A lawyer who was entrusted with sensitive criminal trial documents that were found unattended in a downtown Honolulu restaurant is facing penalties that could include paying for the prosecutors’ time and expenses in connection with recovering the missing documents.
Federal prosecutors are asking U.S. District Judge Leslie E. Kobayashi to impose sanctions on criminal defense lawyer Marcus Sierra after a bystander found a binder of documents in the restaurant. Sierra acknowledges that the binder is his and says they contain grand jury testimony of two government witnesses.
The documents are from the racketeering trial of alleged USO Family prison gang member Tineimalo Adkins and fired state prison guard Feso Malufau.
Kobayashi had issued a protective order that allows defense lawyers involved in the case to show their clients the documents but prohibits them from handing over the documents or copies.
A federal jury found Adkins and Malufau guilty Oct. 10. Sierra is Adkins’ lawyer and represented him during the trial.
When the government reported the discovery of the binder to the court Oct. 14, Assistant U.S. Attorney Jill Otake said an employee of Alakea Delicatessen had found it in the restaurant and turned it in.
The next day, Sierra responded that he was not aware the binder had been missing and didn’t know how it wound up in the restaurant because he had not gone there for months.
On Thursday, Sierra told Kobayashi that the U.S. attorney has since informed him that the binder was found in a different downtown Honolulu restaurant.
"I have been in that place. It is plausible that I may have left that binder there," Sierra said.
Otake asked Kobayashi to impose sanctions Thursday not just because of the protective order, but also because the documents could have been used to threaten and intimidate witnesses.
"This was an extraordinary case when it comes to witness protection," Otake said. "We’ve been trying very hard to protect our witnesses as best we could."
During the trial, prosecutors filed documents under seal asking the court for permission to admit evidence of Adkins intimidating witnesses, after authorities found in his possession a complete list of the government’s proposed witnesses, including names that had been blacked out on the publicly available witness list.
One witness who was scheduled to testify refused to enter the courtroom, prosecutors said, because he didn’t want the defendants to see his face.
Otake told the jurors that a code of silence among inmates and gang intimidation made prosecuting the case difficult. In closing arguments she said a corrupt guard at the Federal Detention Center was telling Adkins which inmates the FBI and prosecutors were visiting.
Sierra said the two witnesses whose grand jury testimonies were in the binder had already testified in the trial, so their cooperation was no secret.
Otake said some gang members might still not know that those two witnesses cooperated and that gang members like to have official documents to reveal which inmates are providing information. After word got out about the missing binder, Otake said she was contacted by defense lawyers and two mothers concerned about witnesses’ safety. She said the wife of one witness even contacted the FBI.
Kobayashi said she will need to look at the documents in the binder before she recommends any type of penalty. However, she did ask the prosecutors to provide her the amount of time they spent addressing the discovery of the missing binder, their hourly rates or years of experience and costs.
