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)
JOHN B. STANCIL, 	(2)
DELIA FABRO-MISKE, 	(12)
Defendants.
Case No. 19-cr-00099-DKW-KJM
SECOND ORDER ON MOTIONS IN
LIMINE
On December 14, 2023, the Court ruled on numerous motions in limine,
while also directing supplemental briefing on issues arising from several of them.
Dkt. Nos. 1192-93. 	The Court is now in receipt of said supplemental briefing.
Dkt. Nos. 1200-01, 1205-06, 1217, 1228. 	In addition, on December 27, 2023, the
government requested clarification of the Court’s December 14, 2023 rulings with
respect to two of the motions in limine. 	Dkt. No. 1198 at 20-23. 	The Court is
now in receipt of the remaining trial defendants’ (collectively, Defendants)
responses to those clarification requests. 	Dkt. Nos. 1208-09. 	Having considered
the aforementioned briefing on these matters, the Court rules as follows with
respect to the same.
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Supplemental Briefing
1. 	The Court directed supplemental briefing on whether evidence related
to alleged violations of 18 U.S.C. Section 1512, charged in Counts 21 and 22 of the
Third Superseding Indictment (TSI), should be admissible for purposes of Count 1
of the TSI, which charges a racketeering conspiracy. 	Having reviewed the parties’
supplemental briefing, and based upon the government’s factual proffer in its
supplemental brief, Dkt. No. 1200 at 1-6, the government’s motions in limine, Dkt.
Nos. 1048 & 1061, are GRANTED to the extent that evidence concerning the acts
charged in Counts 21 and 22 is admissible to establish a conspiracy to engage in a
pattern of racketeering activity, as charged in Count 1. 	This includes both the
filing of the documents at issue in Counts 21 and 22 and the acts preceding said
filings, as set forth in the government’s factual proffer. 	Here, Defendants are
charged in Count 1 with conspiring to engage in a pattern of racketeering activity.
Therefore, the alleged acts preceding the filing of the documents, and falling
within the timeframe of the charged conspiracy, are clearly relevant and not unduly
prejudicial. 	See Salinas v. United States, 522 U.S. 52, 65 (1997) (explaining that a
“conspirator must intend to further an endeavor which, if completed, would satisfy
all of the elements of a substantive criminal offense, but it suffices that he adopt
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the goal of furthering or facilitating the criminal endeavor.”).1 	As for the filing of
the documents, although those acts took place outside the temporal scope of the
conspiracy charged in Count 1, the Court finds the acts relevant and not unduly
prejudicial. 	See United States v. McGowan, 816 F. App’x 387, 392-393 (11th Cir.
June 10, 2020) (citing United States v. Meester, 762 F.2d 867, 876 (11th Cir. 1985)
for the proposition that “evidence that members of a drug conspiracy committed
murder after the time period alleged in the indictment was admissible to show the
continuing nature of the drug trafficking conspiracy”).
2. 	The Court directed supplemental briefing on whether three family
members of Johnathan Fraser should be excluded from the courtroom under
Federal Rule of Evidence 615’s exclusionary rule. 	Having reviewed the parties’
supplemental briefing, the Court GRANTS the government’s motion in limine,
Dkt. No. 1057, to the extent that the three family members of Johnathan Fraser
identified in said motion will not be excluded from the courtroom during trial, even
if they should testify. 	Specifically, the government’s supplemental brief cites
various cases, which, albeit not entirely on-point, provide persuasive support for its
position. 	See Dkt. No. 1201 at 1-2. 	In contrast, Defendants acknowledge that
1 Defendants argue that the “relevant act to the conspiracy” is the act of filing the underlying
documents. 	Dkt. No. 1205 at 1. 	Given that Defendants are charged with conspiracy in Count
1, the Court disagrees, as any one of the acts alleged in the government’s factual proffer, if found
by a jury to be furthering or facilitating the alleged criminal endeavor, would be relevant.
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they have found no case law supporting their position, Dkt. No. 1206 at 2, and the
Court does not find persuasive their reliance upon the Hawai‘i probate code.
Therefore, in light of the allegations in the TSI, the Court finds that the pertinent
family members will be allowed in the courtroom during trial.
3. 	The Court directed supplemental briefing on whether evidence related
to an incident in August 2012 at the M Nightclub would be permitted during trial.
Having reviewed the parties’ supplemental briefing, Defendants’ motion in limine
No. 20, Dkt. No. 1074, is GRANTED IN PART and DEFERRED IN PART as
follows. 	First, the motion is GRANTED to the extent that the government will not
be permitted to argue or introduce evidence of the August 2012 incident as an
“extension of credit” under 18 U.S.C. Section 891. 	The factual background of this
incident is disputed. 	Nonetheless, the incident is not admissible as an extension of
credit under the government’s version of events. 	According to the government,
the “extension of credit” was the provision of a “free bottle” as part of a “buy-one-
get-one free deal….” 	Dkt. No. 1217 at 1, 6. 	The government cites no law, nor
can the Court comprehend a common-sense reason, supporting the proposition that
a free bottle (or free anything) constitutes an extension of credit.2 	See Black’s
2 Instead, the government cites case law that it contends supports the proposition that the use of
checks or credit cards constitutes an extension of credit. 	Dkt. No. 1217 at 4-5. 	Neither of those
things, however, is the same as being provided something for free. 	In addition, United States v.
Cassano, 132 F.3d 646 (11th Cir. 1998), does not stand for the proposition that “pay[ing] the
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Law Dictionary 778 (10th ed. 2014) (defining “free” as, inter alia, “[c]osting
nothing; gratuitous”). 	Second, the motion is DEFFERED to the extent the
government seeks to introduce evidence of the August 2012 incident as “enterprise
proof” of how the alleged “Miske Enterprise” operated. 	As mentioned, the parties
do not agree on the facts underlying this incident. 	Based upon those competing
stories, the Court is not currently in the position to rule on whether the incident is
relevant as “enterprise proof” in this case. 	See Dkt. No. 1228 at 6 n.1 (Defendants
conceding that their motion in limine should be deferred with respect to whether
the incident is admissible as enterprise proof).
Requests for Clarification
4. 	The government requested clarification on whether it would be able to
argue that an incident in May 1995 was “enterprise proof” for purposes of Count 1
of the TSI, following the Court’s December 14, 2023 ruling that the same incident
would not be admissible as a prior act under Federal Rule of Evidence 404(b).
Dkt. No. 1198 at 20-22. 	Having reviewed the parties’ briefing on this matter, the
government’s request to use the May 1995 incident as “enterprise proof” is
DENIED. 	In Count 1, the TSI charges Defendants, among others, with conspiring
balance on a credit card bill” is an extension of credit. 	The relevant “extension of credit” in
Cassano was, instead, the defendant agreeing to extend the time for another individual to repay
money that the defendant suspected had been stolen. 	Id. at 650-651.
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to engage in a racketeering conspiracy “[f]rom a precise date unknown, but by at
least in or about the late 1990s, up to and including June 2020….” 	Dkt. No. 673
at 9 (emphasis added). 	While the precise contours of the “late 1990s” may be
subject to a reasonable measure of dispute, dispute that may require further
clarification during trial, one time that the “late 1990s” does not encompass is May
1995, which is squarely in the mid-1990s. 	Contrary to the government’s
contention, therefore, Dkt. No. 1198 at 21, the incident is not relevant to the
charged conspiracy. 	In addition, the Court is unconvinced by the government’s
assertion that the incident is “probative of the means and methods of the charged
racketeering conspiracy,” untethered temporally as it is 	See id. 	As a result, the
government will not be allowed to use the May 1995 incident for any purpose at
trial.3
5. 	Finally, the government requested clarification with respect to the use
of reports of interview (ROIs), such as Federal Bureau of Investigation 302s, at
trial. 	Dkt. No. 1198 at 22-23. 	In ruling on the government’s motion in limine to
admit prior statements and preclude improper use of 302s, the Court, inter alia,
granted the motion to the extent that statements within ROIs would not be
3 This specific incident is different from the conduct generally referenced in the government’s
motion in limine to admit enterprise proof, Dkt. No. 1039, such as unspecified assaults, which
the Court, as a result, deferred ruling upon until trial.
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admissible unless adopted and denied the motion in all other respects. 	Dkt. No.
1192 at 5. 	In other words, while the government may not agree, the December 14,
2023 Order is clear: if adopted by a witness, statements within ROIs may be used
at trial. 	That necessarily means that witnesses may be asked if such statements
are, in fact, those they made. 	For instance – a questioning party may show the
statement, without reference to its origin in an ROI, to a witness and, after the
witness’ review of the same, ask the witness whether he or she adopts the
statement as his or her own. 	Should the witness adopt the statement, or part of the
statement, the portion adopted may be read to the jury. 	Should the witness not
adopt the statement, then the statement may not be read or otherwise presented in
court. 	In other words, the questioning party may not read or otherwise include the
statement in any question they ask a witness until the statement is adopted, if at
all.4
IT IS SO ORDERED.
Dated: January 12, 2024 at Honolulu, Hawai‘i.
4 This appears to be consistent with what the government itself acknowledges as acceptable. 	See
Dkt. No. 1046 at 4 (“To be sure, an ROI may give the defense a good faith basis to ask a witness
whether they previously made a statement. But if the defense is not satisfied with the answer
they receive, they should not be permitted to publish or introduce the contents of the 302 as a
prior inconsistent statement.”) (quotation and citation omitted).
___________________________
Derrick K. Watson
Chief United States District Judge
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