Case 1:19-cr-00015-JMS Document 14 Filed 02/13/19 Page 1 of 12 PageID #: 73

MATTHEW G. WHITAKER
Acting Attorney General
ROBERT S. BREWER, JR.
United States Attorney
MICHAEL G. WHEAT, CBN 118598
ERIC J. BESTE, CBN 226089
JANAKI S. GANDHI, CBN 272246
COLIN M. MCDONALD, CBN 286561
Special Attorneys to the Attorney General
United States Attorney’s Office
880 Front Street, Room 6293
San Diego, CA 92101
Tel: 619-546-8437/6695/8817/9144
Email: michael.wheat@usdoj.gov

Attorneys for the United States

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

CR. NO. 19-00015-JMS-RLP

UNITED STATES OF AMERICA,
MOTION TO SET ENHANCED
Plaintiff, CONDITIONS OF RELEASE
v.

KATHERINE P. KEALOHA (2),

Defendant.

The United States of America, by and through its counsel, hereby moves for

an order setting heightened conditions of release for Defendant KATHERINE P.

KEALOHA (“KEALOHA”). The charges in this case create a statutory presumption

of detention. However, under the totality of the circumstances, including the pending

trial date in Case No. 17-CR-00582-JMS-RLP, the United States is refraining from

moving for detention at this time. The facts otherwise demand heightened conditions
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of release, including drug testing, increased financial requirements, and an updated

no-contact list.

I.

BACKGROUND

A. THE INDICTMENT

1. KEALOHA is a former supervisory Deputy Prosecuting

Attorney for the Department of the Prosecuting Attorney’s Office in Honolulu. She

is currently facing obstruction, bank fraud, aggravated identity theft, and other

charges in 17-CR-00582-JMS-RLP and 18-CR-0068-JMS-RLP. Therein, her

conditions of release included an unsecured bond in the amount of $100,000. See

17-CR-00582-JMS-RLP, ECF No. 48.

The instant Indictment charges KEALOHA with (1) Conspiracy to Distribute

and Dispense Controlled Substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846,

and (2) Misprision of a Felony, in violation of 18 U.S.C. § 4. The source of drugs

for the conspiracy was KEALOHA’s brother, co-defendant RUDOLPH B. PUANA

(“PUANA”). As outlined in the Indictment, it was “part of the conspiracy that

PUANA would write prescriptions so that . . . . KEALOHA, and others could obtain

controlled substances, such as oxycodone, that were prescribed outside the scope of

professional practice and not for a legitimate medical purpose.” Indictment ¶ 10. The

Indictment further alleges:

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 that it was “part of the conspiracy that KEALOHA would distribute to

Individual A in Hawaii, and to Individual B in New York, controlled
substances improperly dispensed to her by PUANA.” Indictment ¶ 17.

 that it was “part of the conspiracy that when the distribution by PUANA and
CC#1 was discovered by a police officer, KEALOHA would attempt to
control the ensuing investigation to ensure that PUANA and CC#1 were not
prosecuted and PUANA could continue prescribing controlled substances.”
Indictment ¶ 18.
As part of this investigation, multiple witnesses have identified KEALOHA as a

user of controlled substances.

2. The misprision charge focuses on KEALOHA’s efforts as a

Deputy Prosecuting Attorney to prevent her brother from being prosecuted for his

drug crimes. In short, KEALOHA made herself the prosecutor of the case involving

her brother and other co-conspirators. Ultimately, only two people were prosecuted

in relation to the drug conspiracy, identified in the Indictment as Co-conspirator #4

(“CC#4) and Individual C. KEALOHA’s brother—even though he was a source of

supply—was never prosecuted or even investigated by KEALOHA’s office. As

alleged in the Indictment, KEALOHA took various affirmative acts to conceal the

drug crimes committed by PUANA. See Indictment ¶ 22.

One such act was “cultivating a close personal relationship with CC#4 (by,

among other things, communicating with CC#4 using an encrypted messaging

application), to reduce the likelihood that CC#4 would reveal KEALOHA’s

brother’s role in the drug distribution conspiracy.” Indictment ¶ 22(f). In other

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words, and to be clear, the prosecutor of a criminal case carried on secret

communications with the defendant she was prosecuting in court.

Indeed, the United States has obtained over 500 pages of messages exchanged

between KEALOHA and CC#4 throughout 2016.1 As an example, here are two

messages from KEALOHA to CC#4 on July 26, 2016:

 “You are such a good person, now we need to vindicate you on many levels,
while we have them be accountable!!!”
 “Just remember that I always got ur back, I love you and will protect you
always!!!”
On this same day, CC#4 texted Kealoha about CC#4’s own change-of-plea date (in

the case KEALOHA was prosecuting): “Ok he [referring to CC#4’s attorney, Myles

Breiner] called you for my cop date.” KEALOHA responded, “Omg, ruler of the

world #ROW.” After agreeing on the plan for the change of plea, the following

exchange occurred:

CC#4: Go TEAM!
Kealoha: GO TEAM!!! Can’t wait for this shit to be over.
CC#4: Ditto[.] Then we’re free[.]
//
//
//

1
KEALOHA’s role as prosecutor in CC#4’s case extended at least through
September 2, 2016; on that day, Kealoha (as the prosecutor of the case) and defense
counsel, Myles Breiner, appeared at a status hearing for an “off the record”
discussion “regarding [the] status of [CC#4’s] case.” See Case No. 17CR00582-
JMS-RLP, ECF No. 74-10 (9/2/2016 docket entry).
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B. DISCOVERY OF THE DRUG CONSPIRACY

The United States discovered the charged drug conspiracy, in part, because

KEALOHA merged her “investigation” involving CC#4 with another fabricated

investigation—this one involving an electrician whose speeding ticket KEALOHA

fixed by lying in state court.2 When the FBI began investigating this incident,

KEALOHA immediately took steps towards legitimizing her deceitful behavior.

That included surreptitiously sending e-mails from other Deputy Prosecuting

Attorneys’ computers (when they had stepped outside their offices) in an attempt to

misdirect the investigation, fabricating a “cooperation agreement” with the

electrician (two years after the fact), and opening a state “investigation” into alleged

“police corruption” (falsely alleging, among other things, a “ghost-ticket” scheme

involving officers who had ticketed the electrician).

C. POTENTIAL POST-INDICTMENT WITNESS TAMPERING

The grand jury for the District of Hawaii first returned an Indictment against

KEALOHA on October 19, 2017. See Case No. 17-CR-00582-JMS-RLP. The

Indictment alleged that Kealoha used an alias, Alison Lee Wong, on several

occasions to help her perpetrate fraud. Thereafter, KEALOHA mailed a letter to an

2
At that time, KEALOHA was attempting to enter a business relationship with
the electrician as part of a massive solar farm project.
This is not the only time KEALOHA has dismissed, or caused the dismissal,
of a ticket for a friend or acquaintance. She did the same for a DUI charged against
Co-conspirator #1 in 2015.
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individual the United States had previously interviewed about “Wong.”

KEALOHA’s letter begins, “I’m asking for 10 minutes of your time.” It then

proceeds to seek to convince the recipient that the charges against KEALOHA were

“WRONG!” As to “Wong,” the typed letter states, “They claim that Alison Lee-

Wong is not a real person. At least a hundred people from my Arbonne group met

her and even more people worked with her on the HI Law Enforcement Memorial

Foundation Gala in Dec. of 2010.” Then, handwritten into the margin of the page,

KEALOHA wrote, “I know you met her!”3

The witness has confirmed she has no memory of meeting Alison Lee Wong.

D. CONSPIRING WITH VARIOUS WITNESSES TO OBSTRUCT THE

FEDERAL GRAND JURY

Since KEALOHA’s last bond determination, the United States has uncovered

additional instances of obstructive conduct on her part. Indeed, multiple witnesses

have pleaded guilty to conspiring with KEALOHA to provide false testimony to the

federal grand jury. See United States v. Ebersole, 18-CR-0094-JMS; United States

v. Taito, 18-CR-0001-JMS. For example, Ebersole admitted, among other things,

3
The United States is also aware that this same letter, though omitting the
handwritten note about Alison Lee Wong, was sent to another prospective
Government witness.
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that KEALOHA told him to deceive the federal grand jury about the true nature of

their intimate relationship. See 18-CR-0094-JMS, ECF No. 12 at 7; and Taito stated,

among other things, that KEALOHA advised him “not to tell the truth to the grand

jury.” See 18-CR-0001-JMS, ECF No. 12 at 15.

II.

RELEVANT LEGAL PRINCIPLES

The Bail Reform Act provides for a rebuttable presumption of pretrial

detention for defendants accused of committing certain offenses. 18 U.S.C. §

3142(e). That presumption applies in this case because KEALOHA has been

indicted for violations of the Controlled Substances Act with a maximum sentence

of greater than ten years. See 18 U.S.C. § 3142(e)(3)(A); 21 U.S.C. § 841(b)(1)(C).

To determine whether conditions of release could reasonably assure a

defendant’s appearance in court and the safety of the community, the Court

considers four factors: (1) the nature and circumstances of the offense; (2) the weight

of the evidence against the defendant; (3) the history and characteristics of the

defendant; and (4) the nature and seriousness of the danger the defendant would

present to the community if released. Id. § 3142(g). The weight to be accorded to

each factor rests in the Court’s discretion, though the Ninth Circuit has directed that

the weight of the evidence is the least important factor. United States v. Motamedi,

767 F.2d 1403, 1407 (9th Cir. 1985).

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III.

THE COURT SHOULD IMPOSE INCREASED BOND CONDITIONS

The factors governing pre-trial release strongly favor increased bond

conditions. The alleged offenses concern numerous transactions involving

significant amounts of controlled substances. Moreover, KEALOHA used her

position of trust and authority as a prosecutor to conceal the illegal introduction of

opioids—a “developing crisis in Hawaii”4—into the community. Additionally, in

support of the request for a drug testing condition, multiple witnesses have identified

KEALOHA as a user of drugs.

The weight of the evidence against KEALOHA—complete with taking

significant prosecutorial steps to shield her family, friends, and business associates;

witness testimony from various individuals; text messages from KEALOHA; and

more—is substantial. The United States expects KEALOHA to claim her actions

were within the scope of her prosecutorial discretion. But the failure to reveal even

the most basic of conflicts—standing alone—belies any such claim.

As for KEALOHA’s history and characteristics, on the one hand, KEALOHA

is understood to be a longtime resident of Hawaii, with strong ties to the area. She is

also a longtime member of the bar. But on the other hand, as spelled out here and

4
See Examining the Growing Opioid Overuse Trend in Hawaii, Hawaii Pacific
Health (Aug. 14, 2018), https://www.hawaiipacifichealth.org/healthier-
hawaii/news/examining-the-growing-opioid-overuse-trend-in-hawaii/
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elsewhere (see e.g., Case No. 17-CR-582-JMS-RLP, ECF No. 389), KEALOHA has

repeatedly abused her position of power to benefit her friends and vanquish her foes.

Additionally, as charged in this Indictment, KEALOHA used her employment and

law license as a means to conceal her and her brother’s criminal activity. In doing

so, she seriously imperiled the community she was sworn to protect.

Finally, the nature and seriousness of the danger KEALOHA would present

to the public is not negligible. She has made all of the required appearances in the

current cases pending against her.5 She has no known history of violent behavior.

That weighs in her favor. However, these data points do not tell the complete story.

Her lengthy history of obstructing justice and seeking to manipulate judicial

proceedings—going even so far as to invent a state investigation to aid those

efforts—presents a significant danger to the integrity of the judicial system.

Under the totality of the circumstances, the United States submits that

heightened conditions of release are appropriate. Specifically,

1. The Court should require drug testing as a condition of release.

2. The Court should require heightened financial requirements as a condition of

release. Specifically, the $100,00 bond requirement—presently unsecured—

should be secured by either a corporate surety bond or the signatures of two

financially responsible adults, with a 10 percent cash deposit to the Court.

5
She has not been required to appear at many hearings; her presence has been
waived for most.
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3. The Court should update the “no-contact” list previously entered in

KEALOHA’s prior matters. This list should include the individual

KEALOHA reached out to regarding Alison Lee Wong, and others related to

this instant Indictment. The United States can provide an updated list to

Pretrial Services within the week.

Dated: February 13, 2019 Respectfully submitted,

MATTHEW G. WHITAKER
Acting Attorney General

ROBERT S. BREWER, JR.

United States Attorney

/s/ Colin M. McDonald

MICHAEL G. WHEAT
ERIC J. BESTE
JANAKI S. GANDHI
COLIN M. MCDONALD
Special Attorneys to the Attorney General

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UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII
CR. NO. 19-00015-JMS-RLP
UNITED STATES OF AMERICA,
Plaintiff, CERTIFICATE OF SERVICE

v.
KATHERINE P. KEALOHA (2),
Defendant.

IT IS HEREBY CERTIFIED that:

I, Colin M. McDonald, am a citizen of the United States and am at least

eighteen years of age. My business address is 880 Front Street, Room 6293,

San Diego, CA 92101-8893.

I am not a party to the above-entitled action. I have caused service of the

foregoing on all parties in this case by electronically filing the foregoing with the

Clerk of the District Court using its ECF System, which electronically notifies them.

Upon filing, I will further serve the above document on Defendant’s appointed

counsel, Cynthia Kagiwada, at c_kagiwada@hotmail.com.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on February 13, 2019.

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/s/ Colin M. McDonald

COLIN M. MCDONALD

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