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)
DAE HAN MOON, 	(5)
PRESTON M. KIMOTO, 	(6)
JARRIN K. YOUNG, 	(11)
DELIA FABRO-MISKE, 	(12)
JASON K. YOKOYAMA, 	(13)
Defendants.
Case No. 19-cr-00099-DKW-KJM
ORDER DENYING MOTION TO
SEVER COUNTS 21 AND 22 OF
THE THIRD SUPERSEDING
INDICTMENT
On January 30, 2023, Defendant Michael J. Miske moved to sever Counts 21
and 22 of the Third Superseding Indictment, Dkt. No. 748, both of which charge
him with obstructing justice, in violation of 18 U.S.C. Section 1512(c)(2), by
allegedly causing false character letters to be submitted to this Court in connection
with his August 2020 pretrial release hearing. 	Miske argues that Counts 21 and
22 should be severed in order to avoid prejudice from the potential disqualification
of his counsel and due to the government’s “unreasonable” delay in bringing said
charges. 	The other Defendants in this case have all joined in the motion to sever.
Dkt. Nos. 751, 760, 768. 	The government opposes severance, arguing that Counts
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21 and 22 are “inextricably intertwined” with the charged conspiracy against
Defendants in Count 1 and severing those charges will not ameliorate the alleged
bases for disqualifying Miske’s defense counsel.
Having considered the parties’ briefs, supporting evidence, and the
arguments of counsel at a February 10, 2023 hearing on the motion to sever, the
Court DENIES the motion for the following reasons. 	First, the Court finds that,
under Federal Rule of Criminal Procedure 8(b) (“Rule 8(b)”), Counts 21 and 22
have been properly charged in the Third Superseding Indictment because they are
part of the “same series of acts or transactions” that make up the charged
racketeering conspiracy. 	Specifically, there is a “logical relationship” between the
alleged racketeering activities and Miske’s alleged attempt to evade pretrial
detention for those activities. 	Second, the Court finds that, under Federal Rule of
Criminal Procedure 14(a) (“Rule 14(a)”), there is no prejudice to Defendants in
joining Counts 21 and 22, let alone the “manifest” prejudice that is necessary, in
part, because disqualification of counsel is no longer an issue. 	Therefore, as more
fully explained below, the motion to sever, Dkt. No. 748, is DENIED.
RELEVANT PROCEDURAL BACKGROUND
On July 15, 2020, Miske was arrested and detained after the filing of a
Superseding Indictment against him and various other individuals. 	Dkt. Nos. 3,
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80. 	At that time, the government filed a motion to detain Miske without bail
pending trial (“motion to detain”). 	Dkt. No. 22. 	On August 7, 2020, Miske filed
an opposition to the motion to detain. 	Dkt. No. 141. 	Among other things,
attached to the opposition were various character letters, including ones from Kurt
Nosal and Larry Kapu. 	Dkt. No. 141-4. 	On August 11, 2020, a hearing was held
before the assigned U.S. Magistrate Judge on the motion to detain. 	The
Magistrate Judge granted the motion and, in so doing, ordered Miske’s detention.
Dkt. No. 144.
Over two years later, on December 8, 2022, the government filed a Third
Superseding Indictment (“TSI”) against Miske and the Defendants that have joined
in the motion to sever.1 	Dkt. No. 673. 	The TSI is a 22-count indictment.
Principally, therein, Miske and the Other Defendants are charged with conspiring
to engage in a pattern of racketeering activity consisting of, inter alia, murder,
kidnapping, arson, robbery, drug trafficking, money laundering, and obstruction of
justice. 	This conspiracy is alleged to have occurred from at least the late 1990’s
until approximately June 2020. 	In both Counts 21 and 22 of the TSI, Miske alone
is charged with obstruction of justice related to the Nosal and Kapu character
1 Those Defendants are John Stancil, Dae Han Moon, Preston Kimoto, Jarrin Young, Delia
Fabro-Miske, and Jason Yokoyama (collectively, “the Other Defendants” and, with Miske, “the
Defendants”).
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letters submitted with Miske’s opposition to the motion to detain. 	Specifically,
the TSI alleges that Miske caused a person known as “Individual A” to create false
character letters in the name of Nosal and Kapu in an attempt to influence the
August 11, 2020 detention hearing. 	The TSI further alleges that, with respect to
Count 21, Miske also caused Defendant Delia Fabro-Miske to provide the letter to
his counsel.2
On January 30, 2023, Miske filed the instant motion to sever, Dkt. No. 748,
in which the Other Defendants have joined. 	Dkt. Nos. 751, 760, 768. 	The
government opposes severance. 	Dkt. No. 769. 	Miske and Defendant Dae Han
Moon have filed replies. 	Dkt. Nos. 772, 785. 	On February 10, 2023, the Court
held a hearing on the motion to sever. 	Dkt. No. 790. 	This Order now follows.
LEGAL STANDARDS
I. 	Rule 8(b)
In the Ninth Circuit, Rule 8(b) “governs the standard for joining two or more
defendants in the same indictment[.]” 	United States v. Vasquez-Velasco, 15 F.3d
833, 843 (9th Cir. 1994). 	In pertinent part, Rule 8(b) provides that: “The
indictment or information may charge 2 or more defendants if they are alleged to
2 Fabro-Miske, however, is not charged in Count 21.
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have participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses.” 	Fed.R.Crim.P. 8(b).
“Because the goal of Rule 8(b) is to maximize trial convenience and
efficiency with a minimum of prejudice, Rule 8(b) is construed liberally in favor of
joinder.” 	United States v. Sarkisian, 197 F.3d 966, 975 (9th Cir. 1999) (alteration,
quotations, and citations omitted). 	The Ninth Circuit has explained that the term
“transactions” has a “flexible meaning” and the existence of a “series” “depends
upon the degree to which the events are related.” 	Id. at 976 (quotation omitted).
In that regard, courts look for a “logical relationship” between two or more
offenses in determining whether they are part of the “same series of acts or
transactions constituting an offense[.]” 	Id. at 975. 	A logical relationship may be
shown when, inter alia, “one criminal activity naturally flows from separate
criminal conduct” or when “all the criminal activities logically fall under the
umbrella of one big conspiracy.” 	Id. at 976.
II. 	Rule 14(a)
Rule 14(a) “governs the severance of both defendants and charges[]” and
“recognizes that even when counts are properly joined under Rule 8(b), severance
of the counts may be appropriate to avert prejudice to a defendant.” 	Vazquez-
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Velasco, 15 F.3d at 845.3 	A district court has “wide discretion” in ruling on a
severance motion. 	United States v. Felix-Gutierrez, 940 F.2d 1200, 1209 (9th Cir.
1991). 	“The party seeking reversal of a decision denying severance has the
burden of proving clear, manifest, or undue prejudice from the joint trial, that
violates one of his substantive rights, so that the prejudice is of such magnitude
that the defendant was denied a fair trial.” 	Id. (quotations omitted).
DISCUSSION
Miske moves for severance under Rule 14(a), while, in their joinders, the
Other Defendants rely on both Rule 8(b) and Rule 14(a). 	The Court addresses the
applicability of both Rules below.
I. 	Rule 8(b)
The Other Defendants argue that Counts 21 and 22 are not part of the same
series of acts or transactions as Counts 1-20 for purposes of Rule 8(b). 	Dkt. No.
751 at 3-5; Dkt. No. 760 at 3-4. 	The Other Defendants argue that they are not
charged in Counts 21-22, and the August 11, 2020 detention hearing occurred two
months after the end of the alleged racketeering conspiracy charged in Count 1.
3 Specifically, Rule 14(a) provides that: “If the joinder of offenses or defendants in an indictment,
an information, or a consolidation for trial appears to prejudice a defendant or the government,
the court may order separate trials of counts, sever the defendants’ trials, or provide any other
relief that justice requires.” 	Fed.R.Crim.P. 14(a).
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The Court disagrees with these contentions for several reasons. 	As an
initial matter, although the Other Defendants assert that Counts 21 and 22 are not
part of the same series of transactions as Counts 1-20, at no point do they even
explain the meaning of “transactions” under Ninth Circuit case law or
acknowledge the “logical relationship” test. 	Application of the “flexible”
“transactions” standard, though, reflects that Counts 21 and 22 are logically related
to at least the racketeering conspiracy charged in Count 1. 	As explained above, a
“logical relationship” can exist when “one criminal activity naturally flows from
separate criminal conduct” or when “all the criminal activities logically fall under
the umbrella of one big conspiracy.” 	Sarkisian, 197 F.3d at 976. 	Based upon the
government’s theory of Counts 21 and 22, Miske’s alleged attempts to obstruct
justice “naturally flow” from or “logically fall” under the charged racketeering
conspiracy. 	See Vazquez-Velasco, 15 F.3d at 843 n.8 (explaining that a court can
“look to whether evidence introduced at trial establishes that joinder was
appropriate.”); United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir. 1989)
(“When considered in light of the government’s theory that illegal aliens could
thwart United States immigration laws if they can support themselves in this
country through the money obtained through smuggling controlled substances, the
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controlled substances charges have a logical relationship with the transportation of
illegal alien counts.”).
Here, the government contends that, at trial, the evidence will show that the
filing of the alleged false character letters was part of an effort to allow Miske to
continue operating his “flagship criminal racket” while on release. 	Dkt. No. 769
at 16. 	The government also contends that evidence of how the alleged
racketeering conspiracy operated will be relevant to how and why the alleged false
character letters were created. 	Id. at 3 n.6. 	In addition, although Fabro-Miske is
not charged in Count 21, at the very least, Miske is alleged to have used her in his
scheme to obstruct justice. 	In this light, the Court finds that the above-mentioned
factors support a “logical relationship” between the alleged racketeering activities
in Count 1 and Miske’s alleged attempt to evade pretrial detention for those
activities in Counts 21-22. 	See Sanchez-Lopez, 879 F.2d at 551; cf. United States
v. Lockhart, 2017 WL 3471430, at *3 (E.D. Va. Aug. 11, 2017) (citing cases and
explaining that courts “routinely hold that charges premised upon a defendant’s
alleged attempts to conceal his conduct are properly joined with substantive
charges arising from that conduct.”). 	Finally, the fact that the Other Defendants
are not charged in Counts 21 and 22 is irrelevant. 	See Fed.R.Crim.P. 8(b) (“All
defendants need not be charged in each count.”). 	As is the Other Defendants’
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reliance on the fact that the August 11, 2020 detention hearing occurred two
months after the alleged racketeering conspiracy concluded. 	As explained, the
Rule 8(b) analysis asks whether there is a logical relationship between offenses,
not whether one offense occurred entirely during the time span of another.
For these reasons, the Court finds that Counts 21 and 22 are properly joined
with the remaining counts in the TSI under Rule 8(b).4
II. 	Rule 14(a)
In their severance requests, Defendants’ principal argument that prejudice
exists is premised upon one of Miske’s defense counsel, Lynn Panagakos, being
disqualified due to, inter alia, her filing the allegedly false character letters. 	In
other words, Defendants contend that, if Panagakos is disqualified due to the
joinder of Counts 21 and 22, they would all be prejudiced by her absence. 	This
alleged prejudice is no longer an issue because, concurrently with this Order, the
Court is entering an order denying the government’s motion to disqualify
Panagakos. 	Therefore, as things stand, the joinder of Counts 21 and 22 has not
4 In their joinders, the Other Defendants suggest that Counts 21 and 22 are improperly joined in
the TSI due to purported government “bad faith.” 	Dkt. Nos. 751 at 5-6; Dkt. No. 760 at 5-7.
The Other Defendants rely on a decision from the Southern District of New York for this
proposition. 	However, review of that case, United States v. Camacho, 939 F. Supp. 203
(S.D.N.Y. 1996), reflects that the court made its “bad faith” determination in the context of its
decision under Rule 14 to sever certain charges. 	Id. at 211. 	The Court, therefore, leaves until
the Rule 14(a) analysis, infra, the Other Defendants’ contention that the government has engaged
in bad faith.
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resulted in Panagakos being disqualified from this case, and the prejudice
Defendants allege does not exist.
Defendants’ remaining arguments supporting alleged prejudice are no more
persuasive. 	Notably, based upon the evidence submitted, the Court does not find
that the government engaged in “bad faith” or otherwise improperly “delayed” in
charging Counts 21 and 22. 	To suggest such government impropriety, Defendants
rely on the government’s alleged receipt, in September 2020, of a document
production containing an email from Nosal in which he stated that the character
letter attributed to him was false. 	Dkt. No. 748 at 6-7. 	Defendants also assert
that the government was invited to speak with Nosal at this time. 	However, the
government counters that, although it received the production referenced by
Defendants in September 2020, it was not until July 2021 that the production was
ready for review by government counsel because of the processing employed in
this document-intensive case. 	Dkt. No. 767-1 at 1-2. 	The government further
asserts that it was not until December 2021 that Nosal’s email was flagged. 	Dkt.
No. 769 at 10 n.11. 	In addition, as Defendants acknowledge, the “complete” facts
regarding the September 2020 production “remain unknown.” 	Dkt. No. 748 at 8.
Moreover, the mere fact that the government could have spoken with Nosal in
September 2020 is irrelevant if, as the government contends, it was unaware of his
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email. 	In this light, given that an attorney for the government has declared under
penalty of perjury that he “discovered” the Nosal email in December 2021, Dkt.
No. 767-1 at 	¶ 4, and Defendants’ reliance upon unknowns, the Court does not
find that Counts 21 and 22 have been brought in bad faith or were improperly
delayed based upon the timeline put forward by the government.
The Other Defendants also argue that they will suffer prejudice because
“little physical evidence” supports Counts 1-20, while Counts 21-22 involve “at
least some physical evidence[,]” which the Other Defendants contend may sway a
jury to convict them of other charges. 	Dkt. No. 760 at 6. 	The Court, however, at
this stage, is largely unaware of the composition and quality of the evidence the
government intends to present at trial on any of its charges. 	Certainly, the Court is
in no position to draw conclusions about which counts are supported by “physical
evidence” and which counts are not, nor have the Other Defendants made any
effort to educate the Court on what is otherwise their conclusory assertion.
Defendants, in any event, will have more than ample opportunity to show, through
for instance, cross-examination, why a jury should not consider their respective
clients involved in Counts 21 and 22. 	In addition, limiting instructions can be
used, if appropriate. 	See Zafiro v. United States, 506 U.S. 534, 539 (1993) (“less
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drastic measures, such as limiting instructions, often will suffice to cure any risk of
prejudice.”).
For these reasons, the Court finds that Defendants have failed to show
prejudice under Rule 14(a) to overcome the presumption that “defendants jointly
charged are to be jointly tried.” 	United States v. Escalante, 637 F.2d 1197, 1201
(9th Cir. 1980).
CONCLUSION
For the foregoing reasons, the motion to sever, Dkt. No. 748, and joinders,
Dkt. Nos. 751, 760, 768, are DENIED.
IT IS SO ORDERED.
DATED: February 21, 2023 at Honolulu, Hawai‘i.
United States v. Miske, et al., Case No. 19-cr-00099-DKW-KJM; ORDER DENYING
MOTION TO SEVER COUNTS 21 AND 22 OF THE THIRD SUPERSEDING
INDICTMENT
___________________________
Derrick K. Watson
Chief United States District Judge
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