DEFENDANT MICHAEL J. MISKE, JR.’S … /2020/miske-141-1.pdf3 the teeth of Congress’s clear intent that only a limited number of defendants be subject to pretrial detention.”

DEFENDANT MICHAEL J. MISKE, JR.’S MEMORANDUM IN OPPOSITION TO GOVERNMENT’S MOTION TO

DETAIN DEFENDANT MICHAEL J. MISKE, JR.

Defendant Michael J. Miske, Jr., by and through undersigned counsel,

respectfully opposes the government’s motion to detain him pending trial. Mr.

Miske respectfully submits that: (1) the information set forth below, and supported

by the attached Declarations and exhibits, amply satisfies his burden of production

under 18 U.S.C. § 3142(e); (2) the government’s motion to detain is premised on an

impermissible predetermination of Mr. Miske’s guilt, in violation of the presumption

of innocence, the Bail Reform Act, and applicable caselaw; and (3) the government

cannot meet its burden of persuasion to establish that the release plan proposed by

Mr. Miske herein is insufficient to reasonably assure the safety of others and the

community or Mr. Miske’s appearance as required.

I. Applicable Legal Framework

Pretrial release should be denied “only in rare circumstances.” United States

v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985); see also United States v. Salerno,

481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to

trial or without trial is the carefully limited exception”). The Bail Reform Act

“mandates release of a person facing trial under the least restrictive condition or

combination of conditions that will reasonably assure” community safety and the

person’s appearance. Montamedi, 767 F.2d at 1405. Pretrial release can be denied

Case 1:19-cr-00099-DKW Document 141-1 Filed 08/07/20 Page 1 of 27 PageID #: 711

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only if the Court “finds that no condition or combination of conditions will

reasonably assure the appearance of the person as required and the safety of any other

person and the community.” United States v. Hir, 517 F.3d 1081, 1086 (9th Cir.

2008); 18 U.S.C. 3142(e)(1).

Under 18 U.S.C. § 3142(e)(2), (3), a rebuttable presumption of dangerousness

and flight risk exists. “This rebuttable presumption, however, is fairly easily met.

A presumption raised under section 3142(e) merely shifts the burden of production

to the defendant; the ultimate burden of persuasion remains with the government.”

United States v. Conway, 2011 U.S. Dist. LEXIS 86034, *7 (N.D. CA 2011)

(citing Hir, 517 F.3d at 1086).

The Government bears the burden of proving by a preponderance of the

evidence that the defendant poses a flight risk, or by clear and convincing

evidence, that the defendant poses a danger to the community. Motamedi, 767

F.2d at 1406-07. This burden requires the Government not only to prove risk of

flight or danger, but also to prove that such risks are is not “mitigable through the

imposition of conditions of release.” Conway, supra, 2011 U.S. Dist. LEXIS

86034, *8. Release conditions must “reasonably assure,” rather than guarantee,

community safety and the defendant’s appearance. “Undoubtedly, the safety of

the community can be reasonably assured without being absolutely guaranteed. . . .

Requiring that release conditions guarantee the community’s safety would fly in


https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=aa729572-1e3a-4762-8221-acf6e5cc5df4&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A82WD-J1D1-652H-73FR-00000-00&pdpinpoint=PAGE_2_9922&pdcontentcomponentid=6419&pddoctitle=United+States+v.+Conway%2C+2011+U.S.+Dist.+LEXIS+86034%2C+2011+WL+3421321%2C+*2+(N.D.+Cal.+Aug.+3%2C+2011)&pdproductcontenttypeid=urn%3Apct%3A30&pdiskwicview=false&ecomp=ysn3k&prid=5405585c-8e80-46af-9b25-1fa27b2bd95e



3

the teeth of Congress’s clear intent that only a limited number of defendants be

subject to pretrial detention.” Hir, 517 F.3d at 1092, n.9 (quoting United States v.

Tortora, 922 F.2d 880, 884 (1st Cir. 1990) (emphasis in Tortora)). Moreover, all

“[d]oubts regarding the propriety of release should be resolved in favor of the

defendant.” Montamedi, 767 F.2d at 1405 (citations omitted).

Under 18 U.S.C.§ 3142(g), the Court must consider the following factors in

determining whether conditions of release can be fashioned which will reasonably

assure community safety and the defendant’s appearance: (1) the nature and

circumstances of the offenses charged; (2) the weight of the evidence against the

person; (3) the history and characteristics of the person; and (4) the nature and

seriousness of the danger to any person or the community that would be posed by

the person’s release. The weight of the evidence is the least important factor.

Montamedi, 767 F.2d at 1408. Moreover, while the nature of the charge is

relevant, the Court cannot base a detention order on a preliminary determination

that the defendant is guilty of the charge. Id.

Ultimately, because “a critical liberty interest is at stake,” the court “should

always exercise [its] discretion with the recognition that pretrial detention may

restrict for a significant time the liberty of a presumably innocent person.” United

States v. Delker, 757 F.2d 1390, 1398-99 (3rd Cir. 1985). Here, if Mr. Miske is

denied release, his pretrial detention while presumably innocent would be for at


4

least a year, and perhaps longer (see Motion to Declare Case Complex Under 18

U.S.C. § 3161(h)(7) and to Continue Trial (dkt. #131), and Exhibit A thereto (dkt.

#131-1)).

Given the presumption of innocence, a defendant’s “right to bail should be

denied only for the strongest of reasons.” Montamedi, 767 F.2d at 1407. Mr.

Miske respectfully submits that such reasons do not exist here, because conditions

of release can be fashioned which will reasonably assure community safety and his

appearance as required.

II. History and Characteristics of Mr. Miske Favor Release

Mr. Miske is a lifelong resident of Oahu. He has incredibly strong family

and community ties, as illustrated by the letters attached hereto as Exhibit (EX) 1.

Mr. Miske was a devoted father to his son, Caleb, who passed away, tragically, in

2016, after an automobile accident and an extended stay in the hospital. Mr.

Miske’s granddaughter, Nila, was born during Caleb’s hospital stay. Nila is

everything to Mr. Miske. As stated by Mr. Miske’s close family friend for the last

twelve years, Angela Varnadore (EX 1, p.1): “He is no longer living for himself,

but for his baby granddaughter that was left behind. It is his mission to be a

strong father figure in her life and keep the memory of her own father alive. His

bond with Nila is undeniable and truly heartwarming to witness. He is her rock,

and she is his. To separate them would shatter her world.”


5

With regard to Mr. Miske’s broader community ties, Ms. Varnadore

explained: “Michael’s entire life is intrinsically entwined with Hawaiì. He

religiously visits his father’s grave in Kaneohe and his son’s memorial place in

Hawaiì Kai on a weekly basis; never missing a visit. All of his friends, family,

businesses, and connections are here as well. Whenever he takes a vacation off-

island he always comments on how much he misses home. He could never exist

anywhere but Hawaiì, that much has always been clear.”

Kahu Curt P. Kekuna, retired senior pastor of Kawaiahao Church, a church

which has been an integral part of our community since 1820, has known Mr.

Miske for 13 years. Pastor Kekuna described Mr. Miske as one of the “quality

outstanding men and women who serve our community. . . .” Pastor Kekuna “had

the honor of witnessing [Mr. Miske] positively impact lives not just through his

business, Kama’aina Termite & Pest Control, but selflessly and personally do what

is best for others no matter the consequences.” Pastor Kekuna has provided the

Court with examples of Mr. Miske’s selfless love of his family and service to

members of our community (EX 1, p.2).

Mr. Miske has a criminal record, but his last conviction was long ago.

Since then, Mr. Miske has been an exceedingly hard-working, and successful,

businessman.

Mr. Miske is the proud owner of Kama’aina Termite and Pest Control


6

(KTPC), one of the largest locally owned termite and pest control businesses on

Oahu. Mr. Miske started this business in approximately 2000. For the past two

decades, KTPC has developed very strong community ties as a service provider,

employer, charitable donor, and taxpayer.

Through his hard work, skills, and commitment, Mr. Miske grew KTPC to

what it is today. KTPC received “Hawaiì’s Best” awards from the Honolulu

Star-Advertiser from 2013-2019 (EX 2). In addition, as explained in the attached

Declaration of Kenneth J. Hines, a forensic accountant now in private practice after

retiring from his 25-year career with the Internal Revenue Service, he has

examined KTPC’s tax returns and QuickBooks records, and KTPC’s reported

gross revenues grew from approximately $5.2 million in 2015 to in excess of $8.2

million in 2017 and 2018 (Hines Dec., ¶13).

KTPC contributes to our community by providing services to thousands of

clients, many of whom are satisfied repeat customers. KTPC’s clients have

included the University of Hawaiì, the Polynesian Cultural Center, USCG

Wailupe Family Housing, Church of Christ, Bellows Air Force Base, real estate

agencies, construction companies, and individuals (Hines Dec., ¶11).

KTPC has also donated its services free of charge. For example, in 2010,

KTPC donated its services to the City and County of Honolulu, by doing the

fumigation at the Neal S. Blaisdell’s concert hall, a job valued at $125,000 (EX 3,


7

p.1-2). Then Acting Mayor Kirk Caldwell thanked KTPC for this “generous gift”

(EX 3, p.2). In addition, in 2014, KTPC donated the cost and labor to fumigate

the Hokule’a canoe, before she embarked on a historic worldwide voyage (EX 3,

p.3-4).

KTPC also makes substantial contributions to our community as an

employer. During the years 2015 through 2018, KTPC had between 62 and 108

employees. KTPC provided health insurance for these employees and paid annual

wages totaling between approximately $1.7 million and $2.7 million (Hines Dec.,

¶12). KTPC, including Mr. Miske as its owner, is a good, caring, employer who

makes important positive contributions in the lives of KTPC’s employees and their

families (EX 1, Letters from Angela Varnadore, Pastor Kekuna, Larry Kahu, Brian

P.K. Marina, Allen Lau, and Kurt Nosal).

Mr. Miske, individually and through KTPC, is also actively interested in,

and committed to, improving our community in other ways as well. Ms.

Varnadore said she could recount many times when she witnessed Mr. Miske

“overhear a discussion of a family’s tragedy or watch a news story about animal

abuse and instantly say ‘what can I do to help?’” (EX 1, p.1). Toward that end, in

2010, KTPC contributed 10,000 pounds of dog food to the Hawaiì Humane

Society after 150 dogs were rescued from a puppy farm in an animal cruelty case

(EX 3, p.5-6). In 2018, KTPC contributed $3,000 for information leading to the


8

arrest of the individual responsible for lighting a cat on fire (EX 3, p.7-8).

In addition, as explained in the letter from Makani Christensen (EX 1, p.3), a

member of the Maunalua Bay Recreation Advisory Council set up by The

Department of Land and Natural Resources and the President of the United States

Naval Academy Alumni Association, Mr. Miske worked with Mr. Christensen to

make Maunalua Bay safer for all boaters. Mr. Christiansen witnessed Mr.

Miske’s “passion for helping the community through making Maunalua Bay a

safer environment for boaters and ocean users.” Mr. Christiansen stated that “Mr.

Miske takes an active role in the community and accomplishes tasks not just for

personal gain, but for the greater use of all community members.” Mr.

Christiansen finds that Mr. Miske’s “drive and determination to improve the

community is exemplary of his overall character.” (EX 1, p.3).

III. Mr. Miske’s Awareness of, and Conduct During, the Government’s Investigation Favor Release

The Government’s criminal investigation into Mr. Miske has been protracted

and all-encompassing. By October 2016, financial institutions had begun

terminating their relationships with Mr. Miske and his companies, refusing, for

example, to allow him to continue to deposit KTPC’s revenues from bona fide

termite and pest control services. Mr. Miske did not, as the government contends

(Dkt. # 22-1, p.22), make a “concerted and comprehensive effort to disassociate

himself from KTPC and the other companies he controls in order to avoid


9

prosecution and tracing of his assets.” Instead, he employed qualified individuals

to serve as corporate officers and managers and signatories on KTPC bank

accounts, so that KTPC could continue to provide bona fide termite and pest

control services, notwithstanding the Federal Government’s criminal investigation

into him. At all times, Mr. Miske accurately reported his ownership interest in

KTPC on his tax returns, and he report all revenues he received from KTPC.

Over time, several financial institutions terminated banking relationships

with Mr. Miske and KTPC, without explanation. Since Mr. Miske had not

engaged in suspicious financial transactions which would have warranted such

actions, the obvious inference was that the Federal Government’s criminal

investigation targeting Mr. Miske was ongoing. Therefore, in July 2017, Mr.

Miske retained attorney Lynn E. Panagakos to represent him (see attached

Declaration of Ms. Panagakos).

Shortly thereafter, on August 10, 2017, the FBI executed a warrant to seize

and search the Boston Whaler referenced in Count Six of the Superseding

Indictment (p.18, ¶17.b). Mr. Miske authorized attorney Panagakos to accept

service of the warrant on his behalf, and he informed the FBI where the keys were

located, in order to facilitate the FBI’s seizure of the boat (Panagakos Dec., ¶2).

This warrant authorized the Government to search for “[a]ll records and evidence

relating to violations of 18 U.S.C. § 1958 (Use of Interstate Commerce Facilities in


10

the Commission of Murder-for-Hire), involving Miske and others known and

unknown, occurring on or about June 14, 2016 to August 30, 2016. . .” (Panagakos

Dec., ¶3).

Thus, by August 10, 2017, Mr. Miske knew that: (1) he was the target of an

FBI investigation into an alleged murder-for-hire which could be charged against

him as a capital offense (and which now forms the basis for Counts 2-6 of the

Superseding Indictment); and (2) the FBI had made an ex parte submission to a

United States Magistrate Judge which resulted in a finding of probable cause

against Miske (Panagakos Dec., ¶4). Mr. Miske did not respond by intimidating

potential witnesses or by making plans to flee. Instead, Mr. Miske retained

attorney Thomas Otake to lead his Federal criminal defense team (Panagakos Dec.,

¶5). By email to Government counsel dated August 15, 2017, Ms. Panagakos

informed the Government that she and Mr. Otake jointly represented Mr. Miske,

that they were authorized to accept service of any warrant, summons, subpoena,

etc., on his behalf, and that they requested the opportunity to make arrangements

for Mr. Miske’s self-surrender in the event that criminal charges were filed

(Panagakos Dec., ¶6).

On May 29, 2018, the FBI appeared on the local news and publicly offered a

$20,000 reward for information concerning the disappearance of Jonathan Fraser,

and publicly disclosed that they had persons of interest who could fall under FBI


11

jurisdiction. https://www.khon2.com/news/fbi-now-involved-in-case-of-missing-

hawaii-kai-man/. Based on the above-described search warrant, Mr. Miske was

well aware that he was a person of interest whom the FBI viewed as under its

jurisdiction. Again, Mr. Miske did not respond by intimidating potential

witnesses or by making plans to flee. Instead, in anticipation of his eventual arrest

and government motion to detain him pending trial, Mr. Miske began assembling

character reference letters to be submitted to the Court in support of his anticipated

request for pretrial release. (EX 1).

In addition, by January 2019, Mr. Miske was aware that the scope of the

Government’s investigation into him also included alleged tax fraud offenses

(Hines Dec., p.2-3, ¶7). By letter dated January 4, 2019, the firm which employed

Mr. Miske’s long-time CPA terminated its relationship with Mr. Miske, KTPC,

and all other entities associated with Mr. Miske (Panagakos Dec., ¶7). Again, Mr.

Miske did not respond by intimidating these witnesses, or by making plans to flee.

Instead, Chris Cannon, an attorney for KTPC, retained forensic accountant

Kenneth J. Hines, “to examine the books and records of Kama’aina Termite and

other entities” and “to provide Mr. Cannon with an accurate report regarding the

finances of Mr. Miske and his associated entities to begin to prepare a defense of

his anticipated indictment.” (Hines Dec., p.3, ¶¶ 7-8) Mr. Hines is particularly

well-suited to this job, due to his 25-year career with the IRS, where he rose to


https://www.khon2.com/news/fbi-now-involved-in-case-of-missing-hawaii-kai-man/

https://www.khon2.com/news/fbi-now-involved-in-case-of-missing-hawaii-kai-man/

12

numerous high-level positions, including approximately 7 years as Special Agent

in Charge of Criminal Investigation Field Offices (including the Seattle Field

Office which has jurisdiction over criminal tax, money laundering and other

financial investigations in Hawaiì), and 1 year as the Director of Field Operation,

Criminal Investigation, Pacific Area (Hines Dec. p.1-2, ¶1). Mr. Hines has

reported that “Mr. Miske was always cooperative, provided [Mr. Hines] with what

[he] asked, and gave [Mr. Hines] access to his companies’ QuickBooks.” (Hines

Dec., p.3, ¶9).

Ms. Varnadore, who has been a close friend of Mr. Miske and his family for

the past 12 years, stated that she could “personally attest to his character and desire

to remain with his family until these charges are resolved.” EX 1, p.1. Allen Lau,

Mr. Miske’s cousin and business partner, has also stated that he “can personally

guarantee that Mike will continue to stay in Hawaiì . . . until his trial is over.”

EX 1, p.6.

Mr. Miske’s conduct during the past three years, with full knowledge that he

was a target of an investigation into potential capital offenses and other offenses,

demonstrates that if released, he would remain in Hawaiì, appear as required, and

work lawfully with his attorneys to mount a vigorous defense without endangering

anyone in the community.


13

IV. Mr. Miske Does Not Present an Unmitigable Danger to the Community

The Government contends that the “nature and circumstances of Miske’s

offenses” constitute evidence of dangerousness which require detention (Dkt. #22-

1, p.8-11). The government’s entire argument in this regard is based on the

impermissible presumption that Mr. Miske actually committed the offenses

charged in the Superseding Indictment. The government impermissibly relies on

the allegations in the Superseding Indictment, and additional uncharged

inflammatory allegations, as facts which actually occurred, and then contends that

these facts demonstrate Mr. Miske’s propensity for future violence which is not

mitigable through conditions of release. The government’s argument is foreclosed

by Montamedi, 767 F.2d at 1408, which makes clear that the Bail Reform Act

precludes denial of bail based on preliminary determination of guilt.

The charges themselves, without reliance on the impermissible presumption

that Mr. Miske actually committed the offenses charged, do not give rise to an

unmitigable risk of future dangerousness if released. The date of the last specific

act alleged against Mr. Miske is in October 2017. Despite the Government’s

massive, all-encompassing, multi-agency investigation, which has included hours

of physical and electronic surveillance, the government has not alleged any

specific instance of dangerous conduct by Mr. Miske in almost three years.

Moreover, the most serious charges against Mr. Miske, the alleged murder-


14

for-hire/VICAR murder of Jonathan Fraser, are not indicative of future dangerous.

The Superseding Indictment and the Government’s Motion to Detain allege that

Mr. Miske’s involvement in these alleged offenses stemmed from his belief that

Mr. Fraser was responsible for the fatal car crash which resulted in the tragic death

of Mr. Miske’s son. The uniqueness of the circumstances which gave rise to these

allegations are such that they cannot be a predictor of a risk of future violence.

Likewise, the person identified as “Victim-2” in Counts 8 and 9 of the Superseding

Indictment has given interviews in the media where he alleges that the assault

committed against him was in retaliation for his alleged refusal to participate in the

alleged murder-for-hire conspiracy resulting in the death of Mr. Fraser. Again,

the uniqueness of the circumstances which gave rise to these allegations are such

that they cannot be a predictor of a risk of future violence.

There is also another aspect to the uniqueness of the charges in this case

which bears notice, and which further weakens the Government’s contention that

the nature of the charges require detention. The Government alleges that Mr.

Miske was the unquestioned leader of a racketeering enterprise. However, this is

not a case which charges a racketeering enterprise that has previously been

recognized to exist. Therefore, this case is very different from other RICO cases

where, for example, the racketeering enterprise consists of a La Cosa Nostra Mafia

family, or the Yakuza, or the Crips or Bloods, or the Hells Angels, which have all


15

previously been proven to constitute violent racketeering enterprises. Here, by

contrast, the Superseding Indictment alleges that the racketeering enterprise

included KTPC, a highly respected and prosperous business and employer of many

law-abiding employees, other legitimate business entities, and numerous

individuals, many of whom had no nexus to these entities. This alleged

racketeering enterprise has never been proven to exist, and may very well turn out

to be a Government fiction.

Other defendants who have faced death-penalty eligible VICAR murder

charges based on established or at least stronger RICO enterprise theories have

been granted pretrial release. See United States v. Jonathan Joseph Nelson, et al.,

Cr. No. 17-0533-EMC (N.D. CA) (Dkt. No. 374, Superseding Indictment charging

Hells Angels as RICO Enterprise; Dkt. No 513, granting pretrial release to

defendant Russel Ott while he was facing death-penalty eligible VICAR murder

charge); United States v. Palafox, et. al. CR 16-265-GMN (D. NV) (Dkt. # 13,

Superseding Indictment charging Vagos Outlaw Motorcycle Gang as RICO

enterprise; Dkt. Nos. 262, 389, 390, granting pretrial release to defendants Bradley

Campos, Cesar Morales, and Diego Garcia when each was facing death-penalty

eligible VICAR murder charge).

The government also contends that Mr. Miske’s “drug activity”

demonstrates that he presents an unmitigable risk of dangerousness. Here again,


16

the government impermissibly relies on the allegations in the Superseding

Indictment, as well as additional uncharged allegations, as facts. Moreover, the

Government ignores that it obtained its indictment against Miske on one of the two

drug charges in July 2019. In addition, the government was well aware at the time

of the original indictment that it would ultimately be charging Mr. Miske with the

alleged murder-for-hire/VICAR murder of Jonathan Fraser (Counts 2-6), and the

alleged assault with intent to commit murder of “Victim-2 (Counts 8-9), and likely

additional offenses. If Mr. Miske is such a grave danger to the community, why

did the Government not move to detain Mr. Miske at the time of the original

indictment? Instead, Mr. Miske remained in the community, unrestricted, for

another year, during which time he is not alleged to have committed any acts

which are probative of dangerousness.

The government’s contention that the weight of the evidence against Mr.

Miske supports detention is unpersuasive. The government cites general

categories of types of evidence, but it does not actually proffer any specific

evidence against Mr. Miske. For example, the government asserts that search

warrants executed at physical locations and on vehicles have resulted in the seizure

of drugs and firearms, but neglects to mention that no such items have been seized

from Mr. Miske or any of his properties or vehicles. Likewise, the government

asserts that they have hours of Title-III court-authorized electronic surveillance,


17

but neglects to mention that these wiretaps did not result in the interception of any

material statements made by Mr. Miske. The fact that the government has seized

email accounts, and obtained forensic extractions of multiple cellular telephones,

and called numerous witnesses to testify before the grand jury, says absolutely

nothing about the substance or reliability of any specific evidence which arguably

incriminates Mr. Miske. See United States v. Jonathan Joseph Nelson, et al., Cr.

No. 17-0533-EMC (N.D. CA) (Dkt. No. 513, granting pretrial release to death

eligible defendant who had committed pretrial release violation where government

proffered that evidence consisted of phone records, location information,

information about missing victim and his burnt truck, and confidential witness

statements, reasoning that government did not provide any basis upon which court

could evaluate strength of evidence case against particular defendant). Besides,

the weight of the evidence is the least important factor for the Court to consider in

deciding whether to grant Mr. Miske pretrial release. E.g., Montamedi, 767 F.2d at

1408 (reversing district court’s detention order which “accorded great weight to the

charges against Montamedi and the Government’s assertion of guilt.”).

V. Mr. Miske is Not a Flight Risk

The government contends that Mr. Miske’s sentencing exposure makes him

a flight risk. This government contention ignores the fact that Mr. Miske has been

aware of this sentencing exposure since August 2017, and he has not made any


18

plans to flee. To the contrary, as demonstrated in Section III, supra, and the

attached Declarations and Exhibits, Mr. Miske’s conduct during the past three

years constitutes compelling evidence of his commitment to remain in Hawaiì,

appear as required, and mount a lawful and vigorous defense. Moreover, if, as the

government contends, the mandatory minimum drug charges render Mr. Miske an

unmitigable flight risk, why did the government not move to detain him on this

basis in July 2019, when the indictment on one of these drug charges was returned?

The government contends that Mr. Miske’s alleged “vast financial

resources” render him a flight risk. This government contention ignores the fact

that the government has seized: (1) Mr. Miske’s personal bank account; (2) the

bank accounts of KTPC and the other business entities; (3) all vehicles of any

significant value; and (4) the Boston Whaler. The government has also obtained a

restraining order on a second vessel,1 and has filed Lis Pendens’ on all three real

properties identified in the Superseding Indictment’s forfeiture notices.

1 Contrary to the government’s statements in the media, the above-referenced

asset seizures are not based on the charges in the Superseding Indictment. Rather, the seizure of the Boston Whaler and the restraining order against the other vessel are based on an allegation that in 2010, at a time when Mr. Miske had all appropriate licenses and was a qualified Responsible Managing Employee (RME) for KTPC, he violated a Hawaiì Administrative Rule by listing another licensed, qualified individual with whom KTPC had a business relationship as a KTPC RME, when such individual was not actually eligible to serve as a KTPC RME due to his relationship with another company. The bank account seizures are based on other RME-related allegations.


19

Therefore, Mr. Miske has no assets with which to flee. To the contrary, his

liabilities far exceed his assets.

The government has also pointed to $392,926.14 which is currently held in

an escrow account, which, the government contends, Mr. Miske can access at any

time, subject to applicable tax obligations. In fact, Mr. Miske cannot access these

funds at any time. First, if Mr. Miske is able to execute the appropriate paperwork

to request the release of these funds, Old Republic Exchange has reported that the

funds will be held in escrow until mid-November 2020. In addition, as the

Government knows, these funds represent the proceeds of the sale of real property

on William Henry Road. This property was jointly owned with another

individual. Therefore, the amount of funds that would ultimately be available to

Mr. Miske would not only be subject to applicable tax obligations but also to this

other individual’s ownership interest. Besides, all parties now have advance

notice as to when the funds would become available. Mr. Miske would propose to

use his portion of the available funds to post cash bail if warranted, or in the

alternative, to continue to fund his defense. There is simply no risk that if

released, he would use these funds to flee.

The government claims that from 2010 through 2017, Mr. Miske spent

nearly $8,000,000 in unexplained income (Dkt. # 22-1, p.20). This claim has no

merit whatsoever, and has been completely debunked by the attached Declaration


20

of Kenneth J. Hines. As Mr. Hines explained (Hines Dec., p.6):

18. The government claims in its Memorandum in Support of its Motion to Detain (p.20) that Miske had $8 Million of “additional unexplained income”. This figure is unsupported by any detail. The government bases its claim of “unsubstantiated income” on a “review of financial transactions” from 2010 to 2017. Based solely on the totals from paragraph 13 above, Kama’aina Termite alone had gross income of $34,662,304 from 2014 through 2018, all of which was reported on tax returns as described. 19. The government’s claim that Miske had $8 Million of “additional unexplained income” stems from its premise that Miske’s tax returns show that he “had ‘only’ $7,921,506 available to spend on personal expenses after taxes.” This is a false premise, because tax returns do not show non-taxable sources of money, or the availability of assets, they therefore do not show the amount of money available to an individual for personal expenses. The Government’s Memorandum in Support of its Motion to Detain does not present any factual basis to support its conclusory allegation that Mr. Miske spent nearly $8,000,000 in unexplained income.

Moreover, the government’s allegation is contradicted by the information

Mr. Hines presented as to the amount of taxes that Mr. Miske and KTPC have

actually paid. For the years 2014 through 2018, Mr. Miske paid personal federal

income taxes totaling $2,886,397.00, and personal state income taxes totaling

$740,081 (Hines Dec., p.5-6, ¶¶15-17). During these same years, KTPC also paid

$1,878,012 in excise, payroll and property taxes (Hines Dec., p.5, ¶14).

Mr. Hines has not seen any signs of money being siphoned off to hidden or

unknown entities (Hines Dec., p.7, ¶ 21). To the contrary, Mr. Miske’s


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investments in real properties demonstrate his ties to the community (Hines Dec.,

p.6-7, ¶¶16).

In sum, Mr. Miske’s financial affairs are totally inconsistent with a plan to

flee. Moreover, Mr. Miske does not even have a current passport.

VI. COVID-19, and the Resulting Infringement of Mr. Miske’s Rights to Access to Counsel and to Assist in the Preparation of His Defense, Favor Release

As of this writing, on August 7, 2020, the surge in COVID-19 cases on

Oahu is out of control, with a “jaw-dropping” 200 cases being reported overnight,

the highest number of reported cases in a single day.

https://www.hawaiinewsnow.com/2020/08/07/hawaii-reports-additional-covid-

deaths-new-coronavirus-cases/. Hawaiì is currently among the states with the

largest percentage of increase in COVID-19 cases. On August 5, 2020, two days

before our highest single-day 200-case count, Hawaiì News Now reported a 231%

increase in cases during the preceding two-week period. The only state with a

higher surge was New Jersey.

https://www.hawaiinewsnow.com/2020/08/05/watch-this-is-now-hawaii-among-

states-with-largest-percentage-increase-covid-cases/. Also this week, FDC

Honolulu reported that one current inmate, and one inmate who was released two

days after being tested, have both tested positive for COVID-19.

https://www.hawaiinewsnow.com/2020/08/03/federal-detention-center-honolulu-


https://www.hawaiinewsnow.com/2020/08/07/hawaii-reports-additional-covid-deaths-new-coronavirus-cases/

https://www.hawaiinewsnow.com/2020/08/07/hawaii-reports-additional-covid-deaths-new-coronavirus-cases/

https://www.hawaiinewsnow.com/2020/08/05/watch-this-is-now-hawaii-among-states-with-largest-percentage-increase-covid-cases/

https://www.hawaiinewsnow.com/2020/08/05/watch-this-is-now-hawaii-among-states-with-largest-percentage-increase-covid-cases/

https://www.hawaiinewsnow.com/2020/08/03/federal-detention-center-honolulu-confirms-case-covid-/

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confirms-case-covid-/. Mr. Miske suffers from high blood pressure, which

renders him at higher risk of severe illness from COVID-19.

Courts in countless cases have granted defendants release due to the

heightened dangers that COVID-19 presents within prisons and detention facilities,

including granting release to pretrial defendants who had already been ordered

detained. See, e.g., United States v. Meekins, Case No. 1:18-cr-222-APM, Dkt.

No. 75 (D.D.C. Mar. 31, 2020) (post-plea, pre-sentence release order releasing

defendant with three pending assault charges due to extraordinary danger COVID-

19 poses to individuals in detention); United States v. Davis, No. 1:20-cr-9-ELH,

Dkt. No. 21 (D. Md. Mar. 30, 2020) (releasing defendant due to the “urgent

priority” of decarcerating, to protect both the defendant and the community, and to

preserve Sixth Amendment rights in this perilious time); United States v. Hector,

Case No. 2:18-cr-3-002, Dkt. No. 748 (W.D. Va. Mar. 27, 2020) (granting release

pending sentencing after Fourth Circuit remanded detention decision requiring

court to specifically consider extraordinary danger posed by COVID-19 to

individuals in prison); United States v. McLean, No. 19-cr-380, Dkt. No. (D.D.C.

Mar. 28, 2020) (“As counsel for the Defendant candidly concedes, the facts and

evidence that the Court previously weighted in concluding that Defendant posed a

danger to the community have not changed – with one exception. That one

exception – COVID-19 – however, not only rebuts the statutory presumption of


https://www.hawaiinewsnow.com/2020/08/03/federal-detention-center-honolulu-confirms-case-covid-/

23

dangerousness, see 18 U.S.C. § 3142(e), but tilts the balance in favor of release.”);

United States v. Jaffee, No. 19-cr-88 (D.D.C. Mar. 26, 2020) (releasing defendant

with criminal history in gun & drug case, citing “palpable” risk of spread in jail

and “real” risk of “overburdening the jail’s healthcare resources”; “the Court is . . .

convinced that incarcerating the defendant while the current COVID-19 crisis

continues to expand poses a greater risk to community safety than posed by

Defendant’s release to home confinement”).

Moreover, where, as here, COVID-19 conditions preclude a defendant from

effectively participating in the preparation of his defense, or give rise to another

compelling reason, 18 U.S.C. § 3142(i)(4) constitutes a separate, statutory ground

for pretrial release. Section 3142(i)(4) authorizes the Court to grant temporary

pretrial release when such release is “necessary for the preparation of the person’s

defense or for another compelling reason.” In United States v. Keith Kennedy,

Case No. 18-20315 (E.D. MICH, 3/27/20, Dkt. #77) and United States v. Michaels,

8:16-cr-76-JVS, Minute Order, dkt. #1061 (C.D. Cal. Mar. 26, 2020), the Courts

applied Section 3142(i)(4) to grant release to defendants due to impacts from

COVID-19. For the reasons set forth below, Section 3142(i)(4) applies with even

greater force to Mr. Miske.

Mr. Miske’s Sixth Amendment right to counsel includes the “right to

counsel learned in the law applicable to capital cases, who shall have free access to


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the accused at all reasonable hours.” 18 U.S.C. § 3005. Under current COVID-

19 conditions, and given the fact that learned counsel does not reside in Hawaiì, it

is impossible to afford Mr. Miske this right while he is in custody. It is impossible

for learned counsel to meet in person with Mr. Miske. See, e.g., Ching v. Lewis,

895 F.2d 608, 610 (9th Cir. 1990) (“a prisoner’s right of access to the courts

includes contact visitation with his counsel”). There is no end in sight to this

impossibility. And even when the travel quarantine is lifted and in-person

meetings with inmates are permitted, extensive meeting time will be necessary,

which would unduly increase the risk of further transmission of COVID-19 into

FDC. In addition, legal calls have proven to be totally ineffective for any

meaningful review of complex evidence and discussion of defense strategy and

preparation. Further, even the confidentiality of Mr. Miske’s legal mail has been

infringed. As explained in Ms. Panagakos’ attached Declaration, ¶8, FDC

Honolulu has inexplicably monitored Mr. Miske’s confidential and privileged legal

mail, and sent it to an attorney in the United States Department of Justice, Office of

Inspector General (Panagakos Dec., ¶8). Given these circumstances, Mr. Miske’s

Sixth Amendment and statutory right to access to counsel at all reasonable hours

constitutes a compelling reason to grant him release.

Mr. Miske’s continued pretrial detention will also deprive him of his right to

assist in the preparation of his defense. Mr. Miske’s 14-day quarantine period


25

ended on August 4, 2020. However, as of today, August 7, 2020, Mr. Miske

remains in the S.H.U. Even in non-COVID times, the constraints of the S.H.U.

would render it exceedingly difficult for Mr. Miske to effectively assist in the

preparation of his defense. In our current COVID times, it is impossible. For

example, the Government has advised that its first discovery production is

expected to comprise approximately 100,000 pages. Discovery is also expected to

include forensic extractions of cell phones, as well as email/iCloud search

warrants. It is impossible to effectively review this discovery without a computer.

Under current COVID-19 constraints, and under S.H.U. constraints, Mr. Miske

will be deprived of meaningful access to a computer to review his discovery. Due

to Mr. Miske’s inability to effectively review his voluminous and complex

discovery and consult with counsel, release is “necessary for the preparation of

[Mr. Miske’s] defense.” 18 U.S.C. § 3142(i)(4).

Given Mr. Miske’s demonstrated record of recognizing the importance of,

and valuing, his right to counsel, and his demonstrated commitment to mounting a

lawful, vigorous defense to the charges against him, he would have every incentive

to comply with conditions of release, so that he could be afforded his right to

access to counsel and to effectively assist in the preparation of his defense.


26

VII. The Bail Reform Act Requires Release Because Mr. Miske’s Proposed Release Plan is Sufficient to Reasonably Assure the Safety of the Community and His Appearance as Required

The ultimate issue is not whether Mr. Miske poses a danger or a flight risk.

Rather, the government must prove: (1) by clear and convincing evidence, that no

combination of conditions of release would reasonably assure the safety of others

and the community; or (2) by a preponderance of evidence, that no combination of

conditions would reasonably assure Mr. Miske’s appearance as required. Any

doubts about the propriety of release must be resolved in Mr. Miske’s favor.

Montamedi, supra, 767 F.2d at 1405.

Mr. Miske proposes the following release plan:

• Release to one of his residences; • Home Incarceration, which would restrict him to the residence

on a 24-hour-a-day lock-down except for medical necessities, court appearances, attorney visits, or other activities specifically approved by the Court;

• GPS Monitoring; • Reside with two third party custodians, his cousin Maile Miske

Zambuto and his mother; • A third-party custodian or other individual approved by Pretrial

Services to be present with Mr. Miske in the residence at all times, 24 hours per day, 7 days per week;

• Third party custodian or other individual approved by Pretrial

Services to escort/monitor Mr. Miske at all times when he is approved to leave to residence for Court authorized activities;


27

• Mr. Miske would not have any visitors unless they were approved in advance by Pretrial Services;

• Third party custodians to co-sign signature bond; • Mr. Miske will not possess or use a cellular telephone,

computer, or any other digital device with internet access, except that he could have telephone calls with individuals approved by Pretrial Services in the presence of defense counsel or a third-party custodian;

• Mr. Miske would be prohibited from having access to social

media from any device and from any and all locations; and • Security cameras to be installed outside all doorways where

individuals could enter or exit the residence.

Given the presumption of innocence, a defendant’s “right to bail should be

denied only for the strongest of reasons.” Montamedi, supra, at 1407. Based on

the information set forth above and in the attached Declarations and exhibits, Mr.

Miske respectfully submits that such reasons do not exist here. Accordingly, Mr.

Miske respectfully requests that the Court grant him pretrial release.

DATED: Honolulu, Hawaiì, August 7, 2020.

/s/ Lynn E. Panagakos THOMAS M. OTAKE LYNN E. PANAGAKOS MICHAEL N. BURT Attorneys for Defendant MICHAEL J. MISKE, JR. (01)


Documents

DEFENDANT MICHAEL J. MISKE, JR.’S … /2020/miske-141-1.pdf3 the teeth of Congress’s clear intent that only a limited number of defendants be subject to pretrial detention.”