In response to my last post, “No body? Not a problem,” a reader asked a good question.

So what did Yokoyama plead guilty to? It’s insinuated that he plead guilty to a role in the murder, is that correct?

I initially provided a quick answer.

Not correct. Although documents in the case reported what Yokoyama told others, as well as movements consistent with some allegations, he pleaded only to wire fraud, with an agreement to cooperate. It remains to be seen what he has to say about the murder conspiracy.

The basic point is that it can’t be assumed that defendants are not guilty of certain crimes they had been charged with simply because prosecutors agree to drop those charges as part of an overall plea agreement.

In a pre-trial “motion in limine,” prosecutors tackled this issue of plea agreements and their interpretation head on. It makes for very interesting reaing for non-lawyers.

The motion makes the point that prosecutors necessarily have to exercise discretion in deciding who to charge, and what to charge them with, realizing that some of those involved will not be charged, and the charges will not include every crime the government is aware of or has evidence of. This is expecially true in a case as complex as the Miske prosecution.

In their Motion in Limine #2, filed November 13, 2023, prosecutors sought to “to preclude improper use of charging decisions and plea agreements.”

The motion begins by quoting a 2011 9th Circuit Court decision, U.S. v. Bingham.

“The government may decide to charge or not to charge a suspect in an indictment for a variety of reasons that have nothing to do with his guilt or innocence, taking into consideration the availability of prosecutorial resources, alternative priorities, the expectation of prosecution by other authorities, or any number of other valid discretionary reasons.”

That decision in turn favorably quoted an 11th Circuit case holding that “[c]ertainly, we cannot attribute the government’s decision not to prosecute to an independent determination that the defendant is not guilty.”

As in many other cases, the government in this case was required to make decisions about what charges to bring, when to bring them, and what individuals to charge. The government also made extensive efforts to resolve charges against several charged co-defendants through plea agreements.

It would be inappropriate for the defense to argue (or even imply) to the jury that there is any factual significance to these discretionary charging decisions, and the Court should now rule that the defense are precluded from making any such inappropriate argument. For example, the government exercised its discretion to charge a RICO conspiracy count, but not to charge substantive RICO; it decided to allege that violations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136, were part of the RICO conspiracy, but not to charge FIFRA offenses in separate substantive counts. Furthermore, while the government charged many defendants in this case, it did not charge other individuals who the evidence at trial will show — also participated in the charged enterprise’s criminal activities. Also, different investigations over the years did not (at those times) result in charges against defendants who are now charged and proceeding to trial. The defense should not be allowed to suggest to the jury that it should give any factual or legal significance to these decisions.

Using an example from the Miske case, prosecutors refer to the plea agreements with two co-defendants, Dae Han Moon an Jarrin K. Young.

As part of these plea agreements, prosecutors agreed to drop the racketeering conspiracy charge that each of them faced. Instead, they entered guilty pleas to other charges. Moon admitted he was guilty of taking part in a murder-for-hire conspiracy and carrying a firearm during a drug-trafficking crime. Similarly, Young admitted to taking part in a drug-trafficking conspiracyd.

Prosecutors then commented: “There is no basis to suggest that this reflects any belief on the part of the government that those defendants are not guilty of that offense….”

Judge Derrick Watson agreed with prosecutors on this point, and granted the government’s motion “to the extent Defendants may not argue that the government’s ‘charging decisions’, such as who has been charged and the fact that certain charged were “dropped” in plea agreements, have legal or factual significance in this case.”