A 32-year-old Naalehu man arrested 13 months ago in a child-sex sting operation in Hilo has filed a motion in Hilo Circuit Court seeking dismissal of his case, alleging prosecutorial misconduct and excessive use of hearsay.
Marshall K. Baji is charged with first-degree electronic enticement of a child; attempted promotion of pornography for minors; attempted first-degree promotion of minor-produced sexual images; methamphetamine and marijuana possession; possession of drug paraphernalia; and four firearms offenses, including carrying a loaded firearm on a public roadway.
The three most serious charges are Class B felonies punishable by up to 10 years imprisonment upon conviction.
Baji was one of five men arrested between May 6-9, 2021, in the multiagency sting operation dubbed “Operation Keiki Shield.” He and the others were accused of soliciting sex from a person they believed to be a minor but, in reality, was a law enforcement officer posing as a minor.
According to the motion filed last month on Baji’s behalf by Deputy Public Defender Patrick Munoz, Baji was arrested on May 8, 2021, when he showed up at a house on Kalanianaole Avenue in the Keaukaha neighborhood of Hilo.
He was released pending further investigation on May 10, 2021, but was indicted by a Hilo grand jury two days later.
The motion alleges the jury improperly found probable cause solely on hearsay evidence to charge and try Baji for electronic enticement of a child, attempted promotion of pornography for minors, and attempted promotion of minor-produced images.
The alleged hearsay evidence was provided to grand jurors by Detective Bobbie-Jo Sagon — who has since been promoted to lieutenant — and four other detectives. The actual law enforcement officer communicating electronically via texts and MeetMe app was FBI Special Agent Jennifer Cardiff, who didn’t testify before the grand jury.
The motion alleges the prosecution could’ve instead scheduled a preliminary hearing in Hilo District Court where Baji’s lawyers would’ve have had the opportunity to cross-examine the prosecution’s witnesses, including Cardiff, and present its own defense.
The document said the state instead “commenced a grand jury proceeding without the presence of its key witness, and in so doing, violated (Baji”s) due process rights by establishing probable cause for a felony offense upon inaccurate, misleading, heavily edited hearsay evidence that left out crucial mitigating and possible exculpatory evidence.”
The defense is seeking dismissal with prejudice, meaning prosecutors cannot refile the charges.
Deputy Prosecutor Haaheo Kahoohalahala, in her memorandum in opposition to Baji’s motion, said the defense was required by Hawaii Rules of Penal Procedure to file the motion to dismiss within 21 days after Baji’s arraignment, which occurred on June 17, 2021, and objected to the filing of the motion almost a year later by Munoz.
The state also argued that Cardiff was on Oahu and unavailable for testimony, and Sagon testified before the grand jury that as the lead detective, she was familiar with Cardiff.
“It has been the established law in Hawaii that hearsay evidence is admissible before the grand jury, and the prosecutor did not abuse the right to use hearsay evidence,” the prosecutor stated. “… In fact, (Baji) fails to state in his motion what the inaccurate, misleading, heavily edited hearsay evidence was or what the crucial mitigating or possible exculpatory evidence was that the state failed to present.”
In addition, Munoz filed a motion to declare the search and seizure of Baji’s 2006 Chevrolet truck illegal “due to coerced consent to enter the vehicle and lack of reasonable suspicion and/or probable cause for such search and seizure.”
According to the motion, Baji was given the choice by police of having the vehicle towed or moved from the residence to the Kuhio Kalanianaole Park parking lot. Baji chose to have the truck moved to the parking lot so his sister could pick it up, according to the motion.
The document states Detective Roberto Segobia saw the butt stock of a long gun sticking out from behind the driver’s seat. Detectives then obtained a search warrant, which allegedly turned up the shotgun, ammunition, 3 grams of methamphetamine, 4.5 grams of marijuana and smoking pipes.
The motion said Baji was not advised of his constitutional rights or administered the police’s consent to search form.
Kahoohalahala countered in her memo in opposition that Baji consented to Segobia entering the vehicle, and his observation of the firearm’s butt stock in plain view gave police probable cause to obtain a warrant to search the vehicle for contraband.
A hearing on Baji’s motion to suppress has been scheduled for 10 a.m. June 21 before Hilo Circuit Judge Peter Kubota. According to court documents, a hearing on the motion to dismiss will be scheduled during that hearing.
Baji remains in custody at Hawaii Community Correctional Center in lieu of $143,000 bail.
The status of the other cases are:
• Sonny Eugenio Puerto, 29, of Kurtistown pleaded not guilty to first-degree electronic enticement of a child. No trial date has been set, but a hearing for further proceedings is scheduled for 8:30 a.m. July 8 before Kubota. Puerto is free on $30,000 bail.
• Nolan Okalani Tallett, 46, of Honolulu pleaded not guilty to electronic enticement of a child. No trial date has been set, but a hearing for further proceedings is scheduled for 8 a.m. July 15 before Kubota. Tallett is free on $50,000 bail.
• Kanani Ikaika Perreira-Yurong, 32, of Hilo pleaded not guilty to electronic enticement of a child. No trial date has been set, but a hearing for further proceedings is scheduled for 8 a.m. Aug. 30 before Hilo Circuit Judge Henry Nakamoto. Perreira-Yurong is free on $50,000 bail.
• Joseph Michael Powell, 37, of Hilo pleaded not guilty to electronic enticement of a child, attempted promotion of pornography to minors, and 11 counts of attempted promotion of minor-produced nude images. No trial date has been set, but a hearing for further proceedings is scheduled for 8:30 a.m. Aug. 26 before Kubota. Powell remains in custody at HCCC in lieu of $82,000 bail.
Email John Burnett at jburnett@hawaiitribune-herald.com.