A judge has denied an attempt to dismiss a federal conspiracy charge against indicted businessman Dennis Mitsunaga, former Prosecuting Attorney Keith Kaneshiro and four Mitsunaga &Associates executives.
Attorneys representing Mitsunaga, 78; Kaneshiro, 72; Terri Ann Otani, 66; Aaron Shunichi Fujii, 64; Chad Michael McDonald, 50; and Sheri Jean Tanaka filed a motion Feb. 3 to strike language from charging documents they thought was inappropriate and could taint a jury pool. And previously, on Jan. 3, Los Angeles-based attorneys Mark Mermelstein and Andrew S. Cowan, who represent Tanaka, filed a motion for partial dismissal based on a five-year statute of limitations.
Mitsunaga, Kaneshiro and the other defendants were indicted in June by a federal grand jury on charges of conspiracy to commit honest services fraud, federal program bribery and conspiracy to violate a former MAI employee’s rights.
U.S. District Judge J. Michael Seabright on Feb. 28 denied attempts to dismiss one of the counts against the defendants, and a hearing will be held April 27 on the motion to dismiss the charge of conspiracy to violate the former employee’s rights.
The allegations made by federal prosecutors are connected to MAI’s treatment of Laurel Mau, who sued the company after she was let go in November 2011. In an August 2012 lawsuit, Mau accused MAI of violating her civil rights and of age discrimination.
On Oct. 4, 2012, Mitsunaga, Kaneshiro, Tanaka and Kaneshiro’s assistant allegedly met to try getting Kaneshiro to prosecute Mau. Mitsunaga, Otani, Fujii, McDonald, Tanaka and other Mitsunaga family members and employees donated about $45,000 to Kaneshiro’s campaign following the meeting.
Defense attorneys argue that the conspiracy charge should be dismissed because the five-year time frame for charging the offense had passed. They argued that the clock for filing those charges started when the investigation into Mau started in January 2013.
In a separate order issued March 3, U.S. Magistrate Judge Wes Reber Porter ruled that Mitsunaga failed to “meet his burden to establish that the challenged words and phrases” in the indictment against him were “prejudicial or inflammatory allegations that are neither relevant nor material to the charges.”
One of the terms Mitsunaga’s attorneys believed would be prejudicial was use of the word “significant” in the allegations.
“MAI derived its significant revenue from a combination of public and private jobs throughout the state of Hawaii,” read the allegations. The document also referred to “significant” irregularities in another instance.
Reber Porter ruled that in both instances “the government’s use of the word ‘significant’ is relevant to the means, methods and acts used by defendants in furtherance of the conspiracy.”
“We are disappointed with the court’s ruling … but appreciate the thoughtful contemplation given to the opinion, and we are satisfied that the jury will not be presented with this indictment given the inclusion of what we perceive to be irrelevant material designed to create prejudice against our client,” said Mitsunaga’s attorney, Nina Marino, in a statement to the Honolulu Star-Advertiser.
Kelly Thornton, director of media relations for the U.S. Attorney’s Office in the Southern District of California, which is prosecuting the case, declined comment.
Kaneshiro prosecuted Mau for four counts of theft at MAI’s request in December 2014. A deputy prosecutor told Kaneshiro that there was not enough evidence to prosecute Mau, but Kaneshiro allegedly reassigned the case to another prosecutor, which led to charges.
In July 2017 the charges against Mau were dismissed with prejudice, meaning they could not be refiled. Kaneshiro served as city prosecutor from 1988 to 1996 and again from 2010 to 2018 before he went on paid leave.
