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Attorneys representing Dennis Mitsunaga, former Prosecuting Attorney Keith Kaneshiro and four Mitsunaga & Associates executives indicted for allegedly conspiring to charge a former Mitsunaga employee with felony theft are trying to dismiss some of the charges based on their statute of limitations.
In a separate filing made Friday, attorneys are also trying to strike language from charging documents they believe is inappropriate and could taint a jury pool against Mitsunaga, 78; Kaneshiro, 72; Terri Ann Otani, 66; Aaron Shunichi Fujii, 64; Chad Michael McDonald, 50; and Sheri Jean Tanaka.
On Jan. 3, Los Angeles-based attorneys Mark Mermelstein and Andrew S. Cowan, who represented Tanaka, filed a motion for partial dismissal based on a five-year statute of limitations.
“By cobbling multiple conspiracies together in each count, the government has obscured the fact that many of the alleged objects of these conspiracies failed to satisfy the applicable statute of limitations,” wrote Mermelstein. “The law, however, is clear that the government must satisfy the statute of limitations for each object of a charged conspiracy.”
The allegations made by federal prosecutors are connected to Mitsunaga & Associates’ treatment of Laurel Mau, who sued the company after she was let go in November 2011 after they accused her of working side jobs. Mitsunaga and his employees allegedly tried to block Mau’s applications for unemployment benefits, which he was later deemed eligible to receive. In an August 2012 lawsuit, Mau accused MAI of violating the Civil Rights Act of 1964 and Age Discrimination in Employment Act of 1967.
On Oct. 4, 2012, Mitsunaga, Kaneshiro, Tanaka and Kaneshiro’s assistant apparently met to try and get Kaneshiro to prosecute Mau. Mitsunaga, Otani, Fujii, McDonald, Tanaka and other Mitsunaga family members and employees donated about $45,000 to Kaneshiro’s campaign following the meeting.
In July 2014 a federal overseeing judgment on Mau’s lawsuit and several counterclaims by MAI found no liability other than a “breach of loyalty” claim against Mau for which she was awarded the firm $1.
Kaneshiro prosecuted Mau for four counts of theft at the firm’s request in December 2014, according to state court records. When one deputy prosecutor told Kaneshiro that there was not enough evidence to prosecute Mau, Kaneshiro allegedly reassigned the case to another prosecutor, who charged Mau, according to the federal court documents.
In July 2017 the charges against Mau were dismissed with prejudice, meaning they could not be refiled. Kaneshiro served as city prosecutor from 1988 to 1996 and again from 2010 to 2018 before he went on paid leave.
Mitsunaga, Kaneshiro and the other defendants were indicted in June by a federal grand jury on charges of conspiracy to commit honest services fraud, federal program of bribery and conspiracy to violate Mau’s rights.
Their attorneys now argue that the charge of the federal program of bribery should be dropped because the statute of limitations ran out in 2016 because the alleged crime would have occurred at the time of the bribe and not when the benefit was received. The last campaign contribution to Kaneshiro by any of the MAI employees was made Oct. 19, 2016, meaning the five-year statute of limitations expired by the time the “first superseding indictment” was filed in September.
The count of conspiracy to violate Mau’s rights should also be dismissed because the five-year time frame for charging the offense had also passed, they say, arguing the clock for filing those charges started when the investigation into Mau began in January 2013.
The case is being handled by a special prosecutor, Assistant US Attorney Michael Wheat, and a team of federal prosecutors from San Diego. Representatives with the US Attorney’s Office for the Southern District of California did not immediately respond to a Honolulu Star-Advertiser request for comment. Mermelstein declined comment.
The court will hear the motion to dismiss some of the charges on Feb. 28. The motion to strike in inappropriate language is scheduled for Feb. 21.
“We believe strongly in the merit of our arguments,” said Mitsunaga’s Los Angeles-based attorney, Nina Marino.
The government objects to Marino’s motion, in part because the “challenged words, phrases, and paragraphs are relevant to providing notice of the charges against the defendants and the United States’ theory underlying the charges,” according to a Jan. 23 memo in opposition authored by Assistant US Attorney Joseph JM Orabona.
In a memo opposing the motion to dismiss authored by Assistant US Attorney Andrew Y. Chiang and filed Thursday, the government argued that the charges are timely and that Mau “was still actively being prosecuted and in peril within the limited period for the counts charged” in the first superseding indictment since the prosecution did not end until Oct. 15, 2017.