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Tuesday, October 26, 2004



Ruling could
set Mirikitani free

The convicted former city
councilman has been ordered
released by a federal judge

A federal judge has ordered the release of convicted former City Councilman Andrew Mirikitani from federal prison pending a U.S. Supreme Court ruling on the constitutionality of federal sentencing guidelines.

U.S. District Judge Helen Gillmor granted Mirikitani's motion yesterday for release pending the high court's decision, Assistant U.S. Attorney Michael Seabright confirmed yesterday.

Georgia McMillen, Mirikitani's court-appointed counsel who filed the motion for his release, said he is currently at a federal detention center in Pollack, La. "It's hopeful by the end of next week, he will be free."

The issue for Mirikitani, 49, one of thousands whose cases were affected by the high court's ruling four months ago, is whether his 51-month sentence can be reduced to eliminate sentencing enhancements, McMillen said.

Mirikitani was convicted in 2001 on federal charges of theft, bribery, extortion, wire fraud and witness tampering -- the highest-ranking public official in Hawaii to be convicted of a federal crime. Federal prosecutors said he gave $26,533 in bonuses from his Council salaries account to two staff aides in exchange for $6,884 in kickbacks.

Government prosecutors had sought a longer sentence based on Mirikitani's role in the offenses and for obstruction of justice for allegedly giving false testimony at trial. Gillmor sentenced Mirikitani to the minimum under federal sentencing guidelines. He could have received a maximum of five years and three months.

A federal appeals court affirmed Mirikitani's conviction on Aug. 31 but sent the case back to the trial court for resentencing because of issues arising from his sentence.

Just two months earlier on June 24, however, the U.S. Supreme Court issued the Blakely decision saying sentencing enhancements under Washington state sentencing guidelines were unconstitutional because they ran afoul of a defendant's Sixth Amendment right to a jury trial.

The high court ruled that certain aggravating factors considered by judges to increase a defendant's sentence had to be decided by jurors beyond a reasonable doubt.

The 9th U.S. Circuit Court of Appeals followed with a decision a month later, saying Blakely applies to federal sentencing guidelines. The U.S. Supreme Court heard oral arguments on Oct. 4 on two cases concerning whether its decision in Blakely is applicable to federal sentencing guidelines. That decision is pending.

McMillen said she had tried to reach Mirikitani yesterday but, because of the time difference, had not spoken to him yet. "It is hoped that the pending decision from the U.S. Supreme Court will be favorable to him and the two sentencing enhancements will be deemed unconstitutional, and that represents significant time to his overall prison term," McMillen said.

If the high court affirms the 9th Circuit's ruling, it is possible Mirikitani will have served more than he would have been required had he not received the enhancements and will not be ordered to serve any additional time, McMillen said. Mirikitani's projected date of release was Sept. 28, 2005.

Mirikitani's wife and co-defendant, Sharron Bynum, was also convicted of theft and extortion. She served one year and nine months at a federal facility in Carswell, Texas, said deputy public defender William Domingo. He lost touch with her after her release.

Bynum could not be reached for comment.

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