Attorneys representing two of Mike Miske’s co-defendants have served notice they intend to directly attack former Miske associates who have “flipped” and are now cooperating with prosecutors.
Over the past year and a half, at least eight defendants have entered into of agreements in which they have pleaded guilty and agreed to cooperate with prosecutors and testify against others. Two of those were among Miske’s original ten co-defendants, while the remaining six were charged separately.
Some of these have been relative small fry, but others have been longtime associates of Miske’s who were apparently in positions to do, see, and hear many things of value to prosecutors in this case.
The basic outlines of what they’ve had to say about the charges they’ve pleaded to are contained in plea agreements filed in court. What else has been disclosed about things beyond those specific charges is not yet part of the record.
The recitation of some of these “facts” disclosed in plea agreements have been quite damning to Miske and other co-defendants, for example by tying them directly to the plot to kidnap and murder Jonathan Fraser, who disappeared on July 30, 2016.
Now attorneys representing two defendants have served notice they intend to defend their clients by directly attacking the credibility of those cooperating with prosecutors.
The strategy of attacking these cooperating witnesses is typical as a case like this moves toward a high-profile trial, currently scheduled to begin in late March 2022.
In a July 26th motion seeking release on bail for John Stancil, Miske’s half-brother and co-defendant, attorney Walter J. Rodby took aim at what he called “false statements” made by Jacob “Jake” Smith, who pleaded guilty in October 2020 and is now cooperating with prosecutors.
Rodby, in his motion, referred to Smith as the prosecution’s “star witness,” and dismissed him as “a career criminal with multiple narcotics trafficking and violent firearm convictions.”
Stancil, in Rodby’s telling, is on “the other end of the spectrum.”
“[F]or all of Mr. Stancil’s 33 years on earth, other than a traffic ticket, the only thing he has ever gotten in trouble for was the misdemeanor assault conviction, a dispute in a nightclub, which did not lead to any type of serious or substantial bodily injury,” the motion argues. “He has never been charged and convicted for any type of narcotics offense. He has never been charged and convicted for any type of firearms offense. He has never been charged and convicted for any type of felonious assault. “
“Mr. Stancil has no history of convictions for contempt of court, nor does he have any restraining order type cases, or any history of violating court orders,” Rodby’s motion argues.
Rodby said Smith and any other cooperating witnesses making accusations against Stancil “are complicit with each other and are lodging false accusations against Mr. Stancil to receive leniency from the government for their criminal conduct.”
A similar approach was taken by William Harrison, appearing last week arguing in favor of release on bail for Jason Yokoyama, who the government describes as a trusted Miske confidant. Prosecutors allege two “cooperating witnesses” have alleged Yokoyama took part in conspiracies to kidnap and murder Fraser.
Yokoyama was added to the list of Miske co-defendants in a second superseding indictment by a federal grand jury last month, which was unsealed on August 30.
Prosecutors disclosed Yokoyama was named the successor trustee for Miske’s revocable living trust, which would control all of Miske’s properties if he were incapacitated, or if he died.
“That shows he is one of, if not the most, trusted confidant, the first choice of Mr. Miske to be in charge of all his properties,” Assistant US Attorney Mark Inciong told the court.
In their motion for detention without bail, prosecutors allege Yokoyama was “an eager and willing participant” in the conspiracy to kidnap and murder Fraser.
In a meeting with Miske a week prior to Fraser’s disappearance, Yokoyama allegedly “asked Miske if he could help with the murder directly, but Miske said no as Miske did not want Yokoyama so closely involved because he did not want a direct link between the murder and himself.”
Harrison rejected these claims.
“We deny all allegations by any cooperating individual regarding arson, kidnapping, and murder,” Harrison told Magistrate Judge Wes Reber Porter during a hearing last Friday (August 6) on a government motion to detain Yokoyama without bail until trial.
“We have individuals who were deeply involved in this offense who are now seeking to get sentencing consideration,” Harrison said. Harrison argued alleged “facts” cited by the prosecution relied on testimony by those who were themselves involved in the crimes and cannot be trusted.
Harrison said he had been retained to represent Yokoyama last summer after the former co-owner of Miske’s M Nightclub received a “target letter” from the federal grand jury. He said Yokoyama has been living in California since that time in a home owned by his family, and said prosecutors knew he was always available through Harrison’s office.
Harrison said that contrary to the description of Yokoyama painted by prosecutors, he has no prior criminal history, his parents live in Hawaii, “and, I would note, his family has agreed to pay his attorneys fees,” Harrison said, arguing that Yokoyama could be released on bail with additional conditions sufficient to assure his appearance at trial, and would not be a danger to the community.
Despite Harrison’s argument, Judge Porter rejected a Pretrial Services recommendation and directed Yokoyama to be held without bail. However, he also directed the order prepared immediately so Harrison can appeal the decision directly to Judge Derrick Watson, who is handling the Miske case.
Watson overturned a similar detention ruling by Magistrate Judge Kenneth Mansfield last September in the case of Michael Buntenbah, who Watson ordered released on $500,000 bond secured by his family’s home in Kaneohe, and subject to several strict conditions.
Stephen S. Trott, a senior judge in the 9th Circuit Court of Appeals, warned prosecutors that when informers are called as witnesses, “be prepared for war,” according to notes of a 2007 lecture made available by the ACLU. Trott then pointed to a laundry list of typical tactics from the National Association of Criminal Defense Lawyers, which suggests what might be ahead.
If the informant was addicted to drugs or alcohol during the time to which the statement relates, witnesses and medical records showing this addiction must be introduced. If the informant failed urinalysis tests while on pretrial release and while “cooperating” with the government, the pretrial services reports showing continued drug use should be offered. If you can document inconsistencies or critical omissions between what the informant claimed during one interview or grand jury appearance and what he said in another, these must be carefully set forth during the hearing. Similarly, any evidence you have about other false statements made by the informant, particularly those made under penalty of perjury (such as false statements on loan applications, tax returns, drivers license applications, INS forms, etc.) should be introduced. Prior convictions of the informant (admissible to impeach credibility under Rule 609) or opinion or reputation evidence showing the informant was not a truthful person (admissible under Rule 608) must be put in the record. If you have evidence tending to show the informant had a reason to lie about your client or any evidence of bias, it must be offered. And, of course, you need to establish what sentence the informant was facing, what the mandatory minimum and guideline ranges were without cooperation, and what other benefits (such as immunity for relatives) the informant got in return for his or her cooperation. All these factors are indicia of a lack of credibility of the declarant and, hence, are indicia of a lack of trustworthiness of his statements.
More recent reporting on the Miske case by Ian Lind:
Updated Indictment In Miske Case Includes New Defendants And Details Of Alleged Murder
Why was a federal watchdog part of the Miske investigation?
Miske Case Rocks Stagehand Union After Executive Board Member’s Guilty Plea
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I, too, have never been charged and convicted for many of the offenses Mr. Rodby listed.
Was Stancil granted bail? What about Delia Miske?
The hearing on Stancil’s motion for release on bond hadn’t been scheduled when I checked yesterday. Delia Miske was released after bond was set last Friday.