Mirikitani is fighting City Councilman Andy Mirikitani is seeking to stay out of jail pending a likely appeal of his conviction on charges he received kickbacks from two aides in exchange for bonuses.
to avoid jail time
His attorney is asking that the
councilman be free pending
his forthcoming appealBy Gordon Y.K. Pang
gpang@starbulletin.comMirikitani is slated to be sentenced tomorrow afternoon by U.S. District Judge Helen Gillmor. His request to be released pending his appeal is scheduled to be heard just prior to sentencing.
Federal prosecutors are opposing the motion.
John Edmunds, Mirikitani's attorney, stated in a court memorandum that his client is neither a flight risk nor a danger to the community. Mirikitani has remained free on a $10,000 signature bond, under the condition that he surrender his passport, since November 2000, and has continued to abide by the terms of his bail since the July 3 conviction, Edmunds said.
Deputy U.S. Attorney Michael Seabright, in an opposing memorandum, said the nature of the counts against Mirikitani and the fact that he lied during trial makes it impossible for the councilman to argue that he is not a flight risk.
"Simply put, defendant is a perjurer and is not trustworthy," Seabright wrote.
Edmunds said Mirikitani's appeal will also "raise substantial questions of law and fact" that likely will result in a reversal or a new trial. Two counts against Mirikitani -- involving theft and bribery of federal funds -- cannot be sustained because it was not proven that the funds involved were federal dollars or threatened the integrity of federal funds, Edmunds said.
Edmunds' memorandum also challenges the wire fraud conviction.
The memorandum said the improper and erroneous convictions on the three counts caused a "spillover effect" and "infected" the judgment of jurors on the three other counts of which Mirikitani was found guilty, thus necessitating a new trial on all six counts.
Seabright also wrote that Gillmor has ruled previously against Edmunds on motions involving the theft, bribery and wire fraud counts, as well as the spillover concern.
The sentence to be meted out by Gillmor is expected to follow a complicated set of federal guidelines. The judge has barred attorneys involved in the case from public discussion on the issue and sealed all documents dealing with sentencing.
What is known is that Seabright has asked that the sentence be higher than what the guidelines call for, while Edmunds has asked for a "downward departure" from the guidelines.
A survey of five attorneys familiar with federal criminal issues -- but who are not involved in the case and did not want to be identified -- predicted that Mirikitani is likely to be sentenced to between two and five years in prison.
Mirikitani's clean record may work in his favor, attorneys said. However, other factors could increase the sentence such as providing misleading testimony, his standing as a public official and the fact that he never admitted guilt or responsibility and stayed in office after the verdict, they said.
"The punishment for going to a criminal trial in a federal court and being found guilty is significant because the calculation of the guidelines is so Draconian," said one attorney.