June 22, 1999
The Support Committee
758 Kapahulu Ave., # 422
Honolulu, Hawaii, 96816
FAX: (808) 733-7808
Richard M. Rogers
Office of Professional Responsibility
U.S. Department of Justice, CERTIFIED MAIL/RETURN
RECEIPT
950 Pennsylvania Avenue, N.W., Room 4304
Washington, D.C. 20530.
RE: Complaint: Improper Conduct of Assistant U.S. Attorney
Florence Nakakuni, District of Hawaii. Violations of Constitutional
Due Process in the Case of Dr. George Pararas-Carayannis.
Dear Mr. Rogers,
Reference is made to the complaint we submitted originally on May 15, 1998, about the improper conduct of Assistant United States Attorney (AUSA) Florence Nakakuni, District of Hawaii, in the prosecution of Dr. George Pararas-Carayannis. We subsequently received an inadequate response from program analyst Annie A. Wong of your office. On August 31, 1998, we resubmitted our complaint asking for proper investigation and disciplinary action. On December 4, 1998, we received the attached letter from Assistant Counsel Mary Anne Hoopes, stating that a preliminary review had been initiated and that contact will be when the review is complete. Several months have passed now without additional response. In spite of our complaint, or perhaps because of it, we have since witnessed additional improper conduct by this government attorney in what appears to be a retaliatory effort to prevent and obstruct the Court from granting Dr. Carayannis needed relief and in violating his Due Process protection guaranteed by the U.S. Constitution. The attached letters, reports and Court transcripts document this presumption.
Background and Medical Facts: Dr. Carayannis, is
a 64 year old man, seriously infirm and a disabled individual
with numerous life-threatening impairments. He has been examined
by twelve reputable physicians, including an Independent Medical
Examiner (IME) selected by AUSA Nakakuni on behalf of the Bureau
of Prisons (BOP). One of three independent medical examiners
was a cardiologist assigned to U.S. President Ronald Reagan.
All doctors agree that Dr. Carayannis is at great risk for
a fourth heart attack, stroke or sudden death. His functional
class has deteriorated to III/IV (IV being the worse). All
doctors state that he cannot travel at any time from Hawaii and
that his removal from present care presents substantial risks
that could have lethal consequences (see attached medical reports).
Court Urged Compassionate Release: In view of the compelling
circumstances, the Court urged the BOP to file a motion for Dr.
Carayannis' Compassionate Release or alternatively to agree that
the Court has jurisdiction to grant him Home Detention . The
Court stated:" Dr. Carayannis' health has degenerated
to such a state that he is not able to travel without risk to
his life" (Ct. tr. 11-30-98, p.3, line 5). The Court
was of the opinion and furthermore urged that under Section 3582(c),
"It is incumbent upon the Bureau (BOP) to file a motion
with the court to reduce his sentence, or modify his sentence"
(Ct. tr. 11-30-98, p.4, line 21). The BOP agreed to file the
motion for Compassionate Release, if it had jurisdiction, and
stated: "we would be more than happy to do that at this
time" (Ct. tr. 11-30-98, p.6 line 1). The Court indicated:
"if they (BOP) don't' have jurisdiction, then the court
still has jurisdiction,.." ( Ct. tr. 11-30-98, p. 7,
line 11); Also,"if it's left up to the court, what I
am going to do is reduce his sentence to home detention"
(Ct. tr. 11-30-98, p. 5 line 12);" ..or else we are caught
in a "never-never land." (Ct. tr. 11-30-98,
p. 7, l. 13-14).
Subsequently, AUSA Nakakuni engaged in improper conduct to undermine
the Court's agreement with the BOP. As a result of her interference,
the BOP reneged, claimed no jurisdiction, and refused to take
temporary custody of Dr. Carayannis in Hawaii so it could honor
its agreement (see Ct. tr. 4-9-99). Furthermore, AUSA Nakakuni
intervened by refusing to agree that the Court has jurisdiction
to modify the sentence to home detention. Because of AUSA Nakakuni's
improper conduct and lack of good faith, Dr. Carayannis has been
placed in a state of legal limbo - what the Court has characterized
as "caught in a never-never land." (Ct. tr.
11-30-98, p. 7, l. 13-14). As a result of AUSA Nakakuni's improper
actions, Dr. Carayannis has been denied Due Process protection
of the Constitution as both the BOP and the Court now claim no
jurisdiction.
AUSA Nakakuni Misapplied the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) and Provided a False Declaration to
Prevent and Obstruct Title 28 U.S.C.§ 2255, Providing Relief
for Dr. Carayannis.
Brief History: Dr. Carayannis was targeted for a "sting" money laundering offense in 1991, indicted in 1992, and tried in 1993. He was not found guilty of any actual "laundering of monetary instruments" and no money laundering activity was eradicated as a result of his conviction because there was none. In 1994, he was sentenced to 41 months of imprisonment and three years of probation for the "sting" offense which was devised, directed and prosecuted by AUSA Nakakuni. Dr. Carayannis's final appeal was denied on December 4, 1996. During that time interval he had three heart attacks and his medical condition deteriorated significantly. For eight continuous years, from 1992 to the present time, he has been detained at home under Court supervision while receiving continuous medical care.
Creation of Artificial Impediment / Exploitation of Non-representation by Counsel: Prior to December 18, 1997, Dr. Carayannis had no reason to file a motion for relief pursuant to 28 U.S.C.§ 2255. He was not in a BOP facility but at home and receiving essential medical care. AUSA Nakakuni exploited Dr. Carayannis' non-representation by counsel and lack of legal knowledge to cause an artificial impediment to prevent him from accessing 2255 relief through a technicality of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AUSA Nakakuni deliberately delayed the filing of Mittimus for slightly over a year from December 4, 1996 to December 18, 1997, so that relief could be denied by claiming that, pursuant to AEDPA, the statute of limitations for filing the 2255 motion had expired, and that any such motion for relief was "untimely" as Dr. Carayannis had been "in custody" under Court supervision "for more than a year". Subsequently, when Dr. Carayannis filed a motion for credit for such prior custody, AUSA Nakakuni, in her customary manner, claimed that detention time under Court supervision does not constitute "custody".
False Declaration about a " Medical Evaluation" by the BOP: In January and in May 1998, in order to further deprive Dr. Carayannis of 2255 relief, AUSA Nakakuni presented the Court a "declaration" with statements which she knew to be false. In her declaration she claimed that, in early 1998, Dr. Kendig of the BOP had "evaluated" Dr. Carayannis' recent medical records and found "no changes in his health condition since sentencing in 1994". A copy of the alleged "medical evaluation" by the BOP was never produced, even though directed by the Court to do so. Also, the BOP never acknowledged the existence of Dr Kendig's 1998 "medical evaluation" cited in Court records and the government attorney's declaration. All subsequent requests by Members of Congress for a copy of this 1998 evaluation by the BOP received evasive responses or no response at all. However, AUSA Nakakuni's previous false statements became evident in her letter of April 20, 1999 to the Court (attached). In this particular letter she contradicts her earlier declaration, now stating that "the BOP can provide the appropriate medical care for the Defendant", based on "the evaluation of old medical records, dating before sentencing in 1994". AUSA Nakakuni willfully and knowingly made a declaration to the Court which contained false statements .
Misrepresentation of Congressional Intent in the Application
of AEDPA: A review of the language and intent of the AEDPA
reveals that Congress focused on the civil rights of prisoners
under BOP custody and not those out on bail or under Court supervisory
release. Congress did not intend AEDPA to be abused by government
attorneys in dismantling habeas corpus relief by creating artificial
impediments and technicalities through which the needed relief
can be denied, or by striping the federal courts of their authority
to remedy improper or unconstitutional incarceration - even when
new evidence is presented. Congress did not intend habeas corpus
relief to be eviscerated completely in the name of "anti-terrorism".
Dr. Carayannis is neither a terrorist nor a dangerous criminal.
Dr. Carayannis, is an old man who is seriously infirm with
a short life expectancy and at great risk for a fourth heart attack,
stroke or sudden death. He is in great need of relief which the
Court recognized and supported (see Ct. tr. 11-30-98, 4-9-99;
Judge's letters of 12-21-98, 3-5-99). By her overzealous effort,
AUSA Nakakuni caused Dr. Carayannis great harm. AUSA Nakakuni
deliberately misapplied and abused technicalities of the newly
legislated Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) to prevent 2255 relief for Dr. Carayannis.
AUSA Nakakuni Engaged in Further Improper Conduct and Obstruction of Justice to Prevent the Court from Granting Needed Relief and to Cause "Cruel", "Unusual" and "Disproportionate" Punishment in Violation of the Eighth Amendment and the Due Process Protection of the United States Constitution, not to Mention Principles of Civilized Treatment Guaranteed to Assure that the Power to Impose Punishment is Proportional to the Offense and Exercised Within the Limits of Civilized Standards.
Improper Contact with Physicians - Coercion, Distortions and Mischaracterization of Facts: As part of her effort to "win at all costs", the record shows that AUSA Nakakuni ignored the findings and warnings of well respected physicians and attempted to discredit through distortions their medical reports and 800 pages of clinical records! In the past, she presented false information to the Court that Dr. Carayannis was seen " driving a car with a blond woman next to him", which happens to be on the same afternoon that he was released from the hospital, after nine days in intensive care following a severe heart attack and heart surgery (see lts. 5-3-99; 26-4-99). Also, AUSA Nakakuni attempted to coerce and influence Dr. Carayannis' treating physicians to agree to his transfer by "air ambulance" by misrepresenting the facts of the case (see physician's letter 6-8-98).
Court's Agreement with the Bureau of Prisons (BOP): On November 30, 1998, the BOP accepted the findings of the independent medical examiners and treating physicians and reached an agreement with the Court that it would file a motion for Dr. Carayannis' "compassionate release", if it had jurisdiction to do so. The Court stated that compelling circumstances of the case required it. In the alternative, the Court indicated its intent to grant "home detention" so that the present medical care can be continued at no cost or liability to the government (see Ct. tr. 11-30-98).
Obstruction with the Court's Agreement: AUSA Nakakuni undermined and obstructed the Court's agreement with the BOP. As the documentation indicates, AUSA Nakakuni did not respond and evaded a direct or proper answer to the Court's questions. Disturbed by AUSA Nakakuni's silence and evasive answers, the Court wrote twice: "If the BOP concludes that it has jurisdiction (to file), then it would seem under the circumstances Mr. Coleman has indicated that the BOP would be more than happy to file a motion for compassionate release under Section 3582(c). On the other hand, if the BOP believes that it does not have jurisdiction, then the Court would like to know whether the BOP and the U.S. Attorney's Office agree that the Court retains jurisdiction to modify Mr. Carayannis' sentence as indicated." (see Judge's letters 12-21-98; 3-5-88; Ct. tr. 4-9-99).
Subsequently, and although the BOP admitted that it had no
jurisdiction and refused to take temporary custody of Dr. Carayannis
for the purpose of filing the compassionate release motion as
the Court had recommended, AUSA Nakakuni insisted that the
Court was also without jurisdiction to grant home detention.
She claimed that there was no pertinent statute. Without giving
a reason, this time, she insisted that mittimus should be postponed
rather than be allowed to commence.
Improper Surveillance to Refute and Discredit Medical Reports
and Clinical Records - Misapplication of Government Resources
and Public Funds: In an effort to discredit even the report
of the IME physician she had selected (in the event the findings
did not agree with her expectations), she misused government
resources to conduct "surveillance" on Dr. Carayannis
with IRS agents later posing and testifying as "medical experts"
(Ct. tr. 4-9-99; lt. 4-26-99). AUSA Nakakuni's "medical
expert", IRS agent John Mandinger, covertly videotaped
Dr. Carayannis walking to a public bathroom, from a car, or
to the doctor's office. Also, on the day of Dr. Carayannis' medical
examination by the BOP's independent medical examiner, AUSA Nakakuni
had placed agents in the parking lot, the lobby, and the corridors
of the medical building, as well as in the reception area of
the physician's office. At the April 9, 1999 Court hearing,
AUSA Nakakuni's witness, IRS agent Madinger, testified that Dr.
Carayannis walked "normal". Agent Madinger based his
"medical expertise" on the fact that his own father
had a heart attack. Allegedly, his father had been given permission
to travel afterwards by his physician, Dr. McNamee. When the
Court commented that Dr. McNamee is a gynecologist specializing
in invitro fertilization, AUSA Nakakuni's expert witness could
not explain why his father was seeing a gynecologist or why he
died shortly after flying to Arizona ( Ct. tr. 4-9-99). The Court
ignored this testimony and distortions, then rejected AUSA Nakakuni's
videotape "evidence" (Ct. tr. 4-9-99). Those present
at the hearing were astonished by the blatant admission of
misconduct by the government attorney and the low caliber of
professionalism.
The Court Was "Disturbed" by AUSA Nakakuni's Improper
Conduct: At the hearing of April 9, 1999, the Court was very
critical about AUSA Nakakuni's unreasonable conduct, for example:
failure to provide a direct answer to the court's questions;
reneging on the Court's agreement with the BOP; withholding from
the Court a letter from the BOP. The Court stated:"now
a year later, with Dr. Carayannis' condition having deteriorated
further, we seem to be back in the same boat." (Ct. tr.
p. 62, l. 12-14); "...the Court is very disturbed that
the BOP has reneged on the agreement.." (Ct. tr. p.55
l. 25, p. 56 l. 1). "I thought we had an agreement...What
happened to that agreement? You have a copy of the transcript,
don't' you....? You were present". (Ct. tr. p. 59, l.
1-4). " I don't' think we received Mr. Sorba's (BOP's)
letter." (Ct. tr. p. 60, l. 6).
The Court also stated:"BOP's expert (Dr. Fergusson) has examined the defendant. He is an IME doctor hired by the BOP, and Doctor Fergusson found that for the defendant to travel would be life threatening. So have ten or so other doctors, including Doctor Chesne, my own physician, who also was a designated physician for President Reagan... I would think that if Doctor Chesne's opinion is good enough for the President of the United States, it might be good enough for the BOP." (Ct. tr. p. 56 l. 8-16).
When AUSA Nakakuni defended her role by stating: "
...I have a client in the United States. I'm not here for my pound
of flesh...", the Court responded angrily: "
Well, you have a client who I thought made an agreement..."
( Ct. tr. p. 72, l. 1-2) and "... I would think they
would be satisfied with a doctor who's good enough for the U.S.
President. (Ct. tr. 4-9-99, p. 74, l. 4-5).
It would seem that AUSA Nakakuni's intent is to perpetuate indefinitely
Dr. Carayannis' "cruel", "unusual" and "disproportionate"
punishment in violation of the Eighth Amendment and the Due Process
protection of the United States Constitution, by keeping him,
as the Court characterized it, in a state of perpetual legal
"never never land". (see Ct. tr. 11-30-98,
p. 7 l. 13-14). Even the findings of a physician who had been
assigned to U.S. President Ronald Reagan, were not good enough
for her and the BOP.
The offense of "Laundering Monetary Instruments":
Dr. Carayannis' "conviction" resulted from a questionable
government "sting operation" initiated and directed
by AUSA Nakakuni in 1991. The offense of "laundering monetary
instruments" was based on an underlying hypothetical Hawaii
State petty misdemeanor law. AUSA Nakakuni argued that it need
not be represented in the "sting operation", nor proven
at trial for conviction. The "laundering of monetary instruments"
involved the proceeds of a hypothetical "escort service"
which allegedly netted him $35. No other representation of "unlawful
activity" was made. Dr. Carayannis was convicted under
18 U.S.C. § 1956(a)(3)(A), the "sting statute",
although escort services are totally legal in Hawaii and freely
advertised in the Yellow Pages with acceptance of credit cards.
Dr. Carayannis was not found guilty of any actual "laundering
of monetary instruments" and no money laundering activity
was eradicated as a result of his conviction, because there was
none.
High Level of Sentencing - Deliberate Infliction of Cruel and Unusual Punishment - Denial of Constitutional Due Process Protection: As indicated, Dr. Carayannis has been already detained for eight years, under Court supervision, for this offense that allegedly netted him $35. However, because of AUSA Nakakuni's ongoing improper conduct and deceitful tactics, Dr. Carayannis' initial sentence of 41 months and three additional years of probation is being prolonged unreasonably. The magnitude of punishment amounts to almost 15 years of total detention. In this case it is the equivalent of a "life sentence" or even a "death sentence", because of the compelling medical circumstances and his short life expectancy. It would seem that nothing less than the death of Dr. Carayannis will satisfy this attorney's zeal for retaliation; Essentially because he refused to "plea-bargain", and because he complained about her misconduct concerning the illegal removal and tampering, at a hotel room, of Court admitted videotaped evidence. This outrageous conduct occurred during trial and while the court was in session and without the knowledge of the jury. Similarly, the wasteful use of $4 million in public funds to prosecute Dr. Carayannis must somehow be justified (by demonizing him). Dr. Carayannis has been conferred to a state of legal limbo, described by the court as a "never-never land". He has become essentially a political prisoner. Because of AUSA Nakakuni's improper conduct, he has been denied the Due Process protection of the Constitution. Incredible as it sounds, both the BOP and the Court claim now no jurisdiction.
CONCLUSION
Support Committee members and Human Rights organizations
monitoring this case, are astonished that a government attorney,
AUSA Nakakuni, has been permitted to zealously persecute Dr.
Carayannis, given his ill health. They are equally alarmed by
the misuse of government resources and agents to obstruct the
Court from granting compassionate release or home detention.
This very type of conduct was condemned by Congress at recent
hearings. It appears that AUSA Nakakuni's true motivation is
to cause personal harm to Dr. Carayannis, and to keep him in
a state of perpetual "legal limbo" until he dies.
AUSA Nakakuni's actions are improper, nor do they reflect well
on the principles of a free nation. Such a waste of public funds
and resources are contrary to public interest. The abuse of
prosecutorial power to inflict punishment which is so disproportionate
to the "sting" offense (the hypothetical petty misdemeanor
at the state level which did not require representation in this
particular "sting operation" nor proof at trial for
conviction) is not only cruel and unusual, but violates fundamental
principles of decency in a civilized society. This lack of prosecutorial
integrity is truly staggering.
Citizens see government attorneys as public officials who practice
law with integrity and decorum during judicial proceedings for
the sole purpose of determining the truth of the case. However,
this is clearly not the case with Dr. Carayannis. AUSA Nakakuni
seems to believe
that rules and standards of ethical and professional conduct
do not apply to her. She appears to believe that she has
the right to persecute with impunity while being exempted
from laws, rules, and regulations. Her conduct is
in clear violation of Public Law 105-277, Section 801
(Ethical standards for Federal Prosecutors) and of Title
28, U.S.C. § 530B,
and of several criminal and civil statutes. We cannot understand
how the Department of Justice can ignore, condone, or justify
conduct that violates ethical standards and denies a citizen the
Due Process protection guaranteed by the Constitution. We cannot
understand how the Department of Justice can make claims that
it polices its own employees, if its attorneys can operate on
the basis of double standards: prosecute others for federal,
civil or criminal violations, while they actively violate the
very same laws they have been charged to uphold. We cannot understand
how a government attorney can be allowed to mislead a court by
willfully and knowingly making false statements, by altering
documents, or offering evidence known to be false, especially
in a nation which prides itself as a leader and protector of human
rights.
Obviously, we are concerned about the pattern of unlawful and
unethical conduct by AUSA Nakakuni in the instant case. Depriving
a citizen of due process protection is prohibitive criminal conduct.
Undermining the Court's agreement with the BOP, deliberately
inflicting cruel and unusual punishment and violating due process
of the U.S. Constitution, cannot be tolerated. It cannot be
argued that Dr. Carayannis had an opportunity to address these
issues and violations in Court . If the Court does not have
jurisdiction to modify a sentence known to be improper because
a government attorney's agreement is required, then the Court
is not the proper forum to address this government attorney's
violations. If indeed the Department is sincere in its claim
that it regulates its own attorneys, it must investigate properly
and respond to our complaint. This is not simply an isolated ethics
violation but part of a continuous and extensive pattern. Torturing
a 64-year old man, who is medically compromised by keeping him
in constant detention and under the stress of uncertainty, is
inhumane treatment. Neither the Court nor the BOP claim now
jurisdiction to grant him the needed relief. As long as AUSA
Nakakuni continues to obstruct justice and illegally blocks essential
relief for Dr. Carayannis by violating his civil, constitutional
and human rights and the Due Process protection guaranteed by
the Constitution, we intend to persist in our effort to rectify
these abuses.
We again make reference to the responsibility of your office
to investigate misconduct by employees of the Justice Department
and to ensure that their duties are performed in accordance to
high standards of professional and ethical conduct expected of
our nation's principal law enforcement agency. We insist on a
proper investigation and the appropriate disciplinary action.
If you are unable or are unwilling to take proper action, please
let us know. We then will present this case and our complaint
to the appropriate Congressional Government Oversight Committees
or to the Congressional sponsors of Public Law 105-277 and of
the Citizens Protection Act of 1998.
Sincerely,
The Support Committee
Enclosures: Letters & Court Transcripts
cc: Attorney General Janet Reno
Mr. Bill Lann Lee, Civil Rights Office, Department of
Justice
Mr. Michael R. Bromwich, Inspector General, Department
of Justice
Member of Congress John Murtha
Senator Daniel Inouye
Senator Daniel Akaka
Member of Congress Patsy Mink
Member of Congress Neil Abercrombie
Commissioners, U.S.Sentencing Commission
Original 1998 Complaint filed with the Office of Professional Responsibility