The Support Committee
758 Kapahulu Ave., # 422
Honolulu, Hawaii, 96816
FAX: (808) 733-7808
Richard M. Rogers, Acting Counsel
Office of Professional Responsibility
U.S. Department of Justice,
950 Pennsylvania Avenue, N.W., Room 4304
Washington, D.C. 20530. BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED
RESUBMITTED Complaint: Prosecutorial misconduct of U.S. Attorneys; Misapplication of Title 18 U.S.C. § 1956(a)(3), the "sting" money laundering statute; Coercive "plea-bargaining" practices; Violations of Due Process and of the Rules of Evidence and Procedure; Violations of Labor Laws and Merit System Protections; Violations of Constitutional, Civil and Professional Rights.
REFERENCE: The Case of Dr. George Pararas-Carayannis; CR No. 92-00756 ACK, District Court of Hawaii; 95-10016, 9th Circuit Court of Appeals; No. 96-5882, U.S. Supreme Court.
Dear Mr. Rogers,
Reference is made again to the responsibility of your office to investigate misconduct by employees of the Justice Department and to ensure that they perform their duties in accordance to high professional and ethical standards expected of our Nation's principal law enforcement agency. As public servants paid by the American taxpayers, you and members of your staff have taken an oath to abide by your mandate and to uphold our Constitution. You have a moral and contractual fiduciary responsibility to investigate thoroughly and properly complaints made to your office about unprofessional or illegal actions by employees of the Department of Justice.
The Support Committee is a national organization which, together with many other institutions, advocates human rights, supports constitutional laws and a Judicial system which operates with fundamental fairness and is consistent with the principles of justice, compassion and truth. We support high ethical standards for government attorneys and our Judiciary. Lastly, we endorse fairness and equality in sentencing and evaluate major flaws in the current system, including their impact on the federal budget.
On May 15, 1998, we submitted a valid complaint of misconduct by Assistant United States Attorney (AUSA) Florence Nakakuni, District of Hawaii. We find the attached response from "Program Analyst" Annie A. Wong of your office to be nothing less than an effort to justify and whitewash this DOJ attorney's egregious conduct under the false premise that "several of your complaints were raised, considered and rejected by the court during Mr. Carayannis' trial". Contrary to this statement, most of our complaints about this DOJ attorney's conduct could not be raised during the course of judicial proceedings. Furthermore, if all complaints were taken care by the courts, as claimed, there would be no need for an Office of Professional Responsibility within DOJ.
The removal of court-admitted evidence (videotapes) by government witnesses at the direction of AUSA Nakakuni, during trial and while the court was in session, to a hotel room of another government witness (an audiovisual technician equipped with computers and electronic digitizers) cannot be a high professional standard of conduct for a government attorney. Reopening a trial without the jury and preventing the jury from hearing the testimony on these important facts and challenges to the evidence, cannot be a high judicial standard. Whether the court chose to overlook this prosecutorial conduct of illegally removing evidence as "irrelevant", should not stop OPR from investigating it, particularly when there is proper documentation and three days of corroborating court testimony. Condoning, tolerating or simply overlooking the egregious conduct of a government prosecutor, does not make it any more palatable or acceptable and does not release your office from the responsibility of performing its mandated function to investigate and take appropriate disciplinary action. If indeed the courts were always monitoring or acting on charges of prosecutorial misconduct, there would be no reason for our complaint, for an Office of Professional Responsibility, or for The Citizens Protection Act of 1998 (H.R. 3396), (voted in the House of Representatives on August 5, 1998, by 345 to 82).
Finally, withholding exculpatory evidence, soliciting perjured testimony by witnesses to obtain a conviction illegally, coercing or bribing with immunity a witness, or illegally removing and tampering Court-admitted evidence, cannot possibly be acceptable standards of professional conduct for any Department of Justice attorneys. No one is above the law -not even government attorneys. Therefore, we are resubmitting our complaint and its documentation to your Office and to the Civil Rights Office, so that you can conduct a legitimate investigation and take the necessary disciplinary action.
Your cooperation is expected and appreciated.
Sincerely,
The Support Committee
Enclosures: Letter from from Program Analyst, Annie A. Wong, Office of Professional Responsibility, Department of Justice
Exhibit A. Summary of Prosecutorial Misconduct
Appendix B: Sworn Affidavit of Dr. George Pararas-Carayannis
Appendix C: Excerpts from Court Transcripts
cc: Attorney General Janet Reno
Mr. Bill Lann Lee, Civil Rights Office, Department of Justice
Mr. Michael R. Bromwich, Inspector General, Department of Justice
Members, Senate Judiciary Committee
Members, House Judiciary Committee
Members, Senate Appropriations Committee
Members, House Appropriations Committee
Representative Joseph McDade
Representative John Murtha
Senator Daniel Inouye
Senator Daniel Akaka
Representative Patsy Mink
Representative Neil Abercrombie
Commissioners, U.S.Sentencing Commission
758 Kapahulu Ave., #422
Honolulu, Hawaii, 96816
Richard M. Rogers, Acting Counsel
Office of Professional Responsibility, U.S. Department of Justice
Room 4304, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530.
COMPLAINT: Prosecutorial misconduct of U.S. Attorneys; Misapplication of Title 18 U.S.C. § 1956(a)(3), the "sting" money laundering statute; Coercive "plea-bargaining" practices; Violations of Due Process and of the Rules of Evidence and Procedure; Violations of Labor Laws and Merit System Protections; Violations of Constitutional, Civil and Professional Rights.
REFERENCE: The Case of Dr. George Pararas-Carayannis; CR No. 92-00756 ACK, District Court of Hawaii; 95-10016, 9th Circuit Court of Appeals; No. 96-5882, U.S. Supreme Court.
Dear Mr. Rogers,
Reference is made to the responsibility of your office to investigate misconduct by employees of the Justice Department and to ensure that they perform their duties in accordance to high professional and ethical standards expected of our Nation's principal law enforcement agency.
The Support Committee is a national organization advocating human rights and safeguards for the citizens of our nation to protect them from unfair or abusive practices of some state and federal government prosecutors. Presently, The Support Committee represents members of Hawaii's community, supporters from all over the country, and international scientists from around the world, who are concerned about a 41 month prison sentence imposed upon Dr. George Pararas-Carayannis ("Dr. Carayannis"), an internationally renown U.S. government scientist, following a very improper prosecution by a government attorney in Hawaii. The purpose of our letter is to file a complaint of prosecutorial misconduct and for violations of his civil, constitutional, professional. and human rights, primarily by Assistant U.S. Attorney Florence Nakakuni ("AUSA Nakakuni") in the District of Hawaii. In support of this complaint, we are submitting the attached summary statement on the misconduct that took place, a Sworn Affidavit by Dr. Carayannis and excerpts from court transcripts.
Brief statement of the case
Beginning in 1991, Dr. Carayannis was targeted for a "sting" and prosecution under the newly-enacted "sting" money laundering statute (18 U.S.C.§ 1956(a)(3)). The former U.S. Attorney, Daniel Bent, assigned the case to AUSA Nakakuni of the White Colar Crime Unit, headed by AUSA John Peyton. AUSA Nakakuni worked closely with a case agent in the IRS Criminal Investigation Division (CID) to structure the "sting". The scenario of the money laundering "sting" involved inducing Dr. Carayannis to process approximately $ 5,000 of the government' s own money, in the form of American Express and Diner's credit card slips from fictitious customers of a non-existent "escort service". The scenario of the "sting" included fabrication of "nexus" (work-related misconduct) for the specific purpose of terminating Dr. Carayannis' federal government employment, after 25 years of outstanding public service.
The record and court testimony show that a government undercover agent, a young, policewoman, was specifically instructed by AUSA Nakakuni to befriend Dr. Carayannis and to ask for his help to process the charge slips through his credit card merchant accounts (American Express and Diner's) of his part-time jewelry business. The undercover agent was instructed by AUSA Nakakuni to avoid any representation in the "sting", other than that the proceeds were from an "escort service".
The record shows that escort services are legal in Hawaii and advertise their acceptance of American Express, Diner's, VISA, Mastercard, e.t.c . . Furthermore, that banks, American Express and Diner's, routinely issue merchant credit card accounts to escort services. However, Dr. Carayannis was charged with "money laundering", when he processed these slips for the undercover agent, alleging that he believed he was "disguising and concealing" the proceeds of "some form of unlawful activity", when he deposited the two small checks from the credit card companies into his bank (an "intrastate bank") account and provided the undercover agent with two checks in her name for approximately $4,000, after deducting $1,000 for merchant fees and taxes. The alleged "money laundering" activity netted him $35 after taxes and merchant credit cards charges (after paying $288 in merchant credit cards discount fees; $200 in State sales and excise taxes and approximately $477 in Federal and State taxes). The transaction was properly reported in his tax returns.
Subsequently, Dr. Carayannis was suspended indefinitely without pay from his position as Director of the International Tsunami Information Center, a federally funded international organization functioning under the auspices of the United Nations Educational Scientific and Cultural Organization (UNESCO), claiming "nexus" ("connection of the alleged crime") with his work and that the publicity of the case had "affected adversely the efficiency of the service".
In pretrial motions and subsequently at trial, AUSA Nakakuni argued that the underlying element of the money laundering charge was a hypothetical state petty misdemeanor offense (prostitution), allegedly a Travel Act violation, which was "definitional" and needed not be represented by the undercover agent in the "sting", nor be proven at trial as an underlying element. Dr. Carayannis' attorney argued that the Travel Act requires an actual and not a hypothetical state underlying offense. Even for a "sting" money laundering operation and for proper due process, application of the money laundering statute, an actual representation of a Travel Act offense must be made.
In the instant case government witnesses testified that "all escort services are fronts for prostitution"; therefore, AUSA Nakakuni argued, the undercover agent did not have to represent in the "sting" that the proceeds of the alleged "unlawful activity" were from an underlying Travel Act violation (prostitution), for conviction under the provisions of 18 U.S.C. § 1956(a)(3). The jury was left with the erroneous impression that representation of an "escort service" was sufficient representation of a "Travel Act violation" for conviction purposes under the statute.
Prosecutorial misconduct
The prosecutorial misconduct in this case is documented in the form of a summary at the end of this letter, the Sworn and Notarized Affidavit of Dr. George Pararas-Carayannis and in the court records which are in the public domain. Also, excerpts of court records and trial transcripts are provided.
The excerpts of actual court testimony document that, during trial and while the court was in session, government witnesses (IRS-Criminal Investigation Division (CID) agents) acting on instructions from AUSA Nakakuni, removed secretly the Court's admitted evidence (five surreptitiously obtained videotapes) to the IRS-CID office and to the hotel room of another government witness, an audiovisual expert. This witness' room had been converted into an electronic laboratory complete with computers and digitizers for "enhancing" videotapes. In the absence of the jury, AUSA Nakakuni stated that the Court's evidence and transcripts were removed daily from the Court by government witnesses, at her direction, because "the Court did not have an evidence storage facility" and because "this has always been the practice since I came to this district". The jury was not allowed to hear this or three days of subsequent testimony by government witnesses (the IRS-CID agents) on the unlawful removal of the court's admitted evidence, or Dr. Carayannis testimony on specific factual examples showing that the videotapes and the transcripts, which the government prosecutor provided as an "aid in understanding the unintelligible portions of the tapes", had been altered.
Subsequently, without apprising the jury of the government attorney's misconduct, the factual testimony of illegal removal and the factual challenges to the evidence, the tainted videotapes were shown to the jury, during deliberations. After nine days of deliberations, but only after allowed to view the tainted videotapes, the jury returned a guilty verdict on the two "sting" counts, on which they had been hung previously, The jury acquitted Dr. Carayannis of five other counts. A year later, Dr. Carayannis was sentenced to 41 months of imprisonment (level 22), with two additional years of probation. Two additional levels were added to his sentence alleging "obstruction of justice". For the last seven years, he has been under restricted court supervision.
Conclusions
Dr. Carayannis was entrapped and his constitutional, civil and human and professional rights were violated by the wrongful prosecution of a hypothetical crime of "money laundering" which was conceived, fabricated and implemented by an eager government prosecutor. Misconduct with the handling of the evidence deprived Dr. Carayannis of his constitutional right to due process and of a fair jury trial and infected the entire process with prejudice. Dr. Carayannis' attached sworn affidavit documents and attests to this and other improper conduct and bogus prosecutions aimed at coercing him to "plea-bargaining" submission.
There was no victim for this hypothetical crime and no money laundering ring was eradicated by the U.S. Attorney, because there was none to begin with. The entire case was a fabrication. There was no actual underlying Travel Act or state law violations terminated by the "sting" or Dr. Carayannis' conviction. No real "escort service" was closed down or prevented from using merchant credit card accounts because of this "sting" operation. In fact, the Yellow Pages in Honolulu, show a proliferation of such businesses, all advertising their acceptance of credit cards. None was ever prosecuted for "money laundering" or closed down for improper activities. Finally, there was no victim other than Dr. Carayannis, his teenage children, and the American taxpayers. More than $4 million of taxpayers' money and unlimited government resources were wasted over a six year period to criminalize and convict Dr. Carayannis.
Ironically, Dr. Carayannis is a 62 year old man who has suffered three heart attacks, thrombophlebitis, pulmonary embolism, has undergone two angioplasties and is afflicted with severe cardiac dysrhythmias and other extraordinary, life threatening physical impairments. In spite of warnings by doctors that the stress of incarceration will be detrimental to Dr. Carayannis' health and will result in his death if he is uprooted and removed from the proper medical care he now receivves, AUSA Nakakuni has insisted in his imprisonment, to begin on May 26, 1998, at the same facility where White Water Defendant James McDougal died of a heart attack, recently. Because of Dr. Carayannis dire health condition, we don't expect that he will come out alive after 41 months of imprisonment. In essence, he has been convicted to a death sentence for the hypothetical "thought crime" of "definitional money laundering" with petty misdemeanor elements which "needed not be proven nor represented". AUSA Nakakuni should be held responsible for this fraudulent prosecution and for the human rights violations inflicted upon Dr. George Pararas-Carayannis.
This cannot be a "crime" worthy of prosecution by DOJ attorneys or deserving such high sentencing - in Dr. Carayannis case the premature loss of his life. The primary duty of a government prosecutor is to seek justice and to see that those guilty of real crimes are brought to justice and not to extrapolate and misapply the laws or waste government resources in fabricating crimes and criminals. Society sees the ideal prosecutor as a public official who plays his role with integrity in a judicial ritual designed to determine the truth.
In this particular case, the government attorney violated the law and her professional responsibility of ethical conduct. She violated Dr. Carayannis' constitutional, civil , professional and human rights by destroying his life and accomplishing nothing, at great cost to the American taxpayers. It is our sincere hope that the Department of Justice will put an end to the misapplication of the money laundering statutes and the disproportionate sentencing levels for non drug related cases. Punishment should be proportionate to the offense. It is our sincere hope and expectation that your Office will properly review and investigate these very serious charges and take appropriate action. This is particularly important in view of pending Congressional legislation (H.R.3396 Citizens Protection Act of 1998, introduced March 5, 1998 by Congressmen Joseph McDade and John Murtha, and already endorsed by 126 members of Congress).
Sincerely,
The Support Committee
Enclosures: Exhibit A. Summary of Prosecutorial Misconduct
Appendix B: Sworn Affidavit of Dr. George Pararas-Carayannis
Appendix C: Excerpts from Court Transcripts
cc: Attorney General Janet Reno
Mr. Bill Lann Lee, Civil Rights Office, Department of Justice
Mr. Michael R. Bromwich, Inspector General, Department of Justice
Members, Senate Judiciary Committee
Members, House Judiciary Committee
Commissioners, U.S.Sentencing Commission
Representative Joseph McDade
Representative John Murtha
Senator Daniel Inouye
Senator Daniel Akaka
Representative Patsy Mink
Representative Neil Abercrombie
Summary of Prosecutorial Misconduct in the "Sting Money Laundering" Prosecution of
Dr. George Pararas-Carayannis in Hawaii
(As Documentation by Court Transcripts and Affidavits)
Deceptive Prosecutorial Practices in the Structuring and Conduct of the "Money Laundering Sting" Operation: In the absence of probable cause, an elaborate "sting" operation was orchestrated by the U.S. Attorney's Office in Hawaii (under former U.S. Attorney Daniel Bent), targeting Dr. George Pararas-Carayannis ("Dr. Carayannis"), The targeting, in addition to fabricating "money laundering" conduct, had other multiple objectives of entrapment. The case was assigned to AUSA Florence T. Nakakuni for the development of the prosecutorial "sting" scenario which would warrantee Dr. Carayannis' conviction.
AUSA Nakakuni instructed the undercover agent, a young attractive policewoman, to befriend Dr. Carayannis and to ask for his help to process through his merchant credit card account, a few credit card slips of her newly started "escort service", because she had not as yet opened a merchant account of her own. She was not allowed to make any other representation. Even after the money laundering "sting" had been concluded, she was instructed to keep on seeing Dr. Carayannis to fabricate misconduct with his work and to bombard him with numerous, subtle solicitations for the purpose of entrapping him in some form of wrongdoing. (Example: To explore the possibility that he might know of someone who may be interested in buying an expensive Rolex watch which, according to hearsay, "had been taken from a Japanese tourist" by a friend of a friend).
Intimidation and Badgering of Government Witness /"Confidential Informer"; Failure to Disclose Her Past Criminal Record or That She Was Under Criminal Investigation for Unrelated Charges: AUSA Florence Nakakuni failed to disclose the criminal record of the government's "confidential informer" and key witness, Keiko Takeoka, thus concealing the prosecutorial stranglehold on that person and her motivation for cooperating. Court testimony and cross examination of Keiko Takeoka shows that she was a foreign national who was intimidated, badgered and threatened with deportation for her attempt to bribe a Water Department official, ten years earlier, unless she agreed to become the key government witness, and assist with the structuring of the "money laundering sting" against Dr. Carayannis.
Keiko Takeoka was a registered Interior Decorator (K.T. Originals) who had met Dr. Carayannis at the open house of the apartment she was selling, five years earlier, in 1988. According to her trial testimony, in addition to her interior decorating business and the sale of decorating accessories, in 1988, she had briefly operated an escort service. Takeoka testified that an Immigration Officer who was cooperating with AUSA Nakakuni, had befriended her, had weekly social meetings with her, and had recruited her to be the government "confidential informer". Takeoka' testimony suggests strongly that promises were made that she would not be deported if she helped incriminate Dr. Carayannis with the government's "sting". Keiko Takeoka, was instructed to reestablish telephone contact with Dr. Carayannis, and to arrange for an introduction of her "very beautiful girlfriend who was breaking up with her boyfriend and needed some help with her business". This "girlfriend" was the government's undercover agent in the "sting" operation.
Prosecutorial Misconduct in the Grand Jury Process; Abuse of the Grand Jury Process Through the Fabrication of Probable Cause: In order to fabricate "probable cause", AUSA Nakakuni, through erroneous affidavits, misrepresented to the Grand Jury third-party"statements" attributed to the "confidential informer" Keiko Takeoka, . Subsequently at trial, Keiko Takeoka denied of ever making these statements to anyone, verbally or in writing, including the Grand Jury, AUSA Nakakuni or the IRS-CID case officer. The only representation she ever made to AUSA Nakakuni or to the IRS-CID case agent, was that she operated briefly an escort service, in 1988. AUSA Nakakuni, misrepresented to the Grand Jury both the law and the "evidence" requirements of 18 U.S.C. § 1956(a)(3), to get authorization for the "sting"against Dr. Carayannis, without probable cause, and later, to obtain an indictment which was defective, and lacking legal standing.
Nullification of the Defense of Entrapment : AUSA Florence Nakakuni, specifically, instructed the undercover agent to avoid and circumvent representation of unlawful activity in the "sting" as required by due process of 18 U.S.C. § 1956(a)(3). For subsequent meetings of Dr. Carayannis with the undercover agent and after the money laundering portion of the "sting" had been concluded , AUSA Nakakuni directed carefully the scenario of "conversations" to nullify the anticipated defense of entrapment. Experience had been gained from a previous money laundering "sting" in the district (Hardy) which had failed and the defendants were acquitted by the jury based on the government attorney's overt efforts to entrap and because of defendants' lack of "predisposition". Thus, fabricating Dr. Carayannis' "predisposition" after the conclusion of the money laundering sting, was essential for his conviction by the government prosecutor.
Transcripts and the Court record of the cross examination of government witness Dana Kresich (the undercover agent presenting herself as "Lori McEwan) shows that she had been instructed by AUSA Nakakuni to introduce at subsequent meetings inferences and innuendoes. Although vague, irrelevant and totally out of context with the on-going conversation, such subtle and out of context inferences and innuendoes, some recorded separately, were woven and edited into previously unintelligible segments of the videotapes, then creatively edited and expanded into transcripts. These were be interpreted erroneously by AUSA Nakakuni as the circumstantial evidence of Dr. Carayannis' "predisposition".
Tampering of Evidence Before and During Trial: The court records show that the surreptitiously obtained videotape evidence of the "sting" operation was handled by several government witnesses without proper "chain of evidence" or accountability. During that period a critical portion of the conversation of the first meeting of Dr. Carayannis with the undercover agent was crudely erased.
Subsequently, AUSA Nakakuni instructed the case agent and a postal inspector to send the videotapes twice to an electronic audiovisual laboratory in Washington D.C. for "enhancement". Later, the electronic expert who "enhanced" the videotapes was brought to Hawaii (with his equipment ) for six weeks to be the government's witness at trial and to further "enhance" the same videotape evidence in his hotel room where these videotapes were taken, during trial and even while the Court was in session. This government witness, Mr. James Foye, was not be required to testify as to what he was doing with the court's admitted evidence in his room during trial and while the court was in session.
Exculpatory Evidence Which Would Have Prevented Continuation of the Undercover "Sting" or Would Have Impeached the Key Government Witness, Was Tampered and Crudely Erased : As indicated above and supported by court record of testimonies, the audio portions of the "sting" videotape evidence which would have exonerated Dr. Carayannis was significantly altered. Exculpatory portions favorable to Dr. Carayannis were made unintelligible, during the "enhancement" process. A critical portion of the audio part of a conversation of the first meeting with the undercover agent was crudely erased claiming "TV station interference". Leaving that portion in would have prevented continuation of the "sting" and subsequent issuance of an indictment , or would have impeached the key government witness (the undercover agent).
Abuse of the Prosecutorial Charging Function: The government attorney indicted and selectively prosecuted Dr. Carayannis with insufficient evidence and without legal standing. Prosecution was based on mischaracterizations of the facts on record, reliance on fabricated inferences and innuendoes, and on a broad interpretation and extrapolation of 18 U.S.C. § 1956(a)(3), the "sting" money laundering statute, as not requiring the same degree of proof of underlying elements as the "actual" money laundering statute, Title 18 U.S.C. § 1956 (a)(1)(B)(i)) (which requires the proof of an actual underlying felony offense) .
Prosecutorial Manipulation of the Media: A theatrical arrest and humiliation of Dr. Carayannis was staged by the U.S. Attorney and AUSA Nakakuni. Dr. Carayannis was arrested and handcuffed by gun bearing agents at his office in the Federal building in full view of fellow co-workers and members of his staff. The arrest was followed with prearranged television coverage, press releases, and pre-scheduled press conferences, intended to try the case in the media. The boot strapped media publicity was intended to discredit Dr. Carayannis's, damage his reputation and cause his suspension from his government position, while aggrandizing artificial prosecutorial efforts of "fighting crime". Over a two year period, there were subsequent leaks by the government prosecutor to the media of erroneous information alleging "other crimes" and bogus "continuation of the criminal investigation".
The Government Attorney Authorized and the IRS's Criminal Investigation Division Conducted Illegal Raids, Searches and Seizures by Gun-Bearing Members of the U.S. Attorney's "Organized Crime Strike Force": Without probable cause, the U.S. Attorney's Office, through AUSA Nakakuni, authorized warrant less illegal raids, searches and seizures by gun-bearing, IRS agents of the Criminal Investigation Division, FBI agents , U.S. Postal Service inspectors, undercover Honolulu policemen and numerous other members of the U.S. Attorney's "Organized Crime Strike Force". Concurrent with Dr. Carayannis' arrest, two "Strike Force" teams, led by IRS-CID agents, staged Gestapo-like raids which ransacked his office, house and car. Members of Dr. Carayannis's family and friends were intimidated by the gun-bearing agents to allow entry into Dr. Carayannis' home to conduct their illegal, warrant less search, in what was a clear fishing expedition. These agents removed and seized a total of 50 boxes of irrelevant personal belongings, including family photo albums. They left Dr. Carayannis' office and home as though it had been struck by a hurricane. For one of the office searches which was performed late at night with a warrant, the court found the warrant to be "broad" and lacking "particularity" (clearly a fishing expedition). In the post-indictment period, there were subsequent illegal entries, surreptitious searches of Dr. Carayannis' home during his absence, wiretapping, continuous surveillance and other efforts to entrap him.
Abuse of 18 U.S.C. § 1956(a)(3), the "Sting" Money Laundering Statute to Violate Federal Labor Laws and Merit System Protections: The government attorney, AUSA Nakakuni, conspired with the employer' attorney Thomas Magnetti (U.S. Department of Commerce) to use the "money laundering sting" to fabricate and cause Dr. Carayannis' suspension and termination of government employment. The scenario of the "sting" called for the additional fabrication of "nexus" and of "work-related misconduct". AUSA Nakakuni instructed the undercover agent to telephone Dr. Carayannis at his work rather than at home to arrange to meet with him. These telephone calls and a surprise visit at Dr. Carayannis' office by the undercover agent was the fabricated "work-related misconduct". Court testimony and the government's surreptitiously-obtained recordings, prove that no misconduct took place, real or imaginary. The conversations were completely innocent. In spite of the absence of any evidence of "work related" misconduct Dr. Carayannis, was suspended indefinitely without pay. AUSA Nakakuni's actions in the "sting" to fabricate conditions for the termination of Dr. Carayannis employment, after 25 years of public service, were in clear violation of federal and state labor laws and of Merit System Protections of federal employees. Congress did not intend its "anti-drug legislation", 18 U.S.C. § 1956(a)(3), the "Sting" Money Laundering Statute, to subordinate Labor and Merit System laws, or to use "sting" operations as a way of terminating the employment of government workers. AUSA Nakakuni's decision to fabricate "misconduct" through the "sting" was an abuse of the money laundering statute, was highly prejudicial and a clear violation of Dr. Carayannis civil and professional rights.
Post-indictment Prosecutorial Misconduct; Efforts to Obtain "Incriminating Statements" in the Absence of Retained Counsel; Unlawful, Ex-Parte Interrogation: During the post-indictment period and during the defense attorney's communicated absence from Hawaii to AUSA Nakakuni, she conspired with the same attorney of the Department of Commerce to hurriedly schedule and conduct an unlawful, ex-parte interrogation of Dr. Carayannis, without the benefit of his counsel. This was a willful act, an unlawful, ex-parte communication intended to collect "incriminating statements" to strengthen the weak "sting" money laundering charges or to find some other basis for collateral prosecution.
AUSA Nakakuni contacted Department of Commerce attorney, Thomas Magnetti, in Washington D.C. to let him know that Dr. Carayannis' attorney would be out of town. She urged him to arrange for a "deposition" under the pretext of the pending administrative proceeding pertaining to Dr. Carayannis' suspension, Furthermore she provided him with a list of questions for the "deposition". The Department of Commerce attorney, acting as an undercover agent for AUSA Nakakuni,, coerced and deceived Dr. Carayannis to submit to the illegal deposition by threatening him with loss of job, and retirement pension, if he did not agree. During the course of this deposition, and acting on behalf of AUSA Nakakuni, he questioned Dr. Carayannis extensively on the "criminal matter" from the list of questions given to him. A major portion of this interrogation focused on Dr. Carayannis' 1991 finances and assets, the year in which he had purchased his home. A couple of weeks after this ex-parte communication, AUSA Nakakuni conspired with AUSA Daniel Linhardt of the Eastern District of California to indict criminally Dr. Carayannis under the color of 18 U.S.C. § 1014. This criminal indictment alleged a phony violation of filing an incorrect mortgage application with a federally insured bank. Concurrently, a lien of forfeiture was placed on Dr. Carayannis' home under the color of 18 U.S.C. § 982 (a)(2) (see details below and in Affidavit).
Denial and Interference of Proper Discovery; Withholding Favorable Exculpatory (Brady Material) Evidence and Records from Defense and, Later at Trial, from the Jury: AUSA Nakakuni, intentionally provided damaged and unintelligible copies of the surreptitiously-obtained "sting" videotapes so they could not be properly transcribed by the defense's court reporter. Because of the damage and the audio interference superimposed upon these videotapes (music, sounds of car engines, rattling of plates e.t.c.), the defense's court reporter was unable to transcribe them properly.
Subsequently, AUSA Nakakuni provided five different versions of the government transcripts of the same "sting'" videotapes, which were had been creatively-edited for the numerous unintelligible portions. The government attorney further acted to frustrate and impede Dr. Carayannis' right to discovery of Brady material, claiming that certain records "did not exist". These "non-existent" records were readily provided to employer's attorney and numerous others and were indicative of the real motives of the "sting" targeting and reasons for Dr. Carayannis' selective prosecution which AUSA Nakakuni did not want the jury to know. Subsequently, after trial, and although listed by report number in the pre-sentencing report, these reports were still refused to the defense, as still being "non-existent".
Intentional Post-Indictment Delays of Trial to Gain Tactical Advantage: There were several intentional and unreasonable delays of 18 months in holding the trial for the "sting" money laundering charges. During this period, AUSA Nakakuni tried to gain tactical advantage and to help strengthen her weak "sting" money laundering case by claiming "continuing criminal investigation". During this period an effort was made to intimidate Dr. Carayannis by threatening him to "plea-bargain" or face additional charges. Each time he refused, he was penalized with a superseding indictment on additional phony charges.
A total of three such retaliatory indictments were served upon Dr. Carayannis, causing him great emotional stress and forcing him to spend all of his retirement savings on legal fees. Two of the retaliatory indictments were dismissed. A second superseding indictment with three "criminal counts" and no legal standing was allowed to go to trial. The jury acquitted Dr. Carayannis of these three counts.
Further Abuses of the Charging Function: These collateral indictments were issued over a two year period for the purpose of harassing, obfuscating, and causing Dr. Carayannis' financial destruction because he did not "plea-bargain" to a guilty plea on a "count of his choice" out of the four "sting"money laundering counts. The abuses of the prosecutorial charging function included the following:
1. Misapplication of Title 18 U.S.C. § 1014 and 18 U.S.C. § 982 (a)(2); Interference With the Attorney-Client Relationship: After Dr. Carayannis' first refusal to "plea-bargain", AUSA Florence Nakakuni and AUSA Daniell Linhardt ( Eastern California District) cooperated in misapplying 18 U.S.C. § 1014 and 18 U.S.C. § 982 (a)(2) against Dr. Carayannis. A criminal indictment was issued charging that he"had overstated the value of his car and boat in his mortgage loan application to a federally insured bank" A lien of criminal forfeiture was placed on Dr. Carayannis' house preventing its pending sale to pay for his legal defense.
There was subsequent interference with attorney-client relationship in that these government attorneys conspired with Dr. Carayannis' attorney in Hawaii to deceive him to sign and turn in Rule 20 papers, allegedly as necessary only for "Change of Venue" of the case from California to Hawaii. These government attorneys did not disclose that such signing precluded an admission of guilt, and that the change of venue was only for the purpose of sentencing. (The indictment was dismissed after 7 months. See Affidavit)
2. "Misapplication of Title 26 U.S.C.§ 7206(1): After Dr. Carayannis' second refusal to "plea-bargain", AUSA Nakakuni, in collaboration with the Criminal Investigation Division of the IRS, issued a superseding criminal indictment. The indictment alleged that Dr. Carayannis "overstated deductions" of utilities and purchases of supplies (by a few hundred dollars) in his income tax return for a year for which he had been previously audited and had passed the IRS civil audit with no change in tax. This indictment was dismissed 14 months later, two days before scheduled jury trial, but only after forcing Dr. Carayannis to spend the balance of his retirement savings in legal fees defending himself on false charges which AUSA Nakakuni never intended to go to trial because they lacked legal standing.
3. Misapplication of Title 18 U.S.C. § 1956 (a)(1)(B)(i): After Dr. Carayannis' third refusal to "plea-bargain", and 16 months after his arrest and initial indictment, another criminal superseding indictment was issued, for "actual" money laundering. Allegedly, five years earlier, in 1988, he had disguised and concealed the proceeds ($1100) of an actual " escort service", The alleged "escort service" belonged to the government's "confidential informer", none other than Keiko Takeoka, the foreign national threatened to assist with the "sting" or be deported.
Keiko Takeoka testified that she was a certified and registered Interior Decorator, that she was selling accessories and that briefly, in 1988, indeed she also owned an escort service. Furthermore, she testified that she had never been involved with any unlawful activity (other than an attempt to bribe an official of the Water Department 10 year earlier). and that she never made any representation of unlawful activity to Dr. Carayannis.
This witness's testimony indicated, not only that there was no legal basis for the three counts of "actual" money laundering but that AUSA Nakakuni had misrepresented to the Grand Jury this witness' "statements" in order to fabricate "probable cause" and get authorization for the sting and for the subsequent indictment. Dr. Carayannis had indeed helped Takeoka in 1988 to process $1100 in credit card slips through his merchant account because Takeoka did not have an American Express Account. However the proceeds had been represented to be from sales of her decorating accessories No other representation had been made. Finally, the alleged transaction and the net benefit of $38 had not been concealed or disguised. They had been declared properly by Dr. Carayannis in his income tax return that year (1988). The jury acquitted Dr. Carayannis of the false three counts which should not have gone to trial because there was no legal standing. Knowing that there was no legal standing for conviction, AUSA Nakakuni had fabricated and introduced these "actual" money laundering counts to prejudice the jury in that Dr. Carayannis must have had "predisposition" and, therefore, the entrapment defense was not available to him for the "sting" counts.
Prosecutorial Coercion to Influence and Change the Testimony of Key Government Witness: Further trial testimony of the Government key witness and "confidential informer", Keiko Takeoka, indicates that while on the witness stand for two days, she was coerced and intimidated by AUSA Nakakuni to report to the U.S. Attorney's office, during lunch breaks and recesses, for instructions and guidance. Although, apparently shaken by the coercion and intimidation she was subjected to by the government attorney, Takeoka did not change her testimony drastically.
Misrepresentation of Evidence on Record and Elements of the Offense for Money Laundering Conviction: The government attorney, AUSA Nakakuni, misled the jury as to the requirements of proof of the underlying elements of the alleged "definitional money laundering" offense. Knowingly, she mischaracterized the facts and the evidence on record to prejudice the jury's exploration and consideration of acquitting Dr. Carayannis based on entrapment . Government witnesses were instructed to state that "all escorts services are fronts for prostitution", thus claiming that there was no need for representation or proof of an underlying state petty misdemeanor to find Dr. Carayannis guilty of "money laundering".
Prosecutor's Illegal Removal of Admitted Court Evidence; Illegal Removal and Tampering: AUSA Nakakuni showed total disregard for the law, for the Rules of Evidence and Procedure, for ethical standards of her profession and for Dr. Carayannis' constitutional right to a fair trial. She instructed IRS-CID government witnesses to remove all of the Court's admitted evidence daily, because the "court did not have an evidence storage facility" and because "this has always been the practice in this district since I came here". Other government witnesses were given the evidence and the means by which to alter it (equalizers, synchronizers and audio and visual editing equipment). Furthermore, during trial and while the court was in session, AUSA Nakakuni instructed government witnesses (IRS-CID agents) to take illegally the Court's admitted evidence to the hotel room of another government witness, Mr. James Foye, the audiovisual expert and witness brought from the Washington D.C. area for the entire six week period of the trial. This witness' room had been converted into an electronic laboratory complete with computers and digitizers for "enhancing" videotapes. Other government witnesses, also audio-visual experts (the original videographers) were allowed to handle the videotapes and the "enhancing" instrumentation.
Conclusion: The Prosecutorial Misconduct Summarized Above, Subverts and Undermines the Criminal Justice System, Discredits the Department of Justice, and Betrays Public Trust: Removing the Court's admitted evidence , during trial and while the Court was in session, because the "court did not have an evidence storage facility" and because "this has always been the practice in this district since I came here", are unacceptable legal, ethical, or professional standards for any attorney.
The egregious prosecutorial conduct outlined above is condemnable. Such misconduct of misapplying the laws, obstructing justice, violating Citizens' constitutional rights, ignoring the Rules of Evidence and Procedure, and disregarding ethical and professional standards, discredits the Department of Justice, undermines the integrity of the Criminal Justice System, and betrays Public Trust.
The Support Committee
DOCUMENTATION
EXCERPTS OF COURT TRANSCRIPTS DOCUMENTING ONE ASPECT OF MISCONDUCT OF ASSISTANT U.S. ATTORNEY FLORENCE NAKAKUNI - THE ILLEGAL REMOVAL OF ADMITTED COURT EVIDENCE AND TAMPERING DURING TRIAL AND WHILE THE COURT WAS IN SESSION.
Excerpted testimony of government witnesses stating viewing the Court's "evidence" in a hotel room and an IRS office when it was improperly removed from court, during trial and while the court was in session.
PARTIAL TRANSCRIPT OF TRIAL PROCEEDINGS Vol 14, 12/9/1993
Summary: Government Witnesses, DESHEA and KALAU testified that they viewed the court's evidence, the videotapes (Exhibits 4-8), at Mr FOYE's hotel room and the IRS Office, during trial and while the Court was in session. Defense Attorney AU expressed surprise for the improper handling of the evidence and asked for an explanation. The Jury was excused and the court held a short hearing outside the presence of the jury during which the improper removal of the evidence was discussed. Mr. Au held strong objections to the misconduct in the handling of the evidence, particularly since the issue of tampering had been raised repeatedly during trial. He wanted the tapes (and transcripts) withdrawn from evidence. The Court agreed to rule on the issue. The Jury was allowed to start deliberations without knowledge of the government attorney's misconduct related to the daily removal of the evidence from the courtroom or its excursion to Mr. Foye's hotel room. The following is excerpted testimony of ALIKA DESHA, Police operator of hidden videocamera in specially equiped Police Van that recorded remotely the conversation between Dr. Pararas-Carayannis and the undercover agent ("Lori") in the government's undercover "money laundering sting". Mr. DESHEA was the government's witness asked to authenticate the challenged videotapes, not at the beginning of the trial when the admission of the videotapes was challenged, but at the conclusion of the trial, and after the tapes had been allready admitted into evidence without proper authentication or chain of custody.)
CROSS EXAMINATION OF GOVERNMENT WITNESS DESHEA BY MR. AU (DEFENSE ATTORNEY):
Q. What time did you view these videotapes?
A. Yesterday afternoon, approximately 12:30, quarter to 1:00.
Q. In this courtroom?
A. No, I didn't.
Q. Where was it viewed at?
A. It was in a hotel room.
Q. In a hotel room?
A. Yes, sir.
Q. What hotel was this?
A. Mr. Foye's room.
Q. And what hotel was this?
A. Hilton Hawaiian, Hilton Hawaiian Village.
Q. What room number?
A. 1362, I--I'm almost sure 1362.
Q. Who was present for this viewing in his hotel room at the Village in Waikiki?
A. Mr. Foye, Jan Tompkins, myself and Clint periodically was there. Periodically he was in and out.
Q. How long were you there?
A. I left the room approximately 4:40 in the afternoon. ...................................................................................................
TESTIMONY OF ALFRED KALAU (VOL. 14, 12/9/ 1993) (The following is the excerpted testimony of ALFRED KALAAU, another Police operator of the hidden videocamera in a specially equiped Police Van that recorded remotely one of the conversations between Dr. Pararas-Carayannis and the undercover agent ("Lori") in the government's undercover "money laundering sting". Mr.KALAU was the government's witness asked to authenticate the fifth videotape, not at the beginning of the trial when the admission of the videotapes was challenged but at the conclusion of the trial and after the tapes had been already admitted into evidence without proper authentication or chain of custody.)
DIRECT EXAMINATION BY GOVERNMENT ATTORNEY (Continued)
Q. Now, let me ask you this. Did you ever alter, make any alterations or changes to Exhibit 8?
A. No, I didn't.
Q. Have you more recently reviewed Exhibit 8?
A. Yes, I did.
Q. When was that?
A. On Monday...
Q. Th1s past... A. ...at 4 o'clock, yes.
Q. And where was it at?
A. In the office of Jan.
Q. Tompkins?
A. IRS, I should say.
Q. The IRS office?
A. Yes.
Q. In the Federal Building?
A. Yes.
CROSS-EXAMINATION BY MR. AU, Dr. Pararas-Carayannis' Defense Attorney. (Continued)
Q. Now, Officer, you said you viewed this videotape on Monday?
A. Yes.
Q. When were you first contacted to view the videotape?
A. On Friday, I think it was, last week Friday.
Q. By whom?
A. By the U.S. Attorney and by Ms. Tompkins.
Q. You spoke to both of them?
A. Yes.
Q. All right, sir. Now, sir, may I know what time of the day on Monday you reviewed this Exhibit 8?
A. We started about around 4:00, 4:30, I believe.
Q. And who was present in the room when you reviewed it?
A. Ms. Tompkins.
Q. What kind of equipment did she use to show it to you on?
A. We had a video recorder and a monitor.
Q. Did you have an equalizer in the room?
A. No, we didn't.
Q. Are you sure?
A. Yes. Q. Who played the machine?
A. I did.
Q. You played it by yourself? Nobody assisted you.
A. No.
Q. All right, and how long did it take you to view that tape?
A. Approximately 35 minutes.
REDIRECT EXAMINATION BY GOVERNMENT ATTORNEY
Q. Mr. Kalaau, I think you might have, even in response to me stated that you viewed this videotape on Monday. Wasn't it Tuesday, after Court?
A. Yes, it was; I'm sorry. Because you called me on Monday.
GOVERNMENT ATTORNEY: No further questions, your Honor.
RECROSS EXAMINATION BY MR. AU
Q. Excuse me, was it Monday or Tuesday, now?
A. It was Tuesday.
Q. You forgot?
A. Yes.
Q. You forgot it was Tuesday, not Monday?
A. I'm not sure until she reminded me of, yes.
Q. And you're very sure that the tape you saw a year and half ago is the same tape.
A. Yes.
MR. AU: Thank you.
Excerpts of the Trial Record, Vol 16, 12/13/93 MORNING SESSION (Jury not present)
Summary: (MONDAY, DECEMBER 13, 1993). The jury asked to view first all five videos, then one of the videotapes of the meeting of 1/28/92 at McCoy Pavillion, the first meeting of Dr. Pararas-Carayannis with undercover officer Kresich ("Lori"). This is the tape which had a crude erasure of exculpatory evidence favorable to Dr. Pararas-Carayannis when he asked "Lori" qestions which would have nullified the government's continuation of the "sting". Television interference had been claimed for the unexplainable erasure. Officer Kresich had testified erroneously as to the context of the conversation that had been erased. Defense attorney Au had crossexamined Officer Kresich and had demonstrated to the court that her testimony on the erased portion was false. The 1/28/93 tape had been challenged as having been crudely tampered with before trial. The Court ruled that based on the December 10, 1993, testimony of Mr. DESHEA and Mr. KALAU as to their viewing of the videotapes in Mr FOYE's hotel room and the IRS office, none of the tapes would be shown again to the jury).
THE COURT: Good morning.The Court has received a request from the jurors that they would like to see the five videos. Any problem?
MS. NAKAKUNI: No, your Honor.
MR. AU: Well, your Honor, we have, the Court knows we have consistently objected to the chain of evidence, and I know you've overruled our objection; but even during the trial the videos left the courtroom, as we are well aware of, and went to Waikiki, and it also went to the IRS office; and probably those witnesses should not even have been allowed to testify, because of the witness exclusion rule, and they were able to see live testimony out of the courtroom as the net effect of it, because the videos are live testimony. But notwithstanding that, your Honor.
THE COURT: They had seen all of that before the trial, Mr. Au.
MR. AU: I understand. I'll tell you something that compounds this further, your Honor. The video, because the transcript is not in evidence, my understanding it was not recorded as official part of the record when it was first shown.
THE COURT: What was not recorded?
MR. AU: The video, what was said on the video was not recorded as official part of this transcript, and it wasn't taken under oath; and the problem is that...
THE COURT: Well, it's in evidence.
MR. AU: Yes, your Honor. But what I'm saying is it's a part of the evidence, and it's live testimony. That's what the net effect of it, but while it's in evidence, it's not part of the official transcript; and if, if there was a change, however slight, between the time it was put in evidence and the time now that they look at it again, your Honor, if there was a change however slight, we would have no way of knowing that. That's what I'm trying to make, because of the fact that we have no way of comparing what was said the first time; and to say that the jury could remember four hours of video and every change, when they only saw it once, I think would be a Herculean task, your Honor.
THE COURT: Well, if there was any change, which would be about the stupidest thing the government could possibly do, it would be very noticeable to you and to Mr. Carayannis. You will have to be here watching it with the jury. The Ninth Circuit requires that counsel and the defendant and the court reporter remain while the jury is viewing the tape, so you will have that safeguard.
MR. AU: Might I bring to the Court's attention, your Honor, that the videos have become in such tremendous dispute, and the Court recalls that I ordered the official transcript of the primary officer in this video, Ms.Kresich, on her rebuttal testimony; and I read it to the jury, very brief testimony, of what was cut out on the silent portion, if you recall my final argument summation on Friday; and then I read the actual not-in-evidence transcript, and it was clearly...
THE COURT: Not-in-evidence transcript.
MR. AU: That was the McCoy Pavilion, Exhibit 1A, I believe, whatever it was, your Honor. I think it's 1A.
THE COURT: Oh.
MR. AU: The Court remembers my final summation.
THE COURT: But, again, the tape is in evidence, and likewise your final argument is on the.
MR. AU: Yes.
THE COURT: ....transcript now.
MR. AU: The reason I bring this to the Court's attention is the Court has intimated that it might be foolish for the government to have altered the tapes in any degree; but I wish to bring to the Court's attention that the primary witness in this case testified inconsistently, as I pointed out to the jury, as to what was the silent portion of the tape. I read to the jury what was on the recorded portion of the tape, and it was identical to what the Court, what she says was on the silent portion of the tape, and I based it upon the official transcript which I ordered, your Honor, which was very brief. She was brought back for that limited purpose on rebuttal. So the only reason I raise this to you, your Honor, is to show in this case, even more so because the tapes are in dispute, how far the witness has gone, in terms of what the jury could find as falsifying the evidence in this case, your Honor; and more so, I believe that the fact that it went to the hotel room of the technician who had enhanced copies, or whatever you want to believe in this case, it went to his room for however long, your Honor, for viewing during the trial after it was placed in evidence. I suggest to this Court, your Honor, that there has been a...-even if the Court found a basis for a chain of evidence, the time it went in evidence, that since then that chain of evidence is to the Court doorsteps when your Honor allowed it in evidence, over our objection, has been broken even more severely now, because it has violated the sanctity of what's in evidence and what's not in evidence. And for the Court to now allow it, I believe, would be compounding a problem that existed without a chain of evidence when it went into evidence.
THE COURT: Well, are you objecting to the jury viewing the tapes?
MR. AU: Yes, your Honor; because of the reasons have just stated. I don't think--I don't think Officer Kalaau and Officer Desha should have even been allowed to testify, because they were seeing in camera evidence in Court out of Court, and the witness exclusion rule was in effect at the time. That is evidence, your Honor, what was in the courtroom; and we had an exclusionary rule in effect, and they were allowed to violate that rule, among other things. Plus you have a severe chain of evidence problem, which the government cannot give any basis for it, which I won't get into again, your Honor.
THE COURT: Ms. Nakakuni.
MS. NAKAKUNI: Yes, your Honor. This chain of evidence argument by the defense is the same argument that we've heard throughout this trial after about the first several days. But with respect to the tapes, I think as I pointed out, and the Court would agree...
THE COURT: Well, do you have any problem if we simply tell the jury they can't see the five videos?
MS. NAXAKUNI: Your Honor, I thing they're entitled to see that. My only concern would be the jury would wonder why they can't see it.
THE COURT: We simply tell them they can't see it,take up too much time.
MS. NAKAKUNI: Your Honor, my only concern is I don't know if that would be error, and I certainly wouldn't want to be urging.
THE COURT: Well, how could it be error if the defendant is the one asserting that he doesn't want the jury to see the five videos?
MS. NAKAKUNI: Your Honor, unless would it be possible to query, and ask them if they have a specific videotape that they would want
THE COURT: Well, Mr. Au will raise the same objection.
MS. NAKAKUNI: Your Honor, before I agree to that, I would simply--your Honor, I would need to check. I would want to check back with some of the colleagues in my office who have more experience than me, and I'd like to do some brief research; only because, as this Court knows, there are instances even if the defendant agrees to something it could be deemed error; and I wouldn't want to be doing anything like that.
THE COURT: All right, will half an hour enough time for you?
MS. NAKAKUNI: Yes, your Honor.
THE COURT: We'll meet again at 12:00.
(Recess) (Jury not present)
THE COURT: Ms. Nakakuni.
MS. NAKAKUNI: Yes, your Honor. It's the government's position that we do want the jury to be able to review evidence. This would be different from a read-back of a transcript of a witness' testimony; so I don't want to be on record as saying they can't view something that's in evidence; although I understand, from the Kupau case, that if it's error, it's probably invited error or--probably invited error, your Honor, or...
THE COURT: What are you talking about? What's invited error in the Kupau case?
MS. NAKAKUNI: I'm sorry, not invited error, but harmless error; the fact that--I guess that's different, your Honor. Let me proceed.
THE COURT: The Kupau case is not on point, as far as the issue that Mr. Au has raised.
MS. NAKAKUNI: Yes, your Honor, and I just wanted to go on from that. It is my position that I want the jury to be able to view its own evidence; and so, my suggestion and compromise to Mr. Au that I told him was that I would agree that the jury could view the videotapes without the transcript, and basically have them locked up in this courtroom with the necessary precautions taken to insure the sanctity of the jury deliberation rule. And what I also suggest...
THE COURT: Well, what kind or a compromise is that? He alleges that the government tampered with the tapes.
MS. NAKAKUNI: Yes, your Honor. But that's why I would want the transcript to be shown with the videotapes, because the transcripts, the exhibits that were published to the jury, have remained in the custody of the Courtroom Deputy. After we gave the transcripts, Exhibits 4A, 5A, 6A, 7A and 8A to the Courtroom Deputy, the Courtroom Deputy was the one who passed up transcripts out to the jury and retrieved them; and to my knowledge, they have been behind her all this time.
THE COURT: Now, that's ironical. However, we have instructed the jury that they are to be guided by what they hear on the tapes, if there's any inconsistency.
MS. NAKAKUNI: Yes, your Honor.
THE COURT: ....with what they see in the transcript.
MS. NARAKUNI: Yes, your Honor. Now, what I was going to suggest was that the Court first inform the jury that, in order to view any videotapes, that everybody would basically have to reassemble here, the parties, the Judge, and everybody else; so could they specify which tape or tapes they would like to hear; and based upon their response.
THE COURT: That doesn't address the issue that Mr. Au raised either.
MS. NAKAKUNI: I understand that, your Honor. I guess what I'm saying is, I will not agree or stipulate that the jury cannot see the videotapes. However, the Court obviously in its own discretion can instruct the jury that they will not be given the tapes. I just don't want to be on record saying that I agree that they should not be allowed to see evidence.
THE COURT: I mean, for example, what would happen if the Court allowed the tapes to be replayed; and then, during the course of the replaying, the defendant claims that the tapes have been altered?
MS. NAKAKUNI: Your Honor, that would be something that we have to I suppose address outside the presence of the jury. I mean, I understand the Court's position; and if the Court instructs the jury...
THE COURT: I mean, who then determines whenever or not there had been an alteration?
MS. NAKAKUNI: Your Honor, I guess there would be a little mini trial in the manner that I alluded to when this issue first came up; which was, if Mr. Au wanted to, he could cross examine the HPD Officers Ralaau and Desha and IRS Agent Tompkins. This is the date that I made a proffer --not a proffer, but I advised the Court on the record. I just created a record as to what had happened.
THE COURT: Well, he doesn't believe their testimony anyway.
MS. NAKAKUNI: I understand that, your Honor.
THE COURT: Mr. Au, is your position still that you object to the tapes being replayed?
MR. AU: Yes, your Honor; and this case further holds that where they ask for a transcript, I believe the Court held--I have read this someplace--that the transcript will not be available for them to read.
THE COURT: What?
MR. AU: This Kupau case.
THE COURT: Oh.
MR. AU: ...they wanted a transcript. The point I'm making.
THE COURT: The Kupau case barely survived being overruled and reversed. I want to ask Mr. Carayannis, do you agree with your defendant that you do not want the videos to be replayed?
THE DEFENDANT: Yes, your Honor; I agree with Mr. Au.
THE COURT: All right, very well. The Court's not going to allow the tapes to be replayed, then. The U.S. Attorney had custody of these videos, and gave custody of them to, the originals which were in evidence, to the IRS case agent, and they ultimately ended up being in Mr. Foye's hotel room and viewed there. The Court, in exercising its discretion, will not allow them to be replayed, given the defendant's charges that the government has tampered with the tapes. The defendant had made these charges earlier during the course of the trial. Under these circumstances, the Court will not permit them to be replayed. The Court has drafted the following response to the jury's question: "Members of the jury, this is in response to your note made at 9:55 A.M., on Monday December 13, 1993, requesting to see the five videos. The jury will not be permitted to see again the five videos". Is that response agreeable to both parties?
MS. NAKAXUNI: Yes, your Honor.
MR. AU: Could we consider adding the statement: You may use your memory; or something like that?
MS. NAKAKUNI: Your Honor, that's covered in the other jury instructions.
THE COURT: Well, where is it covered in the jury instructions?
MR. AU: I know that we get that request often in the State court, where they want to see the portions of the testimony or deposition again; and when the judge denies it, they generally put a statement in to the effect that: You are to use your best memory of the evidence in this courtroom; something like that, your Honor, words to that effect.
MS. NAKAKUNI: Your Honor, I'm sorry, I don't have my jury instructions with me; but words to that effect would be fine with us. I would simply ask that it track the instruction. (Document handed to counsel)
THE COURT- Instruction No. 3 in the instructions that refers to them as the judges of the facts.
MS. NAKAKUNI: Your Honor, I'm sorry, I was just referring to--this would be jury instruction No. 5, the third paragraph: "In the final analysis, however, it is your own recollection and interpretation of the evidence".
MR. AU: Well, rather than complicating, your Honor, we'll stipulate to the way the Court's prepared that. That would require the reading of the entire instruction.
THE COURT: Pardon me?
MR. AU: I think it would require the reading of the entire instruction; so rather than complicate it, your Honor, I would agree to the--we would stipulate to the way the Court has prepared it, your Honor.
THE COURT: Is that agreeable with you, Ms.Nakakuni?
MS. NAKARUNI: Yes, your Honor; it is. THE COURT: All right, I'll sign the response that you both have agreed to, and instruct the Deputy Clerk to--oh, we'll have to run off copies, and we'll give you copies, and that will be given to the Jury Marshal. So, again, please stay in close touch.
(Luncheon recess) AFTERNOON SESSION, December 13, 1993, 2:30 P.M. (Jury not present)
THE COURT: Good afternoon. We have another message from the jury, stating: "May we see one tape, 3-19-92? Position of the parties the same with respect to the first request to see the five videos?
MS. NAKAKUNI: Your Honor, I would expect the Court would give the same response.
THE COURT: Mr. Au? MR. AU: Objections would be for the same reasons given earlier, your Honor; and I have consulted with Mr.Carayannis.
THE COURT: You would object to the jury seeing this one tape?
MR. AU: Yes, your Honor.
THE COURT: And that's your position, too, Mr. Carayannis?
THE DEFENDANT: Yes; yes, sir, I agree.
THE COURT: All right, the Court has prepared the following response:"Members of the jury, this is in response to your note made at 1:40 P.M., on Monday December 13, 1993, requesting to see one tape. The Court should have been more precise in its earlier response. The jury will not be permitted to see again any of the five videos". Is that response satisfactory to both sides?
MS. NAKAKUNI: Yes, your Honor; it is, for the government.
(MOTION FOR MISTRIAL)
MR. AU: Yes, for the defendant, your Honor. Your Honor, we would like to, after the Court has completed this issue, I'd like to bring something up.
THE COURT: What' s that? MR. AU: Your Honor, Dr. Carayannis and I have been discussing this case out in the hallway, and more recently now; and I think in his best interest, Your Honor... I think in Dr. Carayannis' best interest, and it's through no fault of his that this has come about, I believe that there are more than adequate grounds at this point, since the jury has not returned the verdict yet, your Honor, to move for a mistrial.
THE COURT: Since the jury has not what?
MR. AU: Returned the verdict at this point, your Honor; to move for a mistrial, and my reason for doing that...
THE COURT: The jury has not dad nearly time to deliberate, given they just started this morning and they asked, you know, made two requests to see additional tapes. But anyway, go ahead.
MR. AU: Yes, your Honor. I think the mistrial has been brought on by the manner in which the United States Government has conducted the trial, your Honor; and it' s not through anything we've done either. You know, I mean, there have been just blatant rules violated, your Honor, that go to the heart of the case, as to Counts 1 to 4; and I don't know how to correct it, your Honor. I'll be honest, I really don't know how to correct that. Anyway, your Honor, I've made my motion.
THE COURT: Well, I again would say that--well, first, I'll let Ms. Nakakuni respond.
MS. NAKAKUNI: Yes, your Honor. I would oppose the motion for a mistrial at this point. As this Court has pointed out, this jury has barely deliberated. It's my recollection that the Court completed its charge to the jury at approximately 4:15 last Friday, and Mr. Au and I were here in the courtroom reviewing the evidence, when the jury left for the day at approximately 4:30; and it was my understanding they left at that time because at least one of the jurors had to return to one of the neighbor Islands. This morning I assume they began at 9:00. Their first message came out at 9:55, filed at 10 o'clock; and I don't believe the Court's response to them was given to them until probably approximately 12:30; and I would assume after that they went to lunch, and when they got back they sent out the second note. I would say it's premature, your Honor. This is, after such a lengthy trial, not even a day is hardly lengthy.
THE COURT: Mr. Au, anything more?
MR. AU: Yes. Very brief, your Honor. Your Honor, the entire case of the government on Counts 1 to 4 are these videotapes. Government was well aware of this. They went through great means of doing whatever they had to do with that. The Court, I believe, has been very fair with government, in terms of allowing them to put into evidence what they had to do; but I think, your Honor, that through no fault of the defendant, your Honor, these tapes have been allowed to be--fall in the wrong hands, your Honor, and it just should not have happened. And, I mean, I'm not putting blame ethically on anybody, your Honor, it's not why I'm raising, this motion. I'm just saying that on something this critical, your Honor, knowing that it is the entire case for the government 1 to 4, this should never have happened, your Honor. And now, there's a second request to see it again, because that's the entire case of the government; and the net effect of it, your Honor, is that because they have laid no foundation before the Court, that from the time it left Mr. Foye's hotel room to the time it came back, what happened, we don't know. You know, we're in a quandary now I what happened; and, frankly, why these machines all left the courtroom, which was rather evident last week, your Honor, and didn't come back until yesterday. All these machines left, your Honor; the equalizer and all these things left the courtroom last Thursday, were all removed from the courtroom, and didn't come back until yesterday at final argument, your Honor. They were all removed from the courtroom. And what I'm saying, your Honor, is that the crux of the case is the videotape 1 to 4. while the videotape helps, it hurts; while it hurts, it helps. Because we've got the entrapment defense, and there are good parts in there, your Honor. On the other hand, there are bad parts, the good parts; and but what's most disturbing, your Honor, is that being the crux of the case, the heart of the entire case, and I believe the Court is right in not letting them see it. I think the Court's absolutely right, because it may be compounding what the U.S. Government has already done without a showing. Now, the jury is prevented from seeing what they probably should have been able to see, had they not taken out of the courtroom. It's not that they didn't know any better; and so, they have caused this to happen. The government through its own conduct has caused this to happen; and I think, under the circumstances, recognizing that's the only thing the jury's asked for thus far, I think that a mistrial would be in order, your Honor.
THE COURT: Well Mr. Au, the Court out of an abundance of caution, in fairness to the defendant, acceded to your request and the defendant's request that the videos not be seen again by the jury, because of your suspicion which the Court feels is very unfounded; but because of your suspicion that somehow the government may have tampered with the tapes, after they were admitted into evidence, although the Court finds that any such tampering would have been directly contrary to the government's own case and best interests; nevertheless, out of an abundance of caution, and at the request of the defendant, the Court did not permit the jury to see tapes again. Now, if you want the jury to see the videos, the Court:t will permit the jury to see the videos; but it's been your request and the defendant's request that the Court has acceded to in not permitting the jury to see those videos again.
MR. AU: And I do believe that's the correct ruling under the circumstances, what ha.q happened, your Honor. I believe it's the correct ruling.
THE COURT: Ms. Nakakuni.
MS. NAKAKUNI: Your Honor, the argument that we have laid no foundation as to what happened with those tapes when it left the courthouse and went to Mr. Foye's hotel room; I believe I set forth all of that on the record, which is that at my request, based on testimony elicited by the defendant, that I decided to recall Mr. Desha and to call Mr. Kalaau; and again, this was based on the defendant witness Bergh testifying that, I believe, your Honor, he said in his opinion the best witness to say whether or not tape was the true and accurate tape was the videographer, the person who took it; and based on that representation, I believed and felt that I needed to rebut, offer rebuttal evidence in my rebuttal case, testimony from these two people the original videographers to say that these were true and correct videotapes. Of course, your Honor, in order to do that I needed to have them view them again, only because the last time both had seen the videos that they had videographed was within one or two days of the actual meetings that occurred, when they met with Ray Struss, as they both testified; and the videotapes themselves never left Agent Tompkins's custody. With respect to the videotapes that were shown to Mr. Desha, I believe he testified on the stand; but I will state for the record that Jann Tompkins, IRS Special Agent Jann Tompkins, had those exhibits which would be 4, 5, 6 and 7, the first four videotapes, and she took them to the hotel room and was present during the viewing; and after they were reviewed and viewed by Officer Desha, she brought them back where she had always retained custody. With respect to that one videotape, the last one, the 3-19 Exhibit 8 videotape by Mr. Kalaau, she had that in her custody at the IRS offices, and she was present throughout the viewing, and at no time did the videotape leave her custody at all in either case; and as I've stated before, it is my own experience and knowledge, based on being with the U.S. Attorney's Office since mid-1985, April 1985, that it is the practice in this District to have the United States retain custody; and to make doubly sure, I will advise the Court that I spoke with Mr. Chinn, Clerk of this Court, today, and he confirmed that it is indeed, has been the policy in this District for all United States District Court Judges to have the United States retain custody of all exhibits regardless of what they are,documents, recordings or contraband. Now, I agree, if that were not the policy, then taking them would have been improper; but based on the practice in this District, I don't believe I did anything improper; and I will represent for the record that, you know, nothing was done to those tapes; no editing, no-- nothing was done, your Honor, save and except for merely a display of the video and the audio to those two witnesses. And with respect to these machines leaving, we only cleared them out because we're done with trial, and-- no, I'm sorry, I think we, at my instruction, we simply removed them; and I guess we did bring them back for the last day. We brought them back for the last day, only because there was some thought--I wasn't planning to use it--but I guess there was some thought that perhaps the defense might want to use, or want to show one or more parts of the video. I wasn't planning to use it, but that's the only reason why we brought them back.
THE COURT: Well, the Court is going to deny the motion for mistrial. The Court is 99.9% confident that there was no tampering with the tapes after they were introduced into evidence; and that even if there had been, that it would be readily apparent to the defendant and the defense counsel, if not also the jury; and it would also be readily apparent from a reading of the transcript. And again, Mr. Au, if you or the defendant--you and the defendant--wish the jury to see the videos, the Court will permit them to see the videos.
MR. AU: Yes, your Honor. (At 2:58 P.M., December 13, 1993, an adjournment was taken to Tuesday, December 14, 1993, at 9:30 A.M.)
Improper reopening of the trial during Jury deliberations. Testimony of Government Witnesses taken outside the presence of the jury, during deliberations, about the improper removal during trial of previously challenged videotapes and all other "evidence" and transcripts.
Statement and objections by Mr. Au, Attorney for Dr. George Pararas-Carayannis, commenting on the government's extraordinary motion for the Court to reopen the trial while the jury was deliberating, to reverse its previous ruling not to show the jury tainted evidence and to hold an "in-camera", evidentiary hearing (a "mini-trial" outside the presence of the jury) for the purpose of judging facts and testimony and readmitting the videotapes which had been illegally removed by the government attorney, during trial, to the hotel room in Waikiki of the government's audiovisual electronics expert. The latter was the government's electronic expert and trial witness who, twice previously, had "enhanced" the videotapes at his laboratory in Virginia, but who had been brought to Hawaii by the government and had established an electronics laboratory in his hotel room where the Court's evidence (videotapes) were taken DURING TRIAL AND WHILE THE TRIAL WAS IN SESSION. (Trial Record, Vol. 17, 12/14/93)
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MR. AU : Thank you, your Honor.Your Honor, I just read the last--is it two pages--two pages of Counsel's affidavit, page 4 and 5. We didn't get that. We got this later yesterday afternoon, almost 4:30, 5 o'clock, thereabouts on a fax machine; and in any event, your Honor, I believe I understand what this motion is for. Let me note, your Honor, that we seriously object to this for the following reasons. It's my understanding that the issue of tampering will be a factual issue, which I believe cannot be ruled on as a matter of law. For the Court to make a finding that there was or there wasn't would be in effect a ruling of law, and I think that would be not only prejudicial, obviously, but I think it would be, I believe it would be possibly erroneous, your Honor. Secondly, Counsel keeps alluding to the practice in this District, your Honor, of leaving all evidence with the government until such--and the first time it was brought up, when I first raised this motion, and this was immediately after Officer Desha testified on rebuttal, and the Court will recall, as I made an oral motion. Your Honor, I can understand at that time Counsel said the purpose of this is to preserve the chain of custody, and I'll stand on the record that's what she said, your Honor. That's why we do this, in this jurisdiction; that's why the government retains all exhibits. Now, I have read the local rules, Judge, and I'm not aware of any practice that permits this; and I can understand if counsel stipulate to this. I can understand also that the United States Attorney would be entrusted with the possession of any evidence after it has gone into evidence. But it's extremely bothersome to be told that it is the local practice in this District Court to allow, in this case, the case agent who is a material witness in this case; and as the Court knows, it is an exhibit in this case that's introduced into evidence, signed by the case agent, asking that the tape be enhanced. In other words, the February the tape that went up to the gentleman in Virginia. To have a material witness have custody of these purportedly documents or tapes, whatever the case may be, that may well convict or not convict my client, your Honor, I find it hard to believe that that's the practice in this jurisdiction. I certainly did not stipulate to this; and the first time this was made known in open Court was the day that I moved to exclude these tapes, your Honor; that it is the practice in this jurisdiction, and I've seen this affidavit again. And after that motion was made, your Honor, I had Mr. Kurashima research the local rules to see if there's anything like that that said that the U.S. Government and a case agent retains custody over all evidence that they put into evidence. And maybe I missed something, but I couldn't find it. I said maybe there's a procedure or local rule that came down by memo signed by a Senior Judge; and if so, I am not aware of it, your Honor, and I have not seen it attached to this. In any event, your Honor, I'll be candid. When this case was over with, notwithstanding whatever happens, and the Court was no longer making rulings on it, as Senior Judge, I felt compelled to write your Honor a letter on this practice, that this practice has got to come to an end, if in fact there is such a practice, because that is totally unfair to the defendant, your Honor. Why shouldn't the defendant hold custody of all the exhibits he puts in evidence, in that case, to preserve the chain of custody?
THE COURT: Well, that practice will come to an end, Mr. Au. We've never before had an attorney raise such charges as you have in this case of the other counsel tampering with the evidence. We've never had any attorney assert that in the past.
MR. AU: Now, your Honor, I want to go directly to that issue. Counsel said I accused her of a crime. I did not accuse anyone of a crime, and I wish to make the record clear, your Honor. My client's livelihood.
THE COURT: You have accused government counsel with tampering with original evidence that's been introduced into this Court.
MR. AU: I do have an accusation, your Honor, impropriety; because it is my belief that once evidence is introduced into this Court, the only one who can frankly even rewind that tape, your Honor, rewind it or see it again, or touch it, or touch or in any way--in any way, your Honor--move that tape to any degree that might make a material difference, in my opinion, is your Honor with the permission, and counsel for both sides would know about it; and that's my understanding how it works, your Honor.
THE COURT: All right, let's get to the issue here now, Mr. Au.
MR. AU: Now, as to the Alika Desha and Officer Kalaau, your Honor. Your honor, Am. Jur. Rule (phonetic) 615, they should not even have been allowed to testify. I object to it. We have the exclusionary rule in effect. That means that no witness.
THE COURT: I want you you to respond to the government's motion that they've made here, that we are all going to listen now to the videotapes.
MR. AU: All right, let me go directly to that. Your Honor, I see nothing effective to be gained by that. If anything else, I believe it would compound the government's conduct; and again, I did not say it was a crime, I said the conduct of the government; because if I was entrusted with it, that would be my conduct, your Honor, all right. Now, your Honor, I don't think, I don't think without an expert in this case and without cross examining the technician; the only technician identified in this case is not Officer Desha, it's not Officer Kalaau. The most evident technician in this case that enhanced any, all, or any portion of this, was Mr. Foye as the Court is aware of. If the Court recalls, immediately when I made my motion, I immediately asked this Court--immediately, at that time--for an in camera hearing as to the circumstances how these tapes left the possession of this courtroom, and how it ended up in Hawaiian Village. What were the circumstances, what happened there? Why, why did it go to the Hawaiian Village, why? As we found out with Kalaau, why was it not viewed in the, at best, in the IRS room, as Kalaau saw it, just before getting on the witness stand? Why did it need to go to the Hawaiian Village? I raised the issue, your Honor, yesterday. And I still don't know why. And they said it's because the case was over. That's not true, your Honor, the case is not over. I was still putting on my case, why all this machinery, which Mr. Bergh has testified may or may not make a difference on replaying the tapes, why it all left the courtroom last week on Thursday on the last day of Court, your Honor.
THE COURT: I think Ms. Nakakuni put that on the record with her explanation.
MR. AU: Your Honor, I don't see anything to be materially gained at this point for us to view the evidence. If the Court were to view the evidence now, and say: Yes, I find that the tape is not tampered with; the net effect of it would be a ruling of law, your Honor. It would be a matter of law. Secondly, I should have and my client should have the opportunity through me, your Honor, of fully and fairly cross examining the technician who took this to his room,and find out; and, you know, your Honor, before the Court puts the burden on counsel, she has never explained to this Court, I don't see any affidavit in here by Jim Foye, as to why it was necessary, knowing that we had--your Honor was not present on Friday. We had Saturday, we had Sunday, we had Monday off. We had four days, your Honor. We didn't tart trial until Tuesday again. Why it was necessary to remove these, and I would have to assume the equipment, to go to Waikiki, to a hotel room, to be viewed for however long they had it, your Honor. The whole weekend, five days, four days, however long they had the materials; because they left the courtroom on Thursday, and we never saw it again until we came back to Court on Tuesday. Now, there's no affidavit in here, your Honor. There's self-serving statements made by Counsel, yes. But the most critical person in this case is the fellow who is the technician in this case; and I'll be candid, your Honor, his testimony, while the Court may not agree with me, has become in high dispute by virtue of even the correspondence in this case. The correspondence which the Court has seen: "We need the tapes back for trial right away, we need it back for trial, please hurry". Now, your Honor, I don't know. As Mr. Bergh has said: It is impossible to tell an original. It is impossible. You show me a machine that will register original on it, and I'll be the first on this Island of Hawaii. And I believe he was speaking credibly, and he was not manufacturing evidence, Judge. He knows nothing about this case. Your Honor, the reason I suggest to you that this motion first is improper at this time, highly improper at this time, your Honor, is for the simple reason that this was a burden of counsel during trial caused by their conduct, your Honor; and I emphasize, I can't believe, your Honor, that the local rules--and it's not because I am complaining, your Honor. I'm sure any defense lawyer in this jurisdiction if this had happened, would raise the same objection. I can't believe he would sit back and say: I see nothing wrong with an allegation of a tape that has gone back for enhancing to go to the hotel room of the man who enhanced that, and all the machinery in the courtroom to disappear at the same time. There's enough.
THE COURT: I believe Ms. Nakakuni has stated in open Court, Mr. Au, that the equipment did not go back to the hotel room. The equipment was taken out because of the weekend.
MR. AU: Your Honor, we have taken out
THE COURT: Is that right, Ms. Nakakuni? MS. NAKAKUNI: Yes, your Honor.
MR. AU: We have been in this Court now for nearly one month, your Honor. It has stayed weekend after weekend after weekend, without a problem, your Honor. Why would you need it over the weekend, your Honor, unless you were going to use it? Now, if this was the first weekend, I understand, your Honor. And I won't get into all that testimony going to Mr.--for Mr. Bergh.
THE COURT: Anything else, Mr Au?
MR. AU: Yes, your Honor. I don't see how the Court can conduct the hearing without the technician, your Honor, being put under full cross examination and given the opportunity by counsel to do so. For Mr. Kalaau, who didn't even sign the tape, for Mr. Desha who said it was true and accurate the first time he testified--the first time he testified--and then he told that he has to review it a second time to find it's true and accurate, your Honor. That clearly violates the witness exclusion rule, your Honor That's testimony in this case - I've even found some case authority of a State case that a videotape has to be transcribed by a reporter during trial, because it's testimony in trial. Now, the only reason I raise that point is because of the fact that we don't have a copy of the tape. We have a transcript that is highly questionable, it's dotted with unintelligibles" throughout. We don't have an accurate transcript that the Court can find. The Court knows himself that where we raised an issue, we had a dispute even what words meant, your Honor; and one had to listen and re-listen and re-listen. The point being is this, your Honor. How would counsel, how would the Court, without being totally familiar with the tape, without having an accurate transcript that was not dotted "unintelligible" throughout, and spotted"unintelligible" throughout, be able now to say as an authority: Yes, this tape is an original; yes, it's the same tape the jury heard before it went to Hawaiian Village. You can't, your Honor; and this would be a finding of fact. And I think the jury should be entitled to hear Mr. Foye as to what did he do. There's no affidavit what he did, your Honor, and why he needed to take it back to his room. What did he do there, your Honor? He had it for a period of the entire weekend, four days, or maybe longer. I don't know how long he had it, Judge.
Cross Examination by Mr. AU of Government Witness, IRS Agent Jan Tompkins, who, at the direction of the Assistant U.S. Attorney, took the videotapes to the hotel room of the Government's audiovisual expert, Mr. James Foye, who had "enhanced" them twice previously at his Virginia laboratory. She testified that Mr. Foye had brought electronic equipment from his laboratory in Virginia and that this equipment was in his hotel room where the videotapes were taken, during trial, while the Court was in session.
Summary: (TUESDAY, DECEMBER 14, 1993). The Court reversed its earlier decision and decided to reopen the case and to hold an in-camera hearing, outside the presence of the jury, which at that time was deliberating. During this hearing, testimonies were taken from IRS agents TOMPKINS and TSUBOTA. Both testified that indeed all the evidence was removed from the court every day and that the videotapes were taken to the hotel room of the government's audiovisual expert where electronic equipment had been brought in. The Jury was not permitted to hear this testimony. Instead, the Court decided to review the tapes again and allowed Officer KRESICH to authenticate the accuracy of the tainted tapes. The court ruled that the testimony of Mr. Foye, the government's electronic expert, was not necessary. DR. CARAYANNIS was given an opportunity to testify as to his observations of changes which may have occurred. DR. CARAYANNIS and his attorney were allowed a cursory viewing of the first tape. DR. CARAYANNIS made a number of observations of changes indicating tampering and brought them to the Court's attention.Specifically, he commented that the tape he had just viewed was not the same as the one he had viewed in the courtroom previously in the presence of the jury. The tape was definitely tampered. Specifically, the sound volume of parts of his conversation with Officer KRESICH had been significantly altered. The sounds changed from flat to sharp, as though sound filtering had been applied. The part of his conversation that had been intentionally and crudely erased, blaming TV station interference, now contained some unexplainable "static". This was the last minute and a half of his conversation with Officer KRESICH, and the most critical where he laid the ground rules and conditions for helping her. This was the part that he asked for clarification and he got her assurance that she was not involved in anything improper or illegal. This was the part that he asked her about her visa and working permit status, since she was a Canadian. This portion now contained "static" where previously there had been complete silence. DR. CARAYANNIS made the observation also that a blue light appeared on the screen at least twice, while none had been observed previously. Also, that the time window of the tape had been removed. )
BY MR. AU: Ms. Tompkins, what training have you had in video and audio tapes...
A. No.
Q. ...specific training?
A. No training.
Q. Did you take notes of any kind at this meeting at Mr. Foye' s room?
A. No, I did not.
Q. What brand of machine did he show the tape on?
A. I don't know.
Q. What time did you meet Mr. Foye in his room?
A. I left here at the lunch break, and got there at approximately 12:30, maybe.
Q. All right, and you stayed all afternoon?
A. I stayed till we finished viewing the tapes, and maybe a little while after.
Q. What time do you estimate that to be, Ms. Tompkins?
A. Approximately 4:30.
Q. All right. Now, when you arrived at--where was this at the Hawaiian Village, by the way? Where is this specifically?
A. The Diamond Head Tower.
Q. Which room number?
A. I believe it's 1362.
Q. Had you been there before for any reason?
A. Yes. When we picked up Mr. Foye from the airport, we helped him get to this room.
Q. Well, Mr. Foye has been in and out of Honolulu ever since November on this case, is that correct?
A. He left for Thanksgiving, and then he returned the following Monday.
Q. All right. Now, when you say you don't know what kind of machine he was using, may I know what happened to the two--for the record, we should identify I guess to this black box, with "Saul Mineroff Electronics, Inc." on it, out of New York; and this white box that says "Justice Series." Do you know what happened to these--where these two boxes were?
THE COURT: When?
BY MR. AU: Q. On that day?
THE COURT: On Wednesday afternoon?
MR. AU: Yes.
A. The last time I saw those, as I recall seeing them when Al Kalaau was viewing tapes on the Tuesday, so that was the last time that I saw them.
THE COURT: What do you mean the last time you saw them?
THE WITNESS: That he used them to view on Tuesday, and they were in the interview room, but I didn't... .
THE COURT: You took those to the IRS interview room, is that what you're trying to say?
THE WITNESS: Yeah. He needed them to view the tapes on Tuesday.
BY MR. AU: Q. Why did Al Kalaau, if you know, need that black box and the white box, called "Justice Series,~ which appears to be an equalizer, why did Al Kalaau need them to review the tapes, may I know?
A. He wanted to use the same equipment that's used in the courtroom, so we needed to use that equipment.
Q. So when did you take it out of the courtroom, on Wednesday?
A. No, I think it was taken out before then.
Q. Who took it out?
A. We had Clint Tsubota, along with James Foye, and I was with them.
Q. All right, now, on Wednesday, on Wednesday the 8th afternoon, it's my specific recollection unless I'm in error, your Honor--please correct me if I am--that we had Court all day that day, am I in error?
A. No.
Q. So the tapes were removed during the trial itself, then. While the trial was going on, the tapes went out, were being looked at?
A. I had them with me at the lunch break.
Q. Yes, but you had them. But you took them out to the hotel room all afternoon while we were in session, is that right?
A. That's correct.
Q. Now, did you ask, Ms. Tompkins, did you ask Ms. Nakakuni what would happen if we needed them in the Court during the trial?
A. I asked them--I asked her whether they were needed or not.
Q. What was her response, recognizing that we were in session that day?
A. She said that you had not requested to use them.
Q. So that's the reason you felt that it would be okay to take them out of Court, is that right?
A. I was instructed by her to listen to them or to watch them with Alika Desha that afternoon.
Q. All right, now, you have not had any training in technical audio equipment. Since Alika Desha wanted the black box and the white box which is now back in the courtroom, to look at it in the IRS room, did Mr. Foye have his own equipment to look at the equipment--look at the tapes?
A. I don't believe it was his equipment that we were using, and I know there was a monitor from IRS, and I'm not sure if we had this VHS playing there or not.
Q. Does he have a white box like the one here also on his own, or does he have his own, another type brand? If you know; don't guess, please.
A. The white box wasn't there.
Q. All right, what does he have?
A. I don't know what the equipment is.
Q. Now, once you went to the hotel room, did you turn the tapes? In other words, who handled that? Did Desha handle it?
A. Yes.
Q. Was Mr. Foye there throughout the entire session?
A. I believe he was.
Q. If you know why, why did Mr. Desha handle the tapes?
A. Because he was the one that was to listen to them.
Q. Now, why was Clint Tsubota from the United States Immigration there?
A. Clint Tsubota from my office was there.
Q. Oh, Clint Tsubota, I'm sorry. All right. Now, what did Mr. Foye do while you were there, as far as showing the tapes?
A. He was working on his other case.
THE COURT: What was that?
THE WITNESS: He was working on another case.
THE COURT: Who?
THE WITNESS: Mr. Foye.
BY MR. AU: Q. That required videotapes as well?
A. I am not aware of what he was doing.
Q. Well, what was he--I mean, how was he doing it, was he writing a manuscript, what was he doing?
A. He had some other equipment there that I don't know what it does.
Q. Well, how many pieces of equipment did you see in Mr. Foye s room? Individual pieces of equipment, other than a TV, of course, how many can you count?
A. Some of it was stacked, you know, on another table. There was like the TV and the VHS that Alika Desha was watching from a one table, and there was another table that he was working on which appeared to be some sort of computer equipment.
Q. You don't know what it is, but it has to do with videotapes?
A. No. I didn't' t
Q. So you'd be guessing if I asked you what all that equipment was in his room.
A. Yes.
Q. You took him--you picked him up at the airport and took him to the hotel, right?
A. That's correct.
Q. Did he already have the equipment at the hotel, or did he have it brought earlier with him?
A. He brought it with him.
Q. Now, you see that blue trunk there, that appears to be two of them. Blue, light blue, is it, light blue trunks there with steel aluminum casings on it in the courtroom?
A. Yes.
Q Now, is that part of Mr. Foye's equipment?
A. That's the equipment that carries the headsets; and I'm not sure, I think that Justice System equipment came in there, the white box.
Q. That came from Virginia, I assume.
A. Yes. Q. All right, how many cases like that did Mr. Foye have in his room?
A. He didn't have that in his room.
Q. Well, what did he have to take care of all this equipment that he brought in from Virginia with him?
A. The equipment that he had was much smaller than that, and it came in some sort of carrying bag.
Q. That he brought with him?
A. Yes.
Q. Okay. Now, ma'am, may I know why, would it not have been more convenient on December the 8th, since we were in Court session that day, and you were here that morning, am correct? I assume you were here that morning. I didn't see you.
A. Yes, I was here in the morning.
Q. All right, wouldn't it have been more convenient just to go down, upstairs or downstairs, in the IRS interviewing room, and look at these tapes?
A. Not on that day.
Q. You mean you could not find a room that was available for Officer Desha to look at tapes?
A. Mr. Foye was borrowing a monitor, and he had a VHS there, so it was easier to go up there than to bring the monitor to the IRS .
Q. Oh, Mr. Foye had all your equipment from the IRS.
A. The monitor and the--I don't know if it's our VHS or his, but he had our monitor, and we needed the monitor to view the tape.
Q. Why did he have the monitor?
A. He was probably using it for his other case.
Q. So is it fair to say then that Mr. Foye uses his hotel room to do his work, whatever work he's doing, in preparation for trial, then, is that correct?
A. For fraud? What do you mean?
Q. No, not for fraud, I didn't say fraud. I say is it fair to say that Mr. Foye is using his hotel room to do his work in working with the IRS and the government? Whatever he does in that room.
A. It appeared that he was doing that.
Q. And he even takes the equipment from the IRS over to his room as well, is that right?
A. He was borrowing it, yes.
Q. All right, may I know how long he had the IRS equipment prior to the 8th?
A. I am not sure on that. Sometimes it would come back, you know, we would use it, and then it would go there, depending on what it was needed for.
Q. All right. Now, you said the very next day that Officer Kalaau saw the tape in your interview room, is that right?
THE COURT: Day before, or... .
THE WITNESS: The day before.
MR. AU: The day before.
Q. So the day before, is it fair to say that there was a monitor in your TV room then?
A. The same one.
Q. Okay, and when did it go over to Mr. Foye's room?
A. It must have been either gone over that night or the morning, the next morning. Clint Tsubota took it over at some time.
Q. Well, isn't the reason, since Officer Kalaau saw it just the day before, the reason it went over to Mr. Foye is because Officer Desha was going to come in, right, the very next day, isn't that true? A. I don't believe that was the reason why it went over.
Q. Well, what time did it go over?
A. I don't know what time it went over.
Q. Who removed it, Mr. Tsubota?
A. - I believe so.
Q. So he would be able to tell us what time he took it over, is that correct?
A. I would think so.
Q. Was it there on the 8th, at anytime on the 8th, at anytime on December the 8th, in the IRS interview room? Equipment.
A. I don't know if it was taken over that morning or the night before.
Q. When you say that morning, you mean sometime before 12 noon?
A. It could have been.
Q. Where do you keep these what we call--and I want to identify them as what we call original tapes--in the IRS room, may I know?
A. In my cabinet.
Q. And then every morning you remove it and bring it to the courthouse, I mean, to this courtroom here, is that how it's done?
A. That's correct.
Q. Now, may I know on the 8th, in order to get the tapes to Hawaiian Village, you would have to have to take them from the courtroom here rather than the cabinet, then, to take them to the Hawaiian Village?
A. That's correct.
Q. Did you ever ask Ms. Nakakuni should we get the Court' permission to do this?
A. She instructed me to take them with me.
Q. Did you ask her whether she had asked Mr. Au if it would be all right?
A. No. I did not.
Q. Did you know whether she had consulted me as to whether it would be all right.
THE COURT: Let's get back to whether there's been any tampering, Mr. Au. That's the issue before us.
MR. AU: Very well, your Honor.
Q. Ms. Tompkins, what time did you leave Mr. Foye's room that day, exactly?
A. Between 4:30 and 5:00.
Q. What time did the video showing start?
A. Sometime after 12:30.
Q. What else did you do besides view the videos there?
A. We had lunch.
Q. Well, I understand that. But it started about 12:30, and you left between 4:30 to 5:00, is that correct?
A. That's correct.
Q. But besides having lunch, did you do anything else there?
A. Maybe just talk to Mr. Foye.
Q. All right. Now, do you know if Officer Desha was asked to look and to see whether he had made any markings on the tape?
A. I recalled making markings. He had recalled making markings on the tape previously.
Q. Now, I'm saying in the hotel room, that's all I'm interested in, what happened in the hotel room. Do you know if he was asked to look at the tape, to see if he had made any markings?
A. I know we talked about it, but I don't recall he opened the tapes again. Q. So what he did, you do not specifically remember, then.
A. Not that part of it.
Q. All right, now, I want to be clear. You took over 5.1 or 5, Exhibit 5?
A. Whichever the original tape is.
Q. What color is the label on it?
A. The orange label.
Q. So you didn't take the doctored copy over, then
A. I did not take the redacted copy.
Q. Now, Ms. Tompkins, during that entire time are you testifying that Mr. Foye never played any of the tapes?
A. They were played by Alika Desha.
Q. He never touched it during that entire period at anytime?
A. Might have looked at the outside of it, but he didn't play it.
Q. And you are saying the only reason it went to his room is because the monitor of the IRS - let's be specific. Exactly what was taken over from the IRS now, the day before or that same morning? A. All I recall is the monitor.
Q. What is the monitor, please?
A. It's like this TV type of item. Q. The TV set?
A. Yes. Q. Mr. Foye did not have a TV set in his room?
A. He had a regular TV, but we used the monitor to view the tapes.
Q. Did you know the TV monitor was going to leave the IRS?
A. Yes.
Q. When did you first learn of this?
A. I knew that he needed it maybe the day before.
Q. Did he ask you?
A. No, he asked Clint Tsubota
Q. Who took it there?
A. I believe Clint Tsubota took it there.
Q. Did you watch the complete tapes, all four?
A. Yes
Q. What's the total time of those four tapes about, approximately? About.
A. - Maybe three and a half hours.
Q. All right. Why was it necessary to stay there for about four and a half hours?
A. I just talked to Mr. Foye afterwards. I could have left, but I didn't.
Q. About what?
A. Just socially.
Q. You would agree that since you're not a technician, that the best person to testify as to whether or not anything was done to these tapes, since it was in his room, would be Mr. Foye as a technician, am I correct? If he did anything at all, he would be the best to know, wouldn't he, since you're not a specialist in this area?
A. I don't think I can express an opinion on that, I don't know who is the best person to testify to the tapes.
THE COURT: From her testimony, Mr. Au, Mr. Foye had nothing to do with the tapes while they were in his room. Mr. Desha showed them and played them.
BY MR. AU: Q. By the way, these TV monitors in Court, we've got four of them, I'm just curious. Why could one of them not have been removed in the evening, and taken down to the IRS office, or taken out that afternoon to the IRS office, rather than going all the way to Waikiki, if that's all you needed, a TV monitor? We've got four in this courtroom here, is there a reason why, do you know?
A. I was just instructed by Flo Nakakuni to take...
Q. Go..
A. ...take...
Q. ...go to the hotel room?
A. ...materials to the hotel, because we told her that we had a monitor there.
Q. And you are saying that--no, I'm asking you is there any reason, did you ask her why, since we were in session that day, and you took them off during the Court session, why one of these monitors could not have been wheeled out on iron legs; and if like Ms. Nakakuni says, Mr. Au didn't need it in Court, why one of these monitors could not have gone right downstairs to your office?
A. I didn't ask her.
Q. Did you wonder why we couldn't use one of them? Just take them to your office, since it's closer?
A. I didn't ask her.
THE COURT: Let's get back to the tampering issue, if you have any questions on that, Mr. Au.
MR. AU: All right.
Q. Now, since you are not a trained technician, you don't know--strike the question. When you showed the tape to Officer Kalaau, did he play it or did you play it?
A. He played it.
Q. And he used the white box and the black box that's in Court here to play it?
A. I don't recall the black box under the white one. I remember the VCR unit, and he used--I remember him using the white one and the VCR unit and a monitor.
Q. You do agree that the black box and the white box was removed from this courtroom last week, right?
A. I believe the white one was. I don't know about the black one.
Q. Who removed that?
A. Clint Tsubota along with James Foye, and I was with them.
Q. Why was it removed
A. I don't recall the reason.
Q. What day was it removed?
A. I don't recall the exact day.
Q. Well, wouldn't it have been, have to be when Officer Kalaau looked at it, before he looked at it? A. It could have been before that, yes. It had to be before that, if it was in the interview room.
Q. Is that why it was taken out of here, for him to look at the tapes?
A. That was probably one of the reasons.
Q. All right, now, you saw where we were able to see, at least the jury was able to see, the tape on the McCoy Pavilion tape without the use of that black box or the white box, right?
A. That's correct.
Q. So why did Mr. Kalaau need the white box or the black box to see the tapes?
A. We wanted him to listen to it on the system that we use in Court.
Q. So he didn't request it, then.
A. No, he didn't.
Q. Who operated that equipment while it was being shown?
A. He did.
Q. Did you know how to do it?
A. No, so he did it.
Q. Had he ever done it before, as far as this equipment?
A. I don't know.
Q. Had Officer Kalaau ever seen this tape before?
A. Yes, he did.
Q. How long ago?
A. I don't know how long ago, but I know that he said he's seen it before.
Q. What was Mr. Foye doing throughout the entire time of this four and a half hours in his bedroom?
A. I wasn't watching him during the entire time.
Q. Is this a bedroom, or is this a parlor suite?
A. It's a one-bedroom.
Q. So his bed and everything is in that room.
A. That's correct.
Q. And you had how many total people in there during the viewing, besides him?
A. I was there, Alika Desha was there, and Clint Tsubota. I was there part of the time.
Q. And Mr. Foye.
A. Yes. Q. So a total of four people in his bedroom.
A. Sometimes, yes.
Q. Did he have special tables brought in to put his equipment on, recognizing it's probably just a small bedroom at the Hilton Hawaiian Village?
A. No.
Q. Where was all the equipment put?
A. There were tables in there already.
Q. And so they were just stacked on there?
A. On the tables that were available.
Q. Now, did Mr. Desha arrive before you or after you?
A. After me.
Q. Who showed him how to use the equipment, all the equipment that was in that room?
A It seems like he knew how to do that
Q. -Well, did Mr. Foye, I mean, did he just divorce himself from this, and say, "I don't want to touch any of this, Desha, you've got to do this all by yourself," did he say this?
A. He just showed him where the equipment was, and Officer Desha seemed to know what to do with it.
Q. By the way, after each showing, was the video re-wound?
A. I believe it was.
Q. Do you know?
A. Not for sure, but I believe it was.
Q. Was that true of Mr. Kalaau as well?
A. Mr. Kalaau's was re-wound, I remember that.
Q. You remember that specifically?
A. Yes, I do.
Q. Did anybody look at Mr. Kalaau's after him?
A. I took it from him when he was done.
Q. And did you look at it again?
A. No, I didn't.
Q. Did anybody look at it again?
A. No, they did not.
Q. Did you relinquish possession of it to anyone?
A. To the jury, when they came back here.
Q. All right, you remember Officer Kalaau testified, I asked him to open the video, and I asked him to see whether he could recognize "JF" on the tape? In other words the initials of "JF" when he opened it; and he said, "This is not re-wound, I need to rewind it," remember?
A. I don't really recall that.
Q. So if it was re-wound, who saw it again after Kalaau?
A. I don't recall anyone seeing it again.
Q. And do you have an explanation why when Officer Kalaau in the presence of the jury opened the tape, and I asked him if he could recognize any of the signatures on it, or the initials on it, and he opened it and he said, "I can't see any, because," he says, "this needs to be re-wound." Do you know why?
A. No, I don't recall.
MR. AU: Thank you, your Honor.
Testimony of Government Witness, IRS Agent, Clint Tsubota, stating that electronic equipment and a special computer had been brought to the hotel room of the government's audiovisual expert where the videotapes were taken, during trial and while the Court was in session.
MR. AU: May we have Clint Tsubota testify, your Honor? Is he present?
MS. NAKAKUNI: Yes.
MR. AU: May we have him called as a witness, your Honor?
THE COURT: All right. ........................................................................
CLINT TSUBOTA, PLAINTIFF'S WITNESS, SWORN ..........................
CROSS EXAMINATIION by BY MR. AU:
Q. Agent Tsubota, when did you first learn that the TV monitor from your office had been taken to Mr. Foye's room?
A. That Wednesday.
Q. How did you learn of that?
A. I went to his room, and I saw it there.
Q. Now, why were you required to be present at his room, if any reason at all?
A. I went there on my own, so that I could talk to him to learn more about the technical side of our job.
Q. Well, he's been here for since, according to his testimony, he came the first week of November. So why did you pick Wednesday afternoon, of all afternoons, to learn about the technical side of your job?
A. From the time he was here, he was relatively busy. That was one of his slow days. I was not needed in Court that day.
Q. And it just so happens, while you were there, that Ms.Tompkins showed up with Mr. Desha. A. Yes.
Q. That was a coincidence?
A. Well, they showed up separately, but they showed up. They didn't come together.
Q. What time did you arrive at his room?
A. I can't--was in the morning, but I'm not sure what time it was.
Q. Now, you agree that throughout the course of this trial you-have been more or less standing by to show videos or cassette tapes, whatever was required with the Court, Mr.Foye was not able to do that, right?
A. That is correct.
Q. And you have been permitted to stay in Court for that purpose.
A That's correct.
Q. Who told you you wouldn't be needed that morning...
A. It was...
Q. ...since we had a session?
A. We had discussed it, I had discussed it with Assistant U.S. Attorney and the case agent; and it was determined that they weren't going to be playing any tapes at that time.
Q. Well, I've used your services as well, do you remember?
THE COURT: Let's get to the tampering issue, if you have any questions on that.
MR. AU: Yes, your Honor.
Q. When you went over to his hotel room, I want you to identify all the equipment you saw, since you went over to learn more about the technical things, I assume, audiovisual,what did you see? A. We didn't talk about equipment. He was just telling me how he determines whether a tape is an original tape or a copy. He was talking about syncs and spectrograms. We didn't get into the equipment.
Q. How long were you in his room, or how long were you there, recognizing you said you arrived about, what, 12:00, 12:30?
A. No, I was there in the morning. I have no idea how long it was in there.
Q. What time did you leave?
A. About the time Officer Desha started viewing, I started running around doing some errands, so I was going in and out of his room.
Q. Why were you required to go in and out of his room if you were doing errands?
A. Mr. Foye had asked me to get some tapes and what not for him. He needed to do some tests. Q. What kind of tapes?
A. Audio--excuse me, videotapes.
Q. From where?
A. From where, whichever store I could find it at. He needed tapes so that he could run some tests for some of the other cases that he was working on.
Q. Did he have what is known as a spectrograph in his room, do you know?
A. I do not know. He had a computer there.
Q. Well, how many machines did you see, individual machines?
A. Including our monitoring VCR?
Q. Yes.
A. About six, I would guess.
Q. Not including another TV in that six.
A. Not including the hotel TV, no.
Q. Do you know what those six machines are?
A. One of them was his computer, the other two were--I have no idea what they were.
Q. Did they have to do with audiovisual processing, or anything like that?
A. I think it had to do with the enhancement of--he used that to enhance tapes, yes, audiotapes.
Q. What machine did he use to enhance audiotapes? What is it called?
A. I have no idea what it's called. Like I say, we did not get into what each equipment was called. Q. How do you know that two of the machines he had, while you don't know the name of it, was used to enhance audiotapes?
A. He was explaining to me how the audio goes into the machine.
Q. All right, so that's three pieces. What are the other three that he had?
A. The monitor, well, our monitor, our VHS.
Q. Well, I said that that wasn't included in the six, right?
A. That was included in the six.
Q. All right, so your monitor. Go ahead.
A. The VHS and the Justice System.
O. You mean this white box here?
A. Yes. Q. I'm sorry?
A. Yes.
Q. The same white box in the courtroom?
A. Yes.
Q. When was it taken to his room?
A. I have no idea when it was taken to...
Q. You didn't take it there.
A. I did not take it there.
Q. When did you first notice this white box in his room, the one that's in Court called the Justice System?
A. When I got there.
Q. Was it all set up already?
A. I don't recall if it was set up.
Q. Now, did Mr. Foye show you how to play the VCR, the videotapes, so that Mr. Desha could, in training you, could watch these?
A. He did not--you mean that day, if he trained me...
Q. No, did he show you how to do it that day? Like I've noticed he's been training you off and on, I've seen him do it in this courtroom.
A. No, he did not that day; no.
Q. All right. Did he assist Officer Desha in setting the various tones and equalizers on that white Justice System, so that it could be played effectively?
A. That I don't know. I wasn't there. I was in and out while they were watching the video. I don't know who put the videos in, I don't know if they made any adjustments.
Q. Did you know what happened--the day that you noticed the white Justice System, called the Justice System, in this courtroom, where was the black box that day that's in this courtroom now? A. I believe it was in our office.
Q. Why was the black box in your office on the day that you went to the Village?
A. Because it only plays audio cassettes.
Q. I'm sorry, the reason is why?
A. It only plays audio cassettes.
Q. Why did it have to be in your office on the same day that you went to the Village? The black box.
A. Why?
Q. Yes. A. I guess Mr. Foye didn't need it. He was doing audios. I didn't say he was doing audio cassettes.
Q. All right, now, when Officer Kalaau viewed the tapes, were you there also?
A. No, I was not.
THE COURT: He said he wasn't there. Any other questions?
MR. AU: Yes, I'm just about done.
Q. When did you first learn that Ms. Tompkins was going to be there with Mr. Desha at his room? A. I don't recall when I first knew.
Q. Were you surprised when you saw them there, or did you know they were already there when you... . When they came.
A. Was I surprised when I saw them there?
Q. Yeah, when they came walking in.
A. I knew they were coming. I didn't know when I learned that they were coming.
Q. What did Ms. Tompkins bring with her, if anything? Did she bring any equipment?
A. No, she brought the tapes and lunch.
Q. What tapes did she bring? If you know.
A. The video cassette tapes, and I believe there was the ones with the orange labels.
Q. How many did she bring in there?
A. I didn't notice.
Q. Did she bring any audio cassettes with her?
A. I don't think she did.
Q. No, do you know whether she did?
A. No, I don't. I just... . .
Q. All right. A. I just know I saw the video cassettes with the orange labels. I don't know how many video cassettes she brought.
Q. Now, did Jan Tompkins assist in playing these tapes?
A. I don't know. I wasn't there, I was just going in and out; and when I was in there, the tapes were always running, and I left before the tapes ended.
Q. All right, during the entire time that while the tapes were running, and while I know you were not there, how many times did you come in the room? While it was running.
A. Maybe once or twice.
Q. At what times, about?
A. I have no idea.
Q. Did this go into the evening?
A. What time would you consider evening?
Q. After 6:00.
A. No.
Q. What time did--what time were they done?
A. What time was the viewing done?
Q. Yeah. A. I have no idea.
Q. Well, then, how do you know it didn't go into the evening? You came back in the evening again after 6:00?
A. I came back prior to 6:00.
Q. What time prior to 6:00 did you come back?
A. I would say somewhere between just little before 5:00 and maybe 5:30, between there.
Q. And was Ms. Tompkins still there?
A. No, she was not in the room when I got there.
Q. Was Mr. Desha still there?
A. He was not in the room when I got there.
Q. Do you know what time they left?
A. I have no idea what time they left.
Q. What's the reason you came back at that hour?
A. I wanted to continue talking with Mr. Foye.
Q. Do you know why Mr. Foye has equipment to enhance audio quality of tapes in his room? Do you know why he has that kind of equipment, that he brought it, or whatever reason he's got in his room?
A. He's working some... . Excuse me.
THE COURT: He what?
THE WITNESS: Let me have some water, first. (Pouring a glass of water)
A. I know he's working on some other cases down here. I know previously he had mentioned that he was busy. While he was at his office he would be working on other cases, and he I mentioned that they were sending some of the, I guess, video or audio cassettes down here for him to enhance, to process.
BY MR. AU: Q. So he had brought other videos with him as well, is that right, to enhance?
A. I don't think he brought anything with him; and I also know he mentioned that he s also helping some other agencies down here with their cases.
Q. All right, when you say "enhance," you mean VCRs, VCR tapes, is that correct? VCR being the type in this case.
A. Was he working on that type? I'm not sure. I think it was more like just the audio portions. I don't know if he had the VCRs or not.
Q. All right. By the way, did you help in picking him up when he came back the last time?
A. No, I did not.
Q. You didn't take him to his apartment.
A. No, I did not.
Q. You didn't help him move any equipment up to his room?
A. No, I did not.
Q. Have you been to his room before this day at anytime, before December the 8th?
A. I may have, I'm not sure.
Q. Did he have all that equipment in his room prior to December the 8th?
A. If he did, and if I was there, it wasn't set up.
Q. Okay, let me ask this question. You're saying he does not have a TV to view any VCRs in his room?
A. He had a TV, but it's like the hotel type, where they got the security thing on the back where you can't take off the cable or anything, and you can't hook up anything, any VCR into it.
Q. May I know how he's been able to work on whatever he's doing then without a monitor?
THE COURT: Mr. Au, I think we've had enough of this now. Any other questions?
MR. AU: Thank you.
Court's Ruling to allow the Government Motion to have the disputed tapes re-viewed for "authenticity" and to take additional testimony (again outside the presence of the jury) regarding the state of the evidence and allegations of tampering. The Court ruled not to have the government expert testify as to what he was doing with the Court's evidence in his hotel room during trial and while the Court was in session. Objections by Defense Attorney Mr. Au regarding factual issues and exculpatory evidence favorable to Dr. Pararas-Carayannis being witheld from the jury in violation of the Federal Rules of Evidence (Rule 1008).
COURT'S RULING: The Court is ruling that I'm granting the government's motion, based on the allegations made by Mr. Au of tampering. We've heard these two witnesses who have testified there was no tampering, at least Ms. Tompkins did. The Court finds that experts are not needed in this. There has been any tampering that has any meaningfulness, that would be readily picked up by Mr. Au or the defendant, or by the rest of us, in using transcripts. We'll also have Officer Kresich available. The jury has already heard these tapes; and again, the Court simply initially, in an abundance of caution, granted the defendant's motion not to allow the jury to hear the tapes, and then Mr. Au turned that around and asked for a mistrial because the jury wasn't hearing the tapes. So now we're going to go through this exercise and listen to the tapes, to see whether--and view the video, to see whether there are any tamperings as charged by Mr. Au. We'll take a 10-minute break while this is all set up.
MR. AU: Your Honor, may I be heard on this point before we break?
THE COURT: I'll allow two minutes.
MR. AU: Yes, your Honor; two minutes. Your Honor, first off, the jury does not know that there was enhancement machinery in Mr. Foye's room.
THE COURT: The evidence is that that enhancement machine was not used. We have heard the un-rebutted evidence.
MR. AU: Well, it's a finding of fact, your Honor, whether the jury believes that. I know the Court has made ruling, and I respect this Court's ruling, your Honor. I respect this Court. But this would be a finding of fact for the jury. Since there has been an allegation of tampering, since it went back to the technician's room, I think it would be very invaluable for the jury, if there was a doubt in their mind, whether--to know whether there was enhancement machinery in this man's room. Now, how are we going to convey that to the jury, your Honor?
THE COURT: All right, I've heard your point; thank you.
Summary of the Court Record, Vol 19, THURSDAY, DECEMBER 16, 1993
On Thursday, the process was repeated again (without the jury) with the videotapes of 2/21/92 and 2/26/92 meetings. Upon taking the stand CARAYANNIS made the following comments of the 2/21/92 tape: "The sounds are now much clearer and portions have been amplified. Even though we were sitting with Officer KRESICH by the door of the Patisserie Restaurant at the Kahala Mall the background noises of passing cars had been considerably subdued as though they were filtered. The entire segment of the conversation depicted on page 3, lines 3-22 of the Government's transcript has been emphasized by unusual volume increase. There is a drastic decrease in sound volume at 5 minutes and 17 seconds into the conversation that was not there previously. At 5 minutes 22 seconds into the conversation the sound volume was further reduced. However, the entire section of the conversation depicted on page 24, lines 10-26 is emphasized". For the 2/26/93 tape CARAYANNIS had the following general and specific comments as to the alterations and changes made to the tape since he last saw it in the courtroom in the jury's presence: "Musicwhich was previously present is now absent in the beginning, then comes on and again fades away. It comes back off and on several times. When I had heard it in the courtroom, the music was continuous. The conversation depicted on page 2, lines 1-22, of the transcript is now clearer and louder. On page 7, lines 20-25 the conversation is emphasized by louder sounds. The same thing occurs again with the conversation as depicted on page 8, line 12-24, and on page 10, lines 1-14. On page 11, the unintelligible part can now be heard ("free ride"). On page 17, lines 10-11, an unintelligible word can now be heard clearly as "sex". The entire conversation on page 43, which was hardly audible before, it is now clear, loud and distinct. The conversation on page 61, lines 7-9 is now louder and more distinct. At 12 minutes 14 seconds into the conversation the background music starts coming on and off again. The music had been continuous when I first heard the tape during the trial. Similarly, the sounds of plates rattling in the kitchen is muffled. However, at 16 minutes 23 seconds the plate noises rattling can be heard clearly. This was not the case when the tape was played during the trial. At 16 minutes 34 seconds into the conversation, a mysterious blue light appears on the screen which lasts for about three seconds. The light comes up again at 16:51. The blue light was never present when the tape was first shown to the jury. The background music mysteriously begins again at 16:42.That was not the case when the jury saw the tape in the courtroom. There are several other points in my notes pertaining to specific points indicating the tampering of this particular tape, but I will not bring them up because I believe that I haave made my point". In spite of Mr. AU's and CARAYANNIS objections and proof of tampering, these two tapes were readmitted and the jury was called in to view them. The sequence of the jury's asking of the viewing of these videotapes was indicative that entrapment was still being seriously considered. The alteration of relevant portions of the tape again negated further jury consideration of entrapment.
Summary of the Court Record, Vol 20, FRIDAY, DECEMBER 17, 1993
On Friday, the jury in one of its questions to the court indicated that they had agreement on the five counts but were deadlocked on two counts. "Would their disagreement on the two counts, negate their determination on the other five? The two counts on which they were deadlocked were counts 1 and 3. They were asked to continue their deliberations. Subsequently, the jury asked to see the 2/13/92 tape, the tape which had more than 150 unintelligible portions, portions which had been given liberal interpretations in the government edited transcript. On Friday afternoon, this last of the videotapes, the 2/13/92 tape with over 150 unintelligible portions, was reviewed through the same process, without the jury being present. This was a tape which had been tampered extensively since it was last shown in the courtroom during trial. CARAYANNIS commented on a number of significant general and specific points and alterations. Specifically he stated: "Background music came on and off intermittently indicating tampering. The sound of plates sometimes was muffled and other times it was distinct. Portions of the conversation were clearer, distinct and pronounced. Other portions were audibly subdued. Prejudicial comments or portions were accentuated. Unintelligible portions were now distinct. A blue light which was present when the tape was first shown to the jury, at 16 minutes 29 seconds into the conversation. was now remarkably absent. In its place there was white light, snow on the screen, and static. The duration of the white light and snow were different than the duration of the blue light, which appeared when the jury first saw the tape". The judge agreed that the blue light was no longer there and wondered himself as to what had happened. Mr. Au raised a number of questions regarding the alteration to the videotape and the absence of the blue light. The Assistant U.S. Attorney was unable to provide an explanation as to the obvious changes CARAYANNIS made the above general observations, then went into specifics. He commented on unintelligible parts of the conversation which were now clearly heard. Furthermore, he stated: "On page 17, line 22, the word "dramatic" now clearly heard as "emblematic". Page 19, line 6 the unintelligible clearly sounding now as "I'll show you". On page 28, line 25, the unintelligible is clear now and the word "evaluate" can be distinguished. Page 30 lines 13-18 are now very clear. On page 31 line 11 the unintelligible can now be distinguished as: "and so forth". The conversation depicted on pages 36 (lines 11-17), 38 (lines 10-14) are enhanced and really clear now. The unintelligible on page 39 can be heard now (How do you advertise?). The unintelligible on page 52, line 26, is now clearly heard. ("The thing to do"). The unintelligible on page 56, line 10 can now be heard". CARAYANIS brought up many more points indicating significant alterations of the 2/13/92 tape.
Summary of the Court Record, Vol 21. MONDAY, DECEMBER 20, 1993
The jury was permitted to view the 2/13/92 tape out of sequence and to look at the transcripts while watching it. These transcripts had been improperly taken also out of court. Certain jurors, unable to understand the videotape's unintelligible parts were seen taking written notes directly from these transcripts in spite of the instruction not to do so.
Summary of the Court Record, Vol 22, TUESDAY, DECEMBER 21, 1993
The jury returned its verdict and acquitted CARAYANNIS on five counts while returning a guilty verdict on counts 1 and 3 on which they had been deadlocked since December 10, 1993. Apparently, the alterations, "enhancement" and out of sequence showing on the previous afternoon of the much disputed videotape of 2/13/92 as well as the readily offered, edited transcript had a significant prejudicial effect on the jury in reaching their final decision . The alteration of this tape and the liberal editing of the transcript (which had also been improperly removed from the court and altered ) were the catalysts that contributed to the jury's immediate agreement on counts 1 and 3, after 11 days of deadlocked deliberations. The jury was never allowed to learn that the videotaped "evidence" which they had seen during trial had been taken illegally out of court by the government prosecutor, during trial, to the hotel room of the government audiovisual expert, Mr. Foye, where electronic equipment capable of tampering had been brought in. Mr.Foye was whisked quickly by the government back to his laboratory in Virginia and was not required by the court to testify to the jury as to what the court's evidence was doing in his hotel room and which videotapes he was "enhancing". CONCLUSION: As indicated by the court records above, Dr Pararas-Carayannis was deprived of his Constitutional due process right to a fair jury trial. Even though there was a jury and by law the jury is the trier of facts, in this case the jury was not allowed to hear facts and testimony favorable to Dr. Pararas-Carayannis which would have aquitted him of all charges of the fabricated "laundering monetary instruments" of a fictitious "escort service".
Summary Statement Giving Specific References to Court Transcripts Related to the Misconduct of AUSA Florence Nakakuni in Having Witnesses Remove Daily the Court's Admitted Videotape Evidence from the Courtroom to the IRS Office and, During Trial and While the Court was in Session, to the Hotel Room of a Government Witness /Audiovisual Electronics Expert, which had been Converted into an Electronic Laboratory and where the videotapes were tampered.
(additional details, in the excerpts of court transcripts)
The record and trial transcripts show that the government attorney, AUSA Florence Nakakuni, had witnesses remove all of the court's admitted evidence from the courtroom daily after each trial session because "the court did not have an evidence storage facility" and because "this has always been the practice in this District" (TR.Vol 14-15, 12/9-10/93). The jury was not allowed to be present and hear this explanation.
During trial and while the court was in session, but without the Court's or Defendant's knowledge or permission, government witnesses removed the court's admitted evidence, videotapes which had been challenged as tampered, to the IRS office and to the hotel room of a technician (also a government witness) which had been converted into an electronic laboratory, capable of tampering videotape evidence (TR Vol. 14-15, pp.47-51, pp. 66-67, pp.78-79). The jury was not allowed to be present or learn that government witnesses had access to the Court's admitted evidence and that they removed it from the courtroom.
Defendant Dr. Carayannis complained vigorously about the unlawful removal of the evidence (RT Vol. 17, pp.7-8) and asked that the jury hear the testimony pertaining to the daily removal of the evidence and to the state of such evidence. The court was 99.9% sure that no tampering had taken place (TR Vol. 16, 12-13-93, p.24) and that any changes would evident from the transcripts. However, the court agreed that the videotapes would not be shown again to the jury during deliberations since they had been tainted. A jury instruction to that effect was drafted with the Defendant's and government's concurrence (TR Vol. 16, p.12-13). Defendant's subsequent motion for mistrial or to strike the videotapes from the record as being tampered was denied.
On the third day of jury deliberations, the earlier decision was reversed and the trial was reopened, but without the jury, to "authenticate" the tainted videotapes for the purpose of showing them to the jury. Defendant objected to this procedure on the grounds that the determination of the factual state of the evidence, the government attorney's misconduct and the circumstances pertaining to the illegal removal of the evidence, should be heard by the jury because this went to the weight of the evidence they were about to view (RT Vol. 17, pp.10-11), clearly a jury function.
Without the jury being allowed to be present in the courtroom, government witnesses, Tompkins and Tsubota (IRS, Criminal Investigation Division), testified for two days on the removal of the court's evidence and confirmed that they were instructed by the government attorney, AUSA Florence Nakakuni, to take the evidence to the hotel room (Hilton #1362) of the same technician who had "enhanced" it twice before trial in his Washington D.C. laboratory. His hotel room in Hawaii had been converted into an electronic laboratory with a special computer and six or seven other large pieces of unidentified electronic equipment brought in from his Washington D.C. laboratory (TR Vol. 17, pp. 17-42; 42-56; TR Vol. 18, 12-15-93). IRS agent Tsubota testified that "the technician was enhancing videotapes" (TR Vol. 17, p. 49).
Without the jury's presence being allowed in the courtroom, Defendant, Dr. George Pararas-Carayannis, testified on three different days that the government had altered substantially the videotapes.(TR Vol. 17, 12-14-93; TR Vol. 18, 12-15-93,TR Vol. 19, 12-17-93). He identified numerous inconsistencies and distinct differences on the disputed videotapes and transcripts, indicative of alterations, changes and tampering (TR Vol. 17, pp. 63-70; TR Vol. 18, pp. 9-12, 18-26, 31-33; TR Vol. 19, pp. 13-23, 36-42). He provided specific references to erasures, mysterious lights, alterations and changes, including introduction of words that were previously unintelligible, overlapping or not there (TR Vol. 17, pp. 63-70; TR Vol. 18, pp. 9-12, 18-26, 31-33; TR Vol. 19, pp. 13-23, 36-42); introduction of prejudicial words that were not previously there, (TR Vol. 17, p. 66, TR Vol 19, pp. 19, 20); enhancement or elimination of background noises, music and static (TR Vol. 17, pp. 63-70); unexplainable appearances and disappearance of blue screens (TR Vol. 18, p. 17,TR Vol. 19, p. 36-37); disappearance of the VCR timer window, (TR Vol. 18, pp. 9-18); changes in volume and clarity of previously unintelligible portions (TR Vol. 19, pp, 14-16)]. The government did not have an explanation for the alterations (TR Vol 20, p.4). The government electronic technician quickly left Hawaii and was not required to testify as to what he was doing with the court's admitted evidence in his hotel room.
Without the jury allowed to learn of the challenges to the evidence, the tainted videotapes were readmitted. Carayannis objected to the jury being allowed to view the videotapes but not hear the additional testimony of the government attorney's removal of the videotape evidence from the courtroom and the improper use and handling of the evidence by miscellaneous government's witnesses. (RT Vol. 17, pp. 5-6, 10-14).
The jury was allowed to return to the courtrom and view the videotapes during deliberations, but were not apprised of the government attorney's misconduct. (RT Vol. 17, pp. 57-58, Vol. 18, pp. 25, Vol 19, pp. 23-24, 28). Again, the government attorney provided the jury with creatively-edited transcripts as an "aid" in understanding the unintelligible videotape evidence (TR Vol 20, p.2). Defendant complained about jurors taking notes from the challenged government transcripts (TR Vol 19, p.29). The jury, which had been deadlocked for ten days on counts 1 and 3, returned a guilty verdict on these two counts only two hours after viewing, with the aid of the government-supplied and altered transcript, the most challenged and critical videotape ( 2-13-92 meeting) which contained 162 inaudible portions.