# Petition — Pulawa v. Hawaii

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 925

## Text

) Supreme Court, U. &
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Iu the Supreme Cott . ree 2s 197

OF THE

MICHAEL RODAK, JR., CLERK
United States

OcToBER TERM, 1977

—_——
————_

No @7-1197

Witrorp K. Purawa, Sr., also known as Nappy
Pulawa; Arvin Grorce Kaonu; Rosert R.
Wison, also known as Bobby Wilson;
DANNETTE BEIRNE LEoTA, also known
as Sister and Henry JAMES HANALFI
Hora, also known as
Henry W. Huihui,

Petttioners,

Mere
| Srate or Hawan,
<i _ Respondent.

— ——
PETITION FOR A WRIT OF CERTIORARI
to the Supreme Court of the State of Hawaii

———=

Davin C. ScHUTTER,
888 Mililani Street,
Honolulu, Hawaii 96813,

Attorney for Petationers
Pulawa and Kaohu.

Brook Hart,

735 Bishop Street, Suite 433,
Honolulu, Hawaii 96813,

Attorney for Petitioners
Huthui, Leota and Wilson.

— — —} — ——————
— OO

————
PERNAU - WALSH PRINTING CO. - 562 MISSION STREET . GAN FRANCISCO, CA 94105
A BOWNE COMPANY

Page

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Constitutional provision involved ...............0ecceeeee 3
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I. The opinion of the Hawaii Supreme Court attempts to

II.

circumvent the constitutional question presented by
this case and vitiates the protections afforded by the
Fifth Amendment Double Jeopardy Clause of the
United States Constitution; it fails to protect the
Petitioners against a second trial caused by prose-
eutorial negligence amounting to prosecutorial mis-
GES bil ceedanddnnkseddebhsceeneeséadnctssacses
The standard regarding the degree of prosecutorial
misconduct or negligence sufficient to bar retrial is
uncertain; consistency and certainty within the Crim-
inal Justice System requires clarification and guidance
by the United States Supreme Court ...............

Table of Authorities Cited

Cases _Pages
Ancient Egyptian Arabic Order of Nobles of the Mystic
Shrine v. Michaux, 279 U.S. 737, 49 S.Ct. 485, 73 L.Ed.

ee GD pd nnnddecepedlGaensanbecarsebeseucasesas 9
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20

a CE vcs cceaseciechdbedoddeedaddeieus es 1l
Giglio v. United States, 405 U.S. 150 (1972) ............. 10
Green v. United States, 355 U.S. 185, 78 S.Ct. 221, 2 L.Ed.

Pt drnsceedessuseudsstnesedaedbanesenetcs 9
Mullaney v. Wilbur, 421 U.S. 684 (1975) ................ 9
Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct.

Se ae Se SE ED nc cncvntacdeacéiweeoscecte 9
United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47

ET SED euil's 66 Naweeedes ohne ERE ORSdebe 9
United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.

Be MED Sccddintn sus opiate cihndidadidtins cutidhs 10
United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976) ... 10
United States v. Martin, 561 F.2d 135 (8th Cir. 1977) .... 10

Constitutions
United States Constitution:
EE he nbcadidds bncdeseetikessedsceiead 2,3,4,8
PE ED. oidus cigubece nt ceweddvavneenuewene 4
Hawaii Constitution, Article One ...........ccccccccccces 4
Statutes
et Sy SED. oc daneusuinisenasiuesbucséeassesaert 2
Rules
Hawaii Rules of Civil Procedure, Rule 52 ................ 8

Iu the Supreme Court

OF THE

Rnited States

OctToBER TERM, 1977

No.

WitForp K. Puiawa, §r., also known as Nappy
Pulawa; ALVIN GrorcGE KaoHuvu; Rosert R.
Wus0n, also known as Bobby Wilson;
DANNETTE BEIRNE LEoTA, also known
as Sister and HENRY JAMES HANALEI
HvrHul, also known as
Henry W. Huihui,

Petitioners,

vs.

Strate or Hawan,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
to the Supreme Court of the State of Hawaii

The petitioners, and each of them, respectfully pray
that a writ of certiorari issue to review the judgment
and opinion of the Supreme Court of the State of .
Hawaii entered in this proceeding on September 29,
1977, rehearing denied on December 6, 1977.

2

' OPINION BELOW

The published opinion of the Hawaii Supreme
Court is attached hereto as Appendix A. The un-
published decision and amended order of the Circuit
Court of the First Circuit, State of Hawaii, regard-
ing petitioners’ motion to dismiss on Double Jeopardy
grounds are attached hereto as Appendix B. The
order and the unpublished oral opinion of the Cireuit
Court of the First Circuit, State of Hawaii, dismiss-
ing the conspiracy counts and declaring a mistrial are
attached hereto as Appendix C. The unpublished
opinion of the Hawaii Supremé Court denying re-
hearing is attached hereto as Appendix D.

JURISDICTION

The judgment of the Hawaii Supreme Court was
entered on September 29, 1977 and rehearing was de-
nied on December 6, 1977. The order remanding the
matter for trial was filed on January 7, 1978. The
Court’s jurisdiction is invoked under 28 USC
§1257(3).

QUESTION PRESENTED

Does the Double Jeopardy Clause of the Fifth
Amendment prevent retrial of the petitioners after
their original trial ended in a mistrial caused by
gross prosecutorial negligence ?

3

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment V:

No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a pre-
sentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of
War or public danger; nor shall any person be
subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against him-
self, nor be deprived of life, liberty, or property,
without due process of law; nor shall private
property be taken for public use, without just
compensation.

STATEMENT OF THE CASE

I. Judicial Proceedings

The petitioners were indicted on February 13, 1974
for the crimes of murder, kidnapping and conspiracy
to commit murder and conspiracy to commit kidnap
ping.’ The jury trial of petitioners commenced on
April 29, 1974. The State rested its case on July 8,
1974. On July 11, 1974, the trial court dismissed the
conspiracy counts on the grounds that prosecution
was barred by the statute of limitations; the prosecu-
tion had presented no evidence to support a con-
spiracy to commit the substantive crimes within the
period permitted by the statute of limitations. At

‘Specifically, all of the petitioners were with conspiracy
to commit the murders and kidnappings of ont Constancio
Nery and Dennis Masaichi Tha, while the actual murders and
kidnappings were attributed to individual petitioners as perpe-
trators, principals and accessories.

4

that same time, the court declared a mistrial on the
counts of murder and kidnapping essentially on the
ground that the prosecution’s conduct had resulted
in the admission of evidence in support of the con-
spiracy counts which had prejudicially and incurably
infected the proceedings. (Appendix C)

Defense counsel filed a motion to bar retrial and
to dismiss the remaining charges on the ground that
retrial would be in violation of the Double Jeopardy
Clause of the Fifth Amendment to the United States
Constitution, the Fourteenth Amendment to the
United States Constitution, and Article One of the
Hawaii Constitution. The trial court at that time
stated that the prosecution had been “negligent
amounting to misconduct,” which petitioners assert
as tantamount to gross negligence, in the preparation
and presentation of the case against petitioners. The
trial court therefore granted the motion as to peti-
tioners Pulawa and Kaohu; but the motion was de-
nied as to petitioners Huihui, Leota and Wilson on
the ground that they had consented to the mistrial.
Over 3 years later, the Hawaii Supreme Court, on
September 29, 1977, reversed the trial court’s ruling
as to petitioners Pulawa and Kaohu and affirmed as
to petitioners Huihui, Leota and Wilson. The case
was remanded for retrial as to all petitioners,

Il. Facts of the Proceedings

The prosecution presented no evidence of a con-
spiracy to commit the substantive crimes charged
falling within the statute of limitations. (Appendix

C). At the time of indictment the prosecution was
aware that the statute of limitations had run on the
conspiracy counts and that they had no evidence to
support an attempt to conceal any such conspiracy.’
Even so, conspiracy was charged enabling the State
to present highly prejudicial and incompetent evi-
dence in the nature of hearsay and double hearsay
suggesting that petitioners were key figures in organ-
ized crime in Hawaii and had actually participated
in at least 3 other murders and numerous illegal

*Deputy Prosecutors Weight and Halstead drafted the indict-
ment and Deputy Prosecutor Grean presented the State’s case
to the jury. The following statements are from the transeript on
the motion to dismiss.

p. 646 [Weight] ah

A. My best recollection is that I was aware that there
was the statute of limitations question and that we discussed
it.

Q. By “we discussed it,” who did you discuss it with?

A. Douglas Halstead and myself.

p. 695 [Halstead]

Q. But whether you and Mr. Weight discussed this
problem with other men or women in the officeo——

A. I didn’t.

p. 714 [Halstead]

Q. Did you have any evidence other than silence in the
two year period before February 13, 1974 to bring into the
courtroom?

A. No specific overt acts.

p. 717 [Grean]
Q. Did you and Mr. Weight discuss the case?
A. I don’t believe so.

p. 718 [Grean]

A. The only time I became familiar with the statute of
limitations in connection with this case was when it was
raised by Mr. Hart [defense co-counsel], and, at the end of
trial. That is when it first dawned on me.

p. 719 [Grean}

A. At the time [of mistrial declaration] I didn’t par-
ticularly care whether the statute of limitations had run or
not.

6

transactions, including gambling and extortion.’ Pre-
trial discovery was extremely limited in the State’s
favor and petitioners reasonably assumed the State
would produce evidence in support of the conspiracy

SSee transcript of June 21 and 24:
Handa—State witness on direct exam.
pp. 104-105
A. It was about February, I don’t remember the date
but only I know Harry Otake was killed a few weeks after.

Q. " And you mentioned Harry Otake?

A. Yes.

2. Is the date before or after Harry Otake’s death?
B 137- 138 (re: conversation with a defendant)

A. I said I don’t have $20,000, but if you don’t have
the $20,000, you better get the hell out of here, this Island.

A. If you don’t have the $20,000, well, Mr. Pulawa says,
we still keep running gambling game, you are going to pay
me $200 a week
pp. 172-173

A. Well, since 1970 I gambling, running, you know,
gamblings game and between four years’ time a lot of people
get killed and still paying dues for these people so I make
up my mind tell ’em the Court the truth what happens in
1970 my apartment.

Q. You mentioned a couple of gamblers that were killed?

A. Yes.

Q. you remember their names?

[objections]

See Transcript of July 1 and 2:
Ryder—State witness on direct exam.
p. 15

A. Yeh. We all left the same time. Then we got out
there, we driving towards Mokuleia, by the quarry. Then
Nappy said, we put ‘em over here where the Pake stay,
meaning Francis Young. He’s buried out there some place.

Q. How do you know that?

A. Because him and Henry did it.

p. 65

—_ It’s when they had the State Fair, when Miranda got

killed.

Q. Now, what was the purpose of getting together?

A. Going move on the Orientals; take away all the——
control all the gamblings and everything illegal in the State.
[objections]

7

charge. Defense counsel’s numerous objections to the
admission of the prejudicial evidence were overruled,
as the evidence was considered by the court to be
relevant to the charged conspiracy counts. .

When the trial court dismissed the conspiracy
counts it raised sua sponte the contamination of the
evidence issue.* The prejudice to petitioners was ob-
vious and defense counsel did not oppose the court’s
suggestion that a mistrial was necessitated. In its
opinion on petitioners’ motion to bar retrial, the trial
court specifically cited prosecutorial misconduct as
the ultimate reason for the mistrial. (Appendix B).
Thus, petitioners’ constitutional right to a fair trial
by that particular tribunal was thwarted by the pros-
ecution’s gross negligence, resulting in unnecessary
suffering, anguish, expense, and delay on the part of
petitioners.

The Hawaii Supreme Court, in order to avoid the
constitutional question, construed its own Rules of
Procedure,’ and recharacterized the trial court’s find-

‘See Transcript of July 8-10, 11.
566

p.

The Court: Mr. Grean, assuming that the Court grants

the motion relating to the statute of limitations and throws

out the conspiracy charges, what does that do to the State
of the evidence?

Mr. Grean: Nothing.

The Court: Why not? Much of the evidence that was
brought in was based on the conspiracy and the evidentiary
conspiracy.

‘Hawaii Rules of Civil Procedure, Rule 52, states:

Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity
of the trial court to judge of the credibility of the witnesses.

At the hearing on the motion to dismiss the trial judge
heard the testimony of 3 deputy prosecutors and determined

8

ings, labeling the issue as one of evidence. (Appendix
A). In addition, it ruled that the prosecution’s con-
duct was simply negligent and that the hearsay and
double hearsay evidence was admissible regardless.
Petitioners contend that this transparent attempt to
circumvent their constitutional rights must be aborted.

REASONS FOR GRANTING THE WRIT

I. The opinion of the Hawaii Supreme Court attempts to cir-
cumvent the constitutional question presented by this case
and vitiates the protections afforded by the Fifth Amendment
Double Jeopardy Clause of the United States Constitution;
it fails to protect the Petitioners against a second trial caused
by prosecutorial negligence amounting to prosecutorial mis-
conduct.

II. The standard regarding the degree of prosecutorial miscon-
duct or negligence sufficient to bar retrial is uncertain; con-
sistency and certainty within the Criminal Justice System
requires clarification and guidance by the United States
Supreme Court.

The Hawaii Supreme Court, without declaring the
trial court’s findings “clearly erroneous” as required
by its own Rules of Procedure,’ found the prosecu-
tion merely negligent and, as an afterthought, ruled
that the prejudicial evidence was admissible anyway,
thereby coloring the constitutional double jeopardy
issue as mere evidentiary misunderstanding. It is

from that testimony that there had been gross prosecutorial
negligence. While Rule 52 is a civil rule, its application
should extend to criminal proceedings where an evidentiary
hearing is held and findings of facts based thereon are
issued by the judge.

*Id.

9

clear that such an obvious subterfuge by a State
court to deny a constitutional right by interposing a
nonfederal ground without fair support will not be
tolerated by this Court. Radio Station WOW v.
Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092
(1945) ; Ancient Egyptian Arabic Order of Nobles of
the Mystic Shrine v. Michaux, 279 U.S. 737, 49 S.Ct.
485, 73 L.Ed. 931 (1929). See also: Mullaney v. Wil-
bur, 421 U.S. 684 (1975).

In examining the facts of this case, the underlying
policy of the Double Jeopardy Clause is of utmost
importance. The State with great power and re
sources should not be allowed to make repeated at-
tempts to convict a person for an alleged offense,
thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a continu-
ing state of anxiety and insecurity, as well as en-
hancing the possibility that even though innocent he
may be found guilty. Green v. United States, 355
U.S. 185, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
The petitioners herein were indicted over four years
ago and are presently facing a new trial for the same
offenses.

While this Court has made a distinction between
mistrials granted sua sponte and those at defendant’s
request, petitioners claim that the Double Jeopardy
Clause bars retrial in their case since the underlying
prosecutorial error was “. . . motivated by bad faith
or undertaken to harass or prejudice the defendant.”
United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct.
1075, 47 L.Ed.2d 267 (1976). Mere negligence on the

10

part of the prosecutor will not activate a defendant’s
Double Jeopardy rights to bar retrial, but it is clear
that where prosecutorial overreaching is present, the
interest protected by Double Jeopardy outweighs so-
ciety’s interest in conducting a second trial. United
States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27
L.Ed.2d 543. (1971); United States v. Kessler, 530
F.2d 1246, 1255-56 (5th Cir. 1976).

Therefore, the inquiry must center on the prosecu-
tor’s conduct. The prosecutor’s office is an entity and
has a heavy burden to insure communication of rele-
vant information. Giglio v. United States, 405 U.S.
150, 154 (1972). Negligence is apparent in their total
failure to uphold that burden, but to what degree?
Did the prosecutor’s conduct constitute gross negli-
gence amounting to prosecutorial overreaching de-
signed to harass the petitioners?

In Unted States v. Martin, 561 F.2d 135 (8th Cir.
1977), the Eighth Circuit Court of Appeals made it
clear that gross negligence on the part of the prosecu-
tion could be just as detrimental to the defendant’s
rights as intentional misconduct. In Martin the
prosecution introduced prejudicial grand jury testi-
mony which included improper comments by the
prosecution and the grand jurors. The facts in the
instant case are even more compelling in that, in
essence, the improper comments were accusations of
murder. A more evident attempt by the prosecution
to unfairly prejudice a defendant would be difficult
to imagine. See United States v. Martin, supra, at
140.

11

The record in the case could not be more indicative
of such gross negligence absent an admission of in-
tent by the prosecutor. The prosecution was aware of
and displayed a total lack of concern for the fact that
the statute of limitations had run on the conspiracy
counts. In fact, the State introduced highly preju-
dicial evidence citing the conspiracy as the foundation
for its admission, insinuating that petitioners were
responsible for at least three other murders and
numerous extortions. In addition, the prosecution’s
reckless conduct resulted in a severe tactical dis-
advantage to petitioners; for example, the conspiracy
counts rendered a Bruton motion useless, Bruton v.
United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d
476 (1968).

The prosecution’s overzealous effort to convict the
petitioners by introducing unrelated criminal activity
with the implication that petitioners were responsible
was predicated on the conspiracy charges which were
absolutely invalid, and which the prosecutors knew
were invalid. The record is the best evidence of the
prosecution’s gross negligence which was paramount
to an intentional disregard for the law and for the
rights of petitioners.

CONCLUSION
Accordingly, this Court should grant certiorari in
order to affirmatively respond to the needs of the fair
administration of criminal justice in this country. In

12

view of the presentation set forth above, we respect-
fully submit that this petition for writ of certiorari
is meritorious and should be granted.

Respectfully submitted,
Davin C. ScHUTTER,
Attorney for Petitioners
Pulawa and Kaohu.
Brook Hart,
Attorney for Petitioners
Huihui, Leota and Wilson.

February, 1978.

(Appendices Follow)

Appendices

Appendix A

In the Supreme Court of the State of Hawaii

October Term 1976

State of Hawaii,
Plaintiff-Appellant,
vs.
Wilford K. Pulawa, Sr., also known as
Nappy Pulawa, and Alvin George

Kaohu,
Defendants- Appellees.

and

State of Hawaii,
Plaintiff-A ppellee,
vs. .

Robert R. Wilson, also known as Bobby
Wilson, Dannette Beirne Leota, also
known as Sister, and Henry James

Hanalei Huihui, also known as Henry
W. Huihui,

Defendants-Appellants. :

[Filed Sep. 29, 1977]

Appeal from First Circuit Court

No. 5917

No. 5923

Honorable Walter M. Heen, Judge

ii

RicHarpson, C.J., KopayasHi, Oaata,
MENoR and KiIpwELL, JJ.

Former Jeopardy—mistrial—defendant’s consent—
manifest necessity
Where a mistrial is declared without the con-
sent of the defendant, and there is an absence of
manifest necessity for the mistrial, a retrial will
be barred by double jeopardy.

Same—same—same—judicial or prosecutorial error

Where the defendant moves for or consents to
a mistrial, even though the consent is neccssitated
by judicial or prosecutorial error, the barrier to
reprosecution is ordinarily removed.

Same — mistrial — defendant’s motion — judicial or
prosecutorial overreaching

Where the defendant’s mistrial motion is the
necessary response to judicial or prosecutorial
overreaching designed to avoid an acquittal, or is
necessitated by deliberate misconduct which has
for its intended purpose the denial of the de-
fendant’s constitutional right to a fair trial, and
such bad faith conduct has resulted in serious
and incurable prejudice to the defendant, re-
prosecution will be barred.

Conspiracy—evidence—admissibility
A conspiracy may always be shown as an evi-
dentiary fact to prove participation in the
substantive crime, and a formal charge in the
indictment is not a necessary predicate to the ad-

sii

missibility of facts and circumstances showing

the existence of a conspiracy to commit the prin-

cipal offense charged.
Same—same—same—declarations of co-conspirator

The prosecution is entitled to adduce evidence
of declarations made by a co-conspirator pur-
suant to and in furtherance of the conspiracy,
and such declarations are admissible against the

other conspirators.
Same—same—same—judicial discretion
The reception of evidence touching upon the
existence of conspiracy is necessarily subject to
the exercise of sound judicial discretion.

Per Curiam. On February 13, 1974, the defend-
ants were indicted for the crimes of kidnapping, con-
spiracy, and murder. Specifically, the indictment
charged that the defendants had conspired with one
another to kidnap Dennis Masaichi Iha and to mur-
der Lamont Constancio Nery and Dennis Masaichi
Tha, and that they did in fact kidnap Lamont Con-
stancio Nery and Dennis Masaichi [ha and did in
fact murder Lamont Constancio Nery and Dennis
Masaichi Iha. Mr. Brook Hart represented defend-
ants Huihui, Leota, and Wilson. Mr. David Schutter
represented defendants Kaohu and Pulawa.

The trial of the defendants before a jury com-
menced on April 29, 1974. The State rested its case
on July 8, 1974. On July 11, 1974, the trial court
dismissed the conspiracy counts on the ground that

iv

prosecution was barred by the statute of limitations.
At the same time the court declared a mistrial on the
counts of kidnapping and murder, essentially on the
ground that the admission of evidence supportive of
the conspiracy counts, which it had dismissed, had
prejudicially infected the proceedings as to these
remaining counts in the indictment. On April 21,
1975, Mr. Hart and Mr. Schutter jointly filed a mo-
tion to dismiss the remaining charges in the indict-
ment, on the ground that a retrial would constitute
double jeopardy, in violation of Article I of the Ha-
waii Constitution, and in violation of the Fifth and
Fourteenth Amendments to the United States Con-
stitution, The trial court granted the motion as to
defendants Pulawa and Kaohu but denied it as to
defendants Huihui, Leota, and Wilson, explaining:
“This would conclude the matter at this point
were it not for the fact that as to the defendants
Huihui, Wilson and Leota, the Court finds that
there was consent to the declaration of the mis-
trial. The arguments proposed by counsel for
those defendants when the Court raised the ques-
tion of mistrial indicates clearly that the defend-
ants did not merely consent to, but urged the
mistrial upon the Court. The mere written ree-
ord does not reflect the vigor and zeal with which
counsel urged the action upon the Court.

“Insofar as the defendants Pulawa and Kaohu
are concerned, we are faced with another situa-
tion. Counsel for those defendants did not join
in the argument propounded by counsel for
Huihui, Wilson and Leota. While there would
appear to be tacit joinder in the argument and
consent to the mistrial, the cases regarding mis-

v

trial indicate quite strongly that more positive
evidence of consent is required. There is insuffi-
cient showing of consent by those defendants
indicated in this case. Therefore, as to the de-
fendants Pulawa and Kaohu, the Court finds
that a re-trial of the charges as to them would
violate the constitutional prohibition against
double jeopardy. Therefore, the charges will be
dismissed as to defendants Pulawa and Kaohu.”

Defendants Huihui, Leota, and Wilson appeal from
the amended order denying their motion to dismiss
the indictment against them, and the State appeals
from that portion of the order dismissing the charges
against defendants Pulawa and Kaohu.

I

Where a mistrial is declared without the consent
of the defendant, and there is an absence of manifest
necessity for the mistrial, a retrial will be barred by
double jeopardy. United States v. Perez, 22 U.S.
(9 Wheat.) 579 (1824); United States v. Jorn, 400
U.S. 470 (1971); HRS §701-110(4). At issue ini-
tially, therefore, is, whether all of the defendants
consented to the mistrial, The record shows that they
did.

The State offered its first witness on June 21, 1974.
The State’s two principal witnesses were Clarence
Handa and Roy Ryder. Mr. Handa finished testify-
ing on June 25, 1974. Mr. Ryder took the stand on
July 1, 1974, and completed his direct testimony just
before court adjourned on that day. On the following
day, July 2, 1974, Mr. Schutter and Mr. Hart jointly

vi i
filed a written motion for mistrial based on what they
asserted was prejudicial testimony elicited by the
State, over their objection, from Mr. Handa and Mr.
Ryder. This motion for mistrial, with other defense
motions,’ was heard on July 10, 1974, after the State
had rested its case. Mr. Schutter argued for the mo-
tion for mistrial, and on at least two occasions Mr.
Hart was asked by the court if he joined in Mr.
Schutter’s motion for mistrial. Both times Mr. Hart
replied in the affirmative. The trial court took the
various motions under advisement, and on July 11,
1974, announced its rulings. The motion for mistrial
was granted and it was Mr. Schutter who prepared

1The following are excerpts from the transcript of the proceed-
ings of July 10, 1974:

THE COURT: Very well. Who is going to argue first?
Mr. Schutter or Mr. Hart?

MR. SCHUTTER: Well, we have three motions, Your
Honor.

THE COURT: We'll get to that after we find out which
one of you is going to argue first.

MR. HART: Well, it would depend on which motion the
eourt——

THE COURT: I see. All right. Which motion, well, let’s
take the motion for mistrial first then.

MR. SCHUTTER: In connection, Your Honor, with the
motion for a mistrial, I simply note for the record that we
have filed a written motion for mistrial on the heels of a
number of oral requests therefor, on July 2, 1974. That
motion incorporated a memorandum and point of authorities
and Exhibit A, that at the same time we filed that’s entitled
Supplemental Memorandum in Support of the Motion for
Mistrial, and Exhibit A, thereto.

* oe * e

MR. SCHUTTER: ... We would submit the motion for
mistrial based on that record.

THE COURT: Mr. Hart, you are not arguing on this
motion? You’re joining——

MR. HART: I join Mr. Schutter’s motion. I see no
reason to repeat his argument.

vii

the order “granting motion for mistrial,” which was
filed on July 15, 1974.

The order terminating the prosecution was clearly
in response to a motion made by the defendants. That
the trial court granted the motion on grounds not
originally and expressly advanced by the defendants
at the time they filed their written motion is not of
material consequence. For +hat matter, the ground
finally adopted by the court in granting the motion
was predicated upon the very point raised by both
Mr. Schutter and Mr. Hart in oral argument.’ Hay-
ing moved for a mistrial, and the trial court having
considered their request and declared a mistrial, de-
fendants Pulawa and Kaohu cannot now be heard to
complain that the termination of the prosecution was
without their consent. HRS § 701-110(4) (a) ; see also,
MacPherson v. State, 533 P.2d 1103 (Alaska), cert.
denied 423 U.S. 871 (1975) ; People v. Kelly, 132 Cal.
App. 118, 22 P.2d 526 (1933).

*MR. HART: .. . Our position on that thing, Your
Honor, is the jury has been unfortunately and unnecessarily
infected with all that evidence and no instruction from the
court could cure such a thing, and the court would have to
declare a mistrial. It’s as th we tried the
of the case and found that the case we tri

case had no business being there in the first place; that the
government had no business charging them and as a result
it’s a do over.

. o * o

MR. SCHUTTER: Your Honor, had there been no con-
spiracy charged, many of the hearsay statements offered in
evidence by the prosecution, hearsay statements ts primarily
made by one defendant—I don't believe there is any evi-
dence in the casc that anybody else ever said

all of the evidence is things said by Mr. Pulawa, would not
have been admissible in any way, shape or form, under any
theory against my other client, Mr. Kaohu, or against any
of Mr. Hart’s three clients.

Furthermore, the record shows that after the decla-
ration of mistrial and before the jury was discharged,
the State moved to be allowed to take an interlocu-
tory appeal from the order and requested that the
jury not be discharged pending the determination of
the appeal. This was tantamount to a request for a
stay of the order declaring a mistrial. Both Mr. Hart
and Mr. Schutter, however, opposed the State’s mo-
tion and urged instead that the jury should be
discharged. Thereupon the court denied the State’s re-
quest and advised the jury that “the court has granted
the defense motion for mistrial which means that this
trial is ended.” Under these circumstances it cannot
reasonably be said that the defendants did not con-
sent to the declaration of mistrial and the resulting
discharge of the jury. Cf. Adkins v. Smith, 205 So.2d
530 (Fla. 1968). From the record, we find that the
trial court erred in holding that defendants Pulawa
and Kaohu did not consent to the mistrial.

II

Where the defendant consents to a declaration of
mistrial, even though the consent is necessitated by
judicial or prosecutorial error, the barrier to reprose-
cution is ordinarily removed; United States v. Dinitz,
424 U.S. 600 (1976); United States v. Jorn, supra;
United States v. Kessler, 530 F.2d 1246 (5th Cir.
1976) ; United States v. Jamison, 505 F.2d 407, 410
(D.C. Cir. 1974). This principle is consistent with
the double jeopardy consideration that the defendant
should “retain primary control over the course to be

followed in the event of such error.” Id. at 609. In
Jorn, the Supreme Court held:

If that right to go to a particular tribunal is
valued, it is because, independent of the threat
of bad-faith conduct by judge or prosecutor, the
defendant has a significant interest in the deci-
sion whether or not to take the case from the
jury when circumstances occur which might be
thought to warrant a declaration of mistrial. Thus,
where circumstances develop not attributable to
prosecutorial or judicial overreaching, a motion
by the defendant for mistrial is ordinarily as-
sumed to remove any barrier to reprosecution,
even if the defendant’s motion is necessitated by
prosecutorial or judicial error. 400 U.S. at 485.

However, where the defendant’s mistrial motion is
the necessary response to judicial or prosecutorial
misconduct designed to avoid an acquittai, or is neces-
sitated by deliberate misconduct which has for its
intended purpose the denia! of the defendant’s consti-
tutional right to a fair trial, reprosecution will be
barred. United States v. Dinitz, supra; United States
v. Jorn, supra; United States v. Kessler, supra, A
basic policy underlying the Double Jeopardy Clause
is to relieve the defendant of the substantial burdens
imposed by multiple prosecutions. United States v.
Dinitz, supra. Accordingly, where the defendant is
provoked by judicial or prosecutorial overreaching
into requesting a mistrial and his motion is granted,
he may not be retried for the same offense. Id. This
result will necessarily obtain where the bad faith con-
duct charged has seriously and incurably prejudiced

xX

the defendant in his defense. See United States v.
Kessler, supra.

Having determined that all of the defendants con-
sented to the declaration of m strial, we now reach
the crucial issue of whether there was prosecutorial
overreaching in this case, If there was, and serious
and incurable prejudice to the defendants was its
logical concomitant, then the motion to dismiss should
have been granted for all defendants and not only
as to defendants Pulawa and Kaohu.

The thrust of the defendants’ allegations of prose-
cutorial overreaching is that the State exercised bad
faith in charging them with conspiracy; that as a
proximate result of the State’s conduct they were
seriously prejudiced in their defense to the remain-
ing counts of the indictment, inasmuch as certain
prejudicial evidence adduced before the jury would
not have been allowed by the court in the absence
of the formal charges of conspiracy.’

We have examined the record, including the tran-
script of the proceedings in the circuit court, and

*The trial court apparently accepted the view of the defendants
that the presence of a conspiracy charge in the indictment, or the
absence thereof, was material to the question of admissibility:

There is also a growing body of thought in the field of
criminal law that the charge of conspiracy, brought together
with other charges of substantive crimes, gives to the gov-
ernment an advantage over the defendants which is unfair
in the extreme. This is because, in particular, that on the
basis of a conspiracy charge a statement made by one de-
fendant can be used against other defendants who are
alleged to be part of the conspiracy. It should be noted here
that this is precisely what happened in the case at bar. All
of the testimony indicated that all incriminating statements
were made by defendant Pulawa.

xi

have come to the conclusion that there was no prose-
eutorial overreaching in this case. The prosecution
obviously erred in its assessment of the evidence avail-
able to support the formal charges of conspiracy.
This error was compounded by its faulty interpre-
tation of the applicable statute of limitations. But
there was no deliberate misconduct in the charging of
the conspiracy offenses. At worst, there might have
been prosecutorial negligence involved.‘ But simple
negligence falls far short of the prosecutorial over-
reaching requisite to the imposition of the double
jeopardy prohibition to a retrial. Muller v. State,
478 P.2d 822 (Alaska 1971) ; United States v. Beasley,
479 F.2d 1124 (5th Cir.) cert. denied 414 U.S. 924,
reh. denied 414 U.S. 1052 (1973).

The defendants take the position that the State at-
tempted deliberately to gain an unfair trial advantage
by formally charging them with conspiracy. But the
rule is that a conspiracy may always be shown as
an evidentiary fact to prove participation in the sub-
stantive crime, and a formal charge in the indictment
is not a necessary predicate to the admissibility of
facts and circumstances showing the existence of a

*When ruling upon the motion for mistrial, the court made
the following finding:

The evidence adduced at the hearings on Defendants’
motion indicates clearly that there was prosecutorial negli-
gence in preparing the indictment and in pre-trial prepara-
tion, in that there was little, if any, communication within
the prosecutor’s office regarding the theories of the deputies
who prepared the indictment and the evidence to support
the inclusion of the conspiracy charges. The ultimate result
of this prosecutorial negligence was that there was no
attempt during trial even to introduce evidence showing

a continuing conspiracy.

xii

conspiracy to commit the principal offense charged.
The law is clear in this regard. See Territory v.
Blackman, 32 Haw. 460, 464-466 (1932); State v.
Yoshino, 45 Haw. 640, 372 P.2d 208 (1962) ; Territory
v. Goto, 27 Haw. 65 (1923); 16 Am.Jur.2d, Con-
sptracy, § 37. The charges of conspiracy in this case
were directed towards the substantive crimes for
which the defendants were also charged in the indict-
ment. It would make no difference, therefore, on the
question of evidentiary admissibility whether or not
conspiracy to commit these particular offenses was
formally charged.

The prosecution is generally entitled to show the
entire history of a conspiracy to commit crimes, in-
cluding the substantive crimes charged, from the time
of its inception until its consummation. Territory v.
Blackman, supra; Territory v. Kitabayashi, 41 Haw.
428, 434-436 (1956). It is entitled to adduce evidence
of declarations made by a co-conspirator pursuant to
and in furtherance of the conspiracy. Such declara-
tions are admissible against the other conspirators.
State v. Yoshino, 45 Haw. 206, 364 P.2d 638 (1961) ;
Territory v. Blackman, supra; Territory v. Kitabay-
ashi, supra. Defendant Pulawa’s declarations fall into
this category.

The evidence of which the defendants complain was
not limited to the formal charges of conspiracy. If
admissible, it was admissible both as to the charges
of conspiracy and as to the substantive crimes
charged. We have examined the record, and while we
are not called upon to decide the propriety of the

separate evideutiary rulings of the trial court, we are
constrained to observe that much of this evidence was
admissible with respect to the substantive crimes
charged. The reception of evidence touching upon the
existence of a conspiracy is necessarily subject to the
exercise of sound judicial discretion. Territory v.
Goto, supra. If error was committed in the reception
of certain of the evidence, it was judicial error. There
was no judicial overreaching in this case, and none
has been charged.

The amended order denying the motion to dismiss
the charges against defendants Huihui, Leota, and
Wilson is affirmed, and that part of the order grant-
ing the motion to dismiss the indictment against de-
fendants Pulawa and Kaohu is reversed. Remanded.

/s/ William 8. Richardson
/s/ Bert T. Kobayashi

/s/ Thomas 8S. Ogata

/s/ Benjamin Menor

/s/ H.B. Kidwell

Roy Chang, Deputy Prosecuting Attorney (George
Yamamoto, Deputy Prosecuting Attorney, on the
briefs) for plaintiff-appellant, cross-appellee

Brook Hart for defendants-cross-appellants, Huihui,
Wilson and Leota

David C. Schutter for defendants-appellees Pulawa
and Kaohu

xiv
Appendix B
In the Cireuit Court of the First Circuit
State of Hawaii
Or. No. 46476
State of Hawaii, )

vs.

Wilford K. Pulawa, Sr., also known as Nappy
Pulawa, Alvin George Kaohu, Robert R. Wil-
son, also known as Bobby Wilson, Dannette
Beirne Leota, also known as Sister, and Henry
James Hanalei Huihui, also known as Henry
W. Huihui,

ie

Defendants.
Z

[Filed Jun. 2, 1975]

AMENDED ORDER

Based upon the decision heretofore rendered on
Defendants’ Motion to Dismiss, it is hereby order that
all charges herein against the defendants Wilford K.
Pulawa, Sr. and Alvin George Kaohu be and they are
hereby dismissed.

Said defendants will be discharged and all bail or
bond cancelled.

xv

The Motion to Dismiss on behalf of defendants
Robert R. Wilson, Dannette Beirne Leota, and Henry
James Hanalei Huihui is denied.

Dated: Honolulu, Hawaii, June 2, 1975

/s/ Walter M. Heen,
Judge of the Above Entitled Court

DECISION

Defendants’ motion to dismiss raises the question
whether another trial of the kidnapping and murder
charges still pending against them would be in viola-
tion of the Constitutional prohibition against double
jeopardy.

Defendants contend that inclusion of the conspiracy
charges in the indictment was a ploy by the Govern-
ment to support evidence otherwise inadmissible. This,
defendants argue, was prosecutorial misconduct which
created the necessity for the declaration of mistrial by
this Court on July 11, 1974.

The Government’s theory in preparing the indict-
ment that there was a continuing conspiracy was ex-
tremely tenuous in light of the evidence known to the
Government at that time. The other theory of the
Government resulted from a negligent reading of the
statute of limitations and lack of knowledge of the
existence of a substantive crime of “compounding.”

The evidence adduced at the hearings on Defend-
ant’s motion indicates clearly that there was prose-
cutorial negligence in preparing the indictment and
in pre-trial preparation, in that there was little, if

xvi

any, communication within the prosecutor’s office re-
garding the theories of the deputies who prepared
the indictment and the evidence to support the in-
clusion of the conspiracy charges. The ultimate re-
sult of this prosecutorial negligence was that there
was no attempt during trial even to introduce evi-
dence showing a continuing conspiracy.

There is a growing body of law to the effect that
prosecutorial negligence can be as damaging to the
defendants’ rights to a fair trial as deliberate prosecu-
torial action and that such negligence should be con-
sidered as prosecutorial misconduct.

There is also a growing body of thought in the field
of criminal law that the charge of conspiracy, brought
together with other charges of substantive crimes,
gives to the government an advantage over the defend-
ants which is unfair in the extreme. This is because,
in particular, that on the basis of a conspiracy charge
a statement made by one defendant can be used
against other defendants who are alleged to be part
of the conspiracy. It should be noted, here, that this
is precisely what happened in the case at bar. All of
the testimony indicated that all incriminating state-
ments were made by defendant Pulawa. It is now
being considered in many legal circles that there
should be a complete elimination of the conspiracy
charge. There is also a line of thought which indi-
eates that one day in the not too distant future the
Supreme Court will strike down the use of conspiracy
charges for the purpose of introducing out-of-court
statements by one defendant against the others. This

*e

is for the reason that the alleged co-conspirators have
thus been deprived of their right to cross examina-
tion, guaranteed by the U. 8S. Constitution.

On the basis of the evidence produced at the hear-
ings on defendants’ motion to dismiss, and on the
entire record the Court finds that the necessity to de-
clare a mistrial at the close of the government’s case
was caused by the prosecutor’s actions in the case. The
Court further finds that such action was prosecutorial
misconduct.

This would conclude the matter at this point were it
not for the fact that as to the defendants Huihui,
Wilson and Leota, the Court finds there was consent
to the declaration of the mistrial. The arguments pro-
posed by counsel for those defendants when the Court
raised the question of mistrial indicates clearly that
the defendants did not merely consent to, but urged
the mistrial upon the Court. The mere written record
does not reflect the vigor and zeal with which counsel
urged the action upon the Court. Therefore, as to
those defendants Huihui, Wilson and Leota the mo-
tion to dismiss will be denied.

Insofar as the defendants Pulawa and Kaohu are
concerned, we are faced with another situation. Coun-
sel for those defendants did not join in the argument
propounded by counsel for Huihui, Wilson and Leota.
While there would appear to be tacit joinder in the
argument and consent to the mistrial, the cases re-
garding mistrial indicate quite strongly that more
positive evidence of consent is required. There is in-
sufficient showing of consent by those defendants indi-

eee

cated in this case. Therefore, as to the defendants
Pulawa and Kaohu the Court finds that a re-trial
of the charges as to them would violate the constitu-
tional prohibition against double jeopardy. Therefore,
the charges will be dismissed as to defendants Pulawa
and Kaohu.

Appendix C

In the Circuit Court of the First Circuit
State of Hawaii

Cr. No. 46476

State of Hawaii, ;
vs.

Wilford K. Pulawa, also known as Nappy
Pulawa, Alvin George Kaochu, Robert R.
Wilson, also known as Bobby Wilson, Dan-
nette Beirne Leota, also known as Sister, and
Henry James Hanalei Huihui, also known as
Henry W. Huihui,

Defendants. ;

1&I1II: Kidnapping

II, V,& VI: Conspiracy 1°

IV: Accessories before the fact

VII: Murder 1°

VIII & IX: Principals to murder 1°

[Filed Jul. 15, 1974]

ORDER GRANTING MOTION TO DISMISS AS
TO COUNTS II, V & VI; GRANTING MOTION
FOR MISTRIAL; AND DEEMING MOTION
IN LIMINE MOOT

The prosecution having rested its presentation of
evidence and its case in the above-entitled cause on

xx

Monday, July 8, 1974, and counsel for the defendants
having urged various motions, and the Court having
heard oral argument thereon on Wednesday, July 10,
1974, and having rendered its oral ruling thereon on
Thursday, July 11, 1974, and good cause having ap-
peared therefrom,

It Is Hereby Ordered granting the Motion to Dis-
miss as to Counts II, V & VI on the ground and for
the reason that prosecution under such counts is
barred under the statute of limitations, as more fully
set forth in the oral ruling of the Court on July 11,
1974; and

It Is Further Ordered granting the motion of coun-
sel for the defendants for a mistrial for the reasons
set forth in the Court’s oral ruling of July 11, 1974;
and

It Is Further Ordered deeming the Motion in Li-
mine filed by counsel for the defendants seeking to
limit cross-examination of the defendants as moot in
light of the orders set forth above, and the Court
therefore declines to rule thereon.

Dated: Honolulu, Hawaii, July 12, 1974

. /3/ Walter M. Heen,
Judge of the Above-Entitled Court

I do hereby certify that this is a full, true, and cor-
rect copy of the original on file in this office.

H. Seto

Clerk, Cireuit Court, First Circuit
State of Hawaii

Exhibit A
[106] (Court recessed at 2:58 p.m.)

Thursday, July 11, 1974.
8:47 a.m. Session.

THE CLERK: Criminal 46,476, State of Hawaii
versus Wilford K. Pulawa, Alvin George Kaohu, Rob-
ert R. Wilson, Dannette Beirne Leota, and Henry
James Hanalei Huihui, defendants. Ruling on motion.

THE COURT: The record will show the presence
of all counsel and all of the defendants. The record
will also show the jury is not present.

The court has examined the authorities cited by
both prosecution and defense in this particular case,
and has arrived at the following determinations:

The motions for directed verdict as to each count
are all denied. However, with respect to Count Two
of the indictment, Count Five and Count Six of the
indictment, these related to the conspiracy charges,
the court finds that the indictment, the prosecution
was commenced beyond the two-year statutory limi-
tation provided in the Hawaii Revised Statutes and
beyond the three-year statute of limitation provided
for in the Hawaii Penal Code. Under either, the
Penal Code or the Hawaii Revised Statutes, the pros-
ecutions are barred. While there may be some argu-
ment as to whether or not there is waiver in this case,
the court does not feel that the arguments have any
merit.

[107] As stated in Waters versus United States,
328 Fed Second 739, at 742, this statute of limitations

**

as found in the revenue laws is inconsonance with the

policy with policy of repose that is fundamental to
our society and our criminal laws. At 743, the court
goes on to say society is likely to be healthier on the
whole if an individual suspected of a non-capital of-
fense is either charged within, is charged, is either
charged within a specified time or else is relieved of
the never ending possibility of public accountability
for an accusation arising out of the long ago. Un-
like the statute of limitations in civil cases, it is not
a mere limitation upon the remedy but a limitation
upon the power of the sovereign to act against the
accused.

The court goes on to say; again, if recognition of a
distinction between the statute of repose in civil cases
and the substantive bar in criminal cases is to have
any meaning in the administration of criminal justice,
the statute of limitations must be held to affect not
only the remedy but to operate as a jurisdictional
limitation of the power to, upon the power to prose-
cute and punish. In People versus McGee, 36 Pacific
Second at 378, the California court said, in our view
the more desirable rule is that the statute is jurisdic-
tional, and that an indictment or information which
shows on its [108] face that the prosecution is barred
by limitations fails to state a public offense. The point
may therefore be raised at any time, before or after
judgment.

Court again points out the distinction between the
statute of limitations as it applies to civil cases and
criminal cases,

ere

It follows that where the pleading of the State
shows that the period of the statute of limitations has
run, and nothing is alleged to take the case out of
the statute, for example, that the defendant has been
absent from the state, the power to proceed in the case
is gone.

Court therefore rules that Counts Two, Five and
Six will be dismissed by virtue of the court lacking
jurisdiction to proceed. The government not having
authority to proceed with prosecution in this case.

This leaves us with Counts One, Three, Four,
Seven, Eight and Nine. These relate to the alleged
crimes of kidnapping and murder. The evidence
which was proquced by the government and admitted
in the course of the trial contains testimony and
other evidence relating to not merely the counts that
remain in the indictment but to the conspiracy counts
and further to the so-called evidentiary conspiracy
which is argued by the prosecution. Having now dis-
missed or ordered the conspiracy counts to be dis-
missed, we are then faced with the problem of [109]
instructing the jury as to what parts of the evidence
they may consider for the substantive charges that re-
main and what parts of the evidence they must disre-
gard, in order to arrive at their decision and verdict.

As the court stated briefly yesterday, it is doubtful
that even the court or the court together with counsel
could arrive at any kind of decision as to what parts
of the evidence would be considered or could be con-
sidered by the jury in determining the outcome of

xxiv

the case, and the court does not feel that this problem
can be overcome by any kind of curing instruction.

Therefore the court is compelled, regrettably, to
grant the motion for mistrial, to order that the case
shall be retried at a later time.

Court is aware of the time and the expense that
has gone into the case to this point but fairness to
the government, fairness to the defense and justice
for all concerned in the community requires that the
motion for mistrial be granted.

Therefore the motion will be granted with respect
to Counts One, this is the motion for mistrial, Counts
One, Three, Four, Seven, Eight and Nine.

Now, the jury is not here this morning, gentlemen.
They have been, as you know, notified to report at
1:30 this afternoon. They will come in, the [110]
court will convene and we will then discharge the
jury.

Any questions ?

MR. GREAN: We take exception to the court’s
ruling, Your Honor, based on the case authority, we
feel certainly supports bringing in evidence of the
conspiracy even though it is not charged.

THE COURT: Exception is noted. Court will
stand at recess.

(Court recessed at 8:58 a.m.)

I, AILEEN N. SYLVA, official court reporter,
Circuit, Court, First Judicial Cireuit, do hereby cer-

tify the foregoing to be a full, true and correct tran-
script of my original shorthand notes reported in the
above entitled matter on July 10 and 11, 1974, before
the HONORABLE WALTER M. HEEN, Twelfth
Judge presiding.

/s/_ Aileen N. Sylva

Appendix D

In the Supreme Court of the State of Hawaii

October Term 1977

State of Hawaii, )
Plaintiff-A ppellant,
vs.

Wilford K. Pulawa, Sr., also known as
Nappy Pulawa, and Alvin George

Kaohu,
Defendants-Appellees.

and

State of Hawaii,
Plaintiff-A ppellee,
vs.

Robert R. Wilson, also known as Bobby
Wilson, Dannette Beirne Leota, also
known as Sister, and Henry James
Hanalei Huihui, also known as Henry
W. Huihui,

Defendants-A ppellants. :

[Filed Dee. 6, 1977]

No. 5917

No. 5923

PETITION FOR REHEARING

RicHarpson, C.J., KOBAYASHI, OGATA,
MENoR and KipwELL, JJ.

Per Curiam. The petition for rehearing is denied
without argument.
/s/ William 8. Richardson
/s/ Bert T. Kobayashi
/s/ Thomas 8. Ogata
/s/ Benjamin Menor
/s/ H.B. Kidwell

David C. Schutter
and Brook Hart
for the petition.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0521%3A1. Public record. Not legal advice.