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
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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
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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
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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.”
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With regard to Mr. Miske’s broader community ties, Ms. Varnadore
explained: “Michael’s entire life is intrinsically entwined with Hawai`i. He
religiously visits his father’s grave in Kaneohe and his son’s memorial place in
Hawai`i 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 Hawai`i, 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
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(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 “Hawai`i’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 Hawai`i, 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,
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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 Hawai`i 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
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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
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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
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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
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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
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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 Hawai`i), 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 Hawai`i . . . 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 Hawai`i, appear as required, and
work lawfully with his attorneys to mount a vigorous defense without endangering
anyone in the community.
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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-
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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
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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,
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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,
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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
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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 Hawai`i,
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 Hawai`i 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.
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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
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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/. Hawai`i 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, Hawai`i 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-
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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
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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 Hawai`i, 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
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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.
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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;
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• 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, Hawai`i, August 7, 2020.
/s/ Lynn E. Panagakos THOMAS M. OTAKE LYNN E. PANAGAKOS MICHAEL N. BURT Attorneys for Defendant MICHAEL J. MISKE, JR. (01)
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