The wheels of justice turn slowly, it is said. In the case of the federal criminal charges that have been brought against Hilo attorneys Gary Zamber and Paul Sulla Jr., and their business partner, Rajesh Budhabhatti, those wheels are turning at barely noticeable crawl. And, with an interlocutory appeal of an order dismissing challenges to a superseding indictment, movement is practically at a standstill.<\/p>\n\n\n\n
The charges were brought against the three after Alan Scott Rudo, a former employee of the Hawai\u02bbi County Office of Housing and Community Development, pleaded guilty to charges relating to his involvement in schemes to use county affordable housing credits to enrich himself and the three co-defendants.<\/p>\n\n\n\n
On November 15, Honolulu federal district Judge Jill A. Otake held a hearing on motions from attorneys for the three defendants awaiting trial, asking that the superseding indictment against them be tossed out. In advance of the hearing, Otake had indicated her inclination to grant the motions, which argued, among other things, that, unlike Rudo, the three defendants, all private citizens, had no fiduciary duty to the county. Another motion, from Zamber, sought to unseal grand jury proceedings and gain access to evidence of bribes and kickbacks, while Budhabhatti asked to have his trial severed from that of the two other defendants.<\/p>\n\n\n\n
Judge Otake released her order on November 28, denying the motions. Citing a 9th<\/sup> Circuit precedent, United States v. Awad,<\/em> Otake noted that in an indictment, the government is \u201crequired to state only the essential facts necessary to apprise [a defendant] of the crime charged; the government [is] not required to allege its theory of the case or list supporting evidence to prove the crime alleged.\u201d<\/p>\n\n\n\n Otake went on: \u201cBecause the bar for a sufficient indictment is so low, the 9th<\/sup> Circuit has characterized dismissal of an indictment as a \u2018drastic step\u2019 and \u2018disfavored remedy.\u2019\u201d<\/p>\n\n\n\n \u201cSo, the question becomes whether the superseding indictment sufficiently states the elements of the crime alleged to provide enough notice of the charges against defendants,\u201d she wrote, going on to enumerate the six elements of the charge of honest-services wire fraud, which the defendants all face: (1) a legally based, recognized enforceable right to the services at issue; (2) \u201cthe value of the particular services \u2026 depends on their being performed honestly\u2026;\u201d (3) \u201cdeprivation of those services must be in breach of a formal or informal fiduciary duty;\u201d (4) the defendant intends to defraud; (5) the defendant \u201cmust misrepresent or conceal a material fact;\u201d and (6) \u201cwires must be used to further the scheme.\u201d<\/p>\n\n\n\n Otake quoted from the superseding indictment paragraphs that \u201ccontain statements of these elements\u201d sufficient to survive legal challenge. The defendants, \u201ctogether with Alan Scott Rudo \u2026 and others, did knowingly and intentionally conspire to devise a scheme and artifice to defraud and deprive the OHCD, the county and its citizens of their intangible right to the honest services of Rudo through bribery and kickbacks,\u201d the indictment states.\u00a0<\/p>\n\n\n\n Also, \u201cThe object of the conspiracy was to make it appear that Rudo was faithfully discharging his duties of honesty and loyalty to provide affordable housing to the county and its citizens, when in fact his official acts were influenced by an agreement to take bribes and kickbacks.<\/p>\n\n\n\n \u201cTo accomplish their objectives, Sulla, Zamber, Budhabhatti and Rudo made, or caused to be made, various interstate wire communications, including emails concerning the approval of [affordable housing agreements], the sale of both land and [affordable housing credits], and the wire transfer of the proceeds of various transactions.\u201d<\/p>\n\n\n\n Otake acknowledged that in this order, she was going against her original inclination. \u201cThe court acknowledges that this conclusion\u201d \u2013 that the superseding indictment provides sufficient notice to defendants of the charges they face \u2013 \u201cdeparts from its initial inclination. But the court is persuaded that the procedural posture of the case controls here. And at this stage of the proceedings, the 9th<\/sup> Circuit has set the bar so low that the government need only worry about tripping over it.\u201d<\/p>\n\n\n\n She dismissed Budhabhatti\u2019s efforts to sever his trial from that of Zamber and Sulla, arguing that his speedy trial rights are being violated. She observed that Budhabatti had earlier joined Zamber in a motion to continue trial, \u201cwhich sought a lengthy continuance. \u2026 The court therefore considers this argument waived.\u201d<\/p>\n\n\n\n Budhabhatti had argued that he would suffer prejudicial \u201cspillover\u201d when it comes to the dealings involving property at Waikoloa, in which he contends he had no role.<\/p>\n\n\n\n \u201cThe court is satisfied that, as the government asserts, \u2018[t]he evidence on the counts and transactions in which Budhabhatti was not directly involved would still be admissible as to the conspiracy charge, as it would prove the nature and scope of the agreement between multiple participants, as well as the fact that Budhabhatti never withdrew from the conspiracy,\u2019\u201d Otake wrote.<\/p>\n\n\n\n Regarding the risk that the jury might allow evidence of the Waikoloa project and money-laundering (the latter charge faced only by Sulla) to \u201cspillover\u201d to Budhabhatti, Otake said that Budhabhatti \u201cmay propose <\/p>\n\n\n\n limiting instructions regarding the evidence.\u201d<\/p>\n\n\n\n She likewise made quick work of the allegation that the charges were vague and\/or unconstitutional.<\/p>\n\n\n\n Finally, as to Zamber\u2019s motion, joined by the other defendants, to unseal the grand jury proceedings, Otake wrote:<\/p>\n\n\n\n \u201c[Defendants] claim that \u2018it is possible that the grand jury was provide evidence of self-dealing with the label<\/em> of bribe or kickback\u2019 and that, given developments in the caselaw, \u2018[i]t is very possible \u2013 if not likely \u2013 that the government presented an invalid legal theory to the grand jury regarding the scope or timeliness of Rudo\u2019s fiduciary duty to the County of Hawai`i.\u2019\u201d<\/p>\n\n\n\n But, she wrote, \u201cThese are not sufficiently particularized grounds to overcome the strong policy interest in grand jury secrecy.\u201d <\/p>\n\n\n\n After denying the various motions to dismiss, sever, strike counts, and unseal grand jury proceedings, Otake directed the parties to submit proposed jury instructions by April 22, 2024. Jury selection is set for September 16, 2024.<\/p>\n\n\n\n That schedule, of course, was before the public defender representing Budhabhatti, Salina Kanai, appealed the order to the U.S. Court of Appeals for the 9th<\/sup> Circuit.<\/p>\n\n\n\n Specifically, he is appealing her denial of the motion to dismiss the superseding indictment and asserting \u201cthat he has a right not to be tried and subjected to federal prosecution for honest services fraud.\u201d<\/p>\n\n\n\n \u2014 Patricia Tummons<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" The wheels of justice turn slowly, it is said. In the case of the federal criminal charges that have been brought against Hilo attorneys Gary Zamber and Paul Sulla Jr., and their business partner, Rajesh Budhabhatti, those wheels are turning … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14588,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[520,338],"tags":[7],"class_list":["post-15586","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-january-2024","category-land-use","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15586","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15586"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15586\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14588"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15586"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15586"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15586"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}