Choose: Miske Can Retain A Essential Defense Attorney

Accused racketeering boss Michael J. Miske will retain at minimum just one of his primary felony protection lawyers after a federal choose decisively turned down an endeavor by federal prosecutors to disqualify Miske’s two lead counsels, Thomas Otake and Lynn Panagakos, because of to alleged lawful conflicts of interest.

In a court docket get filed in Honolulu’s U.S. District Courtroom Tuesday morning, Judge Derrick K. Watson dominated the govt had failed to back again up its generalized and “speculative” allegations about meant conflicts, and unsuccessful to supply evidence of any precise conflict.

In a 2nd get submitted the similar morning, Watson denied a motion by Miske, and supported by other defendants, that sought to break up off two rates of obstruction of justice to be tried separately.

The judge’s buy relating to Panagakos frequently characterized the government’s allegations about conflicts as speculative at very best, and dominated the governing administration “has not arrive close” to setting up the existence of a disqualifying conflict of desire.

The selection usually means Panagakos is free of charge to carry on to symbolize Miske, as she has given that mid-2017. Watson’s ruling also applies to Otake, though he lately withdrew from Miske’s circumstance on other grounds. 

Otake filed a motion to phase absent from the scenario on Jan. 13, right after currently being educated two prior purchasers are envisioned to be called as government witnesses in the trial of Miske and 6 remaining co-defendants. Otake’s movement was in the beginning denied by Magistrate Choose Kenneth Mansfield, but Mansfield later reversed himself and granted the motion right after reconsideration.

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Even so, a footnote in Watson’s get would make distinct it applies to equally attorneys in spite of Otake obtaining currently taken himself off the case. This seems to depart the door open to a further more attractiveness, likely making it possible for Otake to be reinstated.

“Although the quick movement with regard to Otake may well as a result be moot, provided the likely for further litigation with respect to the Justice of the peace Judge’s termination final decision and the reality that the arguments in the motion to disqualify with respect to Otake mirror the types in opposition to Panagakos on the make any difference of the ‘fraudulent’ character letters, the Court’s final decision herein really should be construed as implementing similarly to Otake,” Watson wrote in his get.

Disputed Terrain

The dispute in excess of whether or not authorized entanglements produced conflicts for Panagakos and Otake started in mid-January, when prosecutors filed a movement inquiring the courtroom to disqualify Panagakos and Otake, arguing “each have numerous, significant conflicts requiring their disqualification.” 

Earlier conversations amongst prosecutors and Miske’s defense lawyers that experienced started back again in August led to no agreements. Nonetheless, they did apparently prompt the addition of Reno, Nevada-based mostly Michael Kennedy, a previous federal defender-turned-prominent defense counsel, to Miske’s higher-powered defense crew.

In their 40-web site motion, prosecutors issue to two sources of conflict. To start with, in accordance to prosecutors, both equally attorneys “are percipient and material witnesses to the genesis, receipt, filing, and use of two fraudulent character letters submitted to this Court in help of Mike’s movement for pretrial release, and in the case of Ms. Panagakos, she right dealt with Miske and his subordinates in the submitting of these letters.”

Their “distinct and unmatched firsthand knowledge about key events” will be at difficulty in the demo and necessitates their disqualification “under the longstanding prohibition that attorneys representing a shopper at demo can’t also be a witness in that exact trial,” prosecutors reported.

Prosecutors cited an additional conflict on the section of Panagakos, pointing to a string of WhatsApp texts from February 2018, in which Miske advised an affiliate he experienced been at the “doctor’s business office,” a code phrase referring to his attorney’s office environment, exactly where he was shown paperwork indicating a further insider, Lance Bermudez, appeared to have “flipped” and could no extended be reliable. Miske warned his affiliate not to consider calls from any one “inside” because Miske could “guarantee” they ended up recorded, and bundled a photo of an workplace door displaying the workplace amount, which is the tackle of Panagakos’ place of work.

Though criminal defendants have a constitutional ideal to the legal professional of their option, prosecutors argued that right is “not unfettered,” and had to be balanced from other pursuits. They argued that “based on the totality of the instances,” disqualification of equally lawyers was demanded.

Panagakos invested 13 yrs as a felony demo legal professional for the Office of Justice, then opened a criminal defense law follow in 2003, using instances only in federal courtroom. She is considered a best-tier defense law firm, and now signifies former Honolulu Corporation Counsel Donna Leong, who is awaiting demo on charges of conspiracy and lying to FBI investigators. She also signifies Wayne Inouye, a former leading city options examiner who has pleaded guilty to accepting far more than $100,000 in bribes in exchange for offering exclusive remedy and expedite processing of ideas, and is now awaiting sentencing.

Panagakos reacted strongly to the government’s movement, branding the assert she was the “doctor” referenced in Miske’s trade of textual content messages as “false,” and blasting prosecutors for failing to take note her denial in their motion to disqualify. She even further alleged prosecutors deliberately concealed information they “knew would corroborate Ms. Panagakos’ denial.”

More, Panagakos explained the allegedly fraudulent reference letters did not have to have disqualification because neither she nor Otake can be considered a “likely” or a “necessary” witness at demo “because the court docket can just take judicial see of the submitting of the letters and the e mail provides the chain of custody for admissibility.”

Even if the defense attorneys ended up “necessary” witnesses, their disqualification would be this kind of a “substantial hardship” for their shopper that the harmony of passions would weigh in their favor, she explained.

Even though Panagakos elevated a selection of additional difficulties, Watson uncovered it avoidable to go further than the basics.

“First, other than speculative doable conflicts that might come up in the upcoming, the governing administration has presented no precise conflict that presently exists involving Miske and his counsel with respect to the alleged ‘fraudulent’ character letters,” Watson wrote in his get. 

More, “despite a number of alternatives to explain why, the federal government has unsuccessful to discover how either Panagakos or Otake are ‘necessary’ – instead than basically percipient – witnesses” necessitating removing from the case. The governing administration, Watson reported, had presented no evidence of any real conflict outside of speculative “what if” scenarios.

With regard to prosecutors’ allegations about Miske’s conference with his “doctors,” Watson mentioned he “is not confident that Panagakos is a person of the ‘doctors’ referenced.” Even if she were, Watson wrote in his purchase, Miske’s subsequent textual content messages do not create a conflict involving Panagakos and Miske, or any individual else, “let by yourself one particular that must final result in Panagakos staying disqualified, even if the governing administration is appropriate in representing that the interaction depicts a piece of how Mike allegedly controlled his associates.”

No Independent Demo

Watson’s next buy denied a movement by Miske’s lawyers to sever the two obstruction of justice charges involving the allegedly fake character reference letters. The two obstruction expenses against Miske were additional to the case by a 3rd superseding indictment filed in December.

The idea of splitting two counts off to a different demo experienced been lifted, at minimum in aspect, in an effort to mitigate any alleged authorized conflicts involving the letters. If all those conflicts were located to need the disqualification of possibly or both of Miske’s lawyers who experienced represented him considering the fact that at least 2017, severance of the two costs would allow them to continue to deal with the bulk of the rates in a independent demo.

In response, the government claimed the rates are “inextricably intertwined” with the racketeering conspiracy billed in Rely 1 of the indictment, and severing them would not eliminate the legal conflicts.

Watson largely sided with the governing administration, ruling the fraudulent letters “are portion of the ‘same series of functions or transactions’ that make up the charged racketeering conspiracy,”  and that “there is a ‘logical relationship’ in between the alleged racketeering pursuits and Mike’s alleged endeavor to evade pretrial detention for people activities.”

Getting taken situation of disqualification off the table, Watson concluded keeping a one demo on all of the indictment’s 22 counts would not create any prejudice in opposition to the defendants, and undoubtedly not the “manifest prejudice” necessary to justify severance of the obstruction fees.

It continues to be to be seen whether an appeal of Otake’s removal from the situation will be forthcoming. 

The two rulings look to have cleared the way for the scenario to continue towards demo, which is at the moment scheduled to start off in September.

On the other hand, a pending movement asks for the demo to be moved to a further locale, this sort of as Las Vegas, where by few jurors have very likely ever listened to of Mike Miske, preventing any challenge with prejudice prospective jurors could possibly have versus him and other defendants linked with him. 

A listening to on the change of venue movement is scheduled in Watson’s courtroom on March 24.