Senate Standing Committee on Judiciary

First up on SB 2249 is Daniel Hugo for the Department of the Prosecuting Attorney City; good morning.

Good morning. Chair Rhodes and members of the committee. Daniel Hugo for the Honolulu Prosecutor's Office, and we support this bill. One of the things that we noted here is that traditionally the federal prosecutors have taken the lead on public corruption cases, including bribery.

However, the effectiveness of federal prosecution has been constrained by the US Supreme Court's decision in Snyder against United States, which specifically was looking at Section 666, which is the typical statute that's used for prosecuting state and local corruption. So in other words, areas where the federal government and the state would have concurrent jurisdiction.

So, while the Supreme Court's interpretation of the statute distinguishes between bribes and gratuities and finds that gratuity, so a payment paid afterwards is not covered by that statute. Hawaii has a much broader statute and it looks at the intent to corrupt.

So, it's focused on whether or not the payment is intended to corruptly influence an official act as opposed to how the payments themselves are structured. Which means that, at least in theory, it's easier to get prosecutions.

The difficulty as opposed to federal prosecution is that the penalties in Hawaii, a Class B felony, is probationable and so oftentimes it's difficult to get the sort of cooperation that would normally be necessary in a bribery prosecution. So, we believe that these enhanced penalties in certain circumstances would be necessary to have effective state prosecution.

I'm available for questions. Thank you.

Great. Thank you. Next up is Hayley Chang for the Public Defender. Good morning.

Good morning, Chair Rhoads, members of the committee; Hayley Chang for the Office of the Public Defender. We have submitted testimony in opposition to this measure. And the crux of our testimony is that first and foremost, the existing bribery statute is a Class B felony. We are extremely oppositional to the enhancement to a Class A.

Class A felonies are reserved for the most serious offenses in our criminal system. A Class A felony is the equivalent of a manslaughter charge. Continuous, continuous sex assault on a minor, sexual assault in the first degree, kidnapping as a class A and robbery in the first degree.

Making it non-probationable means that the court only has one option, which is to sentence someone to the open 20 year term of incarceration. Currently, the courts have the discretion under the Class B to sentence someone to an open 10-year term if they do not believe probation is warranted.

We also have included in our testimony some concerns regarding the over breath of the term elected or appointed official, as well as the inability of the court to address the specificities of the conduct that the bill would attempt to criminalize. So, thank you for the opportunity to comment. I will be available for questions.

Great. Thank you. Next up is Vince Legaspi for the Police Department on Zoom, or here? Okay, here. You're great. Good morning.

Morning, sir. Good morning, Chair and members. I'm Vince Legaspi, Captain of the Criminal Investigation Vision of the Honolulu Police Department. HPD supports Senate Bill 2249 relating to bribery. HPD endorses this legislation that creates a Class A felony. The crime of bribery can lead to severe and long lasting effects on the state, county, and communities.

Any measure taken to mitigate bribery will benefit our state. Having the criteria a bribe exceeding $20,000 also aligns the statue with theft in the first degree. HPD urges you to support bill, Senate Bill 2249, relating to bribery. Thank you for this opportunity, sir.

Thank you very much. Next up we have Maki Morinoue for Huli Pac on Zoom.

Not present, Chair.

In support. Next we have Brandon Makaawaawa for Nation of Hawaii and support. Next we have Nakoani Warrington for Kupuna for the Mopuna. Also in support, Dave Mullinix for Green Piece Hawaii and support. Then we have Johnny May Perry in support.

Glenn Kagamita in support. Robin Sage in support. L. Oster in support. Cheryl Burkart in support. Lisa Galloway in support. Lori Kaiser in support. Daniel Fund in support. Joel Edwards in support. Robert Patrici in support. And Jane Aquino in support. Nanao Low in support. And Georgia Hoops in support. That's everyone who signed up on SB 2249.

Would anyone else like to testify on 2249? Seeing none. Members, questions?

Oh, yes.

Senator San Buenaventura.

Prosecutor's Office: so I know this is a prosecutor's bill and my question is regarding the removal of the section 853, which basically normally leaves it up to the discretion of the court on a first time offense to be able to, I guess, defer the acceptance of a guilty plea or a no contest plea.

And when, as part of the women's legislative caucus about 10 years back, we found that the 853 removal for abuse of family household member actually stifled plea bargains.

So, why would you want to remove this when you would want to have the opportunity for a plea bargain to allow the person you caught, I mean, like for instance, the ones like Ty Cullen or Kalani English.

I mean, they're the ones in the news, to be able to get them to, I guess, get other people, you know, with the carrot of an 853. And again, even if that which makes it a discretion with the judge to whether to defer or to accept a guilty or no contest plea.

So, in terms of plea bargains, we would have the option to structure it to where they plead to an alternative charge that might be deferable. So, for example, theft could be a potential charge.

So that would be the consideration if we were looking at it strictly from the plea bargaining angle. In terms of a public policy angle, somebody who goes out and abuses an official position in this way. We do believe that denial of a deferral is a commensurate penalty.

So you want to remove it from the judge's discretion.

Yes.

Okay.

Senator Chang, any questions? Okay, let's see. I got a couple here for HPD again, if you don't mind? Or were you with HPD? Can you come back up? So, I think you mentioned that the $20,000.

The $20,000 threshold, I have to admit, sounds pretty low to me for a Class A felony, but you were saying it that matches up with Class A theft, is that correct?

Yeah. Yes. Theft. Theft first. Yes. So, it's over 20,000, would be at first. Yes.

Okay. That was - okay, hang on a second. That's it. Thank you very much. Appreciate it. If there's no more questions, we'll go ahead and move on to the next bill, which is SB 2494. This establishes a limitations of nine years for bribery offenses. First up on 2494 is Hayley Chang, Public Defenders. Morning again.

Good morning again. The Office of the Public Defender has submitted testimony in opposition to this measure, and it's really just to, I guess, address the preamble of the bill indicates that the the justification for wanting to expand or lengthen the statute of limitations is in the event that the length or outcome of a federal investigation precludes the statute of limitations.

In our opinion and respect, the length of investigation is not a reason to always extend the statute of limitations. That justification could be given to every criminal offense.

We have certain delineated exceptions for certain offenses where the statute of limitations is beyond what is normally prescribed under chapter or statute 701-108. But for normal felonies, the statute of limitations is three years. Even for most Class A felonies, it's six years. So, this is extending it much beyond that.

And if there is a justification or significant need to extend it beyond what's normal, the statute limitations and the scheme under that statute is contemplated by the legislature, recognizing that investigations can become stale, evidence can be hard to obtain or get, and it makes prosecution in defense of those matters more challenging. Thank you. I'll be available for questions.

Thank you.

Next is Daniel Hugo for Department of Prosecuting Attorney, City and County. Morning again.

Good morning again, Chair Rhoads and members of the committee: Daniel Hugo for the Honolulu Prosecutor's Office. As the preamble indicates, a lot of these cases, we anticipate, will emerge from state and federal cooperation, and with federal cases, the statute of limitations is five years.

We would expect that in cases that could still be prosecuted under Snyder, in other words, just a straightforward bribe, that the federal, the federal prosecutors would take the lead.

What we are expecting, though, is that in cases where those payments are structured in a way that could potentially be construed as a gratuity, but where nevertheless, there is evidence of intent to corruptly influence official action, that is where turning it over to the state would be necessary.

I'll note that the bribery statute or bribery is already one of the offenses for which there can be an extension on the statute of limitations to up to six years.

And this would just allow us to ensure that the evidence, first of all, that federal investigators collect would be admissible in state court because sometimes the investigative methods may not necessarily align, and so we might be going in with a different, different set of evidence than the federal prosecutors might have anticipated introducing.

So, in order to ensure the integrity of these investigations. What we're anticipating is that these will be much more complex investigations, but also ones in which there will be more evidence. I'm available for questions if the committee has any. Thank you.

Great, thank you. Next up is Maka'awa'awa for the Nation of Hawaii in support. Next is NaNo'olani Warrington Kupuna for Kapuna for Opuna in support. Next is Maki Morano for Huli Pac.

Not present, Chair

Also in support. Next is Gregory Misakian in support on Zoom, maybe. Good morning.

Good morning. Aloha, Chair, Vice Chair, members of the committee, My name is Greg Misakian and I am a member of the Good Government Caucus. We convened a meeting yesterday at the state capitol today.

I'm just here speaking on behalf of myself as an individual, and I do support this bill, and I hope that it does move forward. Mahalo.

Thank you very much. Next is Dave Mullinix for Greenpeace Hawaii in support. Okay, following that, there are a number of individuals in support. The told count was 22 in support, one opposed, no comments. If there's anyone here who would like to testify on Zoom or in person, you're more than welcome. Seeing no more members, any questions?

Okay, let me see if I've got any here, I guess for Mr. Hugo. Do we have any - I know there's been a change at the federal level because of that ridiculous case from the Supreme Court, but are there documented instances where bribery cases could not have been charged because the existing limitations period expired due to the federal first investigation?

I don't know of any publicly available cases that meet that criteria.

Okay, so as far as - okay, so then the nine years itself, I mean, it's three more than current. And you think that's - I guess it's fairly obvious that you think that's enough to cover anything that might happen at the federal level before the state would intervene, before the state would investigate?

Yeah, I do think that's a reasonable amount of time. One other thing that I should note is that the time tolls up to the maximum of the six years while the official is in office. And that is because bribery uniquely allows public officials to interfere with investigations to use their office to intimidate -

It's not six years automatically. It's six total. Well, so what is it exactly now then?

So, so it's three years, but it tolls while the person is in office up to two years thereafter and for a total of up to six years. So, you could have a bribery offense that occurred say four years before the person left the office and then two years afterwards the time would end.

So, that would be a six year. That would be the max.

They were in office for six years; you still have two years after they left?

No, because it would expire during there. Yeah.