USA v. Miske, et al.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
IN RE: CIVIL BEAT LAW CENTER
FOR THE PUBLIC INTEREST,
Movant.
Case No. 21-MC-00298-DKW-KJM
ORDER GRANTING MOTION TO
UNSEAL PLEA AGREEMENT
On June 9, 2021, Defendant Norman L. Akau III pled guilty to participating
in what the Government refers to as the “Miske Enterprise,” in violation of the
racketeering laws of the United States. See Cr. Dkt. Nos. 3, 249.1 At the plea
hearing, Akau’s counsel requested that the plea agreement be filed under seal, and,
upon no objection by the Government, the Court consented. Id.; see Memorandum
of Plea Agreement (the “Agreement”), Cr. Dkt. No. 250.
On July 23, 2021, third-party Civil Beat Law Center for the Public Interest
(“Civil Beat”) filed a motion to unseal the Agreement, citing its interest in the
Miske case and its constitutional right of access to criminal proceedings. Misc.
Dkt. No. 1. In opposition, Akau asserts that disclosure will harm certain
compelling interests that override the public’s right of access—namely, his own
personal safety and the success of the Government’s ongoing investigation. Misc.
1 In this Order, “Misc. Dkt.” will refer to the docket for the instant closure case, In re: Civil Beat
Law Center, Misc. Case No. 21-00298-DKW-KJM. “Cr. Dkt.” will refer to the docket for the
underlying criminal case, United States v. Akau, Cr. Case No. 19-00099-09-DKW-KJM.
SEALED
BY ORDER OF THE COURT	FILED IN THE
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
Michelle Rynne, Clerk of Court
Oct 14, 2021, 4:17 pm
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Dkt. No. 8. At oral argument on September 23, 2021, the Government confirmed
that it takes no position on the motion.
The Court GRANTS Civil Beat’s motion and orders the Agreement
unsealed, as specified below. Akau’s arguments are just that – argument without
any evidentiary support demonstrating the requisite substantial probability of harm
to his asserted interests. The Court stays the effective date of this Order through
October 19, 2021, in order to afford Akau an opportunity to seek relief at the Ninth
Circuit.
RELEVANT BACKGROUND
I. 	The Underlying Criminal Case
The Miske Enterprise is an alleged criminal organization led by Michael J.
Miske. The Government claims that Miske used his power over members, his
reputation for violence in the community, and his various corporate entities to
enrich the members and associates of the Miske Enterprise and perpetrate their
various criminal activities. 6/18/20 Superseding Indictment, Cr. Dkt. No. 3;
7/15/21 Second Superseding Indictment, Cr. Dkt. No. 272 (the “Indictments”).
In the last three years, the Government has brought at least six cases against
at least eighteen defendants in the District of Hawaii2 for their alleged involvement
2See United States v. Ashlin Akau, Cr. Case No. 21-00016; United States v. Wayne Miller, Cr.
Case No. 20-00113; United States v. Jacob Smith, Cr. Case No. 20-00086; United States v.
Timothy Taboada, Cr. Case No. 19-00147; United States v. Jonah Ortiz, Cr. Case No. 19-00141;
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with the Miske Enterprise. Crimes charged include racketeering, murder,
distribution of controlled substances, robbery, arson, extortion, and bank fraud.
See, e.g., Cr. Dkt. Nos. 3, 272.
In Counts 1, 16, 17, 18, and 19 of the 6/18/20 Superseding Indictment, Akau
was charged with racketeering conspiracy in violation of 18 U.S.C. § 1962(d),
conspiracy to distribute and to possess with the intent to distribute controlled
substances in violation of 21 U.S.C. § 846, carrying and using a firearm during and
in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i),
Hobbs Act Robbery in violation of 18 U.S.C. § 1951, and carrying and using a
firearm during and in relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). Cr. Dkt. No. 3. On July 17, 2020, Akau pled not guilty to these
charges. Cr. Dkt. No. 49. On June 9, 2021, he entered into a plea agreement with
the Government in which he pled guilty to Count 1 in return for the Government’s
promise to move to dismiss the remaining charges after sentencing. Cr. Dkt. Nos.
249, 250.
At his Change of Plea Hearing, Akau’s counsel verbally requested that the
Agreement be filed under seal. Cr. Dkt. No. 249. Upon no objection by the
Government, the Court consented. Id.
and United States v. Miske, et al., Cr. Case No. 19-00099 (involving thirteen defendants, one of
whom is Akau).
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II. 	The Instant Motion to Unseal
On July 23, 2021, Civil Beat, an entity with a significant on-line media
presence, filed a motion to unseal the Agreement, arguing that the public has a
First Amendment right of access to the records of criminal proceedings that can
only be overcome by a compelling overriding interest. Misc. Dkt. No. 1.
The Court directed the parties to submit briefing on the motion and set oral
argument for September 23, 2021. Misc. Dkt. No. 6. On September 1, Akau filed
a Memorandum in Opposition, asserting that disclosure of the Agreement would
endanger his and his family’s safety and would compromise the Government’s
ongoing investigation into the Miske Enterprise because it reflected Akau’s
“cooperat[ion] with authorities.” Misc. Dkt. No. 8 at 3–4. Akau’s counsel also
attached his own Declaration asserting his “opinion” that unsealing the Agreement
would subject Akau to the risk of “attack [or] injury” and could “be used as a basis
to put a green light on him (kill order).”3 Id. at 6. The only factual support
provided for defense counsel’s claims was that Akau’s offense “involved a high-
profile racketeering enterprise alleged to have been controlled and directed by a
high-profile Honolulu businessman.” See id. at 4. On September 9, Civil Beat
3 Akau’s Memorandum in Opposition, along with counsel’s Declaration, were filed in partially
redacted form. See Misc. Dkt. No. 8. Akau did not follow Local Rule 5.2(c) by filing a public,
written motion to seal these portions of his Opposition. Nevertheless, “[t]o avoid further
prolonging this dispute,” Civil Beat did not object to the redactions. Misc. Dkt. No. 9 at 5 n. 5.
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filed a Reply Memorandum, arguing that Akau’s conclusory statements do not
override the public’s right of access. See generally Misc. Dkt. No. 9.
The Court heard oral argument on this matter on September 23, 2021. Misc.
Dkt. No. 10. During the hearing, Akau’s counsel re-asserted concerns about
Akau’s safety, pointing out that Akau is currently in pretrial custody in the same
facility as some of his co-defendants. Id. Defense counsel also stated that there
has been some on-line “harassment” of Akau by unidentified sources, and he stated
his belief that it is typical practice among federal district courts to seal plea
agreements, at least before trial, in order to prevent “danger” and encourage
cooperation. Id. The Government, which was also represented at the September
23 hearing, neither supported nor opposed sealing. Id.
LEGAL STANDARD
The public has a presumed First Amendment right of access to criminal
proceedings. Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 604 (1982).
This right is “essential to public confidence in the criminal justice system.” Press-
Enter. Co. v. Superior Ct., 464 U.S. 501, 501 (1984). “Closed proceedings,
although not absolutely precluded, must be rare and only for cause shown that
outweighs the value of openness.” Id. at 509.
The First Amendment right of access does not end at the courtroom doors
but extends to pretrial document filings, including plea agreements. Oregonian
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Publ’g Co. v. U.S. Dist. Ct., 920 F.2d 1462, 1465–66 (9th Cir. 1990) (holding that
the right applies to plea agreements, which, “in many respects, . . . take[] the place
of the criminal trial” today). The right also specifically extends to transcripts of
plea colloquies and “cooperation addend[a]”—generally, the parts of plea
agreements that provide the requisite factual predicate for the guilty plea.4 In re
Copley Press, Inc., 518 F.3d 1022, 1028 (9th Cir. 2008).
This right of access is not absolute. But it “may be overcome only by an
overriding interest based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” Press-Enter. Co., 464 U.S.
at 510. It is the burden of the party seeking closure to present facts that show: “(1)
closure serves a compelling interest; (2) there is a substantial probability that, in
the absence of closure, this compelling interest would be harmed; and (3) there are
no alternatives to closure that would adequately protect the compelling interest.”
Phoenix Newspapers, Inc. v. U.S. Dist. Ct., 156 F.3d 940, 949 (9th Cir. 1998).5
The probability of harm must be shown by “specific factual findings,” not
“conclusory assertions alone.” Oregonian, 920 F.2d at 1466.6
4 Guilty pleas must always be accompanied by credible factual corroboration. Fed. R. Crim. P.
11(b)(3).
5 Akau argues that Oregonian and Phoenix Newspapers do not apply here because they involved
petitions for mandamus, rather than motions before trial courts. This procedural difference is
irrelevant. Petitions for mandamus are simply the proper mode by which a party appeals a trial
court’s closure/sealing decision.
6 Along with these substantive requirements, the Ninth Circuit has also outlined procedural
requirements for closure. Oregonian, 920 F.2d at 1466 (“(1) [T]hose excluded from the
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If the court determines at any time that any document has been improperly
sealed or no longer needs to be sealed, it may order its unsealing or take other
appropriate action. LR 5.2(e).
DISCUSSION
To keep the Agreement sealed, Akau must point to specific facts showing
(1) there is a substantial likelihood that disclosure will harm a compelling interest,
and (2) there are no available alternatives to closure that will adequately protect
that interest. See Oregonian, 920 F.2d at 1466; Phoenix Newspapers, 156 F.3d at
949.
I. 	Akau has not shown a substantial probability that a compelling
interest will be harmed in the absence of closure.
Akau principally argues that disclosure of the “cooperation language” in the
Agreement could jeopardize both his safety and the Government’s ongoing
investigation. Misc. Dkt. No. 8 at 3. In some cases, these interests could be
compelling and could override the public’s constitutional right of access. But
speculative jeopardy is not enough. Further, the Government has not asserted that
proceeding must be afforded a reasonable opportunity to state their objections; and (2) the
reasons supporting closure must be articulated in findings.”). Accordingly, Local Rule 5.2(c)
requires that a motion to seal a document must be filed in the public record, provide the factual
basis for sealing, and explain how the standard for sealing has been met. Anyone may oppose
the motion to seal within seven days, and if the court denies the motion to seal, the movant may
then notify the court whether it wants to withdraw the document or have it filed publicly. LR
5.2(c). Civil Beat argues that neither the substantive nor the procedural requirements to closure
were met in this case. Misc. Dkt. Nos. 1 at 7; 9 at 4–5. Since the procedural requirements are
being satisfied now, the question before the Court turns only on the substantive requirements.
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disclosure is likely to compromise its investigation, an issue that Akau has no
standing to contest. With no basis, then, to challenge Civil Beat’s First
Amendment demands, the Agreement must be unsealed.
A. 	The fact that the Agreement was initially sealed does not bar
reconsideration of that status.
Akau first argues that since “the Judge ordered the plea agreement sealed
and the motion was unopposed,” it should stay sealed. Misc. Dkt. No. 8 at 3. This
is simply not correct. There is no presumption that, once sealed, a document must
remain so. Rather, the Court may order disclosure of a document any time it
determines the document was “improperly sealed or no longer needs to be sealed.”
LR 5.2(e); see also Oregonian, 920 F.2d at 1465 (prior closure not a factor);
Phoenix Newspapers, 156 F.3d at 950 (same).
Nor is it relevant that the Government did not object to closure. Cr. Dkt. No.
249. The Government also did not object to disclosure. Misc. Dkt. No. 10. “All
too often, parties to the litigation are either indifferent or antipathetic to disclosure
requests. This is to be expected: it is not their charge to represent the rights of
others.” Phoenix Newspapers, 156 F.3d at 951. Neither the Court’s initial
decision to seal nor the Government’s indifference affects this analysis. See id.
B. 	Akau has not shown that disclosure is likely to jeopardize his safety.
Akau next argues that disclosure will endanger his family and himself
because the Agreement reflects his cooperation with the Government. Misc. Dkt.
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Nos. 8 at 3; 10. Risk to a person’s safety can certainly constitute a compelling
interest in some cases. See, e.g., United States v. Doe, 870 F.3d 991, 1000 (9th
Cir. 2017) (holding that a substantiated safety risk was a compelling interest that
overcame the public’s right of access). But the record must reveal a substantial
probability that disclosure will harm that interest. See, e.g., Phoenix Newspapers,
156 F.3d at 949–50 (holding that a purported safety risk did not justify closure
because the facts did not show “the necessary connection between unsealing [the
document at issue] and inflicting irreparable damage upon the security concerns”).
In Oregonian, the Ninth Circuit held that a district court erred by sealing a
defendant’s plea agreement out of safety concerns that arose solely because the
agreement “contemplated [the defendant’s] cooperation with the government.”
920 F.2d at 1467. The district court had based its decision on just two things: (1)
the defendant’s own assertion that disclosure of the details of his cooperation
would create a safety risk, and (2) a letter from the defendant’s attorney making a
similar assertion. Id. After noting that the district court’s concern for the
defendant’s safety was “not supported by any factual finding,” but was only based
on the defendant’s and defense counsel’s own conclusions, the Ninth Circuit held
that this was not enough to show a substantial probability of harm. Id.; see also
Phoenix Newspapers, 156 F.3d at 943–44, 950 (holding that a district court erred
by sealing a hearing transcript because, “[s]imply put, there was no evidence in the
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record . . . establishing why release of the transcripts would endanger juror
safety”).
In contrast, in United States v. Doe, 870 F.3d 991, 999–1000 (9th Cir. 2017),
the Ninth Circuit held that a district court had erred by not sealing a particular
document where (1) that document described the defendant Doe’s substantial
cooperation with the Government—including implicating no less than nine
members of a wealthy international drug cartel—and where (2) specific facts in the
record showed that disclosure was likely to endanger the defendant and his family.
The document in question was a U.S.S.G. § 5K1.1 filing, which allows the
Government to request sentencing reductions for defendants who provide
“substantial assistance in the prosecution of other offenders.” Id. at 993; 18 U.S.C.
U.S.S.G. § 5K1.1. Doe had provided “detailed, verifiable information” to the
Government, including “the names, telephone numbers, addresses, and physical
descriptions of others involved in importing and distributing methamphetamine,”
at least one of whom was subsequently arrested. Doe, 870 F.3d at 994. “[A]gents
corroborated [Doe’s] information, indicating it was credible enough to lead to
prosecutions against real people,” and the Government “confirmed that almost all
of Doe’s information was accurate, that he had provided information about people
in and out of custody, and that agents believed future arrests based on this
information remained possible.” Id. at 998, 1000. “The government found the
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information so useful that it filed a motion to reduce Doe’s sentence by five levels
under U.S.S.G. § 5K1.1.” Id. at 994.
The Government in Doe further presented a detailed risk assessment to the
district court in which it stated that the risk of retaliation or harm to Doe was,
“perhaps, greater than in some other circumstances,” both because of the nature
and amount of detailed information he had provided and because of other specific
facts:
(1) 	[H]is 	offense 	involved 	a 	large 	international 	drug-trafficking
organization; 	(2) 	he 	lost 	a 	load 	of 	methamphetamine 	with 	a
conservative estimated street value of more than half a million dollars;
(3) Doe was involved in multiple border crossings and delivered
narcotics to numerous locations . . . ; and (4) he cooperated while he
was in pre-trial detention by providing incriminating information about
others 	who 	were 	also 	incarcerated. 	Moreover, 	Doe 	provided
information about other defendants whom he recognized during a court
appearance. 	Presumably, these defendants recognized Doe as well,
further jeopardizing his safety if his cooperation became public.
Id. at 994, 998–99. During one drug-related border crossing, Doe’s three-year old
daughter had accompanied him. Id. at 995. And there was credible evidence that a
member of the cartel had told Doe, “Don’t play us dirty because we know where
your family is.” Id. at 999. Because of the unusual magnitude of Doe’s
cooperation and these specific facts showing he was at “heightened” risk, id. at
998, the Ninth Circuit found that the safety risk was compelling and substantiated
and that the § 5K1.1 filing—along with any document referring to its existence—
should be sealed. Id. at 1002.
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Akau presents a much less compelling case for sealing than Doe or even
Oregonian. For instance, Akau’s contentions are not accompanied by any
attestation from Akau himself. The record includes only defense counsel’s
conclusory assertions that disclosure of the plea agreement would endanger Akau
and his family because it contemplated his cooperation with the Government, a
level of factual support that the Ninth Circuit held was wholly insufficient in
Oregonian. See 920 F.2d at 1466–67; Misc. Dkt. Nos. 8, 10. Defense counsel’s
assertion that unsealing the “cooperation provisions” of the Agreement would
subject Akau to the risk of “attack [or] injury” and could “be used as a basis to put
a green light on him (kill order)” is perhaps more colorful than the language relied
upon in Oregonian, but it is no less conclusory. See Misc. Dkt. No. 8 at 6.
Beyond these bare assertions, Akau’s best factual justification for his safety
concerns—that “his offense involved a high-profile racketeering enterprise alleged
to have been controlled and directed by a high-profile Honolulu businessman”—
still falls far short. See Misc. Dkt. No. 8 at 4. The Court acknowledges that, in a
racketeering conspiracy case involving numerous defendants and allegations of
serious, violent crimes, there may be risk to any defendant who cooperates with
authorities, especially if he is currently incarcerated with some of his co-
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defendants.7 See Doe, 870 F.3d at 999. The Court also acknowledges that “actual
‘paper’ proof” memorializing a defendant’s cooperation may be more harmful than
oral pronouncement of a sentence pursuant to a plea agreement. See id. It is true
that this case involves numerous defendants and allegations and admissions of
violent crime, and that Akau has made vague claims of on-line “harassment” since
he publicly announced his guilty plea. Misc. Dkt. No. 10; Cr. Dkt. No. 249.
However, there is no blanket rule that evidence of cooperation must be
automatically sealed upon request if a case involves multiple defendants or violent
crime.8 On the contrary, the Ninth Circuit has explicitly held that the public’s First
Amendment right of access, without more, demands the converse. See In re
Copley Press, 518 F.3d at 1028 (holding the right extends to plea colloquies and
“cooperation addend[a]” to plea agreements). Moreover, the burden to overcome
7See Fed. Judicial Ctr., Survey of Harm to Cooperators (Feb. 12, 2016),
https://www.fjc.gov/content/310414/survey-harm-cooperators-final-report (“CCACM Report”);
Doe, 870 F.3d at 999 (“The CCACM Report . . . sheds considerable light on the dangers faced by
those who agree to cooperate with government investigations. The report summarizes the results
of a 2015 national survey of district judges, U.S. attorneys, federal defenders, and others
involved in the criminal justice system. District judges reported 571 instances of harm or threats,
either physical or economic, to defendants and witnesses between the spring of 2012 and the
spring of 2015. CCACM Report at 2. This included 31 murders of defendant
cooperators. Id. District judges also reported 363 instances of court records being used to
identify cooperators. Id. The report cautions: ‘This is a particular problem in our prisons, where
new inmates are routinely required by other inmates to produce dockets or case documents in
order to prove whether or not they cooperated. If the new inmates refuse to produce the
documents, they are punished.’ Id.”).
8 Akau’s counsel suggested that it is “standard operating procedure” (“SOP”) for district courts to
seal plea agreements prior to trial to protect pleading defendants. Misc. Dkt. Nos. 8 at 5; 10
(arguing the same during the September 23 hearing). Where that purported SOP comes from is
not clear. What is clear is that that is not the law of this Circuit.
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this right of access is a high one. Akau must point to facts in the record which
show a substantial probability of harm that would be caused by disclosure of the
Agreement. See Phoenix Newspapers, 156 F.3d at 949. He has not done this.
Akau’s Agreement contains no special level of detail or other characteristic
that creates a Doe-like compelling reason to seal. The § 5K1.1 filing in Doe, as is
typical of § 5K1.1 filings, contained a detailed description of what Doe’s
cooperation consisted of to earn a five-level downward adjustment of the
applicable guideline range recommended by the Government. See 870 F.3d at 994.
Here, the standard cooperation language contained in Akau’s plea agreement
contains no such detail. See Cr. Dkt. No. 250 at 18–21. There is no description of
what Akau has done, and, indeed, there is no representation that he has thus far
cooperated at all. 	At best, the facts mentioned in his plea colloquy reference seven
co-defendants,9 all of whom have already been indicted for the activities Akau
describes, three of whom have accepted plea agreements themselves,10 and all of
which the defense does not seek to seal. See Cr. Dkt. Nos. 3, 272, 250; Misc. Dkt.
No. 8.
9 The defendants Akau mentions are Michael J. Miske, Jr., Wayne Miller, Jacob Smith, Ashlin
Akau, Harry Kauhi, Lance Bermudez, and John B. Stancil. Cr. Dkt. No. 250.
10See United States v. Ashlin Akau, Cr. Case No. 21-00016, Dkt. No. 14; United States v. Wayne
Miller, Cr. Case No. 20-00113, Dkt. No. 31; United States v. Jacob Smith, Cr. Case No. 20-
00086, Dkt. No. 52.
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It is worth noting that the plea agreement of every other pleading defendant
associated with the Miske Enterprise of which the Court is aware has been filed
publicly (not under seal) and without contention.11 While not determinative, that
fact contradicts defense counsel’s unsupported statement during the September 23
oral argument that Akau’s Agreement differs from the plea agreements in these
other cases, implicates significantly more concerns, and thus should be treated
accordingly. Misc. Dkt. No. 10. The publicly accessible cooperation provisions in
all of these other agreements are virtually identical to those in Akau’s.
II. 	Since there is no compelling interest that overrides the public’s
right of access, there is no reason to consider alternatives to
closure.
If there were a compelling interest justifying closure/sealing, the next step
would be to decide whether any more narrowly tailored alternative, such as
redaction, would adequately protect that interest. See Phoenix Newspapers, 156
F.3d at 949; Oregonian, 920 F.2d at 1467 n. 1. Because Akau has not
substantiated any such compelling interest here, an analysis of less restrictive
alternatives is not necessary.12
11See, e.g., United States v. Ashlin Akau, Cr. Case No. 21-00016, Dkt. No. 14; United States v.
Wayne Miller, Cr. Case No. 20-00113, Dkt. No. 31; United States v. Jacob Smith, Cr. Case No.
20-00086, Dkt. No. 52; United States v. Timothy Taboada, Cr. Case No. 19-00147, Dkt. No. 43;
United States v. Jonah Ortiz, Cr. Case No. 19-00141, Dkt. No. 19; Plea Agreement of Hunter J.
Wilson, United States v. Miske, et al., Cr. Dkt. No. 224.
12 Nor has Akau proposed any such alternatives.
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CONCLUSION
For the reasons set forth herein, Plaintiff’s motion to unseal Defendant
Norman L. Akau III’s plea agreement, Cr. Dkt. No. 250, is GRANTED. This
Order will be docketed in both relevant cases: Misc. Case No. 21-00298 and Cr.
Case No. 19-00099-09.
This Order will remain sealed through October 19, 2021 to afford Akau the
opportunity to seek an emergency stay from the Ninth Circuit and will not be
effective until that time has passed. If no such stay order is received within that
time frame, this Order will be unsealed, as will the Agreement.
IT IS SO ORDERED.
DATED: October 14, 2021 at Honolulu, Hawai’i.
In Re: Civil Beat Law Center For The Public Interest; MC 21-00298 DKW-KJM;
ORDER GRANTING MOTION TO UNSEAL PLEA AGREEMENT
De~ 	...,t.,..so""'n~------..-
United States District Judge
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