At the request of the Honolulu prosecutor, a state judge has dismissed 414 racketeering, gambling and money laundering charges against nine people connected to sweepstakes machines that a federal judge has deemed are gambling devices.
Circuit Judge Randal K.O. Lee dismissed the case Thursday without prejudice, as the prosecutor requested, giving the government the opportunity to refile the charges.
Honolulu prosecutor spokesman Dave Koga said, "We recognized that there were deficiencies in the original indictment. We’re going to correct those and re-indict."
Deputy Prosecutor Jacob Delaplane filed the approved request Thursday afternoon, one day after Lee refused to grant him more time to respond to allegations from the defendants that he and supervising Deputy Prosecutor Katherine Kealoha committed misconduct by knowingly presenting false and misleading information to the grand jury that returned the indictment in May.
Included in the request are written declarations from Delaplane and Kealoha attesting that they were not aware at the time they made their grand jury presentations that defendant Tracy Yoshimura was not the owner of the arcades from which Honolulu police had seized the sweepstakes machines in September 2012.
Yoshimura is the owner of the business that distributed the machines. He was facing 257 charges.
Attorney Thomas Otake, whose client Eugene Simeona Jr. was facing 41 charges, said, "They have a responsibility to proceed ethically in front of the grand jury, and it’s time they take their responsibility seriously."
Jason Burks, whose client Desiree Haina was facing 17 charges, said, "There’s just no way they couldn’t have known this information they were presenting to the grand jury was false."
Yoshimura’s lawyer Myles Breiner said the prosecutors should have known that his client didn’t own the arcades because the city has been fighting a federal lawsuit filed in October 2012 by all of the defendants and the arcade owners asking the court to order the city to return the machines and leave them alone.
During hearings on the lawsuit, U.S. District Judge Leslie E. Kobayashi ruled that a city witness could testify as an expert on gambling but not as an expert on gambling machines.
The defendants in the criminal case said the city prosecutor presented the same witness to the state grand jury as an expert on gambling machines.
One day before the grand jury returned the indictment against the nine defendants, Kobayashi rejected the request for the return of the sweepstakes machines and ruled that they are gambling devices prohibited under Hawaii law.
The defense lawyers said they believe Delaplane filed for the dismissal to get around Lee’s refusal to grant him an extension and avoid having to respond to the allegations of misconduct altogether.
Otake, Burks, Breiner and some of the other defense lawyers met with Lee on Friday morning to ask him to dismiss the criminal case with prejudice to prevent the prosecutor from refiling the charges. Lee granted them a hearing for Tuesday, the same day for which he had scheduled a hearing for the prosecutor to respond to the defendants’ allegations of misconduct.
Breiner said the case will not be resolved Tuesday because he intends to declare city Prosecutor Keith Kaneshiro, Kealoha and Delaplane witnesses for the defendants.
"We believe that the representations, or more appropriately the misrepresentations, that were brought to the grand jury by Ms. Kealoha as well as Mr. Delaplane, under the authority of Mr. Kaneshiro, warrant that all three of these individuals be material witnesses and not be allowed to proceed with this case," Breiner said.
