USA v. Miske, et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL J. MISKE, JR., 	(1)
Defendant.
Case No. 19-cr-00099-DKW-KJM-1
ORDER (1) GRANTING APPEAL
OF THE UNITED STATES OF
AMERICA, (2) DENYING AS MOOT
APPEAL OF DEFENDANT
MICHAEL MISKE, AND (3)
AFFIRMING ON OTHER
GROUNDS DECISION OF U.S.
MAGISTRATE JUDGE
Both the United States of America and Defendant Michael Miske appeal
decisions of the assigned U.S. Magistrate Judge regarding service by Attorney
Thomas Otake as counsel for Miske. 	Dkt. Nos. 803-804. 	Miske appeals the
February 9, 2023 decision to terminate Otake’s representation due to an alleged
conflict under Hawai‘i Rule of Professional Conduct (HRPC) 1.9(a). 	The
government appeals the Magistrate Judge’s January 18, 2023 decision denying
Otake’s motion to withdraw due to an alleged conflict under HRPC 3.7(a).
Having reviewed the parties’ briefing on the appeals, the record generally,
including the sealed and unsealed portions of the various hearings held by the
Magistrate Judge, and the pertinent case law, for the reasons discussed more fully
herein, the Court agrees that the Magistrate Judge clearly erred in denying Otake’s
motion to withdraw. 	Specifically, under HRPC 3.7(a), the Court does not agree
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that Miske would suffer substantial hardship if Otake was allowed to withdraw from
this case. 	Among other things, even with Otake’s withdrawal, Miske would still be
represented by two very capable and experienced criminal defense attorneys−one of
whom has represented Miske on this case for as long as Otake and possesses a far
greater “command and understanding of the enormous amount of discovery in this
case” when compared to Otake. 	In addition, as the government rightly observes,
the “substantial hardship” inquiry under HRPC 3.7(a) requires a balancing between
Miske’s interests and those of the Court and the government. 	Here, at the very
least, Miske’s interests are significantly diminished and the prejudice to the
government enhanced due to decisions that Miske himself made in involving Otake
in the event at issue. 	Therefore, the government’s appeal, Dkt. No. 804, is
GRANTED. 	Because the Court finds that Otake should have been allowed to
withdraw for reasons independent of those at issue in Miske’s appeal, the same is
DENIED AS MOOT.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. Section 636(b)(1)(A), with certain exceptions not
applicable here, a district court may reconsider the decision of a Magistrate Judge on
a pretrial matter only when the decision is clearly erroneous or contrary to law.
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DISCUSSION
The Court begins by addressing the appeal of the government, initially with
some procedural context. 	On January 13, 2023, Otake filed a motion to withdraw
from representing Miske in this case. 	Dkt. No. 727. 	On January 18, 2023, the
Magistrate Judge denied Otake’s motion to withdraw. 	Dkt. No. 735. 	Specifically,
the Magistrate Judge found that Otake’s withdrawal would work a “substantial
hardship” on Miske under HRPC 3.7(a).1 	Tr. of 1/18/23 Hearing at 9:8-20, Dkt.
No. 757.
On January 24, 2023, the government filed a motion to reconsider the
Magistrate Judge’s January 18, 2023 ruling. 	Dkt. No. 739. 	Therein, the
government relied upon the same matter raised by Otake in his motion to withdraw,
as well as various conflicts that had not been disclosed to the Magistrate Judge.
After briefing on the government’s motion to reconsider, the Magistrate Judge
granted the same. 	Dkt. No. 789. 	Specifically, the Magistrate Judge found that a
conflict existed under HRPC 1.9(a) with respect to former clients of Otake referred
to as Client 1 and Client 2. 	Because of this ruling, the Magistrate Judge did not
address the reasons for denying Otake’s motion to withdraw under HRPC 3.7(a),
and the government now appeals that original decision. 	Dkt. Nos. 804, 813.
1 Rule 3.7(a) provides that:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the
testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
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The government, first, argues that Otake is a “necessary” witness under
HRPC 3.7(a) with respect to a meeting involving Miske, Otake, and an individual
referred to as “Cooperator 1.” 	In that regard, according to the government, it will
present evidence that, after traveling to California to purchase cocaine with money
provided by Miske, Cooperator 1 was arrested in possession of cocaine, released by
authorities, and then returned to Hawai‘i. 	Upon returning, a meeting was arranged
by Miske between himself, Cooperator 1, and Otake. 	At this meeting, Cooperator 1
told Otake what happened in California and, in response, Otake said that it would be
“unusual” for Cooperator 1 to be released under the circumstances described. 	The
government asserts that Otake will be necessary to testify about the “substance and
purpose” of the meeting and the accuracy of Cooperator 1’s testimony. 	The
government further argues that Otake’s withdrawal would not work a “substantial
hardship” on Miske because he has other capable counsel, the trial date has been
continued since the January 18, 2023 decision of the Magistrate Judge, and, to the
extent Miske suffers any hardship, it is of his own making.
In opposition, Dkt. No. 811, Miske, first, argues that Otake will not be a
necessary witness with respect to a contested issue. 	Specifically, for the first time,
Miske asserts that, at trial, he will not contest Cooperator’s 1 anticipated testimony
that a meeting took place between Miske, Otake, and Cooperator 1. 	Miske further
argues that Otake’s testimony will be constrained by the attorney-client privilege.
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Miske also asserts that Otake’s disqualification would result in substantial hardship
due to the longstanding relationship between Otake and Miske, Otake’s experience
and skills, and the complexity of this case. 	Finally, Miske asserts that he is willing
to “waive” any potential conflict that may arise from the meeting between him,
Otake, and Cooperator 1.
Having reviewed the foregoing, the record, and applicable law, as more fully
set forth below, the Court finds that the Magistrate Judge clearly erred in denying
Otake’s motion to withdraw. 	The Court begins with HRPC 3.7(a)’s requirement
that, for the rule to apply, a lawyer must likely be a “necessary” witness at trial. 	As
the Court has recently explained in this case, the Hawai‘i Supreme Court has
provided some guidance on the meaning of this phrase:
For example, in State v. Plichta, 172 P.3d 512 (Haw. 2007), the
Hawai‘i Supreme Court explained that Rule 3.7 is “often applied in the
situation where the lawyer is a necessary impeaching witness, that is, as
the means by which another witness’ prior inconsistent statement is to
be proved….” 	Id. at 532 (alteration and quotation omitted). 	In
addition, in the context of the American Bar Association’s Disciplinary
Rule (DR) 5-102(A), which contains similar, albeit not identical,
language to Rule 3.7(a) on the matter of a lawyer becoming a witness,
the Hawai‘i Supreme Court has explained that, in determining whether
to disqualify a lawyer on this basis, a court should base its
determination “on a considered evaluation of all pertinent factors
including, inter alia, the significance of the matters to which he might
testify, the weight his testimony might have in resolving such matters,
and the availability of other witnesses or documentary evidence by
which these matters may be independently established.” 	Chuck v. St.
Paul Fire & Marine Ins. Co., 606 P.2d 1320, 1325 (Haw. 1980).
Dkt. No. 797 at 3-4 (footnote omitted).
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In this light, the Court finds that Otake will be a “necessary” witness in this
case with respect to the meeting between Miske, Otake, and Cooperator 1.
Specifically, Otake will be necessary to corroborate the expected testimony of
Cooperator 1. 	As mentioned, the meeting in question involved three individuals:
Miske, Otake, and Cooperator 1. 	Only two of those individuals—Otake and
Cooperator 1—can be called by the government to testify about the meeting.
Evidently, the government intends to call Cooperator 1 to testify. 	In a vacuum,
therefore, Cooperator 1 could, arguably, be the “necessary” witness for the meeting,
rendering Otake as superfluous. 	However, no such vacuum exists or is likely to
exist. 	Instead, it is clear from Miske’s filings in this case that his counsel intend, as
is their right, to vigorously cross-examine Cooperator 1 about a swath of conduct in
which Cooperator 1 may have engaged and alleged stories that he may have told.
The hope being, of course, that a jury finds Cooperator 1’s testimony, on all topics,
to be unworthy of belief, including his testimony implicating Miske in the California
cocaine deal relevant to Count 15 of the Third Superseding Indictment. 	Miske’s
last-minute concession that certain parts of Cooperator 1’s testimony will not be
contested, therefore, is of little import when the vast majority, if not the entirety, of
Cooperator 1’s cross-examination will involve an effort to undermine his credibility.
And this is why Otake’s testimony becomes necessary − because, instead of the
record simply being merely silent on the accuracy of Cooperator 1’s testimony
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regarding the meeting, Otake can affirmatively corroborate that at least part of
Cooperator 1’s testimony is accurate.2 	Put another way, Cooperator 1’s credibility
will be a contested issue at trial, and Otake is the only witness who can corroborate
the portion of his testimony related to their meeting with Miske.3 	For the same
reasons, the Court further finds Otake’s likely testimony to be significant and
weighty when assessing the credibility of Cooperator 1. 	Therefore, the Court finds
that Otake is a “necessary” witness on this matter. 	See Chuck, 606 P.2d at 1325.
The remaining question under HRPC 3.7(a) is whether Otake’s withdrawal
will work a “substantial hardship” on Miske. 	In making this determination, the
“comments” to HRPC 3.7(a) state that “a balancing is required between the interests
of the client and those of the tribunal and of the opposing party.” 	HRPC 3.7, cmt. 4.
After balancing those interests, the Court finds that Miske will not suffer a
substantial hardship from Otake’s withdrawal. 	First, the Court acknowledges that,
in light of the length of Otake’s representation of Miske and Otake’s reputation and
success as a trial lawyer, there will be a hardship caused by Otake’s departure from
this case. 	HRPC 3.7(a), however, requires more than hardship alone. 	Instead, the
hardship must be substantial. 	Here, the Court does not believe it will be. 	Notably,
2 Suggesting that Otake can simply “stipulate” around the necessity of his testimony, as Miske
suggests, Dkt. No. 811 at 14, is plainly insufficient. 	Specifically, there is no substitute for the jury
hearing Otake in-person corroborating a portion of Cooperator 1’s testimony, particularly when
the proposed substitute is the reading of a stipulation into the record.
3 At a minimum, Otake will confirm that the three-way meeting, in fact, occurred, a matter of some
import apart from the contents of that meeting. 	See Dkt. No. 811 at 14; Dkt. No. 813 at 2-3.
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unlike the client in United States v. Cunningham, 672 F.2d 1064 (2d Cir. 1982),
Miske will still be represented by two very capable attorneys−Ms. Panagakos and
Mr. Kennedy. 	Id. at 1068, 1070-71 (involving the representation of a single
attorney). 	Panagakos has extensive experience in defending persons charged with
federal crimes in this State. 	She also, as Otake confirms, see 1/13/23 Decl. of
Thomas Otake at ¶ 19, is the one attorney with the “command and understanding of
the enormous amount of discovery in this case”−the same discovery upon which
Miske relies as contributing to the hardship here, see Dkt. No. 811 at 21. 	She has
also represented Miske for as long as Otake in this case, which is another basis upon
which Miske relies as establishing hardship. 	Id.4 	For his part, Kennedy, although
involved in this case since only November 2022, also has extensive and successful
experience in federal criminal trials, including in cases involving charges like the
ones here. 	In other words, the record clearly reflects that Kennedy and Panagakos
will “more than adequately represent” Miske, even without Otake’s participation.
See Otake Decl. at ¶ 19.
Second, according to Miske, one of Otake’s intended roles was to give the
closing argument. 	Dkt. No. 811 at 20. 	In light of Otake’s expected witness
testimony with regard to Cooperator 1, this would place Otake in an untenable
4 In his opposition, Miske contends that Panagakos and Otake’s “skill set[s]” are “entirely
different….” 	Dkt. No. 811 at 21. 	Miske, however, cannot simply “envision[]” away skills that
Panagakos plainly possesses, see id., such as being an equally capable trial advocate.
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position. 	As discussed, it is clear from the filings in this case that Miske intends to
thoroughly cross-examine Cooperator 1 in order to undermine his credibility before
the jury. 	Otake’s intended role in giving the closing argument would certainly,
therefore, include urging the jury not to believe a word of Cooperator 1’s testimony.
This would be true even though the government has a right to call Otake to
corroborate at least part of Cooperator 1’s testimony. 	In other words, while at
closing Otake would argue one thing, his trial testimony is expected to support
another. 	This creates a number of problems. 	Is the jury to believe Otake’s trial
testimony or his closing argument? 	How is the government meant to challenge
Otake’s closing argument when doing so could undercut the corroboration he
provided as a witness? 	To the extent Otake’s testimony diverges from that of
Cooperator 1, would Otake’s criticism of Cooperator 1 during closing be effectively
vouching for his own testimony? 	Putting the jury, Otake, and the government in
such a position is simply not warranted, particularly where, as here, Panagakos
and/or Kennedy can perform equally well during trial.
Third, any hardship that Miske may suffer from the withdrawal of Otake is
significantly mitigated by the fact that Otake would not have needed to withdraw for
the reasons discussed if Miske had not involved him in the meeting with Cooperator
1. 	In other words, Miske created the situation in which Otake now finds himself.
As mentioned, Miske no longer contests the fact that the three-person meeting took
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place after Cooperator 1 returned from his cocaine-related arrest in California.
Miske further agrees that, at this meeting, Cooperator 1 relayed the events that
transpired in California, and Otake gave a response. 	In this light, at the time of the
meeting, it was more than “reasonably foresee[able]” to Miske that Otake would
“probably” be a witness to the meeting, particularly given that there was only one
other available witness present. 	This is a relevant consideration. 	See HRPC 3.7,
cmt. 4 (“It is relevant that one or both parties could reasonably foresee that the
lawyer would probably be a witness.”). 	It is particularly relevant here, given that
Miske not only could have “reasonably foresee[n]” Otake being a witness to the
meeting, but Miske arranged the meeting, creating the need in the first place.
In summary, although the Court does not dispute that there is a hardship
associated with Otake withdrawing as counsel for Miske, the hardship is not
substantial because Miske is represented by two other very capable defense
attorneys with expertise specific to the charges filed. 	Further, Otake’s
representation of Miske at trial, while simultaneously serving as a necessary witness
to an event material to a charge against Miske, would challenge the integrity of the
proceeding, disadvantage the government, and confuse the jury. 	Finally, any
hardship Miske may suffer from Otake’s withdrawal is mitigated by the fact that
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Miske was the architect of the withdrawal.5 	Accordingly, with respect to Otake, the
Court finds that Miske’s constitutional right to counsel of his choice is outweighed
by the numerous compelling factors discussed herein. 	Therefore, the government’s
appeal, Dkt. No. 803, is GRANTED.6 	Further, because the Court finds that Otake
should have been allowed to withdraw in this regard, it is unnecessary to address
whether the Magistrate Judge clearly erred in terminating Otake’s representation of
Miske on entirely different grounds. 	As a result, Miske’s appeal, Dkt. No. 803, is
DENIED AS MOOT.
CONCLUSION
For the reasons set forth herein, the government’s appeal, Dkt. No. 804, is
GRANTED and Miske’s appeal, Dkt. No. 803, is DENIED AS MOOT. 	The
February 9, 2023 decision of the Magistrate Judge, Dkt. No. 789, is, therefore,
AFFIRMED ON OTHER GROUNDS.
5 In his opposition, Miske offers to “waive” any potential conflict arising from Otake’s role as a
witness to the meeting. 	Dkt. No. 811 at 22-23. 	The offer, however, misses the point. 	As Miske
acknowledges, this matter is not about a “conflict” between Miske and Otake. 	Id. at 11-12.
Rather, it concerns the necessity of Otake’s testimony to the government’s case. 	Given that
Miske, obviously, cannot waive any matter on behalf of the government, there is nothing relevant
for Miske to “waive” in this regard.
6 As discussed, HRPC 3.7(a) prohibits an attorney from acting as an advocate at trial if he is likely
to be a necessary witness. 	The same attorney may presumably continue in service of the same
client in a lesser role, i.e., one which does not involve trial work. 	For instance, in Cunningham,
the Second Circuit explained that the hardship of disqualifying an attorney was “reduced
considerably” by the fact that the attorney was permitted to participate in all aspects of the defense
“except the actual trial.” 	672 F.2d at 1074. 	Here, it does not appear that Miske is seeking any
similar type of arrangement for Otake. 	Rather, Miske “expected” Otake to play an “integral role”
during the actual trial of this case. 	See Dkt. No. 811 at 19-20. 	Otake’s ordered withdrawal thus
serves for all purposes in this case.
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IT IS SO ORDERED.
DATED: March 24, 2023 at Honolulu, Hawai‘i.
United States v. Miske, et al., Case No. 19-cr-00099-DKW-1; ORDER (1) GRANTING
APPEAL OF THE UNITED STATES OF AMERICA, (2) DENYING AS MOOT APPEAL
OF DEFENDANT MICHAEL MISKE, AND (3) AFFIRMING ON OTHER GROUNDS
DECISION OF U.S. MAGISTRATE JUDGE
Derrick K. Watson
Chief United States District Judge
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