It may be another year before the alleged leader of a criminal gang and his co-defendants face a trial by jury.
Attorneys representing Michael Miske, the former Honolulu businessman alleged to have controlled a sprawling racketeering conspiracy that prosecutors say extended over two decades, have asked for his trial to be extended for another six months, to September 2022.
Miske and nine co-defendants were charged in July 2020 with being members or associates of what prosecutors have termed the “Miske Enterprise” and committing individual crimes under its umbrella.
A tenth person was charged with drug trafficking and conspiracy to commit assault in aid of racketeering, but was not alleged to have been a member of the racketeering enterprise.
Charges against the group, updated this year in a 22-count second superseding indictment, include kidnapping, murder, and murder-for-hire in the disappearance and death of 21-year old Jonathan Fraser in 2016, and multiple other offenses ranging from conspiracy to violate racketeering laws, armed robbery, weapons offenses, drug trafficking, and bank fraud.
In a motion filed in Honolulu’s U.S. District Court this week, attorneys Tom Otake and Lynn Panagakos said the complex nature of the case, the voluminous evidence turned over by the government, as well as simmering disputes over how that evidence is being processed and released, combine to make the delay necessary.
“Thus far, the Government has produced well over 700,000 pages of .pdf format discovery, wiretap recordings from 8 telephones over a three-month period, numerous consensual recordings, and approximately 128 GB of digital data seized from numerous cell phones, iCloud, and email accounts,” Otake said in a declaration.
The trial was originally scheduled to take place in September 2020, but has already been postponed three times. If the trial is further delayed, as requested, it will begin two years after its originally scheduled start.
Otake, in his declaration, said attorneys representing “most” co-defendants have no objection, but noted that two others objected to the previous delay. The last postponement was approved over objections of the attorney representing two defendants, Hunter Wilson and Michael Buntenbah, who are anxious to get the trial behind them.
Additional issues have “interfered with our ability to prepare for trial,” Otake said, including discovery being produced in a disorganized manner and with extensive redactions, as well as delays in receiving certain items of discovery the defense believes it is entitled to.
Until these matters are resolved, Otake said it will be difficult, if not impossible, to investigate all the allegations against Miske, prepare and file pre-trial motions on his behalf, and adequately prepare for trial.
One defendant has already asked the court to order evidence being produced in discovery to be provided without redactions.
Attorney Dana Ishibashi, who represents defendant Jarrin Young, filed a motion last week seeking to force the government to turn over unredacted evidence files.
“Almost all discovery, such as FBI reports of its investigation and interviews thus provided by the government has been redacted of relevant information, including names of individuals interviewed,” Ishibashi said in a declaration.
As a result, Ishibashi said, he is unable to determine who should be on the defendant’s witness list and whether further investigation is warranted.
“Additionally, timing of when the alleged acts and or law enforcement interviews took place is essential to put context to whatever story is being told,” Ishibashi wrote.
Ishibashi said his request goes beyond those items known to prosecutors, and “includes all discovery in the custody, control, care, and/or knowledge of any ‘closely related investigative (or other) agencies.’”
San Diego attorney John C. Ellis was retained early in the proceedings to manage and coordinate the discovery process. Ellis makes regular monthly reports to the court, but the reports are sealed and remain confidential, so it is not publicly known whether he has recognized the continuing redactions as a problem.
No hearings have yet been scheduled on either the motion to delay the trial, or the motion for release of unredacted discovery.
Ken Lawson, an experienced former defense attorney who now serves as co-director of the Hawaii Innocence Project and a faculty specialist at the University of Hawaii’s William Richardson School of Law, said although a further delay is difficult for those defendants in federal custody, it can work to the advantage of defense attorneys.
“The more time and distance you put between the original public outrage at the alleged crimes, the more years go by, you’re hoping that anger will dissipate and you can get a jury that’s not simply looking for blood,” Lawson said.
In addition, Lawson said at least some of the remaining defendants are likely still trying to negotiate deals with prosecutors.
“In my experience, it’s a long plea process that moves slowly but surely, and there are likely a couple of guys, as it gets closer, who are bargaining for the best deal possible,” Lawson said.
“This is a tough case,” Lawson said. “The feds have done years of investigation, and the charges carry so much significant time that even if you get an acquittal on one charge, the client could still be convicted of others.
“As the trial approaches, you get to a point where it’s either put up or shut up. It’s that firm trial date that lets people know, either take a plea or we’re going to trial. The closer it gets, the greater the pressure.”
But when the trial deadline is moved, the pressure is off, at least temporarily.
To date, two defendants, Norman Akau and Hunter Bishop, have pleaded guilty. Bishop is free on bond pending sentencing, while Akau remains in custody pending sentencing, currently scheduled for June 2022.
Seven additional defendants remain in custody in Honolulu’s Federal Detention Center until trial: Mike Miske, John Stancil, Kaulana Freitas, Lance Bermudez, Dae Han Moon, Harry Kauhi, and Jarrin Young.
And four of the thirteen defendants in the case have been released on bond pending trial: Michael Buntenbah, Preston Kimoto, Delia Fabro-Miske, and Jason Yokoyama.
Norman Akau pleaded guilty in June to a single count of conspiring with other members of the Miske Enterprise to violate racketeering laws. His plea was part of a deal in exchange for prosecutors agreeing to drop murder-for-hire and drug trafficking charges.
At the end of the June 9 plea change hearing before Judge Derrick Watson, Akau’s attorney, Beverly Hills-based Ronald Richards, requested the written plea agreement be sealed. Hearing no opposition from prosecutors, Watson agreed.
But the following month, the Civil Beat Law Center for the Public Interest filed a motion to unseal the document, “citing its interest in the Miske case and its constitutional right of access to criminal proceedings.”
Attorney Richards opposed the motion, arguing Akau would be placed in danger if the extent of his cooperation with prosecutors was disclosed.
But Judge Watson ruled in favor of the Civil Beat Law Center and the plea agreement was placed on the public record earlier this week.
In his order, Watson agreed the public has a First Amendment right to access both criminal court proceedings as well as criminal records, which can only be overcome by a compelling overriding interest.
Richards had based his argument on his own opinion that unsealing the document would put Akau at risk of “attack [or] injury.” Watson found Richards had failed to provide any facts to support his opinion, and ruled “speculative jeopardy is not enough” to overcome the First Amendment right of access.
The newly unsealed plea agreement turned out to reveal no new details relating to Akau or Miske, but Watson’s order made clear that he will closely scrutinize any attempts to withhold information in the case from the public.
“The law is really clear,” R. Brian Black, executive director and counsel for the Law Center, said following Judge Watson’s ruling. “You can’t just say you want to seal it.”
Even though nothing new was disclosed by unsealing the plea agreement, Black said this was a good opportunity to educate attorneys in the case who may not be as familiar with the standards that have to be met in order for a document to be removed from the public record.
“There are going to be other things in the overall Miske conspiracy case where folks will likely move to seal, and it’s good for counsel and parties to know people are watching, and people are concerned, and there will be motions to unseal when warranted.”
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Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for more than 20 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.