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., et al.,
Defendants.
Case No. 19-cr-00099-DKW-KJM-1
ORDER OVERTURNING
DECISION OF U.S. MAGISTRATE
JUDGE RELATING TO THE
PRODUCTION OF 18 CELLULAR
TELEPHONES
The government appeals a December 7, 2022 discovery ruling of the
assigned Magistrate Judge ordering the government to produce to Defendants in
this case 18 cellular telephones in the government’s possession (“Magistrate Judge
Order”). 	Dkt. No. 682. 1
The government argues that (1) the Magistrate Judge Order was based upon
“erroneous information” supplied by Defendants, (2) the cellular telephones at
issue here are available for inspection and copying at a Federal Bureau of
Investigation (FBI) Field Office, rendering physical surrender of those phones
unnecessary, and (3) surrender of the cellular telephones may lead to evidentiary
issues at trial. 	In a joint opposition, Defendants respond that they are entitled to
1 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, such as a
discovery ruling, only when the decision is clearly erroneous or contrary to law.
Case 1:19-cr-00099-DKW-KJM Document 720 Filed 01/06/23 Page 1 of 5
PageID.<pageID>

2
extract all available data from the cellular telephones, copying the cellular
telephones at the FBI Field Office would “double” the cost of doing so, and the
Magistrate Judge provided the government with an opportunity to raise any
evidentiary issues, but it instead chose to appeal.
Having reviewed the parties’ briefs and evidentiary submissions, it is
unnecessary for this Court to address all of the arguments raised in order to resolve
the essence of this appeal. 	At its core, this appeal concerns where Defendants and
their expert(s) should inspect and copy the 18 cellular telephones at issue. 	Upon
careful consideration of the parties’ arguments, the Court finds that it is most
appropriate in this instance for the cellular telephones to be inspected and copied at
the FBI’s Field Office, rather than at some other site.
The reasons are three-fold. 	First, the cellular telephones are already in the
government’s possession. 	In fact, this is precisely why Defendants are entitled to
inspect and copy them. 	See Federal Rule of Criminal Procedure 16(a)(1)(E)
(allowing a defendant, upon request, to inspect and copy data and tangible objects
if the data or object is “within the government’s possession, custody, or control”).
The only reason Defendants provide for disturbing this state of possession is the
alleged cost associated with their expert(s) performing the inspection and copying
at the FBI Field Office. 	Other than stating that the cost will be “double”,
Case 1:19-cr-00099-DKW-KJM Document 720 Filed 01/06/23 Page 2 of 5
PageID.<pageID>

3
however, Defendants provide no explanation for why trips to the FBI Field Office
in Kapolei will result in such an increase, nor do they place this cost into any
meaningful context given the likely already extensive cost of discovery in this
four-year-old case. 2 	The Court, therefore, does not find this argument to be
persuasive.
Second, the evidence submitted with the parties’ briefs reflects that
inspecting and copying the cellular telephones at the FBI Field Office is simply
returning the parties to their original understanding. 	Notably, in an email dated
October 31, 2022, counsel for one of the Defendants stated that she wished to
organize an inspection of the cellular telephones “at the FBI office in Kapolei.”
10/31/22 Email from Cynthia Kagiwada to Michael Nammar, Dkt. No. 706-3 at 1-
2. 	A month later, after an exchange of correspondence, an attorney for the
government asked Ms. Kagiwada when she would like to copy the cell phones “at
the FBI” Field Office. 	11/30/22 Email from Michael Nammar to Cindy
2 At the December 7, 2022 hearing before the Magistrate Judge, counsel for one of the
Defendants stated that it would “take hours and hours and be very expensive if we have to go to
FBI and copy the phones.” 	12/7/22 Hearing Transcript at 11:16-17, Dkt. No. 713. 	Counsel
further stated that the expert estimated copying the phones could take between 90-126 hours.
Id. at 23. 	It is unclear whether the latter estimate is the time to copy the cell phones at the FBI
Field Office, at some other site, or both. 	Whatever the case, there is still no explanation as to
why going to the FBI Field Office will add an apparently untold number of hours to the copying
of the cellular telephones. 	As far as the Court can tell, the time to actually copy the cellular
telephones should be similar whether done at the Field Office, a site of Defendants’ choosing, or
elsewhere.
Case 1:19-cr-00099-DKW-KJM Document 720 Filed 01/06/23 Page 3 of 5
PageID.<pageID>

4
Kagiwada, Dkt. No. 682-3 at 1. 	Counsel’s response the next day gave no
indication that she would like to copy the cellular telephones at some other
location. 	12/1/22 Email from Cindy Kagiwada to Michael Nammar, Dkt. No.
682-3 at 1. 	Put simply, in not one of the emails related to the copying of the
cellular telephones did the parties act as if they thought the telephones would be
FRSLHGLQDQ\SODFHRWKHUWKDQWKH)%,)LHOG2IILFHíE\WKLV2UGHUWKH&RXUWLV
simply returning them to that place of understanding. 3
Finally, although the government highlights a parade of horribles that may
transpire if Defendants take possession of the cellular telephones at issue, horribles
the likelihood of which occurring may be minimal, the point remains that there is
no need to risk creating such evidentiary problems solely to save a few dollars.
On balance, the appropriate outcome here is to allow Defendants to inspect and
copy the cellular telephones at the FBI Field Office.
For these reasons, and limited to the extent described herein, the Court finds
the Magistrate Judge’s decision ordering the physical surrender of the 18 cellular
3 As far as the Court can tell, the first time Defendants asked for the cellular telephones to be
copied at a different location was at the December 7, 2022 hearing before the Magistrate Judge.
See 12/7/22 Tr. at 11:18-24. 	It is not clear to the Court, however, why Defendants were not able
WRUDLVHWKHREMHFWLRQPDGHDWWKHKHDULQJíFRVWíwhen emailing with the government about
arranging a time and place to copy the telephones, given that Defendants appear to have retained
an expert by the time of the first email on October 31, 2022. 	See Dkt. No. 706 at 6 n.7.
Case 1:19-cr-00099-DKW-KJM Document 720 Filed 01/06/23 Page 4 of 5
PageID.<pageID>

5
telephones at issue here to be clearly erroneous and overturns the same. 	The
Court ORDERS that, pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E),
the government shall allow Defendants in this case to inspect and copy the 18
cellular telephones at issue at the FBI Field Office in Kapolei. 	The government
shall allow said inspection and copying to take place expeditiously from entry of
this Order, upon terms and conditions set by the assigned Magistrate Judge.
IT IS SO ORDERED.
Dated: January 6, 2023 at Honolulu, Hawai‘i.
Derrick K. Watson
&KLHIUnited States District Judge
Case 1:19-cr-00099-DKW-KJM Document 720 Filed 01/06/23 Page 5 of 5
PageID.<pageID>