The Civil Beat Law Center for the Public Interest (CBLC) filed a motion in US District Court on Friday to unseal and make public the written plea agreement between prosecutors and Norman Lani Akau III, who pleaded guilty on June 9 to being part of a racketeering conspiracy allegedly controlled and directed by former Honolulu businessman Michael J. Miske Jr.

Miske and ten co-defendants were named in a June 2020 superseding indictment alleging they were part of a criminal gang involved in a variety of crimes including kidnapping, murder and murder-for-hire, drug trafficking, armed robbery, weapons offenses, and bank fraud.

During a hearing to consider Akau’s change of plea, his attorney requested the written plea agreement be sealed, and with no opposition from prosecutors, Judge Derrick Watson ordered it be sealed. There was no advance notice, and no opportunity during the hearing for anyone to object.

Akau is the second of Miske’s co-defendants to plead guilty and agree to testify against his former associates. Six others who were charged separately have also pleaded guilty to being part of what prosecutors have dubbed the “Miske Enterprise,” with separate agreements for each defendant. Akau’s plea is the only one of the eight to have been sealed by the court.

According to the Law Center’s motion:

Contrary to the required procedural safeguards for the public’s constitutional right of access to court records and this Court’s local rules, the Defendant failed to file a written motion to seal the plea agreement that would have provided the
public with notice and an opportunity to meaningfully address the request to seal. Moreover, no justification has been provided that meets the substantive standards for sealing plea agreements.

A copy of the CBLC motion, which spells out the basis for the public’s right to know about court proceedings, and the procedural steps needed to properly seal a court record, is included below.

This is the latest in a series of successful challenges the Civil Beat Law Center has filed to gain release of documents that have been sealed in Hawaii’s US District Court without complying with existing procedures for safeguarding the public’s constitutionally protected interest in court proceedings.

Here are links to several similar motions filed previously by the Civil Beat Law Center.

January 2021: The Law Center moved to unseal an addendum to the plea agreement in United States v. Davis, 20-CR-68 LEK. Contrary to local rule, the Government did not file a motion to seal and proffered only vague concerns about investigatory interests when initially questioned during the plea hearing. The case was assigned to Judge Leslie E. Kobayashi. The Law Center’s motion was filed under 21-MC-19. No party opposed the motion to unseal. Judge Kobayashi ordered the addendum to be unsealed.

September 2020: The Law Center objected to a global toy company’s effort to proceed anonymously in a trademark infringement action without publicly explaining its need for anonymity in Doe Corp. v. Individuals, 20-CV-395 JMS-KJM. Ninth Circuit precedent establishes a constitutional right of access to civil complaints and motions to seal. The global toy company, however, concealed the entirety of its motions to seal, leaving the public with no understanding of what possibly justified proceeding anonymously. The Law Center’s objection was filed under 20-MC-443. On October 20, 2020, Judge Seabright ordered the motions unsealed.

August 2020: The Law Center moved to unseal documents filed under seal without public explanation in In re Search of Boston Whaler 370 Outrage “Painkiller”, 18-CV-80 and 17-MC-288. The case concerns the Government’s 2017 search and seizure of a boat owned by Hawaii Partners–part of the alleged Miske Enterprise in United States v. Miske, 19-CR-99. The case was assigned to Judge Leslie E. Kobayashi. The Law Center’s motion is filed under 20-MC-343. On October 22, 2020, Judge Kobayashi granted the motion, but gave the Miske Enterprise defendants an opportunity to state objections. On November 23, the records were unsealed.

August 2020: The Law Center objected to the Government’s effort to authorize sealing of court records as part of a proposed protective order for discovery purposes in United States v. Miske, 19-CR-99 DKW. In accordance with long-standing U.S. Supreme Court and Ninth Circuit precedent, the Law Center requested that the Court require a proper motion to seal at the time of filing before any court records are sealed. The Law Center’s objection is filed under 20-MC-309. On August 12, the Court entered a more limited protective order that requires a proper motion to seal for future court filings.

May 2020: The Law Center moved to unseal to Defendant Minh-Hung Nguyen’s redacted sentencing memorandum in United States v. Kealoha, 17-CR-582 JMS WRP. On June 1, 2020, Chief Judge J. Michael Seabright ordered the sentencing memorandum unsealed. The Law Center’s motion was filed under 20-MC-165.

October 2019: The Law Center objected to Defendant Louis Kealoha’s effort to seal “letters and documents” regarding his sentencing in United States v. Kealoha, 17-CR-582 JMS WRP. The Law Center’s objection is filed under 19-MC-417. On October 28, 2019, Chief Judge Seabright ordered the sentencing documents unsealed because there was no legal basis for filing the documents under seal. After additional follow-up, on November 5, 2019, sentencing letters for Katherine Kealoha were unsealed.

Motion to Unseal Norman Lan… by Ian Lind