grand jury testimony from a Honolulu police detective, Phillip Snoops, did not amount to prosecutorial misconduct.

Mitsunaga’s codefendants joined in his unsuccessful motion. Tanaka added her own, accusing prosecutors of orchestrating a “heavy handed arrest” at her home in front of her young daughter. The prosecutors countered that the manner of the arrest, which occurred in California, wasn’t their call but rather the decision of their Los Angeles-based colleagues and the FBI.

The judge rejected Tanaka’s claim that her “aggressive” arrest was evidence of “vindictive prosecution.”

Seabright did, however, approve part of a motion by defendant Terri Ann Ohtani to suppress information she provided to the grand jury that perhaps should have been protected by her constitutional right against self-incrimination.

The trial is scheduled for Feb. 27 at 9 a.m. before Judge Seabright.

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