 Hey, welcome to our show. I'm Ken Lawson. Our guest today is going to be public defender Peter Wolf and first of public, first assistant public defender Ali Silver. We're going to talk about the Kloha case. And when I was asked to come in and host this show on Friday, and they said bring any guests that you want. Right. You two guys came to mind first. And I tell you why. We just seen one of the biggest corruption trials come to a conclusion last week with Louis and Catherine Kloha being found guilty of conspiracy to violate Gerard Poirot on his civil rights and obstructing justice. And I guess being the co-director of the Hawaiian Assist Project, we get so many applications from clients who said my lawyer didn't listen to me. I told my lawyer that I was actually innocent and he didn't believe me. And I mean, and you've seen through DNA exonerations since 1993, 350 exonerations through DNA testing showing that people are actually innocent. The Netflix series with Central Park Five showing how this happens. And what impressed me about this case is that your office, Peter and Ali, took Gerard's case and listened to him. I mean, here you got, I'm about to turn it over to you guys because I want you to do all the talk and I just want to listen. It's just so fascinating. But here you have a client. You know, I did criminal defense work for almost 20 years, right? So you get client, you're not about 10 years, right? You're here at all. So you get this man coming to your office and he says, look, you know, that's saying I stole this mailbox. Who is they? What a chief of police and it's high-ranking, prosecuted wife. Right? And I didn't do it. Right? And so I guess my question to, how did this unravel? Because if it wasn't for you, we wouldn't be talking about this case today and that's the honest of God truth. Well, I mean, the way our office works has been set up is Ali assigns the cases when they come in and so that they're fairly distributed. And he assigned this case to himself. But I don't think he assigned this case to himself because he thought he would develop into what it developed into. I mean, he assigned it to himself because he assumed that the government had a good case and he was concerned that a theft of a mailbox shouldn't result in a lengthy prison sentence just because it was the chief's mailbox when nobody could remember a single similar prosecution in the district of Hawaii in 20 or 30 years. But it turned out through Ali's work and really also through the work of our investigative staff that there was a lot more to this case than met the eye. Yeah. Yeah. Ali? Yeah. When the case came in, all we really knew was that a mailbox had been stolen. It belonged to the chief of police and one of the highest state prosecutors in the land here and that there was a video and that they simply were identifying the person on the video who they knew, which was their uncle. So when you take those facts, you're thinking, well, this is a slam dunk. You know, the only issue that I was concerned about is what Peter said, which is, you know, I don't want someone like this to get slammed at sentencing because of who these people were. So when we initially, that was kind of the structure of the case and how we were viewing the case. And then, of course, Mr. Polana came in and normally my process with any defendant is I don't talk about the case when they first come in. I talk about the process of federal court, the, you know, the indictment and what discovery we're going to get and how you do a trial and what the guidelines are so that we kind of get to know each other while we talk about the legal process. And then I ask a client to come back and talk about what happened. Well, Mr. Polana, you know, wouldn't let me get through the process. He just kept insisting he was being framed and it wasn't him. And there was this lawsuit that he was filing against, you know, Catherine Kahloa and it was all a setup. And so it was somewhat antagonistic initially because I was trying to get through, you know, informing him of the process. You didn't want to hear it. So in the beginning, it was a little bit tense until we started actually looking at the evidence that was provided to us. Yeah. And I think that's the hardest part is when you have a client, you know, I try to teach my students this and my former attorneys that I used to train. Is it, you know, when you have someone who's just adamant, even if you, I mean, if they just keep persisting on a certain point, you need to probably open up and take a look. They may not be communicating with you the way that you're knowing what communicate, but they're saying something. It's something about the case that bothers them. And normally that's what that justice falls in. How did you unravel this? Well, we have, at the time, we had three very good investigators who worked for our office and an investigator got assigned. And as the evidence was coming in through the U.S. Attorney's Office, we started looking at it, breaking it down piece by piece, and then investigating each aspect of it. The original piece that really caught us in terms of the evidence was there was a 911 photograph of the crime scene which had the pedestal of the mailbox. And then there was a description from Catherine Kahlo of what type of mailbox sat on that pedestal and the value. So all we were doing, we didn't even think anything was wrong with it. We were just verifying with the manufacturer what mailbox belonged on this pedestal and what was the value. We did not think for a moment that this was going to lead anywhere. And that was our first inquiry. That's what's so incredible though. I mean, because in the state court, and I don't really have a half, remember in state court, in order for it to be a felony, it has to be at that time valued over $300 or more. That's right. Right? And so now in federal court, it doesn't matter, right? So what's so incredible about this is that you were still looking at that even though it didn't really matter for the federal charge. That's right. I mean, Brian Wise, who was investigating at that point, he contacted the manufacturer. There was a specific description of the mailbox, a Gaines mailbox. And it's a remarkably expensive mailbox. Yeah. I never knew what he could spend that amount of money on a mailbox. And Catherine Kellogg had said that she bought it used for like $380. So Brian was looking into it, and he contacted Gaines. And the Gaines guy said, because he had a picture of it, he said, that's not our mailbox. That's not our pedestal. But he's a mailbox guy. So he said, but I know who does make this. And he put Brian in touch with or told him how to reach the guy from Gibraltar or, I forget the name he used in the trial. But anyway, and that guy was contacted. And it turned out you could buy that mailbox brand new for about $150, which means it's not a felony to steal it. But if it's a Gaines mailbox over $300 value even used, that makes it a felony. And I think that was one of the first things that struck us as, OK, there's something really wrong with this case. Right. Because why would someone lie about the make and model of their mailbox? What's the point of that other than to make it a felony rather than a misdemeanor? And so if you're lying right there, right off the bat about something so simple, then there's got to be something else going on. Right. So how did it unravel that today? So the next piece of the puzzle that came in was what we had received was a summary report of the homicide detective's investigation. So of course, Detective Akagi, who was assigned, is a homicide detective on a mailbox case. That's right off the bat peculiar. But then as we're looking at the reports, we're seeing the chain of custody log for when the video tape of the surveillance log was taken. Right. And that was at 8.59 in the morning according to the custodial log. But we know that Catherine Kahlo, according to the reports, didn't call 9-1-1 until 1.30 in the afternoon. So how is it possible that evidence is being seized from a crime scene before the crime has even been reported? So that was the second huge piece that didn't fit. Yeah. At that point, you start really believing Gerard when you're saying, hey, I am actually innocent because I could still see him saying I'm actually innocent. And then you're saying, well, maybe they – and you believe in him. But then thinking that the Karen Loha has just mistook him in the video. You know what I mean? So it's just a case of honest but mistaken identity as opposed to what we found out later is a setup. I don't think we were too – I don't know. I was never too convinced that it was honest but mistaken identity. Because the mistaken identity cases of which there's many in the Innocence Project knows about this is usually someone who's identifying someone they don't know. Right. If you're identifying someone you've known for 20 or 30 years, even off a videotape which isn't that great a quality, the likelihood that you'll make a positive identification and be mistaken seems to me kind of low. I agree with you totally. And that's absolutely right. You know, all the mistaken identification cases from 75% of the wrongful convictions are based on our witness' identification. And you're absolutely right. It's because the people don't know their perpetrator. But here I'm thinking, well, maybe because they're so angry at him. There's so much tension going back and forth between the family. They're being sued. There's just so much – you know, that they became angry. It's like the only person that could have stole this mailbox is Gerard. And that's what I'm thinking still may be the honest. You know what I mean? I think it's possible. But I mean, I think that defense was presented in a criminal trial last four or five weeks. And I don't think the trial jury was deterred too long by that. No doubt about it. So after that happens, you guys still persisted. Well, there was – at that point, you know, there's a million things to do. Every piece of that police report and every report that was attached to it, we closely examined and essentially determined through multiple subpoenas that every single police report that we were given was false. Is either outright false or misleading or altered. And a lot of the evidence we uncovered, we had to do through subpoenas. Subpoenas that HPD was fighting us against. Subpoenas that both Catherine and Louis K. Loa fought us in closed hearings for us not to get the evidence. We had Gerard Puana, who amazingly enough took – started taking photographs of cars that he thought were surveying him. And we ran the license plate numbers. We had to do that by subpoenas. And you have to do it piecemeal. You've got a subpoena from the licensing department getting whose vehicle that is. Then you have to subpoena the HPD for that person when we found out it was an officer of – was the car registered to them, was it an official car, who was driving it? So there were multiple steps that we had to go through to establish that Mr. Puana was under surveillance at a time that it was never even a suspect. Yeah, yeah. And I imagine as this is going on, do you ever tell the court or the U.S. Attorney at that point, we believe our client's being set up, or you just going to wait till he's out of that trial? Well, Peter and I had long talks about this. Les Osborne was the prosecutor in the case. And basically through communications with him and from known practice, we didn't believe that if we simply presented all the evidence we had to the prosecutors before trial that we were going to be taken seriously. So it was only after the trial that and where we had made our opening statement, we'd already caught Mr. Silva in a lie. The chief had thrown the trial as far as I was concerned, that we felt comfortable going back and saying, okay, let's sit down and show you the evidence. And Mr. Wolfe and I had long discussions about whether we should even do that. And we finally came to the conclusion to trust the U.S. Attorney's Office and to trust Mr. Tong and Mr. Osborne and present the evidence now. That's a huge decision I can imagine because – And then to their credit, once we did do that, they did take it seriously. And that's what resulted in the dismissal of the case after the mistrial so that it couldn't be tried again. And then that's what led to the further investigation by the Department of Justice and the FBI. And I think it's worth mentioning – it's definitely worth mentioning because the FBI and the case that was presented in the recent criminal trial resulted in the convictions. They learned a lot more than we know. They learned way more because they have the ability to do it. I mean, they collected all the bank records that could be relevant and turned out a bunch of them were relevant. They collected all the cell phone communications for the players and were demonstrating to the jury how that was relevant. And they found out and investigated the ripoff of the Taito siblings trust fund. And so, I mean, I think that we deserve credit for representing Gerard, but the case – the criminal case that was presented started, I think, with the investigation we'd done, but it needs to be – the public needs to understand that a whole lot more work was done before what we had done could turn into a criminal prosecution that could be successfully pursued. We're about to go to break, but when we come back, we're going to talk about the criminal trial you just spoke about, the agents that were involved along with the federal prosecutors, and what you guys thought about the trial. You were excluded as a witness, but Peter, you and I sat through most of it. And when we get back from the break, we'll also talk about what do we think the sentencing will be based on the federal sentencing guidelines of each defendant that was convicted last week. We'll be right back. Aloha. I'm Stan Osterman, a host here on Think Tech Hawaii, a digital media company serving the people of Hawaii. We provide a video platform for citizen journalists to raise public awareness here on the island. We are a Hawaii nonprofit that depends on the generosity of its supporters to keep on going. We'd be grateful if you'd go to thinktechawaii.com and make a donation to support us now. Mahalo. Aloha. I'm Jane Sugimura, a host here at Think Tech Hawaii, a digital media company serving the people of Hawaii. We provide a video platform for citizen journalists to raise public awareness in Hawaii. We are a Hawaii nonprofit that depends on the generosity of its supporters to keep on going. We'd be grateful if you'd go to thinktechhawaii.com and make a donation to support us now. Thank you so much. All right, we're back for the last part of our show. But during the break, Aloha, we were talking about your first meeting, you and Peter's first meeting with the FBI. When you go to them and you say, hey, look, guess what? We really believe that the chief of police, because he was the chief at that time, right, and this high-ranking prosecutor that are married and a power couple in Hawaii are actually criminals. And how did that go? So when they initially came to our office, they were not happy. And in fact, they both refused to shake my hand. When we got into the room to show them the evidence, they immediately made a statement that they didn't like that they were there and that we were kind of telling the press that we were meeting with them. They made it very clear that just get on with it. Just show us the evidence and get on with it. Because we are adversarial in our day-to-day operations. So it did not go well, let's say, for five minutes, because I did not take too kindly to those remarks, and I made remarks back to them. But after we got over that, I broke down the mailbox for them and showed the two different mailboxes and how they had lied about it and believed one of the mailboxes had been rigged to come off as you saw in the video. And within 10, 15 minutes, they were on the floor with me because we had the mailboxes, we were taking them apart, we were putting them back together. So after about 15 minutes, all of the beginning suspicion and anger evaporated and the next two hours went very well. And as Peter was saying, I think the important part of their continuing investigation was to show the financial motive because as you stated, why would they set him up to steal the mailbox? You're talking about the chief of police and the high-ranking prime secretary, right? And it's not until you get to all the money matters and the desperation that they were in at that point and the pressure that Grandma Poana and Gerard was putting on the K. Law Hines that they had to resort to this action. I think that's right. And what we saw in the trial and what is summarized in the indictment is just shows a remarkably comprehensive investigation and a really comprehensive presentation of a complicated case to a jury that turned out to be very effective because four of the five defendants were convicted and they showed motives. I mean, we knew there were problems and we knew there was a certain extent that there was a motive of Gerard and his mother's lawsuit, but the kind of things that the FBI was able to uncover and that the prosecutor was able to present in the trial was far beyond anything that we had thought or knew about. And so I think that it's important that this case also be seen as a vindication of the system that can work correctly and did in this case and really not just allow people of high position to walk away because of their presumed position or influence or authority and show that when you really dig into it maybe there's some real wrongdoing which I think was proved here. We have a picture, if you can put the photo up, of the federal prosecutors and the FBI agent who went by after the verdict to tell Grandma Florence that she had finally received some justice after over a darned decade of being on the other end of it and just losing her house. I mean, when she took the stand and going to the trial and some of the jurors had spoke publicly since then on a couple of news stations that it was Grandma's testimony, the video testimony that really sensed your form. What did you think? I mean, that was a very classy move on the part of the government to go and present the verdict forms to Florence Poana. It was very generous of them and I think she really appreciated it. You know, the government did a great job. Mr. Wheat was on the ball. His staff was on the ball. From the moment I met him he knew things that I had never seen or was able to uncover. He was on it. He impressed me from the very first day I met him which was very important because up until that point I wasn't sure anything was going to be done. His team and his prosecution unit deserve a lot of credit for the case that was put on and for these convictions. You were in trial that day when Florence's video was played to the... Part of the day, yeah. What was your impression? Well, I remember you telling me that you thought that she was the most important witness. Maybe you told me that later on in the trial and I think that judgment was correct and based on what the jurors said a few of them that spoke pretty afterward seemed like they thought the same thing. Because the hard part about a case like this is to answer the question why would the chief of police his wife, who's a second or third and maybe fourth rank deputy prosecutor, a lieutenant in charge of CIA why would these people get together and do this? What possible reason would there be to do it? And I think that Florence Poana's testimony showed why and showed that people were willing to use their positions to overreach on others and get them to go along with it and participate in it. Not only that, but you both know from being trial attorneys when you have a victim that can make a jury truly feel emotion, anger and to the point where I think Wheaton done an excellent job of telling this jury you're the ones that can bring justice to grandma. It's up to you. She hasn't gotten justice through what Catnam did from stealing her money. She got ripped off at the civil trial and so they empowered that jury to feel something so powerful that it came back the verdict came back so fast I was shocked. I don't know about you guys. I was surprised, I was surprised. Because we've all done a ton of conspiracy cases in federal court and even on drug conspiracies with multiple co-defendants it takes longer than this, right? And so they were swayed by the evidence to a point where they were just utterly convinced of the guilt of those four defendants. And I think the closing argument made by Joe Orobona was very effective and I thought also that I was a little surprised that Michael Wheat turned it over to him to do it because he had done the opening but I think it showed that he was paying attention to the best way to present it and he allowed his colleague to do both parts of the closing and I think it was quite effective. No, but what it showed me about Wheat is most trial lawyers have egos and so closing showtime, right? And for him to say you know what I'm going to put this young man who's a great storyteller I mean Wheat, I mean what's his name Joseph? And I see Wheat just going in and some of that hoax was smashing but to set aside the ego and say you know what I'm going to put my people in the best place possible to represent the United States of America and to bring justice for them. I just thought it was amazing. I think what this trial showed and what we've just been talking about is the government's serious. This is serious business. I don't know how many people in Hawaii government and politics seriously or thought it but Mr. Wheat is very serious. He's a lifelong career prosecutor and he does corruption cases around the United States and he's no joke and he brought in a serious team. He's going to get his convictions as best he can. That's what it's about. He will not tolerate lying on the stand or lying in front of the grand jury so I think this sends a message to the next round of cases that are coming. I hope the attorneys for any other people getting target letters and subject letters and can you come down talk to the grand jury telephone calls we'll let these people know that this is not a joke. This is not a joke and we'll see. I want to get to the sentencing. What are your state sentencing courts you know I'm from Ohio but I did in Kentucky and other though in the state court the sentencing is just totally different from federal court right and in federal courts you have to sit down with the client you've got to kind of go through the guidelines. There's guidelines for almost every offense in the federal court of which there's many and the guidelines here I think come out differently for the different defendants. But I think that the person facing the longest sentence of the guidelines is Catherine K. Loha and I think that Louis K. Loha and Derek Hawn are probably come out about the same and I think Bobby to win because he's in lesser position of authority probably comes out the lowest. The guidelines are advisory at one time when they first came in they were mandatory but since 2006 they've been advisory. So the judge has to determine the guidelines correctly and then once he determines them correctly he has discretion to go upward or downward to vary from the guidelines depending on other factors that he thinks ought to be taken into account that aren't fully taken into account by the guidelines. The way I describe it to my clients and I know that Peter doesn't agree with me on this is think of a circus tent and you have that pole in the middle of the circus tent that holds up the whole tent. That's the guidelines you start there and then based upon individualized circumstances for each defendant you can go lower or higher. That's how I explain the guidelines. Absolutely and it can be complicated but you can kind of at least give a client through the guidelines. A guideline range of what they will fall and I had guessed last week some time that Bobby Nguyen and Derek Hahn would be somewhere around three or four years Louis around five to seven and then Catherine Nguyen from five up to 12 depending on how high the judge wants to go up. Peter what do you think? I don't think it's that high. I think and I don't know that I've completely done this correctly but I think she's looking at 70 to 87 months of imprisonment as the recommended sentence Mr. Hahn and Louis K. Lohard looking at six to 57 months and Bobby Nguyen at 37 to 46 months of imprisonment. But the thing that's unusual about this case so the guidelines contain adjustment for abusive position of trust public trust or private trust but I think that when you're talking about the chief of police or higher ranking prosecutor the two levels that you get upwardly adjusted for a position of public trust could be viewed by the court as inadequate to really deal with what happened here. The chief of police is as high a position of public trust as you can have probably and not be an elected official and I can't think of anyone in a higher position in the city and county who's not elected and so it may be that the two level adjustment that the guidelines call for would be seen by the court as not really representing enough of an adjustment. We got a taste of Judge Sebride's view when he was talking during the detention hearing which was the first time that he was able to express his view because during the trial judge has to be neutral so that was the first time we heard from Judge Sebride and I would be taking a word of caution from that that these defendants may be looking at higher sentences than what the guidelines make call for. And we have to wrap it up but I want to say this too and that's the reason why I want a little bit higher it's not just that they were in positions of public trust but what did they use their positions for to further advance it and then to use, because Bobby and Derek may not have known about the financial concerns that was going on with the K. Lohas right so now they're just being used by the chief who's in that position you know who can order them to do this stuff to and it was just in all this surveillance etc but we're out of time I wish Jay Fidel would have given us two hours to talk about this man because I wanted to get into my crybaby criminal stuff don't be a crybaby criminal chief but anyway Peter, Allie thanks for coming. Thank you. See y'all later. We're out.