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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA,
Plaintiff,
vs.
GERARD K. PUANA,
Defendant.

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LAWRENCE L. TONG
ANDREA HATTAN
Office of the United States Attorney
Prince Kuhio Federal Building
300 Ala Moana Blvd Ste 6100
Honolulu, HI 96850

For the Defendant:

ALEXANDER SILVERT
Office of the Federal Public
Defender
PJKK Federal Building
300 Ala Moana Blvd Rm 7-104
Honolulu, HI 96850

Official Court
Reporter:

Cynthia Ott, RMR, CRR

United States District Court
300 Ala Moana Blvd, Room C-270
Honolulu, Hawaii 96850

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Jury Trial - Day One

For the Government:

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Honolulu, Hawaii
December 4, 2014
8:40 A.M.

APPEARANCES:

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CRIMINAL NO. 13-00375 LEK

TRANSCRIPT OF JURY TRIAL

BEFORE THE HONORABLE LESLIE E. KOBAYASHI
UNITED STATES DISTRICT JUDGE

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Proceedings recorded by machine shorthand, transcript produced

with computer-aided transcription (CAT).

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I N D E X

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EXAMINATIONS

NIALL SILVA

DIRECT EXAMINATION BY MR. TONG......................

VOIR DIRE EXAMINATION BY MR. SILVERT................
DIRECT EXAMINATION (Continued) BY MR. TONG..........
CROSS-EXAMINATION BY MR. SILVERT....................
VOIR DIRE EXAMINATION BY MR. TONG...................
CROSS-EXAMINATION (Continued) BY MR. SILVERT........
REDIRECT EXAMINATION BY MR. TONG....................
RECROSS-EXAMINATION BY MR. SILVERT..................
REDIRECT EXAMINATION BY MR. TONG....................

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PAGE

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LOUIS KEALOHA

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DIRECT EXAMINATION BY MR. TONG......................

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E X H I B I T S

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GOVERNMENT'S:

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1 and 2 were received in evidence...................

1.1, 1.2 and 1.3 were received in evidence..........
3 was received in evidence..........................

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DEFENDANT'S:

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QQQQ was received in evidence.........................42

AA was received in evidence...........................52
JJJ was received in evidence..........................54
PPPP was received in evidence.........................60

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THURSDAY, DECEMBER 4, 2014

(The following proceedings were held in open court in the

presence of the jury:)

THE CLERK:

Criminal 13-00735LEK, United States of

America versus Gerard K. Puana.

a jury trial.

record.

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(8:40 A.M.)

This case has been called for

Counsel, please make your appearances for the

Please speak into a microphone.

MR. TONG:

Good morning, Your Honor.

Larry Tong and

Andrea Hattan, Assistant U.S. Attorneys, representing the

United States.

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Good morning, ladies and gentlemen.

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With us at counsel table are Postal Inspector Brian

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Shaughnessy and Ora Morita, a paralegal specialist of our

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office.

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THE COURT:

All right.

Good morning to all of you,

and thank you for your presence today.

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Mr. Silvert.

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MR. SILVERT:

Good morning, Your Honor.

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ladies and gentlemen of the jury.

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of Gerard Puana, and my investigator, Adam Choka.

All right.

Good morning,

Alexander Silvert, on behalf

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THE COURT:

Good morning to all of you.

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And good morning, ladies and gentlemen of the jury.

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Thank you very much for being bright-eyed and enthusiastic.

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are going to start with opening statements.

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And I'll turn to Mr. Tong.

Will it be you or

We

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Ms. Hattan who will be giving opening for the government?

MR. TONG:

THE COURT:

MR. TONG:

I will, Your Honor.

All right.

Thank you.

Your Honor, may I have a moment to

introduce myself to the jury because I have not met them

before?

THE COURT:

You may, yes.

MR. TONG:

Ladies and gentlemen, let me introduce myself.

May it please the court.

Counsel.

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name is Larry Tong.

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throughout the trial will be Andrea Hattan, another Assistant

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U.S. Attorney.

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Osborne, the individual you met two days ago.

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I'm an Assistant U.S. Attorney.

My

With me

Both of us work in the same office with Les

Unfortunately, Mr. Osborne is not able to continue

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with this trial, so the two of us will have the privilege of

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presenting the evidence to you in his absence.

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So I just wanted to introduce myself, since I don't

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know any of you and I wasn't privy to the proceedings the other

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day.

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I assume that the other day you learned what this case

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was about.

This case is about the destruction and theft of a

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mailbox.

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Gerard Puana, the individual in the aloha shirt in the middle

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there, physically ripped a mailbox off of its pedestal and took

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it away.

We will show that on June 21 of 2013 the defendant,

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The mailbox belonged to his niece, Katherine Kealoha.

Katherine Kealoha is a city prosecutor.

to Louis Kealoha, the chief of the Honolulu Police Department.

In 2013, at the time of this incident, the Kealohas lived in

Kahala.

Ms. Kealoha is married

The mailbox that was involved is not a simple plastic

mailbox that says U.S. Mail on it, the type that you see at

City Mill.

ornate.

It was instead a little bit more fancy.

It had a satin-type finish.

It had a locking mechanism.

It was

It had a little roof on

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it.

And there was a little slot

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that the mailman could use to slide the mail into the mailbox.

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And this ornate mailbox sat on top of a pedestal, a

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little concrete or very hard object that was anchored with a

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base in the ground and coming up to support the mailbox.

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The Kealohas last saw the mailbox on the evening of

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June 21, late in the afternoon.

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awoke it was missing.

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there, it was sticking up, and that at the top of the pedestal

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there was a little bolt up -- sticking up into the air which

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used to secure the mailbox, but the mailbox itself was gone.

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The next morning when they

They noticed that the pedestal was still

Katherine Kealoha decided to report the theft of the

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mailbox to the police.

So Katherine Kealoha called 911, the

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general number for the police, and reported the theft.

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patrol officer then responded to the Kealoha residence on

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June 22nd, the morning after the event, and started an

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investigation.

At that time no one had seen the event, but, as it

turns out and as you will see, it was captured on videotape.

And the reason for that is that the Kealoha house had a

security system.

surveillance cameras pointed at various locations of the house.

The system was maintained by the Honolulu Police Department

because they wanted to protect Chief Kealoha and his wife from

any threats or any incidents.

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The security system included six different

So after they received the report, the HPD sent out a

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technical officer, a computer person, to go to the residence

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and retrieve the video.

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called the criminal intelligence unit, which is a unit in the

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HPD that has specialized duties, including protecting the HPD,

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its officers and, of course, its chief.

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This officer was part of a group

The officer in question is Niall Silva.

You'll hear

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from him later this morning.

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residence and went to the control box where all of the

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information about the monitors was located.

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that everything was working, that the cameras were operational,

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that the images were being recorded on computer, that the date

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and time stamped on the image matched the date and time of the

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incident.

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Officer Silva went to the Kealoha

He checked to see

He then reviewed the tape and saw that it had captured

the event at about 11:30 p.m., a little before midnight, the

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night before.

And you will see the tape.

The tape shows -- there is a long street in front of

the Kealoha residence in Kahala, where they lived at the time.

A white car drives up the street, doesn't deviate, comes

straight to the Kealoha residence.

the driveway.

It stops right in front of

There is several moments when you see the tape where

nothing happens.

Then an individual gets out of the driver's

side of the car and walks deliberately to the mailbox.

The

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individual is wearing a long, light-colored tee shirt and baggy

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cargo shorts, the type with the big pockets that you can stuff

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with all sorts of things.

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not slippers, and there's a ball cap.

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He's also wearing socks and shoes,

The individual walks up to the mailbox, leans forward,

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tries to fiddle with it as if he's trying to get to the

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contents, and then sort of stands up and looks a little like

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this, puts his arms around it, yanks it off the pedestal.

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then takes this mailbox, goes to the car, opens the door, puts

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it in the car, and drives away.

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You're going to see the images of that particular

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video.

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very deliberate.

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place, knew that place.

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He

It will show that the crime was not rushed.

It was

It was almost as if the individual owned that

Now, I'll be the first to tell you that when you see
the videos, they are not real clear.

This is not like watching

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high-def television, where you can see every pore on the face,

to the chagrin of media people and actors and others.

video is black and white, and it's not the clearest, but it was

clear enough that people could identify the defendant.

The

You'll hear that the HPD detectives took the video and

showed it to Katherine Kealoha.

recognized the person taking the mailbox as her uncle, the

defendant.

Katherine Kealoha immediately

You'll hear that the video was shown to Chief Kealoha.

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Chief Kealoha has known the defendant for many years.

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he's known the defendant longer than he's known his wife.

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used to work out together, they socialized.

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family came together, and there was a family relation, they

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would see each other at family gatherings and at the Kealoha

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house.

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defendant.

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He was shown the video.

They

And once the

He says, yes, that's the

A third person, an HPD officer named Bobby Nguyen, was

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also shown the video.

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Kealoha's niece, so he too is family.

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In fact,

Officer Nguyen married Katherine

I see one of you thinking about it.

There is a family

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relation here, and I'll get into that in a minute.

He is part

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of the family, and, in fact, Officer Nguyen lived in the back

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of the Kealoha residence at the time of the incident.

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seen and known the defendant, Gerard Puana, for a number of

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years, in fact, called him Uncle Gerry.

He had

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And Officer Nguyen saw the video, and he too

recognized the person taking the mailbox, destroying the

mailbox, as Uncle Gerry, the defendant, Gerard Puana.

You're going to hear that the identifications were

based on various characteristics.

build.

witnesses will tell you that.

One was his stature and his

He was lighter at the time than he is now.

The

Another was the way that he walked.

He has a very

unique walk, where he sort of puts his hip forward and

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almost -- some witnesses may call it cocky -- swinging his

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arms.

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He also has the manner of dress, the tee shirt that's

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a long sleeve with shorts, with socks and shoes.

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recognize that.

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defendant.

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The witnesses

So you'll hear that they identified the

After that particular identification, HPD took steps

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to arrest the defendant, Gerard Puana.

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and said, you're under arrest for theft in the second degree, a

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felony under Hawaii state law.

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theft involved were given to him.

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An officer arrested him

No specifics about what the

Once the arrest was made, he was brought to the

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station.

The lead detective decided he wanted to question the

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defendant about the mailbox theft.

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Postal Inspector Shaughnessy.

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reasons.

The detective then called

He did that for a couple of

One reason was because, as you probably already heard

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on the day I wasn't here, that there is a -- an offense under

federal law for stealing a mailbox that is used for the

delivery of United States mails.

Another reason is there was some concern on the part

of HPD that there could be a conflict of interest in having the

city prosecutors decide whether to prosecute a case involving

one of their own, Katherine Kealoha.

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So HPD called Inspector Shaughnessy.

station.

He went to the

He said, sure, I'll participate in the interview.

You'll hear that once Inspector Shaughnessy was in the

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room, a Detective Akagi brought the defendant to the room, and

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Inspector Shaughnessy introduced himself.

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Shaughnessy, an inspector with the United States Postal

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Inspection Service.

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badge, and that was that.

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that the defendant was there.

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He said, I'm Brian

He then showed him his credentials, his

He said no more about the reason

You'll hear that after hearing that the postal

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inspector was there, the defendant spontaneously said, "I'm

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wrongly accused, I had nothing to do with that mailbox," even

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though no one had mentioned that he was under investigation for

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the mailbox.

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So, ladies and gentlemen, in a nutshell, that's what

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you're going to hear in this case.

You're going to

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hear -- you'll see the video, you'll hear the eyewitnesses who

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will identify the defendant based on their familial and

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long-standing relationship.

involvement in a mailbox event, even though he hadn't been told

that's what he was there for.

You'll hear his statement denying

Now I want to address the family angle.

I saw a

couple of you trying to keep straight who's related to whom and

how.

Kealoha is related to the defendant.

through marriage to Katherine Kealoha and the defendant.

Many of the witnesses here are related.

Katherine

Bobby Nguyen is related

You will hear that the Puana family is a fairly large

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family, and, like many large families, there are good times,

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and there are bad times.

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times when the defendant was frequently at the Kealoha house.

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The good times, you'll hear, included

Back in 2007, 2009 -- please don't hold me to the

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dates, I'm not completely sure -- the Kealohas were renovating

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their residence.

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renovations.

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They were doing pretty significant

Katherine Kealoha asked her dad to help renovate the

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residence.

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in the area.

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his brother, to assist with some of the carpentry and the

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painting work.

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defendant was at the Kealoha residence quite frequently.

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were the good times.

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Her dad is a master shipbuilder and has expertise

The dad then hired the defendant, Gerard Puana,

And for a period of a couple of years, the

Those

And by the way, I should tell you, the surveillance

cameras that were used to capture the crime later were not

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present at the front of the house when the defendant used to go

over there.

There were bad times in the family too.

As a matter

of fact, you will inevitably hear, for sure, that there is a

civil lawsuit where people in the Puana family are arguing over

money.

transaction where the defendant's mom took out a mortgage on

her property to get money for various reasons.

Kealoha helped with that transaction to buy the defendant a

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The basic claim grows out of a complicated real estate

Katherine

condo.

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You'll hear that now in the civil lawsuit there are

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claims where the defendant and his mother are suing Katherine

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Kealoha claiming that she stole money, claiming that she took

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money and used it for purposes that were not proper.

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Kealoha denies that.

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money she took was returning money she put in.

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Katherine

She will tell you very generally that any

Fortunately for you, you're not going to have to hear

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all the evidence about what is a complicated, messy financial

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dispute colored by family emotions.

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another case by another jury across Punchbowl Street on another

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day.

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whether to believe certain witnesses or whether the dispute

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created strong emotions that could explain why the defendant

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would blatantly rip a mailbox off of its pedestal belonging to

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his niece.

That will be heard in

But you will hear about the dispute only as it relates to

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Ladies and gentlemen, the case should not take too

long.

We're all sharing that hope.

sure you will conclude that a mailbox was destroyed, that the

event was captured on tape, and the only issue for you to

decide really is going to be did the defendant do it.

At the conclusion, I'm

We ask you to listen to the evidence, to use your

independent judgment, to look at the videos, to look at the

witnesses and decide whether they are credible, and use your

common sense and reason in evaluating all of this.

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You will hear people say it is him and it is not him,

and, fortunately, all that matters is what you conclude.

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We submit to you that when we finish this case, you

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will consider the evidence and find the defendant, Gerard

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Puana, guilty of destroying and tearing down the mailbox.

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Thank you for your attention.

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THE COURT:

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Mr. Silvert, will you be giving the

opening?

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MR. SILVERT:

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THE COURT:

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MR. SILVERT:

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Thank you, Your Honor.

the jury.

Good morning, Your Honor.

Good morning.
Good morning, ladies and gentlemen of

Good morning, Counsel.

You're going to see me frequently take my glasses off.

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I can see you with my glasses, I can't read my papers.

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see it all through the trial.

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This case is about the taking of a mailbox.

You'll

You're

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going to hear evidence from a -- about a surveillance video.

And Mr. Tong said that it's grainy, it's hard to see, and it's

not like TV.

have to be, at the end of this case, the judge and jury of

whether Mr. Puana is the individual that's in that video.

Well, that's an understatement.

You're going to

You're going to have an opportunity throughout this

trial and when you deliberate to watch that video.

government has to prove beyond a reasonable doubt that that is

him.

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And the

The reason the government is calling Katherine

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Kealoha, Chief Louis Kealoha, and Bobby Nguyen, all very close

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to each other, family members, is because you can't tell who's

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on that video.

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If you could tell who was on that video, you'll look

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at him, you'll look at the video, and it's over.

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calling them because you cannot.

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Now, you took an oath as a jury.

They're

And I want to thank

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you for being on this jury because it is a privilege.

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the utmost highest of constitutional duties to be a juror and

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to have a jury trial.

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Not many countries have jury trials, so you have a special

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privilege and honor to sit on this jury.

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It is

This is what our country is all about.

And I'm sure at the end of this case you will

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deliberate with fairness and equality and impartiality, and

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look at that video, and look at the evidence, and look at the

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lack of evidence, and return a verdict of not guilty.

What Mr. Tong said in his opening is correct, but he

left out a couple things.

receive any evidence from the government that the police

recovered a mailbox, nothing.

evidence from the government that the mail in the mailbox was

recovered or found, either on Mr. Puana or anywhere.

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Where is the mailbox?

You will not

You will not receive any

The government will not even show you the mailbox.

They're going to show you the pedestal.

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show you the mailbox.

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trial as part of this evidence, why is it that the government

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didn't show you the mailbox, and I am.

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MR. TONG:

I will.

They will not even

I want you to think during this

Your Honor, I don't like to object, but

this is really closing argument.

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THE COURT:

I agree.

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Go ahead, Mr. Silvert.

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MR. SILVERT:

All right.

Sustained.

There's an old saying that things aren't

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as they appear to be, that saying in this case goes in spades.

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You will hear from the first witness through the end that

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things are not the way they appear to be.

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During cross-examination, I will bring that out, and

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so I ask you to pay close attention during this trial to the

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evidence that's brought out, both through the direct and

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through my cross.

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Now, the government is going to present those three

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witnesses to say that they looked at the video, and it's

Mr. Puana in the video.

to say that they looked at the video, and it's not him, and why

they believe it's not him.

conflicting testimony over what's depicted in that video.

In our case, I will present witnesses

So you're going to have very

But as Mr. Tong kind of alluded, this case doesn't

start with the theft of a mailbox, it started back in September

of 2012.

family was getting along pretty well.

And you will hear that prior to September 2012, the

In fact, Katherine

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Kealoha used to refer to my client as her favorite Uncle

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Gerster, but there was this complicated reverse mortgage that

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they undertook, where my client's 93-year-old mother, who owns

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a home, agreed to do a reverse mortgage that Katherine Kealoha

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organized and functioned and ran in order to get money to buy

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my client a house.

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And after the money was spent to purchase his condo,

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there was $150,000 left over.

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of it.

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that money for her own purposes.

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The money is gone, every penny

The civil lawsuit alleges that Katherine Kealoha took

Now, again, that civil lawsuit will be decided soon.

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It's pending.

And Mr. Tong talked about that, that that

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lawsuit is pending, and that is a critical piece of evidence

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you're going to hear about because what happens here will have

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an impact on what happens there.

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that Katherine Kealoha and Chief Kealoha are saying it's my

And it's the defense position

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client for the reason to help them discredit him here today so

they can use that in the civil trial to their advantage.

Back in September of 2012, Florence Puana wrote a

letter to Katherine Puana -- Katherine Kealoha asking, what are

you doing, what happened to the money?

a letter back, and you're going to hear about that letter.

that's before this lawsuit was filed.

back to that in a moment.

Katherine Kealoha wrote

And

And I'm going to get

When the lawsuit was filed in March of 2013, in June,

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on June 19th, 2013, Katherine Kealoha went to a deposition, her

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deposition in that case.

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had to continue it to another day because it hadn't finished.

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That's June 19th.

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June 29th, my client is arrested.

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They only finished half of it.

June 21st, the mailbox gets stolen.

They

On

Now, you will hear evidence that HPD -- many divisions

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of HPD conducted an investigation into this case prior to my

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client's arrest on June 29th.

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was on June -- well, they didn't say a date because that's

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important too, but at some point after my client's arrest, HPD

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decided that there might be a conflict in asking the state

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prosecutor's office to prosecute this case because Katherine

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Kealoha was involved, so they referred the case to the United

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States Postal Service.

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The government has said that it

There was no difference, the evidence will show, in

their knowledge of who was involved in this case, Katherine

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Kealoha, from June 22nd, yet they investigated this case

through the arrest and never stepped back and said, you know

what, we have a conflict, let the federal government deal with

it.

And the evidence that we will bring out on cross will

show you why they did that, why they wanted to control the

investigation on behalf of Chief Kealoha and not the federal

government.

You're going to hear evidence of reports that are

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falsified, reports that have been altered, surveillance that

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hasn't been recorded, all before my client was ever identified

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as the perpetrator.

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You're going to hear that the HPD from day one did not

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investigate a single other person for this offense other than

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Mr. Puana, before he was ever identified by Katherine Kealoha.

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How is that?

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You're going to hear evidence that Chief Kealoha and

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Katherine Kealoha lived in a residence that was being

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vandalized repeatedly.

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were fired at their house.

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during this time period who are doing things at their house,

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breaking into the garage, vandalizing their car.

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investigation of who those people were, none.

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People were yelling obscenities.

Shots

So there are a bunch of people

No

From day one, the evidence will show the only person
they went after was Mr. Puana.

The only person they went after

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was the person who had the audacity to file a civil lawsuit

against Katherine Kealoha.

It's about Katherine Kealoha, it's about her reputation, it's

about her job, it's about her license to practice law, that's

what this case is about.

That's what this case is about.

So I leave you with these words from Katherine

Kealoha, words that you're going to hear from her own mouth,

"How dare anyone make such malicious and false statements

against me?

I will prove that this is a horrible lie.

Any

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person who repeats this lie should be damned ashamed of

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themselves for stating such crap.

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decided to state these twisted lies."

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the words that she used in writing a letter to her 93-year-old

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grandmother.

They will rue the day they

Those are only some of

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At the end of this case, I ask you to consider all the

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evidence, and particularly, don't rely on me, don't rely on the

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government, look at that videotape.

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end of this case, you will find my client not guilty.

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And I submit to you at the

The government must prove that he's guilty beyond a

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reasonable doubt, that is the burden, and I'm going to hold you

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to your oath at the end of this case and ask you to return a

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verdict of not guilty.

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THE COURT:

All right.

The parties have concluded

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their opening statements.

I am now going to invoke the witness

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exclusionary rule, so, counsel, if you have any witnesses, they

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should remain outside of the courtroom unless and until they

testify in court and complete their testimony.

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MR. TONG:
Silva.

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Your Honor, United States calls Niall

THE COURT:

You may.

Do you need assistance from

Mr. Nakamura or Mr. Myer?

Mr. Myer, could you assist Mr. Tong.

MR. TONG:

THE COURT:

10

They're much bigger and stronger, so maybe.

Good morning, sir.

to the witness stand.

Thank you.

11

(Witness sworn.)

12

THE CLERK:

13

You can come right up

Please state your first name and your last

name, and spell your first and last name.

14

THE WITNESS:

15

alpha, Lima, Lima.

16

alpha.

17

It's Niall Silva.

November, India,

Last name S -- Sara, India, Lima, victory,

DIRECT EXAMINATION

18

BY MR. TONG:

19

Good morning, sir.

20

Good morning.

21

Would you please tell us your present occupation.

22

I'm presently retired.

23

Okay.

24

I was a police officer with the Honolulu Police

25

Department.

And what did you do before retirement?

21
1

When were you a HPD officer?

From 1988 to December of 2013.

So you've been retired a little less than a year?

Yes.

And can you tell the jury what your formal education

consists of?

degree.

All from here in Oahu?

10

Yes.

11

And during your time at HPD, what kind of assignments did

12

you have?

13

14

warrant section, the firearms section, training division, solo

15

motorcycles, and my last assignment was with the criminal

16

intelligence unit.

17

18

the HPD?

19

Yes.

20

And what kind of work did you do in that capacity?

21

Video editing, production, all the things you need to do

22

to -- we use to document departmental events.

23

24

the criminal intelligence unit; is that correct?

25

High school graduate with a bunch of college but no

Ranged from patrol, where everybody has to go, to the

And did you spend any time working in the video unit for

I spent about eight years working in the video unit.

Now, you said that your last assignment at HPD was with

Yes.

22
1

What was your position within the CIU?

I was a tech.

And what does that mean?

I deal with surveillance, cameras, installation,

monitoring, recovering footage, maintenance, and also computer

things.

This was for the criminal intelligence unit, correct?

Yes.

Tell us what that unit does.

10

The criminal intelligence unit is a unit directly under

11

the chief's office that is vested with receiving, gathering,

12

and sharing information with other branches of law enforcement

13

for the bigger picture.

14

protection of the department.

15

16

would that include its various officers and employees?

17

18

doing something wrong, we would also have to do surveillance

19

and gather information in those cases also.

20

21

you have that date in your mind?

22

Yes, sir.

23

And did you receive an assignment on that morning?

24

Yes, sir.

25

What was your assignment?

Okay.

Yes.

And we're also vested with the

And when you say protection of the department,

On occasion, if there's an officer suspected of

Now let me direct your attention to June 22 of 2013.

Do

23
1

To go to 1018 Kealaolu and recover a hard drive from a

security system.

And what part of town is that address located in?

In the Kahala area, near the golf course.

And do you know who lived there at the time?

The chief of police.

Okay.

Yes.

About what time did you arrive?

10

Just around 9:00 a.m.

11

And I believe you just said your assignment was to recover

12

some surveillance equipment or video?

13

Footage, yeah, that's right.

14

Footage?

15

The hard -- actually recovered the hard drive that is part

16

of a recording unit of the surveillance equipment.

17

18

existed at that residence?

19

Yes.

20

Can you describe for the jury generally what it consisted

21

of?

22

23

device.

24

And who maintained that system?

25

Who maintained it?

And did you go to that location?

Were you familiar with the surveillance equipment that

It consisted of four cameras, a monitor and a recording

24
1

Yes.

I'm not sure who maintained it consistently, but I was

sent there to recover the footage from it.

But would it fall within the responsibility of the HPD?

It could.

You're not sure?

Yeah.

All right.

residence?

And what did you do upon arriving at the

10

When I arrived at the residence I met with Officer Nguyen,

11

and I went to where the location of the device was, made sure

12

it was operating correctly, checked the date and time, and then

13

reviewed the footage.

14

then I removed the hard drive, and I put in a blank one.

15

16

checking to see that the system is working?

17

18

monitor.

19

operating program for that surveillance equipment, and then you

20

can play back the footage.

21

time, and so you can play it back and review it.

And then once I reviewed the footage,

And just to elaborate a little bit, what's involved in

You've got to -- there's a little mouse, and you have a

22

And you've got to use the mouse to go get into an

And it has time stamp what date and

And after I did all of that, I removed the hard drive.

23

So you have to, like, close down the system for a moment, take

24

the hard drive out and put another one, and then restart the

25

system.

25
1

But when you stop the system, it's just the recording

part.

It still has the same date and time running

continuously.

was operational?

correct.

had a date and time stamped on it, and it corresponded to the

What were the results of your review of whether the system

Oh, the system was operational, and the date and time was

Okay.

And so we're clear on that, you mean that the video

10

time that you saw?

11

Yes.

12

Okay.

13

Yes.

14

What did you do with the hard drive?

15

Took it back to my office where I have a computer that has

16

a special program in there that's able to view security camera

17

footage.

18

clip and some still shots, and I put that on to what we

19

consider a master disk, and I made a copy.

20

into a secured -- I have a file cabinet that only I can access,

21

and I kept it in there.

22

23

that correct?

24

Yes.

25

And did you see footage of an event involving a mailbox?

And you recovered the hard drive?

And I replayed that video.

Okay.

And then I took the video

And then I put it

And I assume you reviewed all of the footage; is

26
1

Oh, yes.

Do you recall the approximate time of that incident

according to the cameras?

the evening time, about 2330 hours, around there, which is

11:30 p.m.

into evidence?

I believe it was the day before I went there, the 21st, in

And after you saw that footage, what exactly did you put

I put in -- the evidence, I took a video clip of before

10

the event and after the event and then a bunch of stills of the

11

event, and I submitted that into evidence.

12

13

the format?

14

A DVD and CDs.

15

And did the images or moving pictures on those items

16

fairly and accurately depict what was on the hard drive?

17

And the items that you submitted into evidence, what was

Yes.

18

MR. TONG:

19

THE COURT:

20

You may.

Or you could use the digital

overhead, if you want.

21
22

And if I may approach, Your Honor?

MR. TONG:

I think I need to identify it first, if I

may.

23

THE COURT:

24

Mr. Silvert, are you stipulating?

25

dispute over this --

All right.

Thank you.
Is there any

27
1

MR. SILVERT:

Your Honor, could I do a quick voir

dire, because there's new information I was unavailable -- I

was untold of.

THE COURT:

Okay.

MR. SILVERT:

THE COURT:

Just a quick voir dire.

All right.

approach, set your foundation.

dire.

BY MR. TONG:

So, Mr. Tong, you can

And then you can ask to voir

10

Mr. Silva, I believe you have been handed one DVD and one

11

CD that have been marked as Exhibits 1 and 2 for

12

identification.

13

Yes, sir.

14

And let's take them one at a time.

15

Do you have those items in front of you?

Turning to Exhibit 1, do you recognize that particular

16

item?

17

Yes.

18

And what is it?

19

It is a CD that I submitted.

20

How do you recognize it as such?

21

It has my ugly handwriting on it, and it has the case

22

number and date and time that I recovered the evidence.

23

24

the hard drive that you recovered from the Kealoha residence on

25

June 24, 2014?

So was that a fair and accurate recording of a portion of

28
1

Yes.

2
3

MR. TONG:

We would ask that -- well, let me do

Exhibit 2 first, and then I'll move them both in for voir dire.

THE COURT:

All right.

BY MR. TONG:

Could you tell us what that is?

and it also is for the same case.

Now if I may, Mr. Silva, let's take a look at Exhibit 2.

This is also a CD.

And it's the second disk that I made,

10

And how do you recognize as it being one that you made in

11

connection with this particular case?

12

It also has my handwriting on it.

13

Okay.

14

include the video that you referenced in your testimony as well

15

as the still photographs?

16

Yes.

17
18

MR. TONG:

We would ask that Exhibits 1 and 2 be

received.

19
20

And am I correct that those are the CDs that

MR. SILVERT:

Your Honor, may I have a quick voir

dire?

21

THE COURT:

22

You may.
VOIR DIRE EXAMINATION

23

BY MR. SILVERT:

24

25

entire hard drive --

Mr. Silva, you testified that you actually seized an

29
1

Yes.

-- is that correct?

correct?

have, it has capabilities to take snapshots of the still -- of

the video.

of a certain portion of the video, which gives you a photo.

How many hours of video are on the hard drive?

I don't know.

10

But you testified you saw it all?

11

Yeah.

12

Could it have days?

13

Oh, yeah.

14

look through that.

15

16

the chain of custody been preserved?

17

I don't believe so.

18

So what we have here are just snippets of the hard drive,

19

and the hard drive itself has been destroyed?

20

I'm not sure.

21

But you're not here today to introduce the hard drive as

22

evidence?

23

No.

24

Just a piece of it?

25

Just a copy of what was on the hard drive.

The hard drive only has video on it,

Yeah, it has video on it, but with the software that I

So you run the video, and you can take a snapshot

Many hours.

Yeah, you've got to sit there for hours and

Is the hard drive in evidence -- has the hard drive, has

I no longer work there.

30
1

MR. SILVERT:

Thank you.

Your Honor, may we have sidebar?

THE COURT:

So what I'll do is we'll take it up during

the break with regard to this.

evidence at this time.

Do you have an area that you can go around, or we have

to resolve it now?

sidebar.

9
10

I won't receive it into

MR. TONG:

Or you need it to -- okay, let's take a

Maybe it would help if I could ask a couple

of questions.

11

THE COURT:

12

Yes, you may.

DIRECT EXAMINATION (Continued)

13

BY MR. TONG:

14

So you reviewed the entire hard drive, correct?

15

Yes, sir.

16

And am I correct that the hard drive showed images of the

17

front of the residence, correct?

18

Yes, sir.

19

And part of the screens showed a mailbox, correct?

20

Yes, sir.

21

A mailbox sitting on top of a pedestal, correct?

22

Yes.

23

In your review of the entire hard drive, did you see any

24

images showing anyone taking the mailbox from that pedestal?

25

Yes.

31
1

And is it those images that were recorded on Exhibits 1

and 2?

Yes.

On the portion of the hard drive that was not recorded on

Exhibits 1 and 2, did any of those show any other individual

coming up to the mailbox and yanking it off the pedestal?

No.

MR. TONG:

THE COURT:

Thank you, Your Honor.

So you're asking that it be received?

10

MR. TONG:

11

THE COURT:

12

MR. SILVERT:

13

All right.
Your Honor, I have a significant

objection, if I could make it at sidebar.

14

THE COURT:

15

(Sidebar.)

16

THE COURT:

17

I renew my offer, yes.

All right.

So you can.

Let the record reflect the presence of

Mr. Silvert, Ms. Hattan, and Mr. Tong.

18

MR. TONG:

Thank you, Your Honor.

19

MR. SILVERT:

Your Honor, the actual evidence is the

20

hard drive.

He simply took surveillance -- some portion of the

21

hard drive.

The reason this is so -- it's the hard drive

22

that's the evidence, not what he took from it, and they're not

23

offering that.

24
25

More importantly, in discovery and subpoenas, I

specifically asked both the government and HPD for copies of

32
1

any of the video from a two-day period of time, and I can show

you the documentation and affidavit stating there is no such

evidence.

They don't have any evidence.

So that either indicates -- because he just said that

they have it for days -- that either they've destroyed the

piece of evidence, the actual piece of evidence, or they lied

in their response.

8
9

I have not seen the hard drive.

there was a hard drive.

And that's the evidence.

10

that any of it be introduced.

11

THE COURT:

12

All right.

MR. TONG:

14

(End of sidebar.)

15

THE COURT:

Over your objection, it's

Thank you, Your Honor.

So the court is receiving into evidence

Exhibits 1 and 2.

17
18

So I object

received.

13

16

I was never told

(Government Exhibit Numbers 1 and 2 were received in

evidence.)

19

THE COURT:

20

MR. TONG:

Mr. Tong, your witness.

Your Honor, I apologize, having just come

21

into the case, I'm not sure where the original court exhibits

22

are.

23

the pictures?

Have they been provided to Mr. Nakamura, the binder of

24

THE COURT:

25

MR. TONG:

I'm not sure.

Mr. Nakamura?

If he has them, if they may please be shown

33
1

to Mr. Silva.

THE CLERK:

MR. TONG:

THE CLERK:

Mr. Tong, are you referring to 1. -Yes, exactly.

Thank you, sir.

Your Honor, Exhibits 1.1, 1.2, and 1.3 are

with the witness.

THE COURT:

All right.

Your witness, Mr. Tong.

BY MR. TONG:

the exhibits Mr. Nakamura just referenced.

All right, Mr. Silva, I want to direct your attention to

Turning first

10

to -- well, let's do them all three at a time.

Would you

11

please examine Exhibits 1.1, 1.2, and 1.3.

12

Okay.

13

Do you recognize those three photographs?

14

Yes.

15

And what are they?

16

They're stills that I captured from that hard drive.

17

it's representing that -- that event that was at the front of

18

the chief's house.

19

pointing multi direction.

20

21

depict the images that were on the hard drive that you

22

recovered?

23

24

those photographs.

25

MR. TONG:

And

This camera is on the street's edge

And do Exhibits 1.1, .2, and .3 fairly and accurately

Yes, sir.

And you will see the date and time stamps on

We would ask that Exhibits 1.1, 1.2, and

34
1

1.3 be received in evidence.

THE COURT:

MR. SILVERT:

THE COURT:

and is overruled.

6
7

Any objection?
Over my objection I made before.

All right.

Your objection is incorporated

It's received.

(Government Exhibit Numbers 1.1, 1.2 and 1.3 were

received in evidence.)

MR. TONG:

May we ask Mr. Nakamura to display Exhibit 1.1,

10

please.

11

BY MR. TONG:

12

Thank you, Your Honor.

Officer Silva --

13

THE CLERK:

Your Honor?

14

THE COURT:

Yes, please publish.

15

THE CLERK:

It's published to the jury.

16

MR. TONG:

Okay.

Okay.

Ladies and gentlemen, are all your

17

screens working?

I see nods.

18

BY MR. TONG:

19

20

correct?

21

Yes.

22

And where would that appear in this particular picture?

23

It's in the upper left-hand corner.

24

Would that be the area that I'm sort of making a purple

25

arrow and circle in?

Officer Silva, you referenced a date and time stamp,

35
1

Yes.

And can you decipher how to read that?

It's the year, the month, and the day.

And then there appears to be, after 6-21, a reference

to -- whoops, not there.

The next -- over, yeah.

MR. TONG:

Just tap something?

THE CLERK:

Mr. Nakamura, how do I erase this again?

In the corner.

10

MR. TONG:

Left or right?

11

Thank you, sir.

Clear, got it.

12

BY MR. TONG:

13

There is a reference here to --

14

Yeah, that would be hours, minutes, and seconds.

15

Okay.

16

those of us civilians?

17

Basically 20 -- 2331 hours.

18

So that is right before midnight?

19

Yes.

20

All right.

21

I'm goofing up here --

22

Yes.

23

Okay.

24

No artwork, sir.

25

that was.

And in military time, how does that translate for

It would be 11:31 p.m.

And in the right, there is a channel -- which

But that CH1 would designate what camera

36
1

And where in this particular photograph does it show a

mailbox?

In the lower left-hand corner --

I'm going to try --

-- at the cursor.

All right.

was on the hard drive that you recovered, correct?

Yes.

And what use, if any, did you make of this particular

And you said this was used by -- I mean, this

10

photograph?

11

Excuse me?

12

What did you use this photograph for?

13

purpose?

14

15

you review the video on the software you're able to see the

16

date and time stamp on the video, but when you download it to a

17

disk, you lose the date and time on the video, but when you

18

take still shots, the still shots retain the date and time.

I mean, there was a

Oh, yeah, the video that I recorded on the disk -- when

19

So I use it to give you an accurate representation of

20

date and time according to where the photos are taken in the

21

video.

22

23

basically to recover the evidence --

24

Yes.

25

-- and put it in evidence?

Okay.

And am I correct your assignment that day was

37
1

Yes.

MR. TONG:

May I have one moment, Your Honor?

THE COURT:

MR. TONG:

THE COURT:

Mr. Silvert, your witness.

MR. SILVERT:

Thank you.

You may.
I have nothing further.

Thank you.

Thank you.

Thank you, Your Honor.

CROSS-EXAMINATION

10

BY MR. SILVERT:

11

12

date that you have.

13

when you watch it, does it have a time date on it?

14

Yes, sir.

15

But when you download it, it does not?

16

Yeah, when you download it as a video, it doesn't show it

17

on top of the video when you play it.

18

19

that you recorded -- that you downloaded?

20

Yes.

21

So these government's exhibits, the two exhibits that you

22

downloaded that day, did you put the time stamp on them?

23

Excuse me, what do you mean?

24

The videos -- not the still photos, but the videos, the

25

clips?

I just want to understand something about the time and

Right.

The video itself that's on the hard drive,

So there's no time stamp, no date on the video

38
1

No, I have the video.

The still photos are there to

reference the video, so you know what the time is on the video.

time, date or stamp on it?

Correct, sir.

And the hard drive itself, you don't know where that is?

No, sir.

And these are -- did someone direct you what to download

and what not to download?

So the video itself that -- during mixing doesn't have a

10

Well, my directions were to review it and record whatever

11

was needed.

12

And you made that decision of what was needed?

13

Yes, sir.

14

No one else?

15

No one else.

16

Now, you said there were four cameras, correct?

17

Yes.

18

Well, that's not true.

19

It's over a year ago, sir, and I'm retired.

20

Well, I understand that, but you were very positive.

21

were asked a question by the government, and you gave an

22

answer, right?

23

Yes, sir.

24

If you weren't sure, you're an officer, you've testified

25

many times, you know how to say, I'm not sure, correct?

There are six, right?

You

Is that correct?

39
1

Well, that was my recollection, sir.

So your recollection is four video cameras?

Yes.

Would your recollection be refreshed if I showed you six

videos?

It depends.

7
8

MR. SILVERT:

triple Q -- quadruple Q?

THE COURT:

10
11

Your Honor, may the witness be shown

If you have it, you can put it on the --

MR. SILVERT:

I have it on -- but just for the

witness.

12

THE COURT:

All right.

13

THE CLERK:

Sorry, Your Honor, the jury is muted.

14

THE COURT:

Yes.

Yes.

So the jury --

So you can direct him to look

15

at his screen.

16

BY MR. SILVERT:

17

18

from the hard drive?

19

Yes, sir.

20

So there are six videos?

21

Yes.

22

Six cameras?

23

Yes.

24

You chose to download only two, correct?

25

Yes.

Is this a reflection of what you -- of what you received

You're correct.

Six cameras.

40
1

And you chose to download only for a specific period of

time, right?

Right, the time that covered the event.

Right.

before, correct?

No.

Or the day before that, correct?

No.

But you could have?

10

Yes, I could have.

11

You could have downloaded other sections, other videos,

12

other than the two cameras that you decided to download,

13

correct?

14

Yes.

15

The purpose of downloading this was to preserve it so that

16

it could be used to try to determine who stole the mailbox,

17

right?

18

Correct.

19

The vehicle that's in the -- these clips, that would

20

really help determine who stole the video, correct?

21

Yes, sir.

22

If you could get a license plate, correct?

23

Yes.

24

If you could get a good shot of the car, correct?

25

Yes.

You didn't download or save what happened the day

Is that right?

41
1

So you want the best, clearest shot you could get because

then you find out who's driving the vehicle, right?

In a perfect world.

4
5

MR. SILVERT:
moment, Your Honor.

6
7

Before I leave this, Your Honor, I would ask that this

still shot be published to the jury.

THE COURT:

MR. SILVERT:

10

Could the witness be shown -- well, one

Do you want to receive it in evidence?

Yes.

Your Honor, could this be

published to the jury?

11

MR. TONG:

12

MR. SILVERT:

13

MR. TONG:

14

THE COURT:

15

Is he offering the exhibit?

I'm offering this still shot --

May I voir dire?

You may.

VOIR DIRE EXAMINATION

16

BY MR. TONG:

17

18

And that appears to consist of six different still shots; is

19

that correct?

20

Yes.

21

And do you recognize those shots?

22

Yes.

23

And were they of the different locations in the Puana

24

residence?

25

Mr. Silva, you have in front of you, I guess Exhibit QQQQ.

Yes.

42
1

MR. TONG:

THE COURT:

MR. TONG:

THE CLERK:

All right.
All right.

We have no objection.
Received.

I'm sorry, the Kealoha residence.

I'm sorry, counsel, I do not have QQQQ on

the list.

MR. TONG:

And we don't have the exhibit either, to

the best of my knowledge, so.

THE CLERK:

There's no updated exhibit list.

THE COURT:

All right.

So you'll get that to us, but

10

there's no objection by the government, so it is received.

11

We'll indicate it.

12

for the record.

And Mr. Silvert is to get us the hard copy

13

THE CLERK:

Your Honor, may I publish?

14

THE COURT:

Yes, publish, please.

15

(Defendant Exhibit Number QQQQ was received in

16

evidence.)

17

CROSS-EXAMINATION (Continued)

18

BY MR. SILVERT:

19

20

particular time that you would have seen from the six cameras,

21

correct?

22

Yes, sir.

23

Now, you watched each and every one of these cameras,

24

correct?

25

So, again, this is a still shot of the view at one

Yes, I watched it like that initially.

43
1
2

MR. SILVERT:

Your Honor, could the witness be shown

PPPP?

THE COURT:

He may.

THE CLERK:

The jury is muted.

BY MR. SILVERT:

Do you recognize that shot?

It's not up yet, sir.

THE CLERK:

MR. SILVERT:

10

THE COURT:

I'm sorry.

Counsel, is it double P?

It's quadruple P.

All right.

So your question.

11

BY MR. SILVERT:

12

Do you recognize that shot?

13

Yes.

14

Isn't that from one of the cameras?

15

Yes.

16

It's from one of the cameras you didn't download, correct?

17

Yes.

18

Isn't that a nice shot of the car?

19

It's all right.

20

If you took a still shot, you might be able to even see

21

the license plate, right?

22

No.

23

You don't think so?

24

I tried using whatever capabilities of this program to get

25

a clearer shot, but that's it.

Did you try?

44
1

Isn't that the best shot of the back of the car that you

ever saw --

I'm not sure.

-- of all the video clips that you watched?

sure?

No.

But today, if I asked you -- or asked HPD to make a better

shot of this, we couldn't because there's no hard drive left,

correct?

You're not

10

I'm not sure.

11

You said you went to the residence -- you went to the

12

residence at 9:00?

13

Excuse me -- yeah, at around 9 a.m., yeah.

14

Who directed you to go to the residence?

15

My lieutenant called me and sent me down there.

16

Who's your lieutenant?

17

Lieutenant Derek Hahn.

18

Lieutenant Hahn is the acting captain of CID?

19

At this time, I believe.

20

So he gave you orders to go to the house, correct?

21

Yes, sir.

22

And this was at 9:00 in the morning?

23

Yes, sir.

24

When you went to the house, who was there?

25

Officer Nguyen was there.

45
1

Officer Nguyen?

Yes.

And who's he from, what division?

He also works in the CIU.

And Ms. Kealoha was there?

I didn't talk to anybody except for Officer Nguyen.

Do you know if she was there?

I don't know.

Who gave you access to the house?

10

Officer Nguyen was there prior to me.

11

So he got there first?

12

Yes.

13

Even before 9:00?

14

Before I arrived, yes.

15

And this is HPD equipment?

16

about that.

17

18

it.

19

You testified on direct it was HPD equipment?

20

I didn't say it was HPD equipment.

21

So you don't know whose equipment it is?

22

It could be his private equipment.

23

So you don't know?

24

I'm not sure because I didn't install it, sir.

25

Are you aware that the report, the first report of this

I want to be perfectly clear

This is HPD equipment?

I believe so, sir.

I'm not sure because I didn't install

46
1

crime, according to the police reports, is at 1:30 in the

afternoon?

MR. TONG:

MR. SILVERT:

Your Honor, I have him on my witness

list.

THE COURT:

witness, you would?

8
9

Objection, Your Honor, beyond the scope.

So if you had recalled him as your

All right, I'll permit you to --

MR. SILVERT:

Thank you, Your Honor.

BY MR. SILVERT:

10

11

for the first time at 1:30 in the afternoon?

12

No, I wasn't aware of that, sir.

13

How is it that you got to the house at 9:00 in the

14

morning?

15
16

Are you aware that Katherine Kealoha reported this crime

What were you told about what you were investigating?

MR. TONG:

Well, object to the first part as

argumentative, Your Honor.

17

THE COURT:

You need a microphone closer.

18

MR. TONG:

19

Object to the first part as argumentative.

20

THE COURT:

Sure.

All right.

Overruled, it's

21

cross-examination.

22

BY MR. SILVERT:

23

You can answer the question.

24

Excuse me, can you ask that again?

25

Yeah.

How is it that you arrived at the house at 9:00 in

47
1

the morning?

What were you told?

I was told to go down there and recover the hard drive.

Did anyone tell you why?

Not initially.

When were you told?

I'm not sure, but it's after I got back to the station.

Before you looked at the video?

No, I looked at the video at the house.

How did you know what you were looking for?

You were just

10

checking that it was working?

11

Yes.

12

So you weren't looking for anything when you looked at the

13

video at the house, you were just making sure it worked?

14

Yes.

15

Then back at the police station, you were told what?

16

That a crime had occurred, and that I should look for the

17

footage.

18

What time were you told that?

19

I'm not sure, sir.

20

You know how to write police reports, correct?

21

Yes, sir.

22

You write police reports all the time, correct?

23

Yes.

24

It's your duty to do that, right?

25

Yes.

48
1

Did you write a police report detailing what you were told

to do when you arrived at the house, when you were told what

the crime was, and when you made the video?

No.

No report at all?

No.

Isn't it a disciplinary action for failing to file a

police report?

Only if I was required to.

10

And you were not required to put down any of this

11

information in a police report?

12

Not in my capacity as a tech.

13

But in your capacity as a tech, you arrive at a certain

14

time, correct?

15

Yes.

16

You're told certain things, right?

17

at a certain time, correct?

18

Yes.

19

None of that is recorded?

20

I think it's recorded on that follow-up page that I

21

submitted with the evidence.

22

23

took the video, correct?

24

Yeah.

25

And that would be at 2331, correct?

Right.

You download the video

The only thing that's recorded is the time you

49
1

No, that's the time of the occurrence of the crime.

Okay.

recovered the footage was at 8:59 in the morning, correct?

Correct, sir.

Okay.

And the time that you were assigned and that you

I'd like to show you --

MR. SILVERT:

BY MR. SILVERT:

Can it be published to the witness.

-- Exhibit -- Exhibit AA.

THE CLERK:

The jury is muted, Your Honor.

10

THE COURT:

Thank you.

11

BY MR. SILVERT:

12

Do you recognize this document?

13

Yes, sir.

14

Is this the document you prepared regarding what time you

15

were assigned and what time you recovered the videotape?

16

Yes.

17

And you recognize that you created it?

18

Yes.

19

MR. SILVERT:

One moment, Your Honor.

20

BY MR. SILVERT:

21

22

you recovered the footage, correct?

23

Yes.

24

That document doesn't state where you recovered the

25

footage?

And in that document, it states that on June 22nd at 8:59,

50
1

Well, the footage was over there at 1018 Kealaolu.

Say that again.

The hard drive was located at 1018 Kealaolu, on the top of

the page.

That says where it comes from, correct?

Yes.

So it wasn't recovered from HPD, it was recovered from the

residence?

10
11

Yeah.

The hard drive was, yeah.

MR. SILVERT:

Your Honor, I'm going to move this --

I'd ask that this be moved into evidence.

12

THE COURT:

13

Any objection, Mr. Tong?

14

MR. TONG:

15

MR. SILVERT:

16

THE COURT:

17

All right.

This being Exhibit AA?

Yes.

It's been identified as the

follow-up report.

18

MR. TONG:

19

MR. SILVERT:

20

That's correct.

Is it three pages?
Your Honor, it's three pages.

I'll move

the other two pages.

21

THE COURT:

22

MR. SILVERT:

23

page?

24

BY MR. SILVERT:

25

All right.
Could the witness be shown the next

This is also a document you prepared, correct?

51
1

Yes, that's the evidence sheet.

Right.

Yes.

It confirms that at 8:59 in the morning, you recovered the

evidence?

up on top -- on my tagging, where it says hallmarked --

Yes.

-- yeah.

10

You're doing this because you want to create a chain of

11

custody for the videotape, correct?

12

Yes.

13

So it's very important that this information is correct

14

because -- so no one can challenge how you got the video and

15

where it went, correct?

16

Yeah.

17

If you could turn to the next page.

18

of your report, correct?

19

Yes.

20

Same thing, it confirms 8:59 in the morning, correct?

21

Yes.

22
23

So the evidence sheet you created, correct?

No, that's -- the evidence sheet only -- oh, yeah -- well,

MR. SILVERT:

Your Honor, I move that AA be admitted

into evidence.

24

THE COURT:

25

MR. TONG:

This is another page

Any objection?
No objection.

52
1

THE COURT:

MR. SILVERT:

Received.
Could the first page be published to the

jury?

THE COURT:

(Defendant Exhibit Number AA was received in

evidence.)

BY MR. SILVERT:

about --

So this is the page we talked about before talking

10
11

It may.

THE CLERK:

Your Honor, sorry, the document is

published.

12

THE COURT:

The record will reflect the document is

13

published.

Your question.

14

BY MR. SILVERT:

15

16

it says you recovered the videotape at the house on a certain

17

time, correct?

18

Yes, sir.

19

And you recovered one original and one copy, correct?

20

No, that's what I submitted.

21

That's what you submitted?

22

I released the one original and copy of the surveillance

23

footage to evidence and one to the detective.

24

That's correct.

25

Yes.

This is the page we were just talking about before, where

So that's correct, right?

53
1

Okay.

If you were to change the report somehow, you would

have to do a follow-up report?

Yes, I'd have to write a follow-up.

You wouldn't use the same piece of paper and write over

it?

No, it would be a different type of follow-up form.

Right.

change a report or add something, you're going to file a

different piece of paper, correct?

Because this is the piece of paper.

10

Yes, sir.

11

Not use the exact same one?

12

Right.

13

In fact, it would be improper?

14

Yeah.

15

MR. SILVERT:

16

published to the jury anymore.

17

THE COURT:

18

MR. SILVERT:

19

THE COURT:

20

MR. SILVERT:

21

THE CLERK:

Any time you

Your Honor, if we could not have this

All right.
I'm moving on.

Let it be muted.
Could the witness be shown JJJ?

Your Honor, the jury is muted.

22

BY MR. SILVERT:

23

Do you see this form?

24

Yep.

25

Same form as the other -- as AA that we just talked about,

54
1

correct?

Right.

But there's a difference?

Well, it's a different form physically.

That's correct.

release --

7
8

THE COURT:

Well, before you have him testify about

it, would you move it into evidence?

9
10

So in the box where it says, I

MR. SILVERT:

Yes.

Your Honor, may I move it into

evidence?

11

THE COURT:

12

MR. TONG:

13

THE COURT:

14

(Defendant Exhibit Number JJJ was received in

15

No, Your Honor.

Received.

evidence.)

16
17

Any objections?

MR. SILVERT:

Your Honor, may it be published to the

jury?

18

THE COURT:

It may be published to the jury.

19

THE CLERK:

I'm sorry, Your Honor, the exhibit has

20

been published.

21

THE COURT:

Thank you.

22

BY MR. SILVERT:

23

This is the exact same form as we just saw, AA, correct?

24

Yeah, it's the same format.

25

But this one is different in that where it says, I release

55
1

blank originals and/or blank copies of surveillance, instead of

the typed number one, there's handwritten number four, correct?

Yes.

In fact, it looks like it's actually not even a typed

number four, it's handwritten, correct?

I'd have to see the original to be sure.

Well, did you do that?

I might have.

copies -- I did submit four disks, yeah.

Did you make that change?

That's correct.

I don't know.

You know, in the other two

10

But the government asked you -- well, I

11

asked you about Exhibit AA, and you said that was accurate, and

12

that was what you filled out, correct?

13

Yes.

14

But you altered it to be 4, 4, correct?

15

Yes.

16

You didn't use a different form as you said you would have

17

to do if you were going to change a document, correct?

18

Yes.

19

You just altered it, correct?

20

(No audible response.)

21

So departmental rules, standards of conduct in reporting

22

requires you to prepare a different report, correct?

23

24

sir.

25

I'm not sure exactly what the administrative rules say,

How long were you a police officer?

56
1

A little over 25 years.

And there's policy statements issued to police officers on

how to do -- how to behave, how to conduct, and how to file

reports, correct?

Yes, sir.

And you must have been familiar with those rules, correct?

You have to be, you're required to be, aren't you?

Yes.

You know, according to those rules, as you testified

All the time.

10

before, you can't alter a document that's already been

11

prepared, you have to prepare a new one and change it, correct?

12

13

same.

14

15

document, correct?

16

It's not the same as the other document, correct.

17

And, in fact, all the typing on it is the same except for

18

those numbers, correct?

19

Yes.

20

Even the signature at the bottom, which is yours, correct?

21

Yes.

22

Even the date, the ID number, correct?

23

Yes.

24

Even the date and time submitted, correct?

25

Yes.

All that information other than that number is all the

I understand that.

But it's not the same as the original

57
1

So you used the same form and altered it, correct?

Yes, sir.

And that's improper?

Excuse me?

That's improper.

What is your point?

It's not a point.

What's done is done, sir.

Right.

Is it proper or improper to do that?

What's done is done, so, so be it, correct?

10

Correct?

11

Correct to what?

12

So be it.

13

violated the policies of HPD, we don't care?

14
15

Doesn't matter you altered the form, you

MR. TONG:

Your Honor, this is argumentative, even if

it's cross.

16

THE COURT:

All right.

17

MR. SILVERT:

18

THE COURT:

I'll rephrase it.

Okay, thank you.

19

BY MR. SILVERT:

20

21

lot to you, right?

22

It does.

23

Do you think it's significant that the wrong document

24

might be given to the prosecution or to any prosecutor rather

25

than the correct document?

So, to you, if you alter a document doesn't really mean a

58
1

Yes, sir.

So -- okay.

you made?

They went over to the command, to the lieutenant.

So there's a property -- there's a sheet that recounts --

if you look at --

7
8

MR. SILVERT:

If we go back to AA again.

Then can we

go to the second section.

9
10

What happened to the other three copies that

This has been introduced into evidence, Your Honor.

May I have it published to the jury?

11

THE COURT:

It may be published.

12

BY MR. SILVERT:

13

14

right?

15

Yes, for the originals.

16

Right.

17

Yes, sir.

18

So if you download and you make one copy, and then you

19

make three more, this only has to be with the one copy?

20

Yes, that's just with the originals that go into evidence.

21

So the other three copies, we have no idea where they

22

went?

23

No, sir.

24

Just the one?

25

Yes.

This page, at the bottom, it says, chain of custody,

For the original, not the extra copies?

59
1

And you have no report of what happened to those other

three documents?

No, sir.

I'd ask you to look at Government Exhibit 7.

THE CLERK:

Your Honor, the jury has been muted.

THE COURT:

Thank you.

BY MR. SILVERT:

Do you recognize that document?

Yes.

10

That's the document from AA, it's the first page that only

11

has the one video, correct?

12

Right.

13

So that document ended up in the hands of the government,

14

correct?

15

If you say so.

16

Well, it's their exhibit, Government Exhibit 7.

17

MR. TONG:

18

THE COURT:

Your Honor, there's no foundation.

It calls him to speculate, so sustained.

19

Ask another question.

20

BY MR. SILVERT:

21

This isn't the altered document, correct?

22

No.

23

This isn't the one that's correct, that actually shows you

24

made four copies, correct?

25

Yes.

60
1

It's the one that shows you only made one?

Yes.

Did Katherine Kealoha see this -- see the video in your

presence?

No, not in my presence.

You had no conversation with her?

No.

MR. SILVERT:

Oh, one moment, Your Honor.

10
11

photo, but I would move to admit it.

THE COURT:

That's the vehicle.

Has it been received?

I believe we

published it, so I think it is received.

14
15

My better half.

Your Honor, I don't know if I admitted PPPP, the still

12
13

Nothing further.

MR. TONG:

No, it was not offered, and we have no

objection.

16

THE COURT:

17

MR. SILVERT:

18

THE COURT:

There's no objection.

20

THE CLERK:

Quadruple P.

21

THE COURT:

Quadruple P is received in evidence.

22

(Defendant Exhibit Number PPPP was received in

19

23

Yes.
So is that double

P?

evidence.)

24
25

Do you want to --

MR. SILVERT:
jury?

Your Honor, may we publish it to the

61
1

THE COURT:

You may.

THE CLERK:

Your Honor, quadruple P is published.

THE COURT:

Thank you.

BY MR. SILVERT:

the car, that has not been downloaded, correct?

So this is the still photo we were talking about, about

Yes.

MR. SILVERT:

THE COURT:

10

MR. TONG:

11

Thank you.

Nothing further.

Redirect, Mr. Tong?

Yes, thank you, Your Honor.
REDIRECT EXAMINATION

12

BY MR. TONG:

13

14

a picture of a white car, correct?

15

Yes.

16

And is it true that the portions of the video that you

17

preserved in evidence also showed a white car?

18

Yes.

19

And it shows the white car driving down the street and

20

stopping, correct?

21

Yes.

22

Now, you were shown a still image showing six different

23

cameras at the residence; is that correct?

24

25

Mr. Silva, a few follow-up questions.

You were just shown

Yes.
MR. TONG:

May I see that image, please?

62
1
2

I have no objection if it's published, Your Honor,

it's in evidence.

May I ask that it be shown to the jury?

THE COURT:

MR. TONG:

tell us.

It shall.
I don't know the exhibit number, he has to

QQQQ.

Does the jury have that?

THE CLERK:

BY MR. TONG:

Your Honor, the QQQQ has been published.

And Officer Silva, there appears to be a black car in at

10

least two of those images; is that correct?

11

Yes.

12

And did you know whose car that was?

13

It's the chief's car.

14

All right.

15

as a technician saving the images, correct?

16

Yes.

17

All right.

18

your memory as to how many surveillance cameras there were at

19

the house?

20

Yes.

21

And how many were present?

22

Six.

23

Now, you were asked a number of questions about these two

24

reports.

25

So that was not of particular concern to you

Having reviewed Exhibit QQQQ, did that refresh

MR. TONG:

We can remove that, if you would, please.

63
1

BY MR. TONG:

"altered" -- let's take a look at Exhibit AAA, please.

The two reports -- and I'll use Mr. Silvert's word

MR. TONG:

THE COURT:

MR. SILVERT:

MR. TONG:

THE CLERK:

MR. TONG:

10

THE CLERK:

If we may have that published, Your Honor?

You may.
It's double A.

Double A.
I'm sorry, that's triple -Double A, Defense Exhibit double A, please.
Your Honor, the exhibit has been

11

published.

12

BY MR. TONG:

13

14

seizing the evidence from the Kealoha residence; is that

15

correct?

16

Yes.

17

And I believe the part that Mr. Silvert was focused on,

18

first off, it did document the location of the seizure; is that

19

correct?

20

Yes.

21

1018 Kealaolu Avenue, correct?

22

Yes.

23

As well as the time of the events, June 21, '13, at

24

11:31 p.m., correct?

25

Okay.

Yes.

And this is the document that you prepared after

64
1

And these items, the equipment checklist represent the

items that you testified to earlier that you did to assure that

the system was working; is that correct?

Yes.

And everything that was working, you initialled NS; is

that correct?

Yes.

All right.

this portion, where you said you released one original and one

And it seems that you were questioned about

10

copy, correct?

11

Yes.

12

And right below that, there's the section that says the

13

original went into evidence and the copy went to the detective;

14

is that correct?

15

Yes.

16

Now, what's the purpose of documenting that the original

17

went into HPD evidence?

18

19

you want it to be true and accurate and not have anybody

20

blaming later.

21

22

evidence room; is that correct?

23

Correct.

24

And that's why when you saw the exhibit, it reflected

25

everybody that had touched the evidence after it was put into

The original is the one that's the most important because

And once it gets into evidence, it's maintained by the

65
1

the evidence room, correct?

it shows the chain of custody, yeah.

could?

into evidence, and who accepted it into evidence.

I don't think -- oh, yeah, from me to whoever it went to,

And chain of custody means what, to the jury, if you

Just making sure that, from my hands, that original went

And if it's been removed from evidence for any reason,

it'll document who it went from in evidence and who it went to,

10

so that we know that there was no time, you know -- or there's

11

continuity that nothing had been tampered with, yeah.

12
13

MR. TONG:

And if we may please see -- have published

page two of Exhibit AA, please.

14

THE COURT:

May we, Your Honor?

You may.

15

BY MR. TONG:

16

Do you have that in front of you, Mr. Silva?

17

Yes.

18

MR. TONG:

And do the jurors have that in front of

19

you?

Okay.

20

BY MR. TONG:

21

22

page two of Exhibit AA.

23

That's the evidence sheet.

24

Okay.

25

Yes.

And, Mr. Silva, could you explain what this document is,

And did you prepare that document?

66
1

And that basically shows when you placed evidence into the

evidence --

Room, yes.

-- custodian's care, correct?

Yes.

And there's a section in the middle that I'm trying to

circle called chain of custody, correct?

Yes.

And what does that represent?

10

That represents that I put two items into evidence, and

11

the receiver was Johnette Moses from the evidence room.

12

Now the other document that you were shown, Exhibit JJJ --

13

MR. TONG:

May we publish that, Your Honor?

14

THE COURT:

You may.

15

THE CLERK:

Your Honor, JJJ, previously admitted, is

16

published.

17

BY MR. TONG:

18

19

copies to evidence and copy to the detective, correct?

20

Yes.

21

Was there any difference in the evidence that you released

22

to the detective, the extra three copies, between the copies

23

and the original placed in evidence?

24

No.

25

You just -- what did you do to create those copies?

It says you put four copies -- four original and/or four

67
1

I made them -- when I'm making them, I actually make them

in the same sequence, so the exact same copy is made.

reflects -- the original one reflects that four items were put

in evidence; is that correct?

Yes.

The CDs and the various stills, correct?

Yes.

Okay.

Okay.

And your evidence custodian report actually

Is it unusual to give extra copies of digital

10

evidence to officers working on an investigation?

11

No.

12

Why not?

13

Because they need to review things and just part of doing

14

an investigation.

15

16

the one original?

17

Well, because you don't want to take it out unnecessarily.

18

And apart from reflecting that three extra copies were

19

made, are there changes in the substance of your follow-up

20

report, which is Exhibit JJJ, from the original one, which is

21

Exhibit AA?

22

Why can't they just go into the evidence room and look at

No.

23

MR. TONG:

24

THE COURT:

25

MR. TONG:

May I have one moment, Your Honor?

You may.
I have nothing further.

68
1

MR. SILVERT:

THE COURT:

MR. TONG:

THE CLERK:

Your Honor, we can leave this up.

Fine.

Give Mr. Tong a few seconds.

Yes, please.
I'm sorry, Counsel.

The jury is muted

currently.

THE COURT:

No, I think he wants it up for this --

THE CLERK:

Put it back up.

THE COURT:

Display it, please, for the jury.

It's now displayed.

10

RECROSS-EXAMINATION

11

BY MR. SILVERT:

12

13

the videotape?

14

The four disks, yeah, they were submitted.

15

There were four disks submitted?

16

Yes.

17

So this is now one original of each disk?

18

Yes.

19

You were only asked to introduce two disks?

20

Yes.

21

When you said in this form, 4 originals, 4 originals of

THE COURT:

What's your question?

22

BY MR. SILVERT:

23

Are there four disks or two disks of -- that you made?

24

There are four in evidence.

25

There are four disks in evidence?

69
1

Yes.

MR. SILVERT:

Okay.

And if we can go to the second

page of AA.

BY MR. SILVERT:

custody.

Yes.

When did you make the copies?

I made the copies at a later time.

10

When?

11

Before I submitted it.

12

So you didn't submit any evidence for chain of custody

13

until July 1st --

14

Correct.

15

-- correct?

Mr. Tong was asking you questions about the chain of

16

So you recovered the tapes on June 22nd, correct?

Mr. Puana was arrested on June 29th, correct?

THE COURT:

Are you asking him when Mr. Puana was

17

arrested?

Do you know?

18

BY MR. SILVERT:

19

Do you know if Mr. Puana was arrested June 29th?

20

I'm not aware of his arrest.

21

So you kept the disk in your personal pockets or hands or

22

desk until --

23

In a locked file cabinet --

24

In a locked file cabinet?

25

-- that I only have access to.

70
1

A chain of custody is supposed to prevent any questioning

about the validity of a document, correct?

Yes, sir.

Wouldn't the chain of custody start with you, once you

seized it?

It did.

Okay.

submit it until July 1st, correct?

Yes, sir.

10

Go back to first page.

11

release any of the videos to Detective Akagi until July 1st,

12

correct?

13

Of the copies I released to him, yeah.

14

Where does it say that?

15

It doesn't say that.

16

So go back to JJJ.

17

4 copies, right?

18

Yes, sir.

19

That one also says you didn't release anything to

20

Detective Akagi until July 1st?

21

Yes.

22

So when you got the video with all the copies, however

23

many you made, no one but yourself had that until July 1st,

24

2013?

25

And then you didn't put it into -- you didn't

This form says that you did not

JJJ is the form where you said you had

Well, I had possession of it, and other officers did

71
1

review the tape.

Wouldn't you keep a record of other people reviewing it?

No.

Isn't that part of the chain of custody?

No.

So anybody can come and review the videos, copies,

whatever, and you don't keep a record?

No, because I'm present.

Do you have a memory of that happening?

10

Of?

11

Of anyone coming and looking at the video?

12

I believe some of our officers that were involved in the

13

investigation did come to my office and reviewed it.

14

Who?

15

Officer Nguyen.

16

From CIU?

17

Yes.

18

been or officers from that unit.

19

20

have just come and taken a look, correct?

21

Yes, sir.

22

So it couldn't be possible that a video was shown to

23

someone else that you wouldn't know about?

24

25

original.

It never left my control.

And I'm not sure who the other detectives might have

But they wouldn't have removed it from you, they would

It could be possible they had a copy, but not the

72
1

But you didn't let any copies go, correct?

Not until July

1st, correct?

detective, yeah.

didn't let any of the copies out of your possession before July

1st, correct?

No, I said I didn't let any of the originals out.

You said a moment ago that people would come and look at

Those are just the ones that I have that I gave to the

I understand that, but you testified just a minute ago you

10

the videotape at your office, correct?

11

Yes.

12

If they have copies, they don't have to go to your office

13

and look at anything, do they?

14

15

Could I clarify, Your Honor?

THE COURT:

Yes, you can.

But you have to wait till

16

he finishes his question, and you have to wait until he

17

finishes his answer.

18

What is your answer, sir?

19

THE WITNESS:

Well, you got to realize that I

20

recovered a hard drive that he can play back and forth over and

21

over again, and that's for whoever came to see it.

22

But I made copies to give to the guys that have to go

23

out on the road.

24

went after that.

25

BY MR. SILVERT:

And so I don't know who saw it or where it

73
1

So let's just get this clear, you made extra copies,

correct?

Yes.

Which you didn't report in your original form, correct?

Yes.

And at some point, you made some extra copies, correct?

Yes.

And you let them out, anybody could have them, correct?

No, not anybody, just whoever was involved in the case.

10

But you didn't write a report keeping track of anybody who

11

looked at those videos or took it out, right?

12

Correct.

13

So you don't know who took it out, correct?

14

That's what I'm telling you, sir.

15

So it could have been someone not involved in the case,

16

correct?

17

Not -- after it leaves my hands, I don't know.

18

Right.

19

right?

20

Yes.

21

Did Detective Akagi -- is the first time he got his hands

22

on a copy of the report July 1st, 2013?

23

I'm not sure.

24

Do you have any memory of him coming in earlier?

25

He was -- I don't even know when he was assigned to the

You don't even write down who you give it to,

74
1

case.

video?

No.

Did Louis Kealoha come into your room and look at the

video?

No.

Did Bobby Nguyen come into your room and look at the

video?

Did Katherine Kealoha come into your room and look at the

10

Yes.

11

When?

12

The morning that we got it.

13

So the very day you got it, Bobby Nguyen came into your

14

office and saw it, and you remember that?

15

16

yeah.

17

But you're sure of that?

18

I can't tell you the time, but I am pretty sure he saw the

19

video that day.

20

Did you make a report of that?

21

No.

22

So it's just your memory today that that happened?

23

Yes.

24

Do you know his significance to this case?

25

No.

I'm not sure of when because I was reviewing the footage,

75
1
2

MR. TONG:
that.

3
4

Your Honor, I object to the relevance of

MR. SILVERT:

There's no report whatsoever that Bobby

Nguyen saw --

THE COURT:

Overruled.

BY MR. SILVERT:

the video the day you got it?

Do you know the significance of Bobby Nguyen looking at

Can you rephrase the question, sir?

10
11

Ask the next question.

THE COURT:

Does he know why, the reason for it, is

that what you're asking?

12

MR. SILVERT:

13

THE COURT:

I'll ask that.

Okay.

14

BY MR. SILVERT:

15

16

the day you got it?

17

Because he was part of the investigation.

18

He was part of the investigation into the theft of one of

19

his closest relative's mailbox?

20

I don't understand what you're saying.

21

Sure.

22

conduct that you have to abide by as a police officer, correct?

23

Yes.

24

One of those standards of conduct is that you may not

25

participate in an investigation if it's -- if it's of yourself

Do you know why Bobby Nguyen was able to look at the video

I'll put it another way.

There are standards of

76
1

or a family member, correct?

MR. TONG:

Your Honor, I object to this line of

questioning unless there's a foundation that he had some role

in assigning people or doing the investigation itself.

MR. SILVERT:

THE COURT:

I'm just asking --

Wait.

Stop.

officer.

officer, not as a supervisor.

Overruled.

He's a police

He's asking for his general knowledge as a police

Do you understand the question?

10

THE WITNESS:

11

THE COURT:

12

THE WITNESS:

13

THE COURT:

Yes.

Do you have an answer?

Yes.

Okay.

Please.

14

BY MR. SILVERT:

15

And what's the answer?

16

It depends on the circumstance.

17

All right.

18

circumstance, correct?

19

20

a case that you're not involved, but if you're directly a part

21

of it then you've got to do your job.

22

23

conflict of interest, you're supposed to tell your superior,

24

correct?

25

No.

So the rule can be iffy depending upon the

I mean, you wouldn't want to just involve yourself in

But if you're directly a part of it and you have a

I believe so.

77
1

And then the superior officer would decide whether you

should continue in the investigation or not, correct?

Yes.

Did he -- did Bobby Nguyen come into the room with anybody

else?

Excuse me?

Did he come into the room to watch the video with anyone

else?

No.

10

He was by himself?

11

Yes.

12

Did he tell you who gave him the authority to come in?

13

He works in my office.

14

So anyone who works in your office can come and look at

15

the video, and you don't ask why?

16

He was there when I recovered it.

17

He was at the house when you recovered it?

18

Yes.

19

Bobby Nguyen?

20

THE COURT:

Yes, that's his testimony.

Ask the next

21

question.

22

BY MR. SILVERT:

23

Did he watch the video at the house with you?

24

He did review it shortly while I was doing the tasks and

25

checking to make sure that everything was correct.

78
1

At the house?

At the house.

And then subsequently, he comes to the HPD and watches it

again?

Yes.

MR. SILVERT:

THE COURT:

8
9

Thank you.

No further questions.

Any other questions, Mr. Tong?

REDIRECT EXAMINATION

BY MR. TONG:

10

Just to clarify, once you seized the hard drive, you put

11

it in your office, correct?

12

Yes.

13

And where did you keep it?

14

I kept it in a locked filing drawer that I only have

15

access to.

16

17

mean other people in the unit could get into the locked drawer

18

without your consent?

19

20

knew the combination to.

21

22

evidence room, correct?

23

Yes.

24

But the copies that you made were viewable by others --

25

Yes.

And when you say only you had access, I mean, does that

No, because it had a combination lock on it that I only

It was my personal lock.

So they could only see the original through you or the

79
1

-- is that correct?

Okay.

And you mentioned that Officer Nguyen was at

the house when you recovered the CDs -- or the video; is that

correct?

Yeah.

Did you know where he lived at the time?

No.

The hard drive, yeah.

MR. TONG:

MR. SILVERT:

10
11

Okay.

THE COURT:

Thank you.

I have nothing further.

Nothing further.

All right.

And that's both on your direct

that you would have called him as a witness?

12

MR. SILVERT:

13

THE COURT:

That's correct.

All right.

Thank you, sir.

14

excused as a witness.

15

anyone until the conclusion of the trial.

16

sir.

17

You're

Please don't discuss your testimony with

Good day to you,

So, ladies and gentlemen, I think this would be a good

18

time for our recess.

And is 20 minutes, is that sufficient?

19

All right, so a 20-minute recess.

20

notebooks on your chairs, and don't discuss the case or allow

21

anyone to discuss it with you.

And please leave your

22

Please rise for the jury.

23

(At 10:18 a.m., the jury was excused, and the

24
25

following proceedings were held:)

THE COURT:

And we're in recess for 20 minutes.

80
1
2

Mr. Tong, if you could have your next witness, right

before the recess, take the stand.

(Whereupon, a short recess was taken.)

(The following proceedings were held in open court in

the presence of the jury:)

6
7

THE COURT:

The record will reflect the presence of

the ladies and gentlemen of the jury, counsel, and Mr. Puana.

Mr. Tong, your next witness.

MR. TONG:

10

Honor.

11
12

The United States calls Louis Kealoha, Your

THE COURT:

Good morning, sir.

oath.

13

(Witness sworn.)

14

THE CLERK:

15

If you would take the

Please state your first name and your last

name, and spell your first and last name.

16

THE WITNESS:

17

Louis Kealoha, L-O-U-I-S.

DIRECT EXAMINATION

18

BY MR. TONG:

19

Good morning, sir.

20

Good morning.

21

What is your occupation?

22

I'm a police officer with the Honolulu Police Department.

23

And what is your position within the Honolulu Police

24

Department?

25

I'm the chief of police.

81
1

What are your duties as the chief of police?

I run one of the largest police departments in the nation.

That has to do with managing the budget, keeping our citizens

safe through public safety, and networking and partnering with

the community.

And how long have you been chief of the HPD?

Five years.

How long was your appointment initially?

Five years.

10

And what is the status of your present employment?

11

I was just appointed to a second five-year term.

12

Okay.

13

Department?

14

I'm going on 32 years.

15

What types of positions have you held before becoming

16

chief?

17

18

worked in the narcotics vice division, the criminal

19

investigation division, juvenile services division, and the

20

training division, and also the -- we had an accreditation

21

office.

22

23

consists of, starting with high school?

24

25

have a two-year associate's degree from the Leeward Community

And how long have you been with the Honolulu Police

I've worked in the patrol division for about 12 years.

Could you tell the jury what your formal education

I'm a 1978 graduate of Damien Memorial High School.

82
1

College, University of Hawaii.

I have a four-year degree in

criminal justice and business administration from Wayland

Baptist University.

University in criminal justice.

education from the University of Southern California.

Are you married?

Yes, I am.

What is your spouse's name?

Katherine Kealoha.

10

And how long have the two of you been married?

11

18 years.

12

What is her occupation?

13

She is a prosecutor with the city prosecutor's office.

14

And I assume, over the last 18 years, you have met some of

15

her family members?

16

Yes, I have.

17

Do you know someone named Gerard Puana?

18

Yes, I do.

19

And what is the relationship between Katherine Kealoha and

20

Gerard Puana?

21

Gerard is Katherine's uncle.

22

And if you were to see Mr. Puana, would you recognize him?

23

Yes, I would.

24

Do you see him in court today?

25

Yes.

I have a graduate degree from Chaminade

And I have a doctorate of

83
1

Could you identify him by pointing him out and indicating

an article of his clothing?

glasses.

He is seated to my left in the aloha shirt and wearing

5
6

MR. TONG:

May the record reflect the identification

of the defendant, Gerard Puana?

THE COURT:

It shall.

BY MR. TONG:

How did you meet the defendant?

10

I've known the defendant for over 30 years, even before I

11

came into the police department.

12

30-plus years ago.

13

14

your interaction with the defendant in the 30 years you've

15

known him?

16

17

cordial.

18

and bye, talk to him in passing.

19

We used to go to the same gym

And can you describe generally for the jury the nature of

Basically, from when we were at the gym, we were just

I never worked out with him.

I used to tell him hi

But after that, I saw him, like around in the '90s, he

20

was working as a security officer at the Aiea Shopping Center,

21

and my mom had a restaurant there, and I saw him there.

22

And then later on when I started going out with

23

Katherine, it wasn't until we were married that I saw him

24

again, and he came to our wedding.

25

And after that, I saw him sporadically, but the most

84
1

that I've seen him in recent history was when he was helping us

to remodel our home.

your home.

I was living in Kahala.

And can you give us the approximate timeframe when you

were doing this remodelling?

It was basically between 2006 and 2008.

And what kind of work were you doing?

10

We were remodelling the inside and outside of the house,

11

and that involved plumbing, electrical, and laying down new

12

tile floors, and also doing a roof.

13

14

the repairs?

15

16

plumber, is the one that helped us with the remodelling.

17

18

remodelling?

19

20

some contact with Gerard, and then Gerard started to come to

21

our house.

22

23

remodeled, how often would the defendant come to your

24

residence?

25

Okay.

Let's talk a little bit about the remodelling of

Where were you living at the time?

Was there a contractor or some responsible person handling

My father-in-law, who's a retired contractor and a master

And how is it that the defendant was involved in the

That is my father-in-law's brother, and so I guess he had

Okay.

And during the time that your house was being

Maybe five days a week.

And, you know, at least a year, I

85
1

would say.

Had he been inside the house?

He's been inside the house.

Outside the house?

Outside.

And what were the circumstances under which you would see

him at your house?

the back, and he would be working on that cottage.

10

He knows every inch of that house.

He would -- he would be -- we have this small cottage in

You know,

he would be working inside of the house.

11

I would see him when I came home after work.

12

never came home early, like in the mornings, but I used to see

13

him when I came home after work.

14

15

unexpectedly?

16

Absolutely.

17

Can you give us a few examples?

18

Well, one time -- I think it was -- well, what happened is

19

myself and my daughter, we were swimming in the pool.

20

we're just enjoying ourselves and playing around.

21

of a sudden, Gerard suddenly appears.

22

while we were in the pool.

23

daughter is startled, because the front gate -- we have two

24

front gates, one is a metal front gate and one is a --

25

And I

Were there times when he would come to your house

MR. SILVERT:

And

And then all

He walks towards us

And he's startled, I'm startled, my

Objection, Your Honor, sidebar.

404(b).

86
1

THE COURT:

(Sidebar.)

THE COURT:

Okay.

All right.

The record will reflect the

presence of Mr. Silvert, Mr. Tong, and Ms. Hattan.

Mr. Silvert.

MR. SILVERT:

Your Honor, it appears the government is

attempting to introduce evidence of a prior bad act, possibly a

trespass or burglary.

MR. TONG:

No 404(b) notice was given of this.

It's not a bad act.

It's designed to show

10

his knowledge and familiarity with the premises, which I think

11

goes to bias and motive, and whether he would be the person

12

shown on the video, whether he would have the familiarity with

13

the place to the degree that he would commit that act.

14

THE COURT:

Is there going to be any testimony

15

elicited about any -- either a report to the police or any

16

accusations?

17

MR. TONG:

18

accusations.

19

event.

20

No.

There were no criminal charges, no

He's never suggested that it was a criminal

MR. SILVERT:

Right.

But the problem is that the

21

crime occurred in the front of the house.

He's -- the way he's

22

just testified, he was startled, like, you know, he wasn't

23

expected to be there, how could he get in.

24

to solicit testimony about the gate being closed and locked or

25

whatever.

He was just about

This is a prior bad act, and I would move to -- that

87
1

it not be allowed in.

THE COURT:

It's not a prior bad act.

It's a prior

showing that he is comfortable opening their gate and walking

into the back of their house.

5
6

MR. TONG:
but --

THE COURT:

MR. TONG:

9
10

Actually, I think he did jump the gate,

said, I agree.

Yeah.
-- with the exception of what you just

And it's to show familiarity.

There's going to

be no suggestion that there was a criminal charge or an act.

11

MR. SILVERT:

But if there's any testimony that the

12

gate was locked or anything is the inference that he somehow

13

jumped it or did something, that's the bad act.

14

trespass.

15

MR. TONG:

That's the

If the court is inclined to view it as a

16

404(b) rule of inclusion, you can give a cautionary

17

instruction.

18

We have no objection to that.

THE COURT:

No -- okay.

But -- okay, I'm going to

19

overrule the objection.

20

you're not to go into anything that -- you know, because he is

21

a police officer, he can assess whether or not --

22

MR. TONG:

23

THE COURT:

24

MR. TONG:

25

gets.

I'll permit the questioning.

But

I'm not going to ask him that.

That's what I'm saying.
If Mr. Silvert does, he may get what he

88
1
2

THE COURT:

Right.

But I'm not going to permit any

questioning down that line.

MR. SILVERT:

And that includes whether the gate was

locked or unlocked, because if he says it's locked, then the

clear inference is that he impermissibly entered the property.

So they can't go to whether the gate was locked or closed or

anything.

8
9
10

THE COURT:

Well, it's completely relevant to his

knowledge and comfort level in terms of walking around the

house, whether he thinks people are there or not.

11

MR. SILVERT:

But they can get that in, which they've

12

already done, but if they try to go down the road that the gate

13

was locked or somehow closed, and that he, therefore,

14

improperly entered the property, that's 404(b).

15

their evidence in without doing that.

16
17

THE COURT:

They can get

It's not that he improperly entered the

property.

18

MR. SILVERT:

It is if the gate -- if the gate is

19

closed or locked, it means he improperly came.

20

they didn't invite him, which is what they've already testified

21

to.

22

locked or closed, that's the criminal conduct.

23

act.

24
25

He wasn't --

And he -- if they introduce evidence that the gate was

THE COURT:

I disagree with you.

That's the bad

I think the

testimony is clear they invited him on the property.

They knew

89
1

that --

2
3

MR. TONG:

was not expecting him, and he was startled.

MR. SILVERT:

startled.

he's comfortable --

THE COURT:

They invited him generally, but that day he

And that he was startled, they were

They've got that in that he knows how to get in,

Anyway, I've ruled.

It's overruled.

You

can keep questioning him.

(End of sidebar.)

10

THE COURT:

11

BY MR. TONG:

12

Your next question.

I apologize, Chief, I don't recall exactly where we were.

13

You were discussing an incident where you and your

14

daughter were in the pool in the back of your house, and the

15

defendant appeared unexpectedly, correct?

16

Yes.

17

Can you describe what happened?

18

Well, we were shocked because the front gate and the side

19

gates were both locked.

20

MR. SILVERT:

21

THE COURT:

22

THE WITNESS:

Your Honor, objection.

Overruled.
Both were locked.

He suddenly appears,

23

he looks startled, we looked startled.

And then he says that

24

he's there to pick up his toolbox, which was on the side of the

25

house.

90
1

With that, I went into the house, called Katherine,

told her, your uncle is here, and, you know, maybe he wants to

talk to you.

He said something that sticks out in my mind --

THE COURT:

Okay, wait, now this is a narrative.

Do

you want to ask a question?

BY MR. TONG:

What did he say?

He said he was there for his toolbox.

10

Okay.

11

And just to go into his -- he was dishevelled, he didn't

12

have a shirt on, he was profusely sweating.

13

remember he had this cigarette in his mouth that wasn't lit,

14

and it was bent up, like he ran into a wall or something.

15

And then Katherine spoke to him.

And I always

I took my daughter

16

into the house.

17

driveway, but he didn't take it with him at that time.

18

then he left.

19

Okay.

20

There's a second time after that, that he came to our

21

house uninvited.

22

23
24
25

And he took his toolbox and put it in the

And

Could you describe the circumstances of the second time.

MR. SILVERT:

Your Honor, I'm going to make my same

objection.
THE COURT:

Overruled.

It's speculative at this

91
1

point.

THE WITNESS:

Basically, my friend and I were sitting

in the garage.

the driveway, and he asks to speak to Katherine.

5
6

Gerard pulls up in a classic car, parks it in

I go into the house.

Katherine, your uncle is here,

he wants to talk to you.

And I remember them standing in front of the driveway

next to the street talking for about an hour.

BY MR. TONG:

10

11

Okay.

Now --

THE COURT:

Do we have a time for this?

12

BY MR. TONG:

13

Can you give us the approximate time when that occurred?

14

It was maybe about 9:00 in the evening.

15

THE COURT:

What year?

16

BY MR. TONG:

17

What about year?

18

The first time, the one where he came to our house

19

uninvited when we were swimming in the pool, was about 2011.

20

The second time was 2012.

21

Okay.

22

Okay.

23

-- to June the 22nd of 2013.

24

Okay.

25

Do you remember an incident that you noticed on that

Now, I'm going to move you forward one year --

92
1

particular day?

Yes.

What did you see?

I woke up early in the morning.

usually go out surfing.

6:00.

out, and I noticed our mailbox isn't there.

10

I proceeded to drive

And I was so frustrated because of all the other

incidents that was occurring at my house that I decided to wait
and report it and let my wife know when I came home.

11

I came home about maybe 9:30 that morning, and I told

12

my wife what had happened.

13

14

talk first about the mailbox.

15

mailbox was?

16

17

street on the Koko Head side of the property.

18

It's in front of the house?

19

Yes.

20

What did you and your wife use the mailbox for?

21

We used that to collect mail.

22

Okay.

23

No, I know what you're saying.

24

-- I need to know.

25

It was about maybe between 5:30 and

I loaded up my board on the car.

8
9

It was a weekend.

Okay.

Let's break that down into smaller segments.

Let's

Can you describe where the

The mailbox was located on a grass median close to the

Sounds like a stupid question, but --

So the post office would come and put your mail in

93
1

that particular box; is that correct?

Yes.

And can you describe the type of box that it was?

Gee, the dimensions was maybe --

Well, how about just generally, without being overly

specific.

It was a metal box.

Okay.

And it was on a metal stand.

10

Okay.

11

And the mailbox was attached to the metal stand.

12

had -- it was locked, and they had slits in there so that you

13

could insert your mail.

14

15

that day you noticed that the box was missing?

16

Yes.

17

What was there?

18

Just the post.

19

All right.

20
21

I mean, is it plastic, metal?

All right.

And they

And you say that as you left your property

MR. TONG:

And may Chief Kealoha please be shown

Exhibit 3.

22

THE COURT:

He may.

23

If you would look at the screen.

24

THE WITNESS:

25

THE CLERK:

Okay.

Do you want the original?

94
1

MR. TONG:

Yes, please.

Oh, no, the screen is fine.

THE CLERK:

Your Honor, the jury is muted.

THE COURT:

Thank you.

BY MR. TONG:

Chief, do you have Exhibit 3 on your screen to your right?

Yes, sir.

And do you recognize that picture?

Yes.

What does it show?

10

That's the mailbox post without the mailbox.

11

And does that fairly and accurately depict the appearance

12

of that pedestal on the date in question, June the 22nd of

13

2013?

14

Yes, it does.

15

MR. TONG:

16

MR. SILVERT:

17

THE COURT:

18

MR. TONG:

19

THE COURT:

It may be published.

20

MR. TONG:

Thank you, Your Honor.

21

(Government Exhibit Number 3 was received in

22
23

We would ask that Exhibit 3 be received.

No objection.

Received.
May it be --

evidence.)
THE CLERK:

24

to the jury.

25

BY MR. TONG:

Your Honor, the exhibit has been published

95
1

All right.

THE COURT:

Thank you.

BY MR. TONG:

of this.

describing?

Yes.

And what is this little piece that appears to be sticking

out on top?

And, Chief Kealoha, I'm going to just highlight the middle

Am I correct that's the post that you were

10

That's the piece that connected the mailbox to the post.

11

All right.

12

appearance that you saw?

13

Yes, sir.

14

And you testified that you then went out and went surfing?

15

Yes.

16

And Katherine reported it?

17

Yes.

18

Now at the time of this event, June of 2013, what, if any,

19

security system did you have at your house?

20

21

the back.

22

And who did those cameras and system belong to?

23

The Honolulu Police Department.

24

Why did the Honolulu Police Department install those

25

cameras, if you know?

And when you went out that day, this is the

We had several cameras on the front of the house and in

96
1

That was based on their advice.

Okay.

It was basically to provide security not just for myself,

but also because of my family and -- yeah.

expressed a sense of frustration when you saw this mailbox had

been ripped off the post --

Yes.

-- correct?

Okay.

And it was to provide security for you?

Now, earlier, in describing the events, you

And you started to go into events, and I

10

stopped you, do you remember that?

11

Yes.

12

Can you describe generally the types of events that you

13

had encountered or experienced that led to this frustration?

14

15

doors were French doors, they were double-paned.

16

it was just before I became appointed, somebody had shot out

17

the glass pane.

18

In early 2009, before I was the police chief, our front

And in 2008,

And I made a police report.

After I became the chief of police, somebody shot out

19

the other side.

20

criminal intelligence unit.

21

would be in front of my house yelling profanities, like F you,

22

don't touch me, and you can't arrest me.

23

And at that time I had reported it to the

But these -- other times, somebody

There were also times where -- and I cannot speak for

24

my wife, so you have to ask her that -- but the second set,

25

when we put up the second set of doors in 2012, somebody came

97
1

in again and -- gone onto the property.

kicked the pane in again.

It looks like they

But going back, the reason why I had put up -- had the

advice to put up a security system occurred after Gerard came

to our house when we were in the pool the second time because I

was afraid for the safety of my family.

described, the defendant was never charged with anything in

connection with those incidents, correct?

Okay.

And just to be fair, these incidents that you've

10

No.

11

And when you say somebody shot out your door, what kind of

12

weapon are we talking about?

13

14

vividly remember -- I don't have the date, but I remember

15

coming home one day after a business trip, and the right side

16

of the door was shattered on the first set of doors.

It looks like it was a pellet gun that was used.

17

I just

And I walked into the house and said, what happened,

18

and my daughter said, I don't know.

19

I heard a loud bang.

20

That's why I'm out here.

And, you know, all of those incidents really made me

21

fearful for the safety of my family.

22

23

your testimony that you have a daughter who was living with you

24

at all these relevant times?

25

Okay.

Yes.

And without giving a specific age, I gather from

98
1

Okay.

Now, let's talk a little bit about the surveillance

system.

recommendation, correct?

Yes.

And how many cameras were there, do you know?

You know, we started out with two at the garage, on both

sides, and then one looking at the front gate.

three that I recall.

Okay.

10

But they had installed more because after the second set

11

of new doors that we had put in, when the window was shattered,

12

it looked like they came over the back wall because when the

13

officers came to check the video -- the VCR or the CD player,

14

and they checked it, which was located in the garage, somebody

15

had disconnected it.

16

the back.

You testified that it was installed by HPD at their

17

Those are the

So it looks like the person came in from

So after that happened, they had put a couple cameras

18

in the back of the house and then one on a pole just outside of

19

my house.

20

21

of the incident where your mailbox was destroyed?

22

Yes.

23

And that was taken from a couple of cameras in front of

24

the house; is that correct?

25

Okay.

Yes.

And am I correct that you have actually seen video

99
1

Were those cameras in place at the house at the time when

the defendant was working, doing the construction work at your

residence?

No.

They came later?

They came about 2011.

it for me, again, was the safety of my family.

that.

Okay.

10

And what happened, what triggered

Now, I'm going to actually -- well, let me withdraw

There came a time when you learned that the actual

11

incident had been recorded on video; is that correct?

12

Yes.

13

And have you reviewed the video recordings?

14

I have.

15

All right.

16

going to ask the court for permission to play government's

17

Exhibit 1, which is a CD, and have you look at it.

18
19

So what I would like to do, Chief, is I'm

MR. TONG:

And if we may, Your Honor, may we publish

it also to the jury?

20

THE COURT:

21

MR. TONG:

22

Does Mr. Nakamura have the video?

23

THE CLERK:

24

MR. TONG:

25

BY MR. TONG:

Yes.
Thank you.

Oh, you need the original?

Yes.

100
1

show where your mailbox is located?

Yes.

And could you tell us where it is?

On the bottom left.

Would it be the area that I'm circling here?

Yes.

8
9

I have a quick question before we go on.

MR. TONG:

All right.

Ms. Morita, if you could please

continue the video.

10

(Exhibit 1 video played.)

11

MR. SILVERT:

12

Does this video

Your Honor, can we stop it right here,

and can I make a brief objection?

13

THE COURT:

It's already received in evidence.

14

MR. SILVERT:

I understand that, but the video seems

15

to be hiccuping, it's going very slow.

16

Could I ask them to restart it, so it goes in realtime.

17
18

MR. TONG:

Wait.

It's not in realtime.

I object to his statement.

I don't

agree with it.

19

THE COURT:

20

MR. TONG:

You can have an opportunity -Time out, time out.

I'm sorry, Your Honor,

21

we actually talked over where the offender appeared.

22

back it up, so we can --

23

THE COURT:

May we

Well, so for completeness, why don't you

24

just start it from the beginning, so it's not highlighted,

25

yeah.

101
1

MR. TONG:

THE COURT:

I mean, it's a video.

MR. TONG:

Did the court want to take up the objection

first?

MR. SILVERT:

THE COURT:

(Exhibit 1 video played.)

MR. SILVERT:

10

All right.

THE COURT:

Very good.

Your Honor, we have it.

All right.

MR. SILVERT:

14

THE COURT:

Thank you.

If you would,

jury.

It's the exact same copy.

All right.

It may be published to the

It's received.

16

MR. SILVERT:

17

beginning or whatever you want?

Do you want to replay it from the

18

MR. TONG:

19

MR. SILVERT:

20

MR. TONG:

21

run from there, that's fine.

Just from about the one minute mark.

You tell us where you want it.

Right there is good.

MR. SILVERT:

23

THE COURT:

24

(Exhibit 1 video played.)

BY MR. TONG:

Just if you'll let it

Thank you.

22

25

We're happy to

please.

13

15

I think that will solve the problem.

let the government play it.

11
12

We should be able

to do that.

4
5

Okay.

Is it published to the jury?

Yes, publish it to the jury.

102
1

Okay.

Chief, before I ask you questions about that video,

you saw it, right?

Yes.

All right.

ago, correct?

Yes.

Was there another video?

That looks like a different angle.

Okay.

And that's one of the videos you saw some time

And you mentioned earlier this one looks like it

10

was sort of from up above, correct?

11

Yes.

12

And was there a camera high somewhere?

13

There was a camera on a -- it was like a telephone pole.

14

Okay.

15

and ask you to look at that, and then I'll ask you about the

16

contents.

Now, what I'd like to do is show you another video

17

MR. TONG:

May we play Exhibit 2, Your Honor?

18

THE COURT:

You may.

19

MR. TONG:

Thank you.

20

(Exhibit 2 video played.)

21

BY MR. TONG:

22

Okay.

23

Yes.

24

And first off, there was a black car or SUV in the

25

foreground?

Chief, did you see that video as well?

103
1

Yes.

Whose car was that?

That was my car.

And with regard to the incident involving the mailbox, do

you recognize the person that appeared in those videos?

Yes, I do.

And who was it?

Gerard Puana.

And is that the defendant in this case?

10

Yes, it is.

11

And how do you recognize from those videos the individual

12

as being the defendant?

13

14

walks.

15

the -- our home, that's the kind of clothes that he wore,

16

long-sleeved tee shirt, the cargo pants, and the cap.

17

18

walk allows you to identify him from those videos?

19

20

strutting, you know.

21

that walk many times.

22

23

particular video.

24

the defendant wear cargo shorts before?

25

I've known Gerard for over 30 years.

And I know how he

Our brief -- in that time where he was remodelling

And when you say you know how he walks, what about his

It's like a weightlifter's walk, where he's kind of

Okay.

And so I recognize that walk.

I've seen

You've mentioned the style of his dress in that

Absolutely.

You talked about cargo shorts.

Had you seen

That was like his -- his style of clothes

104
1

that he used to wear all the time.

Was there anything distinctive about them?

Just that they had, like, pockets on the side.

think he used to put a lot of things in there, that's why.

that be part of your ability to recognize him?

and he used to wear long-sleeved shirts.

And I think you just mentioned shoes and socks.

Not so much shoes and socks.

Okay.

All right.

And I

Why would

It was the cap that he wore,

And you had seen him dressed in that

10

fashion on other occasions; is that correct?

11

Many times.

12

All right.

13

defendant appeared back at the time of the incident, June of

14

2013, to the present?

15

16

I -- how he looks in this video is how he looked when he was

17

charged and convicted for breaking into his neighbor's house.

And are you able to compare the way the

Well, he's picked up a lot of weight since that time.

18

MR. SILVERT:

19

THE COURT:

20
21

this time.

And

Your Honor --

All right.

We need to take a recess at

All right.

Actually, before we take the recess and take up any

22

matters, I'm going to specifically instruct the jury that they

23

need to disregard that last piece of testimony.

24

And I'm going to specifically instruct this witness,

25

you are not to testify about that unless you are specifically

105
1

asked by the prosecutor.

THE WITNESS:

I'm sorry, Your Honor.

THE COURT:

THE WITNESS:

THE COURT:

So, ladies and gentlemen, we need to take up some

All right.
I apologize.

I know.

matters outside your presence.

I'm going to have you take a

recess at this point, and we will see you shortly.

exactly sure how long this will take.

I'm not

Thank you very much.

10

Please rise for the jury.

11

(At 11:28 a.m., the jury was excused, and the

12

following proceedings were held:)

13
14

We're in recess.

THE COURT:

Let the record reflect the presence of

counsel and Mr. Puana, and that the jury is not present.

15

At this time, I'll let the witness step down, and

16

we're going to take up some matters, sir, so if you could wait

17

outside.

Thank you.

18

MR. SILVERT:

19

speak to anyone else?

20
21

And I am going to ask the court to let me voir dire

the witness on this issue as I make my argument.

22

THE COURT:

23

MR. SILVERT:

24
25

Could Your Honor instruct him not to

As you make your argument?

Well, after I make my argument, I'm

going to ask the court to allow me to voir dire this witness.

THE COURT:

Well, let's take one thing at a time.

106
1

All right.

So, sir, Chief Kealoha, if you could

refrain from talking to anyone, of course, about your testimony

until you complete your testimony.

THE WITNESS:

THE COURT:

The record will reflect that the witness is no longer

Absolutely.

Thank you, sir.

in the courtroom.

Mr. Silvert.

MR. SILVERT:

Your Honor, I'm moving for a mistrial.

10

This is clearly 404(b) evidence.

11

continued the trial.

12

surprise from anybody.

13

We've had our motions.

Now this comes out.

We've

This is not a

We -- you know, there's been allegations, and we knew

14

that he had this arrest record.

The government knows they have

15

this arrest record.

16

32 years, I'm sure he's testified thousands of times, comes out

17

and is asked a specific question which elicited a specific

18

response, how did you know, well, I knew because, and then he

19

blurts out about the -- a burglary, his conviction, his

20

incarceration.

This witness, who is the chief of police

21

THE COURT:

He didn't talk about incarceration.

22

MR. SILVERT:

23

And, you know, completely destroying my client's

I'm sorry, Your Honor.

24

credibility in front of the jury with evidence that should not

25

have been permitted.

It cannot be undone, Your Honor, that

107
1

kind of conviction, a burglary.

Your Honor, I'm asking that the case be -- there be a mistrial

declared.

This is what he said.

So,

I don't believe a simple instruction to the jury in

this kind of case, with issues of credibility, that involves a

burglary-type offense, can be undone from this witness.

don't believe it was unintentional.

8
9
10
11

And I

It may -- if the government wants to say that they

didn't know he was going to say it, that's one thing, but not
this witness.
THE COURT:

Well, I'm just looking at the question

12

that was asked, but my recollection is that Mr. Tong didn't

13

elicit this.

14

and he did testify about his clothing as well as his walk.

15
16
17
18

He was asking how he was able to recognize him,

MR. TONG:

Your Honor, the question came after the

portion Your Honor is referencing.

THE REPORTER:

I have it, Your Honor.

Would you like

me to read it?

19

THE COURT:

Yes, thank you.

20

THE REPORTER:

"And are you able to compare the way

21

the defendant appeared back at the time of the incident, June

22

of 2013, to the present?"

23

MR. TONG:

That is the question, Your Honor.

It asked

24

nothing about his background or his record.

It was not

25

designed to elicit that, nor did I expect that response.

108
1

MR. SILVERT:

But the other problem is it's not even a

conviction, Your Honor, it was a DAG.

problem.

So now we have a 404(b)

THE COURT:

Mr. Tong, do you wish to address his motion for a

No, I understand what your objection is.

mistrial?

MR. TONG:

I think the court can cure it by giving the

jury a cautionary instruction, number one, striking that

portion of his response, and saying they should not consider

10

that testimony in arriving at a verdict ultimately, and

11

whatever else the court wants to put in.

12

All I can say is I was asking him to compare his

13

appearance simply to elicit the difference in his weight.

14

I think --

15
16
17
18

And

THE COURT:

Which he started off talking about his

MR. TONG:

You can see the question clearly was not

weight.

designed to do that.

19

THE COURT:

20

MR. TONG:

Yes.
And, again, Your Honor, if there was some

21

miscommunication, I stepped into this case at about 4 p.m.

22

yesterday.

23

THE COURT:

24

MR. TONG:

25

THE COURT:

I looked at your question.

Yeah.
Your question didn't elicit that.

109
1

And he talked about -- he started off with his answer

talking about the weight difference, and then spoke about this

other matter.

4
5

So we're going to take a recess.

And then when we

reconvene I'll rule on your motion, Mr. Silvert.

All right.

Thank you.

MR. SILVERT:

I would just note, Your Honor, we're

only on the second witness.

trial.

10

THE COURT:

11

MR. TONG:

It's not like we're deep into the

Understood.

We're --

One -- I never talk to witnesses while

12

they're on the stand, but I'd like the court's permission to at

13

least advise Chief Kealoha that certain areas are off ground

14

when he's on the stand, and not go into anything more than

15

that.

16

May I?
THE COURT:

Mr. Silvert -- I think he does need to be

17

instructed, but I would just say wait until after this recess,

18

and I'll give you some time to do that.

All right.

19

So we'll be in recess for 15 minutes.

20

(Whereupon, a short recess was taken.)

21

THE COURT:

22
23

Thank you.

The record will reflect the presence of

counsel and Mr. Puana, and that the jury is not present.
So, counsel, before the recess, Mr. Silvert made a

24

motion for a mistrial based on the testimony given by

25

Chief Kealoha regarding Mr. Puana's arrest and conviction for

110
1
2

burglary.
Mr. Tong has argued that the curative instruction that

the judge -- that the court gave prior to recess was

sufficient, or, if necessary, an additional cautionary

instruction can be given to cure the prejudice.

In doing a quick review, the court concludes that I

have no choice but to grant the defendant's request for a

mistrial, instead of instructing the jury to disregard

Chief Kealoha's testimony and giving a strong curative

10
11

instruction.
Declaring a mistrial is appropriate only where a

12

cautionary instruction is unlikely to cure the prejudicial

13

effect of an error.

14

Circuit and other circuits, in particular Toolate versus Borg,

15

828 F.2d 571, which is a 1987 Ninth Circuit case.

16

This has been recognized by the Ninth

In contemplation of the parties' positions, given

17

first the testimony with regard to a reference to Mr. Puana

18

being arrested and convicted on a burglary charge, I find that

19

the prejudice is too great to be overcome by a curative

20

instruction because, one, it refers to a similar offense that's

21

involved in this particular case.

22

I also find specifically too that it was not elicited

23

at all by Mr. Tong's questioning, that Mr. Tong's question, as

24

we reviewed on the record prior to the recess, clearly related

25

to Mr. Puana's physical appearance in the video and the basis

111
1

for the witness' recognition of the person depicted in the

video as being Mr. Puana.

testimony about an arrest and conviction.

Wholly unsolicited, the witness gave

In determining whether or not there was -- or there is

a curative instruction to overcome the prejudice, the court

considered various information that could be used for a

curative instruction, but because of the nature of the charges

in this case and the testimony given with regard to this prior

arrest and conviction, coupled with the fact that the court

10

ruled on this issue in a motion in limine, particularly relying

11

on the fact that no 404(b) notice was given with regard to the

12

conviction, and noting that it's early in the case, and

13

Mr. Silvert did not mention in his opening statement any

14

reference to whether or not Mr. Puana would be testifying.

15

Clearly, if this type of evidence was inevitable to be

16

entered into evidence, such as would be the case, arguably, if

17

Mr. Silvert had represented to the jury that Mr. Puana would,

18

indeed, be testifying, and he could be confronted by the

19

government on cross-examination, but as this is only the second

20

witness in the government's case, clearly at this point

21

Mr. Silvert and his client have not and could not be required

22

to have a discussion at this point whether or not Mr. Puana's

23

going to take the stand.

24
25

Therefore, the court concludes that there is no

curative instruction that the court can give to overcome the

112
1

prejudice of the testimony, and on these bases grants

Mr. Silvert's motion for mistrial.

All right.

So, counsel, you can make your record.

And then what I propose to do is have the jury brought in,

inform them that we all give them -- extend our thanks to them

for their service, but that the court has declared a mistrial,

and another jury will be selected to determine this case at a

later date.

I intend to bring them back to chambers to answer

10

questions because it's been kind of an unusual case.

11

have trial yesterday and so forth.

12

about, of course, anything about the case itself, and just

13

thank and excuse them at that time.

14
15

All right.

I'm not going to talk

Mr. Tong, is there anything that you'd

like to place on the record before we bring the jury back?

16

MR. TONG:

17

THE COURT:

18

MR. SILVERT:

19

We didn't

No, Your Honor.

Thank you.

Mr. Silvert?
No, Your Honor.

I assume we can talk

about subpoenas and a new trial date next, after --

20

THE COURT:

Yes.

21

MR. SILVERT:

Your Honor, what I am concerned about,

22

one thing, we've got members of the press here.

He was never

23

convicted, and I don't think it's fair that that testimony be

24

put out over the airwaves.

25

think what should be said is he was not convicted, there was a

I know we can't stop them, but I

113
1

DAG, and it was expunged.

2
3
4

THE COURT:

All right.

I'll allow you to make your

record.
So what I would ask you to do, counsel, is after I

excuse the jury and bring them back into chambers to thank

them, and then I'll probably meet with them for five minutes,

if you could remain in the courtroom, and then we'll go back on

the record and talk about rescheduling.

But while we're in the recess, if you wouldn't mind

10

meeting and conferring among yourselves about potential new

11

trial dates and the subpoenas and so forth.

12

Now, I know, Mr. Tong and Ms. Hattan, this places you

13

in a delicate position because I don't know if the rule is

14

going to be who touched the case last has it next or what have

15

you, if you're able to schedule it based on your trial

16

calendars.

17

meet and confer with Mr. Silvert, and we'll take up the matter

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on the record when I return with the jury.

But if you could either inquire of your office or

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MR. TONG:

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THE COURT:

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Thank you, Your Honor.

All right.

So we're in recess.

Mr. Nakamura is going to get the jury.

THE CLERK:

I'll get the jury, and I'll come get you,

Your Honor.

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THE COURT:

Thank you very much.

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(Whereupon, a short recess was taken.)

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(The following proceedings were held in open court in

the presence of the jury:)

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4

THE COURT:

The record will reflect the presence of

counsel, Mr. Puana, and the ladies and gentlemen of the jury.

So, ladies and gentlemen of the jury, on behalf of the

parties, the attorneys, and, of course, myself, I thank you for

your service, as short as it was.

jury.

reschedule the case for trial; but, unfortunately, another jury

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I'm going to excuse you as a

I've declared a mistrial in this case, and we will

will make the decision in this case.

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So, with the great thanks on behalf of everyone here,

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I do excuse you as jurors, and ask that you follow Mr. Myer, my

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law clerk, to my chambers.

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any questions about the mechanics of the jury trial, not the

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specifics of the case, but any questions you might have about

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the mechanics of the jury trial, and then I'll discharge you to

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jury pool for your documentation or whatever paperwork they

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give you.

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I'll speak to you briefly, answer

So thank you very much.

They're excused.

Please rise for the jury.

And we're in recess.

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(Whereupon, a short recess was taken.)

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(At 12:08 p.m., the jury was excused, and the

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following proceedings were held:)

THE COURT:

The record will reflect the presence of

counsel and Mr. Puana.

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So may I first inquire of the status of whether or

not, Mr. Tong, you'll be trying the retrial?

MR. TONG:

THE COURT:

MR. TONG:

I don't know, Your Honor.

Okay.
Mr. Osborne is still incapacitated, and

he's nowhere where I could confer with him.

is I've checked -- or Ms. Hattan actually has checked with

Mr. Osborne's calendar, and we've come up with the first

available date that he could be available with Mr. Silvert, and

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we won't postpone it.

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trial.

If he's not available, I'll do the

But that date actually is the end of April.

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THE COURT:

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MR. TONG:

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So what I've done

Okay.
And I think we're in agreement on that.

And we'll -- if that's acceptable to the court --

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THE COURT:

So -- I'm sorry, so you're looking at

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starting trial the 28th.

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anticipating we're still looking at five trial days, three for

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the government, two for the defense.

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MR. SILVERT:

Okay, so April 28th.

And I'm

Your Honor, given the way it went, I'm a

little worried about that.

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THE COURT:

Well, you know what, I may just give you

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guys time limits or something because there's so much fodder

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that we could kind of go astray.

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for that, three days for the government, two days for the

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defense.

So I'm going to put you down

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And I just need to let you know that I've already

confirmed sitting with the Ninth Circuit in San Francisco --

what are the days, Warren? --

case.

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MR. SILVERT:

so we've got to be done with the

Is there any way we could get the week

before April 28th?

THE COURT:

I think I'm out of district that week.

THE CLERK:

He's talking about early April.

THE COURT:

No, he's talking about the week of the

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THE CLERK:

No.

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THE COURT:

Right.

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So I'm sitting with the Ninth Circuit the 11th, so I

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21st.

I'm away.

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have to leave that weekend.

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if we start the 28th, that should give you more than enough --

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28th, 29th, 30th, and 1st, and then the 5th through 6th for the

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defense case, and then the deliberating.

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MR. SILVERT:

THE COURT:

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MR. SILVERT:

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I guess May 27th.

May 27th.

Your Honor, I'd rather have leeway,

given this case, than be squeezed into five days.

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Is there any other day in May, just so

we have a little leeway?

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So we need to finish -- well, but

THE COURT:
days.

Well, I'm going to squeeze you into five

I'm not going to let you guys go on and on.

MR. TONG:

It's kind of hard to squeeze him.

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MR. SILVERT:

I'm not Charmin.

THE COURT:

We can do it -- I'll leave it up to you folks which --

No comment.

but I'm going to give you three days for the government, two

days for the defense.

this nature.

That's more than enough for a charge of

MR. SILVERT:

THE COURT:

MR. TONG:

May, Your Honor.

Okay.

May 27th.

May 27th?

That's fine, provided we exclude

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time on grounds of continuity of counsel, that being the first

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available date.

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MR. SILVERT:

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THE COURT:

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dates then for that.

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done.

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THE CLERK:

Absolutely.

All right.

Very good.

Just the trial dates, everything else is

Trial date May 27th, that's a Wednesday,

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because Memorial Day is the 25th.

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Judge Kobayashi will be set at a later time.

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MR. SILVERT:

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THE CLERK:

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We'll give you the

A final pretrial before

Okay.

Like before, to check in with the parties,

Your Honor.

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THE COURT:

Yes.

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THE CLERK:

We can set one later.

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THE COURT:

Yes, once we find out who's going to be

25

counsel in the case.

I think it makes sense to do it then.

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THE CLERK:

The exclusion of time, Your Honor, is the

government going to prepare an order from today?

THE COURT:

MR. TONG:

THE COURT:

I think so, right?

I believe so, Your Honor.
It would have to be from today.

So the

court makes the specific findings that the ends of justice

outweigh the individual defendant's and the general public's

right to a speedy trial, and, therefore, it excludes time from

today, December 4, 2014, up through and including May 27, 2015,

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on the basis that a new trial has been required, and the first

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available date so that continuity of counsel is May 27th, 2015.

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13

If you would prepare the order, Ms. Hattan and

Mr. Tong.

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MR. TONG:

We will, Your Honor.

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MR. SILVERT:

Your Honor, one last matter.

I would

16

ask the court permission to call Chief Kealoha to the witness

17

stand now to be questioned about whether he intentionally made

18

the statement.

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I think it may have ramifications not only for the

20

next trial, but also for possible appeal of whether he intended

21

to delay this trial and cause a mistrial.

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He's a police officer of 32 years.

He knows

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Rule 404(b), which applies in the state as well.

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not supposed to talk about these things.

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professionalism and his years of service.

He knows he's

He talked about his

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It wasn't responsive to the question.

He went out of

his way to say it.

verdict would have had an impact on that civil case.

honestly, I believe he did it intentionally, and I think if he

did, we need to know, and it may have a legal consequence for

this case in the future as well as on appeal.

There's a civil case pending where this

So, quite

I don't doubt that Mr. Tong didn't solicit it, but I

think if this witness intentionally did it, I think that's

important to know.

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THE COURT:

So what you're saying is you want me to

11

have him take the stand, and you're going to ask, did you

12

intentionally ask that question -- or answer the question.

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14

MR. SILVERT:

404(b), his knowledge of --

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16

I'm going to ask his knowledge of

THE COURT:
that.

No, I'm not going to let you ask him about

You can ask him if he intentionally said that.

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MR. SILVERT:

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THE COURT:

At least let me ask that question.

But he intentionally said it in a sense

19

that it came out of his mouth.

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MR. SILVERT:

No.

But my question is did he

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intentionally say it knowing that it was improper and knowing

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it could cause a mistrial.

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MR. TONG:

Your Honor, the inquiry is whether I did it

on purpose.
THE COURT:

Right.

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MR. TONG:

You've already found I didn't.

Mr. Silvert

now admits that I didn't, although he earlier implied that I

planned this with Chief Kealoha.

The inquiry is whether the government induced a

mistrial, not whether a witness spontaneously volunteered

information that was improper.

humiliation.

to it.

He's doing it just for public

It has no legal consequence, and I would object

THE COURT:

And I would agree with Mr. Tong in his

10

statement is that clearly there's case law that supports where

11

the government intentionally or recklessly creates a situation

12

where a mistrial will have to be declared.

13

But in reviewing the transcript, one, the question

14

itself didn't call for that response; two, I think it's clear

15

on the record, you know, Mr. Tong got this case yesterday

16

afternoon in terms of trying it.

17

forward with -- being as well prepared as you are, given the

18

late notice of getting this case.

19

And I thank you for coming

So there's no sort of indication that he's been

20

working with this witness or somehow there's some sort of

21

government involvement.

22

case law to show me, where a witness goes, for lack of a better

23

word, rogue and blurts out something, that unless there's some

24

sort of indication that the court specifically directed counsel

25

to advise their clients not to testify about certain areas, I

I'm unaware of, and if you have any

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1

don't think that then there's anything to trigger the

government's culpability for this.

That's a long way of saying I deny your request.

So I deny your request.

All right.

So anything else that we need to address?

MR. SILVERT:

As to subpoenas, Your Honor, can the

subpoenas we've already issued be considered continuing, so we

don't have to reissue them?

8
9

THE COURT:

Yes, although I would task you and your

office with contacting those subpoenaed and advising them of

10

the new date.

And if there's any indication that they will not

11

be cooperative unless they're served with a new subpoena, I'd

12

leave that up to you to advise me --

13

MR. SILVERT:

14

THE COURT:

15

So, Mr. Puana, of course, your conditions of release

16

Thank you, Your Honor.

-- with regard to the same.

are still in effect.

You understand this?

17

THE DEFENDANT:

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THE COURT:

19

MR. SILVERT:

20

THE COURT:

21

MR. TONG:

22

THE COURT:

Sure.

Okay.

Anything else, Mr. Silvert?

No, Your Honor.

Mr. Tong, anything else?

No, Your Honor.

Thank you.

Well, thank you very much.

And we have

23

the new trial date, so unless there's anything further, we are

24

in recess.

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(The proceedings concluded at 12:42 p.m., December 4, 2014.)

Good day to everyone.

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COURT REPORTER'S CERTIFICATE

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I, CYNTHIA R. OTT, Official Court Reporter, United

States District Court, District of Hawaii, Honolulu, Hawaii, do

hereby certify that pursuant to 28 U.S.C. 753 the foregoing is

a true, complete and correct transcript of the stenographically

reported proceedings had in connection with the above-entitled

matter and that the transcript page format is in conformance

with the regulations of the Judicial Conference of the United

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States.
DATED at Honolulu, Hawaii, December 29, 2014.

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_/s/ CYNTHIA R. OTT

CYNTHIA R. OTT, RMR, CRR