Two events in the ongoing prosecution of former Honolulu business owner and accused racketeering boss, Mike Miske, took place last Wednesday, December 7.

First, there was a hearing early that morning before Magistrate Judge Kenneth Mansfield in which prosecutors and defense attorney continued a year-long squabble over the speed and extent of discovery in the case, the process in which defendants and their attorneys are provided access to most of the evidence the government is relying on to support the charges.

At the end of the hearing, Mansfield issued an order directing prosecutors to turn over all cell phones belonging to the defendants that were seized in the case, including those taken from Miske’s Kuuna Street residence when he was arrested in July 2020. Mansfield gave the government just 48 hours to comply and turn over the cell phones to a defense analyst by Friday, December 9, without further conditions or restrictions.

On the same day, U.S. Attorney Clare Connors, and the three Assistant U.S. Attorneys prosecuting the case against Miske and six remaining co-defendants, signed off on a Third Superseding Indictment returned by a federal grand jury. An earlier post here noted the latest indictment added two charges of obstruction of justice against Miske for “causing” false character reference letters to be submitted to the court at a hearing in August 2020 to determine whether he would be released on bond pending trial (“Updated indictment adds two charges against Miske”).

Instead of turning over the 18 cell phones, including three from which no data could be recovered, prosecutors appealed Mansfield’s ruling to Federal Judge Derrick Watson, who is assigned to handle the Miske case.

In their appeal, filed on December 9, prosecutors allege defense attorneys were confused about the technical issues and, as a result, provided false or misleading information on which Mansfield based his decision.

On December 8, 2022, a member of the defense team sent an email to the government acknowledging that, during the December 7, 2022 status conference, they were confused about the technical “nomenclature,” “gave up” trying to understand it, and erroneously told Magistrate Judge Mansfield the defense expert could generate “bit-for-bit” digital copies of the cellular telephones. The email concedes that the defense expert would not be making a “bit-for-bit” digital copy of the cellular telephones, as represented to Magistrate Judge Mansfield….

A copy of the email from John Schum to AUSA Michael Nammar is included in the government’s appeal. Schum is the represening Delia Fabro-Miske, who was married to Miske’s son, Caleb, who died in March 2016 as a result of injuries received in a high-speed accident. Mike Miske blamed Caleb’s best friend, Jonathan Fraser, who was also critically injured in the accident but survived, for his son’s death. Fraser disappeared suddenly on July 30, 2016, and is presumed dead. Miske is charged with directing a murder-for-hire conspiracy that resulted in his kidnapping and murder.

In their appeal, prosecutors assert “there is simply no need for the defense team to take custody of the 18 cellular telephones,” because the government has already made them available for inspection and analysis at the FBI’s Honolulu Field Office for over two months.

It was only at the December 7 hearing itself that defense attorneys claimed for the first time that “it was too burdensome” to have their inspection and copying done “under the supervision of FBI personnel…,” the appeal states.

…the government’s fundamental concern here is that surrendering physical custody of critical digital evidence to a defense expert without protocols in place to ensure its integrity, and stipulations concerning the veracity of prior data extractions and the admissibility of the digital devices, is unwarranted.

Prosecutors then directly raised concerns “fabricated evidence,” referring to the two additional charges contained in the superseding indictment that had been filed in court on December 8.

Additionally, given the serious issues that have arisen in this case with respect to fabricated evidence—including the submission of fraudulent character letters to the Court by the current defense team—see Third Superseding Indictment at Counts 21 and 22, Dkt. No. 673— extra diligence is warranted to ensure that anyone with access to the cellular telephones does not tamper with them, or other evidence, by, e.g., adding or deleting content, using them to impersonate witnesses, allowing third parties to access them, using embedded credentials to access third party sites, or otherwise obstruct justice. Whatever minor inconvenience might be imposed on defense counsel and the defense expert by conducting the copying and inspection at the FBI’s Honolulu Field Office—as opposed to an unsecure offsite location—is outweighed by the interest of the government and this Court in maintaining the integrity of the evidence in this case.

An order issued today by Judge Watson set Tuesday, December 27, as the deadline for opposition memos by defense attorneys, and January 3 as the deadline for any reply by prosecutors. Watson’s order indicated he would then make a decision without a hearing, based on the written submissions.

Mansfield’s original Dec. 9 deadline has been stayed pending a decision by Judge Watson on the government’s appeal.