Allison Lee Wong Motion

Case 1:17-cr-00582-JMS-RLP Document 438 Filed 02/25/19 Page 1 of 24 PageID #:
3695
WILLIAM P. BARR
United States Attorney General
ROBERT S. BREWER, JR.
United States Attorney
MICHAEL G. WHEAT, CBN 118598
ERIC J. BESTE, CBN 226089
JANAKI S. GANDHI, CBN 272246
COLIN M. MCDONALD, CBN 286561
Special Attorneys to the Attorney General
United States Attorney’s Office
880 Front Street, Room 6293
San Diego, CA 92101
Tel: 619-546-8437/6695/8817/9144
Email: michael.wheat@usdoj.gov
Attorneys for the United States
UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII
Case No. 17-CR-00582-JMS

UNITED STATES OF AMERICA,
UNITED STATES’ RESPONSE IN
Plaintiff, OPPOSITION TO DEFENDANTS
v. KATHERINE KEALOHA AND
LOUIS KEALOHA’S MOTIONS IN
KATHERINE P. KEALOHA, et al., LIMINE #1 AND #3 [ECF Nos. 390,
392]
Defendants.
Defendants Katherine Kealoha and Louis Kealoha seek an order excluding
evidence of their prior bank fraud, identify theft, and financial fraud with regard to
the Taito trust accounts (and related facts, including Alison Lee Wong). ECF No.
390. Separately, the Kealohas move to exclude “any evidence of alleged financial
malfeasance regarding Gerard K. Puana and Florence Puana,” including Katherine
Kealoha’s attempt to silence Florence by attempting to have her declared

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incompetent. ECF No. 392. In other words, the Kealohas seek to exclude from trial
their prime motive for targeting the Puanas—their interconnected, beginning-to-
unravel web of fraud—and their chosen means of silencing Florence. The rules of
evidence do not support this result. These motions must be denied.
I.
RELEVANT BACKGROUND
The United States has previously set forth a lengthy factual recitation which
outlines the intertwined nature—both temporally and factually—of the Kealohas’
past financial fraud. See ECF No. 389. The facts outlined in that filing largely suffice
for this response. We therefore only supplement the facts as necessary throughout
the analysis section below.
II.
THE KEALOHAS’ MOTIONS IN LIMINE SHOULD BE DENIED
A. The Court Should Reaffirm Its Previous Denial of The Kealohas’ Motion to
Strike
The Kealohas first claim that allegations about the Taitos should be stricken
from the Indictment.1 ECF No. 390 at 4-5. This request should be captioned as a
motion for reconsideration, not a motion in limine. See, e.g., L. Civ. Rule 60.1.
Indeed, the Court already considered and rejected this exact—though even more
1
When referring to the “Indictment” throughout, we mean the operative
Superseding Indictment at ECF No. 164.
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robust—motion. See ECF No. 158 (Katherine Kealoha’s Motion to Strike
Surplusage); ECF No. 174 (Response in Opposition); ECF No. 232 (Order Denying
Motion to Strike).2
Even if the Court reaches the merits of this argument again, the Kealohas’
claim fails. Their argument now is solely based “on the procedural history of this
case and the government’s own concession.” ECF No. 390-1 at 4. That fails entirely
to engage with the standard under Federal Rule of Criminal Procedure 7(d). See
United States v. Laurienti, 611 F.3d 530, 546-47 (9th Cir. 2010) (“The purpose of a
motion to strike under Fed. R. Crim. P. 7(d) is to protect a defendant against
prejudicial or inflammatory allegations that are neither relevant nor material to the
charges.”). Moreover, their empty argument mischaracterizes the procedural history
of this case.3 The Court should (again) deny the Kealohas’ motion to strike.
2
At the prior motion hearing, the Court made clear the Indictment would not
be sent back to the jury. Thus, there is no harm in maintaining the Taito allegations
in the Indictment. The pertinent question for trial is admissibility of this evidence.
3
Throughout the litigation on the severance motions, the United States
consistently maintained that the Taito obstruction counts—along with the other
financial fraud—should be tried with the “mailbox” conspiracy. See, e.g., Response
in Opposition to Severance Motions, ECF No. 174 at 2 (“[L]arge portions of the
anticipated trial evidence would be admissible against them even in separate trials.”);
id. at 11 (“The reference to the Kealohas’ misappropriation of funds from various
victims serves the direct purpose of providing the motives behind the Kealohas’
involvement in the conspiracy[.]”). Even at the motion hearing on severance, the
United States stated, “the motive evidence as to why it would be that you would
frame somebody for theft of a mailbox is because it’s connected integrally to the
financial fraud that had been ongoing.” Transcript of May 3, 2018, Motion Hearing,
ECF No. 239 at 31. The Court ultimately granted the severance motions in part, and
the United States thereafter took the necessary procedural steps to align the pending
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B. The Court Should Deny the Kealohas’ Motion to Exclude Evidence

Regarding the Taitos and Related Facts
Next, the Kealohas move to exclude evidence “regarding or related to” the
allegations in Case No. CR 18-00068-JMS, namely, “any evidence regarding the
charged bank fraud, identity theft, and obstruction charges and related conduct,
including but not limited to any evidence regarding Ransen Taito, [A.T.], the Taito
trust funds, James Bickerton, Alison Lee Wong, and United States v. Taito, CR No.
18-0001-JMS.”4 ECF No. 390.
This broad motion should be denied. The United States has previously
analyzed the admissibility of evidence pertaining to the Taito trust accounts and
other intertwined segments of fraud perpetrated by the Kealohas. See ECF No. 389.
In short, each of these segments overlap in time and activity: K. Kealoha took money
belonging to the Taitos and gave it to Gerard Puana; she took money from Florence
Puana and gave it to Ransen Taito; the Kealohas falsely claimed the Taitos’ trust
accounts as their own to consummate bank fraud; and K. Kealoha wielded her alias,
“Alison Lee Wong,” to deceive her way through all three schemes. This
interconnected web of fraud explains why the Kealohas targeted Gerard and
Florence Puana, who were beginning to discover and reveal these misdeeds.
cases with the Court’s severance order. The United States has never “conceded” the
inadmissibility of its evidence.
4
The case in which Ransen Taito admitted Katherine Kealoha convinced him
to lie to the federal grand jury.
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We largely respond to the Kealohas’ motion in limine by incorporating by
reference the facts and arguments presented in ECF No. 389. We build upon that
analysis now, focusing specifically on Alison Lee Wong and the obstruction case
involving the Taitos and Katherine Kealoha.
1. Alison Lee Wong Is Centrally Relevant at Trial
Alison Lee Wong is the ever-versatile alias Katherine Kealoha calls upon to
dodge scrutiny, forge documents, secure state Senate confirmation, and more. In
their motion in limine, without any specific analysis, the Kealohas move to exclude
“any” evidence of Alison Lee Wong. That cannot be.
Indeed, “Wong” played a central role in the underlying fraud Katherine
Kealoha perpetrated against Gerard Puana: she was the alleged “notary” for the
“Gerard K. Puana Revocable Trust,” purportedly executed on January 19, 2007.
Katherine Kealoha first produced this alleged trust document during her civil lawsuit
with Gerard Puana (before then, Gerard Puana had never seen it).5 Kealoha’s own
5
The ownership of the condominium purchased through Florence Puana’s
reverse mortgage funds, see ECF No. 389 at 7-8, had been transferred to this trust
controlled by Katherine Kealoha.
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civil attorneys found the document “puzzling,” and “sought to confirm its
provenance by examining the notary book of the notary who notarized the
signatures.”6 Kealoha’s attorneys were “surprise[d]” but what they learned: “the
Attorney General is unable to locate any notary with the same or similar name to
that on the putative trust document.”7
Puana’s civil attorney pressed on the “Alison Lee Wong” issue. For instance,
during Katherine Kealoha’s civil deposition, on September 26, 2014, the attorney
asked Kealoha a series of questions about Wong. Kealoha admitted she knew
someone named Alison Wong (“Well, I met her -- I met her probably when I was in
college at -- and she worked by the Y[MCA]. And my boyfriend at the time worked
at the Y and I met her”), but denied this person was the Alison Wong who notarized
Gerard’s trust.8
6
Beyond “Wong’s” signature, two other alleged signatures appear in the trust
document: Gerard Puana (as trustor) and Katherine Kealoha (as trustee). According
to the United States’ handwriting expert, Puana’s signature was “most probably not
written” by Puana; Katherine Kealoha’s signature was “most probably written” by
Kealoha; and Alison L. Wong’s signature “shows some similarities” with Kealoha’s
writing. Additionally, further establishing the forgery, the revocable trust is self-
contradicting. At times it refers to Katherine Kealoha as the trustee (including in the
first paragraph of the document); later, it identifies Gerard Puana as trustee, and
Kealoha as successor trustee.
7
These statements by Katherine Kealoha’s attorney were included in a letter to
Gerard Puana’s attorney on September 18, 2014.
8
Kealoha was also asked when she last saw “Alison Wong.” She answered, “I
would say in either 2008 or 2009, yeah, at Home Depot.”
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During the civil trial, Puana’s attorney attempted to admit the trust document
into evidence while Kealoha was on the stand. The following exchange took place:
Q. Ms. Kealoha, Exhibit P45 is titled, on the first page, ‘Revocable

Living Trust Agreement.’
A. Yes.
Q. And this, the first part, the first paragraph says or talks about it
being for Gerard Puana; is that correct?
A. Yes.
Q. Can you look at the third-to-the-last page. It’s not numbered, but
it’s called ‘Article 9, Power of Attorney.’
A. Yes.
Q. Okay. There is about three-quarters down a signature block. It
says, ‘Trustee.’
A. Yes.
Q. Is that your signature?
A. Yes, that’s my signature.
Q. And below that there is like a notary portion. It’s also two lines,
and there’s a signature under -- or signature over the word
‘Trustee.’
A. Yes. Both of these are my signatures, but I did not sign this
document.9
9
Emphasis added. Despite denying signing the Puana trust document, Kealoha
somehow still maintained during the civil trial that she was the trustee of Puana’s
“trust.”
She also claimed she gave her only copy of the trust document to a financial
institution sometime between February 2009 and October 2009. Thereafter, she
claimed she “didn’t have [a copy of the trust], period.” When asked how she
performed her duties as trustee without having a copy of the trust, Kealoha stated,
“Actually, I mean, you can talk about me being a trustee, I mean, I was basically his
niece helping him.”
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[Puana’s Attorney]: Okay. Your Honor, I’d like to offer this

exhibit. She has identified her signature on
the document. Whether or not there’s
discrepancies or differences, I think she can
identify. She can differentiate.
[Kealoha’s Attorney]: For what purpose? I mean, no one is saying
this is a valid document.10
a. Gerard Puana’s alleged “trust” document is critical to
understanding the underlying fraud perpetrated by Katherine Kealoha against Gerard
Puana and Florence Puana. Katherine Kealoha created the trust, which she alone
controlled, and then transferred ownership of the $360,000 condominium into it.
This gave Katherine Kealoha complete ownership and control over the entirety of
the assets secured through Florence Puana’s reverse mortgage.11 The use of a fake
notary to create the trust document serves as concrete proof of the underlying fraud.
Moreover, by first confronting Kealoha and then filing the civil lawsuit, the
Puanas started revealing unpalatable truths about the Kealohas and crept
dangerously close to discovering hugely damaging ones. Alison Lee Wong is a
prime example of one such damaging truth. Indeed, the truth about Wong, alone,
could irreversibly damage the Kealohas’ professional reputations and subject them
to immediate scrutiny—political, public, and criminal. This is because “Alison”
10
The court reserved ruling on the admissibility of the document, which was
ultimately not admitted at the civil trial.
11
The condominium was purchased with funds obtained from the reverse
mortgage on Florence Puana’s house. The remaining funds Katherine funneled into
the “joint account” with her and Florence. See, e.g., ECF No. 389 at 7-9.
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played a prominent—even public—role in the Kealohas’ rise to power, and also
appeared in all the underlying segments of fraud committed by the Kealohas.
For instance, in February 2008, “Alison L.Y.F. Wong” e-mailed a letter in
support of Katherine Kealoha’s gubernatorial nomination to the position of Director
of the Office of Environmental Quality Control to the Senate Committee on Energy
and Environment (Kealoha later received Senate confirmation). To this day,
“Wong’s” letter is publicly accessible on the Hawaii.gov website.12 In other words,
“Alison Wong” was hiding in plain sight (along with other forged letters sent to the
Senate). If the Puanas, or their attorney (or anyone following their family affair),
figured out Wong was a fake, the state of Hawaii would soon too, potentially leading
to a hasty political and professional demise for the Kealohas.
“Alison Lee Wong” also publicly aided in Defendant Louis Kealoha’s rise to
power. For instance, on November 9, 2009, an acquaintance of the Kealohas
published a “note” on Facebook titled “Please Support Louie Kealoha for Police
Chief.”13 In response to that note, a Facebook account titled “Alison Leewong”
responded, “You are wonderful! We are in full support and writing our letters right
now! It is no wonder Kat and everyone in her family loves you! You rock! Ali.”
Three minutes later, “Alison Leewong” sent the family acquaintance a private
12
https://www.capitol.hawaii.gov/session2008/Testimony/GM434_ENE_02-
28-08_.pdf (pages 8-9) (last visited Feb. 25, 2019).
13
Several weeks later, Defendant Louis Kealoha was sworn in as HPD’s chief.
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message, stating: “Kat was in tears leaving for her meeting this morning when she
saw your posting. . . . Thanks for all you do, I can’t wait to meet you in person!
Mahalo! Alison.” The recipient of these messages has confirmed she has no
recollection of meeting Wong.
The Wong alias was again activated in 2010, this time to help the Kealohas
commit bank fraud. The Kealohas applied to refinance the mortgage on their home
in Kahala (the home from which the mailbox was later “stolen”). As part of their
loan application, the Kealohas falsely claimed the Taito trust accounts as their own.
Further, they supplied a bank statement for Ransen Taito’s trust account, but
redacted Ransen’s name from the document to make it appear Katherine Kealoha
was the owner of the account. The purpose for supplying this account statement was
to establish the Kealohas had the reserves necessary to qualify for their desired loan.
Original Statement Altered Statement
Additionally, during the loan origination process, the Kealohas were required
to explain derogatory information on their credit. They falsely claimed identity theft
as the reason for their poor credit. Later, still prior to securing the loan, Katherine
Kealoha forwarded an email from “Alison Wong” to the mortgage broker in which
“Alison” makes it appear she is “working to resolve” various bank-related issues. In

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her email to the mortgage broker, Katherine Kealoha references “Alison’s” email
and states, “I am trying to figure out what to do!” Three days later, on July 9, 2010,
the Kealohas finalized and filed their Uniform Residential Loan Application. They
later obtained the requested loan.
Katherine Kealoha called upon Wong again in August 2011. This time, as
discussed in ECF No. 389, it was to delay and distract James Bickerton from learning
the truth about the Taitos. Within days after Bickerton asked Kealoha to “get in touch
with us re the Taito kids’ money,” Kealoha forwarded the following e-mail chain—
which included Kealoha talking to herself as Alison Lee Wong—to Bickerton:
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Over the next several months, Kealoha inserted Wong multiple times into her
back-and-forth with Bickerton, even having “Wong” email Bickerton’s firm directly
to stave off scrutiny.14
b. As these facts make clear, Alison Lee Wong is a pivotal figure in
this case. And there is no basis for excluding her from trial. Beginning with
“Wong’s” presence as the notary for Puana’s trust document, evidence of Katherine
Kealoha’s use of Wong is admissible for several, independent reasons: as evidence
inextricably intertwined with the charged conspiracy, and, alternatively, under Rule
404(b) to prove identity,15 modus operandi, motive, knowledge, and absence of
mistake. See, e.g., ECF No. 389 at 23-24; United States v. Brown, 636 F. App’x 157,
159 (4th Cir. 2016) (unpublished) (“Evidence of a defendant’s use of an alias or
nickname is admissible if relevant to identification of the defendant in connection
with the crimes alleged.”); United States v. Doe, 741 F.3d 217, 227 (1st Cir. 2013)
(“Thus, as our case law makes clear, a defendant’s aliases may be introduced at trial
14
For instance, on October 31, 2011, “Alison Wong” wrote in an email to a
Bickerton firm paralegal, “. . . I was given direction to meet with [A.T.] and Ransen
Taito and have them sign the authorization forms Mr. Bickerton needs. Then I’m to
have the forms brought over to Mrs. Kealoha to be completed.”
There are still more examples of Katherine Kealoha’s use of Alison Lee
Wong. For instance, Kealoha had Wong communicate with Jesse Ebersole in
November 2009 and September 2010.
15
Admission of the alias and her repeated appearances is relevant and necessary
for identifying Katherine Kealoha as the user of the alias.
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in cases where identity is at issue.”).16 This highly relevant evidence is not
“substantially outweighed” by any Rule 403 concern. Indeed, the Kealohas fail to
even raise any Rule 403 arguments about Alison Lee Wong.
2. Katherine’s Successful Effort to Convince the Taitos to Lie to the

Grand Jury is Admissible at Trial
The final chapter of the Taito fraud extends into the very grand jury
investigating Katherine Kealoha’s involvement in the mailbox conspiracy. After
defrauding the Taitos of their money, Katherine Kealoha instructed them to lie to the
Federal grand jury about their receipt of that money. More, she coerced them to do
so, stating that if they “did not continue to say that they had received all of the money
from the Trust Accounts, then Kealoha and Taito’s mother could go to jail.” See
Case No. 18-CR-0001-JMS, ECF No. 12 at 15. Ransen Taito and A.T. followed
Katherine Kealoha’s direction and lied.
16
See also United States v. McFarlane, 491 F.3d 53, 61 (1st Cir. 2007) (“Where
the use of an alias is important to the government’s case, its submission to the jury
as part of the indictment is permissible.”); United States v. Ramer, 883 F.3d 659,
670 (6th Cir. 2018) (“Furthermore, the evidence was admissible for the proper
purpose of proving Defendant Westine’s identity. Evidence of prior acts is
admissible for the purpose of proving identity when the act is so ‘unusual or
distinctive as to be like a signature.’ The details of Westine’s prior conviction show
that he used the same aliases (John Scott and Michael Fairchild) and nearly the same
techniques (fake companies, virtual offices, and California-based call centers) when
perpetrating his previous fraud. These aliases and techniques are sufficiently
distinctive to qualify as Westine’s ‘signature’ for purposes of Rule 404(b) (citation
omitted)).
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These obstructive acts are admissible in the “mailbox” case. To begin, these
obstructive acts occurred before the very grand jury investigating the mailbox case,
and the very same grand jury that co-defendants NGUYEN and SHIRAISHI sought
to obstruct with their false testimony. Indeed, NGUYEN is charged in Count 6 with
lying to the grand jury on the same day as Ransen Taito. Introduction of the Taito
obstruction is therefore highly probative of the coordinated conspiracy to attempt to
mislead the grand jury.
Moreover, Kealoha’s effort to mislead the grand jury investigating her actions
demonstrates her consciousness of guilt. See United States v. Collins, 90 F.3d 1420,
1428 (9th Cir. 1996) (“The evidence of the Collins’ attempts to induce witnesses to
lie is indicative of consciousness of guilt and may be placed before the jury. The
district court did not abuse its discretion by holding that the probative value of this
evidence was not substantially outweighed by its prejudicial effect”; citations
omitted); United States v. Castillo, 615 F.2d 879, 885 (9th Cir. 1980) (“An attempt
by a criminal defendant to suppress evidence is probative of consciousness of guilt
and admissible on that basis.”).17
17
See also United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976)
(“[T]he concealment of evidence subsequent to a commission of a crime or evidence
of conduct designed to impede a witness from testifying truthfully may indicate
consciousness of guilt and should be placed before the trier of fact.”); United States
v. Poulsen, 655 F.3d 492, 508-09 (6th Cir. 2011) (obstruction of justice admissible
as evidence of consciousness of guilt); United States v. Triumph Capital Group, Inc.,
544 F.2d 149, 160 (2d Cir. 2008) (defendant’s “efforts to obstruction the
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Finally, in the event the underlying Taito facts are admitted in this trial, the
United States must produce evidence sufficient to support a finding that Katherine
Kealoha committed those underlying acts. (In their motion in limine, for instance,
the Kealohas’ refer to these claims as “unproven allegations of Ms. Kealoha’s theft
of funds from minors’ trust funds,” ECF No. 390-1 at 8.) And evidence that Kealoha
instructed the Taitos to lie to the grand jury is clear evidence (under the
“consciousness of guilt” case law above) that the underlying fraud occurred.
C. The Court Should Deny the Kealohas’ Motion to Exclude Evidence of the
Fraud Perpetrated Against Gerard and Florence Puana
The Kealohas contend that “the Puana financial malfeasance evidence is
neither tied to the conspiracy or any other charge, nor does it tend to prove a material
point with respect to any defendant.” ECF No. 392-1 at 4. They are wrong. In fact,
this evidence is closer to the most relevant. Indeed, the fraud perpetrated against the
Puanas—along with the other interrelated fraud—explains the Kealohas’ efforts to
silence them. Why, of the nearly 1 million people on Oahu, did the Kealohas see
“Gerard Puana” in their surveillance video? We incorporate by reference ECF No.
389 for the remainder of the argument here.
In the alternative, the Kealohas seek to “limit” evidence of their fraud against
the Puanas to facts occurring “after 2011” (so, presumably, January 1, 2012,
investigation evidence a consciousness of guilt that further supports the jury’s

verdicts”).
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onward). ECF No. 392-1 at 5.18 Their only basis for this is that “earlier conduct is
too remote in time from the alleged conspiracy.” Id. This argument is meritless.
One, “remoteness” is a Rule 404(b) concept. It does not apply to evidence
admissible independent of this rule (such as for evidence inextricably intertwined
with the offense). Two, even in the Rule 404(b) context, the fraud perpetrated against
the Puanas—beginning around January 2007, see Indictment ¶ 17—is nowhere near
“remote.” January 2007 was just six-and-a-half years before the alleged mailbox
theft. And it was even closer in time—four-and-a-half years—to the first overt act
alleged in the conspiracy against Gerard Puana. See Indictment ¶ 37(a). These are
not remote facts. See, e.g., United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir.
1997) (thirteen years since a prior bad act not too remote in time); United States v.
Ross, 886 F.2d 264, 267 (9th Cir. 1989) (admitting a 13-year-old conviction under
Rule 404(b)).19
18
Incidentally, this attempt to “limit” the evidence would virtually suppress all
of it. The Kealohas’ misappropriation of funds belonging to Gerard and Florence
Puana occurred between approximately 2007 and 2010. Incidentally, however, the
Kealohas would apparently concede that the misappropriation of Taito funds is not
too remote: on January 4, 2012, Katherine Kealoha took all of the remaining money
in Ransen Taito’s trust account (over $49,000) to pay off her savings secured loan.
19
Moreover, even if these underlying acts had been distant in time, they would
still be admissible. “[S]ome remote acts may be extremely probative and relevant.”
United States v. Spillone, 879 F.2d 514, 519 (9th Cir. 1989) (citing United States v.
DeCastris, 798 F.2d 261, 265 (7th Cir. 1986) (prior bad acts as old as ten years
admissible to show a pattern); United States v. Rubio-Gonzalez, 674 F.2d 1067, 1075
(5th Cir. 1982) (one prior bad act occurring over ten years before admissible to prove
knowledge); United States v. Engleman, 648 F.2d 473, 478-79 (8th Cir. 1981)
(evidence of murder committed thirteen years ago admissible); United States v. Lea,
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As for Rule 403 (which is also analyzed in ECF No. 389, see pp. 24-26), the
Kealohas claim that “the government [has] other more relevant sources on the point
in question[.]” ECF No. 392-1 at 6. It is unclear what they are referring to (they do
not say). They also claim the Puana evidence “may confuse the jury as to the actual
offenses before the jury.” Id. The actual test is whether the danger of confusing the
issues would “substantially outweigh” the probative value of the evidence. Fed. R.
Evid. 403. And there is no danger of confusion here – the Court’s instructions, for
instance, will plainly inform the jury about the “actual offenses” before it.
Finally, the Kealohas claim there is a “very great danger that introduction of
this evidence will be highly prejudicial against Ms. Kealoha and all of the other
defendants.” ECF No. 392-1 at 6-7. But Rule 403 does not operate to exclude “highly
prejudicial” evidence; “[t]he best evidence often” is “highly prejudicial.” United
States v. Parker, 548 F.2d 1217, 1222 (9th Cir. 1977). “[I]t is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant
matter under Rule 403.” United States v. Hankey, 203 F.3d 1160, 1172 (9th Cir.
2000) (emphasis added) (“[T]he application of Rule 403 must be cautious and
sparing. Its major function is limited to excluding matter of scant or cumulative
probative force, dragged in by the heels for the sake of its prejudicial effect.”). The
Kealohas then claim the United States is “attempting to introduce salacious and
618 F.2d 426, 431 (7th Cir. 1980) (prior similar scheme, occurring over ten years
before, admissible to show intent and motive).
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unproven allegations” at trial. ECF No. 392-1 at 7. To be sure, the United States
intends to prove these allegations at trial, and the Kealohas’ bald assertion that
“salacious” material should be excluded must be rejected. See United States v.
Dhingra, 371 F.3d 557, 566 (9th Cir. 2004) (“Dhingra does not attempt to explain
how the contested testimony meets this standard; he simply asserts that such
testimony was ‘inflammatory.’ This bald assertion does not carry the day.”).
Defendant’s motion to exclude this evidence should be denied.
D. The Court Should Deny the Kealohas’ Motion to Exclude Evidence of

Katherine Kealoha’s Attempt—Fifteen Days Before the Scheduled Civil
Trial—to Silence Florence Puana By Having Her Declared Incompetent
The Kealohas also move to exclude “any evidence” regarding Katherine
Kealoha’s attempt to force Florence Puana into a conservatorship. This should
likewise be denied. Florence Puana is a victim in this case. After confronting
Katherine Kealoha with her fraud and deceit, Katherine Kealoha warned Florence
that she would “seek the highest form of legal retribution against ANYONE and
EVERYONE who has written or verbally uttered those LIES about me!” See ECF
No. 389 at 11-12. While Gerard Puana’s victimization has been thoroughly
discussed, it should not be forgotten that Florence Puana fell prey to this vindictive
promise as well. For Florence, at 95 years old but refusing to go quietly, the “highest
form of legal retribution” was seeking to strip her of her voice, her independence,
and her dignity by hauling her into probate court to have her declared an
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“incapacitated person,” a mere fifteen days before Florence’s civil trial against
Katherine was to begin. This evidence is centrally relevant to the charged
conspiracy; the Kealohas’ attempt to exclude it from trial must be denied.
1. On October 1, 2014, Florence Puana was deposed in the civil lawsuit.
Florence testified at length, spanning around 74 transcript pages. Her testimony was
not favorable to Katherine Kealoha. The deposition concluded and the case
continued towards trial, scheduled for December 15, 2014. Fifteen days before trial,
Katherine Kealoha filed a “motion to bifurcate and to continue trial.” As part of this
motion, Katherine Kealoha claimed “there are serious questions about whether or
not Florence Puana is competent or not, and a Conservatorship proceeding in probate
court is being contemplated.”20 That same day, Katherine Kealoha (through the same
attorneys representing her in the civil lawsuit) filed a “Petition for Protective
Arrangement and for Appointment of Conservator” in probate court. Based
largely—if not solely—on Florence’s deposition testimony, Kealoha claimed
Florence was “unable to manage property and business affairs effectively because
of an impairment in [Florence’s] ability to receive and evaluate information or to
20
In this motion, Katherine Kealoha further accused Gerard Puana of
manipulating Florence: “Gerard had the means, motive, and opportunity to persuade
his mother that she should take the loan, with Gerard’s assurances that Ms. Kealoha
would pay off the loan.”
19
3714
make decisions[.]” The petition further attacked Gerard Puana, claiming he had
“manipulated” and exerted “undue influence” over Florence.
On March 9, 2016—after psychiatric evaluations, motion practice, and the
appointment of a Kokua Kanawai—the probate court denied Kealoha’s Petition for
Protective Arrangement.21
2. The targeting of Florence Puana is explicitly set forth in the Indictment
as part of the charged conspiracy. Indeed, the Indictment alleges that “[i]t was further
part of the conspiracy that the conspirators would target members of the community
who threatened the power and financial condition of L. KEALOHA and K.
KEALOHA, including G.K.P. [Gerard Puana] and F.P. [Florence Puana].”
Indictment ¶ 28. And, “[i]t was further part of the conspiracy that the conspirators
would seek to discredit and intimidate such persons, including G.K.P. and F.P., by
falsely alleging that such persons had engaged in criminal activity or were
incompetent.” Id. ¶ 30. Then, as an overt act in furtherance of this conspiracy, the
Indictment alleges that “[i]n or about December 2014, K. KEALOHA filed a petition
in Hawaii state court to force F.P. into a conservatorship, alleging that due to F.P.’s
21
In a formal complaint filed with the Office of Disciplinary Counsel, Florence
made clear her view of Kealoha’s petition: “At the time [the Petition was filed] . . .
I was . . . mentally and emotionally competent, able to take care of my basic personal
needs and did not require a conservator. . . . It was not until March 9, 2016, that the
Probate Court denied the petition. I found the entire process humiliating and it
caused me tremendous stress.”
20
3715
age she was not competent to manage her finances and had been ‘manipulated’ and
‘co-opted’ by G.K.P.” Id. ¶ 37(oo).
3. The Kealohas now seek to exclude evidence of the attempt to force
Florence Puana into a conservatorship. ECF 392-1. They claim “the overt act
alleging some type of wrongdoing with respect to Florence Puana’s conservatorship
only involves Ms. Kealoha. The evidence is completely unrelated to the conspiracy
charge because even if true, there is no allegation that any other defendant had an
agreement with Ms. Kealoha.” ECF No. 392-1 at 4. This argument conflates the rules
of evidence with conspiracy jurisprudence and misapplies both.
As for conspiracy law, “[i]t is hornbook law that co-conspirators need not
agree to the overt acts of other co-conspirators, only that the overt acts must be in
furtherance of the conspiracy.” United States v. Campanale, 518 F.2d 352, 360 n.17
(9th Cir. 1975).22 As charged in the Indictment, see ¶ 37(oo), and as the facts bear
out, Katherine Kealoha’s conservatorship petition was in furtherance of the
conspiracy. Indeed, like framing Gerard Puana for a crime he did not commit, the
conservatorship petition was the means of silencing Florence Puana.
22
Relatedly, “so long as jurors in a federal criminal trial unanimously agree that
the Government has proven each element of a conspiracy, they need not
unanimously agree on the particular overt act that was committed in furtherance of
the agreed-upon conspiracy.” United States v. Gonzalez, 786 F.3d 714, 719 (9th Cir.
2015) (citation omitted).
21
3716
As for the rules of evidence, they fully support admission of this evidence.
The Kealohas’ objection appears to rely solely on Rules 401 and 403. Neither
operates to exclude this evidence. The evidence is highly relevant to the charged
conspiracy. See Fed. R. Evid. 401; United States v. Lloyd, 807 F.3d 1128, 1152 n.6
(9th Cir. 2015) (relevance is a “low bar”). Indeed, the conservatorship petition was
the means by which the conspiracy “s[ought] to discredit and intimidate” Florence.
See Indictment ¶ 30. In other words, the conservatorship for Florence is akin to the
mailbox theft for Gerard.
In their Rule 403 analysis, the Kealohas do not even mention the
conservatorship petition. See ECF No. 392-1 at 5-7. But even assuming their broader
analysis was meant to cover this evidence, their claims fail, for the same reasons
outlined previously. See supra at 16-18. Excluding the conservatorship action
against Florence would be akin to excluding the mailbox theft allegations against
Gerard. These were the very means by which the conspirators sought to silence
“members of the community who threatened the power and financial condition” of
the Kealohas. Indictment ¶ 29. This evidence should not be kept from the jury.
//
//
//
//
22
3717
III.
CONCLUSION
The Kealohas’ motions in limine should be denied.
Respectfully submitted,
Dated: February 25, 2019 WILLIAM P. BARR

United States Attorney General
ROBERT S. BREWER, JR.
United States Attorney
/s/ Colin M. McDonald

MICHAEL G. WHEAT
ERIC J. BESTE
JANAKI S. GANDHI
COLIN M. MCDONALD
Special Attorneys to the Attorney General
23
3718
UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII
UNITED STATES OF AMERICA, Case No. 17-CR-00582-JMS
Plaintiff, CERTIFICATE OF SERVICE
v.
KATHERINE KEALOHA, et al.,
Defendants.
IT IS HEREBY CERTIFIED that:

I, Colin M. McDonald, am a citizen of the United States and am at least
eighteen years of age. My business address is 880 Front Street, Room 6293,
San Diego, CA 92101-8893.
I am not a party to the above-entitled action. I have caused service of the
foregoing on all parties in this case by electronically filing the foregoing with the
Clerk of the District Court using its ECF System, which electronically notifies them.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on February 25, 2019.
/s/ Colin M. McDonald

COLIN M. MCDONALD
24

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Case 1:17-cr-00582-JMS-RLP Document 438 Filed 02/25/19 Page 1 of 24 PageID #:

Attorneys for the United States

UNITED STATES DISTRICT COURT

Case No. 17-CR-00582-JMS

Defendants Katherine Kealoha and Louis Kealoha seek an order excluding

malfeasance regarding Gerard K. Puana and Florence Puana,” including Katherine

Kealoha’s attempt to silence Florence by attempting to have her declared

their prime motive for targeting the Puanas—their interconnected, beginning-to-

evidence do not support this result. These motions must be denied.

outlines the intertwined nature—both temporally and factually—of the Kealohas’

the analysis section below.

THE KEALOHAS’ MOTIONS IN LIMINE SHOULD BE DENIED

robust—motion. See ECF No. 158 (Katherine Kealoha’s Motion to Strike

motion to strike under Fed. R. Crim. P. 7(d) is to protect a defendant against

charges.”). Moreover, their empty argument mischaracterizes the procedural history

B. The Court Should Deny the Kealohas’ Motion to Exclude Evidence

allegations in Case No. CR 18-00068-JMS, namely, “any evidence regarding the

18-0001-JMS.”4 ECF No. 390.

We largely respond to the Kealohas’ motion in limine by incorporating by

involving the Taitos and Katherine Kealoha.

1. Alison Lee Wong Is Centrally Relevant at Trial

“any” evidence of Alison Lee Wong. That cannot be.

Indeed, “Wong” played a central role in the underlying fraud Katherine

“Gerard K. Puana Revocable Trust,” purportedly executed on January 19, 2007.

that on the putative trust document.”7

Q. Ms. Kealoha, Exhibit P45 is titled, on the first page, ‘Revocable

[Puana’s Attorney]: Okay. Your Honor, I’d like to offer this

a. Gerard Puana’s alleged “trust” document is critical to

understanding the underlying fraud perpetrated by Katherine Kealoha against Gerard

dangerously close to discovering hugely damaging ones. Alison Lee Wong is a

to immediate scrutiny—political, public, and criminal. This is because “Alison”

played a prominent—even public—role in the Kealohas’ rise to power, and also

appeared in all the underlying segments of fraud committed by the Kealohas.

For instance, in February 2008, “Alison L.Y.F. Wong” e-mailed a letter in

support of Katherine Kealoha’s gubernatorial nomination to the position of Director

of the Office of Environmental Quality Control to the Senate Committee on Energy

and Environment (Kealoha later received Senate confirmation). To this day,

“Wong’s” letter is publicly accessible on the Hawaii.gov website.12 In other words,

to a hasty political and professional demise for the Kealohas.

power. For instance, on November 9, 2009, an acquaintance of the Kealohas

Chief.”13 In response to that note, a Facebook account titled “Alison Leewong”

recollection of meeting Wong.

Original Statement Altered Statement

“Alison” makes it appear she is “working to resolve” various bank-related issues. In

later obtained the requested loan.

which included Kealoha talking to herself as Alison Lee Wong—to Bickerton:

to stave off scrutiny.14

b. As these facts make clear, Alison Lee Wong is a pivotal figure in

Kealoha’s use of Wong is admissible for several, independent reasons: as evidence

404(b) to prove identity,15 modus operandi, motive, knowledge, and absence of

159 (4th Cir. 2016) (unpublished) (“Evidence of a defendant’s use of an alias or

nickname is admissible if relevant to identification of the defendant in connection

in cases where identity is at issue.”).16 This highly relevant evidence is not

2. Katherine’s Successful Effort to Convince the Taitos to Lie to the

investigating Katherine Kealoha’s involvement in the mailbox conspiracy. After

Katherine Kealoha’s direction and lied.

obstruction is therefore highly probative of the coordinated conspiracy to attempt to

mislead the grand jury.

evidence was not substantially outweighed by its prejudicial effect”; citations

by a criminal defendant to suppress evidence is probative of consciousness of guilt

and admissible on that basis.”).17

The Kealohas contend that “the Puana financial malfeasance evidence is

Puanas—along with the other interrelated fraud—explains the Kealohas’ efforts to

“Gerard Puana” in their surveillance video? We incorporate by reference ECF No.

389 for the remainder of the argument here.

investigation evidence a consciousness of guilt that further supports the jury’s

One, “remoteness” is a Rule 404(b) concept. It does not apply to evidence