I’ve got a story published over at Civil Beat this morning which describes a court hearing held last week to consider whether to allow another one of the Miske co-defendants, Kaulana Freitas, to be released on bond. The appeal was successful (“Another Miske Case Defendant Released Pending Trial“).

When the preconditions set by the court have been met and Freitas is finally released, half of Miske’s twelve co-defendants will be free on bond. Preston Kimoto, Michael Buntenbah, Jason Yokoyama, and Delia Fabro-Miske were released previously pending trial, now scheduled for September 2022. Hunter Bishop has pleaded guilty, agreed to cooperate with prosecutors, and has been freed pending sentencing. An additional defendant, Norman Akau, has also pleaded guilty but remains at the Federal Detention Center pending sentencing.

I found the Freitas hearing interesting because Judge Derrick Watson called out the prosecution for failing to present evidence to support the general allegations against Freitas contained in the indictment. Several times Watson said that while he could speculate, prosecutors had not provided sufficient evidence for him to draw firm conclusions. In Freitas’ case, they presented no new evidence to rebut the appeal.

This is the second time prosecutors have seemed to sleepwalk through a detention appeal, relying on prior arguments and boilerplate legal language. In a September 2021 detention hearing for Miske’s business partner in the M Nightclub, Jason Yokoyama, prosecutors put forward three key points. First, they argued Yokoyama’s purchase of a yellow 2014 Lamborghini Gallardo sports car in November 2015 for $227,118 was evidence of his access to substantial sums of cash that could be used to disappear if he were released from federal detention.

But Judge Watson said the purchase was largely irrelevant.

“Much is made of the Lamborghini in the government’s papers,” Watson said. “But as far as this guy is concerned, he purchased it in 2015 and defaulted in 2017, so what relevance does this have to his financial status in 2021?”

“In 2017, he clearly didn’t have the financial wherewithal to continue making payments. We are now 4-1/2 years past that,” Watson said. “Maybe it’s a sexy fact to bring up, but in September 2021, it seems to have very little relevance.”

Watson was equally critical of two other prosecution arguments, which again had been offered without supporting evidence.

Prosecutors said additional evidence for their view that Yokoyama had access to substantial funds came from his appointment as trustee for Miske’s revocable living trust, which was first created in 2008 and restated in 2016. At each of those times, Miske listed Yokoyama as his first pick to serve as successor trustee, according to the government’s motion to revoke Mansfield’s order.

“Of all the people in the world, Miske made Yokoyama his first trustee,” Inciong told the court….

But Watson probed further. “What are the conditions for him (Yokoyama) succeeding as trustee?”

Selected pages of the trust, which were filed in court as attachments to the prosecution’s motion to revoke Yokoyama’s release order, provide that Yokoyama, or any other successor trustee, would only take control if the primary trustee resigned, was incapacitated, or died. The trust documents also make clear that Miske is the sole trustee of his own trust, undercutting the prosecution argument.

Watson quickly shot down another prosecution view that several pedestrian border crossings Yokoyama made to Tijuana, Mexico, in 2019 and 2020 were evidence he was a flight risk, which if proven would be grounds for his continued detention.

“What is the government’s assessment of why he was crossing the border in that period?” Watson asked Inciong, who had suggested it was not for vacationing.

Inciong paused before answering. “I don’t have any supportive evidence as to what he was doing,” he replied.

I’m not sure what to make of this. It could be that prosecutors were not really all that concerned about whether these defendants remain in detention or not, and so more or less just went through the motions, ready to live with whatever the judge decided.

It may be that they are reluctant to disclose additional evidence at this point in the case if it is not required to be turned over to the defense in discovery, or to call attention to specific details that might be buried in the tens of thousands of pages of documents, and an estimated terabyte of digital data, already disclosed.

Or possibly their attention is focused now on the monumental task of preparing for trial where they will have to prove their cases against each of the defendants individually, and then against those alleged to have conspired collectively to carry out a variety of crimes. Considerable attention has been paid to the defense attorneys’ difficult task of preparing for trial, but it seems to me that the prosecutors’ job in a case this complex is more difficult. The burden of proof is, after all, on the government to prove each element of their case as it applies to each defendant, and to the broader group of conspirators. The clock is ticking, and perhaps preparations for opposing these appeals over continued detention are just a lower priority on the government’s still-limited time and resources.

Another possibility is that confidential deals have already been struck with some of these defendants which are not being disclosed at this time, with prosecutors offering only token opposition to defendants’ requests to be released on bond as a way to “cover up” their behind-the-scenes cooperation and protect them from retaliation.